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.
