Zoning

Massachusetts Land Court Finds Property Owners Have Standing to Challenge Neighbor’s Zoning Variance

Published on: August 21, 2015 | by Pulgini & Norton, LLP

The Massachusetts Land Court released a recent decision in the case of Holmes v. Guinen, addressing the issues of whether the plaintiffs have standing to challenge the zoning variance granted to their defendant-neighbor to construct a new house only five feet from their property line, and whether the variance was properly granted to the defendant.

Standing

To have standing to challenge a decision granting a variance, a person must be aggrieved by the decision. By statute, those whose property abuts the subject property or whose property is within 300 feet of the subject property are entitled to a rebuttable presumption that they are aggrieved and therefore have standing. Since the plaintiff’s property abuts the subject property, they have a rebuttable presumption of standing. A defendant can rebut the presumption by either showing that the reasons the plaintiff claims to be aggrieved are not those protected by the Zoning Act, or that the plaintiff’s allegations are unfounded or de minimis. If the defendant sufficiently rebuts the presumption, the burden is on the plaintiff to prove standing by establishing, with direct facts, that the injury stemming from the decision is special and different from the concerns of the rest of the community.

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit

Published on: August 14, 2015 | by Pulgini & Norton, LLP

The case of Krock v. Nelson, No. 395229 (July 13, 2015), came to the Massachusetts Land Court following a lengthy procedural history beginning in 2009. The court ultimately affirmed the decision of the Zoning Board of Appeals of the Town of Mashpee, which denied the plaintiffs’ application for a zoning variance and special permit.

The plaintiffs’ property is an undersized lot consisting of 5,000 square feet, with less than the minimum lot size, frontage, front yard setback, and side yard setbacks required by the local zoning bylaws. The single-family dwelling located on the property is 975 square feet, with a lot coverage of 19.5%. Although the property is nonconforming, it is grandfathered by law and can be used in its current condition.

The plaintiffs filed an application for a variance to raze the existing building and replace it with a new 2.5-story, 3,000-square foot single-family home, which would result in a lot coverage of 30%. Their proposal, however, would not change the property’s existing non-conformities to comply with the bylaw’s requirements. They also sought a special permit to modify an existing, non-conforming structure, as well as a written determination that the proposed development would not be substantially more detrimental to the neighborhood than the existing structure.

Massachusetts Zoning Laws and Construction Permits

Published on: May 14, 2015 | by Pulgini & Norton, LLP

With temperatures warming up from the historic winter snowfall, and grass starting to grow brightly green, many homeowners and prospective homeowners may be thinking about starting construction projects.

Whether you are merely seeking to improve your current property, or build an entirely new home altogether, you may need the help of a Massachusetts real estate lawyer in order to ensure that you can secure all of the proper required permits that may be necessary in order to pursue your plans.

Many homeowners may be surprised to learn that they may not be able to do whatever they wish with their property. This is because various land use and zoning regulations apply to properties. These laws set forth a regulatory scheme that provides restrictions not only on the type of use for which a property may be used, but also regarding the type and size of structures that may be built, maximum specifications, and various other specifications regarding any new buildings one may wish to pursue. Zoning codes may also address whether homeowners may keep certain kinds of pets, such as chickens for example.

Anti-Big Box Zoning Proposed In Easthampton, Massachusetts

Published on: December 30, 2014 | by Pulgini & Norton, LLP

Easthampton Proposes Building Size Limit To Exclude Big Box Retailers

In a move calculated to enhance the business climate for small to medium-size businesses, the City Council of Easthampton, Massachusetts is considering an ordinance to ban big-box retailers all over the city. Only the industrially zoned area would be excluded from the new ordinance, which limits buildings to a maximum of 50,000 square feet. The Ordinance Committee and Planning Board are considering the proposed ordinance, introduced by City Council President Joseph McCoy, acting on behalf of David Gardner and Daniel Hagan, Jr. The initial discussions among members of the Ordinance Committee took place at its November 25 and December 10 meetings, as posted in published agendas. No recommendation has yet been issued, according to chairman and District 4 councilor Salem Derby. The official debate before the Planning Commission has yet to be scheduled. McCoy said there would be plenty of opportunity for the public to weigh in on the proposed building size cap, particularly as the Planning Board conducts its evaluation. Public hearings will be held, he said.

Gardner formerly chaired the Zoning Board of Appeals and was also on the Planning Board. He is a member of Easthampton’s Economic Development and Industrial Commission (EDIC). Hagan, an attorney, was a leader in 2010 in petitioning to limit the size of the highway business district on Route 10, hoping to use the limitation to thwart the development of big-box stores, a plan rejected by the Planning Board.

Proposal Is Called Compatible With Existing Business Buildings’ Scale, Encouraging For Business Growth

Gardner’s position is that the proposal to limit the size of retail buildings is compatible with goals and future planning set forth in the City of Easthampton Master Plan. The proposed limitations on building size would encourage the growth of small businesses and discourage development that’s out of scale with other elements of a neighborhood or commercial district. The 50,000-square-foot limit would not exclude smaller-scale retailers and is not unreasonable. Gardner offered examples of existing commercial buildings that would be in compliance with the new limits, such as the Easthampton Savings Bank at 28,700 square feet, the Municipal Building at 26,000 square feet, and Valley Medical at 31,000 square feet.

Zoning Reform Needed to Make Massachusetts Housing Affordable

Published on: October 17, 2014 | by Pulgini & Norton, LLP

Over-regulation Drives Up Housing Costs

Real estate attorneys and other professionals in Massachusetts agree that housing in the Commonwealth is not affordable to most people. Massachusetts does not produce enough new housing units to make the market rate housing affordable to the average worker. Zoning isn’t the sole source of the problem, but land use regulation is the infrastructure upon which Massachusetts’ ability to compete economically against other states depends.

Land Use Partnership Act (“LUPA”)

Fortunately, extensive work has gone into trying to improve this situation, most notably the Zoning Reform Task Force meetings of 2007-2009. The result of that effort, the Land Use Partnership Act (LUPA), is a step forward, but far from perfect. It was filed in both the 2009-2010 and the 2011-2012 legislative sessions. When that effort stalled, for many, the zoning reform effort seemed to pass into abeyance.

LUPA has the objective of advancing five inter-related goals:

That communities prepare and adopt land use plans that take into account the Commonwealth’s broader land use objectives;
That communities enact and implement zoning and other land use regulations in a manner consistent with their overall plans and objectives;
That communities enact and implement zoning and other land use regulations that, to the extent practicable, make development as of right;
That communities adopt practices that, to the extent practicable, make land use permitting prompt and predictable; and
That property owners obtaining land use permits have a reasonable opportunity to use them.

You Need a Massachusetts Real Estate Attorney to Navigate Special Zoning on Martha’s Vineyard

Published on: October 10, 2014 | by Pulgini & Norton, LLP

A property owner seeking to build in a historic area will need the assistance of an experienced Massachusetts real estate attorney. Some of the procedures available to landowners whose plans are blocked by local restrictions are non-judicial in nature, but they may be even more complex than the court process. The Appeals Court in the case of Therese M. Hall & others vs. Martha’s Vineyard Commission & another, No. 13-P-626, rendered a decision that left a disappointed family with a glimmer of hope of being able to develop their land, if they were to use one of these quasi-judicial avenues.

In the 1960s, the Hall family acquired approximately 125 acres of undeveloped land near five ancient paths or ways within Edgartown and West Tisbury on Martha’s Vineyard. The paths and ways are known as Ben Tom’s Road, Middle Line Path, Pennywise Path, Tar Kiln Road, and Watcha Path. The Hall family collectively owns about 68 percent of the area adjoining the paths and ways, almost none of which has been developed.

Any plans to develop their land must first go through the Martha’s Vineyard Commission (MVC). By St. 1977, c. 831 (Act), the Legislature empowered the MVC as a regional commission with authority to regulate the lands and waters of Martha’s Vineyard. The Act authorizes districts of critical planning concern [DCPC] status, inter alia, for “an area which possesses unique natural, historical, ecological, scientific, or cultural resources of regional . . . significance.” St. 1977, c. 831, § 8.

Your Massachusetts Real Estate Attorney Can Help You Protect Your Property From Effects of Climate Change

Published on: October 3, 2014 | by Pulgini & Norton, LLP

Major storms Katrina and Sandy have made catastrophic hurricane damage in the United States a reality, and there are significant lessons that need to be applied to protect our shorelines in the future. There are specific vulnerabilities the city of Boston will face in the event of sea level rise, and there is a need to ascertain how critical some of these threats are to the average Bostonian, and in particular the Boston property owner.

Up and down the New England coastline, a precedent has been set for the utilization of sea walls, dunes, and other effective man-made and natural flood protective strategies. There has not been a significant flood preventive structure built since 1978, but waterfront development of Boston has continued. The desirability of both commerce and real estate in the Boston Harbor region has increased significantly, especially since the completion of the project nicknamed “The Big Dig.” Moving forward, as this ongoing development continues, constant vigilance is needed to be certain that both new and existing development is assessed as to adequacy in curtailing ongoing threats from flooding.

Massachusetts became the first state to officially incorporate climate change effects into its environmental review procedures by adopting legislation that directs agencies to consider reasonably foreseeable climate change effects, including additional greenhouse gas emissions and predicted sea level rise. Massachusetts G.L. ch. 30, § 61 (2012).

Ask Your Massachusetts Real Estate Attorney About the Dover Amendment Before You Purchase A Home

Published on: September 2, 2014 | by Pulgini & Norton, LLP

When you are looking at homes for sale, you consider factors like the square footage, the number of bedrooms and bathrooms, the asking price, and the location. A nearby church or school may seem like an enhancement, but in fact it calls for investigation and a consultation with a real estate attorney.

The character of a community can be affected by zoning regulations and also by the presence of institutions that are in part exempt from zoning regulations.

The Dover Amendment, Mass. G. L. c. 40A, section 3, exempts religious and educational institutions from local zoning ordinances. However, it does not completely exempt such facilities from local regulation of the following:

bulk of structures,
height of structures,
yard sizes,
lot area,
setbacks,
open space,
parking, and
building footprints.

When Local Zoning Laws Conflict with FEMA Regulations

Published on: August 12, 2014 | by Pulgini & Norton, LLP

Zoning laws can be confusing to homeowners in terms of what kinds of permits and procedures need to be followed to pursue a home remodeling project. Different codes and permits may apply, depending on the structure’s size and location.

It is especially complicated where the existing lot and structure are nonconforming to start with, and the homeowners have to bring some or all of the nonconforming elements of their property into conformity with current zoning laws.

Now add to the mix Federal Emergency Management Agency (FEMA) building requirements for properties located in a “velocity zone,” which may require pilings with an elevation above the 100-year flood elevation.