Rackemann, Sawyer & Brewster

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When the Conservation Commission refused to permit the construction of a house on her residential lot in a Falmouth subdivision, Janice Smyth decided to take action and sought damages for a regulatory taking of her land under the U.S. Constitution and the Massachusetts Declaration of Rights.  She was successful initially, recovering damages of $640,000.  But, in Smyth v. Conservation Commission of Falmouth, the Appeals Court reversed the lower court’s decision. Smyth inherited the undeveloped…
The Boston Redevelopment Authority d/b/a Boston Planning and Development Agency has the right to challenge a foreclosure that purportedly terminated a covenant restricting the use of property to affordable housing. In allowing the BPDA’s suit to move forward, the Business Litigation Session of the Suffolk Superior Court recognized two truisms of Massachusetts foreclosure law. First, the foreclosing lender owes a duty of good faith and reasonable care to the borrower and holders of junior encumbrances…
A Massachusetts regulation stating that no two digital billboards may be erected within 1,000 feet of one another set up a race between competing billboard companies that owned abutting land. Although the final approval for a billboard must come from the Commonwealth’s Department of Transportation Office of Outdoor Advertising (OOA), an applicant must first receive local zoning board approval before filing its OOA application.  Clear Channel and Northvision both had special permit applications for their…
In a satisfying win for Rackemann, the Appeals Court today upheld a Land Court decision that inland lot owners hold no easement rights over our clients’ waterfront property. Loiselle v. Hickey concerns a large subdivision in Dennis with a number of ways leading to Cape Cod Bay.  An earlier case between many of the same parties established that the inland lot owners had easement rights in all of those ways.  In Loiselle, many of the…
Unable to leave well enough alone, the Supreme Judicial Court used a series of wooden puns in deciding not to change the longstanding rule that a landowner cannot hold a neighbor responsible for damage caused by that neighbor’s healthy tree.  Shiel v. Rowell addressed Shiel’s nuisance and trespass claims that algae on her roof was caused by the Rowells’ overhanging tree. The traditional Massachusetts rule allows Shiel to protect herself by cutting back encroaching trees,…
Massachusetts is unusual in that an owner of waterfront property typically holds title to the low water mark.  However, the area between the low and the high water marks normally remains subject to the rights of the public to fish, fowl (hunt birds) and navigate. The landowner cannot interfere with those so-called “public trust” rights without the benefit of special legislation or a license to do so issued by the Department of Environmental Protection (the…
In the just-decided Maslow v. O’Connor, the Appeals Court addressed rights in a Gloucester subdivision road.  Since Gloucester is a seaside community, naturally the case concerns water access. The defendants own the residential lots abutting the waterfront end of Rackliffe Street, which is an old and private subdivision road that, before 1925, ended at the mean high water mark of Wonson’s Cove.  Under the Derelict Fee Statute, those defendants also own to the center-line…
Section 7 of Chapter 40A contains a statute of limitations for actions by individuals and municipalities to compel the removal, alteration, or relocation of any structure due to a zoning violation.  In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court considered when the statute of limitations commences based on a zoning violation arising from an ANR (Approval Not Required) subdivision of land. The Goethals owned a large lot with a single…
Governor Baker recently announced a proposal to change state zoning laws to make it easier to build more housing units state-wide. The Governor’s goal is to add 135,000 housing units by 2025. To do so, he has introduced legislation that will allow municipalities to adopt certain changes to local zoning by a majority vote, instead of by super majority, as currently required by state law. The zoning changes include relaxing dimensional, density and parking requirements, as…
As drone sales in the United States continue to grow, the legal issues they present are likely to induce new attempts to regulate drone flights at the state and local level.  As the legal framework allowing drones to fly within our communities develops, the resulting laws will impact the ability of local communities to control drone use within their borders and restrict landowners’ property rights.  As shown by Newton’s recent foray into municipal drone regulation,…