Is Governmental Response to Virus

WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION SEPTEMBER 2020 • Vol. 17, No. 4

Supplement of Massachusetts Lawyers Weekly Non-party abutter Is governmental deemed not bound response to virus by Land Court pact worse than the BY MICHAEL J. O’NEILL In a clear, well- reasoned opinion disease itself? deciding the case of Stevens, Trustee BY EDMUND A. ALLCOCK v. Zoning Board of Appeals of Bourne, No. 19-P-248 COVID-19 has turned our ( June 19, 2020), country and our way of life upside the Appeals Court down. For those of us in real estate, (Green, C.J.) held that a settlement it has had a significant impact. Like agreement between the town’s selectmen some emergencies, sometimes the and a property owner resolving a Land cure is worse than the disease. Court action did not bind an abutter who Massachusetts is one of 28 states was not party to the litigation. that have enacted some sort of evic- Consequently, the abutter was en- tion and foreclosure moratorium. In titled to use all procedures available under Massachusetts, the moratorium was enacted in March and ©lightsource G.L.c. 40A to challenge a use as a viola- is currently extended through October. In conjunction with tion of the Bourne Zoning Bylaw. that moratorium, back in March, Attorney General Maura ise of the American dream. Stimulus checks and an extra The case ofMorganelli v. Building In- T. Healey issued a 90-day collection moratorium on every- $600 a month for the unemployed might be an appropri- spector of Canton, 7 Mass. App. Ct. 475 thing other than evictions and foreclosures. Both morato- ate response; closing the courts and restricting freedom of (1979), has been a leading case on the riums prohibited the sending of any collection notices and speech are dangerous. Our legislators and politicians have application of res judicata in the zoning also prohibited the filing of almost all court cases to collect once again forgotten the working man or woman. What context and was relied upon by the prop- rent or mortgage payments. about the individual who buys a two- or three-family in an erty owner. The Appeals Court inStevens The AG’s collection moratorium was challenged in fed- effort to live out the American dream? confronted Morganelli head on, distin- eral court and found to be unconstitutional as it violated Whether intentioned or not, the eviction moratorium guishing it on several procedural grounds. the First Amendment to the U.S. Constitution’s guaran- sends a message that tenants do not have to pay rent. Why In Morganelli, an abutter brought an tee of freedom of speech (i.e. collection notices sent in the should they? After all, the landlord can’t even set foot in a action for mandamus against the building mail) as well as the guaranteed right of every citizen to ac- court of law. In fact, he can’t even communicate with his inspector, challenging a building permit cess the court system. tenant. Meanwhile, the landlord still must pay the taxes, for construction on a non-conforming Currently, there is a similar constitutional challenge in the electricity, etc. lot. The question of whether a building Massachusetts state court to the eviction moratorium. The response to COVID-19 is more dangerous than could be constructed on the lot had been Presumably, the response to COVID-19 is well inten- the disease itself. Tenants can still be protected in the the subject of a prior action by a former tioned. The concept, albeit having a decidedly socialistic courts. Judges and courts are well equipped to review (as owner of the lot and was finally adjudi- bent, is to prevent people from losing their homes, but at they often do) each case on its facts, consider the equities cated to allow construction. Id. at 408. what cost? in each case that may be presented by the COVID emer- The abutter was not a party to the prior Instead, the idealistic and socialistic response to CO- gency, and then rule accordingly. action. VID-19 has created an unprecedented constitutional crisis. As U.S. District Court Judge Richard Stearns said in In Morganelli, the Appeals Court con- If freedom of speech and access to the court system can be his recent decision declaring the Massachusetts collection cluded that the prior action was, in sub- eradicated because of a virus, then we are in big trouble. moratorium unconstitutional: stance, an action against the citizens of Blanket moratoriums cut a big swath and destroy the prom- See page 2 Canton, in which the building inspector See page 7 SJC: no per se zoning injuries as basis for standing BY DANIEL P. DAIN applicable in zoning appeal cases. sons had failed to introduce non-speculative evidence The facts of the case are unusual for a battle over of a more than de minimis injury if the proposed house Last September, the Ap- density. Merriann Panarella and David Erichsen pro- were actually built. peals Court rocked the zoning posed to build a single-family home on an unimproved Worry not, the Appeals Court concluded in review- litigation world when it found wooded three-acre lot in Sherborn. When the building ing the Land Court’s decision. No such evidence is re- in Murchison v. Sherborn ZBA inspector issued a foundation permit for an as-of-right quired to establish standing. To reach that conclusion that an injury sufficient to confer project (meaning the inspector found that the proposal required some maneuvering by the Appeals Court. standing in zoning appeals can fully complied with all applicable zoning requirements It started with the zoning violation — lot width — be inferred from the combination and did not need any zoning relief ), Robert and Ali- asserted by the plaintiffs. If a house does not comply of proximity and an allegation of son Murchison, who live across the street on a 13-acre with a lot-width requirement, then it is not a buildable a violation of a zoning require- similarly wooded lot, appealed to the Sherborn Zoning lot, and hence a house built thereon would impermis- ment. What was missing from the Appeals Court’s Board of Appeals, arguing that the building inspector sibly increase density. This was an unusual expansion of analysis was any proof of actual injury by the plaintiff. had incorrectly measured lot width. the conception of density controls. Under this reason- On March 6, one day after oral argument on further The ZBA disagreed and the Murchisons appealed ing, every dimensional requirement would be a form of appellate review, the Supreme Judicial Court issued a under G.L.c. 40A, §17, to the Land Court, asserting density control as permitting construction of a house terse order affirming the Land Court’s dismissal of the that they would be injured by the increased neighbor- that does not comply with zoning would add a house zoning appeal, by implication reversing the Appeals hood density introduced by a new house across the that otherwise would not have been there. But density Court. A more detailed decision by the SJC followed, street. is usually not thought of in this way; rather, density on July 16. The decision takes a close look at density as After a four-day trial and a view, the Land Court a basis for standing, but its reasoning is more broadly dismissed the action on the ground that the Murchi- See page 9 PAGE 2 REBAnews SEPTEMBER 2020 My summer reading included a story of a family and a century in their summer home on the Cape

BY PAUL F. ALPHEN

“The definition of a proper Bosto- nian, it used to be said, was someone who lived on Beacon Hill and had an uncle in McLean,” according to one of the books I read on one of my summer vacations: “The Big House: A Century in the Life of an American Summer Home” by George Howe Colt. The book, as the title states, is the story of a big rambling wreck of a house on Wings Neck, in Bourne, owned and used by generations of relatives, starting with the author’s great-grandfather who ©mamahoohooba built the home when Cape Cod was mostly scrub pine. author claims, that was first built at the tions for the sale of real estate near the The author’s great-grandfather gen- urging of fellow Wing’s Neck neigh- shore are going rapidly and parties are erously shared the house with the ne’er- bors). realizing good prices.” Why I am a REBA member… do-wells in the family. There was no But I stuck with the book for two Soon thereafter, summer colonies On the first day of my first job shortage of Harvard-educated hangers- reasons. First, reading about the genera- were created along the coastline. “A as an attorney, in 1985, I became a on, none of whom tions of Bostonians Boston family put up seven large sum- member of the Massachusetts Con- appeared to own a that returned to the mer homes on an old cabbage patch veyancers Association. Having the hammer (or know Contemplations, Big House each and called it Wild Harbor. A group of Standards and Forms to refer to have how to use one). Ruminations and Musings summer was like Brockton speculators carved a nameless been invaluable to my small practice; The author shares of a Country Lawyer watching a slow mo- ox pasture into five hundred small lots having them to rely upon is like being his family secrets (al- tion train wreck, and and called it New Silver Beach.” able to run something by an infal- coholism and men- it was hard to look Numerous names of the original lible seasoned expert. The spring and tal illnesses) and his away. Secondly, the resort communities remain, even if the fall meetings provide us with the own memories of spending summers in book provides some historical insight original resorts are long gone. opportunity to break bread with our The Big House as the family prepares to into the origins of Cape Cod as a vaca- As someone who has studied the brothers and sisters, and they are an sell it. As is often the case, subsequent tion destination. real estate landscape on the Cape for 30 essential source of CLE. The case law generations did not have the will or the The author says that in 1849, “the years, the book added a degree of per- updates by Phil Lapatin are alone cash to maintain an expensive summer notion of voluntarily traveling to Cape spective into the original development worth the price of admission. I have home. Cod to see the ocean — without plan- of the Cape as a resort community, and no idea how anyone practices real es- The online book reviews are blunt, ning to fish, build a ship, go whaling, or into the people who were the original tate related law without the resources as reviewers call the book dull, too long scavenge a wreck — would not have oc- developers. They were not all twits, and and CLE provided by REBA. and uninteresting. One reviewer calls curred to anyone, except, perhaps [Hen- they laid the groundwork for the Cape Paul F. Alphen the whole Colt family “twits.” Perhaps ry David Thoreau].” as it is today: hundreds of neighbor- Alphen & Santos, PC, Westford there was an overabundance of twits. In the mid-1800s, spending time at hoods with their own histories and per- Member since 1985 The extended family used the house all the seashore was deemed to be medi- sonalities, and people with their own summer, every summer, but no one ever cally therapeutic by wealthy city dwellers love affairs with the peculiarities of each repaired the window sash ropes or bro- “longing to escape the oppressive heat, of those neighborhoods. and commercial real estate development, land ken burners on the stove, or apparently fetid air, and cholera- and yellow-fever- use regulation, administrative law, real estate anything else in the Big House. ridden congestion of the metropolis in A former REBA president, Paul Alphen cur- transactional practice, and title examination. As other reviews have said, the book summer.” rently serves on the association’s Executive As entertaining as he finds the practice of drags on with personal stories of the In 1872, the Old Colony Railroad Committee and co-chairs the Long-Range law, Paul enjoys numerous hobbies, including author’s first fishing trip, playing tennis completed a rail extension to Woods Planning Committee. He is also a member of messing around with his power boats and against wealthy neighbors who owned Hole, making it easier for Bostonians the Executive Committee of the Abstract Club. fulfilling his bucket list of visiting every Major real “tennis whites,” and weekend sail- to get to the Cape. According to a Fal- He is a partner in the Westford firm of Alphen League ballpark. Paul can be contacted at boat races in Herreshoff 12s (a boat, the mouth newspaper in 1873, “Negotia- & Santos, P.C., and concentrates in residential [email protected]. Is governmental response to virus worse than disease itself? CONTINUED FROM PAGE 1 or because we are afraid if we speak out impacts what we do, we should not be speak out because I was not a Jew. Then our business interests will be affected. standing on the sidelines. As German they came for me and there was no one “The mere existence of an emergency Yet we stand by and watch governors Pastor Martin Niemoller famously re- left to speak for me.” does not increase constitutional power and legislators issue orders closing some marked: We in the real estate world need to nor diminish constitutional restrictions take a stand. Our practices are being im- ... it is not permissible for any depart- pacted by the disease and the cure. If we ment of the government to change a Right now the real estate world and its remain on the sidelines it just might be Constitution or declare it changed be- practitioners are on the frontlines of the first too late. cause it appears ill adapted to a new state of things such as the emergencies wave of the COVID-19 constitutional crisis. A member of the REBA Condominium Law and created by COVID-19.” Practice Section, Ed Allcock is a managing Right now the real estate world and partner of the Braintree-based firm of Marcus its practitioners are on the frontlines of Errico Emmer Brooks P.C., where he also chairs the first wave of the COVID-19 consti- businesses but not others, prohibit access “First they came for the socialists, the firm’s litigation department. He is admitted tutional crisis. Unfortunately, many of to the courts to some but not others, and and I did not speak out because I was to practice in Massachusetts, New Hampshire us are conflicted with sympathy or have prohibit entry into their states by some not a socialist. Then they came for the and Rhode Island and focuses his practice allowed emotion to cloud our judgment. but not others. trade unionists, and I did not speak out in the areas of complex real estate and con- Others among us are simply standing on When the U.S. Constitution is being because I was not a trade unionist. Then dominium litigation. Ed can be contacted at the sidelines because we are unaffected flagrantly violated and it significantly they came for the Jews, and I did not [email protected]. SEPTEMBER 2020 REBAnews PAGE 3 Plans underway for Nov. 2 all-virtual Annual Conference 295 Devonshire Street, Sixth Floor, Boston, MA 02110-1266 BY JENNIFER L. MARKOWSKI President’s Message Committee and Standards and Forms www.reba.net Committee. The plenary session will This is the time of year when many be live, but all other sessions will be President of us fall back into our familiar rou- pre-recorded. The virtual platform will Jennifer L. Markowski tines and schedules and the often hec- allow registrants flexibility in choos- [email protected] tic pace of the legal profession. People ing what sessions to watch and when return from summer vacations with a to watch them as the content will be President-elect renewed focus on getting things done. available online for 30 days. If you Neil D. Golden Calendars fill up with closings, court [email protected] hearings, client meetings and the like. have not yet registered, I encourage you to do so. Immediate Past President This season will look little like those of years past and will instead In closing, I would like to take this Paula M. Devereaux be an entirely new experience full of opportunity to express how grateful I [email protected] changes and challenges. If, however, am to our members for continuing to Treasurer there is one thing that has remained a support REBA throughout this pan- Kendra L. Berardi constant of this pandemic, it is adapt- website. demic. Due to the cancellation of the [email protected] ing to remote or virtual experiences. I am looking forward to our all- Spring Conference in May, REBA, Everyone at REBA has been re- virtual Annual Meeting and Confer- like many organizations, has felt the Clerk lentless working to make this adaption ence (AMC20) on Nov. 2. With the Julie P. Barry financial impact of this pandemic. To seamless for our members, but none exception of an in-person experience, mitigate the economic stress, I had [email protected] more than Bob Gaudette, who has the AMC20 will follow a similar for- asked members to consider pre-paying maintained a full schedule of webcasts mat to years past. There are 10 sub- Editor/Executive Director their 2021 dues. Many members have for REBA’s sections throughout the stantive breakout sessions, including Peter Wittenborg done so and even made additional do- [email protected] summer. Section leaders will continue two one-hour sessions of Phil Lapa- to plan topical and educational web- tin’s “Recent Developments in Massa- nations to REBA to provide some re- Managing Editor/COO casts throughout the end of the year chusetts Case Law,” covering an entire lief. Nicole Cohen and into 2021. As always, you can find year of case law. I cannot thank you enough for [email protected] details about upcoming presentations We will also have a plenary session your ongoing support. in REBA e-News and on REBA’s with reports from our Nominating Stay safe and be well. Chief Information Officer Robert A. Gaudette [email protected] Accounting Manager Claims to reform don’t necessarily accrue on recording Joseph Lee Butler [email protected] BY MATTHEW S. FURMAN Misunderstanding vs. reality ing 1986 deed in action filed in 2005). Legislative Counsel The existing misunderstanding is to This misunderstanding is conse- Edward J. Smith As a litiga- treat the “ought to have been discovered” quential, particularly in circumstances [email protected] tor frequently language as, essentially, the equivalent of where the parties, and perhaps their suc- involved in real the discovery rule applicable to damages cessors, have proceeded following a real Office Administrator estate disputes, I claims. They are not the same. estate transaction as if everything were Victoria A. D’Angelo often see claims to For example, the discovery rule can drawn up and executed perfectly. Mis- [email protected] reform deeds and only apply if someone’s harm is inher- takes happen, including scrivener’s er- other recorded in- ently unknowable. By contrast, a flawed rors and other blunders that form the MISSION STATEMENT struments based instrument’s recording could render its stuff of reformation. Massachusetts has To advance the practice of real on mutual mis- mistake entirely knowable. After all, re- never required landowners to run into estate law by creating and sponsoring take. In these cases, I continue to be sur- cording is intended to be notice to the court for reformation if they are enjoy- professional standards, actively prised by a persistent misunderstanding participating in the legislative that the statute of limitations clock for process, creating educational programs reformation always starts to run upon and material, and demonstrating and The existing misunderstanding is to treat the recording based on the idea that record- promoting fair dealing and good fel- lowship among members of the real ing is notice. Massachusetts law has nev- “ought to have been discovered” language as, estate bar. er been so harsh to would-be reformers, nor should it be. essentially, the equivalent of the discovery MENTORING STATEMENT In the commonwealth, reformation To promote the improvement of the claims are contractual and, therefore, rule applicable to damages claims. They are practice of real estate law, the mentor- must be brought within six years of their ing of fellow practitioners is the con- not the same. accrual. See G.L.c. 260, §2; Stoneham tinuing professional responsibility of all REBA members. The officers, directors Five Cents Sav. Bank v. Johnson, 295 and committee members are available Mass. 390, 395-96 (1936); CBK Brook world under G.L.c. 183, §4. ing their property rights — even those to respond to membership inquires rela- House I, L.P. v. Berlin, 2004 WL 870122, The SJC, however, has never pro- that were imperfectly conveyed — with- tive to the Association’s Title Standards, at *20 (Mass. Land Ct. 2004); Meng v. nounced that a mistake “ought to have out first encountering an interruption or Practice Standards, Ethical Standards Yan, 2000 WL 1511555, at *2 (Mass. been discovered” simply because it is re- objection from another party. and Forms with the understanding that Super. Ct. Sept. 14, 2000). corded. More importantly, several Mas- In these “nobody-realizes” situations, advice to Association members is not, The question becomes when does sachusetts cases have found reformation record notice has never meant that even of course, a legal option. that accrual clock start to run. The an- claims to be timely well past six years an obvious mistake “ought to have been swer is not necessarily upon recording. after a flawed instrument’s recording. discovered” by a would-be reformer. As © 2020 The Real Estate Bar Association for Massachusetts. Materials may not be repro- Rather, the Supreme Judicial Court See, e.g., Buk Lhu v. Dignoti, 431 Mass. explained by the SJC, “the defendant duced without permission. has long held such a claim does not 292, 293-98 (2000) (affirming reforma- will typically be hard put to offer per-

Postmaster: Send address changes accrue “until the mistake has been or tion of 1980s deeds in action filed in late suasive resistance to the postponement to REBA, 295 Devonshire Street, 6th Floor, ought to have been discovered.” Johnson, 1990s); American Oil Co. v. Cherubini, of the running of the statute, when the Boston MA, 02110 295 Mass. at 396 (citing cases). Tolling 351 Mass. 581, 588 (1967) (rejecting ar- effect is merely to enable the court to the statute of limitations period until gument that reformation of 1951 lease restore the transaction by means of a ref- meaningful notice of a problem exists was time-barred in 1961 action); Franz ormation to its true basis, on which the is premised on the idea that these are v. Franz, 308 Mass. 262, 265-67 (1941) defendant and [the] plaintiff were both no-fault situations making judicial pro- (ordering reformation of 1926 deed agreed.” City of New Bedford v. Lloyd Inv. (ISSN 01967509), 40 Court St., 5th floor Boston, MA 02108 tection appropriate. See “Developments in action commenced no earlier than Assocs., Inc., 363 Mass. 112, 121 (1973). (617) 451-7300 • masslawyersweekly.com in the Law Statute of Limitations,” 63 1939); McGovern v. McGovern, 77 Mass. Harv. L. Rev. 1177, 1213-14 (1950). App. Ct. 688, 699-702 (2010) (reform- See page 9 PAGE 4 REBAnews SEPTEMBER 2020 Quiet on the set: tips for Zoom, other virtual meetings

BY NATHANIEL STEVENS pants see you through your camera rather than their eyes as shown on your screen. It’s becoming • As in a real meeting, maintaining clear that Zoom eye contact other than for occasional and other virtual glances at your notes is critical to appear- meeting platforms ing credible and convincing. will continue to be • When you speak, speak at a steady used as a replace- pace and with a strong voice. Speak too ment for face-to- quickly or too softly and the software face meetings, and may cut you off if it hears a sound from for longer than first another user. Speak too slowly or with anticipated when the COVID-19 pan- long pauses and you may put others to demic began. Knowing how to effectively sleep or get interrupted. run or participate in virtual meetings is • When you are not speaking, mute increasingly important. yourself. This will make it easier to handle As the novelty wears off and people documents and mask any unanticipated gain experience with video-meeting plat- interruption. Just be sure to “un-mute” forms, there is a greater expectation that yourself when you have something to say. each host or participant will be compe- • Remember that your video is on and tent to run or take part in any kind of ©BiancoBlue others can see you even when you are not virtual session, whether court proceeding, active in the event; stay focused and avoid business meeting, public hearing, seminar width for your internet connection to • If you are a host, log in even earlier checking your phone. or otherwise. maintain video and audio throughout the to be sure all the settings and meeting • Refrain from eating during the Regardless whether your meeting event. This might mean scheduling inter- controls are as you want them set. This is meeting. You should appear focused on is on Zoom, WebEx, GoToMeeting, net use with others in your household or especially important if you share an ac- the meeting, not on satiating your hunger. Google Meet, Verizon’s BlueJeans, Mi- adjusting your router’s settings to priori- count with other users. Logging in early Drinking occasionally from a non-de- crosoft Teams or another software plat- tize the device you are using. also allows you to allow participants to script (non-alcoholic) beverage container form, you are expected to be seen and • If you have limited bandwidth, in- join as they log in (if that control is on), is acceptable. heard while seeing and hearing what is struct others sharing your internet to and help participants with any technical • Refrain from touching your face or going on in the meeting. avoid downloading a season of “Game of issues or if they are new to the platform. leaning your elbow on your desk. With Here are some tips to make you a bet- Thrones” or setting their own virtual meet- • Arriving late to a virtual meeting is most cameras capturing just your neck ter meeting host or participant. Let’s start ings at the same time as yours. This might bad form and noticeable with a virtual and face rather than your whole body, with group meetings. Later articles will also mean upgrading the speed of your in- meeting platform that counts the num- such gestures are magnified and distract- give tips for public hearings, depositions, ternet service, which could take time to do. ber of participants and rearranges every- ing where they would not be in an in- negotiations, court hearings and trials. Just before the event begins one else’s screen as you enter the meeting. person meeting. Test your setup well ahead of the Following these tips will let you be, event • Double-check your set-up, especial- and appear to be, focused and involved in ly your lighting. Speak too quickly your event. This will allow you to be more • Create or find a quiet place where • Plug in your laptop or other mobile efficient and effective for a shorter, better you are least likely to be disturbed. device. or too softly and the meeting. Some people are coming to en- • Make sure your internet connection • Have any meeting materials, wheth- software may cut you joy virtual meetings even more than the is strong. Moving closer to or connecting er printed or on another screen, as close old-fashioned, in-person kind! with an ethernet cable to your WiFi rout- to your meeting screen as possible so you off if it hears a sound er can help strengthen and make more can look at them without turning away A member of REBA’s Environmental Section reliable your connection. from your camera, especially if you are from another user. and a regular contributor to REBA News, • Turn on your laptop or mobile de- presenting or speaking. Nathaniel Stevens is a senior associate with vice’s camera to check what others can • If you are presenting and will be McGregor & Associates. He assists clients with see in the background. sharing your screen, close any programs a diverse range of environmental and land use • Test any virtual background you and program windows that you will not Some platforms are set to ring a bell or related matters, including wetlands permits, want to use because it can have a glitch at be using, and neaten up your desktop announce your name as you enter, so you zoning, septic/Title V, hazardous waste, under- the last minute. in case the screen sharing inadvertently cannot do so quietly. ground storage tanks, subdivisions, stormwater and comprehensive permits. He also handles • Try for a clean, noncontroversial and shows those things. At the beginning of the meeting uncluttered background without distrac- • If you are presenting, have a glass of litigation involving appeals from state agen- tions. If this is challenging in your physi- water within reach in case it’s needed, but • As you enter the meeting, be sure cies and local boards, insurance claims for cal space, consider using a virtual back- not so close as to ruin your computer or to start your video as well as your audio. environmental damage, and cost recovery for ground that meets these criteria. mobile device if it spills. If you’re not using audio over the inter- cleanups. He can be contacted at nstevens@ • Particularly avoid the appearance of • Silence or mute any other devices net, call in to the meeting by phone. mcgregorlaw.com. background objects projecting out of or you have nearby, such as your phone, just • If you are telephoning in for meet- through your head. as you would do if you were attending a ing audio instead of through your video • Test your microphone and speakers, meeting in person. Put your phone away device, inform the host as you may ap- earbuds or headset that you plan to use. and don’t look at it during the meeting, pear to the host as two separate partici- Why I am a REBA member… Be sure they are plugged in or sufficiently unless there is a specific meeting-related pants (your video and your phone). Through its lunchtime programs charged to operate through the meeting. reason for you to check it. • If you’re using a virtual background, and simulcasts, REBA provides in- • Your camera should be just above • Dress appropriately for the meet- be sure that it is appropriate to you and valuable insights into many topics or below eye level and between two and ing — and fully dress in case you have to the event. Also, check that both you and important to land use and real estate four feet from your face, so that it is easy stand up! it are displaying properly, not making law practitioners. Whether it is a to maintain eye contact. The farther away, Don’t be late you look like you’re using a transporter Land Court judge presenting updated the more of your body is visible as would from Star Trek, which can be distracting. rules and procedures, or attorneys be the case in an in-person meeting. • If you are hosting, send participants Regardless, if you move around, your digesting recent court cases and new Arrange your room, lighting and a reminder of the meeting and login in- image may flicker and be incomplete. laws, or counsel offering perspective ‘quiet on the set’ formation 15 to 30 minutes before the • Wait for instructions from the meet- and practical tips representing parties meeting is scheduled to begin, even if ing host about how the meeting will pro- to a transaction or trial, I always come • Lighting is critical to properly show you originally scheduled the meeting by ceed using the platform, such as whether away educated and enriched. REBA’s your face so you don’t appear as a shadow a meeting invite with all that info. It will you will be automatically muted, whether publications similarly are filled with or with the dreaded Zoom double-chin. serve as a reminder and help participants you should use a “raise your hand” function relevant and helpful articles. REBA The primary light source should be above arrive on time by not having to search for if you wish to say something, whether the members are very generous in shar- and in front of you. If you wear glasses, be the original invitation. “chat” function will be used, or whether ing their knowledge and experience wary of reflections in your lenses. • If you are a participant, log into you will be able to share your screen. during and outside of REBA events. • Close curtains or blinds on win- the meeting several minutes before it During the meeting Because of all this, REBA member- dows behind or beside you that, if open, is scheduled to begin. This allows time ship is a great value! will make you appear as a shadow. for you to submit the passcode and any • When you speak, try to look at your Nathaniel Stevens • Setting up proper lighting takes credentials, and allow any last-minute camera as much as possible rather than McGregor & Legere, PC, Boston time. internet or technology hiccups to be ad- the other participants’ images on your Member since 2005 • Check that you have adequate band- dressed. Get familiar with the format. screen. This is because the other partici- SEPTEMBER 2020 REBAnews PAGE 5 COVID emergency orders, separation of powers, and the appeal period under the Zoning Act

BY NICHOLAS P. SHAPIRO and the clerk’s notice absolutely must be Regardless of filed within 20 days; the 20-day deadline is ideology, political a drop-dead date. An abutter’s stagecoach affiliation, or any -as will turn into a pumpkin on the 21st day. sessment of wheth- The Supreme Judicial Court, however, er emergency orders issued a series of emergency orders during and legislation in the COVID-19 crisis, the most recent of its wake have been which was entered on June 24, was effec- good policy, the tive as of July 1, and includes a provision COVID-19 pan- that purports to toll “all deadlines set forth demic has stretched our existing legal archi- in statutes ... that expired at any time from tecture, strained the rule of law and notions March 17, 2020, through June 30, 2020” to of separation of powers, and placed in broad a date on or after June 30, 2020, based on a relief the need to rethink and modify emer- calculation formula. (Emphasis added.) gency powers to better fit the next phase of On its face, this order seems to apply this crisis or the next crisis. inter alia to G.L.c. 40A, §17’s 20-day dead- When, in March 2020, Gov. Baker is- line, notionally supplying potential plain- sued an executive order purporting to al- tiffs in zoning appeals with a period of time low open meeting proceedings to occur ©AndreyPopov considerably in excess of the 20 days pre- remotely, practitioners began asking and scribed by the statute. This is unprecedented considering an obvious question: This is of this potential legal overreach, since it twenty days.” “[R]eceipt of notice by the in Massachusetts land use practice, based a great and perhaps completely necessary lasted all of about three weeks. But, this was town clerk is a jurisdictional requisite for an on existing appellate law on this issue. idea from a public health perspective, but not the only example of well-entrenched action under G. L. c. 40A, § 17, Garfield v. It is true that decisions, such as Ko- can a governor, in effect, alter statutory text and likely constitutionally required respect Board of Appeals of Rockport, 356 Mass. 37, nover, supra, show that “strict enforcement via executive order, without the Legisla- for separation of powers being formally ig- 39 (1969), which the courts have ‘policed in and strong policing” do not require “inflex- ture’s blessing? nored, albeit for exceptionally good policy the strongest way,’ Pierce v. Board of Appeals ible literalness,” i.e., some marginal excep- The governor’s legal team, likely, shared reasons, during the pandemic. of Carver, 369 Mass. 804, 808 (1976), and tions to statutory requirements have been the same concern, as the General Court Section 17 of the Zoning Act requires given ‘strict enforcement,’ O’Blenes v. Zon- allowed. 32 Mass. App. Ct. at 323. How- moved extremely expeditiously at his peti- that an appeal be brought “within twenty ing Bd. of Appeals of Lynn, 397 Mass. 555, ever, “[t]he key element of these decisions tioning, among others, to codify his March days after the decision has been filed in the 558 (1986).” Konover Management Corp. v. relaxing the rigors of strict compliance 12 executive order, in the enactment of office of the city or town clerk,” and that Planning Bd. of Auburn, 32 Mass. App. Ct. with the zoning appeal statute is that with- H.B. 4598, which Baker signed into law on “[n]otice of the action with a copy of the 319, 322-323 (1992). in the mandatory twenty-day period the April 3. complaint shall be given to such city or In sum, generally speaking, in real es- clerk is actually notified that an appeal — No harm, no foul, at least on the score town clerk so as to be received within such tate litigators’ line of work, a zoning appeal See page 7

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Summer Street • Boston, MA • . . • PIERCEATWOOD.COM PAGE 6 REBAnews SEPTEMBER 2020 Appeals Court takes mystery out of altering one-, two-family preexisting nonconforming residences BY MICHAEL J. O’NEILL residences did not increase their nonconforming nature: “Because of their The decision small-scale nature, [those renovations] of the Appeals could not reasonably be found to in- Court in Henry crease the nonconforming nature of a W. Comstock, Jr., structure, and we conclude, as a matter Trustee and an- of law, that they would not constitute other v. Zoning intensifications.” Board of Appeals “Concerns over the making of of Gloucester and small-scale alterations, extensions or others, authored structural changes to a preexisting by Justice James Milkey, illustrates the house are illusory. Examples of such strong protections afforded by G.L.c. improvements could include the ad- 40A, §6, to owners of single- or two- dition of a dormer; the addition, or family preexisting nonconforming enclosure, of a porch or sunroom; the residences who want to renovate their addition of a one-story garage for no residences. They are protected by signif- more than two motor vehicles; the con- icant obstacles to neighbor opponents version of a one-story garage for one of such projects on account of minor motor vehicle to a one-story garage for issues. two motor vehicles; and the addition of The decision translates the arcane small-scale, proportional storage struc- §6 in a way that any lawyer, land use ©Lawcain tures, such as sheds used to store gar- planner and even layperson can under- dening and lawn equipment, or sheds stand. It is a must-read for any attorney portant limits. Where the alteration or without a variance, while an owner of used to house swimming pool heaters or client dealing with reconstruction reconstruction would add an additional a preexisting nonconforming structure and equipment.” Id., at 362. or renovation of a preexisting noncon- nonconformity (not just extension of could do so based merely on a finding Bjorklund is another must-read for forming one- or two-family residence. an existing nonconformity), the owner that the change would not cause sub- any attorney dealing with issues of re- In Comstock, the Appeals Court ad- would need a variance to allow the ad- stantial detriment to the neighborhood. construction or renovation of a one- or dresses an application by the owner of ditional nonconformity. Besides, Deadrick did not issue a fi- two-family preexisting nonconforming a preexisting nonconforming residence In addition, according to the ruling, nal resolution of the matter but rather residence. to tear down a dilapidated freestanding “Municipalities are free to adopt more remanded the case to the local zoning The Appeals Court decision in garage and replace it with a new garage forgiving rights so long as they do so board to determine whether the pro- Comstock adds a significant historical on the same footprint, three feet higher explicitly.” Gloucester had adopted a posed new home was exempt from the note, indeed an important advance in than the existing garage. zoning ordinance that affords to acces- height restriction and a variance there- linguistic reform, separate from zoning. The Superior Court, relying on fore would not be needed. The court notes in footnote 11 that the Deadrick v. Zoning Board of Appeals of The Gloucester zoning ordinance term used to refer to the protection af- Chatham, 85 Mass. App. Ct. 539 (2014), The decision here included a provision that allowed forded by G.L.c. 40A, §6, to all struc- had issued summary judgment in favor owners to build accessory structures tures that predate applicable zoning of a neighbor opposing the project, on translates the arcane up to 12 feet high and to exceed that restrictions is commonly known in the the grounds that the new garage creat- height through a special permit pro- case law and otherwise as “grandfathered a new non-conformity because of its §6 in a way that cess open to owners of conforming and ing.” For example, see Burke v. Zoning height and required a variance, which any lawyer, land nonconforming structures. Owners Board of Appeals of Harwich, 38 Mass. the owner did not have. who proceeded in this manner would App. Ct. 957, 958 (1995). The Appeals Court reversed, clarify- use planner and not be creating a new conformity, but The court describes the origins of ing its decision in Deadrick and holding would be proceeding in full compliance the term “grandfather clause,” which that the project was permitted by lan- even layperson can with the provisions of the ordinance originally referred to provisions adopt- guage in the local zoning bylaw and did governing height. ed by some states after the Civil War to not require a variance. understand. The owners in Comstock had ob- disenfranchise African-American vot- The decision in Comstock explains tained a special permit from the zoning ers. The court declines to use the term that, generally, preexisting noncon- board of appeals determining that the “grandfathering” because of its racist forming structures lose the protection new garage would not be more detri- origins. provided by the statute when the struc- sory structures the same extra level of mental to the neighborhood. Therefore, The open question now the subject tures are extended or structural changes protection afforded to single- and two- the Appeals Court held, the owner’s of list serves and online forums is what are made to them. If the structure is a family residences. The Appeals Court project to build a new garage was in full term or terms will now be used in sub- single- or two-family residence, though, thus concluded that the freestanding compliance with the zoning ordinance stitution for a structure or use that is the statute provides an additional layer garage was entitled to the same protec- and did not need a variance. “grandfathered.” Candidates might in- of protection. Such structures can be tion afforded to single and two-family The Comstock decision in footnote 1 clude: “prior nonconforming structure/ modified, extended or reconstructed residences under G.L.c. 40A, §6 (of- states that it does not reach the question use,” “protected, preexisting noncon- as of right, so long as the extended or ten referred to as the “second except whether the Legislature intended that forming structure/use,” “lawfully preex- altered structure does not increase its clause”). the extensive statutory protection af- isting nonconforming structure/use,” or nonconforming nature. The Appeals Court inComstock ze- forded to one- and two-family residenc- “prior lawful nonconforming structure/ Where the changes do increase the roes in on its reasoning in Deadrick to es also applies to accessory structures, use.” Elsewhere in the country, it is a nonconforming nature of a protected explain why the result in that case was and cited Bjorklund v. Zoning Board of corollary of “vested rights.” We are ac- residence, however, they can still be necessary to prevent a gross dispar- Appeals of Norwell, 450 Mass. 357, 362- cepting nominations! undertaken by special permit so long ity and why it is not applicable to the 363 (2008) as a case that touched on as the permit-granting authority finds facts in Comstock. In Deadrick, the court that issue. Stay tuned, therefore, as to Mike O’Neill is a senior associate at McGregor that the proposed modification would held that a contrary ruling would create garages and barns generally. & Legere, P.C. He has more than 35 years of not be substantially more detrimental a gross disparity between how owners Bjorklund did far more than just experience in a wide range of litigation in all to the neighborhood than is the exist- of conforming structures and noncon- touch on that issue. That decision by courts and in real estate and commercial law, ing nonconformity. forming structures would be treated: An Justice John Greaney made a pro- concentrating in environmental land use law The protection afforded to preex- owner of an existing conforming struc- nouncement as a matter of law that cer- as well as real estate and commercial law and isting nonconforming one- and two- ture could not build an addition that tain specified renovations to one- and litigation. Mike can be contacted at moneill@ family residences does have some im- created a dimensional nonconformity two-family preexisting nonconforming mcgregorlaw.com.

Visit us online www.reba.net SEPTEMBER 2020 REBAnews PAGE 7 COVID emergency orders, separation of powers, and the appeal period under the Zoning Act

CONTINUED FROM PAGE 5 Legislature to enact laws and the courts to to comply with the 20-day deadline, and interpret them, not to amend or change only seek to take advantage of the emer- i.e., a complaint — has in fact been timely statutory language, including extending gency orders’ extensions, when/if COV- Why I am a REBA member… filed.” Id. at 324-325 (footnote omitted). statutory deadlines, even if there were ex- ID-19 truly practically prevented an appeal For dirt lawyers, REBA mem- “The statutory purpose is then served, ceedingly good policy reasons for doing so. and notice from being filed within the 20- bership is essential. REBA’s twice- because ‘interested third parties [can] be But, again, the body that ultimately day appeal period otherwise prescribed by yearly conferences and constant forewarned [by the clerk] that the zoning makes the rules and decides if Massachu- the statute. stream of programming from its status of the land is still in question.’” Id. setts law has been broken or violated, the Regardless of how it should be practi- substantive sections and committees at 325, quoting Carr v. Board of Appeals of SJC, apparently has ordered this deadline cally approached, this matter of the inter- keep me abreast of developments Saugus, 361 Mass. 361, 363 (1972). and advancements in real estate law, This rationale for loosening the stan- across all subdisciplines. REBA’s dards would appear to be absent when It would be an apparent fool’s errand to try to forms, title and ethical standards are considering, and inapplicable to, the CO- a lodestar, when this litigator dips his VID-19 crisis, even though there is a dif- convince the SJC that it had acted ultra vires feet into shoal transactional waters. ferent, arguably even more powerful, pol- The Association serves purposes icy rationale for such loosening under the during an extreme public health emergency. as diverse as allowing its members SJC’s emergency orders, at present. to advocate for or against legisla- That said, however, the emergency or- tive changes to real estate law, to ders also reflect a loosening of standards supplying a boundless reservoir beyond any prior point — no one has been “tolled.” It speaks, and generally we must play between the SJC’s emergency orders of knowledge and expertise in the permitted to file and give notice beyond listen. Who are practitioners to appeal to if and the 20-day appeal period under the broad range of subject matters that the 20-day mark before, not even on the the SJC has violated its own rules? On mat- Zoning Act is a microcosm of what has collectively comprise the law of real 21st day. See Planning Board of Falmouth v. ters of state law, the SJC has the final word. been happening more broadly throughout property, writ-large. With my REBA Board of Appeals, 5 Mass. App. Ct. 324, 325, Having taken an informal poll of col- the country. membership, if I am presented with 328 (1977). But, at least based on present leagues — names will be withheld to pro- Our rule of law is not particularly set up a question the answer to which human memory, the courts have also never tect the innocent — the consensus appears or suited to handle emergencies of the type confounds me, I know where, and effectively been closed before (only emer- to be that, yes, these orders appear to ap- that we have been enduring. Enactment to whom, I should turn. And, the gency matters were being heard for a con- ply to the 20-day appeal period under the of broader emergency powers can be scary answer is invariably thoughtful, inci- siderable period of time over the spring). Zoning Act, and yes, this type of extension and dangerous, because other polities have sive and friendly. With REBA, I am Equitable principles, asserted to ex- seems at a minimum to be unprecedented, seen such powers abjectly abused. But, the never lost and alone. tend the deadline, such as reliance upon if not violative of separation of powers, but present crisis demonstrates that it would Nicholas P. Shapiro faulty advice from a town clerk, have been what is a practitioner going do about it? be doctrinally cleaner, and perhaps better Phillips & Angley, Boston rejected by the SJC, in this area of law, on For the reasons already stated, it would for the long-term health of the rule of law, Member since 2011 this precise type of issue. See O’Blenes, 397 be an apparent fool’s errand to try to con- for the legislative branches of federal, state Mass. at 556-559. vince the SJC that it had acted ultra vires and local governments to grant executive 2011. His focus and practice areas are con- Equitable tolling, sparingly applied to during an extreme public health emergen- and judicial branches the express latitude centrated on zoning, land use, real estate and statutes of limitation, which this deadline cy. Doctrinal purity must bend to practi- needed to meet emergency challenges, such telecommunications, counseling real estate arguably is not, has never been applied in cal exigencies. And, who wants to be that as the COVID-19 pandemic, rather than developers, private land owners, neighbors this context before. And, the number of de- attorney — the one who complains about force them to act arguably illegally. and abutters, and institutional/corporate cli- cisions in which the SJC has held and rea- finite, though potentially illegal, extensions Norms, rules and separation of powers ents throughout the commonwealth. Nick is a soned that, regardless of its own perceived granted during a serious crisis? matter. They should be respected, lest they member of the REBA Board of Directors and policy preferences, it has no authority to To avoid this type of conversation, be set asunder. graft more language upon, or alter, statu- quarrel and issue, practitioners appear to serves as co-chair of the association’s Land tory text are legion. be advancing from the premise that, where Nick Shapiro is a shareholder at Phillips & Use and Zoning Section. Nick can be con- Generally speaking, it is the job of the possible, it would be preferable to continue Angley. Nick joined the firm as an associate in tacted at [email protected]. Appeals Court: Land Court settlement doesn’t bind non-party

CONTINUED FROM PAGE 1 zoning relief, which the selectmen had no Specifically, although not overruling authority to grant. The selectmen did not Morganelli, the Appeals Court in Stevens participated as the proper enforcing officer, have authority to amend the zoning by- illustrates to local boards how to settle a Why I am a REBA member… and the interests of all the citizens of Can- law or grant a use variance. zoning case in court correctly. The funda- REBA is an invaluable resource to ton, including the abutter, were represented. The Appeals Court in Stevens further mental lesson is that the Board of Select- all lawyers whose practice involves real The Appeals Court in Stevens distin- ruled that any decision or order of the men cannot, by agreement with a land- estate, which is probably most lawyers, building inspector pursuant to a settle- owner, divest abutters of rights to bring from conveyancers to lawyers who ment agreement would be subject to challenges pursuant to G.L.c. 40A, nor litigate real estate matters, from title Although not the notice and hearing requirements of can any agreement eliminate the require- to land use permitting. The Standards G.L.c. 40A, which cannot be bypassed ments for notice and hearing pursuant to and Forms save conveyancers from overruling Morganelli, via a settlement agreement. Most practi- G.L.c. 40A. Any remand must be to the having to reinvent the wheel countless tioners are aware that a remand of a zon- board having jurisdiction. times. The mid-day webcast seminars the Appeals Court in ing appeal to a board of appeals should The decision further suggests how are enjoyable and enable one to learn Stevens illustrates to include provision for notice and hearing, to settle other types of appeals from lo- in-depth from lawyers who practice in pursuant to G.L.c. 40A. cal land use boards such as the planning cutting-edge issues. They provide the local boards how to Furthermore, the Appeals Court not- board, board of health, conservation whole story, including all sides. This is ed that the abutter in Stevens moved to commission, historic commission, public another huge time-saver if you have settle a zoning case in intervene in the Land Court case, but his works, road commissioner, water division, the same issue in your own practice. motion was denied. “Unlike the plaintiffs sewer authority and more. Stay tuned. Time well spent! court correctly. in Morganelli, the abutters in the pres- The Appeals Court’s decision inSte - Michael J. O’Neill ent case had no opportunity in the Land vens ultimately reinforces the fundamen- McGregor & Legere, PC, Boston Court action to ensure that their interests tal legal principle that a settlement agree- Member since 2005 guished Morganelli on the basis that the were protected.” ment does not generally bind those who prior case in Morganelli was resolved by Morganelli is a familiar, widely cited are not parties to it, so they are free to uti- an adjudication, whereas the prior case in precedent. It has been a major obstacle lize other remedies for what they assert to courts and in real estate and commercial law, Stevens was resolved by an agreement. to litigants challenging land use where be legal violations. concentrating in environmental land use law As a “threshold matter” in Stevens, there has been prior litigation in which as well as real estate and commercial law and the Appeals Court ruled that the agree- the building inspector was a party. Stevens Mike O’Neill is a senior associate at McGregor litigation. Mike can be contacted at moneill@ ment by the selectmen settling the Land provides a new roadmap to litigants seek- & Legere, P.C. He has more than 35 years of Court case amounted to the granting of ing to distinguish Morganelli. experience in a wide range of litigation in all mcgregorlaw.com. PAGE 8 REBAnews SEPTEMBER 2020

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REBA FOUNDATION’S ALL-VIRTUAL 2020 REBA ANNUAL MEETING & CONFERENCE MONDAY, NOVEMBER 2, 2020 SEPTEMBER 2020 REBAnews PAGE 9 Claims to reform don’t necessarily accrue on recording

CONTINUED FROM PAGE 3 Presnell, 409 Mass. 239, 240 (1991). More New York’s Hart exception pres- derstood) meaningful-notice accrual for importantly, finding a reformation claim ents an interesting carve-out to protect these claims in Massachusetts. Its ratio- Simply stated, the SJC has long re- time-barred in a nobody-realizes situation the nobody-realizes landowners if this nale is consistent with the no-fault logic quired more meaningful notice of a prob- leads to an inherently inequitable result on harsher view were to take hold. See Hart pronounced by the SJC in City of New lem than mere recording at the registry. a claim with its roots in equity. v. Blabey, 39 N.E.2d 230, 232 (N.Y. Bedford. See Schlotthauer v. Sanders, 153 For example, in Cherubini, the lessee was A New York state of mind? 1942). The exception provides that “‘as A.D.2d 731, 732 (N.Y. App. Div. 1989) permitted to reform a property description to one who is in possession of the real (“a Statute of Limitations is ... designed in a recorded 1951 lease even though suit It is conceivable more is expected of property under an instrument of title, to put an end to stale claims, and was was not filed until 1961. The lessee only those holding property rights today. An the statute never begins to run against never intended to compel resort to legal discovered the mistake after exercising its argument might be made that cases such his right to reform that instrument until remedies by one who is in complete en- purchase option 10 years into its lease. as Johnson or Cherubini are outdated and he has notice of a claim adverse to his joyment of all he claims.”). The SJC rejected the lessor’s statute parties should not get the benefit of ad- under the instrument, or until his pos- The carve-out would also appropri- of limitations defense because the “first ditional time to correct mistakes that are session is otherwise disturbed.’” Wilshire ately treat the “ought to have been dis- occasion which the [lessee] would have apparent from the registry (and, nowa- Credit Corp. v. Ghostlaw, 300 A.D.2d covered” question as one of fact as op- had to check the sufficiency of the de- days, the online registry). 971, 973 (N.Y. App. Div. 2002) (quoting posed to treating nobody-realizes land- scription of the land was its search of the However, this approach would be Hart, 39 N.E.2d at 232). owners as on notice simply because of title subsequent to the exercise of its op- devastating to the nobody-realizes re- This “well recognized exception” a flawed instrument’s recording many tion to purchase.” Cherubini, 351 Mass. formers who likely acquired property has been widely applied in New York years or even decades earlier. at 588. rights from their predecessors well past to protect nobody-realizes landowners The commonwealth has always pro- Cherubini illustrates that record no- a six-year window for a necessary ref- seeking reformation well after the limi- tected landowners that are quietly en- tice does not equate to accrual of a refor- ormation claim and have enjoyed them tations clock would otherwise have run. joying property rights based on flawed mation claim based on mistake in these since then without interruption or ob- TEG N.Y. LLC v. Ardenwood Estates, instruments without any interruption or nobody-realizes situations. Any sugges- jection. Such an interpretation would Inc., 2004 WL 626802, at *5 (E.D. N.Y. objection. It should continue to do so. tion that the clock always starts to run appear to require all landowners in the March 30, 2004) (invoking exception to upon recording is fundamentally incor- commonwealth to re-run title searches find limitations period to reform 1993 A member of the REBA Litigation Section, Matt rect. on their property and would flood the instrument did not start to run until Furman concentrates his practice at Todd & After all, “when a plaintiff knew or courts with claims brought out of an 2002) (internal quotations omitted). Weld LLP in Boston on complex commercial should have known of his cause of action abundance of caution, even on mat- More importantly, this carve-out litigation, including business, employment and is one of fact which in most instances will ters that may appear relatively trivial or would be consistent with the public pol- real estate disputes. He can be contacted at be decided by the trier of fact.” Riley v. where no controversy even exists. icy behind the longstanding (but misun- [email protected]. SJC: no per se zoning injuries as basis for standing CONTINUED FROM PAGE 1 tion of violation alone. The court wrote, “But Murchison did not need an expert Why I am a REBA member… controls generally regulate the number to determine that, if the proposed de- of units given a particular area of land. velopment violated the bylaws, then it For my practice doing development work and land use litigation, the bar Having turned a lot-width require- would be too close to his house. This is small and almost all such practitioners are members of REBA. If I want to ment into a density control, the Ap- is simply a function of the language of know and develop working relationships with the people that I see in cases peals Court then observed that mu- the bylaws and the fact that his house day to day, then REBA is the place to be. Plus, the programming is excellent. nicipalities adopt density controls to is across the street from the vacant lot.” prevent injuries to neighborhoods. In a similar case then pending in Dan Dain The court wrote that “cities and towns the Land Court, Chilton v. Medford Dain Torpy, Boston are free to make legislative judgments ZBA, Judge Foster in a lengthy foot- Member since 2001 about what level of density constitutes note seemed to solicit Supreme Judi- harm in various zoning districts and to cial Court further appellate review of counsel (this author) argued that the violate a density regulation should have codify those judgments in bylaws.” the Appeals Court’s decision in Mur- Appeals Court’s reasoning was flawed a free bite at the apple if that violation This too was an unusual conclu- chison. Though binding on the Land in part because, even if one accepts causes particularized harm to another sion because legislative intent was not Court, Judge Foster observed that the plaintiffs’ argument that the building property owner.” part of the trial record and it does not Appeals Court’s decision in Murchison inspector had miscalculated lot width, Panarella and Erichsen attacked necessarily follow that density controls appeared to be a significant departure there was no nexus between the plain- this reasoning. If the plaintiff chooses are meant to protect against injuries to from traditional standing jurisprudence tiffs’ claims of injury and the lot width density as the basis for injury, then it requirement. A lot-width requirement makes no sense that the injury derives might protect immediate abutters on from the overcrowding of land from Apart from setting new ground in standing law, either side, but not someone across the the construction of a single home. Only street (who would be protected from when the number of units in a particu- the SJC’s decision in Murchison may be most overcrowding by the front setback re- lar area exceeds the density control can quirement). one even make a claim related to over- notable for its comprehensiveness. It promises The SJC seemed to accept the re- crowding. quirement of a nexus between the al- The SJC did not get into a deep to be the new principal case cited on the state leged zoning violation and the alleged discussion of the point, only noting injury, noting that “injury must be caus- that the plaintiffs had failed to make of standing law. ally related to violation of zoning laws the showing that the neighborhood is … .” (emphasis added). If the alleged already more densely developed than violation is not the cause of the alleged zoning permits, thereby effectively re- neighbors. Rather, to the extent that in its conflating of the separate analyses injuries, then there would not be stand- instating this requirement. there ever is legislative history as to the of standing and the merits. He wrote, ing. Finally, apart from setting new adoption of zoning controls, the adop- “The effect of the Murchison decision is Second, going back to the 2008 ground in standing law, the SJC’s deci- tion of density controls generally is to give abutters standing per se — that Dwyer v. Gallo standing case, the Ap- sion in Murchison may be most notable motivated by the interest in preserving is, without any need to demonstrate peals Court stated that evidence that a for its comprehensiveness. It promises municipal resources — to prevent over- particularized harm — when the inter- neighborhood is already more densely to be the new principal case cited on crowding schools or stressed water or est in density is at issue.” The Supreme developed than the zoning code per- the state of standing law. sewer systems — and not out of a con- Judicial Court granted FAR. mits is necessary to establish injury cern for neighbors, whose interests are The SJC’s decision reversing the from an alleged density violation. More Co-chair of REBA’s Litigation Section, Dan more traditionally and directly protect- Appeals Court can be understood as recently, however, courts had become Dain is founder of the Boston-based firm of ed through dimensional controls such a reaffirmation of traditional standing lax in their enforcement of this ele- Dain, Torpy, Le Ray, Wiest & Garner, P.C., and as height and setback (with which the law. The decision does not particularly ment of standing based on density. The chairs the firm’s litigation practice. Dan also proposed house in this case complied). break new ground, but it does clarify a Appeals Court in Murchison had gone serves on the Board of Directors of NAIOP of The final step in the Appeals Court’s couple of points that this author finds a step further, rejecting the Dwyer v. Massachusetts. He represented the prevailing analysis was to derive injury from the of interest. The project-proponents Gallo analysis on the reasoning that “[t] party in the above-described case. Dan can be combination of proximity and allega- (Panarella and Erichsen) and their here is no reason the first neighbor to contacted at [email protected]. PAGE 10 REBAnews SEPTEMBER 2020 2020 Annual Meeting & Conference

To continue serving the needs of our members in today’s era of social distancing and remote work and learning, the 2020 REBA Annual Meeting & Conference will be a completely virtual experience, permitting registrants to access, at their convenience, all ten of the hour-long, RIMCLE-accredited scheduled breakout sessions remotely from their homes or of- fices.

On Monday, November 2, 2020, video recordings of the ten hour-long, RIMCLE-accredited breakout presentations, including two, one-hour sessions of Phil Lapatin’s popular Recent Developments in Massachusetts Case Law, as well as the syllabus materials, will be available online to registrants for 30 days. At 1:30 pm, there will be a live broadcast of the plenary session and business meeting, which will include remarks from REBA President Jen Markowski and President- elect Neil Golden.

REGISTRATION Complete this registration and return it with payment to: REBA Foundation, 295 Devonshire Street, 6th Floor, Boston, MA 02110 You may also register by phone at 617.854.7555 or online at www.reba.net. By Oct 26 After Oct 26 r Please register me as a REBA member in good standing: $ 235 $ 260 r Please register me as a non-REBA member guest: $ 275 $ 300 r I would like to purchase the conference syllabus. $ 200 $ 200

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General Information: REBA’s 2020 Annual Meeting & Conference welcomes both REBA members and non-members. The registration fee includes the breakout sessions, plenary session and electronic syllabus. Register via mail, phone or online at www.reba.net; submit one registration per attendee. We will confirm registration by email. To guarantee a reservation, please send your registration, along with the appropriate fee, on/before October 26, 2020. Registrations received after Oc- tober 26, 2020 will be subject to a late registration fee of $25. Registrations may be cancelled in writing on/before October 26, 2020 and will be subject to a processing fee of $25. Registrations cannot be cancelled after October 26, 2020; however, we welcome substitutions of registrants attending the program. Conference materials will be mailed to non-attendee registrants. The AMC20 has been approved by the RIMCLE for 240 minutes of general credits OR 60 minutes of ethics + 180 minutes of general credits. Professional liability insurance and CLE credits in other states are also available. For more information, contact Bob Gaudette at 617.854.7555 or [email protected].

REGISTER ONLINE AT WWW.REBA.NET SEPTEMBER 2020 REBAnews PAGE 11 2020 Annual Meeting & Conference SCHEDULE OF EVENTS Do’s and Don’ts of Deeds of Distribution new MassHealth guidelines, which use different life estate tables than the Christina T. Geaney; Tracie M. Kester traditional IRS tables to allocate sales proceeds between the life tenant Join Massachusetts Land Court Chief Title Examiner Christina Geaney and and to the remaindermen. This session will review recent cases on the Stewart Title Underwriting Counsel Tracie Kester for a discussion of deeds remainder’s rights to a homestead estate, and the right (if any) of the life of distribution under the MUPC, and when (if ever) they can be used when tenant to change the remainder interests. It will also provide a chart that the property is registered land. Geaney will review the recent Memorandum can be appended to closing disclosures to ensure proper settlement. regarding Land Court Guideline 14, Death: The Effect of Death upon Registered Land Titles, as well as the new Complaint for Certificate After Death form, which replaced the prior LCP-2 form. Kester will review statutes and case law relating to deeds of distribution and their effect on real estate titles. Navigating the 2006 Mortgage Discharge Law: It’s Not as Complicated as it Looks ~ A Practical Skills Session Ward P. Graham; Kurt F. Stuckel Pervasive Title Pitfalls: The Greatest Hits (and Misses) In 2006, as a REBA legislative initiative, MGL ch. 183, §§ 54-55 were Tucker Dulong; Daniel J. Vieira substantially amended to assist homeowners and conveyancers with the It is often remarked that history repeats itself, and the same is true when vexing issues of missing and improper mortgage discharges. As we all speaking of certain real estate title issues. Join our panelists for a lively know, problems with discharges persist. These amendments are commonly discussion as they review a range of topics, including probate, trusts, referred to as “The Mortgage Discharge Law.” Since these amendments homestead, acknowledgments, and others, highlighting recurring problems, common misconceptions, and appropriate remedial measures. This were enacted, the Discharge Law has been somewhat well-utilized by some program will provide valuable insights for the experienced practitioner and lawyers and title insurance claims departments. However, many remain title newcomer alike. mystified by the variety of curative options provided in the Discharge Law and how they can be used to resolve any given discharge problem. This session will review The Mortgage Discharge Law and how it works, and provide examples of solutions that this statute offers. Tales from REBA Ethics Hotline: Questions for Conveyancers Rodney S. Dowell; Kathleen M. O’Donnell Rodney Dowell, Counsel to the Board of Bar Overseers, and Kathleen O’Donnell, Co-chair of REBA’s Ethics Section, present REBA’s biannual Don’t Fight Authority – Authority Always Wins ~ A Practical Skills update of current ethical dilemmas faced by conveyancers, including a Session discussion of the new rule on clients’ files. Matthew J. Carbone; Margaret M. Fortuna Ever wonder what your underwriter means when asking if the signer of your closing documents is an authorized signatory? Are there any Got Tenancy? At-Will or At-Sufferance exceptions to signatory authority? Whether you are handling a residential Hon. Marylou Muirhead; Ted S. Papadopoulos or commercial transaction, improper authority documents can delay, and As most of us already know, a tenancy is an exclusive possessory interest sometimes undermine, your transaction. Foreclosure documents, trusts, in real property for a period of time. However, to determine what rights LLCs, corporations, and more, we will discuss what documentation you are bestowed upon a tenant and landlord, we must take a closer look. This must review in determining whether the person executing the document program will cover various types of residential and commercial tenancies, possesses authority to do so, and what authority documentation you must with an emphasis on the distinctions between tenancies at-will and record to satisfactorily establish that authority. tenancies at-sufferance. Hopefully, following your participation, we will help you answer whether you have “Got Tenancy.”

Massachusetts Lead Paint Laws: Painting the Risk Landscape ~ A The Good, Bad and Ugly: What’s Brewing on Beacon Hill? Practical Skills Session Francis J. Nolan; Edward J. Smith Vincent N. DePalo; Dominic H. Poncia III Unlike in years past, fewer lawyers serve in elective office, particularly the Lawyers, property owners, and landlords all must be aware of the risks Massachusetts legislature. Even so, bills that would affect the practice of associated with lead and lead poisoning, before and after closings. Both conveyancing, landlord/tenant, zoning and land use law are integral to debate hidden and obvious pitfalls exist for those who own properties that on important public policy issues on Beacon Hill. The panelists will discuss the prospects for zoning reform, deed transfer taxes, resumption of rent control may contain lead paint. Lawyers must understand the relevant statutes, and other measures intended to create more affordable housing. Also, national regulations, and cases that govern lead litigation and affect transactions and local well-funded efforts to expand emerging technologies in closings, throughout Massachusetts. This program will provide a practical discussion including remote on-line notarization, challenge REBA to remain vigilant in of lead paint legal issues through real-life examples from attorneys who opposing legislation that would marginalize the conveyancing by lawyers. The have tackled these problems in transactions and in litigation. panel will discuss how REBA will face these and other challenges.

Recent Developments in Massachusetts Case Law Working with Life Estates: Creation, Changes & Conveyances ~ A Practical Skills Session Philip S. Lapatin Leo J. Cushing; Lisa J. Delaney Now in his forty-second year as case commentator at REBA’s twice-yearly Life estates are considered an effective estate planning tool, although the conferences, Phil Lapatin continues to draw a full house with this session. details can have unintended tax and non-tax consequences, including high Attending his twice-yearly presentations are a must for any practicing real capital gains taxes for the remaindermen if the real estate is sold before estate lawyer. Phil is the 2008 recipient of the Association’s highest honor, the life-tenant dies. These untoward consequences are exacerbated by the the Richard B. Johnson Award. PAGE 12 REBAnews SEPTEMBER 2020

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