Thursday, December 2, 2021

What the Lifting of the COVID-19 State of Emergency in Massachusetts Will Mean for Boards and Commissions

NathanielStevens

Last June Governor Baker lifted the State of Emergency he declared in March of 2020 in response to the COVID-19 pandemic. This State


of Emergency is the basis for and the reference point for many orders, laws, policies, and provisions which gave local boards and commissions great flexibility in how they conducted business over the last year or so.

These measures gave municipal bodies the ability to hold meetings and public hearings virtually rather than in-person, and the authority to unilaterally extend deadlines to open a hearing on an application or even to issue a permit. Also, the expiration dates of permits were tolled, meaning postponed or put off.

Absent any new laws passed by the Legislature and approved by the Governor to preserve any of these measures which city and town boards enjoyed using over the past fourteen months, things will return to pre-pandemic operations and requirements very soon on June 15, 2021.

Open Meeting Law: Within days of declaring the State of Emergency, Governor Baker issued an “Order suspending Certain Provisions of the Open Meeting Law”, which, if certain conditions were met, relieved boards (and other public bodies) from having to hold meetings in a public place that is open and physically accessible to the public. Also, remote participation by all members of the public body, rather than just a few members, was allowed. Essentially, this Order permitted remote or virtual meetings and hearings, which have usually been conducted through Zoom and similar computer technology.

Unless Governor Baker rescinds this order earlier, it will no longer be in effect on June 15 when he terminates the State of Emergency. This will mean a return to in-person meetings and hearings, with remote participation being a limited and narrow option for one or two board members, but no option for a quorum of members. This means one or two members could participate remotely, but the not the whole body.

Permitting Procedure Timelines: Also in the spring of 2020, local boards were given additional tools and authority by Chapter 53 of the Acts of 2020, commonly known as the Municipal Relief Act, to adapt to continuing business during the pandemic. Many of those new powers previously were set to expire on, or within a certain number of days following the end of the State of Emergency, which, at that time, was unknown. Chapter 201 of the Acts of 2020, enacted last November, shortened the duration of such powers by sunsetting them instead on December 1, 2020 unless the municipal board obtained relief (i.e., an extension) for good cause from the Secretary of Housing and Economic Development (“DHCD Secretary”) for a particular matter.

These two Acts of 2020 gave local boards additional time to open a hearing on an application filed after March 10, 2020 and additional time to continue a hearing on an application for which a hearing had been opened prior to March 10, 2020. Also, as long as they notified the applicant, a board chair had the authority to unilaterally reschedule, more than once and without a quorum present, a pending matter to a date on or before December 1, 2020, unless they obtained permission for a later date from the DHCD Secretary. 

The lifting of the Emergency Order will not alter the ability of a board to seek relief from deadlines from the DHCD Secretary, though as time passes, the need for this provision to be invoked seems less likely.

Permit Expiration and Recording: The Municipal Relief Act prevented any permit in effect as of March 10, 2020 from lapsing or expiring. The expiration date of the permit, or time periods for meeting permit conditions, was and remains tolled during the State of Emergency. This will end on June 15 with the lifting of the State of Emergency. This tolling, by the way, is not the wholesale extension of all permits that the Permit Extension Acts provided about a decade ago. Boards now, therefore, might expect a surge in permit extension requests.

Also, the Municipal Relief Act tolled the requirement to record a municipal permit to make it effective. The Municipal Relief Act suspends this requirement only for so long as the relevant Registry of Deeds was or is closed or subject to restrictions on public access. The termination of the State of Emergency on June 15 may force a Registry to open or remove restrictions on public access.

MassDEP: Kathy Baskin, Assistant Commissioner for the Bureau of Water Resources at MassDEP, recently advised that MassDEP staff likely will not return to their offices until November of this year, at the earliest, so local boards such as conservation commissions, as well as those filing applications with such boards, likely will, after June 15, still interact with MassDEP as they have been doing in recent months. This means continuing to mail as well as email copies of documents required to be provided to MassDEP, and to plan on additional time to reach MassDEP staff as most keep working remotely.

Unless the Legislature and Governor quickly approve pending legislation to preserve some of the powers on which municipal boards have relied since the beginning of the pandemic, the pre-pandemic procedures, laws, and regulations governing board meetings, permitting, and permits will kick back in place on June 15, 2021 with the expected lifting of the State of Emergency. Stay tuned.

A member of REBA’s Environmental Law Section, Nathanial practices in the firm of McGregor and Legere, P.C. He handles a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues 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. Nathanial’s email address is nstevens@megregorlaw.com

Wednesday, December 1, 2021

So, You Want to Be a Real Estate Lawyer? (Video)


Join Olympia “Libby” Bowker, an associate at Anderson & Kreiger, Dominic Poncia, a partner at Warshaw DiCarlo, Derek Rodman, an associate at Jones Day, and Robert Hopkins, an associate at Phillips & Angley, for a lively and practical discussion about a few of the various career paths available for lawyers who practice in the field of real estate. From environmental work, to residential conveyancing, to commercial financing, development and leasing, to permitting and litigation, the four panelists’ practices represent a broad swath of the Massachusetts real estate bar. The program is intended to provide law students and new lawyers a glimpse into the unique and diverse practice areas that exists under the umbrella of “Real Estate” law, and the potential avenues thereunder that can lead to a successful and fulfilling career.

Monday, November 29, 2021

Appeals Court Rejects Declarant’s Unilateral Attempt to Extend Phasing Rights

Meghan E. Hall

In Kettle Brook Lofts, LLC v. Specht, Appeals Court Docket Nos. 20-P-738 & 20-P-739, the Appeals Court rejected the attempt of a


condominium’s developer-declarant to unilaterally extend the expiration of its seven-year phasing right. The Appeals Court’s decision affirmed the Land Court’s determination that other unilateral activities undertaken by the declarant to amend the condominium’s governing documents to avoid the consequences of the expiration of the phasing rights were invalid. It also affirmed the application of subordination principles established by the Appeals Court in the matter of Trustees of Beechwood Village Condominium Trust v. USAlliance Federal Credit Union, (2019).

Holding that the Declarant’s actions were invalid, the Appeals Court reasoned that any extension to the Declarant’s phasing rights could only be effectuated by obtaining approval from all the affected unit owners.

The Kettle Brook Condominium (“Condominium”) was created in 2008, when the declarant, Kettle Brook Lofts, LLC (“Declarant”), recorded a Master Deed submitting its interests in the land and all buildings thereon to the provisions of G.L. c. 183A, § 1 et seq. (“Act”). The Condominium consisted of 53 units, created upon the recording of the Master Deed and by amendments thereto recorded shortly after the establishment of the Condominium. In the Master Deed, the Declarant reserved the right, but not the obligation, to complete 109 units at the Condominium, by amending the Master Deed to add five additional phases over the course of seven years. The provisions of the Master Deed also provided that the Declarant’s failure to “substantially complete” and phase-in additional phases within seven years constituted a waiver of its rights. Among the actions undertaken by the Declarant, on the eve of when its phasing rights were set to expire, the Declarant recorded amendments to the Master Deed, purporting to grant it an additional seven years to complete the development of the remaining units. In connection with same, the Declarant purported to rely upon a general amendment provision in the Master Deed.

The unit owner-controlled Kettle Brook Lofts Condominium Trust (“Condominium Trust”) commenced an action against the Declarant and its lenders in the Land Court seeking, among other things, declaratory relief that the Declarant’s reserved phasing rights had expired and that its attempt to extend its ownership rights and powers over the development and governance of the Condominium were invalid. The Declarant commenced an action in the Superior Court against the Condominium Trust and all of the Condominium’s unit owners seeking to enjoin them from interfering with the Declarant’s extended phasing rights. These actions were consolidated in the Land Court, and the Land Court determined that (i) the Declarant’s phasing rights had expired; (ii) its purported attempt to extend those rights by recording unilateral amendments to the Master Deed were invalid and of no effect; and (iii) as all portions of the property had been submitted to condominium status as either unit or common area, the lenders’ execution of partial releases included the units’ attendant percentage interest in the Condominium’s common areas.

On appeal by the Declarant and its lenders, the Appeals Court affirmed, with minor amendment, the Land Court’s holdings in a 28-page decision. While not an exhaustive identification of the issues considered by the Appeals Court in the case, substantial treatment was afforded to the following matters.

The Appeals Court first considered the Declarant’s attempt to unilaterally extend its phasing rights, discussing § 5(b)(1) of the Act, which authorizes alterations to percentage interest to be undertaken without express consent of unit owners if the alterations are set forth in the master deed when the unit is purchased, such that unit owners are on notice of prospective changes in their ownership interest. In this case, the Declarant, by and through the language contained in the Master Deed, provided the unit owners with notice that its phasing rights would expire seven years from the date the Master Deed was recorded. Each unit owner, in accepting their unit deed, accepted that development of the Condominium may be ongoing for a period of seven years and that their percentage interest in the common areas of the Condominium could be decreased by the addition of subsequent units during that period. Such language in the Master Deed allowed each unit owner to make “an accurate determination of the alteration” to each unit’s undivided percentage interest.

Holding that the Declarant’s actions were invalid, the Appeals Court reasoned that any extension to the Declarant’s phasing rights could only be effectuated by obtaining approval from all the affected unit owners. The Declarant’s attempt to unilaterally accomplish an extension of its phasing rights in a contrary manner circumvented the requirements and the intent of the Act and violated the provisions of the Master Deed. Moreover, the Appeals Court held that the general amendment provision relied upon by the Declarant is inapplicable because (i) the Act requires the consent of the unit owners to alter their percentage interest in the common areas, and (ii) the provision itself is only viable when the amendment does not affect the benefits of the unit owners, which the amendment sought to do through the authorization to phase-in additional units.

As noted above, with respect to the lenders’ claims, the Appeals Court affirmed the subordination principles established in the matter of Beechwood/. In its decision, the Appeals Court noted that the Declarant had submitted the entire property and the building thereon to condominium status and determined that, in issuing partial releases, the lenders released each unit and their attendant percentage interest in the common areas for their mortgages. Recognizing that the Declarant continued to own five (5) units at the Condominium that had not been released (and that, by and through the Declarant’s ownership of such units, it has an attendant percentage interest in the common areas), the Appeals Court held that the lenders continue to hold a mortgage interest in those units’ percentage interest in the common areas.

Meghan Hall is an associate in the litigation department of Moriarty Troyer & Malloy, LLC, with offices in Boston, Quincy and Falmouth.   Her experience includes representing clients in all Massachusetts trial courts, including the Land Court, and the Appeals Court. Meghan can be contacted at mhall@lawmtm.com. 



Friday, November 19, 2021

My Cousin Vinnie Agrees that Word of Mouth is Still a Valuable Commodity

 Paul F. Alphen, Esq.

My cousin Vinnie, the suburban real estate attorney, joined us for a Pat’s game in the Man Cave and it happened to be on a day that I was


serving smoked pulled pork. We were watching the smoker intently with our eyes glued to about 5 different thermometers. Vinnie was not interested in the effects of heat on meat collagen, so he brought up the subject of the management of his tiny suburban law firm.

“Paulie, I let one of those web consultants talk me into updating my web presence. He shamed me into it by pointing out the obvious: that my website looks like it was created on an Apple II, and our website can’t be viewed on mobile devices. I tried to tell him that I was perfectly happy with the trickle of business that I have enjoyed over the decades via word of mouth, but he scared me into thinking that nobody under the age of 40 would ever find me if I didn’t do something. So I am now paying dearly for a fancy website and favored-nation status on search engines.” 

I was afraid to ask him if his business had increased, but I asked him anyway. He immediately responded with a loud “NO!”

“I now waste more of my time taking calls from all sorts of interesting people from all around the Commonwealth that found me on the internet; but I’ve been unable to help a single one of them. I get calls from people who are 15 months into representing themselves pro-se in court cases involving stop work orders from building inspectors, or people that have spent months arguing with every department in the City of Boston or the City of Springfield, and are convinced that there are conspiracies working against them. There is nothing on my web site that suggests that I hang around court houses or that I know where Springfield is, but they call me anyway.”

I added more wood chips to the smoker and said: “Something tells me that it would not make any difference even if your website said that you are not a litigator and your local counsel practice is focused in particular towns.  You know it reminds me of the time, about 35 years ago, when we paid for a full-page color ad on the back of the local yellow pages. This when people stilled used the yellow pages; before the internet. I made the decision to publish a special phone number in the color ad so that we could track how many new clients we received via that phone number.”

“You’ve told me this story” said Vinnie, “And the answer was zero.” “You are correct” I replied. “There is something to be said for word-of-mouth referrals.” 

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

Thursday, October 14, 2021

Timing is Everything for Zoning Appeals

 Meghan E. Hall

Pursuant to G.L. c. 40A, § 7, any person may make a request in writing to the building inspector of a town (or other officer charged


with zoning enforcement) to enforce a zoning ordinance or bylaw against any person allegedly in violation of the same. But what do you do if the building inspector denies such a request?

 

The short answer is that pursuant to G.L. c. 40A, §15, a party aggrieved by a building inspector’s decision may file an appeal of such decision to the town’s zoning board of appeals, but such appeal must be filed within thirty (30) days from the date of the order or decision which is being appealed. An appeal of a town’s zoning board of appeals’ decision can then be taken to the Superior Court or Land Court pursuant to G.L. c. 40A, § 17.

 

In this instance, the Appeals Court found that the plaintiff failed to timely appeal the initial response from the ZEO, which constituted an adverse, appealable decision.

 

In a recent decision issued by the Massachusetts Appeals Court in Fisher v. Presti Family Limited Partnership, et al., 2021 WL 4203426 (Mass. App. Ct. 2021), the Appeals Court clarified the time-period necessary for an aggrieved party to file their appeal of a building inspector’s decision concerning a zoning enforcement request pursuant to G.L. c. 40A, § 15.

 

In Fisher, the plaintiff submitted multiple letters to the zoning enforcement officer for the Town of Stow (“ZEO”) in the Spring of 2017 requesting zoning enforcement because of commercial traffic that was being generated by her neighbor and his commercial tenants along her abutting property. Ultimately, on May 26, of 2017 the ZEO responded to both of the Plaintiff’s letters which informed her: (i) that he inspected the property, (ii) that the types of uses of the property were pre-existing non-conforming and were protected uses, and (iii) that he had no jurisdiction over the traffic concerns raised in her letters. While the ZEO’s written response informed the plaintiff she could contact the building department if she needed any further information, it did not indicate that his response was an appealable decision. As a result, the plaintiff did not file an appeal of the ZEO’s May 2017 decision denying her request for enforcement at that time.

 

Instead, on June 8, 2017, and again on July 24, 2017, the plaintiff submitted further written enforcement requests to the ZEO reiterating her prior complaints and asserting that the use of the defendant’s property was not a pre-existing non-conforming use protected by the zoning bylaw and identified several new zoning violation issues pertaining to the defendant’s property. On June 30, 2017 and again on August 7, 2017, the ZEO issued additional written decisions which declined to enforce the zoning bylaw and informed the plaintiff that if she did not agree with his findings, she could bring an appeal to the Town of Stow Zoning Board of Appeals (“ZBA”).

 

The plaintiff timely appealed the ZEO’s July 24th and August 7th decisions to the ZBA who consolidated the appeals for review and upheld in part and reversed in part the ZEO’s denials of the plaintiff’s requests for zoning enforcement. The plaintiff then filed a G.L. c. 40A § 17 appeal of the ZBA’s decision with the Land Court and the defendant, for the first time, moved to dismiss the plaintiffs appeal on the grounds that the plaintiff’s action was time barred because she failed to timely appeal the ZEO’s initial May 26, 2017 decision denying her zoning enforcement request within thirty (30) days.

 

The Land Court held that the ZBA’s decision upholding the ZEO’s decisions was a nullity because the initial written response that the plaintiff had received from the ZEO on May 26, 2017 was a decision on her zoning enforcement request, which she failed to timely appeal. Additionally, the Land Court held that the subsequent letters to the ZEO did not “revive or extend the appeals period.” Following the Land Court’s decision, the plaintiff appealed.

 

The Appeals Court disagreed that the subsequent letters to the ZEO were not appealable decisions under G.L. c. 40A, § 15 and specifically held:

 

We conclude that although the zoning enforcement officer’s letter of May 26, 2017, denying [the plaintiff’s] requests for zoning bylaw enforcement against certain uses of property owned by [the defendant] was an appealable decision from which the [plaintiff] did not timely appeal, her failure to appeal that decision did not foreclose her from pursuing the same or related relief through her timely appeals from the zoning enforcement officer’s letters of June 30, 2017, and August 7, 2017, denying the [plaintiff’s] subsequent requests for zoning enforcement against ongoing uses of [the defendant’s] property. Fisher, 2021 WL 4203426 at *1.

 

The Appeals Court clarified that while there was no dispute that the Plaintiff failed to appeal to the ZBA within thirty days of ZEO’s May 26th Decision, there is equally no dispute that she did appeal within thirty days of the ZEO’s June 30 and August 7th Decisions and the plaintiff’s failure to appeal from the initial decision did preclude her appeal from her subsequent request for zoning enforcement challenging ongoing uses.

 

This decision serves as a reminder of the critical importance of timely appealing a ZEO’s decision to the ZBA, which deadline is “strictly enforced and is a jurisdictional prerequisite to the [ZBA’s] jurisdiction to hear an appeal.” McIntyre v. Zoning Bd. of Appeals of Braintree,(2018). Additionally, it is also a reminder that the ZEO has no obligation to notify an aggrieved party of his or her right to appeal an adverse decision to the ZBA. See Elio v. Zoning Bd. of Appeals of Barnstable, (2002) (“[T]hose who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.”). That responsibility is left solely to the aggrieved landowner.

 

In this instance, the Appeals Court found that the plaintiff failed to timely appeal the initial response from the ZEO, which constituted an adverse, appealable decision. Accordingly, following the receipt of the written response from the zoning enforcement officer careful attention must be paid, first, to the contents of the ZEO’s written response to determine if it constitutes a decision, and, then the applicable timeframe to appeal, if it constitutes an adverse decision or order.

 

Anyone seeking the enforcement of zoning or the issuance of a building permit is well-advised to consult with an attorney to discuss the attendant facts and the relevant procedure, in order to avoid any fatal missteps in the nuanced process of appeals to the local zoning boards of appeal.

 

Click here to view a copy of Fisher v. Presti Family Limited Partnership, et al., 2021 WL 4203426 (Mass. App. Ct. 2021).

 

An associate at the Boston and Quincy-based firm of Moriarty Troyer & Malloy LLC, Meghan Hall  is an experienced real estate litigator licensed in Massachusetts. Meghan’s experience includes representing clients in all Massachusetts trial courts, including the Land Court, and the Massachusetts Appeals Court. Meghan can be contacted by email at mhall@lawmtm.com.

Monday, October 4, 2021

Updates to the Boston Condominium Conversion Ordinance

 Katherine G. Brady

Last March the Boston City Council and Mayor’s office approved an amendment to the Boston Condominium and Cooperative


Conversion Ordinance (“Boston Conversion Ordinance”). Here is an overview of the Boston Conversion Ordinance and a summary of the changes and new requirements.

The protections and benefits under the Boston Conversion Ordinance (most notably the re-location payments) are greater and more extensive than those under state law.

Conversion Ordinance Overview

The conversion of certain apartments to condominiums (or cooperative units) is governed by state law or, where applicable, municipal ordinance as towns and cities can enact stricter provisions, like Boston has done. The Boston Conversion Ordinance -- like the state law -- applies to any residential property built before December 1983 that has four or more rental units. The state ordinance and Boston Conversion Ordinance are triggered when the owner intends to convert a multi-family residential property to a residential condominium or cooperative use. State law or applicable ordinances then kick in to provide certain protections to the tenants.

The basic protections afforded to tenants under the state and local conversion ordinances are:

• Notice Period (during which tenants cannot be evicted)

• Limits on rent increases (during the notice period)

• Right of First Refusal (to purchase the converted unit)

• Re-Location Payments (per household)

The Boston Conversion Ordinance provides enhanced protections for low-moderate income tenants, disabled tenants, and elderly tenants. The protections and benefits under the Boston Conversion Ordinance (most notably the re-location payments) are greater and more extensive than those under state law.

The Updates

The new amendment to the Boston Conversion Ordinance revises the conversion process in several material ways: (1) it requires the owner to work with the Department of Neighborhood Development (DND) to create a Conversion Plan; and (2) it requires the owner to obtain a Conversion Permit from the Inspectional Services Department (ISD) before units are sold.

The New Process

Once a Boston property owner decides to convert their rental property (assuming it is a pre-1983 building with four or more units), the owner must:

1. Notify Tenants of their Rights under the Boston Conversion Ordinance (with a copy to DND).

2. Apply and obtain a Conversion Plan from DND (landlords must apply even if building is vacant).

3. Apply for a Conversion Permit from ISD ($1000 per unit).

Legal – Recording the Master Deed

The legal conversion of the property from multi-family to condominium occurs when the land and building are submitted to condominium form of ownership by the recording of a master deed. The new amendment to the Boston Conversion Ordinance relates to the conversion as it impacts the occupancy of the housing and does not change the legal conversion process of the property. An owner of property covered by the Boston Conversion Ordinance may file a master deed with the Suffolk County Registry of Deeds at any time, thereby completing the legal conversion of the property, but cannot sell a particular unit (and alter the occupancy of the premises) until a conversion permit has been issued by the City’s ISD for that unit.

Financial – Conversion Tax

A final practice point for those in Boston that is not new but is unique: there is also an excise tax (the “Tregor tax”) levied at $500 per condominium (exempting the first unit), which must be paid prior to the recording of the master deed. The Suffolk County Registry of Deeds will not record a master deed (or amendment adding units) if the master deed does not have a Tregor Stamp.

 

A member of the Association’s condominium law and Practice Section, Kate is an associate in the Boston and Quincy-based firm of Moriarty, Troyer & Malloy LLC.  She possesses years of experience in condominium and real estate litigation and recognized expertise in fair housing, affordable housing and the myriad of statutes and regulations which apply.  Kate can be contacted by email at kbrady@lawmtm.com