Zoning

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.

Massachusetts Statute Releases Restriction on Lot Size After 30 Years

Published on: November 1, 2016 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Property Owners Challenge Rezoning Approval for Multi-Family Development

Published on: September 26, 2016 | by Pulgini & Norton, LLP

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.

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.

Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property

Published on: September 19, 2016 | by Pulgini & Norton, LLP

In a current real estate case, Massachusetts property owners brought an action seeking to annul a special permit granted by the town’s planning board for the construction of a 16-unit housing development. In Parker v. Freedman (Mass. Land Ct. Aug. 26, 2016), the plaintiffs contended the development would negatively affect their property and the surrounding neighborhood with increased traffic, noise, and congestion, and the plan would impermissibly allow the public onto their property, overburdening the right of way easement.

In Parker, the plaintiffs’ lot was between another single-family residence and the defendant’s lot. A right of way easement over a driveway partially located on the plaintiffs’ property allowed vehicles access across the lots in order to reach a public road. The special permit at issue provided for public access to the future condominium building over the right of way easement for the purposes of parking and using trails to be established on an open space parcel. The proposed development and the public trails, the plaintiffs argued, would drastically increase the intensity of the use of the driveway and overburden the right of way to their detriment.

Massachusetts Appeals Court Holds Plaintiff’s Adjacent Lots Merged with Common Ownership in Zoning Case

Published on: July 26, 2016 | by Pulgini & Norton, LLP

In a recent opinion, the Appeals Court of Massachusetts reviewed a zoning appeal involving the merger of two adjacent lots. In Gallagher v. Zoning Bd. of Appeals of Falmouth (Mass. App. Ct. July 25, 2016), the plaintiff appealed a summary judgment order by the land court, which affirmed a decision of the zoning board of appeals merging the separately maintained lots for zoning purposes. Ultimately, the appeals court affirmed that determination as well.

In Gallagher, the two adjacent lots at issue were included in a subdivision plan and conveyed separately to the plaintiff and the plaintiff’s husband. The plaintiff’s house was located on one of the lots, while the other lot, owned by her husband, contained the carport. In 2000, the plaintiff applied to the city planning board to combine the lots and was granted an endorsement. However, the plan was never recorded. Until that time, the house lot and the carport lot remained in separate ownership by the plaintiff and her husband, respectively. The plaintiff’s husband conveyed the carport lot to the plaintiff before his death later that year. In 2013, the plaintiff requested a zoning determination from the building commissioner that the carport lot was a separate buildable lot, exempt from the increased area requirements of a 1993 zoning amendment. The commissioner found that the lots had merged, a decision that was affirmed by the zoning board of appeals and the land court. Specifically, the land court ruled that when the two lots came into the plaintiff’s common ownership, they lost grandfather protection and merged for zoning purposes.

Massachusetts Land Court Affirms Building Permit in Zoning Case

Published on: July 19, 2016 | by Pulgini & Norton, LLP

The Massachusetts Land Court issued an opinion regarding a zoning appeal in Reeve v. Godfrey (Mass. Land Ct. July 12, 2016). The building commissioner issued a building permit for the construction of a single-family home in the same location as a former dwelling. The plaintiffs and other neighboring homeowners appealed the permit to the zoning board, arguing that the lot did not have a sufficient area to qualify it as a buildable lot. The zoning board affirmed the permit, and the matter was appealed to the land court.

In Reeve, the property at issue is accessible by a private right of way that branches off a larger avenue and continues onto the property. The primary question for the land court was whether an area consisting of a private way should be included in the lot size. Significantly, the property was subject to zoning regulations that required at least 90,000 square feet for a lot to be buildable. As a result, if that portion of the right of way is excluded from the lot area calculation, the lot would be considered undersized. However, if the private way is included, the lot would have sufficient area to be buildable.

Massachusetts Court Allows Residents to Proceed with Zoning Appeal of Building Permit

Published on: June 27, 2016 | by Pulgini & Norton, LLP

In a recent zoning appeal, the Massachusetts Court of Appeals decided the question of whether neighboring residents could continue their attempt to block a permit allowing the construction of a building on an empty lot after missing a filing deadline. In McIntyre v. Zoning Bd. of Appeals of Braintree, 89 Mass. App. Ct. 1119 (2016), the plaintiffs contended that the property, which was located in the town’s residential district, was not a buildable lot under the town’s zoning by-laws, and they sought to appeal a building permit issued to the landowners.

In 1986, the previous owners of the property obtained a variance to divide it into two lots, one of which is the lot at issue. The previous owners recorded a plan endorsed pursuant to M.G.L.A. 41 § 81P in 1987, but the property was not transferred, and no building permit was applied for or granted. In 2013, the plaintiffs learned that the property was listed for sale, and they met with various town officials regarding their position that the property was not a buildable lot under appropriate zoning by-laws. Nevertheless, without any notice to the plaintiffs, a zoning permit was issued to the landowners, and construction commenced the next day.

Massachusetts Appeals Court Allows Plaintiff to Use Property as Noncommercial Landing Area

Published on: May 16, 2016 | by Pulgini & Norton, LLP

The Massachusetts Court of Appeals recently decided a zoning issue involving a private, noncommercial aircraft landing area on the residential property of the plaintiff. In Hanlon v. Town of Sheffield (Mass. App. Ct. May 13, 2016), the plaintiff owned nearly 40 acres of land, which included his residence as well as some hangars for small planes and a landing strip built by the plaintiff. In 2006, the plaintiff registered the property with the Federal Aviation Administration as a helipad and as a noncommercial private restricted landing area with the Massachusetts Department of Transportation aviation division.

However, the bylaws of the town where the plaintiff lived did not specifically allow him to use his property as a private restricted landing area for noncommercial use. As a result, the plaintiff was ordered in 2011 to stop using the property in that manner. He challenged the town’s bylaw on the grounds that the town had failed to submit it for approval to the Department of Transportation.

The zoning board and the Land Court ruled in favor of the town, holding that the bylaw was valid and prohibited this use of the property. The plaintiff appealed, asking the court to determine whether Massachusetts law allows a municipality to ban noncommercial private restricted landing areas without receiving prior approval from the Department of Transportation.

Massachusetts Appeals Court Holds Abandoned Use Prevents Issuance of Building Permit

Published on: May 9, 2016 | by Pulgini & Norton, LLP

In a recent case, the Appeals Court of Massachusetts reviewed a decision by the Land Court involving a permit to rebuild a nonconforming residential structure that was destroyed by a hurricane years before. In Chiaraluce v. Zoning Bd. of Appeals of Wareham, 48 N.E.3d 475 (Mass. App. 2016), the property owner applied for a building permit in accordance with local zoning by-laws, which was denied, but he was granted a special permit. The adjacent property owners appealed the grant of a special permit, and the Land Court found in their favor. The property owner subsequently appealed to the Appeals Court of Massachusetts.

In Chiaraluce, the facts of the case go back decades. The residential home on the subject property was severely damaged by a hurricane in 1991 and torn down. As a result of the widespread destruction caused by the hurricane, the town had granted a blanket special permit for the reconstruction of residences damaged by the hurricane. The original owners obtained such a permit but did not rebuild on the property. Instead, they sold the land to the plaintiff, a neighboring landowner, in 1993. The plaintiff testified that at the time it was purchased, his plan was to use the lot for overflow parking. In 2001, the plaintiff first sought a permit to rebuild, which was denied by the inspector. In 2010, the plaintiff obtained a building permit for another structure, which was ultimately granted by the zoning board but appealed to the Land Court. The Land Court found that the plaintiff had abandoned the residential structure and ruled that no building permit could be issued. The plaintiff brought the current appeal before the Appeals Court of Massachusetts.