Category: zoning

discrimination, law, massachusetts commission against discrimination, mcad, supreme court of the united states, supreme judicial court, zoning

SJC: unintentional housing discrimination unlawful

April 13, 2016:- From now on, developers can be sued for housing discrimination in Massachusetts even if they did not intend to discriminate and complied with all applicable laws.

In a major decision, the Supreme Judicial Court (SJC) held that “a disparate impact claim is cognizable even if a defendant who is a private owner adheres to statutory, regulatory, and contractual obligations.”  The case is Burbank Apartments Tenants Association v. Kargman and it is consistent with Justice Kennedy’s majority opinion in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  Like SCOTUS, the SJC rationalized its decision by analogizing to employment law: “[W]e conclude from our employment discrimination precedent that… [the disparate impact] theory of liability is cognizable under G.L. c. 151B, §§ 4(6), (7), and (11).”

For my earlier post on the subject, click here.

Justin Sargent 6
Peter Vickery, Esq.
law, zoning

Fighting dirty, or back down to earth in Belchertown

Recently I was co-counsel on a case that involved a pile of dirt in Hadley, Massachusetts. Our client (owner of said pile) kept track of how much earth-product he removed in order to stay on the right side of a local bylaw, which provides that if you remove more than 25 cubic yards in any one year you need a permit. So he recorded each load, and stopped loading before he reached the legal limit. He is an ordained bishop by the way.

The town’s zoning enforcement officer did not measure the pile so had no way of knowing how much earth the owner had removed: more than 25 cubic yards or less. He could have obtained a warrant; he chose not to. But he imposed a fine anyway, which the Zoning Board of Appeals (ZBA) upheld.

Fortunately, after a trial in Belchertown District Court, the judge ruled in favor of our client and annulled the ZBA’s decision. Here are the Findings and Judgment.

Take-aways:

  1. Zoning appeals often go to Superior Court. This one didn’t. The lead attorney, Michael Serduck, recommended District Court, which turned out to be a more expeditious and cost-effective route.
  2. Municipal employees, elected officials, and local volunteers work hard, but sometimes they make mistakes. Proving that they were mistaken takes time and money (often in short supply for small business owners) but sometimes it’s worth the fight.
Justin Sargent 6
Peter Vickery, Esq.