Articles Posted in Land Use

A restrictive covenant is a binding legal obligation that relates to the use of the land.  Typically, restrictive covenants are written into the real estate deed to the property.  In some situations, a plaintiff may sue to enforce a covenant against the owner of property subject to a restrictive covenant, as in an August 9, 2019 Massachusetts property case.

Both of the parties in the case resided in a subdivision abutting a country club and golf course.  When the homes were sold, the subdivision developer imposed a No Pools Restriction on the lots. The defendant knew about the restriction when he bought the property but began building a pool anyway.  The plaintiff filed a lawsuit in Land Court to enforce the restrictive covenant and enjoin the defendant from completing the pool.

In Massachusetts, although landowners are not precluded from bargaining for and enforcing beneficial land use restrictions, restrictions on land are generally disfavored.  To promote the reasonable use of land and increase the marketability of land impaired by obsolete restrictions, Massachusetts has enacted a statute that limits the right to enforce restrictive covenants on real property.  The defendants in the case agreed that their property was subject to a restrictive covenant but argued that this statute applied to prevent the plaintiff from enforcing the restriction at issue.

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Constructing a dwelling on a vacant lot usually involves some legal considerations, as well as approval from the local Massachusetts zoning authority.  Individuals who are denied a building permit may appeal to ensure that the matter was correctly decided under the law.  In a June 3, 2019 Massachusetts property case, the plaintiff brought an appeal before the Land Court after she was denied a building permit to construct a single-family home on her land.  The central issue in the case was whether the doctrine of merger precluded her lot from being treated as a preexisting, nonconforming lot exempt from local zoning ordinances.

The plaintiff’s lot was conveyed to her by her grandfather, who had also conveyed a second lot to the plaintiff’s sister.  The two lots were divided by a private way that continued through the subdivision.  The local zoning board concluded that the two adjacent lots had merged when they were held under common ownership by the plaintiff’s grandfather.  As such, the zoning board determined that the plaintiff’s lot did not meet the requirements of a preexisting, nonconforming lot.  The zoning board therefore denied the permit, finding that the lot was unbuildable under the requirements of the local ordinance and not subject to any exemption as a preexisting, nonconforming lot.  The plaintiff, in turn, asserted that her lot was entitled to grandfathering protections and argued that the private way running between the lots precluded merger.

Massachusetts law protects some preexisting lots from having to comply with increased area, frontage, width, yard and depth requirements of subsequently enacted zoning ordinances in some situations.  To fall within the exemption provided under the statute, however, the lot may not have been held in common ownership with any adjoining land.  In other words, the lot cannot have merged with any other lot, or it may lose its grandfather status.

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Making a significant change to residential property in Massachusetts typically requires approval from the local zoning authority.  That decision may be subject to several levels of appeals by the homeowners and other parties aggrieved by the outcome.  Proceeding with the changes, despite a pending appeal, may cause complications further down the road, as illustrated in a May 30, 2019 Massachusetts real estate case before the Court of Appeal.

In 2008, the owner sought a building permit to construct a 6,800-square-foot residence on his property overlooking Cape Cod Bay, and to convert the existing cottage into a studio.  The proposal was put forth as an alteration of the existing cottage, which was a pre-existing non-conforming structure.  The permit was approved, but a group of individuals filed multiple appeals.  Nevertheless, the owner began construction of the residence immediately, despite the Land Court’s warning that he was proceeding at his own risk.

In 2011, the Court of Appeals revoked the building permit, holding that as a matter of law, the house could not be considered an alteration of the existing cottage.  After that decision, the local building commissioner issued an order requiring that the house be torn down, which the owner appealed.  Ultimately, the owner and the town settled the matter, and the house was allowed to stand in exchange for a significant cash payment to the town and a multi-million dollar payment characterized as a charitable gift.

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In Massachusetts, certain uses and activities must be permitted under local zoning laws or approved by the proper authority before they are allowed to take place on a specific parcel of property.  In a March 21, 2019 Massachusetts zoning case, the plaintiffs sought to reverse a local decision that prevented them from transporting dirt and fill onto their property.

The plaintiffs in the case operated a farm on several parcels of property that they owned.  From 1990 through 2016, the plaintiffs had gravel removed from one of the parcels, which eventually created a 45-acre, 40-foot deep pit on the property.  The plaintiffs intended to fill the pit with dirt and restore the area in order to grow crops.  They contracted with a hauling company to accept fill from construction projects in and around Boston.  The hauling company was paid by construction sites to take away dirt fill, and the plaintiffs were paid to accept the fill while also having their pit filled in and restored to farming use.

The local building commissioner objected to the arrangement and ordered the plaintiffs to cease and desist all soil importation operations immediately.  The zoning board upheld the commissioner’s order, finding that soil importation was not a permitted use under the local bylaws.  The plaintiffs appealed the decision, and the matter was presented in the Massachusetts Land Court.

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November 4, 2016, Massachusetts voters passed legislation authorizing the legalization, regulation, and taxation of recreational cannabis in Massachusetts.  The Massachusetts statute allows cities and towns to adopt their own ordinances and zoning bylaws imposing reasonable safeguards on the operation of marijuana establishments.  The plaintiffs in a March 7, 2019 case sought a declaration that a general bylaw enacted by their Town, banning all non-medical cannabis uses, was invalid.

The plaintiffs in the case had purchased land in the Town to build an indoor marijuana growing and processing facility shortly after the Massachusetts statute was enacted.  In May of 2018, the Town adopted an amendment to its zoning, bylaw by two-thirds vote, allowing certain recreational marijuana uses in agricultural, industrial, and business districts by special permit.

A group of citizens and neighboring property owners, unhappy with the amendment, sought to rescind it through two articles.  The first article was another amendment to reverse the bylaw, which failed to obtain the required two-thirds majority vote.  The second was a general bylaw to ban all non-medical cannabis uses within the Town, which passed by a majority vote.  The plaintiffs filed an action in Land Court, arguing that the second general bylaw was an improper attempt to amend a use that was already regulated in its zoning bylaw.

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Many of the old homes in Massachusetts were built before the current local zoning bylaws were enacted.  In many situations, the bylaws exempt these homes from a particular regulation by grandfathering them.  In a February 21, 2019 case, the Massachusetts Land Court considered whether a town’s zoning bylaws permanently grandfathered certain uses of a property that existed before the original bylaws were adopted.  The issue would determine whether or not the plaintiffs could build a new two-family dwelling on their lot.

The lot contained an existing two-family house, which had been built in the 1880s.  For many years, and at least since 1950, it had been used as a two-family residence.  In 2010, a fire swept through the house, leaving the building standing but ruining the interior.  Due to the damage, no one had resided in the house for years after the fire, although renovations had sporadically taken place.

The plaintiffs sought to raze the structure and construct a new two-family house.  The property, however, was located in a district zoned for single-family homes only.  While the local zoning bylaw had grandfathered the existing, nonconforming two-family house, in order to build a new non-conforming two-family structure on the property, the plaintiffs needed special approval.

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Whether a plaintiff is entitled to have a Massachusetts real estate claim decided by a jury generally depends on the type of action and the circumstances of the case.  In a February 20, 2019 opinion, the Appeals Court of Massachusetts addressed an issue that had not been definitively settled in Massachusetts: whether a land owner is entitled to have a regulatory taking claim decided by a jury.

The plaintiff in the case owned an unimproved lot in a residential subdivision, which she had inherited from her parents, who purchased it in 1975.  In 2012, the plaintiff prepared plans to construct a home on her lot.  She filed a notice of intent with the town conservation commission, seeking approval under the Massachusetts Wetlands Protection Act and the town’s bylaws concerning wetlands protection.

The commission denied the plaintiff’s variance requests, concluding that her plans did not comply with the requirements of the laws.  The plaintiff then filed an action in the Superior Court, asserting that the town’s application of its wetlands protection bylaw was essentially a taking of her property, and as such, required compensation under the U.S. and Massachusetts constitutions.

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Many homeowners do not realize that making structural changes to a nonconforming house usually involves a legal process for approval.  In a February 8, 2019 Massachusetts zoning  case, the Supreme Judicial Court examined a law that exempts preexisting nonconforming structures from local zoning ordinances and bylaws in some situations when they are extended or altered.

The defendants in the case owned the second floor condominium unit in a two-unit house.  They sought to modify the roof of the house and add a dormer, thereby providing an additional by 677 square feet of living space.  It would also increase the preexisting nonconforming floor ratio area of the house, which presently exceeded the maximum allowed under the local bylaw.  As such, the defendants were required to apply for a special permit from the zoning board.

Many of the defendants’ neighbors, including the plaintiffs, appeared at the public hearing to oppose the permit.  The defendants presented evidence that the majority of the houses on their street already had partial or full third stories and were taller than the defendants’ existing building.  Town officials also noted that the proposed project would make the house appear more consistent, both in height and in design, with the others on the street.

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If you are seeking to build your new home on property located on a flood plain or watershed, local Massachusetts zoning  laws may significantly affect your plans.  In a February 5, 2019 real estate case, the property owners had difficulty obtaining approval to construct a single-family home on their lot.  Although a local zoning board had granted them a special permit, the owners of the adjacent property had appealed that decision, and it was reversed by the Superior Court.  The property owners subsequently sought review of the matter from the Appeals Court of Massachusetts.

The lot at issue in the case was located in the town’s flood plain and watershed district.  Under the local by-law, a special permit may be granted for land within a flood plain and watershed district if the applicant proves that the land is not, in fact, subject to flooding, and has suitable drainage conditions for the proposed use.  Flooding as used in the by-law means in the sense that water rises and overflows over normally dry land.

The local zoning board found that the lot was subject to flooding.  The board also considered whether development of the proposed dwelling would be inconsistent with the purposes of the by-law, and whether the dwelling would violate public policy concerns.  Determining that it did not violate public policy concerns, the board allowed the special permit.  The Superior Court reversed, concluding that under the by-law, the board could not grant a special permit for a lot subject to flooding in fact, notwithstanding any policy considerations.

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Constructing or modifying a home often involves land use regulations, which may be navigated with the assistance of a Massachusetts real estate attorney.  In a January 31, 2019 case, the Appeals Court of Massachusetts reviewed a decision from a local conservation commission denying the plaintiffs’ request to build a single-family home on a lot.  The decision was affirmed by the Superior Court before the plaintiffs sought additional review from the Appeals Court.

In 2007, the plaintiffs in the case had filed a notice of intent with the commission, requesting an order of conditions to build their house.  After a public hearing in 2009, the commission denied the plaintiffs’ request, concluding that it did not meet the requirements of the Massachusetts Wetlands Protect Act, nor the town’s wetlands protection bylaw and regulations.  Over the next several years, the issue was appealed and remanded back to the commission for reconsideration.  Ultimately, the commission denied the plaintiffs’ request for a second time for failing to meet the standards required under land use laws.

On appeal, the plaintiffs argued that there was substantial evidence to grant the notice of intent, and that the commission was required to allow a waiver under the wetlands bylaw and the regulations.

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