Monday, June 1, 2020

My Cousin Vinnie is not Smarter Than a Neurosurgeon


My Cousin Vinnie, the suburban real estate lawyer, joined the family on one of those video conference calls where everyone shows up in a “Hollywood Squares” box, but only one person can speak at a time. It had been quite a while since the family had spent much time with one another, and it was good to catch up.

Vinnie, it turns out, had experienced some serious back problems, which had prevented him from even working from home for over a week.

One of the down sides of Hollywood Squares meetings is that it is hard to cut someone off. Vinnie was very descriptive when explaining the pain and the medical processes. Vinnie said: “I did not get to see my orthopedic surgeon. He has not met patients in person for months. I spoke with him via a ‘Telehealth’ call. I thought it was odd not getting to meet with him, but apparently medical professionals recognize the serious risks of  Covid19  and they are doing everything they can to protect their staffs, their patients and themselves from infection.”

“When I went to get an MRI, I was the only patient in the facility at that time. I was referred to a neurosurgeon, who also did not want to meet me in person. I had a video call with the neurosurgeon, who reviewed the MRI with me and prescribed physical therapy. Even my follow- up visit in late June will be via ‘Telehealth’”. 

“Then it occurred to me. Why would I contemplate opening my office back up to the public?  If two of the most respected surgeons in Boston are not meeting with patients who are experiencing debilitating pain, why should we risk the health of our staff people and our respective families through meetings with strangers to discuss boundary line disputes?  I’m certainly not smarter than a neurosurgeon!  I immediately sent a memo to our staff people that the office door would remain locked, and we will continue to work from home with no more than two employees in the office at a time to go through the mail, and pay the bills.”

I had to agree with Vinnie on three points: First, none of us are smarter than a neurosurgeon. Secondly, if medical professionals are not meeting with patients, we also need to appreciate the health risks and continue to confer with clients remotely. Thirdly, with most everyone staying at home, boundary line disputes are becoming more commonplace.

Stay safe.

A former president of REBA, Paul currently serves on the association’s executive committee and co-chairs the long-range planning committee.  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


Friday, May 29, 2020

Construction Delays and COVID-19: Now is the Time to Review your Contract


The impact of the COVID-19 pandemic on construction projects largely depends on the terms of the contract in play. Now is the time to pull out your contract and consider how the contract
allocates risk for delays between the parties. While standard contract forms are widely used in the industry, standard terms and conditions are frequently modified as a result of negotiations between the parties. Provisions that address project changes, force majeure, delays, and suspension of work should be carefully reviewed by you and your counsel to determine how your rights or responsibilities are impacted by COVID-19. Given the likely ongoing delays faced by the construction industry, it is important that parties understand the terms of their contracts to help curtail the economic impact of COVID-19.

Given the likely ongoing delays faced by the construction industry, it is important that parties understand the terms of their contracts to help curtail the economic impact of COVID-19.

An important provision to review, if one exists, is the force majeure provision.1 A force majeure event, commonly referred to as an “Act of God,” is one that is outside the control of a party and prevents the party from performing its contractual obligations. While many contracts include force majeure provisions, the specific language and the applicability to particular events or circumstances, such as a pandemic, can vary. Many force majeure provisions detail the timing and content of the required notice to invoke such provision and allow for varying degrees of relief. Some contracts that do not have a specific force majeure clause may contain an excusable delay clause that may limit relief for such delays to an extension of time.

There may be circumstances where the delays are intentional, and thus not excusable. An inexcusable delay occurs when a party is at fault for the delay due to a party’s own fault or neglect. For example, even though a contractor may be legally able to resume construction activities, he may refuse to resume operations for other reasons, such as health concerns related to COVID-19. Many construction contracts contain provisions that allow for damages in the event of such non-excusable delays. Conversely, some contracts may have a “no damages for delay” clause that shields a party from liability caused by delays. Liability for delays will depend on the specifics of the clause and the other terms in the parties’ contract.

Most contract provisions regarding delays provide for specific notice requirements. When a contractor puts an owner on notice of potential delays or other impacts, it is important to carefully assess what it is that the contractor is asserting and requesting. Some contractors are putting owners on notice of potential delays or other impacts without any evidence purely to reserve their rights under the contract. Others are requesting significant relief under the contract because they have already experienced unexpected costs and delays. Therefore, the owner must determine what the contractor or supplier is asserting before responding to any notice.

It is important that parties understand the terms of their contracts to help curtail the economic impact of COVID-19. Whether a court will excuse a party from meeting its obligations under a contract where performance becomes much more difficult or expensive as a result of the COVID-19 pandemic remains to be seen. Based upon existing law, judges and arbitrators will still most likely look to the terms of the contract for guidance in resolving COVID-19 related claims.

Originally posted May 27, 2020 on tlawmtm.com.


Friday, May 15, 2020

NOW is a Good Time …. IOLTA Records Compliance



The “sequestration” imposed by COVID-19 provides an opportunity for everyone to do some necessary housekeeping in order to address Client Trust Fund/IOLTA records and
reconciliation procedures.  I say this, not just as another “reminder” of our obligation as lawyers to do so or that the Court’s Rules require us to do so, but that there are, presently, and there are going to be severe consequences for failing to do so.  And, those consequences are on the near horizon.

We have represented hundreds of lawyers and law firms with IOLTA (and lots of other) issues.  IOLTA non-compliance is a guaranteed way to get the attention of your bank and then Bar Counsel.  Once that happens, the risk to continuing to practice law is imminent.

So, NOW is a good time to tackle all those required and needed tasks that have been lurking under the bed and desks, related to IOLTA or other trust accounts. 

First, the Supreme Judicial Court IOLTA rule has rigid requirements.  They should be attended to and followed to the letter.

Second, a thorough and top to bottom review of all IOLTA and trust accounts, records and handling is a MUST.  Issues we regularly see include

1.      Non-existent reconciliations.

2.      Non-existent check registers (seriously!).

3.      Non-existent individual client ledgers for each client for whom you held monies.

4.      Non-existent separate office ledger (which holds a few hundred dollars to pay for bank charges, NSF charges and other unexpected charge-backs).

5.      Never going through the account to determine what has happened to long-ago (let alone recently) issued checks that have never cleared.

6.      Monies sitting in the IOLTA account and you have no real idea whose it is.

7.      Commingling earned fees and client (or third party) funds for too long.

8.      Non-existent operating accounts and failure to properly use operating accounts for earned fees.

9.      Thinking (as lots of transactional lawyers do – Yes, real estate lawyers!!!) that the “In and Out” disbursement sheet (or CD) serves as an adequate accounting AND client ledger.  It doesn’t.

10.  Addressing “false” as well as “true” negative check register, client ledger and account balances.  (For example, if you enter checks into a computer program on the day of a “refi” closing, but you have to wait for the redemption period to run before deposits clear, you will always show a “false” negative in your check register and individual client ledger.  Changing when checks are issued can resolve that problem.)

We have worked through all of these issues with lawyer-clients for years.  If Bar Counsel gets a hold of a returned check or a complaint in which any issue about record-keeping has been or might be raised, they have been signaling for months that they intend to seek administrative suspension for non-compliance or not producing records when asked.  If there are issues with the accounts and records, Bar Counsel will act. 

NOW is the time to start digging in and clean house.  Please don’t put it off for the next global intrusion!  

Sarah. Holden is a partner in the litigation department of the newton firm of Brecher, Wyner, Simons, Fox & Bolan, P.C. She represents lawyers and law firms in Board of Bar Overseers and malpractice matters, partnership breakups, departures and law firm litigation.  Sarah can be contacted at sholdne@legalpro.com.  A partner in the firm, Jim Bolan in addition to representing lawyers and law firms in Board of Bar Overseers and malpractice matters, he provides counsel to local, national and transnational lawyers and law firms on professional responsibility, practice and ethics matters, malpractice defense and prevention, and risk management and law firm audits. Jim can be contacted at jbolan@legalpro.com

Wednesday, May 13, 2020

Guidance for Project Applicants and Conservation Commissions Conducting Meetings and Hearings, and Deciding Wetland Matters, During COVID-19 Crisis

Luke Legere, Esq.                                                                                                                                                  
The Massachusetts Legislature has enacted a legal framework for municipal boards, including conservation commissions, to receive
and process applications, conduct meetings and hearings, make and issue decisions, take enforcement actions, and otherwise function during the state of emergency declared by Governor Baker on March 10th.[1] 

This is important to everyone with business of any nature before local, regional and state agencies, not just projects and permits, but also contracts, transactions and other public and private matters.
The legislation is Chapter 53 of the Acts of 2020, known as “An Act to Address Challenges Faced by Municipalities and State Authorities Resulting from Covid-19” (the “Act”).  It is intended to function in harmony with Governor Baker’s March 12, 2020 “Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20”.

Section 17 of the Act tolls (legalese for pauses) many of the timelines which would typically govern a commission’s hearing and decision process.  It generally provides that the “clock” for calculating such timelines stopped on March 10, and will resume 45 days after Governor Baker declares the state of emergency to be over. So, the clock is stopped, to resume later.

Let’s see how this affects, for instance, conservation commission business.  The state Wetlands Protection Act (“WPA”) requires that a hearing be opened within 21 days of receipt of a completed application, known as the Notice of Intent.

The Act relieves commissions of this obligation by providing that it “is suspended as of March 10, 2020” and “shall resume 45 days after the termination of the state of emergency, or by a date otherwise prescribed by law, whichever is later”. Section 17(b)(2). 

As an illustration, if a Notice of Intent were filed on March 15, the 21-day deadline in the WPA for the commission to open the hearing would not begin until 45 days after the state of emergency ends (that is, the hearing must open within 66 days after the state of emergency is terminated).

The Act provides similar but not identical relief to commissions for hearings that had already begun before or on March 10.  Section 17(b)(vii) specifically says that:

a hearing on a pending application for a permit opened by a permit granting authority prior to March 10, 2020, which has either not been concluded as of March 10, 2020 or has been continued by the permit granting authority as of March 10, 2020, shall be automatically tolled and continued to the first hearing date of the permit granting authority following the termination of the state of emergency, or to a date otherwise prescribed by law, whichever is later; provided, however, that the date is no later than 45 days from of [sic] the termination of the state of emergency or the date otherwise prescribed by law, whichever is later.

In other words, if a hearing were opened and continued prior to or on March 10, it is paused by the new Act until the commission’s first meeting date after the state of emergency ends, so long as that date is not more than 45 days after the state of emergency is over.  This automatic continuation requires no action by the commission. 

By giving the commission longer to open a new hearing than to decide under a hearing already started, the Act essentially gives priority to projects which were already in the pipeline when the Governor issued his Emergency Order on March 10, over those filed after the Emergency Order went into effect.

While these automatic extensions of time and continuances of hearings are very important, it is equally important to note that the Act provides a framework for those commissions wishing to conduct business during the state of emergency.  It explicitly allows commissions to hold remote/virtual meetings and hearings, and issue decisions, with some leniency on compliance with the Open Meeting Law.[2] 

We encourage local boards to use this legal authority continue with as much pending and new business as they are equipped and comfortable to handle under the circumstances. It is important to keep things moving along where possible and practical for all sorts of reasons. There is a new reason: to avoid a mammoth amount of work when the present emergency is lifted and suddenly all the meetings and hearings must be resumed and concluded, and all the backed-up decisions made and issued, within a relatively short time.

Specifically, Section 17(d) provides that a commission “during the state of emergency, may conduct meetings and public hearings remotely, consistent with the governor’s order entitled ‘Order Suspending Certain Provisions of the Open Meeting Law, G.L. c. 30A, § 20’.”  All other provisions of the Open Meeting Law and its regulations remain in effect.

Section 17(c) of the Act also allows commissions to amend or revoke permits previously issued “subject to applicable notice and hearing requirements”, with limitations to protect applicants who have not begun, or have suspended, work due to the state of emergency.[3]
If a commission does decide to conduct some scheduling during the state of emergency, it may do so without needing to hear and decided all matters pending before it as of March 10, 2020.  Section 17(b)(v) of the Act provides that:

notwithstanding the time periods by which a permit is to be either heard or acted upon, a permit granting authority may, by a declaration of its chair, which the chair is authorized to make irrespective of whether a quorum is present to vote on such matter, schedule or reschedule on 1 or more occasions the hearing or decision deadlines on a permit application provided no such date or deadline is rescheduled for more than 45 days after the termination of the state of emergency or after a date otherwise prescribed by law, whichever is later. The chair shall provide written notice of any applicable rescheduled dates or deadlines to the applicant at the applicant’s address, and to the general public by posting electronically on the website of the city or town clerk or the website of the county or regional entity.

In other words, a commission’s Chair is empowered to unilaterally (that is, with or without a quorum present) continue, schedule, or reschedule a hearing or deadline for decision on particular matters. 

Note the process to use this authority: the new date or deadline may not be more than 45 days after the state of emergency ends; the Chair must give written notice to the applicant by mail; and the Chair must notify the public by posting notice electronically on the city clerk or town clerk’s website (or, for regional or county commissions, on the regional or county website, where applicable).

Finally, the Act specifically allows a commission to issue a decision on a pending application.  Section 17(e) states that “[n]othing in this section shall preclude or prohibit a permit granting authority from issuing decisions on permit applications for which duly held public hearings or meetings have been held.”

In summary, the Act allows a conservation commission to effectively cease its deliberations and decision making without violating the laws or risking appeals for inaction, first by suspending the obligation to open hearings for applications until 45 days after the termination of the state of emergency. 

For hearings that were opened and continued prior to March 10, the Act automatically tolls resumption of the hearing until the commission’s first meeting date after the state of emergency ends (so long as that date is not more than 45 days after the state of emergency is over) even with no action by the conservation commission. 

The Act also allows commissions to hold remote/virtual meetings and hearings, and issue decisions, while empowering the Chair to unilaterally continue, schedule or reschedule a hearing or deadline for decision on particular matters not more than 45 days after the state of emergency ends (so long as the Chair mails written notice to the applicant, and posts notice electronically).

Stay tuned for more legal developments on this front as there is more municipal and state agency relief legislation, gubernatorial executive orders, court orders, and agency regulations and guidance.

Luke Legere, Esq, is a member of REBA, active with its Environmental Law Section, and a partner at McGregor & Legere, PC, in Boston, where he handles environmental, land use, energy, real estate, and related permitting, transactions, enforcement, appeals, and litigation for industrial, commercial, governmental, non-profit, and individual clients.  Luke can be contacted at llegere@mcgregorlaw.com. 




[1] This article addresses only the conduct of meetings and hearings under state law, although the Act addresses additional matters of importance to commissions.

[2] The Act also suspends the requirement for recording a commission’s decision at the Registry of Deeds or Land Court while they are closed or prohibit in-person access by the public during the state of emergency. Section 17(b)(vi).

[3] Section 17(c) also provides that “a permit holder shall be entitled to a further extension of reasonable length to exercise or otherwise commence work” under permit “at the discretion of the [commission] for good cause shown” and empowers the commission’s Chair to “grant such further extension irrespective of whether a quorum is present to vote on the matter.”

Thursday, May 7, 2020

Supreme Court Rules A Clean Water Act Permit Can Be Required for Groundwater Discharges


On April 20th, the United States Supreme Court issued its decision
in County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. __ (April 23, 2020), ruling that the federal Clean Water Act (CWA) may require a permit when a point source discharges pollutants to navigable waters through groundwater. This decision has been eagerly awaited by industry, government, and the bar.

This is a major new piece of federal water pollution jurisprudence. Anyone representing industry, government, commercial landowners, or large property managers (who often have treatment plants or large septic systems discharging to the ground, storm water discharges that infiltrate into the ground, or former landfills or illegal dumps still sending plumes into the ground) should know about this.

Justice Breyer authored the majority opinion for the 6-3 decision, ruling that a permit issued under the CWA is required if the addition of the pollutants through groundwater is “the functional equivalent” of a direct discharge into navigable waters. This is a new concept in CWA jurisprudence.

The CWA prohibits the addition of pollutants from any “point source” to “navigable waters,” without an appropriate permit from the Environmental Protection Agency (EPA). §§ 301(a), 502(12), 86 Stat. 844, 886. Pollutants described in the Act range from the obvious—solid waste, sewage, chemical wastes—to the less intuitive—cellar dirt, and agricultural waste.

Any pollutant discharged through a point source (a discernable, confined, and discrete conveyance, such as a pipe), into waters of the United States, can be subject to a permit under the Clean Water Act. This ruling expands the understanding of that jurisdiction. This has been the National Pollutant Discharge Elimination Permit Program (NPDES) program since 1972.

This case stemmed from a challenge to the County of Maui’s wastewater reclamation facility, which collects, partially treats, and then injects about 4 million gallons of wastewater into the ground per day. The wastewater mixes with the groundwater, and then travels about a half-mile before ultimately discharging into the Pacific Ocean.

The Hawaii Wildlife Fund and other environmentalists brought a Citizen Suit under the CWA, alleging that the County was illegally discharging a pollutant into navigable waters without first obtaining an NPDES Permit.

The most compelling evidence in support of the Hawaii Wildlife Fund’s argument came as a result of the wastewater’s path being tracked using a “Tracer Dye Study,” where tracer dye was injected into the wells, and then submarine springs on the coast were monitored to see if any dye appeared there. It did.

Both the District Court and the Ninth Circuit agreed with the respondents, stating that the CWA requires a NPDES permit when “pollutants are fairly traceable from the point source to navigable water,” which they concluded these pollutants were. 24 F. Supp. 3d 980, 998; 886 F. 3d 737, 749.

The Supreme Court narrowed the lower courts’ rulings, citing that statutory context of the CWA as limiting the reach of the phrase “from any point source” to a narrower range of circumstances than “fairly traceable” suggests. Instead, the Court used the phrase “functional equivalent of a direct discharge” to pinpoint when a discharge to groundwater needs an NPDES Permit.

The Court emphasized that to make the determination of whether discharge to groundwater is the “functional equivalent” of a direct discharge into navigable waters, “time and distance will be the most important factors.” Other factors include the nature of the material through which the pollutants travel, and the extent to which the pollutant is diluted when it reaches navigable waters.

The Court explained that the Ninth Circuit’s “fairly traceable” language could allow the EPA to assert permitting authority over the release of pollutants into groundwater that reach navigable waters years and years after their release. This would open a panoply of long-term liability, timing, and tracing issues, and could functionally contradict the EPA’s new Navigable Water’s Protection Rule: Definition of “Waters of the United States,” which goes into effect on June 22, 2020. 85 Fed. Register 77, at 22250.

The CWA defines “navigable waters” as “waters of the United States,” so any change in scope of the definition in turn changes the scope of the CWA itself. The EPA’s new rule explicitly excludes “groundwater” from the definition of “Waters of the United States.” While the Supreme Court’s holding in County of Maui, Hawaii v. Hawaii Wildlife Fund et al. doesn’t make the discharge of pollutants into groundwater a per se violation of the CWA, it does require those who pollute groundwater to obtain a NPDES Permit, if that pollution ultimately reaches navigable waters in a clear and attributable way. 

The County of Maui and the Solicitor General argued that the CWA does not apply if the pollutant, discharged from a point source, has to travel through any amount of groundwater before reaching navigable waters. The Court rejected this interpretation as too narrow, saying “it would risk serious interference with EPA’s ability to regulate ordinary point source discharges,” and hypothesizing that to avoid jurisdiction, one could simply ensure all discharging points stop short of navigable waters.

The Court concluded that it did “not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”

The Court did not rule, however, on whether the specific facts of the case resulted in the “functional equivalent” of a discharge to navigable waters—that matter was remanded for the lower federal court to decide. This means that while the Court concluded that a discharge of pollutants to groundwater may invoke CWA jurisdiction and require a permit, there is currently a lack of clarity on what a “functional equivalent” means as applied, in reality. 

The holding in County of Maui, Hawaii v. Hawaii Wildlife Fund et al. is a wakeup call to groundwater dischargers nationwide. While the discharge of pollutants into groundwater alone does not necessarily require an NPEDES Permit under the Clean Water Act, the decisional law now recognizes that it may. This has real, practical implications.

Those discharging pollutants into groundwater must now account for the reality that pollutants in groundwater can and do easily traverse sight-unseen into navigable waters, thus granting regulatory  jurisdiction over the discharge to the EPA under the CWA. Due to the subjective term “functional equivalent” in the Court’s decision, the applicability of this new case is not black and white.

Regulated entities should keep an eye out for the remand decision in this Maui case applying the new standard to the facts. Meanwhile, they should realistically assess the need for obtaining an NPDES Permit for what they discharge—especially if there is known groundwater contamination flowing toward a body of water.

The Maui case affects who needs to obtain federal EPA water pollution permits for discharges into groundwater (which is not a federal water) which already, soon or eventually reach a surface water (which may be a federal water).


A member of the Association’s Environmental Law Section, Olympia Bowker is an associate of McGregor & Associates, PC, practicing an entire range of environmental, land use, and related real estate law for a large variety of private and public clients in permitting, transactions, projects and disputes before local, state, regional and federal agencies and the courts. She can be contacted at  OBowker@McGregorLaw.com.

Tuesday, April 28, 2020

Boundaries in Massachusetts Property, Land Use, and Environmental Law, Where They Are, and How they Change




This is a fresh look at some traditional and modern Massachusetts doctrines and laws about the various kinds of boundaries which real estate clients and their counsel deal with in titles, transactions,
permitting, and litigation, but sliced differently on how they are determined, how they are subject to change, and how not to be surprised when they morph or move.