In a recent “unpublished” decision in Cohen v. City of Somerville (pdf), an Appeals Court panel confirmed that M.G.L. c. 240, § 14A – which allows a landowner to obtain a judicial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 a building permit. The defendant city acknowledged the 1983 case of Banquer Realty Co. v. Acting Building Commissioner of Boston (pdf), in which the Supreme Judicial Court (SJC) stated this principle, but argued that Banquer Realty Co. had been narrowed by the SJC’s later decision in Whitinsville Retirement Society, Inc. v. Northbridge (pdf). The panel disagreed, noting that Whitinsville denied relief under the statute because the plaintiff there was seeking a declaration of the extent to which a special permit – not a zoning bylaw or ordinance – applied to the plaintiff’s land. Stating, “we continue to follow Banquer Realty Co. as clarified by Whitinsville Retirement Soc., Inc.,” the panel reversed the trial court’s dismissal of the plaintiffs’ M.G.L. c. 240, § 14A claim. The remaining appellate claim concerned the trial court’s grant of summary judgment to the city on the issue of whether the plaintiffs’ proposed use of their land as the site of an Ocean State Job Lot store amounted to a “change in use” from the previous supermarket use. On this claim, too, the panel reversed, finding that the plaintiffs’ evidence – while thin – was enough to create a disputed issue of material fact, thereby precluding summary judgment.
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