• 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 permit under M.G.L. c. 40B.  Chapter 40B is the Massachusetts statute that promotes the construction of affordable housing.

In 2014, a developer, 135 Wells Avenue LLC, applied to the City of Newton Zoning Board of Appeals (ZBA) for a comprehensive permit to build a 334-unit residential development on a 6.3-acre lot in the city’s Wells Avenue Office Park. The lot is part of a larger parcel that is subject to a property restriction held by the city.  This restriction limits the permissible uses on that larger parcel to certain uses allowed in Newton’s limited manufacturing zoning district.  Residential uses are not allowed.  The developer argued that the

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  • November 16, 2017

Mass. Appeals Court Rebuffs Mortgagee’s Novel Bid For Equitable Subrogation

Mortgages
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In its decision yesterday in Wells Fargo Bank v. Comeau (pdf), the Massachusetts Appeals Court rejected the plaintiff mortgagee’s attempt to use the doctrine of equitable subrogation in a novel way:  to impose on a surviving wife the obligation to pay a note signed by her late husband where the wife had not signed either the note or the mortgage.

The boiled down facts are as follows.  Husband and wife owned a home as tenants by the entirety.  In 2003 the property was mortgaged to a local bank.  Husband alone signed the note; husband and wife signed the mortgage.  In 2005 husband refinanced with a different bank.  This time husband alone signed both the note and mortgage.  In 2008 husband died, leaving a balance due on the note.  Wells Fargo, successor of the refinancing bank, did not assert a claim against husband’s estate before the statute of limitations expired.  Instead Wells Fargo sued wife, claiming its mortgage should be equitably subrogated to the position

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  • November 08, 2017

When is a park constitutionally protected parkland? Mass. SJC re-examines test under Article 97

Article 97, Restrictions
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In a decision of interest to municipalities, conservation groups, and land use experts, the Massachusetts Supreme Judicial Court (SJC) recently decided that a public playground in the City of Westfield is parkland protected by Article 97 of the Amendments of the Massachusetts Constitution.  Art. 97 provides, in part, that property “taken or acquired” for conservation purposes “shall not be used for other purposes” without approval by a two-thirds vote of each branch of the state legislature.  In Smith v. City of Westfield, the SJC expanded the reach of Art. 97 by concluding that municipal parkland may be protected even without a recorded restriction, provided the land has been dedicated as a public park.

The case concerned the Cross Street Playground in Westfield, a 5.3 acre parcel that is home to two baseball fields and a playground.  It has been a public playground for more than 60 years.  In 1979, Westfield received a grant from the federal government under the Land and Water

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  • October 23, 2017

The Limits of Exclusive Use Rights in Condominium Common Areas

Condominiums
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It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units.  This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar spaces that are affiliated with, but outside of, a unit.  But how exclusive is an exclusive use area?  The Massachusetts Appeals Court answered this question in a recent decision.

Calvao v. Raspallo (pdf) involved a two-unit residential condominium in Dennis, “down the Cape.”  The defendant Raspallo made some renovations to her unit, including an addition that encroached by 111 square feet into the exclusive use common area next to her unit.  She obtained permits for this work after the developer appointed her sole trustee of the condominium.  The owners of the other unit, the Calvaos, sued in Superior Court, where a judge ruled that Raspallo’s appointment as sole trustee was invalid and ordered the addition removed.  Raspallo appealed.

The Appeals Court first

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  • September 22, 2017

Perpetual Easement or Expired Restriction? Mass. Appeals Court Weighs In

Easements, Restrictions
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In its decision this week in Perry v. Aiello, the Massachusetts Appeals Court addresses an interesting question: whether a 1947 grant of easement-like rights created an affirmative easement, which can be perpetual, or a disfavored restriction whose duration is limited by sections 26-30 of M.G.L. c. 184.

The case involved a dispute between two storied Boston institutions:  DeLuca’s Market, a high-end grocery store that’s been in the same spot at the foot of Beacon Hill for over 100 years, and King’s Chapel, which dates back a bit further – as in 1686.  DeLuca’s, King’s Chapel, and another abutter share the use of a ten-foot-wide passageway between their buildings (the King’s Chapel building is a nice old brownstone, not the historic chapel itself, which is across town).  Fee ownership of the passageway is divided in half, with the abutters on each side owning to the center line.

In 1947, the parties’ predecessors entered into an agreement

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  • May 23, 2017

Breaking: Mass. SJC Overhauls SLAPP Statute Practice

SLAPP Suits
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The Supreme Judicial Court (SJC) today issued two decisions which together make important changes in how Massachusetts courts apply the often troublesome SLAPP statute, M.G.L. c. 231, § 59H, enacted in 1994. While of general application, the SLAPP statute often surfaces in disputes over real estate development.

Today’s decisions are dense and will require further study, but at first glance Blanchard v. Steward Carney Hospital, Inc. (pdf) is the more dramatic of the two. Massachusetts courts have long recognized that, as drafted, the reach of the SLAPP statute is not limited to classic SLAPP suits – weak or baseless cases brought primarily for the purpose of chilling a defendant’s legitimate “petitioning activity” – but extends to virtually any claim asserted in response to petitioning activity. After over 20 years of decisions construing the statute, Blanchard directly addresses this scope issue. As the SJC puts it, “[u]nder current case law, the inquiry ends without permitting confirmation that the fundamental

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  • May 08, 2017

In Self-Renewing Lease, Tenant Has Burden of Proving Timely Termination

Commercial Leases
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In a case of interest to commercial landlords and tenants, the Massachusetts Appeals Court recently ruled that where a commercial lease is self-renewing but can be terminated on six-months’ notice to the other side, the party seeking to terminate – in this case the tenant – has the burden of proving it timely exercised its right.

Patriot Power, LLC v. New Rounder, LLC is a classic “she said-she said” dispute.  The parties’ lease provided that it would automatically renew for successive terms of one year unless either party served on the other written notice of its intent not to renew at least six months before the expiration of the then-current term.  About two weeks before the six-month deadline, the tenant sent the landlord a Federal Express envelope containing documents the landlord had requested in connection with its refinancing of the property.  At trial, the tenant’s executive assistant testified that she had “no doubt at all” that, in addition to the refinancing documents,

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  • March 16, 2017

Safety Issue Can Be “Hardship” Justifying A Zoning Variance

Variances, Zoning

The Massachusetts standard for granting a zoning variance is notoriously difficult to meet.  In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography of the land; which (2) especially affect the land but not the zoning district generally; (3) literal enforcement of the zoning ordinance would cause a substantial hardship (financial or otherwise); and (4) relief can be granted without substantial detriment to the public good; (5) without nullifying or substantially derogating from the intent or purpose of the ordinance.  See M.G.L. c. 40A, § 10.  Each requirement must be met and the courts tell us variances should be “sparingly granted.”  As a result, while zoning boards issue variances with some frequency, the percentage of those variances that meet the standard and would survive judicial scrutiny is relatively small.  A new, easier-to-meet variance standard is a perennial feature of the zoning reform bills that are introduced each year in the Legislature and, so

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  • November 22, 2016

No Prescriptive Easement Over Registered Beach Lots That Expanded By Accretion

Easements, Registered Land

In an important decision for owners of waterfront property, a divided Appeals Court panel has ruled in a case of first impression that where registered land expands by accretion, the owner need not return to court to separately register the accreted land.  As a result, that land enjoys the same protection against adverse claims as the originally registered parcel.

Cape Cod beachIn Brown v. Kalicki (pdf), the plaintiffs were owners of adjoining beach lots in Harwich, Massachusetts.  The lots were registered in the 1920s and 1930s and each lot’s southern boundary was “Nantucket Sound.”

Over the ensuing decades, accretion caused the beach to expand seaward by some 350 feet.  In 2011, the owners filed so-called “supplemental petitions” asking the Land Court to determine the sidelines of the expanded lots.  Several Harwich residents intervened in those cases and objected, claiming they had acquired a prescriptive easement to use the beach.  The status of the accreted land as registered – or not – was critical,

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SJC Keeps Bright-Line Test for Overloading of Easements

Easements

In its recent decision in Taylor v. Martha’s Vineyard Land Bank Commission (pdf), the Supreme Judicial Court (SJC) put the brakes on a trend toward eliminating bright lines in the enforcement of easement rights.

The Facts

The case involved a nature preserve on Martha’s Vineyard encompassing the famed Gay Head cliffs (pictured).  The Martha’s Vineyard Land Bank Commission (Land Bank), which owns and manages the preserve, has an easement over the grounds of a nearby inn owned by Taylor Realty Trust (Trust), connected to the equally famed singing Taylor family.  In 2010 the Land Bank created a looped hiking trail that runs across the Trust’s property onto three Land Bank-owned lots that are benefited by the easement and then continues onto a fourth Land Bank-owned lot that is not benefited.

The Land Court Case

The Trust, invoking the black-letter rule that an easement can’t be used to benefit land

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