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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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In an “unpublished” decision in Lortie v. Zoning Board of Appeals of Westport, an Appeals Court panel last month reversed a Superior Court decision that had dismissed, on summary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

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

SJC Seeks Friendly Advice On Ability Of MERS To Foreclose

Posted in Foreclosure, Standing
The Supreme Judicial Court (SJC) is soliciting amicus briefs in Galiastro v. Mortgage Electronic Registration System, Inc., an appeal that presents the issue of whether the defendant, MERS, has standing to foreclose in its own right as the named mortgagee in a mortgage, when it does not have any ownership interest or rights in the underlying promissory note.  The SJC will also… Continue Reading

Give Your Sweetheart The Gift Of Knowledge, Courtesy Of The BBA’s Land Use & Development Committee

Posted in Miscellaneous, Standing, Zoning
On Valentine’s Day, the Boston Bar Association’s Land Use & Development Committee, co-chaired by my Rackemann colleague and fellow blogger Johanna Schneider, will host a lunch meeting to discuss recent developments in the law of standing.  The meeting will feature guest speakers Adam Cederbaum of the City of Boston’s Office of Corporation Counsel and noted land use attorney Dan… 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

Breaking: SJC Issues Important Affordable Housing Decision

Posted in Affordable Housing, Zoning
The Supreme Judicial Court (SJC) today issued its decision in Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee.  This decision affirms a decision of the Housing Appeals Committee (HAC) that overturned the Lunenburg Zoning Board of Appeals’ denial of a comprehensive permit for a 146-unit condominium project.  Among the topics the SJC addresses are whether non-subsidized affordable housing counts toward… Continue Reading

Gosnold’s Gambit Thaws Subdivision Freezes

Posted in Subdivision Control, Zoning
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. In its recent decision in Ridgeley Management Corp.… 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

Innovation in Allston: Nation’s First Green District Takes Root

Posted in Boston Development, Environmental, Landlord-Tenant, Zoning
In 2007, Boston was the first city in the nation to adopt Green Building provisions, known as Article 37 (pdf).  Those provisions require reduced emissions from privately-owned buildings, and require all buildings over 50,000 square feet to comply with LEED certification standards.  Now, Boston’s Allston neighborhood is home to the nation’s first Green District.  The 500 sustainable rental units are spread across seven distinct… Continue Reading

Cambridge Rezoning Survives Spot Zoning Challenge

Posted in Zoning
In Farrington v. City of Cambridge (pdf), an “unpublished decision” issued under the court’s Rule 1:28, an Appeals Court panel recently affirmed a Land Court decision upholding a rezoning by the City of Cambridge.  The rezoning included a zoning map revision and changes to various dimensional requirements, all intended to enable Lesley University to move the newly-acquired Art Institute of Boston (AIB) to a Lesley-owned site in Cambridge.  In… 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

SJC Remands Important Dover Amendment Case

Posted in Miscellaneous, Zoning
The Supreme Judicial Court (SJC) today issued a decision in Regis College v. Town of Weston (pdf), a case that (someday) will add to the existing body of Massachusetts law under the so-called Dover Amendment – the provision in the state’s Zoning Act that exempts qualifying educational and religious uses from most local zoning regulations. In 2005, Regis College, located in Weston, Massachusetts, proposed “Regis East,” an eight-building, 766,000 square-foot residential… Continue Reading

Appeals Court Panel Affirms Ruling That City Must Issue Special Permit

Posted in Special Permits
In a recent “unpublished decision” in A.L. Prime Energy Consultant, Inc. v. City Council of Woburn (pdf), a panel of the Appeals Court affirmed a Land Court ruling that the Woburn City Council’s denial of the plaintiff’s application for a special permit to build a gas station and convenience store was “unreasonable, whimsical, capricious or arbitrary.”  In denying the permit, the council had cited potential traffic tie-ups and… Continue Reading

SJC Tweaks Appeals Court’s Standing Analysis

Posted in Standing, Zoning
In November, 2010, we reported on the Appeals Court’s decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf).  The court found that the defendant’s effort to rebut the plaintiff abutter’s presumption of standing – an effort that was based solely on the abutter’s deposition testimony, in which he offered his own unsupported opinions that he had been harmed – was not… Continue Reading

Appeals Court Panel Reverses Approval of Change in Nonconforming Use

Posted in Nonconforming Use, Zoning
In an “unpublished” decision issued last week in Hambley v. Dalzell (pdf), a panel of the Appeals Court reversed a Superior Court decision that upheld a zoning board’s approval of a change in a lawful nonconforming use.  Rejecting the Superior Court’s deferential analysis, the panel ruled that a 1988 change in the use of the property to a machine shop was not “substantially similar”… Continue Reading

The SJC’s Southbridge Standing Case, Take Two

Posted in Miscellaneous, Solid Waste, Standing, Zoning
On February 22, 2012, the Supreme Judicial Court (SJC) re-issued its decision in Board of Health of Sturbridge v. Board of Health of Southbridge (pdf).  The appellants had mailed their notice of appeal to the lower court on the last day for appeal, but it arrived and was docketed four days later.  The SJC initially released its decision in January, but withdrew it two… Continue Reading