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June 2016 Archives

CHALLENGING ZONING BYLAWS: JURISDICTIONAL AND VENUE CONSIDERATIONS PART I: THE LAND COURT

This is the second in a series of posts on challenges to zoning bylaws and ordinances. An important threshold issue, apart from diagnosing what type of bylaw challenge should be brought, is where to bring these claims. Depending on the circumstances, these claims may be brought in the Land Court, the Superior Court or the United States District Court for the District of Massachusetts. This post will address the considerations applicable to the Massachusetts Land Court.

How a lawyer can help with your variance application

There are times when a residential or commercial property owner will need to request a variance in order to use the land in a way that is usually not permitted by the zoning ordinance. For the landowner, there is a lot on the line and he or she must show exactly how the request meets local and state zoning laws. This is where an attorney can step in, to help protect the landowner's interests and rights.

CHALLENGES TO ZONING AMENDMENTS: BASICS

In run of the mill zoning appeals, the plaintiff must persuade the trial court that a local zoning decision "is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary" in order to have the local decision annulled. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001), ultimately quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970) (quotations omitted). This standard is applied to the particular action of the local board, not the bylaw under which it has acted. In many zoning cases, however, there may be a basis to attack the local bylaw itself, and derivatively the decision of the board, as it is based on a legally-invalid bylaw. This is the first of a series of posts, discussing challenges to zoning bylaws. In this post, the basics of these challenges will be discussed.

A NEW ERA FOR MASSACHUSETTS AERONAUTICS

On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.