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PHILLIPS & ANGLEY WIN SUMMARY JUDGMENT AT THE MASSACHUSETTS LAND COURT ANNULLING ZONING BOARD DECISION THAT HALTED LANDOWNER'S HELICOPTER USE

On October 19, 2016, the Massachusetts Land Court issued a Memorandum and Order on Cross Motions for Summary Judgment in Roma, III, Ltd. v. Town of Rockport Board of Appeals, Land Court Case No. 15 MISC 000074 (RBF), granting P & A's client, the plaintiff, Roma, III, Ltd.'s Motion for Summary Judgment, annulling a decision of the Town of Rockport Board of Appeals.

In its decision, the Land Court agreed with Roma and found that the Massachusetts Appeals Court's recent decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016) (please see my previous blog post A New Era for Massachusetts Aeronautics for a discussion of that case), was controlling and directly applicable, stating:

"[t]his case is indistinguishable from Hanlon. As in Hanlon, the Town has a restrictive Bylaw that exempts all uses that are not authorized for the district in which it is located. The Bylaw makes no mention of non- commercial [Private Restricted Landing Areas]. The Town did not seek approval of its restrictive Bylaw from the Division. The Building Inspector issued cease and desist orders in both cases, here, enjoining Mr. Roma from landing his personal helicopter in the property, which the Board upheld. As such, there is no question that the holding in Hanlon is applicable to the present action."

Accordingly, the Court held that "the Bylaw's implicit ban on the use of private aircrafts and non-commercial [Private Restricted Landing Areas]" is not valid since the bylaw "has not been approved by the [Massachusetts Department of Transportation and Aeronautics Division]." See G.L. c. 90, ยง 39B. The Court rested its decision solely on this statutory preemption issue, and did not reach the questions of whether the Rockport Zoning Bylaw's implied ban on the use of helicopter access exceeded the Rockport's statutory zoning authority, police power, or violated the Due Process and Equal Protection provisions of the federal and Massachusetts Constitutions, as alternatively plead by Roma. The Town of Rockport is expected to appeal the decision.

Roma's motion was argued by Nicholas P. Shapiro, Esq., of Phillips & Angley, before Judge Foster on September 30, 2016.

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