Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Tenant Required to Prove that It Terminated Lease

Posted in Landlord-Tenant

dispute photo (A1302986.x7AB72)Earlier this week the Appeals Court decided that a tenant has the burden of proving that it properly exercised its option to terminate a written lease.  The commercial lease in Patriot Power, LLC v. New Rounder, LLC,  provided that it would renew automatically each  year unless one of the parties timely notified the other that it wished to exercise a termination option in the lease.  Importantly, the lease contained standard language that notices “shall be in writing and shall be sent by” specified means and “shall be effective when received, or if delivery is refused, upon first refusal.”

The tenant sent a package in the fashion required, and the landlord received that package before the notice of termination was due.  The dispute arose because, although the parties agreed on certain contents of that package, they disputed whether it also contained a termination notice from the tenant.  That dispute arose from conflicting testimony by administrative assistants–the tenant’s administrative assistant testified that she had “no doubt at all” that she included the termination notice in the package, whereas the landlord’s executive assistant was “absolutely certain” that no such notice was present.

In the face of this conflicting evidence, at trial it was important which party had the burden of proving to the jury whether or not the termination notice was in the package.  The trial judge instructed the jury that the landlord had the burden of proof, and the jury apparently concluded that the landlord failed to satisfy that burden and ruled in favor of the tenant.

The Appeals Court ruled that the trial judge got it wrong.  It reasoned that, because the tenant was required to take an affirmative action to terminate the lease, it had the burden of proving that the notice of termination was actually received.  The jury instruction was at odds with this ruling, so the Appeals Court sent the case back down for a new trial.

This ruling is consistent with the longstanding rule that someone seeking to exercise an option (typically an option to purchase or to extend a lease) is required to “turn his corners squarely” by complying with all contractual requirements.

This case is a reminder to all parties to a lease to keep strong records of key actions and notices.  Those records may be of critical importance should a dispute later arise.



Regulatory Taking, Anyone?

Posted in Environmental, Police Power, Regulatory Takings, Waterfront Property, Wetlands


A Cape Cod jury, after a scant one-hour deliberation, decided in favor of a Falmouth landowner who claimed that the Falmouth Conservation Commission’s refusal to grant variances from the Town’s Wetlands Protection Bylaw deprived her of all beneficial use of her Ocean front summer vacation rental under a blue sky. Outer Banks. North Carolina. Horizontal]-For more bodies of water images, click here. OCEAN LAKE RIVER and SHOREproperty. The jury in Smyth v. Falmouth Conservation Commission and the Town of Falmouth awarded Ms. Smyth the full amount of the decrease in her waterfront property’s value.  Successful regulatory takings cases are rare, and landowners and municipalities are sitting up and taking notice of this case.

By inheritance, Ms. Smyth owns a vacant lot in a 174-lot subdivision approved by the Falmouth Planning Board in 1968. Single-family homes have been built on nearly all of the lots.  Intending to build a retirement home, Ms. Smyth’s parents purchased the lot in 1975 before Falmouth adopted the Wetlands Bylaw and when construction of a single-family home was allowed as-of-right.

Several wetland resource areas are located on the lot, including a salt marsh and a coastal bank. Since the Smyth’s purchase of the lot, the Falmouth Conservation Commission adopted the Wetlands Bylaw.  As a result, by 2008 building a single-family home required that the Conservation Commission grant variances to allow construction within the “no disturbance” buffer zones of the salt marsh and coastal bank.  Without the variances, only 115 square feet of the 16,477 square foot lot is developable.  From 1975 to 2015, the Town assessed the lot as if it were buildable, 2015’s assessed value being $653,000.

In 2012, Ms. Smyth filed a Notice of Intent with the Commission which included a request for the necessary variances. The Commission denied her request and Ms. Smyth successfully obtained a superseding Order of Conditions from MassDEP approving her project, but the Conservation Commission continued to block the project.  Ms. Smyth then sued the Conservation Commission and the Town in Superior Court asserting that the Conservation Commission’s refusal to permit the construction of the house constituted a regulatory taking of her property and sought to recover the decrease in property value as damages.  During the five-day trial, the jury heard testimony from Ms. Smyth’s expert witness that due to the adoption and amendment of the Wetlands Bylaw since the time the Smyth’s purchased the property, the value of the lot decreased by about 92% from $700,000 to $60,000.  In their short hour of deliberations, the jury decided that the Wetlands Bylaw and the Commission’s subsequent denial of relief constituted a regulatory taking and awarded Ms. Smyth $640,000, plus interest.

In essence, the jury decided that the application of the Wetlands Bylaw violated Article 10 of the Massachusetts Declaration of Rights and the Fifth and Fourteen Amendments of the U.S. Constitution, as well as the guidelines set forth by the Supreme Court in the 1978 Penn Central case. To no one’s surprise, the Town has signaled that it intends to appeal the verdict.  Regardless, there is little doubt that state and local officials and their counsel have taken notice of the result and are  trying to determine how to best enforce their regulations without sustaining a similar result.

Smooth Sailing for Safe Salem Marina

Posted in Variances, Waterfront Property, Zoning


Yesterday the Appeals Court upheld a variance decision by our former colleague, Land Court Justice Robert Foster.  In that case, Furlong v. Zoning Board of Appeals of Salem, Furlong challenged a variance granted to the abutting Brewer Hawthorne Cove Marina in Salem.

The variance permitted the Marina to construct a new building outside of the setback requirements of the local zoning ordinance for use as a boat repair facility and office.  The Marina proposed to locate that building at the edge of its property within the setback in order to provide adequate room for the safe operation of a travel lift that moved boats and to reduce the noise and fumes generated by the boat repairs in their present location.  The Marina also proposed to widen the entrance to the marina, which would provide better access including for emergency vehicles. On appeal, Furlong argued that the safety concerns relied on by the Land Court in upholding the variance do not constitute a hardship under the statute.

The Appeals Court began by noting that “the statutory requirements that must be met for an individual seeking a variance are rigorous.”  The Court noted that the governing statute, G.L . c. 40A, § 10,

authorizes a board of appeals to grant a variance from the local zoning ordinance only where it: “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”  Each of the requirements of the statute must be met before a board may grant a variance.

The appeal turned on whether “a safety concern, ameliorated by the granting of a variance, qualifies as a hardship under § 10.”  For guidance on this question the Appeals Court looked to the sole Massachusetts case that it could find on the issue,  Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972).  In Josephs, the Supreme Judicial Court affirmed a lower court decision upholding a variance to construct a loading bay with a reduced height in a high-rise commercial and residential building because, if the zoning ordinance were strictly applied, “one alternative would result in a safety hazard to persons using the excessively steep ramp, while the other would result in an economic loss due to interference with the configuration of the building.”  Id. at 293.  Based on these facts, the SJC concluded that the lower court was warranted in finding that a “hardship, financial or otherwise” had been demonstrated.  Id.

Against that legal backdrop, the Furlong court reasoned:

Like the developer in Josephs, the facts here demonstrate that if [the Marina] adjusted its plans to fit within the requirements of the local zoning ordinance, a significant risk of harm for the people and property near the travel lift would result. We agree with the judge that “[w]here a variance diminishes the risk of an existing harm or where it prevents a greater risk of harm that would result from compliance with a zoning ordinance, such a hardship may merit a variance.” We also agree that the unique circumstances in this case, and the degree of danger that would result from compliance with the zoning ordinance, support the judge’s finding of a hardship. Accordingly, where the unchallenged evidence, found de novo by the judge, satisfies all of the requirements of the statute, the decision of the board must be affirmed.

This case throws a life line to parties seeking a variance for safety reasons.

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