In a satisfying win for Rackemann, the Appeals Court today upheld a Land Court decision that inland lot owners hold no easement rights over our clients’ waterfront property.

Loiselle v. Hickey concerns a large subdivision in Dennis with a number of ways leading to Cape Cod Bay.  An earlier case between many of the same parties established that the inland lot owners had easement rights in all of those ways.  In Loiselle, many of the same the inland lot owners argued that they also had the right to use the private beach between those ways for recreational purposes.

The Appeals Court rejected that claim.  While the decision does not break new legal ground, it does serve as a helpful review of the basic legal principles governing waterfront land.


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Section 7 of Chapter 40A contains a statute of limitations for actions by individuals and municipalities to compel the removal, alteration, or relocation of any structure due to a zoning violation.  In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court considered when the statute of limitations commences based on a zoning violation arising from an ANR (Approval Not Required) subdivision of land.

The Goethals owned a large lot with a single family home and guesthouse.  In 2001, the local planning board endorsed the Goethals’ plan to subdivide that lot into two parcels and, for a time, the Goethals retained both Lots.   Their guesthouse was on Lot 1 and a single family home was on Lot 2.  Lot 1 is about 12,000 square feet, whereas zoning requires a minimum lot size of 25,000 square feet for a single family home.


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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 relationshipYou have a variance for that? between 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

In its 2012 decision in Cater v. Bednarek, the Supreme Judicial Court (SJC) upheld a Land Court decision that the plaintiffs’ easement had not been extinguished by abandonment or estoppel, even though it had not been cleared or used since its creation in 1899.  However, the SJC remanded the case to the Land Court to consider whether it had been too restrictive in

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 Regional Government.  As I noted in my posts of earlier this summer (one of which Jeff rightly described as “ominous“), H.1859 is a far-reaching bill which, if enacted in anything resembling its current form, will fundamentally transform the practice of land use law in the Commonwealth.

In response to my entreaty for a spirited dialogue on this important bill, Jeff has provided two documents to kick things off.  The first one is a section-by-section summary of what, exactly, the bill will do, with cross-references to existing laws (including many sections of Chapter 40A and Chapter 41) that will be changed.  That document is available here (pdf).  The second one is a narrative description of some the key provisions of the bill, including the thinking behind them.  That document is reproduced in its entirety immediately below.  I’ll be offering my thoughts on some of these provisions in the coming weeks, and I encourage our readers to do the same.  Thanks again Jeff!

 

By Jeffrey R. Lacy, AICP

           

Amendments to Existing Statutes 

Adoption of Zoning: There is widespread dissatisfaction with the local application of Massachusetts land use laws; yet, any change in local zoning requires a two-thirds super-majority vote, thereby entrenching the status quo.  House 1859 improves the ability to respond to changing conditions by allowing communities the option to reduce the vote majority from two-thirds down anywhere to a simple majority (the national norm).

Special Permits: A conditional use permit elsewhere in the U.S. is called a “special” permit in Massachusetts.  And they really are special here, requiring a super-majority vote to be approved and lasting no longer than two years.  It is not surprising developers dread them.  House 1859 reduces the default vote majority to approve from 3/3, 4/5, or 5/7, depending on size of board, down to a simple majority regardless of size of board.  It also extends the duration of a special permit to a minimum of three years instead of the current maximum of two years, and establishes a clear lapse and extension process.

• Building Permits: House 1859 extends the maximum zoning life of a building permit from 6 months to two years before construction must begin.  This better reflects today’s construction schedules, affording builders more breathing room so that details, such as financing, may be attended to prior to actual construction.

• Vested Rights: Securing the rights to proceed with development under a building or special permit is now extremely difficult, but almost effortless with a preliminary subdivision plan.  The paradox is that building and special permits are end-stage permits requiring significant investment by the applicant; whereas a preliminary subdivision plan is exactly that – preliminary.  House 1859 standardizes the vesting provisions for building and special permits, as well as definitive subdivision plans.  In so doing it becomes much easier to vest rights for building and special permits applied for prior to the first notice of a public hearing on a zoning change, a significant liberalization for those applicants.

Approval Not Required (ANR) lot divisions along existing roads (discussed below), if regulated as minor subdivisions, actually enjoy a greater degree of vested rights protections, and over a longer duration, than they otherwise do today.

• Site Plan Review: Site plan review (SPR) is widely used across the Commonwealth despite no mention in statute.  Because there is no guidance some local SPR processes have begun to more resemble discretionary special permits.  House 1859 introduces statewide standards for site plan review, including: a 95-day time frame (shorter than many local provisions today); minimum 2-year duration after approval (longer than many local provisions today); limits on ability to condition (must relate to defined standards/criteria listed in the by-law); limits on imposition on off-site mitigation; and an appeal process based upon the existing record (certiorari).

• Serial Permits: House 1859 fosters more expeditious permitting by requiring consolidation of SPR within the timelines of the special permit process when both are required, and administration by a single local board (separate, non-concurrent, time-consuming reviews by different boards are commonplace today).

• Zoning Variances: The state’s current eligibility criteria is so strict that many cities and towns grant almost no zoning variances; but others ignore the statute and grant them willy-nilly subject to no standards.  There is no middle ground, and at both extremes it’s a broken statute. House 1859 rewrites the current variance statute in its entirety, expanding landowner eligibility to apply for a lawful variance; setting reasonable procedures and criteria; extending the effective duration of a variance from one to two years before lapse if not used; and increasing the permissible extension interval from 6 months to one year.  A workable zoning variance statute provides the intended flexibility to municipalities and property owners.

Development Impact Fees: Development in Massachusetts must produce no impacts because it is one of the few states where assessing an impact fee of a developer is not common practice.  It is no wonder cities and towns push back against many projects when they can’t recoup some of the costs.  The impact fee section adds predictability for big projects; instead of long negotiations over what exactions or mitigation are required in exchange for permit approval, impact fees are quickly calculated up front by formula (prompt).   Applicable fees are known in advance and can be built into a project’s pro forma (predictable).  Moreover, they will reduce local government opposition to development projects.


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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

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

Gosnold is the Massachusetts town that comprises Cuttyhunk and the other Elizabeth Islands, which stretch southwest from Woods Hole (Falmouth), between Buzzard’s Bay and Vineyard Sound.  Along with Martha’s Vineyard, Gosnold is in Dukes County.  Interestingly, except for Cuttyhunk and Penikese, the Elizabeth Islands are privately owned by the Forbes family.

unfrozenIn its recent decision in Ridgeley Management