Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Category Archives: Legislation

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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… 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

Breaking: SJC Rules That Real Estate Salespersons Are Not Covered By Independent Contractor Statute

Posted in Legislation, Miscellaneous
This morning the Supreme Judicial Court (SJC) released its decision in the closely-watched case of Monell v. Boston Pads, LLC.  The main issue on appeal – one of critical importance to the real estate brokerage industry – was whether the state’s 2004 independent contractor statute, M.G.L. c. 149, § 148B (part of the Wage Act), applies to real estate salespersons… Continue Reading

Under The Hood Of The Land Use Reform Bill, Part 2: Zoning Freezes And The Plan Formerly Known As ANR

Posted in Legislation, Subdivision Control, Zoning
In our continuing look at the Legislature’s proposed land use reform bill, “An Act Promoting the Planning and Development of Sustainable Communities” (the Act), we turn to the subject of zoning freezes and Approval Not Required (ANR) plans.  The Act proposes significant changes to existing law governing the zoning freezes triggered by building permits, special permits, and subdivisions.  These changes are in Sections 6-12 of the Act… Continue Reading

Under The Hood Of The Land Use Reform Bill, Part 1: Special Permits

Posted in Legislation, Special Permits, Zoning
Today we begin our detailed examination of the far-reaching land use reform bill pending before the Legislature.  The title of this bill is “An Act Promoting the Planning and Development of Sustainable Communities”; it’s also known as House Bill H.1859.  I’ll refer to it as the “Act.”  The Act is currently pending before the Joint Committee on Municipalities and Regional Government.  As… Continue Reading

Co-Drafter Of Colossal Land Use Reform Bill Touts Its Benefits

Posted in Legislation, Policy, Special Permits, Subdivision Control, Zoning
Jeffrey R. Lacy, AICP, is a Regional Planner with the Massachusetts Department of Conservation and Recreation’s Division of Water Supply Protection.  More importantly for present purposes, Jeff is also a co-drafter of House Bill No. 1859 (pdf), “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and… Continue Reading

Full Text of Massachusetts Land Use Reform Bill

Posted in Affordable Housing, Legislation, Policy, Subdivision Control, Zoning
Here’s the full text of Massachusetts House Bill H.1859, entitled “An Act Promoting the Planning and Development of Sustainable Communities,” which is presently before the Joint Committee on Municipalities and Regional Government.  I’ll be digging into this jam-packed bill over the next few weeks and posting my thoughts on some of its key provisions.  I invite our regular MLUM readers and others… Continue Reading

ALERT: Near End Of Session, Mass. Legislators Pushing Complex Bill That Would Change Zoning And Land Use Law As We Know It

Posted in Legislation, Policy, Subdivision Control, Zoning
A summary of what this bill would do is here.  A few things jump right out: (1) the bill’s title, “An Act Promoting the Planning and Development of Sustainable Communities,” gives me the willies; (2) sayonara, ANR plans; (3) allows town meeting to change zoning bylaws by a simple majority, promoting instability in the law; (4) authorizes impact fees so municipalities can… Continue Reading

Make It A Double: “Jobs Bill” Extends Permit Extension Act

Posted in Legislation, Miscellaneous, Policy
A bill entitled “An act relative to infrastructure investment, enhanced competitiveness & economic growth” – now known as the “Jobs Bill” – was signed into law yesterday by Governor Deval Patrick.  The Jobs Bill contains provisions enhancing local infrastructure initiatives and streamlining the process for creating local District Improvement Financing Districts.  See our post on an… Continue Reading

Breaking: Governor Signs Economic Development Bill, Doubles Permit Extensions

Posted in Legislation, Miscellaneous
Massachusetts Governor Deval Patrick has signed a long-simmering economic development bill that includes a doubling – up to four years – of the extensions granted by the 2010 Permit Extension Act, and other benefits for property owners and developers.  More details and a copy of the final version of the bill to follow here shortly.… Continue Reading

Breaking: The Massachusetts Permit Extension Act, Squared

Posted in Legislation, Miscellaneous, Policy
On Wednesday, the Massachusetts House voted to pass an economic development bill, An Act Relative to Infrastructure Investment, Enhanced Competitiveness and Economic Growth in the Commonwealth.  This bill contains provisions regarding the extension of the Brownfields Tax Credit and the creation of the Local Infrastructure Development Program.  The bill also would extend the 2010 Permit Extension Act (“PEA²”).  The… 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

SJC Rules That Trust Beneficiary Can’t Claim Protection Under Pre-2011 Homestead Statute

Posted in Legislation, Miscellaneous, Title
In this morning’s decision in Boyle v. Weiss (pdf), the Supreme Judicial Court (SJC) answered an important question certified to it by the U.S. Bankruptcy Court for the District of Massachusetts:  whether the beneficiary of a trust that holds title to residential property, where the beneficiary herself lives on the property (in this case, as a tenant of the trust), is entitled to protection under Massachusetts’… Continue Reading

Federal Wetlands Jurisdiction Still Murky

Posted in Legislation, Policy, Wetlands
The federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into “navigable” waters of the United States without a Section 404 Permit issued by the Army Corps of Engineers (Corps).  Once this permit has been issued, the Environmental Protection Agency (USEPA) monitors permit compliance, sharing concurrent jurisdiction with the Corps. There has been a… Continue Reading

$500 Million Copley Place Residential Project Shadowed by Opposition

Posted in Boston Development, Legislation
Simon Property Group’s proposal to build a residential tower to complete the expansion of Copley Place was unanimously approved by the Boston Redevelopment Authority last week.  At 47 stories and 800,000 square feet, Simon’s project will include 318 residential units (condominiums or rentals to be determined), and additional retail space (including an expanded Nieman Marcus), making it Boston’s… Continue Reading

SJC Splits Baby on New Statute’s Effect on Post-Foreclosure Evictions

Posted in Foreclosure, Landlord-Tenant, Legislation
Last month the Supreme Judicial Court (SJC) decided Federal National Mortgage Association v. Nunez  (pdf).  We discussed the oral argument of that appeal in this earlier post.  Nunez concerned a summary process (i.e. eviction) action filed by Fannie Mae against a tenant living in a foreclosed residential property.  That action was pending, but not completed, before the effective date of M.G.L. c. 186A. … Continue Reading

Waterfront Property Owners Beware: the State Wants Your Beach!

Posted in Legislation, Policy, Title, Waterfront Property
A bill making its way through the Massachusetts legislature – House Bill H254 (pdf) – would drastically change longstanding Massachusetts law regarding waterfront property ownership.  Under current law, a waterfront property owner owns the beach – down to the low water mark – that is “attached” to his or her upland property.  I use the term “attached” because beaches… Continue Reading

Is Adverse Possession on the Run?

Posted in Foreclosure, Legislation, Title
It appears the world at large is shocked – shocked! – to learn about the “obscure legal maneuver” known as adverse possession.  In light of this story, I suppose it’s a good thing Massachusetts requires 20 years of adverse possession to acquire title.  A short statute like the one in Texas – three years if the adverse… Continue Reading

ALI-ABA Land Use Institute Meeting in Boston August 17-19

Posted in Legislation, Miscellaneous, Zoning
I’ll be speaking at the meeting of the ALI-ABA Land Use Institute on August 17-19.  The meeting takes place at the Massachusetts Continuing Legal Education (MCLE) Conference Center at 10 Winter Place in Boston.  Topics include:  an update on planning and land use decisions, where I’ll be discussing condition uses and nonconforming uses; and federal laws and regulations affecting… Continue Reading

Is SJC Decision Enough to Send NREIS Packing?

Posted in Foreclosure, Legislation, Miscellaneous
The Supreme Judicial Court’s decsion in REBA v. NREIS (pdf) may not have fully answered the two questions the First Circuit certified, but the guidance the SJC did provide may make it difficult for out-of-state companies to continue selling “settlement services” in Massachusetts.  As described in this prior post (and in more detail in the SJC’s decision), the defendant, National Real Estate Information Services, Inc. (NREIS)… Continue Reading

Breaking News: SJC Responds to Certified Questions in REBA v. NREIS

Posted in Foreclosure, Legislation, Miscellaneous, Policy
The Supreme Judicial Court (SJC) this morning issued its decision (pdf) in Real Estate Bar Association, Inc. v. National Real Estate Information Services, a case that presents important issues involving the unauthorized practice of law and the ability of companies such as the defendant to “facilitate” real estate closings.  The case is described in this previous post.  The First Circuit Court of… Continue Reading

Divided Appeals Court Panel Reverses Land Court on “Bona Fide Offer” Issue

Posted in Agricultural Use, Legislation, Miscellaneous
In a St. Patrick’s Day decision, the Appeals Court interpreted the “bona fide offer” requirement in the version of M.G.L. c. 61A, § 14 (which governs the classification of land as agricultural for property tax purposes) that was in force before the statute’s 2006 amendment.  Reversing a contrary Land Court decision, a divided Appeals Court panel held that an offer conditioned on receiving approvals… Continue Reading

Stop! In the Name of HAMP: Bankruptcy Court Enjoins Foreclosure

Posted in Foreclosure, Legislation
The federal Home Affordable Modification Program (HAMP) provides a mechanism for struggling homeowners to modify mortgage loans with participating lenders.  HAMP’s effectiveness has been questioned, but it recently provided the legal basis for a preliminary injunction against a foreclosure.  In the bankruptcy proceeding In re Cruz (pdf), the debtor, Mr. Cruz, had applied with Wells Fargo Bank, N.A.… Continue Reading