In Massachusetts (and United States, generally), civil litigants are responsible for paying their own legal fees. This concept is known as the "American Rule". It matters not that you were sued by your neighbor and did not want to be involved in a lawsuit; or that you felt compelled to bring suit against a developer as a last ditch effort to protect the character of your neighborhood. It also does not matter if you win. You are going to pay your legal fees. There are, as in all things in the legal world, some limited exceptions to the American Rule, and we will discuss those in another blog post.
One of the most vexing issues involving zoning and land use practice in Massachusetts is how site plan review decisions, rendered by local planning boards, are appealed. In fact, we were recently asked by Mass. Lawyers Weekly to comment on this topic, as well as a recent Land Court decision on the same.
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:
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.
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.
Real estate development in the Boston area can be quite complicated and starts with the proper planning. With specific land use laws in place, along with Massachusetts laws and other local regulations, many developers can find themselves facing an uphill battle before they even start.
On June 29, 2015, the Appeals Court issued an unpublished 1:28 Decision in the matter of Lamar Whiteco Outdoor Corp. v. Zoning Bd. of Appeals of Webster, 2015 WL 3938606 (Mass. App. Ct. 2015). Even though a 1:28 Decision is merely persuasive authority (not binding), the decision rests upon a couple of relatively under the radar yet interesting cases that hold that billboards, in and of themselves, are not "structures" as that term is used in the Massachusetts Zoning Act (see G.L. c. 40A).
Massachusetts law has permitted neighbors to appeal zoning decisions for many decades. Like any civil action, abutter plaintiffs in zoning appeals must demonstrate that they have a substantive stake in the outcome-that they will be harmed if their neighbors' permits are allowed to stand. At Phillips & Angley, we have posted many blog entries on this topic of standing in abutter zoning appeals. The standing case law that has accumulated over the years has generally been intended to place a threshold hurdle in front of abutters' rights to appeal their neighbors' permitting. In particular, however, the pendulum of standing has swung back and forth, between making that hurdle higher and lower. Starting in 2012, we left an era in which standing was more difficult to prove to a period where many of the basic limitations on standing have been effectively removed. The following is the first in a series of two posts that look at this-nearly incoherent-progression. This post focuses on how good developers had it at the beginning of 2012.
It's an all too common scenario: a landowner builds something on his property, and then an abutter or neighbor thinks it is being built unlawfully and tries to stop it. In fact, let's assume that the landowner has already gone through an initial site plan review (as required by his town's zoning bylaw) and obtained a building permit accordingly thereafter.
In a very short rescript decision, E & J Props., LLC v. Medas, 464 Mass. 1018 (2013), issued by the SJC on March 19, 2013, the highest court (on further appellate review of a Rule 1:28 decision), held that the defendant variance holder was not precluded from completing the demolition of a structure on his lot well after a year since the variance was issued.