Restrictions

Mass. Appeals Court Clarifies Requirements For Extending Common-Scheme Real Estate Restrictions Beyond 30 Years

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In its decision today in Berger v. 2 Wyndcliff, LLC (pdf), the Massachusetts Appeals Court answered an important question about extending common-scheme real estate restrictions beyond the presumptive statutory limit of 30 years.  As to restrictions imposed as part of a common scheme applicable to four or more contiguous lots, M.G.L. c. 184, § 27 states in relevant part that an otherwise enforceable restriction cannot be enforced after 30 years:

unless . . . provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty percent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument . . . .

Berger

Mass. SJC Says Chapter 40B Doesn’t Authorize Override Of Municipally-Held Property Restriction

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In its recent decision in 135 Wells Avenue, LLC v. Housing Appeals Committee (pdf), the Massachusetts Supreme Judicial Court (SJC) confirmed that a property restriction held by a municipality cannot be overridden by the municipality’s zoning board of appeals – or by the state’s Housing Appeals Committee (HAC) – when acting on an application for a comprehensive permit under M.G.L. c. 40B.  Chapter 40B is the Massachusetts statute that promotes the construction of affordable housing.

In 2014, a developer, 135 Wells Avenue LLC, applied to the City of Newton Zoning Board of Appeals (ZBA) for a comprehensive permit to build a 334-unit residential development on a 6.3-acre lot in the city’s Wells Avenue Office Park. The lot is part of a larger parcel that is subject to a property restriction held by the city.  This restriction limits the permissible uses on that larger parcel to certain uses allowed in Newton’s limited manufacturing zoning district.  Residential uses are not allowed.  The developer argued that the

When is a park constitutionally protected parkland? Mass. SJC re-examines test under Article 97

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In a decision of interest to municipalities, conservation groups, and land use experts, the Massachusetts Supreme Judicial Court (SJC) recently decided that a public playground in the City of Westfield is parkland protected by Article 97 of the Amendments of the Massachusetts Constitution.  Art. 97 provides, in part, that property “taken or acquired” for conservation purposes “shall not be used for other purposes” without approval by a two-thirds vote of each branch of the state legislature.  In Smith v. City of Westfield, the SJC expanded the reach of Art. 97 by concluding that municipal parkland may be protected even without a recorded restriction, provided the land has been dedicated as a public park.

The case concerned the Cross Street Playground in Westfield, a 5.3 acre parcel that is home to two baseball fields and a playground.  It has been a public playground for more than 60 years.  In 1979, Westfield received a grant from the federal government under the Land and Water

Perpetual Easement or Expired Restriction? Mass. Appeals Court Weighs In

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In its decision this week in Perry v. Aiello, the Massachusetts Appeals Court addresses an interesting question: whether a 1947 grant of easement-like rights created an affirmative easement, which can be perpetual, or a disfavored restriction whose duration is limited by sections 26-30 of M.G.L. c. 184.

The case involved a dispute between two storied Boston institutions:  DeLuca’s Market, a high-end grocery store that’s been in the same spot at the foot of Beacon Hill for over 100 years, and King’s Chapel, which dates back a bit further – as in 1686.  DeLuca’s, King’s Chapel, and another abutter share the use of a ten-foot-wide passageway between their buildings (the King’s Chapel building is a nice old brownstone, not the historic chapel itself, which is across town).  Fee ownership of the passageway is divided in half, with the abutters on each side owning to the center line.

In 1947, the parties’ predecessors entered into an agreement