Articles Posted in Land Use

The consequences of a zoning board decision are not limited to the subject property but may also affect the neighborhood and wider community.  In certain situations, someone who believes a decision will negatively affect them may challenge a Massachusetts zoning board ruling.  However, Massachusetts law restricts the group of people with standing to bring such appeals, as explained in a May 17, 2018 case before the Appeals Court of Massachusetts.

The case concerned a local zoning board’s approval for modification of a special permit granted to the defendant, which operated a for-profit circus school for instruction in arts, skills, or vocational training.  After the plaintiff received notice of the zoning board’s decision, she filed a complaint in the Massachusetts Land Court, alleging that the changes would cause a detrimental health, safety, and welfare effect on her and her neighbors.  The Land Court dismissed the complaint due to her lack of standing, and the plaintiff appealed.

To have standing, and thus the right to bring suit, to challenge the decision of a municipal zoning authority in Massachusetts, the plaintiff must be a person aggrieved as defined by law.  This requires a plaintiff to show she has suffered a specialized, clearly identifiable injury, rather than merely articulating the general concerns of the community.  If the plaintiff falls under the category of people defined by statute, however, she is presumed to be aggrieved.  The statute applies to people on abutting property, abutters to abutters within 300 feet of the property at issue, and the owners of land directly opposite from the property at issue.

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Changes in land use and the development of nearby property is often a cause of concern for residential homeowners.  In an April 19, 2018 Massachusetts real estate case, the plaintiffs challenged a zoning board’s decision to grant a special permit to a developer, the defendant in the case.  The special permit allowed for the subdivision of nine acres of woodland into undersized lots.  The plaintiffs appealed the decision to the Land Court, arguing that the requirements for a special permit had not been met.  

The defendant in the case sought to subdivide its property into 14 single-family residential lots.  Although it was possible to divide the property in a way that would conform to the minimum lot area requirement under the local zoning ordinance, the resulting lots would be awkwardly formed with pigtail-shaped areas to have a sufficient lot area.  The defendant thus preferred an alternative plan, which would allow for evenly shaped, compact lots that would be undersized.

The defendant sought a special permit under a zoning ordinance that allows for reduced lots if all of the requirements provided were satisfied.  One of the requirements is that the original property must have existed in its current form prior to 2013.  The defendant’s property, however, was five separate lots in 2013 and later combined as one.  In addition, a piece of one of the five lots was conveyed to another owner so that even when considering the five lots together, it was not in the same configuration prior to 2013.

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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.

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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.

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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.

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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.

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