Tag Archive for: Zoning

When a Short-Term Rental is Not a Good Neighbor

Many Berkshire County towns have now passed zoning and general bylaws permitting short-term rentals. Most recently, short-term rentals have been approved in Alford, Becket, Sandisfield, North Adams, and Washington. There are certainly benefits to short-term rentals, both for homeowners and for towns; however, short-term rental use of homes is more in the nature of a hotel use than a residential use. When is a short-term rental not a good neighbor?

Responsible owners make sure that their renters are quiet, do not permit parking on the public way, do not permit pets to be loose outside, manage the trash generated by the rental, and otherwise consider the effect of the rental on neighbors and the town. Towns permitting short-term rentals have attempted to address the possible negative impacts in their bylaws.

Rise in Popularity of Short-Term Rentals in the Berkshires

With the rise in the popularity and, now, the legality of short-term rentals in many towns, the question arises as to the rights of neighbors and others who are impacted by a short-term rental in their neighborhood. The good news is that there are many ways to help balance the rights and responsibilities of short-term rental owners and neighbors.

The best initial step is for neighbors to try to have a constructive conversation with the short-term rental owner. Avoid conflict when possible: it reduces stress and minimizes expense, and is always worth the effort. Unfortunately, this approach is not always effective, and it becomes necessary to take the next step.

Check the By-Laws of Your Town

The first question is whether short-term rentals are even legal in the town. Short-term rentals are not considered under the law to be the same as a residential use of property; rather, it is a commercial use of property. There was and still is a misperception that it is permissible to offer any home as a short-term rental. In most cases, if a town has not adopted a short-term rental bylaw, the use is not permitted in the town. 

The second question is whether the particular short-term rental operated in compliance with the local bylaw and state law. Each town that has adopted a short-term rental bylaw has different and very detailed rules governing that use. The practice has been treated casually in the past, but given the proliferation of such rentals, it is important to be informed about the applicable rules in the particular town.

A neighbor does have the right and ability to force compliance with the local rules through a zoning enforcement complaint with the town if the rules are being disregarded or abused. Zoning enforcement can be a complicated procedure, but it exists to permit persons who are harmed by zoning violations to protect the use and enjoyment of their homes.

Some problems, such as excessive but unregulated noise at all hours, may violate a homeowner’s private property rights. Again, a homeowner can enforce those rights if necessary.

The Best Result? Avoid Conflict

The best result is for conflict to be avoided by open communication. When that is impossible, there are avenues available to homeowners to address the problems.

Alexandra Glover is a founding partner of Lazan Glover & Puciloski, LLP, and is a civil litigator who handles zoning, permitting, and other land use matters at the town level and in the Land Court. www.lazanlaw.com.

This article was first ran in the Berkshire Edge, June 2023.

Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.  Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Glover SJC Zoning Case: Religious Use Exemption

The Massachusetts Supreme Judicial Court has ruled in favor of Lazan, Glover & Puciloski’s client, Hume Lake Christian Camps. The Court ruled this month that state law exempting religious organizations from local zoning bylaws extended to the camp’s request for 12 recreational vehicle sites. The case is Hume Lake Christian Camps, Inc. v. Planning Board of Monterey, Slip Opinion SJC-13365, p. 27 (June 7, 2023). Click here for SJC ruling.

This ruling has statewide significance because it provides much-needed definition to the scope of the religious exemption from zoning in all towns and cities.  This guidance in a complicated area of law is welcomed by religious organizations and municipalities alike.  The decision also affirms the right, established by the Massachusetts Constitution and the First Amendment to the United States Constitution, for religious institutions to practice their religions in accordance with their own beliefs. Watch the oral argument here.

Alex Glover says, “This ruling has statewide significance because it provides much-needed definition to the scope of the religious exemption from zoning in all towns and cities. This guidance in a complicated area of law is welcomed by religious organizations and municipalities alike.”

The camp, which is located on more than 400 acres, would use the RV sites exclusively for temporary housing for people attending the religious camp programs and for paid staff and volunteers at the camp.  The RV sites would never be opened to the public.

The Court held that the primary or dominant purpose of the camp is to advance Hume’s evangelical mission. Because all of the proposed uses of the RV camp would serve to aid Hume NE in carrying out this mission, the Court concluded that the primary or dominant purpose of the RV camp would be a religiously significant goal. Accordingly, the proposed RV camp would be an exempt use under the so-called Dover Amendment, the portion of the Massachusetts Zoning Act protecting religious uses and structures.

In order to rule in Hume’s favor, the SJC had to make two determinations: (1) whether Hume is a religious sect or denomination protected by the Massachusetts law called the Dover Amendment; and (2) if so, whether Hume uses its land or structures for a religious purpose.  There is surprisingly little law about the scope of the religious exemption from zoning afforded to religious organizations in Massachusetts. The Court answered both questions in the affirmative.

The Court specifically noted that there is a significant danger of inquiring too closely into what is a “necessary” element of a religion, as this inquiry could violate the First Amendment to the United States Constitution. The bottom line is that one cannot look at individual rooms, activities, or components of a religious organization, to determine whether a particular building or use is exempt from zoning.  The question is the use of the structure or land as a whole. Uses that are otherwise secular can be integral to a religious mission.   The Court noted the following examples: a cafeteria, gift shop, maintenance shed, parking lot, radio station, snack bar – or recreational vehicle sites.  These uses can be as protected from zoning as a church edifice, itself.

Here’s the Massachusetts Lawyers Weekly take on the ruling.

Contact us for real estate closings, zoning/permitting, land court litigation, and mediation. Lazan Glover & Puciloski, LLP: lawyers for complex real property issues.

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Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Photo of Goodnow Preserve rock wall and green foliage in New Marlborough, Massachusetts

Buying Land in the Berkshires? Avoid Pitfalls!

Photo of Goodnow Preserve rock wall and green foliage in New Marlborough, Massachusetts

If you’re buying land in the Berkshires, you almost certainly want to be able to build on that land. It’s important to have the opportunity to sufficiently evaluate the land for your needs before you buy.

You don’t want to ask after the purchase, “How close to the property line can I build?” or “How do I know if my property is big enough to build on?” and find out you can’t build that guest house or put an extension on your current home.

We’ve seen this happen before. Here’s an example:

An individual purchased a property in Great Barrington. The tax map showed that the property was 100 ft wide x 100 ft deep (minimum for a building lot). Unfortunately, the assessor’s office had rounded up; the property was under the minimum size requirements and so was not a building lot at all.  It’s only practical use was as a back yard for a neighboring property. The new owner could not build on the property and came to us for help. We wish they had consulted with a zoning attorney before the purchase!

Here’s what you need to know about buying land in the Berkshires and standard land rider.

At the time you sign the contract to buy the property, your realtor will likely attach a Land Rider to the contract.

Among other things, the Land Rider may contain a condition that the lot be deemed a “building lot” by the local building inspector. Unfortunately, there are many other potential issues that could prevent you from building on the property or that could limit where and how you build on the property. At Lazan, Glover & Puciloski (LGP), we strongly recommend that buyers include a contingency in the contract for review and their subjective approval of the uses of the lot.

Property is deemed a “building lot” if it is the required size and has the required length of frontage along a road.

These rules are set by towns under their zoning bylaws. For instance, a town may require that a building lot be 2 acres in size and has 150 feet of frontage along an approved road.

Even if a property meets those minimal qualifications, it may not in fact be buildable at all.

All or part of the lot may be unbuildable if it is within protected areas, such as areas in the jurisdiction of the Wetlands Protection Act or the local wetlands bylaw of the town. Similarly, clearing of land and construction can be significantly limited if the town has adopted the Scenic Mountains Act. 

Local zoning bylaws regulate how many and what size of accessory structures may be located on the property.

Examples: sheds; detached garages; swimming pools. Zoning can regulate the location, length, and grade of a driveway; the location, height, and materials for fences; and even the number of dogs that can be considered pets as opposed to a commercial kennel. A buyer needs an opportunity to understand what limitations there are on the property.

In addition, the buyer will want to consider what use can be made of the surrounding properties.

There are numerous possible uses of neighboring areas that can impact a property.  For instance, in a Right to Farm community, a commercial farming operation could be located next to the property. The possibility of large solar installations and outdoor cannabis growing facilities may also be considered.  Even local rules concerning the use of short-term rentals (such as VRBO or Air BnB) can effect an abutting property.

We strongly recommend that a contract for the purchase of land include a period in which the prospective buyer can obtain all desired information concerning the property.  Any buyer of land should consider retaining an attorney to perform a zoning review of the property, and should consult with a wetlands expert and possibly an engineer or architect, to confirm that the buyer’s vision for the property is achievable.

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Contact Lazan Law if you’re about to embark on a home buying journey in the Berkshires.

Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.

Fresh eggs sign in the Berkshires of Massachusetts waht are a realtor's responsibilities when talking about zoning?

What Are a Realtor’s Responsibilities When Talking About Zoning?

What ARE a realtor’s responsibilities when talking about zoning with a client here in the Berkshires? It makes sense for a successful realtor to describe all aspects of a featured property. Prospective buyers are likely interested in the interior design, the layout, the exterior appearance, landscaping, outbuildings, and numerous other aspects of the property. One question that arises time and again is whether the property can be used in the manner desired by the prospective buyer. Many listings feature the zoning that applies to the property and describe various uses of the property that are possible. Unfortunately, without the proper, specific disclaimer language, a realtor can be held liable for statements made about the zoning of a particular property.

Why does zoning matter?

As a brief summary, cities and towns in Massachusetts may regulate the use of land, as well as the buildings and structures. Each town in Berkshire County has adopted a zoning bylaw containing these rules concerning the use of land in that town. Each town’s zoning bylaw is unique, and thus each town’s rules concerning what use can be made of land in that town are also unique. If that is not complicated enough, most towns have multiple zoning districts. This means that some parts of the town may be used only for residential purposes, while some areas may be used for other purposes, such as commercial, industrial, and so on. Obviously, it is important to know how a particular property may be used and what buildings or structures may be placed on the property. This is true both about possible future uses and buildings, as well as existing uses of, and buildings on, the property. There are many pitfalls associated with zoning. For instance, one cannot assume that a building or use is legal simply because it has been on the property for a long period of time.

A conscientious realtor can be put in a difficult position: the realtor wants to provide all available information to a prospective buyer, but does not want to make statements about zoning that could later prove problematic. The worst-case scenario, of course, is that the realtor tells a buyer that the property can be used in a certain manner (such as a building lot), and that the buyer purchases the property and then later is shocked to learn that the property is unbuildable.

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What can a realtor say about zoning and how can she/he be protected?

A realtor can always give their best sense of the permitted uses when referencing zoning: they should clearly state that the buyer should not rely on their representations as to zoning or use of the property. It is probably not enough to have a general disclaimer in boilerplate language at the end of the listing.

Unfortunately, this issue has gone to court several times. The Massachusetts Supreme Judicial Court has held that a realtor may be liable for misrepresentations about zoning if the realtor: (1) in the course of their business, or in a transaction in which they had a *800 pecuniary interest, (2) supplied false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the information, and that the realtor (6) failed to exercise reasonable care or competence in obtaining or communicating the information.  DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 799–800 (2013). In short, the broker has a duty to exercise reasonable care in making representations to prospective buyers. A realtor has a duty in Massachusetts to investigate before making representations as to the zoning classification of a property.

The best practice? If a realtor is going to mention zoning, the realtor should explicitly state that the buyer should not rely on the realtor’s representation about zoning and should investigate the applicable zoning themselves.

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Disclaimer:  The information contained herein is for informational purposes only. It does not constitute the rendering of legal or other professional advice or services. Your review of this post and/or use of the Lazan Glover & Puciloski, LLP website does not create an attorney-client or confidential relationship between you and Lazan Glover & Puciloski, LLP or any of its attorneys. Information provided herein or on the website should not be relied upon or used as a substitute for consultation with legal, accounting, tax, and/or other professional advisors.   Since any electronic communication between you and Lazan Glover & Puciloski, LLP through this website will not be privileged or confidential, it may be disclosed to other persons and may not be secure. Accordingly, please do not send any e-mail to the Firm that contains confidential or sensitive information without first speaking with an attorney at Lazan Glover & Puciloski, LLP and receiving permission to do so.