Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Category Archives: Waterfront Property

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Private Parties Cannot Enforce Public Rights to Access Tidelands

Posted in Easements, Legislation, Waterfront Property
Massachusetts 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

Can’t Get There From Here?

Posted in Waterfront Property
In 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


Posted in Boston Development, Environmental, Waterfront Property
The 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

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 property. The jury in Smyth v. Falmouth Conservation Commission and the Town of… Continue Reading

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

Posted in Easements, Registered Land, Title, Waterfront Property
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… Continue Reading

Beverly Port Marina and the Fates of Permitting

Posted in Environmental, Miscellaneous, Waterfront Property
If 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

MassDEP’s Chapter 91 Jurisdiction: Where’s The Line Between Fact And Fiction?

Posted in Waterfront Property
A 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

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

Gray’s Anatomy: Appeals Court Holds That Road Separates Upland From Flats Under Colonial Ordinance

Posted in Easements, Title, Waterfront Property
Along 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

Littoral Meaning: Superior Court Discusses Rights of Shore Owners

Posted in Waterfront Property
Massachusetts 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

Commonwealth v. Arno: There Aren’t Enough Words to Describe the Public’s Rights In Tidelands

Posted in Registered Land, Waterfront Property
Most 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

Appeals Court Wades into Oceanfront Titles, Part I

Posted in Waterfront Property
Beware 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