Obtaining a Variance of a Zoning Requirement

Zoning consists of land use controls imposed by Massachusetts towns and cities that regulate how an owner may use their property.  Most of us, I believe, would agree that zoning serves a useful purpose: we do not want businesses to be located in the middle of a residential neighborhood, or unusually large buildings in areas meant to be quiet neighborhoods.  Zoning requirements are often detailed and specific as to what can and cannot be done with property.

If a property owner wishes to obtain an exception from a particular zoning requirement, they have a right to request a variance.

Process for Obtaining a Variance 

Obtaining a variance generally requires a property owner to file an appeal with their local zoning board of appeals (“ZBA”).  The owner generally has to publish notice that it is pursuing such an appeal, and those who live near the property (“abutters”) are generally provided notice as well.  The ZBA will hold a public hearing on the matter and issue a written decision on whether it is denying or granting the variance, or granting it with conditions.

What is Required for Obtaining a Variance?

Obtaining a variance under Massachusetts law requires a property owner to show the following:

[O]wing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Importantly, a claimant must prove each of these elements.  Failure to do so, even under the most compelling circumstances, will result in a variance denial.

Practical Considerations for Obtaining a Variance

There are many, many important points about variances, which I plan to write more about in the future.  Here are a few practical considerations for requesting a variance.

No automatic right to a zoning variance.  Massachusetts law is clear that a property owner is not automatically entitled to a variance, and must meet the requirements listed above.  In particular, a property owner must show something unique about their property that justifies this relief.

A ZBA is not permitted to determine the validity of a zoning ordinance.  A property owner may believe that a zoning restriction is unfair and should not be a land use requirement.  A ZBA, however, is not permitted to make such a finding.  Only a court action challenging a zoning ordinance can determine this.

A land owner must generally wait two years before trying again for a variance, if unsuccessful.  If a property owner is denied a variance, he or she must generally wait two years before applying again.

Right to Appeal.  A property owner who is denied a variance has a right to appeal this decision to Superior or Land Court.  A “person aggrieved” by such a decision may do so as well.

Conclusion 

Obtaining a variance requires a strong understanding of Massachusetts zoning law and an ability to make a compelling case for this relief to a ZBA or court.  If you need assistance with such an endeavor, contact me for a consultation.

 

Sherwin Law Firm Succeeds in FHA Foreclosure Defense Case

Last week, I had a successful outcome in a FHA foreclosure defense case.  My client was facing a post-foreclosure eviction and I raised a successful defense regarding the lender’s non-compliance with the foreclosure requirements for these types of loans.

FHA Foreclosure

A Federal Housing Administration (“FHA”) loan is a loan guaranteed by the federal government and designed to help home buyers who would not meet the traditional lending requirements for purchasing a home.  Because the federal government insures these loans, lenders are more willing to offer loans to potential buyers who might otherwise be considered a high risk for lending.

FHA foreclosures require lenders to comply with many more requirements than those associated with a standard mortgage agreement.  Lenders of FHA loans must review borrowers for loan modifications and other loss mitigation opportunities and, in most circumstances, have a “face-to-face” meeting with the borrower prior to foreclosure.

Strict Compliance Is Required for FHA Foreclosures 

Massachusetts is a non-judicial foreclosure state, which allows lenders to foreclose without bringing a court case against the borrower.  This is in contrast to states like New York and Vermont, where a lender needs to file a lawsuit against a borrower to foreclose.  Here in Massachusetts, a lender must strictly comply with the applicable foreclosure requirements.  Failure to do so will make the foreclosure void.

The Appeals Court has extended this strict compliance requirement to FHA foreclosures.  A lender’s failure to comply with the “face-to-face” requirement will be fatal to a foreclosure’s validity.

While I am aware of no case on this, I believe that this type of foreclosure defense would equally extend to the other FHA foreclosure requirements, including reviewing a borrower for a loan modification.

For this reason, borrowers who are facing FHA foreclosures often have viable defenses in these cases.

Outcome of Case

In this case, the lender alleged to have performed the required “face-to-face” meeting, but only after it accelerated the mortgage loan (where the lender demands the entire loan balance prior to foreclosing).  Because this meeting came after, and not before, the loan acceleration, the lender failed to comply with this foreclosure requirement, making the foreclosure void.

While it is sometimes obvious that the lender made an error with the foreclosure requirements, such mistakes are not always clear.  Here, this foreclosure defense required a strong understanding of the non-judicial foreclosure process and these FHA requirements.

Conclusion

The benefits of having an experience foreclosure defense attorney is essential in dealing with one of these cases.  If you need assistance in defending against an FHA foreclosure, contact me for a consultation.

Challenging a Zoning Requirement in Massachusetts

Massachusetts zoning law imposes an array of restrictions on the right to use one’s property.  The law permits a party to seek an exception (known as a variance) if a party believes they have unique circumstances excusing them from fulfilling the zoning requirement.

A variance, however, is not the only grounds for seeking relief from zoning restrictions.  Massachusetts law expressly provides a procedure for challenging a zoning requirement if the property owner believes the requirement is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare.

Challenging a Zoning Requirement in Massachusetts 

Challenging a zoning requirement requires a property owner to file a petition in Land Court against the city or town to determine the validity of the zoning requirement.  This law, G.L. c. 240, § 14A, is similar to a request for a declaratory judgment, where a court is authorized to make binding orders on actual controversies.  Often, a party challenging a zoning requirement will bring an action under G.L. c. 240, § 14A  and seek a declaratory judgment.

Limited Requirements for Challenging a Zoning Requirement 

A critical part of a G.L. c. 240, § 14A petition is that a landowner has limited prerequisites for challenging a zoning requirement.  The homeowner does not need to have applied for a building permit or have obtained any architect plans for the proposed work.  This is important because it avoids requiring a property owner to assume these large costs prior to determining whether it has to comply with the zoning requirement.  

Without this exclusion, a homeowner would seemingly have to substantially commit to the project before determining the zoning requirement’s validity, which would seemingly defeat the entire purpose of this law: allowing for such a determination prior to the start of the project.

Practical Implications for Challenging a Zoning Requirement

A property owner must prove that the zoning requirement is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare. This is no easy task: courts often given deference to towns and cities in their land use restrictions, and a landowner must make a solid case against the zoning requirement’s validity.

The Court, importantly, will not simply decide whether the requirement is good public policy.  Rather, the Court will look at whether the requirement has no basis for being a zoning restriction.  With this in mind, a successful G.L. c. 240, § 14A petition needs to make this case, and not merely ask the Court to second guess the city or town’s law making process.

Conclusion

If you need assistance with challenging a zoning requirement in Massachusetts, contact me for a consultation.

Who Can Challenge a Zoning Decision in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision this week clarifying who can challenge a zoning decision, and the role of a trial judge in making this inquiry.  This decision, Talmo v. Zoning Board of Appeals of Framingham, is included below.

Background 

This case started with a Framingham resident applying for a building permit to construct a guest room addition to their home.  The City granted the permit, and one of abutters of the property (who lived nearby) sought a zoning enforcement action, essentially arguing that this guest room addition violated the City’s zoning ordinances, and that the City should order this project to stop.  The City of Framingham’s Zoning Board of Appeal initially agreed, and stopped the project.

The party wishing to construct this addition changed their plans for this project, and applied again for a building permit, which the City allowed.  The abutter sought a similar zoning enforcement action, which the zoning appeals board denied.  This abutter then appealed this zoning decision to Land Court.

Who Can Challenge a Zoning Decision? 

This case concerns an important question for Massachusetts zoning law: who can challenge a zoning decision?

During the trial for this case, the Land Court observed that this abutter was not in direct proximity to the guest room addition, and had not otherwise identified any real harm that he would suffer from this addition.  The Land Court, on its own, subsequently dismissed this case, holding that this abutter lacked standing to pursue this appeal.  Simply put, the abutter had “no dog in the fight” because he would not be affected by the guest room addition.

The Appeals Court agreed with the Land Court’s decision.  Under Massachusetts law, only a “person aggrieved” by a zoning matter has a right to challenge a zoning decision.  The Appeals Court agreed that this abutter did not show how he would be harmed by this zoning decision, and therefore had no grounds for pursuing this case.

An important part of this case was how the Land Court reached this decision.  Here, the Land Court made this finding entirely on its own: the opposing party never pursued the issue of standing as a defense to this case.  The Appeals Court agreed that in a zoning matter, a trial court could decide on its own that a party lacked standing to pursue such a case.  In other words, even if neither party raises this issue, it can still become a determining factor if the trial court is not convinced that a party has adequate standing.

Practical Implications

This decision reaffirms that, to challenge a zoning decision, one must have “skin in the game.”  Failure to have standing in such a matter can lead to the immediate dismissal of such a case.

Talmo recognizes that a trial court is well within its right to inquire about a party’s aggrieved status on its own . . . even if the opposing side never raises it.  The Appeals Court emphasized that the trial court should give fair notice to a party if it is concerned about one’s standing.  Nonetheless, standing is a mandatory threshold that one must carefully consider when pursuing a zoning appeal.

Conclusion

Talmo v. Zoning Board of Appeals of Framingham is an example of the importance of having an experienced real estate litigation attorney on your side for a zoning appeal.  If you find yourself in need of such help, contact me for a consultation.

Talmo v. BOA Framingham

Massachusetts Tree Law: When Can a Property Owner Be Liable For a Tree on Their Land?

Massachusetts Tree Law

The Massachusetts Supreme Judicial Court issued an important decision last week on Massachusetts tree law.  The decision, Shiel v. Rowell (included below), discusses a property owner’s liability for a tree on their property.

Background

The facts of this case are fairly straightforward.  The parties in this case were two neighbors, with one bringing a lawsuit against the other for damage caused by a tree from the other’s property.  This tree caused algae buildup on the other’s roof, from the branches that were hanging over the home.  The neighbor who filed this lawsuit sought money for these damages, and an injunction (court order) that the other neighbor cut back the tree that was causing this damage.

Overview of Massachusetts Tree Law

This case presented a simple, but important, question for the court: when can a property owner be liable for a tree on their land?

The Court reaffirmed a long standing rule in Massachusetts that a landowner may not hold a neighbor liable for damage caused by a neighbor’s healthy tree.  Here, the algae damage to the home resulted from branches hanging over the home . . . something that commonly occurs with trees.  As this was a “healthy” tree, it was not up to the owner of the tree to deal with this problem.  Rather, the neighbor who owned the home underneath these tree branches was responsible for addressing this problem.

The Court affirmed that a property owner has a right to cut off branches, roots, and other parts of a tree that interferes with one’s property.  If a property owner fails to do so, they cannot blame the tree owner for the natural damage caused by the tree.

The issue of whether a tree is “healthy” was a critical factor for the outcome of this decision.  If a tree is unhealthy, this rule of non-liability would seemingly not apply.  For example, if a dead tree breaks apart and falls onto a neighbor’s home, the owner of the tree will not automatically avoid liability for such damage.   Likely, in such a case, the owner will have liability for any resulting damage.

Practical Implications

As the Court stated in this decision, a practical lesson of this decision is the importance of maintaining one’s property.  A homeowner cannot expect to obtain relief against a neighbor if they fail to address the natural problems that arise from encroaching trees.

A word of caution about cutting down portions of a tree on your property.  While it is permissible to cut back portions of an intruding tree, Massachusetts law imposes steep penalties for willfully cutting down or destroying trees on another’s land.  With this in mind, one should use extra caution in dealing with an encroaching tree.

Conclusion 

If you find yourself in need of assistance with a matter involving Massachusetts tree law, contact me for a consultation.

Shiel v. Rowell (Tree Law)

Massachusetts’s Security Deposit Law

A recent article from the Boston Globe, “Apartment management won’t return security deposit? That’s just one problem at this Revere complex,” highlights the importance of understanding Massachusetts’ security deposit law: an important consumer protection law for tenants.

Overview of Massachusetts’s Security Deposit Law

This article discusses a common scenario for tenants who have provided a landlord with a security deposit: a landlord’s outright refusal to return the deposit at the end of the tenancy.  Prior to the security deposit law, tenants had few options for pursuing such claims; often, the expense in attorney fees for suing  for one of these deposits made such claims far more expensive than the actual deposit itself.

For this reason, Massachusetts passed the security deposit law, which, I imagine, is one of the most pro-tenant laws in the entire country.  This law imposes numerous regulations on the acceptance, holding, and return of a security deposit, and provides stiff penalties for a landlord’s failure to comply with this law, namely, treble damages of the deposit. This is 0ne reason, among many, why a landlord should consider not accepting a security deposit in the first place.

Violation of the Security Deposit Law 

It is a common misconception that every violation of the security deposit law allows a tenant to recover treble damages, attorney fees, and costs against a landlord.  Rather, the Supreme Judicial Court has clarified that some violations of the law simply require the immediate return of the deposit, while others mandate treble damages.  Generally, a landlord’s failure to return a security deposit within thirty days after the end of the tenancy (or otherwise account for its use towards any damage in the apartment) will impose the treble damage penalty.

Conclusion

If you find yourself having difficulty with a security deposit, contact me for a consultation.  I have helped many Massachusetts tenants obtain the return of their deposits and take full advantage of the protections of this law.

Guest Blog Post: Appeals Court Divides on Adequacy of Notice to Town Clerk for Zoning Appeal

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on the Massachusetts Appeals Court’s recent Hickey v. ZBA of Dennis decision, an appeal involving proper notice for a zoning appeal.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

On June 15, in Hickey v. ZBA of Dennis,  93 Mass. App. Ct. 360, the Appeals Court, by a 2-1 vote, held that two zoning appellants had provided adequate notice to the Dennis Town Clerk and reversed allowance of summary judgment in favor of the Board. Specifically, although the appellants did not address the appeal to the Town Clerk, an assistant clerk discussed the notice with the town planner within the appeal period.

The Hickeys own land along Cape Cod Bay and proposed to build a staircase.  Ultimately, the Board denied them zoning relief and filed their decision with the Town Clerk on April 14, 2016. On April 20, 2016,  by counsel, the Hickeys timely appealed to the Land Court under G.L. c. 40A, §17. Counsel sent copies of the appeal by certified mail to the individual members of the Board at their home and one to the chairman at Dennis Town Hall. The town planner received the appeal on April 25 and discussed it with an assistant town clerk some time before May 4. However, the Hickeys did not notify the Town Clerk until May 5 by e-mail-after learning that she had not received the appeal.

The Board moved to dismiss, asserting that the Hickeys did timely not serve the Town Clerk pursuant to G.L. c. 40A, §17.  The Land Court allowed limited discovery on the issue of timeliness. The Land Court later converted the Board’s motion into one for summary judgment and concluded that there was not timely notice.

The Appeals Court reversed and reinstated the zoning appeal. Writing for the Court, Chief Justice Green recalled the failure to timely serve a zoning appeal on a Town Clerk was a jurisdictional defect that courts strictly policed.  Indeed, notice was important not only to the town but anyone who may be aggrieved.

However, so long as the Clerk had actual knowledge of the appeal, notice sufficed.  The Court recalled that filing a copy of the complaint but no notice of appeal (and vice-versa) suffice, as did serving the clerk at home after hours on the last day of the appeal period. Finally, serving the appeal at town hall with papers addressed to the town clerk that the clerk did not receive (and learned of from a town planner) sufficed.  Citing Konover v. Planning Board of Auburn, 32 Mass. App. Ct. 319 (1992).  The Court held that Konover echoed the present case where the Dennis town planner received the appeal and discussed it with an assistant town clerk before the end of the 20 day period. This sufficed to show actual knowledge.

Justice Singh dissented, asserting that the plaintiffs bore the burden of proving timeliness and noted deposed the town clerk to prove notice. Justice Singh argued that the cases the majority relied on dealt with instances where the appellants actually  attempted to serve the clerk-but for whatever reason, service was imperfect. By permitting actual knowledge to suffice, the majority would subject town officials to litigation-and permit the exception to swallow the rule. Since the appellants did not attempt to serve the town clerk in a timely fashion, Justice Singh would have dismissed their appeal.

This case poses an interesting doctrinal duel. On the one hand, notice is a fundamental pre-requisite to a zoning appeal. However, notice does not occur in a vacuum and the important end is that a town (and anyone aggrieved) be aware that a zoning appeal is occurring. An honest mistake about addressing papers or reaching the wrong room of town hall rather than the town clerk should not nullify an entire zoning appeal-nor should an evasive clerk.

However, Justice Singh raises a valid point that the Clerk’s knowledge should become an issue if there was unsuccessful or imperfect attempt to serve them. Unlike in Konover, where the papers were addressed to the Clerk but left at the wrong office, the record reflects that the appellants definitely did not address the appeal to the Clerk or otherwise notify the Clerk until after Day 20.

And indeed, the better practice, as the Appeals Court suggested in Konover,  is to address and confirm service by certified mail and return receipt personally before the expiration of the date. Indeed, after hours efforts at service can backfire.  Given this doctrinal duel and its public consequences,  this case may well be a candidate for further appellate review by the Supreme Judicial Court.  Indeed, a group involved with other litigation with the Hickeys has moved to intervene in the Appeals Court to seek further appellate review.

Joe has an appellate practice in Massachusetts and Connecticut and has previously taken on the Boston Zoning Board in the Appeals Court.

Firm News: Sherwin Law Firm Moves to Charlestown

Starting July 1st, my firm will be moving to Charlestown, Massachusetts (only several blocks away from my current office).  My new office has plenty of parking and facilities that will help me continue to best serve my clients, and hopefully open up new opportunities for me in years to come.

It was a blast to have worked in Somerville for the past five years.  Luckily, I won’t be far away, and look forward to staying active in this wonderful city.

Here’s hoping your summer is off to a great start!

 

Service of an Eviction Case

reversing-a-foreclosure

Service of an eviction case is a requirement for starting any eviction against a tenant.  The law requires that the tenants have proper notice that such a case has been brought against them.  A landlord’s failure to comply with these service requirements can be fatal to one’s case.

Service of an Eviction Case

An eviction generally requires serving two types of documents to a tenant: a notice to quit, informing the tenant that their tenancy is being terminated, and a summons,  informing the tenant that an eviction case is occurring in court against them.

Service of an eviction is needed to put a tenant on fair notice that the landlord is attempting to obtain possession of the rental unit.  Simply calling or emailing the tenant is not sufficient; the law requires (like any other lawsuit) that the tenant have formal notice of the eviction.

Contrary to popular belief, a landlord does not need to serve a notice to quit by constable or sheriff.  However, the landlord bears the burden of proving that the tenant received this notice.  If the landlord is unable to do so, the court will dismiss the eviction.  For this reason, most landlords (smartly) serve notices to quit through a constable or sheriff.  Under the law, such service creates a presumption that the tenant received the notice.  Absent a compelling argument to the contrary, proof of service by a constable or sheriff establishes that the tenant received the notice to quit.

A summons, which is a formal court notice stating that an eviction case will begin, must be served by a sheriff.  A constable, who is a private officer, is also permitted to serve most eviction cases.  This formal service is a mandatory requirement, unless the tenant elects to waiver service.  Failure to properly serve an eviction case will likely result in its immediate dismissal by the court.

Conclusion

Service of an eviction is a critical part of a Massachusetts landlord-tenant case.  Failure to comply with these requirements can add unnecessary time and expense onto one of these cases, and make the process far more difficult than it needs to be.  For this reason, consider hiring an experienced landlord-tenant attorney to assist with one of these matters.

 

Firm News: Client Review from a Successful Foreclosure Defense Case

This week, I received a client review from a homeowner I represented in a successful foreclosure defense case.  The client wished to stay anonymous, but gave me permission to use this review here:

Adam Sherwin is exceptional! Patient, kind, thorough and competent. We had contacted our lender on several occasions to inform them of unfortunate and serious disabling health conditions that had caused my husband and me to fall behind on mortgage payments. We were assured that our modification was in process. We made consistent monthly payments as agreed. However, for some reason, we were informed that the agreed upon modification was not valid. We had carefully kept all notices from the mortgage lender. We worked closely with Adam for more than a year on every step of re-negotiation and reinstatement of our original agreement. Adam consistently informed us of progress, he listened carefully to our thoughts, concerns, and perspective. He was timely, persistent, clear, careful and detailed in every aspect required. We are deeply grateful. The modification was approved. We are in our home and we are thankful.

As discussed in this review, my client had difficulty obtaining a loan modification with her lender, which she qualified for and did everything asked of her to receive this assistance.  Unfortunately, as with many loan modification applications, the lender made a mess of this process by denying her application for inaccurate reasons.

Through the filing of a lawsuit and negotiation with the lender, this turned out to be a successful foreclosure case: the client has kept her home through an affordable loan modification!

These are the kinds of cases I am especially proud of, where I’ve been able to help clients through difficult legal matters, and get them the help they need.

If you find yourself in need of help with a foreclosure defense case or other legal matter that I handle, contact me for a consultation.