Articles Posted in Zoning

In a recent case, the Appeals Court of Massachusetts decided the issue of whether a plaintiff could raze an existing detached garage on his property and construct a dwelling in its place in accordance with local zoning by-laws. In Cain v. Bd. of Appeals of Wilmington (Mass. App. Ct. Mar. 25, 2016), the plaintiff purchased the property at issue in 2013 from a prior owner that had owned the property for several decades. The prior owner had applied for a permit to build the garage in 1984, which was subsequently approved and constructed. Shortly after purchasing the property, the plaintiff applied for a zoning determination that the property qualified as a non-conforming, pre-existing grandfathered buildable lot under § 5.3.2 of the local by-law, which would entitle him to a building permit. It was denied, and the plaintiff appealed.

In Cain, the property at issue conformed to the requirements for a buildable lot under 1934 zoning regulations. However, a 1955 amendment increased the square footage requirements, rendering the property deficient in lot size and frontage to build on presently. The plaintiff’s primary argument in support of his case was that his property was grandfathered into the 1934 regulations.

Grandfathering is a land use concept that preserves the right to build on property that does not conform to current zoning requirements. While Massachusetts statute G .L. c. 40A, § 6 provides for minimum grandfather protections under local zoning by-laws, a municipality is free to adopt a grandfathering provision that is more liberal than G .L. c. 40A, § 6, provided it does so with clear language. Local by-law § 5.3.2 allows a dwelling to be erected on a plot recorded prior to 1955 that conforms with the lot area and frontage requirements of the 1934 zoning by-law, with no reference to adjoining lots in common ownership.

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In Skawski v. Greenfield Inv’rs Prop. Dev. LLC, 45 N.E.3d 561, 562 (Mass. 2016), the Supreme Judicial Court of Massachusetts decided the issue of whether a law granted exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear certain major development permit appeals, thereby eliminating the subject matter jurisdiction of the Housing Court.

In Skawski, the defendant sought to build a retail development of approximately 135,000 square feet of commercial space. The planning board of Greenfield granted a special permit to the developer to construct the project. The plaintiffs owned property abutting the proposed development, and they filed an appeal with the Housing Court. The defendant filed a motion to dismiss for lack of subject matter jurisdiction, which was denied by the judge and ultimately reversed by the appeals court, which concluded that the enactment of G.L. c. 185, § 3A deprived the Housing Court of subject matter jurisdiction. The plaintiffs then appealed to the Supreme Judicial Court of Massachusetts.

The Massachusetts legislature enacted G.L. c. 185, § 3A in 2006, establishing the permit session of the Land Court department and providing that the permit session shall have original jurisdiction, concurrently with the superior court department, over civil actions adjudicating the grant or denial of permits for the use or development of real property when the underlying project or development either involves 25 or more dwelling units, or the construction or alteration of 25,000 square feet or more of gross floor area.

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In a recent case, the Massachusetts Land Court considered a challenge brought by several plaintiffs with respect to planned redevelopment on the property of the defendants, a county fairgrounds organization. In Tymoczko v. Three Cty. Fairgrounds Redevelopment Corp. (Mass. Land Ct. Mar. 9, 2016), the plaintiffs sought a determination that the defendants’ proposed future redevelopment of the fairgrounds property would require a special zoning permit. The parties filed cross-motions for summary judgment on the issue.

In Tymoczko, the defendants’ redevelopment plan had already completed phase one, and was challenged by the plaintiffs on the basis of future phases of redevelopment, laid out in a brochure relied upon by the plaintiffs. The defendants contended that the brochure did not outline any definitive plans, nor was the information it contained the subject of any permit applications. In addition, the brochure did not describe any specific uses proposed to be made of the site, no plans had been funded, and the defendants argued they may never be applied for or built. Nevertheless, the plaintiffs sought a determination that the future phases would require the issuance of a special permit.

Pursuant to G.L. c. 240, § 14A, a landowner may obtain a judgment from the Land Court as to the validity of a municipal zoning ordinance or bylaw, to the extent that it may affect a proposed use or development of such land. A landowner may also obtain such a judgment with respect to the proposed use of the land of another, if the proposed use has a direct effect on his or her land. However, G.L. c. 240, § 14A cannot be used as a preemptive attack on uses that are not the subject of an application or permit where there is an insufficient likelihood that the uses complained of will actually transpire, and where the details of the proposed use have not been specified.

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The Massachusetts Land Court recently issued a ruling in a real estate dispute involving zoning relief pursuant to G.L. c. 40A, § 6. In Bjorklund v. Trezise (Mass. Land Ct. Feb. 3, 2016), the plaintiff filed a complaint appealing the decision of the Zoning Board of Appeals, which had denied his request for zoning relief to allow for the construction of a nonconforming single family dwelling.

In Bjorklund, the original home was built on the property in 1890 but knocked from its foundation during the blizzard of 1978. The former owner did not repair the home, and it was torn down in 1980. The plaintiff purchased the property in 1991 and applied for a permit to build a single family dwelling. That permit was denied, and the decision was affirmed on appeal. The plaintiff has since filed four more permit applications to construct buildings on the property, which were denied by the Zoning Board of Appeals. The current appeal was based on an application filed in 2013, in which the plaintiff requested a permit to allow for the reconstruction of a pre-existing, nonconforming single family dwelling pursuant to G.L. c. 40A, § 6. The Zoning Board denied the application, citing law that provided that any nonconforming building or structure damaged by accidental causes may be repaired, reconstructed, or restored as long as it is completed within two years of the damage or destruction.

On appeal, the Land Court found that the plaintiff’s complaint was barred by the doctrine of res judicata, since it has been the subject of multiple, prior actions litigating the same claim and issues. Res judicata includes claim preclusion, which prohibits the same parties from re-litigating the same claim that was the subject of an earlier action between the parties, as well as issue preclusion, which prohibits the parties from re-litigating an issue that was already litigated in a prior action based on a different claim.

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The Appeals Court of Massachusetts recently reviewed a real estate dispute involving a business storage permit issued by the zoning board of appeals. In Fordham v. Butera (Mass. App. Ct. Jan. 27, 2016), the plaintiff sought to set aside business storage permits that allowed the defendants to store a limited number of vehicles as well as snow removal and landscaping equipment in a barn on their property. The parties’ dispute had been the subject of two prior appeals regarding the validity of the business storage permit by-law, which was subsequently upheld by the court. Following a trial on the merits, the Land Court affirmed the zoning board’s amendment to the business storage permit under § V.B.5. The plaintiff appealed that judgment in the present case.

In Fordham, the defendants owned a residential lot that shared a common boundary with the plaintiff’s property. In 1995, the defendants obtained a business storage permit authorizing the storage of one truck and trailer inside their barn. In 2003, they filed a request to amend the 1995 permit to allow for nine vehicles and additional equipment, which was granted by the zoning board. After several appeals, the board eventually allowed the expansion in a 2009 amendment to the permit, which was the subject of the present appeal.

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The Massachusetts Land Court decided a real estate dispute regarding the property merger of lots for building purposes in Kneer v. Luciano (Mass. Land Ct. Aug. 21, 2015). In Kneer, the plaintiff owned two lots of vacant land, which together failed to satisfy the current zoning requirement for the minimum lot size on which to build. Contending that the lots were grandfathered and thus exempt from the zoning law, the plaintiff applied for a building permit to construct a single family house on the lots. The Building Inspector rejected the application, finding that for purposes of zoning, the lots lost any grandfather protection that they may have held. The plaintiff appealed that decision, and the parties filed cross-motions for summary judgment with the Land Court.

In Massachusetts, adjacent lots will generally be treated as one single lot, or “merged,” for zoning purposes as soon as they come into common ownership in order to minimize nonconformities. Common ownership occurs when the lots are titled in the same name, as well as when they are within the common control of a landowner. Once merged, the land cannot be un-merged or artificially divided in order to restore older boundaries of record and obtain a grandfather nonconforming exemption. Instead, to preserve such an exemption, the lots must retain a separate identity. There is an exception to this rule in that a municipality may adopt a more liberal grandfather provision in its zoning ordinance or bylaw. However, it must do so with clear language.

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The Massachusetts Court of Appeals recently decided a zoning issue involving the development of a commercial horse farm on property previously designated as single-family use. In Lingerman v. 6 Mill Road, LLC (Ct. App. Mass 2015), the plaintiffs appealed a judgment from the Massachusetts Land Court upholding the decision of a local zoning board permitting the reconfiguration of the abutting property of the defendants.

In 2009, the defendants had purchased a 12-acre property, which included a single-family home, barn, and indoor riding facility. The zoning board granted the defendants approval to operate a commercial horse farm on the property, construct a 10-stall addition to the bar, and enlarge and relocate the existing indoor riding area. The plaintiffs appealed the issue, and the decision to issue the permit to the defendants was overturned on the grounds that the property lacked frontage and was in violation of a 1973 variance limiting the property to single-family use.

In 2011, the defendants’ neighbor split his two acres of property into two lots of one acre each. The defendants purchased one of the neighboring one-acre lots with the intent to cure the frontage problem. The plaintiffs requested an enforcement action from the building inspector to prohibit the combination of the purchased lot with the defendants’ existing property, which was denied. The plaintiffs appealed that decision to the zoning board. The zoning board affirmed the decision, finding that the purchased lot was exempt from the inclusionary housing requirements in the zoning by-law and that there was no prohibition against combining the properties. The plaintiffs then appealed to the Land Court, which affirmed the judgment of the zoning board, and the case reached the appeals court.

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In a recently published opinion, the Massachusetts Court of Appeals reversed a decision by a local zoning board that waived the requirements of a zoning bylaw regarding sewage limitations for a proposed housing project in Stow. In Reynolds v. Zoning Board of Appeals of Stow, a neighboring property owner of the housing project filed a complaint against the board after it granted a comprehensive permit to the Stow Elderly Housing Corporation for the construction of a low and moderate income elderly housing project. The proposed housing project and its sewage disposal system is situated in the town’s water resource protection district (WRPD). Despite findings that the proposed project would generate approximately six times the amount of sewage and waste water permitted by the WRPD regulations, the board granted waivers from the WRPD regulations. That decision was then appealed.

The Comprehensive Permit Act, sometimes referred to as “the anti-snob zoning act,” was enacted to provide relief from exclusionary zoning practices that prevented the construction of badly needed low and moderate income housing in Massachusetts. The Act provides a streamlined application process to a local board that is authorized to waive local regulations, including zoning ordinances and bylaws, if they are not “consistent with local needs.” Under the Act, regulations that are “consistent with local needs” are those that are reasonable in view of the regional need for low and moderate income housing, the protection of the health or safety of the occupants of the proposed housing and residents of the town, and promoting better site and building design in relation to the surroundings or to preserve open spaces. These requirements must be applied as equally as possible to subsidized and unsubsidized housing. A board can justify denying an application for a comprehensive permit by identifying a health or other local concern that supports the denial, is not adequately addressed by compliance with Massachusetts standards, and outweighs the regional housing need.

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In a recently issued opinion, the Massachusetts Land Court examined the meaning of “public way” as used in a provision of the Town of Tisbury’s Zoning By-laws. The court’s use of the definition stated in Fenn v. Town of Middleborough (7 Mass. App. Ct. 80 (1979)) may provide context for other zoning laws in the future.

In Askew v. Seidman (Mass. Land Ct. (Sept. 4, 2015)), the landowner appealed a decision of the Planning Board of the Town of Tisbury denying approval of a plan to divide her property into two buildable lots. Pursuant to the relevant By-Laws, when a lot fronting on a public way has sufficient additional frontage to provide for an access way to the rear for an additional lot, the Planning Board may approve a plan dividing the property into front and rear lots, subject to specific restrictions.

At issue in the case was whether a road shown on a subdivision plan (Roger’s Farm Road) constituted a “public way,” such that the plaintiff is entitled to an endorsement of her plan to divide the property fronting Roger’s Farm Road into two lots under the Deep Lot Provisions of the town’s By-Laws.

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