Appeals Court Finds Conservation Commission Inaction Cured by Previous Order of Conditions

By Olympia A. Bowker

Last July the Massachusetts Appeals Court issued a decision, Cave Corp. v. Conservation Commission of Attleboro, 91 Mass. App. Ct.

767 (2017), reinforcing the durability of a conservation commission’s Order of Conditions (OOC) issued under its municipal wetland ordinance.

The decision directly applied and tacked on an exception to the

Olympia A. Bowker, Esq.

Massachusetts Supreme Judicial Court’s rule from a leading Home Rule case, Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich. The Court also clarified what would happen legally on a crucial “what if” scenario.

That scenario, as evinced by the facts in Cave, is: “What if a conservation commission failed to act on a Notice of Intent (NOI) in a timely manner, but already had imposed valid conditions under its municipal bylaw or ordinance on a previous NOI, for the same property?”

Two layers of law protect wetlands in Massachusetts. One is the Wetlands Protection Act (WPA), G.L. c. 131 § 40, which provides a statewide minimum of protection for all jurisdictional wetlands and other Resource Areas. The other is municipal wetland controls. These are typically in the form of bylaws or ordinances, should be more stringent than the state law, and only apply to specifically defined Resource Areas within the municipalities’ jurisdiction.

If a proposed project will alter a Resources Area, a proponent must seek permission from the conservation commission of the municipality where the land lies. Then, the commission makes a determination under both laws—the WPA and the municipal wetland bylaw or ordinance—and issues an Order of Conditions (OOC), which is a set of conditions protecting the Resource Areas. Unless appealed, the project must comply with those conditions if it goes forward.

A proponent may appeal an OOC to the Department of Environmental Protection (DEP). The DEP then reviews the OCC and can issue a Superseding Order of Conditions (SOC) which can trump the commissions original OOC. However, the DEP’s review is limited to conditions issued pursuant to the state law, or weaker than the state law. The DEP has no authority to review, second-guess, or change the conditions that a commission imposes pursuant to a more stringent local municipal wetlands bylaw or ordinance.

In the Cave case, the Cave Corporation filed its first NOI with the Attleboro Conservation Commission (Commission) in December 2013. The Attleboro City Council had enacted a wetlands protection ordinance a decade earlier, affording wetlands protection beyond that of the WPA. As a result, when Cave filed its first NOI, to develop the parcel, the Commission applied both state and municipal law to consider the project and determine what, if any, conditions to impose.

In that first NOI, Cave sought to build general infrastructure for a subdivision. That proposed project had the potential to impact a variety of Resource Areas—among them, two vernal pools that are protected under the Attleboro ordinance (but not the WPA). The Commission timely approved the work with an OOC. Notably, one condition, Condition 29, prohibited any work or disturbance within 125 feet of the two vernal pools on the subject property.

Cave appealed the OOC to the DEP, which eventually issued a SOC. However, as discussed in FIC Homes of Blackstone, Inc. v. Conservation Commission of Blackstone, the DEP cannot preempt a condition based on a more strict, local, wetlands provision. Therefore, Condition 29, as imposed in the local OOC, remained intact and effective.

In October 2014, Cave filed a second NOI with the Attleboro Conservation Commission—this time seeking permission to construct homes on lots within the proposed subdivision. Included in this second NOI was a plan to construct a driveway within 125 feet of one of the two vernal pools on the land.

The Commission failed to hold a timely hearing on the second NOI. Consequently, Cave appealed to DEP for a SOC. While this situation initially mirrored that in the Oyster Creek decision, the Appeals Court built on its analysis.

In Oyster Creek, the Harwich Conservation Commission failed to act on an NOI, under both state and local laws, within the statutory time frame of 21 days after the close of the public hearing. The Supreme Judicial Court in Oyster Creek ruled that when a municipal conservation commission fails to act timely on an NOI for work affecting wetlands, the applicant may seek a SOC from DEP and “it is appropriate that [the commission] should lose the right to insist on the provisions of its local bylaw, and that any superseding order issued by the DEP should apply in its stead.”

In Cave, when the Commission failed to timely act on the second NOI, Cave sought and received an SOC from DEP without the burden of any conditions based on local bylaws. Had the inquiry stopped there, Cave would be permitted to construct within 125 feet of one of the two vernal pools on the subject property.  However, there was an earlier OOC based on an earlier NOI that prevented work within 125 feet of the vernal pools. Which controls: the OOC based on the first NOI, or the later SOC based on the commission’s failure to act timely on the NOI?

Cave sued in court, claiming the later SOC governed the work and the first OOC was no longer applicable. How would the court apply Oyster Creek to this situation?

The Appeals Court determined that even though the Commission failed to timely act on Cave’s second NOI, the conditions of the first NOI applied to the same land. Therefore, the court found that Cave was still bound by Condition 29 of the first OOC because it was imposed earlier to protect the vernal pool habitat from human construction activities and remained in effect. The court reasoned that because the Attleboro Commission included explicit reasoning for including Condition 29 in the first OOC, the property was the same land in both NOIs, and the preliminary work was for a subdivision—the conditions in the first NOI were still in effect for all other phases of work for the same land.

The take-away: An SOC issued by DEP does not divest a conservation commission of all authority to regulate activity on land subject to the SOC, if the same land is also the subject of a separate and earlier NOI on which the commission acted timely in issuing its OOC.

Nonetheless, is wise for conservation commissions to act on all NOIs within the prescribed statutory time periods, issue clear decisions with specific and articulated findings justifying the conditions they impose, keep accurate and complete records of past NOIs and OOCs, and track whether the OOCs have been properly recorded (and complied with). This advice is especially so for those commissions administering Home Rule wetlands bylaws or ordinances. Otherwise, a careless commission may find itself up Oyster Creek without a paddle.

Olympia Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, and zoning matters. Olympia received both her J.D. and Masters of Environmental Law and Policy from Vermont Law School. She can be contacted by email at: obowker@mcgregorlaw.com

e‐Recording is Here to Stay: Evolving Technology at the Registries of Deeds (Audio)

Land Court Holds Condominium Unit Owners Cannot Establish Easement By Necessity Over Neighboring Unit Owners’ Exclusive Use Area

By Kimberly A. Bielan

 

A recent decision issued by Chief Justice Cutler of the Land Court considered a claim by condominium unit owners that they had acquired an implied easement by necessity over a portion of the

common area that had been designated for exclusive use by neighboring unit owners. In Vuzman v. Kales, No. 15 MISC 000348 (JCC), 2017 WL 2917798 (Mass. Land Ct. July 7, 2017) (Cutler, J.), the Land Court allowed the defendants-unit owners’ motion for judgment on the pleadings and held that no easement by necessity had been created.

Vuzman concerns a two-unit residential condominium located in Newton. Created in 1991, the 129-131 Cypress Street Condominium is comprised of one large building containing the two units, a barn and outdoor land area. At the time of creation of the Condominium, all of the outdoor land area was designated as “exclusive right area” for each of the units. Specifically, the plaintiffs’ exclusive use area (or, “limited common area” under G.L. c. 183A, § 1) is located at the rear of the Condominium, accessed by a thin strip of land along the Condominium’s southeasterly property boundary. The defendants’ exclusive use area is adjacent to the north of the plaintiffs’ exclusive use area, surrounding the residential building. A site plan was recorded with the Condominium’s Master Deed and clearly delineated each unit’s respective exclusive use area.

The dispute between the unit owners arose when the defendants informed the plaintiffs that they intended to remove certain stairs in their exclusive use area and to install a fence around the backyard portion thereof. The plaintiffs, who alleged that they utilized the stairs located on their neighboring unit owners’ exclusive use area in order to access their exclusive use area to the rear, objected to the proposed changes. The plaintiffs alleged that the installation of the fence would entirely eliminate their ability to safely access and utilize their exclusive use area at the rear of the Condominium’s common area.

After quickly disposing of the plaintiffs’ claims alleging violations of the provisions of the Condominium’s Master Deed and Declaration of Trust, the Court then considered the unit owners’ allegation that they hold an “implied easement by necessity” through their neighboring condominium unit owners’ exclusive right area because they otherwise cannot access their exclusive use area to the rear.

In considering this argument, the Court acknowledged that ownership of a condominium unit is a “hybrid interest in real estate, entitling the owner to both exclusive possession of his unit and an undivided interest as tenant in common with other unit owners in the common areas.” Id. at *7. This situation, according to the Court, is inapposite to – and does not meet the requirements for – creation of an easement by implication or necessity. Id., quoting New England Cont’l Media,Inc. v. Town of Milton, 32 Mass. App. Ct. 374, 378 (1992) (“An easement is said to arise (or be implied) by necessity when a common grantor carves out what would otherwise be a landlocked parcel.”); Kitras v. Town of Aquinnah, 474 Mass. 132, 140 (2016) (“A presumption of easement by necessity arises upon a showing of the following elements: (1) unity of title; (2) severance of that unity by a conveyance; and (3) necessity arising from the severance, most often when a lot becomes landlocked.”). “Simply put, because this case involves a condominium development submitted to Chapter 183A, which does not, by its very nature, involve a division of land into separately owned parcels, the common law theory of implied easements does not apply here. From the time of execution of a master deed, the rights in and to the condominium are defined by the master deed and Chapter 183A of the General Laws.” Id.

The Court concluded that the Master Deed’s designation of exclusive use areas did not constitute a division of the Condominium’s common area into separate ownership or constitute a severance of unity of title of the common area, recognizing foundational principles of condominium law. As the intent of the Master Deed was clear in its designation of the exclusive use areas for each unit, any difficulty that the plaintiffs encountered in obtaining access to their rear exclusive use area was of no import.

The Court’s decision in Vuzman makes clear that it views the allegation concerning the purported creation of implied easements over a Condominium’s common area, including the exclusive use portions thereof, different from the traditional scenario for creation of such easements under common law. While the Vuzman decision reaches the correct conclusion based upon the facts in the case – and, particularly in light of the fact that the plaintiffs do have access to the rear of the Condominium common area over an exclusive use strip of land – it does at least raise the question of how the Court would handle a similar circumstance in which a unit owner was deeded an exclusive use area with no means of access but over another unit owner’s exclusive use area. It appears that, under the reasoning of Vuzman, the Court would look upon any claim to an implied easement by necessity as inapplicable under such circumstances.

Originally posted July 26, 2017 on tlawmtm.com:
http://lawmtm.com/condominium-easements.html

Kim Bielan is an associate in the litigation and zoning and land use departments at Moriarty Troyer & Malloy LLC. She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She can be contacted by email at kbielan@lawmtm.com. 

Recreational and Medical Marijuana in Massachusetts Condominiums

By Christopher S. Malloy

While the recent decriminalization of marijuana in Massachusetts has no doubt pleased a segment of the population, condominium associations and their boards are left facing difficult decisions whether to attempt to regulate, or outright ban, recreational use in the common areas and units of their condominiums, as well as harvesting marijuana within individual units.

The smoking and/or growing of marijuana creates a host of potential consequences for individuals and families living in the close confines of a condominium community beyond those of bothersome odors, which can be enough in and of itself to warrant prohibition of marijuana smoking.

Harvesting marijuana requires a substantial amount of water, heat and light, some of which are common area expenses for certain communities. If a single unit owner begins growing marijuana in their unit, the increased utility costs caused by that operation could be funded in part by other unit owners’ common area fees. More significant than the financial burdens created, the health and safety of neighboring unit owners can be compromised by the increased risk of fire from the intense light and heat required or flood from the increased water usage. For those associations with commercial units, additional factors to consider are the potential for increased retail activity, along with a possible heightened risk of robbery given the contents of the unit.

Another consideration for associations is whether condominium master insurance policies will cover losses related to marijuana usage. Complicating the issue of whether the growing and harvesting of marijuana would be considered an uncovered act by insurance carriers is that the possession, consumption, harvesting, etc. of marijuana remains illegal under federal law. While the United States Justice Department has generally advised its attorneys general to refrain from prosecution of smaller scale marijuana-related offenses in states that have legalized its possession, insurance companies are not likely to be as lenient when claims arise from the growing or other misuse of a federally banned substance, especially if that insurance carrier was not advised of the use in the first instance.

A condominium board can restrict or otherwise regulate the use of marijuana in the common areas by simply updating its rules and regulations by a majority vote of the board. Banning or regulating marijuana use within individual units must be done through an amendment to either the Master Deed or the association’s declaration of trust/by-laws, which typically require at least a two-thirds vote of the beneficial interest of unit owners. If there is an existing ban on smoking, passing such an amendment will no doubt be easier, however some condominiums have a population of smokers large enough to defeat an attack on smoking and related uses. In those instances, boards can soften the blow by limiting the restriction to the growth and harvesting of marijuana.

If boards are faced with communities which for one reason or another are opposed to banning the growing and harvesting of marijuana, less intrusive restrictions can be presented, including banning certain harvesting techniques, requiring separate utility meters for those units who elect to grow and imposing additional insurance obligations for any unit engaged in a growing operation. In circumstances where boards cannot obtain the votes to ban marijuana or smoking in general, most associations can always rely on existing nuisance provisions contained in their governing documents if smoke or other odors permeate from a unit into the common area or another unit. This may become an easier task for boards to accomplish as the Massachusetts House of Representatives is currently hearing a proposed bill which would establish secondhand smoke, including that from cigarettes, marijuana and the like, as a condition deemed to endanger the health or safety of those in the surrounding units. If the bill becomes law the local board of health will be vested with the authority to fine the offending unit owner and may order the unit owner to seal the unit to the satisfaction of other residents. In addition, the bill contemplates new language to be added to M.G.L. c. 183A prohibiting smoking (including marijuana) in all common areas and, if smoking is permitted in units under the governing documents, such activity shall only be permitted if the unit is sealed to the satisfaction of other residents “so that smoke, fumes or vapors are unable to enter into any other common areas or other units.”

While boards seeking to restrict recreational marijuana use and growing operations within units (provided they obtain the requisite vote of the unit owners) will rest on firm footing, attempts to prohibit or otherwise regulate marijuana use for medical purposes may be slightly more precarious.

Massachusetts law prohibits organizations of unit owners in a condominium or housing cooperative from discriminating against any person because of that person’s handicap status. M.G.L. c. 151B, §1(17) defines a handicap as “(a) physical or mental impairment which substantially limits one or more major life activities.” In the event a unit owner provides evidence of such a handicap and a confirmation from a physician or other medical professional that marijuana has been prescribed to treat the condition, an accommodation under c. 151B will likely be required.

In such circumstances, boards can continue to enforce an existing restriction on the transfer of marijuana smoke from one unit to another by requiring, among other things, the unit owner to whom the accommodation was granted to, among other options, implement a smoke filtration system or other similar mechanism to ensure other unit owners are not affected. The board could also explore with the affected unit owner whether there are other less invasive ways in which marijuana can be consumed inside the unit such as ingestion through edible form.

Boards are wise to take stock of whether the inevitable increase in recreational marijuana use is having or is likely to have an impact on their associations and take proactive measures to address such conduct before it becomes more difficult to regulate or restrict.

Originally posted July 26, 2017 on tlawmtm.com:

http://lawmtm.com/recreational-medical-marijuana-massachusetts-condominiums.html

Chris is a founding member of Moriarty Troyer & Malloy LLC and brings nearly fifteen years of litigation and trial experience in the areas of community association, real estate and complex construction law. Chris’s practice also focuses on condominium construction defect and transitional litigation at the trial and appellate level of the state and federal courts as well as in various alternative dispute resolution forums.

In his condominium and real estate practice Chris represents residential and mixed-use condominiums, homeowner associations and property management companies in a broad range of matters and provides advice on operational and governance issues, interpretation and amendment of governing documents, rules and bylaw enforcement, developer transition issues and common area disputes. Chris also manages the firm’s common area lien enforcement practice.

Chris represents a wide variety of clients including condominium and homeowner associations, building owners, developers, general contractors, construction managers, subcontractors and suppliers in all aspects of construction transactions, disputes and litigation including defective work claims, breach of contract, and violations of M.G.L. c. 93A. Chris has expertise with disputes involving both public and private construction projects and has extensive experience with complex multi-party construction defect litigation.

A Path to Electronic Acknowledgements

A Path to Electronic Acknowledgements

By Richard P. Howe, Jr.

As young people who have known nothing but digital commerce enter the home ownership market, the conveyancing community in Massachusetts will face increased pressure to leave paper behind in favor of purely electronic closings. The statutory basis for this technological transition has been in

Richard P. Howe, Jr.

place since 2004 with the adoption of MGL c.110G, the Massachusetts Uniform Electronic Transactions Act. Since then, all registries of deeds in the commonwealth have implemented electronic recording systems. Still, some uncertainly remains, especially regarding acknowledgements.

Earlier this year I wrote about electronic acknowledgement statutes in other jurisdictions in “Remote electronic acknowledgments,” published in the March 2017 edition of REBA News. In the same article, I explained why registries of deeds in Massachusetts should record documents electronically acknowledged outside of Massachusetts, but not record those electronically acknowledgement within Massachusetts. The primary basis for that opinion was that Massachusetts law requires a notary to affix a notary stamp to an acknowledgement, and that our law provides no electronic equivalent of that notary stamp.

With the demand for electronic acknowledgements looming but not yet fully upon us, now is the time to amend our notary statute to accommodate new technological practices. The starting point for such an amendment should be a shared understanding of the purpose of an acknowledgement, particularly with regard to real estate documents.

In colonial Massachusetts, registries of deeds and the requirement that real estate documents be acknowledged arose simultaneously. The purpose of the registry was to provide a public record of who owned what land as a means of curtailing secret sales that muddled ownership and created uncertainty in real estate transactions. The purpose of requiring deeds to be acknowledged before recording was meant to curtail fraud, either in the guise of a forged signature or of an actual signature that was later denied by its maker.

Conceived in the seventeenth century, the rationale for these rules, and the rules themselves, persist today. Registries of deeds perform the same core function of making public real estate ownership records, using new technology to do it.  

So what is the core function of an acknowledgement? Primarily, it is to assure the public that the person who signed a document is who he or she purports to be. In Massachusetts, a notary does this by personally witnessing the signing of the document while positively identifying the person who signed it. The notary attests to this by signing the acknowledgement clause, printing his name and the expiration date of his notary commission underneath his signature, and then affixing his notary stamp to the document.

MGLc.222, s.8 requires a notary stamp to include “the notary public’s name exactly as indicated on the commission; the words ‘notary public’ and ‘Commonwealth of Massachusetts’ or ‘Massachusetts’; the expiration date of the commission in the following words: ‘My commission expires _____’; and a facsimile seal of the commonwealth.”

Not to minimize the importance of the facsimile seal of the commonwealth, but I am not sure how including that on an inked stamp that anyone, anywhere may purchase in any name from multiple vendors adds appreciably to the authenticity of a document or the signature upon it. To me, the basic reason for requiring a notary to include identifying information such as a printed name and a commission expiration date in the acknowledgement clause is to help identify and locate the notary if questions arise about the document.

While the notary stamp does require those two bits of information, so does the notary clause itself, which seems to make the notary stamp superfluous. Perhaps it would be more useful to assign each notary public a unique identifying number, much like an attorney’s BBO number, and require that number to be included in the acknowledgement clause in lieu of a stamp. Such a unique number would expedite the identification of the notary and his whereabouts. It would also be easy and inexpensive to implement, both on paper and in electronic form.

In reviewing electronic acknowledgement statutes already adopted elsewhere, it seems that many states have created a dual commission regime, one for regular notaries, the other for electronic notaries. Other places require notaries to invest in sophisticated (and presumably expensive) technology that renders the electronic document being acknowledged tamper-proof. Perhaps the tasks assigned notaries in other jurisdictions are more complex than those in Massachusetts, but both of these practices – a dual commission system and requiring sophisticated software of electronic notaries – greatly exceed anything now required or expected of notaries in this commonwealth.

In crafting rules for electronic acknowledgements in Massachusetts, we should strive to duplicate the functions now being performed by our notaries while allowing those functions to be performed on tablets and computer screens, not just on paper. Complex and expensive systems are not needed to do this, and such additional requirements would needlessly delay our ability to keep pace with the evolving expectations of those we serve.

A regular and welcome contributor to REBA News, Dick Howe has served as register of deeds in the Middlesex North Registry since 1995.  He is a frequent commentator on land records issues and real estate news.  Dick can be contacted by email at richard.howe@sec.state.ma.us. 

Buyer’s Attorney Beware: Risks of Purchasing Occupied Property (Audio)

Panelists will review the risks of purchasing occupied property starting at the “Offer to Purchase” stage and continuing through the P&S negotiation and finally, following through until the closing is complete. Many new buyers of multi‐family property are finding themselves stuck with under‐market tenants, non‐paying tenants, illegal apartments, statutory violations, etc. Many of these issues can and should be handled at the offer stage. A diligent conveyancing attorney should become familiar with the rights and responsibilities of being a landlord or engage an eviction/landlord‐tenant attorney at a very early stage.

The Future of Real Estate Closings - The Pen Will No Longer Be Mightier

By Kosta Ligris, Esq. @kligris

The real estate title and settlement process has resisted change and deployment of technology for years. But are we experiencing the "beginning of the end" of the real estate closing as we've known it? If you ask our friends in North Carolina, which successfully conducted its first ever "eClosing" in May 2017 the answer is clearly yes!

Aside from the reduction in paperwork, electronic closings stand to provide tremendous convenience and value to consumers. The Consumer Financial Protection Bureau ("CFPB") ran a study which

found that electronic mortgage closings can benefit the consumer. “While technology alone will not address all consumer concerns in the closing process, our study showed that eClosings do offer the potential to make the process less complex,” said CFPB Director Richard Cordray. “We expect this pilot project and its findings to help inform further innovation that will be a win-win for consumers and industry alike.”

Electronic closings will likely provide consumers with more time to review paperwork (such as lengthy loan documents), reduce the need to travel to a law firm, county registry or title company, and provide an audit trail for all the stakeholders including the consumers, lenders, insurers and regulators.

Even Fannie Mae is now accepting electronically executed promissory notes for mortgage transactions (subject to its terms and guidelines). The reality is that as electronic signature platforms continue to develop, the future of electronic closings as mainstream is imminent.

There will of course be critics, concerned with remote notarization, fraud, and cyber-crimes. But the concept and argument that "we've always done it this way" will not be upheld. As Millennials start to enter the housing market, the future is clear that Millennials hold massive buying power and are changing the housing market. They are used to conducting business on-line and via mobile apps (banking, transferring money, communicating, etc.) - the housing and mortgage industry will need to adapt for them as well. The time is now for the mortgage and title industry to prepare for the future in which the mouse and app will be mightier than the sword.

Originally published   on July 19, 2017

https://www.linkedin.com/pulse/future-real-estate-closings-pen-longer-mightier-kosta-ligris

A member of the REBA Title Insurance and National Affairs Section, Kosta Ligris is the founder, CEO and Managing Partner of Ligris + Associates, P.C.. His practice concentrates on residential and commercial real estate transactions; he represents buyers, sellers, and developers in the acquisition, sale and development of residential and commercial real estate. Kosta also serves in a general counsel capacity for certain investors and developers by providing guidance on various legal matters and coordinating representation with other lawyers and law firms.  Kosta can be contacted by email at kligris@ligris.com.