Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Tag Archives: zoning

The Beach is Which Way?

Posted in Standing, Zoning
On June 17, 2016, the Supreme Judicial Court decided an interesting zoning case concerning whether the holder of a beach access easement has standing to challenge a zoning determination affecting the beach parcel.  The case is Picard v. Zoning Board of Appeals of Westminster. As all followers of Massachusetts zoning know, the standing of a… Continue Reading

Two Cheers For Nude Dancing

Posted in Police Power, Zoning
In its decision last week in Showtime Entertainment, LLC v. Town of Mendon, the Supreme Judicial Court (SJC) struck down a Town of Mendon bylaw banning alcohol at “adult entertainment businesses.”  This is the latest case to grapple with the tension that often arises between a municipality’s exercise of its police powers and citizens’ exercise of their First Amendment rights.  While the result of the… Continue Reading

Appeals Court Panel Refuses To Narrow Declaratory Judgment Remedy For Zoning Disputes

Posted in Special Permits, Zoning
In a recent “unpublished” decision in Cohen v. City of Somerville (pdf), an Appeals Court panel confirmed that M.G.L. c. 240, § 14A – which allows a landowner to obtain a judicial declaration of the extent to which a zoning regulation applies to a proposed use of land – remains available even after the landowner has “engaged the administrative process” by applying for and being denied… Continue Reading

SJC Confirms That Zoning And Subdivision Control Are Two Different Animals

Posted in Nonconforming Use, Subdivision Control, Variances, Zoning
Last week the Supreme Judicial Court (SJC) issued its much-anticipated decision in Palitz v. Zoning Board of Appeals of Tisbury.  The fact that the high court took this appeal directly from the Land Court (bypassing the Appeals Court) caused some to wonder whether a dramatic change in the law on the relationship between zoning and subdivision control – especially with… Continue Reading

No Deference for Unreasonable Interpretation of Zoning Bylaw

Posted in Zoning
In its recent rescript opinion in Pelullo v. Croft, the Appeals Court affirmed a Land Court decision that overturned a building inspector’s interpretation of an undefined term in the Natick Zoning Bylaw.  The Appeals Court found that the building inspector’s interpretation was unreasonable and therefore not entitled to deference. At issue was the meaning of the undefined term “lot… Continue Reading

Fully Conforming Structure Not Tainted By Nonconforming Use

Posted in Nonconforming Use, Zoning
In a case of first impression, the Appeals Court recently ruled that a dimensionally conforming structure used for a nonconforming use can’t be considered a nonconforming structure under M.G. L. c. 40A, § 6 (Section 6), first paragraph.  The case is Welch-Philippino v. Zoning Board of Appeals of Newburyport (pdf). Under Section 6, the alteration or extension of a pre-existing nonconforming commercial structure triggers the need for… Continue Reading

Constructive Notice Of Building Permit Triggers 30-Day Appeal Period

Posted in Zoning
Last week the Appeals Court decided Miles-Matthias v. Zoning Board of Appeals of Seekonk (pdf), the latest opinion to address the 30-day window under M.G.L. c. 40A, § 15 for appealing the issuance of a building permit. In Miles-Matthias, the plaintiffs were aware that the defendants planned to build three single-family homes that would share a common driveway.  The plaintiffs… Continue Reading

Motive For Torching Of Spooner Road House Still A Mystery

Posted in Miscellaneous, Nonconforming Use, Zoning
For three years we’ve been following the saga of 81 Spooner Road, the Brookline property at the center of a contentious zoning dispute and, more recently, an arson investigation.  See our original post here, and our follow-ups here, here and here.  Now, a trio of Northeastern University journalism students under the supervision of their professor – former Boston Globe Spotlight Team editor… Continue Reading

Under The Hood Of The Land Use Reform Bill, Part 2: Zoning Freezes And The Plan Formerly Known As ANR

Posted in Legislation, Subdivision Control, Zoning
In our continuing look at the Legislature’s proposed land use reform bill, “An Act Promoting the Planning and Development of Sustainable Communities” (the Act), we turn to the subject of zoning freezes and Approval Not Required (ANR) plans.  The Act proposes significant changes to existing law governing the zoning freezes triggered by building permits, special permits, and subdivisions.  These changes are in Sections 6-12 of the Act… Continue Reading

Under The Hood Of The Land Use Reform Bill, Part 1: Special Permits

Posted in Legislation, Special Permits, Zoning
Today we begin our detailed examination of the far-reaching land use reform bill pending before the Legislature.  The title of this bill is “An Act Promoting the Planning and Development of Sustainable Communities”; it’s also known as House Bill H.1859.  I’ll refer to it as the “Act.”  The Act is currently pending before the Joint Committee on Municipalities and Regional Government.  As… Continue Reading

Merger By Acquisition: Grandfathered Status Can Be Lost

Posted in Nonconforming Use, Zoning
In a decision that re-affirms its 2001 ruling in Preston v. Board of Appeals of Hull, the Appeals Court last week held that the grandfathered status of a lawful pre-existing nonconforming lot is not perpetual, and can be lost if the lot later comes into common ownership with adjoining land.  In such circumstances, the adjoining lots merge to the extent necessary to eliminate… Continue Reading

Appeals Court Panel Finds Standing To Challenge Amended Variance

Posted in Standing, Variances, Zoning
In an “unpublished” decision in Lortie v. Zoning Board of Appeals of Westport, an Appeals Court panel last month reversed a Superior Court decision that had dismissed, on summary judgment, the plaintiff abutters’ appeal of an amendment to a previously-issued variance.  The original variance allowed the defendant developer to demolish 11 apartments and replace them with 11 condominium units.  The plaintiffs didn’t appeal the… Continue Reading

House In Spooner Road Case Goes Up In Smoke

Posted in Nonconforming Use, Standing, Zoning
The Brookline house at the center of a zoning controversy that resulted in an important 2010 Appeals Court decision (pdf) on nonconforming uses, “infectious invalidity” and standing, which in another important decision (pdf) was partiallly reversed by the Supreme Judicial Court, has been destroyed by fire.  Our prior posts on the case are here and here.  As reported by the Brookline… Continue Reading

Regis College Pulls Plug On “Educational” Senior Housing

Posted in Zoning
In May 2012 we reported on Regis College’s effort to shoehorn into the Dover Amendment an eight-building, 766,000 square-foot residential facility for senior citizens.  See our prior post here.  Having lost in the Land Court, Regis filed a further appeal, and the Supreme Judicial Court (SJC) took the case on direct appellate review.  In Regis College v. Town of Weston, the… Continue Reading

SJC Upholds Exercise Of Variance Past One-Year Limit

Posted in Zoning
To be effective, a variance granted under M.G. L. c. 40A, § 10 must be recorded and exercised within one year of issuance.  In its 2009 decision in Cornell v. Board of Appeals of Dracut, the Supreme Judicial Court (SJC) left open the question of whether substantial reliance could validate an otherwise lapsed variance.  In its decision earlier this month in Grady v.… Continue Reading

Full Text of Massachusetts Land Use Reform Bill

Posted in Affordable Housing, Legislation, Policy, Subdivision Control, Zoning
Here’s the full text of Massachusetts House Bill H.1859, entitled “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and Regional Government.  I’ll be digging into this jam-packed bill over the next few weeks and posting my thoughts on some of its key provisions.  I invite our regular MLUM readers and others… Continue Reading

ALERT: Near End Of Session, Mass. Legislators Pushing Complex Bill That Would Change Zoning And Land Use Law As We Know It

Posted in Legislation, Policy, Subdivision Control, Zoning
A summary of what this bill would do is here.  A few things jump right out: (1) the bill’s title, “An Act Promoting the Planning and Development of Sustainable Communities,” gives me the willies; (2) sayonara, ANR plans; (3) allows town meeting to change zoning bylaws by a simple majority, promoting instability in the law; (4) authorizes impact fees so municipalities can… Continue Reading

SJC Decision May Result In Haircut For Broker Who Misrepresented Zoning to Salon Owner

Posted in Miscellaneous, Purchase and Sale Agreement, Zoning
The Supreme Judicial Court (SJC) yesterday issued its decision in the closely-watched case of DeWolfe v. Hingham Centre, Ltd.  The SJC has concluded that a broker can be liable for a written misrepresentation regarding zoning, despite language in a commonly-used form purchase and sale agreement that some thought protected the broker from such liability.  We discussed the Appeals Court’s 2011 decision… Continue Reading

Time Not A Vaccine Against Infectious Invalidity

Posted in Nonconforming Use, Zoning
In an “unpublished decision” in Patenaude v. Zoning Board of Appeals of Dracut (pdf), an Appeals Court panel recently held that a lot rendered unbuildable by infectious invalidity was not “cured” by the passage of time – specifically, the running of the 10-year statute of repose under M.G.L. c. 40A, § 7. In 1974 the plaintiff, Patenaude, acquired a… Continue Reading

Zoning Out? Mass. Municipalities Grapple With Medical Marijuana

Posted in Miscellaneous, Policy, Zoning
On November 6, 2012, Massachusetts voters overwhelmingly approved a statewide ballot question legalizing marijuana use by patients with certain debilitating medical conditions such as cancer, AIDS, and multiple sclerosis.  Under the law, which takes effect next Tuesday, January 1, up to 35 nonprofit treatment centers – with at least one in each of the state’s 14 counties – will… Continue Reading

Be A Commercial Real Estate Guru

Posted in Environmental, Miscellaneous, Subdivision Control, Zoning
On Tuesday, October 30, 2012, my colleagues and follow MLUM authors Gareth Orsmond and Michael Parker will be presiding over the next session of MCLE’s five-week “BasicsPlus” series on Commercial Real Estate.  Gareth and Michael will be covering zoning, subdivision control, and environmental site assessments.  The session runs from 8:30 a.m. to 10:30 a.m. and takes place… Continue Reading

So What If It Looks, Walks and Quacks Like A Duck? AG’s Office Approves Brookline’s “Neighborhood Conservation District” Bylaws

Posted in Miscellaneous, Policy, Zoning
In November, 2011, the Town of Brookline approved two articles that would amend the Town’s general bylaws by adding provisions enabling the creation of “Neighborhood Conservation Districts” (NCDs), and establishing the Hancock Village NCD as the first NCD in Brookline.  See our prior post here.  After enumerating various ways in which the NCD bylaws are, in essence,… Continue Reading

Breaking: Mass. AG Approves Brookline’s Controversial “Neighborhood Conservation District” Bylaw

Posted in Miscellaneous, Zoning
In a decision (pdf) issued yesterday, the Massachusetts Attorney General’s Office has approved an expansive and unprecedented “Neighborhood Conservation District” bylaw (actually two related bylaws) adopted by the Town of Brookline at a November, 2011 Special Town Meeting.  For a discussion of the background to this controversy, see Johanna Schneider’s prior post here.  Johanna will follow up shortly with her analysis of this important decision,… Continue Reading