Articles Posted in Zoning, Planning & Land Use

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Plaintiff was the owner and occupant of certain property. Defendant, the owner of a parcel of land abutting Plaintiff’s property, planned to build a residence on the property and applied for a building permit. The town building commissioner determined that the property had grandfathered status as a nonconforming lot. Plaintiff’s wife applied for a hearing. The zoning board of appeals of Westminster upheld the building commissioner’s determination. Plaintiff, as the personal representative of his wife’s estate, commenced this action claiming injury to his private easement right. The superior court dismissed Plaintiff’s complaint for lack of standing, concluding that Plaintiff failed to demonstrate that the construction proposed by Defendant would cause him any injury within the scope and concern of the Zoning Act. The appeals court reversed and concluded that Defendant’s property did not enjoy grandfathered status under the Westminster zoning by-law. The Supreme Judicial Court granted further appellate review and affirmed the judgment of the superior court, holding that Plaintiff’s injuries to his private easement rights were not within the scope and concern of the Zoning Act. View "Picard v. Zoning Bd. of Appeals of Westminster" on Justia Law

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Department of Environmental Protection (DEP) regulations require that those deemed to be liable after a spill of hazardous materials within a specified radius of a public water supply undertake cleanup and monitoring to ensure the spill does not pose a danger to that water supply, 310 Code Mass. Regs. 40.0801, 40.0810, 40.0993(3)(a), 40.1030(2)(e). A 2007 modification exempts "oil" from some requirements when specific conditions are met, 310 Code Mass. Regs. 40.0924(2)(b)(3)(a). Peterborough owns a now-vacant Athol property, within a protection area, where it operated a gasoline station for more than 10 years. In 1994, a release of leaded gasoline from a subterranean gasoline storage tank was detected in soil on the site. DEP required Peterborough to undertake supervised cleanup and monitoring activities. In 2008, after the oil exemption was established, Peterborough submitted a revised plan, stating that further remediation was not required because the entirety of the spill fell within the exemption's definition of "oil." DEP responded that the meaning of "oil" in the exemption does not include gasoline additives such as lead, but refers only to petroleum hydrocarbons naturally occurring in oils, so that a spill of leaded gasoline could not be completely excluded from further remediation. The trial court, on summary judgment, and the Massachusetts Supreme Judicial Court, upheld the DEP interpretation of the regulation as reasonable. View "Peterborough Oil Co., LLC v. Dep't of Envtl. Prot." on Justia Law

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Plaintiffs, who owned property abutting a proposed development, filed an appeal in the Housing Court from the decision of the planning board of Greenfield granting a special permit in favor of the developer to construct the project. The appeals court held that Mass. Gen. Laws ch. 185, 3A deprived the Housing Court of subject matter jurisdiction to hear major development permit appeals. At issue before the Supreme Judicial Court was whether, by enacting Mass. Gen. Laws ch. 185, 3A, the legislature intended to grant exclusive subject matter jurisdiction to the permit session of the Land Court and to the Superior Court to hear a certain subset of major development permit appeals. The Supreme Judicial Court remanded the case to the Housing Court, holding (1) the legislature intended that major development permit appeals should be adjudicated only in the permit session of the Land Court or in the Superior court; and (2) in this case, where the permit appeal was timely filed in the Housing Court, the appropriate remedy is to transfer the case to a court with jurisdiction rather than dismiss the case for lack of subject matter jurisdiction. View "Skawski v. Greenfield Investors Prop. Dev. LLC" on Justia Law

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At issue in this appeal was an ordinance imposing restrictions on the right of sex offenders to reside in the City of Lynn. Plaintiffs, a class of sex offenders subject to the ordinance, challenged the ordinance's constitutionality. A superior court judge invalidated the ordinance under the Home Rule Amendment. Specifically, the judge determined that the ordinance was inconsistent with the Sex Offender Registry Law and the law providing for the care, treatment, and rehabilitation of sexually dangerous persons. The Supreme Judicial Court affirmed, holding that the ordinance was inconsistent with the comprehensive statutory scheme governing the oversight of convicted sex offenders and, therefore, was inconsistent and invalid under the home rule provisions. View "Doe v. City of Lynn" on Justia Law

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The owner of a tract of land divided the land into three lots, such that a single dwelling would stand on each lot, in conformance with the the subdivision control law’s existing structures exemption, Mass. Gen. Laws ch. 41, 81L. The new lot at 87 Main Street did not conform to the town’s zoning bylaws and rendered the dwelling located thereon nonconforming. The zoning board of appeals granted a variance to make the lot and dwelling lawful. Plaintiff later acquired 87 Main Street and sought a permit to tear down the existing dwelling and construct a new dwelling. The zoning board denied the permit on zoning grounds. Plaintiff appealed, arguing that the lot was entitled to grandfather protection under the Zoning Act because the dwelling predated the town’s zoning bylaw and the lot was created pursuant to section 81L. The Land Court determined that Plaintiff was required to obtain a variance. The Supreme Judicial Court affirmed, holding that because the new nonconformities arising from the creation of 87 Main Street were rendered lawful by the original variance, the proposed reconstruction of the dwelling, which would have expanded those nonconformities, required a new or amended variance from the town’s zoning bylaw. View "Palitz v. Zoning Bd. of Appeals" on Justia Law

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Plaintiff was the owner of two adjacent unimproved lots in the town of Scituate. The lots were located in a flood plain and watershed protection district (FPWP district). Plaintiff applied for special permits from the Town’s planning board to construct residential dwellings on the lots. The Board denied the applications, concluding that Plaintiff had not demonstrated that her lots were not “subject to flooding” within the meaning of the applicable zoning bylaw. A land court judge affirmed the Board’s decision. The appeals court reversed. The Supreme Judicial Court reversed, holding that the appeals court adopted an incorrect definition of the phrase “subject to flooding,” and the land court judge adopted the correct meaning of the phrase. View "Doherty v. Planning Bd. of Scituate" on Justia Law

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The Stefanidises divided a parcel into Lot A and Lot B. The Stefanidses converted the building on Lot A into three condominium units and applied for a variance to built a two-family house on Lot B. The variance was approved, but the Stefanidses failed to record the variance. Pursuant to a subsequently granted building permit, the Stefanidses began to clear and prepare the site. More than one year after the variance was granted, Plaintiff, who lived in one of the units on Lot A, requested that the building commission revoke the building permit on the ground that the Stefanidses failed to record the variance within one year. The commissioner denied the request, and the zoning board of appeals upheld the commissioner's denial. The land court affirmed, determining that the variance had not lapsed because the Stefanidses had taken substantial steps in reliance upon it. The Supreme Court affirmed, holding that, on the facts of this case, the variance had become effective and had not lapsed. View "Grady v. Zoning Bd. of Appeals of Peabody" on Justia Law

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After falling down a staircase at a bar and restaurant in Boston, a college student died. Plaintiffs, the student's parents, filed this action against the restaurant and trustees of a trust that owned the land and buildings within which the restaurant operated. The complaint alleged claims against the restaurant and trustees for wrongful death and for violation of Mass. Gen. Laws ch. 93A. Plaintiffs based their chapter 93A claim on Defendants' alleged building code violations, which Plaintiffs claimed constituted unfair or deceptive conduct. A jury returned a verdict for Defendants on Plaintiffs' wrongful death claims, and the trial judge found in favor of Plaintiffs on the chapter 93A claim, finding that the student fell and suffered a fatal injury because the stairs were in an unsafe, defective condition having been rebuilt without necessary building permits. The Supreme Court vacated the judgment, holding that Plaintiffs were entitled to recover on their chapter 93A claim but that the judge erred in her calculation and award of damages. Remanded. View "Klairmont v. Gainsboro Rest., Inc." on Justia Law

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The Fall River zoning board of appeals (Board) granted the C.B.L. Realty Trust (Trust) a variance for certain real property owned by it. The Fall River building inspector subsequently issued a notice of violation, ordering the trust to cease and desist from violating a Fall River zoning ordinance that concerned execution of the ordinance. The Board reversed the building inspector's order. Plaintiff, E & J Properties, LLC, commenced this action in the Land Court challenging the Board's decision. The Land Court affirmed the Board's decision. The Supreme Court affirmed, holding (1) the Board properly considered whether the city ordinance had been violated, as alleged in the notice of violation, on account of the Trust's failure to comply with the Board's variance decision within some specified "reasonable time"; and (2) the Board's decision that the variance did not require demolition within a particular time period was both legally tenable and reasonable. View "E & J Props., LLC v. Medas" on Justia Law

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An LLC filed an application for a comprehensive permit with the zoning board of appeals to build five three-story buildings with 150 rental apartments. The board denied the application. On appeal, the Housing Appeals Committee (HAC) vacated the board's decision and directed the board to issue a comprehensive permit. The superior court affirmed. The Supreme Court affirmed, holding (1) the HAC did not err in calculating the regional need for low and moderate income housing; (2) substantial evidence supported the HAC's determination that the fire safety concern outweighed the regional need for low and moderate income housing; (3) the HAC did not err in concluding that the town need not acquire a ladder fire truck if the project were built and that other claims of adverse fiscal impact arising from the project may not be considered in evaluating whether the denial of project approval is consistent with local needs; (4) substantial evidence supported the HAC's determination that the development would not adequately protect wetlands; and (5) the HAC did not err in ordering the board to refund the fee it assessed the LLC to pay for the service's of the board's legal counsel. View "Zoning Bd. of Appeals of Sunderland v. Sugarbush Meadow, LLC" on Justia Law