- What are zoning and land use restrictions?
- What is zoning? Why does zoning matter for my home or land in the Berkshires?
- What zoning and land use regulations should I be concerned about in the Berkshires?
- Which zoning regulations apply to my property?
- What is a zoning variance? How do I get a zoning variance or special permit?
- What other types of land use restrictions are there?
“When people in Massachusetts purchase property, they commonly believe they are able to do whatever they want with it … That may not be the case.”
Stockbridge, Massachusetts (Photo: John Allspaw/Creative Commons)
What are zoning and land use restrictions?
When people in Massachusetts purchase property, they commonly believe they are able to do whatever they want with it, provided they are not violating any laws. That may not be the case. Restrictions may come in several forms:
- State and federal regulation, such as environmental restrictions
- Local restrictions, such as zoning laws, town by-laws, and town-specific environmental restrictions
- Restrictive covenants that previous landowners put on the deed that impose conditions on the use of land
- Other recorded restrictions or easements that affect what you can do with your property and who else may be permitted to use it
It is very important to consider how you intend to use your property and what restrictions may be in place on its use. It is equally important to discuss this information with your attorney. Be aware that legal advice as to the permissible uses of property is not included in a typical agreement of representation with an attorney. It is a separate type of representation that must be included in your written agreement of representation.
“a zoning bylaw is a set of regulations promulgated by a town or city that govern whether properties can be built on, how you are allowed to use a property, what kinds of structures you can build on it, and where they can be located.”
Lenox / Stockbridge, Massachusetts (Photo: Stu Rosner/Creative Commons)
What is zoning? Why does zoning matter for my home or land in the Berkshires?
Simply put, a zoning bylaw is a set of regulations promulgated by a town or city that govern whether properties can be built on, how you are allowed to use a property, what kinds of structures you can build on it, and where they can be located.
For example, a town’s zoning bylaw can stop a homeowner from tearing down a small house and replacing it with a bigger one, a taller one, or one closer to the lot line. It can regulate off-street parking at single-family residences. It can regulate the amount of frontage a property must have on the street and the minimum size of lots. Zoning bylaws now regulate short-term rentals and whether you can operate a home business. Zoning bylaws can even regulate how many dogs you can have on the property.
“A zoning bylaw can even regulate how many dogs you can have on the property.”
Sandisfield, Massachusetts (Photo: James Walsh/Wikimedia Commons)
What zoning and land use regulations should I be concerned about in the Berkshires?
The issues involved for each property may differ. We commonly see issues related to:
- Zoning laws of the individual towns or cities
- The Rare and Endangered Species Act
- The Great Ponds Act (applicable to many of the lakes and ponds in the Berkshires).
- The Wetlands Protection Act and local wetlands bylaws
- The Scenic Mountains Act (a state statute that applies only in Berkshire County)
- Agricultural Use and “Right To Farm” Bylaws
- Septic System Regulations – Title V
- Potable water and well regulations
“Do not assume that just because a previous owner or neighbor used the property in a certain way that you will be allowed to do so.”
Mount Washington, Massachusetts (Photo: Doug Kerr/Creative Commons)
Which zoning regulations apply to my property?
Zoning in the Berkshires is handled town-by-town and city-by-city. Each of the 30 towns and two cities has its own set of zoning bylaws or ordinances. Many bylaws may be decades old. Also, zoning bylaws may be written by nonlawyers and adopted at a town meeting.
Do not assume that just because a previous owner or neighbor used the property in a certain way that you will be allowed to do so. Commonly, land use may be allowed only because the previous owner used a property in a specific way before a current zoning bylaw was passed. Do not assume that if you purchase the property that you will also be allowed to use it in that way or to change the way the property is used. There is a complex legal analysis regarding “preexisting nonconforming lots” to determine how certain properties may be used. Or the prior owner’s use may not have been legally sanctioned.
“Zoning bylaws allow certain uses as of right and allow other uses upon issuance of a special permit.”
Egremont, Massachusetts (Photo: John Phelan/Wikimedia Commons)
What is a zoning variance? How do I get a zoning variance or special permit?
Zoning bylaws allow certain uses as of right and allow other uses upon issuance of a special permit. The special permit granting authority may be the Planning Board, or the Zoning Board of Appeals. The zoning bylaw will specify the material that must be submitted as part of a special permit application, as well as the criteria that the proposal must meet. Issuance of a special permit is only after notice to abutters, advertising, and a public hearing.
If the use, structures, or the lot itself are not permitted under the zoning bylaw, you may apply for a variance. Although some people consider a variance to be a simple way around the zoning bylaw, the statutory criteria for the granting of a variance are actually quite strict. The necessity for a variance must be created by soil conditions, shape or topography of the lot, and it must affect the client but not the zoning district generally. The variance can only be granted if the granting authority finds that the variance will not be a detriment to the public good, nor derogate from the intent or purpose of the zoning bylaw.
You want an attorney who can put you on the proper path, properly prepare the application and present it to the board at the hearing. It is good to work with an attorney who knows the zoning board members and understands the history of the town. Sometimes, it is possible to get an informal sense of the obstacles that stand in the way of getting a variance before you purchase the land. An experienced attorney may include in the Purchase and Sale Agreement a condition that a special permit or variance must be approved before closing.
An experienced attorney may include a condition in the Purchase and Sale Agreement that a special permit or variance must be approved before closing.
Egremont, Massachusetts (Photo: John Phelan/Wikimedia Commons)
What other types of land use restrictions are there?
The most common land use restrictions in the Berkshires are as follows:
- Easements that may give others the right to use the property in a certain way. For example, a neighbor may have access rights through your property that will prevent you from building in a way that would block their right.
- Homeowners association covenants may limit what you may do with your land (such as what kind of fence you can build) and may give others the right to assess fees.
- Covenants that previous owners have placed on the land to prevent certain types of use.
- Wetlands and environmental restrictions imposed by the local Conservation Commission that can limit where you are allowed to build a new structure.
- Takings that change the boundaries of your property, or betterment assessments that require you to pay additional taxes to the town or city for an improvement.
- Common driveways subject to maintenance agreements.
- Zoning restrictions.
The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice.
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