Maine Appeals
Massachusetts Dirt and Development Law
January 31, 2019

When Your Neighbor’s Tree Blots Out the Sun, Can You Force Them to Take It Down? Not In Massachusetts
Tree Law
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Imagine owning your dream house. You have your pool, your barbeque area, your big lawn for the kids to play on. You’ve worked your whole life for this, and now you have it. It’s perfect. Well, except for your neighbor’s overgrown 100-foot tall sugar oak. It’s so massive it blots out the sun. Your yard […]

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December 13, 2018

Late-Filed Appeal to Zoning Board is a Nullity, Not a Springboard to Constructive Approval
Land Use, Zoning
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The Massachusetts Appeals Court’s recent decision in McIntyre v. Zoning Board of Appeals of Braintree demonstrates the importance of subject matter jurisdiction in the context of administrative proceedings.  The plaintiffs appealed the issuance of a building permit authorizing construction of a single-family house on an abutting lot.  Though they knew immediately that the permit had issued, the […]

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October 24, 2018

Trustee of Realty Trust Saved from Application of Merger Doctrine (at least for now)
Zoning
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The merger doctrine is alive and well in Massachusetts zoning law.  In its recent decision in Kneer v. Zoning Board of Appeals of Norfolk, the Appeals Court examined whether the doctrine applies to property owned by a realty trust where a trustee owns abutting property individually.  The Appeals Court disagreed with the way the Land Court […]

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June 13, 2018

Troubleshooters and Why Words Matter: Appeals Court Overturns Board’s Interpretation of Zoning Bylaw
Zoning
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As municipalities assert more control over development, zoning bylaws become more complex. And as mechanics, programmers, and lawyers all know, when there are many parts, there are many more opportunities for things to go wrong. Hence, the value of troubleshooting. Provincetown learned this the hard way. In Sinaiko v. Zoning Board of Appeals of Provincetown, […]

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May 23, 2018

Mass. Appeals Court Ventures Onto High Wire of Zoning Standing Doctrine, Answers Vexing Question
Zoning
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It’s about time!  Not since the notable 1961 adverse possession case Kershaw v. Zecchini have real estate litigators had an important decision inspired by circus performers. In its recent decision in Murrow v. ESH Circus Arts, LLC, the Appeals Court answers a question that concurring Justice Peter J. Rubin notes “has vexed the judges of the trial court, who have reached different conclusions about […]

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April 23, 2018

Appeals Court Interprets Chapter 91 License as Extending Private Way Over Lawfully Filled Land
Chapter 91, Easements
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The Appeals Court’s recent decision in Maslow v. O’Connor at first glance appears straightforward. The holding reiterates a familiar tenet of Chapter 91 licensing – that a Chapter 91 license doesn’t affect pre-existing property rights. But the result is quirky: in the name of preserving access to tidelands, the court in effect extends a private […]

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March 22, 2018

Mass. SJC Expands Time for Bringing Property Damage Claims Under Chapter 21E
Environmental
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Lawsuits to recover cleanup costs and property damages resulting from environmental contamination can be expensive and time-consuming. Plaintiffs should be sure their claims are timely before embarking on the litigation path. M.G.L. c. 21E (Chapter 21E), the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, contains a statute of limitations provision, Section 11A. […]

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March 02, 2018

Roma, III, Ltd. v. Board of Appeals of Rockport: Did the Supreme Judicial Court “Pave the Way” for Local Control of Drones?
Land Use, Zoning
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Earlier this year, the Supreme Judicial Court (SJC) issued a relatively straightforward decision concerning heliports, home rule authority, and preemption – Roma, III, Ltd. v. Board of Appeals of Rockport (pdf). The decision held that a municipality could exercise its home rule authority to regulate private heliports and other non-commercial aircraft landing areas, and that […]

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December 05, 2017

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

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December 04, 2017

Mass. SJC Says Chapter 40B Doesn’t Authorize Override Of Municipally-Held Property Restriction
Affordable Housing, Restrictions, Zoning
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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 […]

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