It’s Time to Bring your Condominium Documents into the 21st Century

Matthew W. Gaines

A lot has changed in the world since the advent of condominiums, and subsequent boom of condominium development in the 70s, 80s

and 90s.  However, most condominium documents, including many of those drafted more recently, are still far behind when it comes to methods of communications, voting and holding meetings.  I recently reviewed a set of documents that were drafted in the 1990s and they mentioned one of the methods by which notice can be give to unit owners is by telegraph.  I can’t imagine many boards or property managers have telegraphs lying around.  Since drafters of condominium documents often use the same template over and over again, unfortunately, even documents drafted in the 2000s do not contain provisions one would expect to see for a new condominium.

 

Notice by email.  One of the more common questions we receive is can the board or property manager send notices to the unit owners by email.  All documents have a section stating the method by which notice must be given to unit owners for meetings or other matters.  Typical language states notice to unit owners shall be given by leaving the notice at the unit or by mailing it to the address of the unit owner.  If notice by email is not specifically stated in the documents, then technically, notice by email is not sufficient.  Failure to give proper notice can result in a domino effect whereby any action taken subsequent to insufficient notice could be deemed invalid.  The solution is to amend the notice section in the documents (usually found in the bylaws) to permit notices to be sent by email.  Amendments to the bylaws do require the approval of unit owners.  If such an amendment is adopted, the board or property manager should keep a list of the current email addresses for all unit owners.

 

 

Electronic Board Meetings and Voting. While the issue of whether boards may meet and vote using electronic means has come up from time to time over the years, the Covid-19 pandemic and related restrictions on gatherings brought greater attention to this issue.  Many condominium documents are either vague or require actual in-person meetings and voting by the board.  Actions taken by a board which are not in compliance with the strict language of the documents could be subject to challenge.  Given that many board discussions take place via email, coupled with the fact board members are volunteers who often have full-time jobs and lives outside of the board, it would be prudent for the board to have the ability to meet via conference call, video conference or other electronic means, and to permit the board to make decisions via electronic means, including email.  The reality is many boards are likely already doing this, but perhaps such practice is not permitted by the documents.  Therefore, it is advisable to amend the relevant provisions in the condominium documents to permit boards to meet and vote by electronic means.

 

Electronic Unit Owner Meetings and Voting.  Many condominium documents require the annual meeting of the unit owners and elections of board members take place during April, May or June.  Due to the Covid-19 restrictions on gatherings, our office received many calls from boards and property managers asking what they should do given the inability to actually hold a unit owner meeting and election.  Many clients inquired whether they could hold a virtual ZOOM annual meeting and vote by electronic means.  As such technology was not available until recently, unfortunately, very few documents permit unit owners meetings to be held virtually, nor do the documents permit electronic voting.  Once again, the solution is to amend the documents. 

 

With respect to voting by electronic means, there are various services available which are set up to handle voting by unit owners over the internet.  Security and fraud are of course always a concern; thus, it is important to ensure the service chosen has adequate protections in place.  If a unit owner indicates he or she is not comfortable voting via the internet for whatever reason, the board should have paper ballots available.

 

With respect to holding unit owner meetings by electronic means, this is a bit trickier as unlike electronic voting which can have the alternative of a paper ballot, for meetings the meeting is either in-person or virtual, a hybrid approach likely would not work.  During the height of the Covid-19 pandemic, as many boards sought to hold unit owner meetings via ZOOM, several concerns were expressed.  What if a unit owner does not have the technology enabling them to participate?  In addition, for large condominiums, holding a ZOOM with 100 or more people could be difficult to manage.  Therefore, virtual unit owner meetings may not work for all condominium.  Before a board considers amending its documents to permit virtual unit owner meetings, it would be advisable to survey the unit owners to determine their comfort level with such an approach and to discuss alternatives if owners are not comfortable.

 

While boards often propose amendments to documents which could be viewed as controversial (smoking, leasing, pets, etc.), it is unlikely boards will run into much opposition for amendments to permit notices by email, and to permit boards to meet and vote by electronic means. 

 

A member of REBA’s legislation section, Matt Gaines is a Partner in the Condominium Practice Group of the Braintree firm of Marcus Errico Emmer Brooks, P.C.  He focuses on the review and drafting of condominium documents, lien enforcement actions, the enforcement of rules and covenants, and fair housing and discrimination matters, including requests for reasonable accommodations/modifications. Matt can be contacted by email at mgaines@meeb.com.

The Commercial Tenant and The Notice of Lease—A Cautionary Tale

Thomas Bhisitkul

Imagine the following scenario. You are the principal of a growing business that has been operating in space within a suburban office

park somewhere in the 128 or 495 corridors, but are now ready to “move on up” to the big city and set up shop in Downtown Boston. It is the time of COVID-19, and you find yourself in a soft leasing market that is highly favorable to tenants. You end up landing your dream space within a nice building in a prime location. The landlord agrees to a generous tenant improvement allowance, and (the best part) also agrees to a rent rate that is 75 percent of the rental rates commanded for similar space in the same building just a year earlier. You lock into that favorable rent for an eight-year term, and in doing so gain certainty in your flagship location for years to come. The lease gets inked, the space is built out, your business moves in, and it continues to thrive. All is well.

"Any commercial tenant who signs a lease with a term longer than seven years should be sure to record a notice of lease."

Two years later, market circumstances have changed dramatically. Scientists have developed a vaccine for COVID-19; downtown business activity has returned to robust levels; and the market for Downtown Boston commercial leasing space has not only recovered but has gone into a white hot upcycle. Your landlord is now commanding rents in your building at rates 150 percent higher than the rates you locked into a couple years earlier. You have beautifully navigated the capricious Downtown Boston commercial leasing market, and are feeling like a genius. Then, out of the blue, you receive a letter from an attorney for some LLC that you have never heard of. The letter advises you that the LLC you have never heard of just purchased the building, and was somehow not aware that your lease was locked in for eight-years. The attorney advises you that the new landlord has declared your lease to be invalid, demands that you immediately vacate the premises, and punctuates that demand with a menacing warning that if you fail to vacate, they will pursue legal proceedings to have you removed. What just happened?

What happened is that your lease is longer than seven years, and you neglected to record a “notice” of that 7-plus year lease with the Suffolk County Registry of Deeds. Such failure has, indeed and tragically, given your new landlord the legal right to declare your lease invalid under Massachusetts law.

The law at issue is a Massachusetts statute, G.L. c. 183, §4, which provides that any “lease for more than seven years from the making thereof…shall not be valid” against anyone except that landlord who entered into the lease “or persons having actual notice of it”. Thus, a purchaser who acquires the property without actually knowing about a lease (or, even with knowledge of the lease, but without actual knowledge that the term of the lease is longer than seven years) is not bound by the lease, and can declare it to be invalid. The basic policy behind the statute it to protect bona fide purchasers who innocently purchase property without knowledge that it is encumbered by a long-term lease. Imagine a hypothetical developer who purchases property for a redevelopment project, and was led to believe that the existing building thereon was occupied only by a handful of at-will commercial tenants whose tenancies could be terminated on 30 days’ notice. One can understand the injustice suffered by that developer if, after paying the purchase price and taking over ownership of the property, it only then learns that there is a tenant on the property with a 10-year lease that would block the purchaser’s redevelopment plans. The purpose of the statute is to relieve the purchaser of this hardship, provided that the purchaser was truly innocent in buying the property without knowledge of the long-term lease.

Of course, our hypothetical Boston tenant was not aware that its landlord was even selling the building, and thus would have had no reason to think that it needed to advise the potential purchaser about its 7-plus year lease. How in the world could a tenant in that scenario have any control over disclosure of its lease to a purchaser of which it is unaware? Particularly where the consequences are so severe -- invalidation of its lease!

The answer to that question is that the tenant can record a simple “notice of lease” with the applicable land recording office for the county in which the property is located. For our hypothetical Boston tenant, the recording office would be the Suffolk County Registry of Deeds (or, if the land is registered, the Suffolk Registry District of the Massachusetts Land Court). By recording a notice of lease upon signing the lease (or shortly thereafter), the tenant puts all future potential purchasers of the property on constructive notice of the existence of the lease, and most importantly that the lease term is longer than seven years. If the notice of lease is on record in the public property records at the time that the future purchaser closes on the acquisition of the property, the purchaser cannot claim that it had no “notice” of the lease, or that the term thereof exceeded seven years. Even if the purchaser did not have actual notice of the lease, it still cannot claim to be an innocent victim, since it could have (with fairly minimal diligence), and should have, examined the public title records to the property. Such examination would have revealed the existence of the lease and of the lease term. Accordingly, if our hypothetical Boston tenant described at the beginning of the article would have recorded a notice of lease, the new LLC that purchased the building would have been on actual (or at least constructive) notice of the tenant’s lease, would therefore not have been an innocent purchaser without notice of the lease. That would have averted the tragedy—the new LLC would not have had the right to invalidate the below-market lease to free up the space for lease to a new tenant at the then higher market rents.

So, the lesson to be learned from this allegory is simple. Any commercial tenant who signs a lease with a term longer than seven years should be sure to record a notice of lease. This would apply both to leases having an initial term longer than seven years, and also to leases having a shorter term but contain tenant extension options that could extend the term beyond seven years. The notice of lease must be recorded with the registry of deeds (or registry district of the Land Court) for the county in which the premises is located, must contain mandatory information prescribed by the statute, and must further conform to the formatting and recording formalities of the particular recording office. Accordingly, it is highly advisable for the tenant to retain a qualified real estate lawyer to prepare and record the notice of lease in compliance with these legal requirements.

A past president of REBA. Tom Bhisitkul is a principal of the firm of Moriarty Troyer & Malloy LLC, chairs of its Commercial Real Estate Department. Tom has over 20 years of experience in representing Fortune 500 companies, national and local banks, retailers, shopping center owners, and investors in all facets of acquisition, development, operation and leasing of commercial real estate throughout the country.  Tom’s email address is tbhisitkul@lawmtm.com.

Appeals Court Further Defines Preexisting Nonconforming Structures

Kimberly A. Bielan

Demonstrating that the law in the area of pre-existing nonconforming uses continues to be refined, last August the

Appeals Court issued a decision in Comstock v. Zoning Board of Appeals of Gloucester, 98 Mass. App. Ct. 98 (2020), holding that property owners were entitled to summary judgment as they had received adequate zoning relief to raze and rebuild a dilapidated garage on their property. The case shows how a neighborly dispute concerning a small accessory structure can result in years of litigation and eventuate in a decision from the Appeals Court. It also reflects the importance of the nuances in each municipality’s zoning by-law.

One principal takeaway from the Comstock decision is that the law is continuing to be refined relative to preexisting nonconforming structures and the protections afforded to them.

Factual Background

The zoning dispute at issue in Comstock arose out of abutting parcels in Gloucester. The applicants, Robert and Pamela Irwin, sought to tear down a preexisting nonconforming garage that had fallen into a state of disrepair and construct a new garage in its place. The existing garage was nonconforming as the Irwins’ property was undersized, and the garage was set back only five feet (where 10 feet is required) from the property line it shared with the neighboring property, owned by Henry Comstock Jr. In its place, the Irwins proposed to construct a new garage on the same footprint, but at a greater height. The existing garage was 12 feet (compliant with the zoning by-law’s height requirements for structures accessory to single-family dwellings), and the Irwins were proposing to increase the height to 15 feet. In addition to the increase in height, the Irwins proposed to reorient the garage, such that the ridgeline of the roof would be parallel to the side property line so the garage could accommodate a garage door facing the street.

The Irwins applied to the Zoning Board of Appeals of Gloucester for two special permits: to modify the preexisting nonconforming garage, and to authorize an increase in height to 15 feet pursuant to a provision in the zoning by-law authorizing accessory buildings to exceed the 12 foot accessory structure height requirement upon receipt of such relief. Before the Board, three neighbors spoke in favor of the project (including Comstock who ultimately appealed), and there was no opposition. The Board granted the requested special permits and, out of an abundance of caution based on its reading of Deadrick v. Zoning Board of Appeals of Chatham (2014), also granted two variances to the Irwins. As is relevant here, the Deadrick decision stands for the proposition that, in granting relief for a preexisting nonconforming structure, a variance is required to authorize the introduction of a new nonconformity. In the interim between the public hearing and the deadline to take an appeal of the Board’s decision, a dispute apparently arose between the Irwins and Comstock, and Comstock appealed to the Superior Court.

Procedural Background

On appeal to the Superior Court, the Irwins moved for summary judgment on the basis that the special permit decision was sufficient to authorize the project, no variances were required, and that there was no basis to find the Board’s decision was arbitrary and capricious. The trial court denied the Irwins’ motion for summary judgment and, alternatively, granted summary judgment in favor of Comstock. Purporting to rely on Deadrick, the trial court judge ruled that the Irwins required additional relief – a variance to exceed the 12foot height requirement for structures ancillary to single-family dwellings. The Irwins appealed.

Appeals Court Decision

On appeal, the Appeals Court reversed the trial court’s decision and remanded the matter for judgment in favor of the Irwins. The Appeals Court noted that it was taking the opportunity to clarify its decision in Deadrick concerning the need to obtain a variance in connection with the creation of a new zoning nonconformity when alterations to preexisting nonconforming structures are proposed.

The Appeals Court first walked through the protections afforded to preexisting nonconforming structures pursuant to G.L. c. 40A, § 6 (an overview of which can be accessed using the link provided hereinabove). In connection with its analysis, the Appeals Court noted the importance of analyzing the zoning by-law of the subject municipality, as additional protections may be afforded than those provided in the Zoning Act generally. By way of example, in the Gloucester zoning by-law, certain preexisting nonconforming protections were extended to accessory structures, such that the Irwins were entitled to seek special permit relief in connection with their project. Absent such protections, the Irwins may have been required to comply with the current provisions of the zoning by-law, including those for setbacks.

Next, the Appeals Court addressed whether the Irwins needed to obtain a variance from the height requirements, as the trial court judge had held. The Appeals Court noted that key to its reasoning in cases concerning G.L. c. 40A, § 6 is placing all property owners in an equivalent position. That is, the mere fact a property contains a preexisting nonconforming structure does not mean that the property owner can wholly disregard present requirements of the zoning by-law; however, at the same time, those property owners should not be placed at a disadvantage than those who are entitled to develop their properties pursuant to the current provisions of the zoning by-law. Here, the applicable zoning by-law provided that property owners could exceed the 12-foot height limitation of accessory structures upon receipt of a special permit. In ruling that the Irwins were required to obtain a variance from the 12-foot height limitation due to the Appeals Court’s decision in Deadrick concerning the creation of new nonconformities in connection with modifications to a preexisting nonconforming structure, the trial court was treating owners of properties improved with preexisting nonconforming structures disparately from those without such structures – the former being subject to the rigorous proof requirements of a variance, and the latter being entitled to seek special permit relief entailing a higher degree of Board discretion. As the municipal zoning by-law contains a provision permitting a special permit to authorize construction at a height greater than 12 feet for accessory structures, the owners of properties containing preexisting nonconforming structures were entitled to apply for such special permit relief as well.

Takeaway

One principal takeaway from the Comstock decision is that the law is continuing to be refined relative to preexisting nonconforming structures and the protections afforded to them. There are still outstanding issues that have yet to be answered, and municipal boards, comprised of volunteer members, have a lot to grapple with in considering these matters. A second takeaway from Comstock is the importance of analyzing the specific provisions of the particular zoning by-law at issue. While the Zoning Act has statewide applicability, each municipal zoning by-law contains different provisions that may afford unique protections and permit development in circumstances that may not be permissible in other towns.

Originally post at https://lawmtm.com/boston-grandfathered-structures.html on August 28, 2020.

Kim Bielan is a principal of Moriarty Troyer & Malloy LLC and member of the litigation and zoning and land use departments. She represents a variety of clients, including condominium associations, developers, and individual homeowners. Her practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups. Kim’s email address is kbielan@lawmtm.com.

Reformation Claims Do Not Necessarily Accrue Upon Recording. Nor Should They.

 
Matthew S. Furman

As a litigator frequently involved in real estate disputes, I often see claims to reform deeds and other recorded instruments based on

mutual mistake.  In these cases, I continue to be surprised by a persistent misunderstanding that the statute of limitations clock for reformation always starts to run upon recording based on the idea that recording is notice.  Massachusetts law has never been so harsh to would-be reformers, nor should it be.

In the Commonwealth, reformation claims are contractual, and, therefore, must be brought within six years of their accrual.  See G.L. c. 260, § 2; Stoneham Five Cents Sav. Bank v. Johnson, 295 Mass. 390, 395-96 (1936); CBK Brook House I, L.P. v. Berlin, 2004 WL 870122, at *20 (Mass. Land Ct. 2004); Meng v. Yan, 2000 WL 1511555, at *2 (Mass. Super. Ct. Sep. 14, 2000).

The question becomes when does that accrual clock start to run.  The answer is not necessarily upon recording.

Rather, the Supreme Judicial Court has long held such a claim does not accrue “until the mistake has been or ought to have been discovered.”  Johnson, 295 Mass. at 396 (citing cases).  Tolling the statute of limitations period until meaningful notice of a problem exists is premised on the idea that these are no-fault situations making judicial protection appropriate.  See Developments in the Law Statute of Limitations, 63 Harv. L. Rev. 1177, 1213-14 (1950).

Misunderstanding vs. Reality

The existing misunderstanding is to treat the ‘ought to have been discovered’ language as, essentially, the equivalent of the discovery rule applicable to damages claims.  They are not the same.

For example, the discovery rule can only apply if someone’s harm is inherently unknowable.  By contrast, a flawed instrument’s recording could render its mistake entirely knowable.  After all, recording is intended to be notice to the world under G.L. c. 183, § 4.

The SJC, however, has never pronounced that a mistake ‘ought to have been discovered’ simply because it is recorded.  More importantly, several Massachusetts cases have found reformation claims to be timely well past six years after a flawed instrument’s recording.  See, e.g., Buk Lhu v. Dignoti, 431 Mass. 292, 293-98 (2000) (affirming reformation of 1980s deeds in action filed in late 1990s); American Oil Co. v. Cherubini, 351 Mass. 581, 588 (1967) (rejecting argument that reformation of 1951 lease was time-barred in 1961 action); Franz v. Franz, 308 Mass. 262, 265-67 (1941) (ordering reformation of 1926 deed in action commenced no earlier than 1939); McGovern v. McGovern, 77 Mass. App. Ct. 688, 699-702 (2010) (reforming 1986 deed in action filed in 2005).

This misunderstanding is consequential, particularly in circumstances where the parties, and perhaps their successors, have proceeded following a real estate transaction as if everything were drawn up and executed perfectly.  Mistakes happen, including scrivener’s errors and other blunders that form the stuff of reformation.  Massachusetts has never required landowners to run into court for reformation if they are enjoying their property rights – even those that were imperfectly conveyed – without first encountering an interruption or objection from another party.

In these “nobody-realizes” situations, record notice has never meant that even an obvious mistake ‘ought to have been discovered’ by a would-be reformer.  As explained by the SJC, “the defendant will typically be hard put to offer persuasive resistance to the postponement of the running of the statute, when the effect is merely to enable the court to restore the transaction by means of a reformation to its true basis, on which the defendant and [the] plaintiff were both agreed.”  City of New Bedford v. Lloyd Inv. Assocs., Inc., 363 Mass. 112, 121 (1973).

Simply stated, the SJC has long required more meaningful notice of a problem than mere recording at the registry.  For example, in Cherubini, the lessee was permitted to reform a property description in a recorded 1951 lease even though suit was not filed until 1961.  The lessee only discovered the mistake after exercising its purchase option 10 years into its lease.  The SJC rejected the lessor’s statute of limitations defense because the “first occasion which the [lessee] would have had to check the sufficiency of the description of the land was its search of the title subsequent to the exercise of its option to purchase.”  Cherubini, 351 Mass. at 588.

Cherubini illustrates that record notice does not equate to accrual of a reformation claim based on mistake in these nobody-realizes situations.  Any suggestion that the clock always starts to run upon recording is fundamentally incorrect.

After all, “when a plaintiff knew or should have known of his cause of action is one of fact which in most instances will be decided by the trier of fact.”  Riley v. Presnell, 409 Mass. 239, 240 (1991)).  More importantly, finding a reformation claim time-barred in a nobody-realizes situation leads to an inherently inequitable result on a claim with its roots in equity.

A New York State of Mind?

It is conceivable more is expected of those holding property rights today.  An argument might be made that cases such as Johnson or Cherubini are outdated and parties should not get the benefit of additional time to correct mistakes that are apparent from the registry (and, nowadays, the online registry).

However, this approach would be devastating to the nobody-realizes reformers who likely acquired property rights from their predecessors well past a six-year window for a necessary reformation claim and have enjoyed them since then without interruption or objection. Such an interpretation would appear to require all landowners in the Commonwealth to re-run title searches on their property and would flood the courts with claims brought out of an abundance of caution, even on matters that may appear relatively trivial or where no controversy even exists.

New York’s Hart exception presents an interesting carveout to protect the nobody-realizes landowners if this harsher view were to take hold.  See Hart v. Blabey, 39 N.E.2d 230, 232 (N.Y. 1942).  The exception provides that “‘as to one who is in possession of the real property under an instrument of title, the statute never begins to run against his right to reform that instrument until he has notice of a claim adverse to his under the instrument, or until his possession is otherwise disturbed.’”  Wilshire Credit Corp. v. Ghostlaw, 300 A.D.2d 971, 973 (N.Y. App. Div. 2002) (quoting Hart, 39 N.E.2d at 232).

This “well recognized exception” has been widely applied in New York to protect nobody-realizes landowners seeking reformation well after the limitations clock would otherwise have run.  TEG N.Y. LLC v. Ardenwood Estates, Inc. 2004 WL 626802, at *5 (E.D. N.Y. Mar. 30, 2004) (invoking exception to find limitations period to reform 1993 instrument did not start to run until 2002) (internal quotations omitted).

More importantly, this carveout would be consistent with the public policy behind the longstanding (but misunderstood) meaningful-notice accrual for these claims in Massachusetts.  Its rational is consistent with the no-fault logic pronounced by the SJC in City of New Bedford.  See Schlotthauer v. Sanders, 153 A.D.2d 731, 732 (N.Y. App. Div. 1989) (“a Statute of Limitations is . . . designed to put an end to stale claims, and was never intended to compel resort to legal remedies by one who is in complete enjoyment of all he claims.”).

The carveout would also appropriately treat the ‘ought to have been discovered’ question as one of fact as opposed to treating nobody-realizes landowners as on notice simply because of a flawed instrument’s recording many years or even decades earlier. 

The Commonwealth has always protected landowners that are quietly enjoying property rights based on flawed instruments without any interruption or objection.  It should continue to do so.

Matthew S. Furman, a litigation attorney at Todd & Weld LLP in Boston, concentrates his practice on complex commercial litigation, including business, employment, and real estate disputes. He can be contacted at mfurman@toddweld.com.

Municipalities Build Climate Change Resiliency Using Local Wetland Regulations

By Nathaniel Stevens

The Real Estate bar is discovering that coastal as well as inland communities in Massachusetts increasingly are looking to their local wetland permitting

laws and regulations as one place to help build climate change resilience.  This is one more thing to keep in mind during project permitting.

191 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance (collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act, G.L. c. 131, § 40 (the “WPA”). 

Some of these communities already have provisions that address climate change.  Others are contemplating amending their existing bylaws and regulations to do so.  Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community.  To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA.  Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation.  It also might mean regulating a greater geographic area than the WPA, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland).  It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00).  These are but a few of the many ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review. 

For instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years.  Hingham has a similar requirement, but also applies it to projects proposed in the FEMA-defined velocity zone (“V-zone”).  Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence”, such as from the Intergovernmental Panel on Climate Change, be used.  Falmouth has one rate (“at least” 1 foot per 100 years) for work in A-zones and a higher rate (“at least” 2 feet per 100 years) for work in the V-zone.        

As sea levels rise, coastal wetland resource areas are predicted to shift landward.  Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain.  The lowest floor of a structure in a FEMA-mapped A-zone must be at least 1 foot above the base elevation, and in the V-zone, the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission.  Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater.  Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Inland communities are also using their wetland permitting programs to build climate change resiliency.  The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.” 

In Arlington, an applicant must address in writing:  1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts.  With the introduction of new terms, the Commission added definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience”, in part because climate change resiliency vocabulary is new to a lot of people.

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance.  Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them.  For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain.  “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible.  Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts. 

In conclusion, real estate developers, builders, managers, brokers and their legal counsel should realize that Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities.  They are instead utilizing their own land use control authorities like wetland protection regulations.  

Nate Stevens is a Senior Associate at McGregor & Legere, P.C. in Boston where his practice focuses on land use and environmental law and related litigation.  He is also the Chair of the Town of Arlington Conservation Commission.  He can be contacted by email at NStevens@mcgregorlaw.com.

My Summer Reading Included A Story of a Family and a Century in Their Summer Home on The Cape.

By Paul F. Alphen

“The definition of a proper Bostonian, it used to be said, was someone who lived on Beacon Hill and had an uncle in McLean” according to one the books I read on one of my summer

vacations: The Big House: A Century in the Life of an American Summer Home by George Howe Colt.

The book, as the title states, is the story of a big rambling wreck of a house on Wings Neck, in Bourne, owned and used by generations of relatives; starting with the author’s great grandfather who built the home when Cape Cod was mostly scrub pine. The author’s great grandfather generously shared the house with the ne’er-do-wells in the family. There was no shortage of Harvard educated hangers-on, none of whom appeared to own a hammer (or know how to use one). The author shares his family secrets (alcoholism and mental illnesses) and his own memories of spending summers in The Big House as the family prepares to sell it. As is often the case, subsequent generations did not have the will or the cash to maintain an expensive summer home. The on-line book reviews are blunt, as reviewers call the book dull, too long and uninteresting. One reviewer calls the whole Colt family “twits”.  Perhaps there was an overabundance of twits, whereas the extended family used the house all summer, every summer; but no one ever repaired the window sash ropes or broken burners on the stove, or apparently anything else in the Big House.

As other reviews have said, the book drags on with personal stories of the author’s first fishing trip, playing tennis against wealthy neighbors that owned real “tennis whites”, and weekend sailboat races in Herreshoff 12s  (a boat, the author claims, was first built at the urging of fellow Wing’s Neck neighbors). But I stuck with the book for two reasons: First, reading about the generations of Bostonians that returned to the Big House each summer was like watching a slow-motion train wreck, and it was hard to look away. Secondly, the book provides some historical insight into the origins of Cape Cod as a vacation destination. The author says “In 1849, the notion of voluntarily traveling to Cape Cod to see the ocean – without planning to fish, build a ship, go whaling, or scavenge a wreck – would not have occurred to anyone, except, perhaps [Henry David Thoreau]”. In the mid 1800’s, spending time at the sea shore was deemed to be medically therapeutic by wealthy city dwellers “longing to escape the oppressive heat, fetid air, and cholera- and yellow-fever-ridden congestion of the metropolis in summer.” 

In 1872, the Old Colony Railroad completed a rail extension to Woods Hole, making it easier for Bostonians to get to the Cape.  According to a Falmouth newspaper in 1873 “Negotiations for the sale of real estate near the shore are going rapidly and parties are realizing good prices”. Soon thereafter, summer colonies were created along the coastline. “A Boston family put up seven large summer homes on an old cabbage patch and called it Wild Harbor. A group of Brockton speculators carved a nameless ox pasture into five hundred small lots and called it New Silver Beach.” Numerous names of the original resort communities remain, even if the original resorts are long gone.

As someone who has studied the real estate landscape on the Cape for 30 years, the book added a degree of perspective into the original development of the Cape as a resort community, and into the people who were the original developers. They were not all twits, and they laid the groundwork for the Cape as it is today:  hundreds of neighborhoods with their own histories and personalities; and people with their own love affairs with the peculiarities of each of those neighborhoods.  

A former REBA president, Paul Alphen currently serves on the association’s executive committee and co-chairs the long-range planning committee.  He is also a member of the Executive Committee of the Abstract Club. He is a partner in the Westford firm of Alphen & Santos, P.C. and concentrates in residential and commercial real estate development, land use regulation, administrative law, real estate transactional practice and title examination .As entertaining as he finds the practice of law, Paul enjoys numerous hobbies, including messing around with his power boats and fulfilling his bucket list of visiting every Major League ballpark.  Paul can be contacted at palphen@alphensantos.com.

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