We previously blogged about a case study, which we encountered in representation of a kennel before a local zoning board, regarding how conditions of variances work and how they are applied and enforced. Recently, the Appeals Court published Green v. Board of Appeals of Southborough, adding to the body of law on these issues. In particular, Judge Wolohojian, writing for the panel in Green, explicated the difference between those things which a variance holder must do to "exercise" the variance within one year as required by G. L. c. 40A, § 10, on the one hand; and the meaning and effect of a variance condition, which acts as a condition precedent (a precondition) to a holder being able to take advantage of the variance, on the other. As discussed below, the former refers to those acts necessary to give the variance legal effect, in the first instance; whereas the latter must be fulfilled in order for the variance holder ultimately to make use of the variance.
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.
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.
There are times when a residential or commercial property owner will need to request a variance in order to use the land in a way that is usually not permitted by the zoning ordinance. For the landowner, there is a lot on the line and he or she must show exactly how the request meets local and state zoning laws. This is where an attorney can step in, to help protect the landowner's interests and rights.
If wrapping your head around the law concerning reconstructing, extending, or altering a pre-existing nonconforming structure wasn't difficult enough already, the Supreme Judicial Court recently felt the need to add yet another layer of complexity for homeowners, zoning boards and courts. In Palitz v. Zoning Board of Appeals of Tisbury, 26 N.E.3d 175 (2015), the SJC firmly pronounced what we already knew - that subdivision control and zoning are independent of one another. However, the decision raises many question about the further expansion of pre-existing nonconforming structures that have already once obtained permission for expansion by variance.
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.
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.
As discussed in an earlier post (Intro to Variances I), there are a few necessary findings before a zoning board can grant a variance. Last time we talked about soil conditions, shape or topography that support the need for a variance. This post explores the necessity of a "substantial hardship" that will result if literal enforcement of the zoning code is required.
In some instances, obtaining a variance is a lawful means to deviate from strict compliance with current zoning requirements. Although zoning boards usually grant them sparingly, an approved variance can be a useful tool for landowners seeking to, inter alia, site, construct, alter or enlarge a structure on their property that would otherwise violate some aspect of the zoning code.