Regulation of the Land – Actual Property Litigation E-newsletter – July 2021, Quantity I, Challenge VIII | Goulston & Storrs PC

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NOTICE CASES

PROPERTY OWNERS WATCH OUT FOR SHORT-TERM RENTALS
Styler v. Zoning Vol. Of the Vocations of Lynnfield, 487 Mass. 588 (2021)

In Stiller v. Zoning Board of Appeals of Lynnfield, the Massachusetts Supreme Court dealt a blow to the short-term rental business. The court ruled that the occasional, short-term rental of a private single-family home was not an acceptable use under the Lynnfield Zoning Bylaws because the short-term, temporary nature of the rentals was inconsistent with the purpose of zoning single-family homes.

Section 4 of the Lynnfield City Bylaws (the “City”) prohibits any unauthorized use of any property. In § 4.1 of the city’s building regulations, permissible main, secondary and secondary uses of properties in residential districts were regulated in the relevant period. One of the main uses was the use as a “single-family house, whereby there is no more than such a house on any property”. With the approval of the Lynnfield Zoning Board of Appeals, certain “additional uses” have been allowed, including use as a “tourist home, guesthouse or hostel”.

The lot at the center of the dispute consisted of a five-bedroom single-family home on three acres in a single-family home in Lynnfield, Massachusetts. The plaintiff lived in the property with his family and between 2015 and 2017 successfully offered it for short-term rental on several occasions via internet-based platforms. Following this incident, the city’s building inspector informed the plaintiff that using his property for short-term rentals constituted either use as a hotel or use as a lodging or dormitory without required prior approval, in violation of Section 4.1.1 (3) of the City regulations building regulations and therefore ordered him to stop offering the property for rent. The plaintiff appealed the decision to the district appeal chamber, which confirmed the building inspector’s decision. The plaintiff then filed an action against the chamber’s decision with the regional court. The district court confirmed the Chamber’s decision and came to the conclusion that the short-term rental use of the property by the plaintiff represented an additional use, as it was functionally equivalent to the use as a “tourist home” or “accommodation house” according to Section 4.1.1 Paragraph 3 . Since the plaintiff did not have the approval of the Chamber for this use, the regional court came to the conclusion that his short-term rental use violated the statutes as it existed at the beginning of the rental by the plaintiff. The plaintiff appealed the regional court ruling and the SJC transferred the case ex officio.

The SJC upheld the regional court’s finding for various reasons. First, the SJC responded to the city’s argument that the plaintiff was not granted legal status because he sold the property after the trial before the district court but before the judgment was pronounced. Since the legal capacity is being examined at the time the action is brought, the SJC came to the conclusion that the plaintiff’s sale of the property after the hearing before the regional court did not affect his status as a person disadvantaged by the decision of the chamber. In addition, it came to the conclusion that according to Mass. R. Civ. P. 25 (c), an original party may pursue an action even after the transfer of its shares in the disputed property, provided that the acquirer of the shares is not replaced upon request. In connection with its inventory, the SJC did not consider this case to be disputed because the “viability of short-term rental use of land within the framework of the existing building regulations” [is] of public importance “, since it is” primarily legal ” [or, in this case, zoning bylaw] Interpretation, regardless of the facts of the individual case. “

The SJC agreed with the plaintiff that the short-term rental use is not an unauthorized “additional” use. The court came to the conclusion that the property was neither used as an “accommodation house” nor as a “tourist home” as the tenants were given exclusive ownership of the entire property and the owner did not remain on the property during the rental period. The Court found, however, that the occasional use of the property for short-term rental is not a permissible main use as a single-family house, since such use is incompatible with the building purposes of the single-family house in which it is located, d to preserve the residential character of the neighborhood. Referring to the board’s interpretation of its own building regulations, the SJC came to the conclusion that the board could reasonably determine that the use of a “single-family house” in a “single-family house” within the meaning of the city’s current building regulations is a permanent measure, which is not compatible with “temporary” uses.

Although the court’s jurisdiction is limited to interpreting a specific Building Code, property owners who rent their homes outside of Lynnfield on a short term should be aware of the express or implied restrictions on such uses set out in their local Building Code.

THE COURT OF APPEAL REFIRMS THE LACK OF GUARANTEES WHICH BRA URBAN REQUESTS RENEWAL DECISIONS
Katsiane v Boston Redevelopment Authority, Massachusetts Court of Appeal No. 20-P-619 (July 23, 2021)

In the groundbreaking case of St. Botolph Citizens Comm., Inc. v. Boston Redevelopment Auth., 429 Mass. 1 (1999), the Massachusetts Supreme Court found that a project opponent did not have the power to challenge a decision by the Boston Redevelopment Authority (BRA) to amend an urban renewal plan to allow for the development of new housing units. The court’s decision was based on the assumption that the BRA decision was taken exclusively in its capacity as an urban renewal agency in accordance with GL c. 121B, which does not contain an express right of appeal. The court ruled that the lack of appeal was a “legislative” and “deliberate” decision that must be respected.

The Court of Appeals recently upheld St. Botolph’s decision and reasoning against Boston Redevelopment Authority, Court of Appeal No. 20-P-619 (July 23, 2021), an unreported decision made under Court of Appeal Rule 23.0. In Katsiane, Plaintiff brought a declaration and injunction action in the Superior Court. His appeal challenged the BRA’s decision to authorize the sale of the historic Harriet Tubman House in the South End as part of a redevelopment project in the area that became the 1965-approved South Subject to End Urban Renewal Plan. The project is a “large” project project under Article 80 of the Boston Zoning Code. At the time the lawsuit was filed, the BRA had approved the sale of the property to a developer who wanted to demolish the house and build a new mixed-use building with 66 new residential units.

The plaintiff alleged in his complaint that he lived in the neighborhood and had been using the house’s social and other services for thirty years. He also alleged that the proposed development violated a land disposal contract and the deed for the property in question, both of which stipulated that the land could only be used for “communal use”.

The BRA challenged the plaintiff’s motion for an injunction and filed its own motion to dismiss due to the plaintiff’s lack of jurisdiction. The Superior Court approved the BRA and dismissed the case, citing St. Botolph. In the appeal proceedings, the appellate court upheld the decision of the higher regional court. In doing so, the appeals court upheld St. Botolph’s stance and reasoning, ruling that regardless of any complaints the plaintiff might face, he is not entitled to appeal the change to the urban renewal plan by filing a lawsuit against the BRA. submits. The decision illustrates the ability of developers to overcome certain challenges posed by project opponents in the initial stages of an appeal.

NEWS ALERT

Eviction moratorium expires

On May 5, 2021, Judge Dabney L. Friedrich of the US District Court for the District of Columbia added to the growing number of cases in which the Centers for Disease Control and Prevention (“CDC”) statewide eviction moratorium was lifted in response COVID-19 pandemic.

On September 4, 2020, the CDC issued a “Temporary Stop on Evacuation of Residential Buildings to Prevent the Further Spread of COVID-19” in accordance with Section 361 of the Public Health Services Act. The CDC stated that temporarily halting evictions is “a reasonably necessary measure … to prevent the further spread of COVID-19”. The moratoria applied nationwide to all residential properties and prohibited landlords from terminating tenants for non-payment of the rent. The CDC’s moratorium was originally scheduled to expire on December 31, 2020, but has been extended several times amid the worsening spread of COVID-19 and the CDC’s findings that evictions are a major contributor to the transmission of the virus. The moratorium is currently set to expire on July 31, 2021, which, according to the CDC, is “the final extension of the moratorium”.

In Alabama Ass’n of Realtors v United States Dep’t of Health & Human Servs, Judge Friedrich ruled that the CDC had exceeded its powers by imposing a nationwide moratorium on evictions. Although the court found that COVID-19 caused a public health crisis, the court nonetheless concluded that the CDC was not empowered to impose a nationwide eviction moratorium under the Public Health Service Act. The court found that while the law allows the CDC to enact and enforce regulations necessary “to prevent the introduction, transmission or spread of communicable diseases”, the CDC’s legal authority to limit certain sources of infection – animals and articles – is limited and does not extend to evictions.

In contrast to previous judgments in other jurisdictions, the Court did not limit its ruling solely to the plaintiffs who brought the action and who concluded that the moratorium should be lifted nationwide. However, the ban on the moratorium was short-lived. Immediately after the ruling, the Justice Department appealed and filed an urgent motion to suspend the ruling and its effects in order to avoid evictions during the appeal. The court granted a temporary suspension of the ban, and the District of Columbia Circuit’s U.S. Court of Appeals upheld the suspension. The U.S. Supreme Court then upheld that ruling, with Supreme Court Roberts and Judge Kavanaugh joining forces with the court’s three Liberal judges to uphold the moratorium amid CDC plans to end it on July 31, 2021.

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