Land Use

Mass. Appeals Court Ventures Onto High Wire of Zoning Standing Doctrine, Answers Vexing Question

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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 it.”  In zoning appeals under M.G.L. c. 40A (the Zoning Act), plaintiffs may have the benefit of a rebuttable presumption that they are “persons aggrieved” – meaning they have standing to appeal.  This judicially-created presumption, which originated in the 1957 case Marotta v. Board of Appeals of Revere, is conferred on “parties in interest” as described in Section 11 of the Zoning Act.  Section 11 defines “parties in interest” as:

the petitioner [i.e., the applicant for zoning relief], abutters, owners of land directly opposite on any public or private

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

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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 otherwise enforceable restriction cannot be enforced after 30 years:

unless . . . provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty percent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument . . . .

Berger

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

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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

The Limits of Exclusive Use Rights in Condominium Common Areas

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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

Breaking: Mass. SJC Overhauls SLAPP Statute Practice

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

SJC Keeps Bright-Line Test for Overloading of 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