Obtaining a Variance of a Zoning Requirement

Zoning is 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

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)

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!

 

Appealing a Lis Pendens in Massachusetts

The Massachusetts Appeals Court issued a decision this week on appealing a lis pendens.  This decision, DeLucia v. Kfoury (included below), discusses the process for doing so and the consequences of not filing a timely notice of appeal.

What is a Lis Pendens?

A lis pendens is a notice of a pending lawsuit affecting “title to real property or the use and occupation thereof or the buildings thereon.” A lis pendens may be obtained by a party involved in such a lawsuit, by showing that the lawsuit affects real property and that the party has verified the lawsuit.

Compared to a preliminary injunction, where a party needs to show a likelihood of success on the merits of a claim, a lis pendens is usually easier to obtain.  Once approved by the court, a party can record the lis pendens in the land records, which puts the public on notice about the pending lawsuit.  The practical implication of a lis pendens is that it keeps a sale of property from occurring: few buyers will want to purchase property knowing that a lawsuit affecting its title remains ongoing.

Appealing a Lis Pendens 

Under Massachusetts’s lis pendens law, a party has a right to appeal a lis pendens to a single justice of the Appeals Court.  The purpose of this is to allow a party to have an immediate right of appeal.  As a lis pendens can have serious implications for the sale of property, this right of appeal is intended to provide a “check” on this type of order.

An appeal to a single justice of the Appeals Court, commonly known as an “interlocutory appeal” (done while the trial court case remains ongoing), comes with an important requirement: such an appeal must be filed within thirty days of the trial court decision.  No exceptions exist for this deadline.

In Delucia, the claimant attempted to appeal the lis pendens decision after this deadline.  The Appeals Court, in keeping with established law on this subject, held that the appeal was “dead on arrival” due to being untimely filed.  This is keeping with other, similar decisions on appeals with strict deadlines: if you do not timely appeal, the Appeals Court will dismiss the appeal.

Practical Considerations On Appealing a Lis Pendens 

As the Appeals Court noted in Delucia, the dismissal of the lis pendens appeal was not too harsh of an outcome for the party seeking this appeal.  Rather than attempting to appeal the lis pendens, a party can simply defend itself in the trial court case, and seek to have the case dismissed if it considers the matter to be meritless.  Here, the dismissal of the appeal simply prevented the party from having an immediate appeal of the lis pendens; it does not mean that the lis pendens stays recorded in the land records indefinitely.

For this reason, one should carefully consider the decision to appeal a lis pendens.  The time and money in doing so might be better spent on the underlining trial court case which, if dismissed, would consequently end the lis pendens.  Nonetheless, Delucia is an important reminder of the importance of timely filing an appeal.

If you find yourself dealing with a lis pendens, contact me for a consultation.  An experienced real estate litigation attorney can help you determine the best way to address this legal matter.

DeLucia v. Kfoury

Understanding a Real Estate Purchase Agreement

A real estate purchase agreement is an essential part of buying or selling property.  Understanding the importance of these agreements is essential for avoiding potential problems later on in the sale process.

Selling Property Generally Requires A Written Agreement 

Massachusetts, like most states, has a statue of frauds, a law requiring that certain types of agreements be in writing to be enforceable, including the sale of property.  With few, limited exceptions, an oral agreement will not suffice when real estate is involved.

Importantly, the type of writing allowed for such agreements is broader than a traditional written contract.  A recent Land Court decision found that a binding agreement for the sale of property was created through text messages, and similar decisions have held that emails are also sufficient for satisfying the statute of frauds.

Common Types of Real Estate Purchase Agreements

For the sale of residential property, there are two common types of real estate purchase agreements: an offer to purchase real estate and a purchase and sale agreement.

An offer to purchase real estate is just that: a written offer for the sale of property.  These agreements are generally one or two pages and contain the “bare bones” terms of the sale.

When the parties are ready to move forward with the sale, a purchase and sale agreement is generally negotiated and signed.  This agreement contains more information on the sale of the property, which generally comes after the parties have had more time to seek financing and discuss the specific details of the sale.

The most important thing to remember about real estate purchase agreements is that such agreements are generally binding contracts.  If signed, a party is generally committed to selling or buying the property.  There can be defenses to such agreements, but a seller or buyer should exercise extreme care in signing one of these agreements.

Drafting Real Estate Purchase Agreements

If you are involved in buying or selling real estate, hire a lawyer to assist you in drafting a real estate purchase agreement.  An experienced attorney will know what to include in these agreements and how to include contingency clauses that excuse a party from performance if they are not able to buy or sell the property.

Enforcing or Defending a Real Estate Purchase Agreement 

If you need to enforce or defend a real estate purchase agreement, you need an experienced real estate litigation attorney on your side.  An attorney will help you in determining the right cause of action for your case and know the ways that the legal system can protect your interest in the property while the legal case is ongoing.

If you need help with one of these cases, contact me for a consultation.

Legal Tips for Buying Your First Home

Buying your first home can  be both an exciting and stressful experience.  While home ownership is, to many, the height of financial success, the process of purchasing a home has many traps for the unwary.

As a lawyer involved in real estate litigation, my cases generally come to me when things go wrong.  Here, I want to share some legal tips for buying your first home that can help avoid these pitfalls and make the experience as easy as possible.

Review Your Finances With a Financial Expert Prior to Purchasing a Home

A large portion of my practice consists of foreclosure defense.  While I have helped many, many homeowners save their homes from foreclosure, I always maintain that the best way to beat foreclosure is to avoid it in the first place.  With this in mind, a potential home buyer should always speak with a financial expert prior to making an offer on a home.  An expert can help you identify a home that meets your budget and offer advice for covering the many expenses that come with home ownership.  Buying your first home is an enormous financial investment, one that a financial expert can be a great help with.

Get Everything in Writing

Enforcing any oral promise is tough to do, for the simple reason that it is tough to prove one’s word against someone else’s.  In real estate, oral promises are even more problematic due to the statute of frauds, a legal requirement that most contracts for real estate be in writing.  Without such a writing, it can be difficult (and many times, impossible) to enforce an oral promise.  Make sure that all matters concerning the purchase of your  first home are in writing.

Give Careful Consideration to the Demands of Becoming a Landlord

When looking to purchase a home, many potential buyers are tempted to purchase homes that include a rental unit, to offset the expenses of home ownership.  Rental property can be an excellent investment, but you need to give careful consideration to the demands of becoming a landlord prior to purchasing such property.

Massachusetts has many, many requirements for landlords, and the penalties for not following these laws can be disastrous.  Moreover, as a landlord, you’ll be responsible for maintaining the property and addressing the problems that will come up over time.  Be prepared for these responsibilities before making this commitment.

Be Wary of Buying a Home With a Non-Married Partner

For a married couple, the process of addressing “who gets the home” during a divorce is difficult enough on its own.  For home owners who are not married, the process can be even more complicated.  If the non-married home owners split up, and are unable to agree on what to do with the home, a partition case may become necessary: a legal proceeding where the court determines who gets what, which can be long and expensive.

With this in mind, be careful about making the commitment of purchasing a home with someone who is not your “permanent” significant other.  If the relationship goes south, the process of dealing with the home can be a real hassle to resolve.

Hire a Lawyer for the Real Estate Closing

When closing on a home, hire a lawyer.  Buying your first home can be a complicated process, and having an experienced attorney on your side can make the process much easier.  It may be tempting to try and do this on your own, but resist this temptation!  A real estate attorney will review the necessary paperwork for your purchase and ensure that nothing is missing or incorrect.  The small fee for this legal service will go a long way in avoiding problems down the road.

Conclusion

Here’s hoping the purchase of your first home is a stress free and rewarding experience.  In the event that a legal problem does arise, contact me for a consultation.  The benefits of having an experienced attorney on your side can make all the difference in getting you the help you need.