Guest Blog Post: Preview of Upcoming Massachusetts Appeals Court Zoning Decisions

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on upcoming zoning decisions from the Massachusetts Appeals Court.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

During the week of October 7, three different panels of the Massachusetts Appeals Court heard three zoning cases, Pecyna v. Town of Dudley, 2018-P-1377, Nimchik v. Chicopee City Council, 2018-P-1024, and Johnson v. Zoning Board of Appeals of Worcester, 2018-P-1425. Real estate and zoning practitioners should follow all three because all three have important procedural and substantive implications.

 Pecyna (Meade, Hanlon, and Kinder, J.J.)

Verizon sought to build a cellular tower in Dudley. On August 22, 2017, Verizon successfully obtained a special permit from the Dudley Planning Board. On September 11, 2017, the Pecynas, as self-represented abutters, timely appealed the special permit to the Worcester Superior Court but did not join Verizon as a party. Compare G.L. c. 40A, §17 (Aggrieved party has 20 days to appeal.) Curiously, the Town Clerk issued a certificate of no appeal the next week. As ten months of litigation elapsed, Verizon built the tower.

 Later represented by counsel, the Pecynas unsuccessfully sought an injunction to demolish the tower and to belatedly join Verizon as a party. A Superior Court judge denied both motions and dismissed their appeal, reasoning that: (1) because the Town Clerk never received the notice of appeal, the appeal was untimely and (2) belatedly joining Verizon would be prejudicial because Verizon built the tower despite the faulty notice. The Pecynas appealed to the Appeals Court. Curiously, the Town of Dudley did not file a brief-although Verizon appeared and argued as amicus curiae.

This appeal implicates the adequacy of notice of a zoning appeal to a Town Clerk-and presents a follow up to the Appeals Court’s divided 2-1 decision in Hickey last year. Indeed, much of the oral argument focused on the implications of Hickey.

 The Pecynas asserted that they notified the town orally that they intended to challenge and appeal the special permit. The Pecynas further asserted that they attempted to file the appeal but the Town Clerk refused to accept it until Day 21-and apparently wanted discovery on that point. By contrast, Verizon asserted that only actual notice suffices, citing much of the caselaw leading to Hickey. Verizon also asserted that the Pecynas forfeited or waived their right to seek discovery on the issue notice by filing a written motion for discovery.

 Like Hickey, two compelling doctrines are clashing here. On the one hand, courts demand and enforce strict compliance with the timing and notice provisions of Section 17. Those provisions ensure that Verizon has no encumbrances to building its tower, or conversely, so the Pecynas know about and can challenge it.

On the other hand, there is something unseemly about the Town Clerk refusing to accept appeal paperwork and issuing a certificate of no appeal. If the Town Clerk were a Court Clerk, they would have to accept the appeal papers-even if they thought the appeal was doomed. Compare e.g. Gorod v. Tabachnik, 428 Mass. 1001, 1002 (1998).  Dudley also does not have a good record of transparency, i.e., the purpose of notice. Indeed, in 2015, the Attorney General annulled a past decision of the Dudley Planning Board that occurred in violation of the Open Meeting Law.  

If the Pecynas have truly preserved their right to seek discovery on notice, a good intermediate solution is for the Appeals Court to remand the case for a hearing on that point-and possibly even retain jurisdiction. The trial judge could weigh whether the prejudice to the Pecynas of having the town thwart their ability to appeal outweighs the prejudice to Verizon of relying on a faulty certificate to build a tower.

 Nimchik (Lemire, Singh, and Wendlandt, J.J.)

This case is a challenge to “spot zoning”, i.e., singling out land in a particular area without regard to the general objectives of zoning. More specifically, a building supply company successfully applied to the Chicopee City Council to rezone parcels residential land to business land to facilitate the construction of a garage. This residential neighborhood is west of Route 33 near Westover Air Force Base. That part of Route 33 is, to quote Homer J. Simpson, a “miracle mile where value wears a neon sombrero and there’s not a single church nor cultural institution to offend the eye.” The abutters sued in the Western Housing Court, asserting that the rezoning amounted to unlawful spot zoning. A Judge granted summary judgment for the business and city.

 The abutters press on appeal that constructing the large garage and subsequent large truck traffic would be detrimental to the residential neighborhood and only benefits the building supplier and is not a public benefit for zoning. The abutters further contend that the city council’s voting practices to rezone the land were unlawful because there were not enough votes supporting the rezone. Finally, the abutters contend that the judge needed to make express findings of fact resolving the appeal as the judge allowed the motion in a handwritten margin endorsement.

The city and the supplier counter that much of the abutting land is already zoned for business and that the residents will not suffer any detriment.  The city and the supplier further argue that the abutters have forfeited or waived any issue on the voting practices by not expressly raising the issue in opposition to summary judgment. Much of the oral arguments focused on this point; Justice Lemire asked counsel for the abutters three different times about how and where this issue appeared below.

Spot zoning, i.e.,, that a municipality has singled out land without regard for the public welfare and purposes of zoning is certainly a serious issue since the Zoning Act requires uniformity-and amounts to a constitutional violation. But, the abutters are carrying a heavy burden to prove not only that there is spot zoning  but that there should be a trial. the abutters so See e.g. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 108 (2003).  The abutters’ brief hints that, perhaps, Chicopee could have and should have granted a variance because of unusual land conditions here-indeed, one parcel is triangular. But if the city and the supplier are right about the neighboring land, the motion judge probably correctly resolved the issue at summary judgment.

           Johnson (Milkey, Sullivan, and Ditkoff, J.J.)

An ice cream stand owner on Lake Avenue along Lake Quinsingamond in Worcester sought to expand into a full borne fast food restaurant. He sought a special permit and variance for relief from the required parking spaces the Worcester Zoning Code require. Abutters who own property on Lake Avenue (also then self-represented) sued and the Superior Court granted summary judgment for the city and property owner.

 On appeal, the abutters assert that by adopting the findings of the zoning board verbatim as their facts in support of summary judgment, which were unsupported, summary judgment was inappropriate.  The abutters specifically emphasize that they put forward evidence that the expansion would increase noise, traffic and there is nothing unique about the parcel topographically to justify the variance. Rather, the Board granted the variance because it would be substantially beneficial. The abutters have also pressed that summary judgment was inappropriate in light of how the zoning appeal process is a de novo factual review.

The City counters that the abutters did not oppose their statement of facts. This raised concerns at argument-Justices Sullivan and Ditkoff alike pressed counsel for the city on whether or not there was not factual support. This led to the City’s point that the abutters have waived or forfeited this issue on appeal-and it was too late to challenge that in a motion for reconsideration. Justice Milkey contended that responses to interrogatories were part of the record-and questioned whether or not that fact alone would create a genuine issue of fact. The City continued to harp that the pro se abutters waived it-which drew serious doubt from Justices Milkey and Sullivan. Indeed, Justice Sullivan quite emphatically asked counsel for the city, “Is the city troubled by the notion of making a waiver argument against a pro se taxpayer where the problem was created by the manner in which the city presented its case?”

The verbatim adoption of one party’s statement of facts is not error in and of itself. See e.g. Cormier v. Carty, 381 Mass. 324 (1981) But, those facts are subject to challenge for clear error and reviewing courts will carefully scrutinize those findings. Id. This is also just as much of an issue in zoning cases-the verbatim articulation of the variance standards without factual support for the variance is error. Indeed, a board must make detailed findings to justify a variance. See e.g. Wendy’s Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374, 387 (2009)

If the city did indeed make shoddy findings that do not justify the variance and indeed there is no basis for it, summary judgment is completely inappropriate and a trial should occur.  The only question is whether or not the abutters waived or forfeited the issue-and even that is not crystal clear. If the abutters did indeed proffer responses, that should suffice as counter evidence to defeat summary judgment.

Common Takeaways

All three appeals could rise or fall on the issue of waiver/forfeiture. The waiver/forfeiture rule means that a party cannot raise a legal issue for the first time on appeal that they did not raise in the lower court. To quote Justice John Greaney, the waiver/forfeiture rule exists because “…there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right.” Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). In criminal cases, the rule is relaxed. But in civil cases, including zoning cases, the rule is hard and harsh-even if the parties are self-represented. As earlier, if the Pecynas did not put the lower court on notice of the Town Clerk gaming the system, their appeal is or may be doomed.

Similarly, in Nimchik, although the validity of the vote to rezone is potentially a serious one, if the abutters did not properly preserve the issue, it’s not fair game on appeal-and neither the lower court nor the appellate court will comb the record to identify it. If there is a question about preservation, lay it out at the outset-or write a compelling a reply brief pointing out how the parties raised and addressed the issue below. Or better yet, avoid the issue of preservation by bringing in appellate counsel to frame and hone the legal issues and write a compelling motion or opposition.

However, in Johnson, if the parties did all they thought they could do to put the lower court on notice of some issue of fact, waiver/forfeiture is completely inappropriate. Indeed, Justice Sullivan made an important point during oral argument that it would not be fair to hold the rule against a self-represented party who tried to put the lower court on notice of an issue that the city did not.

Nimchik and Johnson offer important opportunities to clarify the application of summary judgment to zoning cases. Summary judgment is appropriate when a party’s evidence demonstrates there is no genuine issue of material fact and one party deserves judgment as a matter of law.  However, zoning appeals are also de novo proceedings-that is, a court finds completely new facts without regard to how the zoning board found facts. Jury trials are available in Superior Court zoning appeals.

However, nearly 40 years ago, the Supreme Judicial Court specifically endorsed and recognized summary judgment as an appropriate remedy in zoning appeals, even though zoning appeals could be quite “factually complex.”. Framingham Clinic v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 299 (1981). Zoning boards often (tend to) assert that their decisions and findings deserve substantial deference-including on appeals from summary judgments in their favor. This is despite how appellate courts review summary judgment decisions de novo-without deference to the lower court judge.

This tangle also arises in practice. As noted earlier, the abutters/plaintiffs asserted that they wanted express factual findings in both Nimchik and Johnson. But motion judges do not find facts on summary judgment, motion judges determine whether there is some genuine issue of material fact. An express articulation of facts would be better suited for resolving a case on cross-motions for summary judgment to explain why there are no issues of fact and one party or the other is correct as a matter of law.  Ideally, the Appeals Court will clarify this tangle and provide substantive guidance to the practicing bar about how to frame and pursue these motions.

Joseph N. Schneiderman has an appellate practice with a particular interest in zoning since he took on the Boston Zoning Board in the Appeals Court. Joe also speaks to the Hampden County Bar AssociatIon’s Real Estate Section about the latest appellate developments. Joe gratefully thanks Adam for another opportunity to blog!

Who Can Appeal a Zoning Decision in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision last month on who can appeal a zoning decision. This decision clarifies that overcrowding concerns related to zoning approval are adequate grounds for giving a party a right to appeal one of these decisions. The full decision, Murchison v. Zoning Board of Appeals of Sherborn, is included below.

Zoning 101

Zoning are local regulations on the use of real property. These ordinances generally regulate the size, dimension, and uses of property, and are enacted by individual towns and cities across Massachusetts.

Often, certain desired uses of property require specific approval from the local municipality, such as a special permit or site plan review. A property owner, in most cases, is also entitled to apply for an exception to a zoning regulation, known as a variance.

Zoning decisions are generally made by a town or city’s zoning board of appeals or planning board. A party who is not happy with one of these decisions has the option of pursuing an appeal of such a decision in court.

Who Can Appeal a Zoning Decision in Massachusetts?

Not anyone can appeal a zoning decision. The law only allows a “person aggrieved” to bring an appeal. This is a critical, threshold requirement that must be satisfied for any zoning appeal.

There is a practical reason for this requirement. It would be unfair to allow a person who has no stake in the zoning outcome to get involved in one of these decisions. This requirement is similar to nearly every other civil lawsuit: one must show they have a “dog in the fight” to pursue a legal matter.

How Can Someone Show They Are a “Person Aggrieved”?

Arguably the most common basis for showing standing is a density concern (also known as overcrowding). The claimed harm is that the zoning relief will result in the construction of a building (or a use of land) that is larger or closer than what the zoning regulations intend for.

In Murchinson, the Appeals Court needed to determine the extent to which a party needed to show a density concern for the purposes of establishing standing. In this case, the claimant bringing the zoning appeal lived across the street from a proposed development, which was seeking zoning approval to construct a development without the town’s minimum lot width.

Minimum lot width is a density zoning regulation, aimed at preventing homes and building from being constructed too close to each other. In Murchinson, the proposed development would have only slightly violated this regulation. Based on this, the zoning appeal was dismissed, on the grounds that any alleged harm of overcrowding was de minimis (minor).

Murchison reversed this holding, by ruling the following:

There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area . . . cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.

Practical Implications

Prior zoning decisions suggest that not every concern about overcrowding can constitute standing for a zoning appeal. If the potential harm from the zoning relief is minor, previous cases seem to imply that minor harm, alone, is not enough for a zoning appeal.

Murchison, in my opinion, leaves that decision entirely up to the town or city’s zoning ordinance. If a town or city regulates density in any way, any zoning decision that results in a change to such density is grounds for standing.

Of course, simply having standing is not enough to overturn a zoning decision. Standing simply allows a person to have their day in court on such a matter.

Conclusion

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

Murchison-v.-Zoning-Board-of-Appeals-of-Sherborn-Zoning-Standing

5 Things to Know About Massachusetts Land Court

Massachusetts has a unique forum for handling real estate disputes: Land Court. Land Court is a specialty court which handles a wide array of property issues, including Servicemembers’ Cases, boundary disputes, and other real property matters. Those involved with a real estate issue should be familiar with this court’s unique features.

1. No Jury Trials

No jury trials are allowed in Land Court. If you file a case in this court, your matter gets decided solely by a judge. This, in my opinion, is a great feature of Land Court for certain cases, such as adverse possession, which are best suited for a judge to decide, and not a jury.

Another feature of Land Court are judges with expertise in Massachusetts property law. It is a safe bet that the judge you are appearing before has heard a case of this type before, and has a solid background on the applicable law.

2. Assigned Judges for Cases

In most Massachusetts state courts, judges sit in different sessions at different periods of time. It is not uncommon in Superior Court, for example, to have a case heard by multiple judges for the duration of the lawsuit.

In Land Court, a single judge is assigned to each case. A benefit of this is that the judge will have familiarity with the history of the case throughout the proceedings. This is a huge benefit for complex and detailed matters.

3. Early Case Management Conferences

Upon the filing of a case, the court schedules a case management conference. This is an opportunity to meet with the judge and opposing party and make a plan for the case. Many times, this initial hearing can help pave the way forward to resolving the dispute.

4. Servicemembers’ Cases

Servicemembers’ cases are typically brought in Land Court. These cases are to determine whether a party is in the active military service, which provides some protections against foreclosure and other legal proceedings.

Such proceedings are often confused with an actual foreclosure sale itself. These cases, however, are only a prerequisite to a foreclosure sale. Unless the homeowner is in the active military service, the homeowner generally does not have a defense to one of these matters. Nonetheless, a homeowner who receives one of these notices should be proactive about addressing the oncoming foreclosure against their home.

5. Jurisdiction Over Registered Land

Land Court has exclusive jurisdiction over registered land. Registered land is a unique form of public land record keeping that is certified by the state. Land records for registered land are generally organized by certificates of title on the public land registries.

Land Court certifies such land records, and authorizes whether changes may be allowed to the property’s title. If your case involves registered land, more often than not, a Land Court proceeding will be necessary.

Conclusion

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

Requirement #3 for a Massachusetts Variance: Substantial Detriment

Massachusetts variance

This is a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. The second post discussed the requirement of hardship. This final post discusses the final requirement: that the variance will not substantially harm public good or substantially derogate from the bylaw’s purpose.

Overview

Obtaining a Massachusetts variance requires a showing of three distinct requirements; all of which a petitioner must satisfy:

[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.

G.L. c. 40A, § 10

This third requirement requires consideration of how the requested variance fits in with the local community and zoning ordinances. Even if a petitioner meets the first two variance requirements, the permit granting authority has discretion to deny a variance under this third criterion.

Practical Implications for a Massachusetts Variance

Compared to the first two variance requirements, there are not as many court decisions interpreting this criterion. Generally, if a petitioner can make a good case for the first two requirements, they can generally meet this final criterion.

Nonetheless, a party seeking a Massachusetts variance should not ignore this last requirement. Rather, they should make a case that their variance is keeping with the purpose of the zoning ordinances, and will not cause harm to anyone else. Obtaining the written support of those who are living in the vicinity of the property can often be helpful in making such an argument.

Conclusion

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

Sherwin Law Firm Wins Real Estate Appeal

real estate appeal

I’m pleased to write that I won a real estate appeal before the Massachusetts Appeals Court last week. This case concerned a real estate contract dispute, concerning rescission (a request to cancel a legal agreement). I had previously won the trial and the other side appealed. The full decision is included below.

What is an Appeal?

All civil disputes begin in a trial court, where a party can file a lawsuit against another party and seek monetary damages or a court order. Most real estate disputes in Massachusetts typically begin in the Superior Court or Land Court.

If a party is not happy with the outcome of a case, they can pursue an appeal. An appeal is a legal proceeding that asks a appellate court to review the decision of a trial court. Appeals generally go before the Appeals Court or District Court Appellate Division (depending on the case). In some cases, an appeal can go directly to the Supreme Judicial Court, the highest court in Massachusetts.

Lessons for a Real Estate Appeal

In this real estate appeal, I was defending the trial court decision (known as being the “appellee”). An advantage of being the winning party in an appeal is that an appellate court can uphold a trial court decision for any reason supported by the trial record. This means that, even if the lower court got the reasons for its decision incorrect, its decision will still be affirmed if there is another basis for the decision.

For this reason, a large portion of my argument addressed the many reasons why a claim of rescission was improper in this case. The purpose was to give the Appeals Court as many reasons as possible for going my way. I’m pleased that the Court agreed with my argument and affirmed the lower court decision.

Conclusion

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

Decision

3 Things To Know About Buying a Home with Existing Tenants

Buying a home with existing tenants has many traps for the unwary. While there are advantages to having existing tenants with the purchase of a home, there are also potential areas of liability. Here are three things to keep in mind when considering such a purchase.

1. Existing Tenancies Do Not End When a Home Is Sold

If a landlord-tenant relationship existed between the tenants and the prior owners of the home, that tenancy continues with the new owner. This is true regardless of whether there was a written lease or a tenancy at will (month-to-month lease agreement). The same terms of the prior tenancy agreement, in almost all cases, will carry over to the new owner of the home.

If a new home owner does not wish to have tenants (or wants new ones), an eviction will be necessary. Any attempt to remove tenants without a formal court case is a huge, huge violation of the law and comes with steep penalties.

If you are buying a home with existing tenants, and do not want to keep these tenants, it is strongly worth considering making the existing owner deliver the property without tenants in it.

2.Proceed With Caution With a Security Deposit

If the prior owner of the home accepted a security deposit from the tenants, you as the new owner are responsible for this deposit (unless the prior owner returned it to the tenants). The law requires the new owner to notify the tenants that they received this deposit and to comply with this law’s detailed provisions on holding a security deposit.

If the prior owner returned the deposit to the tenants, be sure to get this in writing.

As I have written about in the past, Massachusetts’s security deposit law is an incredibly complex law, filled with numerous regulations on the acceptance, holding, and return of a security deposit. New landlords should give careful consideration to not accepting a security deposit in the first place.

3.Landlords Must Maintain Residential Rental Property

Residential rental property comes with an implied warranty of habitability. This means that the property is fit for human habitation. The most common standard for measuring this is through compliance with the state sanitary code, a detailed list of the minimum standards for residential property. Local municipalities, as well as tenants themselves, have the right to enforce these regulations.

Residential rental property is quite different from commercial rental property, which is often rented “as is.” This is not allowed for residential rentals, and any attempt to get a tenant to waive the warranty of habitability will be void.

If you are buying a home with existing tenants, you need to be aware of these obligations. Failure to maintain rental property can lead to enormous liability, expenses, and other costs.

Conclusion

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Requirement #2 for a Massachusetts Zoning Variance: Hardship

Massachusetts zoning

This will be a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. This post discusses the second requirement: hardship.

Massachusetts zoning regulates the use of property. For a party to obtain a exemption from a zoning ordinance, they need to obtain a variance. The requirements for a variance are rigorous, and an applicant must satisfy each. Here, I’ll discuss the second requirement: hardship.

What Is A Hardship?

A hardship is an inability to reasonable use one’s property. For example, if a zoning ordinance makes it impossible to construct a building on a vacant lot, an owner may have grounds for arguing hardship.

Such hardship must relate to the property itself. For example, a limitation on the size of a home that may be built on a property could cause personal hardship to an owner, who may need additional bedrooms for a growing family. This, however, is likely not sufficient as grounds for a variance, as the hardship must be based on a unique condition of the property itself.

What’s the purpose of requiring a hardship for a variance? Variances, under Massachusetts zoning law, aren’t meant to be granted on a whim, just because someone wants one. Rather, one is suppose to have a really strong justification for needing one.

What Is Not A Hardship?

There are several circumstances that are generally not recognized as hardships under Massachusetts zoning law.

Simply wishing to build a larger home, on its own, is not enough for a hardship. A property owner will generally need to make a showing that it is no longer economically feasible to make a reasonable use of their property with the existing building in place.

Hardship also does not exist from simply being located next to a zoning district. For example, if you own a property in a residential zoning district that is across the street from a business district, and wish to use your property for a commercial purpose, it generally won’t be sufficient to argue hardship simply because of how close you are to the desired zoning district.

Conclusion

Massachusetts zoning requires an explicit showing of a hardship to obtain a variance. Often, what many of us might consider to be a hardship does not satisfy this criterion, as the hardship must directly relate to the property itself. Without such a showing, a zoning variance will not be upheld.

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

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.