Southborough Grappling with Open Space Concerns in Proposed Zoning Bylaw

Posted on February 14, 2013 by

SouthboroughWe have been tracking Southborough’s ongoing efforts to update and modernize its Zoning Bylaw for many months here at the Mirick Real Estate Law Blog.  See previous posts here, here, here and here.  As reported recently in the MetroWest Daily News and in the MySouthborough Blog, one of the latest hurdles is Southborough’s three-member Open Space Preservation Commission, which asserts that the new bylaw does not do enough to preserve open space.  Specifically, the Commission objects to the proposed bylaw’s Open Space Residential Development provision (OSRD).  Under the proposed OSRD, developers can receive a 20% density bonus by reserving a minimum of 50% open space in the project.  The OSRD is intended to encourage increased open space and foster a diversity of housing, including townhouses and condominiums.  In addition, the OSRD would provide additional protection to abutters by increasing the setback requirement from 30 to 50 feet. 

The proposed OSRD is also intended to address the shortcomings of the current zoning bylaw’s Major Residential Development provision (MSRD), particularly with respect to open space.  According to the Southborough Economic Development Team (of which I am a member), in the last 15 years, five MSRD developments have yielded an average of less than 31% open space.  Twelve Flexible Subdivisions have yielded less than 35% open space.  Because the method of calculating the percentage of open space remains consistent, the proposed bylaw will yield significantly greater open space than has been historically achieved in Southborough. 

Nevertheless, the Commission feels the proposed OSRD is too generous to developers and that the open space requirements can be too easily satisfied with “leftover scraps” and “long narrow strips” of land.  Despite opposition from the Commission, the MWDN reports that “the Planning Board believes the proposed bylaw contains incentives needed to encourage developers to willingly give more much land.”

Southborough’s efforts to revise and update its Zoning Bylaw have been in progress since 2008.  The Planning Board is holding a series of public meetings as it reviews the proposal.  One or two more are expected, after which a Special Town Meeting will be held likely sometime over the summer to vote on the new bylaw.  We will continue to monitor the progress and keep you posted with any updates.

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SJC Again Rebuffs Local Attempts to Control 40B Low-Income Housing Developments

Posted on February 4, 2013 by

40B ProjectZoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC is the Supreme Judicial Court’s (SJC) latest snub to municipal attempts to control the development of low income housing.  Despite testimony from the Town’s Fire Chief that the Town lacks the necessary equipment to battle a structural fire at the project, and testimony from the Town Administrator about the Town’s financial inability to provide educational, safety and law enforcement services to the development’s residents, the SJC affirmed the state Housing Appeals Committee’s (HAC) approval of the project. 

Sunderland is a small town of 3,700 residents bordering Amherst in western Massachusetts.  Sugarbush Meadow applied for a comprehensive permit under G.L. c. 40B to build five three-story buildings with 150 rental apartments.  The Sunderland Zoning Board of Appeals (ZBA) denied the project citing a variety of concerns, including fire safety, fiscal impact and the relative need for affordable housing in the region.  Sugarbush appealed to the HAC.  The HAC vacated the ZBA’s decision and ordered it to issue the comprehensive permit.  The ZBA unsuccessfully appealed the HAC’s decision to the Superior Court and then to the SJC. 

On appeal the ZBA alleged several errors by the HAC.  First, the ZBA argued that the HAC should have considered the availability of low-cost, market-rate rental housing when calculating the ten percent affordable housing threshold under G.L. c. 40B.  This is a critical issue because when a town affordable housing stock is below 10 percent, developers largely can bypass local zoning regulations.  The SJC rejected the ZBA’s argument concluding that under the statute, G.L. c. 40B, §20, and the regulations, 760 CMR 56.02, only housing that is subsidized by the Federal or State government is considered in weighing the regional need for affordable housing.  The SJC reasoned that non-subsidized housing may not be safe or decent, may be only temporarily available because of a weak housing market, or could be improved or enlarged such that it would no longer be affordable.  As an aside, the Court stated in a footnote that, although not applicable in this particular case, unsubsidized housing can count towards the ten percent threshold provided such housing is subject to a Use Restriction and Affirmative Fair Marketing Plan under 760 CMR 56.02. 

Second, the SJC rejected the ZBA’s argument that fire safety concerns outweighed the regional need for low and moderate income housing.  Noting that the project would have a state-of-the-art sprinkler system and comply with all fire safety code requirements, the SJC dismissed the Fire Chief’s concern that “the town lacks the equipment needed to obtain access to the roof in the event of a ‘structural fire’” and does not possess a ladder truck tall enough to reach the roof. 

Third, the SJC rejected the Town’s concerns about the fiscal impact of the project, including the need to purchase a ladder truck for fire safety, as well as the increased educational, police, and firefighting costs associated with the project.  In short, the SJC held that such financial concerns may not be considered in evaluating whether the denial of project approval is consistent with local affordable housing needs under G.L. c. 40B, §23.

Following the SJC’s January 8, 2013 decision rejecting another municipal appeal of an HAC approval for a 40B project in Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee, the SJC’s more recent decision in Sunderland is another shot across the bow of municipalities that attempt to deny or overly restrict the development of low income housing.  The Sunderland Court notes the Legislature’s intent in enacting G.L. c. 40B “to balance between leaving to local authorities their well-recognized autonomy generally to establish local zoning requirements … while foreclosing municipalities from obstructing the building of a minimum level of housing affordable to persons of low income.”  While the goal of promoting the development of more low income housing is certainly laudable, many municipalities will be left wondering after Lunenburg and Sunderland what local autonomy remains when it comes to the regulation of 40B projects.

For questions about permitting 40B projects or litigating disputes involving 40B projects, please contact David McCay, an experienced Massachusetts real estate litigator at Mirick O’Connell at

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The Basics of Environmental Due Diligence

Posted on January 30, 2013 by

Guest post by Michael Coté of Corporate Environmental Advisors, Inc.

Environmental AssessmentEnvironmental due diligence is a legal and technical investigation conducted to satisfy certain liability protections using state and federal environmental laws or standards. Due diligence can also be used to develop information about environmental conditions used to allocate liability and manage environmental risks. The first step in performing environmental due diligence is typically a Phase I Site Assessment. The Phase I can be conducted in accordance with American Society for Testing and Materials (ASTM) Standard E1527 (Standard for Environmental Site Assessment) or All Appropriate Inquiry (AAI) (AAI Final Rule – 40 CFR Part 312. AAI).  It should be noted that according to AAI, if an investigation is conducted in accordance with ASTM E1527, it then meets the requirements of AAI.

The Phase I is intended to protect the commercial real estate property buyer and/or lending institution and to satisfy one of the requirements to qualify for landowner liability protections. The Phase I may also be conducted by the seller prior to marketing a property, in order to better understand the environmental liabilities prior to a sale.

Proposed Modifications

The ASTM Phase I was initially approved in 1995 with a major change in 1997, and later minor changes in 2005.  Every 8 years ASTM Standards must be reviewed, updated and voted upon according to ASTM bylaws. ASTM is proposing new changes to the Phase I Standard to provide additional clarification. The revised ASTM Phase I Standard, ASTM E1527-13, is expected to include a new category of Recognized Environmental Condition (REC), the Controlled Recognized Environmental Condition (CREC), which would apply to risk-based closures of contaminated sites. This new term would impact the way findings and conclusions are discussed in the Phase I ISA Report, and could potentially affect the report user’s understanding of environmental risk. Another proposed change is an explicit requirement for regulatory file reviews on adjacent properties. These reviews are typically conducted by most consultants when appropriate, due to the risk those nearby properties pose to the subject property, if they are found to be contaminated.

Other proposed changes include:

  • The term Vapor Migration has been added to the definitions sections. Within the definition, there is note of the ASTM E2600-10 vapor encroachment standard, and
  • Enhanced descriptions of what is required of the user of the report, and why it is important.

Choosing the Right Consultant

Contracting with the right environmental consultant is critical. ASTM has defined a qualified person as an “Environmental Professional”, with specific education and experience. The final rule defines an “Environmental Professional” as someone who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to a property, sufficient to meet the objectives and performance factors of the rule. In addition, an environmental professional must have:

  • A state or tribal issued certification or license and three years of relevant full-time work experience; or
  • A Baccalaureate degree or higher in science or engineering, and five years of relevant full-time work experience; or
  • Ten years of relevant full-time work experience.

Many buyers opt not to perform an AAI or ASTM investigation, but the failure to perform such an investigation can be costly and time consuming if overlooked and environmental liabilities are present. The findings of an ASTM Phase I can delay a sale weeks, if not months.  This delay, however, is insignificant when weighted against the cost a post-closing environmental liability.   

For questions on environmental due diligence issues, please contact Mike Coté of Corporate Environmental Advisors at , or David McCay, and environmental attorney at Mirick O’Connell at .

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Coming Soon: Guest Commentary from Corporate Environmental Advisors

Posted on January 23, 2013 by

CEA logo“On Solid Ground: The Mirick Real Estate Law Blog” is pleased to announce that Corporate Environmental Advisors, Inc., (CEA) will begin providing guest commentary, insight and analysis to our Blog.  CEA is a full-service environmental management firm with expertise in environmental consulting and contracting, health and safety compliance, remediation, 24-hour emergency response, and field services.  CEA is also a certified and qualified vendor by the Massachusetts Department of Environmental Protection.  With more than 25 years of experience, CEA will provide “hands-on” expertise on managing environmental issues from an engineering and technical perspective. 

CEA is headquartered in West Boylston, Mass. with offices throughout the Northeast.  CEA’s experts include Professional Engineers, Licensed Site Professionals, Certified Professional Geologists, Risk Assessors, Compliance Specialists, and environmental engineers and scientists. 

To learn more about CEA, visit their website at www.cea-inc.com and stay tuned to “On Solid Ground” for news, analysis and commentary on environmental matters from CEA’s talented professionals.

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Appeals Court Vacates $56 Million Big Dig Arbitration Award

Posted on January 22, 2013 by

In Massachusetts Highway Dept. v. Perini Corp., the Appeals Court vacated a $56 million arbitration award in favor of Perini-Kiewit-Cashman Joint Venture (“PKC”), one of the general contractors for portions of the Central Artery/Tunnel Project (“Project”).  The Court held that the arbitrating body incorrectly determined the threshold issue of whether the parties agreed to arbitrate arbitrability, i.e., whether a panel of arbitrators should determine what disputes are subject to arbitration. 

The 1995 contract between PKC and the public agencies overseeing the Project (“CA/T”) provided that disputes were to be presented to a three-member disputes review board (“DRB”) which would issue findings and nonbinding recommendations to the project director.  In turn, the project director could accept, revise, or reject the DRB’s recommendations.  The parties could then appeal the project director’s decision to the appropriate State agency or to the Superior Court. 

As the Project progressed, hundreds of disputes arose involving claims by PKC for delay and additional costs.  As a result, in 1999, the parties entered into a subsequent agreement mandating that existing claims would be subject to binding arbitration with the DRB.  Those claims were identified in an exhibit to the 1999 agreement.   

When the dispute resolution process commenced, PKC and CA/T disagreed as to which claims were subject to binding arbitration and which were not.  The DRB issued a decision on arbitrability – which it declared binding – and proceeded to award PKC $56 million, of which $44 million was designated as binding under the terms of both the 1995 contract and the 1999 agreement.   CA/T appealed, arguing it never agreed to binding arbitration on the issue of arbitrability.

The Court noted that the law requires clear and unmistakable evidence in resolving whether the parties agreed on who should decide arbitrability.  In this vein, unlike deciding whether a particular merits-based dispute is arbitrable, a party’s silence or ambiguity does not create a presumption in favor of arbitration.  Here, the 1999 agreement did not contain any language indicating that the DRB should act as a binding arbitrator on disputes over arbitrability.  Therefore, the Court held that the DRB was authorized only to make nonbinding recommendations as to arbitrability to the project director who could then, at his discretion, accept, revise, or reject the recommendation.  The Court rejected PKC’s arguments that CA/T’s course of conduct evidenced its intent to submit the issue of arbitrability to the DRB in binding fashion, or that CA/T implicitly waived its right to judicial review of that issue. 

Although the Court acknowledged that some of the claims comprising the $56 million award were subject to binding arbitration under the parties’ agreement, it vacated the entire award because the claims were so inextricably connected that splitting them would have produced an unworkable result. 

The lesson here is that parties to a contract who want an arbitrator to determine not only the substantive dispute between them, but also whether the dispute itself is subject to arbitration, must explicitly state as much in their agreement.  A simple agreement that provides that all disputes will be resolved by binding arbitration will not suffice.  In that instance, the court, and not the arbitrator, will determine the question of arbitrability.

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A Primer On Construction Contracts

Posted on January 10, 2013 by

AIA Doc ComparativeFor most contractors, daily responsibilities are simply too many to afford much time and effort in drafting optimal contract forms.  This task, however, should not be overlooked.  Contract language will directly affect your rights and obligations.  It will determine, among other things, your scope of work, payment rights, insurance, indemnity, and warranty responsibilities, as well as how and when disputes are resolved.  Favorable language can mean the difference between profit and loss and, in some circumstances, solvency and insolvency.  At the front end, presenting a well-crafted contract to the owner will reflect well on your business acumen and can help procure additional work.  While contracts should be tailored to particular customers and projects, the following is a primer on some important factors and terms to consider when creating or modifying your contract form.

1.  Contract Formation.  A common misconception is that anything short of a written document with the word “contract” in bold across the top will not constitute a binding contract.  More accurately, essentially any exchange between you and another individual or business may create binding obligations.  In legal parlance, all that is needed to form a contract is an offer, acceptance, and consideration.  Contractors should be aware that documents common to the industry, such as credit applications, quotations, purchase orders, change orders, delivery slips, and invoices can, in certain circumstances, form a contract and create obligations for you or your business.  In addition, casual exchanges in the form of emails or even verbal communications can also form a legally binding contract.

2.  Scope of Work Terms.  The provisions that set forth the contractor’s scope of work is typically the meat of the agreement.  These terms describe the service that you have agreed to provide.  It is imperative that you, your project manager, or whoever is responsible for contract procurement, pay careful attention to this provision so as to not bind your company to work that is unreasonable or untenable.  If the scope of work is attached as a separate document, which is common, that is permissible but should be referenced in a clear and concise manner in the principal contract document. 

3.  Payment Terms.  Equally important is the language that specifies how and when the owner is required to make payments.  These provisions should clearly set forth the method of payment, procedure for payment, and, if applicable, any conditions precedent to payment, such as inspections, or, as is common on larger projects, payment from owner to general contractor.  Keep in mind that for residential projects, the Home Improvement Contractors Act, M.G.L. c. 142A, prohibits up-front payment of more than one-third of the total contract price. 

4.  Risk of Loss.  You should pay close attention to the provisions that might affect your obligations in the event something goes wrong.  These primarily include clauses addressing insurance, indemnification and warranty.  This language is particularly important on projects where you are working alongside other contractors with whom you have no contractual relationship.  A poorly worded indemnity or warranty provision may cause your company to take on more responsibility than anticipated.  Make sure that the only work you own is work that you performed.  

5.  Dispute Resolution.  Alternative dispute resolution provisions have become the industry standard.  This is language that requires some form of mediation, arbitration, or both, often in lieu of litigation in the courts.  Arbitration is commonly viewed as a quicker and cheaper alternative to litigation, which is often accurate.  However, builders and remodelers should be keenly aware of the dispute resolution language in their contracts and should adjust the language as necessary to particular projects and circumstances. 

Do not overlook the importance of a good contract that is user-friendly and that contains terms that are advantageous to you or your business.  While the provisions referenced above are some of the more important terms to be aware of, all of the language in your contract form should be carefully reviewed to ensure that your rights and your business are sufficiently protected.

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Communities Taking Preemptive Strikes Against Marijuana Shops

State House Dome (A2004533)Local officials across Massachusetts are seeking to restrict or ban marijuana dispensaries from opening in their towns and cities, likely setting up a legal showdown between local zoning provisions and the new state law legalizing medicinal marijuana.

Marijuana Dispensaries May Open Later this Year:

In November, voters approved Question 3 on the state ballot, enacting a new statute that allows doctors to prescribe marijuana to patients with certain medical conditions. The law, which took effect on January 1, 2013, also allows non-profits to operate medical marijuana treatment centers, or marijuana dispensaries, under regulations to be issued by the state Department of Public Health (DPH).

Up to 35 dispensaries may be licensed in 2013, with at least one to be located in each of the state’s 14 counties. However, no marijuana dispensaries may open until the DPH issues regulations, due not later than May 1, 2013.

Local Bans on Dispensaries to be Reviewed by the AG’s Office:

Some municipal officials hope to make their communities off limits to marijuana dispensaries before the DPH regulations come out. Town meetings in Wakefield and Reading recently passed zoning bylaws prohibiting marijuana dispensaries in all zoning districts. Closer to home, Westborough is considering a similar prohibition.

Before taking effect, the Wakefield and Reading bylaws must first pass muster before the Municipal Law Unit of the Massachusetts Attorney General’s Office. The AG’s Office has authority to disapprove a town bylaw, in part or in whole, if the bylaw is inconsistent with or prohibited by state or federal law.

While municipalities have fairly broad authority to regulate land use, the Wakefield and Reading zoning bylaws raise a few legal questions:

  1. Home Rule – Are these bylaws inconsistent with or preempted by the new state law enacted by Question 3, and therefore impermissible under the Home Rule Amendment to the Massachusetts Constitution? The text of Question 3 is silent on local control over marijuana dispensaries.
  2. 1st Amendment – Is the use of marijuana for medicinal purposes a form of free expression protected by the 1st Amendment to the U.S. Constitution, similar to adult entertainment uses, such that they may not be completely banned by local zoning?
  3. A.D.A. – Do these bylaws violate the Americans With Disabilities Act by denying patients access to medicinal marijuana?

Many communities may wait for the AG’s decisions on the Wakefield and Reading bylaws before proceeding with their own zoning provisions on marijuana dispensaries.

Zoning Moratoria Would Provide Temporary Bans:

In lieu of an immediate zoning ban, Cambridge and Burlington are considering moratoria that would temporarily prohibit marijuana dispensaries for a fixed period of time (October of 2013 in Cambridge; June of 2014 in Burlington). Each moratorium is designed to give the community time to study this new land use and to consider drafting successor zoning provisions to regulate or prohibit marijuana dispensaries. Zoning moratoria have been upheld as valid exercises of local zoning authority, provided they are of limited duration.

We will provide updates as the AG’s Office, the DPH and other municipalities tackle this new area of law.

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Appeals Court Ruling Promotes Expedited Resolution of Land Use Disputes

Posted on January 4, 2013 by

John Adams CourthouseIn 2006, then-Governor Mitt Romney signed into law “An Act Relative to Streamlining and Expediting the Permitting Process in the Commonwealth.”  The Act created a designated “permit session” in the Land Court designed to handle all permit-related litigation involving large projects on an expedited basis.  G.L. c. 185, §3A.  A designated judge was assigned to the permit session and cases were placed “on an accelerated track in order to promote the speedy disposition of disputes.” 

The Appeals Court’s decision last week in Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox (follow link for full opinion) underscores that objective.  In that case, Buccaneer appealed the denial of its application for a special permit by the Lenox Zoning Board of Appeals.  Buccaneer filed its appeal in the permit session of the Land Court.  The Board transferred the case to the Housing Court.  Buccaneer tried to have the case remanded back to the permit session at the Land Court, but the Housing Court denied the motion.  Two years later, the Housing Court held a trial at which Buccaneer lost, and the special permit denial was affirmed.  Buccaneer then appealed to the Appeals Court arguing that the case should have been remanded to the Land Court permit session. 

The Appeals Court agreed with Buccaneer.  The Court held that the Act is clear – projects involving either 25 or more dwelling units or 25,000 square feet or more of gross floor area, or both, are under the jurisdiction of the Land Court permit session or the Superior Court, but not the Housing Court.  It was not disputed that Buccaneer’s project fell within the Act’s guidelines.  In transferring the case back to the Land Court permit session, the Appeals Court reasoned: 

There is no provision in the statute that allows the transfer of a pending permit session case to any other trial court department of the Commonwealth, including the Housing Court…  The permit session was created by the Legislature to serve as a specialized judicial forum, bound by strict standards, in order to promote the expeditious resolution of permit-based cases stemming from large development projects.  Original jurisdiction of such cases is conferred only on the permit session and the Superior Court.  Conspicuously absent from the permit session law’s designation is the Housing Court.  (Emphasis added).

 While this ruling may appear to be a narrow, technical one, the Appeals Court’s handling of the Buccaneer case should not be overlooked.  Developers and other permit applicants are crying out for greater speed, transparency and certainty in permit applications and appeals.  The procedural history of the case itself is certainly not a model of judicial efficiency – Buccaneer will now have to be re-tried at the Land Court.  However, the Appeals Court’s decision underscores the Legislature’s intent in the Act – permit appeals for large projects should be handled on an expedited basis by the Land Court’s permit session.

For more information on litigating zoning and permit-related disputes, please contact David McCay, an experienced Massachusetts real estate litigator at Mirick O’Connell at .

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Appeals Court Opens the Door to Construction Defect Claims by Condominium Associations

Posted on January 2, 2013 by

CondominiumFor most property owners, the legal system typically provides a remedy when developers or builders do substandard work.  Most property owners can simply bring contract or tort-based claims against the contractor they retained to perform the work.  Until the Massachusetts Appeals Court’s recent ruling in Wyman v. Ayer Properties, LLC, however, condominium associations often faced much greater difficulty.  This was the result of the unique circumstances of condominium ownership and development, and a legal defense known as the economic loss doctrine. 

When a condominium is built, typically it is the current property owner, not the condominium association, that enters into a contract with a developer or builder for the construction.  If problems develop later on with the quality of the work in the common areas, the condominium association usually cannot bring a contract claim against the developer or builder because the association was not a party to the underlying contract.  In addition, the economic loss doctrine often barred any tort-based claims for negligent construction or design unless the condominium association could show that the defect caused actual personal injury or property damage to the common areas or to individual units.  This confluence of circumstances and legal defenses often shielded developers and builders from claims by condominium associations and left associations with no redress. 

The Court’s ruling in Wyman removes that shield and provides a remedy.  The Court held that: 

a condominium unit owners’ association may recover damages in tort from a responsible builder-vendor for negligent design or construction of common area property in circumstances in which damages are reasonably determinable, in which the association would otherwise lack a remedy, and in which the association acts within the time allowed by the applicable statute of limitations or statute of repose. 

The lesson of this case for condominium associations is straightforward:  there is now a remedy where once there was none.  For others, Wyman shows the Court’s reluctance to leave a wronged party without a remedy based on a technical defense.  It also reveals the Court’s continuing willingness to create new law when the facts and justice require.

For questions on construction or condominium issues, please contact David McCay, an experienced Massachusetts real estate litigator at Mirick O’Connell at .

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SJC: Contracts Can Shorten Statute of Limitations Period, Unless…

Posted on December 13, 2012 by

CourthouseDespite the fairly straightforward nature of the issue, before the recent case of Creative Playthings Franchising, Corp. v. James A. Reiser, Jr., the Massachusetts Supreme Judicial Court (SJC) had not categorically ruled whether parties to a contract could agree to shorten the six-year statute of limitations under G.L. c. 260, §2.  We now have the answer, which is “yes,” but with some important caveats and limitations.  Although the issue in this instance arose in the context of a franchise agreement, the SJC’s ruling applies equally to other types of contracts, including leases, purchase and sale agreements and other types of real estate and construction-related contacts. 

G.L. c. 260, §2 sets a six-year statute of limitations for contract-based claims.  Federal law generally allows parties to do shorten that time period by agreement.  The SJC found no reason why Massachusetts law should differ from federal law on the issue.  Specifically, the SJC ruled that, “where a claim arises based on a contract, and the contractually shortened limitations period is reasonable and not contrary to other statutory provisions or public policy, then the parties may agree to shorten the time period within which claims must be brought.”

The legislature has established a shortened limitations period for certain types of contracts (such as the four-year statute of limitations under the Uniform Commercial Code, G.L. c. 106, § 2-725(1)), and prohibited contractually shortened limitations periods such as in the case of insurance contracts (G.L. c. 175, § 22).  Additionally, a contractually shortened limitations period in an adhesion contract (a contract whose terms are written by one party and typically offered on a “take it or leave it basis” – e.g., car rental contract, airline ticket, etc.) is unlikely to pass muster.  The same is true of a shortened limitations period otherwise viewed as unreasonable or against public policy.

Finally, the Court held that the discovery rule, which tolls the statute of limitations until a perspective plaintiff learns or should have learned that she has been injured, cannot be overridden by agreement.  Specifically, the Court held that “a contractual limitations provision that did not permit operation of the discovery rule would be unreasonable, and therefore, invalid and unenforceable.”

The takeaway from the SJC’s decision in Creative Playthings is that parties to negotiated contracts can provide for greater certainty and a shorter time period within which claims must be brought.  However, the Massachusetts courts will carefully consider any such agreement to ensure that the it was negotiated at arm’s length and is not otherwise unreasonable or contrary to public policy.

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The Massachusetts Green Communities Act: Go Green Or Go Home

Posted on November 15, 2012 by

Solar PanelsAccording to a recent study, 45% of all construction projects will be green by 2014.  The trend indicates that green projects will soon be the industry standard.  From international bodies to state and local government, lawmakers at all levels are aggressively pursuing regulatory measures promoting environmentally friendly construction.  The result is a continuously changing regulatory scheme of which contractors are forced to keep close tabs or risk falling behind the competition.

On July 2, 2008, Governor Deval Patrick signed into law the Chapter 169 of the Acts of 2008, an Act Relative to Green Communities (the “Act”) in order to boost energy efficiency and encourage investment in renewable energy.  The Act established a new governmental division, known as the Green Communities Division of the Department of Energy Resources (“DOER”), tasked with identifying Massachusetts communities showing a willingness to go green.  The Act required utility companies to invest in renewable energy sources and created monetary incentives for municipalities to pursue green initiatives.  This post addresses the latter.    

To qualify for so-called Green Community Grant funds, a city or town must satisfy five criteria.  The first criterion is adopting a local zoning by-law or ordinance that allows as-of-right siting of renewable energy projects.  This means that the specific site or sites may be developed for the intended purpose described in the by-law without the need for a special permit, variance, amendment, waiver, or other discretionary approval.  However, the site remains subject to site plan review to determine compliance with local by-laws, and state and federal laws.

Second, the municipality must adopt an expedited permitting process for the as-of-right facilities.  This helps ensure that projects with as-of-right siting will not take longer than one year to receive final approval.  Town officials are often hesitant to support this expedited permitting process because of the loss of regulatory authority that comes with as-of-right siting.

Third, the city or town must establish a database of the energy usage for all municipal buildings, vehicles, and street and traffic lighting, as well as a comprehensive baseline reduction program developed to lower the baseline energy usage by 20% within a five-year period.  As one might imagine, this criterion represents a significant task for a municipality in terms of the time, effort, and labor involved.  The law suggests, and in many instances demands, adherence to a number of guidelines relative to the database and reduction program.  For example, towns are required to use energy monitoring software to establish the energy consumption of each building.  The reality is that many towns simply don’t have the resources to satisfy these requirements.

The fourth criterion for qualifying as a Green Community is purchasing only fuel efficient or zero emission vehicles for municipal use whenever available and practicable, in order to reduce carbon dioxide emissions.  Municipalities need to adopt a written fuel efficient vehicle policy from both the general government and the school district.  Certain vehicles, such fire engines, ambulances, police cruisers, and certain public works vehicles are exempt from this requirement. 

The fifth and final criterion is the adoption the “stretch code,” 780 CMR 115.AA.  In 2009, Massachusetts became the first state to adopt an above-code appendix to the base building energy code.  The stretch code provides a more energy efficient alternative to the base building energy code for new and existing buildings.  The current stretch code is based largely on the 2009 International Energy Conservation Code (“IECC”).  Many in the industry anticipate that the state, through the Board of Building Regulations and Standards (“BBRS”), will adopt the 2012 version as early as January 1, 2013, with a one-year concurrency period in which both codes are in effect. 

Implementing the stretch code is often the most time consuming and detailed of the five criteria.  It is also the criterion which commonly meets the most resistance from towns and those who work in the building and contracting field.  The stretch code contains increasingly stricter guidelines for home efficiency on the residential side and energy reduction on the commercial side.  Towns must vote on stretch code implementation through the most common available forum, which is often town meeting.  They often run into difficulty because the public doesn’t want to incur the additional financial burden, and builders and code officials don’t want to deal with the extra hassle unless they can see an immediate benefit.  

Once a community believes it has satisfied the five criteria, it then applies for Green Community designation.  Upon receiving the designation, the town may then apply for a grant for renewable/alternative energy projects.  DOER has designated regional coordinators whose job it is to assist towns with the application process. 

The stretch code is something of a moving target for builders, contractors, and those in related fields.  Please contact the Construction Group at Mirick O’Connell if you have questions about the stretch code or the Green Communities Act generally.

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