Real Estate

Mass. SJC: $3.5 Million Payday for Torrent of Errant Golf Balls Not a Fore-Gone Conclusion

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A Kingston couple was dealt a significant blow days before Christmas when the Supreme Judicial Court (SJC) set aside a jury verdict awarding them $3.5 million in damages for errant golf balls hitting their property. In Tenczar v. Indian Pond Country Club, Inc. (pdf), the SJC ruled that the trial judge erred in his jury instructions concerning easements applicable to the property. The plaintiffs’ home was subject to an easement providing for the “reasonable and efficient operation” of a golf course in the “customary and usual manner,” but the trial judge didn’t present to the jury the question of whether the golf course’s operation met that standard. So the question remains, how many errant shots on the 15th hole at the Indian Pond Country Club are reasonable?

The Kingston Planning Board endorsed a subdivision plan in the fall of 1998 for a residential development surrounding a golf course. The subdivision developer, Indian Pond, recorded a declaration of covenants and restrictions shortly

And Environmental Justice for All? Mass. High Court Clarifies Application of EJ Policy

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In GreenRoots, Inc. v. Energy Facilities Siting Board, the Massachusetts Supreme Judicial Court (SJC), for only the second time, had an opportunity to interpret the Environmental Justice Policy (EJ Policy) promulgated by the Executive Office of Energy and Environmental Affairs (EOEEA). The first time, in the 2014 case City of Brockton v. Energy Facilities Siting Board, the SJC decided, first, that the Energy Facilities Siting Board’s (EFSB) application of the EJ Policy was subject to judicial review, despite the EJ Policy’s express disclaimer that it doesn’t create any right to judicial review, and second, that agencies must provide greater public participation and increased scrutiny for projects near EJ populations that exceed certain environmental thresholds.

In GreenRoots the SJC clarified the second takeaway from City of Brockton, holding that the EFSB and other agencies under EOEEA’s purview must provide “enhanced public participation” and “enhanced analysis of impacts and mitigation” for projects that

Mass. High Court Clarifies Scope of New Zoning Act Bond Provision

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The Supreme Judicial Court (SJC) last week gave real estate litigators an early holiday gift: an important, clarifying opinion on a recent amendment to Section 17 of M.G.L. c. 40A (the Zoning Act), which governs appeals to court from decisions of local zoning boards. The case is Marengi v. 6 Forest Road, LLC (pdf).

In 2020, as part of a wide-ranging economic development bill intended to spur housing production, the Legislature added (effective January, 2021) the following paragraph to Section 17:

The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or

Public Trust Doctrine – Mass. High Court Finds Municipal Harbor Plan Regulations Involve Unlawful Delegation of DEP Authority

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In this April 2021 blog post we discussed the Superior Court’s decision in Armstrong vs. Theoharides.  Since then the Supreme Judicial Court (SJC) took the case on direct appellate review and earlier this week the SJC issued a decision (pdf) affirming the Superior Court.  The SJC found that the longstanding procedure for approving Municipal Harbor Plans – in which the key decisions are made by the Secretary of Energy and Environmental Affairs (the Secretary) – involve an unlawful delegation of the licensing authority that the Legislature gave the state Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91).

Municipal Harbor Plans (MHPs) are codified in regulations at 301 CMR 23.00 et. seq. (the MHP Regulations) and affect licensing by DEP under Chapter 91 and its implementing regulations at 310 CMR 9.00 et. seq. (the Chapter 91 Regulations). In order to obtain a license to

Breaking: Mass. High Court Expansively Interprets Zoning Exemption for Solar Energy

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Massachusetts has committed to increasing the generation of electricity from renewable energy sources, such as solar power, through a series of laws and policies. As solar energy systems have proliferated, trial courts have been asked to determine the limits of local government power over where large ground-mounted solar energy facilities can be sited. For the first time, the Massachusetts Supreme Judicial Court (SJC) has interpreted statutory language enacted decades ago that exempts solar energy systems from zoning regulation. In its decision yesterday in Tracer Lane II Realty, LLC v. City of Waltham (pdf), the SJC acknowledged the need for large ground-mounted solar arrays to meet the Commonwealth’s renewable energy goals.

Section 3 of the Massachusetts Zoning Act (Section 3) – aptly named “Subjects which zoning may not regulate” – protects certain favored uses from local zoning laws. At issue in Tracer Lane was the ninth paragraph of Section 3, which concerns solar energy systems. The plaintiff solar

Appeals Court Excuses City’s Notice-by-Mail Fail

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Today the Appeals Court decided Markham v. Pittsfield Cellular Telephone Company (pdf), holding that the 90-day appeal period under M.G.L. c. 40A, § 17 for zoning appeals alleging procedural defects is not tolled where a zoning board failed to give notice of a special permit hearing by mail, but did provide notice by publication and by posting at city hall.

Several residents of Pittsfield tried to challenge a special permit that the Pittsfield Zoning Board of Appeals granted to the defendant telephone company more than two years earlier. The plaintiffs claimed they lacked any notice of the special permit at the time it was granted or within 90 days thereafter. M.G.L. c. 40A, § 11 requires that notice be given to “parties in interest” such as the plaintiffs in three ways: 1) by publication in a newspaper, 2) by posting in city hall, and 3) by mail. The trial judge found that the zoning board complied with the

Appeals Court Resurrects Neighbors’ Claims Against Noisy Vineyard Venue

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In its recent decision in Allegaert v. Harbor View Hotel Owner, LLC, the Massachusetts Appeals Court reversed in part two Superior Court judgments dismissing the plaintiffs’ zoning appeals. In the process the Appeals Court helpfully clarified some procedural issues that often arise in such cases.

The plaintiffs in Allegaert are neighbors of the Harbor View Hotel in Edgartown. The hotel is a longstanding nonconforming use in what is now a residential neighborhood. In the early 1990s the hotel received special permits to serve food and beverages in certain outdoor areas. In 2019 the hotel applied for a new special permit to replace an existing pool bar with a new bar near the pool but outside the pool fence. The Edgartown zoning board posted and published notice of the hotel’s application and claims to have sent notice by mail to abutters and other parties-in-interest as required by M.G.L. c. 40A, § 11. After a public hearing the board

Mass. High Court: Three-Year Clock for Wetlands Protection Act Enforcement Actions Re-Starts With Every Sale of Property

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The Massachusetts Supreme Judicial Court (SJC) recently handed a victory to a conservation commission seeking to impose an enforcement order on a property owner who bought land containing unauthorized fill placed there by a prior owner 35 years before.  The SJC ruled that the “statute of repose” in the state Wetlands Protection Act, which protects property owners from enforcement for prior violations in certain situations, does not run with the land.

The Wetlands Protection Act, M.G.L. c. 131, § 40 (the Act), generally prohibits removing, filling, or altering wetlands without an order of conditions from a local conservation commission.  The Act also provides that “[a]ny person” who acquires property on which work has been done in violation of the Act shall restore the property to its original or permitted condition; but the Act limits the time period during which an enforcement action against “such person” may be brought.  Specifically, an action must be brought within three years of the recording of the deed (or

To Meet Zoning Frontage Requirement, “Linear Feet” Need Not be in a Straight Line

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Earlier this month in Perry v. Zoning Board of Appeals of Hull (pdf), the Appeals Court considered whether only a straight line along a private way constitutes “frontage” under the local zoning bylaw.

Don Perry objected to his neighbors, Anne Veilleux and Charles Williams, constructing a house on their property in Hull. He raised a number of claims with respect to the issuance of a building permit for the project, including that the Zoning Board of Appeals (Board) improperly interpreted the local zoning bylaw with respect to its definition of “lot frontage.” Perry argued that “frontage” consists only of the straight line which is the sideline of the way providing access to the property, because the bylaw measures frontage in “linear feet.” The Hull Building Inspector determined that the sideline plus the length along the end of the private way, which was at an angle to the sideline, was the appropriate measure of frontage.

On appeal the issue was what constitutes frontage

BREAKING: Mass. SJC Rules on Compatibility of Short-Term Rentals with Single-Family Zoning

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The Massachusetts Supreme Judicial Court (SJC) today weighed in on the zoning permissibility of short-term rentals, a much-contested and important area of concern.

In its decision in Styller v. Zoning Board of Appeals of Lynnfield (pdf), the SJC affirmed a Land Court decision concerning an appeal from a decision of the Lynnfield Zoning Board of Appeals (ZBA), which affirmed a cease-and-desist order prohibiting short-term rentals (STRs) of the plaintiff Styller’s property without a special permit.

Styller owned a five-bedroom single-family house on three aces in a single-residence zoning district.  The Styller family lived on the premises. Beginning in 2015, Styller rented the property through various short-term rental websites. The STR use came to the town’s attention after a renter held a 100+ person party at the property, during which one attendee was shot and killed. The Building Inspector sent a cease-and-desist notice, concluding that the STR use was an “additional” use: either a prohibited hotel use or an unauthorized lodging or rooming