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POT SPOT ZONING

Massachusetts cities and towns use zoning districts (residential, commercial, industrial, etc.) to set forth the type of land use(s) and structures permissible within a given geographical area. Chapter 40A, § 4, requires that these "districts shall be uniform within the district for each class or kind of structures or uses permitted."

Sometimes, however, cities and towns run afoul of this and unlawfully engage in what is known as "spot zoning", which is

the singling out of one area of land for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of the rezoned land.

Farrington v. City of Cambridge, 81 Mass. App. Ct. 1135 (2012) (unpublished) (citation omitted). Usually spot zoning takes place in the context of allowing certain landowner(s) to undertake a particular use (via district rezoning or a zoning amendment) not otherwise allowed in that zone. Similarly, "reverse spot zoning" happens when an amendment bars a landowner from a particular use of his land (i.e. changing the zoning district or moving the boundary line of the zone to render a more restrictively zoned parcel that prevents the landowner from engaging in a business that would have otherwise been allowed prior to the change).

Such zoning amendments can be challenged in court as spot zoning, but they will only be overturned if the "plaintiff demonstrates 'that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety . . . or general welfare.'" Id. (quotation omitted). The Massachusetts Zoning Manual suggests that reverse spot zoning has been largely scrutinized more closely by the courts than spot zoning. See Massachusetts Zoning Manual, §2.3.5(e) (5th ed. 2010).

One of the newer contexts where spot zoning might feasibly come up is with the siting of medical marijuana dispensaries in Massachusetts. If the areas where dispensaries are allowed or not allowed is too narrow, the potential for spot zoning and reverse spot zoning increases. This has already been recognized and pointed out by some municipal authorities, such as in Norwood. The potential becomes even more plausible given the Attorney General's March 13, 2013 rulings (for Wakefield and Burlington) that prohibit outright bans of medical marijuana dispensaries (though temporary moratoria are permissible). Ideally, the anticipated Department of Public Health regulations (due out in May 2013) will assist municipalities with figuring out where the ideal locations are for dispensaries.

Across all cities and towns in Massachusetts, the issue of medical marijuana dispensaries will be frequently discussed and debated in the coming months. As the Massachusetts Zoning Manual aptly points out, "public welfare is an elastic concept". See Massachusetts Zoning Manual, §2.3.5(a) (5th ed. 2010). Perhaps this is even more particularly relevant in the context of dispensing medical marijuana. From a zoning standpoint, one of the initial considerations will be to avoid any spot zoning (or reverse spot zoning) challenges. And certainly the first hurdle will be ensuring that no parcel(s) are unlawfully singled out for disparate treatment that runs contrary to the legitimate public purposes on both sides of the issue.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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