Thursday, May 25, 2017

The Housing Watch…The Most Potentially Potent Footnote in Affordable Housing


By Robert M. Ruzzo
By all accounts, the so-called “GLAM Test” under Massachusetts General Laws Chapter 40B (“Chapter 40B,” the “Affordable Housing” Law, or the “Comprehensive Permit Law”), one of the
hottest topics in affordable housing over the past few years, is going to continue to attract attention in the coming months.  As affordable housing aficionados know, the “General Land Area Minimum” (hence, “GLAM”) test is one of three safe harbors provided for under the Affordable Housing Law.  Under Chapter 40B, this safe harbor exists when “low or moderate income housing exists… on sites comprising 1.5% or more of the total land area zoned for residential, commercial or industrial use.”
For years, this safe harbor was relatively unknown, particularly when compared to the widely recognized “10% test” under the statute.  Two years ago, even the Housing Appeals Committee (“HAC”) had to concede in Newton Zoning Board of Appeals v. Dinosaur Row LLC that:  “the General Land Area Minimum is a complex measure, which has not been addressed extensively during the 45 year history of the Comprehensive Permit Law.”  The third Chapter 40B safe harbor, the Annual Land Area Minimum, remains a veritable affordable housing “Sasquatch,” whose existence is alleged, but as yet remains unverified.
After an extensive internal review, the Department of Housing and Community Development (“DHCD”) published “Draft Guidelines for Calculating General Land Area Minimum” (the “GLAM Guidelines”) on its website on Friday, May 5, 2017.  The GLAM Guidelines are intended to provide straightforward assistance to municipalities.  In addition to the eight pages of guidance, which includes a new definition of “Group Home,” the GLAM Guidelines were accompanied by two appendices.  Appendix A consists of twelve pages of technical instructions, while Appendix B walks through an “Example Calculation,” complete with illustrations.  DHCD will be accepting written comments on the GLAM Guidelines (including the appendices) through July 5, 2017.
The publication of these eagerly anticipated GLAM Guidelines provides an appropriate opportunity to step back and reflect upon some of the larger issues surrounding the Affordable Housing law, and the statutory safe harbors in particular.
As noted recently in a cogent presentation by the Massachusetts Housing Partnership (“MHP”) at a meeting of the CHAPA Housing Production Committee, Chapter 40B has been the vehicle for the production of more than 70,000 housing units since 1969.  The future, however, is not as bright in MHP’s view, because the potential for “new 40B development is diminishing relative to projected housing need.”
Why?  According to MHP the “gap” (between projected housing need and the remaining Chapter 40B housing development potential) “is greatest in Metro Boston where 26 communities have permitted enough subsidizing housing” to cross the 10% safe harbor threshold.  According to MHP, the remaining development potential under Chapter 40B in the Metropolitan Area Planning Commission region is approximately 21,000 units.
Of course, under the 2007 Boothroyd v. Zoning Board of Appeals of Amherst decision, a municipality may nonetheless elect to grant a Comprehensive Permit even if it has satisfied the 10% test.  But that is a pretty thin reed to grasp in our current housing affordability wind tunnel.
To make your affordable housing day even brighter, a number of the ten communities identified by MHP as having the “most remaining Chapter 40B Development Potential” in the Metro Boston area are among the very communities that have recently asserted the GLAM safe harbor (Arlington, Newton, and Waltham).  For these municipalities and others similarly situated, however, an underappreciated danger lurks behind the assertion of the GLAM safe harbor based upon current Subsidized Housing Inventory (“SHI”) counting methodology. Such arguments may run headlong into the most potentially potent footnote in all of affordable housing.  
First, some full disclosure.  Your correspondent has previously suggested that the treatment of rental developments under the GLAM test may no longer make sense in era of smart growth and concentrated development.  Remember that under current SHI practice, rental housing and ownership units are treated very differently.  Assuming all other requirements to gain listing on the SHI have been met, all units in a rental housing development are counted on the SHI, while homeownership developments are counted only on a proportionate basis. The HAC politely questioned this approach as early as 2003, in footnote 6 of Arbor Hill Holdings Limited Partnership v. Weymouth Board of Appeals, stating “it would seem anomalous to count all of a very large [rental] lot containing only a very small number of affordable units.”  
But footnote 6 in Arbor Hill pales in comparison to the suggestion of the Supreme Judicial Court in footnote 12 of Zoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC, 464 Mass. 166, 178 (2013).  There, the SJC expressly left open the issue of how counting should be performed for SHI purposes, declaring:  “we need not address whether the inclusion of non-subsidized housing units in the SHI is permissible under the act…(emphasis added).”  Thus, the issue of SHI counting methodology under the 10% test remains an open question, as far as the SJC is concerned.
Certainly any counting methodology employed by DHCD over many years would be entitled to a great deal of deference.  Nonetheless, a judicial rebuke to such a long-standing regulatory practice would not be without recent precedent. As development lawyers learned back in 2007 in the Chapter 91 context, the SJC is not hesitant to let it be known that “the principle of according weight to an agency’s discretion” is “one of deference, not abdication” stating further that “this court will not hesitate to overrule agency interpretations of statutes or rules when those interpretations are arbitrary or unreasonable.”  Moot v. Department of Environmental Protection, 448 Mass. 340, 346 (2007).
By aggressively asserting the GLAM safe harbor, a municipality may raise the entire issue of SHI counting methodology before the state’s highest court for the first time.  So as we enter upon the “Summer of GLAM” remember, it may be time to re-examine the most important footnote in affordable housing as well.
“The Housing Watch” is a regular column from Bob Ruzzo,  senior counsel in the Boston office of Holland & Knight LLP.  He possesses a wealth of public, quasi-public and private sector experience in affordable housing, transportation, real estate, transit-oriented development, public private partnerships, land use planning and environmental impact analysis. Bob is also a former general counsel of both the Massachusetts Turnpike Authority and the Massachusetts Housing Finance Agency; he also served as chief real estate officer for the turnpike and as deputy director of MassHousing.”  Bob can be contacted by email at robert.ruzzo@hklaw.com.

Monday, May 22, 2017

Standing for Environmental Appeals: One Size Does Not Fit All

Luke H. Leger

Real estate lawyers pay close attention to establishing standing in agency hearings and court. Standing is the first hurdle and failing is fatal. This is especially so in environmental cases.
 
It is tempting to think there must be one universal rule, convenient to memorize, on who has standing
to appeal environmental decisions within state agencies and then to court. In fact, there are similarities but subtle differences in the rules among Massachusetts agencies, even within MassDEP for its various kinds of permits and enforcement.
 
Consider the general statutory framework for administrative appeals of state agency decisions and then judicial review of final agency actions. The Administrative Procedures Act, G.L. c. 30A, §10 governs adjudicatory appeals generally and also allows persons substantially and specifically affected by appeals to intervene in them. Section 10A, the “Ten Person Right to Intervene,” allows a group of ten residents to intervene in adjudicatory proceedings where damage to the environment is or may be an issue. Section 14 authorizes a person aggrieved by a final agency decision to appeal to court.
 
Often confused with the Ten Person Right to Intervene, G.L. c. 214, § 7A is the so-called “Ten Citizen Suit Statute.” It gives any ten people domiciled in the Commonwealth legal standing to pursue a civil action in Superior Court to prevent environmental damage that is occurring or imminent. Note the different wording in these two laws, and the legal import (e.g. residents versus domiciliaries). This amounts to statutory standing to enforce state and local environmental laws and regulations on the books, not a generalized right to a clean environment.
 
Now we examine the state Wetlands Protections Act (WPA), Clean Waters Act (CWA), and G.L. c. 91 Waterways and Tidelands laws. All three are administered by MassDEP to protect wetlands, water resources and related rights. MassDEP regulations governing appeals under these programs differ in important ways with respect to standing.
 
A quick reading of these rules gives a false sense of uniformity. The universe of persons who may obtain an adjudicatory hearing for a WPA Order of Conditions or action, CWA Water Quality Certification (WQC), or Chapter 91 License generally includes some or all of the following people: applicants, property owners, persons aggrieved, ten resident groups, and certain governmental or private organizations. The regulations diverge in their specifics.
 
For example: who may request an adjudicatory hearing as of right. The WPA rules give applicants, property owners, and local conservation commissions the right to this trial-type hearing. The CWA rules, in contrast, list applicants and property owners as having this right. In greater contrast, the Chapter 91 rules say only an applicant can appeal, either one which has a demonstrated property right in the affected lands, or which is a public agency.
 
All three regulatory schemes grant standing to “aggrieved persons.” They must demonstrate that, due to an act or failure to act by MassDEP, they may suffer an injury in fact, which is different in type or magnitude from that suffered by the general public, and which is within the scope of the interests identified in the governing statute and regulations. This is classic standing.
 
The WPA rules add an extra layer, whereby an aggrieved person must have participated in writing in the permit proceedings. The CWA rules, with another twist, confer standing on aggrieved persons who have submitted written comments during the public comment period (unless the appeal is based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). The Chapter 91 rules give standing to aggrieved persons so long as they participated in writing during the public comment period and can demonstrate that, as a result of issuance of License, they may suffer an injury in fact which is within the scope of the interests protected by Chapter 91 and G.L. c. 21A.

There are some liberal standing rights for citizen groups, but they read differently. Under the WPA, ten residents of the municipality where the project is proposed may request an adjudicatory hearing, so long as at least one member of the group has participated in writing during the prior proceedings. The CWA provides standing for “ten persons of the Commonwealth pursuant to G.L. c. 30A” so long as at least one member of the group has submitted written comments during the public comment period. Chapter 91 confers standing upon “ten residents of the Commonwealth, pursuant to G.L. c. 30A, § 10A” provided five members reside in the municipality where the licensed activity is located, all members of the group have submitted comments during the public comment period, and each member of the group files an affidavit stating her intent to be part of the group and represented by its authorized representative.

Standing also is available to government officials, agencies or environmental organizations. Under the CWA, governmental or private environmental organizations which have submitted written comments during the public comment period have standing (again, the prior written participation requirement is waived for appeals based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). Chapter 91 licenses may be challenged by a municipal official in the affected city or town who has previously submitted written comments during the public comment period and, in certain instances, the state Office of Coastal Zone Management and Department of Conservation and Recreation.

These details matter. MassDEP’s Presiding Officers routinely undertake a close analysis of standing. Expect this. One recent MassDEP Final Decision concluded that a ten-person group must allege environmental harm to enjoy standing to appeal a Chapter 91 License, although many interests protected by Chapter 91 are not per se “environmental” (e.g., navigation, water access, and livelihood interests). In The Matter of Webster Ventures, LLC, Docket No. 2015-014, Final Decision (June 15, 2016).

In another recent Final Decision, MassDEP found that a petitioner lacked standing to challenge a WQC as a “person aggrieved,” due to his failure to submit written comments, yet granted him standing as being a property owner. In the Matter of Tennessee Gas Pipeline Co., LLC, Docket No. 2016-20, Final Decision (March 27, 2017).

Ultimately, appealing a final agency action to court requires plaintiffs to meet the traditional standing test of injury-in-fact to an interest cognizable by law or rule. This means proving claims of particularized harm or prejudice to substantial individual rights.

Do not assume that a party before an agency under state environmental laws has automatic standing to challenge the resulting agency decision in court. This was driven home by the SJC in Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 559 (2012).

Plaintiffs with standing as a ten-person group for an adjudicatory hearing at MassDEP, therefore, had better be ready to individually establish “old-fashioned” standing in court.

Careful practitioners never take standing for granted. Read the statute and agency regulations for the pleading and proof requirements, consult the court cases and agency decisions, and leave time to satisfy yourself that the petitioner(s) have (or lack) the requisite standing. And remember that, while alleging personalized harm may be unnecessary to establish statutory or rule-based standing before the agency below, it is always necessary to get your day in court.

Luke Legere is a partner with McGregor & Legere, P.C. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting. A regular contributor to REBA News, Luke can be contacted by email at llegere@mcgregorlaw.com

Friday, May 19, 2017

CFPB: Encryption and Data Security Requirements (Audio Only)


From The 2015 REBA Spring Conference



Rick Diamond; Christopher J. Gulotta; Richard M. Reass

The CFPB, the OCC, the FDIC and the Federal Reserve requires lenders to be compliant with federal consumer protection and privacy laws. Lenders will look to conveyancing attorneys to validate their compliance with these regulations. Our panel will address how law firms can start the compliance process; implement data security controls; develop written policies; and conduct onsite security assessments. These experts will describe how to take action now to protect conveyancing practices under the new guidelines from the sophisticated scams.

Tuesday, May 16, 2017

My Cousin Vinnie Explains Effective Communication


By Paul F. Alphen
My very patient and understanding wife gets flummoxed by my insatiable appetite for attending
sporting events, and she has attempted to impose injunctions on arbitrary and capricious ticket purchases. Nevertheless, when a certain Saturday morning in December rolls around each year I can be found behind the keyboard waiting to find reasonably priced tickets for games in America’s Most Expensive Ballpark. Consequently, my Cousin Vinnie, the suburban real estate attorney, and I were able to enjoy a nice spring evening in the ballpark watching the fourth highest payroll in the MLB.

Vinnie was intrigued by the lobster offerings now available inside the park. Me, not so much. I had tried the fried clams twice, but I have since reverted to standard issue hotdogs. Vinnie was stuffing lobster poutine (whatever that is) in his mouth while monitoring the beer inventory accumulating under his seat. “Paulie” Vinnie announced, “I finally figured out what makes our profession unnecessarily difficult”. I couldn’t wait to hear the revelation. “People don’t communicate. It became apparent to me today when I had a nice conversation with Town Counsel for Podunk. Her client had asked her to look into the historical conditions of approval related to my client’s property, and she called me questioning if my client could proceed with his planned development. I discussed the issues with her, and she listened. She asked questions, and she listened. I described the case of Patelle v. Planning Bd. of Woburn [20 Mass. App. Ct. 279, 480 N.E.2d 35 (1985)] and landowner’s ability to reconfigure lots within a subdivision. She contemplated the situation, and said ‘I don’t think there is a problem here.’ After we finished the phone conversation it occurred to me that what had just happened had become a rarity.  I was able to discuss the relevant law and legal principals with counsel on the other side (as I never think of the Town of Podunk as an ‘adversary’), and counsel listened, and we were able to agree and move forward.”
I agreed with Vinnie that the ever increasing practice of dropping e-mail bombs on opposing counsel had weakened the overall camaraderie of the bar. We don’t get to see each other, or even speak with each other, as often as we should. I told Vinnie that I don’t think it is just a coincidence that when working on deals with attorneys that I see at REBA meetings, or at meetings of the estimable Merrimack Valley Conveyancer’s Association, that the conversations are always civil, and the solutions forthcoming.  
We watched Mookie Betts hit a single, and Vinnie retrieved another beverage from his inventory.  “I am not perfect” said Captain Obvious, “I still lose my temper once a year when some jack-of-all-trades calls to tell me how to practice law, but I am much more likely to take the time to consider the views of opposition counsel when counsel is willing to engage in intellectual discourse, as opposed to those who attempt to berate and bully me.”
Again, amazingly, I found myself in agreement with Vinnie.     
A former REBA president, Paul Alphen 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 12, 2017

Henry H. Thayer: A Remembrance


By Daniel J. Ossoff

Henry H. Thayer, a giant of the Massachusetts real estate bar and a former President of REBA (then the Massachusetts Conveyancers Association), died March 26, 2017, 20 days shy of his 80th birthday. 
Henry H. Thayer,
Henry was a 1958 graduate of Harvard College and a 1963 graduate of Harvard Law School.  Between college and law school, Henry served in Korea from 1959 to 1960.  That represented a portion of a long military career – of which Henry was understandably very proud – that saw Henry serve in the U.S. Army Reserve for 33 years, enlisting as a Private in 1955, receiving his commission as a Second Lieutenant in 1958 and retiring with the rank of Colonel in 1988. A member of the Field Artillery branch, Henry also participated in Army Intelligence and the Foreign Liaison Service and was awarded the Meritorious Service Medal in 1988.
Upon receiving his J.D. from Harvard Law School, Henry joined Rackemann, Sawyer & Brewster, and he spent his entire legal career at Rackemann.  Henry was a part of the last generation of title experts and conveyancers who grew up largely in the pre-title insurance age.  Younger than many of them – if not in age than certainly in appearance and spirit - Henry learned from – and quickly joined the ranks of – that group of notable members of the real estate bar as Abe Wolfe, Orrin Rosenberg, Wiley Vaughan, Norman “Shorty” Byrnes and others.
Henry was the driving force behind updating and bringing back into use Crocker's Notes on Common Forms, editing the eighth and ninth editions for MCLE.  In addition to serving as president of the Massachusetts Conveyancers Association in 1988, he received the MCA's highest honor, the Richard B. Johnson Award, in 1995.  He was also a president of the Abstract Club, and was a long-time and enthusiastic participant on the Club’s executive committee.
In addition, Henry served for many years as chair of the Joint Amicus Committee of both the MCA – later REBA – and the Abstract Club.  As noted by Chief Justice Margaret Marshall when she poked her head into the 125th Anniversary Dinner of the Abstract Club in 2008, Henry was absolutely unique in honoring the principal that briefs – most notably those submitted by Henry on behalf of the Joint Amicus Committee – should be brief.  Henry was also a fellow in the American College of Real Estate Lawyers, elected to that group in 1984.
Among his many philanthropic and charitable endeavors, Henry perhaps valued most his work with The Cathedral Church of St. Paul in Boston, where he served as chancellor from September 2005 through January 2013 and was a member of the Cathedral’s Leadership Development Institute. In addition, Henry offered his much needed love and support to St. Paul’s Church in Brockton, MA. 
Those are the facts, but those are only a small part of what his many friends and colleagues will remember about Henry.  His fellow workers at Rackemann will remember the constant knocking on Henry’s always open door, with the knock inevitably greeted with a “What to you got?”  Or, if he was feeling particularly perky that day, a “Come forth and you shall be heard.  God save the Commonwealth of Massachusetts.”  Greetings which could be intimidating to young attorneys at Rackemann as they approached the “great man”.  But which one and all quickly grew to understand simply meant that Henry was ready to drop everything that he was doing so that he could assist you with your question or problem, which, as soon as your knock was heard, became the most important thing on his desk at that moment.  And it was not just those within his own firm to whom Henry extended his generosity.  His phone would ring constantly with questions from fellow members of the real estate bar.  Henry invariably dropped everything and took the call on the spot, and shared freely of his knowledge and experience.  The one word which inevitably comes up in discussions reflecting on Henry’s accomplishments and his contributions to our legal community is “generosity.”  Henry gave freely of his time to all – almost to a fault if that is possible.
Henry’s generosity was by no means limited to other members of the bar.  He shared equally of his time with anyone who sought his guidance or advice.  Henry was absolutely oblivious to status.  At Rackemann he was noted for treating everyone equally and as his equal:  the folks in the mailroom, the secretaries and receptionists, his fellow attorneys from the newbies right out of law school to the most senior partners, and, of course, his cherished team of title examiners. The service that was held for Henry at St. Andrews Episcopal Church in Wellesley on April 12th was notable in part for the impressive gathering of the best of the real estate legal community that was represented there.  But it was every bit as notable for the many members of the support staff at Rackemann who made the effort to attend the service for Henry out of a show of respect for a man who always showed them the utmost respect and kindness. 
His generosity also extended in very real and tangible ways to those less fortunate in our community.  Just as he couldn’t resist dropping everything for every knock on his door or call that came in from a fellow member of the real estate bar, he also found it extremely difficult to turn down the various pro bono cases that came his way. For many years Henry participated in the BBA's Volunteer Lawyers Project.  He also contributed many hours of work over several years providing pro bono service to the Dudley Street Neighborhood Initiative, serving as eminent domain counsel in connection with the rejuvenation of the Dudley Triangle neighborhood in Roxbury and Dorchester. In recognition of time that he donated to so many causes, Henry received the Boston Bar Association’s Pro Bono Award in 1991 and the Massachusetts Bar Association's Pro Bono Award in 1998.
We will also remember fondly Henry’s love of railroad history and his love of rail travel.  If there was a way to get where he wanted to go by train, Henry was on that train and not in his car or in an airplane. Of course, his love of all things railroad evolved into his expertise in the law of railroad titles, a subject on which he wrote and lectured extensively and on which so many members of the bar looked to Henry for guidance.  There hung in Henry’s office for years a framed map entitled “G. Woolworth Colton’s Series of Railroad Maps No. 2, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut and Lower Canada” published in 1861.  For those who knew him well, there is no doubt in their minds that Henry had committed that map to memory, as he was able to recite, without reference to notes, to files or to his famous box of index cards, the history of rail lines throughout our part of the country – and many from far afield as well.
But there was, of course, still more to Henry for those who practiced with him, enjoyed REBA and Abstract Club activities with him, or who counted him as a friend.  There was the way he wrote a letter.  His letters were beyond conversational – each sentence being a separate paragraph with bits of wisdom sprinkled throughout but with no excess formality and – most of all – no excess verbiage.  It didn’t matter if the letter was one of his many friendly missives to his fellow members of REBA or the Abstract Club, or was a letter to the Chief Justice of the SJC or the Governor of the Commonwealth.  The style was the same and unquestionably Henry’s.  And, of course, there was his quirky and at times unconventional wit.  He loved to share a joke and have a good laugh – occasionally at his own expense but not at the expense of others.  His love of humor – the sillier the better - and his tendency towards mischief, was truly infectious and made it a joy to be in his company.
Above all, Henry remained throughout his life, during good times and tougher times, the most humane of men, always kind and thoughtful, concerned more about the welfare of others than about himself.  For those who had the honor and privilege of knowing him well, we can’t imagine that there will ever be another Henry.  He will be profoundly missed.

Rackemann Sawyer & Brewster partner and former REBA president Dan Ossoff delivered the remarks above at a meeting of the Abstract Club on May 8, 2017

 

Thursday, May 4, 2017

Recent Developments in Massachusetts Case Law (Audio Only)

 

Recent Developments in Massachusetts Case Law (Audio Only)
 
Philip S. Lapatin
From the 2017 REBA Spring Conference
May 1, 2017

Tuesday, March 21, 2017

Five Tips for Increasing Your Daily Use of Social


By Julie Barry
 
By now, even the most stridently resistant among us in the legal profession is likely to be using at least one social media platform, if only one for socializing with friends, such as Facebook. In fact, as shown here, approximately 91% of attorneys who participated in this Attorney At Work poll used social media, with Linked In considered the most effective for bringing in new business. A 2013 ABA Legal Technology Survey found that 98% of attorneys identified themselves as Linked In users.
These numbers are too big to ignore. If you don’t routinely use social media as part of your marketing, you may be missing out on potential opportunities. At our panel discussion at REBA’s Spring 2016 Conference, my co panelists, Kim Bielan and Justin Tucker, and I shared some tips on how to increase your social media use and presence.  Here are just a few of those tips that you can incorporate into your daily schedule:
·         Update Your Contacts and Use Those Business Cards. Take the pocketful of business cards from your last networking event, enter them into your Contacts, and mine them for social media information. Then follow, subscribe, and link in or connect to those accounts. This provides a great opportunity to connect or reconnect with clients, referral sources, and others. And it may bring you great insights into what your contacts are doing, which can make any outreach more personal and timely.
·         Don’t Ignore Those Birthday or New Job Prompts. Use social-media generated opportunities to connect. But don’t just “like” that your contact has a new job or is celebrating an anniversary at a long-time position. Send a personal message along with those well wishes, and an invitation to have coffee or meet up at a REBA networking event. You might be surprised how often you’ll get a positive response to those messages.
·         Use Social Media to Publicize Events You’re Attending. You can tweet or post about a panel discussion you’ll be participating in, or an event you’re attending before, during and after, and include addresses of the organizer and the venue for additional likes and retweets. It’s all about starting a conversation, and encouraging as many others as possible to join you.
·          Add your photo. Put a face to your name. Think about it: all things being equal, are you more drawn to the faceless egg or a photo? Adding a recent photo brings an approachable point of contact whether you’re looking to find a new position or are recreating a brand as a thought leader. And consider updating your photo on a regular basis. If you have the good fortune of getting a meeting out of a social media contact, you want them to recognize you.
·         Join Social Media Discussion Groups (and Start With REBA’s Linked In Page).  This is another way to increase your potential outreach. There are alumni groups, and charitable groups, and industry groups, and sports fans groups. All of these provide an opportunity to develop deeper connections with group members. Staying on top of trends in the group will help you stay current and relevant while providing new sources of information to share with your contacts. Be sure to join discussion groups that will contribute substance with various perspectives on new information and inquiries within your field. You’d be surprised the types of information and other thought leaders you can meet within these groups.
·         Embrace your summary. Your summary is where you get to shine! Create a condensed summary that is conversational in tone that differs from your firm’s bio. You are giving a short pitch to someone. Tell them how you differentiate from others in the field. Make yourself known as a thought leader.
·         Republish! If you’ve written an article for another publication, blog or website, use this content to post on social media. REBA’s Linked In page is a great place for this. Make sure to include a source to the original publication. You will begin to develop of list of written works on your profile to demonstrate your involvement in your practice or industry.  
·         Make Social Media a Daily Habit. Pick a time that works best, morning, lunch time, or after work, and take 15 minutes to “like” a post, or share an article you’ve read, or post a blog, or look for new contacts.
These are just a few tips to get you started, and make social media a daily habit that will help you quickly build a following, and make new contacts that may some day lead to business.
Julie Barry is a partner at Prince Lobel Tye LLP where she specializes in real estate, land  use and environmental law. She is co-chair of the REBA Environmental Law and Strategic Communications committees. Her email is jbarry@princelobel.com

Monday, March 20, 2017

Appeals Court Gives Advice to Conservation Commissions on Making Decisions Tougher than State Law

By  Nathaniel Stevens

The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), rejected a challenge to the well-established principle that a local
conservation commission can have regulatory authority under a local wetlands town bylaw or city ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).

The lesson of this court decision is that effective use of this municipal authority is contingent on the commission relying on bylaw provisions which are more stringent than those in the Act.  Also, the commission must comply with the decision timeframe in the Act (even if the local bylaw differs). Otherwise, the bylaw and commission decision are said to be preempted by the state.

Specifically, if a commission relies on a bylaw provision that is not stricter than state law, it risks having its decision superseded by the Massachusetts Department of Environmental Protection (“MassDEP”). The same thing can happen if it relies on the Act or MassDEP regulations rather than its local law provisions. Ditto if the commission issues its decision more than 21 days from the close of the public hearing.

To clarify this important implication of how a commission conducts its decision making, we will first review the relationship of Home Rule bylaws and ordinances to the state Act and MassDEP regulations, how and why the local rules can be stricter, and what happens when MassDEP overturns a commission on appeal under the Act.

Then we will look closely at the issues and logic of the Parkview decision and the Appeals Court’s practical advice it helpfully included for commissions.

Since at least the early 1970’s, Massachusetts courts have regarded the Act as setting forth only minimum statewide standards to protect wetlands and other inland and coastal resource areas, “leaving local communities free to adopt more stringent controls.” Golden v. Falmouth, 358 Mass. 519 (1970). More than 190 of the 351 cities and towns in the Commonwealth have Home Rule wetlands bylaws.

The interplay between local bylaws and the Act has been considered by the courts over the years, particularly when MassDEP entertains an appeal under the Act and reaches a different conclusion than a commission did under its bylaw. When a commission’s decision relies on a bylaw that is more stringent than the Act or the MassDEP Regulations (310 CMR 10.00), the commission’s decision under the bylaw will stand even if its decision under the Act is reversed by MassDEP.

In 2007, the Supreme Judicial Court in its Oyster Creek decision added an important procedural caveat: a commission must issue its decision under its bylaw within the time prescribed in the Act (21 days after the close of hearing). Otherwise, the SJC ruled, a commission can lose its authority under its bylaw if MassDEP issues a superseding order in an appeal under the Act.

In summary, be aware that MassDEP’s decision in an appeal under the Act controls if:  the bylaw is not more stringent than the Act in some key respect; the commission relies on a provision that is not more stringent; the commission relies on the the MassDEP regulations; or if commission is late in issuing the decision.

These types of legal claims can be raised by an unhappy applicant in a lawsuit against the commission, challenging the decision; in project plans designed to satisfy MassDEP regulations and not the local rules; or, in defending against commission enforcement.

If this “stricter bylaw” issue is raised in a court case, typically the court will determine whether indeed a bylaw is more stringent, in what respects, and if the commission relied on those. The bylaw is examined “as applied” with the court considering the particular provision(s) upon which a commission chose to rely.  This is instead of an “on its face” comparison of the local and state in whole and in the abstract.

If a commission simply failed to issue its decision within 21 days after the close of the public hearing, the typical applicant usually points this out to the commission, arguing the Oyster Creek decision means that a MassDEP permit is all that is needed.  Permit holders go to court if they want a definitive ruling on this score, as MassDEP rarely makes a determination of whether a bylaw is more stringent or if a Commission has acted in time.

In the Parkview case, the owner of an industrial park along the Aberjona River in Winchester, Parkview Electronics Trust, LLC (“Parkview”), argued unsuccessfully before the Appeals Court that a conservation commission must base its decision exclusively on a bylaw, instead of both a bylaw and state law, for the commission to avoid being pre-empted by MassDEP.

Relying on the Appeals Court’s Healer v. DEP decision in 2009, Parkview argued that a commission must choose to exercise authority under either the Act or its bylaw, but may not use both. Parkview seized on the Appeals Court’s use of the word “exclusively” in Healer when it ruled:

A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its by-law which are more stringent than the act... . The simple fact, however, that a local by-law provides a more rigorous regulatory scheme does not preempt a redetermination of the local authority’s decision by the DEP except to the extent that the local decision was based exclusively on those provisions of its by-law that are more stringent and, therefore, independent of the act. Healer v. Department of Environmental Protection, 73 Mass. App. Ct. 714, 718-19 (2009).

Parkview challenged the Winchester commission’s determination, in an Order of Resource Area Delineation and one or two later Enforcement Orders, that it had jurisdiction over its property under both its bylaw and the Act. The commission had found the property to be within Bordering Land Subject to Flooding under the Act as well as within “land subject to flooding” under Winchester’s wetlands protection bylaw, which has a more encompassing definition of that term.

MassDEP’s regulations promulgated under the Act define “bordering land subject to flooding” as presumed to be the area within the 100-year floodplain defined by the Federal Emergency Management Agency (“FEMA”) in its flood insurance rate maps and data. The Winchester Bylaw makes no reference to FEMA information, instead defining “flooding” as “temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water”. This covers more geographic area than in the presumptive FEMA line.

Parkview appealed the Winchester commission’s decision under the Act to MassDEP and under the bylaw to Superior Court. MassDEP reversed the Commission’s decision, finding that the property was not within the area mapped at the time by FEMA as 100-year floodplain. When issuing its decision, MassDEP explicitly stated its decision was only under the Act.

Parkview lost its bylaw appeal in Superior Court, and then tried to convince the Appeals Court that MassDEP’s decision preempted the Commission’s decision under the bylaw. Parkview argued the commission had violated the holding in the Healer case when it asserted jurisdiction under both state and local law (typical of most commissions with bylaws). Parkview maintained that the commission should have asserted jurisdiction only under the bylaw if it wanted to avoid being preempted by MassDEP.

The Appeals Court disagreed with Parkview and reaffirmed the long-established principle that, even when a commission bases its decision on both the Act and bylaw, MassDEP may review the decision and supersede any portion of the decision based on the Act. The Appeals Court stated that if were to adopt Parkview’s position, it effectively would expand MassDEP’s authority over bylaws, thus negating the principle that the Act sets minimum statewide standards.

The Appeals Court went on to advise that commissions “purporting to act under both State law and independently under local law should make it clear in their written decisions and orders that there is a dual basis for their determinations.”

That is good advice. Fortunately, this is what sophisticated commissions already do. Some issue two entirely separate decisions, using separate forms, findings, and conditions. Others utilize a single form modified to indicate the decision is under both the Act and bylaw, attaching one set of findings and conditions for its Act decision and another for its bylaw decision. Either way, they follow the Appeals Court suggestion to make clear the two different bases for jurisdiction and the decision, and where it is based on stricter local standards.

Nathaniel Stevens is a senior associate with McGregor & Legere, PC where he handles a broad range of environmental and land use maters including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel can be reached by email at nstevens@mcgregorlaw.com.

Friday, March 17, 2017

Will a Creditor’s Execution Sever a Joint Tenancy?

By Tucker DuLong

The question of whether a joint tenancy can be severed by the mere recording of a judgment execution has become a hot-button topic among members of the Massachusetts real estate bar in recent years.  The Land Court recently weighed in on the issue in the matter of McHugh v. Zanfardino, 16 MISC 000331 (2016).  


The underlying decision in the matter stems from a quiet title action filed by Kelly McHugh against the adult sons of her deceased co-owner, James Zanfardino, Sr. In 2005, McHugh and Zanfardino, Sr. purchased a 3-family property on Greenwood Street in Worcester as joint tenants with rights of survivorship. The next year, they converted the property into a 3-unit condominium, and later sold one of the units to a third party. McHugh and Zanfardino, Sr. retained ownership of the remaining two units.  In August of 2008, a judgment execution in the amount of $4,989.65 was recorded in the Worcester District Registry of Deeds against McHugh’s interest in the property. This execution was later brought forward by a notice recorded in the registry in July of 2014, however, the judgment creditor never completed the levy. Zanfardino, Sr. died intestate in April of 2016.

The defendants in this matter contended that the recording of the judgment execution against McHugh caused the severance of the joint tenancy between her and Zanfardino, Sr., thereby converting their interests in the property into a tenancy in common. As such, upon his death, the defendants asserted that Zanfardino, Sr.’s interest in the property therefore passed to them according to the law of intestate succession, and not to McHugh as a surviving joint tenant. For her part, the plaintiff contended that the joint tenancy is not severed until the completion of the levy by sale or by setoff, and since neither had occurred in this instance, the joint tenancy remained intact, entitling her to full ownership of the property through the law of joint tenancy.    

The Land Court’s decision in this case hinged on its interpretation of GL c. 236, § 12, which governs the effect of a levy on execution for properties held both in joint tenancy as well as tenancy in common. The statute, which consists of only two sentences, reads as follows:

If land is held by a debtor in joint tenancy or as a tenant in common, the share thereof belonging to the debtor may be taken on execution, and shall thereafter be held in common with the co-tenant. If the whole share of the debtor is more than sufficient to satisfy the execution, the levy shall be made upon such undivided portion of such share as will, in the opinion of the appraisers, satisfy the execution, and such undivided portion shall be held in common with the debtor and the other co-tenant.

All parties were in agreement that a joint tenancy is severed and becomes a tenancy in common at the point at which the property is “taken on execution,” but they disagreed as to the meaning of this phrase. In undertaking its analysis, the Court noted that the statute is arcane and susceptible to competing interpretations.

Upon consideration of other sections of Chapter 236, as well as interpretations rendered in prior cases dating to the mid-1800’s, the Land Court ultimately agreed with the defendants’ contention that the taking occurs at some point prior to the completion of the levy. However, the Court went on to explain that the language of Section 12 “does not entail a severance of the joint tenancy immediately upon recording of the execution.” Instead, the Court interpreted Section 12 as establishing the severance of the joint tenancy only retroactively, if and when the judgment creditor actually completes the levy.  Therefore, given that the levy against McHugh’s interest in the property was never completed, the Court held that the joint tenancy was not severed, and that all right, title and interest in the property had vested in the plaintiff as the surviving joint tenant upon the death of Zanfardino, Sr.    

The Court also dispatched a number of concerns put forth by the defendants, including their argument that delaying severance of the joint tenancy could harm creditors in the event that the debtor joint tenant dies before the levy is complete. In addressing this issue, the Court acknowledged that liens against one joint tenant’s interest in property are generally extinguished at death where non-debtor co-joint tenants survive.  However, the Court pointed out that there exists a long history of case law in Massachusetts that has treated levies differently from other liens, in that the intervening death of the debtor does not prevent the creditor from completing the levy.  The Court concluded that “for purposes of the levy, a transfer of the debtor’s interest through the right of survivorship would differ little from any other living or testate conveyance from which it is well-established that the creditor is protected,” and accordingly, from the perspective of a judgment creditor, early severance of the joint tenancy “thus accomplishes no discernible goal.”

Whereas the completion of a levy by setoff or by sale is a relatively rare occurrence, recorded judgment executions are commonplace. As such, had the McHugh court reached the conclusion espoused by the defendants, an untold number of titles would have been clouded by unaccounted-for interests held by the heirs or devisees of a decedent whose interest was thought to have passed to one or more surviving co-tenants. Clearly, for this reason the decision as rendered by the Land Court in McHugh is welcome news to conveyancers and title insurers alike. Moreover, this decision no doubt stands in harmony with the presumed purpose of the law which, as stated by the Court, is to “provide a process for the satisfaction of a judgment that sufficiently protects the rights of both debtor and creditor,” while avoiding what the Court considered a possible “irreparable harm” to the property interests of the debtor in the case of an incomplete levy.       

Tucker DuLong is Massachusetts title counsel for CATIC, New England’s largest domestic title insurance underwriter.  He is also a member of the association’s standards and forms committee.  Tucker can be reached by email at tdulong@catic.com.

Tuesday, March 14, 2017

PROFESSIONALISM AND CIVILITY TIPS FOR NEW LAWYERS

By Danielle Andrews Long and Nicholas P. Shapiro

Professionalism, ethics, collegiality and civility in the legal profession are essential to a successful, reputable, and fulfilling career.  Many lawyers, however, lose sight of these fundamental principles along the way.  It is therefore important, especially as a new lawyer, to ensure that such principles are integral to your day-to-day practice from the beginning.  Whether as a transactional attorney or a
litigator, we are all ethically obligated to zealously represent our clients’ interests.  The law is also a stressful profession.  Given these realities, it is exceedingly easy to lose track of our equally important responsibilities to each other and to the bar, especially when those around us may be losing track.  We cannot lose sight of the importance of interacting with our fellow attorneys with courtesy, dignity and respect, and honoring our obligations as officers of the court.  Indeed, while, at first blush, there may appear to be a tension between zealous advocacy and the stress of our work, on the one hand, and collegiality, on the other, a commitment to professionalism, in practice, will result in better outcomes for clients, and make the practice of law more pleasant and fulfilling, and less stressful for us all.  Balancing these imperatives can be particularly difficult for new lawyers because, despite the many eponymous courses in law school, there is no real way to teach professionalism.  How to maintain professionalism can only be learned through experience and example.  Below are some helpful guidelines for new lawyers, or really all lawyers, to consider in our quest to achieve and maintain the high standards necessary to develop a successful legal practice and foster collegiality and civility in the bar.

1.         Be prepared.  Always, always show up prepared.  There is no excuse or alternative.  Our occupation demands it.  Preparedness invites respect, professionalism, and ultimately success.  Especially as a new lawyer, you are demonstrating to opposing counsel that you are ready, willing, and able to stand where you are standing, regardless of how high your BBO number may be.  In turn, counsel will see you more as an equal and not some “newbie” to strong arm, intimidate, or take advantage of, because we all know that these tactics do and will happen from time to time. 

2.         Be confident.  If you are prepared, you should be confident.  Demonstrating confidence goes a long way in front of your clients, opposing parties, and other counsel.  If opposing counsel knows you are prepared and confident in your position, he or she is more likely to treat you with respect and acknowledge an equal playing field, no matter what the age difference or varying experience level may be between you.  This will lead to more productive interactions and ultimately resolutions. 

3.         Be Patient.  Patience is definitely a virtue in our profession.  It can be so difficult to take a step back or bite your tongue when you are not being treated professionally.  Everyone will experience that lawyer in their career who will be just downright awful to them.  It is in these situations where you take a deep breath and respond in a professional and civil manner (and then just walk away when need be). There may be times when you do need to leave the situation to give everyone a breather, but always do so with your head held high.  There is no sense in rushing things with an angry opposing counsel on the other side who is being “overly zealous.”  Likewise, even if another attorney sends an objectively offensive email, or otherwise acts offensively, do not react out of anger – always wait until you have calmed down to respond.

4.         Hold your ground.  You are retained by your client to counsel and advocate for them.  You know what is best for your client and you know the goals you are trying to accomplish.  Always advocate in a respectful and courteous manner, even if the other side in not playing the same way.  Such bullying tactics are used many times on new lawyers to intimidate them to back down or not speak their position.  Always hold your ground and it will make it difficult for other lawyers to prevent you from being the best possible lawyer you can for your client.

5.         Take the high road.  It can be so difficult not to take the bait when another lawyer is being discourteous or just plain obnoxious.  An objective from day one of your practice should always be to never compromise when it comes to professionalism.  Never compromise your integrity, respect, beliefs, or standards.  It is okay to compromise your legal position – that is what lawyers do to resolve cases - but never compromise your fundamental values as a lawyer or a person in this profession. 

6.         Know when you are over your head.  Unfortunately, we may find ourselves in a situation that we cannot handle on our own, especially as a new lawyer.  Always know when to reach out to a colleague, partner, or mentor for sound advice on how to handle a situation or another lawyer.  They will be happy to help, it will result in a better outcome, and you will learn from the experience and wisdom you are being offered. 

7.         Be Human.  Believe it or not, lawyers are people too.  There are times when other lawyers, including adversaries, are having a difficult time, either professionally or personally.  It could be a difficult client, colleague, decision, or something outside of the office.  Always be compassionate, reasonable, and understanding because you too will be in a similar situation many times throughout your career.  Always be professional and courteous by agreeing to reasonable extensions and other requests.  Of course do not let the other side take advantage of you and always do what is best for your client, but being a good person will make you an even better lawyer. 

8.         Pick a role model to follow by example.  There many examples of both “good” and “bad” lawyers.  The best way to learn is to learn by example.  This is a difficult profession, which requires a mix of intelligence, persuasiveness, objectiveness, and aggressiveness in order to succeed.  A lawyer does not have to be disrespectful, unethical, or intolerable to achieve these goals.  Pick someone you admire as a lawyer and as a person, and observe how he or she handles all types of situations with his or her adversaries and colleagues and emulate that behavior.  Also take notice of the ones who do not do it well to learn why they are not effective and why others do not respect their behavior. 

9.         Pick up the phone.  In this day and age, no one wants to talk.  Almost all communications are done through email or other electronic means.  Email “wars” are common, and we all have sent something we regretted later, especially from our phone.  When you are having a dispute with opposing counsel or a disagreement with a colleague over something, pick up the phone or walk down the hall.  Hearing each other’s voice or looking into each other’s eyes demands more courtesy and respect (at least it should) then hiding behind your words in an email.  Difficult disputes are more likely to be resolved over a conversation than an email.  Take the extra ten minutes to pick up the phone or have a face-to-face discussion – it will almost always result in a quicker, more satisfying outcome.

10.       Follow the Golden Rule.   This is the most important tip of them all!  When presented with a difficult situation, always stop and think to yourself how would I want to be treated.  The key is to take a few seconds and process this thought.  No one wants to be treated poorly, unprofessionally, or with disrespect, no matter how they may act towards others.  If you follow this one simple rule, you are on your way to earning the respect of your colleagues and a successful career and reputation.