Boundaries in Massachusetts Property, Land Use, and Environmental Law, Where They Are, and How they Change

Gregor I. McGregor, Esq.

McGregor & Legere, PC

This is a fresh look at some traditional and modern Massachusetts doctrines and laws about the various kinds of boundaries which real estate clients and their counsel deal with in titles, transactions,

permitting, and litigation, but sliced differently on how they are determined, how they are subject to change, and how not to be surprised when they morph or move.

Click here for the full 30 page PDF

High Court Rules CERCLA Doesn’t Preclude State Law Claims for Contaminated Sites

By Luke H. Legere

In a recent decision with far-reaching implications for owners of contaminated property, the U.S. Supreme Court has ruled that the

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, often referred to as the federal Superfund law) does not preclude claims under state laws for further cleanup of contaminated sites. That is, Superfund does not prevent state court jurisdiction.

In a split decision (7-2) dated April 20, 2020, the Supreme Court decided that CERCLA does not preclude claims in state courts seeking additional cleanup of Superfund sites beyond what the federal Environmental Protection Agency (EPA) has required, and/or damages or other relief under common-law torts like nuisance, trespass, and strict liability.

The case, cited as Atlantic Richfield, Co. v. Christian, et. al., Docket No. 17-1498, 590 U.S. ___ (April 20, 2020), involved arsenic and lead contamination of more than 300 square miles of land in Montana by a smelter operated by Atlantic Richfield Company (ARCO).  For 35 years, EPA worked with ARCO to clean up the site. 

Specifically, the Supreme Court held that, although CERCLA §113(b) provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” the landowners’ case against ARCO does not “arise under” CERCLA.  Because it arises under state law, jurisdiction in the state courts is appropriate.

Therefore, state law claims may go forward in state court against a responsible party under Superfund. The upshot is that owners of contaminated property liable under Superfund also may be liable under state common law principles for remediation beyond what EPA has required, provided that the plaintiffs obtain EPA approval for the extra remedial work.

In 2008, 98 landowners within the ARCO Superfund site sued in state court, under Montana law, seeking damages and other relief for trespass, nuisance and strict liability claims.  The plaintiffs’ proposed a restoration plan that went beyond the cleanup efforts being implemented by ARCO.

Montana law allows a landowner to seek “restoration damages” or a monetary award to be used to finance the landowner’s plan for remediating the contaminated property.

The Montana state courts rejected ARCO’S arguments that CERCLA precludes state courts from hearing such restoration damages claims and prohibits landowners from taking any remedial actions without EPA approval. 

On review, the Supreme Court agreed that the Montana courts had jurisdiction to hear the state-law claims, but held that ARCO would be liable for the landowners’ remediation plan only if the landowners had obtained EPA approval to implement it. Because of the posture of this remedy, the Court left open an issue of whether Superfund preempts the type of state statute the plaintiffs were using for their claims.

Lawsuits over cleanups of contaminated sites – whether litigated under state or federal law – are typically complex matters in which parties spend great effort and expense to identify who is responsible, how much each responsible party must pay for remediation, and just how “clean” the site ultimately should be.

Prior to this decision, attorneys generally understood that state law claims could not be used to challenge cleanups overseen by EPA under CERCLA.  In addition, EPA settlements usually have set a limit on the responsible party’s liability under CERCLA.

Consequently, this Supreme Court ruling likely will lead to more – and more complicated – cleanup and cost recovery litigation.  It will encourage owners of properties within or near Superfund sites to sue under state law, in state courts, for additional or different remedial actions, monetary obligations, and natural resource damages where previously that was not seen as a viable option.

The Supreme Court’s decision also may encourage citizen groups, without ownership interest in affected properties, to sue in state courts to enforce state Superfund and other pollution laws.  In Massachusetts – as in about a dozen states – resident groups can sue alleged violators to enforce state environmental requirements, such as in M.G.L. c. 21E, using the so-called 10-citizen-suit statute. M.G.L. c. 214, §7A.

To summarize, the ARCO case holds that, while CERCLA does grant federal courts exclusive jurisdiction to hear claims brought under the Superfund law, federal courts do not have exclusive jurisdiction over all lawsuits concerning Superfund sites.

State courts have jurisdiction to entertain state-law claims involving Superfund sites that are under EPA’s purview, such as landowner claims for traditional legal wrongs, additional types of remedies, and even money damages related to a landowner’s own EPA-approved remediation plan.  

Stay tuned to learn what such a new EPA approval process may look like, what discretionary authority EPA may have in weighing requests for additional state remediations, what new litigation the ARCO case prompts over this federal-state relation, and what the federal courts do with preemption issues the Supreme Court left open. 

A member of the Association’s Environmental Law Section and frequent contributor to REBA News, Luke Legere is a partner with McGregor & Legere, P.C. He helps 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 waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting.  Luke can be contacted at llegere@mcgregorlaw.com. 

My Cousin Vinnie’s Observations During a Pandemic

Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, has been going to his office (alone) everyday during the pandemic. He is

pleased that he is considered to be “essential”. He sent me an email with the following unrelated observations:

It has been more than delightful to hear from collegial friends like Ed Rainen, Karen Johnson and others with new client referrals during these dreary days.

Our home builder clients are essential businesses and they, and their brokers and crews, continue to put homeowners together with new homes. God bless them all.

Almost everybody has been patient and understanding with the complexities involved in providing services, and the precautions involved in performing closing transactions.

I am glad that REBA is keeping track of the emergency legislation and working on ways to keep business moving forward.

My reduction in income has been offset from savings from restaurants, sporting events and travel. I feel bad for my dry-cleaner.

I was surprised to find attorneys with fancy downtown addresses that needed more time to respond to my case citations in memorandums because their only access to legal research materials was within the now-closed courthouse law libraries. Huh?

Conference calls that should take 20 minutes take an hour because everyone on the call is thrilled to have some form of human contact, and they don’t want it to end.

I have a suggestion on how people can spend some of their spare time: order some new casual clothes on-line. Too many people on Zoom meetings look like they are dressed for gardening.

From the video conferences I have learned that a lot of people have very nice kitchens with custom cabinetry and tray ceilings.

I learned how to insert fake photos into backgrounds in a Zoom conference; so now it looks like I have a 5,000 sq ft kitchen, overlooking the ocean.

Some towns were early adopters to using video conferences for public hearings. Some other towns, not so much. I found my local planning board to be empathetic that applicants had been waiting for many weeks for a hearing, and they did whatever they could to move the process forward.

I spent a weekend binge watching Massachusetts corruption on TV, and now I find it hard to distinguish between the fiction in “City on a Hill”, and the non-fiction in “How to Fix a Drug Scandal”. 

Although I am glad that Chapter 53 of the Acts of 2020 was enacted to deal with some of the land use permitting issues, I am concerned about the potential implications of the provisions which state: “..a permit granting authority may contest the completeness of an application at the time of filing if the application is ultimately denied by the permitting board on other grounds or if the permit is ultimately appealed by the applicant.”

I need a haircut.

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.

HUD'S Guidance on Assistance Animals

Katherine G. Brady

Earlier this year, HUD issued long-awaited guidance to housing providers on assessing reasonable accommodation requests for assistance animals.

Under federal and state fair housing laws, housing providers, including community associations and

landlords and their agents, are required to provide a change to a rule or policy when such an accommodation is necessary to afford a disabled person equal opportunity to use or enjoy their housing. Allowing an assistance animal in a “no pets” building is a common example. In recent years, requests for assistance animals have increased and boards and managers frequently inquire, what documentation can I request? Are online certificates acceptable documentation of a disability and/or disability-related need? What types of animals must we allow? Ferrets? Pitbulls? What if the assistance animal damages the common areas? The new HUD guidance attempts to address some of these questions and provide best practices on assessing reasonable accommodation requests for an assistance animal. (HUD’s FHEO Notice-2020-01 can be accessed by clicking on this link. HUD’s Fact Sheet on HUD’s Assistance Animals Notice can be accessed by clicking on this link).

In recent years, requests for assistance animals have increased and boards and managers frequently inquire, what documentation can I request?

Assessing a Request

The guidance from HUD is framed around 8 questions intended to provide a roadmap for evaluating a request for a reasonable accommodation for an assistance animal, which includes both service animals and other support animals.

To begin, HUD starts with questions to determine if the animal is a service animal: a dog that is trained for the benefit of an individual with a disability. (Questions 1-3). Service animals are protected not only under Fair Housing Laws, but also allowed entry into places of public accommodation under the Americans with Disabilities Act (ADA).

More often, boards and managers receive requests concerning a support animal/comfort animal/companion animal (or other type of assistance animal). We, therefore, turn and dive more deeply into the steps (Questions 4-8) and the guidance HUD offers in evaluating those requests:

The Ask.

There must be a request for an accommodation.

HUD’s guidance includes a publication of information for residents seeking an accommodation for assistance animals that should be available to residents, but boards and managers cannot mandate that residents use it to make a request. As we have advised boards and managers in the past, you cannot mandate the use of any specific form. A request does not have to be in writing; nor must it include the words “reasonable accommodation.” It can even be made by someone other than the individual needing the accommodation. Furthermore, the request can be made at any time: before or after move-in, before or after acquiring the assistance animal, before or after a notice of violating a pet-restriction is issued (although the last one will incur a certain presumption against the requestor).

Disability.

The resident for whom the request is being made must have a disability and a disability-related need for the accommodation.

• Does the person have an observable disability or does the housing provider (or agent making the determination for the housing provider) already have information giving them reason to believe that the person has a disability? (Question 5).

• If no, has the person requesting the accommodation provided information that reasonable supports that the person seeking the accommodation has a disability and/or disability-related need? (Question 6).

• If yes to either of the above bullets, has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance and/or provides therapeutic emotion support with respect to the individual’s disability? (Question 7).

A common source of frustration has been determining what documentation of a disability and disability-related need is sufficient and reliable. In particular, the proliferation of internet certificates has drawn ire and skepticism. HUD took note and has stated that documentation from the internet (like websites that sell certificates and registrations) is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal. A health care professional, with personal knowledge of the individual, however, could provide sufficiently reliable documentation to establish a disability or disability-related need, even if the health services are delivered remotely, including over the internet. The key question here is does the internet documentation (or any documentation for that matter) provide an indication that there has been a personal assessment of the disability or disability-related need such that is sufficiently reliable. When it comes to an online certificate mill, HUD’s guidance helps us answer that question, “no.”

As always, before denying a reasonable accommodation due to lack of information about an individual’s disability or disability-related need for an assistance animal, boards and managers should engage in a good-faith dialogue with resident, including pointing them to HUD guidance for individuals on making a request.

Excessive Burden. While cats and dogs are the most common type of animal for which a request is made, we know board and managers have seen the gamut of requests from monkeys to snakes to ferrets and every creature in between. What if the proposed animal poses a direct threat, danger or excessive burden? The new guidance from HUD separates what it terms “animals commonly kept in households” and “unique animals”

• Is the animal commonly kept in households? (Question 8)

If the animal is not one that is commonly kept in households and is a “unique animal,” then HUD states that requestor has the substantial burden of demonstrating a disability-related therapeutic need for the specific animal or type of animal. Reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals fall into the category of “unique animals.”

On a related note, another frequent question is whether a board can charge a fee for the animal. The guidance in this regard remains the same and clear: assistance animals are not pets and residents cannot be charged a fee (or deposit). Charges for damages caused by assistance animals are acceptable, provided that the damages are assessed in a manner consistent with how they otherwise chargeable to a resident.

Bottom Line

This guidance, at long last, helps provide some clarity on how to assess the reliability of internet documentation and process unusual animal requests. That said, while the recent guidance is helpful, we know questions about how to apply and assess accommodation requests will persist given their highly fact-specific nature. If you have any questions about a request you have received or how best to operationalize the latest guidance from HUD into your board or management practice, contact us.

An associate in the Boston and Braintree firm of Moriarty, Troyer & Malloy LLC, Kate  Brady possesses  years of experience in condominium and real estate litigation and recognized expertise in fair housing, affordable housing and the myriad of statutes and regulations which apply. In her litigation practice, Kate has handled complex transitional litigation including phasing disputes, construction defect claims and related matters. Kate can be contacted at kbrady@lawmtm.com.