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 exclusive. Johnson 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
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
Mass. SJC Reaffirms that Zoning Exemption for Educational Uses is Expansive; Residential Psychiatric Program for Adolescents Easily Qualifies
In a noteworthy decision today, the Supreme Judicial Court (SJC) reaffirmed that the exemption in the state’s Zoning Act, M.G.L. c. 40A, for uses deemed to be “for educational purposes,” is construed very broadly. That exemption, which appears in Section 3 of Chapter 40A and is known as the Dover Amendment, provides in relevant part that:
[n]o zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes or educational purposes on land owned or leased by . . . a religious sect or denomination, or by a nonprofit educational corporation . . . .
The statute goes on to say that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures, yard sizes, lot area, setbacks, open space, etc.
In The McLean Hospital Corp. v. Town of Lincoln (pdf), the high court considered a
UPDATE: Mass. High Court Takes Plaintiff Out of Game, Upholds Boston’s Transfer to Red Sox of Easement Rights Next to Fenway Park
In my post last week on Pishev v. City of Somerville (pdf), I mentioned that the Supreme Judicial Court (SJC) would be soon deciding another important urban renewal case, Marchese v. Boston Redevelopment Authority. It turns out “soon” was the next day.
In its September 13, 2019 decision (pdf) in Marchese, the SJC upheld actions taken by the Boston Redevelopment Authority (BRA) with respect to what is known as a “demonstration project” under the provisions of M.G.L. c. 121B, section 46(f). This case focused on a permanent taking by the BRA of easement rights in Yawkey Way (now known as Jersey Street), and the transfer of those easement rights to the Boston Red Sox for so long as baseball games are played at Fenway Park.
The plaintiff, Marchese, challenged the taking and the conveyance, alleging that the area was
In 2012, the City of Somerville, the Somerville Redevelopment Authority (SRA), and the Massachusetts Department of Housing and Community Development approved the Union Square Revitalization Plan (the Plan), an urban renewal plan to be administered by the SRA under M.G.L. c. 121B. A taxpayer group and a landowner (Pishev) appealed the approval of the Plan, alleging that it violates Chapter 121B. In late July the Appeals Court upheld the Plan’s approval in Pishev v. City of Somerville (pdf), 95 Mass. App. Ct. 678 (2019).
Pishev’s property is identified as a parcel subject to eminent domain taking by the SRA under the Plan pursuant to the powers granted to the SRA by Chapter 121B. The Appeals Court first addressed the issue of standing and found that the taxpayer group did not have standing, citing St. Botolph’s Citizens Committee, Inc. v. Boston Redevelopment Authority (pdf) and finding that “[n]o sufficient causal or connective link exists between the injuries or
Two bills pending at the Massachusetts State House would amend the state Zoning Act, known as Chapter 40A, which governs zoning in every Massachusetts city and town except Boston. The Zoning Act is seldom amended, even though courts and land use lawyers are well aware of its shortcomings. This is no doubt because zoning is often a hotly-contested political issue. But commonsense changes to Chapter 40A, while difficult to accomplish, can yield significant benefits for all concerned with real estate development in the Commonwealth.
Will Standing Determination be Front-loaded?
A bill introduced in the Massachusetts Senate, Senate Bill 1024 (pdf), tackles one of the most vexatious aspects of zoning for developers – the standing of abutters to sue. Standing is a prerequisite for filing a case in court; generally speaking, to have standing to sue, plaintiffs must show they’re harmed or that their rights are impacted in some material way. In other contexts a defendant can quickly move to dismiss
Breaking: Mass. SJC Holds That Real Estate Statute of Repose Bars Tort Claims Arising From Asbestos Exposure After Six Years
In a decision of great importance to property owners, developers, architects, engineers, and contractors, the Massachusetts Supreme Judicial Court (SJC) this morning ruled that the state’s six-year statute of repose, M.G.L. c. 260, § 2B, applies to tort claims based on asbestos exposure and other diseases with long latency periods. The decision is Stearns v. Metropolitan Life Insurance Company.
The statute of repose applies to “Action[s] of tort for damages arising out of any deficiency in the design, planning, construction or general administration of an improvement to real property . . .” and states, “in no event shall such actions be commenced more than six years after the earlier of the dates of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking possession for occupancy by the owner.”
Unlike statutes of limitation, which start to run when a claim “accrues” (generally when the injured party becomes aware of the
When Your Neighbor’s Tree Blots Out the Sun, Can You Force Them to Take It Down? Not In Massachusetts
Imagine owning your dream house. You have your pool, your barbeque area, your big lawn for the kids to play on. You’ve worked your whole life for this, and now you have it. It’s perfect. Well, except for your neighbor’s overgrown 100-foot tall sugar oak. It’s so massive it blots out the sun. Your yard is bathed in perpetual shade. Your roof is covered in moss. You’re pretty sure you could grow mushrooms commercially. You complain to your neighbor. You mention cutting it down, or at least trimming it back. He laughs at you. That’s your breaking point. You’ve had enough. It’s time to sue him, right? Sure – just not in Massachusetts.
A case called Shiel v. Rowell (pdf) presents the age-old question of how society should resolve pesky disputes between neighbors involving trees. Should the courts impose reciprocal responsibilities on the neighbors, requiring them to consider the harm their healthy tree may cause to their neighbors
The merger doctrine is alive and well in Massachusetts zoning law. In its recent decision in Kneer v. Zoning Board of Appeals of Norfolk, the Appeals Court examined whether the doctrine applies to property owned by a realty trust where a trustee owns abutting property individually. The Appeals Court disagreed with the way the Land Court applied the doctrine, but remanded the case for additional factual findings to sort out whether the merger doctrine should apply.
Under the merger doctrine, a nonconforming lot that is held in common ownership with an adjoining lot may be deemed “merged” with the adjoining lot to the extent necessary to reduce or eliminate the nonconformity. Case law recognizes that adjoining lots can merge even if they’re nominally owned by different entities. For example, in Planning Board of Norwell v. Serena, a married couple, attempting to avoid the effects of an anticipated change to the zoning bylaw, owned one lot as co-trustees of
Troubleshooters and Why Words Matter: Appeals Court Overturns Board’s Interpretation of Zoning Bylaw
As municipalities assert more control over development, zoning bylaws become more complex. And as mechanics, programmers, and lawyers all know, when there are many parts, there are many more opportunities for things to go wrong. Hence, the value of troubleshooting.
Provincetown learned this the hard way. In Sinaiko v. Zoning Board of Appeals of Provincetown, the building inspector’s interpretation of a zoning bylaw prevailed before the local zoning board and the Superior Court, only to be overturned by the Appeals Court because the bylaw had not been de-bugged.
Sinaiko concerns a zoning bylaw intended to regulate the size of all new buildings and additions in Provincetown – an effort to ensure a “relatively consistent and harmonious scale within neighborhoods.” The bylaw limits the size of by-right construction of a new building or expansion of an existing building. For new construction, the by-right limit is 25% larger than the average size of buildings within 250 feet of the “center of the