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Posts tagged "zoning codes"

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.

CHALLENGING ZONING BYLAWS: JURISDICTIONAL AND VENUE CONSIDERATIONS PART I: THE LAND COURT

This is the second in a series of posts on challenges to zoning bylaws and ordinances. An important threshold issue, apart from diagnosing what type of bylaw challenge should be brought, is where to bring these claims. Depending on the circumstances, these claims may be brought in the Land Court, the Superior Court or the United States District Court for the District of Massachusetts. This post will address the considerations applicable to the Massachusetts Land Court.

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.

Towns, Beware of Ad Hoc Zoning "Policies"!

It is a basic and oft-cited principle of Massachusetts zoning law that the courts give "'some measure of deference' to the local board's interpretation of its own zoning by-law." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003), quoting APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 138 (2000). The standard for this measure of deference, however, is tautological: the courts "accord deference to a local board's reasonable interpretation of its own zoning bylaw, with the caveat that an 'incorrect interpretation of a statute . . . is not entitled to deference.'" Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012), quoting Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003) (citations omitted). Put differently, deference is given to a local bylaw interpretation when the courts happen to agree with that interpretation. This standard, as one might expect, is not completely conducive to predictable outcomes.

IS THE METER RUNNING OUT FOR OFF-STREET PARKING REQUIREMENTS?

For developers, satisfying off-street parking requirements is just one part of the planning and design process for new construction or development. In essence, it is the developer that ultimately becomes responsible for ensuring that the demand for parking spaces is met.

MERGER & GRANDFATHERING: WHEN A COURT INTERPRETS A ZONING PROVISION DIFFERENTLY THAN THE ZBA

In many M.G.L. c. 40A, § 17, appeals, courts are required to interpret the local zoning bylaw or ordinance to address the underlying substantive issue. The judge's standard of review in these cases must give "substantial deference" to a board's reasonable interpretation of its zoning code. However, erroneous interpretations, are not entitled to deference. And it is interesting to see how this dynamic plays out both during a case and after the fact. The recent case of Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 (2013) (on appeal from the Land Court) provides a good example.

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