Articles Posted in Zoning

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Many people consult with a Massachusetts land use attorney before engaging in a particular activity on their residential property in order to understand relevant zoning restrictions.  While zoning is generally determined by the local government, in some cases, federal or state law may have an effect, as illustrated in a January 8, 2018 case before the Supreme Judicial Court of Massachusetts.helicopter

The plaintiff in the case was a licensed helicopter pilot.  He used his helicopter to travel to his various family homes and business appointments, but not for any commercial purpose.  Following the plaintiff’s request for a private helicopter landing area, the Federal Aviation Administration recognized his property as a licensed private use heliport.  The town building inspector issued an enforcement order, stating that the plaintiff was in violation of the local bylaws, since a heliport was not allowed in any zoning district of the town.  The plaintiff filed an appeal, which was denied by the zoning board.  The land court reversed the decision, and the Supreme Judicial Court of Massachusetts granted direct appellate review of the matter.

Pursuant to Massachusetts statutes, before a town acquires property to construct or improve an airport or restricted landing area, it must first apply to the Department of Transportation for approval of the site.  However, a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior approval; the landowner must simply inform the Department and ensure that the area is safely built and maintained in order not to endanger the public.  A later amendment to the statute provided cities and towns with the authority to enact rules and regulations, with Department approval, governing the use and operation of aircraft.

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Many property owners become concerned when areas in their neighborhood undergo zoning changes and are used for purposes not originally intended.  The landowners in a January 5, 2018 Massachusetts land use case took action after learning of zoning changes in their neighborhood.construction

In the case, the city council had approved a zoning amendment to rezone land owned by the defendants.  The city council had also granted the defendants a special permit approving their proposed development of the land.  The plaintiffs were nearby property owners opposed to the development and zoning change of land in their neighborhood.  In response to a rezoning decision made by the city council, they submitted a written protest to the city clerk.

Pursuant to Massachusetts law, if the requirements of the protest statute are met, the number of votes of the city council necessary to pass a zoning amendment is increased from two-thirds to three-fourths.  The plaintiffs in the case argued that their protest petition met the statutory requirements needed to require additional votes from members of the city council to approve the change.

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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.construction

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.house

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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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.solar panels

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.”

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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.construction

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.

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Massachusetts real estate disputes often arise when property owners feel that changes proposed by other landowners would adversely affect their property rights. In a July 26, 2017 case, the Appeals Court of Massachusetts considered whether a local planning board properly approved a modification of a 1947 subdivision plan that abandoned a portion of one road and replaced it with an easement.

street-1446906-639x847-226x300The defendants in the case had sought the modification from the planning board in order to advance the commercial development of properties owned by the defendants along the subdivision road at issue. Upon the board’s approval to change the subdivision road to an easement, the defendants could then combine their lots and eliminate some of the zoning restrictions they faced.

The plaintiffs in the case were residential owners of lots that abutted the subdivision road from the north. They appealed the planning board’s decision to allow the defendants’ proposed modification, objecting to the changes. The Land Court ultimately affirmed the board’s approval, concluding that the plaintiffs had failed to demonstrate any harm affecting their lots from the discontinuation of a portion of the road and change to an easement. The plaintiffs subsequently brought their appeal to the Appeals Court of Massachusetts.

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Land use and zoning laws regulate how people and businesses can use and build upon their property.  Property owners are not completely restricted, however, and may seek approval from the local government of plans that do not conform with the laws.  In a June 22, 2017 case, the Massachusetts Land Court determined whether a special permit was properly granted to the defendants by a zoning board.  The defendants in the case sought to demolish a pre-existing, non-conforming dwelling and build a new house on their property.  After the zoning board approved the plan, the plaintiff challenged the decision by filing an appeal.beach house

In 2014, the plaintiff had sold the lot to the defendants, which was located next door and downhill from the plaintiff’s property.  The defendants sought to raze the small one-story house on the lot and construct a much larger and taller two-story house.  The plaintiff contended that the view from her property would be diminished and result in a loss of privacy, due to the second-story windows planned for the defendants’ new house.  The plaintiff also presented witness testimony that the value of her property would decrease.

After finding that the plaintiff had standing to challenge the zoning board decision, the land court addressed the merits of the appeal.  The bylaw at issue provided that non-conforming single-family residential structures, as here, may be altered if:  (1) the alteration will not increase the non-conforming nature of the structure; or (2) the alteration will increase the non-conforming nature of the structure, but the zoning board determines that the alteration is not substantially more detrimental to the neighborhood than the existing structure and issues a special permit.

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Before someone can challenge the validity of a permit issued to another landowner, that person must have legal standing.  In a June 12, 2017 case, the issue for the Massachusetts Land Court was whether a plaintiff who lived across from the defendant’s property had standing to appeal a special permit granted to the defendant by the local zoning board.  The special permit allowed the defendant to construct a four-unit residential building in a zone where three-unit buildings are allowed as of right and where larger buildings require a special permit.unfinished building

The defendant in the case was a real estate developer that purchased property located across the street from the plaintiff’s house.  The defendant sought a special permit to tear down the existing single-family home on the property and replace it with a single structure containing four residential units.  After the zoning board granted the permit, the plaintiff appealed, alleging that she would  be negatively affected by traffic and fire vehicle access that will result from the proposed development.

In order to have standing to challenge the defendant’s zoning permit, the plaintiff must be “aggrieved” as defined by law.  People entitled to notice of the permit are entitled to a rebuttable presumption that they are aggrieved.  In the case, the plaintiff was an abutter to an abutter within 300 feet of the defendant’s property, and as a result, she was entitled to the presumption that she is aggrieved.

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If a zoning board decision affects other adjoining or nearby landowners, they may be able to appeal the ruling.  The Massachusetts Land Court reviewed a case on June 7, 2017 in which the defendants had obtained approval from the local zoning board to tear down a lawfully nonconforming garage on their property and replace it with a larger, single-family home.  The plaintiffs, who lived on a parcel of land abutting the defendants’ property, appealed the zoning board’s grant of a special permit and variances authorizing the plan.construction

After determining that the plaintiffs had standing to bring the appeal, the land court turned to the question of whether the special permit had been properly issued.  The defendants in the case requested relief from the off-street parking requirements of a local ordinance, which required a 20-foot driveway to accompany parking facilities within the ground floor of a structure.  Pursuant to local laws, the zoning board is authorized to waive this requirement by issuing a special permit, if the board finds that the reduction is not inconsistent with public health and safety or that the reduction promotes a public benefit.

After reviewing the zoning board’s written determination, the land court found that, despite the lack of an explicit finding that the defendants’ proposal was not inconsistent with public health and safety or that the reduction promotes a public benefit, the standard was implicitly applied when the zoning board considered traffic flow and safety and stated that it did not foresee the location and the size of the site as having a significant negative impact.  The land court concluded that the board employed an evaluation that was functionally identical to that mandated by the ordinance regarding parking waivers.

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