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Zoning Archives

The Abutters Strike Back: Specially-Protected Interests and Density-Related Aggrievement

In my last post, I addressed how, between 2006 and 2011, the Supreme Judicial Court had made it easier for developers to challenge abutters' legal standing to maintain zoning appeals. However, while the Commonwealth's high court was making life easier for developers, the Appeals Court was making it harder.

The Pendulum Swings in Massachusetts Standing Law in Zoning Appeals: The "Good Old Days"

Massachusetts law has permitted neighbors to appeal zoning decisions for many decades. Like any civil action, abutter plaintiffs in zoning appeals must demonstrate that they have a substantive stake in the outcome-that they will be harmed if their neighbors' permits are allowed to stand. At Phillips & Angley, we have posted many blog entries on this topic of standing in abutter zoning appeals. The standing case law that has accumulated over the years has generally been intended to place a threshold hurdle in front of abutters' rights to appeal their neighbors' permitting. In particular, however, the pendulum of standing has swung back and forth, between making that hurdle higher and lower. Starting in 2012, we left an era in which standing was more difficult to prove to a period where many of the basic limitations on standing have been effectively removed. The following is the first in a series of two posts that look at this-nearly incoherent-progression. This post focuses on how good developers had it at the beginning of 2012.

STANDING & TYPES OF "ACTUAL AGGRIEVEMENT" - A RECENT CASE

It's always interesting to read zoning appeal cases that focus on the question of standing, and which, if any, of the plaintiff's alleged harms or injuries will convince the judge that the substantive portion of the case can move ahead.

E-Permitting

A couple weeks ago, it was reported that the Town of Barnstable will be added to the list of Massachusetts communities transitioning to online permit applications. Barnstable approved the $200K+ expenditure to pay for the software and related maintenance that will eventually allow residents to file permit applications-including requests for variances-online.

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.

WIND TURBINES & SHADOW FLICKER: RECENT NEWS

Increasingly, it seems, municipalities are dealing with permit requests for wind turbines, both for residential and industrial/commercial use. Like any other kind of development, wind energy has its detractors, with shadow flicker being one of the biggest complaints (noise is a close second).

EXTENSIONS OR ALTERATIONS TO PRE-EXISTING NONCONFORMING STRUCTURES: PLACING CONDITIONS ON A G.L. c. 40A, § 6 FINDING

Municipal zoning regulations are in a constant state of flux - especially when considered in relation to the long life span of many Massachusetts' residential and commercial structures. As such, many homes and commercial properties do not conform to current zoning regulations, particularly concerning issues like frontage, side and rear yard setbacks, and floor-to-area ratio (square footage of a structure in relation to the total area of the lot). Often, these structures were built in conformance with the applicable zoning regulations, but have subsequently fallen out of compliance due to increasingly strict requirements. These structures are thus categorized as "pre-existing nonconforming", and are protected from the more restrictive zoning requirements as long as the structures remain unchanged.

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