Land Use

Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit

Published on: May 15, 2017 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Land Court Reverses Permit Approval for Construction of Two Buildings on Property Owner’s Lot

Published on: April 17, 2017 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Land Court Explains Requirements for Acquiring Wooded Land by Adverse Possession

Published on: April 10, 2017 | by Pulgini & Norton, LLP

Gaining title to property through adverse possession generally requires that certain legal elements be proven in court. The Massachusetts Land Court issued a decision on April 6, 2017, discussing the criteria for acquiring ownership in such a manner. In the case, the plaintiff claimed adverse possession of an 8,600-square foot, partially wooded rectangular parcel of land owned by the defendant, a real estate developer. The plaintiff alleged that his predecessor in title and he mowed and maintained the area in question from 1978 to the time of the present dispute, and, accordingly, he acquired title to that section of the defendant’s land by adverse possession.

In Massachusetts, title by adverse possession can be acquired only by proof of non-permissive use that is actual, open, notorious, exclusive, and adverse for 20 years. The burden of proving each element falls upon the party claiming title by adverse possession, i.e., the plaintiff in the case. To prove actual use, the plaintiff must establish changes upon the land that constitute sufficient control and dominion over the area, or, in other words, acts similar to those that are usually and ordinarily associated with ownership. Open and notorious use puts the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right. In addition, the plaintiff must be able to show a lack of consent from the true owner, rather than mere permission.

In considering the plaintiff’s claim, the Land Court explained that the particular acts that would be consistent with ownership and provide notice vary depending on the features of the land in dispute. In the case, part of the area claimed by the plaintiff contained numerous trees, with its surface covered with brush, weeds, and forest growth. The court found that the plaintiff’s intermittent actions of dumping leaves and grass clippings onto the wooded portion of the land was not evidence of actual use but instead the actions of a landowner attempting to place unwanted debris beyond the bounds of his own property.

Massachusetts Homeowner Appeals Zoning Variance Issued to Historical Society

Published on: March 20, 2017 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Plaintiffs Successfully Appeal Cease-and-Desist Order Regarding Their Private Airfield

Published on: February 20, 2017 | by Pulgini & Norton, LLP

Many local zoning bylaws regulate the use of residential property in a town or municipality. In a November 7, 2016 decision, the Massachusetts Land Court considered whether a local bylaw prohibiting airfields was invalid. The plaintiffs in the case were ordered by the town’s building inspector to cease and desist operations at the private airfield on their property, on the ground that such use was not permitted under the town’s zoning bylaw. That order was upheld by the Stow Zoning Board of Appeals and subsequently appealed to the Land Court.

The plaintiffs’ property was used to operate an aviation museum and housed a number of vintage aircraft in working condition. The property also contained an airfield registered with the Aeronautics Division as a non-commercial private restricted landing area. Many of the neighboring landowners objected to the noise and disruption caused by landing aircraft and aviation events held on the plaintiffs’ property, which prompted Stow’s building inspector to issue the cease-and-desist order prohibiting the use of the airfield.

Under Massachusetts law, a municipality must obtain the approval of the Aeronautics Division of the Massachusetts Department of Transportation before regulating the use or operation of aircraft on airfields. In the current case, the bylaw at issue prohibited airfields entirely, everywhere in the town. Although airport and landing field use had previously been allowed in many of the town’s districts, Stow’s zoning bylaw was amended in 1982 to delete it as a permitted use. The town applied for approval of the prohibition in its bylaw some time thereafter. The Aeronautics Division, however, denied approval to the extent that the bylaw sought to regulate aviation activity within its boundaries.

Plaintiffs Object to Neighbors’ Proposed Garage Construction in Massachusetts Zoning Appeal

Published on: February 13, 2017 | by Pulgini & Norton, LLP

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.

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.

Deed Provision Compels Massachusetts Landowners to Re-Convey Subdivision Lot to Developer

Published on: February 1, 2017 | by Pulgini & Norton, LLP

Some residential real estate deeds include provisions that limit or dictate what can be done with the property, often known as restrictive covenants. In a recent case (Mass. Land Ct. Jan. 25, 2017), the Massachusetts Land Court considered whether an option to repurchase land, styled as a restrictive covenant, could be exercised after a substantial period of time.

The plaintiff in the case was a subdivision developer that had sold several lots to residential purchasers, including the defendants, for the purpose of building homes on the lots. The plaintiff recorded a Declaration of Restrictive Covenants that applied to all of the subdivision lots, which contained a provision that allowed the plaintiff to repurchase any lot at the original sale price if home construction had not commenced within a year of the purchase.

In 2005, the defendants’ parents purchased a subdivision lot from the plaintiff, and a year passed without any construction. They subsequently conveyed the lot to the defendants, who also failed to build on the lot. In 2015, the plaintiff demanded that the defendants re-convey the property to the plaintiff, pursuant to the covenant contained in the Declaration. The plaintiff filed an action with the Land Court, claiming its right to exercise an option to re-purchase the lot as a result of the defendants’ failure to commence construction within a year after their purchase of the property.

Massachusetts Homeowners Operating Commercial Dog Breeding Business Found Incompatible with Deed Restrictions

Published on: January 9, 2017 | by Pulgini & Norton, LLP

In Massachusetts, a residential real estate property may be subject to restrictions contained in the deed, as well as other zoning and land use regulations. In Clish v. Paradise (Mass. Land Ct. Jan. 9, 2017), the Massachusetts Land Court decided a dispute involving neighboring residents of a subdivision development. The plaintiffs brought suit, alleging that the defendants were operating a commercial dog breeding and sales operation out of their home, in violation of the deed limiting the property to residential use.

In Clish, the deed of the property at issue contained a restriction that “the property so conveyed shall be used only for residential home construction.” The defendants argued that the language of the restriction only limits what can be constructed or built on the property, and it does not relate to the use of the property. The land court, however, found that this interpretation would render the restriction meaningless, since all of the lots containing the restriction were purchased with residential single-family homes already built on them. In addition, the court found that the purpose of the deed restrictions was to assure residents of the subdivision, including the plaintiffs, that they would be purchasing and living in a home in a residential neighborhood with the characteristic appearance and activities of the same. Accordingly, the land court held that the deed restriction limited the use of the property to residential use.

Massachusetts Appeals Court Considers Whether Safety Hazard Merits Allowance of a Variance in Zoning Case

Published on: December 12, 2016 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer

Published on: November 7, 2016 | by Pulgini & Norton, LLP

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.

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.