372 Union Avenue Framingham, MA (Tel) (Fax)

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1 372 Union Avenue Framingham, MA (Tel) (Fax) To: Board of Selectmen Town Manager/Administrator/Executive Secretary Planning Board Board of Appeals Building Commissioner From: Barbara J. Saint André Date: July 8, 2014 Re: Petrini & Associates Client Advisory No Quarterly Update on Land Use Law This Quarterly Update on Land Use Law sets forth a brief overview of relevant land use and zoning decisions issued by the Supreme Judicial Court (SJC) and Appeals Court, as well as federal court decisions, in the months of April, May and June of This memorandum does not include every decision involving land use issued by the Massachusetts appellate courts. Some decisions were omitted if they were purely procedural in nature or did not provide any new substantive analysis. ZONING Deadrick v. Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014) In this case, the Appeals Court ruled that the creation of a new, additional nonconformity to a pre-existing nonconforming single or two-family structure requires a variance. The Chandlers owned a pre-existing single family structure that was nonconforming as to lot size, building coverage, frontage, front and side yard setback. They filed an application for a special permit to raze the house and build a new one which would have the same nonconformities, but would also exceed the maximum height in the district. Part of the increase in height was due to the property s location in a velocity zone, which required that the new structure be elevated above the 100 year flood elevation. The board granted the special permit, and a group of neighbors appealed. The Land Court determined on cross motions for summary judgment that, because the new structure created a new nonconformity as to height, it required a variance. The Chandlers moved for reconsideration on grounds of standing, and also claimed that Section IV.A.3 of the

2 Chatham zoning by-law permitted the new structure to exceed the maximum height. The Land Court denied the motion, and the Chandlers appealed. The Appeals Court agreed with the Land Court that, if the exemption from the maximum height found in Section IV.A.3 did not apply, then the new nonconformity required a variance. The Appeals Court found that the board had not made a determination as to whether the exemption applied. Section IV.A.3 stated: Provided that there is no expansion, those dwellings which existed prior to January 16, 1992 and are required by the Building Inspector to be elevated in accordance with FEMA regulations, shall not be required to conform to the twenty foot height restriction. Since this required a determination as to whether the new structure was an expansion, the Appeals Court concluded that the local board of appeals should interpret the bylaw in the first instance. Therefore, the matter was remanded to the board. The Appeals Court went on to affirm the Land Court ruling that, if the new structure was not considered exempt from the height requirement, it would require a variance for the additional nonconformity created. The Court reviewed the case law interpreting the second except clause of G.L. c. 40A, 6, which provides for alteration, reconstruction, extension or structural change to a single or two family structure that does not increase the nonconforming nature of the structure. In Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), the Appeals Court had ruled that a reconstruction of a pre-existing nonconforming single family structure required only a special permit determination that there would not be substantial detriment to the neighborhood where the new structure would intensify existing nonconformities. The Court noted that the second except clause differentiates between changes to residential structures that require a special permit and those allowed by right. In this case, it was undisputed that the new structure would increase the nonconforming nature of the structure, thus requiring a special permit. The creation of a new nonconformity, however, is not allowed under the second except clause, and requires a variance. GPH Cohasset, LLC v. Trustees of Reservations, 85 Mass. App. Ct. 555 (2014) This is an appeal from the grant of a special permit for a wind turbine to be erected on land owned by the Trustees. The Trustees conducted both a noise study and a shadow flicker study prior to applying for special permit and site plan approval. The noise study concluded that the turbine would comply with the DEP Noise Policy. The shadow flicker study indicated a maximum shadow flicker of 55 hours per year at the nearest residential property, plaintiff Golden Living. Although there are no federal, state, or local regulations governing maximum shadow flicker, the generally accepted industry practice is no more than 30 hours per year. The board of appeals granted the special permit and site plan approval with 37 conditions, and two abutters appealed. The Land Court upheld the board s decision and the abutters appealed further. Plaintiffs claimed that the board failed to make sufficient findings. However, the Appeals Court agreed with the Land Court that the numerous detailed conditions imposed by the board acted as findings. With respect to the shadow flicker, the court found that the 55 hours per year was a worst case scenario assuming no cloud cover, and further that the abutting Golden Living facility is surrounded by tall trees that will reduce the shadow flicker. Further, the board imposed a 2

3 condition that the turbine be shut down if actual shadow flicker exceeds 30 minutes per day or 30 hours per year, thereby addressing this concern adequately. The Court also found that the Trustees legislative mandate did not preclude the use of the site for a for-profit wind energy plant, nor did municipal restrictions on another portion of the Trustees s land burden this particular site. Further, the conditions of approval adequately addressed noise and safety concerns. ENVIRONMENTAL Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210 (2014) This case upheld the state regulations under the Massachusetts Endangered Species Act (MESA) that establish priority habitat. Petitioners sought to construct a home on land in Hampden that has been designated a priority habitat for the eastern box turtle, a species of special concern, by the Division of Fisheries and Wildlife. Petitioners challenged the validity of the priority habitat regulations insofar as the regulations allow the Division to designate priority habitat without affording land owners the same procedural protections due to owners of land designated significant habitat. The Division s delineation of the property was based on a citizen s sighting of a female box turtle of reproductive age on or near the parcel in When petitioners applied to the Division to build a single family home on the property, the Division determined the project had the potential to result in a take of a state-listed species, meaning it might harm the turtle or disrupt its habitat. The Division later determined that revised plans would not result in a take if a conservation restriction were imposed on the property. Petitioners requested reconsideration of the delineation of their property, which was denied. Petitioners then requested an adjudicatory hearing, challenging the validity of delineation of priority habitat, and arguing that the criteria were not properly applied to their property. The Department of Fish and Game magistrate granted the Division s motion for a directed decision without an evidentiary hearing. Petitioners appealed to Superior Court, which upheld the Division, and this appeal ensued. Under MESA, the Division is authorized to designate areas as significant habitats, in which property development is generally barred. The process for designating significant habitat includes advance written notice to land owners, a public hearing, and recording of the designation at the registry of deeds. Land owners aggrieved by a designation may file an action in Superior Court challenging the designation. Priority habitats, by contrast, are not provided for in MESA, and there is no advance notice or public hearing. Land designated as priority habitat may be developed if the Division determines that the proposed project does not result in a take. With respect to petitioners challenge to the validity of the priority habitat regulations, the Court began with the well known rule that regulations are presumed valid. Further, the court stated that the purpose of MESA was to protect the habitats of endangered, threatened or species of special concern, and prohibit the alteration of significant habitats. The regulations were found to be rationally related to the statutory goals. Although the protections offered to landowners are less stringent for priority habitat delineations, the burdens imposed by the regulations are also less stringent. 3

4 On the merits, the SJC upheld the Division, finding that the directed decision was proper where petitioners testimony was insufficient to demonstrate that the Division had deviated from its guidelines in delineating the priority habitat. Petitioners merely called into question the credibility of the person who sighted the turtle in 1991, and stated that no turtles had been seen on the property since. Petitioners testimony did not controvert the Division s witnesses, who supported the credibility of the 1991 sighting as well as other sightings near the property. TELECOMMUNICATIONS ACT Green Mountain Realty Corp. v. Leonard, 2014 WL , - F. 3d (1 st Cir. 2014) This is the second decision from the First Circuit Court of Appeals in this case, which involves the denial of a special permit and order of conditions to construct a 140 foot tall telecommunications tower near exit 3 off of interstate 93 in Milton. Plaintiff filed suit in the Federal District Court, claiming that the Milton ZBA and conservation commission violated the federal Telecommunications Act (TCA) because their actions were not supported by substantial evidence in the record, and because the denials had effectively prohibited the provision of wireless services in the area. The District Court entered summary judgment for the defendants; on appeal, the First Circuit Court of Appeals affirmed the determination that the local decisions were supported by substantial evidence, but remanded the matter back to the District Court for further consideration of the effective prohibition claim. The District Court, after further evidence was submitted, again granted summary judgment to the defendants. The District Court noted that, to sustain its burden of proof, the plaintiff needed to establish that there was a significant gap in coverage and that there was no alternative to fill that gap. The District Court stated that the key question was whether the effective prohibition claim should be evaluated as of the date of the local decision, or based on the current facts. The District Court decided that the plaintiff needed to establish an effective prohibition based on current facts, since the TCA seeks to preserve local zoning authority so long as local decisions do not run afoul of any of the provisions of the TCA. The District Court found that the plaintiff established an effective prohibition for at least two carriers, T-Mobile and MetroPCS, as of the date of the local decisions. However, in May of 2013, those two carriers merged, as a result of which the gap in coverage for MetroPCS was no longer significant. With respect to the newly constituted T- Mobile, the court determined that plaintiff had not demonstrated that a 140 foot tower was required to fill the gap in coverage, and that it appeared that an antenna of 117 feet would be sufficient. Accordingly, plaintiff had failed to demonstrate that there was no feasible alternative to fill the coverage gap, and the District Court granted summary judgment again to defendants. On appeal, the First Circuit agreed that, although the merger had eliminated the effective prohibition argument as to MetroPCS, there was still a significant gap for T-Mobile. It further found that the only feasible solution to the coverage gap is the construction of a cell tower at the site, and thus the denial violated the TCA by effectively prohibiting the provision of wireless services by T-Mobile. It ruled that the only issue that remained to be determined in the case was 4

5 the height of the tower, which should be determined by the District Court, not the local board of appeals. The First Circuit therefore affirmed the denial of plaintiff s motion for summary judgment, reversed the grant of summary judgment in favor of Milton, and remanded the matter to the District Court to determine the height of the tower Quarterly Land use update ( ) 5

Lobisser Building Corp. v. Planning Board of Bellingham, 454 Mass. 123 (2009)

Lobisser Building Corp. v. Planning Board of Bellingham, 454 Mass. 123 (2009) PETRINI ASSOCIATES, P.C. Barbara J. Saint André bsaintandre@petrinilaw.com 372 Union Avenue Framingham, MA 01702 (Tel) 508-665-4310 (Fax) 508-665-4313 www.petrinilaw.com To: Board of Selectmen Town Manager/Administrator