Recent Developments in Massachusetts Land Use Law

Beveridge & Diamond, P.C., February 2007

Massachusetts courts have recently issued major decisions affecting a broad range of property owners and developers.  Recent cases have addressed the so-called “grandfather” provision of Chapter 40A, the bases upon which abutters can challenge the issuance of a comprehensive permit under Chapter 40B, limits on the Site Plan Review process, and the award attorneys fees arising out of an appeal of a special permit.

Grandfather Provision of Chapter 40A Interpreted Broadly by Supreme Judicial Court

In Rourke v. Rothman, 448 Mass. 190 (2007), the Supreme Judicial Court considered whether the so-called “grandfather provision” of Chapter 40A preserved the buildable status of a lot in Orleans.  The case hinged on whether the lot “conformed to then existing requirements” of the local bylaw at the time it became a lot not held in common ownership with adjoining property.  The case turned not on whether the lot satisfied specific frontage and lot size requirements on the key date—it did not—but simply whether it was considered a buildable lot under the bylaw at that time.  In this case, the lot had been buildable because of a generous local grandfathering provision in the bylaw.  Only when that grandfather provision was amended did the lot become unbuildable under the local bylaw.  The Supreme Judicial Court held that the fact that lot was rendered unbuildable by a “repeal” of a local “exemption” rather than an “increase” in “requirements” does not affect the applicability of the grandfather protection. It is a buildable lot under Chapter 40A. 

Supreme Judicial Court Restricts Abutters’ Standing to Challenge Chapter 40B Projects

In Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006), Massachusetts’ top court ruled that abutters cannot allege that a Chapter 40B comprehensive permit project will diminish their property values as a basis for maintaining a lawsuit challenging such a project.  The Court found that unlike traditional zoning under Chapter 40A, Chapter 40B does not protect against negative impact to property value.  The Court also clarified that when an abutter has claimed a particular injury as a basis for his lawsuit but does not support such injury with any evidence, a developer is not required to present evidence on that subject in challenging the abutter’s standing.  Instead, the developer may rely on the abutter’s lack of evidence.  The practical effect is that developers need not retain experts and present evidence on every claimed basis for standing, only those bases in which the abutter actually presents evidence.

Court Places Limits on Planning Board Site Plan Review Authority

In Castle Hill Apartments Ltd. Partnership v. Planning Bd. of Holyoke, 65 Mass. App. Ct. 840 (2006), the Court ruled that a planning board may not use the site plan review process to impose so-called aesthetic conditions that drastically reduce a project’s density.  Although a planning board may impose reasonable conditions on a proposed development during site plan review, in this case the planning board simply went too far.  In order to promote “visual harmony” in the neighborhood, the board required a complete interior and exterior redesign of the proposed multi-family development that would have cut the number of planned units from 123 to as few as 40.  The Court found such a drastic reduction in the project’s density solely in the name of aesthetics was not a reasonable exercise of the board’s authority.

Land Court Awards Attorneys’ Fees to Developer in Zoning Appeal

In Farnum v. Mesiti Development Corp., Land Court Misc. No. 281484, a Land Court judge awarded a developer more than $200,000 in attorneys’ fees and costs arising out of an abutter’s appeal of a special permit granted by the Planning Board of North Andover.  The Court found that the abutter’s appeal of the permit allowing a 96-unit, age-restricted, multi-family townhouse project was not only frivolous but brought in bad faith, meeting the standard necessary for an award of attorneys’ fees.  In early 2006, a single justice of the Appeals Court affirmed the fee award, which is now under appeal before a three-judge panel of the Appeals Court.  The developer was represented by Brian C. Levey and Marc J. Goldstein of Beveridge & Diamond, P.C.