By Gordon Orloff on Posted in Eminent Domain,Environmental,Regulatory Takings,Wetlands,ZoningWhen the Conservation Commission refused to permit the construction of a house on her residential lot in a Falmouth subdivision, Janice Smyth decided to take action and sought damages for a regulatory taking of her land under the U.S. Constitution and the Massachusetts Declaration of Rights. She was successful initially, recovering damages of $640,000. But,… Continue Reading
By Gordon Orloff on Posted in Police Power,Special Permits,ZoningA Massachusetts regulation stating that no two digital billboards may be erected within 1,000 feet of one another set up a race between competing billboard companies that owned abutting land. Although the final approval for a billboard must come from the Commonwealth’s Department of Transportation Office of Outdoor Advertising (OOA), an applicant must first receive… Continue Reading
By Gordon Orloff on Posted in Nonconforming Use,Police Power,Subdivision Control,ZoningSection 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… Continue Reading
By Michael Parker on Posted in Affordable Housing,ZoningGovernor Baker recently announced a proposal to change state zoning laws to make it easier to build more housing units state-wide. The Governor’s goal is to add 135,000 housing units by 2025. To do so, he has introduced legislation that will allow municipalities to adopt certain changes to local zoning by a majority vote, instead of… Continue Reading
By Jonathan Hayden on Posted in ZoningIf your plans for the upcoming weekend include building a heliport in your backyard, I have terrible news for you: the Supreme Judicial Court has ruled that, pursuant to their zoning powers, municipalities may prevent construction of private, non-commercial heliports. The decision in Roma, III, Ltd. v. Board of Appeals of Rockport,[1] ends a dispute… Continue Reading
By Richard Gallogly on Posted in ZoningWith a shortage of vacant land available for construction of new school buildings, municipalities are frequently pressured to convert parkland to school uses. More often than not, such conversions implicate Article 97. Article 97 of the Amendments to the Massachusetts Constitution “provides that land and easements taken or acquired for conservation purposes shall not be… Continue Reading
By Gordon Orloff on Posted in Nonconforming Use,ZoningToday the Appeals Court decided Gund v. Planning Board of Cambridge. That case concerns the former location of the Middlesex Superior Court, an asbestos-filled, anomalous sky-scraper near Lechmere in Cambridge. The building, which does not comply with zoning, has been sold to a developer. At issue was whether the court house is a preexisting, nonconforming… Continue Reading
By Gordon Orloff on Posted in Miscellaneous,ZoningOn June 29, 2017, the First Circuit Court of Appeals decided Steinmetz v. Coyle Caron, Inc. That case, which has its roots in the mundane desire of a couple to build a new home on their land in Cohasset, gave rise to some interesting and complicated constitutional questions. The Steinmetzes needed approval from the local… Continue Reading
By Michael Parker on Posted in ZoningThe 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
By Gordon Orloff on Posted in Variances,Waterfront Property,ZoningYesterday the Appeals Court upheld a variance decision by our former colleague, Land Court Justice Robert Foster. In that case, Furlong v. Zoning Board of Appeals of Salem, Furlong challenged a variance granted to the abutting Brewer Hawthorne Cove Marina in Salem. The variance permitted the Marina to construct a new building outside of the… Continue Reading
By Richard Gallogly on Posted in Nonconforming Use,ZoningIn a decision that brought cheers from thirsty beachgoers, the Appeals Court in Almeida v. Arruda, 89 Mass. App. Ct. 241 (2016) affirmed a lower court finding that the sale of beer and wine at a pre-existing, nonconforming convenience store was neither a substantial change in use nor a detriment to the neighborhood. Pursuant to G.L.c.… Continue Reading
By Gordon Orloff on Posted in Standing,ZoningOn 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
By Donald Pinto on Posted in Police Power,ZoningIn 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
By Donald Pinto on Posted in Special Permits,ZoningIn 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
By Donald Pinto on Posted in Nonconforming Use,Subdivision Control,Variances,ZoningLast 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
By Richard Gallogly on Posted in ZoningIn 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
By Richard Gallogly on Posted in Nonconforming Use,ZoningIn 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
By Richard Gallogly on Posted in Nonconforming Use,Variances,ZoningIn 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
By Donald Pinto on Posted in Affordable Housing,ZoningOn 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
By Richard Gallogly on Posted in ZoningLast 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
By Donald Pinto on Posted in Miscellaneous,Nonconforming Use,ZoningFor 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
By Richard Gallogly on Posted in Legislation,Subdivision Control,ZoningIn 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
By Gordon Orloff on Posted in Legislation,Special Permits,ZoningToday 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
By Richard Gallogly on Posted in Nonconforming Use,ZoningIn 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
