By Gordon Orloff on Posted in Easements,Legislation,Waterfront PropertyMassachusetts is unusual in that an owner of waterfront property typically holds title to the low water mark. However, the area between the low and the high water marks normally remains subject to the rights of the public to fish, fowl (hunt birds) and navigate. The landowner cannot interfere with those so-called “public trust” rights… Continue Reading
By Gordon Orloff on Posted in Waterfront PropertyIn the just-decided Maslow v. O’Connor, the Appeals Court addressed rights in a Gloucester subdivision road. Since Gloucester is a seaside community, naturally the case concerns water access. The defendants own the residential lots abutting the waterfront end of Rackliffe Street, which is an old and private subdivision road that, before 1925, ended at the… Continue Reading
By Michael Parker on Posted in Boston Development,Environmental,Waterfront PropertyThe Boston Planning and Development Agency recently released the Downtown Waterfront District Municipal Waterfront Plan (the “Waterfront Plan”). While virtually the entire Boston Harbor Waterfront is subject to Chapter 91 jurisdiction, municipalities are allowed to modify Chapter 91 regulations, as recently amended and promulgated by MassDEP, by enacting municipal harbor plans. In return for the regulatory flexibility, municipal harbor… Continue Reading
By Michael Parker on 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 property. The jury in Smyth v. Falmouth Conservation Commission and the Town of… Continue Reading
By Gordon Orloff on Posted in Variances,Waterfront Property,ZoningYesterday 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… Continue Reading
By Gordon Orloff on Posted in Easements,Registered Land,Title,Waterfront PropertyA 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… Continue Reading
By on Posted in Environmental,Miscellaneous,Waterfront PropertyIf you think land use is simple, read Beverly Port Marina, Inc. v. Department of Environmental Protection — not just the recent Appeals Court decision but the underlying agency decision. What’s so difficult? Begin with a smorgasbord of government laws and programs: Chapter 91, the Coastal Zone Management Plan, procurement law, the urban self-help program, Article… Continue Reading
By Michael Parker on Posted in Waterfront PropertyA recent MassDEP administrative decision, In the Matter of Armstrong (pdf), proves that you can fight City Hall (in this case, MassDEP) and win. However, it also demonstrates the level of effort needed to be victorious. At issue in Armstrong was the accuracy of the 2006 Chapter 91 Mapping Project that was performed to establish presumptive Chapter 91 lines… Continue Reading
By on Posted in Legislation,Policy,Title,Waterfront PropertyA 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
By Robert Foster on Posted in Easements,Title,Waterfront PropertyAlong with the Red Sox and Patriots’ Day, one of the unique features of Massachusetts is that modern property rights can be ruled by 370-year-old statutes. The Colonial Ordinance of 1641-1647 declared that owners of land adjoining the shore also own the tidal flats – the land between the high and low water marks (out… Continue Reading
By Robert Foster on Posted in Waterfront PropertyMassachusetts has an old, well-developed body of case law on “riparian” rights — the rights of landowners in surface water and groundwater. Given the long Massachusetts coastline, it therefore comes as a bit of a surprise that the Commonwealth’s law of “littoral” rights — the rights of owners of land abutting the seashore — is… Continue Reading
By on Posted in Registered Land,Waterfront PropertyMost coastal states own the land seaward of the high water mark, which includes the so-called “tidal flats” between the low and high water marks. In Massachusetts, however, the tidal flats are private, but subject to the public’s right to fish, fowl, and navigate, which has generally been characterized as an easement for these purposes. … Continue Reading
By Donald Pinto on Posted in Waterfront PropertyBeware Spillane v. Adams Real estate lawyers, surveyors, and owners of oceanfront property should be familiar with an Appeals Court decision that got little attention when it came down earlier this year. Spillane v. Adams (pdf) makes two dramatic changes in longstanding principles of real estate law. The first concerns how the location of the low water mark, which divides private ownership… Continue Reading
