Zoning

Owner seeking special permit has burden of showing it will not harm neighbors

A zoning board granted a special permit to au auto body shop after placing the burden of proof on neighbors to show that the shop would release harmful chemicals into the air. The Court of Appeals reversed because the owner seeking the special permit (the auto shop) should have the burden of proving that its operation would not significantly decrease air quality. Fish v. Accidental Auto Body, Inc.,2019 WL 2236279, 95 Mass.App.Ct. 355(Mass. App. Ct. 2019). In addition, the Court found that there was evidence that... Read more about Owner seeking special permit has burden of showing it will not harm neighbors

Supreme Court opens federal courts to a floodgate of takings cases

In a 5-4 decision, the Supreme Court overruled Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) and held that owners aggrieved by state regulations they believe took their property without just compensation can immediately sue for relief in federal courts under 42 U.S.C. §1983 even if state law would have provided just compensation through administrative procedures....

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Town can alter zoning law retroactively to prohibit Airbnb use

The Massachusetts Land Court has ruled that a town may amend its zoning ordinance to prohibit Airbnb use and that retroactive application of the new law to those who established Airbnb use before it was passed is lawful. The owner had no right to have the prior Airbnb use "grandfathered in" as a prior nonconforming use under state statutes. Styller v. Aylward, 2018 Mass. LCR LEXIS 194 (Mass. Land Ct. 2018). Read more about Town can alter zoning law retroactively to prohibit Airbnb use

Reduction in property value held not sufficient to give an abutting neighbor standing to challenge a zoning decision to allow a group home for veterans to be created

Massachusetts law allows abutters to challenge zoning permit decisions only if they can show that they are affected by those decisions. In Walsh v. Town of Dennis Planning Bd.,26 LCR 89, 2018 Mass. LCR LEXIS 24 (Mass. Land Ct. 2018), the court clarified that the abutter needs to show harm to use of enjoyment of land and that a mere claimed reduction in...

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Landowner who reasonably relies on zoning administrator’s advice cannot be required to remove a noncomplying structure

In re Langlois/Novicki Variance Denial, 2017 VT 76, 2017 Vt. LEXIS 96, 2017 WL 3662437 (Vt. 2o17), the Vermont Supreme Court held that an owner cannot be compelled to remove a structure that violates the zoning law when the owner built the structure on the basis of advice given by the zoning admininstrator on its legality....

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Vested right to keep a garage built on the basis of an erroneously granted special permit

In Board of Supervisors of Richmond County v. Rhoads, 803 S.E.2d 329 (Va. 2017), the Virginia Supreme Court ruled that an owner who built a garage that violated the zoning law could maintain that use even though the permit was erroneously granted because the owner had invested in reasonable reliance on the permit grant.

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Supreme Court denies certiorari in inclusionary zoning case

As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing.  616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the...

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Supreme Court rejects regulatory takings challenge to zoning merger provision

In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable...

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