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.
As deferential as the standard of review of local zoning decisions is-as quoted above-the standard for invalidating a local bylaw presents an even higher hurdle for claimants: "Every presumption is made in favor of the by-law, and, if its reasonableness is fairly debatable, it will be sustained." Sturges v. Town of Chilmark, 380 Mass. 246, 256 (1980). The reason for this high degree of deference is that a zoning ordinance or bylaw is a local legislative act; and the courts are reticent to set aside the will of the people. As the Supreme Judicial Court observed in Durand v. IDC Bellingham, LLC,
"[p]rior to the passage of art. 89 of the Amendments to the Massachusetts Constitution (the "Home Rule Amendment") in 1966, the power of a municipality to enact or amend zoning bylaws was a power derived exclusively from the 'supreme' power of the Legislature in zoning matters, and a municipality had only such authority as the Legislature saw fit to delegate specifically to it. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 356-357, 294 N.E.2d 393 (1973). The Home Rule Amendment granted cities and towns 'independent municipal powers which they did not previously inherently possess' to adopt, amend, or repeal local ordinances or bylaws 'for the protection of the public health, safety and general welfare.' Id. at 358, 359, 294 N.E.2d 393. The zoning power was one of the 'independent municipal powers' granted to cities and towns by the Home Rule Amendment, enabling them to enact zoning ordinances or bylaws as an exercise of their "independent police powers" to control land usages in an orderly, efficient, and safe manner to promote the public welfare,' id. at 359, 294 N.E.2d 393, as long as their enactments were 'not inconsistent with the Constitution or laws enacted by the Legislature," id. at 358, 294 N.E.2d 393.
The enactment of a zoning bylaw by the voters at town meeting is not only the exercise of an independent police power; it is also a legislative act, see Sylvania Elec. Prods. Inc. v. Newton, [344 Mass. 428,] 433, 183 N.E.2d 118 , quoting Church v. Islip, 8 N.Y.2d 254, 259, 203 N.Y.S.2d 866, 168 N.E.2d 680 (1960), carrying a strong presumption of validity."
440 Mass. 45, 50-51 (2003).
All of this said, challenges to individual zoning bylaws can, and do, prevail in the courts. See, e.g., Nectow v. City of Cambridge, 277 U.S. 183, 188-189 (1928) (invalidating residential zoning classification on property surrounded by industrial uses); Zuckerman v. Town of Hadley, 442 Mass. 511, 520 (2004) (invalidating so-called rate of growth zoning bylaw); Aronson v. Town of Sharon, 346 Mass. 598, (1964) (invalidating tandem of 100,000 square feet minimum area and 200-foot minimum lot width requirements); SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 106-111 (1984) (invalidating bylaw that subjects all uses to the requirement of obtaining a special permit). There are also many different theories upon which a bylaw can be challenged: on the grounds that it violates Substantive Due Process, generally, see Nectow, supra; or constitutes illegal spot zoning, in particular, see Canteen Corp. v. City of Pittsfield, 4 Mass. App. Ct. 289, 293-294 (1976); or that it is inconsistent with state statute, see SCIT, supra; or a federal statute, see National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 23-25 (1st Cir. 2002); or impermissibly burdens a constitutionally-protected fundamental right, such a free speech, see Showtime Entertainment, LLC v. Town of Mendon, 472 Mass. 102, 109-111 (2015); or constitutes an unconstitutional uncompensated regulatory taking. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-1032 (1992). Even within constitutional claims, there is a dichotomy between facial and as-applied challenges. See Rogers v. Town of Norfolk, 432 Mass. 374, 378-385 (2000) (bylaw facially valid, but invalid as applied to claimant). Many of these nuances will be addressed in greater depth, in subsequent posts in this series.
Sufficed to say, this diversity and complexity is fertile ground for imaginative lawyering. These claims are, nevertheless, inherently difficult to prove, are highly fact specific and require a high degree of conversance with the particular governing legal standards for each type of claim. Moreover and as will be discussed in detail in a subsequent post, there are also thorny questions to answer regarding where to bring these claims: the Land Court, Superior Court or United States District Court for the District of Massachusetts. All of this complexity underscores the need for finding practitioners who are experienced in this complicated area.
Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2014 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.