Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

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.

Pending SJC Case Could Change Condominium Litigation in Massachusetts

Posted in Condominiums

My colleague at Rackemann, Jonathan Hayden, has been watching this pending SJC decision and the following is his take on the case:

The Supreme Judicial Court’s upcoming decision in Trustees of Cambridge Point Condominium Trust v. Cambridge Point, LLC has the potential to change significantly the landscape for condominium litigation in Massachusetts.  The decision also has the potential to either increase lawsuits initiated by condominium boards, or eliminate the possibility of lawsuits against future condominium developers.

When developers draft condominium bylaws they often include a provision restricting the board’s ability to initiate litigation without consent of a specific percentage of unit owners.  The bylaws of the Cambridge Point Condominium Trust includes such a provision, requiring consent of 80% of unit owners to consent to the litigation, while also requiring that 80% of the unit owners review and approve a not-to-exceed budget for the litigation and that the condominium trust immediately assess all unit owners for the total amount of the approved not-to-exceed budget.

The Cambridge Point Condominium Trustees argue these provisions simply allow condominium developers to insulate themselves from potential suit and has asked the Supreme Judicial Court to invalidate such limitations on the condominium board’s authority to initiate litigation.  If the Court rules in favor of the Cambridge Point Trustees, it could result in a surge of litigation against condominium developers for construction defects because the litigation could then be brought by a small group of determined unit owners who secure seats on the condominium board, regardless of whether unit owners desire to proceed with the litigation.  However, if the Court rules in the developer’s favor, future condominium developers would have a roadmap describing how to immunize themselves from future litigation risks.

The Cambridge Point Trustees argue that the bylaw provisions violates the Massachusetts Condominium Act by restricting the condominium board’s authority to initiate litigation, which the Condominium Act specifically enumerates as a power of the condominium board.  Additionally, the Cambridge Point Trustees argue that even if the 80% vote requirement does not violate the Massachusetts Condominium Act, it should be void as against public policy because it allows condominium developers to insulate themselves from future litigation related to the condominium’s development.

It is easy to see the rationale to the arguments from both the trustees and the developers.  The trustees are likely correct that developers could virtually immunize themselves from future litigation by owning a specific number of condominium units until the applicable statutes of limitations and repose have run.

However, it is also understandable that condominium unit owners would want to avoid being saddled with extensive litigation costs when a condominium board initiates costly litigation without overwhelming support of the unit owners, and that the opportunity to vote out condominium board members that initiate foolhardy litigation is not necessarily the best protection from incurring such costs.

While legislation is always available to resolve any extreme, unwanted consequences resulting from the upcoming decision, condominium developers, condominium boards, and their respective counsel will need to be ready to deal with the decision’s impact, regardless of which direction the Court chooses.

Land Dedicated As A Public Park Is Protected Under Article 97

Posted in Zoning

With a shortage of vacant land available for construction of new school buildings, municipalities are frequently pressured to convert parkland to school uses. More often than not, such conversions implicate Article 97.

Article 97 of the Amendments to the Massachusetts Constitution “provides that land and easements taken or acquired for conservation purposes shall not be used for other purposes or otherwise disposed of without the approval of a two-thirds roll call vote of each branch of the legislature.” Based on the foregoing, Massachusetts courts have consistently ruled that land is protected under Article 97 only when the land is specially designated for Article 97 purposes by a recorded instrument.

In a recent decision, Smith v. City of Westfield (pdf), the Supreme Judicial Court changed direction and held that there are circumstances where municipal parkland may be protected by Article 97 even though the land in question was not taken by eminent domain or acquired for conservation purposes and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes. In this case, the SJC found that land may be protected by Article 97, provided the land in question had been dedicated as a public park.

The Court further ruled that a municipality is deemed to have dedicated land as a public park where there is a “clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park.” Because the park in question was clearly dedicated by the City of Westfield as a public park, the Court held that the conversion of the park to school uses is subject to Article 97.


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.


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.


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

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.