Real Estate

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

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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

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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

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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

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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

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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

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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.

Jersey Street, outside Fenway Park

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

Mass. Appeals Court Upholds Somerville’s Union Square Revitalization Plan

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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

Mass. Legislature Weighs Changes to Zoning Act; Quick Decision on Plaintiff’s Standing is Proposed

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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

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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

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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