Massachusetts zoning attorney

Local Field Of Dreams Strikes Out In Appeals Court

by Rich Vetstein on November 23, 2011

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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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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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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Four Toed Salamanders and SLAPP Suits

by Rich Vetstein on March 9, 2010

spotted-salamander_721_600x450The recent case of Brice Estates v. Smith where an abutter trespassed on a developer’s land to photograph endangered female four toed salamanders got me thinking about the frequent convergence of developer’s rights vs. citizen’s free speech rights in real estate disputes. In the case, the abutter sought refuge under the pro-free speech anti-SLAPP law, but the court said that he was still trespassing.

A SLAPP is an acronym for Strategic Litigation Against Public Participation. Before being legislatively outlawed, real estate developers would often use SLAPP lawsuits to muzzle abutters who would organize and complain during town meetings and sue to stop real estate projects. The abutters couldn’t afford to defend against the SLAPP suits, so they would back down.

Concluding that citizens’ free speech rights were being suppressed by SLAPP suits, the Massachusetts Legislature in 1994 outlawed them in what’s now referred to as the “anti-SLAPP Act.” The law protects such free speech activities such as filing zoning appeals, reporting violations to state agencies, and lobbying. The anti-SLAPP Act has been one of the most litigated pieces of legislation within the last 15 years.

Anyways, back to the four toed salamanders. Proving the existence of endangered wildlife (spotted frogs, diamond backed terrapins, barn owls, you get the picture) is a sure fire way to get a real estate project derailed, or at least subject to much stricter permitting, delays and scale downs. And that’s exactly what the abutter did in the Brice Estates case when he tip-toed onto the developer’s land with his Nikon to do his best National Wildlife photo-essay. So naturally, the developer sued the abutter for trespassing.

Arguing that the trespass claim was really a SLAPP suit, the abutter said that the developer sued him just for reporting the salamander to the state. The court disagreed, ruling that trespassing wasn’t a constitutionally protected right.

So the moral of the story is that a quest to find a female four toed salamander can get you into some legal trouble.

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