The Massachusetts Land Court has ruled that a town may amend its zoning ordinance to prohibit Airbnb use and that retroactive application of the new law to those who established Airbnb use before it was passed is lawful. The owner had no right to have the prior Airbnb use “grandfathered in” as a prior nonconforming use under state statutes. Styller v. Aylward, 2018 Mass. LCR LEXIS 194 (Mass. Land Ct. 2018).
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.
In Board of Supervisors of Richmond County v. Rhoads, 803 S.E.2d 329 (Va. 2017), the Virginia Supreme Court ruled that an owner who built a garage that violated the zoning law could maintain that use even though the permit was erroneously granted because the owner had invested in reasonable reliance on the permit grant.
As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing. 616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the California Supreme Court that also upheld such ordinances and found them not to be takings of property without just compensation. Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015). Cf., Common Sense Alliance v. Growth Mgmt. Hearings Bd., 2015 WL 4730204 (Wash. Ct. App. 2015) (general “legislative” regulations that apply to classes of property or development, rather than individualized permit conditions, are not subject to the Nollan/Dolan nexus requirements). These rulings have generally not applied the restrictive …
Supreme Court denies certiorari in inclusionary zoning case Read More »
The Massachusetts Land Court has held that property used for weekly rentals violate the town zoning ordinance that limits the property to single-family residences. Lytle v. Swiec, 2017 WL 2257702 (Mass. Land Ct. 2017). The case may have implications for AirBnb and other such short-term rental operations. See Zoning By-Law of the Town of Hull, §31-1.
In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable space but did not provide for such a variance if two lots were merged. One lot had a house on it and the other was vacant. The owners claimed that the vacant lot had no economically beneficial use since it could not be separately developed. However, the Supreme Court held that the denominator to determine the economic impact of the regulation was the “parcel as a whole” and that in this case that meant the merged parcels. Moreover, even if the two lots could be developed separately, …
Supreme Court rejects regulatory takings challenge to zoning merger provision Read More »
A town violated the Religious Land Use-Institutionazlied Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, when its planning board required a mosque to provide off-street parking for every single member as a condition of receiving a building permit when it had not imposed similar requirements for churches and synagogues. Islamic Soc’y of Basking Ridge v. Twp. of Bernards, 2016 U.S. DIst. LEXIS 180568 (D.N.J. 2016). The town had reasoned that, because religious services were on Friday afternoons, almost every person would be using a car to attend services while the same would not be true for churches and syanagogues. The court found this reasoning to be discriminatory since the proposed mosque plan was subjected to unprecedented individualized inquiry that had not taken place for other non-Islamic religious institutions in the past. That constituted a RLUIPA violation because it violated the “equal terms” provisions which prohibit “impos[ing] or implement[ing] a land use regulation in …
The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable housing to be constructed. In Eisai, Inc. v. Housing Appeals Committee, 89 Mass. App. Ct. 604 (2016), the court affirmed the substantial deference owed to the state agency when it exercises its powers ordering a municipality to issue a comprehensive development permit for affordable housing. Local concerns that include protection of health or safety of occupants or residents of the municipality cannot override …
In the 2015 case of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court struck down a local ordinance that banned “ideological signs” that “communicat[e] a message or ideas.” The ordinance also limited “political signs” to election season and limited the times when plaintiff church was allowed to post “directional signs” bearing the name of the church and the time and location of the next service. The Court noted that content-based restrictions on speech are presumptively unconstitutional and could only be justified if they serve a compelling government interest, a showing that could not be made by the town. Further, the town had ample alternative ways to regulate the placement and size of signs to satisfy public safety and aesthetic concerns.
