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.
It's an all too common scenario: a landowner builds something on his property, and then an abutter or neighbor thinks it is being built unlawfully and tries to stop it. In fact, let's assume that the landowner has already gone through an initial site plan review (as required by his town's zoning bylaw) and obtained a building permit accordingly thereafter.
Rule 1:28 decisions (unpublished decisions rendered by the Massachusetts Appeals Court) often contain concise synopses, if not reminders, of settled areas of law. Although they are not binding precedent in other cases (at best, they offer persuasive value), Rule 1:28 decisions give lawyers and potential litigants a sense of what the outcome might be if an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.
When it comes to site plan review, perhaps too many zoning attorneys know all too well the following scenario.
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.
In January we featured a short post about City of Arlington, Texas v. FCC, 668 F.3d 229 (5th Cir. 2012), an interesting case pending before the U.S. Supreme Court, involving administrative law and the Chevron doctrine. Incidentally, the secondary, underlying substantive issue in the lower court related to the Federal Communications Commission's (FCC) definition of a "reasonable period of time" for the local board to issue a decision for siting a telecommunications tower under the federal Telecommunications Act of 1996. The City of Arlington ultimately challenged the FCC's interpretation of what that timeframe should be, which the FCC had issued via a declaratory ruling in 2009.*
We wanted to share a link to a very recent Suffolk University Law Review article discussing the issue of standing: Beth Lidington, Massachusetts Standing Laws and Zoning Appeals: Standing on Shaky Ground After Kenner v. Zoning Board of Appeals, 46 Suffolk U. L. Rev. 603 (2013). Like most law review articles, this one contains a good synopsis of the law with many useful footnotes and citations throughout. The arc of this particular article is view-based harm as a premise for standing, all in the wake of the SJC's Kenner decision rendered in 2011. The author's analysis is thoughtful and worth the read.
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.
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.