Articles Posted in Land Use

In the real estate market, the zoned use or designation of a parcel of property can significantly affect its monetary value.  In a March 8, 2018 land use case, the property at issue was estimated to be worth $250,000 if it was a buildable lot, but only around $85,000 if the property had to be kept vacant.  After a local zoning board ruled that a single-family home could be built on the lot, the matter was appealed to the Massachusetts Land Court.

The plaintiff in the case jointly owned the property at issue with his siblings and also owned the neighboring parcel of land.  The land court opined that while a decision allowing for a single-family home would typically be desirable to the property owners, the lower value attached to a non-buildable lot would allow the plaintiff to buy out his siblings’ interest in the parcel.  Accordingly, he brought the subsequent appeal.

The primary question for the land court was whether a local by-law allowed for a new residence to be built on the property at issue.  The relevant section of the by-law provided that, with respect to lawful, non-conforming residential structures, certain alterations as identified in the by-law should essentially be issued an automatic permit.  Specifically, in order for a building permit to be issued, there must be a non-conforming single-family structure on the property, the proposed alteration must not constitute a change in use and comply with current setback, building coverage, and height requirements, and the existing structure must be located on a lot that complies with the same requirements or has insufficient frontage.

Continue reading →

If you are opposed to a local government decision regarding land use, you may be able to bring an appeal if you are an aggrieved person as defined by law.  In a February 16, 2018 Massachusetts land use case, the Land Court considered whether a plaintiff had legal standing to challenge a local zoning board decision that authorized the development of a vacant lot abutting his backyard.

In the case, the local planning board granted a special permit to the town authorizing the construction of a group home for veterans who are either homeless or at risk of becoming homeless, using the town’s property pursuant to a bylaw providing for affordable housing.  The plaintiff, who owned abutting property, appealed the decision, contending that the board exceeded its authority in granting the special permit.  The defendants asserted that the plaintiff lacked standing to challenge the special permit.

In Massachusetts, people with abutting land are entitled to notice of a zoning board’s hearings and have a rebuttable presumption that they are aggrieved persons.  Nevertheless, abutters have the burden of establishing standing so that, if a defendant offers enough evidence to rebut the presumption, the plaintiff must prove standing by putting forth credible and direct evidence of a particularized injury.  The analysis is whether the plaintiffs have sufficient evidence to show they will be injured or harmed by proposed changes to an abutting property, rather than whether they will be merely affected by the changes.  One way a defendant can rebut the presumption is by showing that the claims of injuries raised by the plaintiff are not interests that the Zoning Act is intended to protect.

Continue reading →

In order to make certain improvements to your property, you may need approval from a local planning board.  If the process does not end in a favorable decision, you can appeal.  A February, 1, 2018 real estate case before the Land Court arose out of the plaintiffs’ efforts to develop their Massachusetts property.  They had applied to the town’s planning board, seeking approval of an improvement plan.  When the board denied their application, the plaintiffs appealed.  The case was eventually remanded back to the Land Court by the Massachusetts Court of Appeals, which reversed the ruling as to one of the plaintiffs’ claims.  Consequently, the matter was before the Land Court for a second time.

In the case, the only remaining issue to be resolved was the plaintiffs’ certiorari action. Certiorari is available if the proceeding is judicial or quasi-judicial, there are no other reasonably adequate remedies, and a substantial injury or injustice arose from the proceeding under review.  For the Land Court, the matter for review was the planning board’s decision.  The question for the court was whether or not there were grounds that a reasonable person would find proper to support the board’s decision.

The plaintiffs in the case sought approval of a plan that would allow their property to have adequate frontage on a certain way.  The application was submitted through the adequate access review process, which is used so that a way or street can be improved, without having to obtain definitive subdivision approval.  The limited circumstances in which these regulations may be applied require the way to meet the definition of a street under the by-laws, and the lot that has frontage on the way must have been in existence before subdivision control was adopted.  The plaintiffs were therefore required to demonstrate that both the way and the lot met the requirements provided.

Building a dwelling on your own property typically requires a special permit or approval from a local zoning board.  That decision can be appealed, as the plaintiffs appealed the denial of their building permit application in a November 2, 2017 Massachusetts zoning case before the Land Court.  The plaintiffs in the case had sought a building permit to construct a residence on a vacant lot. When their application was denied by the building inspector, they appealed to the local zoning board, which affirmed the decision. The plaintiffs then filed the present appeal to the Land Court.

On appeal, the plaintiffs argued that the lot was buildable, since it was created by the division of an existing lot in 1964 and retained its grandfather status under the zoning ordinance in effect at the time of the division. The zoning board asserted that the lot was unbuildable because the 1964 division was not approved pursuant to the Subdivision Control Law, and because the lot merged with another lot when it was placed in common ownership, losing any grandfather protection it had.

The Massachusetts Subdivision Control Law was enacted in 1953 and prohibits the division of land without approval of a plan by a local planning board. The term subdivision under the statute includes a tract of land divided into two or more lots, but it is subject to multiple exceptions, including lots with frontage on a public way. The plaintiff’s lot, which was created by division in 1964, was located on a public way and satisfied the statutory requirements, such that it was not considered a subdivision subject to additional subdivision laws. A division that is not a subdivision within the statute is known as an Approval Not Required or ANR plan, and the division does not require planning board approval.

Continue reading →

In some situations, nearby property owners have the right to object to decisions made by local zoning boards.  These cases typically involve interpreting deeds and applying the real property laws of Massachusetts and local bylaws.  In an October 5, 2017 case, the Massachusetts Land Court considered a challenge brought by plaintiffs against a property management company after the local zoning board granted a variance to the defendants, allowing an otherwise prohibited two-family dwelling use on an undersized lot.  One of the issues for the court was whether the defendants took title to the lot subject to all easements, restrictions, and rights contained in the recorded deeds, or whether the restrictions had expired pursuant to law.

The lot at issue in the case was originally part of a larger parcel that was conveyed in 1925 subject to several restrictions, one of which prohibited more than one single-family house and garage.  The parcel was thereafter subdivided into lots, which were sold individually and made subject to the original restrictions by deed.  The lot at issue was subsequently conveyed to various owners until the defendants acquired it in 2011.  The deed provided that the lot was subject to the same restrictions and easements as the prior deeds.  It did not provide any time limits on the restrictions.  The defendants sought a variance to authorize two-family dwelling use and deviate from minimum lot size requirements, which was granted by the local zoning board.

The plaintiffs in the case owned one of the other lots in the original parcel.  They argued that the deed restriction limiting the lot to single-family dwelling use remained valid and enforceable.  The defendants contended that the single-family use restriction originally imposed in 1925 had expired pursuant to Massachusetts G.L. 184 § 28.  The statute provides that any restriction imposed before 1962 is not enforceable after 50 years, unless a Notice of Restriction has been recorded to extend enforceability beyond the 50-year period.

Continue reading →

Massachusetts state and local zoning laws generally have the most direct impact on how land can be used, but in some cases, constitutional issues may arise.  An October 18, 2017 case illustrates a Massachusetts land use matter challenged by town residents on the basis of the Massachusetts Constitution.  The local planning board had granted site plan approval to a company for the construction of a solar panel facility on a portion of the town’s property, which the company leased from the town.  The plaintiffs alleged that the property at issue was protected by the state constitution, and, therefore, a two-thirds vote in the Massachusetts Legislature was required before it could lease out the land.  The main issue in the case, therefore, was whether the town violated the Massachusetts Constitution by leasing town-owned land for use as a solar-powered electricity generation facility.

Article 97 of the Massachusetts Constitution protects the right of the people to the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources.  Lands and easements taken or acquired for these purposes cannot be used for other purposes, or otherwise disposed of except by laws enacted by a two-thirds vote of the Massachusetts Legislature.  The question for the court in such cases is whether the land was taken for a purpose consistent with Article 97, or later designated as such.  If land was taken for more than one use, or just incidentally serves the purposes enumerated in Article 97, the requirements of Article 97 do not apply.

In the case, the town had originally taken title to the property at issue pursuant to a deed, which provided that the land was conveyed to the town for the purposes of protection of water resources and other compatible purposes, including conservation and recreation.  The plaintiffs contended this language triggered the protections of Article 97.  The town argued that the language did not designate the property solely for the purposes protected by Article 97 because it may be used for “other compatible purposes.”

Continue reading →

Massachusetts zoning laws regulate the manner and extent to which property can be used.  An August 18, 2017 Massachusetts real estate case brought before the Land Court illustrates a land use dispute involving neighboring homeowners.  One of the homeowners had requested that the town’s building commissioner take a zoning enforcement action against his neighbor, who operated a contracting business.  When the building commissioner denied his request, the homeowner appealed to the local zoning board of appeals, which found that the neighbor’s activities did violate use regulations.  The neighbor appealed the board’s decision to the Land Court.

The parties in the case lived in a Single Residence zoning district, where bylaws prohibited most commercial activities.  Despite the bylaws, the neighbor and his crew regularly parked numerous commercial vehicles at his property, gathered for meetings outside, and effectively used his yard as a contractors’ storage yard.  The homeowner who lived next door found these activities to be particularly disruptive, as did the rest of the neighborhood.

The Land Court found that many of the activities on the neighbor’s property were commercial in nature and prohibited under the bylaw.  The neighbor, however, argued that his property had, as an accessory use, a home occupation.  The local bylaw defined accessory use as that which is clearly subordinate and incidental to the principal building or use and, significantly, does not alter the character of the premises.  A customary home occupation, using one or more rooms for an office or studio, is a permissible accessory use under the bylaw, as long as no more than two people are regularly employed, the residential appearance and character of the premises are preserved, advertising on the premises is limited, and no sales are regularly conducted unless incidental to the accessory use.

Continue reading →