Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Category Archives: Environmental

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No Damages to Owner Whose Lot Is Unbuildable Due to Wetlands Regulations

Posted in Eminent Domain, Environmental, Regulatory Takings, Wetlands, Zoning
When the Conservation Commission refused to permit the construction of a house on her residential lot in a Falmouth subdivision, Janice Smyth decided to take action and sought damages for a regulatory taking of her land under the U.S. Constitution and the Massachusetts Declaration of Rights.  She was successful initially, recovering damages of $640,000.  But,… Continue Reading


Posted in Boston Development, Environmental, Waterfront Property
The 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… Continue Reading

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 property. The jury in Smyth v. Falmouth Conservation Commission and the Town of… Continue Reading

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

Posted in Environmental, Legislation
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.… Continue Reading

Beverly Port Marina and the Fates of Permitting

Posted in Environmental, Miscellaneous, Waterfront Property
If you think land use is simple, read Beverly Port Marina, Inc. v. Department of Environmental Protection — not just the recent Appeals Court decision but the underlying agency decision.  What’s so difficult?  Begin with a smorgasbord of government laws and programs:  Chapter 91, the Coastal Zone Management Plan, procurement law, the urban self-help program, Article… Continue Reading

Pilgrim Nuclear Power Plant: Local Zoning Board Causes A Reaction

Posted in Environmental, Renewable Energy, Special Permits, Zoning
Proponents of a smaller federal government probably didn’t have this in mind – a local zoning board deciding the fate of a nuclear power plant.  That’s what just happened in Plymouth, where the Zoning Board of Appeals last week decided, in an appeal filed by 18 residents, to uphold a building inspector’s decision that the Pilgrim Nuclear Power… Continue Reading

Supreme Court’s Koontz Decision May Help Landowners Fighting Mitigation Payments

Posted in Environmental, Regulatory Takings, Wetlands
Yesterday the United States Supreme Court issued its long-awaited decision in Koontz v. St. Johns River Water Management District (pdf).  The court split 5-4 along the usual lines.  According to the dissent, this decision may have a significant impact on real estate developers and the boards and commissions that regulate them. The plaintiff, Koontz, wanted to develop 3.7 acres of his… Continue Reading

Boston’s E+ Building Program Gets Off the Ground

Posted in Environmental
As reported here, the City of Boston, after conducting a design contest dubbed the E+ Green Building Program, selected three firms to design and build ten “energy-positive homes” on city land, which will be available to buyers for less than $400,000 (an energy-positive home produces surplus energy that’s returned to the power grid).  Recently, one of the winning… Continue Reading

MassDEP Regulatory Reform Will Streamline Chapter 91

Posted in Environmental
Mass DEP recently released a progress report (pdf) on its Regulatory Reform Initiative.  First launched in the spring of 2011, the reform initiative has entailed an agency-wide assessment of current practices and regulations, spawning a detailed action plan (pdf) and extensive public input, as well as a broadening of the initiative by identifying additional areas for reform.  The initiative is intended to simplify the regulatory process by introducing general permitting,… Continue Reading

Be A Commercial Real Estate Guru

Posted in Environmental, Miscellaneous, Subdivision Control, Zoning
On Tuesday, October 30, 2012, my colleagues and follow MLUM authors Gareth Orsmond and Michael Parker will be presiding over the next session of MCLE’s five-week “BasicsPlus” series on Commercial Real Estate.  Gareth and Michael will be covering zoning, subdivision control, and environmental site assessments.  The session runs from 8:30 a.m. to 10:30 a.m. and takes place… Continue Reading

Massachusetts Environmental Law In A Nutshell

Posted in Environmental, Miscellaneous
My colleague and fellow MLUM author Michael Parker will be one of the featured panelists at a Massachusetts Continuing Legal Education (MCLE) seminar next Wednesday, October 24, 2012.  The seminar is entitled Environmental Law: MCLE BasicsPlus, and will provide an “essential overview for environmental lawyers and non-specialists.”  Michael’s topic will be effective advocacy in MassDEP administrative appeals.  The seminar runs from 9:00… Continue Reading

Innovation in Allston: Nation’s First Green District Takes Root

Posted in Boston Development, Environmental, Landlord-Tenant, Zoning
In 2007, Boston was the first city in the nation to adopt Green Building provisions, known as Article 37 (pdf).  Those provisions require reduced emissions from privately-owned buildings, and require all buildings over 50,000 square feet to comply with LEED certification standards.  Now, Boston’s Allston neighborhood is home to the nation’s first Green District.  The 500 sustainable rental units are spread across seven distinct… Continue Reading

SJC Nixes Forced Waiver Of Wetlands Protection Act Deadlines

Posted in Environmental, Wetlands
In a decision issued this morning in Garrity v. Hingham Conservation Commission (pdf), the Supreme Judicial Court (SJC) ruled that the Wetlands Protection Act’s (WPA) 21-day deadlines for local conservation commissions to hold a public hearing on a notice of intent and to issue a decision after the public hearing are waivable by the applicant, provided the waiver is (1) intentional, (2)… Continue Reading

Conservation Law Foundation to the Rescue?

Posted in Environmental, Miscellaneous
Help is on the way for beleaguered environmental enforcement agencies that have experienced severe budget cuts over the past few years.  As reported here, the budgetary cuts at MassDEP have been especially deep.  The Conservation Law Foundation (CLF) has stepped into the breach by suing businesses that CLF alleges are causing releases of pollution into the waters of the Commonwealth. … Continue Reading

If Not You, Then Who? Appeals Court Addresses Who Is Responsible for Protecting Wetlands

Posted in Environmental, Wetlands
The Appeals Court’s recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).  Under the WPA, a local conservation commission is the initial… Continue Reading

Massachusetts Climate Change Goal in Jeopardy?

Posted in Environmental
With the signing into law of the 2008 Global Warming Solutions Act four years ago, Massachusetts launched what is arguably the nation’s most aggressive program to reduce greenhouse gas (GHG) emissions.  The cornerstone of the Act is a mandate that by 2020 the state’s GHG emissions be reduced 25% from 1990 levels.  MassInc recently released a comprehensive report warning… Continue Reading

Vapor Intrusion Update: EPA Issues New Findings on PCE

Posted in Environmental, Legislation, Policy
As reported here and here, MassDEP’s Final Interim Vapor Intrusion Policy (pdf) is causing consternation among property owners who had thought that their state-managed cleanup sites had been given a clean bill of health, only to have those sites re-opened when MassDEP dramatically reduced the acceptable levels of certain chemicals found in groundwater below the sites.  A… Continue Reading

The SJC’s Southbridge Standing Case, Take Two

Posted in Miscellaneous, Solid Waste, Standing, Zoning
On February 22, 2012, the Supreme Judicial Court (SJC) re-issued its decision in Board of Health of Sturbridge v. Board of Health of Southbridge (pdf).  The appellants had mailed their notice of appeal to the lower court on the last day for appeal, but it arrived and was docketed four days later.  The SJC initially released its decision in January, but withdrew it two… Continue Reading

MassDEP to Hold Public Sessions on Regulatory Reform

Posted in Environmental, Miscellaneous, Policy
To take place for the next two weeks, MassDEP has scheduled Topic-Specific Discussions on its Regulatory Reform Initiatives (based on that title, I assume they really, really want the discussions to remain on topic).  The schedule is as follows:   MCP Standards – Friday, February 3rd at 10 AM (to address EPA changes in Integrated Risk Information Systems and… Continue Reading

Certiorari Appeal Timeline Is A Trap For The Unwary

Posted in Miscellaneous, Wetlands
In an “unpublished” decision in the case of Carney v. Town of Framingham (pdf) (further appellate review denied), a panel of the Appeals Court ruled that the statutory 60-day period for filing a certiorari appeal starts on the date the administrative agency takes its “last administrative action” – in this case a vote – not when the agency later reduces its decision to writing. M.G.L. c. 249,… Continue Reading

Cape Wind Wins Battle, But Not War . . . Yet

Posted in Renewable Energy
In a year-end decision, the Massachusetts Supreme Judicial Court (SJC) approved a deal between Cape Wind and National Grid allowing National Grid to purchase, for 15 years, half the power generated by the controversial proposed wind farm.  The deal was approved by the Department of Public Utilities (DPU) in 2010.  Opponents of the deal asserted that the purchase price (18.7… Continue Reading

MassDEP Releases “Interim Final” Vapor Intrusion Guidance

Posted in Environmental, Policy
Raising the interesting question, what does the oxymoron “Interim Final” mean?, MassDEP recently released its Interim Final Vapor Intrusion Policy (pdf).  According to MassDEP, “Final” means that the public can use the policy as a guidance document that can be cited.  However, be aware that the guidance is intended to serve as a transition document until MassDEP promulgates revised vapor… Continue Reading