A Hard Lesson Learned

 Jesse D. Schomer

 An adage that I have heard attributed to various sources goes

something like this: If the only tool you have is a hammer, it is tempting to treat everything like a nail. In other words, there’s a right (and wrong) tool for the job and it behooves the operator of the tool to know the difference.

 This is a lesson that was learned the hard way in SLV Bridgewater PO, LLC v. Town of Bridgewater (Case No. 24-P-1418). At issue was an apartment building developed under the Massachusetts Comprehensive Permit Statute, M.G.L. c. 40B, §§ 20-23. Several years after the building was built and occupied, the local building inspector issued a cease-and-desist order, claiming that some of the apartments constituted an illegal “lodging house” use because they were occupied by four or more unrelated persons. The developer unsuccessfully appealed that order to the local zoning board and then lost again on appeal to the Superior Court.

On further appeal, the Appeals Court reversed the judgment and directed that the cease-and-desist order be rescinded – lambasting the town for its “caprice” and accusing it of reducing the permit to a “hollow parchment promise.” The Court’s reasoning was that the approved architectural plans had conceptually depicted two beds in each bedroom – impliedly contemplating that a three-bedroom apartment might contain up to six residents. (The Court does not appear to have considered whether the presumptive occupants of these hypothetical beds were related to each other.) In other words, by approving these plans, the board also approved occupancy. Thus, although the developer did not request a waiver of the lodging house bylaw, the Court found that the board had impliedly approved one.

As an aside, the outcome directed by the Court effectively entails that the occupancy of apartments by four or more unrelated persons did, in fact, constitute a lodging house use, albeit one that would be allowed through the waiver of the bylaw forbidding this use. The Court did not delve into the thorny moral and legal question of whether a municipality should be allowed to favor one class of persons over another based on familial status, nor whether it is appropriate in the midst of a housing affordability crisis for that municipality to affix the decidedly pejorative epithet “lodging house” to someone’s home simply because the people who call it home happen to be unrelated.

While the Court’s decision, broadly speaking, yielded the correct result, a lesson to be learned from this case can be found in the adage cited above: it is important to use the right tool for the job. Chapter 40B development is highly complicated, requiring parties to navigate numerous pitfalls across an extended period of time. As this case illustrates, those pitfalls do not necessarily end when a project is occupied. A review of the underlying record suggests several suspects for how things went sideways. 

First, although the developer was represented by counsel with experience in Chapter 40B at some point during the entitlements process, the developer’s principals appear to have largely led the proverbial charge. This inclination towards self-help is contrary to the wisdom of Professor Bobrowski, who in his Handbook of Massachusetts Land Use and Planning Law, teaches us that permitting counsel should be the “maestro” of the permitting team in order to ensure completeness and procedural correctness – a task that “is usually enough to inject the attorney into the center of the storm.” Whether motivated by budgetary considerations or a developer’s self-assuredness, development under Chapter 40B is not the time for DIY.

Next, when the dispute at issue in this case arose, the developer opted to retain a local lawyer to respond to the cease-and-desist notice and handle the resulting litigation. (That litigation, for those keeping score in the grandstands, took more than five years, and counting, to resolve.) To be clear, local lawyers are a vital part of the legal ecosystem for countless reasons. In the context of Chapter 40B development, a local permitting counsel can be helpful due to their on-the-ground knowledge of the permitting environment and familiarity with the players on the field. But the violinist doesn’t lead the orchestra. The maestro does.

A 40B specialist would have known that there was a simpler, quicker, and more cost-effective option available: rather than (or in addition to) appealing the cease-and-desist order, counsel could have sent a letter to the zoning board alerting them that the project was being modified to include a request for a waiver of the local lodging house bylaw. (In its appeal of the cease-and-desist order, the developer apparently refused to this, arguing instead that a waiver was neither requested nor necessary because the bylaw didn’t apply; perhaps – but would you rather be right, or would you rather win?)

Had the developer taken the other path, the zoning board would have had twenty days to act on the notice of project change. Per applicable regulatory criteria, this change was undoubtedly insubstantial and thus did not even require the board’s approval. Had the board deemed the change substantial or denied it outright, the developer would have a right to take an expedited appeal to the Housing Appeals Committee, where the outcome almost certainly would have been a finding of insubstantial change. And, had the municipality opted to continue this fight, the HAC’s decision would have been subject to expedited administrative record review, rather than de novo review under Chapter 40A, Section 17. In sum, this would have been a faster, less costly way to accomplish the same outcome – and one with fewer opportunities for appellate authorities to get things wrong.

The lesson learned here is not exclusive to Chapter 40B, Massachusetts land use law, or even “dirt law” generally. Specialization exists in all fields for a reason: the right or wrong tool can make all the difference. As our clients’ trusted counsel, we must be unafraid to render this advice (and to learn this lesson even if it applies to ourselves).

A Co-chair of REBA’s Affordable Housing Section, Jesse Schomer is a director and shareholder in the Boston law firm of Dain, Torpy, Le Ray, Wiest & Garner, P.C.  His practice focuses on Massachusetts real estate development, land use, and zoning/permitting, with primary specialization is the permitting and development of affordable housing under M.G.L. Chapter 40B.

Jesse can be contacted by email at jschomer@daintorpy.com.

 

Solving the Commonwealth’s Housing Crisis Takes Ideas, Big and Small

 Daniel Dain, Douglas Troyer, and Nicholas Shapiro

Good things come to those who wait. A year ago this month, the three of us penned an opinion piece in these pages describing an initiative by the Real

Estate Bar Association to propose zoning reforms that would make the process for permitting housing more straightforward and predictable in the 350 communities across the Commonwealth subject to the state’s Zoning Act, General Law chapter 40A (which does not apply in Boston). We were thrilled to see much of the language we had drafted in an Act Relative to Zoning (H2317) make it into the FY2027 state budget (Chapter 137 of the Acts of 2026) signed by Governor Healey on July 9 of this year.

 The initiative started back in 2024 when Peter Wittenborg, executive director of REBA, called one of us and said that REBA should be doing its part to help address the Commonwealth’s housing crisis. We put together a small committee, chaired by Dan, to draft proposed legislation with the directive that our changes should be procedural, should respect Home Rule, and should not include any mandates similar to the MBTA Communities Law (which we all supported, but which has fostered significant local push back). We were told to think of small ideas that could have a big impact.

With guidance from REBA lobbyist Ben Fiero, and major drafting and strategic help from Mike McDermott and Sarah McHale of the law firm of Dain Torpy, we came up with a series of proposals that aimed to make zoning litigation less expensive, make it easier to expand otherwise zoning-compliant structures on undersized lots, limit the reach of what is known as the merger doctrine, provide more uniform time standards for zoning decisions, and reform the variance standard so that it could become a viable tool in the process of entitling new housing.

We then all got a lesson in bill-making 101 as our language was passed around from one committee to another, bounced in and out of different housing bills, got sent to purgatory (also known legislatively as being sent to “study”), was revived, and after numerous hearings and meetings, emerged, in slimmed-down version, as part of the budget bill signed into law this summer. We thank the governor, lieutenant governor, and various legislators, including notably Rep. Murray, Sen. Cyr, and Sen. Finegold, and their staffs, for keeping our reforms alive.

 As the drafting committee for REBA of these proposed zoning reforms, we still believe in those parts of our initial proposal that did not make it into the final budget bill, including reform of the appeals process and the merger doctrine, but those can wait until the next legislative session, plus we would love to see these reforms applied consistently to all municipalities, including Boston. But for now, we can celebrate the reforms that were adopted. Notably, these include:

·      Municipalities are now authorized to grant use variances for housing, which provides another avenue, but not an inflexible mandate, to permit housing.

·      The old variance standard of the applicant needing to prove a “substantial hardship” from the literal enforcement of zoning due to soil conditions, lot shape, or topography replaced by new standard that allows municipalities the flexibility to weigh the benefits of a proposed project, including the community’s need for more housing. Also, variances would have a longer duration, providing project proponents a more realistic time period to commence a project.

·      Under the so-called Bransford/Bjorklund rule, a property owner of an otherwise zoning-compliant structure on a lawfully-nonconforming lot (meaning the lot was rendered undersized due to a municipality adopting lot-size and -shape requirements after the lot was already laid out) required a special finding by the local zoning board of appeals in order to expand the existing structure even in a way that otherwise complies with applicable dimensional requirements like floor area ratio, height, and setback. Now, such an expansion can proceed as of right, saving property owners considerable time and expense.

·      Projects that have received a zoning entitlement enjoy greater protection from municipal changes to zoning requirements before the project can get underway.

Although not part of the budget bill, our proposal for clearer rules for constructive approvals remains alive in the current economic development bill.

Nicholas Shapiro is president of the Real Estate Bar Association, while Daniel Dain and Douglas Troyer are the co-chairs, respectively, of the bar association’s Litigation and Legislation sections.   This article was originally published in Banker & Tradesman, and is republished in REBA News with their permission.

Surety Bonds in Massachusetts Zoning Appeals – Know Before You Appeal

Marissa P. Giaimo

Surety bonds are financial guarantees. While they are often used in the construction industry and in commercial licensing contexts, in Massachusetts

they can also be required by a judge. When a party appeals a municipal board decision in Massachusetts, the court hearing the case may demand that the appealing party issue a bond to be collected by the opposing party upon obtaining a winning judgment.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply.

In many zoning appeals in Massachusetts, wherein a party appeals the decision of a municipal board to a court, the third paragraph of G.L. c. 40A, § 17 determines the amount of the bond that may be awarded. Chapter 17 of G.L. c. 40A (Zoning Act) also provides the applicable bond provision for Chapter 40B (affordable housing) appeals of comprehensive permits. See G. L. c. 40B, § 21. Recently, in April 2026, attorneys at MBG secured a § 17 bond in the amount of $200,000 for a client in the Land Court related to the review of a comprehensive permit under Chapter 40B.

The bond provision found in the third paragraph of G.L. c. 40A, § 17 was amended by the Affordable Homes Act (St. 2024, c. 150, § 12), a landmark piece of legislation signed by Governor Maura Healey in 2024. The amendment increased the amount of a surety bond permitted under this section from $50,000 to $250,000 and also included a provision allowing for the indemnification and reimbursement of damages and expenses in addition to costs (which were previously allowed) to the defendant should they prevail in the zoning appeal. Furthermore, it added a statement that a court is not required to find “bad faith or malice of a plaintiff” in order “to issue a bond under this section.” G.L. c. 40A, § 17, as amended. As it reads now, any plaintiff appealing a zoning decision approving a variance, site plan, or special permit may be required to “post a surety or cash bond” up to $250,000. Id.

The Zoning Act is not the only statute that allows for judicial bonds in Massachusetts. There are other bond provisions, too. For example, G.L. c. 231, § 98 allows for bonds in appeals by municipalities of civil decisions of the District Court. Additionally, Section 11 of the Boston Zoning Code (St. 1956, c. 665, § 11, as amended) allows a court to require a surety bond “to indemnify and save harmless . . . from damages and costs” the person whose municipal win has been appealed. And, while Section 17 directly governs zoning appeals, G.L. c. 231, § 117 has been relied upon in certain cases in order to address the posting of a bond in appeals following final judgment.

Unlike Section 17 of the Zoning Act, G.L. c. 231, § 117 is a bond provision that does not specifically authorize a surety bond in so many words. Nonetheless, Massachusetts courts have held that a surety bond may be issued under this section. Recently, in a Memorandum and Order out of the Massachusetts Land Court, Judge Foster determined that a defendant was entitled to an appeal bond under G.L. c. 231, § 117 in the amount of $750,000. In his Order, Judge Foster notes that § 117 permits judges to “make any proper interlocutory orders,” including ordering that an appeal bond be required.

There are various surety bond provisions that could come into play in litigation in Massachusetts, so it is important to be familiar with the differences between them and when each one may apply. Given the complexity of this area of law, this has been a basic overview of some of the general bond provisions that may apply in Massachusetts actions.

Marissa (Mari) is an Associate at the Quincy-based firm of Moriarty, Bielan & Gamache LLC, focusing her practice on real estate and land use issues, worked on research projects involving historical land title matters and restrictions on state-owned land in Massachusetts, and completed a judicial internship at the Massachusetts Supreme Judicial Court.  Mari can be contacted my email at mgiaimo@mbgllc.com. 

Appeals Court Clarifies Easement Rights Following Merger of Dominant and Servient Estates

 Elizabeth A. Lake

 In a recent decision, the Massachusetts Appeals Court addressed the intersection of easement law, the doctrine of merger, and implied easements in

Elizabeth A. Lake

Gladstone v. Denizard, Appeals Court No. 25-P-480 (June 15, 2026). The case arose from a long-running dispute over the use of a privately owned oceanfront beach in Dartmouth and provides important guidance regarding the continued viability of easement rights after common ownership of dominant and servient estates.

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue.

Background

The dispute in Gladstone v. Denizard involved several neighboring property owners who claimed rights to use a privately owned beachfront parcel for boating, bathing, fishing, and other beach-related activities. The claimed rights originated from easements created in the late nineteenth century when a larger waterfront tract was subdivided and conveyed to multiple grantees. Over time, portions of the original dominant and servient estates came into common ownership, raising questions regarding whether certain easement rights had been extinguished by merger.

The Plaintiffs in this case, some of whom owned inland properties, sought to establish that they retained enforceable rights to access and use the Defendant’s beachfront property for both passage and recreational purposes. They argued that their historic easement rights either survived the periods of common ownership or were effectively recreated through subsequent conveyances. They contended that their longstanding use of the beach for access and recreation demonstrated an intent to preserve broad rights, including activities such as boating, bathing, and general beach use, and that any merger did not eliminate their ability to continue those uses. 

The Defendant, Denizard, is the current owner of the beachfront parcel that is subject to the claimed easement rights. She opposed the Plaintiffs’ use of her property and argued that any easement rights benefiting the inland lots had been extinguished when a prior owner acquired both portions of the dominant estate and the burdened beachfront property. She further contended that subsequent owners could not use surviving easements benefiting other parcels to access or enjoy the beach because doing so would improperly overload the easement.

The Appeals Court’s Decision

Merger Extinguished the Original Easement Rights

The Appeals Court agreed that the doctrine of merger applied to certain portions of the Defendant’s property. Under Massachusetts law, the doctrine of merger provides that when the same person acquires title to both the dominant estate (the property benefitted by an easement) and the servient estate (the property burdened by the easement), the easement is extinguished as a matter of law. The Appeals Court reaffirmed that once extinguished, an easement does not automatically revive if the properties are later separated; instead, new easement rights must arise through express grant, reservation, or implication based on the circumstances of a subsequent conveyance.

Implied Easement Reserved Upon Subsequent Conveyance

Although the Appeals Court concluded that merger extinguished the original easements affecting certain inland parcels, it held that an implied easement arose when the common owner later conveyed the beachfront parcel while retaining the surrounding properties. The implied easement was created at the time of that conveyance based on the circumstances showing that the grantor intended to reserve a right of access over the beachfront parcel for the benefit of the retained inland parcels, and that such access was reasonably necessary for their use and enjoyment. Applying established Massachusetts principles governing implied easements, the Appeals Court found that continued access across the beachfront parcel was reasonably necessary for the landowner’s enjoyment of the retained properties. The Appeals Court emphasized that the circumstances surrounding the conveyance demonstrated an intent to preserve access rights, even though no express reservation appeared in the deed.

Scope of Rights Matters

One important aspect of the decision is the Appeals Court’s distinction between access rights and recreational rights. For certain inland property owners, the Appeals Court held that the implied easement permitted only the right to pass and repass across the Defendant’s property to reach other shoreline areas. Those owners were not entitled to use the Defendant’s beach for general recreational activities such as sunbathing, picnicking, or beach games. The Appeals Court found that allowing broader use would improperly expand the implied easement beyond what was reasonably necessary and would overload the surviving easement rights. By contrast, owners whose properties acquired beach-use rights before the merger occurred retained broader easement rights allowing customary beach activities incidental to boating, bathing, and fishing. The Appeals Court upheld the Land Court’s determination that those rights included modern recreational uses such as sitting on blankets or chairs, sunbathing, picnicking, and playing beach games.

Conclusion

Gladstone v. Denizard provides a thorough examination of how the doctrines of merger, implied easements, and overloading interact when historic waterfront rights are at issue. The decision serves as a reminder that easement disputes often turn on detailed title history and the specific circumstances surrounding decades-old conveyances. Property owners, developers, and title professionals dealing with coastal property should carefully evaluate historic easement language and ownership history before relying on claimed access or recreational rights.

A member of REBA’s Condominium Law Section, Liz is an associate in the Litigation Department of the firm of Moriarty Bielan & Gamache LLC, specializing in real estate and land use matters. Liz represents developers, condominium associations, and individual property owners in a variety of real estate litigation matters, including adverse possession, easement disputes, and zoning appeals. Liz also has experience representing individual property owners and developers before municipal boards and obtaining local permits for development projects. She can be contacted at elake@mbgllc.com.

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