Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

The Beach is This Way–And It’s My Registered Land

Posted in Easements, Registered Land, Title, Waterfront Property

beach (A1250777)

A Massachusetts appellate court has ruled for the first time that new land which accretes to registered waterfront land is treated as registered land automatically, without the registered landowner filing additional proceedings.

In Brown v. Kalicki, decided earlier this week, neighbors sought to establish an easement by prescription to use for recreational purposes a beach area that had accreted over decades to registered land in Harwich owned by the plaintiffs.  The owners of the registered land were represented by my colleague, Brian Hurley, and me.

As regular readers of this blog know, use of land for a particular purpose for twenty years or more may give rise to an easement by prescription.  However, an important advantage of registered land is that, under G.L. c. 185, § 53,  it is immune to prescriptive easement claims.

“Accreted” land is new land that gradually and imperceptibly attaches to waterfront property.  The parties agreed that, under longstanding law, the accreted beach is owned by the plaintiffs.  At issue was whether that new beach was deemed registered without the necessity of the owners filing further, supplemental proceedings.  This issue was critical because the parties claiming the prescriptive easement claimed to have used the new beach area for at least twenty years before plaintiffs filed a supplemental registration proceeding.

The Appeals Court held in Brown that “the plaintiffs, whom the [parties claiming the prescriptive easement] acknowledge to be the owners of the accreted land, should continue to derive the protection that the original registrations afforded them from claims of prescriptive rights in the beach.”

In reaching that conclusion, the Appeals Court focused on a few key points.  The original registration certificate described the land as bounding on Nantucket Sound.  This would remain true only if the accreted beach was now part of the registered parcel.  The Court also emphasized that waterfront boundaries frequently change as the result of tides and winds, “so that the actual boundaries will rarely correspond exactly with what is depicted on a registered owner’s certificate of title or land court plan.”  As a result,

if accreted land is not deemed registered
upon its creation, owners of [waterfront] property would need to
amend their [c]ertificates of [t]itle on a regular basis to
prevent any loss in their property rights due to adverse use by
another. This would be inconsistent with one of the principle
purposes of the registration system: ‘to make titles certain and

The Court also rejected the assertion that the public’s limited rights under the Colonial Ordinances to use tidelands for fishing, fowling or navigation had any bearing on the claim to hold private, prescriptive rights to use the beach.

In dissent, Justice Milkey suggested that the majority was confusing ownership of the accreted land with the question of whether it should be deemed registered, a charge that the majority opinion rejected.

A number of recent cases have raised questions about the benefits of having registered land.  However, Brown reinforces that, especially when it comes to fighting claims of prescriptive easements, registered land still has its advantages.

SJC Maintains Clear Rule on Scope of Easements

Posted in Easements

beach-house.jpgIn Taylor v. Martha’s Vineyard Land Bank Commission, the SJC considered the scope of the rights that the Martha’s Vineyard Land Bank had under an easement that it held over the Outermost Inn property in Aquinnah owned by Hugh and Jeanne Taylor.  The Taylors were represented by my colleague here at Rackemann, and fellow blogger, Gordon Orloff.

The Land Bank sought to change one of the few remaining bright-line legal rules in Massachusetts: an easement appurtenant to one parcel of land may not be used as access to abutting land not benefitted by the easement, even if both parcels of land are owned by the same person.  An “appurtenant” easement is created for the benefit of a particular parcel of land and is a real estate interest that runs with the land benefited by it when that land is transferred.  The SJC resisted the invitation to create a gray area that would have required fact-intensive litigation of whether the use of the easement to reach the non-appurtenant parcel would increase the burden on the owner of the land over which the easement ran.  Instead, it kept in place the black-and-white rule prohibiting any access to a parcel that does not hold rights to use the easement.

The Land Bank owns four parcels of land in Aquinnah on Martha’s Vineyard. The three parcels closest to the Taylor property hold an appurtenant access easement over that property. The fourth parcel, known as Diem Lot 5, does not have rights in this easement.  Nevertheless, the Land Bank sought to use the access easement over the Taylor property for a new loop trail for public use that crossed over all of the Land Bank parcels, including Diem Lot 5.  The Land Bank wanted this public loop trail despite the fact that Diem Lot 5 has its own deeded access.

The Taylors filed an action in Land Court to prevent public use of the easement over the Taylor property to gain access to the Diem Lot 5. The Taylor’s claims rested in large part on a rule that originated in Massachusetts as early as 1838, and which was reiterated in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-79 (1965).  As summarized by the SJC, “the bright-line rule in Murphy … disallow[s] any use of an easement to benefit land to which the easement is not appurtenant.”

The Martha’s Vineyard Land Bank did not dispute that the Murphy rule prohibits the use of the easement appurtenant to its three parcels to reach Diem Lot 5.  Instead, it asked the SJC to change the rule, or to at least create some exceptions that would allow public access to Diem Lot 5 over the easement.  In refusing to do so, the SJC focused on the intent of the parties at the time the easement was created, which was not to provide access to Diem Lot 5.

The Land Bank had proposed that the Court inquire into whether a use benefitting the non-appurtenant land would increase the burden on the land over which an easement passes, or the so-called “servient” land. In upholding the Murphy rule, the Court paid careful attention to the effect that such a proposed rule would have on owners of servient land, emphasizing that assessing any additional burden on those owners “would require a longer process of litigation than would the bright-line rule, would lead to a less predictable outcome, and might not be affordable to owners of small servient parcels who are litigating against defendants with the financial means to acquire and develop multiple parcels of land.”  The SJC preferred “the bright-line rule articulated in Murphy” because it “provides owners of servient property with certainty regarding their possessory rights” in their land.

Boston Redevelopment Authority 1957-2016 – RIP?

Posted in Boston Development

a0812639.jpgMayor Martin J. Walsh announced this week that the Boston Redevelopment Authority (BRA) is not only changing its name, but changing its business practices and approach with communities affected by the unprecedented real estate development boom Boston is currently experiencing.  The BRA’s new moniker is the Boston Planning and Development Agency (BPDA) and will still be led by Brian Golden, a post he has held the past two years.

The BRA’s reputation has long been a thorn in its side, as some people still view the BRA as an eminent domain wielding steamroller because of the razing and redevelopment of the West End neighborhood during the heyday of “urban renewal” decades ago. Among the reforms cited by the Mayor is more emphasis on planning and community input.  Both developers and community members agree that more emphasis on planning should provide welcome certainty to the sometimes uncertain development process.

The role of the community in the review of proposed redevelopment projects is a hot button issue.  Some argue that not-in my-backyarders are too frequently allowed to derail and unduly delay worthy projects. Others contend that the current community process consists of dog and pony shows that attempt to merely placate  communities without substantively addressing their concerns.  While this debate is not likely to go away soon, it will be interesting to observe the evolution of BPDA and its effect on the Boston development and permitting process.


Posted in Nonconforming Use, Zoning

In a decision that brought cheers from thirsty beachgoers, the Appeals I'll-drink-to-that.jpgCourt in Almeida v. Arruda, 89 Mass. App. Ct. 241 (2016) affirmed a lower court finding that the sale of beer and wine at a pre-existing, nonconforming convenience store was neither a substantial change in use nor a detriment to the neighborhood.

Pursuant to G.L.c. 40A, §6, a prior nonconforming use is not subject to subsequently enacted zoning restrictions. However, in certain circumstances, a change or substantial extension of such use may require compliance with current zoning requirements.  In order to determine whether the sale of beer and wine is a change or substantial extension under Section 6, the lower court judge utilized the 3-prong “Powers” test. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973).  The 3-prong test is as follows:  (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood.

At trial, evidence was introduced that only 12% of the store’s floor space would be used for beer and wine sales. Applying the Power’s test, the lower court concluded, and the Appeals Court affirmed, that the sale of beer and wine did not constitute a substantial change in use.  Accordingly, the proposed use, including the sale or beer and wine, remains protected as a lawful pre-existing nonconforming use.

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.

Enacted 40 years ago, TSCA has proven to be a wholly ineffective tool for the United States Environmental Protection Agency (“EPA”) to oversee the tens of thousands of chemicals used in products and the workplace. In 1976 there were approximately 62,000 chemicals in the marketplace subject to EPA regulation, but because of the onerous conditions placed on EPA, as of today only 5 of those chemicals have been banned from use and only a tiny fraction of the others have been studied for health and safety.  FRL-21 frees EPA to increase significantly the number of chemicals subject to its oversight.

The cost of the expansion of EPA’s jurisdiction over those chemicals comes at the expense of state jurisdiction. Because the old TSCA was so ineffective, states stepped into the breach and played a prominent role in the evaluation and oversight of toxic chemicals.  For instance, in 1989 Massachusetts passed into law the Toxics Use Reduction Act, M.G.L. c. 211, (“TURA”).  TURA augments TSCA by requiring users of relatively large amounts of toxic chemicals to report usage and develop a plan to reduce toxic waste.  Through TURA, Massachusetts was able to reduce the generation of toxic waste by 50% by 1998.  TURA and certain other existing state laws will not be subject to preemption as FRL-21 grandfathers any state law enacted prior to August 31, 2003.  State laws enacted after that date are subject to preemption.

Many states are concerned that FRL-21’s more centralized regulatory system will fare no better than the original TSCA and prevent states from stepping into the regulatory void. FRL-21 strictly limits when states can enact new laws or continue enforcement of existing laws.  Also, once EPA takes final action on a chemical it has evaluated, states are prohibited from taking action on those chemicals unless they receive a waiver, which turns out to be a formidable obstacle.  In order to obtain a waiver, states need to: 1) demonstrate a compelling need; 2) put forth a well-developed scientific basis; or 3) take action on a chemical within 18 months of EPA beginning risk evaluation of a chemical.

FRL-21 advocates contend that it sends clear and consistent signals to industry and the marketplace. However, there is a preemption battle brewing on the horizon, and clarity seems a long way off.  It is more likely that states race to enact more stringent toxic chemical laws before EPA does, either during the initial 18 month evaluation period or under the penumbra of other environmental laws and regulations, such as the Clean Water Act or greenhouse gas emissions. Attorneys General from 16 states, including Massachusetts, plan to push the preemption battle, placing the ultimate control of TSCA in doubt for the foreseeable future (see TSCA Letter).

The Beach is Which Way?

Posted in Standing, Zoning


On June 17, 2016, the Supreme Judicial Court decided an interesting zoning case concerning whether the holder of a beach access easement has standing to challenge a zoning determination affecting the beach parcel.  The case is Picard v. Zoning Board of Appeals of Westminster.

As all followers of Massachusetts zoning know, the standing of a plaintiff to challenge a zoning decision is often a dispositive and hotly disputed issue.  This is in large part because it is typically difficult to glean any clear guidance from the cases, which are highly fact intensive.  Indeed, in this case the Appeals Court found standing, whereas the trial court and the SJC did not.

In Picard, the SJC avoided some of the mind numbing standing analyses that we have seen and instead focused on the fact that the plaintiff’s complaint was unrelated to the zoning at hand.

Picard did not claim that constructing a residence on the locus would be deleterious in any respect related to typical zoning concerns, for example, density, traffic, parking availability, or noise….  Nor did he claim standing based on any injury related to the merits of his zoning challenge, that is, the locus’s status as a grandfathered nonconforming lot or its insufficient area or frontage. Rather, Picard claimed that the proposed construction would interfere with his use of the locus for access to the pond [pursuant to his easement and lead to conflict between the easement holders and the landowner].

Picard was an abutter to the beach property who was entitled to a presumption of standing.  Nevertheless, the Court held that the injuries that Picard was asserting to his “private easement rights are not within the scope of concern of the Zoning Act.”

The SJC also pointed out that the landowner had made clear that, rather than interfering with beach access, his proposed construction would improve that access.  Picard’s testimony to the contrary consisted solely of his opinion, “unsupported by any specific construction plans or other evidence.”  His mere opinion would not have been enough to support standing, even had Picard’s alleged injury been within the scope of concern of the Zoning Act.

Although standing to challenge zoning decisions will continue to be a messy area of the law, Picard reinforces some of the straightforward rules that must be considered.  In order to have standing parties challenging a zoning decision must assert that they will suffer an injury that falls within the interests that zoning seeks to protect.  Plaintiffs also must establish that they are likely to be harmed with some hard evidence and not merely rely on conjecture or opinion.

City of Boston Updates its Inclusionary Development Policy

Posted in Affordable Housing, Boston Development, Policy, Zoning

In December 2015, Boston Mayor Martin J. Walsh signed an Executive Order Relative to Inclusionary Development updating the city’s Inclusionary Development Policy (IDP), which has been in place since 2000.

The IDP applies to residential developments with ten or more units that will either be developed on property owned by the City of Boston or that require relief from the Boston Zoning Code. Under the IDP, developers of these projects are required to either build affordable units on-site, build or acquire affordable units in an off-site location, or, with Boston Redevelopment Authority (BRA) approval, provide a contribution to the Inclusionary Development Fund.

Any project filed with the City on or after January 1, 2016 will be subject to the updated IDP. The most notable changes to the IDP are highlighted below:

Creation of a three-zone model. Whereas the prior IDP applied the same affordability requirements regardless of a project’s location, the updated IDP seeks to recognize the market differences between Boston’s downtown core and its outer neighborhoods. The zones are designated as A, B, and C. Zone A will include the downtown neighborhoods and waterfront areas; Zone B will include Allston, Brighton, Charlestown, Jamaica Plain, Mission Hill, and part of South Boston. Zone C will include Dorchester, East Boston, Hyde Park, Mattapan, Roslindale, Roxbury, and West Roxbury.

Strengthens preference for on-site affordability. While the City’s preference has always been that units created through the IDP remain on-site, the new IDP now incentivizes developers to do so. The prior IDP required that a total of 15% of market rate units – or 13% of total units – be provided as affordable, whether on-site or off-site. Now, in Zones A and B, developers seeking to build their units off-site will be required to increase the number of affordable units from 15% of the total to 18% of the total units in their development. (In Zone C, the requirement will remain at 15% of the total units.)   The new IDP also requires that any off-site units be created within a half mile radius of the project.

Changes in contribution amounts. Based on the location of new developments within the three new zones, the IDP has been modified to increase the contribution amounts for developers wishing to make a cash-in-lieu payment instead of building affordable units on-site. With the exception of Zone C, the new contribution limits will be higher than in the previous policy, rising from $200,000 per unit to $300,000 in Zone B, and from $200,000 to $380,000 in Zone A. For ownership units, the payment is half the difference between the market value of the unit and the value of an income-restricted unit, with a minimum of $300,000 per unit in Zone B and $380,000 per unit in Zone A. In addition, payments will be based on the new, higher off-site unit requirements of 18% affordability in Zones A and B; Zone C payments will continue to be based on 15% affordability.

Increase of AMI in Zone C. All affordable rental units created through the IDP are required to be affordable to households with incomes less than or equal to 70 percent or less of the Area Median Income (AMI). Under the updated IDP, in Zone C projects, the BRA may now allow either all or a portion of on-site units to be designated for households earning up to 100% of the AMI.

The updated IDP also codifies the City’s approach to a variety of details involved in the implementation of the IDP, including the following:

  • Allowing payment of IDP contribution in an up-front present-value lump sum
  • Allowing off-site units to be provided through direct construction or rehabilitation of existing units
  • Requiring that on-site affordable units be comparable to market-rate units
  • Requiring that on-site affordable units not be stacked or concentrated on the same floors
  • Clarifying AMI distribution for both rental and ownership units
  • Establishing a maximum allowable rent for micro-units (studio units of less than 450 square feet)

A full pdf copy of the new IDP is available here.  Boston – 2015 IDP

At Long Last Legislation Addresses Ibanez Issue

Posted in Foreclosure, Legislation, Title

Image copyright Catherine Lane 2015

The Massachusetts Legislature and Governor Baker have taken a much needed step to limit further problems resulting from the Ibanez decision and its progeny.  Those cases made clear that a foreclosure by a party that did not yet hold an assignment of the mortgage failed to convey good title.  As a result, many third party buyers who had purchased foreclosed property before the Ibanez decision were left holding, at best, flawed title.

In many instances it has been difficult (and frequently impossible) to locate the owner of the improperly foreclosed-upon property, or to get the assignment(s) necessary to attempt to re-foreclose.  As a result, it also has been difficult to clear title to the foreclosed homes.

To address these issues, on November 19, 2015, Governor Baker signed into law An Act Clearing Title to Foreclosed Properties , Chapter 141 of the Acts of 2015.  The legislation takes effect on December 31, 2015.

In essence, this Act provides that an appropriate affidavit regarding the foreclosure sale shall be conclusive evidence vesting title in an arm’s length purchaser for value after three years has passed following the recording of that affidavit or the effective date of the Act, with some minor variations.

The Act does not protect a purchase by the foreclosing entity.  It also does not cure the title if the owner at the time of foreclosure commences an action challenging the sale (and records the complaint or other pleading challenging the foreclosure sale) before the deadline.  Note that a different deadline applies where the borrower still occupies the mortgaged premises as his principal place of residence and asserts a defense arising from a botched foreclosure in an eviction or similar case.

However, barring timely challenges, an innocent purchaser’s Ibanez problem is effectively cured by the filing of the affidavit and the passage of the appropriate time period.

This Act attempts to balance the interests of homeowners with the interests of innocent purchasers for value of homes with flawed titles due to foreclosure problems.  It also should enable many properties to be returned to the Commonwealth’s housing stock.

Two Cheers For Nude Dancing

Posted in Police Power, Zoning

In its decision last week in Showtime Entertainment, LLC v. Town of Mendon, the Supreme Judicial Court (SJC) struck down a Town of Mendon bylaw banning alcohol at “adult entertainment businesses.”  This is the latest case to grapple with the tension that often arises between a municipality’s exercise of its police powers and citizens’ exercise of their First Amendment rights.  While the result of the decision is to invalidate the offending bylaw, the court offers suggestions for how the town can revise its bylaw to pass constitutional muster.

In 2008, Mendon created an adult entertainment overlay zoning district.  In short order the plaintiff, Showtime, applied for a license to operate a strip club in the new district.  While that application was pending, a citizen group calling itself “Speak Out Mendon” petitioned the board of selectmen to enact bylaws strictly regulating adult businesses, including by forbidding the sale of alcohol at such business.  The group cited two studies suggesting that the presence of alcohol near “sex-oriented businesses” causes an increase in crime.  Showtime’s application was denied and, days later at a special town meeting, Mendon adopted the proposed new bylaws.  Showtime applied for a license under the new regime, and this time its application was granted.  License in hand, Showtime promptly filed suit in federal court challenging the new bylaws − particularly the alcohol ban − as unlawful restrictions on the constitutionally protected “expressive activity” of nude dancing.

The U.S. District Court ruled in Mendon’s favor and Showtime appealed.  The First Circuit then certified two questions to the SJC:  (1) do the pre-enactment studies considered by the town establish a “countervailing state interest” justifying the alcohol ban; and (2) if the ban is so justified, is it adequately tailored to minimize any infringement on First Amendment rights?

On the first question the SJC sided with the town, ruling that the studies cited by Speak Out Mendon were sufficient to establish the town’s “countervailing interest” in controlling the “explosive combination” of nude dancing and alcohol.  The court acknowledged that regulating such activity is “inevitably intertwined with the right of free speech,” and trotted out this nifty quote from one of its prior decisions:

the artistic preferences and prurient interests of the vulgar are entitled to no less protection than those of the exquisite and sensitive esthete.

Nonetheless, the SJC rejected Showtime’s challenge to the studies on which the town relied.  The court held that the town’s countervailing interest “need not be perfectly demonstrated.”  Rather, “the evidence before the municipality must lead to the reasonable conclusion that a countervailing State interest exists in fact.”  Though both studies concerned cities in California (one being Los Angeles), and only one study considered the role of alcohol in exacerbating the negative effects of sex-oriented business, the SJC found the studies sufficient (if barely so) to establish the town’s interest, and faulted Showtime for failing to present affirmative evidence to rebut them.

It was the First Circuit’s second question that scuttled Mendon’s bylaw.  The SJC ruled that the bylaw is not sufficiently tailored, and therefore impermissibly infringes on Showtime’s First Amendment rights.  The applicable standard requires that the challenged regulation “focuses on the evils the [town] seeks to eliminate . . . and eliminates them without at the same time banning or significantly restricting a substantial quantity speech that does not create the same evils.”  The SJC found that by banning alcohol at any establishment in the overlay district that displays live nudity, Mendon’s bylaw is broader than necessary.  The court noted that, in addition to strip clubs, the bylaw would ban alcohol at a (hypothetical) theatre showing “the rock musical ‘Hair,’ the play ‘Equus,’ and Richard Strauss’ opera ‘Salome’ and Oscar Wilde’s play of the same name.”  In the court’s view, the bylaw’s blanket ban on alcohol “is not the logical response” to the town’s belief that alcohol at adult businesses increases crime.  Rather, the town “must seek other, narrower means to pursue its goal of crime prevention.”  In this regard, the court suggested that the town might permissibly further its “countervailing interest” through increased security requirements, or by limiting (as opposed to completely banning) alcohol consumption.

Given this ruling, I expect Mendon is already at hard work on a revised bylaw, and Showtime is gearing up for the next round in this battle.  We’ll keep you posted.

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 who work for brokerage firms under M.G.L. c. 112, § 87RR, which governs the licensing of real estate brokers and salespersons.  As the SJC observed, these two statutes conflict:  under the independent contractor statute, the plaintiff salespersons would be deemed employees, while under the real estate licensing statute they could be either employees or independent contractors, depending on the nature of their relationship with the broker they work for.  Under the independent contractor statute, if the defendant brokerage firms had misclassified the plaintiffs as independent contractors when they were actually employees, the brokers would be subject to substantial civil and even criminal penalties.

The SJC affirmed the lower court’s ruling that the independent contractor statute does not apply to real estate salespersons.  The court cited the familiar canon of construction that, where two statutes are in conflict, the more specific law (the real estate licensing statute) controls over the more general law (the independent contractor statute).  However, the SJC noted that its decision does not resolve the entire dispute:  because even under the real estate licensing statute, salespersons may be either employees or independent contractors, and because the parties did not litigate the issue of how real estate salespersons should be classified outside the framework of the independent contractor statute, the court stated, “we think it prudent to leave that issue’s resolution to another day, when it has been fully briefed and argued.”  The court added, hopefully, “Should the Legislature be so inclined, it may wish to clarify how a real estate salesperson may gain employee status under the real estate licensing statute.”

It will be interesting to see how the real estate brokerage industry responds to Monell, and whether the Legislature takes up the SJC’s invitation to resolve this important open issue by amending the real estate licensing statute.