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Preexisting, Nonconforming Uses and Structures: A Recent Appeals Court Clarification

  
  
  
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Written by: Thomas P. Gorman 

Revisions to local zoning ordinances look prospectively.  Thus, when a zoning ordinance is enacted prohibiting a specific use in any particular district, a property engaged in such use before the enactment will be protected as a preexisting, nonconforming use.  This protection is subject to the requirements of G.L. c. 40A, § 6, which provides in part that preexisting nonconforming structures or uses may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. 

SJC Decision Permits Solicitation of Nominating Signatures at Supermarket Entrance

  
  
  
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Written by: Joshua M. Alper

Owners and operators of supermarkets and other commercial property in Massachusetts should be aware that on October 10th, the Supreme Judicial Court announced its decision in Glovsky vs. Roche Bros. Supermarkets, Inc., SJC-11434, which allows a candidate for public office to solicit nominating signatures at a supermarket entrance, even a solo site supermarket which does not operate as part of a shopping center or mall.

Recent Changes to the Law of Private Construction Contracts - Your Government is Here to Help You Again

  
  
  
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Written by: Peter Friedenberg

As part of the end-of-session rush at the General Court this summer, significant changes were made to Massachusetts law governing private construction contracts at the urging of general contractor and subcontractor industry groups. Members of the development and lending community were largely taken unaware as the bill moved forward, and unsuccessfully attempted in the later stages of the process to modify or defeat the legislation. Consequently, developers, lenders, contractors, sub-contractors, design professionals and attorneys need to be aware of substantial changes (and many unanswered questions) created by the new statute in the areas of withholding and release of retainage, defining substantial completion, and preparation of punchlists.

Recorded Deed with Defective Acknowledgement Fails to Provide Constructive Notice to Third Parties

  
  
  
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Written by: Anthony L. DeProspo

In a case of first impression, the Massachusetts Appeals Court recently held that a real property grantee could not be charged with constructive knowledge of a prior recorded deed which lacked proper notarization.  The Appeals Court decision in Allen v. Allen, 13-P-605 (Sept. 16, 2014), serves as a stark reminder that statutory formalities are strictly interpreted in the context of real estate conveyances.

A Primer: Economic Loss Doctrine Not Necessarily Bar to Tort Recovery

  
  
  
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Written by: Anthony L. DeProspo

Although the “economic loss doctrine” has historically barred recovery of certain classes of tort damages, the Massachusetts Supreme Judicial Court recently affirmed an Appeals Court decision holding that the doctrine did not bar a condominium association’s negligent construction claim against a developer for alleged faulty construction.  The Court’s ruling in Wyman v. Ayer Properties. LLC, SJC-11474 (July 19, 2014), based almost entirely on equitable principles, represents a potentially significant shift away from generally recognized principles of tort recovery.

Massachusetts Registered Land - A Primer

  
  
  
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Written by: Andrew Royce

Many out-of-state attorneys and real estate professionals are unfamiliar with the existence of registered land in Massachusetts.  Approximately 15 to 20% of Massachusetts land is registered, meaning that title is certified by the Commonwealth, the description of the land and a list of all encumbrances is found on a certificate of title issued by the Land Court, and documents affecting such land must be filed with the Registry District of the Land Court having jurisdiction over the county (or portion of the county) in which the land is located.  Although registered land systems have existed in several states, they are currently used extensively only in Massachusetts and Minnesota.

2014 Massachusetts Solar Update

  
  
  
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Written by: Bethany A. Bartlett 

SREC II: It seems we hardly knew you

In April of 2014, the Massachusetts Department of Energy Resources (DOER) published amendments to 225 CMR 14.00 creating the next generation of the Solar Carve-Out Renewable policy known as SREC II.  The major differences between the SREC II program and its predecessor was (a) the creation of SREC factors based on four different market sectors, and (b) a declining auction bid price for SRECs over the life of the program.  The Managed Growth sector contains all those projects which do not meet the criteria for the other three sectors (which cover residential, solar canopy, emergency power, community solar, units located on landfills or Brownfields (the definition of which is the subject of a draft DOER guideline) and roof top along with ground mounted units with capacity greater than 25 kW with 67% or more of the output used on-site).  Unless large commercial ground mounted projects (the type of projects that underwent a growth explosion under SREC I) are built on landfills or Brownfields, they would need to qualify under the Managed Growth sector.  SREC II limited the number of these large projects by capping the Managed Growth sector at 26 MW for Compliance Year 2014 and at 80 MW for Compliance Year 2015. 

Purchase Money Security Interests - Value Limited

  
  
  
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Written by: Tracey M. Stockton

During a recent discussion, the topic of purchase money security interests arose and it seemed like a good topic for a quick review.  In Massachusetts, the concept of the purchase money security interest is codified at Article 9 to the UCC, under the heading, “Secured Transactions.”  Let’s briefly look at who is entitled to this type of security interest and, if you have one, what benefit does it provide? 

Buying Standing? Buyer Beware.

  
  
  
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Written by: Thomas P. Gorman 

The doctrine of standing to sue -- the status that allows a plaintiff to bring a lawsuit in the first instance -- is as elusive as it is fundamental.  Courts will dismiss an action unless the plaintiff can show that it has standing.  As the United States Supreme Court has explained, the doctrine of standing ensures that the courts hear only those cases or controversies where the plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination….”  Baker v. Carr, 369 U.S. 186, 204 (1962). 

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Science Meets Government: MassDEP Moves Forward With Contingency Plan Regulations

  
  
  
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Written by: Ronald W. Ruth and Kevin Hall

Last month, the Massachusetts Department of Environmental Protection (DEP) promulgated several important amendments to the Massachusetts Contingency Plan (MCP), which sets forth the procedures and standards for remediation of environmental contamination. The amendments aim to increase regulatory efficiency while maintaining a high standard of environmental protection by eliminating unnecessary permit requirements, increasing transparency with regards to site closure conditions and updating cleanup standards based on the most recent science.

For example, one amendment addresses the recent change in scientific understanding of the relationship between residual petroleum and future site use. Residual petroleum, a relatively common complication of contamination, is essentially a thin “film” of petroleum existing in a “separate phase” of the surrounding soil and groundwater (think oil and vinegar). In the MCP, this “separate phase” is referred to as a nonaqueous phase liquid (NAPL). The old MCP contemplated a NAPL upper concentration limit (UCL) which required the “film” to be less than ½ inch regardless of NAPL mobility and/or contamination risk.

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