Real Estate

Mass. SJC adopts “totality of the circumstances” test to determine whether municipal land is held for a specific purpose

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In its recent decision in Carroll v. Select Board of Norwell (pdf), the Massachusetts Supreme Judicial Court (SJC) reaffirmed that where town-owned land is held for a specific purpose, M.G.L. c. 40, § 15A dictates that it cannot be diverted to another inconsistent use until the “board or officer having charge” of the land determines it is no longer needed for that specific purpose. In so ruling the SJC added a test to determine whether such land is being held for a specific purpose. While past cases indicated that, in addition to a legislative act, a recorded instrument restricting the parcel’s use was required, Carroll clarifies that courts must examine the “totality of the circumstances” to determine if land has been held for a specific purpose.

In Carroll, residents of Norwell (the Town) – lobbied by neighbors of the Town land at issue – voted at the 2021 Town Meeting to transfer a Town-owned parcel to the

Massachusetts High Court Reaffirms “Single Look Doctrine” For Evaluating Liquidated Damages Clause in Commercial Leases

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Last week the Supreme Judicial Court of Massachusetts (SJC) held that, despite defaulting only one month into its five-year lease, a commercial tenant is bound by a liquidated damages clause requiring a lump-sum payment of all rent due during the remainder of the lease term. As set forth in Cummings Properties, LLC v. Hines, Massachusetts Constable’s Office Inc. (MCO), entered into a five-year office lease with Cummings Properties, LLC (Cummings).  The defendant Hines, the founder and sole director of MCO, personally guaranteed MCO’s lease obligations, including full payment of rent. One month into the term, MCO lost an important business contract and failed to pay rent the following month. Cummings began eviction proceedings in the state District Court, and one year after MCO vacated the premises, Cummings entered into a four-year lease with a new tenant.

Cummings filed suit in Superior Court against Hines to enforce his obligations as guarantor of the lease. The lease contained a liquidated damages clause that provided the

Does the 9th Circuit’s rejection of Berkeley, CA’s municipal gas ban spell doom for Massachusetts’ own gas-banning “Demonstration Program”?

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We bring to your attention this post by our colleague Randy Rich of Pierce Atwood’s Energy Infrastructure Group on the 9th Circuit’s decision earlier this week in California Restaurant Association v. City of Berkeley, No. 21-16278. The court decided that the federal Energy Policy and Conservation Act, 42 U.S.C. § 6297(c), preempts the City of Berkeley’s ordinance banning natural gas piping within newly constructed buildings. Interestingly, the Commonwealth of Massachusetts was part of a group of states that filed an amicus brief urging the 9th Circuit to find no federal preemption and thus uphold the Berkeley ordinance.

Although the 9th Circuit’s decision isn’t legally binding here, we wonder how it will affect efforts to ban the use fossil fuels in the Commonwealth. Section 84 of Chapter 179 of the Acts of 2022 (pdf) authorizes the Mass. Department of Energy Resources (DOER) to establish a demonstration program allowing 10 cities and towns to adopt general or zoning

Mass. SJC: $3.5 Million Payday for Torrent of Errant Golf Balls Not a Fore-Gone Conclusion

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A Kingston couple was dealt a significant blow days before Christmas when the Supreme Judicial Court (SJC) set aside a jury verdict awarding them $3.5 million in damages for errant golf balls hitting their property. In Tenczar v. Indian Pond Country Club, Inc. (pdf), the SJC ruled that the trial judge erred in his jury instructions concerning easements applicable to the property. The plaintiffs’ home was subject to an easement providing for the “reasonable and efficient operation” of a golf course in the “customary and usual manner,” but the trial judge didn’t present to the jury the question of whether the golf course’s operation met that standard. So the question remains, how many errant shots on the 15th hole at the Indian Pond Country Club are reasonable?

The Kingston Planning Board endorsed a subdivision plan in the fall of 1998 for a residential development surrounding a golf course. The subdivision developer, Indian Pond, recorded a declaration of covenants and restrictions shortly

And Environmental Justice for All? Mass. High Court Clarifies Application of EJ Policy

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In GreenRoots, Inc. v. Energy Facilities Siting Board, the Massachusetts Supreme Judicial Court (SJC), for only the second time, had an opportunity to interpret the Environmental Justice Policy (EJ Policy) promulgated by the Executive Office of Energy and Environmental Affairs (EOEEA). The first time, in the 2014 case City of Brockton v. Energy Facilities Siting Board, the SJC decided, first, that the Energy Facilities Siting Board’s (EFSB) application of the EJ Policy was subject to judicial review, despite the EJ Policy’s express disclaimer that it doesn’t create any right to judicial review, and second, that agencies must provide greater public participation and increased scrutiny for projects near EJ populations that exceed certain environmental thresholds.

In GreenRoots the SJC clarified the second takeaway from City of Brockton, holding that the EFSB and other agencies under EOEEA’s purview must provide “enhanced public participation” and “enhanced analysis of impacts and mitigation” for projects that

Mass. High Court Clarifies Scope of New Zoning Act Bond Provision

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The Supreme Judicial Court (SJC) last week gave real estate litigators an early holiday gift: an important, clarifying opinion on a recent amendment to Section 17 of M.G.L. c. 40A (the Zoning Act), which governs appeals to court from decisions of local zoning boards. The case is Marengi v. 6 Forest Road, LLC (pdf).

In 2020, as part of a wide-ranging economic development bill intended to spur housing production, the Legislature added (effective January, 2021) the following paragraph to Section 17:

The court, in its discretion, may require a plaintiff in an action under this section appealing a decision to approve a special permit, variance or site plan to post a surety or cash bond in an amount of not more than $50,000 to secure the payment of costs if the court finds that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or

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