Real Estate

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

Authors:
Industries:

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

Authors:
Practice area:
Industries:

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

Under Massachusetts Obsolete Mortgage Statute, Mortgage Payable “On Demand” is Enforceable for 35 Years

Authors:
Practice area:
Industries:

The Massachusetts Appeals Court decided last week that a mortgage stating it is payable “on demand,” with no maturity date or term, is governed by the so-called obsolete mortgage statute, M.G.L. c. 260, § 33. The case is Thornton v. Thornton and a link to the decision is here. The obsolete mortgage statute is designed to help remove old mortgages from land titles. It sets a term of 35 years from the mortgage recording date if the mortgage has no term or maturity date, or five years from the end of any stated term or maturity date. The time to enforce a mortgage can be extended by recording an affidavit that the mortgage is not satisfied, among other methods. As the Appeals Court has confirmed in Thornton, the obsolete mortgage statute cannot shorten the term of any mortgage. In this case, the related note did have a maturity date, but there was no reference to

First Circuit Compressor Station Decision Vacates DEP Air Permit, Addresses Environmental Justice and Noise Issues

Industries:

On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) and remanded the matter to the agency for further analysis. The case is Town of Weymouth v. Massachusetts Department of Environmental Protection. The First Circuit’s decision is linked here.

The case involves a fiercely opposed compressor station planned for existing industrial property in Weymouth, Massachusetts. This compressor is critical to Algonquin Gas Transmission’s Atlantic Bridge project, which will move natural gas from the Boston area to a new connection in Beverly, Massachusetts, to then be transported to consumers in New Hampshire, Maine, and New Brunswick.

The Town of Weymouth and other petitioners challenged many aspects of the air permit, and succeeded in forcing DEP to revisit its BACT (best available control technology) analysis. My colleagues Randy Rich and Emily Dupraz discuss the environmental and energy law implications of the decision

In Massachusetts, Defendant Who Prevails on Special Motion to Dismiss Lis Pendens Case Can Recover Appellate Attorneys’ Fees

Practice area:
Industries:

In its decision last week in DeCicco v. 180 Grant Street, LLC, the Massachusetts Supreme Judicial Court (SJC) answered a previously open question, confirming that a defendant who successfully moves to dismiss a complaint in which the plaintiff obtained a lis pendens is entitled to recover not only its trial court attorneys’ fees but also the fees it incurs on appeal, assuming the trial court’s decision is affirmed.

In DeCicco, the plaintiffs made a written offer to purchase the defendant’s property. The defendant accepted the offer but refused to complete the transaction. The plaintiffs filed suit for, among other things, breach of contract and specific performance, and obtained court approval of a memorandum of lis pendens. This is a document that gets recorded at the registry of deeds to provide public notice that the land at issue is the subject of a lawsuit that may affect its title.

Under the Massachusetts lis pendens statute, M.G.L. c. 184, §

Breaking: City of Boston Announces New Protocol for Resumption of “Essential” Construction This Month

Practice area:
Industries:

Late yesterday Boston Mayor Marty Walsh’s office announced a new protocol for re-starting city construction projects deemed “essential.” In mid-March, in response to the COVID-19 pandemic, Walsh ordered most construction in the city to cease. Since April 27, 2020, all projects involving essential construction have been required to file with the city a COVID-19 Safety Plan and an affidavit pledging to implement that plan. Starting yesterday, projects with approved safety plans and signed affidavits were allowed to begin preparing their construction sites with project-specific COVID-19 safety measures.

Under the new protocol, starting May 18, 2020, projects that (1) have all necessary permits in place, (2) have approved safety plans and signed affidavits on file, and (3) are sufficiently prepared to implement their safety plans, can resume construction, but only if the work is for:

  • hospitals;
  • public schools;
  • residential buildings of 1-3 units;
  • road and utility work; or
  • “other outdoor/open-air work such as steel

Breaking: Mass. High Court Rules Municipality’s Acquisition of Prescriptive Easement Isn’t a Taking

Practice area:
Industries:

In a rescript opinion issued this morning in Gentili v. Town of Sturbridge (pdf), the Supreme Judicial Court (SJC) ruled that a municipality’s acquisition of a prescriptive easement over private property is not an eminent domain taking.  In prior proceedings in Gentili, the Land Court ruled that the defendant town had acquired a prescriptive easement to discharge surface water through a culvert onto the plaintiffs’ property. Instead of appealing, the plaintiffs filed a Superior Court case seeking damages under M.G.L. c. 79, the state’s eminent domain statute. The Superior Court granted summary judgment to the town and the plaintiffs appealed. The SJC transferred the appeal to itself for decision.

In briskly affirming the Superior Court, the SJC said, “[t]he problem with the [plaintiff] trust’s argument is that the theories and laws of prescriptive easements and takings do not interact in the way that the trust suggests.” Citing the U.S. Supreme Court’s 1982 decision in Texaco, Inc.

This Land (Was) Your Land: Mass. Appeals Court Updates Law on Adverse Possession and Prescriptive Easements

Authors:
Practice area:
Industries:

In the second half of this year the Massachusetts Appeals Court decided three cases in which a party claimed adverse possession or prescriptive rights in real estate. In each case the focus was on one particular element of all such claims:  actual use of the subject property. And in each case the Appeals Court focused on the character of the property in question, and what constitutes typical or normal use of such property. These cases strengthen the rule that if the claimant’s adverse use is a typical use for the type of property at issue, even relatively modest uses that are sustained for 20 years may be enough to acquire permanent rights.

The first case the Appeals Court decided was Barnett et al. v. Myerow, which involved a long-running dispute between groups of landowners on Martha’s Vineyard in which one group claimed a prescriptive right to use a beach. The court reiterated that to acquire prescriptive rights the plaintiffs must

Appeals Court Registers Objection to Superior Court Judgment Affecting Registered Land

Practice area:
Industries:

The Appeals Court’s decision yesterday in Johnson v. Christ Apostle Church, Mt. Bethel (pdf) is a useful reminder that the Land Court’s jurisdiction over cases affecting title to registered land is exclusiveJohnson involved a dispute between the plaintiff homeowner and a neighboring church over Johnson’s longstanding use of a driveway on the church’s property for parking and for access to Johnson’s property. After years of amicable relations, in 2013 the church erected a six-foot fence along the property line that prevented Johnson from continuing to use the driveway. Johnson filed suit in Superior Court alleging that the fence was an unlawful “spite fence” under M.G.L. c. 49, § 21, which makes such fences a form of private nuisance. She also brought claims of negligence and adverse possession. The case went to trial solely on the nuisance claim, and the judge found for Johnson and ordered the church to install a series of gates in the fence to

Mass. Appeals Court Highlights Workaround for Identifying a Public Way

Authors:
Practice area:
Industries:

The quality of a property’s frontage on a street or way can define its development potential and therefore its value. The gold standard, which will allow a comfortable check in the ‘frontage’ box in most Massachusetts municipalities, is having the amount of frontage required by the local zoning regulation on a public way. Not every city and town has a clean list of public ways, and there are often cost-based disincentives to declaring a way to be public when the status is unclear. An Appeals Court case decided last week, Barry v. Planning Board of Belchertown (pdf), confirms that there’s a seldom-discussed method of establishing that property fronts on a public way – estoppel.

There are three means of creating a “public” way in Massachusetts. See Fenn v. Town of Middleborough. The first method fell out of use in 1846 due to a change in the law. This involved dedicating the way to public use and the public accepting