Appeals Court Applies Shoreline and Easement Principals to Great Ponds

 Michael J. O’Neill

For anyone contemplating using a right-of-way to reach a Great Pond in Massachusetts, two must-read Appeals Court decisions are Kubic

v. Audette, 98 Mass. 289 (2020) (Kubic I) and Kubic v. Audette, 102 Mass. App. Ct. 228 (2023) (Kubic II). They explain the principle of ownership of accreted land bordering a Great Pond, the rights and limits of access to a Great Pond, the tests for overburdening of an easement, and the proper interpretation of easements. The result is respect for but reasonable limits on use of an easement to reach a Great Pond, reflecting both the intent of the parties in creating the original easement, as well as the traditional limits on uses of a Great Pond itself. Recall that a Great Pond is defined as a natural pond the area of which is twenty acres or more. G.L. c. 131, § 1.

 

Plaintiffs Vince Kubic and Paul Kubic own adjacent lots separated by a 50-foot-wide unpaved right of way that extends from the street to Webster Lake, which is a Great Pond.  This is the lake with the Native American name that is reputed to be the longest: Lake Chaubunagungamaug.  Audette is the owner of an inland lot which has a deeded right of access over the right of way to get to the Lake.  Audette also purchased a release deed of the right of way from a purported heir of the original developer of the subdivision of which the properties are a part and thereafter claimed that he owned the fee in the right of way. Conflict arose when Audette began using the right of way more intensely than other easement holders historically had done.

 

Audette represented to MassDEP that he owned the land at the end of the right of way and obtained a waterways license pursuant to G.L. c. 91, the Massachusetts Tidelands and Waterways Act.  He constructed a trident-shaped dock at the end of the right of way, thirty-five feet wide and protruding fifty feet into the lake.  He docked his boat there, which comfortably held fifteen people.  He used the right of way regularly, as much as every day during the summer.  He has a large family, who had an open invitation and were regular guests.  He graded the right of way and installed pavers to facilitate motor vehicle access.

 

The Kubics brought an action in Land Court to quiet title in the right of way and to establish the parties’ rights to use it.  The Land Court ruled in favor of the Kubics on some of the issues and in Audette’s favor on others, but declined to rule on some issues.

The record established that, at least for a period of time that included 1948, the shoreline was submerged.  Under the legal principles governing accretion and reliction of the ocean and certain water bodies, this raised some question whether the Commonwealth might make some claim of ownership if and when it reemerged. There are many cases about who owns “new land” when it appears, or loses “their land” when it goes under water, but here the Commonwealth disavowed such a claim. The state took the position that the reemerged land would belong to the littoral owners.  This is consistent with the general rule that the waterside boundaries of littoral property generally follow the changing waterline. 

 

There are exceptions to this general rule that lot lines move with the water lines.  An owner cannot artificially add to his land and then claim the benefit of the addition.    In such disputes, the history (or lack thereof) of the filling, dredging or grading of such a shoreline becomes relevant or even determinative. These disputes often arise in coastal areas, where lands are affected by tidal action and by storms, so the landforms are dynamic, but also in lakes, ponds, rivers and streams where alterations may be natural or man-made.

 

The Appeals Court used the term “littoral,” not “riparian.” It is useful to consider the natural processes which are at work and the resulting movement of the ownership line. According to Black’s Law Dictionary, “littoral rights” are rights concerning properties abutting an ocean, sea, or lake rather than a river or stream (riparian). The accretion and reliction principles vis a vis the line of ownership, however, appear to apply equally, with variations possible from the general rule. Specifically, the decision in Kubic I stated in footnote 6: “As a general rule, a littoral owner is entitled to newly emergent land whether that land emerged as a result of accretion (the gradual buildup of material next to the existing land) or reliction (the gradual receding of the waters), while such an owner loses title to the land lost to the water through erosion.”

 

In the case of East Boston Co. v. Commonwealth (1909), dealing with tidal flats, the SJC had held: “Upon the doctrines applying to accretion and erosion and to the elevation and subsidence of land affecting the water line along the shore of the sea under conditions like these, the line of ownership follows the changing water line.” We observe that this rule would seem to apply to deeds and other real estate instruments describing the property as extending to, by or along “the shore,” “the water,” “the lake,” “the pond,” “the bay,” “the river,” “the ocean,” ”the sea,” and the like. This rule would not apply, it seems, if the deeds instead go along a described line or to a point, in modern times a metes and bounds, or perhaps by operation of the derelict fee statute to the midpoint of a way or water. In the latter situations, the property in question consists of specific size, dimensions and lot lines which are fixed and not flexible. 

The Appeals Court held in Kubic I that the Kubics owned the fee in the right of way down to the waterline, and the easement holders were given the right to use the right of way to gain access to the Lake, which, once there, they could use for fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.   The Appeals Court further held that it was within the Land Court’s authority to conclude that the use of motor vehicles on the right of way was reasonably necessary to full enjoyment of the access rights that the easement provided, but that this does not mean that Audette had the right to park motor vehicles on the right of way.   Rather, Audette only had the right to temporary parking on the right of way to offload people or items.   Also, Audette could not occupy the right of way by hosting social events and placement of a picnic table in it, interfering with the right of the Kubics and others to gain access to the Lake.

 

Kubic I, as a result, vacated the Land Court Judgment insofar as it stated that Audette and his household members have a right to park in the right of way, modified it to prohibit Audette’s actions in the shoreline area that constitute occupation of that area, and remanded the case to the Land Court to address the extent to which Audette’s use of the dock unreasonably interferes with the rights of the Kubics and people other than Audette who hold easement rights in the right of way. That remand, which came back up to the Appeals Court, resulted in Kubic II.

 

Kubic II framed the issue to be whether the Audette’s use of the right of way constituted an overburdening of the easement, which it defined as “use for a purpose different from that intended in the creation of the easement.”  The Appeals Court then instructs how overburdening is shown by attending to changes in the “manner, frequency, or intensity of the use.”   

Kubic II includes directions as to how the reviewing court is to determine the scope of the easement.  “We construe the scope of an easement from the parties’ intent, which we ascertain from the relevant instruments and the objective circumstances to which they refer.”  It continued to provide helpful, practical guidance: a “court may consider subsequent uses, not too remote in time or disconnected from deed, to discern parties’ intent in creating easement.”  It is not uncommon for an easement to be created merely by a brief, one- or two-sentence statement in a deed.  It is helpful that the Appeals Court in this case recognizes that evidence of the interpretation that the parties themselves gave to the easement at the time, which may be considered by the Court to assist in the determination of the intent of the parties.

 

The Land Court on remand did not reach the question whether the placement of the dock interfered with the use of the right of way by the Kubics and others. Rather, it determined that the intended uses of the right of way were limited to the “transient uses traditionally associated with public access to tidal waters, navigable streams, and great ponds,” such as fishing, swimming, boating, and other uses that are reserved for the public in Great Ponds.  It ruled that Audette could use the right of way for temporary parking and placement of items (for no more than fifteen minutes) to serve such purposes.  The Appeals Court affirmed that limitation in Kubic II.

 

Audette had argued that because the right of way was unquestionably intended to provide easement holders access to the lake for boating, it follows that it must also provide him access for a dock.  The Appeals Court rejected this argument, stating that the fact that he has a general right of way does not mean that he may exercise it in any manner he sees fit. 

Audette then argued in the Appeals Court for the first time that MassDEP’s grant of a waterways license under Chapter 91 to construct and maintain the dock necessarily implied that he has a property right to use the right of way to gain access to it.  The Appeals Court ruled that this “argument of last resort” not only was waived, but also was meritless.  “Licenses granted under c. 91 do not create property rights, nor do they authorize interference with the property rights of others.”    In footnote 5 of Kubic II, the Appeals Court stated outright that Audette’s standing and chapter 91 claims were frivolous.

 

Kubic I and Kubic II, taken together, strongly stand for the proposition that the holder of a right of way cannot interfere with rights of way held by others.  They reinforce the principle that a right of way is a lesser interest than ownership of the fee interest, and when the owner of a right of way uses it as if he owns the fee, he is likely to get their wings clipped.  And these cases protect Great Ponds by recognizing the uses of the easement to the water are limited by the proper uses of a Great Pond, in which the Commonwealth has an interest in protecting and managing for the benefit of the public.

A senior associate at McGregor Legere & Stevens, Mike O’Neill is a member of REBA’s Environmental Law and Renewable Energy Section.  He has more than thirty-five years of experience in a wide range of litigation in all courts and in real estate and commercial law, concentrating in environmental, land use law and litigation.  His email address is moneill@mcgregorlaw.com. Editor’s Note: The Association’s Land Use and Zoning Section Co-chair Nicholas P. Shapiro represented the successful plaintiffs in both Kubic I and Kubic II.

 

 

 

SJC Rules Bourne’s Ban on Recreational Marijuana Establishments is Valid

Caroline E. Smith

The Supreme Judicial Court, in its decision in the case of Haven Center, Inc. v. Town of Bourne, 490 Mass. 364 (2022), upheld as valid the Town of Bourne’s general bylaw ban on recreational marijuana establishments. The Town’s approach was impeccable and the decision is instructive.

In 2016, Massachusetts voters enacted a state ballot initiative legalizing the sale and use of
recreational marijuana. This law, codified as M.G.L. c. 94G, gave individual cities and towns the ability to ban recreational marijuana establishments from their communities if the majority of voters in the municipality voted “no” on that ballot initiative and then enacted such a local ban by December 30, 2019.

The majority of the voters in the Town of Bourne on Cape Cod in 2016 had voted “no” on this ballot initiative. In May 2017, the Town then voted to impose a temporary moratorium on recreational marijuana establishments. It would last either until November 30, 2018, or until the Town enacted zoning bylaw amendments to regulate such establishments.

In October 2018, two bylaw amendments were presented at Bourne Town Meeting. Warrant Article 14 (Article 14) proposed an amendment to Bourne’s general bylaws to prohibit all commercial recreational marijuana establishments in Town. Warrant Article 15 (Article 15) proposed amendments to the Town’s zoning bylaw that would regulate recreational marijuana establishments.

An amendment to a general bylaw requires a simple majority vote while an amendment to a zoning bylaw requires a two-thirds majority vote. Article 14 did pass by a simple majority vote, but Article 15 did not pass after failing to receive the requisite two-thirds majority vote. The general bylaw became law, while the zoning did not.

The Haven Center, Inc.—a company seeking to operate a retail recreational marijuana establishment in Bourne—filed suit in state court seeking a declaratory judgment that Article 14 was invalid. The Haven Center argued that Article 14 violated the Home Rule Amendment, because Article 14 constituted a zoning bylaw and was inconsistent with the Zoning Act, M.G.L. c. 40A, §§ 5-6.

The Home Rule Amendment allows municipalities to enact local ordinances or bylaws that are not inconsistent with the Massachusetts Constitution or laws. The Haven Center argued that Article 14, as a matter of law, should be regarded as a zoning amendment—and not a general bylaw, as the Town had characterized it—because it prohibited a particular use of land.

The argument continued that since Article 14 was in effect a zoning bylaw, its enactment procedure (no public hearing and passed by a simple majority vote) violated the procedural requirements set out in c. 40A, §§ 5-6.

The language in M.G.L. c. 94G indicates that a municipality may prohibit recreational marijuana establishments through general bylaws or zoning bylaws. Nonetheless, under Massachusetts court precedents, even if the Town intended Article 14 to be a general bylaw, it could be deemed a zoning bylaw, subject to , if certain factors were met.

Such factors are whether other municipalities have adopted similar bylaws as zoning bylaws, whether the municipality whose bylaw is being scrutinized has previously regulated the topic through comprehensive zoning ordinances, whether the bylaw is intended to prohibit or permit any particular listed uses of land, and whether the dominant purpose of the bylaw pertains to interests typically addressed by the zoning process.

The SJC, hearing the case on appeal, ruled that Bourne’s temporary moratorium of recreational marijuana establishments was not a comprehensive zoning scheme and that Article 14 was not a zoning bylaw, simply because it indirectly prohibited the use of land in Town for recreational marijuana establishments. Because the Court ruled that Article 14 was not a zoning bylaw, it was not subject to the procedural requirements of M.G.L. c. 40A.

The Haven Center’s second argument was that Article 14 was inconsistent with the provision under M.G.L. c. 94G, § 3(a)(1) that prohibits municipalities from using zoning bylaws to prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment.

The SJC held that Article 14 was not subject to § 3(a)(1), because § 3(a)(1) only prohibits zoning bylaws that prevent the conversion of a medical marijuana treatment center into a recreational marijuana establishment. Because the SJC determined Article 14 was not a zoning bylaw, § 3(a)(1) did not apply to Article 14.

The Haven Center’s final argument was that Article 14 was inconsistent with the provision under G.L. c. 94G, § 3(a) that prohibits “unreasonably impractical” bylaws. The SJC ruled that the specific state statutory authorization to adopt a complete ban of recreational marijuana establishments under § 3(a)(2)(i) superseded any general requirement that a bylaw not be unreasonably impractical.

Thus, under the principles of Home Rule, bylaw application, and statutory interpretation in Massachusetts, the Town of Bourne succeeded in prohibiting all commercial recreational marijuana establishments in Town.

An Associate at McGregor Legere & Stevens PC, Caroline Smith is a member of REBA’s Environmental and Renewable Energy Section and New Lawyers Section. She can be reached at csmith@mcgregorlaw.com.

The Triumph of Hope Over Experience?

Robert M. Ruzzo

This August, when the Baker-Polito administration released long anticipated final guidelines for new Section 3A of the Commonwealth’s Zoning Act (Chapter 40A), optimistic assessments

of the new provision’s potential impact abounded. Section 3A requires 175 “MBTA Communities” to have at least one reasonably sized zoning district where multi-family housing is allowed “as of right.”

Such a reception should not have come as much of a surprise. Frustrated by the continuing failure of the legislative ball of purulence that is our current Zoning Act, housing advocates have chased moonbeams for decades in the hopes of boosting the state’s meager rate of housing production.

Like economists who have successfully predicted nine out of the last five recessions (maybe they are on track this time), housing advocates have consistently overestimated the change making ability of adopting new land use regulatory techniques. Two such examples for the would-be open space residential district (cluster) zoning and inclusionary zoning. These once bright shiny new tools were touted as the key to more sustainable and more affordable housing development in the Massachusetts. Please don’t misunderestimate the Housing Watch. It’s not that these tools aren’t valuable, they are; but they have not moved the dial one whit when it comes to the comparative affordability of our state’s housing when stacked up against other states competing to attract or grow the same companies.

Similarly, various legislative proposals such as Chapter 40R, Chapter 40S, and the starter homes zoning district initiative have been paraded through streets strewn with flower petals upon passage. One could even be forgiven for imaging a gaunt figure whispering “Memento Mori” as these enactments enjoyed their moment of triumph. Each was touted as a key to “bending the curve” and improving the affordability equation in Massachusetts.

The Housing Watch stands as guilty as the rest, particularly with respect to Chapter 40R. Despite uncertain funding sources, the tardiness in adding the Chapter 40S “school impact insurance” (to say nothing of the convoluted results of its formula), hopes for this zoning approach aimed at redevelopment and maximizing transit investments still burned brightly. Yet, as Bill Parcels (remember him?) used to say, “you are what your record says you are.” Candidly, the record says that Chapter 40R is not much. The latest statistics available (from 2019) on the DHCD website indicate that Chapter 40R has yielded only a total of 22,213 potential units, out of which a mere 3,759 have had a building permit issued.

Hopes were similarly high with respect to a common-sense starter homes district proposal in 2016. As things turned out, melding this initiative with the density driven minutiae of smart growth districts literally proved fruitless. No units have been produced as of today. A new proposal to move the starter homes district initiative into its own separate chapter (a proposed new Chapter 40Y) remains stalled (as of this writing) with the Economic Development bill that ran out of steam at the end of the formal legislative session in July. The Housing Watch wishes that effort all the best, but would caution against Dickensian expectations.

So, is the excitement over the issuance of final guidelines for “as of right” multifamily districts merely the triumph of hope over experience? Or are there legitimate reasons for believing this time will be different? Remember, Chapter 40R promised “as of right” approvals, yet the implementation of that statute became mired in an array of mind-numbing design standards and doubts about whether the money would be there for zoning incentive payments.

Still, there are at least two reasons for optimism.

First, unlike Chapter 40R, new Section 3A is mandatory, directing that municipalities shall create at least one reasonably sized multifamily as of right district. Section 3A, however, contains only modest explicit penalties for a failure to act (municipal ineligibility for the three grant programs, the most important of which is the MassWorks grant program). The new administration is likely going to have to do a lot better than that. If municipalities balk to any significant extent, assessing how “persuasive” the new administration is willing to be will be a litmus test for assessing its commitment to housing. Because it is at first blush difficult (though I'm sure not impossible) to imagine a scenario where a multifamily housing developer would have standing to challenge municipal obstinance in carrying out this mandate, providing the proper range of carrots and sticks for communities to act will likely be an almost exclusively administrative matter. So, the new administration has got that going for them….

Second, the animus of the times is different. The inter-relationship of transit investments and housing density is much more top of mind in Massachusetts than it was when Chapter 40R was enacted in 2004 (and the Housing Watch still has the bruises to prove it). Nationwide, notwithstanding the pandemic, automobiles seem on the road to becoming more of a service rather than an essential good. New generations are growing up with a distinct animus against what many Americans once viewed as their four wheeled birthright. That’s unlikely to change. The times and the technique may for once intersect. So, there is reason for some hope.

Otherwise, it could be back to the drawing board. Anyone up for another go at rewriting Chapter 40A? Or maybe, to paraphrase another Bill (one even more famous than Parcells), the fault may lie not in our statutes, but in ourselves.

Co-chair of the REBA affordable housing section, Bob Ruzzo is a former Massachusetts Deputy Secretary of Transportation. He also served as the Deputy Director/Chief Operating Officer at both MassHousing and MassDevelopment.  His column, “The Housing Watch…” is a regular feature in REBA News and on the REBA Blog. He can be reached at bob@bobruzzo.com

MBTA Multi-Family Zoning Districts: The “Reasonably Sized” Revolution?

Robert M. Ruzzo

Many believe that a brief three paragraph provision buried deep in a dense economic development bill passed by the legislature last January has the makings of a true

revolution in Massachusetts land use regulation. The legislation added a new section (3A) to Chapter 40A, the Commonwealth’s doddering, wizened zoning enabling act. By offering municipalities incentives to create transit friendly “as of right” (no variance or special permit required) multifamily housing zoning districts, the measure potentially represents the greatest incursion upon local control over land use decision making since the passage Chapter 40B in 1969. It appears the Massachusetts Municipal Association (MMA) thinks so. Media reports at the time of the bill’s passage indicated the MMA unsuccessfully urged Governor Baker to veto the measure.

Just what does this new Section 3A actually do? The tersely worded insert provides that any “MBTA Community” (a term not defined by the statute) “shall have” a local zoning regulation that “provides for at least one district of reasonable size in which multifamily housing is permitted as of right.” Not much to hang one’s hat on there. The only statutory attributes ascribed to these districts are that they must: (1) have a minimum gross density of 15 units per acre (subject to limitations of the Wetlands Act and Title V); (2) be located within 0.5 miles of a commuter rail station, subway station, ferry terminal or bus station: and (3) contain no age restrictions and “be suitable for families with children.” The state’s Affordable Housing Law (Chapter 40B), once described by one of its own drafters as “vague, even obtuse” seems positively verbose by comparison. This lack of statutory specificity will not be an excuse for municipalities; those that do not comply with the law’s requirements will not be eligible for state funding from the Local Capital Projects Fund, the Housing Choice Initiative, and most importantly, the hefty “MassWorks” infrastructure grant program, a program that has awarded between $66 and $72 million in grants to municipalities in each of the last three fiscal years

No doubt exhausted by its labors, the legislature tasked the Department of Housing Community Development (DHCD) in consultation with the MBTA and the Massachusetts Department of Transportation (MassDOT) with developing guidelines to determine community compliance with the new statute. In December, DHCD issued draft guidelines that are open to public comment until the end of this month (March 31, 2022).

This article will focus on how the guidelines define exactly what a “reasonably size” is for such a zoning district. Working our way through this exercise first entails understanding that the guidelines define an "MBTA community" more broadly than just a municipality with a transit stop of some kind. The definition also includes municipalities adjacent to communities with such a transit stop. When these “MBTA adjacent communities” are taken into account, a total of 175 cities and towns are impacted by the new law.  

Reasonableness is then addressed in two components. The first is the area of the district. The guidelines define reasonable size as “not less than fifty contiguous acres of land;” but the inquiry does not end there. DHCD will also examine the district’s “multi-family unit capacity.” Loosely translated, that means DHCD wants to know how many units of multifamily housing can be developed within the new as of right district.  How will DHCD do that? By looking at both the size of the community (defined by existing housing units) and the nature of each municipality’s transit service. 

A municipality's total number of existing housing units is determined by decennial census figures. That number is then multiplied by a percentage determined by the type of transit service in or within 0.5 miles of the subject community. The percentage utilized is far higher for “subway or light rail communities” (25%) than it is for “MBTA adjacent communities” (10%), with bus (20%) and commuter rail (15%) communities falling in between. To calculate capacity, let’s use Melrose as an example.

The city’s total of 12,614 existing housing units is multiplied by 25%, since Melrose falls into the “subway or light rail” (rapid transit) cohort of municipalities. Thus, a “reasonably sized” as of right zoning district in Melrose needs to be large enough to yield 3,154 new units. (12,614 x .25=3,614). Subdistricts with different densities are permitted. Note that for smaller communities, the minimum multi-family capacity number can never dip below 750 units. For additional nuance, please examine the guidelines.

The draft guidelines also answer many (but not all) of the questions left open by the statute. Got questions about how to deal with parkland or public rights of way? Wondering when these guidelines become effective? Good questions. Check out how the guidelines address these issues. Got war stories about how a seemingly straightforward “site plan review” process became an ulcer inducing exercise? Then by all means comment on the guidelines and perhaps suggest the inclusion of a reasonable time limit for the site plan review process discussed therein.

What will be the ultimate impact of new section 3A? Is it truly revolutionary? Probably not. Remember, as the guidelines painstakingly note, the determination of a district’s housing capacity “is not a mandate to construct a specified number of housing units” (emphasis in original). Some communities may simply forgo (or continue to forgo) competing for MassWorks grants and other state assistance. Other municipalities may well be able to draw districts that require little or no new housing to be built in order to satisfy the guidelines.

Past land use “revolutions” have not lived up to their press clippings.  Neither cluster zoning nor Chapter 40R (ouch!) turned out to be the panaceas that they were initially touted to be. Yet each is a useful tool. Given the decades it has taken to work our way into our current housing production conundrum, the new Section 3A at least has us focusing on the most rational way to begin building our way out.

Co-chair of the REBA affordable housing section, Bob Ruzzo is a former Massachusetts Deputy Secretary of Transportation. He also served as the Deputy Director/Chief Operating Officer at both MassHousing and MassDevelopment.  His column, “The Housing Watch…” will be a regular feature in REBA News and on the REBA Blog He can be reached at bob@bobruzzo.com.

 

 

 

 

 

 

 

Expressio Unius est Exclusio Alterius

Paul F. Alphen

It appears that many of the recent Land Court and Appeals Court decisions pertain to attempts by landowners to create building lots

out of odd parcels with frontage along old rights of way or partially constructed ways. Perhaps the value of real estate is up?

One of the cases provides us with some education on how to interpret inconsistent terms within a zoning bylaw. It is not uncommon for bylaws out here in the suburbs to contain inconsistencies. Bylaw provisions are amended, added and subtracted from time to time by an ever-changing cast of characters, many of whom are volunteers. In Perry v. Zoning Bd. of Appeals of Hull, No. 20-P-334, 2021 WL 2932855 (Mass. App. Ct. July 13, 2021), the Defendant owned a parcel of land with frontage on a right of way in scenic Hull, Massachusetts. The bylaw defines “Lot Frontage” as “[t]hat part of a lot (a lot line) abutting on a street or way; except that the ends of incomplete streets, or streets without a turning circle, shall not be considered frontage....” 

The Defendant/landowner wanted to count the stub end of the dead-end right of way toward his frontage calculation. The next-door-neighbor Plaintiff claimed that the definition of “Lot Frontage” requires that the measurement exclude the end of an incomplete street. The Defendant asserted that the bylaw did not specifically express such a requirement for a “way” because the language of the bylaw only referred to “incomplete streets” and did not refer to incomplete ways.

 The Appeals Court agreed that the incomplete street exception did not apply to the right of way. The Court explained their reasoning as follows: “Regardless of whether the bylaw uses the terms interchangeably elsewhere, it was not unreasonable for the board to conclude that in this instance, the reference to only streets was intentional where both street and way had been used earlier in the same sentence. ‘It is a ‘maxim of statutory construction ... that a statutory expression of one thing is an implied exclusion of other things omitted from the statute.’’   [citations omitted] Although this maxim, commonly known as ‘expressio unius est exclusio alterius,’ must be applied with caution [citations omitted}, it has particular force where the excluded phrase was used elsewhere in the same provision. [citations omitted] (, [W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present’).” Perry v. Zoning Bd. of Appeals of Hull,

 I probably knew this maxim law school, but that was a long time ago, and I appreciate the refresher.

 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.

 

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.

Boston Properties' Redevelopment of the Back Bay Station: A Mini Case Study (Video)

Materials

The Case of Smyth v. Falmouth on Regulatory Takings

Smyth v. Conservation Commission of Falmouth

PowerPoint

Zoning Due Diligence, Zoning Opinions & Use of Zoning Endorsements

Housing Regulation on Massachusetts: A Lookback

By Lawrence S. DiCara

Recent discussion concerning the regulation of housing by cities and towns in Massachusetts has resulted in a flashback for those of

us who served in public office in the last decades of the 20^th Century.  Sadly, many lack significant knowledge of the decades of municipal jurisprudence which should be reviewed by those participating in any such discussion.

 

Judge Forest Dillon, Chief Justice of the Iowa Supreme Court, expounded the famous rule known as Dillon’s Rule, which serves as the cornerstone of American municipal law.  Under Dillon’s Rule, a municipal government has authority to act only when the power is granted by the express words of a statute or the charter creating the municipal corporation.  In Massachusetts, Dillon’s Rule has been interpreted quite strictly.  Personally, I don’t like Dillon’s Rule, but it is the law.  Arguably, the last significant change to the relationship between the Commonwealth and its cities and towns resulted from the passage of the so-called Home Rule Amendment to the State Constitution in 1966.

Many years ago, I served on an advisory committee which worked with Professors Frug and Barron of the Harvard Law School to produce a volume entitled “Boston Bound” which was published by The Boston Foundation.  That volume reminded anyone who saw fit to read it of the stringent legal limitations which restrict the ability of the City of Boston – in contrast to most of the other great cities of the nation – to regulate the lives of its citizens and to generate the revenues necessary to provide needed municipal services.  In recent years, the City Council, of necessity, has petitioned the Legislature for matters as mundane as the number of liquor licenses available in certain neighborhoods.  I hope I live long enough to see a leveling of the playing field in this regard.  There are many aspects of municipal life where there is no questioning of a city or town’s jurisdiction.  Local government controls the public way, for example, and can regulate its use by buses, personal vehicles, trucks, bicycles, TMCs, scooters, etc

.

In no area is there more confusion than in the regulation of housing; there are state codes and municipal codes which impact living conditions and regulate sinks, stoves and other matters.  It is questionable whether the City has extensive powers to regulate housing otherwise.  I am not certain of the underpinnings of recent governmental enactments covering short term rentals, and other current topics of public debate. 

I do know what happened in the past.  In the late 1960’s and early 1970’s, the same type of deficit spending which is occurring under the current administration resulted in significant inflation in rents, and otherwise.  The Great and General Court enacted Chapter 842 of the Acts of 1970 which provided that any city or town in the Commonwealth could enact rent control.   Boston did so.  My recollection is that Brookline, Cambridge and Somerville did likewise although, perhaps, one of them might have also benefitted from a Special Act as did Boston prior to the adoption of Chapter 842.

  

In addition, there was other enabling legislation which gave powers to cities and towns to enact other laws concerning housing.  In the case of Boston, the special acts were Chapter 797 of the Acts of 1969, as amended by Chapter 863 of the Acts of 1970.   Many years later, pursuant to rights enjoyed by the people of the Commonwealth since the Progressive Era, the voters of the Commonwealth repealed all rent control legislation, in 1994.  As a strict constructionist, remembering Dillon’s rule, I would argue that until some enabling legislation is in place, or a home rule petition is sent to the Legislature by a city or town which is then voted upon by both Houses, and secures a gubernatorial signature, there is no broad power to regulate housing in that community.  I don’t think the legal situation is any different than it was 50 years ago.

These are not easy discussions, especially given the pressures upon the housing market in many of our neighborhoods (including Jamaica Plain, where I have lived for the last 30 years).  As is always the case, it is essential that elected officials and advocates for good causes understand the historical and legal contexts in which this discussion should be undertaken.

A mediator with REBA Dispute Resolution’s panel of neutrals, Larry DiCara has practiced real estate and administrative law and has been intimately involved with the development process in and around Boston for more than 40 years.  He served as a member of the Boston City Council for ten years.  For more information about Larry, go to www.disputesolution.net.  To schedule a mediation or arbitration with Larry, email adr@reba.net.