Agenda - Planning Commission - 02/01/2018

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January 10, 2018 I Volume 12 I Issue 1 Zoning Bulletin pellate review. The Supreme Judicial Court of Massachusetts allowed the application for direct appellate review. On appeal, Wells argued that G.L. c. 40B provides zoning boards of appeals with the authority to amend restrictive covenants. Wells pointed to G.L. c. 40B, § 21, which provides in relevant part: The board of appeals . . , shall have the same power to issue permits or approvals as any local board or official who would otherwise act with re- spect to such application, including but not limited to the power to attach to said permit or approval conditions and requirements with respect to height, site plan, size or shape, or building materials. Wells maintained that the amendment to the restrictive covenant that it was seeking the "functional equivalent of a `permit[ ] or approval[ ]" with the meaning of G.L. c. 40B. Wells contended that the meaning of the phrase "permits or approvals" encompassed modification to a re- strictive covenant. Wells argued that the phrase "permits or approvals," in this context, included "amendments to a restrictive covenant where, as here, the provisions in the restrictive covenant are similar to those applicable to a zoning decision . . .." Wells further contended that "there are distinct differences in kind between a property interest that is an affirmative easement and a property interest that is a negative ease- ment," and thus that the City had less of an ownership right to them. Finally, Wells suggested that the deed restrictions were not, in fact, a legitimate property interest, but, rather, merely zoning restrictions. DECISION: Judgment of land court affirmed. The Supreme Judicial Court of Massachusetts held that the 7.BA did not have the power to alter the deed restrictions. In so holding, the court concluded that, contrary to Wells' conten- tions, modification to a restrictive covenant was "a fundamentally dif- ferent action" from the types of "permits or approvals" that G.L. c. 40B authorized a local zoning board to undertake. Wells had pointed to dictionary definitions of "permits" and "ap- provals," but the court found that the language of G.L. c. 40B, § 21, itself "defined the term `permits or approvals' " in that the statute: "delineate[d] the types of local agencies that [could grant permits or approvals (i.e., `local board[s] or official[s]'), and then enumerate[d] the types of authorizations that fall within the statutory meaning of permits or approvals (e.g., `conditions and requirements with respect to height, site plan, size or shape, or building materials')." Wells had contended that the amendments to the restrictive covenant would be the functional equivalent of "permits or approvals" "because they [were] functionally the same as authorizations that have been deemed permits or approvals in other contexts." Wells pointed to past amendments made to the restrictive covenant by the City aldeiiuen. Wells argued that the process of applying for an amendment involved 10 © 2018 Thomson Reuters