In
three recent decisions, abutters or developers were able to prevail over
municipalities. The cases are very different, but all involve MGL Chapter 40A.
STRIKE
ONE:
In
2011, the town of Brookline adopted a “neighborhood conservation district” (“NCD”)
bylaw designed to create local
The
first district established under the bylaw comprised solely the entire Brookline
portion of the 70-acre property of plaintiff Hancock Village I, LLC, who
ultimately filed an action in the Permit Session of the Land Court seeking to
invalidate both the bylaw authorizing neighborhood conservation districts in
the town, as well as the particular section of the bylaw creating the district
encompassing the plaintiff's property. In
Hancock Vill. I, LLC v. Town of Brookline, 2019 WL 4187764 (Mass.
Land Ct. Sept. 4, 2019), the property owner asserted that the bylaw was not a
proper exercise of Brookline's general police power, “as its subject matter
falls squarely under the purview of G. L. c 40A and G. L. c. 40C, and must
therefore have been enacted pursuant to the procedures provided in those
statutes, and with the substantive protections and mechanisms required by those
statutes.”
The
Court agreed with the Plaintiff. The bylaw
attempted to regulate matters that are clearly within the scope of the Zoning
Act. For example, a “Reviewable Project” was defined in the Bylaw as including
“(i) a change to a building or other structure or part thereof such as removal,
construction, reconstruction, restoration, renovation, replication,
rehabilitation, addition, partial or total demolition and other similar
activities, or the construction of a new building or other structure or part
thereof ... (iii) addition or replacement of doors or windows ... (iv) a change
to a site that includes constructing, placing, erecting, installing, enlarging,
or moving a building or other structure or similar activities; (v) the removal
or addition of streets, driveways, parking areas, walkways, or paved surfaces.”
The
Bylaw further stated that “[t]he Commission may impose dimensional requirements
that further the purposes of the by-law, including without limitation
preventing Reviewable Projects inconsistent with the historic or architectural
aspects, scale or massing, neighborhood or subdivision plan or layout,
circulation patterns, or green space, open space, landscape, vegetation or
viewshed character of the NCD.” The Bylaw also sought to regulate building size,
height and massing, and required that projects “maintain the spatial
organization of the district,” and further required that buildings shall not
have a “significant negative impact on historical architectural or landscape
elements ...”
The
Court stated that “[a] municipality cannot utilize its general police power to
enact a bylaw which is, at its essence, a zoning regulation, if it does not
resort to G. L. c. 40A; doing so would frustrate the purpose and implementation
of the statute. … As previously noted by this court, ‘[t]he reason for
this is that zoning bylaws have different, stricter requirements for enactment
than general bylaws. A zoning bylaw must be reviewed by the planning board in a
public hearing and then reported on by the board, and, crucially, may only be
enacted by a two-thirds vote of town meeting. General bylaws have no such
requirements—they may be enacted by a majority vote.’” citing Valley Green Grow, Inc. v. Town of Charlton,
27 LCR 99, at 105 (2019).
“Brookline
impermissibly evaded these stricter requirements in a circumstance where they
were necessary. Brookline's NCD Bylaw is, in its fundamental substance, a
creature of zoning. It regulates subject matter falling within both the
traditional definition of zoning as well as the existing purview of the
Brookline Zoning Bylaw. Despite this, Brookline enacted the NCD Bylaw as a
general town bylaw, and made no attempt to follow the particular procedures
laid out in G. L. c. 40A. Accordingly, having failed to strictly comply with
the requirements for enactment of a zoning bylaw, Section 5.10 of the Brookline
General Bylaws is invalid, and of no force and effect.”
Justice
Speicher also found that the NCD Bylaw constituted impermissible spot zoning by
concluding that “[t]here is no doubt that Brookline's purpose in adopting the
NCD Bylaw and the Hancock Village NCD Bylaw was the same purpose deemed invalid
in Scherzer and National Amusements: to frustrate
a single property owner's efforts to develop a particular use on its property”
STRIKE
TWO:
In the case of McLean Hosp. Corp. v. Town of Lincoln,
483 Mass. 215, 131 N.E.3d 240 (2019), McLean Hospital, a non-profit
institution, proposed to construct a facility in a residential neighborhood in
Lincoln for conducting a residential program for adolescent males with extreme
emotional dysregulation. Before McLean purchased the property, they smartly contacted
the building commissioner and explained the proposed use and the commissioner
agreed (in writing) that the proposed use was an educational use exempt from
zoning under the Dover Amendment (MGL Chapter 40A Sec.3). After the purchase of the property, a number
of nearby residents challenged the decision pursuant to MGL Chapter 40A Sec 8
before the Zoning Board. The ZBA decided that the program was medical or therapeutic,
not educational. McLean appealed to the Land Court, which determined that the
program was not primarily for educational purposes. McLean appealed and the SJC
took the case on direct appellate review.
Plaintiff’s counsel did an
outstanding job in getting the SJC to understand and appreciate the various
details of the proposed program. The Court, in an eleven page decision,
described the particular educational aspects of the program. For example, the
Court found that “the program teaches students to notice and identify their
emotions, to slow down and consider alternatives rather than simply reacting,
and to interact constructively with other people. It teaches fundamental
behavioral skills so that the students, whose difficulties in emotional
regulation interfere with an ability to learn in a more traditional setting,
may acquire skills to respond more productively to the challenges that confront
them in their day-to-day lives. The goal of the program is to enable the
students to return to their communities and their families, to succeed in
traditional educational programs, and to become able to lead productive lives.”
The Court explained that the
term “educational” as historically used in the Dover Amendment, is “broad and comprehensive” citing Regis
College, 462 Mass. at 285,
968 N.E.2d 347, quoting Mount
Hermon Boys' Sch. v. Gill,
145 Mass. 139, 146, 13 N.E. 354 (1887). “Over time, we have made clear that the protections
of the Dover Amendment are not to be ‘limited only to those facilities closely
analogous to traditional schools and colleges.’[citation omitted]
‘educational’ encompasses that which is
‘the process of developing and training the powers and capabilities of human
beings.’ Mount
Hermon Boys' Sch., supra. Thus, the Dover Amendment embraces fully “the
idea that education is the process of preparing persons for activity and
usefulness in life”
In conclusion the Court,
agreed with McLean and stated that “[a] determination whether the land and
structures at issue here would be used for a predominantly educational purpose
also does not, and should not, turn on an assessment of the population it
serves. Although ‘emotional or psychiatric programs may determine the character
of the training furnished to residents of the proposed facility,’ they
certainly do not mark the facility as ‘medical’ or render it any less educational.”
STRIKE
THREE:
Finally,
I especially enjoyed the drama the played out in Penn vs. Town of Barnstable, 96 Mass. App. Ct. 205, 133 N.E.3d 846
(2019). The Town of Barnstable (a city containing a potpourri of neighborhoods
and businesses) in the village of Hyannis, is the departure point of the
ferries running to Nantucket. I can testify that historically, there has been a
shortage of parking spaces within walking distance for the numerous ferry
trips. Consequently, a cottage industry developed. Nearby property owners
created parking spaces all over their yards. I spent $10 a day to park on a
lawn in November.
The
legislative branch of Barnstable is its 13 member elected town council. In 2013
the town conducted a study of commercial parking lots in and around Hyannis
Harbor. Shockingly, not all the parking lots had any form of zoning
authorization. The town council proposed a zoning amendment to create the
Hyannis Parking Overlay District (“HOPD”).
“The overarching purpose of the amendment was to authorize ‘as of right’
operation of commercial parking lots on land within the HPOD that ‘ha[d] some
legal pre-existing nonconforming status or [were] licensed as of May 1, 2014 as
an open air parking lot involving the temporary storage of vehicles.”
As
required by MGL Chapter 40A Sec. 5, the planning board held a public hearing on
the proposal (which voted four to one not to recommend) and on March 24, 2016,
the town council took its own vote on the proposal, which on a seven to four
vote, failed to pass for a lack of two-thirds support. Undaunted, the town
council took the matter up again four (4) months later, notwithstanding the
provisions of MGL Chapter 40A Sec 5 which state: “No proposed zoning ordinance
or by-law which has been unfavorably acted upon by a city council or town
meeting shall be considered by the city council or town meeting within two
years after the date of such unfavorable action unless the adoption of such
proposed ordinance or by-law is recommended in the final report of the planning
board.”
Some
minor modifications were made to the proposed bylaw, the planning board and the
city council held a joint public hearing, and the planning board voted three to
two to recommend approval, but the planning board failed to prepare a written report
with recommendations (as required by the statute). The town council thought it
was in the clear by first voting eleven to two that the new bylaw was “not a
proposed zoning ordinance which has been previously acted upon unfavorably by
the [t]own [c]ouncil”. A cynic might call that vote “somewhat self-serving.”
Finally, the council adopted the slightly amended bylaw by a vote of eleven to
two.
Owners
of homes adjacent to some of the parking lots included in the HPOD, filed a
complaint for declaratory relief in the Land Court challenging the town
council's adoption of the bylaw, on numerous grounds, including that it was
invalid for failure to comply with the procedural requirements of MGL Chapter
40A Sec. 5. Item No. 2016-166. The judge allowed the plaintiffs' motion for
summary judgment, and ultimately the town appealed.
The
Appeals Court opined that “[t]he purpose of the two-year bar is to give some
measure of finality to unfavorable action taken by a municipal legislative body
so that ‘members of the public shall be able to ascertain the legislative
status of a proposed change at all times, and to rely on unfavorable action ...
as a complete defeat of the proposal.’ Kitty v. Springfield, 343 Mass. 321,
326, 178 N.E.2d 580 (1961) (discussing
predecessor statute).”
“In Kitty the
Supreme Judicial Court construed the two-year bar to apply to ‘any new action
of the same character’ as a previously defeated proposal. While no
reported decision has addressed what it means for proposals to be ‘of the same
character’ for purposes of G. L. c. 40A, § 5,
sixth par., we are guided by cases decided in two analogous contexts.” The
Court discussed cases pertaining to notice requirements in municipal hearing
settings, and cases pertaining to initiative petitions, and found that in those situations the courts
have construed such provisions to “bar any measure that ‘affirms or negates
essentially the same provisions [as a previous measure], with little or no
substantive difference.’”
Finally,
the Court, using the analogous cases as guidance, concluded that the proposed
bylaws shared “the same fundamental or essential character, with little
substantive difference”, and concluded that the enactment of the bylaw was
barred by the two-year prohibition contained in Section 5.
A former REBA
president, Paul Alphen currently serves on the association’s executive
committee and co-chairs the long-range planning committee. He is also a member of the Executive
Committee of the Abstract Club. 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 at
palphen@alphensantos.com.
