Boston Real Estate Law Attorney Blog

Appeals Under M.G.L. c. 40A, § 17: De Novo Review and Deference to Boards

2012-05-04T19:06:23Z

Understanding the judicial standard of review is important for litigants in zoning appeals filed under M.G.L. c. 40A, § 17, including the denial or approval of special permits and variances, and, in some cases, site plan review. Such appeals also include zoning board decisions related to enforcement actions via the zoning enforcement officer (i.e. building inspector).

The judicial standard of review involves a combination of two concepts:

de novo review; and
deference

Recently, the Land Court succinctly set forth the standard of review in Hauer v. Casper, 2012 WL 951645 (Mass. Land Ct. March 16, 2012):

'Review of a board's decision ... pursuant to G.L. c. 40A, § 17, involves a "peculiar" combination of de novo and deferential analyses.' . . . The court grants some measure of deference to the board's legal conclusions but fact finding is a de novo review. . . . 'While a judge is to give 'no evidentiary weight' to the board's factual findings, the decision of a board 'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge'. . . . (citations omitted)

'The reasonable construction that [the Board] gives to the by-laws it is charged with implementing is entitled to deference.' . . . When the meaning of the language is plain and unambiguous the court enforces the bylaw according to its plain wording. (citations omitted)

So what does this all mean?

De novo review refers to the facts to be found by the trial court judge. Although the zoning board found facts in order to reach its underlying decision, the judge is not bound by those facts. Moreover, she cannot give evidentiary weight to them in her assessment of the record. Instead, the judge must take all factual evidence available in the record and review it de novo-meaning "anew" and independently of the board-before analyzing the legal validity of the board's decision in light of those facts found by the judge.

De novo review is sometimes beneficial to litigants because it affords them the opportunity to offer additional evidence that supports (or undermines) the board's decision, even if they did not present it to the local board. This becomes essential in cases where the administrative record of the local proceedings is sparse.

On appellate review, the appeals court will generally not set aside the trial court's de novo findings of fact unless there is no evidence to support them or they are clearly erroneous. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474-475 (Mass. 2012) (but noting that the appeals court will review the trial judge's legal analysis de novo). On the other hand, if an appeal is decided on cross motions for summary judgment-where the judge does not engage in fact finding-any appellate review of the lower court's assessment of the record will not be entitled to deference. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515, 517-518 (2011). This is something to consider during strategic litigation planning.

Once the facts are found de novo by the judge, the question becomes whether any rational board, in applying and interpreting its own bylaws, could come to the decision being challenged on appeal. This is where the deference component comes into play.

The court must give deference to the local board's reasonable interpretation of its own zoning bylaw. This potentially means that even if the judge's facts would warrant the issuance of a permit, there may be instances where the board's denial must be upheld regardless. Indeed, the decision of a board "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge". See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-82 (2009) (citations omitted). Though this is perhaps the most difficult outcome for litigants to accept, this kind of deference is granted in order to give local authorities control over community planning instead of the courts.

Nevertheless, as many cases point out, there are certainly instances where the zoning board's decision must be overturned despite deference principles, including

An incorrect interpretation of the zoning bylaw;
No rational view of the court's facts supports the board's conclusions;
The board's reasons for the decision lacked substantial basis in fact; or
The reasons given by the board were not related to the purposes of the zoning bylaw or were merely pretext for "arbitrary action".

Litigants must be prepared to present their case to withstand the judicial standard of review, and can do so if they have a comprehensive understanding of the de novo and deference components early on in the case.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Easement Essentials: Types of Appurtenant Easements

2012-04-19T14:48:10Z

Most people are familiar with the concept of easements. As defined by Black's Law Dictionary (7^th ed.), an easement is

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.

The right to use the land can include the right to pass and re-pass by foot and/or vehicle, siting a shared driveway or structure, and the right to install utilities.

Seems simple enough, but when people talk about easements, they may not realize that there are several types, usually differentiated by how they were created. The means by which an easement is or was created sometimes becomes important when trying to establish the parties' scope of rights and the physical boundaries of the easement.

In this post, we explore the various types of appurtenant easements, which are easements created on one parcel of land for the benefit of another parcel of land, with such easements rights being an incident of land ownership. These are different from easements in gross, which are easements that benefit a specific person, as opposed to a specific parcel of land.

First, some basic appurtenant easement terms:

Servient estate: the land that is burdened by an easement

Dominant estate: land that has the benefit of easement rights on another parcel

As for the types of appurtenant easements, there are several to consider:

Express Easement: The most common type of easement is the one created by express grant (or reservation) in a written document, such as in a deed or separate easement agreement, and sometimes even by court order. The language used in an express easement can vary widely in its complexity, but ideally contains some minimal information such as the location of the easement, the scope of use, and whether use is exclusive (or non-exclusive). Nevertheless, where an express easement is created, "every right necessary for its enjoyment is included by implication." Hodgkins v. Bianchini, 323 Mass 169, 173 (1948). By statute, the grant of an express easement includes the right to install utilities. See G.L. c. 187, §5.

Too often the language of a grant or reservation of easement is uncertain or susceptible of multiple interpretations. In such instances, if is often the role of the courts to examine extrinsic or parol evidence to determine the scope of the easement. "The scope of an easement, granted in general terms, [may be] 'determined by the language of the grant construed in the light of the attending circumstances.'" Pion v. Dwight, 11 Mass. App. Ct. 406, 411 (1981) (citations omitted). Attending circumstances include "relevant uses made of the servient tenement at the time of, or prior to, the instrument creating the easement." Id. at 412. "Subsequent use of the easement also may be relevant", but "at most is only one relevant factor and the presence or absence of evidence of such later use (where admissible) is not decisive." Id.

Easement by Implication: An easement by implication describes an implied grant derived from an established pattern of prior use of one parcel by the now separately-owned parcel, the continuation of which is implied as being what the parties intended when common ownership is severed. "Where during the common ownership of a parcel of land an apparent and obvious use of one part of the parcel is made for the benefit of another part and such use is being actually made up to the time of severance and is reasonably necessary for the enjoyment of the other part of the parcel, then upon severance of the ownership a grant to continue such use may arise by implication." Sorel v. Boisjolie, 330 Mass. 513, 516 (1953). Though easements by implication often relate to use of roads and access drives, they can just as well apply to water pipes, utility services or other kinds of uses that were in place prior to a division of land into two or more parcels. See Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 78, n.6 (2004).

(Implied) Easement by Estoppel (Subdivisions of Land): As succinctly captured in, Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 (2007): "[A]n easement may be created by estoppel in two ways. First, when a grantor conveys land bounded by a street or way, he, and those claiming under him, are estopped [prevented] to deny the existence of the street or way, and his grantee acquires rights in the entire length of the street or way as then laid out or clearly prescribed. [citation omitted] Second, when a grantor conveys land situated on a street in accordance with a recorded plan that shows the street, the grantor, and those claiming under him, are estopped to deny the existence of the street for the distance as shown on the plan. [citation omitted]" Parties often rely on reference to plans of land that designate areas as rights of way or beach or park areas. However a reference to a plan alone does not create interests in real property in Massachusetts. See Carroll v. Hinchley, 316 Mass. 724, 729 (1944). Rather, where land is conveyed with reference to a plan, an easement . . is created only if clearly so intended by the parties to the deed. Jackson v. Knott, 418 Mass. 704, 712 (1994). See Reagan v. Brissey, 446 Mass.452, 458-461 (2006) (cataloging evidence, in addition to plan references, for determination that implied easement granted in conveyance of subdivision properties).

(Implied) Easement by Necessity: This type of easement requires a severance of common ownership of the land that, without an easement, would result in a landlocked parcel. "[A]n easement by necessity may be implied [if the court] can fairly conclude that the grantor and grantee, had they considered the matter, would have wanted to create [an easement]." Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 291 (2005). The party seeking to prove the existence of such an easement must show that "(1) both dominant and servient estates once were owned by the same person or persons, i.e., that there existed a unity of title; (2) a severance of that unity by conveyance; and (3) necessity arising from that severance, all considered 'with reference to all the facts within the knowledge of the parties respecting the subject of the grant, to the end that their assumed design may be carried into effect.'" Id. (citations omitted).

Prescriptive Easement: Similar to fee simple rights that can be acquired by adverse possession, prescriptive easements can also be established (through adjudication of such rights) by proving twenty years of adverse, non-permissive, actual, open and notorious use of the servient estate. Unlike adverse possession claims, the individual claiming a prescriptive easement does not need to show that his use was exclusive.

No matter how an easement is created, there are often situations that arise where the scope or exact location of the easement requires a declaration from the court. Interpretation of the relevant document(s) (if any) and parties' actions, as well as the parties' burdens of proof at trial, will depend on the nature of how the easement was created.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Intro to Variances I: Soil Conditions, Shape & Topography

2012-04-12T17:15:13Z

In some instances, obtaining a variance is a lawful means to deviate from strict compliance with current zoning requirements. Although zoning boards usually grant them sparingly, an approved variance can be a useful tool for landowners seeking to, inter alia, site, construct, alter or enlarge a structure on their property that would otherwise violate some aspect of the zoning code.

Variances are governed by M.G.L. c. 40A, § 10, which provides that a zoning board may grant a variance if the statutory three-part test is satisfied. The zoning board must specifically find that

1) owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located,

2) 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

3) that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

M.G.L. c. 40A, § 10. Notably, M.G.L. 40A, § 10, does not provide for use variances: "Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located . . . ." In other words, only a local zoning bylaw or ordinance can allow for a use variance.

As for the first element of the variance requirements test, the types of unique soil conditions, shape or topography affecting the land or structure in question typically involve site features like irregularly shaped lots (i.e. triangular), steep grades or slopes, deep depressions, failure to meet dry lot requirements or the presence of wetlands.

But the important caveat meeting this first variance requirement is that these types of conditions must be unique to the lot in question. If the site's soil, topography or shape conditions are deemed by the zoning board (or, on appeal, the court) to be shared by or common throughout the particular zoning district, it is likely that the variance request will be denied on these grounds. For example, if wetlands are prevalent throughout the zone, then the variance applicant is likely going to have a difficult time convincing the board that his lot is unique enough to warrant a variance. This is where doing some investigative work in advance is a good idea.

In a future post, we will discuss the two remaining requirements necessary for a zoning board to approve a variance, so stay tuned.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC. on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Appeals Court Affirms That Subdivision Developer Has No Negligence Claim Against Town's Consulting Engineer

2012-03-28T12:02:22Z

Subdivision developers should think twice about relying on engineering firms/consultants retained by planning boards to disclose any deficient work. Even if that failure to disclose problems later leads to costly re-construction and repairs, there may be no legal recourse against the town's engineer.

In Meridian at Windchime, Inc. v. Earth Tech, 81 Mass. App. Ct. 128 (2012), the residential subdivision developer (Meridian) retained the services of a project engineer (for site and engineering plans), a project manager, and a contractor (infrastructure construction). In accordance with the town's subdivision rules and regulations, the planning board retained an independent engineering firm (Earth Tech) to conduct "subdivision reviews and inspections", including of underground utilities, during the project. The developer was not a party to the contract between the town and the independent engineering firm, but was required to pay for the services pursuant to the subdivision rules and regulations.

Prior to construction, Earth Tech informed Meridian that it would conduct inspections as needed and when requested by the planning board, and that any field changes deviating from the approved definitive plans would require prior approval by Earth Tech or otherwise be performed at the contractor's risk. Meridian was also advised that Earth Tech would "provide a written report of the inspection to the Planning Board, noting completions and deficiencies. Any deficiencies will be immediately brought to the contractor's attention in the field for correction." Id. at 130.

The town's engineering firm visited the construction site frequently (sometimes daily) and generated over fifty reports throughout the construction, a practice that (according to evidence offered by Meridian) was not necessarily authorized or requested in advance by the planning board. Later, it was discovered that the "contractor had improperly installed water lines, fire hydrants, granite curbing, manhole covers, and other features of the infrastructure. The contractor's work had to be redone, and in some cases, ground had to be dug up to gain access to the improperly constructed infrastructure." Id. at 130.

The developer claimed that had the town's engineer identified the deficiencies sooner, some could have been corrected at less expense. The developer sued the town's independent engineer under tort and contract claims. The sole issue for summary judgment and on appeal was whether the independent engineer owed a duty of care to the developer as a professional under contract with a third party (the town).

The Appeals Court said no. In its decision, the Appeals Court first explained "the Craig principle of foreseeable reliance" espoused in Craig v. Everett M. Brooks Co., 351 Mass. 497 (1967), and refined by later cases. At the end of the Meridian decision, the Appeals Court affirmatively states the rule:

Under the Craig principle of reasonable reliance, a professional employed by a town to inspect the construction of a subdivision does not owe a duty of care to a developer or its contractor with whom the professional has no contractual relationship unless it was foreseeable and reasonable for the developer or its contractor to rely on the services provided to the town by the professional, and the professional had actual knowledge that the developer or its contractor was relying on the professional's services.

Meridian at 135.

Applying the facts at bar to the Craig principle, the Appeals Court determined that Earth Tech owed no duty to Meridian in this case, and therefore there was no negligence. The three reasons given by the court were:

(1) the town's and Earth Tech's contract stated that Earth Tech had no "authority or responsibility for the methods and procedures of construction selected by the Contractor";

(2) Earth Tech's memorandum to Meridian indicated that any deviation from the approved plans without approval from Earth Tech was at Meridian's risk; and

(3) Meridian hired its own project engineer for the project, and even if it failed to honor its contractual obligations to Meridian, it did not, on its own, allow Meridian to justifiably rely on Earth Tech instead.

See Meridian at 134.

If nothing else, this case highlights the importance for developers to retain and rely upon competent and qualified contractors and engineering firms to oversee the project, regardless of any reviews, inspections and/or reports that may be undertaken by independent engineers acting on behalf of the municipality. Moreover, this case suggests that notwithstanding the independent contractor's and planning board's actual practices and conduct during construction, if any field changes are necessary, it is worth considering obtaining written approval first.

For another take on this case and its ramifications, see the blog entry by Attorney Peter Feuerbach at Rubin & Rudman at the Mass Legal Alerts blog.

Written by Kristen M. Ploetz, Blog Editor

Purchasing a Condominium: Know Your Documents

2012-03-26T15:56:20Z

For the tenth straight month, real estate transactions continue to trend positively in Massachusetts.

Specifically, condominium and single-family home sales in Massachusetts are going up. On March 13, the Massachusetts Association of Realtors reported that sales of condominiums have been increasing since the same time in 2011, and that the number of condominiums under agreement in February 2012 is up 35.3 percent compared to February 2011.

Given that condominium buyer confidence is on the rise, it seems timely to review the relevant documents involved in the sale of a condominium.

· Offer to Purchase - the instrument used by the potential buyer to extend an offer to purchase the condominium (or home); the buyer can accept the offer or counteroffer with an alternative set of terms

· Purchase and Sale Agreement (P&S) - the instrument executed by both the potential buyer and seller which sets forth the material terms of the transaction, including sale price, deposits, closing date, contingencies such as cash due at closing and the buyer obtaining mortgage financing, and disclosure of other pertinent information

· Rider / Addendum / Exhibit - a document sometimes attached to the Purchase and Sale Agreement that further explains or outlines terms contained within the P&S, such as the property description or deadline extensions; these are added either at the time of signing the P&S or afterwards, but only upon mutual agreement of the buyer and seller

· Declaration of Trust -the instrument that created the condominium association responsible for undertaking the day-to-day operations of the condominium

· Master Deed - the instrument that originally "created" the condominium by submitting the underlying land and buildings to the provisions of M.G.L. c. 183A; it is the governing instrument for the condominium, including provisions for unit dimensions, common areas, voting authority, amendment procedure, fees and other pertinent provisions

· By-Laws - these can either be a separate document or part of the Declaration of Trust, and they provide additional rules and regulations governing the condominium units and common areas, such as whether pets are allowed or whether units can be rented out

· Unit Deed - this is the instrument that will transfer ownership from the buyer to the seller, and typically indicates the boundaries of the unit and designates exclusive use common areas (either directly or through reference to the Master Deed)

· Plans - there should be available a set of plans depicting the common areas of the condominium as well as the individual unit being purchased, including exclusive use common areas

Moreover, in instances where the condominium is located on Registered Land, prior Land Court approval may be needed for some documents in advance of the conveyance (i.e. first unit deed or amendments to plans or Master Deed). To ensure that the buyer's interests are fully protected, a careful review of condominium documents by competent real estate counsel is recommended before the sale is finalized.

For an in-depth resource about the many aspects of condominiums, check out New England Condominium's website.

Written by Kristen M. Ploetz, Blog Editor

Appeals Court Declines To Order The Tear Down Of A South Boston Home Despite Overturning Variances and Remands To Superior Court For Further Proceedings

2012-03-09T17:40:48Z

After the recent publicity surrounding a court-ordered removal of a million-plus dollar home in Marblehead (for more on that story, click over to The Massachusetts Real Estate Blog), it would be easy to assume that courts would have no problem ordering the removal of a much smaller residence, especially one that was later determined to fall short of the requirements needed for the variances that authorized the home's construction in the first instance. But on March 7, 2012, despite the fact that it had overturned five variances that allowed such construction, the Massachusetts Appeals Court declined to order such relief as part of its remand.

In Sheppard v. Zoning Bd. of Appeals of Boston, 10-P-2070 (Mass. App. Ct. March 7, 2012), the Appeals Court determined that there was no lawful basis for the Boston Zoning Board of Appeals to have granted the five variances that led to the re-construction and expansion of a non-conforming residence that replaced the rundown house razed by the landowner (McGarrell). In its decision, the Appeals Court overturned the Superior Court decision that affirmed the ZBA's grant of the variances. Yet, despite a request by the petitioner/abutter to have the case remanded to Superior Court with an order that the house be razed, the Appeals Court declined to go that far, and recognized that such remedy may not be necessary in this instance.

The Appeals Court first noted that, in some instances, "tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy." The Court thought it was significant that in McGarrell's situation, the Boston ZBA had consistently supported the construction of the new home, and was not the party seeking enforcement of the zoning code provisions. In the Court's view, this warranted a delay in deciding the most appropriate remedy in this case.

The Court went on to recognize that, in McGarrell's situation, another form of zoning relief may have been available to him in lieu of variances: rebuilding as of right under the Boston Zoning Code's provisions for expansions of pre-existing nonconforming structures (which the petitioner/abutter did not dispute). To the extent that such alternative relief could potentially give the landowner an opportunity to avoid tearing down his house, the Court was willing to make room for that possibility. Perhaps more importantly, however, was the Court's recognition that the landowner was not the one who initially sought the variance route; rather, that process was undertaken at the ZBA's insistence because it had earlier taken the position that the landowner could not invoke the relief allowed under the Boston Zoning Code provisions for expansion of pre-existing nonconforming structures where the structure had been razed beforehand (the Appeals Court did not address the merits of this position, but noted that cases decided under similar provisions of M.G.L. c. 40A, § 6, have allowed such construction). For all of these reasons, the Appeals Court viewed a tear down order as premature, and thus remanded the case for further discretion of the Superior Court as to whether a stay in proceedings is justified if or while the landowner explores alternative zoning relief at the local level.

If the landowner does seek zoning relief under the provisions that allow for the expansion/reconstruction of a pre-existing nonconforming use, it will be interesting to see how the ZBA applies the test for allowing such construction, especially considering that the house has now been a fixture in the neighborhood for thirteen (13) years since the spring of 1999. See Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8 (2009) (overturning lower decision regarding plaintiff's standing and remanded for determination on merits of variances). And even though the Boston ZBA has supported the grant of variances in the instant case, a footnote in the case indicates that the Appeals Court applied a little pressure to the ZBA at oral argument to possibly change the dimensional requirements in an area where the majority of the lots are undersized; the ZBA acknowledged that that very issue is currently under review. As landowners in Boston will likely continue to seek reconstruction of older, outdated homes, some increased flexibility seems appropriate to accommodate the renovation of urban housing stocks. We will continue to follow the proceedings to see whether the landowner is able to keep his home or whether it ultimately must be torn down.

Written by Kristen M. Ploetz, Blog Editor

Phased Development: Considerations for Developers

2012-03-05T17:21:56Z

Phased development often makes better business sense for certain kinds of residential and commercial properties. There are several planning and practical considerations that developers should make when it comes to phased projects.

Determine whether a comprehensive, phased project or several, discrete projects are better suited for the property and development budgets. However, some zoning codes may not allow for a choice depending on the nature of the project.
If an unfavorable change is expected in the zoning bylaw or ordinance that will diminish the overall development potential of the property-such as a change in dimensional requirements or uses allowed by special permit-it may be advisable to secure all necessary special permits and building permits before publication of notice of the proposed changes (though, once approved, projects must still commence in accordance with all applicable deadlines as discussed below). On the other hand, if a proposed zoning amendment is more favorable to property development, then waiting for the amendment may be more lucrative for developers.
Depending on the type of project and/or the zoning district where the property is located, submission of comprehensive or master site plans or other information may be required for approval of phased developments. For example, the Kingston Zoning By-Law requires that if land being developed for small wind energy system projects will be undertaken in phases, then a comprehensive plan for the entire property must be submitted showing intended future development. In Plymouth, planned unit developments are subject to very specific and detailed phasing and submission requirements under the Plymouth Zoning Bylaw. A careful and preliminary review of the relevant zoning code in conjunction with proposed plans is essential in order to avoid running afoul of the permitting process and incurring unnecessary engineering costs.
Developers of phased projects must pay attention to deadlines for commencement and completion of projects as required by zoning and subdivision laws and regulations. For example, the local zoning ordinance or bylaw will set forth the timeframe for when special permits will lapse, and in many cases the special permit decision itself will set forth very specific development conditions and deadlines that, if ignored, can result in the need to file for an extension or a lapse of the permits altogether. This is because M.G.L. c. 40A, § 9, requires that

Zoning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years, which shall not include such time required to pursue or await the determination of an appeal referred to in section seventeen, from the grant thereof, if a substantial use thereof has not sooner commenced except for good cause or, in the case of permit for construction, if construction has not begun by such date except for good cause.

For phased development, so long as at least the first phase has commenced within the applicable timeframe under the local zoning code, then the remaining phases can commence at later dates. See Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123 (2009). However, developers should understand that any protracted delays in construction may result in later unconstructed phases being forced to conform with any changes in the zoning code since the permits were issued. See id. at n.12 and M.G.L. c. 40A, § 6.

Many condominiums (M.G.L. c. 183A) are developed as phased projects. For projects that will be converted to condominium ownership before completion of all phases, developers must ensure that all relevant instruments, including the Master Deed, By-Laws and amendments thereto, provide for and allow phased development. These instruments must carefully state in what manner phased development can proceed (if at all), and what authority is required for such phases to occur (i.e. by declarant, by vote of condominium association, etc.).
If various portions of the land will be sold or leased during the progression of the various phases, developers must account for all attendant rights thereto, including easements, access, and/or ownership of ways, before land is sold or leased. The developer not only needs to account for these rights on behalf of grantees/lessees, but also to reserve any necessary rights for himself.

Although phased development can be complex in its considerations, it does not need to be complicated. Working with skilled counsel, developers can ensure that development and the sale/lease of the property advances without incident.

Written by Kristen M. Ploetz, Blog Editor

Land Court Permit Session: A Useful Tool for Appeals of Larger Development Projects

2012-03-05T17:16:28Z

In 2006, the Massachusetts Legislature created the "Permit Session" of the Land Court to allow a more expedited appeal process for development projects that meet certain build-out thresholds. So long as the underlying project involves either twenty-five (25) or more dwelling units, or the construction or alteration of 25,000 square feet or more of gross floor area (including commercial and industrial projects), or both, then the appeal can be heard by the Permit Session of the Land Court.

For developers of large projects, the expediency provided by the Permit Session is essential, particularly during times when strained court resources would otherwise stall or prolong the appeal process to well over two years in many cases. It also avoids unnecessary delay during an current economic climate that has increased financial pressures for developers.

The scope of the types of appeals that can be heard by the Permit Session is quite comprehensive. To the extent that many projects require several development permits, this makes the appeal process more convenient for developers because it allows for "one stop shopping".

Specifically, provided that the jurisdictional thresholds are met, M.G.L. c. 185, § 3A, the Permit Session can hear appeals

(a) based on or arising out of the appeal of any municipal, regional or state permit, order, certificate or approval, or the denial thereof, concerning the use or development of real property, including without limitation appeals of such permits, orders, certificates or approvals, or denials thereof, arising under or based on or relating to chapter 21, sections 61 to 62H, inclusive, of chapter 30, chapters 30A, 40A to 40C, inclusive, 40R, 41, 43D, 91, 131, 131A, or sections 4 and 5 of chapter 249, or chapter 665 of the acts of 1956; or any local bylaw or ordinance;

(b) seeking equitable or declaratory relief (i) designed to secure or protect the issuance of any municipal, regional or state permit or approval concerning the use or development of real property or (ii) challenging the interpretation or application of any municipal, regional or state rules, regulations, statutes, laws, bylaws, ordinances concerning any permit or approval;

(c) claims under section 6F of chapter 231, or for malicious prosecution, abuse of process, intentional or negligent interference with advantageous relations or intentional or negligent interference with contractual relations arising out of or based upon or relating to the appeal of any municipal, regional, state permit or approval concerning the use or development of real property; and

(d) any other claims between persons holding any right, title or interest in land and any municipal, regional or state board, authority, commission or public official based on or arising out of any action taken with respect to any permit or approval concerning the use or development of real property

In essence, the Permit Session allows for a unified appeal process for the wide range of state, municipal and regional permits that are often necessary for development projects, including wetlands and waterways permits. Moreover, provided that the jurisdictional minimums are met, M.G.L. c. 185, § 3A, also gives rare jurisdiction to the Land Court over appeals related to the Boston Zoning Code, which must otherwise be adjudicated in Suffolk Superior Court (or Boston Housing Court if the decision involves a dwelling).

The pace of Permit Session appeals is also very attractive. In many cases, trial or other final disposition of a Permit Session case takes place about one (1) year or less from filing the action, depending on which "track" the case was assigned.

In most instances, Permit Session appeals conclude far quicker than the usual development permits appealed in the Land Court and Superior Court. For example, of the five Permit Session cases filed in 2010, three are closed, one remains pending due to some procedural motions filed after the case languished (for reasons not disclosed on the docket), and the fifth case (filed in late December 2010) went to trial in just over a year in early January 2012. Considering the strained resources of trial courts across the Commonwealth, to reach trial in thirteen months is quite impressive and highlights the benefits of the Permit Session for developers.

However, because of the faster timeline provided by the Permit Session, discovery and procedural motions take place very rapidly over the course of the appeal, so parties and their counsel must be prepared to adhere to the court's timeline for Permit Session cases.

Overall, developers should take advantage of the Permit Session when faced with an appeal of a large project that meets the statutory requirements.

Written by Kristen M. Ploetz, Blog Editor

Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley: Non-Conforming Mobile Home Park Allowed to Expand Under Special Permit

2012-02-10T18:04:39Z

In another zoning case that supports the expansion of a pre-existing, nonconforming use, the SJC issued its decision in Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, SJC-10869 (Feb. 7, 2012), an action that was commenced in the Land Court in late 2005.

In this case, Plaintiff Shirley Wayside Limited Partnership (Shirley Wayside), owner of a mobile home park, wanted to expand the number of units on its almost twenty-acre lot from sixty-five (65) to seventy-nine (79) mobile home units, and replace one of the existing but abandoned mobile home units on the property. The new units would be placed at the rear of the lot away from the main public road and in an area screened by trees.

The mobile home park was established in the 1950s. The lot spreads across two zoning districts (RR and R3). The minimum lot size (for single family and many other uses) within the RR zone is 80,000 SF, and in the R3 zone the minimum lot size is 15,000 SF.

In 1985, the Town amended the Zoning Bylaw to prohibit mobile home parks in all zoning districts, including the RR and R3 zones. Thus, the existing mobile home park is considered a lawful, pre-existing, nonconforming use. Any expansion requires a special permit, provided it meets the requirements under the Shirley Zoning Bylaw for such an expansion.

Despite the prohibition for mobile home parks under the Zoning Bylaw, Shirley Board of Health (BOH) regulates the existing and remaining mobile home parks within the town. BOH regulations require 5,000 SF for each mobile home unit, on a lot that has minimum dimensions of fifty (50) by one-hundred (100) feet. The units must be set back at least twenty (20) feet from the lot boundaries. The existing units do not comply with these dimensional requirements to the extent that they pre-date the BOH regulations that were enacted in 1960.

Shirley Wayside applied for a special permit for its expansion plans. Under the Shirley Zoning Bylaw, an expansion of a pre-existing, nonconforming use is permitted if three conditions are satisfied:

(1) the expansion of the structure or use cannot exceed 25% of its area on the lot;

(2) the ZBA must find that the extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing nonconforming use or structure; and

(3) the expansion must be physically contained within the boundaries of the lot as such boundaries existed and such nonconforming use/structure was situated on the date it became nonconforming.

The Shirley Zoning Board of Appeals (ZBA) denied the special permit on several grounds, and found that Shirley Wayside had not shown that the expansion would not be substantially more detrimental to the neighborhood than the existing mobile home park. It based its decision, in part, on the fact that the expansion was too close to the 25% (though not over) requirement.

The Land Court overturned the ZBA's decision and ordered that a special permit be issued. The Appeals Court reversed, and found that the ZBA acted within its discretion regarding concerns about density issues. See Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 78 Mass. App. Ct. 19 (2010). The SJC granted further appellate review, ultimately holding that the expansion complied with the zoning bylaw at issue (minimum lot size), and thus affirmed the Land Court's decision.

In its review of the case, the SJC focused primarily on two issues. First, whether the density concerns raised by the ZBA and affirmed by the Appeals Court were sufficient to deny the special permit, and second, whether the traffic issue now being raised for the first time on appeal by the ZBA was a legitimate reason to deny the special permit.

As to the density concerns, the SJC found that notwithstanding the parties' dispute about the application of Cox v. Bd. of Appeals of Carver, 42 Mass. App. Ct. 422 (1997) (expansion of mobile home park), to the instant case, a plain reading of the Shirley Zoning Bylaw indicates that the minimum lot size requirements are applied to the entire mobile home park, not to each individual mobile home unit. To reach this conclusion, the SJC classified a mobile home park as an "other use", although a prohibited one. In this regard, the twenty acre lot size is clearly sufficient in both zoning districts, even after the expansion. The SJC refused to place any weight on BOH dimensional regulations because they are not a suitable substitute for compliance with zoning bylaws.

In an interesting yet equitable approach, the SJC then went on to analyze whether the expansion would satisfy the setback requirements, even though the issue was not litigated below. One of the new units would be located twenty-two feet from an adjoining lot, thereby satisfying the BOH regulations, but possibly violating the Zoning Bylaw's 30-foot setback requirement for the R3 zone, depending on whether this portion of the lot was classified as side, front or rear yard. Acknowledging that it could remand the case back to the Land Court on this issue, the SJC decided instead (on equitable grounds) to avoid the remand to the extent that both parties had been acting under the assumption that the BOH setback requirements were the salient ones. The SJC noted that to possibly apply the more stringent zoning setback requirements at this stage would be unfair to Shirley Wayside. A lengthy analysis followed that even if the expansion ultimately violates the Zoning Bylaw setback requirements, the SJC would decline to apply the bylaw retroactively in this case given these circumstances.

In the end, the SJC, like the Land Court (Long, J.), did not give any credit to the ZBA's generalized concerns about density, citing a lack of demonstrable supporting evidence within the record. To the contrary, as pointed out by the SJC, the expansion will occur at the rear of a twenty-acre lot and screened by trees, and to decide otherwise would be arbitrary and capricious.

As for concerns about increased traffic, the SJC also discredited the ZBA's arguments and its misplaced reliance on Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973) ("[i]t is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling"). Only Shirley Wayside presented expert testimony about traffic at trial, and four other witnesses testified about their personal experiences with traffic in the area; none of them encountered traffic problems near or within the mobile home park. The Land Court judge found that traffic impacts would be minimal and there was no evidence to the contrary presented by the ZBA.

In sum, the case contains some important reminders:

(1) A zoning board of appeals or other special perming granting authority must have a credible evidentiary basis for the findings in their decision with conclusions that rationally flow from those findings. The lack of credible evidence to support the findings and conclusions of a zoning board decision makes the decision unsustainable;

(2) Mere increases in traffic from a proposed project are not in themselves a sufficient basis to deny a permit application but rather, there must be evidence that an increase in traffic will cause impacts like congestion, delay and safety concerns that are more than de minimis; and

(3) Where, as here, a zoning bylaw authorizes the expansion of a preexisting nonconforming use, a municipality unequivocally rejects the concept that nonconforming uses and structures must, over time, fade away or remain static.

Written by Jeffrey T. Angley, Esq., and Kristen M. Ploetz, Blog Editor

A Taking in Pais: Recovery Under M.G.L. c. 79, § 10

2012-02-02T16:18:23Z

Though most people are familiar with the taking of land by eminent domain-that is, through the proper statutory procedure to acquire land for a public purpose-it is likely that few have heard of a "taking in pais".

A taking in pais (pronounced "in pay" or "in pays") occurs when the Commonwealth or a municipality physically appropriates private land by acting under statutory authority but without any formal act (i.e. a vote or order of a duly authorized board).

"A taking in pais is a taking with no formal act other than the physical appropriation of the property. It is possible only when authorized by statute. The act appropriating the land must purport to be performed under the statute and must show with reasonable definiteness what is taken." Triangle Center, Inc. v. Dept. of Pub. Works, 383 Mass. 858, 861 (1992). One example would be where a municipality, having the statutory right to install sewer pipes, does so across private land without having first obtained a formal vote or order to do so.

A landowner may seek to recover monetary damages for a taking in pais under M.G.L. c. 79, § 10, which provides, in relevant part, as follows:

When the real estate of any person has been taken for the public use or has been damaged by the construction, maintenance, operation, alteration, repair or discontinuance of a public improvement or has been entered for a public purpose, but such taking, entry or damage was not effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, or when the personal property of any person has been damaged, seized, destroyed or used for a public purpose, and by such taking, damage, entry, seizure, destruction or use he has suffered an injury for which he is entitled to compensation, the damages therefor may be recovered under this chapter. If the injury was caused by or on behalf of the commonwealth or of a county, city, town or district, the officer or board of officers under whose direction or control the injury was caused shall award the damages upon the petition of any person entitled thereto. . . .

The statute also provides an avenue for relief for similar kinds of injury caused by railroad corporations and private corporations other than a railroad.

Depending on the nature of the injury to land, M.G.L. c. 79, § 10, provides different benchmarks for determining when the petition seeking damages must be filed with the board and how damages shall be assessed:

For a specific (singular) taking, entry, seizure or other act causing destruction or damage to the land, or depriving the landowner from using his property either permanently or for a definite period,

· the right to bring a petition vests as of the date of that act;

· the petition must be filed with the board within one (1) year thereafter; and

· damages shall be assessed as of the date of such act.

For all other acts (i.e. ongoing construction or improvement projects),

· the right to bring a petition vests as of the date of completion of the project;

· the petition must be filed within one (1) year after completion of such work; and

· damages shall be assessed as of the date when the property was first injuriously affected.

In those situations where the landowner misses the one-year filing deadline-or decides to forego petitioning the municipal board directly-he still has another opportunity to obtain damages. A few Massachusetts trial court cases confirm that even if the landowner fails to file his M.G.L. c. 79, § 10, petition with the board within one year, he can alternatively seek recovery in Superior Court under M.G.L. c. 79, § 14, for an assessment of damages, so long as the complaint is filed within three (3) years after the town's specific appropriation of private land or completion of the project or construction causing injury to such land.

Written by Kristen M. Ploetz, Blog Editor

So Your Special Permit Has Been Denied: Now What?

2012-01-30T15:42:40Z

Though the special permit process is governed by both the Massachusetts Zoning Act (M.G.L. c. 40A) and local zoning bylaws and ordinances, the procedure for appeals of special permit decisions are set forth in M.G.L. c. 40A § 17.

When a special permit application has been denied by a municipal board acting as the special permit granting authority, careful attention must be taken regarding proper venue, statute of limitation for filing the appeal, providing notice and other procedural requirements. Failure to follow these requirements may result in losing the right to advance the appeal and dismissal of the case. Below are some of the most important early considerations that should be taken into account when appealing a special permit that has been denied.*

Statute of Limitations for Filing Appeal. Under M.G.L. c. 40A § 17, appeals must be filed within twenty (20) days after the ZBA's decision has been filed with the office of the city or town clerk. This is where it becomes very important for the applicant to be proactive and pay attention to when the decision is filed by the ZBA. Depending on the municipality, this may range from mere days to more than a week between when the ZBA renders its decision and when it actually files the written decision with the clerk.
Venue. When it comes to where to file the appeal, the applicant has a few options. Most attorneys prefer to file in either the Land Court or the Superior Court in the county where the land is located. For projects involving 25 or more dwelling units and/or the alteration or construction of ≥ 25,000 SF of gross floor area, appeals may be made to the "permit session" of the Land Court. Each of these courts has their own separate list of pros and cons that should be considered before filing. Other possible (but rarely chosen) courts include the Housing Court serving the county, region or area where the land is located, or (except for Hampden County) the district court within the district where the land is located.
Notice. M.G.L. c. 40A, § 17, has very strict notice requirements which include providing a copy of the complaint and notice of the lawsuit to the city or town clerk within twenty (20) days after the ZBA's decision was filed with the clerk.
Contents of the Complaint. The complaint must name all statutorily required parties, including (but not limited to) all members of the ZBA (or SPGA), including their addresses. M.G.L. c. 40A, § 17, also sets forth some specific allegations that must be made within the complaint, and also requires that a certified copy of the ZBA's decision be attached to the complaint. Additionally, each court will also have its own civil action cover sheet that must also be filed with the complaint.
Service of the Complaint. Unlike other types of civil actions, M.G.L. c. 40A, § 17, allows service of the complaint (among other required documents) to take place by certified mail to all named defendants. The certified mail must be sent within fourteen (14) days after filing the complaint-this is much less time than other types of civil actions. Although the plaintiff does not have to provide proof that the defendants actually received notice of the lawsuit, he must file an affidavit of service with the court within twenty-one (21) days after filing the complaint.

In sum, it is crucial that the special permit applicant pay very close attention to when the ZBA files its decision with the city or town clerk so that he has sufficient time to retain counsel, who can then ensure that all of these steps are taken in a timely manner that preserves the applicant's right of appeal.

* This article does not address other types of zoning appeals, such as appeals brought by opponents to the grant of a special permit, appeals based on failure for the ZBA to act, appeals based on procedural deficiencies at the local level (i.e. lack of public notice), or appeals of special permits awarded or denied under the federal Telecommunications Act of 1996, each of which may have some of the same or altogether different procedural requirements.

Written by Kristen M. Ploetz, Blog Editor

Private Nuisance Suits Against Municipalities: Limits on Damages and Open Issues in the Wake of Morrissey v. New England Deaconess Ass'n

2012-01-19T14:55:44Z

It has been just over one year since the Massachusetts SJC rendered its decision in Morrissey v. New England Deaconess Ass'n-Abundant Life Communities, Inc., 458 Mass. 580 (2010). Although still relatively an unknown case, it has significant ramifications for private landowners seeking damages against municipalities for acts that constitute a nuisance.

In Morrissey, the issue before the court was, inter alia, whether private nuisance claims against the Commonwealth (and, implicitly, other public employers like municipalities) falls within the scope of the Massachusetts Tort Claims Act (MTCA), or whether these claims could continue to be litigated under common law. The issue was important since the MTCA has limitations on causes of action and monetary recoveries as discussed below.

The MTCA provides, in relevant part, as follows:

Public employers shall be liable for injury or loss of property ... caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable ... for any amount in excess of one hundred thousand dollars. The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer.

M.G.L. c. 258, § 2. The Legislature enacted the MTCA in 1978 in order to abolish the doctrine of sovereign immunity as well as the "crazy quilt" of exceptions to sovereign immunity that had developed in the courts until that point. By enacting the MTCA, "plaintiffs with valid tort claims [were allowed] to recover damages against the Commonwealth and other public employers, subject to certain specified limitations." Morrissey, 458 Mass. at 587.

Notably, the statute does not expressly provide for claims of private nuisance. Consequently, beginning with the 1987 case of Asiala v. Fitchburg, 24 Mass. App. Ct. 13 (1987), the Appeals Court (and trial courts) had decided private nuisance cases against public employers as though they were outside the scope of MTCA.

Generally, a private nuisance is

. . . actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another.

Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 231 (2002), quoting Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994). Private nuisance claims often include acts such as unauthorized discharge of water onto property, failure to construct or maintain retaining walls along a property boundary line, creating noise, vibrations or dust, or causing erosion.

In December 2010, the Morrissey court held that private nuisance claims against public employers do fall within the purview of the MTCA. Remarkably, this holding overruled (or abrogated) more than two decades of common law jurisprudence that had allowed private nuisance suits against municipalities and the Commonwealth to take place outside the context of the MTCA.

Moreover, the SJC went on to note that, at least in Morrissey, the private nuisance claim brought by plaintiff fell within two important exceptions to the waiver of sovereign immunity contemplated by the MTCA (in § 10): 1) claims based upon the issuance, denial, suspension or revocation of a permit; and 2) claims based upon the exercise/performance or the failure to exercise/perform a discretionary function or duty.

To the extent that it relied heavily on the overall legislative purpose of the MTCA, the SJC's decision in Morrissey is well-reasoned, and, in some aspects, not overly surprising. However, the consequences to private landowners are significant.

First, and perhaps most importantly, the maximum damages that any plaintiff can recover against a municipality or the Commonwealth for a private nuisance claim is $100,000. This amount may be far less than the actual damages suffered by a plaintiff with a valid private nuisance claim. Second, the holding in Morrissey is being applied retroactively, and thus any pending private nuisance claims against a municipality-or those that have yet to be filed for past acts-will be subject to the parameters of the MTCA. Finally, considering the contexts under which municipalities typically act-via issuance/denial of permits or under their discretionary function and duty-then it is hard to imagine circumstances where the exceptions to the waiver of sovereign immunity would not bar a plaintiff from filing suit. One issue that seems to be open, however, is whether there is a set of facts that might invoke a private nuisance claim but that could also rise to the level of a taking by eminent domain in the form of a taking in pais and so provide a remedy notwithstanding the MTCA.

Written by Kristen M. Ploetz, Blog Editor

Rights of First Refusal

2012-01-13T00:18:50Z

Occasionally, a right of first refusal (ROFR) will operate as a limitation on the sale or disposition of real property. In simple terms, a ROFR is

a limitation on a property owner's ability to sell the property to a third party, requiring the owner to first offer the property to the holder of the right at the third party's offering price and terms.

T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 571-72 (2010). A ROFR falls within a category of property interests known as "pre-emptive rights", since they act as a limitation on an owner's ability to dispose of property without first offering the property to the holder of the right at the third party's offering price. A right of first refusal is usually established contractually between two parties, although occasionally a court may impose a ROFR as part of a judgment (i.e. in divorce proceedings).

A right of first refusal is not a restriction on the use of land. It is also not a covenant that runs with the land and thus does not bind future owners of the land (unless as otherwise explained below). Rather, it is typically a personal contractual obligation that only benefits specified people, identified by name or by relationship to those named and grants no rights to, and imposes no burdens on, anyone else who might come to own the land. Moreover, there are limitations on the time over which a ROFR may affect an interest in land. Under M.G.L. c. 184A, § 5(a) "a preemptive right in the nature of a right of first refusal in gross with respect to an interest in land or minerals becomes invalid if it is not exercised within thirty years after its creation."

In order for a right of first refusal to be triggered, all conditions precedent set forth in the original agreement, covenant or judgment granting or reserving the right must be met. In a typical scenario, if the landowner decides to accept a bona fide third-party offer to purchase the property, then "the right of first refusal ripens into an option to purchase [for the holder of the right] according to the terms of the third-party offer." Bortolotti v. Hayden, 449 Mass. 193, 201 (2007). Compliance with the terms and conditions of the third-party offer is strict, and thus any exercise of the option must be materially the same as to purchase price, deposits, dates for closing and other material terms. Additionally, the provisions of the ROFR usually specify how much time the holder of the ROFR has to either exercise the option or otherwise waive it.

Owners of property subject to a right of first refusal must pay close attention to the specific language of the ROFR provisions to ensure full compliance. For example, many ROFR agreements specify in what manner and timeframe the landowner must provide notice of the third-party offer to the holder of the ROFR. Otherwise, the landowner transacting a land sale contrary to the terms of a ROFR may be subject to litigation advanced by the holder of the ROFR.

If the terms of the ROFR agreement (or judgment) expressly require a bona fide sale before the notice provision is triggered, then a mere conveyance without any consideration will not qualify and the ROFR may remain in effect, so long as it is otherwise applicable to successors and assigns. Moreover, if the landowner dies before selling the property, then the specific terms of the ROFR agreement (or judgment) must be carefully analyzed to determine whether the ROFR is extinguished upon his death, or whether it continues to expressly bind the heirs, devisees and/or other successors in interest. There appear to be some interesting and unresolved questions regarding the exercise of ROFR's in the Commonwealth including (1) the enforceability of a ROFR by or against parties subsequent to the original covenanting parties (i.e. heirs); and (2) whether a property is still subject to the preemptive rights of a holder who has already once failed to purchase following a bona fide offer.

Written by Kristen M. Ploetz, Blog Editor

An Introduction to Adverse Possession & Prescriptive Easements

2012-01-06T03:06:12Z

Fences, driveways, structures, lawns, gardens, trees or shrubbery often extend beyond a deeded property line and encroach onto another's property. The area of land may only be a few feet wide or consist of an entire parcel. Depending on the duration and nature of the use in those areas, the person using the property of another may have a valid claim of ownership over the property (in fee simple) or some lesser degree of property rights (i.e. prescriptive easement).

Massachusetts recognizes the common law doctrine of adverse possession whereby a person can establish title in another's real property, provided that all necessary elements are met and adjudicated in court.

To prevail on a claim of adverse possession, the burden is on the claimant to prove use that is

· non-permissive;

· actual;

· open and notorious;

· exclusive; and

· adverse for twenty continuous (uninterrupted) years

See Lawrence v. Town of Concord, 439 Mass. 416 (2003) (quotation omitted); Kendall v. Selvaggio, 413 Mass. 619 (1992); M.G.L. c. 260, § 21. There is no requirement that the true owner of record receive actual notice of the use taking place on his property. If the use is "[o]pen and notorious . . . [it] is thus deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use or not." Lawrence, 439 Mass. at 422.

Adverse possession cases are highly fact-specific and depend on the character of the land and its surroundings. The intensity of use varies among adverse possession cases because the use must be equivalent to an exercise of dominion and control over the land that is consistent with typical land ownership, and so that it can place the record owner on notice that his property is being used adversely. For example, the type of actual use that may be sufficient to prevail on an adverse possession claim in an unpopulated, rural or forested area will be quite different than the type of use that will be required in a busy urban area. In some cases, fencing in the land may be sufficient, whereas in other cases the court may require a showing of more extensive, active use such as frequent mowing, snow removal or parking cars.

Even if the claimant has not personally used the disputed area for the full twenty years, he may still prevail on his claim by taking advantage of the doctrine of "tacking". To accrue the requisite twenty years, he may "tack" his use of the disputed area to the period of adverse use of those in privity of estate with him (i.e. his predecessors in interest). In fact, it is possible that the elements of adverse possession were established long before the current claimant.

In those cases where the use has not been exclusive, the claimant may alternatively pursue a claim of prescriptive easement. A successful claim for prescriptive easement is identical to proving a claim for adverse possession, except for the element of exclusivity. See, e.g., Denardo v. Stanton, 74 Mass. App. Ct. 358 (2009). See also M.G.L. c. 187, § 2.

Regardless of whether it is a claim for adverse possession or prescriptive easement, at trial the claimant will be required to prove all elements before declaration of those rights can be rendered. The type of evidence favored by courts in these types of cases includes photographic evidence showing the use over twenty years; testimony offered by the claimant, predecessors in interest and neighbors about the nature and frequency of the use; and invoices/receipts for work, fencing or landscaping in the disputed area.

Moreover, it is equally important that the claimant be able to show that he was at all times acting without permission from the true owner of record and, for adverse possession cases only, using the area exclusively, because these two elements are often rebutted with evidence from the owner of record. If the claimant fails on any element of adverse possession or prescriptive easement claim, he will not be able to establish title or rights in the disputed area.

Written by Kristen M. Ploetz, Blog Editor

PRIVATE WAYS: WHO HAS THE DUTY TO MAINTAIN AND REPAIR?

2011-12-22T15:29:14Z

For landowners abutting a private way, obligations regarding maintenance and repair of the way depend on who owns the fee in the private way. These obligations include things like snow removal, re-paving, proper drainage and other maintenance issues.

In general, a person in control of a private way owes a duty of reasonable care to those persons using the private way. Determining who actually owns or is control of the private way is another matter.

In many cases, a landowner's deed will expressly state whether the conveyance of the lot includes the fee interest in all or a portion of the private way. Often the original land developer retains the fee interest in the private way, and therefore has the attendant duty to maintain the road. Sometimes the developer will grant the fee in the private way to a homeowner's association that will assume responsibility for maintenance and repairs.

Alternatively, in some cases, the abutting landowners may each own a portion of the private way based on the grant of land set forth in their respective deeds. Depending on how the lots are laid out around the private way and described in the deed, such ownership may or may not include the entire width of the road. In this case, all of the owners of the road will hold a collective responsibility to maintain and repair the private road; in many cases these landowners will also transfer responsibility to a duly formed homeowner's association.

All too often, however, there are deeds that do not expressly state who owns the fee in an adjacent private way. In those circumstances, the law provides relief in the construction of such deeds with M.G.L. c. 183, § 58, the so-called "derelict fee statute". For those lots that bound on a private (or public) way,

Section 58 mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way -- to the centerline if the grantor retains property on the other side of the way or for the full width if he does not -- unless 'the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.' The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way.

Tattan v. Kurlan, 32 Mass. App. Ct. 239, 243 (1992) (interpreting the derelict fee statute). The application of the statute is retroactive, and thus applies to all deeds, including those that predate the passage of the law in 1972.

Once ownership of the private way can be determined, then the rights and obligations of the owner(s) to maintain the way can be assessed. If there are also easements over the private way, additional considerations must be made and the law becomes less certain. For example, while the well established principle is that the duty of maintaining an easement rests upon the holder of the easement, Shapiro v. Burton, 23 Mass. App. Ct. 327, 333, 502 N.E.2d 545, 549 (1987), at least one Superior Court case suggests that, there may be instances where the maintenance obligations in a private right of way should be apportioned between both the servient and dominant estate holders. This is where careful analysis of all relevant deeds and plans and perhaps even the balancing of the reasonable use of the way becomes essential in determining the rights and obligations of all interested parties.

Written by Kristen M. Ploetz, Blog Editor