Joel Quick

Breaking: Massachusetts Attorney General Strikes Down Municipality’s Attempt to Ban Gas Installations in Buildings

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On July 21, 2020, Massachusetts Attorney General Maura Healey struck down a by‑law passed by the Town of Brookline that would have disallowed most construction that included “fossil fuel infrastructure.” The Attorney General’s decision can be found here. This by-law would have prevented gas installations in new or substantially renovated buildings and would have required heat, hot water, and appliances to be all electric starting in 2021, with certain exemptions.

The Attorney General’s Municipal Law Unit is tasked with review of town by‑laws to assure they don’t conflict with state laws or the state constitution. This review is limited, and usually by-laws are approved unless there is a direct conflict. The Attorney General acknowledged the climate change policy behind the Brookline by-law, but confirmed that local laws cannot: (1) conflict with the state building code, (2) conflict with the state gas code, or (3) conflict with state law giving the Department of Public Utilities control over gas distribution.

The Supreme Judicial

Mass. Appeals Court Clarifies How Zoning Cases Can – and Can’t – Be Settled

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The Massachusetts Appeals Court recently decided that a settlement agreement resolving a zoning case brought by the Town of Bourne did not prevent neighbors from obtaining zoning enforcement inconsistent with that settlement. The case, Stevens v. Zoning Board of Appeals of Bourne, involved the use of a property in a residential zoning district as a wedding venue (commercial uses were not allowed). There were two sequential cases involving challenges to the use.

The first case arose from the building inspector’s cease and desist order to the property owner requiring a complete halt to the commercial use. The Town then brought a case in Land Court to enforce the order. That case was settled by an agreement between the Town’s administrative board and the property owner. The settlement agreement included dismissal of the Land Court case with prejudice. Critically, the Land Court did not decide whether the challenged use was lawful. The Building Inspector issued a new cease and desist order consistent with the

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

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

Mass. Appeals Court Highlights Workaround for Identifying a Public Way

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The quality of a property’s frontage on a street or way can define its development potential and therefore its value. The gold standard, which will allow a comfortable check in the ‘frontage’ box in most Massachusetts municipalities, is having the amount of frontage required by the local zoning regulation on a public way. Not every city and town has a clean list of public ways, and there are often cost-based disincentives to declaring a way to be public when the status is unclear. An Appeals Court case decided last week, Barry v. Planning Board of Belchertown (pdf), confirms that there’s a seldom-discussed method of establishing that property fronts on a public way – estoppel.

There are three means of creating a “public” way in Massachusetts. See Fenn v. Town of Middleborough. The first method fell out of use in 1846 due to a change in the law. This involved dedicating the way to public use and the public accepting

Mass. Legislature Weighs Changes to Zoning Act; Quick Decision on Plaintiff’s Standing is Proposed

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Two bills pending at the Massachusetts State House would amend the state Zoning Act, known as Chapter 40A, which governs zoning in every Massachusetts city and town except Boston. The Zoning Act is seldom amended, even though courts and land use lawyers are well aware of its shortcomings. This is no doubt because zoning is often a hotly-contested political issue. But commonsense changes to Chapter 40A, while difficult to accomplish, can yield significant benefits for all concerned with real estate development in the Commonwealth.

Will Standing Determination be Front-loaded?

A bill introduced in the Massachusetts Senate, Senate Bill 1024 (pdf), tackles one of the most vexatious aspects of zoning for developers – the standing of abutters to sue. Standing is a prerequisite for filing a case in court; generally speaking, to have standing to sue, plaintiffs must show they’re harmed or that their rights are impacted in some material way. In other contexts a defendant can quickly move to dismiss