Appeals Court Clarifies “Common Scheme” Restrictions

Earlier this month, the Appeals Court decided Berger v. 2 Wyndcliff, LLC, a dispute over conflicting interpretations of how to extend so called “common scheme” restrictions on land use.  G.L. c. 184, §. 27.  The restriction in this case originated in 1980 when a property owner executed an agreement of “protective covenants and easements” for the benefit of future owners in conjunction with subdividing her property.  The agreement restricted development (among other things, only one single-family dwelling was allowed per lot), and was to run with the land and bind the parties for 30 years from the date of recording.  These were common scheme restrictions that applied to four or more contiguous parcels.

Future owners later amended the agreement, with one amendment by two-thirds of the owners purportedly allowing extensions of the restrictions beyond 30 years.  Neighbors ultimately sued each other, disputing whether these restrictions were extended or had expired in 2010.  The Appeals Court held that, because the instrument originally creating the restriction did not allow extensions, any such amendment violated G.L. c. 184, § 27(b).  That law allows common scheme restrictions to be extended beyond 30 years for 20 years at a time under certain conditions, including that the imposing instrument allowed for extensions.  Other (non-common scheme) restrictions may be extended without regard to the language of the original instrument imposing the restriction.

In deciding an issue not reached by the Land Court below, this case highlights a difference between common scheme restrictions and non-common scheme restrictions.  The judge below had concluded that the amendments made the restrictions unlimited as to time and, thus, they expired 30 years from their creation.  See G.L. c. 184, §. 23. He did not reach the issue of whether these parties to common scheme restrictions had properly changed the restrictions’ duration.  In the seminal 2001 case Stop & Shop  v. Urstadt Biddle Properties, the SJC held that parties (two abutting commercial landowners) to a land use restriction agreement could remove a fifty-year prohibition on certain uses.  Removing the time limit made this restriction “unlimited as to time,” invoking G.L. c. 184, §23 and putting the property in a situation where the restriction expired in 30 years.  But that was not a common scheme restriction, to which we now know that slightly different rules apply.

This result is logical — common scheme restrictions apply to a group of neighbors, who may have had limited or no bargaining power when acquiring their properties.  The initial developer sets the common scheme restrictions, giving those coming into possession notice of the unique qualities and restrictions of the neighborhood.  In contrast, it is more equitable for two abutters (such as the owners of one burdened and one benefited parcel) to freely bargain for and enforce lengthy, non-common scheme land use restrictions.  As the Appeals Court stated, “the mechanism for the extension of restrictive covenants cannot be added by a later vote of less than one hundred percent of all property owners in the common scheme.”  It should be easier for two neighbors to agree on land use than it would be for the four or more neighbors in a common scheme.

For questions, call or email Gail Magenau Hire.

 

Firm Successes – Fall 2017

Tom Mackie and John Shea were selected by Best Lawyers of America (2018 edition) for Environmental Law and Environmental Litigation.  The Firm was ranked in Best Law Firms as Tier 1 Boston and Tier 2 nationally.  Best Lawyers is the oldest and most respected peer- review publication in the legal profession for “legal expertise, ethics and professionalism of the highest caliber.”

Peter Durning obtained Special Permits approving the Town of Concord’s replacement of an aged public water supply treatment facility and surface water intake pipe, after a year-long hotly contested public hearing.      

John conducted a multi-day public hearing on a transfer station site assignment modification for the Northbridge Board of Health.

Peter obtained an Order of Conditions approving a uniquely designed single-family home against vociferous neighborhood opposition for over a year in Arlington.

The New England Real Estate Journal selected John’s client’s commercial mixed-use development as “Project of the Month” (September 22-28, 2017, Section B, centerfold, nerej.com).  Olde Shrewsbury Village was a colonial-style shopping center with a footbridge at the junction of Routes 9 and 20 in Shrewsbury.  Turtle Rock, LLC, the owner, developed an ambitious revitalization plan that included relocating an internal stream to the property perimeter in order to create parking close to the retail shops.  Mackie Shea was on an elite development team that advanced a creative technical, legal and political strategy, and over four years secured local, state and federal permits and approvals.  Little Bummet Brook was transformed from a stormwater drainage ditch into a vibrant stream and ecosystem.  Construction was timed to avoid potential impacts to the Northern Long-Eared Bat, a newly listed endangered species.

John obtained two novel Advisory Opinions under MEPA. The first confirmed that land alternation (including a 5-year look back) did not require environmental review for a 50-acre commercial subdivision in Lancaster.  He also secured a Determination from MassDEP that a wastewater treatment plant is not required, and assisted in obtaining public water supply wells for the “anchor” businesses.  The second Advisory Opinion confirmed that an Eversource solar power array on his client’s coal ash landfill was non-jurisdictional, and could proceed with MassDEP post-closure use permitting.

John negotiated Administrative Consent Orders (ACO) with MassDEP approving wetland restoration and mitigation for sedimentation for a national home builder, a regional condominium developer, and a national assisted living and memory care company for historically filled wetlands and an MCP Brownfields cleanup.

Tom successfully defended against a Town’s attempt to invalidate the extension of contracts to operate a municipal transfer station, and to transport and dispose of the Town’s waste; negotiated a purchase and sale agreement for acquisition of a recycling facility on a Brownfields site; and obtained a site assignment modification allowing a construction and demolition debris processing facility to transfer by rail municipal solid waste and mildly contaminated soil.

Tom obtained reconsideration and reversal of a regional electrical transmission authority’s determination that a request for extension of an interconnection agreement with a transmission company was a major modification, avoiding new interconnection studies and applications.

Tom and John were named for Environmental Law and Peter for Environmental Litigation to the 2017 Massachusetts SuperLawyers List.  Gail Hire was selected as a Rising Star.  SuperLawyers have attained a high degree of peer recognition and professional achievement.  The designations are based on third-party research, balloting by lawyers, and a peer review process.

Firm Successes – Fall 2015

  • Tom Mackie and Peter Durning successfully represented MGM Redevelopment LLC in Land Court against a challenge by an abutter to MGM’s proposed Springfield Casino to the proposed dimensions of the Springfield Casino Overlay Zoning District. The City of Springfield was ably represented by City Solicitor, Ed Pikula.
  • Tom and Peter  won a case in the Massachusetts Appeals Court that affirmed their Land Court victory reinstating building permits for a $200M 35 MW biomass power plant planned for Springfield that had been wrongfully revoked by the local Zoning Board of Appeals. They also successfully opposed a Petition for Further Appellate Review of the Appeals Court decision to the Supreme Judicial Court.
  • John Shea negotiated a Consent Judgment with the Attorney General’s Office for a heavy industry client which requires an upgrade of air emission controls that will establish nationwide BACT, operational and management improvements at three facilities, and the performance of two Supplemental Environmental Projects. A substantial portion of the civil penalty is suspended and will be forgiven upon achieving compliance milestones.  The negotiations took nearly three years.
  • John and Peter prevailed in a hotly contested MassDEP wetlands adjudicatory hearing in which the municipality and a ten resident group challenged our client’s stormwater management system for a 50-lot, high-end residential development.
  • John  negotiated a settlement in an adjudicatory appeal by an environmental organization of our municipal client’s groundwater discharge permit for upgrades and increased sewage flow to its wastewater treatment facility. The settlement agreement and modified permit requires increased groundwater monitoring and evaluation of nitrogen loads, development of a nitrogen offset plan for increased concentrations in a watershed flowing to an impaired embayment, and evaluation of nitrogen pollution reduction measures, including an ocean outfall, under the Cape Cod Water Quality Management 208 Plan Update.
  • After an adjudicatory appeal by an abutter, John and Peter obtained a Final Negative Determination of Applicability for minor changes to our clients’ fully approved and constructed home on the Dartmouth coast. The Presiding Officer and the MassDEP Commissioner determined inter alia that the LID roof runoff collection and watering system will not harm wetland resources.
  • John obtained a Water Quality Certification from MassDEP and a 404 Permit from the Army Corps for a stream relocation to facilitate the revitalization of a retail shopping center, and a state-of-the-art stormwater management and new riverfront habitat. The Corps’ approval requires “time of year” construction limits to protect potential habitat of the newly-listed endangered Northern Long-Eared bat.
  • Peter assisted a residents’ group in Marblehead to develop and implement a strategy that eventually convinced a neighbor to withdraw his planning board application to construct a grandiose garage/exercise/office structure on a portion of the jointly-owned, island roundabout.

It’s Time to Restore the Promise of the Permit Session.

In the September 14, 2015 issue of Massachusetts Lawyers Weekly, Tom and Peter provide their opinion on recent judicial efforts to undermine the legislature’s intent in passing the Permit Session Statute. With this issue poised to go to the Supreme Judicial Court, this is a good time to restore the promise of the Permit Session.