Dead Man's Curve: Pitfalls for Probate and Real Estate Practitioners (Video)

The Zoning Act for Beginners: A Primer & Overview (Video)

Kate M. Carter

Robert K. Hopkins

News from Beacon Hill

Edward J. Smith

On April 25 the House of Representatives approved the FY2020 state budget recommendations of its Ways and Means Committee,

after a series of amendments that resulted in a total appropriations authorization of $42.7 billion for the fiscal year beginning July 1, 2019. 

Included was a hefty increase in the appropriation for the Massachusetts Legal Assistance Corporation.  The House increased the appropriation recommended by Governor Baker from $21 million to $23.6 million.

As is typical in this process, several finance-related changes in the General Laws were included.  Among them is an expansion of the conservation land tax credit, which was first authorized to take effect in 2011. According to the amendment’s lead sponsor, Representative Bradley Jones (R-North Reading), the tax credit on land donated to the commonwealth has helped protect 12,000 acres. The amendment would increase the present $2 million cap gradually by $1 million each year, starting in Jan. 1, 2020, to $5 million. There are said to be a number of applications pending throughout the commonwealth that would benefit from the amendment.

The House-passed budget bill (H. 3800, as amended) would increase the Registry of Deeds recording fee surcharge that supports the Community Preservation Act Trust Funds.  As conceived when the CPA was first passed in 2000, any community that approves a special property tax surcharge dedicated to CPA purposes was to receive matching funds from a Trust Fund that aggregates the Registry surcharges.  The amount of the registry surcharge has been $20 for most instruments since the CPA was passed in 2000.  Effective December 31, 2019, the pending legislation would increase that surcharge to $50 per instrument, except for MLC’s, which would increase from $10 to $25.  Also approved in the House recommendations for the FY2020 budget is an extension to 2025 for the funding of registries of deeds technology efforts from a dedicated $5 special recording fee surcharge. 

The Senate will take up the budget bill in May.

Other finance-related bills of interest to conveyancers and their clients are still in committee.  Governor Baker has proposed S.10, to increase by 50% the amount of the deeds stamps to fund a Global Warming Solutions Trust Fund to assist communities in infrastructure resilience projects and risk mitigation.  Other bills would authorize local option adoption of special real property transfer taxes to fund the creation of affordable housing. (S.773, S.799, H.1769, H.2425, H.2552) 

This REBA Blog posting was authored by Edward J. Smith. Ed Smith has served as legislative counsel to the Association since 1987.  He can be contacted by email at ejs@ejsmithrelaw.com.

Navigating D&O and Related Insurance Claims: Steps to Take and Avoid

The Case of Smyth v. Falmouth on Regulatory Takings

Smyth v. Conservation Commission of Falmouth

PowerPoint

Chapter 527 – Check Before You Convert!

By Angel K. Mozina

The number of residential buildings in the Greater Boston area being renovated and converted into condominiums continues to increase by the day.  Developers and owners should be aware of the

Massachusetts Condominium Conversion Law (Chapter 527 of the Acts of 1983) when planning to convert these occupied rental buildings.

Chapter 527 applies to every municipality in Massachusetts unless a municipality has adopted its own ordinance or by-law covering condominium conversions. A municipality, such as Boston, may adopt a law, which is more stringent or less stringent than Chapter 527. In addition to Boston, the following municipalities are among those that have adopted by-laws or ordinances:  Abington, Acton, Amherst, Brookline, Haverhill, Lexington, Malden, Marlborough, New Bedford, Newburyport, Newton (under special circumstances), and Somerville.  Many others, such as Cambridge, could join the list soon. A few of these municipalities have statements in the ordinances or by-laws that specifically state that Chapter 527 and the local ordinance or by-law both apply to condominium conversions. 

Buildings of less than four (4) residential units are exempt.  In determining whether the four (4) units minimum is met, units in two (2) adjacent buildings with common ownership will be added together. Also exempt is any building that has not been used for residential purposes for at least one year prior to an owner’s filing a master deed for a condominium.

Chapter 527 imposes the following conditions precedent to condominium conversions:

1)      Notice of Conversion:

A tenant is protected if there is merely an intent to convert.  An intent to convert arises when, for example, a Master Deed along with Purchase and Sale Agreements are prepared, or if there are inspections, measurements, surveys, showings, advertising, etc. 

The converter must notify tenants by certified or registered mail of the filing of a Master Deed and of the owner’s intent to terminate their tenancy and their rights under Chapter 527. Most tenants have one (1) year before they must leave.  Three categories of protected classes have two years or longer (up to two more years) if they cannot find comparable rental housing in the same municipality:

a)         Handicapped tenants;

b)         Elderly tenants (over 62); and

c)         Low or moderate income tenants

Chapter 527 prohibits evictions for the purpose of converting a building to condominiums.  However, a tenant may still be evicted for any violation of the lease, including non-payment of rent, provided that this is not merely a pretext for a condominium conversion eviction.

2)      A limit on rent increases:  CPI or ten percent (10%), whichever is greater.

3)      Right of “First Refusal”:  a Tenant has a ninety-day period to purchase on the same as or more favorable terms than those that will be extended to the general public.  If not interested, Tenants must execute a waiver of their right to purchase a rental unit.  Such a waiver should state that a Tenant received a purchase and sale agreement executed by the owner of the apartment building and that the Tenant was notified that the terms and conditions of the agreement were substantially the same as or more favorable than the terms and conditions offered to the general public during the ninety day purchase period.

4)      Relocation payments:  Seven hundred fifty dollars ($750.00) for the tenant, unless Tenant is a “protected tenant,” in which case it is one thousand dollars ($1,000.00).  This is a mandatory payment if the tenant owes no rent or moves out before the conversion date on the notice.

5)      Penalties:  Fine of not less than one thousand dollars $1,000.00) or imprisonment of not less than sixty (60) days for not complying with the statute.

LOCAL ORDINANCES OR BY-LAWS:  As stated above, local ordinances can provide for more stringent conversion requirements instead of or in addition to Chapter 527. For example, the Boston ordinance gives elderly, handicapped and low income tenants five (5) years’ notice but says that the notice period may be extended by future legislation.  This could mean that a Tenant in a protected class in Boston could conceivably be protected indefinitely. Consequently, ordinances like Boston’s may lead owners to try not to rent to this protected class if the owner intends at some point in the future to convert the building.

A municipality, such as the City of Newton, may not have a separate ordinance or by-law covering condominium conversions.  If a special permit has to be obtained from the Board of Aldermen to build more than 3 units in a dwelling, conversion to condominiums may not occur without obtaining an additional special permit from the Board of Aldermen.  Therefore, conversions in Newton are governed by both Chapter 527 and the requirement of an additional special permit!

It is important that developers be mindful of Chapter 527, local ordinances and their timeline restrictions.  If and when possible, Units should be vacant before the intent to convert arises in order to be able to convert and sell Units free of statutory and ordinance requirements.

Co-chair of REBA’s Condominium Law and Practice Section, Angel 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.

Municipalities Use Local Regulations to Address Climate Change

by Nathaniel Stevens, Esq. 

 Coastal as well as inland communities in Massachusetts increasingly are looking to their local wetland permitting laws and regulations as one place to help build climate change resilience. 

About half of the 351 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance

(collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act (the “WPA”). 

Some of these communities already have provisions that address climate change.  Others are contemplating amending their existing bylaws and regulations to do so.  Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community.  To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA.  Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation.  It also might mean regulating a greater geographic area than the Act, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland).  It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00). 

These are but a few of the myriad of ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review.

 

For instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years.  Hingham has a similar requirement, but also applies it to projects proposed in the velocity zone (“V-zone”).  Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence” such as from the Intergovernmental Panel on Climate Change be used.  Falmouth has one rate (“at least” 1 foot per 100 years) for work in AE-zones and a higher rate (“at least” 2 feet per 100 years) for work in the VE-zone.

As sea levels rise, coastal wetland resource areas are predicted to shift landward.  Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain.  The lowest floor of a structure in a FEMA-mapped AE-zone must be at least 1 foot above the base elevation, and the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission.  Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater.   Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Inland communities are also using their wetland permitting programs to build climate change resiliency.  The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.” 

An applicant must address in a narrative:  1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts.  With the introduction of new terms, the Commission added the definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience.”

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance.  Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them.  For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain.  “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible.  Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts. 

In conclusion, Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities, but are turning to their own wetland regulations. 

Nathaniel Stevens is a Senior Associate at McGregor & Legere, P.C. in Boston where his practice focuses on land use and environmental law and related litigation.  He is also the Chair of the Town of Arlington Conservation Commission.

My Cousin Vinnie Reminisces About Bullies He Has Dodged.

Paul F. Alphen, Esquire

My cousin Vinnie, the suburban real estate attorney, made his annual trek to Falmouth to watch me work on my boat. My old

body was contorted in the bilge performing the reoccurring ritual of replacing important corroded parts, and he had his feet up on a padded chair sipping an ale brewed in nearby Mashpee. I enjoy our time together because it provides me some assurance that I am not crazy, relatively speaking.

“Paulie…”, he said after pouring a fresh golden ale, “I am thinking about retiring in the next five years or so.”  I reminded Vinnie that he has been saying that for ten years, and then we reminisced about how we look at things differently than we did thirty-odd years ago. “Vinnie” I asked, “What do you wish you knew then, that you know now?”

“Where do I begin?” He barked. “I’ve learned a lot of lessons, many of them the hard way. But clearly the most important lesson I learned was not to succumb to the pressure tactics of bullies attempting to get me to compromise my knowledge or my ethics. Part of the reason that I became an attorney is that I know that I ‘do not suffer fools gladly’, and it is always a pleasure to interact with knowledgeable counsel and skilled businesspeople, but bullies are another story.

“When I was just starting out in practice, I ran into quite a few bully clients that wanted me to engage in one questionable thing or another so they could make more money. As a former Boy Scout, I did my best to hold my ground. I quickly learned that some bullies shopped around looking for young lawyers that they could bamboozle. Remember that guy who ended up in federal prison?”

I knew immediately who Vinnie was referring to. A slick guy with expensive cars, later to be named by the feds as one of the greatest white-collar criminals of the 1990’s, found Vinnie’s office and unsuccessfully attempted to convince Vinnie to become his personal consiglieri. Vinnie’s internal radar told him to run. “Vinnie” I said, “You know even his wife and eventual attorney pleaded guilty to bank fraud in 1994. You could have ended up in a federal prison like Michael Cohen!”

“Paulie” Vinnie quietly said, “Most of the bullies I encountered have since passed away, or filed for bankruptcy. The extra dollars they chased are no good to them now. With few exceptions, even though the bullies were angry with me at the times when I said ‘NO’, they stuck with me. I would like to think that internally they respected my desire to do the right thing, and decided that it was in their best interests to have trustworthy counsel. At least that’s what I would like to think.”

Contorted, in the bilge, I repeated: “The dollars they chased are no good to them now.”

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

SJC Holds that Grandfathered Structures May Increase Nonconformity with Only a Finding

By Kimberly Bielan

Earlier this month, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision holding that, pursuant to the statute

Kimberly Bielan

governing modification of grandfathered (i.e., preexisting nonconforming) structures, the dimensional nonconformities of one- and two-family residential structures may be increased upon a finding that there will be no substantial detriment to the neighborhood. The decision is significant because the SJC explicitly determined that such structures need not obtain a variance, notwithstanding the fact that a nonconformity is being increased – that is, rendered more noncompliant with the existing zoning by-laws. The case hinges on the SJC’s interpretation of what it describes to be the “difficult and infelicitous” language contained in the first paragraph of G.L. c. 40A, § 6, which is the statute governing preexisting nonconforming structures and uses in the Commonwealth.

The decision is significant because the SJC explicitly determined that such structures need not obtain a variance, notwithstanding the fact that a nonconformity is being increased – that is, rendered more noncompliant with the existing zoning by-laws.

In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), homeowners in Brookline sought to modify the roof of their two-family house to add a dormer. The home was on an undersized lot, and the sole preexisting dimensional nonconformity of the structure was its floor area ratio (FAR). While the zoning by-laws required an FAR no greater than 1.0, the structure’s existing FAR was 1.14; the proposed addition, though modest in nature, would further increase the nonconformity to 1.38. The homeowners applied to the Zoning Board of Appeals of Brookline (“Board”) for a special permit (which incorporated the finding of no substantial detriment under the local zoning by-laws), which was granted. Certain abutters to the property appealed to the Land Court pursuant to G.L. c. 40A, § 17, arguing that the homeowners were also required to obtain a variance because the modification would increase the nonconforming nature of the structure. The Land Court rejected the argument and affirmed the Board’s decision granting the special permit. On appeal, the SJC granted the petition for direct appellate review.

In its decision, the Court held that “the statute requires an owner of a single- or two-family residential building with a preexisting nonconformity, who proposes a modification that is found to increase the nature of the nonconforming structure, to obtain a finding under G.L. c. 40A, § 6, that ‘such change, extension or alteration shall not be substantially more detrimental tha[n] the existing nonconforming use to the neighborhood.’ The statute does not require the homeowner also to obtain a variance in such circumstances.” In reaching such conclusion, the SJC first analyzed the statutory framework (noting, again, that the “language of G.L. c. 40A, § 6, has been recognized as particularly abstruse”) and legislative history, recognizing that the Legislature intended to afford greater protections to one- and two-family residential structures under the Zoning Act.

Accordingly, the Court endorsed the framework previously set forth

by the Appeals Court in Willard v. Bd. of Appeals of Orleans,(1987). Under this approach, there must be an initial determination by the permitting authority to “identify the particular respect or respects in which the existing structure does not conform to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in new ones.” If the answer to this question is “no”, then the applicant is entitled to a permit to proceed immediately with the proposed alteration. If, however, the answer to the question is “yes”, then the homeowner must obtain a finding (often, but not always, incorporated into a special permit requirement in municipal zoning by-laws) that the proposed modification will not be “substantially more detrimental to the neighborhood.” As the SJC stated, it is “[o]nly if a modification, extension, or reconstruction of a single- or two-family house would ‘increase the nonconforming nature of said structure’ [that it must] ‘be submitted … for a determination by the board … .” There is no requirement that a homeowner obtain a variance when increasing a preexisting dimensional nonconformity.

The practical implications of the Bellalta decision are, in some respects, confounding, and an example is likely helpful. Suppose a town’s zoning by-laws require a ten (10’) foot side yard setback, and there is an existing structure that is eight (8’) feet from its side property line at the time the by-laws become effective. Such structure would be considered lawfully preexisting nonconforming, and the homeowner would be able to maintain the structure in its present location. Under the Bellalta decision, if the homeowner proposed to modify this structure, he or she could further expand into the side yard setback; that is, he or she could further encroach into the side yard and, for example, build five (5’) feet from the property line upon receipt of a finding that such construction would not be substantially more detrimental to the neighborhood. At the same time, a homeowner on a neighboring property, whose structure complies with the ten (10’) foot side yard setback, would not be able to expand further into the side yard. Instead, because the second homeowner’s structure is compliant with the zoning by-laws as adopted, a variance would be required. The difference is substantial, as the showing for receipt of a variance is much more rigorous than for a finding.

While the Bellalta decision definitively answers the relief necessary for a one- or two-family preexisting nonconforming structure under G.L. c. 40A, § 6, it may incite the Legislature to finally address the difficult language contained in the first paragraph of the statute. At the same time, there are certain limitations to the decision. The holding is applicable only to single- and two-family dwellings and is inapplicable to commercial structures. In addition, the Court declined to address the issue of what relief would be necessary when there is the creation (rather than a modification, extension, or reconstruction) of a new nonconformity.

1 As the SJC explained in Bellalta, a “preexisting nonconformity is a use or structure that lawfully existed prior to the enactment of a zoning restriction that otherwise would prohibit the use or structure.” Effective November 2016, structures that have been constructed (even without benefit of a building permit or otherwise in noncompliance with applicable zoning by-laws) and not subject to an enforcement action for a period of ten (10) or more years will also be treated as preexisting nonconforming structures, entitled to the protections of G.L. c. 40A, § 6.

Co-chair of REBA’s strategic communications committee, Kim Bielan is an associate in the litigation and zoning and land use departments of Moriarty, Troyer & Malloy LLC. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She can be contacted by email at kbielan@lawmtm.com.

SJC Ruling Clarifies Procedures for Claims Against a Target Mechanic’s Lien Bond

By Hugh J. Gorman III, Esq.

The Massachusetts Supreme Judicial Court’s decision in City Electric Supply Co. v. Arch Insurance Co. SJC-12561 (3/29/19) clarifies whether a claimant seeking to enforce claims against a target mechanic’s lien bond must record a copy of its complaint in the registry of deeds pursuant to the

Massachusetts Mechanic’s Lien Statute, M.G.L. c. 254 et seq, in order to pursue its claim against the bond

.

The City Electric Supply Co. case arose after the plaintiff electrical supplier recorded a mechanic’s lien on real property in Brookline. The project’s general contractor obtained and recorded a target lien bond to “bond off” City Electric’s mechanic’s lien.  M.G.L. c.254, §14 provides that once the target lien bond is recorded, the lien is “dissolved.”

Plaintiff, City Electric then sought to enforce its claims against the target lien bond by timely filing an action in the Superior Court pursuant to the Massachusetts Mechanic’s Lien Statute, M.G.L. c. 254 §14. Although the plaintiff properly served its complaint on the defendant, the plaintiff did not record a copy of its complaint in the registry of deeds within thirty days of commencing the action. The defendant moved for summary judgment, arguing that the statute required the plaintiff to record an attested copy of its complaint to enforce its target lien bond claim in the registry of deeds within thirty days of filing the complaint and the plaintiff’s failure to comply with this provision of the lien statute was fatal to its claim.  A judge in the Superior Court agreed and allowed the defendant’s motion for summary judgment.  The Supreme Judicial Court granted the plaintiff’s petition for direct appellate review.

The Supreme Judicial Court vacated the order granting summary judgment, and held that a party seeking to enforce claims against a target lien bond pursuant to M.G.L. c. 254 § 14 is not required to record a copy of the complaint in the registry of deeds as a condition precedent to asserting a target lien bond claim. Although the Court recognized that § 14 of the statute must be read in conjunction with §5 which requires recording of a complaint in the context of a mechanic’s lien enforcement action, the Court refused to imply such a requirement in a case where a target lien bond has been posted.  In its decision, the Court noted that requiring a party to record a complaint to enforce a claim against a target lien bond “would not support the (statutory) goal of ensuring that a person searching the land records in a registry of deeds can determine with certainty whether or not title to a particular parcel of land is encumbered by a mechanic’s lien.”

The City Electric decision puts to rest any existing confusion as to whether in a target lien bond context, the party asserting the bond claim must pursuant to G.L. c.254, §5, record an attested copy of its complaint in the registry district where the real property in question is located to validate and pursue its bond claim.

Co-chair of REBA’s Construction Law Section, Hugh J. Gorman focuses his practice on construction law, creditors’ rights, and general business litigation.  As Chair of Prince Lobel’s construction law group, Hugh brings to the firm more than 25 years of experience working with general contractors, developers, owners, subcontractors, and suppliers who depend on his expertise and advice in all aspects of private and public construction law and claims. Hugh can be contacted by email at  hgorman@princelobel.com.

Is Your Association Climate Ready?

By Katherine Brady

Extreme temperatures, precipitation, and storms along with rising sea levels are major climate risk factors with which many Boston associations will be forced to contend in the upcoming years and

decades. Associations must learn to assess the risks of climate change, and the extreme weather events that are a byproduct, and develop strategies to prepare their properties accordingly. The strategies for addressing these challenges can be segmented into three parts: neighborhood planning, climate-ready and resilient buildings, and emergency preparedness.

STRATEGIES

Neighborhood Planning

The climate risks faced are in many ways too large for one association or property owner to face alone; they demand community solutions. In January, the City of Boston launched Climate Ready Downtown and North End and held its first community meeting on March 12th to further study the impact on the area and discuss protective measures. The community planning process is an opportunity to provide feedback about potential solutions and priorities, including elevated pathways, adaptive buildings, stormwater gardens, stepped edges, flood walls, breakwaters and coastal marsh. The next public session will likely be in May or June. At risk associations and property owners should participate in neighborhood planning by attending meetings, providing input on proposed solutions (which can be done by responding to online surveys or e-mail, if you cannot attend a meeting in person), or becoming a neighborhood leader. No one knows the neighborhood better than the people who live there and how one proposal versus another could impact day-to-day living. The City anticipates that, by the end of the year, it will release a final report with draft designs and an implementation plan for the City and its partners in downtown Boston.

Climate Ready Boston is not limited to downtown. The City expects to kick off Climate Ready Dorchester this summer and there is ongoing planning about the future of Moakley Park in South Boston. There are also planning documents available for Climate Ready Charlestown and East Boston.

Climate-Ready and Resilient Buildings.

Associations can also begin to incorporate climate-ready strategies into their building maintenance plans. There are some basic techniques that associations can explore to see if they make sense for their own properties.

If there is a planned or upcoming renovation, associations can inquire about flood-resistant materials and additional efficiency measures to maintain a high-performance building envelope. For associations comprised of older buildings it may make sense to increase the size of downspouts and gutters to handle increased precipitation loads. Any size building can explore whether the roofing materials adequately support cooling, harness as much energy as possible for the building and support water diversion in the event of extreme heat or storms.

Associations should also research flood-proofing and flood resiliency techniques if they are in areas particularly flood-prone or at flood-risk. Wet flood proofing prepares existing buildings to allow floodwaters to pass through them -- flood vents are an example. Elevating critical mechanical equipment can be a component wet flood-proofing. Dry flood proofing makes existing buildings weather tight so flood waters cannot pass through. This can be done through wall reinforcements and sealants. Buildings may also benefit from backwater preventers, which block wastewater from flowing into the home in the event rising water causes sewers to overflow. Deploying flood barriers or installing retractable flood gates, while more common for large commercial spaces, may nonetheless be appropriate depending on a buildings’ location.

If there are any questions about whether climate-ready or flood-proofing work at your association will constitute a repair or improvement, ask an attorney. While the selection of climate resilient materials or methods for a project will not likely change the nature of the underlying project (repair vs. improvement), the installation of a new system (i.e. a new green/living roof, solar panels, etc.) may constitute an improvement requiring unit owner vote or other compliance with expenditure controls in your governing documents.

One initiative for climate-readiness identified by the City of Boston is to establish a program and resources for property owners to audit their own climate-readiness. MTM will monitor this initiative’s progress and any useful output or tools for associations that are developed.

Extreme Weather Preparedness.

Finally, there are strategies and concrete steps that an association can take to prepare for discrete extreme weather events. Here is a basic action list to get you started:

▪ Maintain up-to-date owner contact information.

▪ Streamline the distribution of emergency information and receipt of damage reports.

▪ Create a protocol for evacuation and sheltering in place.

▪ Send seasonally appropriate unit maintenance reminders.

▪ Verify the association has adequate insurance coverage.

▪ Recommend or require unit owners to maintain appropriate insurance.

▪ Keep on-site physical records in a safe location and back-up electronically.

▪ Evaluate and identify alternate security and power needs and sources.

▪ Identify special population risks (elderly or infirm/accessibility needs/limited English proficiency/households with service animals) and services that you can access in the event of an emergency.

▪ Stock emergency supplies.

▪ Train staff on emergency preparedness, management and response.

▪ Know external and government agencies that may be able to assist before, during or after an extreme weather event: Boston Fire, Boston Office of Emergency Management (OEM), Massachusetts Emergency Management Agency (MEMA); the Federal Emergency Management Agency (FEMA); and the Red Cross.

If an extreme weather event is approaching do not forget to:

▪ Remove or secure common area patio furniture, garbage cans, awnings and other loose ground items that could be damaged or become a projectile.

▪ Check that generators, alarms and other critical services are operable.

▪ Confirm that outdoor equipment such as air conditioners, antennas, signs and other mounted equipment are secure.

▪ Inspect and clear downspouts, drains and gutters.

Should you have any questions regarding climate-ready planning in Boston please do not hesitate to contact Kate Brady at 617-934-4550 or by email at kbrady@lawmtm.com.

Thorny Issues for Massachusetts Condominium Practitioners (Video)

Adato v. 234 Beacon Street Condominium Trust, Slip Copy

A Condominium Parking Space: Owner’s Delight and Plight 

AAB Board interpretations (from AAB website)

521 CMR 23.00: PARKING AND PASSENGER LOADING ZONES

521 CMR 5.00: DEFINITIONS

521 CMR 10.00: PUBLIC USE AND COMMON USE SPACES IN MULTIPLE DWELLINGS 

Northwest Fair Housing Alliance

MICHAEL RAUSEO, trustee, [Note 1] vs. BOARD OF ASSESSORS OF BOSTON