Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

END RUN AROUND LOCAL WETLANDS JURISDICTION? NOT SO FAST

Posted in Wetlands

According to the Wetlands Protection Act, when an applicant files a notice of intent with a local conservation commission to perform work that may impact wetlands, the commission has 21 days to open a public hearing to consider the impact of the proposed work on the wetlands. If a commission fails to open a public hearing within 21 days, an applicant may bypass the commission and apply directly to MassDEP for its approval in the form of a request for a superseding order of conditions. In such circumstances, the superseding order of conditions controls and the conservation commission loses all jurisdiction over the project described in the notice of intent. An advantage to filing a request for a superseding order from MassDEP is that state wetlands regulations are often less stringent than local regulations.

As one might imagine, applicants watch the 21-day clock closely. The plaintiff in a recently decided Appeals Court case, Cave Corporation v. Conservation Commission of Attleboro, was no different. The Attleboro Conservation Commission opened a public hearing on the evening of the 22nd day after Cave submitted to the Commission notices of intent to construct houses on Lots 4, 5, 6 and 7 in its subdivision. Because 21 days had passed, Cave, earlier in the day, requested a superseding order from MassDEP. Cave subsequently received a superseding order from MassDEP allowing construction of  the houses.

However, Cave’s satisfaction at being able to proceed with construction of the houses completely free of local regulation was short lived. Prior to filing its notice to build the houses, Cave had filed a separate notice with the Commission to build a roadway extension to service the entire subdivision. The Commission issued an order of conditions authorizing the roadway extension with a condition prohibiting any work within 125 feet of two vernal pools located on the property, which included the area containing the driveway proposed for Lot 7. MassDEP’s superseding order approved construction of the Lot 7 driveway because its vernal pool regulations are less stringent than the local regulations. Based on its previous prohibition of any work within the vernal pool buffer area, the Commission asserted that, notwithstanding MassDEP’s superseding order, Cave was precluded from building the Lot 7 driveway.  Cave unsuccessfully appealed the Commission’s decision in Superior Court, and then appealed to the Appeals Court.

Cave made three arguments on appeal, all of which amounted to the position that once Cave obtained MassDEP’s superseding order to build the houses, the Commission lost its jurisdiction within the lots, even if, as in the case of the Lot 7 driveway, the Commission prohibited the work in an earlier order of conditions. The Appeals Court disagreed, stating that it “would be anomalous indeed for the DEP’s superseding order of conditions for Lot 7 to abrogate the terms of a previously and validly issued Order of Conditions regulating that lot simply because the same land was the subject of additional work described in a subsequently filed Notice of Intent.”

Appeals Court Ruling Confirms Grandfathering Protection for Former Cambridge Courthouse

Posted in Nonconforming Use, Zoning

Today the Appeals Court decided Gund v. Planning Board of Cambridge.  That case concerns the former location of the Middlesex Superior Court, an asbestos-filled, anomalous sky-scraper near Lechmere in Cambridge.  The building, which does not comply with zoning, has been sold to a developer.  At issue was whether the court house is a preexisting, nonconforming structure under G.L. c. 40A, § 6 and the local zoning ordinance.  If so, it is grandfathered for purposes of zoning and eligible for a special permit for its proposed redevelopment.

The typical case concerning a preexisting nonconforming structure involves a building that was in existence before a zoning change, or before zoning was adopted.  If the building was lawful at that time, it is generally grandfathered from later zoning changes.  The interesting twist in this case was that, as a structure owned and operated by a public entity since it was built, the court house has been immune from zoning.

The parties’ opposing the new project argued that, once the building was sold to a private party and lost its immunity from zoning, it could have been “lawful” and the special permit granted only if the court house would have been in compliance with the zoning in force at the time it was constructed.  They made this argument because the court house did not comply with the floor-to-area ratio then in effect.  By virtue of later zoning changes, the building exceeds that ratio by an even greater amount than it did originally, and it also exceeds a later imposed height limitation.

The Appeals Court rejected this approach.  It held that the court house “has always been lawful because the zoning requirements simply do not apply to it.”  After reviewing a number of other cases, the Appeals Court observed that a structure that is lawful because it is immune to zoning regulations is akin to a structure that was constructed before any zoning regulations were adopted in a municipality.  “[N]othing in the zoning ordinance or statutory scheme suggests that [the special permit granting authority] should look back to when the structure was constructed to determine whether it complied with the then-existing zoning ordinance from which it was immune at the time.”  Such a look back would be tantamount to treating the court house “as if its governmental immunity never had existed.”

This decision reflects a common sense application of the grandfathering rule.

Permitting, First Amendment and Jury Trial Issues All in One Case

Posted in Miscellaneous, Zoning

On June 29, 2017, the First Circuit Court of Appeals decided Steinmetz v. Coyle Caron, Inc.  That case, which has its roots in the mundane desire of a couple to build a new home on their land in Cohasset, gave rise to some interesting and complicated constitutional questions.

The Steinmetzes needed approval from the local Conservation Commission for their project.  A group of neighbors opposing the construction hired Coyle & Caron, a Florida landscaping firm, to prepare and present renderings of the proposed home to the Conservation Commission.  At least one draft rendering also was posted on Facebook.  The Conservation Commission denied the Steimentzes’ application.  Claiming that the renderings had a dramatic impact on the Conservation Commission and that its renderings were false, fraudulent, negligent, defamatory and an unfair or deceptive trade practice prohibited by G.L. c. 93A, § 9, the Steinmetzes filed an action against Coyle & Caron in federal court.

Coyle & Caron filed a “special” motion to dismiss the case pursuant to the Massachusetts “anti-SLAPP” statute, G.L. c. 231,  § 59H.  That statute was designed to protect against developers asserting weak, but nevertheless expensive to defend claims in order to silence neighbors and other citizens who oppose a project (thus, the acronym for “Strategic Litigation Against Public Participation”).  The anti-SLAPP statute allows those being sued to file special motions to obtain the speedy dismissal of such claims without incurring substantial litigation expenses.  As an added disincentive for those who would file SLAPP cases, the losing party must pay the reasonable legal fees and costs of the party winning a special motion to dismiss.

The trial judge allowed Coyle & Caron’s special motion to dismiss and the Steinmetzes appealed.  While noting that the case presented “an array of interpretive and constitutional issues,” the First Circuit limited its decision to a few important points.

The First Circuit readily concluded that Coyle & Caron’s renderings fell within the statute’s definition of “an exercise of its right of petition.”  However, the decision ran into difficulty when it turned to whether the protected right of petition includes “vendors of services” in addition to parties who themselves petition the government as citizens.  Although the case was filed in federal court, it turned on interpreting the Massachusetts anti-SLAPP statute.  After reviewing a number of opinions by the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court (“SJC”), the First Circuit concluded that the state law is “insufficiently clear for us to rule definitively on the applicability of the anti-SLAPP statute to Coyle & Caron.”  Therefore, the First Circuit asked the SJC to provide guidance by certifying to it the question of whether a third-party contractor that made submissions to a governmental body for the purpose of assisting in its private client’s petitioning activity can avail itself of the special motion to dismiss provision of the Massachusetts anti-SLAPP statute.

The First Circuit’s decision did go on to address the other factors required to defeat the special motion to dismiss.  First, the Court held that the Steinmetzes failed to establish that “no reasonable person could conclude” that there was factual support behind the renderings or that they were sham petitioning activity.  Having so found, the Court did not look at the other question raised by the special motion to dismiss of whether Coyle & Caron’s actions caused actual injury to the Steinmetzes.

The Court also considered whether the claims against Coyle & Caron were brought primarily to chill its legitimate petitioning activities, which analysis in part turned on whether the claims are colorable or worthy of being presented to and considered by the Court.  The First Circuit concluded that the negligence, gross negligence and Chapter 93A claims could not clear this bar and held that those claims must be dismissed if the anti-SLAPP statute applies to Coyle & Caron.

In contrast, the First Circuit could not find that the defamation claim offered no reasonable possibility of a decision in the Stemimetzes’ favor and so did not dismiss that claim.  Instead, it sent back to the trial court the question of whether the defamation claim also must be dismissed under the special motion after that court considered the SJC’s answer and the totality of the circumstances concerning the Steinmetzes’ intent in bringing their claims.

The First Circuit did not address the Steinmetzes’ interesting claim that the anti-SLAPP statute was unconstitutional because it deprived them of a right to a jury trial.  That said, the First Circuit did leave the door open for the SJC to address this point by inviting the SJC to any additional observations about Massachusetts law that it might wish to offer (a right to jury trial is guaranteed by Part 1, Article 15 of the Commonwealth’s Constitution).

It will be interesting to learn what the SJC has to say when it responds to the First Circuit’s request.  Regardless of its answer, battles between those wanting to develop their land and their neighbors will continue to rage as long as the real estate market remains hot.

AFFORDABLE HOUSING MARKET TAKES A HIT

Posted in Affordable Housing

The Trump administration’s plan to lower corporate tax rates has created uncertainty in the affordable housing market by devaluing low-income housing tax credits (LIHTC).  LIHTC devaluation is casting a chilling effect on the construction of affordable housing units nationally, including a Jamaica Plain project currently under construction.  The LIHTC program, a widely utilized $8 billion tax credit, is the primary resource for the creation of affordable units, providing crucial equity for 90% of all new affordable units built. According to Boston’s Department of Neighborhood Development, from 2009 to 2014 tax credits, including LIHTCs, provided over $170,000 of funding for each of the more than 1100 affordable units created in the city during that 5-year period.

Typically, developers sell LIHTCs to banks for much needed funding. Banks use the credits to reduce their taxes when they come due. The lower the corporate tax rate, the less valuable LIHTCs become. Currently, LIHTC buyers are discounting LIHTCs by 10% to 15%. Uncertainty over the corporate tax rate is causing many LIHTC buyers to postpone purchasing the credits until the tax rate is finalized.  This devaluation and uncertainty translates to an expected decrease of at least 10,000 to 15,000 units being built this year.  Adding to the challenges in the affordable housing market is the administration’s proposed 13% cut to the Department of Housing and Urban Development’s budget.  Count in the significant cuts to other federal housing programs over the past several years, and it is obvious why the LIHTC program is a critically important funding source.

Help may be on the way. The U.S. Senate is considering a 50% expansion of the LIHTC program that will add an additional 40,000 affordable units per year over the next decade to the 100,000 affordable units currently being built annually. While helpful, this will barely make a dent in the demand for affordable housing. Currently, 4 million people qualify for low-income housing that is not available or in the pipeline, and that number is growing. Stay tuned to see how Washington handles funding for affordable units, it will have a significant impact on the local affordable housing market.

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.