Thursday, April 2, 2015

ARE LOTS CREATED BY CH 41 §81L ILLEGAL UNLESS ALSO PROTECTED BY A VARIANCE? A RECENT SJC CASE CREATES CONCERN.


In a recent SJC decision, at first blush it would appear that the basic ruling comes as no surprise and does not change the way we look at non conforming structures. In  Palitz v. Zoning Bd. of Appeals of Tisbury, No. SJC-11678, 2014 WL 7930410 (Mass. Mar. 3, 2015), the court said:

 

“Although preexisting nonconforming status under the Zoning Act runs with the land…, ‘the introduction of a new nonconformity to a pre-existing nonconforming residential structure requires a variance’”

 

Seems straightforward doesn’t it?  Not so fast.

 

The case pertained to a preexisting non-conforming structure in Tisbury, which has a zoning bylaw that states:  This ordinance shall not apply to existing buildings or structures, nor to the existing use of any building or structure, or of land to the extent to which it is used at the time of adoption of this ordinance, but it shall apply to any change of use thereof.” The land owner obtained endorsement of a plan of land pursuant to ch. 41, § 81L, placing the building on a separate lot,  as the overall tract had three dwellings that preexisting the adoption of the subdivision control law in the Town of Tisbury. The statute reads:

 

“…the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision.” Mass. Gen. Laws Ann. ch. 41, § 81L (West)

 

The landowner sought a variance to tear down the non-conforming building and build a new dwelling within the same footprint. The Court mentioned that the new building would have been taller than the old building and would have blocked the view of Vineyard Haven Harbor for the abutter across the street. The ZBA denied the variance.

 

You have to read the decision yourself to appreciate the Court’s analysis.  Please read it and get back to me if you can follow the analysis. The troubling conclusion is that the decision appears to say that a lot shown on a ch. 41, § 81L plan, which does not meet all applicable zoning requirements at the time of endorsement, is not a lawful lot unless a variance is issued to cure all dimensional non-conformities.  I understand that certain towns are now being advised that lots created by §81L cannot be placed in separate ownership, or thereafter constructed upon, without variances to cure all their dimensional limitations. To which I say: Uh oh! If that was the intention of the legislature, there would be no reason for said last line within §81L!

 

There must be thousands of lots out there which were created by §81L, and then conveyed into separate ownership.  Does the decision now render all of them illegal? When we perform a title examination how are we supposed to determine if a plan was endorsed under §81L? And if we suspect a plan was endorsed under §81L, are we then expected to research the archives of the local zoning bylaw and determine if the lot complied with the then applicable zoning when it was conveyed into separate ownership?

 

Clearly, unless a contrary interpretation of the protections afforded by §81L prevail in the future, any landowner with a 81L lot should be advised to obtain a variance for all new construction and simultaneously seek a variance for all lot dimensional non-conformities, notwithstanding that prior to March 3, 2015 we believed the lots to be lawfully non-conforming.

 

I would be interested in alternative interpretations.

 

PAUL F. ALPHEN, ESQUIRE

Alphen & Santos, P.C.

Wednesday, December 24, 2014

SJC Upholds Convictions in Internet Harassment Case


You may have read in the Globe on December 24th that the SJC upheld the conviction of an Andover couple who harassed a neighbor via the internet. In Commonwealth v. William P. Johnson decided on December 23rd, The Johnsons were charged on October 16, 2008, in Lawrence District Court with making a false report of child abuse (G.L. c. 119, § 51A [c ] ); identity fraud (G.L. c. 266, § 37E); conspiracy (G.L. c. 274, § 7); and criminal harassment (G.L. c. 265, § 43A [a ] ). It all started when the Johnsons proposed to subdivide their land and their neighbors James (“Jim”) and Bernadette Lyons opposed the development.  In either late February or early March, 2008, William Johnson telephoned his friend Colton “and enlisted him to play a series of ‘pranks’ on Jim. The ideas for these ‘pranks’ were generated in several ways: (1) William would directly instruct Colton or convey ideas through Gail; (2) the Johnsons would provide information about the Lyons family to Colton so that he could use this information to harass them; or (3) the Johnsons would prompt Colton to think of ideas. Over the course of thirty-five days in late March and early April, 2008, the defendants, directly and through Colton, engaged in a series of acts directed at the Lyons family. The Commonwealth alleged four separate acts of harassment in addition to the false report of child abuse…” Com. v. Johnson, No. SJC-11660, 2014 WL 7261476, at *2 (Mass. Dec. 23, 2014). The defendants also posted fake ads on the internet that caused numerous people to call or go to the Lyonses home or call them late at night.

William Johnson was sentenced to 18 months behind bars; his wife was given a six-month sentence to serve.

We have seen circumstances when citizens who are opposed to a development have engaged in smear campaigns on social networks. And the Johnson decision will cut both ways when opponents to a project go beyond protected free speech and engage in harassment.
Paul F. Alphen, Esquire
Alphen & Santos, P.C.

Wednesday, December 17, 2014

NO GOOD DEED GOES UNPUNISHED, AGAIN.


Massachusetts Lawyer’s Weekly reported on the U.S. District Court case of Cohen v. Elephant Rock Beach Club Inc where a negligence suit was brought by a guest of a member of the Elephant Rock Beach Club. She swam 250’ out into the ocean and dove off a natural rock formation in the water within area owned by the Commonwealth of Massachusetts. As my mother would have warned me, she was injured when she jumped off the rock and smashed her foot on a submerged portion of the rock. It is indeed unfortunate that the Plaintiff was injured, and I wish her a speedy and complete recovery.

The Beach Club argued that it had no legal right to control the rock and therefore had no duty to warn people that swimming out to rock and jumping off the rock may be dangerous. The Court disagreed and reasoned that because the Club both encouraged and prohibited the use of the rock by guests by placing some ropes on floats near the rock and having the life guards whistle at swimmers to stay away from the rock in dangerous sea conditions.  The case will proceed to a jury.

So, this means that the Beach Club should have either (a) hired life guards to blow whistles all day long and yell at anybody who looked like they may swim out to the rock or (b) sought an Order of Conditions for permission to post a half dozen signs telling everyone to stay off the rock and then instructed the lifeguards to ignore those who swam out to the rock. They had already posted signs stating that use of the rock was at one’s own risk. May I recommend changing their name to “Stay Off the Elephant Rock Beach Club”?
Paul F. Alphen, Esquire
Alphen & Santos, P.C.

Thursday, November 6, 2014

A SUBDIVISION DENIAL BASED ON ERRONEOUS REASONING IS OVERTURNED IN F&D Cent. Realty Corp., Inc. v. Planning Bd. of Bellingham


The Appeals Court upheld the Superior Court in a recent decision concerning the disapproval of a subdivision plan in F&D Cent. Realty Corp., Inc. v. Planning Bd. of Bellingham, 86 Mass.App.Ct. (October 14, 2014). The Appeals Court, noting Judge Richard T. Tucker’s thoughtful findings and detailed analysis, agreed that the Town of Bellingham planning board “exceeded the scope of its authority.” Citing Sealund Sisters, Inc.[1] and Beale[2], the court held that a planning board may not base its reasons for disapproval on requirements beyond those prescribed in the rules and regulations, or exercise its discretion to import its own standards.

The Superior Court determined, and the Appeals Court agreed, that the reasons given by the Planning Board for disapproval of the subdivision plan was outside its authority under its rules and regulation.

The court found that Planning Board applied an erroneous standard in finding that Section 324(F) raises sight distance concerns for the developer at a certain intersection of two public ways, as 324(F) only applies to intersections of access ways and subdivision proposed streets. The court also held that the Planning Board exceeded its authority by disapproving the subdivision in part on a finding of the applicant’s noncompliance with Section 26, reasoning, simply, that the board did not set forth how Section 26 had been violated. Furthermore, the judge held that Section 324(F) also did not apply to the “Environmental Analysis”, for the same reasons, while also crediting the developer’s traffic expert. In addressing the board’s fourth reason for disapproval, the judge found, and the Appeals Court agreed that evidence produced at trail was insufficient to establish any other hazards of a certain street as an access to the subdivision. Likewise, the judge concluded that a rule and regulation cited by the board did not apply to access roads to a subdivision. Finally, the court held that the board’s sixth reason that “[t]he project is not consistent with the purposes of the Subdivision Control Law” was not “elucidated” in the board’s decision or in its submissions to the court.

The Appeals Court rejected the Planning Board’s argument that it acted within its authority, and that the judge erred in failing to give deference to the board’s interpretation of its own rules, regulations and findings of fact stating: “[a]lthough deference is given to a board in granting a special permit or waiver, here, such deference was not warranted where the reasons stated for disapproval fell outside the provisions of the rules and regulations.”

Christopher J. Alphen, J.D.

Alphen & Santos, P.C.

200 Littleton Rd.

Westford, MA 01886



[1] v. Planning Bd. of Weymouth, 50 Mass.App.Ct. 346, 348 (2000).
[2] v. Planning Bd. of Rockland, 423 Mass. 690, 696 (1996).

Monday, July 28, 2014

SUBDIVISION CONDITIONS DO NOT EXPIRE, BUT ARE NOT ETCHED IN STONE


In the Appeals Court case of Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014), the court agreed with the Land Court that conditions imposed within a Definitive Subdivision approval do not expire after 30 years (as would a restriction on land in accordance with G.L. c 184 s 23). The court referred to Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass.App.Ct. 655, 657, 955 N.E.2d 315 (2011) in which such a conclusion was already established as applied to conditions within a Special Permit.

 

But, that does not mean that subdivision or special permit conditions can never be removed or modified; it means that the party seeking the removal or modification must do so with the proper procedure, i.e an application for a subdivision modification in accordance with G.L. c41 s81W. However, in the Samuelson case, the applicant never sought a modification, and the court said:

 

“The fact that the condition imposed by the board in 1975 did not automatically expire in 2005 does not necessarily mean the Kennedys lack any potential recourse. Subdivision approvals are not permanently etched in stone, but can be modified in accordance with the provisions of G.L. c. 41, § 81W. Some claim can be made that that is in fact what the board did here, and the Kennedys now argue that the board's decision should be analyzed and upheld on that basis. However, our review of the summary judgment record reveals that the Kennedys never raised such an argument to the judge below. Moreover, despite the fact that the judge repeatedly stated that the Kennedys never requested a modification of the 1975 approval pursuant to § 81W, and that the board never treated their request as such, the Kennedys made no argument in their opening appellate brief that the judge erred in this regard. Instead, they raised the § 81W issue for the first time in their reply brief. Accordingly, even had the Kennedys raised the issue below, that argument was waived.” Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014)



Paul F. Alphen, Esquire

Alphen & Santos, P.C.

Tuesday, May 13, 2014

UNLAWFUL STUDENT HOUSING IN BOSTON: IT’S ALL ABOUT MONEY


Last week the Boston Globe completed its “Spotlight” series on unsafe apartments rented to college students in Boston, and the sometimes deadly and dangerous consequences of same. Like many “Spotlight” reports, it could have been written by Captain Obvious because anybody who attended college in Boston, or knows anybody that attended college in Boston, knows that apartments are routinely cobbled out of basements and attics. Notwithstanding the attempt by the article to spread the blame around to landlords, Boston Inspectional Services and the colleges, the real culprit is: money.

            The colleges accept more students than they can house. Students (and often parents) don’t want to pay more than they have to. Landlords want to make a profit. Inspectional Services claims it does not have the financial resources to properly police the landlords and the apartments. I doubt the City of Newton would allow students to live in unlawful basement and attic units. I was reminded of 81 Spooner Road LLC v. Zoning Board of Appeals of Brookline, 78 Mass. App. Ct. 233 (2010), aff'd on other grounds, 461 Mass. 692 (2012) in which a resident chased a neighbor all the way to the Appeals Court because he feared the neighbor was going to construct a game room in the attic of a single family dwelling. In the suburbs, the neighbors would complain loudly and frequently, and the city would purse enforcement and recover the maximum penalties allowed by law. The City of Boston should take a hint from the suburbs and collect as much money as possible from the landlords as filing fees, inspection fees and penalties; and use the revenue to hire more inspectors and prosecutors. For reasons unexplained in the article, Boston appears to collect very little money from offending landlords. The article stated that one landlord had received tickets totaling $51,720 for violations but paid only $3,010 and most of the unpaid tickets were dismissed. In the suburbs, one cannot open a hot dog stand without obtaining a pile of permits and paying for the related fees, expenses and “peer review consultant fees.”

                        But unless the problem is addressed head on, it will only get worse. The article hints at the overall economic impact caused by lack of enforcement. As landlords find ways to squeeze in more and more tenants per building, the additional rent revenue artificially increases the value of the buildings which (a) artificially drives up the cost of real estate in the neighborhood forcing out more and more owner occupied buildings and (b) places pressure on other competing landlords to stuff more tenants in their buildings. Consequently, the cycle continues and creates more unlawful units. We know from the experiences of the real estate booms and busts over the past few decades that artificially increasing the price of real estate generally pads the wallets of the few at the expense of many.

            Finally, every college and university that turns a blind eye to the problem should immediately rewrite their policies and practices. The tragic and preventable death of Binland Lee should be a wake up call to every college President in Boston to become proactive in protecting the health and safety of their students.

PAUL F. ALPHEN, ESQUIRE

ALPHEN & SANTOS, P.C
paul@lawbas.com

http://www.lawbas.com

Thursday, March 6, 2014

THE LAND COURT RULED THAT A “GREEN STRIP” PROVISION DID NOT PROHIBIT UNDERGROUND UTILITIES AND SUBSURFACE SYSTEMS THEREIN


On December 22, 2009, the plaintiff Cohasset Associates sought site plan approval from the Cohasset Planning Board in order to construct a 30,000 square foot retail building, on vacant land. After a hearing that was continued eight times, in November 2010 the Planning Board issued a decision with a condition that no soil absorption system could be constructed within the 30’ wide green strip. Section 5.4(10) of the Zoning Bylaw provides as follows:

 

“Within the highway business, technology business and light industry districts, there shall be maintained a green strip not less than thirty feet wide on which to grow grass, bushes, flowers, or trees which shall be unbuilt upon, unused, unpaved, and not parked upon along any property line abutting land residentially zoned.”

 

A “Green Strip” is defined as “An area landscaped with grass, trees, or shrubs and cannot be built upon, paved, parked upon, or used for vehicular traffic.”

 

The green strip encompasses approximately 28,000 square feet, and approximately 280 square feet of Soil Absorption System No. 1 lies within the subsurface of the green strip.

 

The Plaintiff appealed to the Land Court pursuant to G.L, c.240 Section 14A. In July 2013 the Land Court found for the Plaintiff and ruled that it was not prepared to allow the Planning Board to interpret the Bylaw in such a manner as to produce absurd results:

 

“The Bylaw sets out no explicit purpose for the Green Strip. Nevertheless, Sections 5.4(8) and 5.4(10) create visual, landscaped vegetative areas around certain commercial uses. It is the view of this court that the legislative purpose which underlies Section 5.4(10) is the establishment of a visual buffer between commercial and residential uses. Viewing such purpose in tandem with the Bylaw provisions cited supra, i.e. those which refer to a range of permitted surface activities and uses, this court is not prepared to read into the Bylaw a prohibition on legal subsurface uses. ‘The language of a [bylaw] is not to be enlarged or limited by construction unless its object and plain meaning require it.’ Tession v. Commissioner of Dept. of Transitional Assistance, 41 Mass.App. Ct, 479, 482 (1996) (internal citations omitted). Moreover, construing the Green Strip restrictions as pertaining to lawful subsurface uses, would in no way further the purpose of a Bylaw provision intended to create a visual buffer.

 

“A ‘statute or ordinance should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available.’ Manning v. Boston Redevelopment Authority, 400 Mass. 440, 453 (1987). In the case at bar, the Planning Board's interpretation of Section 5.4(10), could lead to a perhaps unintended, unreasonable result. For example, such interpretation would seemingly preclude placement of otherwise allowable subsurface utilities including water lines, electric and telecommunication cables. It is noteworthy in this regard, that the Board set no limitation on the subsurface depth which is to remain ‘unused’”. Staszko vs. Moore, Mass. Land Ct., No. 10 MISC 442981 HMG (July 23, 2013)

 

PAUL F. ALPHEN, ESQUIRE


BALAS, ALPHEN & SANTOS, P.C.



http://www.lawbas.com