Massachusetts Real Estate Lawyer Blog
Many people consult with a Massachusetts land use attorney before engaging in a particular activity on their residential property in order to understand relevant zoning restrictions. While zoning is generally determined by the local government, in some cases, federal or state law may have an effect, as illustrated in a January 8, 2018 case before the Supreme Judicial Court of Massachusetts.
The plaintiff in the case was a licensed helicopter pilot. He used his helicopter to travel to his various family homes and business appointments, but not for any commercial purpose. Following the plaintiff’s request for a private helicopter landing area, the Federal Aviation Administration recognized his property as a licensed private use heliport. The town building inspector issued an enforcement order, stating that the plaintiff was in violation of the local bylaws, since a heliport was not allowed in any zoning district of the town. The plaintiff filed an appeal, which was denied by the zoning board. The land court reversed the decision, and the Supreme Judicial Court of Massachusetts granted direct appellate review of the matter.
Pursuant to Massachusetts statutes, before a town acquires property to construct or improve an airport or restricted landing area, it must first apply to the Department of Transportation for approval of the site. However, a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior approval; the landowner must simply inform the Department and ensure that the area is safely built and maintained in order not to endanger the public. A later amendment to the statute provided cities and towns with the authority to enact rules and regulations, with Department approval, governing the use and operation of aircraft.
The issue on appeal was whether a town may exercise its zoning authority to determine whether land may be used as a noncommercial private restricted landing area, e.g., a heliport, or whether Massachusetts aeronautics statutes preempt such authority, requiring the town to seek approval from the Department of Transportation first. Essentially, the case required the court to determine whether the later amendment also applied to private landowners seeking to establish a noncommercial private restricted landing area.
After an analysis of the relevant federal and state legislative history, the court concluded that if the Massachusetts Legislature wished to preempt local zoning regarding noncommercial landing areas, it must provide a clear indication of such intent. The court found that with respect to the statute at issue, there was no clear legislative intent to preempt local zoning enactments for such areas. As a result, the town did not need prior approval from the Department of Transportation to enforce a zoning bylaw that required some form of permit for land to be used as a private heliport. The town could therefore enforce its order against the landowner.
At Pulgini & Norton, our real estate attorneys can provide legal guidance to Massachusetts homeowners, buyers, and sellers in residential property matters. We handle a diverse range of issues, from home closings and title insurance to zoning and building permit applications. To consult with one of our dedicated property attorneys, call Pulgini & Norton at (781) 843-2200 or complete our online contact form.
More Blog Posts:
Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017
Massachusetts Appeals Court Allows Plaintiff to Use Property as Noncommercial Landing Area, Massachusetts Real Estate Lawyer Blog, published May 16, 2016