2011 Annual Conference Case Law Update


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

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2011 Annual Conference Case Law Update

  1. 1. MASSACHUSETTS ASSOCIATION OFPLANNING DIRECTORS2011 ANNUAL CONFERENCECASE LAW UPDATEPresented 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 toimpose a condition on a subdivision approval requiring the applicant to convey land tothe town for open space. Collings sought approval of a definitive subdivision plan of fivelots on 55 acres of land. The proposed access was from a public way via a new 1300 footdead end street. The planning board regulations limited dead end streets to 500 feet, butallowed 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 theportion of the locus suitable for development to be dedicated to open space. The boarddetermined there were four open space areas on the plan, and required that a minimum of10% of the land be dedicated to open space with public access. The board required thatthe open space parcels be offered first to the town’s conservation commission for openspace, then to a land trust with a conservation restriction, and, if neither accepted, to ahomeowners association. Collings appealed to the Land Court, which upheld the planningboard.Collings argued that the condition requiring that the applicant offer the land to the townviolated G.L. c. 41 §81Q, which prohibits a subdivision approval be conditioned ondedication of land to public use or conveyance to the town for any public purpose withoutjust compensation. The board argued that the grant of the various waivers for thesubdivision constituted compensation for the land. The Appeals Court rejected theboard’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.” TheAppeals 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 lotsimposed out of safety concerns arising from the length of the street, would be properunder §81Q. But in this case, the Appeals Court determined that the planning board wentfurther, and required a subdivision applicant to grant land to the town for reasonsunrelated to adequate access and safety of the subdivision. There was no justification forrequiring transfer of the property to the town, where the concerns on the number of lotscould be addressed by simply requiring land remain as open space. The exercise ofwaivers 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 thefloodplain/wetlands district and the recreation/conservation districts of the zoning bylaw.
  2. 2. Collings argued that a hill on Lot 5 was erroneously included in the districts, and soughtto introduce new plans and a survey of the flood plain. The Land Court correctly ruledthat 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 thezoning bylaw allowed the board of appeals to grant a special permit to allow a structurein the flood plain district if it is clearly shown that the land was included in the district inerror. Plaintiffs had not pursued this remedy.ZONINGKenner 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 specialpermit to allow for the demolition, reconstruction and expansion of a house. Plaintiffsclaimed standing or the necessary legal interest to maintain their appeal by pointing to alocal zoning by-law, which provided that, when deciding whether to grant a specialpermit, the board shall consider, among other things, the “[i]mpact of scale, siting andmass on neighborhood visual character, including views, vistas and streetscapes.”The Land Court held that the plaintiffs lacked standing. The Appeals Court reversed theLand Court. The SJC then reversed the Appeals Court and held that the Land Court’sdetermination that the plaintiffs lacked standing was not clearly erroneous and, so, it hadto be upheld.Specifically, the SJC held that the plaintiffs lacked standing because the local zoningbylaw did not protect individual homeowners’ views of the ocean from their ownproperty, but, rather, addressed the visual impact of a proposed structure on the visualcharacter on the neighborhood as a whole. Since the local zoning by-law did not definethe plaintiffs’ view as a separate protected interest and since the Land Court judge foundthat the impact of the project on the plaintiffs’ view would be de minimus, the allegeddiminution in value of the plaintiffs’ property was not a basis for property. The SJCnoted that “generally speaking, concerns about the visual impact of a proposed structureon 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 ofappeals should take into consideration the visual impact of a proposed structure,” thenthat “defined protected interest may impart standing to a person whose impaired interestfalls within that definition.” The SJC held that, under the local zoning by-law provisionsat issue, a plaintiff, to establish standing, “would need to show a particularized harm tothe plaintiff’s own property and a detrimental impact on the neighborhood’s visualcharacter.” (Emphasis added.) The SJC also held that a plaintiff must put forth “credibleevidence to show that they will be injured or harmed by proposed changes to an abuttingproperty” and that it is not enough that a plaintiff would simply be “impacted” by theproposed change.2
  3. 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 varianceto allow for construction of a garage. Plaintiffs claimed they would be injured becausethey would lose some of their existing view of an adjacent pond and there would be anincrease in density and in an existing nonconformity.The Land Court held that the plaintiffs lacked standing. The Appeals Court reversed theLand 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 waterview, 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 densityand dimensional provisions, including those calling for a “visual buffer” between lots, onan already nonconforming lot, then such intrusion can confer standing.” The AppealsCourt noted that the degree of injury to the plaintiffs was in dispute and that the issue ofstanding 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 theincreased density was not decided by the Land Court” the matter was remanded to theLand Court for that determination.Schiffenhaus v. Kline, Mass. App. Ct. (2011) (BJS)This case involves a determination by the Truro building commissioner that a projectwould not increase the nonconforming nature of a pre-existing structure. The parcel inquestion has over 9 acres. The zoning bylaw requires a minimum of 150 feet of frontageon a street of at least 40 feet in width. An owner of a conforming lot is allowed to have asingle family residence and a “habitable studio” on the same lot. The lot in questionfronted 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 intoa “habitable studio” by removing the kitchen, and construct a new 6800 square footresidence on the site. The neighbors appealed, and the board of appeals upheld thebuilding commissioner. On appeal to the Land Court, the Land Court reversed the findingof 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 hadstanding to appeal. Plaintiffs alleged that the project would increase traffic andexacerbate unsafe conditions on the road, and interfere with plaintiffs’ easement over theKline property. Defendants apparently did not rebut these allegations, and thus did notchallenge the plaintiffs’ presumption of standing as parties in interest. Further, theAppeals Court reviewed whether plaintiffs could establish standing by assertingimpairment of their view. The Appeals Court found that the zoning bylaw did notexplicitly refer to views, but the bylaw incorporated the town’s comprehensive plan,which did contain statements encouraging the preservation of vistas and views. Thus,3
  4. 4. plaintiffs could also establish standing by showing a particularized harm to their ownproperty 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 houserequires conformity with the zoning bylaw. Although the definition in the bylaw is broadand includes almost any conceivable change to an existing structure, the construction ofan entirely new building, at a different location, is not an alteration. Moreover, Kline’sattempt to satisfy the zoning bylaw by filing an ANR plan that showed the road frontinghis property to be reconfigured to 40 feet did not satisfy the requirements of the ZoningBylaw. 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 singlefamily dwelling on forty-six acres of land that lacked sufficient frontage. An initialvariance was conditioned on the imposition of a deed restriction limiting the use of theproperty to a single-family dwelling, but the variance lapsed. A second variance wasissued to the prior owner with the same or a similar condition and, while the secondvariance was not used to construct a dwelling, the required deed restriction was recordedin 2000 against the property when the prior owner sold the property.In 2005, defendant Gray Wolf obtained a special permit to construct a primary dwellingon the property, with two housekeeping units, horse stables and related structures.Plaintiffs/abutters appealed the special permit relief, arguing that the proposed use wasnot an agricultural use protected under G.L. c.40A, §3 and that the variances remained ineffect and precluded the use proposed by Defendant Gray Wolf.The Superior Court issued summary judgment upholding the special permit, finding thatthe proposed use was a valid agricultural use that is protected under G.L. c.40A, §3 andthat the plaintiff/abutters lacked standing to enforce the 2000 deed restriction..The Appeals Court upheld the determination that the proposed use was a protectedagricultural use because it involved the raising, training and boarding of horses and foundthat the issue of whether the variances had lapsed or not was therefore irrelevant becausethe “conclusion that the proposed use is protected by G.L. c.40A, §3, stands as a whollyindependent basis authorizing the proposed use, rendering the variances, and theconditions thereto, entirely irrelevant.”The Appeals Court then went onto hold that the plaintiffs/abutters did have standing toenforce the 2000 deed restriction, holding that: “an owner of land that adjoins therestricted land is entitled to enforce a deed restriction, whether or not the instrumentimposing the restriction contains an express statement that the adjoining land is intendedto benefit from the restriction.” The Appeals Court reversed the Superior Court on this4
  5. 5. point and remanded the matter to the Superior Court for further proceedings regarding theeffect 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 acluster subdivision. Plaintiff sought a special permit to build 24 detached single familyhomes on a 32 acre tract of land, with the required open space, to be served by an on-sitecommon well and common septic system. The special permit and companion definitivesubdivision plans were denied, because Nexum failed to comply with the zoning bylawrequirements to establish the permissible density of the project, and it could not complywith the conditions imposed by the board of health for the on-site water supply. Althoughthe court agreed with plaintiff that the planning board did not properly identify thereasons for its denial, the court refused to remand the matter to the board, as it determinedthat no legally permissible action by the planning board could change the result denyingthe 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 evidencedby a soils test consistent with Title 5. This establishes the number of lots that could bebuilt under a conventional subdivision plan. In this case, Nexum did not perform a soilstest on each lot shown on its preliminary density plan, arguing that a single soil test for acommon septic system complied with the zoning bylaw. The court found, however, thatthe clear meaning of the bylaw required a soil test on every lot to determine if the lot wasbuildable. Nexum also argued that the tentative approval by the board of its preliminarysubdivision yield plan should have been conclusive. The court noted, however, that thetentative approval by the planning board was part of a pre-application conferencedescribed 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 therecommendations of the board of health. The board of health conditioned its approval ona showing that the water supply could meet peak summer usage and would not have asignificant effect on the wells of abutting land owners. The trial court found that Nexumcould not meet these conditions. The Appeals Court upheld that finding, and the planningboard therefore was required to deny the application. In addition, the court found that thezoning bylaw required the planning board to make a finding that a proposed clusterdevelopment made adequate provisions for water supply in order to grant a special permitand definitive subdivision plan. The trial judge found that the proposed water supply wasinadequate and the application therefore did not meet the criteria of the bylaw. For all ofthese reasons, the Appeals Court upheld the denial of the special permit and definitivesubdivision plan.5
  6. 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 homepark to add 14 units to the 65units (a 24% increase). The park was created in the 1950’sand in 1985 it became nonconforming when the use was prohibited. The zoning bylawallowed the extension, alteration, reconstruction or repair of a nonconforming use,provided the extension shall not exceed 25% and shall not be substantially moredetrimental to the neighborhood. The zoning board of appeals denied relief becausewhile the proposed expansion was less than 25%, the board found that the expansionwould be substantially more detrimental to the neighborhood.The Land Court reversed the board’s decision; however, the Appeals Court reversed theLand Court. Further appellate review has been granted and argument is scheduled forSeptember 2011.The Appeals Court rejected every reason for denial advanced by the zoning board ofappeals except that the proposed project would increase the density at the property andthen concluded that the “board’s concern for increased density furnished adequatejustification for its decision to deny the permit.” The Appeals Court held that “[t]here isno dispute that the proposed expansion would result in a significant increase in theproject’s density, or that density is within the scope of concerns the board is permitted toconsider. Zoning is a distinctly local matter, and in circumstances where reasonableminds 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 noreason to support a finding that the increase in density would be substantially moredetrimental 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 revokeddue to “infectious invalidity”. Plaintiff acquired 81 Spooner Road in 2004, at which timeit contained 22,400 square feet and an existing home with 3,812 square feet of livingspace. 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 andthe existing home, and 71 Spooner Road with 11,648 square feet. The lot with theexisting house, 81 Spooner Road, was sold, and in 2005 plaintiff obtained a buildingpermit for a single family home at 71 Spooner Road. The abutters, the Foggs,subsequently sought enforcement when they learned of the building permit, claiming thatthe two homes violated the floor area ratio (FAR) provision of the zoning bylaw. Thebuilding commissioner denied the request, on the basis that the owners of 81 SpoonerRoad had agreed to remove the interior attic finish of their home so that it would comply6
  7. 7. with the FAR. The zoning board of appeals agreed that the existing home at 81 SpoonerRoad 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 buildingpermit for 71 Spooner Road, and further ruled that the lot at 71 Spooner Road was not abuildable lot because it was “infected” by the nonconformity with the FAR for 81Spooner Road which was created by the ANR plan.First, the Appeals Court found that the plaintiff had failed to rebut the presumption thatthe Foggs had standing to appeal. The court then determined that the Foggs had brought atimely appeal from their request for enforcement because they did not have notice ofissuance of the building permit.The merits of the case hinged on whether 1000 square feet of “unfinished” space in the71 Spooner Road house constituted gross floor area that counted toward the FAR. Thecourt found, based on the definitions of “attic” and “habitable space” in the bylaw, thatthe unfinished space was suitable for human occupancy and therefore must be counted asgross floor area. With the addition of that floor space, the house at 71 Spooner Roadexceeded the Town’s .30 FAR.The court then addressed the Foggs’ argument that 81 Spooner Road was renderednonconforming when the lot was split, because the third floor attic had not been rendereduninhabitable, and the house exceeded the FAR. The court ruled that the creation of thenonconformity at 81 Spooner Road “infected” the new lot at 71 Spooner Road, renderingit an invalid lot. The court ruled this despite the fact that the lot at 71 Spooner Roadcomplied with all of the dimensional requirements of the zoning bylaw: “The LLC maynot form a new building lot by dividing an existing conforming lot if as a result the latteris rendered nonconforming by such a division.” Accordingly, the ruling that the buildingpermit 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 buildingpermit to allow removal of a nonconforming garage and construction of a pool house at adifferent location. In 1972, the relevant property and its structures becamenonconforming. 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 newowner obtained a special permit to allow removal of the garage and construction of thepool 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 zoningenforcement, holding that the prior variance did not extend existing or create newnonconformities and the land swap merely eliminated one nonconformity, making theproperty more conforming7
  8. 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 thereconfiguration of the lot because there was no change in the overall size of the lot andthere were no increases in existing nonconformities and no creation of any newnonconformities. As a result, the Appeals Court held that no extension or alterationoccurred within the meaning of G.L. c.40A, §6, ¶4 occurred as a result of thereconfiguration allowed under the variance.The plaintiffs/abutters also unsuccessfully argued that the special permit was notauthorized by local bylaw regulating the reconstruction of pre-existing nonconformingstructures on lots where the permissible ground cover ratio is exceeded. In interpretingthe bylaw, the Appeals Court agreed with the Land Court and held that the bylawrequirement that two or more structures that are reconstructed shall remain separate fromeach other presumes that reconstructed structures may be relocated to conform to setbackrequirements.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 anonconforming 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, itcontained 25,770 square feet. In 1965, the Town adopted a one-acre minimum lot size forthe applicable zoning district, rendering the lot nonconforming. The court assumed, forpurposes of the case, that the lot was grandfathered under G.L. c. 40A §6 at that time. In1971, the town took a portion of the lot for school purposes, leaving Lot 38 with 21,867square feet. Lot 38 had remained a vacant lot. In 2005, Johnson applied for a buildingpermit for Lot 38, which was denied. Johnson appealed the denial to the zoning board ofappeals, and alternatively applied for a variance. The board denied both applications, andJohnson appealed to the Land Court, which upheld the board.The first sentence of G.L. c. 40A §6 exempts certain residential lots from changes inzoning bylaws if “at the time of recording or endorsement”, the lot met certain minimumrequirements and “conformed to then existing [zoning] requirements.” The time ofrecording or endorsement is the time of the most recent instrument of record prior to thedate of the zoning amendment. The Appeals Court noted that, at the time of the 1971taking, a new plan was endorsed and recorded, which showed the specific lot for whichJohnson sought the building permit. The pre-taking lot therefore was not the relevant lotin determining whether Lot 38 was grandfathered at the time of the building permitapplication. As a consequence, the Appeals Court affirmed the Land Court ruling that thegrandfather provisions of chapter 40A §6 protected Lot 38 only from zoning amendmentsenacted subsequent to the taking. The Appeals Court pointed out that the property ownerhad had the opportunity to seek compensation for the diminution in value of the propertydue to the taking.8
  9. 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 toreconfigure 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 beremoved. The variance was not recorded, but Michaud constructed a single-familydwelling on what had been Parcel 47 and constructed a two-family dwelling on what hadbeen Parcel 33. In a related case, the Superior Court entered judgment that Parcel 48 (theparcel with the abandoned dwelling was not buildable.)In 2005, the plaintiff abutters noticed construction of a single-family structure on Parcel48 and began enforcement proceedings after learning that a building permit issued toMichaud, as part of an agreement by Michaud and the building inspector that did notreference the prior litigation regarding Parcel 48. The building inspector deniedenforcement and the zoning board of appeals denied the appeal.The Superior Court ordered that the building permit be revoked and the structure beremoved and the Appeals Court affirmed, finding that the prior ruling, that Parcel 48 isnot a buildable lot could not be relitigated.The Appeals Court held the plaintiffs were not precluded from bringing the appeal eventhough they did not appeal the building permit within thirty days of its issuance. TheCourt found that the building permit was invalid as it was issued in contravention of theprevious judgment and that the plaintiffs timely sought zoning enforcement.Additionally, the Appeals Court held that ordering removal of the structure was anappropriate remedy because the landowner built despite notice of a nonconformity andadverse 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 containinga residence and barn. In 1975, plaintiff’s grandfather obtained a use variance to utilize thebarn and adjacent land for commercial storage. In 1994, the property was divided intotwo lots. Lot 2, containing the house and barn, fully complied with all dimensionalrequirements, but Lot 1 required a frontage variance, which was granted. In 2000, a planwas endorsed as “approval under the subdivision control law not required” (ANR) toredivide the property by shifting lot lines. Lot 2A complied with all dimensionalrequirements, while lot 1A continued to lack sufficient frontage.In 2007, the building commissioner issued a cease and desist order to plaintiff, orderinghim to cease all commercial uses of the property. The order was upheld by the board ofappeals and subsequently the Land Court. The Appeals Court, however, determined thatno condition imposed on the 1975 variance was violated, nor was there any conditionimposed in the 1994 variance that the commercial use of the property cease. The Courtnoted that, in order for a condition on a variance to be binding, it must be set forth in the9
  10. 10. variance decision. Since no condition of either variance had been violated by plaintiff, theCourt 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 thetown. In June of 2006, the town submitted a proposed bylaw to the Department ofHousing and Community Development (DHCD) for preliminary approval, as requiredunder the detailed approval process required by chapter 40R. At the time, the amount ofdevelopable land in the proposed district was correctly listed in the application as 69.6acres. In October of 2006, the National Heritage and Endangered Species Programissued an updated atlas that showed a substantial portion of the land in the proposeddistrict was priority habitat for rare species, and thus not considered developable landunder chapter 40R. Despite knowledge of this change, the town did not update itsapplication. On April 4, 2007, DHCD granted preliminary approval of the district, and onApril 11, 2007, the town meeting enacted the by-law amendment. DHCD subsequentlygranted final approval to by-law, and plaintiffs, owners of land abutting or near thedistrict, filed a challenge to the validity of the by-law. The Land Court granted summaryjudgment in favor of the town.The Supreme Judicial Court transferred the case to its docket and affirmed the LandCourt. First, the court re-iterated the strong presumption in favor of the validity of localordinances and by-laws. The court stated that the town’s application, when originallysubmitted, was accurate, and there was no requirement in chapter 40R or the chapter 40Rregulations to amend the application when the amount of developable land changed. Thecourt found that the town did have a duty to include the updated figure in its applicationfor final approval, and the annual update that the town is required to file each year. Butthe court ruled that the failure to do so did not invalidate the adoption of the by-law bytown meeting. The amount of developable land is important in determining the density ofthe development that will be allowed in the district, and the financial reward paid to thetown by the state for the smart growth district. Further, under the regulatory scheme, ifthe town fails to file the annual updates, DHCD may revoke its certification of the smartgrowth district, thereby terminating the financial payments to the town. Revocation ofcertification does not, however, invalidate the by-law itself under the regulations.PLUMBING CODEMeyer v. Nantucket,78 Mass. App. Ct. 385 (2010) (IMQ)The plaintiff/homeowner installed plumbing in his home even though he was not alicensed plumber. The plumbing inspector issued a cease and desist order and requiredthe plaintiff to stop the installation and remove all plumbing he had installed. Plaintiffappealed to the Board of State Examiners of Plumbers, asserting that a homeowner is not10
  11. 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 needfor a homeowner to be licensed, but remanded the matter to the Superior Court for adetermination as to whether the plumbing must be removed.The Appeals Court found G.L.c.142, §3 is ambiguous on the issue of whether ahomeowner must be licensed to perform home plumbing repairs, but found that theregulations promulgated by the State Board and the policy embodied by the State Board’sinterpretation of the statute and the regulations were reasonable. The Appeals Courtruled though that the standard required to remove the plumbing was a finding that theplumbing work used defective materials and poor workmanship and there would have tobe further findings on those points.SUBDIVISIONCzyoski v. Planning Board of Truro,77 Mass. App. Ct. 151 (2010) (IMQ)The plaintiffs/property owners filed a 15-lot definitive subdivision plan, with accessthrough an extension of an existing private way. The planning board voted to denyapproval, citing concerns with traffic and views. Plaintiffs appealed and obtained ajudgment that the plan was constructively approved. The planning board voted to rescindthe constructive approval.The Land Court found and the Appeals Court affirmed that the planning board failed toprovide a good reason for rescission and so the decision was reversed. The AppealsCourt held that “a board’s ability to rescind constructive approvals provides a safetyvalve that helps protect against legitimate police power concerns being dissipated bysloppy practice. However, a planning board may not rescind its approval of a definitiveplan (constructive or otherwise) unless there is “good reason.” The Appeals Court statedthat “we cannot imagine that the Legislature intended that a planning board’s own failureto abide by mandated procedures, without more, somehow provides a basis to reset theninety-day clock and start the process at square one.” So, when a planning board seeks torescind a constructive grant, the board must defend the rescission on the merits.TELECOMMUNICATIONS ACTIndustrial Communications and Electronics, Inc. v. Town of Alton, F. 3d (1stCir.2011) (BJS)In this case brought under the federal Telecommunications Act, the court ruled thatneighbors that had intervened in the lawsuit could continue to press their case after the11
  12. 12. plaintiffs and the Town reached an agreement for judgment. The Slades, who ownedproperty within 200 feet of the proposed telecommunications tower, claimed that thetower would impair their “panoramic view of Lake Winnipesaukee and the surroundingmountains.” The proposed tower required a height variance from the town’s zoningboard of adjustment, which was denied. The plaintiffs made no attempt to overturn thedecision in state court, filing instead in federal district court under the TCA, claiming thatthe decision had the effect of effectively prohibiting the provision of personal wirelessservices. The Slades intervened in the action. Some time later, the Town reached anagreement with plaintiffs, and the plaintiffs and town filed an agreement for entry ofjudgment consent decree with the court. The agreement provided for vacating the board’sdenial and permitting a one hundred foot tower without any further hearing. The DistrictCourt concluded that the Slades did not raise a claim that the federal court wasempowered to address, and entered the consent decree as a judgment. The Sladesappealed.The Court of Appeals determined that the Slades could not bring a claim of their ownunder the TCA, since only denials of requests to construct wireless facilities areinconsistent with the Act. The Court of Appeals noted, however, that an intervenor maycontinue 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 thatthe Slades had a legal interest under state law in the protections of the Town’s zoningbylaw. The consent decree overrode the Slades rights under state law. Thus, unlessplaintiffs can show that a violation of the TCA occurred, the Slades had the right to resistentry of a decree terminating their rights under state law. The Court of Appeals remandedthe case back to the District Court, where the plaintiffs will be required to prove that theyare entitled to relief under the TCA.COMPREHENSIVE PERMITSZoning 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-unitcondominium development containing ten affordable units, with multiple conditions. Onappeal, HAC sought participation by DHCD and MassHousing as the appeal raised“emerging policy considerations.” HAC granted the developer’s appeal and removed ormodified most of the conditions to which the developer objected.The Superior Court affirmed the HAC’s decision and, on appeal, the SJC took the caseand held that the board’s conditions that related to regulatory documents, restrictionsprofit limitation and marketing were beyond the board’s scope and had to be stricken andrequired that the matter be remanded to the HAC for further proceedings regarding theconditions that HAC indicated would not be struck.12
  13. 13. The Supreme Judicial Court held that the board of appeals did not have the authority toimpose conditions on the issuance of a comprehensive permit under G.L. c.40B if suchconditions 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 eliminateconditions imposed by a board of appeals without issuing a finding that the conditionsrendered the development project “uneconomic.” The SJC recognized that conditions oncomprehensive permits under G.L. c. 40B, §21 are limited to such matters as “buildingconstruction and design, siting, zoning, health, safety, environment, and the like.” TheSJC held that a zoning board’s power, when acting on a comprehensive permitapplication, is limited to the authority otherwise provided to any town or city board. “Inother words, as defined in §21, the power of the board derives from, and is generally nogreater 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 anappeal ordering the issuance of the comprehensive permit within 30 days, an attempt bythe board of appeals to issue a permit with additional conditions more than 30 days laterwas invalid, and the decision of the HAC is deemed to be the action of the board. Theboard of appeals had denied an application for a comprehensive permit, and the developerappealed to the HAC. After a hearing, the HAC overturned the board and ordered theissuance of a comprehensive permit with conditions as specified by the HAC. Understate regulations, the board had 30 days to issue the permit, or the HAC decision becamethe action of the board.The board appealed the HAC’s decision to the Land Court 29 days after the HACdecision. Six days later, the board filed a motion to stay the HAC decision, which wasdenied by the Land Court a month later. Twenty-one days after the Land Court denied themotion to stay, the board met in executive session, and issued an amended decision whichgranted the permit with a number of conditions that were not contained in the HACdecision. 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” thethirty day time period that the board had to carry out the decision of the HAC. Inaddition, even if there was a tolling, the board did not file the complaint until 29 daysafter the HAC decision, and thus there was only one day left to “toll”. Since the board didnot move for a stay from the Land Court for six more days, and did not issue its decisionuntil twenty-one days after the Land Court denial of the motion, even if the filing of theappeal could be construed to toll the thirty day time period, the board’s action wasuntimely. Further, the HAC ruled that the amended decision issued by the board did notcarry out the order of the HAC as required by G.L. c. 40B §23. The HAC stated that, ifthe board wanted to impose conditions on the permit, it should have either granted apermit with conditions, or brought to the attention of the HAC during the hearing anylocal concerns and proposed conditions. Finally, the HAC ruled that a board does nothave jurisdiction to act on its own and modify a comprehensive permit.13
  14. 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 acomprehensive permit for the construction of 150 affordable, mixed-income, rentalapartments. The HAC found that the regional need for housing outweighed the localconcerns.The board argued that the fire department does not have a ladder truck and firefighterswill not be able to gain access to the roof of a third story building and the safety concernsoutweighed the regional need for affordable housing. The developer agreed to sprinklerthe buildings and provided expert testimony that the sprinklers eliminated the need for aladder truck. The HAC found that at least one ladder truck was available in aneighboring community and disagreed with the fire chief that roof access during a firewould be absolutely essential. The HAC noted that the town allows buildings of thesame height in other districts by special permit. The HACA determined that the boardfailed to meet its burden of establishing a specific local fire safety concern with regard tothe proposed buildings that outweighed the regional need for affordable housing. TheHAC held that the board could file a motion to modify the decision if the board becomesaware of additional reasonable conditions that might be imposed to assist the firedepartment.The HAC found that the board’s testimony as to traffic concerns was speculative andinsufficient to establish a local safety concern that outweighs the regional need foraffordable housing. The HAC concluded that the proposed development would not bepedestrian friendly, but that there was nothing to indicate it is unusually dangerous. TheHAC found that the proposal is not so dangerous so as to outweigh the regional need foraffordable 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 outweighedthe regional need for affordable housing. Additionally, the Committee held that smartgrowth issues were not properly before the HAC because there were no localrequirements that could legitimately be construed as smart-growth requirements.Lastly, the HAC ordered the board to refund the $10,000 legal fee it charged theappellant 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 applicationwas 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 $40,500filing fee. On October 29, 2009, the Town reached a housing production milestone when14
  15. 15. it issued a comprehensive permit for another development, bringing the town intocompliance with its Housing Production Plan. By letter of November 3, 2009, the boardinformed the developer that its application was incomplete and was not accepted. InDecember, after certification that Hanover was in compliance with its HousingProduction Plan, the board informed that developer that the town had been certified andany decision by the board would be, as a matter of law, consistent with local needs. Thedeveloper appealed to the HAC.The HAC upheld the filing fee of $40,500 as reasonable. State regulations require localfiling fees to be consistent with subdivision, cluster zoning, and other fees reasonablyassessed 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 beaccomplished as of the date of the application. The HAC found that the date of theapplication was October 22, 2009. It stated that there is “flexibility” with regard to thecontents of a local application, and failure to submit an item will not necessarilyinvalidate an application. Although filing fees are not optional, the HAC found that anhonest 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 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.15