Category: Areas of Practice

Zoning and subdivision control provide the basic framework of development constraints with which landowners, businesses, and others must deal.  Thus, it is essential for an attorney involved in development issues to study the applicable town zoning bylaw or city zoning ordinance, and distinguish it from enactments under municipal Home Rule authority.

Massachusetts, like a few other states, is a Home Rule jurisdiction.  By virtue of a Home Rule Amendment to the Constitution of Massachusetts and the Home Rule state statute, cities and towns have the power to enact their own legislation on many subjects (if they do not conflict with federal or state law) without the need for the state legislature to enact specific enabling statutes on those subjects.  The Home Rule Amendment includes authority to protect the public health and safety; it has been interpreted to confer broad authority to protect the environment and regulate land use.  For example, under this sort of automatic delegation of the state’s Police Power, almost 200 Home Rule towns have enacted wetlands protection bylaws.

Zoning is a different kind of land use control, enacted under the Zoning Act and administered by municipalities through the Zoning Enforcement Officer (ZEO), usually the building inspector or building commissioner, and the board of appeals or other designated permit granting authority.  There also may be site plan review by the board of selectmen or another designated board.

Essentially, municipalities may elect to use the zoning power or the general bylaw power (and in some instances, both) to accomplish important public purposes.  Consequently, several communities have enacted local legislation dealing with

  • Wetlands protection
  • Storage tanks
  • Petroleum and other chemicals
  • Industrial chemicals storage and reporting
  • Sand and gravel operations
  • Public and private wells and other water supplies
  • Sedimentation and erosion control
  • Air pollution
  • Noise limitations, and
  • Environmental impact reports for projects and permits.

The Subdivision Control Act authorizes and empowers Massachusetts municipalities to control divisions of land into new parcels not already served by public ways.  The same statute offers landowners an opportunity (reportedly unique in the United States) to get rulings from the local planning board that a full subdivision approval is not required.  This procedure is called an Approval Not Required (ANR).

Under the auspices of subdivision control, the planning board must promulgate subdivision rules and regulations.  Some municipalities adopt merely a basic set of procedures.  Others use the opportunity to establish comprehensive engineering, design, and environmental standards for roadway construction and operations, utility installation, tree removal and landscaping, stormwater management, identification and preservation of historic sites or significant vistas, planning and layout, signage, and other public health and safety matters.  Some incorporate technical environmental specifications and performance standards, plus environmental studies for large subdivisions.  In any event, under the law, a planning board may not approve a developer’s subdivision plan that does not comply with the recommendation of its municipality’s board of health.

We work for a host of clients at any given time, both proponents and opponents, before building inspectors, boards of appeal, planning boards, and boards of health on pending projects and appeals. This is the bread-and-butter work for real estate attorneys who handle the permitting aspects. We help put together the right team of professional to fit the needs of the situation, anticipating court if necessary. We can handle the resulting appeals to the Superior Court or Land Court as well as appeals to the Appeals Court and Supreme Judicial Court.