Year in Review: Land Use & Zoning Cases of 2025 (Video)

 

Stoking Housing Production and Affordability: Amending Cambridge's Land-Use Laws (Video)

 

PowerPoint(PDF)

Year in Review: Land Use & Zoning Cases of 2024 (02/10/2025)

 

Year in Review: Land Use and Zoning Cases of 2023 (Video)

 

SJC Rules Bourne’s Ban on Recreational Marijuana Establishments is Valid

Caroline E. Smith

The Supreme Judicial Court, in its decision in the case of Haven Center, Inc. v. Town of Bourne, 490 Mass. 364 (2022), upheld as valid the Town of Bourne’s general bylaw ban on recreational marijuana establishments. The Town’s approach was impeccable and the decision is instructive.

In 2016, Massachusetts voters enacted a state ballot initiative legalizing the sale and use of
recreational marijuana. This law, codified as M.G.L. c. 94G, gave individual cities and towns the ability to ban recreational marijuana establishments from their communities if the majority of voters in the municipality voted “no” on that ballot initiative and then enacted such a local ban by December 30, 2019.

The majority of the voters in the Town of Bourne on Cape Cod in 2016 had voted “no” on this ballot initiative. In May 2017, the Town then voted to impose a temporary moratorium on recreational marijuana establishments. It would last either until November 30, 2018, or until the Town enacted zoning bylaw amendments to regulate such establishments.

In October 2018, two bylaw amendments were presented at Bourne Town Meeting. Warrant Article 14 (Article 14) proposed an amendment to Bourne’s general bylaws to prohibit all commercial recreational marijuana establishments in Town. Warrant Article 15 (Article 15) proposed amendments to the Town’s zoning bylaw that would regulate recreational marijuana establishments.

An amendment to a general bylaw requires a simple majority vote while an amendment to a zoning bylaw requires a two-thirds majority vote. Article 14 did pass by a simple majority vote, but Article 15 did not pass after failing to receive the requisite two-thirds majority vote. The general bylaw became law, while the zoning did not.

The Haven Center, Inc.—a company seeking to operate a retail recreational marijuana establishment in Bourne—filed suit in state court seeking a declaratory judgment that Article 14 was invalid. The Haven Center argued that Article 14 violated the Home Rule Amendment, because Article 14 constituted a zoning bylaw and was inconsistent with the Zoning Act, M.G.L. c. 40A, §§ 5-6.

The Home Rule Amendment allows municipalities to enact local ordinances or bylaws that are not inconsistent with the Massachusetts Constitution or laws. The Haven Center argued that Article 14, as a matter of law, should be regarded as a zoning amendment—and not a general bylaw, as the Town had characterized it—because it prohibited a particular use of land.

The argument continued that since Article 14 was in effect a zoning bylaw, its enactment procedure (no public hearing and passed by a simple majority vote) violated the procedural requirements set out in c. 40A, §§ 5-6.

The language in M.G.L. c. 94G indicates that a municipality may prohibit recreational marijuana establishments through general bylaws or zoning bylaws. Nonetheless, under Massachusetts court precedents, even if the Town intended Article 14 to be a general bylaw, it could be deemed a zoning bylaw, subject to , if certain factors were met.

Such factors are whether other municipalities have adopted similar bylaws as zoning bylaws, whether the municipality whose bylaw is being scrutinized has previously regulated the topic through comprehensive zoning ordinances, whether the bylaw is intended to prohibit or permit any particular listed uses of land, and whether the dominant purpose of the bylaw pertains to interests typically addressed by the zoning process.

The SJC, hearing the case on appeal, ruled that Bourne’s temporary moratorium of recreational marijuana establishments was not a comprehensive zoning scheme and that Article 14 was not a zoning bylaw, simply because it indirectly prohibited the use of land in Town for recreational marijuana establishments. Because the Court ruled that Article 14 was not a zoning bylaw, it was not subject to the procedural requirements of M.G.L. c. 40A.

The Haven Center’s second argument was that Article 14 was inconsistent with the provision under M.G.L. c. 94G, § 3(a)(1) that prohibits municipalities from using zoning bylaws to prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment.

The SJC held that Article 14 was not subject to § 3(a)(1), because § 3(a)(1) only prohibits zoning bylaws that prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment. Because the SJC determined Article 14 was not a zoning bylaw, § 3(a)(1) did not apply to Article 14.

The Haven Center’s final argument was that Article 14 was inconsistent with the provision under G.L. c. 94G, § 3(a) that prohibits “unreasonably impractical” bylaws. The SJC ruled that the specific state statutory authorization to adopt a complete ban of recreational marijuana establishments under § 3(a)(2)(i) superseded any general requirement that a bylaw not be unreasonably impractical.

Thus, under the principles of Home Rule, bylaw application, and statutory interpretation in Massachusetts, the Town of Bourne succeeded in prohibiting all commercial recreational marijuana establishments in Town.

An Associate at McGregor Legere & Stevens PC, Caroline Smith is a member of REBA’s Environmental and Renewable Energy Section and New Lawyers Section. She can be reached at csmith@mcgregorlaw.com.

Boundaries in Massachusetts Property, Land Use, and Environmental Law, Where They Are, and How they Change

Gregor I. McGregor, Esq.

McGregor & Legere, PC

This is a fresh look at some traditional and modern Massachusetts doctrines and laws about the various kinds of boundaries which real estate clients and their counsel deal with in titles, transactions,

permitting, and litigation, but sliced differently on how they are determined, how they are subject to change, and how not to be surprised when they morph or move.

Click here for the full 30 page PDF

MIXED-USE CONDOMINIUMS

By Angel Kozeli Mozina

In recent years, mixed-use condominiums have become an important part of the Greater Boston-area urban and suburban

landscape. Unlike a residential or a commercial condominium, a mixed-use condominium consists of both commercial and residential units which may be located within the same building or as separate buildings. One example is the Millenium Tower in Boston’s Financial District, which comprises a 60-story building with restaurants and a grocery store in the lower floors and residential units in the remainder of the building.  Another example of a mixed-use condominium is the Maynard Crossing development in Maynard, Massachusetts, which will consist of a mix of retail, office, restaurant, supermarket and residential buildings.

The co-existence of residential and commercial units in a mixed-use condominium presents a unique challenge and opportunity when drafting the governing documents.

 

ZONING AND USE

At minimum, a zoning/permitting analysis is essential before creating the mixed-use condominium. A preliminary review of the zoning ordinances or zoning by-laws should guide the scope and definitions of the use clause in the Master Deed.  Frequently, permits from the local zoning board are required and must be obtained before the development and construction can commence. 

The intended use of the commercial units must be described narrowly and in detail.  For example, the Master Deed could provide that the commercial units may be used for any lawful retail or office purpose, but not such uses that could adversely affect the residential units, such as a pet store.

Likewise, the use of the residential units must be covered separately.  Their use should be limited to residential purposes and perhaps a home office.  The home office should be limited to an accessory or ancillary use, subject to zoning and ordinance laws, with limited, both in time and frequency, foot traffic from clients and other business invitees.

A major issue in mixed-use condominiums is the tension between residential unit versus commercial unit owners in such matters as use, control, insurance, maintenance and repairs, and allocation of common area expenses.  The Master Deed, Trust, By-Laws and Rules and Regulations must address, and, when possible, provide concrete resolution mechanisms for such concerns.

THE TRUSTEES

The Condominium Trust should provide for both residential unit owner trustees and commercial unit owner trustees.  Two ways to accommodate and diffuse potential tension in joint governance are: 1) proportionate representation and/or 2) bifurcation of exclusive authority. In a building which predominantly consists of residential units, there could be more Residential Trustees than Commercial Trustees or vice versa.  The Residential Trustee(s) can be given the authority to act without the concurrence of the Commercial Trustees on those matters reserved in the Master Deed solely for decision by the Residential Trustees.  Likewise, the Commercial Trustee (s) could be given the authority to act without the concurrence of the Residential Trustees on those matters reserved in the Master Deed solely for decision by the Commercial Trustees.

LIMITED COMMON AREAS

The limited common areas or exclusive use areas of mixed-use condominiums must be defined clearly.  The limited common areas of the commercial units are different from the limited common areas of the residential units.  The limited common areas of the commercial units can be referred to as Limited Commercial Common Areas.  These would include exterior equipment, pipes and other facilities serving only the commercial units.

The limited common areas of the residential units consist of areas that serve only the residential units, e.g. entrances, stairways, patios, and lobbies. In addition, there will be common areas that serve the entire building or buildings, such as the garage of the building or an exterior parking lot.

Because there are common areas, limited residential common areas and limited commercial common areas, the Condominium Trust should provide for three budgets and the Condominium Trustees need the authority to create and adjust these budgets.

BENEFICIAL INTEREST PERCENTAGES

In a mixed-use condominium, percentage interests should be provided as follows:

• The proportionate interest of a unit in the common areas;
• The proportionate interest of a unit in the limited residential common areas; and
• The proportionate interest of a unit in the limited commercial common areas.

All units, residential and commercial, have a percentage interest in the common areas.  Only the residential units have a percentage interest in the limited residential common area.  Only the commercial units have a percentage interest in the limited commercial common areas.

The Massachusetts Condominium Statute, Chapter 183A, does not address the mixed-use form of condominium ownership.  Its hybrid structure is a creative and instrumental tool in reviving business and residential districts. In addition to permitting, financing, construction and marketing, carefully drafted governing documents play a crucial role in making this form of development and ownership a success.

Co-chair of REBA’s Condominium Law and Practice Section, Angel Kozeli Mozina is a director at Rackemann, Sawyer & Brewster, P.C. where she represents developers, lenders, borrowers, management companies, condominium associations, owners and tenants in a broad range of real estate and corporate matters.  Angel can be contacted by email at amozina@rackemann.com. 

Boston Properties' Redevelopment of the Back Bay Station: A Mini Case Study (Video)

Materials

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.