Zoning

The Florida Supreme Court has held that cities cannot be compelled to enforce zoning laws. In City of West Palm Beach v. Haver, 2021 Fla. LEXIS 1572 (Fla. 2021), a neighbor sought a court order to force the city to enforce a zoning prohibition on a group home. The court ruled that it would exceed the legitimate role of the courts to order city officials to comply with local zoning laws when the decision in question is one that has traditionally been discretionary on the part of public officials. The court would not interfere with “administrative enforcement decisions of a kind that traditionally have been considered discretionary and that embody value-laden judgments about the proper allocation of scarce governmental resources.”

The Supreme Judicial Court of the Commonwealth of Massachusetts has set a very high bar to obtain standing to object to a building permit. In Murchison v. Zoning Board of Appeals of Sherborn, 2020 WL 4012766 (Mass. 2020), owners across the street from an irregularly shaped lot objected to granting the owner a permit to build on it. The court found no harm that would justify granting the neighbors the right to challenge the zoning decision, holding that they were not “aggrieved” by the decision as required by state law. The court rejected the contention that construction would make the neighborhood overcrowded, increase traffic, noise, and interfere with light, or diminish property values. The court specifically stated that “diminution in value itself is not an interest protected under” the zoning law. This view is an outlier and not shared by most courts interpreting zoning acts.

The Massachusetts Appeals Court ruled that outdoor displays at a florist shop exceeded the scope of prior uses by the store and thus did not constitute a prior nonconforming use that could continue despite new zoning regulations requiring special permit for such uses. Leonard v. Zoning Bd. of Appeals of Hanover, 135 N.E.3d 288 (Mass. App. Ct. 2019). Although the court found the prior law to be confusing and badly written, it interpreted that law to prohibit outdoor displays unless specifically authorized. Because the florist shop’s outdoor displays were unlawful, they could not count as prior lawful uses that could continue despite a change in the zoning law. A dissenting judge interpreted the prior law to allow the outdoor displays and would have allowed them to continue as a prior nonconforming use.

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 the shop would release hazardous substances and no evidence that would not affect public health.

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 fair market value is not sufficient to grant standing to challenge a zoning decision granting a special permit. The court’s ruling was based on an interpretation of the town’s by-law, suggesting that the result might be different if municipal or state law provided otherwise.

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.