Zoning in Massachusetts: Proposed Legislation

Governor Baker is backing a bill to reform zoning in Massachusetts, which will give local municipalities more flexibility in making zoning changes. This bill is a good example of some important lessons for understanding Massachusetts’s land use laws.

Zoning 101

Zoning in Massachusetts is generally done at the local level, through town and city ordinances. Zoning regulates how an owner may use their property, through usage and dimensional controls.

The proposed bill will allow towns and cities to switch to a majority vote to change local zoning ordinances. Presently, most zoning changes need to be done by a two-thirds vote, which makes enacting such changes a high hurdle to clear. Supporters of the bill argue that it will help create additional housing and make Massachusetts more affordable place to live.

Understanding Zoning in Massachusetts

This proposed bill is a good example of an important lesson regarding Massachusetts zoning: these land use regulations are often not very flexible. Many property owners find that their local zoning regulations can completely prohibit how one wishes to use their property. Sometimes, a seemingly minor regulation can put the brakes on a proposed development.

Zoning in Massachusetts provides exceptions to these regulations, known as variances. It is a common misconception, however, that one merely needs to show hardship to qualify for a variance. Rather, the variance criteria is extensive and requires a high burden to meet, including a showing that the subject property is unique.

This, in my opinion, is one of the driving forces behind this proposed legislation. Since many zoning laws have a “take it or leave it” approach for regulating property, fixing the law itself is really the only way to change the zoning process.

Conclusion

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

Appealing a Variance in Massachusetts

Appealing a Variance in Massachusetts

Like most states, zoning decisions in Massachusetts are primarily made at the local level, through municipal boards.  One of the most common types of zoning decisions are requests for variances. While a municipal board (commonly called the zoning board of appeals in most towns and cities) makes the decision on whether to grant a variance, such a decision can be appealed.

What is a Variance?

A variance is an exemption from a zoning requirement. Zoning ordinances regulate how a land owner may use their property, which typically includes regulations on the allowed uses and activities.

A property owner has a right to seek an exemption from a zoning requirement by applying through a variance. A variance requires the following:

[T]hat owing 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.

In short, a variance requires that the property have something unique about it, and due to this condition, the property owner will suffer hardship if forced to comply with the zoning ordinance.

Appealing a Variance

The decision to grant a variance is generally made by the local zoning board of appeals (“ZBA”). Such decisions are done at open public meetings, with members of the community permitted to speak in favor or in opposition of the request. After a decision is made, the ZBA issues a written decision stating its reasons for approval or denial.

A party aggrieved by a variance decision has a right to appeal. Such an appeal is made to either Superior Court or, most commonly, to Land Court. In such an appeal, the court hears all evidence about the variance and issues a decision upholding or denying the variance.

Practical Implications

What’s the most important thing to know about appealing a variance? Act quickly. There is a short deadline for filing such an appeal, and a detailed process for doing so. Failure to comply with these requirements can be grounds for immediate dismissal of an appeal.

Not anyone can appeal a variance. Only a person “aggrieved” by such a decision may do so. The issue of whether a person can bring such a claim (known legally as whether the party has standing) needs to be determined carefully. Simply not agreeing with a zoning decision, on its own, is not enough to bring an appeal.

Appealing a variance requires a thorough knowledge of the applicable law and underlining property. For this reason, one should strongly consider hiring an experienced lawyer for such a matter.

Conclusion

If you need help with a variance, contact me for a consultation.

Attorney Sherwin To File Adverse Possession Case for Washington D.C. Republicans, Democrats

April is going to be a busy month for me. In a rare case of bipartisanship, a group of Republican and Democratic Senators (who have been in Washington D.C. for over twenty years) have hired me to file an adverse possession lawsuit for them, seeking permanent ownership of Capitol Hill.

Adverse possession is a legal claim where a party can obtain someone else’s property without their possession if they use it as their own for a period of time (twenty years in Massachusetts). A critical requirement is that such use must be hostile: against the permission of the lawful owner.

These politicians have a great case. By staying in Washington for so long, without doing anything for their constituents, there is a good case that these politicians’ use of Capitol Hill for the past twenty years has been hostile.

“Getting reelected to Congress is a lot of work,” said one Republican Senator, who asked to remain anonymous. “It is much easier to hire Attorney Sherwin, who we are confident can make a compelling case that we haven’t done anything for the last twenty years.”

” I rarely agree with Republicans,” said a Democratic Senator, who also asked to remain anonymous.” “But, if there is one thing that all D.C. politicians agree on, it’s that we have a right to stay here forever.”

As a real estate litigator who has tried successful adverse possession cases in the past, I’m looking forward to this case. More information about this matter can be found here.

Fence Disputes: 5 Things Every Massachusetts Property Owner Should Know

I recently settled a case involving a fence dispute, which occurred between two neighbors who weren’t getting along. Fence disputes, believe it or not, are one of the most common types of boundary disputes, and most often arise when a property owner seeks to erect or take down an existing fence.

This case reminded me of some important advice that every Massachusetts property owner should know about these matters.

Location Matters

It may sound obvious, but it is worth mentioning: a property owner can only erect a fence on their property. Placing a fence on your neighbor’s property can quickly lead to a fence dispute and, in the worst case scenario, a court order mandating the immediate removal of the fence.

To avoid this, ensure that your fence is on your property. A plot plan or survey can be helpful in determining your boundary lines.

Fences Can Lead to Adverse Possession Claims

A claim of adverse possession occurs when a person uses property that is not theirs for an uninterrupted period of twenty years, without the record title owner’s permission. Adverse possession follows the rule of “use it or loose it.” If someone else is using your property, you can run the risk of it eventually belonging to someone else.

One of the requirements for adverse possession is exclusive use: showing that the property was within the exclusive use and control of the other party. Massachusetts courts have held that the placement of a fence is a strong example of an adverse possession claim because it puts the property owner on notice that someone else is using their property. For example, if a homeowner erects a fence which encroaches several feet of their neighbor’s yard, and makes use of this property as their own for twenty years, a claim of adverse possession may arise.

For this reason, property owners need to be aware of potential adverse possession claims when erecting fences.

Exercise Care When Removing Trees

Building or taking down a fence often involves the removal of trees and other vegetation. If this applies to you, proceed with caution. Massachusetts law imposes steep penalties for willfully cutting down someone else’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Boundary Disputes Can Become Contentious Quickly

When it comes to land, even the smallest boundary dispute can become a source of friction between land owners. This is an important factor to keep in mind when dealing with a fence dispute. An overly aggressive approach to one of these matters can inflame tempers and lead to unnecessary legal expenses and time in court. For this reason, always try to find an amicable resolution to one of these matters first.

Consult An Attorney If All Else Fails

Of course, some fence disputes (like any other legal matter) can not always be resolved on their own. If you find yourself in such a scenario, strongly consider speaking to an experienced real estate litigation attorney.

Attorney Sherwin to Argue Real Estate Contract Case Before Massachusetts Appeals Court

foreclosure appeal

This Tuesday, I’ll be before the Appeals Court on a case concerning a real estate contract. I won a trial several years ago involving a contract dispute, and the other side has appealed. This is an interesting case that concerns some important topics on real estate contracts.

Appeals Process

In an appeal, a party is asking a reviewing court (known as an appellate court) to determine if the trial court made any errors in law. It is generally not enough to simply argue that the lower court made the wrong decision in the case. Rather, a successful appeal requires a showing that the lower court misapplied the law.

No new evidence is introduced in an appeal. The record is limited to the testimony and exhibits from trial. Each side is permitted to file a written argument to the court, known as a brief, and argue their side of the case to the court, known as an oral argument.

Lessons for Real Estate Contracts

This appeal concerns a couple of important topics relevant for real estate contracts.

Oral Agreements To Sell Property

Most people are familiar with the requirement that a sale of property needs to be in writing to be enforceable, known as the statute of frauds. It is a common misconception, however, that oral agreements for the sale of property can never be enforced. In certain circumstances, the law will not allow a party to avoid enforcement of an oral contract for real estate.

In this appeal, the contract was oral. However, the parties to this agreement changed their circumstances in reliance of this oral agreement, and partially performed it: a recognized exception to the statute of fraud.

This is a critical lesson for anyone involved in a real estate contract: do not assume that, because an agreement may be oral, there are no repercussions for failing to perform. As with any legal agreement, one should speak with an experienced attorney and proceed with caution.

Getting Out of a Contract

This appeal also concerns another important part of contract law: when can someone “undo” a contract? The “undoing” of a contract, known as a rescission, generally requires there to be a complete abrogation of the agreement. In other words, if a party really fails to do what they are supposed to, the other party may have the option of asking the court to cancel the contract. My appeal is primarily about this issue: whether or not one of the parties did their required obligations under the contract.

It is important to understand that the right to rescind an agreement is a high burden to meet. Courts will not allow rescission when a party has merely breached such an agreement, generally, it must be shown that an “utter failure of consideration” occurred.

This is important for anyone entering into a real estate contract agreement to know. Getting out of such an agreement is no guarantee, and the law provides powerful remedies for enforcing these agreements.

Conclusion

If you need assistance with a real estate contract matter, contact me for a consultation.

Forum Selection Clauses in Massachusetts

foreclosure appeal

The Massachusetts Appeals Court issued an important decision last week concerning forum selection clauses in Massachusetts. While the case didn’t concern a real estate matter, these clauses are often found in real estate contracts, making it relevant here. The case, Empire Loan of Stoughton v. Stanley Convergent Security Solutions, Inc., is included below.

Case Overview

This case concerned a breach of contract dispute between two businesses: a Massachusetts corporation and a Delaware corporation doing business in Massachusetts. These corporations entered into a contract for the installation of security systems, and a lawsuit arose after one of the businesses alleged that the other failed to properly maintain and monitor one of its security systems. One of these businesses sued the other in a Massachusetts court, and the court dismissed the lawsuit due to a forum selection clause in the parties’ contract.

What is a Forum Selection Clause?

A forum selection clause allows parties in a contract to pick the location where any lawsuits arising out of the contract should be heard. Here, the parties agreed to Connecticut. Because the business sued in Massachusetts, the court dismissed the case.

Empire Loan discusses the standard for determining whether one of these clauses is enforceable. The party in favor of the clause must show the clause was reasonably communicated and accepted.  The party opposed to the clause must show it is unfair and unreasonable.

The Appeals Court found that this forum selection clause was permissible largely because the opponent of the clause did not dispute reading the entire contract and agreeing to all of its terms. Moreover, the record supported that the parties negotiated the entire agreement.

Practical Implications

Empire Loan has important implications for anyone entering into a contract . . . especially in real estate. Forum selection clauses can (and will) be enforceable if they are fair and reasonable. This decision suggests that courts will not have too much sympathy for parties who freely and willingly sign agreements of these type. Simply put, a party who signs a contract with a forum selection clause can be stuck with it.

That’s not to say that every one of these clauses are enforceable. A party entering into one of these contracts, however, should give consideration to the implications of one of these clauses before signing.

Conclusion

If you need assistance with a real estate contract dispute, contact me for a consultation.

17P1115-Forum-Selection

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.