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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.

The Land Court, specifically, has jurisdiction under G. L. c. 240, § 14A, over "petitions" brought by "owner[s] of . . . freehold estate[s] in possession" "against a city or town wherein such land is situated" "for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A". This statute is peculiar because it explicitly does not require that a "permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for". In other words, under the statute, a property owner is permitted to seek an advisory opinion from the Land Court as to the "validity" or "extent to which such municipal ordinance . . . affects a proposed use, enjoyment, improvement or development of . . . land" without the need of a live controversy with the relevant city or town. See Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205, 208 (2005) ("General Laws c. 240, § 14A, applies only to the Land Court, and provides for declaratory relief without an existing controversy"). This aspect of the statute runs contrary to typical standing requirements in Massachusetts and throughout the United States. See United Oil Paintings, Inc. v. Commonwealth, 30 Mass. App. Ct. 958, 959 (1991), quoting Duane v. Quincy, 350 Mass. 59, 61 (1966), ultimately quoting Cole v. Chief of Police of Fall River, 312 Mass. 523, 526 (1942) ("'[p]arties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy'"). Based on this unique aspect of the statute, "[t]he primary purpose of proceedings under § 14A is to determine how and with what rights and limitations the land of the person seeking an adjudication may be used under the provisions of a zoning enactment in terms applicable to it, particularly where there is no controversy and hence no basis for other declaratory relief." Hansen & Donahue, Inc. v. Town of Norwood, 61 Mass. App. Ct. 292, 295 (2004), quoting Harrison v. Braintree, 355 Mass. 651, 654 (1969) (quotations omitted).

Plainly, General Laws Chapter 240, Section 14A confers subject matter jurisdiction on the Land Court to adjudicate claims concerning the validity and effect of local zoning bylaws and ordinances. Many practitioners also bring claims, in the Land Court, pursuant to G. L. c. 231A, § 1, for declaratory relief, challenging local zoning laws. However, "General Laws 'c. 231, § 1 . . . does not expand the jurisdiction of the courts upon which it confers power to render declaratory decrees.'" Pratt v. City of Boston, 396 Mass. 37, 43 (1985), quoting Konstantopoulus v. Whately, 384 Mass. 123, 127 (1981). This principle of law means that, when they are brought pursuant to G. L. c. 231A, § 1, such claims must derive their basis for subject matter jurisdiction from some other source, such as G. L. c. 240, § 14A itself, or G. L. c. 40A, § 17, or G. L. c. 185, §§ 1(j1/2) & 1(p), which codify the foregoing as part of the Land Court's subject matter jurisdiction.

Nevertheless, a claim for declaratory judgment, pursuant to G. L. c. 231A, § 1, under a statute, G. L. c. 240, § 14A, which already inherently "provide[s] a procedure for a declaratory judgment that will resolve doubts relating to by-law restrictions or the requirements of a zoning ordinance", is frankly circular and redundant. Whitinsville Retirement Society, Inc. v. Town of Northbridge, 394 Mass. 757, 762-763 (1985). The two statutes also are not consistent with each other: G. L. c. 240, § 14A requires no live controversy, whereas actions pursuant to G. L. c. 231, § 1 cannot be brought without an actual live controversy. See Bunker Hill Distributing, Inc. v. District Attorney for Suffolk County, 376 Mass. 142, 144 (1978), quoting School Comm. of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516, 518 (1946) ("[a]n actual controversy within the context of G.L. c. 231A, s 1, is 'a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation'").

Thus, based on the redundancy and conflict between the statutes, bringing a claim for declaratory judgment pursuant to G. L. c. 231A, § 1, in the Land Court, challenging the validity of a zoning bylaw or ordinance, must be construed as an action under G. L. c. 40A, § 17. However, there is not even agreement on the Land Court bench whether it is necessary specially to plead a claim under G. L. c. 231A, § 1, to challenge the operative bylaw provision, when a claim pursuant to G. L. c. 40A, § 17, has been pleaded. For instance, in our experience, Judge Gordon H. Piper appears to believe that this sort of special pleading is unnecessary, given § 17's express grant of authority "to make such other decree as justice and equity may require", in addition to a judgment "annul[ling]" a local zoning "decision if found to exceed the authority of [a zoning] board [of appeals] or special permit granting authority." It is hard to argue with this logic.

Despite all of this legal, jurisdictional complexity, there is no question that the Land Court can hear cases challenging zoning bylaws. It has a particular expertise in zoning matters because of its limited, specialized jurisdiction over real estate disputes, and zoning and planning appeals. In fact, challenges to zoning amendments comprise an instance in which the Land Court's jurisdiction is broader than over garden variety zoning appeals. The Land Court specifically lacks jurisdiction to decide appeals from decisions of the Boston Zoning Board of Appeals, which can only be heard by the Superior Court. However, under Section 10A of the Boston Zoning Enabling Act, as inserted by St. 1987, c. 371, § 2, "[a]ny person aggrieved by a decision of the zoning commission approving a zoning map amendment or a zoning regulation or amendment thereof, or by any procedural defect therein, or any municipal board or officer, may appeal such decision to . . . the land court."

It should be further noted that Section 10A provides that "[t]he foregoing remedy shall be exclusive". Meanwhile, however, the Supreme Judicial Court has, at least twice, reviewed Land Court decisions, made pursuant to G. L. c. 240, § 14A, interpreting provisions of the Boston Zoning Code. See, e.g., Banquer v. Bldg. Com'r of Boston, 389 Mass. 565, 570-571 (1983); Kaplan v. City of Boston, 330 Mass. 381 (1953). Though there is no binding, appellate authority for the proposition, one Land Court judge has concluded that, based on Section 10A's exclusivity provision, the only claim that can be brought under G. L. c. 240, § 14A, concerning Boston zoning, is one involving the "extent to which such municipal ordinance . . . affects a proposed use, enjoyment, improvement or development of . . . land". See HRPT Medical Building Realty Trust v. Boston Zoning Commn., 20 LCR 94, 98-99 (March 5, 2012) (09 MISC 396768) (Grossman, J.) aff'd at 82 Mass. App. Ct. 1116 (2012) ("[i]t is this court's opinion that, reading § 10A and § 14A in tandem, the purpose of the exclusivity provision in § 10A is to ensure that plaintiffs, such as HRPT are precluded from invoking G.L. c. 240, § 14A, so, for example, as to avoid the far more rigorous standing requirements of § 10A. As a consequence, this court construes § 10A so as to preclude a § 14A action which seeks effectively to annul or otherwise invalidate a decision of the Boston Zoning Commission as was sought by the plaintiff in its Complaint"). The interplay and tension between these statutes does not alter the reality that the Land Court has subject matter under both, and thus can consider claims challenging the validity of a provision of the Boston Zoning Code, in any event.

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.

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