Massachusetts Real Estate Lawyer Blog
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.
In deciding the parties’ respective motions for summary judgment, the Land Court explained that it could not reach any of the issues brought up by the plaintiffs until it could be determined, with sufficient specificity, the nature of the buildings proposed to be constructed by the defendants and their intended uses. The Land Court stated that such information is necessary in order that the determination sought by the plaintiffs is not an advisory opinion regarding a matter that is, if not entirely speculative, then at least not so uncertain as to be viewed as theoretical. As such, without a showing by the plaintiffs of the specific uses and structures and a direct effect on their properties, the court denied their challenge. However, in the future, should the defendants submit applications for development of their property, the plaintiffs would have the opportunity to bring another challenge.
The Massachusetts real estate attorneys at Pulgini & Norton are experienced in advising individuals in a diverse range of property issues. If you are seeking qualified legal representation, our skilled lawyers can provide guidance regarding land use and zoning issues, easements, mortgages, and other land transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015
Massachusetts Appeals Court Affirms Issuance of Business Storage Permit, Massachusetts Real Estate Lawyer Blog, published February 1, 2016