In a highly unusual move, only one day after hearing oral argument the Supreme Judicial Court on Friday (March 6, 2020) reversed an Appeals Court decision concerning standing in land use cases. The decision upheld the Land Court decision and reaffirmed what had been...
Real Property
A Contractor’s Best Friend: The Statute of Repose and Time Limits on a Homeowner’s Tort Claims
Good news for contractors, developers, and design professionals – Massachusetts’ highest court has recently confirmed that you cannot be held liable for negligent design, planning, or construction activities more than six (6) years after you finish that work. ...
No Variance Necessary to Increase Preexisting Nonconformity; c. 40A § 6 Finding Sufficient
Land use practitioners in Massachusetts are well aware of the “difficult and infelicitous” language of the first two sentences of G. L. c. 40A, § 6 concerning single and two-family dwellings. The statute reads: Except as hereinafter provided, a zoning ordinance or...
An Adverse Possession Decision With A Twist
An otherwise-normal adverse possession case took an interesting turn when, in a recent decision, the Land Court judge declined to quiet title to the plaintiff’s property after denying the defendants’ counterclaim for adverse possession. In Borawski v. Gralinski (Land...
Massachusetts Rule Confirmed, No Legal Remedy for Damage Caused by Neighbor’s Healthy Tree
Frank Lloyd Wright said “the best friend on earth of man is the tree,” but perhaps the epigram is less true if the tree is on your neighbor’s property and causing damage to your property. In Massachusetts, it has long been the rule that a property owner may not hold a...
Johnson & Borenstein win subdivision appeal against Town of Lunenburg in Land Court
Johnson & Borenstein partner Donald F. Borenstein represented developer O’Brien Homes, Inc. in a long-running dispute between O’Brien and the Town of Lunenburg over the subdivision of a former egg farm and other adjacent property in Lunenburg, MA, totaling 135...
Appeals Court Affirms Anti-SLAPP Relief Not Available in Land Court Try Title Action Where Defendants Named Based on Claim of Property Rights, Not Petitioning Activity
In 1994, the Massachusetts Legislature enacted a so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, to provide a procedural remedy for early dismissal of suits which seek to use litigation to intimidate opponents into foregoing the valid exercise of their...
Lack of Standing Leads to Dismissal of Zoning Appeal
Johnson & Borenstein has successfully challenged a zoning appeal on standing grounds as well as the merits. In Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), an abutter appealed a decision of the Town of Danvers Board of Appeals approving a...
Most Recent Lawsuit Over Truro’s Kline House Dismissed
Is the litigation over Truro’s infamous “Kline House” finally over? Maybe. After years of litigation through multiple levels of the court system, concluding with a multi-million dollar settlement between the owners of the Kline House and the Town (for the history of...
Land Court Says Hull Zoning Bylaw Doesn’t Allow Weekly Rentals
In an interesting decision that could have ramifications for the short-term rental of property, the Land Court in Lytle v. Swiec, (Mass. Land Ct. May 23, 2017), held that the Hull Zoning Board was correct in upholding the decision of the Building Commissioner that the...