2011 Annual Conference Case Law Update Barbara J. Saint Andre, Esq. Ilana M. Quirk, Esq.

1. MASSACHUSETTS ASSOCIATION OF
PLANNING DIRECTORS
2011 ANNUAL CONFERENCE
CASE LAW UPDATE
Presented by:
Barbara J. Saint André, Esq.
Ilana M. Quirk, Esq.
Collings v. Planning Board of Stow, 79 Mass. App. Ct. 447 (2011) (BJS)
The Court in this case determined that the planning board did not have the authority to
impose a condition on a subdivision approval requiring the applicant to convey land to
the town for open space. Collings sought approval of a definitive subdivision plan of five
lots on 55 acres of land. The proposed access was from a public way via a new 1300 foot
dead end street. The planning board regulations limited dead end streets to 500 feet, but
allowed the board to grant up to 1500 feet by waiver if certain conditions were met,
including sprinklers in lots fronting on the cul-de-sac, and a minimum of 10% of the
portion of the locus suitable for development to be dedicated to open space. The board
determined there were four open space areas on the plan, and required that a minimum of
10% of the land be dedicated to open space with public access. The board required that
the open space parcels be offered first to the town’s conservation commission for open
space, then to a land trust with a conservation restriction, and, if neither accepted, to a
homeowners association. Collings appealed to the Land Court, which upheld the planning
board.
Collings argued that the condition requiring that the applicant offer the land to the town
violated G.L. c. 41 §81Q, which prohibits a subdivision approval be conditioned on
dedication of land to public use or conveyance to the town for any public purpose without
just compensation. The board argued that the grant of the various waivers for the
subdivision constituted compensation for the land. The Appeals Court rejected the
board’s argument, stating: “We see nothing in the waiver provision contained in G.L. c.
41 §81R that authorizes a planning board to depart from the proscription of §81Q.” The
Appeals Court noted that limiting the length of dead end streets was a proper regulation,
and a condition requiring dedication of open space to limit the number of building lots
imposed out of safety concerns arising from the length of the street, would be proper
under §81Q. But in this case, the Appeals Court determined that the planning board went
further, and required a subdivision applicant to grant land to the town for reasons
unrelated to adequate access and safety of the subdivision. There was no justification for
requiring transfer of the property to the town, where the concerns on the number of lots
could be addressed by simply requiring land remain as open space. The exercise of
waivers must be guided by the standards of §81R, and not used to exact private property.
The plaintiffs also challenged whether a portion of Lot 5 should be in the
floodplain/wetlands district and the recreation/conservation districts of the zoning bylaw.

2. Collings argued that a hill on Lot 5 was erroneously included in the districts, and sought
to introduce new plans and a survey of the flood plain. The Land Court correctly ruled
that the bylaw provided that the boundaries of the districts are set forth on specific plans,
and that Collings could not attempt to change the boundaries. Further, a provision in the
zoning bylaw allowed the board of appeals to grant a special permit to allow a structure
in the flood plain district if it is clearly shown that the land was included in the district in
error. Plaintiffs had not pursued this remedy.
ZONING
Kenner v. Zoning Board of Appeals of Chatham,
459 Mass. 115 (March 11, 2011) (IMQ)
Plaintiffs/abutters appealed a decision by the zoning board of appeals granting a special
permit to allow for the demolition, reconstruction and expansion of a house. Plaintiffs
claimed standing or the necessary legal interest to maintain their appeal by pointing to a
local zoning by-law, which provided that, when deciding whether to grant a special
permit, the board shall consider, among other things, the “[i]mpact of scale, siting and
mass on neighborhood visual character, including views, vistas and streetscapes.”
The Land Court held that the plaintiffs lacked standing. The Appeals Court reversed the
Land Court. The SJC then reversed the Appeals Court and held that the Land Court’s
determination that the plaintiffs lacked standing was not clearly erroneous and, so, it had
to be upheld.
Specifically, the SJC held that the plaintiffs lacked standing because the local zoning
bylaw did not protect individual homeowners’ views of the ocean from their own
property, but, rather, addressed the visual impact of a proposed structure on the visual
character on the neighborhood as a whole. Since the local zoning by-law did not define
the plaintiffs’ view as a separate protected interest and since the Land Court judge found
that the impact of the project on the plaintiffs’ view would be de minimus, the alleged
diminution in value of the plaintiffs’ property was not a basis for property. The SJC
noted that “generally speaking, concerns about the visual impact of a proposed structure
on an abutting property are insufficient to confer standing.” The SJC noted though that,
“where a municipality’s zoning bylaw specifically provides that the zoning board of
appeals should take into consideration the visual impact of a proposed structure,” then
that “defined protected interest may impart standing to a person whose impaired interest
falls within that definition.” The SJC held that, under the local zoning by-law provisions
at issue, a plaintiff, to establish standing, “would need to show a particularized harm to
the plaintiff’s own property and a detrimental impact on the neighborhood’s visual
character.” (Emphasis added.) The SJC also held that a plaintiff must put forth “credible
evidence to show that they will be injured or harmed by proposed changes to an abutting
property” and that it is not enough that a plaintiff would simply be “impacted” by the
proposed change.
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3. Marhefka v. Zoning Board of Appeals of Sutton,
79 Mass. App. Ct. 515 (May 13, 2011) (IMQ)
Plaintiffs/abutters appealed a decision by the zoning board of appeals granting a variance
to allow for construction of a garage. Plaintiffs claimed they would be injured because
they would lose some of their existing view of an adjacent pond and there would be an
increase in density and in an existing nonconformity.
The Land Court held that the plaintiffs lacked standing. The Appeals Court reversed the
Land Court, finding the plaintiffs had asserted a competent basis for standing.
The Appeals Court noted that, “of course, the plaintiffs’ claim of an impairment of water
view, without more, does not confer standing;” but went on to note that, “where, as here,
a neighbor asserts diminished water view as a result of further violation of by-law density
and dimensional provisions, including those calling for a “visual buffer” between lots, on
an already nonconforming lot, then such intrusion can confer standing.” The Appeals
Court noted that the degree of injury to the plaintiffs was in dispute and that the issue of
standing could not, therefore, be rendered on summary judgment. The Court stated that
“because the degree of the quantity and quality of the view impairment due to the
increased density was not decided by the Land Court” the matter was remanded to the
Land Court for that determination.
Schiffenhaus v. Kline, Mass. App. Ct. (2011) (BJS)
This case involves a determination by the Truro building commissioner that a project
would not increase the nonconforming nature of a pre-existing structure. The parcel in
question has over 9 acres. The zoning bylaw requires a minimum of 150 feet of frontage
on a street of at least 40 feet in width. An owner of a conforming lot is allowed to have a
single family residence and a “habitable studio” on the same lot. The lot in question
fronted on a street of inadequate width, varying between 9 and 12 feet, and had a pre-
existing, grandfathered residence on it. Kline sought to transform the existing house into
a “habitable studio” by removing the kitchen, and construct a new 6800 square foot
residence on the site. The neighbors appealed, and the board of appeals upheld the
building commissioner. On appeal to the Land Court, the Land Court reversed the finding
of the board of appeals and remanded the matter to the board.
The Appeals Court first agreed with the finding of the Land Court that plaintiffs had
standing to appeal. Plaintiffs alleged that the project would increase traffic and
exacerbate unsafe conditions on the road, and interfere with plaintiffs’ easement over the
Kline property. Defendants apparently did not rebut these allegations, and thus did not
challenge the plaintiffs’ presumption of standing as parties in interest. Further, the
Appeals Court reviewed whether plaintiffs could establish standing by asserting
impairment of their view. The Appeals Court found that the zoning bylaw did not
explicitly refer to views, but the bylaw incorporated the town’s comprehensive plan,
which did contain statements encouraging the preservation of vistas and views. Thus,
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4. plaintiffs could also establish standing by showing a particularized harm to their own
property and a detrimental impact on the neighborhood’s visual character.
The Appeals Court reviewed the definition of “alteration” under the Truro zoning bylaw,
and found that the construction of a new building was not an alteration. The new house
requires conformity with the zoning bylaw. Although the definition in the bylaw is broad
and includes almost any conceivable change to an existing structure, the construction of
an entirely new building, at a different location, is not an alteration. Moreover, Kline’s
attempt to satisfy the zoning bylaw by filing an ANR plan that showed the road fronting
his property to be reconfigured to 40 feet did not satisfy the requirements of the Zoning
Bylaw. The Land Court was affirmed.
Rosenfeld v. Zoning Board of Appeals of Mendon and Gray Wolf Devel. Co, et al. ,
78 Mass. App. Ct. 677 (2011) (IMQ)
Defendant Gray Wolf’s predecessor in interest obtained variance relief to permit a single
family dwelling on forty-six acres of land that lacked sufficient frontage. An initial
variance was conditioned on the imposition of a deed restriction limiting the use of the
property to a single-family dwelling, but the variance lapsed. A second variance was
issued to the prior owner with the same or a similar condition and, while the second
variance was not used to construct a dwelling, the required deed restriction was recorded
in 2000 against the property when the prior owner sold the property.
In 2005, defendant Gray Wolf obtained a special permit to construct a primary dwelling
on the property, with two housekeeping units, horse stables and related structures.
Plaintiffs/abutters appealed the special permit relief, arguing that the proposed use was
not an agricultural use protected under G.L. c.40A, §3 and that the variances remained in
effect and precluded the use proposed by Defendant Gray Wolf.
The Superior Court issued summary judgment upholding the special permit, finding that
the proposed use was a valid agricultural use that is protected under G.L. c.40A, §3 and
that the plaintiff/abutters lacked standing to enforce the 2000 deed restriction..
The Appeals Court upheld the determination that the proposed use was a protected
agricultural use because it involved the raising, training and boarding of horses and found
that the issue of whether the variances had lapsed or not was therefore irrelevant because
the “conclusion that the proposed use is protected by G.L. c.40A, §3, stands as a wholly
independent basis authorizing the proposed use, rendering the variances, and the
conditions thereto, entirely irrelevant.”
The Appeals Court then went onto hold that the plaintiffs/abutters did have standing to
enforce the 2000 deed restriction, holding that: “an owner of land that adjoins the
restricted land is entitled to enforce a deed restriction, whether or not the instrument
imposing the restriction contains an express statement that the adjoining land is intended
to benefit from the restriction.” The Appeals Court reversed the Superior Court on this
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5. point and remanded the matter to the Superior Court for further proceedings regarding the
effect of the deed restriction on Gray Wolf’s proposed use.
Nexum v. Planning Board of Framingham, 79 Mass. App. Ct. 117 (2011) (BJS)
This case examines the procedure for determining the number of lots allowable in a
cluster subdivision. Plaintiff sought a special permit to build 24 detached single family
homes on a 32 acre tract of land, with the required open space, to be served by an on-site
common well and common septic system. The special permit and companion definitive
subdivision plans were denied, because Nexum failed to comply with the zoning bylaw
requirements to establish the permissible density of the project, and it could not comply
with the conditions imposed by the board of health for the on-site water supply. Although
the court agreed with plaintiff that the planning board did not properly identify the
reasons for its denial, the court refused to remand the matter to the board, as it determined
that no legally permissible action by the planning board could change the result denying
the approvals.
The Framingham zoning bylaw provisions for cluster development require an applicant,
for land not served by sewer, to certify that each lot on the plan is buildable, as evidenced
by a soils test consistent with Title 5. This establishes the number of lots that could be
built under a conventional subdivision plan. In this case, Nexum did not perform a soils
test on each lot shown on its preliminary density plan, arguing that a single soil test for a
common septic system complied with the zoning bylaw. The court found, however, that
the clear meaning of the bylaw required a soil test on every lot to determine if the lot was
buildable. Nexum also argued that the tentative approval by the board of its preliminary
subdivision yield plan should have been conclusive. The court noted, however, that the
tentative approval by the planning board was part of a pre-application conference
described in the bylaw as optional and advisory only.
With respect to the water supply, the court noted that a planning board under G.L. c. 41
§81U may not approve a subdivision plan which does not comply with the
recommendations of the board of health. The board of health conditioned its approval on
a showing that the water supply could meet peak summer usage and would not have a
significant effect on the wells of abutting land owners. The trial court found that Nexum
could not meet these conditions. The Appeals Court upheld that finding, and the planning
board therefore was required to deny the application. In addition, the court found that the
zoning bylaw required the planning board to make a finding that a proposed cluster
development made adequate provisions for water supply in order to grant a special permit
and definitive subdivision plan. The trial judge found that the proposed water supply was
inadequate and the application therefore did not meet the criteria of the bylaw. For all of
these reasons, the Appeals Court upheld the denial of the special permit and definitive
subdivision plan.
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6. Shirley Wayside Limited Partnership v. Board of Appeals of Shirley,
78 Mass. App. Ct. 19 (2010) (IMQ)
Plaintiff/property owner was denied permission to expand a nonconforming mobile home
park to add 14 units to the 65units (a 24% increase). The park was created in the 1950’s
and in 1985 it became nonconforming when the use was prohibited. The zoning bylaw
allowed the extension, alteration, reconstruction or repair of a nonconforming use,
provided the extension shall not exceed 25% and shall not be substantially more
detrimental to the neighborhood. The zoning board of appeals denied relief because
while the proposed expansion was less than 25%, the board found that the expansion
would be substantially more detrimental to the neighborhood.
The Land Court reversed the board’s decision; however, the Appeals Court reversed the
Land Court. Further appellate review has been granted and argument is scheduled for
September 2011.
The Appeals Court rejected every reason for denial advanced by the zoning board of
appeals except that the proposed project would increase the density at the property and
then concluded that the “board’s concern for increased density furnished adequate
justification for its decision to deny the permit.” The Appeals Court held that “[t]here is
no dispute that the proposed expansion would result in a significant increase in the
project’s density, or that density is within the scope of concerns the board is permitted to
consider. Zoning is a distinctly local matter, and in circumstances where reasonable
minds may differ concerning the seriousness of a problem, it is the board’s conclusion,
rather than that of a distant court, that controls.”
In a dissent, Judge Brown noted that he would have upheld the Land Court’s decision as,
while density concerns are within the scope of the board’s concern, the board gave no
reason to support a finding that the increase in density would be substantially more
detrimental to the neighborhood than the existing use.
81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline, 78 Mass. App. Ct.
233 (2010) (BJS)
The court determined that a building permit issued for 71 Spooner Road must be revoked
due to “infectious invalidity”. Plaintiff acquired 81 Spooner Road in 2004, at which time
it contained 22,400 square feet and an existing home with 3,812 square feet of living
space. In 2005, the planning board endorsed a plan as not requiring subdivision approval
(ANR plan) dividing the land into two lots: 81 Spooner Road with 10,893 square feet and
the existing home, and 71 Spooner Road with 11,648 square feet. The lot with the
existing house, 81 Spooner Road, was sold, and in 2005 plaintiff obtained a building
permit for a single family home at 71 Spooner Road. The abutters, the Foggs,
subsequently sought enforcement when they learned of the building permit, claiming that
the two homes violated the floor area ratio (FAR) provision of the zoning bylaw. The
building commissioner denied the request, on the basis that the owners of 81 Spooner
Road had agreed to remove the interior attic finish of their home so that it would comply
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7. with the FAR. The zoning board of appeals agreed that the existing home at 81 Spooner
Road did not violate the zoning bylaw, but revoked the permit for 71 Spooner Road.
Both parties appealed to the Land Court, which upheld the revocation of the building
permit for 71 Spooner Road, and further ruled that the lot at 71 Spooner Road was not a
buildable lot because it was “infected” by the nonconformity with the FAR for 81
Spooner Road which was created by the ANR plan.
First, the Appeals Court found that the plaintiff had failed to rebut the presumption that
the Foggs had standing to appeal. The court then determined that the Foggs had brought a
timely appeal from their request for enforcement because they did not have notice of
issuance of the building permit.
The merits of the case hinged on whether 1000 square feet of “unfinished” space in the
71 Spooner Road house constituted gross floor area that counted toward the FAR. The
court found, based on the definitions of “attic” and “habitable space” in the bylaw, that
the unfinished space was suitable for human occupancy and therefore must be counted as
gross floor area. With the addition of that floor space, the house at 71 Spooner Road
exceeded the Town’s .30 FAR.
The court then addressed the Foggs’ argument that 81 Spooner Road was rendered
nonconforming when the lot was split, because the third floor attic had not been rendered
uninhabitable, and the house exceeded the FAR. The court ruled that the creation of the
nonconformity at 81 Spooner Road “infected” the new lot at 71 Spooner Road, rendering
it an invalid lot. The court ruled this despite the fact that the lot at 71 Spooner Road
complied with all of the dimensional requirements of the zoning bylaw: “The LLC may
not form a new building lot by dividing an existing conforming lot if as a result the latter
is rendered nonconforming by such a division.” Accordingly, the ruling that the building
permit be revoked was affirmed.
Glidden v. Zoning Board of Appeals of Nantucket,
77 Mass. App. Ct. 403 (2010) (IMQ)
Abutters were denied zoning enforcement when they sought an order revoking a building
permit to allow removal of a nonconforming garage and construction of a pool house at a
different location. In 1972, the relevant property and its structures became
nonconforming. In 1995, a variance was granted to allow a property swap to take place,
which made the property more conforming. In 2004, the property was sold and the new
owner obtained a special permit to allow removal of the garage and construction of the
pool house. In 2005, after construction began, the abutters began enforcement efforts,
arguing that the 1995 variance eliminated the grandfathering protection for the property.
The Land Court and the Appeals Court affirmed the decision to refuse zoning
enforcement, holding that the prior variance did not extend existing or create new
nonconformities and the land swap merely eliminated one nonconformity, making the
property more conforming
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8. The abutters argued that the 1995 variance changed the configuration of the original,
protected parcel and, therefore, the grandfathering protection was lost as a result.
The Appeals Court held that the grandfathering protection was not eliminated by the
reconfiguration of the lot because there was no change in the overall size of the lot and
there were no increases in existing nonconformities and no creation of any new
nonconformities. As a result, the Appeals Court held that no extension or alteration
occurred within the meaning of G.L. c.40A, §6, ¶4 occurred as a result of the
reconfiguration allowed under the variance.
The plaintiffs/abutters also unsuccessfully argued that the special permit was not
authorized by local bylaw regulating the reconstruction of pre-existing nonconforming
structures on lots where the permissible ground cover ratio is exceeded. In interpreting
the bylaw, the Appeals Court agreed with the Land Court and held that the bylaw
requirement that two or more structures that are reconstructed shall remain separate from
each other presumes that reconstructed structures may be relocated to conform to setback
requirements.
Johnson v. Board of Appeals of Hanover, 78 Mass. App. Ct. 292 (2010) (BJS)
In this case, the court ruled that an eminent domain taking of a portion of a
nonconforming lot destroyed the lot’s grandfather protection. The lot, known as Lot 38,
was first shown on a plan recorded in 1876 at the Registry. Prior to the taking, it
contained 25,770 square feet. In 1965, the Town adopted a one-acre minimum lot size for
the applicable zoning district, rendering the lot nonconforming. The court assumed, for
purposes of the case, that the lot was grandfathered under G.L. c. 40A §6 at that time. In
1971, the town took a portion of the lot for school purposes, leaving Lot 38 with 21,867
square feet. Lot 38 had remained a vacant lot. In 2005, Johnson applied for a building
permit for Lot 38, which was denied. Johnson appealed the denial to the zoning board of
appeals, and alternatively applied for a variance. The board denied both applications, and
Johnson appealed to the Land Court, which upheld the board.
The first sentence of G.L. c. 40A §6 exempts certain residential lots from changes in
zoning bylaws if “at the time of recording or endorsement”, the lot met certain minimum
requirements and “conformed to then existing [zoning] requirements.” The time of
recording or endorsement is the time of the most recent instrument of record prior to the
date of the zoning amendment. The Appeals Court noted that, at the time of the 1971
taking, a new plan was endorsed and recorded, which showed the specific lot for which
Johnson sought the building permit. The pre-taking lot therefore was not the relevant lot
in determining whether Lot 38 was grandfathered at the time of the building permit
application. As a consequence, the Appeals Court affirmed the Land Court ruling that the
grandfather provisions of chapter 40A §6 protected Lot 38 only from zoning amendments
enacted subsequent to the taking. The Appeals Court pointed out that the property owner
had had the opportunity to seek compensation for the diminution in value of the property
due to the taking.
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9. Cornell v. Michaud (Zoning Board of Appeals of Blackstone)
--- Mass. App. Ct. ---- (May 31, 2011) (IMQ)
In 1986, defendant property owner Michaud obtained a variance that allowed him to
reconfigure three parcels (Parcels 33, 47 and 48) into two lots, one of which (Parcel 48)
had an abandoned residence on it, with the condition that the abandoned dwelling be
removed. The variance was not recorded, but Michaud constructed a single-family
dwelling on what had been Parcel 47 and constructed a two-family dwelling on what had
been Parcel 33. In a related case, the Superior Court entered judgment that Parcel 48 (the
parcel with the abandoned dwelling was not buildable.)
In 2005, the plaintiff abutters noticed construction of a single-family structure on Parcel
48 and began enforcement proceedings after learning that a building permit issued to
Michaud, as part of an agreement by Michaud and the building inspector that did not
reference the prior litigation regarding Parcel 48. The building inspector denied
enforcement and the zoning board of appeals denied the appeal.
The Superior Court ordered that the building permit be revoked and the structure be
removed and the Appeals Court affirmed, finding that the prior ruling, that Parcel 48 is
not a buildable lot could not be relitigated.
The Appeals Court held the plaintiffs were not precluded from bringing the appeal even
though they did not appeal the building permit within thirty days of its issuance. The
Court found that the building permit was invalid as it was issued in contravention of the
previous judgment and that the plaintiffs timely sought zoning enforcement.
Additionally, the Appeals Court held that ordering removal of the structure was an
appropriate remedy because the landowner built despite notice of a nonconformity and
adverse judicial action.
Spear v. Board of Appeals of Danvers, 77 Mass. App. Ct. 220 (2010) (BJS)
Here is a case with a different kind of “grandfather” protection for a property containing
a residence and barn. In 1975, plaintiff’s grandfather obtained a use variance to utilize the
barn and adjacent land for commercial storage. In 1994, the property was divided into
two lots. Lot 2, containing the house and barn, fully complied with all dimensional
requirements, but Lot 1 required a frontage variance, which was granted. In 2000, a plan
was endorsed as “approval under the subdivision control law not required” (ANR) to
redivide the property by shifting lot lines. Lot 2A complied with all dimensional
requirements, while lot 1A continued to lack sufficient frontage.
In 2007, the building commissioner issued a cease and desist order to plaintiff, ordering
him to cease all commercial uses of the property. The order was upheld by the board of
appeals and subsequently the Land Court. The Appeals Court, however, determined that
no condition imposed on the 1975 variance was violated, nor was there any condition
imposed in the 1994 variance that the commercial use of the property cease. The Court
noted that, in order for a condition on a variance to be binding, it must be set forth in the
9

10. variance decision. Since no condition of either variance had been violated by plaintiff, the
Court ordered that the decision of the board of appeals be annulled.
DiRico v. Kingston, 458 Mass. 83 (2010) (BJS)
This is a rare appellate case interpreting G.L. c. 40R, the so-called “smart growth”
statute. Plaintiffs challenged the validity of a smart growth zoning district enacted by the
town. In June of 2006, the town submitted a proposed bylaw to the Department of
Housing and Community Development (DHCD) for preliminary approval, as required
under the detailed approval process required by chapter 40R. At the time, the amount of
developable land in the proposed district was correctly listed in the application as 69.6
acres. In October of 2006, the National Heritage and Endangered Species Program
issued an updated atlas that showed a substantial portion of the land in the proposed
district was priority habitat for rare species, and thus not considered developable land
under chapter 40R. Despite knowledge of this change, the town did not update its
application. On April 4, 2007, DHCD granted preliminary approval of the district, and on
April 11, 2007, the town meeting enacted the by-law amendment. DHCD subsequently
granted final approval to by-law, and plaintiffs, owners of land abutting or near the
district, filed a challenge to the validity of the by-law. The Land Court granted summary
judgment in favor of the town.
The Supreme Judicial Court transferred the case to its docket and affirmed the Land
Court. First, the court re-iterated the strong presumption in favor of the validity of local
ordinances and by-laws. The court stated that the town’s application, when originally
submitted, was accurate, and there was no requirement in chapter 40R or the chapter 40R
regulations to amend the application when the amount of developable land changed. The
court found that the town did have a duty to include the updated figure in its application
for final approval, and the annual update that the town is required to file each year. But
the court ruled that the failure to do so did not invalidate the adoption of the by-law by
town meeting. The amount of developable land is important in determining the density of
the development that will be allowed in the district, and the financial reward paid to the
town by the state for the smart growth district. Further, under the regulatory scheme, if
the town fails to file the annual updates, DHCD may revoke its certification of the smart
growth district, thereby terminating the financial payments to the town. Revocation of
certification does not, however, invalidate the by-law itself under the regulations.
PLUMBING CODE
Meyer v. Nantucket,
78 Mass. App. Ct. 385 (2010) (IMQ)
The plaintiff/homeowner installed plumbing in his home even though he was not a
licensed plumber. The plumbing inspector issued a cease and desist order and required
the plaintiff to stop the installation and remove all plumbing he had installed. Plaintiff
appealed to the Board of State Examiners of Plumbers, asserting that a homeowner is not
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11. subject to the requirement in G.L. c. 142, §3 that “no person shall engage in the business”
of plumbing without being licensed. The State Board upheld the cease and desist order.
The Superior Court affirmed and the Appeals Court affirmed the decision as to the need
for a homeowner to be licensed, but remanded the matter to the Superior Court for a
determination as to whether the plumbing must be removed.
The Appeals Court found G.L.c.142, §3 is ambiguous on the issue of whether a
homeowner must be licensed to perform home plumbing repairs, but found that the
regulations promulgated by the State Board and the policy embodied by the State Board’s
interpretation of the statute and the regulations were reasonable. The Appeals Court
ruled though that the standard required to remove the plumbing was a finding that the
plumbing work used defective materials and poor workmanship and there would have to
be further findings on those points.
SUBDIVISION
Czyoski v. Planning Board of Truro,
77 Mass. App. Ct. 151 (2010) (IMQ)
The plaintiffs/property owners filed a 15-lot definitive subdivision plan, with access
through an extension of an existing private way. The planning board voted to deny
approval, citing concerns with traffic and views. Plaintiffs appealed and obtained a
judgment that the plan was constructively approved. The planning board voted to rescind
the constructive approval.
The Land Court found and the Appeals Court affirmed that the planning board failed to
provide a good reason for rescission and so the decision was reversed. The Appeals
Court held that “a board’s ability to rescind constructive approvals provides a safety
valve that helps protect against legitimate police power concerns being dissipated by
sloppy practice. However, a planning board may not rescind its approval of a definitive
plan (constructive or otherwise) unless there is “good reason.” The Appeals Court stated
that “we cannot imagine that the Legislature intended that a planning board’s own failure
to abide by mandated procedures, without more, somehow provides a basis to reset the
ninety-day clock and start the process at square one.” So, when a planning board seeks to
rescind a constructive grant, the board must defend the rescission on the merits.
TELECOMMUNICATIONS ACT
Industrial Communications and Electronics, Inc. v. Town of Alton, F. 3d (1st
Cir.
2011) (BJS)
In this case brought under the federal Telecommunications Act, the court ruled that
neighbors that had intervened in the lawsuit could continue to press their case after the
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12. plaintiffs and the Town reached an agreement for judgment. The Slades, who owned
property within 200 feet of the proposed telecommunications tower, claimed that the
tower would impair their “panoramic view of Lake Winnipesaukee and the surrounding
mountains.” The proposed tower required a height variance from the town’s zoning
board of adjustment, which was denied. The plaintiffs made no attempt to overturn the
decision in state court, filing instead in federal district court under the TCA, claiming that
the decision had the effect of effectively prohibiting the provision of personal wireless
services. The Slades intervened in the action. Some time later, the Town reached an
agreement with plaintiffs, and the plaintiffs and town filed an agreement for entry of
judgment consent decree with the court. The agreement provided for vacating the board’s
denial and permitting a one hundred foot tower without any further hearing. The District
Court concluded that the Slades did not raise a claim that the federal court was
empowered to address, and entered the consent decree as a judgment. The Slades
appealed.
The Court of Appeals determined that the Slades could not bring a claim of their own
under the TCA, since only denials of requests to construct wireless facilities are
inconsistent with the Act. The Court of Appeals noted, however, that an intervenor may
continue to litigate as defendants in a lawsuit if they can show that they have suffered an
“injury in fact”. The Slades claimed an interest due to the impairment of their view.
More importantly, countervailing the Town’s interest in settling the case was the fact that
the Slades had a legal interest under state law in the protections of the Town’s zoning
bylaw. The consent decree overrode the Slades rights under state law. Thus, unless
plaintiffs can show that a violation of the TCA occurred, the Slades had the right to resist
entry of a decree terminating their rights under state law. The Court of Appeals remanded
the case back to the District Court, where the plaintiffs will be required to prove that they
are entitled to relief under the TCA.
COMPREHENSIVE PERMITS
Zoning Board of Appeals of Amesbury v. Housing Appeals Committee,
457 Mass. 748 (2010) (IMQ)
The developer was granted a comprehensive permit to construct a forty-unit
condominium development containing ten affordable units, with multiple conditions. On
appeal, HAC sought participation by DHCD and MassHousing as the appeal raised
“emerging policy considerations.” HAC granted the developer’s appeal and removed or
modified most of the conditions to which the developer objected.
The Superior Court affirmed the HAC’s decision and, on appeal, the SJC took the case
and held that the board’s conditions that related to regulatory documents, restrictions
profit limitation and marketing were beyond the board’s scope and had to be stricken and
required that the matter be remanded to the HAC for further proceedings regarding the
conditions that HAC indicated would not be struck.
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13. The Supreme Judicial Court held that the board of appeals did not have the authority to
impose conditions on the issuance of a comprehensive permit under G.L. c.40B if such
conditions were unrelated to the issues governed by individual local zoning authorities.
The SJC further ruled that the HAC had the authority to modify a permit to eliminate
conditions imposed by a board of appeals without issuing a finding that the conditions
rendered the development project “uneconomic.” The SJC recognized that conditions on
comprehensive permits under G.L. c. 40B, §21 are limited to such matters as “building
construction and design, siting, zoning, health, safety, environment, and the like.” The
SJC held that a zoning board’s power, when acting on a comprehensive permit
application, is limited to the authority otherwise provided to any town or city board. “In
other words, as defined in §21, the power of the board derives from, and is generally no
greater than, that collectively possessed by these other bodies.”
Herring Brook Meadow, LLC v. Scituate Zoning Board of Appeals, HAC No. 07-15
(2010) (BJS)
The Housing Appeals Committee (HAC) ruled that, once it has issued a decision on an
appeal ordering the issuance of the comprehensive permit within 30 days, an attempt by
the board of appeals to issue a permit with additional conditions more than 30 days later
was invalid, and the decision of the HAC is deemed to be the action of the board. The
board of appeals had denied an application for a comprehensive permit, and the developer
appealed to the HAC. After a hearing, the HAC overturned the board and ordered the
issuance of a comprehensive permit with conditions as specified by the HAC. Under
state regulations, the board had 30 days to issue the permit, or the HAC decision became
the action of the board.
The board appealed the HAC’s decision to the Land Court 29 days after the HAC
decision. Six days later, the board filed a motion to stay the HAC decision, which was
denied by the Land Court a month later. Twenty-one days after the Land Court denied the
motion to stay, the board met in executive session, and issued an amended decision which
granted the permit with a number of conditions that were not contained in the HAC
decision. The developer then filed a motion with the HAC to quash the board’s decision.
The HAC ruled that the filing of the complaint and the motion to stay did not “toll” the
thirty day time period that the board had to carry out the decision of the HAC. In
addition, even if there was a tolling, the board did not file the complaint until 29 days
after the HAC decision, and thus there was only one day left to “toll”. Since the board did
not move for a stay from the Land Court for six more days, and did not issue its decision
until twenty-one days after the Land Court denial of the motion, even if the filing of the
appeal could be construed to toll the thirty day time period, the board’s action was
untimely. Further, the HAC ruled that the amended decision issued by the board did not
carry out the order of the HAC as required by G.L. c. 40B §23. The HAC stated that, if
the board wanted to impose conditions on the permit, it should have either granted a
permit with conditions, or brought to the attention of the HAC during the hearing any
local concerns and proposed conditions. Finally, the HAC ruled that a board does not
have jurisdiction to act on its own and modify a comprehensive permit.
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14. Sugarbush Meadows, LLC v. Sunderland Board of Appeals,
HAC No 08-02 (2010) (IMQ)
The appellant appealed from a decision of the zoning board of appeals denying a
comprehensive permit for the construction of 150 affordable, mixed-income, rental
apartments. The HAC found that the regional need for housing outweighed the local
concerns.
The board argued that the fire department does not have a ladder truck and firefighters
will not be able to gain access to the roof of a third story building and the safety concerns
outweighed the regional need for affordable housing. The developer agreed to sprinkler
the buildings and provided expert testimony that the sprinklers eliminated the need for a
ladder truck. The HAC found that at least one ladder truck was available in a
neighboring community and disagreed with the fire chief that roof access during a fire
would be absolutely essential. The HAC noted that the town allows buildings of the
same height in other districts by special permit. The HACA determined that the board
failed to meet its burden of establishing a specific local fire safety concern with regard to
the proposed buildings that outweighed the regional need for affordable housing. The
HAC held that the board could file a motion to modify the decision if the board becomes
aware of additional reasonable conditions that might be imposed to assist the fire
department.
The HAC found that the board’s testimony as to traffic concerns was speculative and
insufficient to establish a local safety concern that outweighs the regional need for
affordable housing. The HAC concluded that the proposed development would not be
pedestrian friendly, but that there was nothing to indicate it is unusually dangerous. The
HAC found that the proposal is not so dangerous so as to outweigh the regional need for
affordable housing.
The HAC found that the wetlands bylaw is not stricter than state law, but even if it were,
the board did not present substantial evidence to show local wetland concerns outweighed
the regional need for affordable housing. Additionally, the Committee held that smart
growth issues were not properly before the HAC because there were no local
requirements that could legitimately be construed as smart-growth requirements.
Lastly, the HAC ordered the board to refund the $10,000 legal fee it charged the
appellant as the fee was for general legal representation and that type of fee is prohibited.
Hanover Zoning Board of Appeals and Hanover Woods, LLC, HAC No. 10-02
(2010) (BJS)
In this interlocutory appeal, the HAC determined that a comprehensive permit application
was deemed filed even though the entire application fee was not included in the filing.
The application was filed on October 22, 2009, but included only $2,500 of the $40,500
filing fee. On October 29, 2009, the Town reached a housing production milestone when
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15. it issued a comprehensive permit for another development, bringing the town into
compliance with its Housing Production Plan. By letter of November 3, 2009, the board
informed the developer that its application was incomplete and was not accepted. In
December, after certification that Hanover was in compliance with its Housing
Production Plan, the board informed that developer that the town had been certified and
any decision by the board would be, as a matter of law, consistent with local needs. The
developer appealed to the HAC.
The HAC upheld the filing fee of $40,500 as reasonable. State regulations require local
filing fees to be consistent with subdivision, cluster zoning, and other fees reasonably
assessed by the town. The HAC noted that the comprehensive permit fee was only 25%
of the required subdivision fee. However, it found that the Board could not invoke the
“safe harbor” provision, because compliance with the safe harbor provision must be
accomplished as of the date of the application. The HAC found that the date of the
application was October 22, 2009. It stated that there is “flexibility” with regard to the
contents of a local application, and failure to submit an item will not necessarily
invalidate an application. Although filing fees are not optional, the HAC found that an
honest mistake or good faith disagreement over the fee will not invalidate the application.
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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