Articles Posted in Land Use

Before conducting business out of a residential home, it may be wise to consult with a Massachusetts real estate attorney familiar with the local zoning laws.  The property owners involved in a July 6, 2018 case operated a commercial kennel and pet store out of their residentially-zoned property.  After the neighbors complained to the local authorities about their activities, the zoning enforcement officer investigated the matter and directed the plaintiffs to cease and desist with their kennel and pet sale operations.  When the local zoning board upheld the decision, the plaintiffs filed their appeal with the Land Court.

The plaintiffs in the case owned an eight-acre parcel of land located within a residential zoning district.  The property contained a ranch-style house with an attached garage and outbuilding.  No one lived at the property.  Instead, the plaintiffs kept over 150 puppies and dogs on the premises, using the house as an office and pet store open to the public for the sale of puppies.  Almost all of the puppies were purchased from out-of-state breeders, but a few were bred by dogs permanently owned by the plaintiffs.  On average, between 1,000 to 1,600 puppies a year could be sold from the plaintiffs’ property.

Under the local zoning by-law, commercial kennels and pet stores were prohibited uses in suburban district zones, which was where the plaintiffs’ property was located.  The Land Court held that the plaintiffs’ business, which involved buying hundreds of puppies, food, and pet supplies that were delivered by large trucks in multiple weekly shipments, in addition to accommodating customers on the property to see and purchase the puppies, operated as a commercial kennel and pet store.  The plaintiffs’ commercial business was, therefore, in violation of the zoning by-law, unless otherwise protected.  One exception from the zoning regulation is for the breeding, raising, and training of dogs as an agricultural pursuit.

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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.