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  • 1. MASSACHUSETTS ASSOCIATION OF PLANNING DIRECTORS 2010 ANNUAL CONFERENCE CASE LAW UPDATEPresented by:Barbara J. Saint André, Esq.Ilana M. Quirk, Esq.ZONINGAlbahari 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 vestsso as to protect a lot from a subsequent zoning by-law amendment. DefendantOwocki applied for a building permit to construct a single family home on twocontiguous parcels of land. The application was denied as incomplete by thebuilding commissioner, citing lack of septic plans, failure to furnish drivewaypermits, failure to furnish workers’ compensation affidavit, and issues with thefoundation plans. In addition, the nature of the soil on the lots placed at leastportions of the lots in the wetlands conservancy district, which would haveprohibited construction of the house. Owocki appealed the soil determination tothe board of appeals and prevailed. That decision was appealed by abutters to theSuperior 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 theeffect that Owocki’s lots would now be subject to the conservancy district. Afterfurther appeals by the neighbors were unsuccessful, the building commissionerissued the building permit, nearly five years after the original application. Theabutters appealed the building permit to the board of appeals, which upheld thebuilding commissioner. The board found that, prior to the first publication ofnotice of the planning board hearing, Owocki had satisfied two of the deficienciescited by the building commissioner, and the other two were ministerial in nature.The abutters appealed to the Land Court, which overturned the board of appealsdecision.General Laws chapter 40A §6 provides that “a zoning ordinance or by-law shallnot apply to…a building permit or special permit issued before the firstpublication of notice of the public hearing on such ordinance or by-law requiredby section five…”The Appeals Court noted that, although a mere application for a building permitdoes not protect land from zoning changes under G.L. c. 40A §6, once anapplicant 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 theapplicant is unconditionally entitled to its issuance.” The Appeals Court found,however, that Owocki was not unconditionally entitled to the issuance of abuilding permit before the first notice of the planning board public hearing,because no acceptable foundation plans were filed until after the first publicationof notice. Thus, chapter 40A §6 did not provide protection from the zoningamendment, and the building permit should not have been issued because the lotwas 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 anindependent living facility for residents did not qualify for protection as aneducational 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 anaverage age of 75, would not be required to satisfy academic requirements, wouldbe 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 feeof $4,000. In addition the Court found that two-thirds of the square footage of theproject would consist of housing and the size of the proposed residential unitswould far exceed the size of a dormitory room.The Land Court, after analyzing the extent of the educational services proposedand comparing those services to the project’s other elements, concluded that therecertainly would be a strong educational element to the project, but that theeducational elements would not be the primary purpose of the project and so theproject 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 FirstAmendment rights. This case involved challenges to two zoning by-lawamendments, adopted in 2001 and 2002, which restricted adult uses to the town’sCommercial District and imposed minimum separation distances between adultuses, and between adult uses and residential districts. The Court noted that, underthe First Amendment as well as the state Declaration of Rights, a by-law thatrestricts expression of adult content must meet a two-part inquiry: first, the courtmust evaluate the substantial government interest served by the by-law, whichmay include minimizing the secondary effects associated with adult uses. Second,the by-law must leave open reasonable alternative avenues of communication foradult expression. The town has the burden of justifying the challenged by-laws. 2
  • 3. The Court found that the 2001 by-law amendments, based on the evidence ofwhat the town relied upon prior to their enactment, were not adopted for thepurpose of protecting the town from the secondary effects of adult uses. TheCourt found that Hanover had not gathered any information whatsoever aboutadult uses and associated secondary effects prior to enacting these amendments.Accordingly, the Court struck down the 2001 amendments as in violation of theFirst Amendment.With regard to the 2002 amendments, the Court found that Hanover had sustainedits burden of showing that the amendments were enacted to combat the secondaryeffects of adult uses. The planning board had four studies from around the countryon the subject in its files, referenced the secondary effects in its notice of publichearing, and the by-law itself specifically stated that its purpose was to combatthese effects.The 2002 amendments were still invalidated, however, on the town’s failure toshow that the amendments left reasonable alternatives for adult expression. TheCourt found that only eight parcels in the town could realistically be used foradult uses in compliance with the zoning by-law amendments. Although the townargued that other parcels were available, the Court exhaustively reviewed theseother parcels and found, for various reasons, such as the lots were nonconforming,that they were not readily available as alternative sites. The eight parcelsamounted to .44% of the town’s total land area, and 3.4% of the non-residentialzones, with a town population of 14,000. The Court noted that the eight parcelswere all occupied by existing uses, and ruled that the Town had failed to sustainits burden of proof that there were reasonable alternative means of adultexpression.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 beerand wine store in a vacant portion of the strip mall that included a day care centerand a special needs school for teenagers and a pharmacy that sold items thatserved children and was in close proximately to a primary school and anelementary school.The Appeals Court upheld the denial after finding that the specific zoningprovision at issue expressly allowed the SPGA to consider “neighborhoodcharacter and social structures” as well as the “particular characteristics of thesite.” The Court held that the SPGA properly considered the proximity of the twoschools, the day care facility and the special needs school to the proposed beerand wine store and the existence of a pharmacy that sold items that attractchildren when evaluating the character of the neighborhood and determining thatthe proposed use would constitute a detriment to the neighborhood. 3
  • 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 adjacentlots, the first containing a four-unit dwelling, and the second containing a parkinglot, came into common ownership in1950. Mr. Azzam entered into an agreementto purchase the two lots, contingent on receiving approval to construct a two-unitdwelling where the parking lot was located. The permits were issued, the two-unit building was constructed, and occupancy permits were issued. The buildingcommissioner some time later revoked the occupancy permits, finding that thetwo lots had merged, and the permit for the additional two units therefore violatedthe zoning by-law. Azzam appealed the determination, and also applied for avariance. The board denied the appeal, but granted the variance. Azzam appealedthe denial, and the abutter across the street appealed the variance. The two caseswere consolidated.The court first ruled that Hoffman had standing to appeal the variance, since theadditional 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 matterof law, because it contained no finding with respect to two of the criteria forgranting a variance (substantial detriment to the public good and substantiallyderogating from intent of ordinance). The board merely recited the statutoryprerequisites. The variance application was remanded back to the board forfurther findings.The court made short shrift of Azzam’s argument that the two lots had not mergedbecause they maintained “separate identities”. The court noted that “separateidentities” means simply that the lots have not merged, and the fact that the lotshave been described separately did not save them from merging for purposes ofzoning.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, 74Mass. App. Ct. 804, review denied 455 Mass. 1104 (2009), the doctrine of mergerpresents 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: “whenadjacent nonconforming lots come into common ownership, they are normally mergedand treated as a single lot for zoning purposes” and repeated the long standing rule that anundersized lot must retain its “separate identity” in order to maintain its protection; butclarified there is no rule that “adjacent nonconforming lots that in some sense retain 4
  • 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 thecommon-law merger doctrine (and an essential element of any zoning analysis) and thatis that one must always look to see if there is a more generous local zoning provision thatprovides more protection than state law.In McGrath, the Appeals Court noted that the common-law merger doctrine is appliedwithin the context of G.L. c.40A, §6 and, while G.L. c. 40A, §6 provides for the mergerof contiguous, undersized lots held in common ownership in specific circumstances, acommunity 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 commonownership until at least 1984 and, at as of that time, were nonconforming as to minimumlot 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 thatneither side submitted evidence regarding what, if any, local grandfathering provisionexisted 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) wereretained by one owner. In 1986, the owner of the two contiguous parcels had a surveyplan prepared and recorded it. The survey plan showed a solid boundary around the twocontiguous parcels and a dashed line that depicted the historic boundary between the twoparcels. 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” inexistence 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 3to her son and, in 2003, her son conveyed Parcel 3 to one of the defendants in thelitigation.The Chatham Building Inspector issued a building permit for Parcel 3, after determiningthat Chatham’s local grandfathering provision was more generous than state law. Theplaintiff abutter appealed and the Chatham Zoning Board of Appeals upheld the BuildingInspector’s determination. The Land Court upheld the Zoning Board of Appeals’decision. The Appeals Court noted that the operative question was whether the twoparcels had merged as a matter of law before January 1, 1987. The Appeals Court thenstated that the evidence regarding merger was ambiguous and found that the plaintiffabutter had not “met her burden of proof” to show that the local board’s decision on thispoint 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 ownerwho bears the burden of proof to establish that a nonconforming use or structure iseligible for grandfathering protection. Interestingly, one of the seminal cases on thispoint is from Chatham! See, Building Inspector of Chatham v. Kendrick, 17 Mass. App.Ct. 928, 929 (1983). 5
  • 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 thePlanning Board for a new academic building and a new athletic/multipurposebuilding on its campus. The planning board denied the application, and theAcademy appealed, claiming that the Duxbury Zoning By-law provision wasinvalid on its face when applied to its educational use. Under the so-called DoverAmendment, G.L. c. 40A §3, zoning by-laws may not prohibit or require a specialpermit for educational uses, and may only impose reasonable bulk, height, openspace, lot size, parking, building coverage and yard requirements. The LandCourt ruled the by-law provision invalid on its face, and the Appeals Courtaffirmed. The Appeals Court noted that the Dover Amendment does notcontemplate the requirement of site plans for exempt uses. The Court furthernoted that the site plan provisions of the zoning by-law invested considerablediscretion in the planning board over educational uses, which it found antitheticalto the Dover Amendment’s provisions. Finally, the Court stated that it did notaddress the question of whether under the Dover Amendment, a site planprovision might pass muster in the context of a zoning by-law scheme that isconsistent with the Dover Amendment: i.e. limited to bulk and height ofstructures, 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 ofCornell v. Dracut, which dealt with the expiration of variances. In Cornell, the SJC heldthat, under G.L. c.40A, §10, a variance must be recorded and must be exercised byundertaking activity authorized under the variance within one year if its grant (plus timefor appeals) or the variance will lapse.In Lobisser, a special permit was granted in 1985 to allow construction of 84 townhousecondominiums in four phases. The first phase of construction was timely undertaken in1986; however, after the second phase was constructed in 1988, there was a cessation ofactivity for 18 years. In 2006, when a modification of the original special permit wassought, the SPGA denied it, asserting that the special permit had lapsed as to third andfourth phases.The SJC ruled that, under G.L. c.40A, §9, when a special permit grants permission forphased development and construction of the first phase timely begins and there is not anexpress requirement regarding the date or dates upon which subsequent phases shallbegin, then the permit does not lapse, even where there was a cessation of activity for 18years. 6
  • 7. The SJC noted that nothing in G.L. c.40A, §9 suggests or requires that “substantial use orconstruction” 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 BuildingInspector and Building Commissioner of Falmouth, 52 Mass. App. Ct. 422, 424 (2001),that a special permit should not be “warehoused indefinitely;” but then held thatmunicipal boards that are concerned about lengthy delays in phased construction projectsmust “alleviate such concerns by including an express time limitation as a condition ofapproval of a special permit for a phased construction project.” Lobisser at p. 132.Local decisions involving phased development should expressly deal with expirationissues.Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Board of Appealof Billerica, 454 Mass. 374 (2009). (IMQ)The SJC held in this case that a board of appeal’s decision to refuse, in the late1990’s, to modify an unappealed condition set forth in a 1992 special permit andvariance decision, that that required that there be only one entrance-exit to adevelopment, was arbitrary and capricious because changes in circumstances hadoccurred and the board’s decision did not justify the denial decision.While the SJC affirmed that a court must afford “substantial deference” to aboard’s interpretation of its zoning, it held that a board must provide reasons in itsdecision that support the decision and, in this case, the board merely recited thestatutory or regulatory language and provided no explanation of what detrimentthe public good might result or how the modification would not be in the bestinterests of the town or neighborhood. The SJC noted that references to theboard’s meeting minutes, on appeal (i.e. after the decision was prepared), werenot sufficient.Most importantly, the SJC rejected the board’s argument that the late 1990’sappeal was an untimely appeal of the one-entrance condition that was contained inthe 1992 zoning decisions. The SJC found that the conditions that surrounded theproperty in 1992 had changed “significantly” after 1992 and that a change to anunappealed condition can be sought and appealed if denied, if there have beensignificant 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 withknowledge that the lot was nonconforming was not, by itself, grounds to denyzoning relief as a “self-created hardship”. The case involved three contiguous lotsin an old subdivision, each of which had the minimum 25,000 square feet requiredwhen approved. In 1995, the lots were zoned rural residential, which required a 7
  • 8. minimum lot size of 60,000 square feet of which 43,560 must be contiguousupland. 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 thecity. A petition for a variance from the dry land requirement (as well as a specialpermit for a common driveway) was denied when the board of appeals concludedthat plaintiffs created their own hardship by purchasing unbuildable lots and thenseeking 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 consideredself-created when the property owner, by some overt act, transforms what wasonce a conforming lot into a nonconforming lot. The Court noted that most stateshave held that the purchase of a nonconforming lot does not preclude zoningrelief, because the purchaser does not acquire less right to a variance than theseller. The Court ruled that the act of purchasing a nonconforming lot withknowledge that the lot is nonconforming is not, by itself, sufficient basis to deny avariance, and therefore the Superior Court erred in affirming the board of appealson that basis.The Appeals Court went on to review the Superior Court’s affirmance of theboard’s denial based on the determination that the contiguous dry landrequirement relates to the size of the lot, not to soil conditions, shape ortopography within the meaning of chapter 40A §10, and therefore could not be thebasis for a variance application. The Appeals Court disagreed, determining thatwhether land is a wetland under the Wetlands Protection Act requires anexamination of, among other things, the condition of the soil as it relates to thepresence of water. As such, the dry lot requirement relates to the soil conditions ortopography 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 thatartificial turf did not comply with the requirements of the Brockton zoningordinance for “green space”. The plaintiff sought to construct a car wash, whichrequired site plan review. The site plan, which showed “green areas” to complywith the requirements of the ordinance, was approved. When plaintiff installedartificial turf in the “green areas”, an occupancy permit was denied. Plaintiffappealed to the board of appeals, which unanimously voted that the artificial turfwas not in compliance with the ordinance. On appeal, the Land Court noted that itdeferred to some extent to the judgment of the local board. Although “greenspace” was not defined in the ordinance, the Court looked at the context of theordinance, including the purpose of the green space, which was to reduceimpervious surface and promote aesthetics. The intent to require live plantings,rather than artificial turf, was confirmed by the use of the term “landscaping” inthe 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. 8
  • 9. SUBDIVISIONBernstein 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 theeffective date of the subdivision zoning freeze, the timing of a constructive endorsementof a subdivision and the invalidation of a local zoning provision on the grounds that it didnot allow at least one use in an overlay district as of right in violation of the so-calledSCIT doctrine.The Appeals Court noted that the eight-year subdivision zoning freeze is not triggereduntil an endorsement of the plan occurs and then held that a constructive approval isincomplete until the municipal clerk issues a certification regarding the approval, therebyfinalizing 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 eachzoning district “without the need for the landowner or developer first to seek permissionwhich depends upon the discretion of local zoning authorities.” SCIT, Inc. v. PlanningBoard of Braintree, 19 Mass. App. Ct. 101 (1984).In Bernstein, the Appeals Court held that simply allowing one or all of the statutorilyexempt uses will not be sufficient to satisfy the as of right use requirement establishedunder SCIT. The Court found that a significant or valuable use of land, beyond the usesthat are exempted under G.L. c.40A, §3 and beyond uses that are merely incidental oraccessory, 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, theplanning board denied subdivision approval to a plan filed in 2002 due to the plan’sfailure to comply with the board’s rules and regulations governing centerline offset. The2002 plan proposed to subdivide land that was shown on a previous subdivision plan, in1982, in which the applicant agreed to certain conditions, which were filed at the Registryof Deeds as a covenant. The conditions included that any future subdivision must be incompliance with the subdivision rules and regulations, and that two of the lots remainsingle-family dwellings and front on High Street, so that only one lot, Lot 2B, wouldderive access from the private way shown on the plan. The 2002 plan proposed tosubdivide Lot 2B into three lots. The board denied the 2002 subdivision for failure tocomply with the rules and regulations as to centerline offset, and based on its finding thata waiver of that requirement would not be in the public interest or consistent with theintent and purpose of the Subdivision Control Law. 9
  • 10. Plaintiff argued that no waiver of the centerline offset was required because theprivate way had been approved on the 1982 plan. That waiver, granted in 1982, wassubject, however, to the conditions imposed by the board, and the 2002 plan wouldviolate 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 boardnoted the deferential review standard. The court noted that the plaintiff’s burden inshowing that the refusal to grant a waiver was not in the public interest was “nearlyinsupportable”. The second factor in considering whether to grant a waiver is whether itwould be inconsistent with the purpose and intent of the Subdivision Control Law. Thecourt noted that, while this may be given more scrutiny by the court, “it is a rareoccurrence for a court to disturb a board’s discretionary decision to deny a waiver ofcompliance”. The court noted that the private way would intersect High Street, a busyroad, near its intersection with another busy road, Kent Street. The court on the factsupheld 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 asubdivision for consultant fees that had been incurred by the Town, through itsplanning board, in the review of a definitive subdivision plan. The outstandingfees were for services rendered by the Town’s consulting engineer and towncounsel to the planning board during the subdivision review process. The ownerof the subdivision argued that it was not the “applicant”, and therefore was notresponsible for the consultant fees under the board’s regulations. It also arguedthat it was not aware of the fees and that the fees should have been paid by theapplicant. The court noted, however, that the application was signed by both theapplicant and the owner. By signing the application, the owner agreed to complywith 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 feesincurred in the subdivision process. The Town, which had paid the consultantsbills when the applicant and owner declined to do so, was awarded the fullamount 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 affordedunder G.L. c.41, §81FF. Under the Subdivision Control Law, the recording of asubdivision plan “in the registry of deeds before the subdivision control law was ineffect in the city or town in which the subdivision was located shall not exempt theland within such subdivision from the operation of said law except with respect tolots which had been sold and were held in ownership separate from that of the 10
  • 11. remainder of the subdivision when said law went into effect in such city or town, andto 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 theSubdivision Control Law and with lots that were conveyed into separate ownership on orbefore 1951, a planning board still “may impose any lawful requirements, and maydisregard [the recorded subdivision plan] and its scheme except so far as regard thereto isnecessary in order to leave the lots which were separately owned in 1951 [when theSubdivision 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 thepurposes of G.L. c.41, §81FF, “is to make it clear ‘that [unregistered] plans ofsubdivisions in a city or town recorded prior to the going into effect of the [SubdivisionControl] law in such city or town shall be valid only with respect to lots held in separateownership when the law went into effect in such city or town, and to rights ofappurtenant 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 applythe [Subdivision Control] law that the existing exempt rights of ways of the lotsseparately owned … are not destroyed or substantially limited or interfered with.”Toothaker v. Planning Board of Billerica, 346 Mass. At p. 440. When acting upon asubdivision plan to provide access for the non-exempt lots, “the planning board, as acondition of approving a subdivision plan for the plaintiffs’ land, may impose any lawfulrequirements, and may disregard the 1914 plan and its scheme except so far as regardthereto is necessary in order to leave the lots which were separately owned in 1951 withthe substance of their rights of ways.” Id. This would include requiring a greater widthfor so much of a way as is not adjacent to an exempt lot. Id. Finally, there is no questionthat a planning board, even where rights exist under G.L. c.41, §81FF, may imposerequirements 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 becontrasted with the “breadth of the public safety concerns enumerated by the GeneralCourt in G.L. c.41, §81M.” He found that §81FF (where applicable) would preclude aplanning board from imposing greater way width requirements, but it did not precluderequiring a proper turnaround for emergency vehicles that could be accommodatedwithout impairing the rights afforded under §81FF.TELECOMMUNICATIONS ACTOmnipoint 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 ofOmnipoint on the denial of a variance and special permit to build a wirelesscommunications tower in Cranston, Rhode Island. The District Court found thatthe denial violated the provision of the Telecommunications Act (TCA) that local 11
  • 12. zoning authorities may not prohibit or have the effect of prohibiting the provisionof personal wireless services. The Court of Appeals found that Omnipoint hadcarried its burden of proving that there was a significant gap in coverage and thatthere were no alternatives to Omnipoint’s proposed solution. Whether there is asignificant gap in coverage depends upon the carrier’s own coverage, not whetherother carriers have coverage in the same area. Among the issues to be reviewedare the physical size of the gap, the number of users affected, and whether all ofthe carrier’s users in the gap area are affected. In this case, the Court credited thetestimony of Omnipoint’s expert, and did not credit the testimony of the Town’sconsultant.The second issue on which Omnipoint bore the burden of proof was to show thatthe local authorities have prevented it from closing that gap. The Court noted thatit must balance competing interests, the interest expressed in the TCA to promotecompetition and eliminate significant service gaps, and the TCA’s recognition ofthe right of local authorities to regulate land use. The carrier has the heavy burdento show not just that this application has been rejected, but that further efforts tofind another solution would be fruitless. In this case, Ominpoint showed that ithad systematically searched for other solutions, and made financial offers andnegotiated unsuccessfully with the owner of another site. Again, the District Courtrejected the evidence of the Town’s consultant, who proposed the use ofmicrocells, as the microcells were shown to not be compatible with Omnipoint’snetwork. Accordingly, the Court upheld the judgment of the District Court.Barbara J. Saint André is a principal with the law firm of Petrini & Associates inFramingham. She has over 25 years of experience representing cities and towns acrossthe state as town and special counsel, with particular emphasis on land use (includingzoning, subdivision, Chapter 40R, planning, health, zoning enforcement, and wetlands),comprehensive permits and housing, and general municipal law. Petrini & Associates isa law firm concentrating in the practice of municipal law, public construction, labor, andland use. The firm is town counsel to Framingham, Medway, Sherborn and WestBrookfield 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 privatedevelopers, during the permitting process and in litigation before all courts (1983 to1987); Senate Counsel to the joint committee of the General Court that developssubdivision and zoning legislation (1987 to 1994); Town Planner (2003 to 2006 ); andMunicipal 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 emphasison comprehensive permits, enforcement of all types, historic district issues, subdivisionand 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 communitiesin the Commonwealth as municipal counsel and approximately another third, at anygiven time, as special counsel or insurance defense counsel. 12