THE INTERSECTION OF CONDOMINIUMS AND LAND USE: WHAT YOU NEED TO KNOW

Published on: January 12, 2016

The management of condominiums presents many challenges – interpretation of condominium documents, enforcement of rules and regulations, collection of common expenses – each of these represent issues encountered on a day-to-day basis. With so much to be addressed, it is likely that less frequent matters relating to ownership of the condominium, including issues relating to land use and zoning, may be easy to put on the back burner.  Like all owners of property in Massachusetts, condominium unit owners and condominium associations may encounter zoning issues concerning their use and development of real property.  These issues can arise in many contexts – for example, our office has handled permitting before local zoning boards of appeal, opposition to neighboring uses and development, and road betterment assessments.

Like condominiums, which are governed by Massachusetts General Laws c. 183A, zoning and land use matters typically invoke application of a state statute known as the Zoning Act, which is codified at Massachusetts General Laws c. 40A. The Zoning Act establishes the framework for both obtaining and challenging zoning relief.  Due to their distinct attributes, zoning matters involving condominiums can present unique challenges.

The following are important items that should be kept in mind to ensure a condominium association is best situated to either obtain or oppose zoning relief:

Time Is of the Essence. The Zoning Act imposes strict time frames for appealing the issuance of permits – whether from a zoning board of appeals or from a building inspector (e.g., 20 days from the grant of a variance or special permit and 30 days from the grant of a building permit, with certain limited exceptions). If a condominium association is interested in opposing a neighboring property owner’s zoning relief, it must be diligent and proactive. Once the time runs for appeal, the association may lose all right to challenge the use or construction on the neighboring property.

  • Ensure Proper Notice. If a neighboring property owner is seeking zoning relief, the town must provide notice to all abutters and abutters to abutters within 300 feet. Notice is provided based on a list that is generated by the local assessor’s office. If the assessor’s records are not accurate, the condominium association may not receive notice of a neighbor’s application. For example, our office recently represented a homeowner’s association that had not received notice of an adjacent property owner’s application to install a solar farm. The assessor’s records reflected that the association’s developer was still the owner of the common area property. This can easily be rectified by ensuring that the town’s records accurately reflect ownership.
  • Determine the Condominium Association’s Objectives at the Outset. If appealing a neighboring property owner’s permit, it is important that the condominium association clearly identify its objectives at the outset. Land use litigation is typically protracted and fact intensive. Identifying what the condominium association, and its unit owners, can live with opens the door to negotiations with the neighboring property owner and may lead to early resolution.
  • Unit Owners Can Individually Challenge a Local Zoning Board of Appeals’ Decision to Grant a Permit. The nature of zoning relief is such that a neighboring property owner’s permit may have a greater detrimental impact upon one or a group of unit owners at the condominium rather than the condominium association as a whole. The Massachusetts Appeals Court has recognized that an individual unit owner may have standing to challenge a decision of a building inspector or zoning board if the issues affect the use of his unit. The association should identify whether challenging a permit is in the association’s best interest or if such opposition is better pursued by individual unit owners.
  • Gauge Unit Owner Support in Advance of Applying for Zoning Relief. If the condominium association is the party seeking the zoning relief, it is important to gauge unit owner support in advance of applying for same – particularly where changes to the condominium’s governing documents may be necessary. Gauging unit owner support in advance of applying for relief allows the condominium association to assess its decision to alter conditions on the property in advance of expending funds on permitting and also may ensure that a majority of unit owners will not show up at the zoning board of appeals’ hearing to oppose the condominium association’s application.

These are just a number of the unique considerations that must be taken into account when a condominium association is either opposing or applying for zoning relief. As noted above, the Zoning Act imposes strict time lines and imposes a number of requirements upon parties.  Accordingly, engaging counsel that is familiar with the Zoning Act early in the process will provide the condominium association with the greatest chance at success in obtaining or opposing zoning relief.

For any questions regarding this article, please contact Kim Bielan at kbielan@meeb.com.