Wrong Procedure Costs City $1 Million Judgment Against Developer it Fined for Building Without Permits

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In a striking blow, stripping a city of a judgment of nearly $1 million, the Massachusetts Appeals Court recently reversed a superior court summary judgment awarding fines to the City of Haverhill for a developer’s violations of zoning laws. The city assessed the fines against the developer under the state building code and the local zoning bylaw for building without necessary permits. In Maroney v. Planning Board of Haverhill, the Appeals Court held that the city’s building inspector did not follow the required procedures to impose fines.

The developer, Maroney, had a special permit and subdivision plan approval for a 50‑lot residential subdivision, both of which required him to build a water pressure booster station to service certain lots in the subdivision. The developer built much of the subdivision, in conformance with the process outlined by the city, on lots that the water department considered serviceable. When Maroney attempted to go forward with development of lots that the water department considered

Under Massachusetts Obsolete Mortgage Statute, Mortgage Payable “On Demand” is Enforceable for 35 Years

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The Massachusetts Appeals Court decided last week that a mortgage stating it is payable “on demand,” with no maturity date or term, is governed by the so-called obsolete mortgage statute, M.G.L. c. 260, § 33. The case is Thornton v. Thornton and a link to the decision is here. The obsolete mortgage statute is designed to help remove old mortgages from land titles. It sets a term of 35 years from the mortgage recording date if the mortgage has no term or maturity date, or five years from the end of any stated term or maturity date. The time to enforce a mortgage can be extended by recording an affidavit that the mortgage is not satisfied, among other methods. As the Appeals Court has confirmed in Thornton, the obsolete mortgage statute cannot shorten the term of any mortgage. In this case, the related note did have a maturity date, but there was no reference to

First Circuit Compressor Station Decision Vacates DEP Air Permit, Addresses Environmental Justice and Noise Issues

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On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) and remanded the matter to the agency for further analysis. The case is Town of Weymouth v. Massachusetts Department of Environmental Protection. The First Circuit’s decision is linked here.

The case involves a fiercely opposed compressor station planned for existing industrial property in Weymouth, Massachusetts. This compressor is critical to Algonquin Gas Transmission’s Atlantic Bridge project, which will move natural gas from the Boston area to a new connection in Beverly, Massachusetts, to then be transported to consumers in New Hampshire, Maine, and New Brunswick.

The Town of Weymouth and other petitioners challenged many aspects of the air permit, and succeeded in forcing DEP to revisit its BACT (best available control technology) analysis. My colleagues Randy Rich and Emily Dupraz discuss the environmental and energy law implications of the decision

In Massachusetts, Defendant Who Prevails on Special Motion to Dismiss Lis Pendens Case Can Recover Appellate Attorneys’ Fees

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In its decision last week in DeCicco v. 180 Grant Street, LLC, the Massachusetts Supreme Judicial Court (SJC) answered a previously open question, confirming that a defendant who successfully moves to dismiss a complaint in which the plaintiff obtained a lis pendens is entitled to recover not only its trial court attorneys’ fees but also the fees it incurs on appeal, assuming the trial court’s decision is affirmed.

In DeCicco, the plaintiffs made a written offer to purchase the defendant’s property. The defendant accepted the offer but refused to complete the transaction. The plaintiffs filed suit for, among other things, breach of contract and specific performance, and obtained court approval of a memorandum of lis pendens. This is a document that gets recorded at the registry of deeds to provide public notice that the land at issue is the subject of a lawsuit that may affect its title.

Under the Massachusetts lis pendens statute, M.G.L. c. 184, §

Breaking: City of Boston Announces New Protocol for Resumption of “Essential” Construction This Month

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Late yesterday Boston Mayor Marty Walsh’s office announced a new protocol for re-starting city construction projects deemed “essential.” In mid-March, in response to the COVID-19 pandemic, Walsh ordered most construction in the city to cease. Since April 27, 2020, all projects involving essential construction have been required to file with the city a COVID-19 Safety Plan and an affidavit pledging to implement that plan. Starting yesterday, projects with approved safety plans and signed affidavits were allowed to begin preparing their construction sites with project-specific COVID-19 safety measures.

Under the new protocol, starting May 18, 2020, projects that (1) have all necessary permits in place, (2) have approved safety plans and signed affidavits on file, and (3) are sufficiently prepared to implement their safety plans, can resume construction, but only if the work is for:

  • hospitals;
  • public schools;
  • residential buildings of 1-3 units;
  • road and utility work; or
  • “other outdoor/open-air work such as steel

Man Bites Dog: Real Estate Developer SLAPPs Objecting Abutters’ Claims

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A decision late last year from the Massachusetts Supreme Judicial Court (SJC), 477 Harrison Ave., LLC v. JACE Boston, LLC (pdf), gives real estate developers a surprising new weapon when confronted by litigious neighbors.

The dispute began in 2012, when the plaintiff developer obtained zoning relief to redevelop a residential property in Boston’s South End. After several years of legal challenges by abutting property owners, the developer abandoned that zoning relief and pursued a new project that appeared to require no zoning relief. When it turned out the developer’s new project did require zoning relief, the abutters seized the opportunity to appeal the new zoning relief as well.

While the abutters’ new appeal was pending, the developer filed a separate case against them alleging abuse of process and violations of the Massachusetts unfair trade practices statute, M.G.L. c. 93A (Chapter 93A). After the abutters’ efforts to dismiss the new case were rejected, they filed counterclaims

In Rare Move, SJC Enters Immediate Order Reversing Decision That Broadened Density-Based Standing in Zoning Appeals

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In what passes for high drama in the world of Massachusetts land use law, the Supreme Judicial Court (SJC), after hearing oral argument last Thursday in an important case involving standing in zoning appeals, entered an order the next day reversing the Appeals Court decision under review and reinstating the trial court’s decision dismissing the complaint. The SJC’s order reads simply, “The judgment of the Land Court dated June 5, 2018, dismissing the plaintiffs’ complaint for lack of standing, is hereby affirmed. Opinion to follow.”

The case is Murchison v. Zoning Bd. of Appeals of Sherborn. The Appeals Court’s decision, which came out last fall, caused a mini-earthquake within the real estate development bar. The case involves a neighbor’s challenge to a building permit authorizing the construction of a house on a vacant lot that the neighbor claims doesn’t meet the applicable lot-width requirement. The lot, which is wooded, is across a street from the neighbor’s house. Both lots are

Breaking: Mass. High Court Rules Municipality’s Acquisition of Prescriptive Easement Isn’t a Taking

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In a rescript opinion issued this morning in Gentili v. Town of Sturbridge (pdf), the Supreme Judicial Court (SJC) ruled that a municipality’s acquisition of a prescriptive easement over private property is not an eminent domain taking.  In prior proceedings in Gentili, the Land Court ruled that the defendant town had acquired a prescriptive easement to discharge surface water through a culvert onto the plaintiffs’ property. Instead of appealing, the plaintiffs filed a Superior Court case seeking damages under M.G.L. c. 79, the state’s eminent domain statute. The Superior Court granted summary judgment to the town and the plaintiffs appealed. The SJC transferred the appeal to itself for decision.

In briskly affirming the Superior Court, the SJC said, “[t]he problem with the [plaintiff] trust’s argument is that the theories and laws of prescriptive easements and takings do not interact in the way that the trust suggests.” Citing the U.S. Supreme Court’s 1982 decision in Texaco, Inc.

Mass. Appeals Court Broadly Construes Two-Year Bar on Repetitive Zoning Amendments

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In one of its noteworthy zoning decisions of late 2019, the Massachusetts Appeals Court interpreted the “two-year bar” for zoning amendments contained in M.G.L. c. 40A, § 5, sixth par. In Penn v. Town of Barnstable, the Appeals Court affirmed a summary judgment entered by the Land Court and concluded that the Town of Barnstable’s adoption of a zoning amendment calling for the creation of the Hyannis Parking Overlay District (HPOD) violated the two-year bar because the town had rejected a similar proposal just a few months earlier.

In an effort to create uniformity and resolve discrepancies in the management of parking spaces in and around Hyannis Harbor, a subcommittee of the Barnstable Town Council proposed in December, 2015 to amend the town’s zoning ordinance to create the HPOD. The proposed amendment, identified as Item No. 2016‑54, sought to authorize as-of-right certain parking lot operations, with site-development standards governing operation of the lots within the HPOD. After a public hearing

This Land (Was) Your Land: Mass. Appeals Court Updates Law on Adverse Possession and Prescriptive Easements

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In the second half of this year the Massachusetts Appeals Court decided three cases in which a party claimed adverse possession or prescriptive rights in real estate. In each case the focus was on one particular element of all such claims:  actual use of the subject property. And in each case the Appeals Court focused on the character of the property in question, and what constitutes typical or normal use of such property. These cases strengthen the rule that if the claimant’s adverse use is a typical use for the type of property at issue, even relatively modest uses that are sustained for 20 years may be enough to acquire permanent rights.

The first case the Appeals Court decided was Barnett et al. v. Myerow, which involved a long-running dispute between groups of landowners on Martha’s Vineyard in which one group claimed a prescriptive right to use a beach. The court reiterated that to acquire prescriptive rights the plaintiffs must