TAKING A STAND[ING] AGAINST MURCHISON V. SHERBORN BOARD OF APPEALS

By Robert Keith Hopkins and Nicholas P. Shapiro

We are the authors of a recently-filed Amici Brief, on behalf of REBA and The Abstract Club, with the Supreme Judicial Court,

which has taken further appellate review of the Appeals Court’s decision in Murchison v. Sherborn Board of Appeals, 96 Mass. App. Ct. 158 (2019). REBA and the Abstract Club have decided to support the abrogation of the Appeals Court’s decision, because it would have the effect of conferring automatic standing on abutters in zoning appeals by merely claiming a violation of a dimensional regulation. The legal distinctions between standing to bring a claim, and the merits of the underlying claim would be abolished. So too would the distinction between the legal cognizability of a claimed injury, and the necessity of proving that the claimed harm is individualized and an injury in-fact (not a mere negative impact). If not corrected, these consequences will have a dramatically negative impact on the ability of homeowners and developers alike to improve and develop property throughout the Commonwealth. Below is a summary of our argument as set forth in the Amici Brief, highlighting the Appeals Court’s legal errors in the hope that the SJC abrogates the Appeals Court panel’s erroneous legal reasoning.

In Murchison, the plaintiffs appealed the issuance of a foundation permit issued to the defendants for their proposed construction of a single-family residence on a three-acre lot. The defendants’ property is located across the street from the plaintiffs’ home. The plaintiffs alleged that the defendants’ proposed single-family residence, as well as the property on which it was to be built, violated the Sherborn Zoning Bylaw’s lot width requirement. After trial, the Land Court, Scheier, J., dismissed the appeal, finding that the plaintiffs lacked standing to maintain the lawsuit, reasoning, in part, as follows:

Plaintiffs cite several cases in support of the argument that density-based claims of harm can confer standing. This court does not take issue with the theoretical premise but the cases cited have significantly different factual contexts and largely present challenges to construction on undersized lots which have merged with adjacent lots in areas where ‘existing development is already more dense than the applicable zoning regulations allow.’ Dwyer v. Gallo (2008); see also, e.g., Mauri v. Zoning Bd. of Appeals of Newton (2013); Marhefka v. Zoning Bd. of Appeals of Sutton (2011). While the cases cited by Plaintiffs might allow, they certainly do not compel a ruling in this case that Plaintiff has established particularized harm to them by the proposed construction based on increased density. Based on Mr. Murchison's testimony, this court finds Plaintiffs simply do not want any construction on Lot 69F.

 Murchison v. Novak, 26 LCR 278, 280-281 (Scheier, J.). Judge Scheier’s reasoning is sound and conforms to longstanding case law. Density based harms can be the basis for a claim of injury and, therefore, standing; however, the mere fact that an abutter plaintiff has identified a genre of injury that is cognizable under the Zoning Act or the local zoning bylaw or ordinance does not mean that a plaintiff has proven an individualized injury of this legally-recognized sort will flow from the local board’s decision.

On the plaintiff’s appeal, the Appeals Court got tangled in the admittedly difficult and dense web of standing case law under the Zoning Act. The Appeals Court’s first error was to conflate the distinct inquires of the plaintiffs’ claimed injury for standing, with that of the merits of the underlying zoning appeal. This flaw in reasoning is best demonstrated by the following passage:

There is no platonic ideal of overcrowding against which the plaintiffs' claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area, absent some constitutional concern, which the defendants do not argue exists in this case, cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district ‘overcrowded.’ What matters is what the town has determined.

Murchison, 96 Mass. App. Ct. at 164-165 (emphases added). This passage suggests, erroneously, that town meetings and city councils enact zoning for the purpose of defining abutter standing. That is simply not the case. Instead, they are making zoning determinations for the community as a whole, exercising the Police Powers. In certain instances, in which they create specially-protected interests, these local laws may provide a legal basis for cognizability, but they do not define whether an abutter has been harmed or not.

In some instances, practically speaking, it is true that if a municipality has adopted, for example, three-acre zoning as Sherborne has in Murchison, then this legislative choice may make it factually more difficult for an abutter-plaintiff to prove that he will be harmed by a local zoning decision. However, while it may have an impact on the likelihood that an abutter will suffer harm from a local zoning decision, municipal zoning does not, and cannot, define or provide the evidentiary basis for an injury-in-fact for the purposes of G. L. c. 40A, § 17. Rather, it governs the legality of local zoning decisions. To reach the opposite conclusion, the Appeals Court mistook the local law that controls the merits, as authoritative with respect to the question of injury, but an injury is an injury—it is an objective, factual inquiry, not a sliding scale from community to community.

The Appeals Court’s second error was that it, in essence, dispensed with the factual requirement of demonstrating an individualized injury-in-fact. This error is on display, in the following passage:

if the plaintiffs' arguments on the merits are correct, then the alleged bylaw violations would allow a house to be built closer to the plaintiffs' house than the density provisions of the bylaws permit. The plaintiffs have shown that they are across the street from the proposed development. The harm to a property owner from having a house across the street closer to his or her own than is permitted by the density-protective bylaws is different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood. It is sufficiently particularized to support a claim of standing to challenge the alleged violation.

Murchison, 96 Mass. App. Ct. at 164-165 (footnote omitted). In the footnote corresponding to this analysis, the panel further asserts that “[i]t is the fact of the placement of the house on the lot across the street from the plaintiffs that demonstrates particularized harm to the plaintiffs, not the mere violation standing alone.” Id. at 165 n. 5. However, “the placement of the house on the lot across the street from the plaintiffs” is itself merely the “violation standing alone.” This reasoning is totally tautological and circular. Using a different phrase to refer to the same thing does not somehow make the thing different, if the meaning of the words making up the phrase communicate the same meaning and content. If such circularity must be employed to reach the desired outcome, then a court should revisit what is the desired outcome.

In addition, this reasoning is directly at odds with longstanding, binding density-based case law, which has uniformly required more than a claimed violation of density regulations in order to demonstrate aggrievement. See e.g. Sweenie v. A.L. Prime Energy (2008), (“[e]ven if the bylaw under which the planning board granted A.L. Prime's special permit created and defined a protected interest . . . this alone is not a sufficient basis on which to confer standing.”) (internal citations omitted). “The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing. To conclude that a plaintiff can derive standing to challenge the issuance of a special permit from the language of a relevant bylaw, without more, eliminates the requirement that a plaintiff ‘plausibly demonstrate’ a cognizable interest in order to establish that he is ‘aggrieved.’” Id., quoting Standerwick v. Zoning Bd. of Appeals of Andover (2006).

The practical effects of the Appeals Court’s legal errors could be widespread and alarming. From our perspective, abutters will be able to stymie development with nothing more than the incantation of the word “density.”  Every zoning appeal by an abutter (which represents the vast majority of appeals) will have to be determined on the merits of the case, as a standing inquiry would be effectively resolved in the abutter’s favor, no matter how conjectural / speculative / hypothetical the alleged injury to the abutter may be. In cases in which the lawfulness of a permitted development’s density is at-issue, this means years of delay and tens of thousands to millions of dollars in additional costs, if not the death knells tolled for these projects. And please do not be lulled into the false idea that only large developers will suffer from this decision. Every property owner would be at risk. If you get a special permit to install an in-ground pool in your backyard, then that pesky neighbor, who always complains about the noise from your children playing in the backyard, will be just as able to run you through the litigation ringer, no matter how baseless the claim.

Beyond the foregoing, it is no secret that Massachusetts is in the middle of a housing crisis. Don’t take our word for it; the Home Builders and Remodelers Association of Massachusetts, Inc. (the “HBRAMA”), which also filed an Amicus Brief, provides the cold hard facts. “In the last decade, the commonwealth had the fourth lowest rate of housing production in the nation”. HBRAMA Amicus Brief, pg. 11. “No matter how many current homeowners put their houses on the market, there simply is not enough housing to meet demand, moderate prices, or close the affordability gap. Massachusetts needs new home construction of all types that individuals and families of all incomes can afford.” Id. “The Metropolitan Area Planning Council …, estimates that more than 400,000 new housing units will be needed by the year 2040 if the region is to keep growing its economic base.” Id. at pg. 12. Alarmingly, not only do we not presently have enough housing supply, but the rate of new home construction is down over the last 15 years. “In 2005, 25,549 residential building permits were issued in Massachusetts, of which 14,585 were for new single-family homes. In contrast, in 2018, 17,044 residential building permits were issued, of which a mere 7,169 were for single-family homes.” Id. at 13. If Murchison stands, then these long-term trends and the current housing crisis will only be exacerbated, and significantly so. REBA and the Abstract Club have requested that the SJC intercede, because, apart from having such dire practical effects, the Appeals Court’s decision also happens to run afoul of the standard for standing as previously articulated by the appellate courts in Massachusetts.

Abutters already enjoy a rebuttable presumption of standing under the Zoning Act. Hopefully, the SJC will decide that demonstrating a particularized injury in-fact is still required in the Commonwealth as well.

Nick Shapiro and Robbie Hopkins practice with the Boston firm of Phillips & Angley.  Robbie co-chairs the REBA new lawyers section; Nick co-chairs the land use and zoning section

Robbie concentrates his practice on zoning, land use, and real estate litigation. Prior to joining the firm, he was a law clerk to Land Court Chief Justice Judith C. Cutler.  In 2019, he was honored with the REBA Emerging Leader Award.  Robbie can be contacted by email at rhopkins@phillips-angley.com.

Nick appears predominantly before the Massachusetts Land Court. However, in his time at Phillips & Angley, Nick has argued all manner of motions and appeals before every level of the Massachusetts judiciary, from the District Court to the Supreme Judicial Court. During his tenure at Phillips & Angley, he has argued eight appeals before the Massachusetts Appeals Court and the Supreme Judicial Court. In 2017, he was honored with the REBA Emerging Leader Award.  Nick’s email address is nshapiro@phillips-angley.com.

What Paralegals Need to Know About Foreclosures

Remote Video Acknowledgements Have Arrived

Richard Howe

The Middlesex North Registry of Deeds recently recorded a mortgage for property in Tyngsborough. Like 75 percent of all mortgages we record, it arrived electronically. The document was signed by the homeowners, likely at their kitchen table just a dozen miles from the registry of deeds, but it was

acknowledged by a notary public 1,800 miles away in Texas via audio-visual means in accordance with the law of that state.

Massachusetts General Laws chapter 183, section 42 allows an acknowledgement made outside of Massachusetts to be done before a justice of the peace or notary public of the state in which the acknowledgement is made but neither MGL c.183, s.42, nor any other Massachusetts statute or decision that I have found specifies whether the validity of the acknowledgement is governed by Massachusetts law or by the law of the place where the acknowledgement was taken.

The Restatement (Second) of Conflicts of Law, section 223, states “(1) Whether a conveyance transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs; and (2) These courts would usually apply their own local law in determining such questions.” However, this rule is not universal. Comment i. Collateral questions to section 223 of the Restatement says that on matters that are incidental or collateral to the conveyance, the courts of the state where the land is located might apply the law of some other state to resolve the matter. This is especially true “when the concern of that other state in the decision of the particular issue is so great as to outweigh the values of certainty and convenience which would be served by application of the local law of the situs.”

Massachusetts Deed Indexing Standard 2-6 [ http://www.lowelldeeds.com/IndexStnds08.pdf ] states “An acknowledgment made outside of the Commonwealth but within any state, territory, district or dependency of the United States, shall be made before: a justice of the peace, notary public, or magistrate of the state in which the acknowledgment is made . . .” This standard assumes that it is the law of the place where the acknowledgement is made that controls its validity. It also delegates to the person accepting the document (the grantee, not the registry) responsibility for determining whether the acknowledgement is valid under the laws of that foreign jurisdiction.  

When the person executing the document and the notary acknowledging the execution of the document were both located outside of Massachusetts, far from the land affected by the document, these presumptions seemed valid. So did the expectation that courts in this Commonwealth would hold that the acknowledgement was collateral to the conveyance of the land and should therefore be assessed in light of the law of the jurisdiction in which the acknowledgement was taken.

However, technology in the form of internet-based audio-visual applications has brought a new twist to this analysis by allowing the person executing the document to be distant from the person taking the acknowledgement. In the case of our Tyngsborough mortgage with the person executing the document being in Massachusetts and the land being in Massachusetts, the use of a foreign notary seems like a kind of forum shopping that implicates the financial interests of the lender more than public policy concerns of the state of Texas. In these circumstances, a Massachusetts court might conclude that any connection between this transaction and the state of Texas was so tenuous that the entire transaction, including the acknowledgement, should be governed by Massachusetts law. Since Massachusetts law makes no provision for remote video acknowledgements, such a finding would invalidate the acknowledgement, the mortgage itself and, if we may be guided by U.S. Bank v Ibanez, 458 Mass. 637 (2011), quite possibly any other document similarly acknowledged. 

  

Still, before we reflexively shun all out-of-state remote acknowledgements, we should remember that human nature makes us prone to accept the old and familiar and to reject the new and innovative. If the purpose of requiring a real estate document to be acknowledged is to be able to prove that the person who purportedly signed the document did in fact sign it, having a video recording of that act is better evidence than a notary testifying that he has no memory of this particular transaction but always required the person executing the document to be in his presence and to positively identify himself before completing the acknowledgement. In that way, the Texas law may do more to protect the public policy concerns of the Commonwealth than the state’s own notary laws do. 

According to the National Notary Association, 22 states have passed remote video acknowledgement laws. This practice is reaching critical mass across the United States and we here in the Commonwealth can no longer ignore it in the hope that it will just go away. As tempting as it is to urge the state legislature to jump on board the remote notary train without delay, this is a complex area of the law with enormous implications that deserves prompt study and analysis by all concerned as a precondition to legislative action.

Related Articles

Here are links to a couple of my earlier articles that are related to this one:

Electronic Acknowledgements March 9, 2017

https://rebama.blogspot.com/2017/03/electronic-acknowledgements.html

A Path to Electronic Acknowledgements July 28, 2017

https://rebama.blogspot.com/2017/07/a-path-to-electronic-acknowledgements.html

YOU CAN FIGHT CITY HALL: THREE RECENT DECISIONS WHEREIN LOCAL GOVERNMENTS CAME UP SHORT.

Paul F. Alphen

In three recent decisions, abutters or developers were able to prevail over municipalities. The cases are very different, but all involve MGL Chapter 40A.

STRIKE ONE:

In 2011, the town of Brookline adopted a “neighborhood conservation district” (“NCD”) bylaw designed to create local

commissions with the ability to regulate the “dimensions, layout, and design of construction” in designated districts. Brookline adopted the bylaw not as an amendment to its zoning bylaw pursuant to G. L. c 40A, or as a historic district bylaw pursuant to G. L. c. 40C, but as a general town bylaw pursuant to its general home rule powers. The Attorney General approved the adoption of the bylaw.

The first district established under the bylaw comprised solely the entire Brookline portion of the 70-acre property of plaintiff Hancock Village I, LLC, who ultimately filed an action in the Permit Session of the Land Court seeking to invalidate both the bylaw authorizing neighborhood conservation districts in the town, as well as the particular section of the bylaw creating the district encompassing the plaintiff's property. In Hancock Vill. I, LLC v. Town of Brookline, 2019 WL 4187764 (Mass. Land Ct. Sept. 4, 2019), the property owner asserted that the bylaw was not a proper exercise of Brookline's general police power, “as its subject matter falls squarely under the purview of G. L. c 40A and G. L. c. 40C, and must therefore have been enacted pursuant to the procedures provided in those statutes, and with the substantive protections and mechanisms required by those statutes.”

The Court agreed with the Plaintiff.  The bylaw attempted to regulate matters that are clearly within the scope of the Zoning Act. For example, a “Reviewable Project” was defined in the Bylaw as including “(i) a change to a building or other structure or part thereof such as removal, construction, reconstruction, restoration, renovation, replication, rehabilitation, addition, partial or total demolition and other similar activities, or the construction of a new building or other structure or part thereof ... (iii) addition or replacement of doors or windows ... (iv) a change to a site that includes constructing, placing, erecting, installing, enlarging, or moving a building or other structure or similar activities; (v) the removal or addition of streets, driveways, parking areas, walkways, or paved surfaces.”

The Bylaw further stated that “[t]he Commission may impose dimensional requirements that further the purposes of the by-law, including without limitation preventing Reviewable Projects inconsistent with the historic or architectural aspects, scale or massing, neighborhood or subdivision plan or layout, circulation patterns, or green space, open space, landscape, vegetation or viewshed character of the NCD.” The Bylaw also sought to regulate building size, height and massing, and required that projects “maintain the spatial organization of the district,” and further required that buildings shall not have a “significant negative impact on historical architectural or landscape elements ...”

The Court stated that “[a] municipality cannot utilize its general police power to enact a bylaw which is, at its essence, a zoning regulation, if it does not resort to G. L. c. 40A; doing so would frustrate the purpose and implementation of the statute. … As previously noted by this court, ‘[t]he reason for this is that zoning bylaws have different, stricter requirements for enactment than general bylaws. A zoning bylaw must be reviewed by the planning board in a public hearing and then reported on by the board, and, crucially, may only be enacted by a two-thirds vote of town meeting. General bylaws have no such requirements—they may be enacted by a majority vote.’” citing Valley Green Grow, Inc. v. Town of Charlton, 27 LCR 99,  at 105 (2019).

“Brookline impermissibly evaded these stricter requirements in a circumstance where they were necessary. Brookline's NCD Bylaw is, in its fundamental substance, a creature of zoning. It regulates subject matter falling within both the traditional definition of zoning as well as the existing purview of the Brookline Zoning Bylaw. Despite this, Brookline enacted the NCD Bylaw as a general town bylaw, and made no attempt to follow the particular procedures laid out in G. L. c. 40A. Accordingly, having failed to strictly comply with the requirements for enactment of a zoning bylaw, Section 5.10 of the Brookline General Bylaws is invalid, and of no force and effect.”

Justice Speicher also found that the NCD Bylaw constituted impermissible spot zoning by concluding that “[t]here is no doubt that Brookline's purpose in adopting the NCD Bylaw and the Hancock Village NCD Bylaw was the same purpose deemed invalid in Scherzer and National Amusements: to frustrate a single property owner's efforts to develop a particular use on its property”

STRIKE TWO:

In the case of McLean Hosp. Corp. v. Town of Lincoln, 483 Mass. 215, 131 N.E.3d 240 (2019), McLean Hospital, a non-profit institution, proposed to construct a facility in a residential neighborhood in Lincoln for conducting a residential program for adolescent males with extreme emotional dysregulation. Before McLean purchased the property, they smartly contacted the building commissioner and explained the proposed use and the commissioner agreed (in writing) that the proposed use was an educational use exempt from zoning under the Dover Amendment (MGL Chapter 40A Sec.3).  After the purchase of the property, a number of nearby residents challenged the decision pursuant to MGL Chapter 40A Sec 8 before the Zoning Board. The ZBA decided that the program was medical or therapeutic, not educational. McLean appealed to the Land Court, which determined that the program was not primarily for educational purposes. McLean appealed and the SJC took the case on direct appellate review.

Plaintiff’s counsel did an outstanding job in getting the SJC to understand and appreciate the various details of the proposed program. The Court, in an eleven page decision, described the particular educational aspects of the program. For example, the Court found that “the program teaches students to notice and identify their emotions, to slow down and consider alternatives rather than simply reacting, and to interact constructively with other people. It teaches fundamental behavioral skills so that the students, whose difficulties in emotional regulation interfere with an ability to learn in a more traditional setting, may acquire skills to respond more productively to the challenges that confront them in their day-to-day lives. The goal of the program is to enable the students to return to their communities and their families, to succeed in traditional educational programs, and to become able to lead productive lives.”

The Court explained that the term “educational” as historically used in the Dover Amendment,  is “broad and comprehensive” citing Regis College, 462 Mass. at 285, 968 N.E.2d 347, quoting Mount Hermon Boys' Sch. v. Gill, 145 Mass. 139, 146, 13 N.E. 354 (1887). “Over time, we have made clear that the protections of the Dover Amendment are not to be ‘limited only to those facilities closely analogous to traditional schools and colleges.’[citation omitted] ‘educational’  encompasses that which is ‘the process of developing and training the powers and capabilities of human beings.’ Mount Hermon Boys' Sch., supra. Thus, the Dover Amendment embraces fully “the idea that education is the process of preparing persons for activity and usefulness in life” 

In conclusion the Court, agreed with McLean and stated that “[a] determination whether the land and structures at issue here would be used for a predominantly educational purpose also does not, and should not, turn on an assessment of the population it serves. Although ‘emotional or psychiatric programs may determine the character of the training furnished to residents of the proposed facility,’ they certainly do not mark the facility as ‘medical’ or render it any less educational.”

STRIKE THREE:

Finally, I especially enjoyed the drama the played out in Penn vs. Town of Barnstable, 96 Mass. App. Ct. 205, 133 N.E.3d 846 (2019). The Town of Barnstable (a city containing a potpourri of neighborhoods and businesses) in the village of Hyannis, is the departure point of the ferries running to Nantucket. I can testify that historically, there has been a shortage of parking spaces within walking distance for the numerous ferry trips. Consequently, a cottage industry developed. Nearby property owners created parking spaces all over their yards. I spent $10 a day to park on a lawn in November.

The legislative branch of Barnstable is its 13 member elected town council. In 2013 the town conducted a study of commercial parking lots in and around Hyannis Harbor. Shockingly, not all the parking lots had any form of zoning authorization. The town council proposed a zoning amendment to create the Hyannis Parking Overlay District (“HOPD”).  “The overarching purpose of the amendment was to authorize ‘as of right’ operation of commercial parking lots on land within the HPOD that ‘ha[d] some legal pre-existing nonconforming status or [were] licensed as of May 1, 2014 as an open air parking lot involving the temporary storage of vehicles.” 

As required by MGL Chapter 40A Sec. 5, the planning board held a public hearing on the proposal (which voted four to one not to recommend) and on March 24, 2016, the town council took its own vote on the proposal, which on a seven to four vote, failed to pass for a lack of two-thirds support. Undaunted, the town council took the matter up again four (4) months later, notwithstanding the provisions of MGL Chapter 40A Sec 5 which state: “No proposed zoning ordinance or by-law which has been unfavorably acted upon by a city council or town meeting shall be considered by the city council or town meeting within two years after the date of such unfavorable action unless the adoption of such proposed ordinance or by-law is recommended in the final report of the planning board.”

Some minor modifications were made to the proposed bylaw, the planning board and the city council held a joint public hearing, and the planning board voted three to two to recommend approval, but the planning board failed to prepare a written report with recommendations (as required by the statute). The town council thought it was in the clear by first voting eleven to two that the new bylaw was “not a proposed zoning ordinance which has been previously acted upon unfavorably by the [t]own [c]ouncil”. A cynic might call that vote “somewhat self-serving.” Finally, the council adopted the slightly amended bylaw by a vote of eleven to two. 

Owners of homes adjacent to some of the parking lots included in the HPOD, filed a complaint for declaratory relief in the Land Court challenging the town council's adoption of the bylaw, on numerous grounds, including that it was invalid for failure to comply with the procedural requirements of MGL Chapter 40A Sec. 5. Item No. 2016-166. The judge allowed the plaintiffs' motion for summary judgment, and ultimately the town appealed.

The Appeals Court opined that “[t]he purpose of the two-year bar is to give some measure of finality to unfavorable action taken by a municipal legislative body so that ‘members of the public shall be able to ascertain the legislative status of a proposed change at all times, and to rely on unfavorable action ... as a complete defeat of the proposal.’ Kitty v. Springfield, 343 Mass. 321, 326, 178 N.E.2d 580 (1961) (discussing predecessor statute).”

“In Kitty the Supreme Judicial Court construed the two-year bar to apply to ‘any new action of the same character’ as a previously defeated proposal.  While no reported decision has addressed what it means for proposals to be ‘of the same character’ for purposes of G. L. c. 40A, § 5, sixth par., we are guided by cases decided in two analogous contexts.” The Court discussed cases pertaining to notice requirements in municipal hearing settings, and cases pertaining to initiative petitions,  and found that in those situations the courts have construed such provisions to “bar any measure that ‘affirms or negates essentially the same provisions [as a previous measure], with little or no substantive difference.’” 

Finally, the Court, using the analogous cases as guidance, concluded that the proposed bylaws shared “the same fundamental or essential character, with little substantive difference”, and concluded that the enactment of the bylaw was barred by the two-year prohibition contained in Section 5.

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.

Home Rule Meets Climate Change: New Wetlands Ordinance in Boston

Nathaniel Stevens

On December 23, 2019, the City of Boston joined the almost two-thirds of the Commonwealth’s 351 municipalities in having more

stringent requirements for work in and near wetlands, waterbodies, and floodplains.  Unlike many of those other municipalities, the explicit purpose of Boston’s wetlands ordinance is to address climate change, through adaptation and building resiliency.

A municipality has the power to enact a wetland ordinance (in a city) or bylaw (in a town) under its Home Rule authority, under the Home Rule Amendment to the state Constitution, as long as the provisions are more stringent than the state Wetlands Protection Act, G.L. c. 131, § 40  (WPA).  The Mayor of Boston signed this one December 23.

Being more stringent often includes regulating a greater geographic area than the WPA.  Like many other communities, Boston’s new ordinance regulates work proposed in isolated wetlands and vernal pools while treating the 100-foot Buffer Zone as its own wetland resource area. 

Boston in its new ordinance creates some new resource areas reflecting its concerns about climate change, including what are termed Inland and Coastal Flood Resilience Zones.  The Boston Conservation Commission is given the task of delineating them.  

Specifically, the Coastal Flood Resilience Zone, or CFRZ, is “the area of land beyond the current boundary of land subject to coastal storm flowage [100-year flood plain] or land subject to tidal action that the Commission determines has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to sea level rise (SLR) within approximately the next 50 years.”

The Commission is empowered to delineate the CFRZ on maps published after public hearing and comment.  The Commission can divide the CFRZ into sub-zones with different regulatory requirements. 

Similarly, the Inland Flood Resilience Zone or IFRZ, is “the area of land beyond the current boundary of land subject to flooding [caused by the 1%-chance storm] that the Commission determines has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years.”

Likewise, the IFRZ is to be delineated on maps published by the Commission and shall be consistent with other climate change planning documents used by other City officials.

The Commission also is given the authority to designate “Extended Riverfront Areas”, which enlarges to 200 feet the otherwise 25-foot wide Riverfront Area; the WPA sets a 25-foot wide Riverfront Area for several specified large cities and densely developed areas.

Procedurally, the Commission must “explicitly consider climate change resilience and impacts” in its decision to approve or deny a permit, by measuring the potential adverse impacts to wetland resource areas both as they currently exist and as are reasonably expected to exist “based on the best available data on the projected impacts of climate change.” 

The Commission is cautioned, however, not to use its newfound authority “to prevent beneficial projects whose primary purpose is protection of resource areas and reduction of risk from coastal flooding, inland flooding, extreme weather, sea level rise and other adverse impacts of climate change.”  The Commission can enact procedures to advance and expedite such projects.

Applicants before the Commission are to integrate climate change and adaptation planning considerations into their project to promote climate change resilience and promote resource area values.  Considerations include sea level rise, increased heat waves, extreme precipitation events, stormwater runoff, changing precipitation patterns and changes in coastal and stormwater flooding.   

Within the climate change planning considerations, the Commission may, through regulations or guidelines, require an applicant to address climate equity and environmental justice.

All eyes now turn from the City Council and Mayor to the Conservation Commission to see how it implements its many duties and opportunities under this wetlands protection ordinance, in new maps and regulations as well as permit-by-permit.

Boston’s new “Wetlands Protection and Climate Adaptation” ordinance can be found here in Section 7-1.4 of Chapter VII of the City’s Ordinances.  Here’s a link to the Mayor’s page concerning its enactment:  https://www.boston.gov/news/mayor-walsh-signs-local-wetland-ordinance

A member of the Association’s environmental law section, Nathaniel Stevens practices with the Boston firm of McGregor & Legere, P.C.  He represents 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.  Nathaniel can be contacted by email at nstevens@mcgregorlaw.com

MIXED-USE CONDOMINIUMS

By Angel Kozeli Mozina

In recent years, mixed-use condominiums have become an important part of the Greater Boston-area urban and suburban

landscape. Unlike a residential or a commercial condominium, a mixed-use condominium consists of both commercial and residential units which may be located within the same building or as separate buildings. One example is the Millenium Tower in Boston’s Financial District, which comprises a 60-story building with restaurants and a grocery store in the lower floors and residential units in the remainder of the building.  Another example of a mixed-use condominium is the Maynard Crossing development in Maynard, Massachusetts, which will consist of a mix of retail, office, restaurant, supermarket and residential buildings.

The co-existence of residential and commercial units in a mixed-use condominium presents a unique challenge and opportunity when drafting the governing documents.

 

ZONING AND USE

At minimum, a zoning/permitting analysis is essential before creating the mixed-use condominium. A preliminary review of the zoning ordinances or zoning by-laws should guide the scope and definitions of the use clause in the Master Deed.  Frequently, permits from the local zoning board are required and must be obtained before the development and construction can commence. 

The intended use of the commercial units must be described narrowly and in detail.  For example, the Master Deed could provide that the commercial units may be used for any lawful retail or office purpose, but not such uses that could adversely affect the residential units, such as a pet store.

Likewise, the use of the residential units must be covered separately.  Their use should be limited to residential purposes and perhaps a home office.  The home office should be limited to an accessory or ancillary use, subject to zoning and ordinance laws, with limited, both in time and frequency, foot traffic from clients and other business invitees.

A major issue in mixed-use condominiums is the tension between residential unit versus commercial unit owners in such matters as use, control, insurance, maintenance and repairs, and allocation of common area expenses.  The Master Deed, Trust, By-Laws and Rules and Regulations must address, and, when possible, provide concrete resolution mechanisms for such concerns.

THE TRUSTEES

The Condominium Trust should provide for both residential unit owner trustees and commercial unit owner trustees.  Two ways to accommodate and diffuse potential tension in joint governance are: 1) proportionate representation and/or 2) bifurcation of exclusive authority. In a building which predominantly consists of residential units, there could be more Residential Trustees than Commercial Trustees or vice versa.  The Residential Trustee(s) can be given the authority to act without the concurrence of the Commercial Trustees on those matters reserved in the Master Deed solely for decision by the Residential Trustees.  Likewise, the Commercial Trustee (s) could be given the authority to act without the concurrence of the Residential Trustees on those matters reserved in the Master Deed solely for decision by the Commercial Trustees.

LIMITED COMMON AREAS

The limited common areas or exclusive use areas of mixed-use condominiums must be defined clearly.  The limited common areas of the commercial units are different from the limited common areas of the residential units.  The limited common areas of the commercial units can be referred to as Limited Commercial Common Areas.  These would include exterior equipment, pipes and other facilities serving only the commercial units.

The limited common areas of the residential units consist of areas that serve only the residential units, e.g. entrances, stairways, patios, and lobbies. In addition, there will be common areas that serve the entire building or buildings, such as the garage of the building or an exterior parking lot.

Because there are common areas, limited residential common areas and limited commercial common areas, the Condominium Trust should provide for three budgets and the Condominium Trustees need the authority to create and adjust these budgets.

BENEFICIAL INTEREST PERCENTAGES

In a mixed-use condominium, percentage interests should be provided as follows:

• The proportionate interest of a unit in the common areas;
• The proportionate interest of a unit in the limited residential common areas; and
• The proportionate interest of a unit in the limited commercial common areas.

All units, residential and commercial, have a percentage interest in the common areas.  Only the residential units have a percentage interest in the limited residential common area.  Only the commercial units have a percentage interest in the limited commercial common areas.

The Massachusetts Condominium Statute, Chapter 183A, does not address the mixed-use form of condominium ownership.  Its hybrid structure is a creative and instrumental tool in reviving business and residential districts. In addition to permitting, financing, construction and marketing, carefully drafted governing documents play a crucial role in making this form of development and ownership a success.

Co-chair of REBA’s Condominium Law and Practice Section, Angel Kozeli Mozina is a director at Rackemann, Sawyer & Brewster, P.C. where she represents developers, lenders, borrowers, management companies, condominium associations, owners and tenants in a broad range of real estate and corporate matters.  Angel can be contacted by email at amozina@rackemann.com. 

CLEAN WATER ACT DOES NOT REQUIRE A PERMIT FOR DISCHARGES TO GROUNDWATER

By Luke H. Legere

No permit is required under the federal Clean Water Act (CWA) for the discharge of pollutants to groundwater that is hydrologically connected to navigable waters of the United States.  That is the upshot of the federal District Court’s recent ruling in the case of Conservation Law Foundation, Inc. v. Longwood Venues & Destinations, Inc., et. al., Docket No. 18-11821-WGY (D. Mass. November 26, 2019).  

Judge William G. Young accepted the Environmental Protection Agency’s (EPA) interpretation of the CWA as conferring no authority to regulate discharges to groundwater, regardless whether pollutants therein reach navigable waters of the United States.  This appears to be the first time a federal court has ruled on this question since the EPA issued its Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater, 84 Fed. Reg. 16,810 (April 23, 2019), which Judge Young determined to be a “permissible construction” of the statute.  The EPA’s policy statement will be codified at 40 C.F.R. pt. 122.

The facts are as follows. Defendants own and operate the Wychmere Beach Club, a seasonal resort complex on Cape Cod.  The club’s sewage is treated on-site, at a private wastewater treatment facility designed with a capacity of 40,000 gallons per day. The facility’s 22 leach pits sit within 100 and 500 feet of Wychmere Harbor and a narrow channel linking it to Nantucket Sound.  The defendants’ treated wastewater leaches from these pits to the groundwater, which flows toward the Harbor and channel.  

The defendants had received an Individual Groundwater Discharge Permit from the Massachusetts Department of Environmental Protection (MassDEP) – and apparently routinely violated that permit’s condition limiting the concentration of Total Nitrogen in Defendants’ effluent to 10 milligrams per liter – but had no National Pollutant Discharge Elimination System (NPDES) permit from EPA.  MassDEP’s February 2016 Total Maximum Daily Load (TMDL) calculation for Wychmere Harbor reflected “excessive nitrogen” levels, with 2-3 percent of that nitrogen (0.066 kilograms per day) attributable to the club.  

Plaintiff Conservation Law Foundation, Inc. (CLF) sued the defendants under the CWA’s citizen suit provision, alleging unauthorized discharge of pollutants (primarily nitrogen) to the waters of the United States, and failure to obtain a NPDES permit.  The defendants argued that their wastewater treatment facility and/or leach pits are not a “point source” under the CWA, and that discharges to groundwater are beyond the scope of the CWA, even if the pollutants discharged to groundwater ultimately reach navigable waters. 

The district court rejected the defendants’ first argument, finding that the club’s leach pits are point sources under the CWA because they convey wastewater from the facility to groundwater, and the rate of nitrogen discharge “is measurable to a high degree of accuracy”.  These facts led the court to distinguish the wastewater treatment facility and/or its leach pits from other features – like landfill and settling ponds – previously determined by other courts not to qualify as point sources under the CWA.

The court awarded the defendants summary judgment on the second argument, however, following “EPA’s interpretation and hold[ing] that discharges into groundwater are categorically excluded from the CWA’s regulatory regime, irrespective of any hydrologically connection to navigable waters.”  

In reaching this decision, Judge Young “afford[ed] Chevron deference to the agency’s interpretation” of the CWA due to the “apparent ambiguity in the statutory scheme as it relates to unpermitted discharges of pollutants into groundwater that is hydrologically connected to navigable waters.”  Readers may recognize Judge Young’s reference to the  U.S. Supreme Court case of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., (1984), which established that where a statute “is ambiguous on the precise question before the court, it is for the administering agency to supply a reasonable construction.”  

The court began by finding that the CWA is ambiguous on the issue presented, pointing to the statute’s lack of any “limiting principle” (noting that CLF’s interpretation of the CWA could “menace … millions of homeowners with stiff penalties” and/or “criminal prosecution … for flushing their toilets without a federal permit”), structure and legislative history (which “persuasively show that Congress deliberately opted to leave groundwater protection to the states under the CWA”), and balance between federal and state regulatory authority in eliminating water pollution.  

Judge Young then confirmed that Chevron governed the case before him, and that EPA’s Interpretative Statement was entitled to deference, because in his view Congress intended and would expect a reviewing court to defer to EPA’s interpretation of this aspect of the CWA.  He stressed that “EPA strongly suggests that it sees its [Interpretative Statement] as operating within Chevron … and may therefore override contrary judicial decisions in the Fourth and Ninth Circuits.”

Turning to the substance of the Interpretative Statement, the court determined that EPA had reasonably interpreted the CWA as leaving the regulation of discharges to groundwater to the states.  Where “EPA has apparently determined that navigable waters may adequately be protected without regulating any groundwater discharges under the CWA”, the “Court has no business second-guessing the agency’s professional assessment of on-the-ground environmental or regulatory needs.”

The court’s decision highlights the Circuit Court split on this question.  Specifically, the Fourth and Ninth Circuits have held that the CWA does require a permit for discharges of pollutants to groundwater that is hydrologically connected to navigable waters of the United States.  Meanwhile, the Sixth Circuit has ruled that the CWA does not require a permit for discharges that pass through non-point sources, including groundwater, before reaching navigable waters.

Stay tuned for the U.S. Supreme Court’s guidance on this issue of whether the CWA regulates point source discharges into groundwater that is hydrologically connected to navigable waters.  That is expected in a forthcoming decision on the case of County of Maui v. Hawaii Wildlife Fund, for which the Justices heard oral arguments in November 2019.  

Luke Legere is a partner with McGregor & Legere, P.C. in Boston. Since joining the firm in 2005, he has helped 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 solid waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting. Luke can be contacted by email at llegere@mcgregorlaw.com.