1. MASSACHUSETTS ASSOCIATION OF
PLANNING DIRECTORS
2010 ANNUAL CONFERENCE
CASE LAW UPDATE
Presented by:
Barbara J. Saint André, Esq.
Ilana M. Quirk, Esq.
ZONING
Albahari v. Zoning Board of Appeals of Brewster,
76 Mass. App. Ct. 245 (2010) (BJS)
This case involves the determination of when the right to a building permit vests
so as to protect a lot from a subsequent zoning by-law amendment. Defendant
Owocki applied for a building permit to construct a single family home on two
contiguous parcels of land. The application was denied as incomplete by the
building commissioner, citing lack of septic plans, failure to furnish driveway
permits, failure to furnish workers’ compensation affidavit, and issues with the
foundation plans. In addition, the nature of the soil on the lots placed at least
portions of the lots in the wetlands conservancy district, which would have
prohibited construction of the house. Owocki appealed the soil determination to
the board of appeals and prevailed. That decision was appealed by abutters to the
Superior Court, which affirmed the board of appeals.
In the meantime, the town published notice of a proposal to amend the zoning by-
law as to the list of conservancy soils. The amendment was adopted, with the
effect that Owocki’s lots would now be subject to the conservancy district. After
further appeals by the neighbors were unsuccessful, the building commissioner
issued the building permit, nearly five years after the original application. The
abutters appealed the building permit to the board of appeals, which upheld the
building commissioner. The board found that, prior to the first publication of
notice of the planning board hearing, Owocki had satisfied two of the deficiencies
cited by the building commissioner, and the other two were ministerial in nature.
The abutters appealed to the Land Court, which overturned the board of appeals
decision.
General Laws chapter 40A §6 provides that “a zoning ordinance or by-law shall
not apply to…a building permit or special permit issued before the first
publication of notice of the public hearing on such ordinance or by-law required
by section five…”
The Appeals Court noted that, although a mere application for a building permit
does not protect land from zoning changes under G.L. c. 40A §6, once an
applicant demonstrates its entitlement to a building permit, the issuance of the

2. permit is a matter of duty. “The right to a building permit vests at the time the
applicant is unconditionally entitled to its issuance.” The Appeals Court found,
however, that Owocki was not unconditionally entitled to the issuance of a
building permit before the first notice of the planning board public hearing,
because no acceptable foundation plans were filed until after the first publication
of notice. Thus, chapter 40A §6 did not provide protection from the zoning
amendment, and the building permit should not have been issued because the lot
was not buildable under the amended zoning by-law.
Regis College v. Town of Weston,
Land Court MISC 316097 2010 WL 10010 (January 4, 2010) (IMQ)
The Land Court (Sands, J.) found that a college’s proposal to build an
independent living facility for residents did not qualify for protection as an
educational use under G.L.c .40A, §3 (the so-called Dover Amendment).
The facts found by the Court were that the proposed residents would have an
average age of 75, would not be required to satisfy academic requirements, would
be required to take only four courses per year and would be required to pay a one-
time entrance fee of $700,000 to $1,000,000, together with a monthly service fee
of $4,000. In addition the Court found that two-thirds of the square footage of the
project would consist of housing and the size of the proposed residential units
would far exceed the size of a dormitory room.
The Land Court, after analyzing the extent of the educational services proposed
and comparing those services to the project’s other elements, concluded that there
certainly would be a strong educational element to the project, but that the
educational elements would not be the primary purpose of the project and so the
project was not entitled to protection under the Dover Amendment.
Ravech v. Hanover, 2010 WL 58921 (Land Court, Piper, J. 2010) (BJS)
Plaintiffs successfully challenged the constitutionality of Hanover’s “adult uses”
zoning by-law on the grounds that the by-law restrictions violated their First
Amendment rights. This case involved challenges to two zoning by-law
amendments, adopted in 2001 and 2002, which restricted adult uses to the town’s
Commercial District and imposed minimum separation distances between adult
uses, and between adult uses and residential districts. The Court noted that, under
the First Amendment as well as the state Declaration of Rights, a by-law that
restricts expression of adult content must meet a two-part inquiry: first, the court
must evaluate the substantial government interest served by the by-law, which
may include minimizing the secondary effects associated with adult uses. Second,
the by-law must leave open reasonable alternative avenues of communication for
adult expression. The town has the burden of justifying the challenged by-laws.
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3. The Court found that the 2001 by-law amendments, based on the evidence of
what the town relied upon prior to their enactment, were not adopted for the
purpose of protecting the town from the secondary effects of adult uses. The
Court found that Hanover had not gathered any information whatsoever about
adult uses and associated secondary effects prior to enacting these amendments.
Accordingly, the Court struck down the 2001 amendments as in violation of the
First Amendment.
With regard to the 2002 amendments, the Court found that Hanover had sustained
its burden of showing that the amendments were enacted to combat the secondary
effects of adult uses. The planning board had four studies from around the country
on the subject in its files, referenced the secondary effects in its notice of public
hearing, and the by-law itself specifically stated that its purpose was to combat
these effects.
The 2002 amendments were still invalidated, however, on the town’s failure to
show that the amendments left reasonable alternatives for adult expression. The
Court found that only eight parcels in the town could realistically be used for
adult uses in compliance with the zoning by-law amendments. Although the town
argued that other parcels were available, the Court exhaustively reviewed these
other parcels and found, for various reasons, such as the lots were nonconforming,
that they were not readily available as alternative sites. The eight parcels
amounted to .44% of the town’s total land area, and 3.4% of the non-residential
zones, with a town population of 14,000. The Court noted that the eight parcels
were all occupied by existing uses, and ruled that the Town had failed to sustain
its burden of proof that there were reasonable alternative means of adult
expression.
Sedell v. Zoning Board of Appeals of Carver,
74 Mass. App. Ct. 450 (2009) (IMQ)
The owners of an existing strip mall were denied a special permit to site a beer
and wine store in a vacant portion of the strip mall that included a day care center
and a special needs school for teenagers and a pharmacy that sold items that
served children and was in close proximately to a primary school and an
elementary school.
The Appeals Court upheld the denial after finding that the specific zoning
provision at issue expressly allowed the SPGA to consider “neighborhood
character and social structures” as well as the “particular characteristics of the
site.” The Court held that the SPGA properly considered the proximity of the two
schools, the day care facility and the special needs school to the proposed beer
and wine store and the existence of a pharmacy that sold items that attract
children when evaluating the character of the neighborhood and determining that
the proposed use would constitute a detriment to the neighborhood.
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4. Hoffman v. Board of Zoning Appeal of Cambridge,
74 Mass. App. Ct. 804 (2009) (BJS)
This case contains yet another twist on the merger of lots doctrine. Two adjacent
lots, the first containing a four-unit dwelling, and the second containing a parking
lot, came into common ownership in1950. Mr. Azzam entered into an agreement
to purchase the two lots, contingent on receiving approval to construct a two-unit
dwelling where the parking lot was located. The permits were issued, the two-
unit building was constructed, and occupancy permits were issued. The building
commissioner some time later revoked the occupancy permits, finding that the
two lots had merged, and the permit for the additional two units therefore violated
the zoning by-law. Azzam appealed the determination, and also applied for a
variance. The board denied the appeal, but granted the variance. Azzam appealed
the denial, and the abutter across the street appealed the variance. The two cases
were consolidated.
The court first ruled that Hoffman had standing to appeal the variance, since the
additional units would affect the availability of on-street parking. On the merits,
the court found that the decision granting the variance was insufficient as a matter
of law, because it contained no finding with respect to two of the criteria for
granting a variance (substantial detriment to the public good and substantially
derogating from intent of ordinance). The board merely recited the statutory
prerequisites. The variance application was remanded back to the board for
further findings.
The court made short shrift of Azzam’s argument that the two lots had not merged
because they maintained “separate identities”. The court noted that “separate
identities” means simply that the lots have not merged, and the fact that the lots
have been described separately did not save them from merging for purposes of
zoning.
McGrath v. Zoning Board of Appeals of Chatham and Mitchell,
76 Mass. App. Ct. 1120 (March 2010)(Unpublished) (IMQ)
As noted above in the discussion of Hoffman v. Board of Appeals of Cambridge, 74
Mass. App. Ct. 804, review denied 455 Mass. 1104 (2009), the doctrine of merger
presents constant twists and turns.
In Hoffman, the Appeals Court affirmed the long standing common-law merger doctrine,
which, when combined with the provisions of G.L. c.40A, §6, provides that: “when
adjacent nonconforming lots come into common ownership, they are normally merged
and treated as a single lot for zoning purposes” and repeated the long standing rule that an
undersized lot must retain its “separate identity” in order to maintain its protection; but
clarified there is no rule that “adjacent nonconforming lots that in some sense retain
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5. separate identities are exempt from the common-law merger doctrine.” Hoffman v.
Board of Appeals of Cambridge, 74 Mass. App. Ct. at pp. 811-812.
In McGrath however, the Appeals Court repeated another essential element of the
common-law merger doctrine (and an essential element of any zoning analysis) and that
is that one must always look to see if there is a more generous local zoning provision that
provides more protection than state law.
In McGrath, the Appeals Court noted that the common-law merger doctrine is applied
within the context of G.L. c.40A, §6 and, while G.L. c. 40A, §6 provides for the merger
of contiguous, undersized lots held in common ownership in specific circumstances, a
community may provide property owners with more generous grandfathered rights,
provided that the community does so explicitly.
The facts in McGrath involved four contiguous parcels of land that were held in common
ownership until at least 1984 and, at as of that time, were nonconforming as to minimum
lot area requirements. The minimum area requirement in 1984 was 20,000 s.f.; however,
the parcels ranged in area from 10,000 to 20,000 s.f. The Appeals Court noted that
neither side submitted evidence regarding what, if any, local grandfathering provision
existed at this time. (McGrath, at fn 4.) During 1985 and 1986, two of the four parcels
(i.e., Parcels 2 and 4) were sold, but two contiguous parcels (i.e., Parcels 1 and 3) were
retained by one owner. In 1986, the owner of the two contiguous parcels had a survey
plan prepared and recorded it. The survey plan showed a solid boundary around the two
contiguous parcels and a dashed line that depicted the historic boundary between the two
parcels. In 1987, minimum lot area requirements increased again, this time to 40,000 s.f.,
but the new requirements included a grandfather provision that protected “lots” in
existence as of January 1, 1987, so long as they included at least 10,000 s.f. of area,
which both Parcel 1 and 3 had. In 1997, the owner of Parcels 1 and 3 conveyed Parcel 3
to her son and, in 2003, her son conveyed Parcel 3 to one of the defendants in the
litigation.
The Chatham Building Inspector issued a building permit for Parcel 3, after determining
that Chatham’s local grandfathering provision was more generous than state law. The
plaintiff abutter appealed and the Chatham Zoning Board of Appeals upheld the Building
Inspector’s determination. The Land Court upheld the Zoning Board of Appeals’
decision. The Appeals Court noted that the operative question was whether the two
parcels had merged as a matter of law before January 1, 1987. The Appeals Court then
stated that the evidence regarding merger was ambiguous and found that the plaintiff
abutter had not “met her burden of proof” to show that the local board’s decision on this
point was in error and so upheld the Zoning Board’s decision.
It must be noted that the Appeals Court did not consider the rule that it is the land owner
who bears the burden of proof to establish that a nonconforming use or structure is
eligible for grandfathering protection. Interestingly, one of the seminal cases on this
point is from Chatham! See, Building Inspector of Chatham v. Kendrick, 17 Mass. App.
Ct. 928, 929 (1983).
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6. Bay Farm Montessori Academy, Inc. v. Duxbury,
75 Mass. App. Ct. 1103 (Unpub. 2009) (BJS)
The Town of Duxbury required the Academy to obtain site plan approval from the
Planning Board for a new academic building and a new athletic/multipurpose
building on its campus. The planning board denied the application, and the
Academy appealed, claiming that the Duxbury Zoning By-law provision was
invalid on its face when applied to its educational use. Under the so-called Dover
Amendment, G.L. c. 40A §3, zoning by-laws may not prohibit or require a special
permit for educational uses, and may only impose reasonable bulk, height, open
space, lot size, parking, building coverage and yard requirements. The Land
Court ruled the by-law provision invalid on its face, and the Appeals Court
affirmed. The Appeals Court noted that the Dover Amendment does not
contemplate the requirement of site plans for exempt uses. The Court further
noted that the site plan provisions of the zoning by-law invested considerable
discretion in the planning board over educational uses, which it found antithetical
to the Dover Amendment’s provisions. Finally, the Court stated that it did not
address the question of whether under the Dover Amendment, a site plan
provision might pass muster in the context of a zoning by-law scheme that is
consistent with the Dover Amendment: i.e. limited to bulk and height of
structures, yard areas, lot size, open space, parking, and building coverage.
Lobisser Building Corporation v. Planning Board of Bellingham,
454 Mass. 123 (2009) (IMQ)
The Lobisser case deals with the expiration of special permits, following on the heels of
Cornell v. Dracut, which dealt with the expiration of variances. In Cornell, the SJC held
that, under G.L. c.40A, §10, a variance must be recorded and must be exercised by
undertaking activity authorized under the variance within one year if its grant (plus time
for appeals) or the variance will lapse.
In Lobisser, a special permit was granted in 1985 to allow construction of 84 townhouse
condominiums in four phases. The first phase of construction was timely undertaken in
1986; however, after the second phase was constructed in 1988, there was a cessation of
activity for 18 years. In 2006, when a modification of the original special permit was
sought, the SPGA denied it, asserting that the special permit had lapsed as to third and
fourth phases.
The SJC ruled that, under G.L. c.40A, §9, when a special permit grants permission for
phased development and construction of the first phase timely begins and there is not an
express requirement regarding the date or dates upon which subsequent phases shall
begin, then the permit does not lapse, even where there was a cessation of activity for 18
years.
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7. The SJC noted that nothing in G.L. c.40A, §9 suggests or requires that “substantial use or
construction” has to begin within two years for any phase other than the initial phase.
The SJC agreed with the Appeals Court’s statement, in Bernstein v. Chief Building
Inspector and Building Commissioner of Falmouth, 52 Mass. App. Ct. 422, 424 (2001),
that a special permit should not be “warehoused indefinitely;” but then held that
municipal boards that are concerned about lengthy delays in phased construction projects
must “alleviate such concerns by including an express time limitation as a condition of
approval of a special permit for a phased construction project.” Lobisser at p. 132.
Local decisions involving phased development should expressly deal with expiration
issues.
Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal
of Billerica, 454 Mass. 374 (2009). (IMQ)
The SJC held in this case that a board of appeal’s decision to refuse, in the late
1990’s, to modify an unappealed condition set forth in a 1992 special permit and
variance decision, that that required that there be only one entrance-exit to a
development, was arbitrary and capricious because changes in circumstances had
occurred and the board’s decision did not justify the denial decision.
While the SJC affirmed that a court must afford “substantial deference” to a
board’s interpretation of its zoning, it held that a board must provide reasons in its
decision that support the decision and, in this case, the board merely recited the
statutory or regulatory language and provided no explanation of what detriment
the public good might result or how the modification would not be in the best
interests of the town or neighborhood. The SJC noted that references to the
board’s meeting minutes, on appeal (i.e. after the decision was prepared), were
not sufficient.
Most importantly, the SJC rejected the board’s argument that the late 1990’s
appeal was an untimely appeal of the one-entrance condition that was contained in
the 1992 zoning decisions. The SJC found that the conditions that surrounded the
property in 1992 had changed “significantly” after 1992 and that a change to an
unappealed condition can be sought and appealed if denied, if there have been
significant changes in conditions.
Lamb v. Zoning Board of Appeals of Taunton, 76 Mass. App. Ct. 513 (2009)
(BJS)
The court in this case determined that the fact that a person purchases a lot with
knowledge that the lot was nonconforming was not, by itself, grounds to deny
zoning relief as a “self-created hardship”. The case involved three contiguous lots
in an old subdivision, each of which had the minimum 25,000 square feet required
when approved. In 1995, the lots were zoned rural residential, which required a
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8. minimum lot size of 60,000 square feet of which 43,560 must be contiguous
upland. The three lots together had only 23,800 square feet of dry land. In 1996,
the city took the lots for failure to pay taxes and plaintiffs obtained title from the
city. A petition for a variance from the dry land requirement (as well as a special
permit for a common driveway) was denied when the board of appeals concluded
that plaintiffs created their own hardship by purchasing unbuildable lots and then
seeking zoning relief. On appeal, the board was upheld by the Superior Court.
The Appeals Court stated that a hardship in the context of a variance is considered
self-created when the property owner, by some overt act, transforms what was
once a conforming lot into a nonconforming lot. The Court noted that most states
have held that the purchase of a nonconforming lot does not preclude zoning
relief, because the purchaser does not acquire less right to a variance than the
seller. The Court ruled that the act of purchasing a nonconforming lot with
knowledge that the lot is nonconforming is not, by itself, sufficient basis to deny a
variance, and therefore the Superior Court erred in affirming the board of appeals
on that basis.
The Appeals Court went on to review the Superior Court’s affirmance of the
board’s denial based on the determination that the contiguous dry land
requirement relates to the size of the lot, not to soil conditions, shape or
topography within the meaning of chapter 40A §10, and therefore could not be the
basis for a variance application. The Appeals Court disagreed, determining that
whether land is a wetland under the Wetlands Protection Act requires an
examination of, among other things, the condition of the soil as it relates to the
presence of water. As such, the dry lot requirement relates to the soil conditions or
topography of the lot and fits squarely within the variance statute.
Titanium Group, LLC v. Galligan,
2010 WL 597354 (Land Court, Trombly, J. 2010) (BJS)
This case, which was widely reported in local newspapers, determined that
artificial turf did not comply with the requirements of the Brockton zoning
ordinance for “green space”. The plaintiff sought to construct a car wash, which
required site plan review. The site plan, which showed “green areas” to comply
with the requirements of the ordinance, was approved. When plaintiff installed
artificial turf in the “green areas”, an occupancy permit was denied. Plaintiff
appealed to the board of appeals, which unanimously voted that the artificial turf
was not in compliance with the ordinance. On appeal, the Land Court noted that it
deferred to some extent to the judgment of the local board. Although “green
space” was not defined in the ordinance, the Court looked at the context of the
ordinance, including the purpose of the green space, which was to reduce
impervious surface and promote aesthetics. The intent to require live plantings,
rather than artificial turf, was confirmed by the use of the term “landscaping” in
the ordinance, which is ordinarily understood to require living plantings. In short,
the Court found that the ordinance was not too vague, and the turf did not cut it.
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9. SUBDIVISION
Bernstein v. Planning Board of Stockbridge,
76 Mass. App. Ct. 759 (May 21, 2010) (IMQ)
This case involved a complicated subdivision proposal and raised issues relating to the
effective date of the subdivision zoning freeze, the timing of a constructive endorsement
of a subdivision and the invalidation of a local zoning provision on the grounds that it did
not allow at least one use in an overlay district as of right in violation of the so-called
SCIT doctrine.
The Appeals Court noted that the eight-year subdivision zoning freeze is not triggered
until an endorsement of the plan occurs and then held that a constructive approval is
incomplete until the municipal clerk issues a certification regarding the approval, thereby
finalizing and ‘endorsing’ the constructive approval because the clerk’s certificate is the
“functional equivalent of a planning board’s endorsement.”
Under SCIT doctrine, at least one type of use must be permitted as of right within each
zoning district “without the need for the landowner or developer first to seek permission
which depends upon the discretion of local zoning authorities.” SCIT, Inc. v. Planning
Board of Braintree, 19 Mass. App. Ct. 101 (1984).
In Bernstein, the Appeals Court held that simply allowing one or all of the statutorily
exempt uses will not be sufficient to satisfy the as of right use requirement established
under SCIT. The Court found that a significant or valuable use of land, beyond the uses
that are exempted under G.L. c.40A, §3 and beyond uses that are merely incidental or
accessory, must be allowed as of right.
Wine v. Planning Board of Newburyport, 74 Mass. App. Ct. 521 (2009) (BJS)
Another subdivision case, another complicated set of facts. In summary, the
planning board denied subdivision approval to a plan filed in 2002 due to the plan’s
failure to comply with the board’s rules and regulations governing centerline offset. The
2002 plan proposed to subdivide land that was shown on a previous subdivision plan, in
1982, in which the applicant agreed to certain conditions, which were filed at the Registry
of Deeds as a covenant. The conditions included that any future subdivision must be in
compliance with the subdivision rules and regulations, and that two of the lots remain
single-family dwellings and front on High Street, so that only one lot, Lot 2B, would
derive access from the private way shown on the plan. The 2002 plan proposed to
subdivide Lot 2B into three lots. The board denied the 2002 subdivision for failure to
comply with the rules and regulations as to centerline offset, and based on its finding that
a waiver of that requirement would not be in the public interest or consistent with the
intent and purpose of the Subdivision Control Law.
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10. Plaintiff argued that no waiver of the centerline offset was required because the
private way had been approved on the 1982 plan. That waiver, granted in 1982, was
subject, however, to the conditions imposed by the board, and the 2002 plan would
violate the covenants recorded with the 1982 plan by allowing four lots, rather than one,
to front on the private way.
In reviewing whether the board was justified in denying the waiver, the board
noted the deferential review standard. The court noted that the plaintiff’s burden in
showing that the refusal to grant a waiver was not in the public interest was “nearly
insupportable”. The second factor in considering whether to grant a waiver is whether it
would be inconsistent with the purpose and intent of the Subdivision Control Law. The
court noted that, while this may be given more scrutiny by the court, “it is a rare
occurrence for a court to disturb a board’s discretionary decision to deny a waiver of
compliance”. The court noted that the private way would intersect High Street, a busy
road, near its intersection with another busy road, Kent Street. The court on the facts
upheld the board’s denial.
Millbury v. Carlstrom, 2009 WL 1526922 (Land Court 2009) (BJS)
In this case, the Town of Millbury obtained a judgment against the owner of a
subdivision for consultant fees that had been incurred by the Town, through its
planning board, in the review of a definitive subdivision plan. The outstanding
fees were for services rendered by the Town’s consulting engineer and town
counsel to the planning board during the subdivision review process. The owner
of the subdivision argued that it was not the “applicant”, and therefore was not
responsible for the consultant fees under the board’s regulations. It also argued
that it was not aware of the fees and that the fees should have been paid by the
applicant. The court noted, however, that the application was signed by both the
applicant and the owner. By signing the application, the owner agreed to comply
with the board’s rules and regulations. Further, the rules and regulations defined
“applicant” as the person applying, including owner or assigns of owner. Thus,
the court found that both the applicant and the owner were responsible for the fees
incurred in the subdivision process. The Town, which had paid the consultants
bills when the applicant and owner declined to do so, was awarded the full
amount of the fees plus interest.
Donohue v. Doherty and Planning Board of the City of Woburn,
Land Court MISC 272986 (WL 1172965)(March 25, 2010) (IMQ)
This case concerns the exemptions from the Subdivision Control Law that are afforded
under G.L. c.41, §81FF. Under the Subdivision Control Law, the recording of a
subdivision plan “in the registry of deeds before the subdivision control law was in
effect in the city or town in which the subdivision was located shall not exempt the
land within such subdivision from the operation of said law except with respect to
lots which had been sold and were held in ownership separate from that of the
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11. remainder of the subdivision when said law went into effect in such city or town, and
to rights of way and other easements appurtenant to such lots….” G.L. c.41, §81FF.
(Emphasis added.)
When dealing with a subdivision plan that was recorded prior to the effective date of the
Subdivision Control Law and with lots that were conveyed into separate ownership on or
before 1951, a planning board still “may impose any lawful requirements, and may
disregard [the recorded subdivision plan] and its scheme except so far as regard thereto is
necessary in order to leave the lots which were separately owned in 1951 [when the
Subdivision Control Law took effect] with the substance of their rights of ways.” See,
Toothaker v. Planning Board of Billerica, 346 Mass. 436, 440 (1963). One of the
purposes of G.L. c.41, §81FF, “is to make it clear ‘that [unregistered] plans of
subdivisions in a city or town recorded prior to the going into effect of the [Subdivision
Control] law in such city or town shall be valid only with respect to lots held in separate
ownership when the law went into effect in such city or town, and to rights of
appurtenant to such lots.” Id at p.439, quoting 1953 House Document No. 2249 at p. 60.
As to separately owned parcels, “both the owners and the planning board must so apply
the [Subdivision Control] law that the existing exempt rights of ways of the lots
separately owned … are not destroyed or substantially limited or interfered with.”
Toothaker v. Planning Board of Billerica, 346 Mass. At p. 440. When acting upon a
subdivision plan to provide access for the non-exempt lots, “the planning board, as a
condition of approving a subdivision plan for the plaintiffs’ land, may impose any lawful
requirements, and may disregard the 1914 plan and its scheme except so far as regard
thereto is necessary in order to leave the lots which were separately owned in 1951 with
the substance of their rights of ways.” Id. This would include requiring a greater width
for so much of a way as is not adjacent to an exempt lot. Id. Finally, there is no question
that a planning board, even where rights exist under G.L. c.41, §81FF, may impose
requirements as to the construction of ways and installation of municipal services.
LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760, 764 (1992).
Judge Grossman noted that the §81FF exemption is very narrow and that it must be
contrasted with the “breadth of the public safety concerns enumerated by the General
Court in G.L. c.41, §81M.” He found that §81FF (where applicable) would preclude a
planning board from imposing greater way width requirements, but it did not preclude
requiring a proper turnaround for emergency vehicles that could be accommodated
without impairing the rights afforded under §81FF.
TELECOMMUNICATIONS ACT
Omnipoint Holdings, Inc. v. Cranston, 586 F. 3d 38 (1st Cir. 2009) (BJS)
In this case, the court upheld a decision of the Federal District Court in favor of
Omnipoint on the denial of a variance and special permit to build a wireless
communications tower in Cranston, Rhode Island. The District Court found that
the denial violated the provision of the Telecommunications Act (TCA) that local
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12. zoning authorities may not prohibit or have the effect of prohibiting the provision
of personal wireless services. The Court of Appeals found that Omnipoint had
carried its burden of proving that there was a significant gap in coverage and that
there were no alternatives to Omnipoint’s proposed solution. Whether there is a
significant gap in coverage depends upon the carrier’s own coverage, not whether
other carriers have coverage in the same area. Among the issues to be reviewed
are the physical size of the gap, the number of users affected, and whether all of
the carrier’s users in the gap area are affected. In this case, the Court credited the
testimony of Omnipoint’s expert, and did not credit the testimony of the Town’s
consultant.
The second issue on which Omnipoint bore the burden of proof was to show that
the local authorities have prevented it from closing that gap. The Court noted that
it must balance competing interests, the interest expressed in the TCA to promote
competition and eliminate significant service gaps, and the TCA’s recognition of
the right of local authorities to regulate land use. The carrier has the heavy burden
to show not just that this application has been rejected, but that further efforts to
find another solution would be fruitless. In this case, Ominpoint showed that it
had systematically searched for other solutions, and made financial offers and
negotiated unsuccessfully with the owner of another site. Again, the District Court
rejected the evidence of the Town’s consultant, who proposed the use of
microcells, as the microcells were shown to not be compatible with Omnipoint’s
network. Accordingly, the Court upheld the judgment of the District Court.
Barbara J. Saint André is a principal with the law firm of Petrini & Associates in
Framingham. She has over 25 years of experience representing cities and towns across
the state as town and special counsel, with particular emphasis on land use (including
zoning, subdivision, Chapter 40R, planning, health, zoning enforcement, and wetlands),
comprehensive permits and housing, and general municipal law. Petrini & Associates is
a law firm concentrating in the practice of municipal law, public construction, labor, and
land use. The firm is town counsel to Framingham, Medway, Sherborn and West
Brookfield and special counsel to numerous other communities.
Ilana M. Quirk is a principal with the law firm of Kopelman and Paige, P.C., in Boston.
She has 27 years of land use law experience, having acted as: Legal Counsel to private
developers, during the permitting process and in litigation before all courts (1983 to
1987); Senate Counsel to the joint committee of the General Court that develops
subdivision and zoning legislation (1987 to 1994); Town Planner (2003 to 2006 ); and
Municipal Counsel at Kopelman and Paige, P.C., with an emphasis on land use law,
including the permitting process and litigation before all courts, with a special emphasis
on comprehensive permits, enforcement of all types, historic district issues, subdivision
and zoning (1994-2003 and 2006 to the present ). Kopelman and Paige, P.C.
concentrates in the practice of municipal law, representing over a third of the communities
in the Commonwealth as municipal counsel and approximately another third, at any
given time, as special counsel or insurance defense counsel.
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