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Showing 43 posts by Brian C. Levey.

Appeals Court Offers Path for Challenging ZBA’s Failure to Act

A constructive approval cannot be obtained where a zoning board of appeals secretary promptly returns an application and filing fee and says it does not have jurisdiction, according to the Massachusetts Appeals Court in its unpublished recent decision of Neli Ridge, LLC v. Town Clerk of Wilmington, 93 Mass.App.Ct. 1109 (2018). Read More ›

“Frivolous” Town Complaint Results in Attorney’s Fees Award for Affordable Housing Developer

The Massachusetts Land Court’s recent award of attorney’s fees to an affordable housing developer serves as a warning to municipalities opposed to affordable housing projects under the Massachusetts affordable housing statute, M.G.L. c. 40B. In Town of Sudbury v. Bartlett, et al., Land Court Case No. 16 MISC 000734 (2017), the Town sought to block development of property that it had sold to the developer, arguing that the parcel was subject to a deed restriction. The Land Court rejected this argument and sided with the developer in a decision on cross-motion for summary judgment. The developer filed a subsequent motion to recover attorney’s fees under M.G.L. c. 231, § 6F. Read More ›

Supreme Judicial Court Sets Limitation on Chapter 40B’s Broad Grant of Authority to Local Zoning Boards

In a rare limitation on the broad scope of Massachusetts’ affordable housing law, the state’s top court ruled that amendments by a local board to municipally owned deed restrictions are not covered by the law. Read More ›

Zoning-Immune Government Building Retains Its Protected Status Upon Transfer to Private Party

The Massachusetts Appeals Court recently clarified whether formerly zoning-immune government buildings continue to considered lawfully noncompliant with local zoning when that immunity is terminated. In Gund v. Planning Bd. of Cambridge, 91 Mass. App. Ct. 813 (2017), the Court held that a structure that loses its governmental immunity remains a preexisting nonconforming structure under M.G L. c. 40A, § 6 (or a mirrored municipal zoning ordinance) at the time it is conveyed to a private party. The Court rejected the contention that it must distinguish between a structure that is nonconforming because of subsequent stricter zoning ordinances and a structure that is nonconforming after loss of governmental immunity. Read More ›

Court Reaffirms Standard for Injury Sufficient to Maintain Standing to Challenge Zoning Permit Modification

The Massachusetts Appeals Court reaffirmed that the injury sufficient to maintain standing to challenge the modification of a special permit turns on the harm stemming from the original project, not the incremental harm between pre- and post-modification changes. In Aiello v. Planning Board of Braintree, 91 Mass. App. Ct. 354 (2017), the Appeals Court reversed the Land Court’s decision that the plaintiff lacked standing because he could not show such incremental harm and remanded the approval of a special permit for an enhanced commercial use to the local planning board for reconsideration.   Read More ›

Court Mandates Full Payment of 40B Application Fee for Complete Application

Municipality Successfully Invokes Safe Harbor Due to Late Payment

Ruling that a developer who files a comprehensive permit application without paying the full filing fee “does so at its peril,” the Court in Zoning Board of Appeals of Hanover v. Housing Appeals Committee, 90 Mass. App. Ct. 111 (2016), found that the local board of appeals properly considered the developer's application with the benefit of the “safe harbor” which the town had achieved in the interim period between the partial and full payment of the fee. As a result, the Court reversed the Housing Appeals Committee’s (HAC) order that the local board issue a comprehensive permit for a 200-unit rental project. In sum, the “safest procedure” for a developer is to concurrently pay the full fee and file a motion to reduce it. Read More ›

Recent Changes to the Massachusetts Zoning Act and Smart Growth Zoning

Recently, the Massachusetts Legislature enacted and Gov. Baker signed into law several important changes to the Massachusetts Zoning Act, General Laws chapter 40A, and the Smart Growth Zoning and Housing Production Act, General Laws chapter 40R.   Read More ›

Massachusetts Appeals Court Imposes Higher Hurdle For Master Plan to Defeat 40B Project

In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing. Read More ›

Massachusetts Appeals Court Imposes Higher Hurdle For Master Plan to Defeat 40B Project

In another setback to opponents of Chapter 40B affordable housing projects, the Massachusetts Appeals Court upheld the Housing Appeals Committee’s (HAC) creation of a seemingly more rigorous four-part test that appears to place a tougher burden on municipalities seeking to deny 40B projects on the ground that their master plan is a local concern that trumps the need for affordable housing. Read More ›

No Appeal to Housing Court for Major Development Projects Says Top Mass. Court

Appeals of major development projects of 25 or more dwelling units or 25,000 square feet or more of gross floor area cannot go to the Massachusetts Housing Court, as jurisdiction for these projects is exclusively with the Superior Court and Permit Session of the Land Court, according to a recent decision by the highest Massachusetts court.  Read More ›