The content provided in the REBA News is for informational purposes only and it is not legal advice nor does it necessarily represent the opinion of REBA or any of its members or affiliates.
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Friday, April 4, 2025
Wednesday, April 2, 2025
Monday, March 24, 2025
Environmental Law Implications of Brookline’s Ban on Smoking Products
The Town of Brookline smoking ban case has favorable implications for local environmental laws.
This was a
dispute between retailers and Brookline over a bylaw that prohibits sales of
tobacco to anyone born after January 1, 2000. The SJC unanimously ruled in
favor of Brookline, finding that the law did not conflict with state law. The case is Six Brothers, Inc. v. Town of Brookline (March 8, 2024).
The state Tobacco Act expressly preempts any "inconsistent, contrary or conflicting" local law related to the Statewide minimum age provision, but otherwise affirms the authority of local communities to limit and to ban the sale of tobacco products within their municipalities. St.2018, c.157, §22.
While the case involved tobacco, public health, science and politics, it turns on municipal Home Rule principles, constitutional provisions, and municipal powers going beyond the Commonwealth on matters of important public policy and legitimate governmental purposes. Massachusetts is one of the few Home Rule jurisdictions by virtue of its Constitution.
The SJC cites as applicable precedent some seminal environmental law cases upholding municipal bylaws against similar attacks as being beyond the municipal authority of Home Rule. For these reasons, the decision has lessons for local environmental law, land use, and state-local relations.
Brookline in 2020 had barred anyone born after January 1, 2000 – age 21 at the time – from purchasing tobacco and nicotine products from retailers in the municipality. The retailers challenged Brookline’s bylaw saying it conflicted with a state law setting the legal age to buy tobacco products at 21. The retailers pointed out that Brookline's bylaw, as the town's population ages over time, would effectively ban the sale of tobacco products.
The SJC held that the generational ban didn't conflict with the state law, but instead augmented it. This is similar to what the SJC ruled in upholding local Home Rule wetlands bylaws in the early Lovequist v. Town of Dennis Conservation Commission case (1979), ruling the Wetlands Protection Act was a minimum, not a maximum, of statewide protections and so did not preempt a new type of bylaw on the same subject.
Brookline’s generational ban, the SJC said, reflected “the legislative intent to protect young persons and other vulnerable populations from the deleterious health effects of tobacco product use.”
Note the legal nuance that rather than setting a minimum age to buy tobacco and nicotine products, which would on its face conflict with state law, generational bans bar anyone born after a certain date from purchasing the products. As the name implies, that means tobacco and nicotine products will be off-limits forever to a younger generation within the geographical area covered by the ban.
Such is the purpose of this approach. The SJC commented, “In effect and by design, the bylaw is an incremental prohibition on the sale of tobacco products in the town.”
The SJC observed, “Local communities have a lengthy history of regulating tobacco products to curb the well-known, adverse health effects of tobacco use. For decades, such local laws have coexisted with State laws, often augmenting available Statewide protections.”Here is the holding: the bylaw is rationally related to a legitimate government interest and does not violate the equal protection provisions of Article 1 of the Massachusetts Declaration of Rights. The Attorney General had concluded, reviewing the town bylaw for validity, that it was not preempted by the Tobacco Act.
The SJC posits, “Our primary goal in interpreting a statute is to effectuate the intent of the Legislature ... 'begin[ning] with ... the plain language of the statute.'" See Commonwealth v. Rainey, 491 Mass. 632, 641 (2023).
“A statute must be interpreted according to the intent of
the Legislature ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may be
effectuated." Rainey, supra, quoting Conservation Comm'n of Norton v.
Pesa, 488 Mass. 325, 331 (2021).
Furthermore, the Court does not construe a statutory provision in isolation; instead, we "look to the statutory scheme as a whole ... so as to produce an internal consistency within the statute."
“Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court"[emphasis added]); G.L. c.43B, §13. Importantly, State laws and local ordinances and bylaws can and often do exist side by side. See Bloom v. Worcester, 363 Mass.136,156(1973) ("[t]he existence of legislation on a subject, however, is not necessarily a bar to the enactment of local ordinances and by-laws exercising powers or functions with respect to the same subject"). This is particularly true of local ordinances and bylaws regulating public health, the importance of which we have long acknowledged.”
Importantly, the SJC recognized the legal role of city and town legislation: “With deference to the role local communities historically have played as laboratories for potential Statewide standards, municipal laws are afforded "considerable latitude"; we require "a sharp conflict" between the local and State laws before concluding that the local law is preempted.”
A sharp conflict exists only where the legislative intent to preclude local action is clear. This preemptive intent may be stated expressly by the Legislature, or it may be implied where the purpose of the statute cannot be achieved in the face of the local rule. The question is whether the local enactment will clearly frustrate a statutory purpose.
Invoking Home Rule wetlands protection, the SJC cites another seminal wetlands protection case: Oyster Creek Preservation, Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 866 (2007) (where State "act establishes Statewide minimum wetlands protection standards, ... local communities are free to impose more stringent requirements").”
Against claims of express preemption, implicit preemption, equal protection, and an arbitrary age cut-off date, applying the same jurisprudence under which it has upheld local environmental protection legislation, the SJC ruled the anti-smoking bylaw is rationally related to a legitimate governmental purpose.
A founder of the Boston-based firm of McGregor, Legere
& Stevens P.C., Greg co-chairs REBA’s Environmental Law Section. Greg can be contacted at gimcg@McGregorLaw.com.
Friday, March 7, 2025
New Chapter 40B Financing Requirements
The Massachusetts Housing Finance Agency (“MassHousing”) recently announced changes to its lending requirements for certain
types of affordable housing projects. The changes will likely make it easier for traditional banks to extend construction loans for projects approved under the state’s Comprehensive Permit Act, M.G.L. c. 40B (the “Act”).
The Act was enacted in 1969 to enable affordable housing developers to override certain local zoning and permitting requirements. MassHousing administers aspects of the Act, including the determination of whether projects are eligible for expedited permitting. MassHousing’s role stems from regulations and guidelines promulgated by the Executive Office of Housing and Livable Communities (formerly known as the Department of Housing and Community Development (“DHCD”)).
A key concept in the Act is the subsidy requirement. The Act defines affordable housing as “any housing subsidized by the federal or state government under any program to assist the construction of low or moderate income housing,” and DHCD’s regulations and guidelines, in turn, identify certain state and federal programs that qualify as a “subsidy” under the Act. One such program is the so-called New England Fund (“NEF”), which is made available through the Federal Home Loan Bank of Boston (“FHLBB”). This program is most commonly used when a developer needs construction financing from a bank. NEF proceeds can be advanced to FHLBB member banks, historically at below-market interest rates, and must meet certain parameters established by MassHousing.
Last month, MassHousing published modifications to its NEF financing requirements. Under MassHousing’s previous requirements (which stemmed from an iteration of the guidelines published by DHCD in 2005), any construction financing for a rental project needed to include a permanent loan term of at least five years, and at least 25% of the permanent loan needed to be obtained through the NEF program. Additionally, homeownership projects needed to pull 25% of the construction financing from the NEF program. These requirements created some unintended complications. With the five-year permanent loan requirement for rental projects, many lenders were surprised to learn that their proposed short-term construction loan actually triggered a seven or eight-year commitment. More unpleasant still was the occasional situation where a lender forgot to draw the NEF proceeds after the project achieved substantial completion – a hiccup that could delay the subsequent sale or refinancing of the project.
Furthermore, only banks that are members
of the FHLBB can draw NEF funds – so many national lenders in the Boston market
need to partner up with a local or regional bank familiar with the NEF program.
While a few select Massachusetts banks have regularly assumed the NEF lender
role, not all FHLBB member banks are familiar with the program or how to access
it.
· For homeownership projects: a minimum of 10% of the construction financing must be obtained through the NEF program.
In either scenario, if NEF funds are used for the construction financing, MassHousing requires that the funds be used for the entire duration of the construction loan (i.e., from the first loan advance, with the entirety of the 10% being disbursed up front).
Notably, MassHousing’s announcement also states that the agency is willing to modify existing 40B project approvals to incorporate these revised requirements. Any such modification will be deal-specific and could require amending the regulatory agreements and covenants recorded against the title, as well as certifications and commitment letters executed by the lenders – so the process will likely require some level of legal review.
Given MassHousing’s commitment to relax its financing requirements, a developer’s efforts to secure site approval for a new housing project will likely ease. More national lenders may be able to quickly issue term sheets for proposed 40B project loans, now that they can offer a more traditional construction and “mini-perm” loan term. Furthermore, more FHLBB member banks may be willing to assume the role of the NEF lender, given the greater flexibility for the NEF lender to refinance or transfer its interests after the minimum one-year commitment.
A partner in the Boston office of Nutter,
McClennen & Fish LLP, Gregory is a member of the commercial and real estate
finance practice group as well as the firm’s development, land use and permitting
practice group. His practice focuses on commercial transactions, and he also
advises clients on various aspects of complex development projects. Greg can be
contacted at gbradford@nutter.com.
10 Things to Know About the Suffolk County Registry of Deeds
1. The Suffolk Registry of Deeds requires that when a Condominium is created under MGL c. 183A – at the time of the recording of the
Master Deed and Condominium Trust/Association By-laws both a set of Floor plans and a Site plan are recorded. After recording, the most commonly requested recording by unit owners is the Site Plan.
2.
The
Suffolk Registry of Deeds records 83% of Recorded Land documents
electronically. It is important to remember that documents assigning or
releasing more than one previously recorded document cannot be recorded electronically
– a multi-fee document must be walked in or mailed in.
3.
The
Suffolk Registry of Deeds offers a Consumer Notification Service. You can monitor any recordings under your
name or property address at the Registry by signing up for the service at www.sufolkdeeds.com – at the
top or the page click on Consumer Notification Service located on the right-hand
side of the webpage. Upon signing up,
the individual will receive an email notifying them when a document is recorded
under their name or address. Upon
receiving the email, the individual may contact the Suffolk Registry of Deeds
for assistance in locating the document in question. Receiving an email does
not always mean you are the victim of fraud - many times documents are recorded
by the IRS, DOR and municipalities regarding income taxes and property taxes.
4.
In
order to electronically record, an account must be established with an
electronic records vendor; the documents are then submitted through the vendor.
Suffolk currently accepts electronically recorded document from CSC, ePN and
Simplifile. Contact information for each of these vendors is available at www.suffolkdeeds.com.
5.
The
Suffolk Registry of Deeds will begin accepting Registered Land documents for
electronic recording in the spring of 2025!
6.
On
occasion, a deed is submitted for recording conveying property into a trust
referencing a trust recorded in another county in Massachusetts. The indefinite reference statute (MGL c. 184,
§25), the good faith purchaser of interests in real estate from trustees statute
(MGL c. 184, §34), and the trustee’s certificate statute (MGL c. 184, §35) all make
reference to instruments recorded in the Registry of Deeds for the county in
which the land lies. As a result, the Suffolk Registry of Deeds requires that
the trust or a trustee’s certificate under MGL c. 184, §35 are to be recorded
with the deed conveying the property into the trust.
7.
The
story of the Suffolk Registry of Deeds begins with the founding of the town of
Boston. In 1629, the Cambridge Agreement
was signed in England by the Puritan shareholders of the Massachusetts Bay
Company. The Massachusetts Bay Colony was named after the indigenous residents
– the Massachusett. The name can be
segmented as follows: mass is
“large”, adchu is “hill”, s is a suffix meaning “small” and ett is a locative suffix meaning
“place”. The place of the large, small
hill to which it refers is the Great Blue Hill, commonly known as Big Blue. The first broadcasting tower for Boston’s
public television station – Channel 2 – was at the top of the Great Blue Hill,
as a result, the station’s call sign was WGBH.
8.
On
September, 1630, John Winthrop announced the foundation of the settlement at
Boston. In his famous sermon “A Model of Christian Charity,” Winthrop described
the new colony as “a City upon a Hill.”
Shortly thereafter, the inhabitants’ behavior became anything but
“Christian” as they began to fight about “who owned what” land.
9.
Before
there was police, fire or public education, the basis of an orderly, civil
society required our government to become actively involved in land recording:
On April 1, 1634,
the General Court ordered that a survey be undertaken of all the improved and
enclosed lands owned by every free inhabitant, the findings of that survey were
then to be entered into a book. From
time to time, when such lots and homes were sold, the record of such sale was
to be entered into this book for a fee of six pence. It was in compliance with this order that the
Boston Book of Possessions was compiled.
Mass. Bay Rec. Vol. 1 p. 116.
On August 6, 1637, the General Court ordered that some course be taken to cause men to record their lands, or to fine them that neglected. Mass. Bay Rec. Vol. 1 p. 201.
On September 9,
1639, the General Court issued an order to record all men’s houses and lands
certified by an individual who was deputized for the ordering of their
affaires. The charge for recording was 2
shillings and six pennies. Mass. Bay
Rec. Vol. 1 p. 276. In one of the
first acts of nepotism in North America, the first recorder for Boston, Steven
Winthrop, was none other than the Governor’s brother.
On March 7, 1640, the General Court ordered: “For avoiding all fraudulent conveyances, and that every man may know what estate or interest other men may have in any houses, lands, or other hereditaments they are to deal in, it is therefore ordered, that after the end of this month no mortgage, bargain, sale or grant hereafter to be made of any houses, lands, rents or other hereditaments, shall be of force against any other person except the grantor and his heirs, unless the same be entered and recorded.” Mass. Bay Rec. Vol. 1 p. 306. The statutory justification for the modern-day Registry of Deeds finds its origins in this order. The order’s language for all intents and purposes mirrors the present statute’s language requiring the recording of land conveyances in order to provide public notice and protect good faith purchasers. Mass. Gen. Law c. 183, §4.
10.
In 1643, the General Court divided the Massachusetts Bay
Colony into four counties; the decree read as follows:
“The
whole plantation within this jurisdiction is divided into four shires, to wit:
Essex - Salem, Linn, Enon
(Wenham), Ipswich, Rowley, Newberry, Glocester and Cochichawick (Andover).
Middlesex – Charlestowne,
Cambridge, Watertowne, Sudberry, Concord, Wooborne, Meadford, and Linn Village
(Reading).
Norfolk – Salsberry,
Hampton, Haverill, Excetter, Dover, and Strawberry Banck (Portsmouth, NH).
Suffolk – Boston,
Roxberry, Dorchester, Dedham, Braintree, Weymoth, Hingham and Nantaskot
(Hull).”
The size of Suffolk County has expanded and contracted
over the centuries. The county is
currently comprised of the City of Boston, the City of Chelsea, the City of
Revere and the Town of Winthrop. In
1999, the Suffolk County Registry of Deeds was placed under the general superintendence
of the Secretary of the Commonwealth of Massachusetts, thus changing its name
to the Suffolk Registry of Deeds. Mass Acts of 1999, Ch. 127, p. 53. Today, the County of Suffolk stands simply as
a geographical boundary and is comprised of a total of 120 square miles: 58
square miles of land and 62 square miles of open water. It is the second
smallest county in Massachusetts in terms of land area (Nantucket County having
less land area) and the smallest county in terms of overall size (Nantucket
County being comprised of more open ocean).
Wednesday, March 5, 2025
Supreme Court Invalidates "End-Result" Requirements in Clean Water Act Discharge Permits
Yesterday, the Supreme Court issued its long-anticipated decision in City and County of San Francisco v. EPA, which addresses the type
of limits the Environmental Protection Agency (EPA)
can impose in discharge permits issued under the Clean Water Act’s National
Pollutant Discharge Elimination System (NPDES) Program. In brief, the Court
upheld EPA’s authority to impose requirements besides those that simply set
numeric limits on pollutants, but a 5-4 majority found that the Clean Water Act
prohibits “end-result” requirements that generically require compliance with
state water quality standards.
The case arose from an appeal of San Francisco’s NPDES permit that authorized discharges from a combined sewer outfall into the Pacific Ocean. The permit contains two at-issue requirements, which prohibited San Francisco from making any discharge that (1) “contribute[s] to a violation of any applicable water quality standard” for receiving waters, and (2)”create[s] pollution, contamination, or nuisance” as defined by California regulation.
San Francisco principally argued that the at-issue requirements were invalid because the Clean Water Act required EPA to set only numeric effluent limits, i.e., limits in defined amounts or concentrations of a pollutant in a discharge. Eight members of the Court (all but Justice Gorsuch) rejected this view. Narrative limits (written descriptions of what discharges look or smell like) and other types of limits may still be imposed.
A majority of the Court, however, still invalidated the at-issue requirements, which the majority termed as “end-result” requirements: “provisions that do not spell out what a permittee must do or refrain from doing; rather, they make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.” The majority found, among other reasons, that these terms were inconsistent with the text and purpose of the Clean Water Act.
This decision will have a significant impact on NPDES permitting. This is especially the case in Massachusetts where all NPDES permits are issued by EPA and where most permits have end-result requirements similar to those invalidated here. According to the majority, “[d]etermining what steps a permittee must take to ensure that water quality standards are met is the EPA’s responsibility,” and EPA will have to revise its permits to ensure water quality standards are met. The dissent notes that this is easier said than done. Requiring individualized conditions for each permittee “will be more difficult and more time consuming for [EPA] to issue permits” and could result in more denials.
This article was prepared by Matthew Connolly, Matthew Snell, and Alexander Eddinger, members of the Environment and Energy practice group of the Boston law firm of Nutter McClennen & Fish LLP.
The authors can be contacted at www.nutter.com.
Friday, February 28, 2025
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