Zoning Decision Making in Massachusetts

A recent decision from the Appeals Court discusses the important topic of Massachusetts zoning decision making, regarding what a zoning or permitting board is allowed (and not allowed) to consider as part of its decisions.  The case, Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury, is included below.

Background

This case concerned two businesses attempting to erect a digital billboard in Salisbury.  For reasons that are not completely clear in the decision, these applicants needed final approval for a billboard from the state’s Department of Transportation Office of Outdoor Advertising.  Prior to this step, the applicants firs needed approval from the Town of Salisbury’s Zoning Board of Appeals

Per the towns’  local ordinance, a decision for approving these signs required a special permit.

What is a Special Permit?

A special permit is a form of land use decision making, which gives a permitting board authority to approve or deny a particular use of property.  Compared to a variance, the requirements of a special permit are less stringent.  The requirements for a special permit often include a detailed list of criteria that the permitting authority must consider in its decision.

Zoning Decision Making

In this case, the zoning board of appeals decided to grant a special permit to only one of the two applicants.  The problem?  Both applicants qualified for the special permit.  Nonetheless, the board only gave approval to one of the signs.  While not clear from the decision, the reason for this appears to be that, because the state could only pick one of the two applicants in the end, the zoning board of appeals could select between the two billboards, despite both qualifying for the special permit.

Not so fast, ruled the Appeals Court.  The Court held that the board erred because it considered criteria outside the special permit requirements.  Since both qualified for a special permit, the board was wrong to deny one of these applicants the special permit.  Doing so made the board’s decision legally untenable.

Practical Implications

This case is an important reminder that the scope of zoning decision making is not unlimited.  While zoning authorities often have discretion in making these decisions, they do have to stick to the guidelines provided in their municipalities’s zoning ordinances and state law.  Consideration of any other factors runs the risk of the zoning decision being defeated in court.

Conclusion

If you need assistance with a zoning or land use matter, contact me for a consultation.

Clear Channel Outdoor v. Zoning Board of Appeals of Salisbury

Massachusetts Zoning: What You Need to Know

A recent article about Medford, concerning the challenges of getting past the city’s land use controls, is a good example of the importance of understanding Massachusetts zoning when seeking to develop property.  The article discusses many of the hurdles that can arise when attempting to seek zoning approval from a local municipality.

Overview of Massachusetts Zoning

Zoning are rules and regulations controlling how one uses their property.  The purpose of zoning is to keep order and consistency within municipalities.  Visit a city without zoning controls and you’ll see the reason why such regulations are in place.

Zoning ordinances generally consist of dimensional and use controls for real property.  As discussed in this article, these ordinances are often complex and highly detailed.

Exemptions from Massachusetts Zoning 

Massachusetts zoning often becomes an issue when a property owner is unable to comply with a zoning ordinance.  In such a case, a variance is required.  A variance requires a finding that:

[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.

Additionally, some uses under a town or city’s zoning ordinance require specific approval by a local zoning permitting authority, known as a special permit.  The requirements for a special permit are not as rigorous as a variance, but a special permit must still be approved by the appropriate town or city board (often the zoning board of appeals or planning board).

In addition to zoning, there are often other regulations concerning real estate development, including environmental, historic preservation, and affordable housing requirements.

Conclusion

Massachusetts zoning requirements can be confusing.  For assistance with this process, consider speaking with an experienced real estate litigation attorney, who can assist with this process. 

Attorney Sherwin Named as a 2018 Massachusetts Super Lawyers Rising Star

I’m proud to write that I’ve been named as a 2018 Massachusetts Rising Star by Super Lawyers.  Rising Star candidates are limited to no more than 2.5% of lawyers in Massachusetts and go through a nomination, peer review, and independent research process.

As described by Super Lawyers on their website:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

I’m very proud and grateful for this recognition.

Coincidentally, this recognition occurred right around the time that I celebrated my fifth year in solo practice.  What a ride it has been!  While it is a real honor to be included with Super Lawyers, I’m even prouder of the many successes I’ve had in in my practice areas of real estate litigation.

If I can be of assistance to you with your legal problems, contact me.

Lessons from a Massachusetts Adverse Possession Case

Adverse Possession

The Massachusetts Appeals Court issued an important decision this week concerning adverse possession and easements by prescription.  The decision, Smaland Beach Association v. Genova, is included below.

This decision concerns beach access . . . a common source of these cases.  The case also involves many other areas of property law, but my blog post here will stick to the parts of the decision relevant to adverse possession.

Overview of Adverse Possession/Easement by Prescription 

Adverse possession is a legal claim that allows a party to acquire other property if it uses it without permission of the legal owner.  In Massachusetts, such use must occur continuously for twenty years.   Importantly, such a claim requires exclusive use, with no one else having similarly used the property.

A claim of easement by prescription is similar to adverse possession, but without the requirement of exclusive use.  A easement by prescription allows a party permanent use (as opposed to ownership) of property.  These claims are common for disputes involving water access and parking.

Smaland Beach has some important lessons for litigating these kinds of cases.

Lesson #1: Facts Matter

Adverse possession cases are highly, highly factual cases.  It is not uncommon for these disputes to get into the weeds (no pun intended!) of the disputed property and concern even the smallest portions of the disputed land.

In this case, the party opposing this claim attempted to argue that the claimant’s case should have not been decided by the jury, arguing they did not present sufficient evidence to make such a claim.  The Appeals Court rejected this argument, by recognizing that such claims are questions of fact, and often need to be resolved at trial.

This is an important lesson for one of these cases: assume the dispute will go to trial, and plan accordingly by making a detailed and consistent narrative of the requirements for one of these claims.

Lesson #2: Unexplained Use of Property Creates a Presumption of Adverse Use

Smaland Beach Association reaffirms a long standing presumption for adverse possession: longstanding unexplained use of property creates a presumption that such use is adverse (non-permissive).

This presumption is highly important for a successful claim.  Adverse use is a requirement for one of these claims, and this presumption helps a claimant make this required showing.  After doing so, the party opposing such a claim has the burden to overcome this presumption, and show that such use was allowed.

Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case

Finally, Smaland Beach Association is a reminder that, in an adverse possession case, any persons whose property may fall under such a claim must be part of the action.

This isn’t that unique to an adverse possession case; in any civil action, a failure to join a necessary party can be grounds for dismissing a lawsuit.  I suspect, however, that given the implications of adverse possession to property owners, this rule is even more strictly applied.

Conclusion

If you find yourself involved in a property dispute concerning adverse possession, contact me for a consultation.

17P0458

Zoning Enforcement 101: Lessons from a Baaad Outcome Before a Zoning Board

A recent decision from the Town of Danver’s Board of Appeals demonstrates the importance of Massachusetts zoning restrictions, and their relevance to property owners.  This case, involving a homeowner’s keeping of goats on their property, shows how baaad things can happen for not following local zoning controls (pun intended!).

Overview

The homeowners in this case had been raising goats in their Danvers home for the last six years.  Danvers, like most towns and cities in Massachusetts, uses zoning districts to classify  what is allowed, and not allowed, in various sections of the municipality.

The problem in this case?  This residential zoning district prohibits “animal husbandry.”

Zoning Enforcement 

A neighbor started this action by making a complaint to the Town of Danvers, through a request to enforce this zoning requirement against the goat owners.  Massachusetts law requires that towns and cities have officials in charge of enforcing zoning restrictions (often designated as building inspectors) and the law allows for written enforcement requests to these officials, if someone believes they are not being followed.

Here, the Town of Danvers agreed with this complaining neighbor, and issued the homeowners an order that the goats needed to go.

Appeal of a Zoning Enforcement Decision 

Massachusetts law allows any “person aggrieved” by a zoning enforcement action to appeal, which is generally made to the town or city’s zoning board of appeals.  Such an appeal asks the board to determine whether the town or city properly applied the zoning ordinance.

Here, the Town of Danvers Zoning Board of Appeals unanimously agreed with the town’s building inspector that goats were not allowed in this residential district.

This homeowner still has options if she wishes to pursue this matter further.  She could file a court action to determine if this interpretation of the zoning ordinance is correct.  Or, as the article suggests, she could work to change the town’s zoning laws, to allow goats in residential districts.

Practical Implications 

This story illustrates the importance of zoning enforcement in Massachusetts, the process for requesting such enforcement, and appealing an unfavorable decision.  Many homeowners are unaware of the many, many ways that zoning restrictions regulate how one can use their property.  Failure to abide by these land use controls can lead to zoning enforcement consequences.

It is important to note that, in most cases, a homeowner is not permitted to seek a variance for a prohibited use in a zoning district.  A variance, which is a requested exemption from a zoning restriction, may be allowed for terms of a zoning ordnance, but not for “a use or activity not otherwise permitted in the district in which the land or structure is located . . .”  Property owners need to be aware that the variance process, which allows leeway in particular circumstances where a zoning restriction imposes a hardship, is not an option where a requested use is expressly prohibited. 

Conclusion 

If you need assistance with a zoning enforcement action, contact me for a consultation.

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.

 

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