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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Showing 40 posts by Brian C. Levey.

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 ›

Local Wetlands Bylaw Decision Survives Pre-emption Challenge

The Massachusetts Appeals Court has again upheld the validity of a local conservation commission’s ruling under a local wetlands bylaw notwithstanding that the commission’s partial reliance on the State Wetland Protection Act was erroneous. Parkview Electronics Trust v. Conservation Commission of Winchester, Appeals Court No. 13-P-276 (January 12, 2016). Read More ›

Brian Levey Quoted in Wicked Local Article on Affordable Housing Ruling in Massachusetts

Brian Levey, a Principal in Beveridge & Diamond’s Wellesley, MA office and co-chair of the firm’s Natural Resources & Project Development practice, discussed the implications of a recent ruling by the Massachusetts Supreme Judicial Court to prevent an affordable housing project from proceeding in a Wicked Local article, “Supreme Judicial Court nixes Stow 40B project.”  Chapter 40B is the state’s affordable housing law.  The Court’s decision was based on its finding that the development’s septic system, despite being compliant with state environmental regulations, would cause unsafe nitrogen levels in the surrounding drinking water. Read More ›

Affordable Housing Permit Revoked by Massachusetts Appeals Court

Local Regulation Improperly Waived in the Face of Evidence of Threat to Public Health

In a recent ruling sure to embolden municipalities seeking to block affordable housing projects, the Massachusetts Appeals Court revoked the approval of a Comprehensive Permit issued under the Anti-Snob Zoning Act, G.L. c.40B, §§ 20–23(Act) on the grounds that the local board of appeals erred in waiving certain waste disposal limitations in a local bylaw where there was evidence that the proposed project’s waste disposal system would  have caused elevated nitrogen levels in the private wells on the abutting properties. Reynolds v. Zoning Board of Appeals of Stow, 88 Mass. App. Ct. 339 (2015). Read More ›