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.
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.
Rule 1:28 decisions (unpublished decisions rendered by the Massachusetts Appeals Court) often contain concise synopses, if not reminders, of settled areas of law. Although they are not binding precedent in other cases (at best, they offer persuasive value), Rule 1:28 decisions give lawyers and potential litigants a sense of what the outcome might be if an appeal were pursued under a similar set of facts. Incidentally, they are also particularly helpful when the appellate courts have not recently adjudicated certain issues of law.
Earlier this month, the Land Court (Long, J.) rendered a zoning decision denying defendants' request for sanctions despite the fact that plaintiff had failed to meet the quantitative and qualitative showing for standing required to maintain his appeal of the special permit that was granted to the existing and prospective landowners. The case yields both encouraging and troublesome outcomes.
For owners of environmentally sensitive land, granting a conservation restriction (also referred to as a conservation easement) is a land use tool that may make sense in some cases. Though they are a voluntary limitation on the use of land, common reasons to grant a conservation restriction include,
In another zoning case that supports the expansion of a pre-existing, nonconforming use, the SJC issued its decision in Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, SJC-10869 (Feb. 7, 2012), an action that was commenced in the Land Court in late 2005.
Though the special permit process is governed by both the Massachusetts Zoning Act (M.G.L. c. 40A) and local zoning bylaws and ordinances, the procedure for appeals of special permit decisions are set forth in M.G.L. c. 40A § 17.