Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

The Trouble With Trees

Posted in Miscellaneous, Uncategorized

Unable to leave well enough alone, the Supreme Judicial Court used a series of wooden puns in deciding not to change the longstanding rule that a landowner cannot hold a neighbor responsible for damage caused by that neighbor’s healthy tree.  Shiel v. Rowell addressed Shiel’s nuisance and trespass claims that algae on her roof was caused by the Rowells’ overhanging tree.

The traditional Massachusetts rule allows Shiel to protect herself by cutting back encroaching trees, up to the property line.  The Court declined to ‘”uproot precedent,” because it is a clear rule that assigns responsibility and thereby minimizes legal costs and legal disputes between neighbors “who merely have an axe to grind,” and it also avoids burdening the courts with additional litigation.

As it did a few years ago in Taylor v. Martha’s Vineyard Land Bank Commission, the Court showed that it was open-minded enough to reconsider longstanding precedent, but ultimately decided against changing a rule that still makes sense.

 

Private Parties Cannot Enforce Public Rights to Access Tidelands

Posted in Easements, Legislation, Waterfront Property

Massachusetts is unusual in that an owner of waterfront property typically holds title to the low water mark.  However, the area between the low and the high water marks normally remains subject to the rights of the public to fish, fowl (hunt birds) and navigate.

The landowner cannot interfere with those so-called “public trust” rights without the benefit of special legislation or a license to do so issued by the Department of Environmental Protection (the “Department”) pursuant to Chapter 91 of the Massachusetts General Laws.  In most instances, Chapter 91 licenses contain language requiring some type of public access to the tidelands or former tidelands.  And Massachusetts courts have been zealous in protecting public trust rights.

Yesterday’s Appeals Court decision in Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC addressed who has the right to enforce public trust rights.

Boston Boat leased a marina on Commercial Wharf in Boston that is subject to a variety of restrictions on its use.  These restrictions were set out in an access easement, a zoning variance and permit and a settlement agreement between the plaintiff condominium association and prior owners of the marina land that prohibits a series of uses, such as booze cruises, weddings and bar mitzvahs.   Boston Boat argued that that these restrictions were void because they were inconsistent with the Chapter 91 license that, in substance, required that Boston Boat permit 24 hour public access on its wharf to the extent permitted by the access easement.

The Appeals Court never reached the substantive issue.  Instead, it torpedoed Boston Boat’s claim before it could get underway, holding that “Boston Boat had no authority in the first place to seek judicial enforcement of public trust rights in private litigation.”

The Appeals Court relied on case law that states emphatically that only the Legislature, or an entity to which the Legislature has delegated authority expressly, may act to further public trust rights.  By Chapter 91, the Legislature had delegated this authority to the Department.  In contrast, the Legislature had not delegated authority to enforce public trust rights to either Boston Boat or the Land Court, where the case had been filed.

Because of the Department’s “special role” in the area of public trust rights, it alone had the authority “to determine whether Boston Boat is currently using the locus in accordance with the license and, if not, how best to proceed in order to vindicate public rights.”

This case is yet further proof that you don’t need to sail off the map to enter dangerous territory marked, “Here be dragons.”  In Massachusetts, you can encounter legal dragons once you hit the high water mark.

Can’t Get There From Here?

Posted in Waterfront Property

In the just-decided Maslow v. O’Connor, the Appeals Court addressed rights in a Gloucester subdivision road.  Since Gloucester is a seaside community, naturally the case concerns water access.

The defendants own the residential lots abutting the waterfront end of Rackliffe Street, which is an old and private subdivision road that, before 1925, ended at the mean high water mark of Wonson’s Cove.  Under the Derelict Fee Statute, those defendants also own to the center-line of that Street next to their lots.  However, longstanding case law makes clear that the plaintiffs, who own inland lots along Rackliffe Street, have the right to use that Road all the way to its waterfront end.  In addition, under legislation intended to encourage waterfront development dating back to the early days of Massachusetts (the Colonial Ordinance of 1641-1647), all members of the public have the right to use tidelands between mean high and mean low tide for purposes of fishing, fowling and navigation.

In 1925, the owners of the waterfront end of Rackliffe Street were granted a license pursuant to Chapter 91 of the Massachusetts General Laws to fill the tidelands and build a seawall.  A grassy strip and ramp leading down to the intertidal area are now located on the fill owned by the defendants in what would be the extension of Rackliffe Street.  The question in the case was whether the plaintiffs had the right to cross that grassy strip and to use the ramp to reach the water.

Relying principally on the terms of the license itself, the Appeals Court concluded that the plaintiffs did have the right to reach the water.  That license contains two conditions.  Most importantly, it provides that nothing in it “shall be so construed as to impair the legal rights of any person.”  This language is a paraphrase of language in G.L. c. 91, section 17.   The other condition prohibited any “building or other structure” on the fill within the lines of Rackliffe Street “extended southerly to the water.”

Because, as abutters of the Street, the plaintiffs had the right to use the disputed areas to reach the water in order to exercise their Colonial Ordinance rights, the Appeals Court concluded that “under the 1925 license, any fill placed in tidelands at the end of Rackliffe could not and did not cut off those abutter rights, as such would have violated the ‘no impairment’ clause.”

The license’s prohibition against buildings in the road as extended to the water reinforced that the license intended that the right of plaintiffs’ predecessors to access the tidelands at the end of Rackliffe Street before the 1925 license “remains today ….”

Maslow is yet another reminder that owning waterfront property or property located in a private subdivision can present legal issues that other landowners do not face.

When Is It Too Late to Force a Neighbor to Cure a Zoning Violation?

Posted in Nonconforming Use, Police Power, Subdivision Control, Zoning

Section 7 of Chapter 40A contains a statute of limitations for actions by individuals and municipalities to compel the removal, alteration, or relocation of any structure due to a zoning violation.  In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court considered when the statute of limitations commences based on a zoning violation arising from an ANR (Approval Not Required) subdivision of land.

The Goethals owned a large lot with a single family home and guesthouse.  In 2001, the local planning board endorsed the Goethals’ plan to subdivide that lot into two parcels and, for a time, the Goethals retained both Lots.   Their guesthouse was on Lot 1 and a single family home was on Lot 2.  Lot 1 is about 12,000 square feet, whereas zoning requires a minimum lot size of 25,000 square feet for a single family home.

In August 2005, the Goethals sold Lot 2 to the Brunos.  The Goethals retained Lot 1, later improved the guest house on that Lot (allegedly in violation of zoning) and rented it out as a vacation home.   The Appeals Court agreed that, since at least 2005, there has been a single family residential use of Lot 1.

The case arose from the Brunos’ attempt to compel the Zoning Board of Appeals to order the removal of the Goethals’ house or, in the alternative, to obtain an injunction against all uses of that house–which “would inevitably require the eventual removal of the structure all the same.”  The ten-year statute of limitations in Section 7 applies to actions intended “to compel the removal, alteration, or relocation of any structure” on the basis of a zoning violation (a six-year statute of limitations applies to actions concerning structures authorized by a building permit and being used in accordance with that permit or the use authorized by a building permit).

The issue was whether the ten-year statute of limitations began to run in 2001, as a result of the ANR endorsement that created the undersized lot, or in 2005, when the Goethals conveyed Lot 1.  In adopting the later date, the Appeals Court relied on the rule that, when adjacent nonconforming lots are held in common ownership, they are normally merged and treated as a single lot for zoning purposes.  So, when taken together, “Lots 1 and 2 formed a single conforming lot under the Goethals’ common ownership.”  That land remained a single conforming lot for zoning purposes until the 2005 conveyance.  Before that time, the Tisbury zoning enforcement officer could not have pursued an enforcement action against the Goethals.  Therefore, the statute of limitations did not start to run until they conveyed Lot 1 in 2005 and Lot 2 became nonconforming.

Under Section 7, the Brunos had until August 2015 to file and record their action.  In light of a dispute regarding whether the purported recording of the action in April 2015 was proper, the Appeals Court remanded the case to the Land Court.  The Appeals Court left unresolved whether the statute of limitations clock starts ticking on the date of the deed creating the nonconformity or the date of its recording.

This case provides a useful reminder that the doctrine of merger may complicate a zoning analysis, including with respect to the critical question of whether the statute of limitations bars a zoning enforcement action.

Governor Baker Proposes Zoning Changes to Promote More Housing

Posted in Affordable Housing, Zoning

Governor Baker recently announced a proposal to change state zoning laws to make it easier to build more housing units state-wide. The Governor’s goal is to add 135,000 housing units by 2025. To do so, he has introduced legislation that will allow municipalities to adopt certain changes to local zoning by a majority vote, instead of by super majority, as currently required by state law. The zoning changes include relaxing dimensional, density and parking requirements, as well as adopting smart growth and starter home zoning districts. The proposed legislation would also promote accessory dwelling units and the transfer of development rights to allow cluster developments.

While the Governor’s proposal makes sense, it falls far short of the more comprehensive, and controversial, zoning reform proposals considered by the legislature over the past decade or so. The current zoning laws have been in effect since the Gerald Ford administration and are woefully out of date and serve as a serious barrier to the construction of much needed affordable housing in Massachusetts.  Without comprehensive zoning reform, which includes measures streamlining the permitting process and preventing frivolous appeals of approvals, it is hard to see how the Governor’s proposal will create enough housing to move the needle. Let’s hope the Governor’s proposal serves as the impetus for the legislature to adopt meaningful changes to current zoning laws that allow for quicker approvals and more flexibility and certainty to make meaningful increases to the state’s housing inventory.

Newton Drone Ordinance Struck Down, but Significant Questions Remain

Posted in Eminent Domain, Policy

As drone sales in the United States continue to grow, the legal issues they present are likely to induce new attempts to regulate drone flights at the state and local level.  As the legal framework allowing drones to fly within our communities develops, the resulting laws will impact the ability of local communities to control drone use within their borders and restrict landowners’ property rights.  As shown by Newton’s recent foray into municipal drone regulation, the role local communities can play in this legal framework remains unclear.

The recent federal District Court decision in Singer v. Newton[1] held that Newton’s 2016 drone ordinance was preempted by federal legislation directing the Federal Aviation Administration to incorporate drones into the national airspace.  However, the decision did not consider important questions concerning drone use and private property rights, which remain a stumbling block in the development of drone laws across the country.

Among other things, Newton’s ordinance banned drone flights over private property below 400 feet without the express consent of landowners beneath the flight path and banned drone flights over city property without Newton’s prior permission.  The 400-foot limit is significant because the Federal Aviation Administration limits drones to a 400-foot altitude to avoid interference with commercial air traffic.  Therefore, Newton’s ordinance effectively banned drone flights without permission from landowners beneath the flight path.

Newton resident and drone enthusiast Michael Singer sued, arguing that the federal government has exclusive jurisdiction over the national airspace and, as a result, municipal attempts to regulate drones were prohibited.  The District Court agreed, saying Newton’s ordinance “thwarts” Congress’s objective to integrate drones into the national airspace.  According to the decision’s rationale, the ordinance essentially fails because it did not allow any drone flights below 400 feet without prior permission from landowners.

However, neither the District Court, Singer, nor Newton considered the possibility that landowners already have an inherent right to prevent drone use above their properties.  In the 1946 case United States v. Causby, the Supreme Court said a landowner owns at least as much of the space above the ground as he or she can use in connection with the land, and that landowners have the power to prevent intrusions into the airspace above their property that would subtract from the landowner’s full enjoyment of the property.[2]  The Singer decision, however, fails to consider the extent to which any federal, state, or local rule that would require landowners to permit drone flights over their property could impact the use and enjoyment of land and thus constitute a taking for which the landowner must be compensated.

While the Singer decision voids Newton’s drone ordinance, it seems unlikely this decision will deter municipalities from attempting to regulate drone use within their borders.  Whether due to privacy, noise, or safety concerns, as the use of drones continues to increase, local governments and landowners will increasingly seek to limit access to the skies.

[1] Singer v. Newton, D. Mass., No. CV 17-10071-WGY (Sept. 21, 2017)

[2] 328 U.S. 256, 264-65 (1946)

 

Supreme Judicial Court Voids Condominium Bylaw as Against Public Policy

Posted in Condominiums

In a November article I discussed the pending Supreme Judicial Court case Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC.  You can read the full article here, but the essential issue is whether condominium bylaw provisions limiting a condominium board’s ability to initiate litigation should be void, either because such provisions violate the Massachusetts Condominium Act, or because they are against public policy.  In November I said the case had the potential to either increase lawsuits initiated by condominium boards, or eliminate the possibility of lawsuits against future condominium developers.

On January 19, 2018 the Supreme Judicial Court held that a certain provision of the Cambridge Point Condominium Trust Bylaws is against public policy and void.  The decision tries to avoid any outsized impact on condominium litigation in Massachusetts, but will likely open the doors to increased litigation.

The decision states that four parts of the Cambridge Point Condominium Trust Bylaws made it “extraordinarily difficult” for the Condominium Trust to initiate litigation by requiring that: (1) 80% of all unit owners consent to the proposed litigation, even while the developer continues to own close to, or in excess of, 20% of units; (2) a unit owner who fails to respond to the request for written consent to the litigation is considered to have refused consent; (3) the unit owners pay the entire budgeted cost of the litigation in a special assessment effective immediately upon consent to initiate the litigation; and (4) the trustees obtain the required written consent within sixty days.  According to the decision, the offending section of the Cambridge Point Condominium Trust Bylaws is void because, in light of the totality of the circumstances, the section effectively eliminated the ability of unit owners to seek legal redress for deficiencies in the construction of their homes.

The decision does not provide additional guidance to determine in future cases whether bylaws requiring unit owner consent to pursue litigation are also against public policy.  The responsibility will fall to the trial courts to determine if and when the “the totality of the circumstances” effectively eliminates the right of a condominium board to pursue litigation against the developer.

For now, condominium bylaw provisions can theoretically continue to require unit owner consent before the condominium board initiates litigation against a developer.  It seems likely though that any condominium board that wants to initiate litigation but is not able to obtain the necessary consent will argue that the consent requirements in its bylaws are void as against public policy.  Accordingly, this is not the last time the appellate courts will need to address this issue.

SJC Clarifies Ch. 21E Property Damage Statute of Limitations

Posted in Environmental

On January 19th, the Massachusetts Supreme Judicial Court (SJC) ruled in favor of Grand Manor Condominium unit owners in their long battle with the City of Lowell to recover their loss in property value as a result of contamination caused by the city’s operation of a landfill in the 1940s and 1950s on the property where the Condominium was built. Rackemann represents current and former owners of 36 Grand Manor units. Regarding the unit owners’ Chapter 21E, Section 5 property damage claims, the SJC ruled that the plaintiffs’ claims were not time barred because they could not have known that they sustained permanent property damage until the Massachusetts Contingency Plan (MCP) mandated Phase II/III environmental report was submitted to MassDEP by the city in June of 2012. The Phase II/III report determined that removing all of the hazardous waste present on site was prohibitively costly and therefore residual contamination would remain on the property after remediation activities were completed. The SJC vacated the trial court judgment and remanded the case for a determination of damages.

The city acquired the land from the Town of Dracut in 1906. It mined rock and gravel before converting and operating the site as a landfill in the 1940s and 1950s. After that, the city capped the site and it lay vacant until 1983 when the city conveyed the land to a developer. Although required by statute, the city failed to file a notice in the chain of title that the property had been used as a landfill. The developer built the 48 unit Grand Manor condominium shortly thereafter. In 2008, a contractor excavating a drainage ditch on the property discovered discolored soil and pieces of solid waste. Soil samples were sent to a lab for testing and the results showed that a release of hazardous materials, as defined by the MCP, had occurred. Grand Manor fulfilled its Chapter 21E and MCP obligations by notifying MassDEP of the release and hired a licensed site professional to address the contamination.

Meanwhile, members of the condominium Association’s Board conducted research and discovered that the city had operated a landfill on the property before the condominium was built. The Board notified unit owners and MassDEP of its findings in April, 2009. MassDEP issued notices of responsibility to the city and the Association in May, 2009. In July, 2009 the city hired its own LSP and took over site investigation activities. On October 13, 2009, the Association sent a Chapter 21E, Section 4A demand letter to the city seeking reimbursement of its costs in responding to and investigating the release. The city’s LSP submitted a Phase I Initial Site Investigation Report to MassDEP in April, 2010. The Phase I report found that the release affected a larger area of the property than the drainage excavation area but more investigation was necessary to determine the full extent of the contamination and how it was to be remediated. The city’s investigation continued and in June, 2012 the Phase II/III report was submitted to MassDEP. This was the first time the plaintiffs were on notice that the contamination was present beneath the ground on virtually all of the property and it would be cost prohibitive to remove all of the contamination. The report called for a capping of certain areas, the installation of a continuously operating soil venting system and the implementation of a notice of activity and use limitation on the property. The plaintiffs filed their action on October 10, 2012 seeking reimbursement of their response costs pursuant to Chapter 21E, Section 4A and reimbursement of lost property value pursuant to Chapter 21E, Section 5.

The city asserted that the plaintiffs’ Section 5 property damage claims were time barred because the statute of limitations had expired prior to the filing of the complaint. The city argued that pursuant to Chapter 21E, Section 11A (4), the statute began to run when the contamination was discovered and the Board discovered that the city owned and operated the landfill back in the spring of 2009. The plaintiffs countered that in order to bring a Section 5 claim they needed to be on notice that their property damage was permanent, meaning that residual contamination would remain on the property. The plaintiffs had three years from the time of such notice to bring property damage claims. The plaintiffs further argued that they were not aware that their property damage was permanent and therefore recoverable under Section 5 until the Phase II/III report was made available in June, 2012 when they knew for the first time that residual contamination would remain on their property. Prior to trial, the trial court judge, while not necessarily agreeing with the city’s position, rejected the plaintiffs’ position and the case went to trial leaving the statute of limitations issue to be decided by the jury.

After a three week trial, a jury awarded the plaintiffs Section 4 response costs in the amount of $113,673.19 but decided that their Section 5 property damage claims were time barred.[1]  In vacating the judgment on the statute of limitations, the SJC stated:

We conclude that a plaintiff must be on notice that he or she has a claim under Sec. 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred. This will not ordinarily occur until the plaintiff learns that the damage to his or her property is not reasonably curable by the remediation process. As we conclude that as a matter of law that the plaintiffs could not know that they had a claim under Sec. 5 before June 6, 2012, when the city filed its Phase II/III report … the stature of limitations issue should not have been presented to the jury.

The SJC’s decision is a common sense approach that spares plaintiffs from being forced to file Section 5 property damages claims before they know whether they have a cognizable claim, risking dismissal and wasting judicial resources. The decision also prevents a responsible party conducting site investigations on another’s property to wait out the statute of limitations period by waiting until three years after the discovery of contamination and its source to reveal that residual contamination will be left on site.

[1] In post-trial proceedings, the trial court judge awarded the plaintiffs $226,252.55 for litigation fees and costs pursuing the Section 4 response costs because the city failed to respond to the plaintiffs’ Section 4A demand letter and plaintiffs’ action had properly advanced the purposes of Chapter 21E.

SJC Explains that Municipalities May Prohibit Construction of Heliports on Private Property

Posted in Zoning

If your plans for the upcoming weekend include building a heliport in your backyard, I have terrible news for you: the Supreme Judicial Court has ruled that, pursuant to their zoning powers, municipalities may prevent construction of private, non-commercial heliports.

The decision in Roma, III, Ltd. v. Board of Appeals of Rockport,[1] ends a dispute between a local helicopter pilot and the Town of Rockport that started in November 2014.  At that time, the building inspector issued an enforcement order finding that a heliport was not permitted without a variance or special-use permit.  The Board of Appeals unanimously affirmed the enforcement order.

The pilot appealed to the Land Court, where the judge ruled in the property owner’s favor, stating a zoning bylaw prohibiting a private landowner from creating a noncommercial, private heliport on his or her property is void unless the Department of Transportation Aeronautics Division approved the zoning bylaw in advance.  Despite ruling for the pilot, the Land Court judge noted that the Appeals Court precedent which controlled the case “may merit revisiting.”[2]

The Supreme Judicial Court agreed and took Rockport’s appeal on direct appellate review to answer the pressing question of whether municipalities may limit the use of land within the community as a noncommercial, private heliport, or if any such zoning laws require preapproval from the Aeronautics Division.

The SJC decision first disposed of the Appeals Court precedent that required the Land Court’s decision in the pilot’s favor.  The Appeals Court’s now-abrogated ruling from Hanlon v. Sheffield held that section 39B of the state aeronautics code was the only source of municipal authority to limit construction of heliports, and therefore, section 39B’s requirement that the Aeronautics Division approve such local rules before they become effective applied to Rockport’s zoning bylaw.[3]  The SJC clarified that a municipality’s authority to regulate the construction and placement of a heliport did not emanate from section 39B, but rather from a municipality’s long-held zoning powers.  Therefore, section 39B’s requirement for approval from the Aeronautics Division did not apply to a noncommercial, private heliport in a resident’s backyard.

The remaining issue for the SJC was whether federal or state law prohibits municipalities from exercising their zoning authority to prohibit construction of heliports.  Following a detailed discussion, the Court ruled that neither the federal nor the state preemption doctrines prevent zoning bylaws from restricting construction of heliports, and therefore, municipalities in Massachusetts have the power to limit or prevent the construction of private, noncommercial heliports in backyards across the Commonwealth.  Therefore, residents who were planning to add a heliport to their properties will need to develop new plans for their transportation needs.

[1] No. SJC-12278 (Jan. 8, 2018)
[2] Roma, III, Ltd. v. Christopher, Mass. Land Ct., No. 15 MISC 000074 RBF (Oct. 19, 2016)
[3] 89 Mass App. Ct. 392 (2016)

Up In Smoke?

Posted in Policy

Massachusetts’ fledgling marijuana industry has been thrust into a state of uncertainty. On January 4th, US Attorney General Jeff Sessions rescinded the Obama guidelines that excluded marijuana from federal drug enforcement priorities (possession and distribution of pot is a federal offense). Obama’s guidelines paved the way for the legalization of marijuana in eight states, including Massachusetts. Creating more uncertainty, Sessions is leaving federal enforcement of marijuana laws up to the individual US Attorneys in each state.

The timing of Sessions’ actions could not come at a worse time. After a rocky start, lawmakers and the state Cannabis Control Commission are poised to finalize regulations to allow retail sales of marijuana by the middle of 2018. To make matters worse, Massachusetts’ new US Attorney, Andrew Lelling, issued the following statement:

As the Justice Department has highlighted, medical studies confirm that marijuana is in fact a dangerous drug, and it is illegal under federal law. As a result, our office will aggressively investigate and prosecute bulk cultivation and trafficking cases, and those who use the federal banking system illegally.

Lelling’s statement leaves entrepreneurs and investors who purchased or have options on bulk growing facilities and retail space all over the state in an uncomfortable position, to say the least. Even if Lelling does an about face and provides comfort to cannabis industry participants that they will not end up in jail, US Attorneys are political appointees and can be removed and replaced anytime, along with their policies. What’s to stop the Attorney General from removing a US Attorney lenient on marijuana law enforcement and appointing one with a different view?  If this issue is not resolved between state lawmakers and federal officials soon, the Massachusetts cannabis industry could go up in smoke before it begins.