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.

Continue Reading Governor Baker Proposes Zoning Changes to Promote More Housing

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.

Continue Reading Newton Drone Ordinance Struck Down, but Significant Questions Remain

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.

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.

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)

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.

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.

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.

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.”

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.