Where a Lawyer Makes All the Difference – And Only One Side Has One: Adjartey and the Urgent Need for Court Reform and a Right to Counsel in Eviction Cases

by Esme Caramello, Joel Feldman, and Geraldine Gruvis-Pizarro

The Profession

Each week, more than 750 tenants across Massachusetts face eviction in the courts of the Commonwealth. While the vast majority of landlords bringing eviction cases have counsel—almost 80% in the state’s Housing Courts last year—fewer than 9% of people faced with losing their homes have a lawyer to represent them. See Housing Court Department, Fiscal Year 2019 Statistics (2019). This disparity in access to counsel would create an unjust power imbalance in any legal setting. In the context of eviction cases, with their tight timelines and complicated procedural rules, the advantage that represented landlords enjoy over their unrepresented tenants is even more troubling.

In the summer of 2019, the Supreme Judicial Court took up this systemic inequality in Adjartey v. Central Division of the Housing Court Department, 481 Mass. 830 (2019). In a striking opinion on behalf of a unanimous Court, Chief Justice Gants reached far beyond the individual claims of the parties to describe an onerous summary process system and the barriers that pro se litigants face in trying to navigate it. In its breadth and detail, the opinion illustrates how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.” Id. at 831.

The decision makes a compelling case. Summary process is procedurally complex to begin with, id. at 834, and this complexity is “exacerbated by the web of applicable statutes and rules.” Id. at 837. The Uniform Summary Process Rules are just one part of the procedural maze. Id. at 836-37. The Rules of Civil Procedure also apply, but only sometimes, as do an array of statutes and standing orders. As the Court observed, “[d]eciding when to apply which of these rules—and how to resolve inconsistencies among them—is [a] formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.

Further complicating the task of the pro se litigant, the Court noted, is the speed at which a summary process case proceeds. Id. Once a case is filed, it is scheduled to go to trial on the first court date, just ten days later. Upon receipt of the Summons and Complaint, a tenant must figure out that an “answer” is required, and file and “serve” it, within a week after the case is filed. If she does not properly assert a “jury demand” in that answer, she waives her Constitutional right to trial by a jury of her peers. The tenant also must understand what “discovery requests” are and make sure her landlord receives them within that same short week. Overall, the time from service of process to judgment and execution can be as little as 19 days. Two business days later, a constable can remove the tenant from her home. As the Adjartey Court observed, “[t]he swiftness of this process … leaves little room for error.” Id. at 837.

As noted above, beyond the inherent complexity and speed of summary process, the vast majority of tenants are attempting to figure out the process on their own. In the words of the Court, “summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.” Id. at 834. Because “in most cases, … the landlord has an attorney who understands how to navigate the eviction process and the tenant does not,” the system is not just out of reach for tenants, but also out of balance. Id. at 838. This imbalance presented an injustice the Adjartey Court could not ignore.

In an “Appendix” following the Adjartey decision, the Court attempted to gather, in one place, all the procedural laws governing summary process cases. Doing so took 35 slip opinion pages. While the Adjartey Appendix might be a useful primer on summary process for a lawyer or experienced advocate, it looks different from the perspective of a low-income mother with limited English proficiency and severe anxiety facing eviction. For her, and for most unrepresented tenants, the Appendix primarily highlights what the rest of the Adjartey decision implies: the eviction system is too hard to understand and navigate without the assistance of a lawyer. And where landlords generally have this assistance and tenants do not, the Appendix is an indictment of a system that aspires but fails to offer equal justice to all.

In a study of summary process judgments listed on masscourts.org from 2007-2015 in three out of the then-five divisions of the Housing Court (Boston, Central and Western), the Access to Attorneys Committee of the Access to Justice Commission found that landlords won judgment a shocking 98% of the time. See Shannon Barnes et al., Final Report of the Access to Attorneys Committee of the Massachusetts Access to Justice Commission, 9 (May 2017). With Adjartey, the Supreme Judicial Court has shown us why.

Court Reform as a Necessary Step

Reforming the summary process system is an urgent need. To that end, the Trial Court has recently created a committee that has begun to work on simplifying court forms. Developing plain-language, accessible forms that the typical pro se litigant can understand and use is a necessary first step.  But forms alone will not level the playing field in a process that is too complicated and too fast to navigate without counsel.

There are many simple changes that would make summary process more accessible for pro se litigants. At a recent meeting convened by the Trial Court’s summary process reform committee, for example, most tenant lawyers and landlord lawyers agreed that the first court date in an eviction case should not be a trial. Instead, it can be an opportunity for the parties to explore settlement through mediation, and for unrepresented litigants to learn more about the process and seek help from a volunteer lawyer. It also can be a time for tenants to prepare the answers, jury demands, and discovery requests that they may be learning about for the first time when they arrive at court. We are hopeful that the court will soon implement this popular and sensible reform.

A range of other simple reforms are outlined in detail in a December 2017 report that Massachusetts submitted to the Public Welfare Foundation after a yearlong examination of “Justice for All” in the Commonwealth led by a team of judges and practitioners that included Chief Justice Ralph Gants. See The Massachusetts Justice for All Project, Massachusetts Justice for All Strategic Action Plan, 34-56 (Dec. 22, 2017). From rethinking cellphone bans that exclude unsuspecting tenants (and their evidence) from courthouses—a step the Trial Court has recently agreed to take—to promoting flexible scheduling that enables low-wage workers to avoid missing work, the Justice for All report is full of small and big ideas that would make the system fairer. The authors of this article sit on a committee of the Access to Justice Commission tasked with pursuing the report’s recommendations, but a much broader effort is needed for real change to happen.

If Landlords Have Lawyers, Tenants Need Lawyers, Too

In an ideal world, our housing dispute resolution system would be simple enough for people to use on their own, and the systemic power imbalances created by dramatic disparities in representation would be eliminated. But in a system designed for lawyers where only one side has one, access to substantive justice is not and cannot be equal. Tenants need lawyers to make the system work fairly.

Existing fee-shifting statutes should entice private attorneys to represent tenants in many eviction cases, and a few lawyers around the state have built financially successful practices representing tenants, but for reasons the Access to Justice Commission is still studying, fee-shifting statutes are underutilized. “Lawyer for a day” programs are meaningful and certainly help. But the problems Adjartey describes cannot be solved by last-minute limited assistance representation, even with experts doing the work. Too much has transpired by the time the lawyer-for-a-day steps in, when answers and jury trials and discovery have been waived by the unsuspecting tenant and the opportunity to investigate or gather admissible evidence has passed. As a 2012 Boston Bar Association study showed, only vigorous full representation enables tenants to fairly litigate their claims. See Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) (summarizing research by Harvard Professor James Greiner and Harvard College Fellow Cassandra Pattanayak showing dramatic differences in outcomes for tenants receiving full representation by experienced litigators as opposed to advice through lawyer-for-a-day program).

New York City, San Francisco, Newark and Cleveland have all recently implemented a right to counsel for tenants in eviction cases. Massachusetts is poised to follow suit with several bills under consideration on Beacon Hill. The active support of the bar for these bills is crucial to bring balance, and legitimacy, to our summary process system. Adjartey is our call to action.

 

Esme Caramello is a Clinical Professor of Law at Harvard Law School and the Faculty Director of the Harvard Legal Aid Bureau.  She is a Trustee of the Boston Bar Foundation and a member of its Grants Committee, as well as a member of the Massachusetts Access to Justice Commission and co-chair of its Housing Working Group.

Joel Feldman is a shareholder in the law firm of Heisler, Feldman & McCormick, P.C..  He serves on the Executive Committee of the Access to Justice Commission,and co-chairs the Commission’s Housing Working Group.

Geraldine Gruvis-Pizarro has been representing tenants in eviction cases for the past four years and is currently a staff attorney at Volunteer Lawyers Project (VLP) in the housing and family law units. She is also the VLP Chairperson at the statewide Language Access Coaliton. Attorney Gruvis represents VLP at the BBA Real Estate Public Service Committee working alongside private attorneys, the court and the Boston Bar Association to maintain high quality services to the public at the Eastern Division of the Housing Court in Boston.


Adorable as Affordable?: The Zoning Challenge of Tiny Houses

by Olympia Bowker

Viewpoint

With Massachusetts’ housing affordability crisis showing no signs of abating, it imperative to consider new, creative solutions. A 2018 Boston Magazine analysis of over 150 Massachusetts cities and towns revealed the lowest median home price in one municipality was $255,450; the highest was $1.9M. Contrast these figures with the roughly $60,000 retail cost of a Tiny House, and it is no wonder that these diminutive abodes appear tempting as affordable options. But can they play a meaningful role in ameliorating the affordable housing crisis in Massachusetts? And can the Community Preservation Act (“CPA”) help spur a Tiny House trend in Massachusetts?

Tiny Houses: What Are They, and Are They Prohibited?

A “Tiny House” is defined by the 2018 International Residential Code (“IRC”) as a dwelling that is 400 square feet or less in floor area excluding lofts used as a living or sleeping space. Generally, Tiny Houses look like miniature versions of traditional houses; they can feature tiny modernist rooflines, colonial shutters, or Victorian gingerbread trimming. They can be built either on trailers or fixed foundations—a key distinction for affordable housing purposes.

While attention is often on the high-end Tiny House market that focuses on minimalist lifestyles and carbon footprints, experiments nationwide highlight the value of “tiny house villages” to address homelessness. With the wait times for affordable housing in Boston lasting years, urgency must beget innovation here as well.

Notwithstanding the growth in Tiny Houses as a social and architectural movement, long-standing provisions of many municipal zoning bylaws and ordinances ignore, if not effectively prohibit, Tiny Houses. In Massachusetts, a wheeled Tiny House is legally treated as a recreational vehicle (“RV”), mobile home, or trailer that must be registered with the state and used as such (i.e., not parked year-round other than in a designated area), and is often barred by or heavily regulated under local zoning laws as undesirable.

If a Tiny House is built on a foundation, it must comply with zoning and building codes applicable to single family residential dwellings, including minimum square footage, lot and building size, and setback requirements. For example, Holliston Zoning Bylaw §V(D) has a 600 square foot minimum for floor area, effectively prohibiting Tiny Houses as defined under the IRC. But with the housing shortage at crisis levels, notwithstanding the still-developing zoning and construction standards, high land prices, and political tensions, these small-segment models of housing shouldn’t be overlooked.

Tiny Houses as Stock for the Subsidized Housing Inventory under G.L. c. 40B

To incentivize communities to adopt zoning changes to allow Tiny Houses, it is important to note that Tiny Houses constructed for low or moderate-income households may be countable toward a municipality’s Subsidized Housing Inventory (“SHI”) for purposes of the “Comprehensive Permit Law,” G.L. c. 40B. To qualify as SHI, the unit must be “affordable” to households earning at or below 80% of the Area’s Median Income (“AMI”)—the rent or mortgage payment and related housing expenses (e.g., utilities) cannot exceed 30% of the household members’ annual incomes.

Since enactment in 1969, G.L. c. 40B, §§ 20-23 (“40B”) has served as the main statutory scheme to address the affordable housing shortage statewide. 40B includes an ‘anti-snob’ provision that empowers the Zoning Board of Appeals to override zoning requirements to approve “comprehensive permits” for denser, larger, and higher developments than would otherwise be allowed under local regulations if the municipality has not met its “safe harbor” threshold for SHI: either at least 10% of a municipality’s total housing stock must be “affordable” or more than 1.5% of municipal land must be dedicated to SHI. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). If a municipality meets neither SHI threshold, 40B dramatically relaxes local control over approval of comprehensive permits for housing developments that contain 20-25% affordable units.

Even after 50 years of 40B incentive, as of 2017, Massachusetts municipalities had an average of 9.7% SHI, and only 67 of Massachusetts’ 351 municipalities were at or above the 10% SHI threshold. Tiny Houses that qualify as SHI would be more attractive to municipalities because they would count towards the 10% safe harbor threshold for 40B purposes.

But in order to qualify for SHI, Tiny Houses have to be allowed in the first place.

Crafting Tiny Zoning

Municipalities can start by explicitly including Tiny Houses in their zoning: write Tiny Houses into tables of uses, and define whether they can be used as accessory dwellings, secondary or tertiary structures, or as stand-alone residences. Definitions should address whether they can have wheels, or whether they must be built upon a foundation.

Carefully crafted Tiny House zoning can provide housing stock that fits within the character of towns by allowing continued municipal control over massing, setbacks, aesthetics, and other elements which municipalities would otherwise relinquish under the traditional 40B system.

Further, creation of an overlay district for Tiny House villages could provide for maximum square footage, smaller setbacks, and smaller lot of sizes in certain areas. In such scenarios, preexisting non-conforming lots may become buildable. With creative zoning such as cluster developments, more homes could be built in smaller areas.

In 2016, Nantucket enacted a zoning bylaw amendment that explicitly allowed Tiny Houses that comply with the International Building Code. While industry standards did not align at the time to permit prefabricated Tiny Houses under that ordinance, future iterations of bylaw changes and changes in the industry specifications can address those types of mismatches going forward.

Leveraging CPA Funds

The CPA can serve as a catalyst for a Tiny House trend by subsidizing construction or land acquisition for Tiny Houses that count towards SHI thresholds. One way the CPA helps communities create affordable housing is by establishing a “community preservation fund,” which is fed by a local tax of up to 3% on real property.

The CPA defines affordable housing as “community housing” that serves households at or below 100% of AMI. CPA funds can support many types of activities in furtherance of affordable housing, including construction and property acquisition. Municipalities can neutralize land costs by acquiring buildable land, which not only can enhance feasible development possibilities, but also allow more control over design and location of development.

Tiny Houses created with or assisted by CPA funds can be included in a municipality’s SHI through compliance with the Department of Housing and Community Development (DHCD)’s Local Initiative Program, which requires the unit to be created as a result of the municipality’s action or approval. The unit will be sold or rented on a fair and open basis subject to an affirmative fair marketing and resident selection plan approved by DHCD; be affordable to households below 80% AMI; and have its permanent affordability secured by Department use restrictions. CPA funds used to purchase land for Tiny Houses also incentivize partnerships with developers, such as through subsidies or by allowing the developer to build on municipal land.

Conclusion

Tiny Houses are not the silver bullet, as the resident pool for such housing is admittedly small, but they offer one more means to create much-needed inexpensive housing for single or double occupancy – a segment not prioritized in the current 40B scheme. By considering the interests of citizens, cities and towns, and affordable housing proponents, they can perhaps expand housing options and increase supply – at least a tiny bit.

 

Olympia A. Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters.


Bellalta: A Flowchart for the Owner of a Nonconforming Home

by Kate M. Carter

Case Focus

In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), the Supreme Judicial Court reaffirmed the process by which a preexisting, non-conforming single- or two-family structure can be altered or expanded, clarifying the framework established by courts wrestling with the “difficult and infelicitous” language of G.L. c. 40A, Section 6 for nearly four decades. Bellalta confirmed that changes to such structures can be made by special permit without the additional need for a variance.

The Section 6 Quicksand

Section 6 regulates the application of local zoning to preexisting, nonconforming structures and uses. Its language reflects a tension between competing philosophies governing the use and development of Massachusetts land. On the one hand zoning is interested in the elimination of nonconformities. But zoning also reflects the notion that “rights once acquired by existing use or construction of buildings in general ought not to be interfered with.” Opinion of the Justices, 234 Mass. 597, 606 (1920). Thus, under Section 6, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun … but shall apply to any change or substantial extension of such use … to any reconstruction, extension or structural change of such structure … except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority … that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood.

(Emphasis added). In two sentences, the statute (i) protects previously compliant structures and uses from the effect of subsequently enacted zoning bylaws, (ii) preserves the need to comply with zoning if one wants to change or alter a nonconforming structure or use, and (iii) creates a separate exemption for certain changes or alterations to single- and two-family structures. In Bellalta, the SJC examined the extent of the protections afforded by the “second except clause” to owners of single- and two-family preexisting, nonconforming structures.

Underlying Facts and Procedural Posture

Defendant homeowners owned a unit in a two-unit Brookline condominium. They proposed adding a dormer to add 677 square feet of living space. The building did not comply with the floor area ratio (“FAR”) – the ratio of building gross floor area to lot area – for the zoning district in which it was located. The FAR for the zoning district was 1.0. The FAR for the defendants’ building was 1.14, which would increase to 1.38 with the new dormer.

After being denied a building permit, the defendants applied for, and were granted, a “Section 6 finding” by the Brookline Zoning Board of Appeal. The Board found that the proposed addition and resulting increase in FAR would not be substantially more detrimental to the neighborhood than the nonconforming structure was prior to renovation.  Plaintiff abutters appealed, arguing that because Brookline’s bylaw expressly prohibited FAR increases of more than 25%, defendants also needed to apply for a variance – a more difficult and narrowly-available type of zoning relief.

The “Interpretative Framework”

Beginning with Fitzsimmonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985), and culminating with Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008), the courts have established a three-step framework to analyze a homeowner’s request to alter, reconstruct, extend, or change a preexisting, nonconforming, single- or two-family home. First, how does the structure violate current zoning? Second, does the proposed change intensify that non-conformity?  If the answer to question two is “no”, the proposed change is allowed by right, without the need for relief. Only if the answer to question two is “yes” must a homeowner apply for a finding by the local board that the proposed change will “not be substantially more detrimental than the existing nonconforming use to the neighborhood.” Bellalta, 481 Mass. at 380-81.[1]

In Bellalta, the defendants argued that the new dormer would make the building more consistent with the architecture and dimensions of other buildings on the street. Moreover, the proposed addition was modest – it only increased the habitable space by 675 square feet.[2] Thus, they argued that the new dormer would not be substantially more detrimental to the neighborhood than the existing, nonconforming building. The Board agreed, issued the Section 6 finding, and allowed the project to proceed without a variance. Bellalta, 481 Mass. at 383; see also Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011).

In upholding the Board’s decision not to require a variance, the Bellalta court explained that since the “second except” clause was adopted in 1975, the Legislature has amended Section 6 on multiple occasions, and never clarified the language – thereby ratifying the courts’ interpretative framework. Bellalta, 481 Mass. at 383. To require the defendants to also apply for a variance would allow the Brookline bylaw to eliminate the special protections otherwise afforded preexisting, non-conforming single- or two-family structures by Section 6. Id. at 386 – 87.

Bellalta’s Significance Amidst a Growing Housing Crisis

Underlying the language of Section 6, the resulting interpretative framework, and the Bellalta decision is a value judgment that extra effort should be taken to protect a particular segment of housing stock: single- and two-family homes. The protections afforded preexisting, nonconforming single- and two-family homes would be illusory if owners were obligated to undertake the burden of applying for a Section 6 finding and a variance. Bellalta, 481 Mass. at 383. The time and costs associated with such a process might mean that homeowners would forego the renovation and maintenance of older, “starter” homes leaving them to be torn down and replaced with new, more expensive housing. Id. at 384. Bellalta’s re-affirmation of the “special protections” afforded to single- and two-family homes is particularly important amid today’s housing crisis. Section 6 provides a valuable counterbalance to municipalities seeking to stifle housing production by increasing minimum lot sizes or other dimensional requirements. Bellalta, 481 Mass. at 384 – 85. The Section 6 process allows homeowners to make changes to accommodate evolving housing needs, without adding additional demand to an undersupplied housing market.  By affirming the streamlined process by which homeowners of preexisting, nonconforming single- and two-family homes can make changes to their homes, the SJC in Bellalta, reaffirmed the Legislature’s decision to protect single- and two-family homes. Section 6’s protections will continue to play an important part in helping to address Massachusetts’ growing need for more habitable living space within an increasingly expensive and diminishing pool of available land.

 

Kate Moran Carter is a shareholder at Dain ǀ Torpy. She represents clients in disputes concerning the ownership, operation, development, and use of real estate.

 

[1] If the proposed change will create new nonconformities, a variance will be required.

[2] In Bjorklund, the SJC sanctioned certain types of improvements, without the need for a Section 6 finding, because the small-scale nature of such improvements “could not reasonably be found to increase the nonconforming nature of the structure.” 450 Mass. at 362 – 63. Although the Bellalta court implied that the defendants’ proposed dormer was the type of small-scale improvement, that would not require a Section 6 finding, the defendants had conceded that the proposed increase in FAR from 1.4 to 1.38 would increase the structure’s nonconforming nature. Bellalta, 481 Mass. at 381 – 82.


ZBA’s Broad Powers under Chapter 40B Do Not Include Alteration of Property Rights

oflahertyrusinzucker

by Kevin O’Flaherty, Alana Rusin, and David Zucker

Case Focus

 

The Decision

On November 13, 2017, the Supreme Judicial Court (“SJC”) held in 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass 346 (2017) (“135 Wells”), that, although a local zoning board of appeals (“ZBA”) has broad powers to grant “permits or approvals” under G.L. c. 40B, it does not have the authority to modify municipal property rights, including restrictive covenants.

Background

Sections 20 to 23 of G.L. c. 40B (“Chapter 40B”), the Anti-Snob Zoning Act, were enacted in 1969 to “ensure that the local municipalities did not make use of their zoning powers to ‘exclude low and moderate income groups.’” 135 Wells, supra, at 351. Chapter 40B allows developers of projects that contain at least 25% “affordable housing” (defined as housing for those earning 80% or less of the area median income) to apply for all local approvals in a single “comprehensive permit,” and gives the ZBA the “authority to . . . override local requirements or regulations, and to issue ‘permits or approvals’” for all aspects of the development. Id. The override provision empowers ZBAs to approve projects that are higher, denser, or larger than otherwise allowable under existing regulations, and even to allow residential uses in non-residential zones. See, e.g., Eisai, Inc. et al. v. Housing Appeals Committee & Hanover R.S. LP, 89 Mass. App. Ct. 604 (2016). When a town is below certain Chapter 40B thresholds (e.g., less than 10% of the town’s housing stock is affordable), it is very challenging for a town to deny a comprehensive permit. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). Finally, an applicant for a comprehensive permit aggrieved by a ZBA’s decision may appeal to the Housing Appeals Committee (“HAC”) in the Department of Housing and Community Development. G.L. c. 40B, § 22.

In May 2014, 135 Wells Avenue, LLC applied for a comprehensive permit to construct a 334-unit 40B development on land in Newton. The site was zoned for limited manufacturing use and also was subject to restrictive covenants granted to Newton that, among other things, prohibited residential use and required a portion of the site to remain open space. The developer concurrently filed with Newton’s legislative body (“Aldermen”) a petition to amend the restrictive covenants to allow residential use and to permit construction in the open space area. The petition was denied in November 2014. The ZBA also denied the developer’s comprehensive permit application on the grounds that Chapter 40B does not allow the ZBA to amend or waive restrictive covenants that constitute city-owned interests in land which can be amended or released only by the Aldermen.

In December 2014, the developer appealed the ZBA’s decision to the HAC; a year later, the HAC affirmed the ZBA’s decision, holding that the restriction and requested amendments are not within the sort of “conditions or regulations” or “permit or approvals” that are subject to Chapter 40B. The developer then sought judicial review by the Land Court. In August 2016, the Land Court determined that Chapter 40B does not allow either the ZBA or the HAC to require the city to amend the deed restriction to allow for residential use. The Land Court also held that the fact that the site was never used for limited manufacturing as envisioned when the property interests were granted did not change the validity of those interests. The developer sought direct appellate review. The SJC affirmed the Land Court’s rulings and reasoning in full.

Analysis

The key to understanding 135 Wells is to recognize that, although Chapter 40B grants a ZBA broad authority to grant “permits or approvals,” it does not include “authority . . . to order the city to relinquish its property interest.” 135 Wells, supra, at 348. Also key is the fact that the SJC had previously decided that the deed restrictions at issue are property interests of Newton, id. at 353 (citing to Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 430 (1962)), and that “both affirmative and negative easements [such as restrictive covenants] are to be treated equally” as property interests. Id. at 357.

In reaching this conclusion, the SJC rejected the developer-appellant’s attempt to distinguish this case from Zoning Bd. of Appeals of Groton v. Housing Appeals Committee, 451 Mass. 35 (2008) (“Groton”), in which the SJC reversed a decision that “order[ed Groton] to grant an easement over town land pursuant to the board’s power to grant permits or approvals under Chapter 40B” on the basis that there is a “fundamental distinction between the disposition or creation of a property right and the allowance of a permit or approval.” 135 Wells at 356 (citing Groton, supra, at 40-41). In 135 Wells, the SJC extended Groton’s logic, holding that the fundamental distinction between a property right and a permit or approval applies equally to affirmative easements (at issue in Groton) as it does to restrictive covenants (at issue in 135 Wells). In doing so, the SJC rejected the developer’s attempt to characterize the restrictive covenants at issue as the “functional equivalent of a ‘permit [ ] or approval[ ]’” that the ZBA or HAC could override under Chapter 40B. Id. at 353. The SJC distinguished the Aldermen’s allowance of prior amendments to the same restrictive covenant as acts of a legislative body instead of a local permit authority, and explained that Chapter 40B does not authorize a ZBA to modify restrictive covenants because these are interests in land, not land use permits or approvals. Id.

The Takeaway

135 Wells addressed a heretofore unsettled question under Chapter 40B: if a project is on land subject to a deed restriction held by a municipality, may a local ZBA modify or eliminate the restrictive covenant?  In 135 Wells, the SJC held that Chapter 40B does not give a ZBA this power. Accordingly, developers seeking relief from deed restrictions running in favor of a municipality must seek their removal or modification from the local municipal legislative body.

Kevin P. O’Flaherty is a Director at Goulston & Storrs PC and a member of the firm’s litigation group. The focus of his practice is real estate litigation of all types. Over the course of his 25-year career he has represented private developers, individuals, institutions and public agencies in zoning and permitting matters, eminent domain cases, commercial landlord/tenant disputes, purchase and sale cases and a wide array of other real estate related matters. Alana Rusin and David Zucker are Associates at Goulston & Storrs PC where they practice real estate litigation.


Zoning for Medical Marijuana: Approaches & Considerations

mchugh_jamesstempeck_justinby Lisa L. Mead and Adam J. Costa

Heads Up 

On November 6, 2012, Massachusetts voters overwhelmingly approved a ballot initiative legalizing the use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition.  Effective January 1, 2013, the “Act for the Humanitarian Medical Use of Marijuana” presents a number of issues for cities and towns concerning the exercise of their zoning powers.  The Act established a process whereby medical marijuana treatment centers, defined as not-for-profit entities that acquire, cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana or products containing marijuana for medical use, may apply to the Department of Public Health (DPH) for registration.  The Act provides for the registration of up to 35 medical marijuana treatment centers initially, with at least one but not more than five centers per county.

Although no reference is made in the Act to municipal zoning control or its applicability to medical marijuana treatment facilities, the DPH regulations promulgated thereunder in mid-2013, see 105 CMR 725.000, address zoning for these facilities, referred to as registered marijuana dispensaries (RMDs):  “The Department does not mandate any involvement by municipalities or local boards of health in the regulation of RMDs, qualifying patients with hardship cultivation requirements or any other aspects of marijuana for medical use.  However, nothing in 105 CMR 725.000 shall be construed so as to prohibit lawful local oversight and regulation. . . that does not conflict or interfere with the operation of 105 CMR 725.000.”  105 CMR 725.600.  Accordingly, per the Home Rule Amendment, Mass. Const., amend. LXXXIX, Massachusetts cities and towns may in their discretion adopt zoning ordinances and bylaws relative to the siting, development, and operation of medical marijuana treatment centers, as long as their provisions are not at odds with the Act or the DPH regulations.

To Zone or Not to Zone

A municipality is under no obligation to zone for RMDs, and many cities and towns either have yet to adopt such zoning or have elected not to do so.  The DPH regulations mandate a buffer zone around certain facilities for children.  Absent a more stringent local requirement, “a RMD shall not be sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate.  The 500 foot distance. . . is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.”  Municipalities may establish their own buffer zones from these or other facilities, provided they are mindful that, collectively, these zones may not effectively prohibit RMDs city- or town-wide.

The Office of the Attorney General has opined that an outright ban on medical marijuana treatment centers in a municipality frustrates the purposes of the Act and, consequently, is invalid.  “The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.”  Letter from the Att’y Gen. to the Town of Wakefield, Mar. 13, 2013, available at http://www.mlu.ago.state.ma.us/.

The Attorney General’s Office has also rejected bylaws prohibiting home cultivation as an accessory use, restricting home cultivation to a particular area of the community, imposing buffer zones around home cultivation sites, and requiring a special permit for home cultivation.  Home cultivation of medical marijuana is authorized by the Act and the DPH regulations for qualifying patients whose access to a RMD is limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a medical marijuana treatment center within a reasonable distance from the patient’s residence.

For municipalities that choose to zone for medical marijuana by adopting reasonable regulations, the choice is between incorporating RMDs into the zoning already in effect and establishing an overlay district within which RMDs may be sited.

Incorporation into Existing Zoning

Using a more traditional approach to zoning, a municipality may amend its existing zoning ordinance or bylaw to identify and define RMDs and to specify the zoning district or districts where they are permitted.  In doing so, it subjects a RMD to the same dimensional and density requirements and performance standards applicable to other uses in the same district.  Dimensional and density requirements might include area, frontage, and setback constraints, among others. Performance standards might regulate noise, traffic, or other aspects of a use for compatibility with its surroundings.  If a city or town so chooses, it may zone cultivation and processing operations separately from retail facilities.  Although both qualify as RMDs per the DPH regulations, these uses need not be co-located.

A city or town may elect to allow RMDs only by special permit, in some or all of the zoning districts in which they are an available use.  The Attorney General has cautioned municipalities, however, that an ordinance or bylaw must provide adequate standards to guide a board in deciding whether to grant or deny the special permit.  It may not be enough for a municipality to rely on the general requirement of the Zoning Act, at G.L. c. 40A, § 9, that the use be “in harmony with the general purpose and intent of the ordinance or by-law,” nor are a municipality’s special permit criteria for other uses always appropriate for application to RMDs.  Municipalities have been advised “to list specific criteria for. . . consider[ation] when reviewing [an] application.”  Letter from the Att’y Gen. to the Town of Westborough, July 11, 2013, available at http://www.mlu.ago.state.ma.us/.

In its regulation of medical marijuana treatment centers, a municipality must also be cautious not to run afoul of the zoning exemption available to agricultural uses, under G.L. c. 40A, § 3.  To the extent that an RMD’s operations qualify as commercial agriculture thereunder, a municipality cannot require a special permit for, or unreasonably regulate or prohibit, the use.

Creation of an Overlay District

An alternative to incorporating RMDs into an existing zoning ordinance or bylaw is to create an overlay district for medical marijuana treatment centers.  An overlay zone is a district superimposed on one or more established zoning districts which may apply supplemental restrictions on uses in these districts or permit uses otherwise disallowed.  By adopting an overlay district, a municipality gains greater control over where RMDs may be sited.  The limits of acceptable locations need not coincide with the boundaries of the municipality’s existing zoning districts, but may be determined by the city or town in its discretion upon consideration of existing and anticipated land uses and the compatibility of RMDs with these uses.  A municipality may incorporate dimensional requirements and performance standards specific to the overlay district, and may even pair these regulations with buffer zones surrounding schools, daycare centers, or other uses potentially impacted by a RMD.  A special permit may be required for the development and operation of a RMD within the overlay district; or the municipality may choose to permit these facilities as-of-right or subject only to site plan review.

Host Community Agreements

Several Massachusetts municipalities have opted to negotiate host community agreements with potential RMDs to eliminate or mitigate any possible adverse effects of RMDs.  Neither the Act nor the DPH regulations prohibit these agreements.  And while a municipality may not require a RMD to enter into a host community agreement, such an agreement may expedite a RMD’s receipt of a letter of support or non-opposition from the municipality, now a requirement of the DPH licensing process as updated in mid-2015.  A municipality might otherwise choose to issue its letter of support or non-opposition only upon a RMD’s completion of the permitting process, once the city or town is satisfied that the project has been adequately vetted.

Among the most common subjects of host community agreements are financial compensation due the municipality, taxes, and charitable contributions.  Financial assistance to a city or town may help offset community impacts, fund public health and safety initiatives, or otherwise aid the municipality.  The payment of real estate taxes or the making of payments in-lieu-of taxes is also worthy of negotiation; otherwise, because RMDs are required by the Act to be not-for-profit entities, they may qualify as tax-exempt.  Entering into a tax agreement helps to alleviate any questions about the payment of taxes to the municipality.  Finally, a number of Massachusetts municipalities have negotiated charitable contributions by RMDs in exchange for the community’s support of, or non-opposition to, the development of a medical marijuana treatment center.

In summary, Massachusetts cities and towns have a choice about whether to zone for medical marijuana treatment centers and, if they do, of how to approach the rezoning process.  Some municipalities have utilized traditional zoning practices, allowing RMDs in one or more existing zoning districts and often requiring a special permit.  Other municipalities have developed overlay districts, within which RMDs may be sited subject to dimensional requirements, performance standards, and other regulations specific to the use.  Regardless of which approach is chosen, a municipality would be wise to explore negotiation of a host community agreement with a potential RMD and avail itself of the financial incentives that may be offered in exchange for the municipality’s cooperation with the application process.

Lisa L. Mead and Adam J. Costa are partners at Blatman, Bobrowski, Mead & Talerman, LLC. They concentrate their practice in the areas of general municipal, land use and environmental law, representing both municipal and private clients throughout Massachusetts.