Articles Posted in Land Use

New construction and major changes to property may have an unwelcome impact on other homeowners.  Whether or not a person can formally contest a proposed change, however, depends on if they have standing to bring a legal action.  The question of standing was one of the main issues in a November 15, 2018 Massachusetts real estate case before the Court of Appeals.

The defendants in the case had received a variance from the local zoning board, which allowed them to go forward with the proposed construction of a home on a vacant lot they owed.  The vacant lot was adjacent to an existing house, also owned by the defendants.  The plaintiffs’ property abutted and was adjacent to the vacant lot on the other side.  In securing the variance, the proposed house would be closer to the plaintiffs’ property than otherwise allowed.

The plaintiffs filed an action in Land Court challenging the variance.  Ultimately, the Land Court concluded that the defendants’ two lots had merged, and as such, a variance could not issue to allow construction of a second home on the property.  The defendants appealed, arguing that the plaintiffs lacked standing to bring the action.

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Resolving zoning violations may require compromise in unusual situations.  In a November 9, 2018 Massachusetts real estate case, the Land Court was tasked with deciding the fate of a house that was constructed in violation of the local zoning bylaws.  The plaintiff in the case owned a single family residence across the street from the house at issue.  The house had been constructed despite the plaintiff’s objections, which were timely filed.  The defendants, with full knowledge of the pending litigation, purchased and moved into the house with their children.

It was undisputed that neither the building permit for construction of the house, nor the subsequent certificate of occupancy, should have been granted.  The lot on which the house was built did not meet the depth requirement, as it was more than fifty feet short of the 125 feet demanded by law.  As such, the defendants applied for a variance, which was granted by the local zoning board.  The lot, however, did not meet the criteria for such a variance.  The plaintiff subsequently challenged the variance, and a trial was required to determine whether the plaintiff had standing to do so.

Standing requires the plaintiff to show that he has or will suffer an injury related to an interest that is protected by the applicable zoning law, and which is special and different from the general concerns of the larger community.  The Land Court ruled that the plaintiff did have standing to challenge the variance, but only from a single impact.  Namely, the headlights shining in the windows of his home at night from cars exiting the defendants’ driveway.

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Owners of vacant parcels of land often seek to construct single-family homes on the empty lots.  In most situations, Massachusetts property owners will need to obtain a permit from the local zoning authority to build a new home.  The plaintiffs in a September 27, 2018 case sought approval to build a single-family dwelling on each of the two vacant lots they owned.  The building inspector denied the permits, finding that the two lots lacked legal frontage, and therefore, were not buildable without a variance.  When the building inspector’s decision was upheld by the local zoning board, the plaintiffs appealed to the Massachusetts Land Court.

The lots owned by the plaintiffs were bordered by roads on their east and west property lines.  Under the local bylaw, a house lot must have at least 150 feet of frontage to a qualified way between its side boundary lines.  The primary issue in the case was whether one of the roads bordering the plaintiffs’ lots qualified as a way that would allow them to satisfy the frontage requirement for a lot with a house.

Massachusetts law defines a way that qualifies for frontage as: (1) a public way or a way that is maintained and used as a public way; (2) a way shown on an approved plan in accordance with the subdivision control law; or (3) a way in existence before the subdivision control law became effective, which provides for the traffic needs of the abutting land and for the installation of municipal services to serve the land.

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The actions of developers and other businesses may have lasting effects on the properties of residential homeowners.  When the change is unwanted or unwarranted, homeowners may be able to take legal steps to protect their property rights.  In a September 7, 2018 Massachusetts real estate case, the homeowners succeeded in opposing a property developer’s plan to use a right of way easement on their property.

The developer in the case had applied to the local zoning authority for approval of a proposed plan to build an affordable housing complex with thirty-two dwelling units.  Seeking to demonstrate that there was sufficient access to the proposed development, the developer added to its proposed plan an additional access road traveling from the public road to the development.  The additional access road proposed by the developer, however, required use of a right of way through property owned by the plaintiffs.  The plaintiffs filed an action in the Massachusetts Land Court to protect their rights in the right of way, arguing that the developer had no rights to cross their land to access the proposed development from the public road.

The developer first argued that it had a granted easement over the right of way because it was shown on the recorded plan of the plaintiff’s subdivision.  The court disagreed, holding that the mere depiction of a way on an approved subdivision, without more, does not operate as a grant of an easement.

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Making certain changes to your property, such as dividing or building on your lot, may be subject to local zoning laws in Massachusetts.  These changes typically require approval, as illustrated in an August 15, 2018 case before the Massachusetts Land Court.

The plaintiff in the case owned a large parcel of property that straddled the Massachusetts and New Hampshire state line.  He had sought approval from the local planning board to divide a portion of his property into three lots.  All three proposed lots were located in Massachusetts, met the minimum frontage and lot size requirements, and had frontage on a public road.  The board nevertheless denied the request, finding that the proposed plan would result in the New Hampshire parcel becoming landlocked.

The plaintiff appealed the board’s decision with the Massachusetts Land Court.  On appeal, the issue to be decided by the court was whether it was appropriate for the board to consider how the division of one portion of the property located in Massachusetts would affect another lot located in New Hampshire.

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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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Some restrictions on property are limited in their duration, often either through the express terms of the instrument or by statute.  In a May 18, 2018 Massachusetts real estate case, the issue concerned the water usage rights of a local town in a lake located on the defendant’s property.  The parties disputed whether the town still had the rights, or whether the rights had since reverted back to the owner of the lake.

In 1958, the prior owner of the defendant’s land had conveyed flowage and usage rights of the lake to a business entity.  The entity, in turn, conveyed the rights to the town in 1972.  These rights were subject to a reversionary interest in favor of the grantor and his successors.  This meant that, if certain conditions were not met, the town would lose its rights in the lake, and they would return to the current owner of the property.  Specifically, if the town failed to maintain the dams or impound the waters of the lake as agreed in the 1958 conveyance, the grantor or their successors could, at their option, record a written declaration that would effectuate their reversionary interest.

In 2016, the defendant recorded an instrument that purported to effectuate its reversionary interest in the rights that were conveyed in 1958.  The town, in turn, filed an action seeking to quiet its title to the flowage and usage rights it obtained in 1972.  Although the town conceded that it had not maintained the dams and impounded the waters of the lake, as required by the conveyance, it argued that under Massachusetts law, the original grantor or successors had only 30 years to make the necessary record to effectuate their reversionary interest.  The town asserted that since they failed to record a declaration within the 30-year period, the town acquired absolute ownership of the flowage and usage rights.

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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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A deed restriction may significantly affect one’s enjoyment of their own property by prohibiting certain uses, activities, or construction.  The plaintiff in an April 26, 2018 Massachusetts land use case challenged a deed restriction imposed on her property in the Massachusetts Land Court.  She sought a declaration that some of the deed restrictions were invalid, alleging that they violated public policy by imposing an unreasonable restraint.  The defendant in the case was the City of Boston.

In 1991, the City sold the lot to the prior owner as part of a program in which it conveyed small parcels of land to abutting Boston residents, subject to deed restrictions.  The open-space restriction required that the property be used and maintained for open space purposes, such as gardening, landscaping, and off-street residential parking.  The no-build restriction prohibited the construction or installation of structures on the lot, with only one exception for an addition to the existing dwelling on the abutting lot.  The purpose of the program and deed restrictions was to retain the public benefits of open space as well as preserving reasonable density in Boston neighborhoods.

In connection with the deed, the prior owner executed a mortgage on the property, which required the written consent of the City in order to assign it to a successive owner and secured the owner’s compliance with the restrictions.  In 2010, the City gave its consent to the conveyance of the property to the plaintiff.  The deed set forth the same restrictions but expressly provided that they were for the benefit of the City of Boston.  The plaintiff also granted a mortgage at that time, in which she agreed to the restrictions.

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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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