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Zoning Archives

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.

A NEW ERA FOR MASSACHUSETTS AERONAUTICS

On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.

The Zoning Act's Surprising Non-Treatment of Billboards

On June 29, 2015, the Appeals Court issued an unpublished 1:28 Decision in the matter of Lamar Whiteco Outdoor Corp. v. Zoning Bd. of Appeals of Webster, 2015 WL 3938606 (Mass. App. Ct. 2015). Even though a 1:28 Decision is merely persuasive authority (not binding), the decision rests upon a couple of relatively under the radar yet interesting cases that hold that billboards, in and of themselves, are not "structures" as that term is used in the Massachusetts Zoning Act (see G.L. c. 40A).

A New Twist on Nonconforming Residential Structures: Palitz v. Zoning Board of Appeals of Tisbury

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.

ITW v. Falmouth ZBA: Application of T-Mobile South, LLC v. City of Roswell, Ga.

In my previous post concerning the District Court's decision in Industrial Tower and Wireless, LLC v. Haddad ("ITW v. Haddad"), 2015 WL 2365560 (D. Mass. 2015), I discussed the decision as fitting within a small, but significant, line of cases requiring local boards to base their denial decisions on the specific criteria of the local bylaw. Another noteworthy aspect of ITW v. Haddad is that it is one of the first trial-level decisions to apply the Supreme Court's decision in T-Mobile South, LLC v. City of Roswell, Ga., 135 S. Ct. 808 (2015) ("City of Roswell").

Phillips & Angley Win Settlement Enforcement Action at the Massachusetts Appeals Court

On June 9, 2015, the Massachusetts Appeals Court issued an unpublished 1:28 Decision upholding the Land Court's entry of final judgment for P & A's clients, the plaintiffs, Barbara Hysell and Linda Carlson, as well as awarding attorney's fees based on the frivolous nature of the Defendant's appeal. See Carlson v. Webb, 2015 Mass. App. Unpub. LEXIS 601 (Mass. App. Ct. 2015).

ITW v. Falmouth ZBA: Substantial Evidence Violation Based upon the "Wrong Legal Standard"

As previously posted, on May 18, 2015, P & A won summary judgment, under the Federal Telecommunications Act of 1996 (the "TCA" / "Act"), against the Town of Falmouth Zoning Board of Appeals in Industrial Tower and Wireless, LLC v. Haddad ("ITW v. Haddad"), 2015 WL 2365560, at *17 (D. Mass. 2015). The next two posts will look at two aspects of the District Court's decision that are particularly noteworthy.

Phillips & Angley Win TCA Case Against the Falmouth ZBA

On May 18, 2015, the United States District Court for the District of Massachusetts, Burroughs, J., issued its Memorandum and Order on Plaintiff's Motion for Summary Judgment, allowing summary judgment to enter for P & A's client, Industrial Tower & Wireless, LLC ("ITW"), and ordering the Defendant Zoning Board of Appeals of the Town of Falmouth, "within forty-five (45) days" to "issue all necessary permits allowing ITW to construct and operate" its proposed telecommunications facility in Falmouth, MA. See Industrial Tower and Wireless, LLC v. Haddad, 2015 WL 2365560, at *17 (D. Mass. 2015).

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