Angiulo: Real Estate Investments, Buildable Lots, and Zoning By-Laws

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Monday, April 11, 2016

Leonardo Angiulo, GoLocalWorcester Legal Contributor

Mark Twain suggested investing in land because they don't make more of it. This principle is reflected in a lack of inventory driving up real estate prices and making it hard for people wanting a first, bigger, or vacation home to find the right property.  In addition, given how many people are living in our relatively small state it may be hard for construction companies to find buildable lots.  

Take, for example, a developer who sees a grown over lot in a nice neighborhood as a chance to make something out of nothing.  There is, however, more to this equation than the purchase price and costs of construction.  

Zoning by-laws are usually drafted on a local basis to control the manner in which the property in that town or city is used.  They can affect where businesses operate, the building of multi-family homes, or even which lots can have a building on them.  These rules are applied by building inspectors, enforced by a local zoning board of appeal, but disputes can find their way up to the trial and appeal courts. 

When you have a neighborhood you have neighbors, who are known as abutters in legal language. Abutters have an ability to object to uses of property and local boards are often required to consider their opinions.  Between the opinion of abutters and the applicable zoning by-laws things can get difficult.

A recent case from the Massachusetts Appeals Court shows just how difficult it can be.  In Chiarluce v. Zoning Board of Appeals of Wareham the plaintiff wanted to put a residential single family home on a lot that he had owned for some time.  The problem was the property did not meet the minimum requirements as a house lot under local laws.  Of note is that the property had once had a house on it about nine and one half years before the owner applied for permits.  That house had been torn down and the owner testified that he had, originally, planned to use the lot for parking.

Some people might be familiar with the term “non-conforming lot”, which describes a property that was developed before the current zoning regulations went into place.  Even though the property could not be eligible as a house lot under current zoning, the town won't make you tear down a home on the land.  One of the lessons of the Chiarluce case is that if you do knock that house down, you better have your permits and plan in mind.

 In Chiarluce the trial court ruled, and the Appeals Court agreed, that the plaintiff was ineligibile for a building permit.  The reason why turned, in part, on a finding of abandonment.  Abandonment in this context is a legal concept saying an owner has given up the special opportunity to rebuild on a non-conforming lot because of certain evidence.  The court found the evidence in this case included long delays between building permit applications, missed opportunities to rebuild, and gaps of time where the right to build was not adequately pressed.  

There is only so much land left in this state and its use is not unlimited.  For those that are frustrated by certain restrictions consider that the character of a town can be shaped by zoning by-laws. That character is, sometimes, what makes properties valuable.  One of the most important things a developer, abutter, or regular property owner can do is know the law and take the time to build the best case possible.

Leonardo Angiulo is an Attorney in the city of Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] and found on the web at www.angiulolaw.com

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