One of the most vexing issues involving zoning and land use practice in Massachusetts is how site plan review decisions, rendered by local planning boards, are appealed. In fact, we were recently asked by Mass. Lawyers Weekly to comment on this topic, as well as a recent Land Court decision on the same.
On January 4, 2017, the Land Court, Scheier J., issued a decision in Stafford v. Flett, Land Court Docket No. 15 MISC 000134 (KFS), which granted declaratory judgment to P&A's client, the Defendant, declaring that she owns outright an area of her property that included a parking spot, grassy slope, staircase, and cobblestones and flagstones pavers (the "Disputed Area"), free and clear of any of the Plaintiff's claims. In its decision, the Court denied the Plaintiff's claims for adverse possession of or, in the alternative, a prescriptive easement over the Disputed Area. The Court agreed that the element of adverse use required for claims for adverse possession and prescriptive use rights was not established by the Plaintiff due to an oral license agreement allowing Plaintiff to use the Disputed Area, which agreement had been in place since the putatively-adverse use had begun.
On November 9, 2016, after multiple, contentious hearing before the Town of Plymouth Board of Health, and related proceedings before the Plymouth Conservation Commission, Phillips & Angley was successful in opposing a request by neighbors that its clients' horse stable permits be revoked.
In a perfect world, we would all get along with our neighbors -- and maybe even enjoy a few summertime barbecues. However, in the real world, this is not always the case and there are times when squabbles with neighbors turn into all out legal disputes.
On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.
The recent Appeals Court case of Paine v. Sexton, 2015 WL 5567171 (Mass. App. Ct. Sept. 23, 2015), offers a new twist on some black letter law pertaining to adverse possession of wooded areas.
There are several competing factors at play when the energy and utility demands of a region increase. In New England, much of those demands can be seen during extreme temperatures, whether it is the heat waves of summer or protracted cold months in winter. In this region, many homes rely on natural gas to heat their homes during the winter.
On June 23, 2015, the Supreme Judicial Court handed down its most significant decision in the area of premises liability since 2010. See Sarkisian v. Concept Restaurants, Inc., SJC-11786, 2015 WL 3833877 (Mass. June 23, 2015). In Sarkisian, the court was asked to "decide whether the 'mode of operation' approach to premises liability, adopted . . . in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788, 863 N.E.2d 1276 (2007), applies to slip-and-fall incidents occurring outside of the context of self-service establishments." Id., at *1.
Today we offer a quick refresher of sorts. When it comes to real estate development-whether it be incorporating a new use, building a structure, or somehow otherwise modifying the existing conditions on site-there are several sources of laws and other "restrictions" that the developer and/or landowner should be aware of in advance. These include the following:
A few weeks ago, the Appeals Court issued a decision that potentially affects several landlocked parcels in Aquinnah (Gay Head) on Martha's Vineyard. As a result of this decision (Kitras v. Town of Aquinnah, 87 Mass. App. Ct. 10 (2015)), which reversed and remanded a Land Court decision/judgment, these landlocked parcels have been deemed to have easement rights that have been in dispute for some time. Or at least that's what the majority opinion decided. There was a stong dissent written by Associate Justice Peter W. Agnes.