Articles Posted in Zoning

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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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Before making changes to an existing building or constructing a new one, property owners may have to obtain approval from the local government. In a May 30, 2017 case, the Massachusetts Land Court reviewed a zoning board decision granting a variance to the defendants for the construction of a new house on their vacant lot. The plaintiffs appealed the variance, which would allow the defendants’ house to be 15 feet closer to the plaintiffs’ property than permitted by the setback.delta

The defendants in the case owned two lots that were conveyed to them by a single deed in 1986. The defendants had built a house on one of the lots, while the other lot remained undeveloped. The plaintiffs in the case resided in a house located next to the defendants’ vacant lot. The vacant lot was oddly configured, making improvement of the property difficult due to its unique shape and the presence of wetlands. The zoning board ultimately granted the variance, finding that these factors created a hardship to the defendants that justified relief in order for them to develop the property. On appeal, the plaintiffs claimed that the proper requirements for issuing a variance were not met, and as a result of the variance, they would suffer from increased density, reduction in privacy, loss of view, decrease in property value, safety infringements, and instability to their property.

The primary issue for the land court was whether the two lots owned by the defendants had merged for the purposes of zoning, which would result in the loss of grandfathered status and subject the property to the contiguous upland requirement in order to be buildable. The merger doctrine provides that adjoining land in common ownership must be added to nonconforming land in order to bring it into conformity or reduce the nonconformity. The grandfather provision at issue in the case exempted certain lots from increases in lot area, frontage, width, yard, or depth requirements, protecting owners whose lots previously conformed with zoning requirements. However, the exception was not available to lots held in common ownership with an adjoining lot, which may be combined, or merged, to reduce or eliminate the nonconformity. The bylaw provided that lots held in common ownership are entitled to grandfathering for five years after the effective date of a zoning change, if certain requirements are met, after which the lots are combined or merged to reduce nonconformity.

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In some cases, home owners may need to seek approval from local officials before making significant changes to their properties. In a May 5, 2017 opinion, the Massachusetts Land Court reviewed a zoning board decision rejecting a building permit application filed by the plaintiff.  The key question for the court was whether a vacant, dimensionally non-conforming parcel of land merged for zoning purposes with an adjacent property, therefore rendering the vacant parcel separately unbuildable.construction

The vacant parcel at issue was held in trust, with the plaintiff and her mother as trustees.  The plaintiff also owned, in her individual name, an adjacent property with an existing house. The plaintiff filed a building permit application to construct a single-family home on the vacant parcel, which was denied on the ground that it was under common control with the adjacent parcel.

In Massachusetts, the doctrine of merger provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes in order to minimize non-conformities.  Once merger occurs, it cannot be undone.  In other words, a person owning adjoining lots may not artificially divide them in order to restore old record boundaries and obtain a grandfather non-conforming exemption.  Instead, to preserve the grandfather non-conforming exemption, the lots must retain their separate identity.

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Property owners may apply for special permits allowing them to construct non-conforming buildings or renovations on their land.  In some cases, the grant of such a permit may be challenged by abutting neighbors.  The Massachusetts Land Court recently reviewed a zoning board decision in an April 6, 2017 appeal.  The defendant in the case was granted a special permit to replace an existing single-family house on his property with a much larger two-story house and another freestanding accessory building with a three-car garage.  The plaintiffs, who owned abutting property near the defendant, appealed the decision to the land court.barn

The case was complicated by the fact that there was another single-family house on the defendant’s property.  In 1945, a zoning by-law was enacted that made it unlawful to have two dwellings on one residential lot.  However, the 1945 by-law also provided that legally pre-existing nonconforming structures and uses could be continued and may be expanded if a special permit is granted.  The issue for the land court was whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945.  If they were not, the special permit would be invalid.

The land court found that the two existing houses on the defendant’s property were dwellings because they are detached buildings separated from other structures and designed to accommodate a residence for the use of one or more individuals.  Accordingly, its use was nonconforming under the 1945 by-law and could be continued only if both of the houses existed lawfully before the zoning by-law was enacted.  After reviewing the evidence of record, the land court determined that the second dwelling did not exist until after the enactment of the 1945 zoning by-law.  As a result, the land court held that it was not a lawful pre-existing, nonconforming use and may not be continued.

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Whether or not a property owner can challenge a zoning decision regarding another property depends on his or her standing.  The Massachusetts Land Court decided a March 13, 2017 case in which the defendants argued that the plaintiff lacked standing to object to a local zoning board decision.  The court provided a thorough explanation of the issues and requirements relating to injury and standing.lighthouse-1226471-639x852-1-225x300

The case arose out of the proposed construction of a two-story addition that would be used to store the archives of a historical society.  The historical society sought a variance from the zoning board to construct its addition outside of the side-yard setback allowed by local regulations.  The plaintiff owned and resided at a property across the street from the historical society building, approximately 240 feet from the site of the proposed addition.  When the zoning board granted the variance, the plaintiff filed a complaint appealing the decision.

Under the Massachusetts Zoning Act, only a person aggrieved has standing to challenge a decision of a zoning board of appeals.  Abutters, landowners directly opposite on any public or private street or way, and abutters to abutters who are within three hundred feet of the property line of the petitioner are entitled to notice of zoning board hearings and have a rebuttable presumption that they are aggrieved by a decision concerning another property.  The defendant may rebut the presumption by showing that the plaintiff’s claims are not interests that the Zoning Act is intended to protect.

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Individuals may have the right to appeal a decision from their local zoning board if the matter directly affects them or their property.  The Massachusetts Land Court reviewed such an appeal in a January 3, 2017 case, in which the plaintiffs objected to a decision of the Zoning Board of Appeals.  The Board had granted a special permit allowing the defendants to rebuild a deteriorated garage on their property.  By issuing the permit, the Board approved a proposed structure that was higher than the original and in a different location of the defendants’ property.shed

On appeal, the Land Court first addressed the issue of standing by determining whether the plaintiffs had suffered some infringement of their legal rights.  The plaintiffs asserted standing based on noise, density, harm to the salt marsh and related flooding, diminished views and vistas, and diminution in value of their property.  After reviewing the evidence, the court concluded that the plaintiffs had standing based only on an increase in density but not on the other grounds asserted.  In particular, the court found that the new garage’s increase in height and the movement of residential activity closer to the plaintiffs’ property were sufficient to provide standing based on an increase in density.  The court went on to rule against the plaintiffs’ procedural arguments, holding that the Board’s actions in approving and issuing the special permit were not in error.

Finally, the court reviewed whether the special permit was granted based on an unreasonable, capricious, or arbitrary exercise of judgment in applying the land use regulation to the facts. Pursuant to the local bylaws, special permits are only granted if the applicant demonstrates that no undue nuisance, hazard, or congestion will be created, and there will be no substantial harm to the established or future character of the neighborhood or town.  In addition, the proposal must not be substantially more detrimental to the neighborhood, zoning district, or town.

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In some situations, there may be an exception to a zoning ordinance that would otherwise prohibit a particular activity or change to a property.  In a recently published opinion, the Appeals Court of Massachusetts reviewed a case in which the defendant sought and received a dimensional variance from the zoning board, allowing it to build a new boat repair facility outside the setback requirements of the local zoning ordinance.  In Furlong v. Zoning Bd. of Appeals of Salem (Mass. App. Ct. Dec. 12, 2016), the owner of the abutting property appealed that decision to the Land Court. The Land Court affirmed the zoning board’s ruling, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard and that the defendant had demonstrated a hardship sufficient to merit the allowance of a variance. The plaintiff then brought his appeal to the higher court.harbor

Variances are individual waivers of local legislation that permit nonconformity. A variance may be allowed only when, due to circumstances relating to the soil conditions, shape, or topography of such land, a literal enforcement of the ordinance or by-law would involve a substantial hardship, financial or otherwise, for the landowner, and if relief may be granted without substantial detriment to the public good and without substantially deviating from the purpose of the ordinance or by-law.

In Furlong, the defendant owned property upon which it operated an active marina with a parking lot and several structures. In 2011, the defendant submitted a petition for a variance of the setback requirements, seeking to construct a boat repair facility at the edge of the property in order to provide adequate room for the safe operation of the travel lift and reduce the noise and fumes. The building plan included widening the entrance to the marina from the street.  The defendant argued that, because of the peculiar shape of the property, a hardship in the form of safety hazards would result if the building were constructed within the setback requirements.  These safety hazards would be caused by the building interfering with the operation of the travel lift, which requires a large, open turning radius free of blind spots.

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When a local planning board makes a decision regarding a real estate matter, adversely affected landowners may be able to appeal and argue their case.  In Siok v. Planning Bd. of Ludlow (Mass. App. Ct. Oct. 31, 2016), the Appeals Court of Massachusetts reviewed a decision by a planning board, which had approved a developer’s petition to modify a subdivision plan by eliminating an unbuilt roadway known as a spur.  The plaintiffs were owners of an undeveloped, landlocked parcel abutting the subdivision and required access via the spur.  The plaintiffs appealed, arguing that the board exceeded its authority in granting the defendant’s new plan and that they had acquired an easement by estoppel over the unbuilt spur.  The decision was affirmed by the land court and subsequently taken to the appeals court.mailboxes

In Siok, the developer’s plan was originally approved in 2007.  It showed the spur extending from one of the roads in the subdivision to the land owned by the plaintiffs, but it did not require the spur to be built or require an easement to be granted or reserved for the benefit of the plaintiffs.  The spur road was, in fact, never built, and the plaintiffs had no access to their land through the subdivision.  In 2012, the developer sought to remove the spur from the plan, and the local planning board granted the request.  In doing so, the board granted a waiver of the requirement of a second means of access to a subdivision exceeding eight lots.

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In some cases, there may be restrictions or conditions affecting the title or use of real property. The Massachusetts Land Court recently decided a real estate dispute involving the validity of a lot size restriction on a parcel of land in Nair v. Nantucket Land Council, Inc. (Mass. Land Ct. Oct. 14, 2016). One of the issues before the court was whether or not the 1982 restriction on the plaintiff’s parcel had expired under Massachusetts law.books

In Nair, the lot at issue was deeded in 1982, with the defendant, a non-profit organization, named as the sole beneficiary. The deed contained a restriction on the minimum size and any division of that lot. No term or expiration date was set for the restriction, nor was there any provision made for its extension. Relevant to that restriction was the litigation surrounding the ownership of that lot and other adjoining and nearby land, since each of those cases was settled in return for the restrictions recorded in 1982. In 2012, the plaintiff and owner of the lot submitted a proposal to divide the lot to conform to a new re-zoning law. The defendant subsequently challenged the division of the lot.

Pursuant to Massachusetts statute, if a deed contains any unlimited conditions or restrictions on real property, it shall be limited to 30 years after the date of the deed or instrument. There are four exceptions to the 30-year limitation, one of which is the exception for gifts or devises for public, charitable, or religious purposes. In Nair, the defendant argued that the restriction on the lot was a gift for charitable purposes, and therefore, it was not subject to the 30-year time limitation provided by the statute.

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Many times, increased development or changed uses of land are opposed by neighboring residential property owners. In Franson v. City of Woburn (Mass. Land Ct. Sept. 14, 2016), the Massachusetts Land Court decided a zoning dispute involving a development group seeking to construct 18 townhouses. The property at issue was located in a single family residential zoning district, directly abutting a business and commercial district. In order to build, the development group filed an application for the property to be rezoned to a district allowing for multifamily housing. After the city council approved the rezoning, residents in the surrounding neighborhoods challenged the rezoning as “spot zoning,” illegal contract zoning, and arbitrary and capricious.townhouses

Spot zoning occurs when one lot or a small area has been singled out for treatment less onerous than that imposed upon nearby, indistinguishable properties. Selective zoning of that kind violates the uniformity requirements of Massachusetts law and constitutes a denial of the equal protection under the law that is guaranteed by the state and federal Constitutions. Whether the approval of the development group’s application constitutes spot zoning turns not on which parcel has been singled out, or even on the effect on the parcel, but instead on whether the change can fairly be said to be in furtherance of the purposes of the Zoning Act.

After reviewing the record, the land court found that the plaintiffs failed to meet the heavy burden of establishing that the rezoning approval conflicted with the Zoning Act and was therefore spot zoning. The court also found that based on the hearings and opinions presented, the city council reasonably concluded that rezoning the parcel of land at issue would further long-standing goals of providing additional housing inventory and public access to a nearby historic site. The court went on to explain that the record showed a rational and calculated effort by the city council to achieve long-standing objectives to advance the general welfare of the city. In addition, there was a practical basis for rezoning, since the property is located adjacent to a business-highway district and a shopping plaza, and changing the neighborhood would create a buffer between the residential and business zones.

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