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Zoning Archives

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

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.

Application of General Laws Chapter 40A, Section 7 and the Two Limitation Periods for Zoning Enforcement to an Improperly Sited Structure.

Recently we were asked to address the situation where a landowner obtained a use special permit with a condition that the structure containing the use be built as located on a designated site plan, and that a final as-built plan be filed after completion of construction. A building permit issued for the structure, but without reference to the site plan or location of the structure. The structure was built and occupied. No final as-built plan was ever filed. More than 10 years passed. It was later determined that the structure was sited on the lot incorrectly. The landowner became concerned that the structure located on its property was not properly authorized and so was unlawful, rendering the property non-compliant with zoning.

Standing Gets Stickier: Murchison v. Zoning Bd. Of Appeals of Sherborn

We have written a number of posts over the years discussing the requirements for standing in zoning appeals in Massachusetts, see here, here, here, here, here, and here to start. On September 30, 2019, the Appeals Court decided to add another twist to this already complicated body of law.

Standing and Quasi-Municipal and Charitable Organizations, Part I of II: "Person Aggrieved" Status Requires a Relationship with Real Property

A few years ago, I posted a two-part review of the state of the law for standing under the Zoning Act. Standing refers to a claimant's legal right to bring a claim. Not every person has the right to bring every claim. As previously discussed, this principle is especially true and significant in zoning appeals brought by neighbors, abutting property owners, rather than by applicant property owners. While the decisional law has not substantially changed since my post from 2015, our office recently encountered a case that involved some interesting questions about standing under G. L. c. 40A:

A Case Study in Conditions to a Variance

Recently one of our clients was forced to confront a challenge to the operation of their dog kennel business, which had been operating lawfully in a residential zoning district pursuant to a use variance granted in 1973. The challenge was that the variance authorized the kennel business, but not the use of exterior play yards that allowed the dogs to socialize and come to the kennel for day care. The case required an exploration of the scope of conditions that attach to variances. Based upon the analysis that follows, our office successfully protected our clients' business.

Challenging Zoning Bylaws: Standing: Another Jurisdictional Consideration

This is the fourth in a series of posts on challenges to zoning bylaws and ordinances. Before reaching the merits of zoning challenges, one more jurisdictional issue should be considered: standing-also referred to in the case law as "harm", "injury" or "aggrievement". "'The question of standing is one of critical significance. "From an early day it has been an established principle in this Commonwealth that only persons who have themselves suffered, or who are in danger of suffering, legal harm can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.'"' Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1988), quoting Tax Equity Alliance v. Commissioner of Revenue, 423 Mass. 708, 715 (1996), ultimately quoting Doe v. The Governor, 381 Mass. 702, 705 (1980).

Phillips & Angley Successfully Defeats Summary Judgment in ZBA Failure to Send Notice of Remand Hearings to Party-In-Interest in Land Court

On February 13, 2017, the Land Court, Scheier, J., issued an Order Denying Plaintiffs' Motion for Summary Judgment in Heller v. Conner et al., Land Court Docket No. 15 MISC 0000481 (KFS) in which the court denied a motion for summary judgment against the Zoning Board of Appeals of the Town of Plymouth (the "Board"), and P&A's client, Kingstown Corporation ("Kingstown"). The order rejected the plaintiffs' claim that the failure to mail notice of a zoning hearing to a party-in-interest was a fatal flaw in the public hearing process prescribed by G. L. c. 40A § 11, where that party-in-interest is a plaintiff in the ongoing de novo appeal of the permitting issued through that process.

PHILLIPS & ANGLEY SUCCESSFULLY OVERTURN DECISION OF THE BOSTON ZONING BOARD OF APPEAL

On September 22, 2016, the Boston Housing Court, Muirhead, J., issued an Order on Defendant's Motion for Summary Judgment in Goureev, et al. v. Zoning Board of Appeal, the City of Boston, et al., No. 16H84CV000137, in which the Court granted summary judgment for P & A's clients, the plaintiffs, Csaba Toth and Andre Goureev, annulling the decision of the Boston Zoning Board of Appeal which granted zoning variances to defendant, Ryan Connelly.

Updating your storefront? Make sure it meets zoning codes.

In today's world, looks are everything -- especially for a growing business. Everything from your website design to your business cards helps you establish a brand identity that tells your potential customers who you are. In fact, the way your actual brick-and-mortar business looks plays a role in this, too.

Challenging Zoning Bylaws: Jurisdictional and Venue Considerations Part II: The Superior Court and United States District Court

This is the third in a series of posts on challenges to zoning bylaws and ordinances, and the second addressing the question of where to bring a challenge to a zoning bylaw or ordinance. The prior post covered the Land Court. The Land Court, however, is not the only court of competent jurisdiction to hear these cases. As the Department of the Massachusetts Trial Court having general jurisdiction, the Superior Court has the authority to hear all manner of claims challenging zoning bylaws and ordinances. As discussed below, the United States District Court, depending on the type of challenge, has the subject matter jurisdiction to hear these types of cases as well.

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