Real Estate

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

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

Somerville Urban Renewal Taking Survives Challenge

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In Cobble Hill Center LLC v. Somerville Redevelopment Authority (pdf), the Massachusetts Supreme Judicial Court (SJC) upheld the eminent domain taking by the Somerville Redevelopment Authority (SRA) of 3.99 acres of land located at 90 Washington Street in Somerville.

Cobble Hill, the owner of the parcel, argued that the taking was improper because there was no approved urban renewal plan that covered its property, and the SRA could only take by eminent domain property that is included within an approved urban renewal plan.  The SRA countered that the provisions of M.G.L. c. 121B, § 46(f) (§ 46(f)) authorized the taking.

Takings by the Boston Redevelopment Authority (BRA) under § 46(f) were the subject of a 2019 SJC opinion in Marchese v. Boston Redevelopment Authority, in which the court upheld the BRA’s taking of easement rights which rights were then transferred to the Boston Red Sox for use for Fenway Park.  While Marchese

Fate of Municipal Harbor Plans Thrown Into Question

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The Superior Court’s April 1, 2021 decision in Armstrong v. Theoharides (pdf) was no April Fool’s joke and could have far-reaching consequences for Massachusetts waterfront development.  In a case against the Secretary of Energy and Environmental Affairs (EEA) brought by the Conservation Law Foundation and residents of the Harbor Towers condominium complex in Boston, the court sided with the plaintiffs and found that the Secretary exceeded her authority in approving the Boston Downtown Waterfront District Municipal Harbor Plan (the Boston Waterfront MHP). That approval would have allowed the construction of a 600-foot-tall tower at the site of what is now the Aquarium Garage, as well as the development of the Hook Lobster site, both on Atlantic Avenue in Boston.

Municipal Harbor Plans (MHPs) are codified in EEA regulations at 301 CMR 23.00 et seq. (the MHP Regulations) and affect licensing by the Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91), and its

Mass. Appeals Court Imports Chapter 40A Presumption of Standing into Boston Zoning Enabling Act

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A recent decision of the Massachusetts Appeals Court, Porter v. Board of Appeal of Boston (pdf), addressed the question of standing to appeal a variance granted by the Board of Appeal of Boston (“BOA”).  Zoning in Boston is governed by c. 665 of the Acts of 1956, as amended (the “Enabling Act”), not by M.G.L. c. 40A (the “Zoning Act”), which applies to all other cities and towns in Massachusetts. See Emerson College v. City of Boston, 393 Mass. 303 (1984).  In Porter, the Appeals Court applied to the Enabling Act standards and legal reasoning that are derived from unique language in the Zoning Act.  The court found that parties entitled to receive notice under the Zoning Act are presumed to have standing under the Enabling Act.

The pro se plaintiff in Porter appealed a variance granted to a nearby property owner. In his complaint, the plaintiff claimed to be

Mass. High Court Declines to Expand Prior Public Use Doctrine

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In its decision last week in Town of Sudbury vs. Massachusetts Bay Transportation Authority, the Massachusetts Supreme Judicial Court (SJC) declined to expand the reach of the common-law prior public use doctrine. As the court explained, “[u]nder this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.” In this case the Town of Sudbury sought to prevent the defendant Massachusetts Bay Transportation Authority (MBTA) from entering into an easement agreement with Eversource for the installation and maintenance of an underground transmission line on an unused 9-mile right of way, approximately 4.3 miles of which is located in Sudbury.

The Town of Sudbury urged the court to find that use of the right of way by Eversource violated the prior public use doctrine because the MBTA’s transportation use was inconsistent with the electric transmission line use by Eversource, which the Town argued

Breaking: Massachusetts Attorney General Strikes Down Municipality’s Attempt to Ban Gas Installations in Buildings

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On July 21, 2020, Massachusetts Attorney General Maura Healey struck down a by‑law passed by the Town of Brookline that would have disallowed most construction that included “fossil fuel infrastructure.” The Attorney General’s decision can be found here. This by-law would have prevented gas installations in new or substantially renovated buildings and would have required heat, hot water, and appliances to be all electric starting in 2021, with certain exemptions.

The Attorney General’s Municipal Law Unit is tasked with review of town by‑laws to assure they don’t conflict with state laws or the state constitution. This review is limited, and usually by-laws are approved unless there is a direct conflict. The Attorney General acknowledged the climate change policy behind the Brookline by-law, but confirmed that local laws cannot: (1) conflict with the state building code, (2) conflict with the state gas code, or (3) conflict with state law giving the Department of Public Utilities control over gas distribution.

The Supreme Judicial

Mass. Appeals Court Clarifies How Zoning Cases Can – and Can’t – Be Settled

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The Massachusetts Appeals Court recently decided that a settlement agreement resolving a zoning case brought by the Town of Bourne did not prevent neighbors from obtaining zoning enforcement inconsistent with that settlement. The case, Stevens v. Zoning Board of Appeals of Bourne, involved the use of a property in a residential zoning district as a wedding venue (commercial uses were not allowed). There were two sequential cases involving challenges to the use.

The first case arose from the building inspector’s cease and desist order to the property owner requiring a complete halt to the commercial use. The Town then brought a case in Land Court to enforce the order. That case was settled by an agreement between the Town’s administrative board and the property owner. The settlement agreement included dismissal of the Land Court case with prejudice. Critically, the Land Court did not decide whether the challenged use was lawful. The Building Inspector issued a new cease and desist order consistent with the