Massachusetts Real Estate Lawyer Blog
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.
Under Massachusetts law, planning boards may waive strict compliance with their own subdivision rules and regulations if: (1) it is in the public interest; and (2) it is not inconsistent with the intent and purpose of the Subdivision Control Law. The Appeals Court of Massachusetts has explained that a board’s determination of whether a particular waiver is in the public interest involves a large measure of discretion. Generally, if the waiver would provide substantially the same level of safety and convenience to the public that the strict adherence to the regulation would provide, the courts will approve a board’s finding that the waiver is within the public interest.
The Land Court explained that one of the chief policy concerns of the Subdivision Control Law is to ensure adequate drainage and water facilities, without harm to adjoining land. One of the ways this objective is achieved is by securing a covenant from the affected land owner providing for the installation of municipal services. If the owners of record are not identified in the subdivision application, the board cannot ensure that it would receive the properly executed covenant or consent.
In the instant case, however, the court found that requiring the plaintiffs to sign the application was not needed to achieve these objectives. The court noted that the defendants held an easement to provide the necessary utilities to the subdivision and that the board’s decision insured the necessary infrastructure would be built, regardless of the plaintiffs’ signature. The court therefore upheld the waiver, as it provided the same level of safety and was not inconsistent with the subdivision law.
Massachusetts real estate lawyers at Pulgini & Norton can guide you through the legal steps necessary to reach your goals. Our attorneys assist homeowners and individuals with a range of residential real estate matters, including building permit and variance applications, land use regulations, tax liens, foreclosures, mortgage re-financing, and more. If you are seeking experienced legal representation, contact Pulgini & Norton by phone at (781) 843-2200 or online and request a free consultation.