Blog Archive

Wednesday, June 20, 2012


Land use practitioners will enjoy reading Chief Justice Scheier’s recent decision in MLM Realty Trust v. Moroney, et al (2012WL1392976) April 18, 2012. It appears as if a group of neighbors in Somerville opposed the division of a parcel of land into two conforming lots and the construction of a by-right-use three family residence on one of the lots. After nine months of hearings, numerous reports from staff and consultants, and an opinion from the Assistant City Solicitor, the Planning Board emerged from a curious executive session and voted to deny the application.  Justice Scheier found: “In its decision, the PB articulated two ‘intractable’ problems—traffic and the impact of the three-unit residential structure on the historical features of Locus and the surrounding neighborhood. The traffic concerns are not supported in any way in the summary judgment record, which establishes that the traffic impacts of the proposed new lot and use will be negligible. Even read generously, the PB's decision simply expresses the view that the fact that Lot 2 will no longer be a vacant lot is per se the intractable problem that can have ‘no reasonable solution.’ ... The PB's reasoning, adopted by the ZBA, misconstrues site plan case law and overreaches the authority of the boards under the Zoning Act and the case law interpreting the Zoning Act, all of which applies to Somerville, notwithstanding the fact that the City is not subject to the provisions of the SCL.”

Because there was no evidence that the proposal would create a traffic problem, the Court determined that the PB’s finding with respect to traffic “were an error as a matter of law”. And, any concerns regarding the historical character of the property could have been addressed by the imposition of conditions of approval.

In reaching the decision, Justice Scheier, provided a handy summary of the criteria applicable to Site Plan Approval, as follows:

 In reviewing an application for site plan approval that concerns an as-of-right use, the scope of the board's review is narrow. Wolcott–Marshall, Inc. v. Town of Rutland, 7 LCR 119, 121 (1999) (citing Prudential Ins. Co. v. Bd. of Appeals of Westwood, 23 Mass.App.Ct. 278, 281–82 (1986)). If the proposal meets all applicable zoning ordinances or by-laws, the board must approve the site plan application, but can impose reasonable terms and conditions on the proposed use. Prudential Ins. Co., 23 Mass.App.Ct. at 281–82 (quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass.App.Ct. 101, 105 n. 12 (1984)); see also Castle Hill Apartments Ltd. P'ship v. Planning Bd. of Holyoke, 65 Mass.App.Ct. 840, 841 (2006) (‘The use being one permitted as of right in the relevant zoning district, the board was limited to imposing reasonable conditions on the use.’); Quincy v. Planning Bd. of Tewksbury, 39 Mass.App.Ct. 17, 21–22 (1995) (‘[W]here the proposed use is one permitted by right the planning board may only apply substantive criteria consistent with Prudential Ins. Co. of America v. Board of Appeals of Westwood, ... (i.e., it may impose reasonable terms and conditions on the proposed use, but it does not have discretionary power to deny the use).’). Only if the ‘problem [cited by the board] was so intractable that it could admit of no reasonable solution’ is the board allowed to deny a site plan application. Prudential Ins. Co., 23 Mass.App.Ct. at 283.”

It is unfortunate if the PB caved to pressures from the neighborhood and chose to disregard the advice of counsel and disregard the recommendations from City staff. The applicant had to incur legal fees and spend about nineteen months in Land Court, after nine months of hearings before the PB and a trip to the ZBA. This is not a good example of how Massachusetts is supposedly a good place to do business, but it is interesting to see that parochial decision making by municipal boards is not confined to the leafy suburbs.



Friday, June 8, 2012


Among the recent real estate cases reported in Lawyers Weekly were a few where the Plaintiffs apparently forgot to bring any evidence to support their claims. But there was also a recent Land Court decision where the Plaintiff brought enough witnesses for a two day trial, but the evidence was insufficient.  In Sprocket Realty, LLC v Wendy’s International, LLC and others, 2012 WL 1026031, an abutter to a proposed Wendy’s restaurant filed an appeal of a Special Permit granted by the Agawam Zoning Board. The Plaintiff brought 12 witnesses. The Defendants brought zero; and won the case. The Plaintiff’s appeal was based on its claim that it had prescriptive rights of access and parking over a portion of the abutting parcel. The court said that “An easement by prescription over land of another requires a use that is open, notorious, continuous and adverse for twenty years” citing Ryan v. Stavros, 348 Mass. 251, 263 (1964); Labounty v. Vickers, 352 Mass. 337 (1967) and pointed out that is not necessary to prove that the use has been exclusive.

The Plaintiff failed to prove that the access across the abutting lot was continual for a period of twenty years. Even the evidence of parking by customers and employees of the Plaintiff was insufficient to prove that a prescriptive easement was created. The court concluded: “Here, neighborly accommodation was consistent with the relationship between the owners of the abutting properties. Such accommodation was reasonable given the fact that the two properties were largely connected by pavement from at least 1974 or 1975 to 2010, allowing customers to patronize more than one business without moving their vehicles, and that employees of the two major commercial entities (the Pharmacy and the Bank) frequented each other's businesses. The testimony of witnesses proferred by both parties supports an inference that, to the extent the owners of the Coyote Parcel knew or should have known of parking on their land by Pharmacy customers or employees (who were not also frequenting a business on the Coyote Parcel), it was mutually understood by the abutting landowners that such parking was permissive and not adverse.”

 I liked the “neighborly accommodation” finding to support the conclusion that the use of the abutter’s property was permissive and not adverse.