On October 8, 2014, the Massachusetts Appeals Court handed down its decision in Great Woods, Inc. v. Clemmey, Docket No. 13-P-1817, through a Memorandum and Order Pursuant to Rule 1:28. In that unpublished decision, the Appeals Court panel (Kantrowitz, Grainger & Hanlon, JJ.) vacated the Order of the Middlesex Superior Court, Tuttman, J., (1) clarifying that a 1996 permanent injunction remained in full force and effect, notwithstanding the fact that its beneficiary, Plaintiff, Great Woods, Inc., no longer exists; and (2) denying relief to Clemmey under Mass. R. Civ. P. 60(b)(5).
To the unwary, it might be surprising that property dating back to the 1870s could, almost 150 years later, fall prey to a boundary line dispute. But it does happen, as the recent case, Bernier v. Fredette, 85 Mass. App. Ct. 265 (2014), reminds us.
In many M.G.L. c. 40A, § 17, appeals, courts are required to interpret the local zoning bylaw or ordinance to address the underlying substantive issue. The judge's standard of review in these cases must give "substantial deference" to a board's reasonable interpretation of its zoning code. However, erroneous interpretations, are not entitled to deference. And it is interesting to see how this dynamic plays out both during a case and after the fact. The recent case of Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 (2013) (on appeal from the Land Court) provides a good example.
Earlier this month, the Land Court (Long, J.) rendered a zoning decision denying defendants' request for sanctions despite the fact that plaintiff had failed to meet the quantitative and qualitative showing for standing required to maintain his appeal of the special permit that was granted to the existing and prospective landowners. The case yields both encouraging and troublesome outcomes.
On February 8, 2013, the Supreme Judicial Court another land use/real estate decision in White v. Hartigan, 464 Mass. 400 (2013), a case on direct appellate review from the Land Court. At issue in the case (a quiet title action) was whether the plaintiffs owned a fractional interest in a beach located on Martha's Vineyard, or, alternatively, whether they had acquired a prescriptive easement to use the beach and the land leading thereto.
Easements come up a lot in our practice at Phillips & Angley (for a recap of easement basics, see our April 19, 2012 post). When we receive a call involving an easement, the easement, or right of way, is typically the focus of the dispute, but sometimes an easement itself can be the vehicle for resolving the controversy, particularly in adverse possession cases. This post concerns a change in the law of easements, effected by the Supreme Judicial Court in 2004, which has created new flexibility for property owners in regulating rights of way and defending against easement claims over their properties.
An interesting case-much less frustrating one for the plaintiff-developer involved-came out of the Appeals Court at the very end of 2012. In Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, Docket No. 11-P-1159 (Mass. App. Ct. Dec. 28, 2012), the sole issue before the court was whether the Housing Court had jurisdiction to decide a transferred case that was initially filed in the Land Court permit session.
As discussed in an earlier post (Intro to Variances I), there are a few necessary findings before a zoning board can grant a variance. Last time we talked about soil conditions, shape or topography that support the need for a variance. This post explores the necessity of a "substantial hardship" that will result if literal enforcement of the zoning code is required.
When a court hands down a decision and neither party appeals, the decision becomes final and binding upon the parties. Under such circumstances, the parties will be barred from re-litigating the issues finally resolved by the prior decision. In the legal community the finality of such decisions is referred to as res judicata, "the thing adjudicated."
A few months ago we briefly covered prescriptive easements in a general land use post about different types of appurtenant easements.