Zoning Disputes in Massachusetts: Three Success Stories

Zoning disputes typically arise when property owners have disagreements over whether someone is entitled to specific zoning relief, such as a variance. The law allows a party who is “aggrieved” by a zoning decision to appeal the matter in court. By doing so, the party requesting the zoning relief is required to prove to the court that they are entitled to it.

I’ve had the honor of representing businesses and homeowners with zoning disputes in Massachusetts. Here, I’ll discuss three success stories I have had with such matters. For privacy purposes, I have only discussed the general facts of each case.

Small Business v. Real Estate Developer

My client was a medium-sized commercial landlord in the Greater Boston area who was having an issue with a real estate developer. The developer was seeking zoning approval to pursue a large-sized development in the neighborhood where one of my client’s rental properties was located. My client was concerned that such a development could have long lasting implications to its rental property, including loss revenue.

For this zoning dispute, I challenged the validity of the special permits that this developer had obtained from the city’s planning board. I argue that the planning board failed to consider all of the required criteria for such relief, including the implications of its development on nearby housing providers.

After several months of litigation, my client and the developer reached a successful settlement. This settlement provided my client adequate compensation for some of the losses it anticipated suffering during the construction of this development.

Homeowner v. Real Estate Developer

In this case, a Boston homeowner retained me concerning a proposed development in the immediate vicinity of his home. My client, understandably, was concerned about a large condominium complex in the rear of his home.

After reviewing the case, I determined that many of the approved variances were problematic and on shaky ground. In the Suffolk Superior Court case I filed appealing this decision, I asked the Court to annul the City of Boston’s Zoning Board of Appeal decision on this matter.

Shortly after, a settlement was reached, which helped alleviate many of my client’s concerns about this project.

Homeowner v. Homeowner

Zoning disputes often occur between adjacent homeowners. In this case, a North Shore homeowner hired me in regards to a special permit that his neighbor obtained. My client was concerned about an addition that his neighbor wished to construct on her home, which my client believed lacked justification.

As with all zoning disputes, timing is critical. Massachusetts law only allows a claimant twenty days to file an appeal, and failure to do so will be grounds for dismissing the appeal.

As a solo attorney, one thing I pride myself on is having full control over my schedule and ability to take on cases that are time sensitive. Here, I was able to timely file this matter on short notice, which lead to a successful resolution for my client.

Final Thoughts

Zoning disputes are highly interesting cases . . . and complex. It is critical to how a solid understanding of this law to pursue any zoning appeal or legal challenge.

While each of the cases discussed above settled, zoning disputes can (and often do) go to trial. Therefore, it is critical to have an attorney with a solid background in litigation and trial advocacy.

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

Fighting a Zoning Decision

foreclosure appeal

Fighting a zoning decision generally occurs through the filing of a G.L. c. 40A, § 17 appeal in Land Court or Superior Court. Such, an appeal, however, many only be filed by a “person aggrieved.”

On this important topic, the Supreme Judicial Court issued its long awaited decision in Murchison v. Zoning Board of Appeals of Sherborn, a decision that overruled a prior appellate decision on this same matter.

This case is the only time I’ve seen an appellate court announce the outcome of a decision months before issuing a written decision, which underscores the importance of this area of law. The full decision is below.

Overview of Fighting a Zoning Decision

Fighting a zoning decision from a town or city zoning board (usually a Zoning Board of Appeals or Planning Board) is done through a civil court action. A party must file such an appeal twenty days after the decision has been filed in the office of the city or town clerk. After doing so, the party who is the applicant seeking zoning relief has the burden of proving their case.

This is a critical point for fighting a zoning decision. A party who appeals a zoning decision forces the other party to prove its right to zoning relief. This is in contrast to most other civil lawsuits, where the party filing the case has the burden of proof.

Who Has the Right to Appeal a Zoning Decision?

Appealing a zoning decision requires more than simply filing a court case. The law only allows a “person aggrieved” to pursue such a case. In other words, the party must have some real stake in the case outcome (known in legal terms as standing).

A homeowner trying to appeal a zoning decision for a parcel of property on the other side of town would most certainly not be considered a “person aggrieved.” This inquiry, however, gets tricky when it concerns zoning disputes among neighbors and those living near the property.

Murchison determined that an abutter of a property (who is located a specific distance from the property) is not automatically a “person aggrieved.” Rather, a person pursuing a zoning appeal must make a more detailed showing of standing, including a claim of harm from the zoning relief.

Final Thoughts

Standing is a mandatory requirement for a zoning appeal. If a party cannot demonstrate that they are a “person aggrieved,” the case is over.

For this reason, it is critical to have an experienced attorney help you in preparing such a case. If you are involved in a zoning matter, contact me for a consultation.

Murchinson

Zoning Litigation: Lessons from a Recent Decision

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

On April 24, 2020, a panel of the Appeals Court (Massing, Desmond, & McDonough, J.J.) decided Bylinski v. Building Commissioner of Douglas, 97 Mass. App. Ct. 1113, Docket No. 18-P-450 (Rule 1:28 decision) and reversed a court order to demolish a cottage for non compliance with the relevant provisions of the zoning act (G.L. c.40A).  This otherwise obscure case represents a cautionary tale for all zoning practitioners-it’s the latest chapter of a tortuous 11 year Dickensian odyssey through three trial court departments that has spurred, counting this case, five appeals to the Appeals Court.

Background

Bylinski owns property along Wallum Lake in the rural town of Douglas near the Connecticut and Rhode Island borders. Tusino owns Guaranteed Builders (GBI) and bought the adjoining lot through GBI. In 2008, despite insufficient frontage and setbacks, GBI obtained a permit to build a cottage. Bylinski unsuccessfully requested that the building commissioner revoke the permit and then appealed to the zoning board (“The Board.”)

The Board failed to resolve Bylinski’s appeal within 100 days. By operation of law, the Board constructively revoked GBI’s permit. See G.L. c.40A, §15, 5th par. GBI unsuccessfully appealed that order to the Superior Court. See Guaranteed Builders and Developers v. Haire, et. al., Civil Action No. 0985CV2052 (Super. Ct. Worcester Co., filed September 3, 2009).

Bylinski then filed a mandamus action in the Land Court to compel the building inspector to enforce the zoning bylaw and now revoked building permit. In the meantime, GBI successfully finished building the cottage. GBI then unsuccessfully sought a variance from the frontage requirements and litigated the issue all the way to the Appeals Court. Guaranteed Builders v. Zoning Board of Appeals of Douglas, 85 Mass. App. Ct. 1101, Docket No. 2013-P-948 (Rule 1:28 Decision, Feb. 21, 2014).

At the same time, the Land Court judge dismissed Bylinksi’s petition for mandamus because Bylinski had not exhausted his administrative remedies before. Bylinski appealed the Land Court’s order to the Appeals Court and pursued administrative relief at the same time. While Bylinski’s appeal was pending, the Board sided with him and reversed the building commissioner’s refusal to enforce the zoning bylaw and issued a demolition order.

The demolition order contained curious language-the order did not require the town to demolish GBI’s house. But the order also did not limit Bylinski’s right to seek direct injunctive relief if GBI and Tusino did not demolish the house. GBI unsuccessfully appealed that order to the Uxbridge District Court before appealing to the Appeals Court.

The Appeals Court consolidated and ultimately dismissed Bylinski’s and GBI’s appeals. See Tusino v. Zoning Board of Appeals of Douglas, et. al. 90 Mass. App. Ct. 89 (2016). Specificially, GBI had appealed to the wrong court by appealing directly to the Appeals Court rather than to the Appellate Division of the District Court-and they were out of time to go back there. Since dismissing GBI’s appeal made the demolition order final, Bylinski’s appeal from the Land Court’s denial of mandamus became moot because he obtained all the relief he sought.

Curiously, Bylinski did not seek to enforce the demolition order from the District Court. Rather, Bylinski went back to the Land Court, reopened his case, joined Tusino as a defendant, and sought an injunction to demolish the completed but empty cottage. (The Building Commissioner has never issued an occupancy permit.) In December 2017, a Land Court judge  finally ordered that Tusino and GBI demolish the cottage or risk being held in contempt of court. Tusino and GBI appealed and successfully stayed the demolition order.

The Appeals Court’s Most Recent Decision

Preliminarily, the panel resolved two procedural issues. First, the panel reached the merits notwithstanding that there were unresolved claims against parties below and the Land Court judge did not certify an immediate appeal under Mass. R. Civ. Pro. 54(b). Indeed, holding otherwise would needlessly further prolong this case. Second, in a lengthy footnote, the panel held that Bylinski properly and timely joined Tusino. By law, trial courts had authority to join any dispensable to permit the case to proceed and related back to the original pleadings-and thus were not outside any statutes of limitation or repose. See FN7, citing G.L. c.231, §51.

Cleared of that underbrush, the panel considered whether Bylinski, as an individual, could seek an injunction from the Land Court to compel Tusino and GBI to demolish the house. The panel comprehensively reviewed the relevant procedures under the zoning act.

G.L. c. 40A, § 7 permitted any person to request that the building commissioner (or other local official) to enforce the zoning by laws. If the party failed to obtain relief from the building commissioner, the party could appeal to and obtain enforcement orders from the zoning board, same as the building commissioner. G.L. c.40A, §§8, 14. If the party still remained aggrieved, they could then pursue judicial review and broad equitable relief. G.L. c.40A, §17.

 Section 7 empowered the Superior Court and the Land Court to enforce zoning bylaws and issue injunctions to remedy bylaw violations. However, Section 7 also contained an important caveat: “no action, suit or proceeding…[or] administrative action or other action…to…compel the removal..of a structure [for violating] a zoning by-law [shall proceed] except in accordance with this section and sections 8 and 17.” This limitation dovetailed with the important principle that  there is no private right of action to enforce zoning bylaws-a private citizen cannot go directly to court to enforce the zoning bylaws when a town or city does not.

The case distilled to whether Bylinski had assiduously followed these procedures. The panel concluded he had not. First, Bylinski’s case could not constitute a zoning appeal under Section 17 because he did not perfect the appeal under Section 17. Bylinski already obtained a demolition order from the Board-thus, he was not an aggrieved party who could appeal.

Although the Board’s order suggested that Bylinski himself could compel demolition, by law, only a building inspector or a zoning board could directly enforce zoning bylaws and compel demolition without pursuing administrative remedies. Bylinski had not done so, and thus the Land Court judge could not issue a demolition injunction directly against Tusino on Bylinski’s behalf. However, Bylinski had remedies. First, he could renew his mandamus action in the Land Court against the building commissioner. Second, he could reopen the District Court case where the demolition order issued. Indeed, because Bylinski remained an aggrieved abutter, he could seek repeated requests for enforcement based on changed circumstances.

The Takeaways

Are There Too Many Zoning Appellate Forums?

This case illustrates how the breadth of forums for zoning appeals can cause problems. Under G.L. c. 40A, §17, one may appeal a zoning board’s order to either of four trial courts: the District Court (except in Hampden County [Springfield]), the Housing Court, the Land Court, or the Superior Court. As occurred here, parallel actions can arise in any or all of those courts.         

This broad choice of forum has also caused serious mischief in the past.  In Skawski v. Greenfield Investors Property Development, 473 Mass. 580 (2016), abutters filed a zoning appeal in the Housing Court challenging a large development in Greenfield. The developers sought transfer to the permit session of the Land Court-which the Legislature specifically created to streamline challenges to large developments. 473 Mass. at 582-583 (describing their requests for transfer), and 586-591 citing G.L. c.185, §3A. Nearly five years later, the SJC finally concluded that the abutters erroneously went to the Housing Court but could press their zoning appeal to either the Land Court or the Superior Court. 473 Mass. at 591-593.

Confused yet? It gets better. Until Tusino’s 2016 appeal, all further appeals in zoning cases proceeded uniformly to the Appeals Court, even if they originated in the District Court. Tusino, 90 Mass. App. Ct. at 91, citing Walker v. Board of Appeals of Harwich, 388 Mass. 42 (1983). Indeed, when a litigant can file a case in the District Court or in another trial court, all appeals in that type of case should proceed to the Appeals Court to ensure uniform treatment of litigants. See e.g. Van Liew  v. Stansfield, 474 Mass. 31, 34-36 (2016). 

 But in Tusino, the Appeals Court held that the Legislature effectively overruled Walker by expanding the equity jurisdiction of the District Court and creating the “one trial system” during the 2000’s. 90 Mass. App. Ct. at 91. The Appeals Court reached this result despite their established rule that they do not and cannot overrule the SJC to alter established rules. See e.g. Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973). Put another way, if the SJC incorrectly decided Walker, or if the Legislature overruled Walker, it was up to the SJC and the SJC alone to overrule Walker. This decision also does not ensure uniform treatment of litigants.

If Section 17 commands that zoning appeals “shall have precedence over all other civil actions and proceedings”, the prospect of parallel actions in up to four trial courts with up to three layers of appellate review hardly seems to accomplish that end. Worse, as in Skawski, the issue of zoning appeal forum selection arose twice and two different trial court Chief Justices took no action to resolve it before it reached the SJC. 473 Mass. at 582-583.

How can you avoid forum wrangling? File the zoning appeal in the Land Court or the Superior Court to keep a case before one judge. Indeed, in the Land Court, all cases proceed before one judge for their entire legal lives there. Land Court Standing Order 1-04(B).  In the Superior Court, you can seek a special assignment of one judge. See Superior Court Standing Order 9-80. If there are multiple related cases in multiple courts, move to consolidate all your cases into one court pursuant to Trial Court Rule XII. Indeed, there is a presumption of consolidation in cases involving identical parties and issues.

Coordinate with Town Officials

This case also, at best, does not flatter, and at worst, is “a study in mulish behavior” of town officials and town government in Douglas, Darcy v. Hankle, 54 Mass. App. Ct. 846, 847 (2002) (Kass, J.) The Building Inspector allowed Tusino to build his cottage. Ironically, Bylsinki won his appeal by appeal by operation of law because of the Board’s inaction on it. Although the Board denied Tusino’s request for a variance, the Board still did not act to stop him from building the cottage. And, the Board wrote an ambiguous demolition order. Practitioners should be alert to whom they are working with locally and ensure that all interests are aligned. If you are seeking mandamus relief, be sure that the official government has no discretion not to act, with a statue or regulation that reads “shall”-and you have no other remedies.

Seeking Additional Appellate Review of Zoning Decisions

This case also exhibits some perils of taking an appeal. Bylinski could have avoided some appellate review by seeking to stay appellate proceedings to obtain administrative relief.  If a party validly entered their appeal, trial courts cannot enter orders that could moot appeals that are pending without leave of an appellate court. Springfield Housing Authority v. Garcia, 44 Mass. App. Ct. 432 (1998) . The same logic should apply to seeking administrative relief.

Moreover, neither party seemed alert to how this appeal was not from a truly final judgment-i.e. that the order resolved all claims against all parties. See e.g. Patel v. Martin 481 Mass. 29, 31-32 (2018). The best practice is to resolve that issue before appealing. The lack of a final judgment is potentially a serious jurisdictional defect. Had this case not dragged out for 11 years, the panel may not have exercised their discretion to decide the appeal.

Finally, this opinion is the latest in an unfortunate prevalence of unpublished opinions. The Appeals Court typically issues unpublished opinions in cases that present “no substantial question of law.” Appeals Court Rule 1:28, soon to be Appeals Court Rule 23.0. These issues do not seem to fit that rule. The question of who had the power to compel demolition seems to arise in an unusual context. A published decision could have clarified that issue as the panel’s decision cites many older cases and practitioners could have benefitted from that.

The end result of an unpublished decision is strange given the timeframe. The panel originally heard this case in January 2019. An April 24, 2020 decision is nearly a year beyond the Appeals Court’s internal guideline to resolve appeals within 130 days of argument.

Granted, cases can last longer under advisement if the Appeals Court will publish it. This is the “second panel” process where every Justice on the Appeals Court reviews the decision-and, if there’s a dissent, the panel may expand. See Sciaba v. City of Boston, 35 Mass. App. Ct. 181, n.1 (1993). But a party cannot compel the full Appeals Court to consider an appeal. Weber v. Appeals Court, 457 Mass. 407 (2010).

Given this background, this case seems like a candidate for further appellate review by the SJC. This case has lasted for 11 years-and the Appeals Court’s decision seems to all but assure further litigation. On practical level, it seems highly wasteful to have an unoccupied cottage taking up space along Wallum Lake because there is no occupancy permit for it-and it’s going to stay that way on remand.

 Although allowance of further appellate review may further prolong this case, further appellate review may finally spur a resolution to this case. The SJC tends to expedite matters on FAR. Indeed, historically, the SJC has seemed concerned about zoning matters dragging out-as in Skawski. See also Murchison v. ZBA of Sherborn, SJC-12867, on further appellate review from 96 Mass. App. Ct. 158 (2019), Paper No. 23 (affirming dismissal for lack of standing with an opinion to follow.) As of now (May 31), no application has been filed.  

 In sum, this decision should operate as a clarion warning for zoning practitioners about how litigation can proliferate out of control. But there are steps practitioners can take to avoid these pitfalls. Moreover, if the SJC does not step in to remedy how these trapdoors opened, the Legislature should-particularly about the breadth of  choices of forum in zoning cases.

 Joseph N. Schneiderman is an appellate practitioner in Massachusetts and Connecticut with particular affinities for zoning, municipal law, and appellate practice and procedure. Joe recently argued his 20th appeal in his career and Joe gratefully thanks Adam for another opportunity to blog.

Zoning for Landlords: What to Know

Zoning is an important topic for any property owner, especially landlords. Landlords should have a basic knowledge of zoning before offering property for rent, and know what to do if problems arise later on.

What is Zoning?

Zoning are local rules on the use of real property. Zoning often regulates the size, shape, and use of property in a town or city. These regulations are generally found in a town or city’s ordinances, which are usually available online.

Most towns and cities are divided into zoning districts, where only certain uses are permitted. It is common to have zoning districts for residential and commercial purposes. Towns and cities generally have a zoning map that indicates the zoning district for a particular property.

Failing to comply with a zoning regulation can have severe consequences. A town or city often has the power to issue a fine or stop-work order for a property in violation of the respective zoning ordinance.

Zoning for Landlords: Is My Property Allowed to be Rented?

For landlords, a critical issue to determine is whether the property they wish to rent is allowed for renting. Many zoning ordinances have specific requirements on where rental housing is allowed, and the minimum requirements for such rentals. This is often in addition to the state sanitary code, which applies to all residential housing in Massachusetts.

A landlord should never assume that property is suitable for renting simply because a prior owner did so in the past. It is not uncommon for zoning violations to continue for many years before finally being brought to enforcement by the town or city.

If a landlord’s property is not allowed for renting, a landlord may be able to request permission for doing so, through a variance, special permit, or some other zoning request.

Zoning for Landlords: Short-Term Rentals

Landlords need to be especially cautious about using property for short-term rentals. Short-term rentals are becoming increasingly regulated by Massachusetts towns and cities. Some municipalities require registration of these rentals, and others are banning them all together. Best for landlords to know such requirements before entering into such rentals.

Final Thoughts

If you need assistance with a zoning or landlord-tenant 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.

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. 

Appealing a Zoning Decision: Timing is Everything

foreclosure appeal

The Massachusetts Appeals Court issued an important decision this week on appealing a zoning decision in Massachusetts.  This case demonstrates the critical importance of timely appealing such a matter.  The case, McIntyre v. Zoning Board of Appeals of Braintree, is included below.

Overview

The facts of this case are fairly straightforward.  In Braintree, a building inspector (who was responsible for enforcing the city’s zoning requirements) issued a building permit.  An abutter of the property that received this building permit appeal this decision.

This type of appeal, commonly known as an administrative appeal, is allowed under Massachusetts law and usually must be made to the town or city’s zoning board of appeals.  This type of appeal determines whether the building inspector (or zoning enforcement officer) correctly interpreted the applicable zoning requirements.

An administrative appeal is also allowed when the zoning officer refuses to enforce a zoning requirement, and an aggrieved party believes that this non-action violates the zoning requirements.

An administrative appeal is different than a request for a variance, where a property owner is seeking an exemption from a zoning requirement.  An administrative appeal simply determines whether the applicable zoning requirements were correctly interpreted. 

Deadline for Appealing a Zoning Decision 

Appealing a zoning administrative decision comes with a strict deadline: “thirty days from the date of the order or decision which is being appealed.”  As the Appeals Court explained, this deadline is “strictly enforced and is a jurisdictional prerequisite to the board’s jurisdiction to hear an appeal.”

Here, the party seeking to appeal the building permit filed their appeal forty-four days after learning about the building permit . . . well after the thirty-day deadline.   

To avoid dismissal of their appeal, this party tried a creative argument.  Under Massachusetts law, if a zoning board of appeals fails to issue a decision on an administrative appeal within 100 days after the filed appeal, a party can win their appeal through a process known as constructive approval.

In this case, the board of appeals held that the party failed to timely file their appeal of this administrative decision.   However, the board failed to issue its decision within the 100 day deadline.  As such, the party argued that a constructive approval occurred.  This party argued that, because a constructive approval occurred, it did not matter that they missed the original thirty-day deadline.

Decision and Practical Implications

The Appeals Court rejected this argument, holding that a party needs to meet the thirty-day deadline in order to pursue an administrative appeal.  Although constructive approval is a recognized means of winning an appeal when a board of appeals fails to act, this is not an excuse for ignoring the thirty-day deadline under G.L. c. 40A, § 15.

This case has an important lesson for appealing a zoning decision: deadlines matter.  This is in keeping with other Massachusetts decisions, where the failure to satisfy such a deadline can be fatal to one’s case.

Conclusion 

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

 

McIntyre v. Zoning Board of Appeals of Braintree

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.