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.
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.
Conditions upon land use permits are so ubiquitous that the authority for imposing them can easily be taken for granted. The Supreme Court's decision in Koontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct. 2586 (2013), however, places a significant constitutional limit upon local boards' ability to do so.