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.
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).
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.
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.
This is the second in a series of posts on challenges to zoning bylaws and ordinances. An important threshold issue, apart from diagnosing what type of bylaw challenge should be brought, is where to bring these claims. Depending on the circumstances, these claims may be brought in the Land Court, the Superior Court or the United States District Court for the District of Massachusetts. This post will address the considerations applicable to the Massachusetts Land Court.
In run of the mill zoning appeals, the plaintiff must persuade the trial court that a local zoning decision "is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary" in order to have the local decision annulled. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001), ultimately quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970) (quotations omitted). This standard is applied to the particular action of the local board, not the bylaw under which it has acted. In many zoning cases, however, there may be a basis to attack the local bylaw itself, and derivatively the decision of the board, as it is based on a legally-invalid bylaw. This is the first of a series of posts, discussing challenges to zoning bylaws. In this post, the basics of these challenges will be discussed.
On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.
There has already been much recent zoning buzz about the impending medical marijuana dispensaries, and a significant SJC ruling (ZBA of Lunenburg v. Housing Appeals Committee) in the Chapter 40B affordable housing front, so let's take a look at what else is happening in the realm of zoning and planning around Massachusetts during the first week or so into the New Year.