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An Alternative Avenue for Adjudicating Zoning Questions: Declarations Under G.L. c. 240, §14A

On Behalf of | Nov 21, 2019 | Land Use And Zoning |

The Massachusetts Zoning Act sets forth a thorough process for those persons seeking or opposing zoning relief to have their grievances adjudicated. Usually, the first stop is at the local building inspector or zoning enforcement officer. If unsatisfied, an appeal is typically available to the zoning board of appeals. Finally, after “exhausting” this administrative process, a party may file an appeal to the Land Court or Superior Court. If the dispute has arisen from the issuance or denial of a building permit (or other zoning relief), the foregoing process is obligatory (with a few rare exceptions). This obligation is referred to as the duty to “exhaust” administrative remedies.

However, there is another statutory avenue for certain classes of parties to have the Land Court (exclusively) render a declaratory judgment regarding the validity and/or application of a zoning bylaw provision to a specific property. General Laws Chapter 240, Section 14A specifically provides landowners with a cause of action to determine “‘the validity of . . . or . . . the extent to which any [zoning] ordinance, by-law or regulation affects‘ a proposed use of their property”. Banquer Realty Co. v. Acting Bldg. Comm’r, 389 Mass. 565, 570 (1983) (emphasis provided by case). “The primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it, particularly where there is no controversy and hence no basis for other declaratory relief.” Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292, 295 (2004), quoting Harrison v. Braintree, 355 Mass. 651, 654 (1969). “The plain purpose of the statute is to afford a procedure to quiet doubts springing from by-law restrictions without regard to whether prior to the bringing of a petition they had been liberalized or tightened. The owner who may be contemplating a large investment on his land is thus provided with a thoroughly sensible means of ensuring that he is safe in going ahead.” Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181, 185 (1968).

Practically speaking, then, a suit under c. 240, §14A is designed to allow the adjudication of the application of the zoning regulation to a property absent a formal dispute, i.e. absent a denial of a building permit or other zoning relief, or denial of a request to rescind a building permit. Allowing such an action is practical. It allows a party (usually the landowner) to get a declaration from the Land Court, binding on the local municipality, determining the validity or applicability of a zoning bylaw to a certain property. For example, suppose you inherent the old family farm and think you might like tear down, modernize and rebuild the old farmhouse. You think you can do so under the grandfathering provisions of local zoning bylaw, but the building inspector tells you at a site visit that she thinks you need a variance. A §14A lawsuit would provide a pathway to get a binding determination without have to go through the time consuming, costly, and uncertain process of securing zoning relief. Similarly, a developer might want to have the Land Court declare that it can use a complicated and obscure density bonus provision in the bylaw, in order to construct a large apartment building, before it closes on a multi-property deal. Again, c. 240, §14A is designed to provide an avenue for a practical and efficient determination.

Chapter 240, § 14A also provides an avenue of review for a neighbor concerned about the prospect of a new use or development on nearby land. One does not need to be the owner of the property at issue to bring and maintain a suit under c. 240, §14A. The statute “authorizes a petition by a landowner on whose land there is a direct effect of the zoning enactment through the permitted use of other land”. Harrison, supra. “Although the classic case involves a landowner seeking a determination regarding his own land, in Harrison, the court also deemed ‘appropriate a broad construction of c. 240, § 14A,’ and authorized a ‘petition [under c. 240, § 14A,] by a landowner on whose land there is a direct effect of the zoning enactment through the permitted use of other land.'” Hansen, supra. A neighboring land owner must overcome two, relatively low hurdles in order to maintain a suit under c. 240, §14A.

First, it must be shown that the “use” of the property at issue is not overly “theoretical”. Hansen, 61 Mass. App. Ct. at 296. That is, one cannot bring a §14A suit to determine whether a neighbor may undertake some hypothetical or unplanned project. One can often overcome this hurdle by showing that the landowner has created site plans depicting the use, received environmental permitting, received opinion letters from the town on the legality of the use, or similar indicia that a proposed use or structure is not speculative.

Second, the use being proposed must have a “direct effect” on the neighbor’s property. Harrison, supra. A “direct effect” is a less onerous standard than the “person aggrieved” requirement for a party to have standing under the Zoning Act. “We find no authority suggesting, let alone requiring, that the rigorous standard of ‘person aggrieved,’ used in cases arising under G. L. c. 40A, § 17, be applied to plaintiffs” in a G. L. c. 240, § 14A case; “it is sufficient for these plaintiffs to have established that they will suffer an adverse impact”. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 107 (2003). See also Hanna, supra (plaintiff “need not demonstrate that he will suffer an injury that is special and different from that experienced by the general community”).

Accordingly, in the right circumstances, G.L. c. 240, §14A provides an alternative avenue for having the Land Court make a binding determination regarding the validity or application of a zoning bylaw to a certain property. It can be an efficient way to resolve zoning questions, without resort to the more time consuming and unpredictable process of the Zoning Act. The attorneys at Phillips & Angley are well versed in G.L. c. 240, §14A, and zoning issues overall. Our attorneys can guide you through the process or permitting, appealing, and litigating zoning issues.

Written by Robert K. Hopkins, Esq.

Copyright (c) 2018 – 2019 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.



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