Articles Posted in Zoning

For many owners of residential beach homes in Massachusetts, their ocean view is an important and enjoyable part of their property.  In order to make certain changes to the home, therefore, local zoning laws generally require a special permit or variance.  In a July 12, 2019 Massachusetts real estate case, the owner of a beach house opposed the building permits granted to her neighbors for a tear-down and rebuild of a new residence.  The matter came before the Land Court on appeal by the plaintiff, following the decision of the local zoning board.

Both of the parties’ properties were on a peninsula near the ocean.  The plaintiff resided in a single-story home with a deck.  The defendants reportedly tore down an existing, single-story, non-conforming residence and built a new two-story home in its place.  Although the plaintiff’s view of the ocean from her deck became partially obstructed by the second story of the defendants’ new house, the height of the house fully complied with current zoning.  Other aspects of the house, however, were not.

On appeal, the plaintiff argued that the defendants’ new home increased the nonconformity of the floor area, open space, and setbacks beyond the limits allowed under the town zoning bylaw.  While the defendants had obtained a building permit to construct the house, the plaintiff asserted that the defendants were required to obtain a special permit or variance for the new build.

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Local zoning regulations generally promote the safety and general welfare of the community, while also encouraging the most appropriate use of the land.  In a July 11, 2019 Massachusetts real estate case, the plaintiffs sought to overturn a decision by the local planning board that waived the requirements of a zoning regulation.

The defendants in the case had applied for approval of a two-lot, two-residence subdivision.  They also proposed to extend the right-of-way running over the plaintiffs’ lot.  Under the applicable zoning regulation, all owners of all land included in the subdivision proposal are required to join in the application.  Due to the plaintiffs’ ownership of the right-of-way, which was included in the defendants’ subdivision plan, the regulation required the plaintiffs’ signature.  However, the local planning board waived this requirement and approved the defendants’ application.  The plaintiffs subsequently appealed the board’s decision to the Land Court.

On appeal, the Land Court concluded, as an initial matter, that the plaintiffs did not have standing to bring the appeal.  Although the plaintiffs were afforded the presumption of being aggrieved, as their property abutted the defendants’ land, they did not establish any specific and substantiated injury that would result from the board’s decision.  Nevertheless, the court went on to consider the issue of whether the applicant waiver was improper.

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In Massachusetts, land owners may file a petition in Land Court to determine the validity of, or the extent to which, a zoning bylaw or land use ordinance may affect the use, improvement, or development of their land.  In a July 1, 2019 Massachusetts real estate case, the plaintiff brought an action against his town, seeking a declaration as to how its zoning bylaw applied to his property.  Because the issue turned on undisputed facts, the Land Court decided the case on summary judgment.

The local ordinance at issue required that any type of residence must be setback at least 10 feet from a property line and at least 20 feet from the street.  However, an exception was provided for properties with existing buildings, if they were located less than 10 feet from the property line, or less than 20 feet from the street.  Such properties are allowed a setback equal to that of the nearer building line, as established by the existing buildings.

The plaintiff in the case owned property with an existing house and barn, among other structures.  Having reportedly been granted approval to divide his property into six single-family lots, the plaintiff wanted greater flexibility to develop the 6.5-acre property.  Correspondingly, if the bylaw exception applied, he would not be restrained by the 10-foot property line and 20-foot street setback requirements.  The issue in the case, therefore, was whether the house and barn created a nearer “building line” under the bylaw, thus exempting the plaintiff’s property from the bylaw’s setback requirements.

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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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Some homeowners impacted by a proposed change to a nearby property may have a way to legally oppose approval of the plan.  In a May 3, 2019 Massachusetts real estate case, the Appeals Court of Massachusetts reviewed the issuance of a building permit to the defendant, a real estate developer.  The plaintiffs filed the appeal after the local zoning board allowed the permit, and the Land Court subsequently upheld that decision.

The defendant in the case owned one lot in a small subdivision that consisted of four other lots with homes.  The plaintiffs resided on the lot abutting the defendant’s property.  After the defendant was issued a building permit to construct a home on the lot, the plaintiffs filed an action in Land Court to challenge the validity of the permit.  The plaintiffs argued that the defendant’s lot did not comply with the rear lot dimensional requirements of the local zoning bylaws.

Under the local bylaws, a rear lot is defined as a parcel of land not fronting or abutting a street, and which has limited access to a street due to the shape of the lot, an easement, or a private right-of-way as shown on the recorded deed or subdivision plan.  For a two-family rear lot in a multi-residence zone created after December of 1953, the bylaws require a minimum lot size of 12,000 square feet, which is subject to a maximum floor area ratio.

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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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