Posts tagged "Appeals"

Bruno, et al. v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 11-032-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   17-P-174                                        Appeals Court   WILLIAM A. BRUNO, trustee,[1] & another[2]  vs.  ZONING BOARD OF APPEALS OF TISBURY & others.[3]     No. 17-P-174.   Suffolk.     November 9, 2017. – March 19, 2018.   Present:  Meade, Shin, & Ditkoff, JJ.     Subdivision Control, Approval not required, Zoning requirements.  Zoning, Enforcement, Nonconforming use or structure.  Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations.  Limitations, Statute of.       Civil action commenced in the Land Court Department on May 2, 2014.   The case was heard by Gordon H. Piper, J., on motions for summary judgment.     Douglas A. Troyer for the plaintiffs. Howard M. Miller for Samuel Goethals & another. Jonathan M. Silverstein for Zoning Board of Appeals of Tisbury.     DITKOFF, J.  The plaintiffs, William A. Bruno and Lynne Bruno, as trustees of the W.A.B. Realty Trust and L.B. Realty Trust (Brunos), appeal from a Land Court judgment upholding the denial by the zoning board of appeals of Tisbury (board) of the Brunos’ request to enforce the zoning law against the defendants, Samuel Goethals and Mary Goethals, as trustees of the Goethals Family Trust (Goethals).  The Goethals subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot.  We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan.  As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board. Background.  The Goethals and Brunos separately own adjoining real property parcels, held in trust, located on Goethals Way in the town of Tisbury.  The Goethals’ property (Lot 1) and the Brunos’ property (Lot 2) formerly comprised a single parcel (original lot), first purchased by the Goethals family in or around the 1930’s.  The original lot contained a single-family dwelling when the Goethals purchased it, and they added a separate garage sometime prior to 1960. In 1978, the planning board of Tisbury […]

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Posted by Massachusetts Legal Resources - March 20, 2018 at 12:17 am

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Roma, III, Ltd. v. Board of Appeals of Rockport (Lawyers Weekly No. 10-002-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12278   ROMA, III, LTD.  vs.  BOARD OF APPEALS OF ROCKPORT.       Suffolk.     September 6, 2017. – January 8, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.     Municipal Corporations, By-laws and ordinances.  Zoning, Validity of by-law or ordinance, Private landing area.  Federal Preemption.       Civil action commenced in the Land Court Department on March 12, 2015.   The case was heard by Robert B. Foster, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Jackie Cowin for the defendant. Nicholas Preston Shapiro (Robert K. Hopkins also present) for the plaintiff. Maura Healy, Attorney General, & Elizabeth N. Dewar, State Solicitor, for division of aeronautics of the Department of Transportation, amicus curiae, submitted a brief.     GANTS, C.J.  A judge of the Land Court barred the town of Rockport (town) from enforcing a zoning bylaw that prohibited the use of land for a private heliport without some form of approval, variance, or special permit because the bylaw had not been approved by the division of aeronautics of the Department of Transportation (division).  The issue on appeal is whether cities and towns may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area, here a heliport, or whether they may do so only with the approval of the division because the exercise of such zoning authority is preempted by the State’s aeronautics statutes, G. L. c. 90, §§ 35-52 (aeronautics code).  We hold that there is no clear legislative intent to preempt local zoning enactments with respect to noncommercial private restricted landing areas, and that a city or town does not need the prior approval of the division to enforce a zoning bylaw that requires some form of approval, variance, or special permit for land to be used as a private heliport.[1] Background.  Roma, III, Ltd. (plaintiff), is the owner of 1.62 acres of oceanfront property in Rockport (property).  The property, improved by a single-family residence, is located in what is classified as a residential A zoning district. Ron Roma (Roma) is licensed as a helicopter pilot and regularly uses the helicopter he owns to travel to his various family homes, business engagements, and other activities.  Roma does not operate his helicopter for […]

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Posted by Massachusetts Legal Resources - January 9, 2018 at 4:37 pm

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135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12253   135 WELLS AVENUE, LLC  vs.  HOUSING APPEALS COMMITTEE & others.[1]       Suffolk.     April 6, 2017. – November 13, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2]     Municipal Corporations, Property, Use of municipal property.  Real Property, Deed, Restrictions.  Housing.  Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals:  jurisdiction.  Permit.       Civil action commenced in the Land Court Department on January 14, 2016.   The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Daniel P. Dain for the plaintiff. Maura E. O’Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another. Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee. Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens’ Housing and Planning Association, amicus curiae, submitted a brief.     GAZIANO, J.  The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use.  As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city’s deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space.  The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. 135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23.  In order to proceed with development of the project, in May, 2014, 135 Wells asked the city’s board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction.  At the same time, 135 Wells applied to the city’s zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project.  The […]

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Posted by Massachusetts Legal Resources - November 14, 2017 at 4:38 am

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Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-3545-BLS2 ANNE GAMBLE TEN TAXPAYER GROUP, consisting of GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON, Plaintiffs vs. HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL, Defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes 2 that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein. BACKGROUND Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the […]

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Posted by Massachusetts Legal Resources - November 3, 2017 at 2:37 pm

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Koines, et al. v. Zoning Board of Appeals of Cohasset, et al. (Lawyers Weekly No. 11-014-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-678                                        Appeals Court   ALEXANDER C. KOINES & another[1]  vs.  ZONING BOARD OF APPEALS OF COHASSET & others.[2]       No. 16-P-678.     February 21, 2017.     Zoning, Nonconforming use or structure, Lot size, Exemption, Judicial review.  Real Property, Merger.     The plaintiffs appeal from a judgment of the Land Court that affirmed a decision of the defendant zoning board of appeals of Cohasset (board) based on a conclusion that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw.  We affirm.   At issue in the case is section 8.3.2(c) of the by-law, the language of which is set out in the margin.[3]  The Shaws’ lot, containing approximately 21,850 square feet, is located in an R-C district in which the minimum lot size is 60,000 square feet.  The current minimum lot size results from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land.  The lot accordingly plainly meets the literal linguistic requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district.   The plaintiffs nonetheless contend that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger.  Under that doctrine, a lot held in separate ownership at the time an increase in area renders it nonconforming and thereby entitled to grandfather protection under the fourth paragraph of G. L. c. 40A, § 6, loses grandfather protection if it thereafter comes into common ownership with adjoining land.  See Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 243 (2001).  As the plaintiffs observe, this court reached its conclusion in Preston despite the fact that the lot at issue met the literal linguistic requirements set forth in the statute, resting its conclusion on the fact that the Legislature, though presumptively aware of the preexisting and well-established merger doctrine at the time it enacted § 6, did not evince a clear intent to alter the common law.  See id. at 240, 243.   The present case stands differently since we are presented with an enactment of the Cohasset town meeting, construed by the local zoning board of appeals […]

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Posted by Massachusetts Legal Resources - February 21, 2017 at 8:12 pm

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Furlong, et al. v. Zoning Board of Appeals of Salem, et al.

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1174                                       Appeals Court   MICHAEL F. FURLONG & another[1]  vs.  ZONING BOARD OF APPEALS OF SALEM & another.[2]     No. 15-P-1174.   Suffolk.     October 7, 2016. – December 12, 2016.   Present:  Hanlon, Sullivan, & Blake, JJ.     Zoning, Variance, Setback.  Practice, Civil, Zoning appeal.       Civil action commenced in the Land Court Department on February 17, 2012.   The case was heard by Robert B. Foster, J.     Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc.     BLAKE, J.  The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance.  The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court.  Following a jury-waived trial, the judge affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance.  We agree and affirm. Background.  We recite the facts found by the judge, which are undisputed by the parties.  Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina.  The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot.  The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a “marine travel lift” hoist (travel lift).  As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance.  The proposed building would serve as the marina’s boat repair facility, allowing the removal of the Quonset […]

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Posted by Massachusetts Legal Resources - December 13, 2016 at 3:04 pm

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Zoning Board of Appeals of Hanover v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-110-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-893                                        Appeals Court   ZONING BOARD OF APPEALS OF HANOVER  vs.  HOUSING APPEALS COMMITTEE & another.[1]     No. 15-P-893.   Plymouth.     May 9, 2016. – August 29, 2016.   Present:  Agnes, Massing, & Kinder, JJ.     Housing.  Zoning, Housing appeals committee, Comprehensive permit, Low and moderate income housing.  Administrative Law, Agency’s interpretation of regulation, Regulations. Municipal Corporations, Fees.     Civil action commenced in the Superior Court Department on March 11, 2014.   The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings.     Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff. Paul N. Barbadoro for Hanover Woods, LLC. Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee.     MASSING, J.  Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project.  Considering the board’s filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee.  Deeming the application incomplete, the board did not accept it for filing.  By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer’s permit. Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project.  The board appeals from a judgment of the Superior Court affirming the HAC’s order.  Because we conclude that the HAC erred in determining that the developer’s application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse. Background.  On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town).  Thirty-eight of the units, or twenty-five percent, were designated to be affordable units.  Under the board’s fee schedule, the filing fee for a project of that size was $ 250 per housing unit, or $ 38,000. […]

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Posted by Massachusetts Legal Resources - August 29, 2016 at 3:17 pm

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Tusino v. Zoning Board of Appeals of Douglas, et al. (and a companion case) (Lawyers Weekly No. 11-107-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1400                                       Appeals Court 14-P-1193   LOUIS C. TUSINO  vs.  ZONING BOARD OF APPEALS OF DOUGLAS & another[1] (and a companion case[2]).     Nos. 15-P-1400 & 14-P-1193.   Worcester.     June 3, 2016. – August 25, 2016.   Present:  Vuono, Wolohojian, & Blake, JJ.     Jurisdiction, Zoning.  District Court, Jurisdiction, Appellate Division.  Zoning, Appeal.  Appeals Court, Jurisdiction.  Practice, Civil, Zoning appeal, Appellate Division:  appeal, Action in nature of mandamus, Moot case.  Mandamus.  Moot Question.       Civil action commenced in the Uxbridge Division of the District Court Department on December 8, 2014.   The case was heard by David B. Locke, J., on a motion for summary judgment.   Civil action commenced in the Land Court Department on August 21, 2009.   The case was heard by Robert B. Foster, J., on a motion for summary judgment.     Gerald E. Shugrue for Louis C. Tusino. Henry J. Lane for Joseph Bylinski. Michael J. Kennefick for building commissioner of the town of Douglas, & another.     WOLOHOJIAN, J.  These two cases arise out of the construction of a house on a nonconforming lot in Douglas.  The dispositive issue on appeal is whether we have jurisdiction over a direct appeal from a decision of the Uxbridge District Court in a zoning appeal under G. L. c. 40A, § 17.  Concluding that we do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas, 2015-P-1400 (zoning appeal).  Because our disposition of this case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-1193 (mandamus appeal), we dismiss it as well. On July 8, 2008, Tusino obtained a building permit to build a house on a lot he owns in Douglas.  Construction began in February, 2009, and Bylinski, who owns the adjacent property, immediately thereafter asked the building commissioner to revoke the permit.  The commissioner denied that request, and Bylinski appealed to the zoning board (board).  The appeal was constructively allowed, and the building permit was revoked.  On appeal, the Superior Court affirmed the revocation of the permit.  Tusino did not further appeal, and the Superior Court’s decision became final. Tusino thereafter applied to the board for a variance.  This too was denied.  He appealed the denial to the Land Court, which entered summary judgment against him.  On February 21, 2014, in a memorandum and order issued pursuant to our rule 1:28, we affirmed the […]

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Posted by Massachusetts Legal Resources - August 25, 2016 at 6:15 pm

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Eisai, Inc., et al. v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-072-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-680                                        Appeals Court   EISAI, INC., & others[1]  vs.  HOUSING APPEALS COMMITTEE & another.[2] No. 15-P-680. Suffolk.     March 8, 2016. – June 20, 2016.   Present:  Hanlon, Sullivan, & Massing, JJ. Housing.  Zoning, Housing appeals committee, Comprehensive permit, Person aggrieved.  Practice, Civil, Zoning appeal, Standing.     Civil action commenced in the Superior Court Department on March 11, 2014.   The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings.     Christopher Robertson (Jonathan D. Witten with him) for the plaintiffs. Suleyken D. Walker for Housing Appeals Committee. Kevin P. O’Flaherty for Hanover R.S. Limited Partnership.      MASSING, J.  This appeal concerns the standards that defendant housing appeals committee (HAC) applies when it reviews the decision of a local zoning board of appeals to deny an application under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), based on municipal planning concerns. The plaintiffs, owners and lessors of commercial and industrial properties neighboring the proposed housing development (hereinafter, abutters or, in context, interveners), appeal from a judgment of the Superior Court affirming the HAC’s decision directing the zoning board of appeals for the town of Andover (board) to issue a comprehensive permit to defendant Hanover R.S. Limited Partnership (developer).  The abutters claim that the HAC impermissibly applied a new standard, not contained in any statute, regulation, or previous HAC decision, in evaluating Andover’s municipal planning efforts.  In the alternative, they claim that the HAC erroneously applied the applicable standard.  The defendants, for their part, contend that the abutters lack standing to bring this appeal.  Concluding that the abutters have standing, we reach the merits and affirm the judgment of the Superior Court affirming the HAC’s decision. Background.  On August 19, 2011, the developer filed an application for a comprehensive permit to build a mixed income rental housing development to be known as the “Lodge at Andover” within an existing office and industrial park.  The proposed location for the residential development, 30 Shattuck Road, is mostly within Andover’s River Road industrial D district, a commercial and industrial area in the northernmost part of Andover, near the River Road exit of Interstate Route 93.[3]   Shattuck Road, a dead end, and Tech Drive, a small looping road off of Shattuck Road, make up the office and industrial park consisting of ten large businesses and one vacant lot:  the proposed […]

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Posted by Massachusetts Legal Resources - June 20, 2016 at 5:17 pm

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Picard v. Zoning Board of Appeals of Westminster, et al. (Lwyers Weekly No. 10-085-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11991   MAURICE PICARD, personal representative,[1]  vs.  ZONING BOARD OF APPEALS OF WESTMINSTER & another.[2] Worcester.     February 9, 2016. – June 17, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Zoning, Person aggrieved.  Practice, Civil, Standing.  Easement.  Real Property, Easement, Beach.  Beach.       Civil action commenced in the Superior Court Department on August 23, 2011.   The case was heard by Robert B. Gordon, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Thomas M. Bovenzi for 3333, Inc. Peter A. CampoBasso for the plaintiff.     CORDY, J.  Is a claimed injury to a private easement right sufficient to confer standing to challenge a zoning determination made by a zoning board of appeals?  In the circumstances of this case, we conclude that it is not.  Maurice Picard, as the personal representative of his wife’s estate, commenced this action in the Superior Court after the zoning board of appeals of Westminster (zoning board) upheld the building commissioner’s determination that property abutting his, owned by the defendant, 3333, Inc., enjoyed grandfathered status under the Westminster zoning by-law.  After a bench trial, a judge in the Superior Court dismissed Picard’s complaint for lack of standing.  The Appeals Court, in an unpublished decision pursuant to its rule 1:28, reversed the judgment as to standing and concluded that the property in question did not enjoy grandfathered status under the Westminster zoning by-law.  Picard v. Zoning Bd. of Appeals of Westminster, 87 Mass. App. Ct. 1125 (2015).  We granted further appellate review, limited to the standing issue.  We affirm the judgment of the Superior Court. Background.  The trial judge found the following facts, which we occasionally supplement with undisputed facts from the record.  See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (on appellate review, judge’s factual findings will not be set aside unless clearly erroneous or unless there is no evidence to support them).  Picard is the owner and occupant of certain property on Laurie Lane in Westminster (town).  Picard’s property is identified as lots 34 and 43 on a plan referred to by the judge as the “Laurie Lane Plan.”  The deed that conveyed the property to Picard’s late spouse also contained within it […]

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Posted by Massachusetts Legal Resources - June 17, 2016 at 5:45 pm

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