Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Category Archives: Zoning

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Sign Envy in Boston

Posted in Zoning
The recent saving of the iconic Citgo sign in Kenmore Square is being universally hailed as the saving of a true Boston landmark.  Had it been taken down, thousands of people would be aimlessly wandering the city trying to find Fenway Park on game days.  The publicity surrounding the saving of the Citgo sign has… Continue Reading

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

City of Boston Updates its Inclusionary Development Policy

Posted in Affordable Housing, Boston Development, Policy, Zoning
In December 2015, Boston Mayor Martin J. Walsh signed an Executive Order Relative to Inclusionary Development updating the city’s Inclusionary Development Policy (IDP), which has been in place since 2000. The IDP applies to residential developments with ten or more units that will either be developed on property owned by the City of Boston or… 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In a recent “unpublished” decision in Cohen v. City of Somerville (pdf), an Appeals Court panel confirmed that M.G.L. c. 240, § 14A – which allows a landowner to obtain a judicial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

Appeals Court Fixes One Anomaly In The Tricky Law Of Nonconforming Structures

Posted in Nonconforming Use, Variances, Zoning
In a previous post we discussed Gale v. Zoning Board of Appeals of Gloucester (pdf) and the “difficult and infelicitous” language of the first two sentences of M.G.L. c. 40A, § 6 governing nonconforming uses and structures.  In Gale, the Appeals Court upheld the grant of a special permit authorizing the reconstruction of a single-family house that increased… Continue Reading

Safe Harbor or Cruel Mirage? BBA Program Looks at Chapter 40B’s Municipal Planning Defense

Posted in Affordable Housing, Zoning
On April 25, 2014, the Boston Bar Association will host a lunch program entitled “The (Slow) Rise and (Sudden) Fall of the Chapter 40B Municipal Planning Defense.”  This program is jointly sponsored by the BBA’s Land Use and Development Committee (of which MLUM author Johanna Schneider is co-chair) and its Affordable Housing Committee.  The guest speaker… 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

Co-Drafter Of Colossal Land Use Reform Bill Touts Its Benefits

Posted in Legislation, Policy, Special Permits, Subdivision Control, Zoning
Jeffrey R. Lacy, AICP, is a Regional Planner with the Massachusetts Department of Conservation and Recreation’s Division of Water Supply Protection.  More importantly for present purposes, Jeff is also a co-drafter of House Bill No. 1859 (pdf), “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and… 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

Pilgrim Nuclear Power Plant: Local Zoning Board Causes A Reaction

Posted in Environmental, Renewable Energy, Special Permits, Zoning
Proponents of a smaller federal government probably didn’t have this in mind – a local zoning board deciding the fate of a nuclear power plant.  That’s what just happened in Plymouth, where the Zoning Board of Appeals last week decided, in an appeal filed by 18 residents, to uphold a building inspector’s decision that the Pilgrim Nuclear Power… Continue Reading