In a recent Land Court case, Bellingham Massachusetts Self Service Storage, LLC, et al. v. Town of Bellingham et al., the court found a
2019 zoning amendment that changed the zoning districts of certain properties invalid due to the failure of the Petitioner (i.e., the individual who brought the zoning amendment before town meeting for approval) to comply with the strict procedural requirements set forth in G.L. c. 40A, § 5, first para.
The Zoning Act governs how municipalities
may amend their zoning ordinances and bylaws. Specifically, G.L. c. 40A, § 5
provides the following steps that must be taken before a municipality may seek
to amend its zoning ordinances or bylaws:
Zoning ordinances or by-laws may be
adopted and from time to time changed by amendment, addition or repeal, but
only in the manner hereinafter provided. Adoption or change of zoning
ordinances or by-laws may be initiated by the submission to the city council or
board of selectmen of a proposed zoning ordinance or by-law by a city council,
a board of selectmen, a board of appeals, by an individual owning land to be
affected by change or adoption, by request of registered voters of a town
pursuant to section ten of chapter thirty-nine, by ten registered voters in a
city, by a planning board, by a regional planning agency or by other methods
provided by municipal charter … . G.L. c. 40A, § 5 (emphasis supplied).
In the Bellingham matter, after learning
that their commercial properties had been rezoned from an industrial district
to a suburban/residential district, the plaintiffs brought a complaint in Land
Court challenging the validity of the adoption of the amendment to the Town's
Zoning Bylaws and Zoning Map ("Amendment"). The principal argument
before the Court concerned whether the amendment was properly initiated and
placed on the town’s warrant pursuant to G.L. c. 40A, § 5. The plaintiffs
successfully argued that because the petitioner did not own land to be affected
by the amendment, the amendment was not properly on the town warrant and should
never have been voted on at town meeting. The town argued that while the petitioner
did not own land to be affected, the statutory requirements were met because
the town’s planning board and board of selectmen, either of whom are authorized
to bring zoning amendments under the statute, advanced the amendment by voting
to recommend it and include it on the town warrant.
The Land Court disagreed, finding that its
interpretation of G.L. c. 40A, § 5 ignored the language of the first two
sentences of § 5, where the Legislature clearly set forth the procedure for
initiating zoning amendments, which does not permit a single registered voter
of a town to do so. In finding that the undisputed facts in the case established
that the petitioner did not own land affected by the amendment, the Court found
the amendment invalid. The Court concluded that strict compliance with G.L. c.
40A, § 5, first para., did not occur in the case, and that the failure to
comply was significantly inconsistent with or prejudicial to the apparent
legislative objectives set forth in G.L. c. 40A, § 5, first para. In sum, the petitioner
did not own any land affected by the Amendment and therefore had no right to
seek the rezoning of the subject properties.
The lesson here is this: when seeking to
amend a municipality’s zoning ordinances or bylaws, one must be sure that the
requirements of G.L. c. 40A § 5, first para. are strictly followed.
A co-chair of REBA’s legislation section,
Doug Troyer is a founding member of Moriarty, Troyer & Malloy LLC, focusing
his practice on condominium and real estate litigation, real estate development
and permitting, land use litigation and employment law. Doug can be contacted
by email at dtroyer@lawmtm.com.
