Maine Appeals
Massachusetts Dirt and Development Law
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 […]

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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. […]

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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 […]

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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 […]

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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 […]

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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 […]

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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. In Brown v. Kalicki (pdf), […]

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November 09, 2016

SJC Keeps Bright-Line Test for Overloading of Easements
Easements
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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), […]

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