Zoning

Hull-Wind-Turbine-from-seantyler-via-FlickrControversial Wind Turbine Project Approved, Over Neighbors’ Opposition, Appeals Court Rules

Plans for a controversial wind turbine on top of Turkey Hill in swanky coastal Cohasset could soon move forward after the Massachusetts Appeals Court upheld a land court ruling that the town’s planning board acted appropriately when it approved the project. The court dismissed opposition arguments by neighbors and a nearby skilled-nursing home who challenged the project’s legality.

The wind turbine is proposed to be sited at the apex of 410-foot-tall Turkey Hill in the northwest corner of Cohasset, in the 314-acre Whitney Thayer Woods, and would be within 1,000 feet of the Golden Living skilled-nursing home and homes on the Hingham side of the border. The nursing home and neighbors complained that the turbine would emit excessive “shadow flicker,” noise and also risk various public safety issues. 

In 2011, the Cohasset Planning Board held hearings on the wind turbine plans, and issued a special permit with numerous conditions for which the operator must comply. The abutters focused on the “flickering shadows” that the 150-foot blades would cast on nearby properties. Land Court judge Gordon Piper in 2012 upheld the board’s approval, determining that the permit’s special conditions adequately address safety concerns and follow zoning bylaws. For example, the permit requires that the organization monitor flickering and make sure that it doesn’t exceed 30 minutes per day or 300 hours per year.

The Appeals Court quickly shot down all of the neighbor’s concerns, holding that it would not second-guess the judgment of local officials who granted the permit.

According to the Patriot Ledger, Jim Younger, the director of structural resources and technology at the Trustees of Reservations said that the group is “very pleased” with the court’s ruling and grateful for the widespread support for the project. “At this time, we are still very interested in moving forward with the project and will be reassessing our options following the lengthy delays to the project. We will keep the community informed as we complete this review.”

Wind turbine projects are becoming increasingly more accepted by towns to boost both power and revenue so they are less reliant upon the “grid.” This ruling shows how difficult it is for abutters and neighbors to challenge a wind project once the town planning board has issued a permit.

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pic_INDEX58 Legislators Pushing Comprehensive Zoning Reform Bill

“Inclusionary Zoning” Provision May Expand Controversial 40B Law

With “Smart Growth” advocates strongly behind them, a cadre of Beacon Hill lawmakers are pushing a controversial bill that for the first time in 37 years would comprehensively overhaul state law governing municipal zoning, subdivision control, and planning. Proponents of the bill argue that stalled smart growth projects such as the new Assembly Square in Somerville (shown at right) would be beneficiaries of the new bill.

The bill, H.B. 1859 — unprecedented in its scope and reach — would change Massachusetts zoning and land use law as we know it. Approval not required (ANR) plans and current variance review standards would be gone, while “inclusionary zoning” (another potential iteration of the state’s conversional affordable housing 40B law) would be expanded along with the legality of “impact fees” — mandatory payments from developers to towns to mitigate development impacts.

The principal sponsor, Rep. Stephen Kulik, a Worthington Democrat unveiled the bill during an event this week at the Statehouse. Versions of this bill have been introduced before, but I have not seen so many legislators in support of the bill as before. Rep. Kulik said the goal is to pass the bill by the end of this year’s formal legislative session on July 31, 2013.

A summary of the bill is as follows:

  • Abolishes ANR plans, a law that allows subdivisions to be built with no planning board review or approval if the proposed homes front an existing road.
  • Allows a community to require only a simple majority vote to change a zoning law. Now, a two thirds vote at a town meeting is needed to change a zoning law.
  • Authorizes “inclusionary zoning,” which allows a community to require that a percentage of homes in a new development be affordable. In exchange, a developer could build more homes on a lot than permitted under zoning.
  • Allows a majority vote on a zoning or planning board in order to issue a special permit. Currently, it takes a two thirds vote to approve a special permit. The bill establishes a method for extending a special permit, which now can be issued for up to two years before it needs to be reprocessed.
  • Approves impact fees for a community to recoup some of the capital costs for private developments.
  • Creates an alternative process to resolve disputes among applicants, municipal officials and the public. Allows for a “neutral facilitator” to work through difficulties in a proposed development.
  • Overhauls the current law on issuing variances from zoning ordinances or bylaws. According to supporters of the bill, the current law is too restrictive for property owners and towns, tying the hands of members of zoning boards and preventing them from solving many simple problems for owners. The bill establishes reasonable procedures for variances while still maintaining a community’s ability to set conditions or reject a variance.
  • Creates the option of consolidated permitting for projects. Developers currently often need multiple permits from boards with different jurisdictions and requirements and reviews that sometimes take years to complete.
  • Rewrites a law that allows for master plans. The bill updates the elements of a master plan to include five requirements: goals and objectives, housing, natural resources and energy, land use and zoning and putting the plan into effect.
  • Allows local regulations to require dedicating up to 5 percent of subdivision land for park or playground use by residents.

In my opinion, some of the provisions are great ideas such as providing a consolidated “one-stop shopping” forum for all permitting in a town, reforming the variance standards, and providing a dispute resolution forum for local disputes. Other provisions will be much more controversial such as the inclusionary zoning and impact fees. This is a sweeping change in Massachusetts zoning and land use law, and I will be monitoring it closely. Thank you to Attorney Donald Pinto at the Massachusetts Land Use Monitor for alerting me to the bill.

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Massachusetts real estate closing attorneyExpands Realtors’ Disclosure Liability and Invalidates Exculpatory Clause In Standard Form Purchase and Sale Agreement

It’s been a very tough week for Boston, to say the least. (Please consider donating to the One Boston Fund over here —>).

Unfortunately I have some more bad news for Massachusetts real estate agents, as the Supreme Judicial Court recently ruled against a Realtor for failing to properly verify a representation made on MLS concerning a listing’s zoning classification. The closely watched case is DeWolfe v. Hingham Centre Ltd. (SJC-11168) (embedded below).

Zoned For Business or Residential?

The lawsuit was brought by a buyer of a hair salon business who relied upon what turned out to be erroneous information supplied by the listing agent (through information provided by the seller). The broker represented on the Multiple Listing Service (MLS) and newspaper advertising that the property was zoning “Business B,” which allowed a hair salon. Further, the broker placed at the property copies of pages from the town’s zoning by-law that listed hair salons as “Permitted Business Uses” in the Business B District. The property was not, in fact, zoned for business use; it was zoned residential, thereby prohibiting the hair salon the buyer wanted to open at the property. The buyer sued for misrepresentation and violations of the Consumer Protection Act, Chapter 93A.

Ruling: Realtors Have Duty to Exercise “Reasonable Care” In Making Zoning Representations

In an unanimous opinion by Justice Barbara Lenk, the SJC stated that while a real estate broker may ordinarily rely upon information provided by his client, where such reliance is unreasonable in the circumstances, an agent has a duty to independently investigate the information before conveying it to a prospective buyer.

The court ultimately held that all Massachusetts real estate agents have a duty to exercise reasonable care in making representations as to a property’s zoning designation.

Here, the owner testified that he told the real estate broker that the property was zoned “Residential Business B.”  The experienced broker apparently knew that there was no such zoning district in Norwell, and instead advertised the property as zoned “Business B.”  In addition, the broker was aware of no prior business use of the property, and had observed houses – not businesses – adjoining the property on either side.  Based on these facts, the SJC concluded that a jury could find that the broker was on notice that the information provided by the owner was unreliable, and acted unreasonably in representing the property as zoned “Business B” without conducting any further investigation.

Exculpatory Clause in Standard Form P&S Not Applicable

The SJC also rejected the broker’s argument that the exculpatory clause in the standard form purchase and sale agreement barred the buyer’s claims. The familiar contract language provides:

The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has he relied upon any warranties or representations not set forth or incorporated in this agreement or previously made in writing, except for the following additional warranties and representations, if any, made by either the SELLER or the Broker(s): NONE.

The justices held that, under the confusing, double-negative language quoted above, a buyer can rely on prior written representations that are not set forth or incorporated in the agreement. Therefore, the agreement did not protect the broker from liability arising from the written misrepresentations in the newspaper ad, the MLS listing, and the inapplicable zoning by-law placed at the property.

The SJC has sent the case back to the trial court for a possible jury trial or, most likely, towards settlement. And hopefully the Greater Boston Real Estate Board is re-drafting its poorly worded exculpatory clause.

Advice For Realtors Going Forward

  • Do NOT say or write anything on MLS or anywhere else concerning a property’s zoning status. Make the buyer conduct his/her own independent research.
  • If your MLS requires input of zoning status, put the zoning with the following disclaimer:  *subject to buyer verification
  • Never trust your client when it comes to information concerning the property. I hate to say this, but when it comes to disclosures, it’s true.
  • Always independently verify information about the property from available public sources. Here, the agent could have simply gone down to the town planning office to verify whether the property was zoned commercial or residential.

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RDV-profile-picture-larger-150x150.jpgRichard D. Vetstein, Esq. is a Massachusetts attorney with substantial experience in real estate disclosure litigation brought by buyers against Realtors. Please contact him at info@vetsteinlawgroup.com or 508-620-5352.

 

Dewolfe v. Hingham Center

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massachusetts medical marijuanaAttorney General Strikes Down Wakefield Ban On Medical Marijuana Dispensaries

As I predicted months ago, Massachusetts towns cannot enact zoning by-laws prohibiting medical marijuana dispensaries from opening in town, as the Attorney General has just ruled in an advisory opinion involving the Town of Wakefield. In the same ruling, the Attorney General advised that towns do have the authority through its zoning powers to regulate the location, operating hours, and other zoning related aspects of these dispensaries. In a separate ruling involving the Town of Burlington, the AG ruled that towns may enact a temporary moratorium (through June 2014) on the opening of marijuana dispensaries.

The AG’s medical marijuana ruling for Wakefield can be read here. The AG’s medical marijuana ruling for Burlington can be read here.

Now it will be up to towns and cities to regulate where medical marijuana centers will be located within their borders — for example, near a hospital, in an industrial area or away from schools or residential areas.

This is the first legal ruling involving medical marijuana in the Commonwealth, and certainly won’t be the last. This hot-button issue will most definitely find its way to the courts, and I’ll be keeping you updated with any new developments.

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Breaking: Attorney General Strikes Down Wakefield Ban on Dispensary

Hazy Legal Landscape Providing Angst to Town Planners

Massachusetts voters overwhelmingly approved the Medical Marijuana Ballot Initiative/Question 3 (click for full text), opening the door to the opening of at least 35 medical marijuana dispensaries throughout the state in 2013. But, the bigger question is whether the same voters and town leaders will support the opening of dispensaries on their own street corners and downtown areas. Many towns and cities are already gearing up for a fight over the locations, as one marijuana law firm is already scheduling seminars on how to open up dispensaries in Framingham. In litigious Massachusetts, we can certainly expect aggrieved abutters to challenge the opening of what they call “pot shops” next to their residences and businesses. The actual opening of marijuana dispensaries could be years away due to litigation and opposition.

Up To 35 Marijuana Dispensaries in 2013

The ballot law authorizes the opening of up to 35 dispensaries in 2013, and the Department of Public Health retains authority to open more later if demand is there. The law requires that at least one dispensary must be located in each of Massachusetts’ 14 counties, but caps each county at no more than 5 locations. The law seeks an accelerated rollout of dispensaries. Treatment centers can file applications as early as January 1, 2013, and open up to 120 days later, subject to the rollout of regulations by the state Department of Public Health.

Possible Target Locations

Based on size, county seat, and demographics, likely locations for marijuana dispensaries in Eastern Massachusetts would include: ((This is my own opinion/analysis.))

  • Boston, Roxbury/Dorchester/Mattapan, South Boston (Suffolk County)
  • Cambridge, Lowell, Framingham, Marlborough, Waltham, Woburn (Middlesex County) ((The location of dispensaries in Middlesex county — Massachusetts’ most populous county — will be a huge battle.))
  • Lawrence, Salem, Peabody, Lynn (Essex County)
  • Dedham, Quincy, Brookline, Franklin (Norfolk County)
  • Brockton, Plymouth, Middleboro (Plymouth County)
  • Taunton, New Bedford (Bristol County)
  • Worcester (Worcester County)

A Smoky Legal Landscape

The ballot provision, however, is very murky as to how cities and towns are supposed to handle the potential influx of dispensaries. This is causing town leaders to scramble for legal guidance as to whether they should either attempt to block locations wholesale or enact special zoning districts regulating the placement of dispensaries.

As for any attempt to block the opening of marijuana centers, the question will have to be answered by the courts as the law is silent as to whether municipalities have this power. The legal issues surrounding municipal zoning and siting of medical marijuana dispensaries will likely follow similar cases involving methadone clinics, alcohol treatment centers/sober houses and even adult entertainment venues — all uses which are legal, yet subject to reasonable zoning governance. Additionally, treatment centers could seek protection from the American’s With Disabilities Act and other disability laws which protect cancer, HIV, glaucoma and other qualified patients who are entitled to receive medical marijuana.

I am of the opinion that a municipality cannot enact an ordinance or by-law which will block a marijuana dispensary from opening in town as long as the dispensary has complied with all DPH regulations. The town, however, can utilize its zoning powers to regulate where in town such a dispensary can be located, so long as the town does not enact illegal “spot zoning” in so doing.

While medical marijuana may have passed fairly easily on Election Day, it will probably be some time before Massachusetts sorts out all the legal issues as to where these dispensaries should go.

I am going to keep this post updated with news articles and posts about the new law and reaction to it, below.

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Richard D. Vetstein, Esq. is an experience Massachusetts zoning and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at info@vetsteinlawgroup.com.

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Fate of New Long Wharf Waterfront Restaurant At Stake

A neighborhood fight to preserve prime public waterfront space at the tip of Boston’s Long Wharf will be heard by the Supreme Judicial Court (SJC) in November. Ten North End neighbors — termed the “North End Ten” —  have been battling the Boston Redevelopment Authority (BRA) and the Department of Environmental Protection (DEP) for six years over the city’s plan to lease the space to a restaurateur who wants to build “Doc’s Long Wharf,” a new pub style restaurant and bar at the scenic location. Residents argue that the state constitution requires a two-thirds vote of the Legislature before public open space can be converted to other uses.

The legal issues in the case are rather complicated, dealing with historic uses of Long Wharf and whether it was dedicated to public use as open space and is thus protected under Article 97 of the Massachusetts Constitution, requiring a two-thirds vote of the Legislature to effect a disposition or change in use of the land. The BRA’s original proposal was for a 220-seat pub that would have replaced the pavilion located beyond the Marriott Long Wharf hotel and Chart House restaurant. BRA officials have argued that the restaurant would help activate the waterfront. Residents argued it would create more noise and disturbance in a picturesque park area.

This case really exemplifies why Massachusetts and the City of Boston have a bad reputation for real estate permitting. If you ever been down to this area at the tip of Long Wharf, you know it’s screaming out for better use. Right now, it’s often inhabited by skateboarders and vagrants, annoying folks trying to soak in the beautiful views of Boston Harbor. I think that a nice restaurant with stunning harbor views and an outdoor patio area would be amazing and a great addition to the under-utilized end of that pier. Under the proposed Chapter 91 license, the proposed use would maintain public access along the wharf. It was the same situation with Rowes Wharf decades ago, and now look at that space. It is a model of waterfront mixed use development.

But 10 neighborhood activists disagree, and the travesty is that they can derail this project for years. Indeed, the lead plaintiff, Sanjoy Mahajan, lives a mile away from Long Wharf on Jackson Street. The other plaintiffs are scattered throughout North End proper, buffered from the proposed restaurant by the massive Marriott Long Wharf, the harbor and Christopher Columbus Park. These activists are not remotely affected by the proposed restaurant in terms of noise and the like. Notably, not one resident of Harbor Towers, the residential condominium closest to Long Wharf, have participated in this legal challenge.

I hope that even if the SJC rules that a 2/3rds legislative vote is required here, that our elected officials will not cave in to the whims of a few locals at the expense of the public at large.

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Richard D. Vetstein, Esq. is a Massachusetts real estate and zoning attorney. Mr. Vetstein frequently represents Boston residents and companies in zoning matters before City of Boston zoning and licensing boards.

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Credit: Boston Globe

Mayor Menino Targets Eyesore Satellite Dishes

Consistent with his reputation as the “urban mechanic,” Mayor Thomas M. Menino, along with the City Council, want to pass a new ordinance to clean satellite dish clutter on residential properties in Boston. As reported by the Boston Globe, the proposal would require the removal of all obsolete satellite dishes and ban new installations from facades and other walls facing the street, unless an installer can prove there is no other place to get a signal. Dishes would have to be placed on roofs, in the rear, or on the sides of buildings. East Boston Councilor Salvatore LaMattina, who has spearheaded the effort, says that this ordinance will help “save the character of our neighborhoods.’’

Ordinance May Run Afoul of FCC Rules

The proposed ordinance, however, may face legal challenge by the satellite dish industry and affected satellite subscribers. The Federal Communications Commission (FCC) has ruled that state or local laws are invalid if they unduly impair the right of a subscriber to receive satellite programming on a one meter dish installed on property within owner or renter’s exclusive use or control. For a person living in a multi-dwelling unit, an area such as a balcony, patio or garden not shared with other tenants would be considered property within the individual’s exclusive control. Under the FCC rule, the only two situations where restrictions are permissible is if (1) the restriction is necessary for a clearly defined, legitimate safety objective; or (2) it is necessary to preserve a historic building.

A Solution: Building Wide Equipment

Granted, the satellite dishes covering buildings in many neighborhoods isn’t the nicest thing to see. See Cambridge Street in Allston, for example. However, since the proposed ordinance is concerned predominantly with aesthetics and not any legitimate safety concerns, it may not survive judicial review.

The FCC rules do, however, permit and encourage building-wide community satellite facilities so all residents can get a strong signal without cluttering up the facade of a building with a myriad of dishes. Perhaps the Mayor and the City Council can work with the satellite providers on getting funding for this equipment rather than waste taxpayer money defending a questionable ordinance.

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Richard D. Vetstein, Esq. is a Massachusetts real estate and zoning attorney. Mr. Vetstein frequently represents Boston residents and companies in zoning matters before City of Boston zoning and licensing boards.

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Realtor Held Liable For Erroneous MLS Information

The Massachusetts Supreme Judicial Court has agreed to hear the case of DeWolfe v. Hingham Centre Ltd. which will consider two very important issues for the real estate community, especially agents. The first issue is the scope of a real estate agent’s duty to disclose and independently verify property information posted on the Multiple Listing Service (MLS). The second issue is whether the exculpatory clause found in the Greater Boston Real Estate Board’s standard form purchase and sale agreement legally prohibits a buyer’s misrepresentation claim against the real estate agent.

The case was originally decided by the Appeals Court, and I wrote a full post about it here. The original opinion can be read here.

In summary, the real estate agent, relying on what turned out to be erroneous information supplied by his client, listed a Norwell property on Multiple Listing Service (MLS) and newspaper advertising as “zoned Business B.” The property was not, in fact, zoned for business use; it was zoned residential, thereby prohibiting the hair salon the buyer wanted to open at the property. Despite the general disclaimer on the MLS system and in the purchase and sale agreement, the Appeals Court held that the Realtor could be held liable for misrepresentation and Chapter 93A violations due to providing this erroneous information.

This will be a very important case for the real estate brokerage industry, and we will be monitoring it. Oral arguments are expected to be held in late summer or early fall, with a final ruling coming a few months thereafter.

In the meantime, my advice remains the same:

  • Do not make any representations concerning zoning. Advise the buyer to go to the town/city planner or hire an attorney for a zoning opinion.
  • Never trust your client. I hate to say this, but when it comes to disclosures, it’s true.
  • Always independently verify information about the property from available public sources. Here, the agent could have simply gone down to the town planning office to verify whether the property was zoned commercial or residential. (The buyer or his attorney could have done so as well—this was a complete failure on all sides).
  • When it comes to zoning, which can be complex and variable, think twice before making blanket statements. Better to be 100% sure before going on record about whether certain uses are permissible. You can always get a zoning opinion from a local attorney.

*Hat tip to a new real estate blog on the scene, Disgruntled Neighbors by Attorney Andrew Goldstein, for bringing this to my attention.

~Rich

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Sheppard v. Zoning Board of Appeals of Boston: Appeals Court Overturns Variances, But Does Not Order Tear-Down Of South Boston Rehab Project

Disabled Southie homeowner Robert McGarrell wanted to improve his living situation. McGarrell, who suffered chronic emphysema, planned to rehab his dilapidated bungalow style house with a new townhouse style open floor plan enabling him to get around better with his oxygen tank. After discovering that the foundation was crumbling, he had no choice but to do a full gut rehab.

Abutter Alison Sheppard complained about the perceived impacts of the new house. The front of the new home was 4 feet closer to the front property line, and it extended approximately 4 feet deeper into the lot, bringing it closer to Sheppard’s three-decker house. The proposed house was also larger in mass, having a full second story (under a flat roof) over virtually its entire footprint (with a basement floor opening up to the back yard, as before).

In 1998, McGarrell went to the Boston Zoning Board of Appeals and they told him he needed 5 variances. After revising his design to address some of Sheppard’s concerns, the board granted the variances. Unhappy, Ms. Sheppard appealed to Superior Court.

Approval of Variances Always At Risk of Appeal

The result of this case will not surprise anyone who has experience with Boston zoning and permitting. The Boston Zoning Board of Appeals can be fairly liberal in doling out variances, however, the law says they should be rarely granted only in unique circumstances. I would say 80% of all variances issued by the board are susceptible to reversal on appeal, and the Appeals Court ruled McGarrell’s variances were no different.

The City of Boston has its own special zoning code which is both similar and different from the state-wide zoning code known as Chapter 40A. To obtain a variance, a Boston applicant must show 3 things:

  • Special and peculiar circumstances or conditions of the land or building such as exceptional narrowness, shallowness,  shape of the lot, or exceptional topographical conditions, and that failing to grant zoning relief would deprive the applicant of the reasonable use of such land or structure;
  • For reasons of practical difficulty and demonstrable and substantial hardship, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance is the minimum variance that will accomplish this purpose;
  • Granting of the variance will be in harmony with the general purpose and intent of the zoning code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

The Appeals Court ruled that neither McGarrell’s rectangular lot nor dilapidated home was peculiar in any way to those in the neighborhood. The Court also held that McGarrell could have constructed a smaller home on the existing footprint, and that he could not expand his home vertically “as of right.”

Remedy: Second Chance

For McGarrell, the court left the door open for his new home to stand. Usually, in the case of construction built at the risk of permits being overturned, the court will order the new structure torn down, as in the recently publicized Marblehead mansion. Since the board supported McGarrell’s improvement of a dilapidated structure, the court allowed McGarrell to proceed on an alternative path under another section of the zoning code. The case will go back to the board for further findings, and this 14 year legal odyssey will go on.

Lesson: Get Neighborhood Support Early

The lesson here, as with any Boston zoning matter, is to get the support of the abutters and neighbors as early in the process as possible. Sometimes it’s not always possible, so you have to litigate.

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Richard D. Vetstein is an experienced Boston zoning, variance and permitting attorney who has substantial experience with variance and special permit applications before the City of Boston Zoning Board of Appeals and in Superior Court. Please contact him via email (info@vetsteinlawgroup.com) or tel: 508-620-5352.

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Post image for A Different Type Of Tear-Down: Court Orders Million Dollar Marblehead Manse Demolished For Zoning Violation

Expensive Lesson–Build At Your Own Peril

After a 16 year long saga, wealthy Marblehead mansion owner Wayne Johnson’s battle to save his house from a court-ordered wrecking ball has come to an end. The underlying legal saga is convoluted and complicated, but the end result was swift and destructive — the million dollar mansion is now rubble.

Johnson’s battle started in 1995 when he recorded a plan dividing his land into two lots. One lot contained an existing single-family dwelling. The second lot contained a garage. The house lot complied with all zoning dimensional requirements, but the garage lot didn’t comply with lot width requirements. The Building Inspector incorrectly determined that the garage lot complied with all applicable zoning requirements.

Johnson’s neighbors appealed the Building Inspector’s decision, arguing that the new house would greatly diminish their valuable ocean views. The local zoning board allowed the issuance of a building permit. After the building permit issued, the plaintiffs filed an appeal in Land Court and asked for an injunction to prevent construction on the garage lot. The Land Court judge warned Johnson that proceeding with construction was at his peril. In a decision by another judge in May, 2000, the court ordered the building permit to be revoked. However, the court ruled that the house could remain in place while Johnson attempted to obtain appropriate zoning relief.

Johnson, however, was unable to obtain zoning relief. After several unsuccessful appeals, the Land Court ordered Johnson to remove the house by October 4, 2010. Johnson failed to comply with that order, and the neighbors attempted to hold Johnson in contempt. With the threat of contempt and possible jail looming, Johnson finally threw in the towel.

The Land Court ruling can be read here: Schey v. Johnson and is embedded below.

More Press:
Schey v. Johnson

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Massachusetts Plot Plan

Plot Plans, also called Mortgage Inspection Plans, were once part of every Massachusetts real estate purchase closing. These days, some lenders do not require them and I will tell you why in this post. However, despite the limitations of a plot plan, I think it’s a good idea for buyers to purchase a plot plan at closing. The typical cost of a plot plan is around $125.00 so it’s affordable.

While it is not nearly as accurate as a full instrument land survey, a plot plan will give the buyer a visual of the lot lines, the approximate location of the home and accessory structures, and any easements running through the land. Also, when you go to sell your property, a plot plan is helpful for prospective buyers to review as part of the marketing package.

What Is A Plot Plan?

A plot plan, also called a Mortgage Inspection Plan, confirms the following information:

  • Does the house or building, as well as accessory structures (pools, sheds, etc), conform to the local setback zoning by-laws?
  • Does the house or building, as well as accessory structures, fall within the FEMA flood hazard zone (which would require flood insurance)?
  • Are there any building encroachments?
  • Are there any recorded easements running through the property?

In addition to answering these questions, a plot plan includes helpful reference information such as the deed book and page numbers, property plan numbers, land court plan numbers (if applicable), assessor map and lot numbers and F.E.M.A. rate map numbers. This information can be very helpful to the homeowner and a potential buyer as well.

How Is A Plot Plan Prepared?

It is important to point out that a plot plan is NOT a land survey, and is not prepared using standard instrument survey instruments. A plot plan is prepared using visual inspection and measuring tapes only. A physical inspection of the dwelling’s exterior is made, with tape measurements to show the approximate location of the dwelling. The preparer will review the recorded deed and plan(s) obtained at the Registry of Deeds or town offices to determine the lot configuration. Information from the field is merged with record information to create a drawing of the property (the plot plan) and the approximate location of the dwelling on the lot. The flood zone is determined. A quality review performed by Professional Land Surveyor.

The accuracy of a plot plan is usually within two to three feet. The field work involved in preparing the Mortgage Inspection Plan does not include the setting of property line stakes. Therefore, although tape measurements are sufficient to make zoning and flood hazard determinations, the plan should not be used as a substitute for a “Building Permit Plot Plan” or to determine property lines. A plot plan cannot be used as a substitute for a full instrument land survey.

What is Not Provided by a Mortgage Plot Plan?

As stated before, a plot plan has its limitations, which is a reason cited by lenders for not requiring them, such as:

  • No representation is made as to the accuracy of the depicted property lines.
  • No attempt has been made to verify the boundary configuration or, typically, the mathematical correctness of the legal property description.
  • Property corners can not be located based on this type of plan, therefore no fences, hedge rows or other improvements can be determined or located.
  • The location of any improvements shown are approximate, and therefore any planned construction should not be based on the locations as shown.

What is a Certified Plot Plan, Boundary, Land or Instrument Survey?
An accurate instrument land survey involves the location of established monuments or survey control points, which are then mathematically tied in to the property being surveyed. This process utilizes sophisticated, state-of-the-art equipment, and precisely locates both the property lines and the improvements on the property in relation to those property lines. The cost of a full instrument survey can range from $1,000 to $5,000, depending on the property. You can use a land survey for construction, Land Court, and Registry of Deeds plans.

How Do I Get A Plot Plan?

If your lender requires a plot plan at closing — check your Good Faith Estimate or closing cost worksheet — it will order one for you and you’ll have it at closing. If your lender does not require a plot plan, speak to your closing attorney and they will gladly order one for you!

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a Massachusetts purchase or sale transaction.

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sjc-300x134.jpg

For most folks, litigation and courtrooms are as foreign as Belgium. When a new clients comes to me with a potential litigation matter, I spend most of our first consultation discussing the process of litigation and how it works. Then inevitably we have to talk about the cost and expense, which for most lawsuits is a lot more than people expect. In this post, I wanted to provide you with a summary of what happens when you decide to file a Massachusetts real estate litigation and lawsuit, or if you have to defend yourself against one.

First Steps: Filing Or Answering The Complaint & Selecting A Venue

The first step in every Massachusetts lawsuit is the filing of the Complaint, along with a filing fee ($285 in Superior Court). The Complaint sets forth the factual allegations of the lawsuit, along with the formal legal claims such as breach of contract, zoning appeal, adverse possession or fraud.

Most real estate litigation cases where the damages exceed $25,000 are filed in either the Superior Court or the Land Court. (For smaller matters under $25,000 you can file in the local District Court; small claims cases are for $7,500 or less).

The Land Court is a specialized court with expertise in real estate disputes. I’ve written about the Land Court here. The Superior Court is the “jack of all trades” trial court, and hears just about every type of civil and criminal dispute at the trial level. Depending on the facts of the case, there are strategic advantages to filing in either Superior or Land Court.

After the complaint is filed, a Summons is issued which must be formally served by constable or sheriff on the “defendants” in the case. The attorney will arrange for service of the summons and complaint to be made and a sheriff will show up at the defendant’s home or business with the legal papers. Defendants have 20 days to “answer” the complaint. The Answer is a formal response to the Complaint, and the defendants can also assert any “counterclaims” he or she may have against the plaintiff.

Pre-Judgment Remedies

Many real estate litigation cases involve asking the court for some type of relief or action during the initial stages of the lawsuit. This is called “pre-judgment relief.” In many real estate cases, a litigant will ask the court for a lis pendens on property, which is a formal notice of the claim recorded on title. In other cases, a litigant will ask for an injunction or restraining order stopping a landowner from building or taking other adverse action which would injure their property.

Asking a court for such pre-judgment relief requires filing motion papers, legal memoranda and often multiple court hearings where the lawyers will argue the issues before the judge. This will add another level of expense on the case, often quite a bit. I usually give clients a ballpark figure of $5,000 for taking a case through the pre-judgment relief stage–could be less, could be more, depending on the response from the other side.

Often cases can be won or lost at these early stages as a lis pendens can stifle a potential sale or an injunction can shut down a construction site, thereby forcing a favorable settlement. Thus, it is very important to have an experienced and savvy Massachusetts real estate litigation attorney work up the case properly and argue the case forcefully during a pre-judgment remedy proceeding. There are certain ways to increase your chances of success at this stage and even obtain relief without the other side even knowing you are going to court, called ex parte relief, if the situation warrants. (Ex parte in Latin means “from (by or for) one party.”)

Phase 2: Discovery

For cases on the normal track, once the answer is filed and all factual allegations and legal claims are raised in the case, it moves to the next stage: discovery. Discovery is the process where each side shares information about the case with each other. Litigation is not supposed to be a cat-and-mouse-hide-the-ball game.

This is a good time to discuss how long it takes to get to a trial in a Massachusetts lawsuit. With huge budget cuts in the courts, it is taking up to 2+ years for most civil cases to reach trial. Yes, you read that correctly. It can take even more time in some cases. I’ve had a case in Norfolk County (Dedham) ready for trial 3 different times, only to get bumped at the last minute, each time costing the client thousands of dollars in legal fees and months of delay. There is really nothing a litigant can do about these delays (save for settling the case out of court).

The discovery stage is the most labor intensive and expensive part of the case, with lawyers taking depositions of witnesses and filing and answering formal written questions, called interrogatories, and responding to requests for document production. There are often disputes and motions which have to be resolved in this stage. Depositions can easily cost $1,000 each, and discovery in a fairly involved case can run easily up to $10,000 + in legal fees.

For the next post, we will discuss Phase 3: Summary Judgment/Pre-Trial, Going To Trial, and Appeals (click here). Stay tuned!

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at info@vetsteinlawgroup.com.

 

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Worcester Businessman Built Regulation Sized Baseball Field In His Backyard

Harking back to the old days when sandlot ballfields were packed with neighborhood kids, David Massad II, a Worcester car dealer, didn’t plow over a cornfield in Iowa to build a baseball field in his yard; he just leveled the trees behind his 7,382-square-foot home in Shrewsbury to build a regulation sized baseball field for his kids and friends to play on. This being Massachusetts, his neighbors cried foul. The case was just decided by the Appeals Court which, not surprisingly, ruled in favor of the neighbors, holding that the homeowner’s association rules and regulations prohibits the use.

Field of Dreams

In 2004, Massad decided to build a regulation sized baseball field, complete with clay infield, fencing, sprinklers and bleachers, behind his upscale Grey Ledge development home in Shrewsbury. After neighbors cried foul, Mr. Massad and his wife just lost a legal battle with neighbors who say they didn’t buy season tickets to ball games when they purchased their homes. Massad, meanwhile, says he was just trying to provide a place for kids to play ball in a town that sorely lacks ball fields.

According to the Worcester Telegram, “It sounded pretty simple,” said Massad, 52, whose business is only coincidentally named Diamond Chevrolet. “The kids needed a place to play, so I built a field. It’s in the middle of nowhere, and I’ve never charged anyone to use it.” The Massads even obtained a special permit from the zoning board to allow for the field.

Massad Field, Shrewsbury. Credit: Worcester Telegram

As reported by the Telegram, the field may be isolated, set well in the rear of Massad’s 14-acre property, but the issue is the cars that go up and down the development to get there. In 2009, Massad built a private driveway and parking lot on his property, but players and fans still must use the private common driveway that lines the eight-home development and ends at Massad’s handsome brick Colonial at the top of the cul-de-sac.

HOA Covenants & Restrictions Control

The Grey Ledge Homeowners Association had recorded standard Covenants and Restrictions providing that:

“The Lots shall be used for single family residential purposes only.” It further provides that “[t]he acceptance of a Deed to a Lot by any Owner shall be deemed an acceptance of the provisions of this Master Declaration, the Trust and the By-Laws and rules and regulations of the Grey Ledge Association, as the same shall be amended from time to time, and an agreement by such Owner to be bound by them in all respects;” and that “[t]he Lots … shall have the mutual burden and benefit of the following restrictions on the use and occupation thereof, which restrictions, except as otherwise provided or allowed by law, shall run with the land.”

The Appeals Could held that, despite the Massads obtaining local zoning approval for the baseball field, it was not consistent with the character and planned use of the luxury development as a single family enclave. “As matter of law, the hosting of organized league baseball games (whether formal games or mere practices) for such leagues as American Legion Baseball and Worcester Heat violates the master declaration’s restriction to use for ‘single family residential purposes only,'” Justice Joseph Grasso held.

On legal grounds, the ruling is not surprising and correct, in my opinion. It’s unfortunate that Mr. Massad and his neighbors couldn’t have worked out a “collective bargaining revenue sharing” plan so the kids could just play ball.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney and devoted Red Sox fan. Please contact him if you need legal assistance purchasing residential or commercial real estate.

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Update: SJC Reverses, Rules in favor of Landlords

Major Impact To College Rental Market: Landlords Cannot Rent To 4 or More Unrelated Adults In One Unit Without Lodging License

In a decision which will significantly impact landlords renting apartments to students near local colleges and universities and perhaps beyond Boston and Amherst, the Massachusetts Appeals Court ruled that renting to 4 or more unrelated students in one apartment unit is an illegal “lodging house” unless a special license is obtained.

In City of Worcester v. College Hill Properties LLC (Mass. App. Ct. Nov. 8, 2011), several landlords renting to Holy Cross students challenged the legality of the Massachusetts lodging housing law. The law requires a lodging housing license for any unit rented to four or more unrelated adults. City of Worcester officials cited the College Hill landlords for renting to 4 students in each apartment unit, without a proper license and without sprinkler systems. The students all signed a 12 month lease. The Housing Court sided with the city, and when the landlords balked, found them in contempt.

Lodging Housing Law

Although enacted nearly a hundred years ago in 1918, the court found that the lodging house law has relevance today with respect to the common practice of overcrowding persons in an unsuitable space and fire prevention. To obtain a lodging house license, an applicant must have sprinkler systems in the premises, which most landlords find too expensive to install.

The landlords argued that a group of four college students was a “family unit” not lodgers. While the landlords get credit for creative lawyering, the court didn’t buy the argument, holding that “we have no doubt that four or more unrelated adults, sharing housing while attending college, is not an arrangement that lends itself to the formation of a stable and durable household.”

Impact Outside College Towns?

Prior to this decision, housing authorities typically allowed 4 or more unrelated adults to occupy single apartments as roommates without a lodging license provided that minimum space requirements were met: 150 s.f. of living space for the first person, 100 s.f. for each additional person (3 occupants = 350 s.f. of living space); 70 s.f. of bedroom space for 1st person, plus 50 s.f. for additional person (120 s.f. for 2 persons in one bedroom).

After the College Hill decision, however, this generally accepted interpretation is now in question. The court did not mention adult roommates, nor did it make any distinction between undergraduates or adults. In my opinion, using the College Hill ruling, housing authorities, who want to crack down on unruly, crowded apartment dwellers, may seek to require lodging licenses for apartments occupied by 4 or more unrelated persons.

Boston: Rule Is 5+ Undergrads

In the City of Boston, a new zoning ordinance went into effect in 2008 prohibiting 5 or more undergraduate students from living in one apartment unit. We will see how the Boston Inspectional Services Dept. interprets the College Hill ruling.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate and landlord-tenant attorney. Please contact him if you need legal assistance with rental property legal issues.

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Realtors: You Must Independently Verify Property Information

In DeWolfe v. Hingham Centre Ltd. (embedded below), the Massachusetts Appeals Court recently considered a Realtor’s duty to disclose and independently verify zoning information about a listing property.  The agent, relying on what turned out to be erroneous information supplied by his client, listed a Norwell property on Multiple Listing Service (MLS) and newspaper advertising as “zoned Business B.” The property was not in fact zoned for business use; it was zoned residential, thereby prohibiting the hair salon the buyer wanted to open at the property.

Despite the general disclaimer on the MLS system and in the purchase and sale agreement, the Court held that the Realtor could be held liable for misrepresentation and Chapter 93A violations due to providing this erroneous information.

The lesson to be learned for agents here is:

  • Never trust your client. I hate to say this, but when it comes to disclosures, it’s true.
  • Always independently verify information about the property from available public sources. Here, the agent could have simply gone down to the town planning office to verify whether the property was zoned commercial or residential. (The buyer or his attorney could have done so as well—this was a complete failure on all sides).
  • When it comes to zoning, which can be complex and variable, think twice before making blanket statements. Better to be 100% sure before going on record about whether certain uses are permissible. You can always get a zoning opinion from a local attorney.

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Richard D. Vetstein, Esq. is an experienced real estate attorney who often advises real estate agents on their duties and ethical obligations. Please contact him if you need legal assistance regarding a Massachusetts residential or commercial real estate transaction.

Dewolfe v. Hingham Realty

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220px-OldSuffolkCoCtThe Real Estate Specialty Court

Established in 1898 and still staffed with only a handful of judges, the Massachusetts Land Court is the smallest of all the Massachusetts trial courts. But for real estate practitioners, it is the most important court in the Commonwealth.

The Land Court is known for its real estate expertise, and is the starting place for almost all foreclosures. Its judges, most of whom were practicing real estate attorneys, are widely regarded as experts in the intricacies of Massachusetts real estate law. Indeed, the diminutive Land Court has recently been at the forefront of national foreclosure law with Judge Keith Long’s seminal decision in U.S. Bank v. Ibanez which made national front page news for several days.

Registered Land

The Land Court was originally established to oversee the Massachusetts land registration system. Approximately 15-20% of all property in Massachusetts is registered land. Non-registered land is referred to as recorded land.

The purpose of the registered land system — modeled after the Australian Torrens system — is to make land titles as clear and defect-free as possible. To register land, property owners have to go through a fairly rigorous process where a land court title examiner searches and certifies title and a formal plan of the land is approved. All defects and title issues are fully vetted and resolved, if possible, and upon registration, the land is deemed free of defects except noted by the examiner, including claims of adverse possession.

Registered land is freely transferable, and there is no discernible difference in examining title to registered land, other than recording which involves a few more steps than non-registered land.

Foreclosures

The Land Court is widely known as the starting point for the vast majority of foreclosures in Massachusetts. Although Massachusetts is considered a “non-judicial” foreclosure state — that is, where a mortgage holder does not need a court order to foreclosure — the state has held onto the U.S. Soldier’s and Sailor’s Civil Relief Act which gives military members protections against foreclosure. In Massachusetts, mortgage holders bring a “Soldier’s and Sailor’s Act” proceeding in the Land Court to ensure that the property owner is not an active military member. Once the Land Court issues a judgment, the foreclosure can move forward. A Soldier’s and Sailor’s proceeding is not the forum in which to challenge a foreclosure. A homeowner needs to file a separate lawsuit in Superior Court or Land Court to do so.

Quiet Title, Partition and Title Disputes

In the last 20 years, lawmakers have widely expanded the Land Court’s jurisdiction to hear more types of cases. Today, the Land Court regularly hears cases involving zoning and subdivision appeals, quiet title and actions to try title, disputes involving mortgage priorities, tax takings, adverse possession, real estate contract disputes, petitions to partition, and more. I do most of my litigation work in the Land Court’s civil session.

Strategically, certain cases are better off in the Land Court and vice-versa. An important distinction with Land Court is that there are no jury trials. Thus, if you want a jury trial, the case should be filed in Superior Court, not Land Court. For cases which are based on the interpretation of contractual language or complex real estate legal issues, Land Court is probably a good choice. For cases which have an “emotional” component and less complex, a Superior Court jury session is probably the better choice.

New Permitting Session

Most recently, in 2007, the Legislature created a special Land Court permitting session to hear zoning and subdivision appeals for larger projects involving over 25 units or over 25,000 square feet of gross floor area. With the goal to expedite zoning disputes which have roadblocked development, cases in the new session will be assigned to a single judge for the life of the case and will be assigned one of three expedited tracks. For the first time, these tracks provide deadlines for both getting to trial (ranging from six to 12 months) and for receiving a decision after trial or summary judgment (ranging from two months to four months).

Land Court decisions aren’t widely available, but recent rulings can be found here.

If you have a complicated real estate dispute, your attorney should always seriously consider bringing the claim in the Land Court where the judge will understand the issues and keep tight control over the case.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Land Court Attorney who has litigated numerous cases in the Massachusetts Land Court. For further information you can contact him at info@vetsteinlawgroup.com.

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Score One For Property Rights Advocates

Massachusetts has the well-deserved reputation of being one of the most challenging states to permit a new housing development due to its myriad of rules, regulations and zoning by-laws. Real estate developers seeking to build a new subdivision typically go through an arduous permitting process before the local Planning Board, Board of Selectmen, Board of Health, Conservation Commission, Zoning Board of Appeals and other town boards.

Open Space Set-Asides

In what has become very much en vogue and required in the last decade are towns requiring that the developer dedicate or deed some of its developable land for open space and recreational purposes. In the recent case of Collings v. Stow Planning Board(embedded below), the Appeals Court ruled that the planning board went too far in requiring that the developer set aside almost 6 acres of a 5 lot subdivision for open space and “environmentally significant areas with views.”

Now usually, the developers don’t like to sue town planning boards over these type of exactions or “give and takes” as they want to get their projects approved and “play ball” with the towns. Apparently, the Collings family stood their ground in this case and won a decent victory for other developers who are less inclined to sue town boards.

Ruling: Open Space Requirements Must Be Tied to Legitimate Subdivision Concerns

Generally, a planning board condition requiring the dedication of open space which in effect reasonably limits the number of buildable lots, imposed out of safety concerns arising from the length of the street, would not be illegal. The Appeals Court found that the Stow planning board did not limit itself to a reasonable open space requirement but went much farther and required dedication of open space for public use, including the actual transfer of that open space to the town or a land trust. The court ruled that the exactions also provided no additional benefit above and beyond the open space requirement that relate to the safety concerns that are the subject of the subdivision law and the street length requirements. “Although a planning board’s authority under the subdivision control law certainly encompasses, in appropriate circumstances, requiring open space, it does not extend to requiring the transfer of that open space to the public for reasons unrelated to adequate access and safety of the subdivision without providing just compensation,” the Court held.

This case is a wake up call to town planning boards who may be a bit power-hungry.

Collings v. Planning Board of Stow//

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Development Attorney. For further information you can contact him at info@vetsteinlawgroup.com.

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Ocean and waterfront views are some of the most valuable and fought-over property amenities in Massachusetts. The difference in price between a property with unobstructed ocean view versus one without — even on the same street–  can be significant. Massachusetts zoning law books are filled with petty and expensive fights about even the most minimal obstructions of ocean views.

Kenner v. Chatham Zoning Board of Appeals (click to download), recently decided by the Massachusetts Supreme Judicial Court, falls into that category, and provides current guidance on one of the most important aspects of zoning challenges, a legal requirement called “standing.”

Blocked Ocean Views

For anyone practicing in the zoning trenches, it comes as no surprise that Brian and Carol Kenner were none to pleased when the Chatham Zoning Board of Appeals issued a special permit to their neighbors Louis and Ellen Hieb to demolish their existing small cottage and rebuild their house on Chatharbor Lane–with an increase in height of 7 feet and corresponding obstruction of their Atlantic Ocean view. The Kenners, who live directly across the street, claimed that the Heib’s new home would block the light and ocean breezes to their deck and would lead to an increase in traffic in the neighborhood.

Minimal Impact

But after visiting the property, Land Court Judge Charles W. Trombly found that the Kenners failed to provide credible evidence that they would be harmed by the project. Their contention that the increased height would block light and ocean breezes or add to traffic were speculative or generalized opinions, the judge said.

The case went up to the Supreme Judicial Court where Justice Francis Spina ruled that unless a town’s zoning bylaw specifically provides that a zoning board should take into account the proposed structure’s visual impact on abutters, aesthetic view concerns “are not a basis for standing.” Chatham’s zoning bylaw indicates standing can be demonstrated if the plaintiff shows both “a particularized harm to the plaintiff’s own property and a detrimental impact on the visual character of the neighborhood as a whole,” Spina wrote, and the Kenners failed to satisfy this burden.

Harm, Not Just Impact, Required For Standing

My fellow counselor and friend, Daniel Dain, Esq. who represented the Town of Chatham, commented to Massachusetts Lawyers Weekly that the SJC clarified for the first time the specific distinction between harm and impact in standing cases, where views, noise and traffic are central. “It has to be harm, not just impact. All impact is not harm,” Dan said.

Dan’s synopsis of the decision is spot on. Standing is always a threshold battle in zoning appeals. Abutters who challenge permits need to gather real, hard evidence — from traffic engineers and other experts — to prove the project will have a real and substantial impact on their protected property rights. Here, a minimal 7 foot increase in view obstruction just wasn’t good enough to prevent a neighbor from rebuilding his oceanview home.

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Richard D. Vetstein, Esq. is an experienced Massachusetts Zoning and Special Permit Attorney. For further information you can contact him at info@vetsteinlawgroup.com.

 

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With the proliferation of cellular/wireless service and coverage, Massachusetts town and cities have been bombarded in the last 10 years with applications for zoning relief for new cell towers and related equipment. These applications – especially in residential neighborhoods – raise the ire of local residents who don’t want cell towers in their backyards. Homeowners worry about the effect of electromagnetic frequencies on their children, aesthetics, and the impact to their property values.

Telecommunications Act of 1996

Local zoning boards’ ability to regulate cellular/wireless facilities, however, is significantly limited by the federal Telecommunications Act of 1996 (TCA) which provides that local zoning decisions cannot unreasonably discriminate among providers, have the effect of prohibiting service, or regulate on the basis of the effects of radio frequency emissions. The Telecommunications Act has spawned a decade’s worth of litigation in Massachusetts, with wireless servicers’ slugging percentage in the David Ortiz range.

T-Mobile Seeks To Bridge Coverage Gap

The most recent victory by the wireless industry is T-Mobile Northeast LLC v. City of Lawrence. T-Mobile sought to fill a coverage gap beset by those dreaded dropped calls in Lawrence’s Prospect Hill neighborhood by building a six foot high antennae hidden in a “stealth chimney” on top of a condominium building in a residential zone. Lawrence’s zoning ordinance bars wireless equipment in residential zones except on city-owned land, and requires a 1,000-foot setback from any residential lot. T-Mobile had previously asked the city to make municipal land available for its facility, but got no response. Having no other option, T-Mobile applied for the necessary zoning approvals and variances from the ownership and setback requirements.

Lawrence’s zoning board of appeals (ZBA) denied T-Mobile’s application, stating that it could not find sufficient facts to approve. (In other words, the majority of the board didn’t want the cell antennae at that location). At the hearing, some members of the ZBA expressed their views that the coverage gap was not real, ignoring T-Mobile’s expert, and that the antenna should go on municipal land so that the city could benefit financially. T-Mobile appealed the denial.

Federal Judge Lays The Smack-Down

The TCA provides for expedited review in federal court, another major advantage for wireless servicers which can by-pass often lengthy state superior and land court appeals. In federal court Judge Gorton pretty much eviscerated the board’s decision, as “rote” and merely parroting the relevant factors. The judge also characterized as “too little, too late” Lawrence Mayor William Lantigua’s plan to open up alternative municipally-owned sites for public bidding. The judge ordered that the permits be granted.

Lessons To Be Learned

The lesson in this case for town zoning boards is pretty simple. If you are going to deny a cell tower permit application, think twice and very hard at that. Perhaps consult town counsel before issuing a final decision, before causing your town to spend thousands on taxpayer funded legal fees with no reasonable chance of success.

Residents faced with cell towers and antennae in their neighborhoods need the assistance of an experienced Massachusetts zoning attorney who can navigate the complex TCA regulatory maze and utilize competing wireless coverage expert testimony. Upholding a denial of a cell tower appeal is very complex and challenging, but some neighborhood groups have been successful, despite the unlevel playing field of the Telecommunications Act. Check out Plymouth’s StopCenterHillTower.org for a recent example.

When I sat on the Sudbury Zoning Board of Appeals I presided over several cell tower permit applications, so I know both sides of the coin. It’s difficult, but not impossible to stop a cell tower from invading your neighborhood.

If you have any questions about Massachusetts cell tower zoning appeals, contact me, Richard D. Vetstein, Esq. via email by clicking here.

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ynm6g3o8kphmz7dp-1024x785.jpgA new Harvard report predicts a big jump in home remodeling – and with markets like Greater Boston that have lots of older homes leading the way. With the real estate market in recovery mode, a lot of folks in the last few years have put their money towards additions, in-law suites, finished basements, expanded garages, tear-downs, and other major home remodeling projects. In some cases, however, these projects require a special permit from the local zoning code. Here are some frequently asked questions about special permits under the Massachusetts Zoning Law. (I will cover variances for the next post).

Why Do I Need A Special Permit?

The most common reason why a Special Permit is necessary is that the proposed dwelling or the new addition does not meet the setback requirements set forth in the local zoning bylaw. Setbacks are buffer zones surrounding your boundary lines which provide for a “no-build zone.” For example, in the Sudbury, Mass. zoning code for the basic residential district, the side yard setback is 20 feet, the rear yard setback is 30 feet, the front yard set back is 40 feet, and the maximum structure height is 2.5 stories, or 35 feet. So if your proposed in-law suite juts into the side yard setback of 20 feet, then you will need to obtain a special permit from the zoning board of appeals (ZBA).

The other reason you may need a special permit is if your property is “non-conforming” and you wish to make a major expansion or alteration to it. “Non-conforming” means that the zoning code has changed since your home was originally built. For example, in Sudbury, the basic residence zoning district is now a minimum of nearly 1 acre. Many Sudbury homes built in the 60’s are way under 1 acre, so they are “non-conforming.” Virtually any tear-down and major reconstruction or alteration of a non-conforming property will trigger review by the building inspector and the application for a special permit from the local zoning board.

What Do I Need To Do To Get A Special Permit?

Obtaining a special permit requires a formal application to the zoning board with your plan, notice to your abutters, and the presentation of your application in front of the board at the public hearing. It is a formal legal proceeding, and can be complex giving the nature of the zoning issues and the extent of any neighborhood opposition. The chances of success rise dramatically if you have an experienced Massachusetts zoning attorney handling the zoning application. I was an associate member on the Sudbury zoning board for 9 years, and have appeared before countless boards in other towns.

What Are The Legal Requirements For A Special Permit?

The specific requirements for a special permit differ from town to town. But they all have the same general theme. Here is the Sudbury Mass. standard:

  • That the use is in harmony with the general purpose and intent of the bylaw;
  • That the use is in an appropriate location and is not detrimental to the neighborhood and does not significantly alter the character of the zoning district;
  • Adequate and appropriate facilities will be provided for the proper operation of the proposed use;
  • That the proposed use would not be detrimental or offensive to the adjoining zoning districts and neighboring properties due to the effects of lighting, odors, smoke, noise, sewage, refuse materials or other visual nuisances;
  • That the proposed use would not cause undue traffic congestion in the immediate area.

What Happens At The Public Hearing?

The Board Chairman will open the hearing by reading the application or legal ad into the record. The applicant and/or their attorney is then called to make their presentation to the Board. Correspondence received from other town boards and or committees is read into the record as well as any correspondence from abutters. The Board members may ask questions of the applicant. The Chairman will ask if any audience members wish to speak.

For residential additions, tear downs and the like, the board is generally concerned with the general impact, if any, to the abutters, any safety or traffic issues, stormwater runoff, septic issues, and visual issues. Early communication with your neighbors is vital to ensuring the approval of your project. Neighborhood opposition to your application will decrease the likelihood of approval. While the board is technically not supposed to be a “second architect” on the project, many board members often provide comments and suggestions about the design of the project.

After all of the input the Board may close the public portion and discuss the request among themselves. The Board typically makes a decision at the end of their deliberations.

What Happens After The Board Reaches A Decision?

Once the Board makes a final decision, it is written up and and recorded with the Town Clerk. After a 20 day appeal period, the permit is mailed to the applicant, who then files the permit with the county Registry of Deeds. A copy is forwarded to the Board of Appeals Office and the Building Department. The Building Department may not issue a building permit or occupancy permit without receiving a copy of that recorded decision.

Can I Appeal The Board’s Decision?

Yes, you may appeal the decision in the Superior Court. You must act very quickly however, as appeals must be filed within 20 days of the filing of the decision with the Town Clerk. Zoning appeals are very complex and involve the submission of evidence at a trial before a Superior Court judge. It’s not something that should be undertaken without an attorney.

Richard D. Vetstein, Esq. is an experienced Massachusetts Zoning Attorney, who formerly sat on the Sudbury, Mass. Zoning Board of Appeals. Attorney Vetstein handles zoning matters across the state including the Metrowest towns of Framingham, Natick, Wayland, Weston, Ashland, Sudbury, Wellesley, Northborough, Southborough and Westborough. He can be reached at info@vetsteinlawgroup.com or 508-620-5352.

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