Chapter 13

PUBLIC CONTOL OF PRIVATE PROPERTY. State and municipal government has the inherent right to regulate and control the private use of land to promote the health, safety, convenience, morals, and general welfare of its citizens. Public regulation of privately owned real estate is implemented by:

1. Zoning Laws.

2. Building Codes.

3. Subdivision Control.

4. Environmental Protection Laws.

5. State and Federal Interstate Subdivision Land Sales Acts.

ZONING LAWS

Zoning by-laws or ordinances are established by town or city government to regulate and control the use of land. Authority to pass zoning laws is conferred upon cities and towns by state statute.

Zoning Law Limitations. Although zoning laws might adversely affect the rights of property owners by limiting the use of their land without compensation, zoning laws are considered constitutional, being necessary for the common good. Courts have held zoning regulations to be a reasonable exercise of government control if they are clear and specific do not discriminate and apply equally to all property.

Note: a licensee to the prospective buyer must disclose any zoning changes made after a property is listed.

CITY PLANNING. City planning provides for expansion in an orderly and logical fashion in the best interests of all citizens. It also provides for the physical and economic improvement of existing buildings and areas.

State law requires cities to establish planning boards, which survey the social and economic, needs of their citizens. Through analysis of the city's economic strengths and weaknesses, the planning board estimates its future needs and growth. As a result of their study, a master plan is formulated to direct and encourage the , desired growth and development of the city. Many factors are weighed and considered, for example, whether to maintain existing housing or to allow the building of high rise apartments and whether to rezone certain areas allowing more or less commercial activity. After public hearings to resolve conflicts, the plan is put to a vote, and if passed, is carried out largely through the use of zoning regulations, building codes and subdivision laws.

LAND USE RESTRICTIONS. Zoning laws restrict use of land in the following ways:

1. Height and bulk of buildings.

2. Lot size requirements.

3. Set back requirements. Minimum distance of improvement to property line.

4. Population density controls. Minimum or maximum floor area per living unit.

5. Parking space requirements.

6. Accessory buildings.

7. Types of buildings and intensity of use

8. Recreation requirements.

CLASSIFICATION OF LAND USE. The four main zoning classifications are:

1. Residential - Single family, multi-family and high rise.

2. Commercial - Businesses, stores, etc.

3. Industrial - Light or heavy manufacturing.

4. Agricultural - Farms.

DIMENSIONAL REQUIREMENTS AND LIMITATIONS. All building structures are subject to height and area limitations. These include: lot size, floor area, lot width and minimum yard space (setback) on front, sides and rear. Note: The 'setback" is the distance from the street to the front of the house.

Area or Bulk Regulations. These are principally applicable to residential areas and are intended to regulate the population density to prevent congestion and crowding, to safeguard health standards and to increase the amenities of living.

Such regulations usually specify the following:

1. The ratio of land area to building area.

2. Minimum setback of the building from the street, side and rear, lot lines.

3. Minimum frontage required.

4. Height in feet or stories.

5. Setbacks for non-residential structures, such as sheds, garages, swimming pools, etc.

6. Minimum number of square feet of living area.

Typical applications of the above regulations might specify that a single-family home may not use more than 35% or 40% of the total land area and that there must be a minimum of one hundred feet of frontage, or that there must be at least twenty- five feet of rear yard space.

Zoning laws may regulate or determine the height and type of structures in rear yards, the height and location of fences, the amount of landscaped area or open space, parking facilities, and size and location of signs and illumination.

NON-CONFORMING USE. The operation of zoning laws will not affect the use of any building, which was in use at the time of the adoption of the by-law even though the use might be in violation with the zoning change. Thus, a three family residence in a district, which is rezoned for two family houses only, is considered as a non-conforming use and is exempt from the zoning change. However, if the nonconforming use is abandoned, it may not be reused at a later time. A non- conforming use may not be changed or expanded.

ENFORCEMENT OF ZONING LAWS

BUILDING PERMIT. Enforcement of zoning laws is carried out by the issuance of building permits. Before any improvement to land or structural changes can be made, a building permit must be obtained from the proper local authority, such as , the building department, which examines the proposed plans to determine whether the project meets the zoning laws. Note: "Police power" is the authority over zoning ordinances.

BOARD OF APPEALS. In order to safeguard the rights of all citizens and property owners and to prevent unreasonable zoning laws, each city or town is required to appoint a board of appeals to which an applicant may appeal the building department's refusal to issue a building permit. After holding a public hearing, the board of appeals may either grant or deny the permit. The board also has the right to grant a special permit or to authorize a variance from the terms of the zoning law.

Special Permit. In many instances, a building requirement or zoning law may allow for exceptions, provided certain requirements or conditions are met by the builder. For example, a zoning law might limit the height of buildings in a particular area to seven floors, but provide for an exception to increase the height to eight floors if the builder furnishes additional parking spaces.

Variance. A variance is an exemption from the zoning law, which may be granted by the board of appeals to prevent a substantial hardship, provided it, does not cause serious detriment to the public good and does not substantially change the basic character of the neighborhood. The board's refusal to act reasonably and in good faith may justify an appeal by the applicant to the state courts.

SPOT ZONING. Spot zoning allows a small area of land to be used in a way, which is inconsistent with the zoning law. It is similar to a variance, but usually has more of an impact on the neighborhood. For example, a permit may be granted for the construction of a small convenience store in a residentially zoned neighborhood. However, the courts will strike down a major change, such as the allowance of a noisy factory.

PLANNED USE DEVELOPMENT (PUD). This is a relatively recent, conditional, permitted use of land, which maximizes the use of open spaces to produce a high density of dwellings. It is also referred to as cluster zoning since it allows the grouping of housing units on less-than-normal-house size lots. For example, rather than build ten units each on two acres of land, a builder may be permitted to build twenty units on one acre and use the other acre for common recreational facilities. PUD also may allow for the mixed use of residential and commercial property in areas where it is not permitted by existing zoning laws.

BUFFER ZONE. A buffer zone is a strip of land separating differently zoned areas.

SNOB ZONING - REVIEW BY STATE COURT. Zoning laws, which limit population density, may indirectly discriminate against persons in a lower economic class or in the construction of low-income housing. For example, a zoning law, which requires an acre of land or two hundred feet of frontage for single-family home construction, would effectively bar low-income families from moving into the area. Such practices are referred to as "Snob Zoning" and are considered repugnant to public policy, and may be struck down by state courts.

Under the normal procedure it would take years and considerable expense to appeal a zoning board decision to a court of last resort. The Massachusetts Anti-Snob Law provides immediate relief by granting an aggrieved person a twenty day right of appeal to a Superior court or to the Land Court. After reviewing the facts, the court may annul any decision of the board if it finds that such decision exceeded its authority. The court will consider whether the board acted fairly and reasonably or whether the decision was capricious and arbitrary.

DOWNZONING. Downzoning is the rezoning of land from a high-density use (more active use) to a lower-density use (less active use), such as from an apartment house zone to single-family homes.

MARKETABILITY, EFFECT OF ZONING REGULATIONS. Although zoning changes may affect the value of land, they do not make it unmarketable, as would a lien or other encumbrance. On the other hand, a zoning violation would have an adverse effect on a sale. For example, an illegally converted two family house would sell for less than an approved two family house.

BROKER'S DUTY TO DISCLOSE ZONING LAWS OR PENDING CHANGES. Because zoning laws are public knowledge, brokers and salesperson are not generally responsible to disclose them to prospective buyers. However, failure to disclose could be a violation of the Massachusetts Consumer Protection Law if knowledge of the zoning law is vital to the sale. For example, disclosure of the zoning laws to a prospective buyer is required if the buyer's contemplated use does not conform to existing zoning regulations. Misrepresenting a permitted zoning use as a buying inducement could be grounds for rescission and possible license sanction.

BUILDING CODES. In addition to satisfying the zoning requirements, repair, alteration or erection of any structure must meet certain state construction standards known as building codes. The codes set the standards for building materials, structural requirements, sanitary equipment, plumbing, electrical wiring, fire prevention equipment, smoke detectors and exit locations.

SUBDIVISION CONTROL LAW

Subdividing is the division of a tract of land into building lots primarily for home construction. Before being granted a building permit, the subdivision plans must be approved by the local planning board and recorded in the registry of deeds. The purpose of subdivision control is to regulate the planning of homesite developments to assure suitable access to public ways and to appropriate municipal utilities. The plans must show compliance with requirements for frontage, sewers, streets, water mains, lot dimensions, setback lines, public use areas, public utility easements, and facilities for fire, police and street lighting equipment. State and federal approval must also be obtained if the project will substantially affect the environment. A bond must be filed by the builder to assure performance in accordance with the plans.

Massachusetts's law requires planning board approval if the site involves more than two lots, any of which do not have frontage on an existing public way. If the plan does not come within the subdivision control law, the planning board is required to assent to its recording without approval. Most developers obtain preliminary approval of their subdivision plans in order to be unaffected by future zoning changes prior to approval of final or definitive plans.

ENVIRONMENTAL PROTECTION LAWS

The National Environmental Policy Act (NEPA) of 1969 and the Clean Air Act of 1970 were passed to protect the environment from being harmed as a result of improper development and use of land. They are designed to prevent pollution of the air, inland waters, flood plains, rivers, marshes, lakes, streams, coastal waters and tidal plains. More recent environmental issues include protection of habitats for wildlife, wetlands, shorelines and endangered species.

Environmental Impact Statement (EIS). NEPA requires filing an environmental impact statement with the Environmental Protection Agency (EPA) prior to changing or initiating a land use or development to ensure that the use will not adversely affect the environment. The EIS must set out all the significant ways the project might have a negative effect on the environment and indicate the steps and precautions to be taken to prevent or minimize such harm. The study must be prepared and paid for by the developer and approved by the proper agencies after public hearings.

INTERSTATE LAND SALES FULL DISCLOSURE ACT

The Interstate Land Sales Full Disclosure Act is a federal statute administered by the Secretary of Housing and Urban Development (HUD), through the Office of Interstate Land Sales Registration. Its purpose is to provide controls against sharp practices and fraudulent promotional schemes often found to occur when land is sold pursuant to deceptive and misleading sales practices over the telephone, through mail advertising and other "sight unseen" techniques.

Registration Requirement. For offerings coming within the Act, the developer must file a "Statement of Record" with HUD disclosing certain required information about the nature of the land being offered for sale or lease. Customers must be given a copy of the approved report at least two days prior to the signing of an agreement or a lease. Registration does not apply to the sale of existing houses or sale or lease of lots in subdivisions containing less than one hundred lots.

Anti-Fraud Provision of the Act. The contract must stipulate that roads, sewers, water, gas or electric service and recreational amenities will be provided or completed by the developer, if such are represented or promised.

Registration and anti-fraud provisions apply if:

1. The sub-division contains one hundred or more lots.

2. The lots are less than twenty acres in size.

3. The sale or lease is for unimproved building sites (land only).

Registration and the anti-fraud provision do not apply:

1. To the sale or lease of cemetery lots.

2. To the sale of existing homes or if the developer agrees to construct a home on the lot within two years after the sale.

3. If an on site inspection is made by the buyer prior to signing a contract.

Only the anti-fraud provisions apply to the sale or lease of lots in subdivisions containing over twenty-four, but less than one hundred, lots. Projects containing fewer than twenty-five lots are not subject to the act.

MASSACHUSETTS OUT OF STATE REGISTRATION REQUIREMENT. Promotion of the sale of house lots, buildings, condos and time-shares in out-of-state land developments requires registration with the Mass. Board of Registration.

PRIVATE LAND USE CONTROL - DEED RESTRICTIONS

Deed restrictions are private agreements or covenants, which affect the use of land in a subdivision. They are included in the buyer's deed and become a public record when recorded. They are not liens since they affect the use of land rather than the title. Deed restrictions are valid if they are reasonable restraints, and they benefit all the property owners in the subdivision. Although considered encumbrances, deed restrictions may increase property value by maintaining specific standards in a development or subdivision.

Deed restrictions continue for a period of from twenty to thirty years, after which they may be renewed by a majority vote of the landowners. Deed restrictions will prevail over zoning laws even though they may be more restrictive than the zoning law. Deed restrictions, which are against public policy or considered discriminatory are unenforceable.

URBAN DEVELOPMENT

ECONOMIC BASE. An urban area grows and expands because of the growth of its economic base, which is the ability of an area to produce and export goods and services in return for money or income to the community. An economic base provides employment and income, which are vital to a healthy and expanding local economy. As the economic base expands, the population increases, resulting in the need for more homes, service activities and industries.

URBAN DEVELOPMENT PATTERNS. An urban area may develop in one of two ways. The growth may be either outward or upward. During the last thirty years, growth of cities has developed outward along the path of least economic resistance, i.e. growth has been in the direction of the lowest cost of land. Land in non-urban sites has been constantly converted into productive urban space such as shopping centers, industrial plants or office space in previously open fields. Huge subdivisions of new home construction occur at the fringe, thus increasing the outward growth.

URBAN DEVELOPMENT THEORIES. There are four major theories, which attempt to explain the development of urban areas in the last fifty years. They are:

1. Concentric Theory. Land uses tend to develop in a definite pattern of concentric circle outward from a central point, known as the central business district.

2. Axial Theory. Land uses tend to develop along major streets, highways, and public transportation lines outward from the central business district.

3. Sector Theory. Land uses tend to develop along more efficient arteries, rather than newer or less efficient corridors.

4. Multiple Nuclei Theory. This theory assumes that there is more than one business district in a given area and that land use patterns develop outward from these various centers of activity.

EMERGING PATTERNS or URBAN LAND USE. The decentralization of American cities following World War II and the popularity of urban shopping centers has produced satellite or "bedroom" communities Their residents work in the cities and raise their families in the suburbs. Through proper city planning, many of these dormitory communities have developed their own economic base and have merged to form a larger configuration, known as a megalopolis. However, another pattern is emerging. Inflation, higher building costs, shortage of land and increased energy costs are beginning to result in a shift back to centralization of homes and commerce resulting in an upward growth. Planned communities with high rise office and apartment buildings, condominiums and cluster housing may be the pattern of the future.

KEY WORDS AND PHRASES