Shaevel, Krems, O'Connor & Jackowitz, LLP
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Posts tagged real estate development
"Spot" Zoning: Land Court Foils Plans to Build Housing Complex in Swampscott

Real Estate Development Team Advisory

"Spot zoning" occurs when a particular lot of land is singled out for a different treatment under a city's zoning restrictions than that accorded to the larger zoned area. A parcel is invalidly "rezoned" for a different land use than is otherwise permitted when it is done for the sole purpose of financially benefiting the owner, and not for any legitimate public purpose.

Earlier this month, the Land Court considered whether impermissible spot zoning occurred when the Town of Swampscott attempted to rezone a parcel, owned by the town itself, to accommodate a multistory, 41-unit apartment complex in an area otherwise designated for single-family residences only. The town expected to sell the parcel to a private developer.

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Supreme Court Hands Land Developers Big Victory

This past summer, in Koontz v. St. Johns River Management District, the United States Supreme Court handed a significant victory to real estate developers across the country, when it announced that it is unconstitutional under the Takings Clause for municipalities to impose "extortionate" conditions for the granting of development permits.

The last clause of the Fifth Amendment, know as the Takings Clause, requires that "just compensation" be paid if the government takes private property for public use. Typically, this clause is invoked when the government, under the power of eminent domain, literally takes land from private owners and provides just compensation for doing so. In this case, the Supreme Court expanded the scenarios in which a landowner can readily make a claim against the government for an unconstitutional taking.
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How would you like a plane landing in your backyard?

Real Estate Development Team Advisory

Some of you may be familiar with the concept of "adverse possession" in Massachusetts and the similar concept of easements by prescription. In order to establish an easement by prescription in Massachusetts, a plaintiff must present evidence that the use of the property has been (1) open and notorious, (2) adverse, (3) continuous and uninterrupted and (4) for the period of at least twenty (20) years. Ryan v. Stavros, 348 Mass. 251, 261 (1964); Tucker v. Poch, 321 Mass. 323 (1947); Brown v. Sneider, 9 Mass. App.Ct. 329 (1980). In the usual case, a plaintiff will argue that he or she has established the right to use a portion of the property of another by making use of a strip of land for driving, bicycle riding or walking across property owner by another person.

In one of our recent cases, the facts were slightly more unique. Our client owns vacant land north of Boston. An adjoining landowner and his family ("the claimant") sought and obtained permission from our client to use our client's land for certain purposes, including the taking of hay from our client's property and then selling that hay for profit. In exchange, the claimant maintained our client's property and helped out with odds and ends from time to time. This relationship began in the 1950s and continued into the 21st Century.

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"Your building will destroy my view!" Can the Abutter Sue?

Real Estate Development Team Advisory

In Massachusetts, where many cities and towns are densely populated, one of the most common complaints of abutters to new development is concern about potential loss of view. The reality is that almost every proposed development has a negative impact on some abutter's view; but under Massachusetts law, before a lawsuit will be considered by the courts, abutters must prove that they have "standing." That is, abutters must show specific facts that establish a violation of a legal right and an injury special and different from that of the general public. In order to establish standing in a lawsuit related to the diminishment of a view, abutters must either show that views are protected in the zoning bylaw or they must set forth some other violation of a legal interest, such as the decrease in the value of the abutter's property.

Two recent Massachusetts court cases have dealt with this difficult issue of the loss of view and the right to sue.

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