Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

BOSTON’S DOWNTOWN WATERFRONT PLAN DEBUTS

Posted in Boston Development, Environmental, Waterfront Property

A1306739The Boston Planning and Development Agency recently released the Downtown Waterfront District Municipal Waterfront Plan (the “Waterfront Plan”).  While virtually the entire Boston Harbor Waterfront is subject to Chapter 91 jurisdiction, municipalities are allowed to modify Chapter 91 regulations, as recently amended and promulgated by MassDEP, by enacting municipal harbor plans.  In return for the regulatory flexibility, municipal harbor plans create a combination of baseline requirements, amplifications, substitute provisions and offsets of Chapter 91 regulations.

Put in simplistic terms, municipal harbor plans work by requiring that new nonwater dependent projects provide baseline public benefits found in the Chapter 91 regulations, such as pedestrian access (e. g., Harborwalk) and facilities of public accommodation (e.g., retail uses open to the general public).  The baseline public benefits are “amplified” with improvements to the public realm, protection of water dependent uses and enhanced climate resiliency measures.  Substitute provisions to Chapter 91 regulations are implemented for new projects that exceed Chapter 91 standards, such as building height and lot coverage.  In return for substitute provisions to allow more height and density, new projects are required to provide offsets to ensure that waterfront access and public use is promoted with equal or greater effectiveness than what is required by Chapter 91.

Many years in the making, the Waterfront Plan encompasses the 42+ acres of flowed and filled tidelands located between the Rose Fitzgerald Kennedy Greenway and Boston Harbor, which is comprised of 26 properties (see the planning area at A1306760 pdf).  Notably, the Waterfront Plan sets flexible development standards for two prominent waterfront parcels, the Boston Harbor Garage site and the Hook Wharf site.  The more controversial parcel, the Boston Harbor Garage site, has been the subject of a very public stalemate between the developer, the City and neighbors, dating back to the Menino administration.  That stalemate seems to be approaching its end, as the Waterfront Plan allows for a new structure up to 600 feet tall with a 50% open space requirement to replace the existing monolithic parking garage that occupies the entire lot.

The Hook Wharf site will be allowed to construct a 305-foot tall structure with a 30% open space requirement.  In addition to those two parcels, another highly anticipated project within the Waterfront Plan area is the Old Northern Avenue Bridge Rehabilitation.  The bridge is a key gateway between Boston’s historic downtown and the rapidly growing South Boston Waterfront.  The City hosted an ideas competition to solicit concepts for the rehabilitation or replacement of the bridge in 2015, and an RFP is expected to be released soon.  The revitalization of the downtown waterfront should also greatly benefit the long-underutilized Rose Fitzgerald Kennedy Greenway – full activation of the Greenway is long overdue.  BPDA is accepting comments on the Waterfront Plan until April 21st.  Hopefully, battles over the Waterfront Plan will not be as intense, or prolonged, as the Boston Harbor Garage battle.

Sign Envy in Boston

Posted in Zoning

A1303420.The recent saving of the iconic Citgo sign in Kenmore Square is being universally hailed as the saving of a true Boston landmark.  Had it been taken down, thousands of people would be aimlessly wandering the city trying to find Fenway Park on game days.  The publicity surrounding the saving of the Citgo sign has brought the issue of how to obtain commercial sign approval in Boston to the forefront.

The epicenter of this issue is the Seaport, where new buildings and signs are rapidly filling in the skyline (Vertex, GE, PwC, etc.). Such prominent signs were next to impossible to get approved under the Menino administration.  While certainly easier to obtain approval under the Walsh administration, the city has not established extensive approval criteria and reviews sign requests on a case by case basis.  Unfortunately, this case by case review is causing a condition known as “sign envy” that can only be cured by having a sign visible from Mars.  Stay tuned.

Tenant Required to Prove that It Terminated Lease

Posted in Landlord-Tenant

dispute photo (A1302986.x7AB72)Earlier this week the Appeals Court decided that a tenant has the burden of proving that it properly exercised its option to terminate a written lease.  The commercial lease in Patriot Power, LLC v. New Rounder, LLC,  provided that it would renew automatically each  year unless one of the parties timely notified the other that it wished to exercise a termination option in the lease.  Importantly, the lease contained standard language that notices “shall be in writing and shall be sent by” specified means and “shall be effective when received, or if delivery is refused, upon first refusal.”

The tenant sent a package in the fashion required, and the landlord received that package before the notice of termination was due.  The dispute arose because, although the parties agreed on certain contents of that package, they disputed whether it also contained a termination notice from the tenant.  That dispute arose from conflicting testimony by administrative assistants–the tenant’s administrative assistant testified that she had “no doubt at all” that she included the termination notice in the package, whereas the landlord’s executive assistant was “absolutely certain” that no such notice was present.

In the face of this conflicting evidence, at trial it was important which party had the burden of proving to the jury whether or not the termination notice was in the package.  The trial judge instructed the jury that the landlord had the burden of proof, and the jury apparently concluded that the landlord failed to satisfy that burden and ruled in favor of the tenant.

The Appeals Court ruled that the trial judge got it wrong.  It reasoned that, because the tenant was required to take an affirmative action to terminate the lease, it had the burden of proving that the notice of termination was actually received.  The jury instruction was at odds with this ruling, so the Appeals Court sent the case back down for a new trial.

This ruling is consistent with the longstanding rule that someone seeking to exercise an option (typically an option to purchase or to extend a lease) is required to “turn his corners squarely” by complying with all contractual requirements.

This case is a reminder to all parties to a lease to keep strong records of key actions and notices.  Those records may be of critical importance should a dispute later arise.

 

 

Regulatory Taking, Anyone?

Posted in Environmental, Police Power, Regulatory Takings, Waterfront Property, Wetlands

 

A Cape Cod jury, after a scant one-hour deliberation, decided in favor of a Falmouth landowner who claimed that the Falmouth Conservation Commission’s refusal to grant variances from the Town’s Wetlands Protection Bylaw deprived her of all beneficial use of her Ocean front summer vacation rental under a blue sky. Outer Banks. North Carolina. Horizontal]-For more bodies of water images, click here. OCEAN LAKE RIVER and SHOREproperty. The jury in Smyth v. Falmouth Conservation Commission and the Town of Falmouth awarded Ms. Smyth the full amount of the decrease in her waterfront property’s value.  Successful regulatory takings cases are rare, and landowners and municipalities are sitting up and taking notice of this case.

By inheritance, Ms. Smyth owns a vacant lot in a 174-lot subdivision approved by the Falmouth Planning Board in 1968. Single-family homes have been built on nearly all of the lots.  Intending to build a retirement home, Ms. Smyth’s parents purchased the lot in 1975 before Falmouth adopted the Wetlands Bylaw and when construction of a single-family home was allowed as-of-right.

Several wetland resource areas are located on the lot, including a salt marsh and a coastal bank. Since the Smyth’s purchase of the lot, the Falmouth Conservation Commission adopted the Wetlands Bylaw.  As a result, by 2008 building a single-family home required that the Conservation Commission grant variances to allow construction within the “no disturbance” buffer zones of the salt marsh and coastal bank.  Without the variances, only 115 square feet of the 16,477 square foot lot is developable.  From 1975 to 2015, the Town assessed the lot as if it were buildable, 2015’s assessed value being $653,000.

In 2012, Ms. Smyth filed a Notice of Intent with the Commission which included a request for the necessary variances. The Commission denied her request and Ms. Smyth successfully obtained a superseding Order of Conditions from MassDEP approving her project, but the Conservation Commission continued to block the project.  Ms. Smyth then sued the Conservation Commission and the Town in Superior Court asserting that the Conservation Commission’s refusal to permit the construction of the house constituted a regulatory taking of her property and sought to recover the decrease in property value as damages.  During the five-day trial, the jury heard testimony from Ms. Smyth’s expert witness that due to the adoption and amendment of the Wetlands Bylaw since the time the Smyth’s purchased the property, the value of the lot decreased by about 92% from $700,000 to $60,000.  In their short hour of deliberations, the jury decided that the Wetlands Bylaw and the Commission’s subsequent denial of relief constituted a regulatory taking and awarded Ms. Smyth $640,000, plus interest.

In essence, the jury decided that the application of the Wetlands Bylaw violated Article 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteen Amendments of the U.S. Constitution, as well as the guidelines set forth by the Supreme Court in the 1978 Penn Central case. To no one’s surprise, the Town has signaled that it intends to appeal the verdict.  Regardless, there is little doubt that state and local officials and their counsel have taken notice of the result and are  trying to determine how to best enforce their regulations without sustaining a similar result.

Smooth Sailing for Safe Salem Marina

Posted in Variances, Waterfront Property, Zoning

Rope

Yesterday the Appeals Court upheld a variance decision by our former colleague, Land Court Justice Robert Foster.  In that case, Furlong v. Zoning Board of Appeals of Salem, Furlong challenged a variance granted to the abutting Brewer Hawthorne Cove Marina in Salem.

The variance permitted the Marina to construct a new building outside of the setback requirements of the local zoning ordinance for use as a boat repair facility and office.  The Marina proposed to locate that building at the edge of its property within the setback in order to provide adequate room for the safe operation of a travel lift that moved boats and to reduce the noise and fumes generated by the boat repairs in their present location.  The Marina also proposed to widen the entrance to the marina, which would provide better access including for emergency vehicles. On appeal, Furlong argued that the safety concerns relied on by the Land Court in upholding the variance do not constitute a hardship under the statute.

The Appeals Court began by noting that “the statutory requirements that must be met for an individual seeking a variance are rigorous.”  The Court noted that the governing statute, G.L . c. 40A, § 10,

authorizes a board of appeals to grant a variance from the local zoning ordinance only where it: “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”  Each of the requirements of the statute must be met before a board may grant a variance.

The appeal turned on whether “a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10.”  For guidance on this question the Appeals Court looked to the sole Massachusetts case that it could find on the issue,  Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972).  In Josephs, the Supreme Judicial Court affirmed a lower court decision upholding a variance to construct a loading bay with a reduced height in a high-rise commercial and residential building because, if the zoning ordinance were strictly applied, “one alternative would result in a safety hazard to persons using the excessively steep ramp, while the other would result in an economic loss due to interference with the configuration of the building.”  Id. at 293.  Based on these facts, the SJC concluded that the lower court was warranted in finding that a “hardship, financial or otherwise” had been demonstrated.  Id.

Against that legal backdrop, the Furlong court reasoned:

Like the developer in Josephs, the facts here demonstrate that if [the Marina] adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result. We agree with the judge that “[w]here a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance.” We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordinance, support the judge’s finding of a hardship. Accordingly, where the unchallenged evidence, found de novo by the judge, satisfies all of the requirements of the statute, the decision of the board must be affirmed.

This case throws a life line to parties seeking a variance for safety reasons.

The Beach is This Way–And It’s My Registered Land

Posted in Easements, Registered Land, Title, Waterfront Property

beach (A1250777)

A Massachusetts appellate court has ruled for the first time that new land which accretes to registered waterfront land is treated as registered land automatically, without the registered landowner filing additional proceedings.

In Brown v. Kalicki, decided earlier this week, neighbors sought to establish an easement by prescription to use for recreational purposes a beach area that had accreted over decades to registered land in Harwich owned by the plaintiffs.  The owners of the registered land were represented by my colleague, Brian Hurley, and me.

As regular readers of this blog know, use of land for a particular purpose for twenty years or more may give rise to an easement by prescription.  However, an important advantage of registered land is that, under G.L. c. 185, § 53,  it is immune to prescriptive easement claims.

“Accreted” land is new land that gradually and imperceptibly attaches to waterfront property.  The parties agreed that, under longstanding law, the accreted beach is owned by the plaintiffs.  At issue was whether that new beach was deemed registered without the necessity of the owners filing further, supplemental proceedings.  This issue was critical because the parties claiming the prescriptive easement claimed to have used the new beach area for at least twenty years before plaintiffs filed a supplemental registration proceeding.

The Appeals Court held in Brown that “the plaintiffs, whom the [parties claiming the prescriptive easement] acknowledge to be the owners of the accreted land, should continue to derive the protection that the original registrations afforded them from claims of prescriptive rights in the beach.”

In reaching that conclusion, the Appeals Court focused on a few key points.  The original registration certificate described the land as bounding on Nantucket Sound.  This would remain true only if the accreted beach was now part of the registered parcel.  The Court also emphasized that waterfront boundaries frequently change as the result of tides and winds, “so that the actual boundaries will rarely correspond exactly with what is depicted on a registered owner’s certificate of title or land court plan.”  As a result,

if accreted land is not deemed registered
upon its creation, owners of [waterfront] property would need to
amend their [c]ertificates of [t]itle on a regular basis to
prevent any loss in their property rights due to adverse use by
another. This would be inconsistent with one of the principle
purposes of the registration system: ‘to make titles certain and
indefeasible.’

The Court also rejected the assertion that the public’s limited rights under the Colonial Ordinances to use tidelands for fishing, fowling or navigation had any bearing on the claim to hold private, prescriptive rights to use the beach.

In dissent, Justice Milkey suggested that the majority was confusing ownership of the accreted land with the question of whether it should be deemed registered, a charge that the majority opinion rejected.

A number of recent cases have raised questions about the benefits of having registered land.  However, Brown reinforces that, especially when it comes to fighting claims of prescriptive easements, registered land still has its advantages.

SJC Maintains Clear Rule on Scope of Easements

Posted in Easements

beach-house.jpgIn Taylor v. Martha’s Vineyard Land Bank Commission, the SJC considered the scope of the rights that the Martha’s Vineyard Land Bank had under an easement that it held over the Outermost Inn property in Aquinnah owned by Hugh and Jeanne Taylor.  The Taylors were represented by my colleague here at Rackemann, and fellow blogger, Gordon Orloff.

The Land Bank sought to change one of the few remaining bright-line legal rules in Massachusetts: an easement appurtenant to one parcel of land may not be used as access to abutting land not benefitted by the easement, even if both parcels of land are owned by the same person.  An “appurtenant” easement is created for the benefit of a particular parcel of land and is a real estate interest that runs with the land benefited by it when that land is transferred.  The SJC resisted the invitation to create a gray area that would have required fact-intensive litigation of whether the use of the easement to reach the non-appurtenant parcel would increase the burden on the owner of the land over which the easement ran.  Instead, it kept in place the black-and-white rule prohibiting any access to a parcel that does not hold rights to use the easement.

The Land Bank owns four parcels of land in Aquinnah on Martha’s Vineyard. The three parcels closest to the Taylor property hold an appurtenant access easement over that property. The fourth parcel, known as Diem Lot 5, does not have rights in this easement.  Nevertheless, the Land Bank sought to use the access easement over the Taylor property for a new loop trail for public use that crossed over all of the Land Bank parcels, including Diem Lot 5.  The Land Bank wanted this public loop trail despite the fact that Diem Lot 5 has its own deeded access.

The Taylors filed an action in Land Court to prevent public use of the easement over the Taylor property to gain access to the Diem Lot 5. The Taylor’s claims rested in large part on a rule that originated in Massachusetts as early as 1838, and which was reiterated in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-79 (1965).  As summarized by the SJC, “the bright-line rule in Murphy … disallow[s] any use of an easement to benefit land to which the easement is not appurtenant.”

The Martha’s Vineyard Land Bank did not dispute that the Murphy rule prohibits the use of the easement appurtenant to its three parcels to reach Diem Lot 5.  Instead, it asked the SJC to change the rule, or to at least create some exceptions that would allow public access to Diem Lot 5 over the easement.  In refusing to do so, the SJC focused on the intent of the parties at the time the easement was created, which was not to provide access to Diem Lot 5.

The Land Bank had proposed that the Court inquire into whether a use benefitting the non-appurtenant land would increase the burden on the land over which an easement passes, or the so-called “servient” land. In upholding the Murphy rule, the Court paid careful attention to the effect that such a proposed rule would have on owners of servient land, emphasizing that assessing any additional burden on those owners “would require a longer process of litigation than would the bright-line rule, would lead to a less predictable outcome, and might not be affordable to owners of small servient parcels who are litigating against defendants with the financial means to acquire and develop multiple parcels of land.”  The SJC preferred “the bright-line rule articulated in Murphy” because it “provides owners of servient property with certainty regarding their possessory rights” in their land.

Boston Redevelopment Authority 1957-2016 – RIP?

Posted in Boston Development

a0812639.jpgMayor Martin J. Walsh announced this week that the Boston Redevelopment Authority (BRA) is not only changing its name, but changing its business practices and approach with communities affected by the unprecedented real estate development boom Boston is currently experiencing.  The BRA’s new moniker is the Boston Planning and Development Agency (BPDA) and will still be led by Brian Golden, a post he has held the past two years.

The BRA’s reputation has long been a thorn in its side, as some people still view the BRA as an eminent domain wielding steamroller because of the razing and redevelopment of the West End neighborhood during the heyday of “urban renewal” decades ago. Among the reforms cited by the Mayor is more emphasis on planning and community input.  Both developers and community members agree that more emphasis on planning should provide welcome certainty to the sometimes uncertain development process.

The role of the community in the review of proposed redevelopment projects is a hot button issue.  Some argue that not-in my-backyarders are too frequently allowed to derail and unduly delay worthy projects. Others contend that the current community process consists of dog and pony shows that attempt to merely placate  communities without substantively addressing their concerns.  While this debate is not likely to go away soon, it will be interesting to observe the evolution of BPDA and its effect on the Boston development and permitting process.

BEER AND WINE NOW AVAILABLE TO WESTPORT BEACHGOERS

Posted in Nonconforming Use, Zoning

In a decision that brought cheers from thirsty beachgoers, the Appeals I'll-drink-to-that.jpgCourt in Almeida v. Arruda, 89 Mass. App. Ct. 241 (2016) affirmed a lower court finding that the sale of beer and wine at a pre-existing, nonconforming convenience store was neither a substantial change in use nor a detriment to the neighborhood.

Pursuant to G.L.c. 40A, §6, a prior nonconforming use is not subject to subsequently enacted zoning restrictions. However, in certain circumstances, a change or substantial extension of such use may require compliance with current zoning requirements.  In order to determine whether the sale of beer and wine is a change or substantial extension under Section 6, the lower court judge utilized the 3-prong “Powers” test. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973).  The 3-prong test is as follows:  (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood.

At trial, evidence was introduced that only 12% of the store’s floor space would be used for beer and wine sales. Applying the Power’s test, the lower court concluded, and the Appeals Court affirmed, that the sale of beer and wine did not constitute a substantial change in use.  Accordingly, the proposed use, including the sale or beer and wine, remains protected as a lawful pre-existing nonconforming use.

Feds and States Wrestle Over Control of the Toxic Substances Control Act

Posted in Environmental, Legislation

A1234669.DOC

On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“FRL-21”).  Heralded as much needed reform to the Toxic Substances Control Act (“TSCA”, pronounced “tos- kah”), FRL-21 has sparked spirited debate over acceptable limits of federal preemption of state law in the environmental regulatory context.

Enacted 40 years ago, TSCA has proven to be a wholly ineffective tool for the United States Environmental Protection Agency (“EPA”) to oversee the tens of thousands of chemicals used in products and the workplace. In 1976 there were approximately 62,000 chemicals in the marketplace subject to EPA regulation, but because of the onerous conditions placed on EPA, as of today only 5 of those chemicals have been banned from use and only a tiny fraction of the others have been studied for health and safety.  FRL-21 frees EPA to increase significantly the number of chemicals subject to its oversight.

The cost of the expansion of EPA’s jurisdiction over those chemicals comes at the expense of state jurisdiction. Because the old TSCA was so ineffective, states stepped into the breach and played a prominent role in the evaluation and oversight of toxic chemicals.  For instance, in 1989 Massachusetts passed into law the Toxics Use Reduction Act, M.G.L. c. 211, (“TURA”).  TURA augments TSCA by requiring users of relatively large amounts of toxic chemicals to report usage and develop a plan to reduce toxic waste.  Through TURA, Massachusetts was able to reduce the generation of toxic waste by 50% by 1998.  TURA and certain other existing state laws will not be subject to preemption as FRL-21 grandfathers any state law enacted prior to August 31, 2003.  State laws enacted after that date are subject to preemption.

Many states are concerned that FRL-21’s more centralized regulatory system will fare no better than the original TSCA and prevent states from stepping into the regulatory void. FRL-21 strictly limits when states can enact new laws or continue enforcement of existing laws.  Also, once EPA takes final action on a chemical it has evaluated, states are prohibited from taking action on those chemicals unless they receive a waiver, which turns out to be a formidable obstacle.  In order to obtain a waiver, states need to: 1) demonstrate a compelling need; 2) put forth a well-developed scientific basis; or 3) take action on a chemical within 18 months of EPA beginning risk evaluation of a chemical.

FRL-21 advocates contend that it sends clear and consistent signals to industry and the marketplace. However, there is a preemption battle brewing on the horizon, and clarity seems a long way off.  It is more likely that states race to enact more stringent toxic chemical laws before EPA does, either during the initial 18 month evaluation period or under the penumbra of other environmental laws and regulations, such as the Clean Water Act or greenhouse gas emissions. Attorneys General from 16 states, including Massachusetts, plan to push the preemption battle, placing the ultimate control of TSCA in doubt for the foreseeable future (see TSCA Letter).