Blog Archive

Friday, July 14, 2017

RIGHT CHURCH, WRONG PEW

Paul F. Alphen, Esquire

Two recent decisions remind us all of the importance of properly determining the nature of the underlying applicable law.

In Colbea Enterprises, LLC v. Framingham Zoning Bd. of Appeals, No. 16 MISC 000345 HPS, 2016 WL 6658781, at 1 (Mass. Land Ct. Nov. 9, 2016), the plaintiff/landowner applied to the Zoning Board of Appeals for a variance from provisions of the Town’s Sign Bylaw. The variance request was

denied. The Plaintiff filed an appeal in the Land Court.  The Sign Bylaw is found within the Town’s (about to become a City) General Bylaws, not within the Zoning Bylaw. After a complex analysis, the Land Court determined that the matter did not involve “Land Use”, and therefore the Land Court lacked jurisdiction over the matter.

In a second case, Jeune v. Bd. ofAppeal of Malden, No. 15-P-1657, 2017 WL 2729582, at 1(Mass. App. Ct. June 26, 2017), in 2014 the building inspector issued a “correction order” regarding work in the basement of a home performed without a permit. The order alleged that the work was in violation of the local zoning ordinance and the State Building Code. The Plaintiff/homeowner filed an  appeal with the Malden Board of Appeals arguing, in part, that the work pre-dated his  purchase of the property. The Board of Appeals denied the relief. The Plaintiff filed an appeal with the Superior Court, the Court seemed to “misunderstand” the basis for jurisdiction and ultimately decided that the parties agreed (notwithstanding the record) that the case concerned a building code violation, not a zoning violation. Based upon insufficient evidence, the Superior Court ruled in favor of the Plaintiff. The City appealed. The Appeals Court ruled that because the case concerned “enforcement of the building code, the Superior Court lacked jurisdiction on the matter”. The Appeals Court remanded the case for a new entry of judgment dismissing the Plaintiff’s complaint.

Land use law is not as simple as it appears.


A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted atpalphen@alphensantos.com.

No comments:

Post a Comment