Real Estate

Mass. SJC adopts “totality of the circumstances” test to determine whether municipal land is held for a specific purpose

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In its recent decision in Carroll v. Select Board of Norwell (pdf), the Massachusetts Supreme Judicial Court (SJC) reaffirmed that where town-owned land is held for a specific purpose, M.G.L. c. 40, § 15A dictates that it cannot be diverted to another inconsistent use until the “board or officer having charge” of the land determines it is no longer needed for that specific purpose. In so ruling the SJC added a test to determine whether such land is being held for a specific purpose. While past cases indicated that, in addition to a legislative act, a recorded instrument restricting the parcel’s use was required, Carroll clarifies that courts must examine the “totality of the circumstances” to determine if land has been held for a specific purpose.

In Carroll, residents of Norwell (the Town) – lobbied by neighbors of the Town land at issue – voted at the 2021 Town Meeting to transfer a Town-owned parcel to the

Does the 9th Circuit’s rejection of Berkeley, CA’s municipal gas ban spell doom for Massachusetts’ own gas-banning “Demonstration Program”?

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We bring to your attention this post by our colleague Randy Rich of Pierce Atwood’s Energy Infrastructure Group on the 9th Circuit’s decision earlier this week in California Restaurant Association v. City of Berkeley, No. 21-16278. The court decided that the federal Energy Policy and Conservation Act, 42 U.S.C. § 6297(c), preempts the City of Berkeley’s ordinance banning natural gas piping within newly constructed buildings. Interestingly, the Commonwealth of Massachusetts was part of a group of states that filed an amicus brief urging the 9th Circuit to find no federal preemption and thus uphold the Berkeley ordinance.

Although the 9th Circuit’s decision isn’t legally binding here, we wonder how it will affect efforts to ban the use fossil fuels in the Commonwealth. Section 84 of Chapter 179 of the Acts of 2022 (pdf) authorizes the Mass. Department of Energy Resources (DOER) to establish a demonstration program allowing 10 cities and towns to adopt general or zoning

Mass. High Court Declines to Expand Prior Public Use Doctrine

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In its decision last week in Town of Sudbury vs. Massachusetts Bay Transportation Authority, the Massachusetts Supreme Judicial Court (SJC) declined to expand the reach of the common-law prior public use doctrine. As the court explained, “[u]nder this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.” In this case the Town of Sudbury sought to prevent the defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an easement agreement with Eversource for the installation and maintenance of an underground transmission line on an unused 9-mile right of way, approximately 4.3 miles of which is located in Sudbury.

The Town of Sudbury urged the court to find that use of the right of way by Eversource violated the prior public use doctrine because the MBTA’s transportation use was inconsistent with the electric transmission line use by Eversource, which the Town argued

Not Your Grandfather’s Nonconforming Structure: Mass. Appeals Court Discusses Difference Between Increasing an Existing Nonconformity and Creating a New One

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In perhaps a sign of the linguistic times, Appeals Court Justice James R. Milkey’s  opinion in the case of Comstock v. Zoning Board of Appeals of Gloucester received more media coverage for certain racial history commentary in a footnote than for the central zoning principles at stake. Yet, for zoning lawyers, there is far more to the ruling than the footnote.

First, Justice Milkey’s linguistic footnote: In Massachusetts and elsewhere, uses and structures in place prior to the effective date of various zoning and other regulations have long been referred to as “grandfathered.” In footnote 11 of its decision, the court acknowledges the “racist origins” of the term due to its prior use in the context of Reconstruction Era voter suppression. Certainly, the court is correct that the concept of time-exempted structures and uses can be discussed with other, less controversial, phrasing, and this post will do so.

Back to zoning. The extent to which a preexisting nonconforming structure can

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

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

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

Breaking: Mass. SJC Holds That Real Estate Statute of Repose Bars Tort Claims Arising From Asbestos Exposure After Six Years

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In a decision of great importance to property owners, developers, architects, engineers, and contractors, the Massachusetts Supreme Judicial Court (SJC) this morning ruled that the state’s six-year statute of repose, M.G.L. c. 260, § 2B, applies to tort claims based on asbestos exposure and other diseases with long latency periods.  The decision is Stearns v. Metropolitan Life Insurance Company.

The statute of repose applies to “Action[s] of tort for damages arising out of any deficiency in the design, planning, construction or general administration of an improvement to real property . . .” and states, “in no event shall such actions be commenced more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking possession for occupancy by the owner.”

Unlike statutes of limitation, which start to run when a claim “accrues” (generally when the injured party becomes aware of the