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Posts tagged "litigation"

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.

The Nuts and Bolts of a Petition to Partition: Filing a Petition with the Court

A petition to partition initiates a legal proceeding, which allows a co-owner of real property to dispose of the same by physical division or forcing a sale. Petitions to partition are governed by G.L. c. 241. Each co-owner of property has the "'equal right of entry, occupation and enjoyment'". Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 90 (2008), quoting Muskeget Island Club v. Prior, 228 Mass. 95, 96 (1917). However, if, for whatever reason, a co-owner no longer wishes to hold title to the property with his or her other co-owners, then that individual has an absolute right to file a petition to partition to dispose of the co-owned property. See Hershman-Tcherepnin, supra at 92. Parties can, however, enter a contract that may limit or restrain their rights to partition co-owned property, if the restraint is for a reasonable period of time. See id. at 93.

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:

PRIVATE WAY MAINTENANCE AND REPAIR RIGHTS AND OBLIGATIONS, PART I: COMMON LAW

Massachusetts contains thousands of private streets and ways; on and along those ways innumerable residents of this Commonwealth live. We know that the Derelict Fee Statute operates to resolve ownership questions regarding these private ways. However, the "statute pertains only to the question of ownership of the fee [in a private way]"; it does not govern use, maintenance, or other rights and/or obligations over a way, which, for the purposes of this blog post, fall within the province of the common law of easements. Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 389 (2005).

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 ยง 11, where that party-in-interest is a plaintiff in the ongoing de novo appeal of the permitting issued through that process.

Phillips & Angley Win Summary Judgment on Judicial Estoppel, Recoupment, and Quantum Meruit in Land Court

On November 14, 2016, the Land Court, Foster J., issued a Memorandum and Order Allowing Plaintiff's Motion for Summary Judgment in Fitchburg Capital, LLC, v. Bourque, Land Court Docket No. 12 MISC 464577 (RBF) in which the Court granted summary judgment for P&A's client, Plaintiff, Fitchburg Capital, LLC. The Memorandum and Order dismissed the Defendant's counterclaims for recovery of rental income pursuant to theories of conversion and accounting. In doing so, the Court agreed with Fitchburg that the Defendant's counterclaims were barred by all of three asserted bases: judicial estoppel, recoupment, and quantum meruit (unjust enrichment). Fitchburg's motion was successfully argued by Robert K. Hopkins, Esq.

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.

PHILLIPS & ANGLEY WIN SUMMARY JUDGMENT AT THE MASSACHUSETTS LAND COURT ANNULLING ZONING BOARD DECISION THAT HALTED LANDOWNER'S HELICOPTER USE

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.

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.

CHALLENGES TO ZONING AMENDMENTS: BASICS

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.

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