Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Category Archives: Policy

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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 On January 4th, US Attorney General Jeff Sessions rescinded the Obama guidelines that excluded marijuana from federal drug enforcement priorities (possession and distribution of pot is a federal offense).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… Continue Reading

Breaking: SJC Rules That Candidate Can’t Be Barred From Soliciting Signatures At Private, Stand-Alone Supermarket

Posted in Landlord-Tenant, Miscellaneous, Policy
In a closely-watched case affecting hundreds of stores and other commercial establishments across Massachusetts, the Supreme Judicial Court (SJC) today ruled that Article 9 of the Massachusetts Declaration of Rights – which protects the right of equal access to ballots – trumps the right of private property owners to bar individuals from soliciting signatures in support of a candidate’s nomination to public office.  Here is a full… Continue Reading

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

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

Full Text of Massachusetts Land Use Reform Bill

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

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

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

Old “Common Enemy Rule” Still Causing A Flood Of Trouble

Posted in Policy
In its recent decision in Graziano v. Riley (pdf), the Appeals Court overturned a Superior Court ruling that required the defendant landowners to remove a berm they had built to stop water from flowing onto their property.  Problem was, the defendants’ berm caused flooding on their neighbors’ (the plaintiffs) adjoining property. The defendants built the berm in 1966, when Massachusetts still followed the so-called “common enemy rule.”  Under that rule, landowners were… Continue Reading

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

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

Breaking: The Massachusetts Permit Extension Act, Squared

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

Vapor Intrusion Update: EPA Issues New Findings on PCE

Posted in Environmental, Legislation, Policy
As reported here and here, MassDEP’s Final Interim Vapor Intrusion Policy (pdf) is causing consternation among property owners who had thought that their state-managed cleanup sites had been given a clean bill of health, only to have those sites re-opened when MassDEP dramatically reduced the acceptable levels of certain chemicals found in groundwater below the sites.  A… Continue Reading

MassDEP to Hold Public Sessions on Regulatory Reform

Posted in Environmental, Miscellaneous, Policy
To take place for the next two weeks, MassDEP has scheduled Topic-Specific Discussions on its Regulatory Reform Initiatives (based on that title, I assume they really, really want the discussions to remain on topic).  The schedule is as follows:   MCP Standards – Friday, February 3rd at 10 AM (to address EPA changes in Integrated Risk Information Systems and… Continue Reading

MassDEP Releases “Interim Final” Vapor Intrusion Guidance

Posted in Environmental, Policy
Raising the interesting question, what does the oxymoron “Interim Final” mean?, MassDEP recently released its Interim Final Vapor Intrusion Policy (pdf).  According to MassDEP, “Final” means that the public can use the policy as a guidance document that can be cited.  However, be aware that the guidance is intended to serve as a transition document until MassDEP promulgates revised vapor… Continue Reading

Federal Wetlands Jurisdiction Still Murky

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

DEP Vapor Intrusion Policy Still Causing Pain and Uncertainty

Posted in Environmental, Miscellaneous, Policy
Since changing its approach to vapor intrusion two years ago, the Massachusetts Department of Environmental Protection (DEP) has yet to finalize its vapor intrusion policy.  As reported here, based on new studies, DEP is concerned that vapor from chemicals in groundwater – which can rise through soils and make its way into buildings – is more harmful than previously thought.  Sites… Continue Reading

Appeals Court Declines Invitation To Destroy Land Use Law As We Know It

Posted in Policy, Restrictive Covenants, Zoning
The Appeals Court had a momentous decision to make in Killorin v. Board of Appeals of Andover – a decision that would mark the difference between entropy and order.  Imagine a world in which every condition in every special permit, variance, subdivision approval, site plan approval, wetlands permit, and other discretionary approval affecting the use of real… Continue Reading

Waterfront Property Owners Beware: the State Wants Your Beach!

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

Massachusetts AG Sets Her Sights on MERS

Posted in Foreclosure, Policy
The Boston Herald’s Jerry Kronenberg reports that Massachusetts Attorney General Martha Coakley has opened an investigation into “creditor misconduct in connection with unlawful foreclosures,” with a particular focus on Mortgage Electronic Registration Systems, Inc. (MERS).  The Herald article is here, and some of our own MERS-related posts are here, here and here.… Continue Reading

State OK’s Springfield Biomass Plant

Posted in Environmental, Policy, Renewable Energy
As reported here, the Massachusetts Department of Energy Resources recently proposed new rules (pdf) regulating large wood-burning power plants.  These rules call for stringent efficiency standards, notably the encouragement of co-generation (the productive use of waste heat).  The impetus for the new rules was a recent study that challenged the widely-held assumption that the cultivation of forests for fuel… Continue Reading

Bruising Budget Cuts Force DEP Reforms

Posted in Environmental, Policy
Almost a decade of sharp cuts have forced the Massachusetts Department of Environmental Protection (DEP) to reevaluate the way it operates.  From a zenith of 1,200 full-time employees and a $65 million annual budget in 2002, DEP’s resources presently stand at 840 employees and a budget of $46 million.  Accordingly, DEP has launched what it euphemistically refers to… Continue Reading

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

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

DEP Extends Comment Period for AUL Guidance

Posted in Environmental, Policy, Solid Waste
As predicted in this prior post, the Massachusetts Department of Environmental Protection (DEP) has extended – to May 1, 2011 – the public comment period for its newly proposed Activity and Use Limtation Guidance.  While this extension is helpful, many commenters had suggested that DEP extend the comment period until after DEP finalizes its proposed Vapor Intrusion Guidance, because… Continue Reading

Land Court Bench Meets Bar Conference

Posted in Foreclosure, Miscellaneous, Policy, Registered Land, Title
A brief announcement:  I will be chairing the Land Court Bench Meets Bar Conference at the Boston Bar Association on Tuesday, April 5th from 4:00-7:00.  We will hear from Chief Justice Karyn Scheier, Justice Keith Long, Justice Gordon Piper, Recorder Deborah Patterson and Chief Title Examiner Edmund Williams.  This is a great opportunity to hear… Continue Reading

DEP’s Proposed AUL Guidance Dodges Vapor Intrusion

Posted in Environmental, Policy, Solid Waste
The Massachusetts Department of Environmental Protection (DEP) recently released for public comment a draft of its proposed Guidance on Activity and Use Limitations (“AULs”) (pdf).  Recognizing that in almost every waste site cleanup there is some residual contamination that is either impractical or impossible to remove, AULs provide a way of ensuring that human health is adequately protected over time and through future changes in… Continue Reading

Manna From Washington: FHFA’s Proposed Rule Carves Out HOA and BRA Transfer Fees

Posted in Miscellaneous, Policy
You could hear sighs of relief coming from the Boston Redevelopment Authority (BRA) and thousands of homeowner associations (HOAs) last week when the Federal Housing Finance Agency (FHFA) announced that its new proposed rule on private transfer fee covenants does not affect the fees that HOAs and the BRA collect from homeowners when they re-sell their homes.  The details are in this FHFA Fact Sheet (pdf). … Continue Reading