Real Estate

  • May 26, 2021

Somerville Urban Renewal Taking Survives Challenge

Eminent Domain, Urban Renewal
Authors:
Practice area:
Industries:

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

Continue Reading...
  • April 19, 2021

Fate of Municipal Harbor Plans Thrown Into Question

Chapter 91
Authors:
Practice area:
Industries:

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

Continue Reading...
  • March 05, 2021

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

Zoning
Practice area:
Industries:

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

Continue Reading...
  • September 30, 2020

Mass. High Court Declines to Expand Prior Public Use Doctrine

Easements, Real Estate
Authors:
Practice area:
Industries:

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

Continue Reading...
  • July 24, 2020

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

Construction, Environmental, Real Estate
Practice area:
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

Continue Reading...
  • July 21, 2020

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

Zoning
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

Continue Reading...
  • June 23, 2020

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

Mortgages
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

Continue Reading...
  • June 10, 2020

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

Environmental
Authors:
Practice area:
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

Continue Reading...
  • May 22, 2020

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

Real Estate
Authors:
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, §

Continue Reading...
  • May 06, 2020

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

Construction, Real Estate
Authors:
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
Continue Reading...