In other words, the Fifth Amendment’s Takings Clause does not distinguish between legislative and administrative land-use permit conditions. On the point of this case, the Takings Clause applies equally to legislative takings affecting groups of projects and administrative takings targeting individual projects. This decision is instructive for impact fees and other types of exactions, which commonly are applied to classes or types of uses.

The Court clarified that there is no constitutional, historical, or precedential basis to differentiate between these scenarios. Thus, the Takings Clause prohibits both legislatures and administrators from imposing unconstitutional conditions on land use permits.

The Court remanded the case to the California courts to determine, under the principles enunciated (and past precedents explained), if there was an unconstitutional taking without compensation.

Justice Barrett and the authors of three brief concurring opinions point out that key issues remain to be resolved in this remanded case or future litigation: the validity of this traffic impact fee; whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development; whether the elements of the Taking Doctrine apply the same way within or outside a permit scheme; and in general how Regulatory Taking law applies to permit conditions, including impact fees assessed through “reasonable formulas or schedules” on classes of developments.

This last item has land use lawyers and planners on alert. The Kavanaugh concurring opinion, joined by Justices Kagan and Jackson, presages more jurisprudence on the “longstanding government practice” of imposing “permit conditions” generally and “impact fees” in particular, “through reasonable formulas or schedules” on classes of developments. SCOTUS has an abiding interest in municipal land use decision making.

Here are the facts. As a condition of receiving a residential building permit for a lot with a prefab home, Sheetz was required by the County to pay a $23,420 traffic impact fee. The fee was part of a “General Plan” enacted by the County to address increasing demand for public services spurred by new development.

The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather on a rate schedule that took into account the type of development and its location within the County.

Sheetz paid the fee under protest, obtained his permit, and sued, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause.

In Sheetz’s view, the Court’s decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825, and Dolan v. City of Tigard, 512 U. S. 374, required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. These cases require an “essential nexus” and “rough proportionality” between government demands and the impact of the proposed land use.

The Barrett decision is a condensed survey of Regulatory Taking jurisprudence. It reads as an authoritative black letter treatise. And it weaves together the leading precedents seamlessly into a coherent whole.

“When the government wants to take private property to build roads, courthouses, or other public projects, it must compensate the owner at fair market value. The just compensation requirement comes from the Fifth Amendment’s Takings Clause, which provides: “nor shall private property be taken for public use, without just compensation.” By requiring the government to pay for what it takes, the Takings Clause saves individual property owners from bearing “public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960).
…

“While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they “physically appropriat[e]” property or otherwise … interfere with the owner’s right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021). That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982).
…

"Different rules apply to State laws that merely restrict how land is used. A use restriction that is “reasonably necessary to the effectuation of a substantial government purpose” is not a taking unless it saps too much of the property’s value or frustrates the owner’s investment backed expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) (“[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land” ….

“Permit conditions are more complicated. If the government can deny a building permit to further a “legitimate police-power purpose,” then it can also place conditions on the permit that serve the same end. Nollan, 483 U. S., at 836. Such conditions do not entitle the landowner to compensation even if they require her to convey a portion of her property to the government….

“Thus, if a proposed development will “substantially increase traffic congestion,” the government may condition the building permit on the owner’s willingness “to deed over the land needed to widen a public road.” Koontz v. St. Johns River Water Management Dist., 570 U. S. 595, 605 (2013).

“We have described permit conditions of this nature as “a hallmark of responsible land-use policy.” Ibid. The government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development. … The bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its land-use interests.
…

Imagine that a local planning commission denies the owner of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard (in propertyspeak, granting it a limited-access easement). The landowner is “likely to accede to the government’s demand, no matter how unreasonable,” so long as she values the building permit more. Koontz, 570 U. S., at 605.
…

So too if the commission gives the landowner the option of bankrolling the party at a local pub instead of hosting it on her land…Because such conditions lack a sufficient connection to a legitimate land-use interest, they amount to “an out-and-out plan of extortion.” Nollan, 483 U. S., at 837.

These unusual illustrations and the invocation of the word extortion from the Nollan case give extra emphasis to Justice Barrett’s focus on reasons for governmental land-use interests and what the Court sees as the tests for whether a land use decision or law causes what she terms as abuse. She goes on:

“Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we set out a two part test modeled on the unconstitutional conditions doctrine. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests”).

“First, permit conditions must have an “essential nexus” to the government’s land-use interest. Nollan, 483 U. S., at 837. The nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. See id., at 841.

“Second, permit conditions must have “‘rough proportionality’” to the development’s impact on the land-use interest. Dolan, 512 U. S., at 391. A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose. See id., at 393. This test applies regardless of whether the condition requires the land owner to relinquish property or requires her to pay a “monetary exactio[n]” instead of relinquishing the property. Koontz, 570 U. S., at 612–615.
…

“Just as the Takings Clause “protects ‘private property’ without any distinction between different types,” Horne v. Department of Agriculture, 576 U. S. 351, 358 (2015), it constrains the government without any distinction between legislation and other official acts. So far as the Constitution’s text is concerned, permit conditions imposed by the legislature and other branches stand on equal footing. The same goes for history. In fact, special deference for legislative takings would have made little sense historically, because legislation was the conventional way that governments exercised their eminent domain power.
…

“Precedent points the same way as text and history. …A legislative exception to the Nollan/Dolan test “conflicts with the rest of our takings jurisprudence,” which does not otherwise distinguish between legislation and other official acts. Knick v. Township of Scott, 588 U. S. 180, 185 (2019). That is true of physical takings, regulatory takings, and the unconstitutional conditions doctrine in which the Nollan/Dolan test is rooted.
…

‘In sum, there is no basis for affording property rights less protection in the hands of legislators than administrators. The Takings Clause applies equally to both—which means that it prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits.”

SCOTUS has made clear that regulatory takings challenges may be made against legislative enactments and not just against disapprovals of or conditions imposed in administrative permits. And impacts fees are vulnerable. What remains regardless is the difficult to prove at trial the elements of a taking on the merits.

 

The treatise takes a fresh look at traditional and modern Massachusetts laws and legal doctrines on the many kinds of boundaries, especially concerning water, which surveyors, civil engineers, land use planners, real estate clients, and their legal counsel must deal with in plans, titles, transactions, permitting, and litigation.

Mr. McGregor slices the subject differently from the usual approach, however, explaining how these various law-related boundaries are determined, what they are for, how they are subject to change, and why not to be surprised when such boundaries morph or move.

The 2024 MALSCE Convention is scheduled to occur on Friday and Saturday March 1 and 2, at the Boxboro Regency Hotel & Conference Center. Mr. McGregor speaks on March 1.

 

From a land use dispute over proposed development of a high rise building on the Harbor Garage parcel near the New England Aquarium and Harbor Towers condominium, this matter grew into a full-blown litigation on the Public Trust Doctrine, the Waterways Act (M.G.L. c. 91), and the legality of Massachusetts Department of Environmental Protection (MassDEP) regulations creating and approving Municipal Harbor Plans (MHPs). 

The decision is of intense interest to landowners, developers, managers, lenders, investors, real estate attorneys, and their clients in the Boston Downtown Waterfront MHP, which includes 42.1 acres and 26 parcels along the waterfront from Long Wharf to Seaport Boulevard. This area includes the Aquarium, Long Wharf, and Rowe’s Wharf. 

MassDEP plans curative amendments to its Waterways Regulations regarding the fundamental MHP scheme. The case did not challenge the legality of the Boston MHP itself (only the process), the legality of any Chapter 91 license (not applied for yet), or the legality of the other 16 MHPs approved over the decades. 

Specifically, the SJC ruled that MassDEP exceeded its authority by promulgating provisions in its Chapter 91 Regulations, 310 CMR Section 9.00 et seq, that require MassDEP, when licensing certain projects subject to a MHP approved by the Secretary, to apply standards specific to that particular harbor area that have been approved by the Secretary. This delegation was ruled ultra vires Chapter 91. 

The Waterways Act is implemented through the Waterways Regulations, which set forth the basic requirements and performance standards for uses and structures licensed on public and private tidelands. These range from engineering and dimensional specification to use and open space limitations. 

According to the SJC, an MHP in effect for a harbor typically allows a substitution of some but not all of the generic specifications with local-specific specifications “that deviated (sometimes substantially)” from those in the MassDEP regulations, assertedly tailored to that particular harbor area but differing nonetheless.  

The process is set forth in the MassDEP’s Municipal Harbor Plan Regulations, found within the Waterways Regulations. The Boston Downtown Waterfront MHP was approved in April 2018 after a five-year planning process. The crux of the case was its particular application (and not the generic standards) to two parcels, namely the Harbor Garage site and the Hook Wharf site. These are on filled tidelands within 100 feet of the Boston Harbor high water mark. 

The MHP for the Boston waterfront contemplated construction of at least a 600-foot-tall tower at the Harbor Garage site and a 305-foot-tall building at the Hook Wharf site plus 30 more feet to accommodate building mechanicals relocated to the roof or upper floors for resilience to current and future hazards. The SJC compared this with the MassDEP regulations which generally impose a 55-foot height restriction at the water’s edge with graduated increases inland. The MHP also varied the rules for reserving open space on the ground floor and the setbacks from the water. 

CLF and 13 private citizens filed suit in July 2018. At the same time residents of the Harbor Towers condominium filed suit. The Superior Court consolidated the cases and ruled on cross motions for summary judgment. That court reasoned that under our Public Trust doctrine, the Legislature expressly delegated to MassDEP the obligation to preserve the public trust and to protect the public’s interest. 

The Superior Court ruled, then, that the agency may not delegate or relinquish to the Secretary any of the oversight responsibilities that the Waterways Act entrusted to it. As the Act lacks an express authorization for MassDEP’s MHP approach, it is irreconcilable with its enabling act and the Waterways Act. 

A central flaw, in the view of the Court, is that the MHP contains what is regarded as “binding guidance” for the MassDEP to follow the positions of the Secretary.

Specifically, relying on the SJC’s decision in Moot v. Department of Environmental Protection, 448 Mass. 340 (2007), in which the Court struck down a MassDEP regulation exempting landlocked tidelands as improperly relinquishing licensing jurisdiction, the Superior Court saw an unlawful delegation of Chapter 91 licensing determinations to the Secretary through the Municipal Harbor Plan approval process. The MHP Boston Harbor provisions, it ruled, are ultra vires and invalid. 

Before the Appeals Court and then the SJC, a long roster of lawyers appeared for the several parties including amici curiae NAIOP, the Commercial Real Estate Development Association, and the Massachusetts Municipal Lawyers Association. 

The result is a legal treatise on the Public Trust Doctrine. The SJC decision begins with a condensation of the legal principles, legislative delegation, the MHP approval process, the “substitute specifications” of the Secretary, what MassDEP judgment they override, and the resulting invalidation of the Boston Waterfront MHP. 

The SJC saw its role to “consider the department’s authority to promulgate regulations effectively binding itself to license a proposed construction in the tidelands where the Secretary has approved, as part of an MHP, specifications that deviate from the department’s own specifications.” 

With this job in mind, the SJC discussed the nature and scope of review (“reconciling regulations with the Legislature’s intent”), the weight accorded an agency’s discretion (“deference, not abdication”), the Legislature’s history of delegation to MassDEP (rather narrow and strict), the constraints on licensing “nonwater dependent uses of tidelands”, the Secretary’s substitute specifications (which MassDEP “shall presume” comply with the Waterways Act’s “proper public purpose” test which mandates “greater benefit than detriment to the rights of the public in such lands”), and the small opportunity for rebuttal of that presumption (only on “ narrow grounds”). 

Essentially the SJC saw the MassDEP “bound to determine that the project meets the requirements…” of the MHP. Citing Moot, 448 Mass. at 353, the Court saw the MHP rules and process as relinquishing “all public rights that the Legislature has mandated be preserved through the licensing requirements….”

Against the Secretary’s protestations that a standard of reasonableness applies, the SJC rejoined, again citing Moot: “The public trust doctrine does not analyze reasonableness; rather, it requires express legislative delegation, as it addresses a special, unusually valuable form of public property. Moot, 448 Mass. at 347.”

The Court rejected MassDEP’s argument that it can make a nonbinding “recommendation” to the Secretary as part of the MHP process, because “it gets the legislative delegation of authority over licensing decisions under public trust principles backwards.” 

Likewise, the Court made short work of the agencies’ arguments that MassDEP’s physical issuance of each particular license, or an implied delegation of authority from the Legislature, or wording in the EOEEA enabling act, can save the MHP program.  The SJC was not persuaded. 

The SJC helpfully observes, “To be sure, the department is free to consider – but should not be bound to adopt -- the Secretary’s input when it makes licensing decisions….” The bottom line, to this author, is that “the department may not cede to the Secretary the decision whether nonwater-dependent uses of tidelands serve, inter alia, a proper public purpose….”

The SJC’s decision was unanimous and so stands as yet another strong rebuke of the MassDEP administration of the Chapter 91 program in recent years. Fortunately, in a footnote, the SJC allowed all prior MHPs to stand as-is, noting the window of time in which they could be legally challenged has expired. We feel this means those MHPs and all the Chapter 91 licenses that were issued pursuant to them are beyond legal attack by virtue of the statutes of limitations. 

The MassDEP meanwhile has set about revising its Waterways Regulations and may take steps to re-approve the MHPs in a legally-prescribed way. Last February, for instance, the agency published proposed amendments and took written comments. As a result, in September the agency published further revised rules which would apply to 16 MHPs (but not yet the Boston Harbor MHP). 

You may see the redline version of the proposed amendments to 310 CMR 9.00 here >>>

We await all that MassDEP wishes to do to conform its MHP regime to the SJC decision.

Stay tuned. 

 

They will cover significant court cases and agency rulings in four main areas, MassDEP and US EPA updates from Commissioner Martin Suuberg, Esq. and Regional Counsel Carl Dierker, energy law trends, and advances in Environmental Justice, Municipal Law, Brownfields, and Climate Change. The program headlines its keynoter, Dr. Brent Blackwelder of Washington, DC, former President of Friends of the Earth, on the evolution of environmental law over 50 years since the original Earth Day.

 

---

COVID-19 emergency statutes, orders, rules and policies have upended the traditional schedules for municipal and regional boards and commissions, as well as state agencies, to act on land use applications for zoning, subdivision, wetlands, board of health, and other permits and approvals.

This leaves the landowner, developer, builder, lender, investor, or other project proponent wondering whether they should file their permit applications now, during the emergency procedures. Or should they wait until some degree of normalcy has returned?

What is the likely length of the delay and uncertainty? Will there be a crush of pending and new work for the boards and agencies to process? Should one get in line now just to save a place in the queue?

On April 3, 2020, Governor Baker signed Chapter 53 of the Acts of 2020, known as the “Municipal Relief Act” (the “Act”). Among other things, it provides flexibility to conservation commissions, planning boards, zoning appeal boards, boards of health, building inspectors, and other local, district, county or regional permit granting authorities to reschedule or delay opening public hearings and issuing decisions on permit applications while social distancing prevents in-person public hearings on permit applications.

A week before the Act, on March 24, 2020, Governor Baker issued COVID-19 Order No. 17: “Order Suspending State Permitting Deadlines and Extending the Validity of State Permits”, gives state agencies additional time, too, to act on what is pending or is filed in the meantime. (See “Update” below as Order No. 17 was superseded on July 1, 2020.)

Anyone planning on filing a permit application with any governmental boards, commissions, or agencies should be aware of the new powers these authorities have to alter or extend (actually, delay) the usual timelines for reviewing and issuing decisions on applications.

It is more important than ever to check with the specific governmental entity well before filing and again when ready to file any application. There are some mutual understandings and expectations to memorialize.

Specifically, municipal boards under the Act can postpone further action on pending applications, for which the public hearing was opened before March 10, 2020, to their first meeting within 45 days of the end of the state of emergency. Obviously, this could amount to a large number, creating quite a backlog for them to handle by or at their first meeting.

For applications filed before March 10, 2020, for which the hearing was not opened, and for applications filed after March 10, 2020, municipal boards may postpone opening the hearing until 45 days after the end of the state of emergency. Again, this could create quite a pile of applications that all require hearings to be opened at about the same time.

Importantly, the Act gives the chair of a municipal board or commission authority to reschedule, more than once and without a quorum present, pending matters. This is considerable discretion in one official. Fortunately, there is an effective notification requirement.

It is significant that the Act does not require municipal boards and commissions to postpone their hearings and decisions, but rather allows them to proceed as before if they wish. To facilitate this going forward with pending or even new business, they are allowed to proceed by holding meetings and hearings remotely using video technology, such as Zoom, that allows for public attendance and participation.

An applicant from homeowner to Fortune 500 company has a stake in such business-as-usual going smoothly and effectively any approval is valid.

Likewise, Governor Baker’s COVID-19 Order No. 17 gives similar timeline flexibility to state agencies during the COVID-19 pandemic, but allows them to proceed with their agency business in the meantime, if they can and wish. Time periods or deadlines for hearings, and deadlines to make decisions on state permits, are suspended during the state of emergency and the applicable time period resumes 45 days after the end of the state of emergency. (Please see “Update” at the beginning of this article, as these dates have changed.)

The Governor’s Order suspends the running of any such time periods for state agencies until 45 days after the termination of the state of emergency. A wise applicant will reach agreement, in writing and in advance, on how a pending or new project application will be handled.

On a related aspect for some applicants, the Governor’s Order No. 17 and the Act address what happens under the provisions in some laws (not all) whereby permit applications are constructively approved or deemed denied if no action is taken within a certain period of time. The Act suspends such automatic approval/denial provisions as long as the local or district permit granting authority acts within 45 days of the end of the state of emergency, or other mutually agreed-to date.

Not only have the permit processing timelines changed, as above, but also the manner in which applications are filed. Under the Act, a land use permit must be filed with the city or town clerk (a departure from many existing laws), and receipt of the application is to be acknowledged by the clerk. This is unless the permit granting authority has an “electronic submission website”, a term not defined by the Act, but could mean a comprehensive on-line portal to fill out, submit, and pay filing fees for an application, and track its review process.

Many cities and town do not have such a set-up or one for each board or commission. The Act does, fortunately, allow for e-mailing to the municipal clerk in lieu of mailing, although the filling fee may still need to be paid by check. This may require, however, bifurcating the application filing and fee payment, since most laws still say the filing is not valid or complete unless and until the proper fee is paid.

With most, if not all, town and city halls and state agencies closed to the public, and a majority of office staff working from home, hand delivery of an application is no longer possible or reliable. Each board and agency, and often each program within, has its own protocols for filing or inquiring about an application, which usually involves e-mailing a copy of the application even if it still must be mailed.

The website for each city or town, or state agency, should be consulted early and then frequently as such procedures often change. Some municipalities are accepting mail deliveries and opening and procession applications almost as usual, except for delayed hearings, which will be virtual. Others are leaving the mail unopened and planning to delay resuming business until after the emergency ends, whenever that turns out to be.

It should not surprise that with all these additional review and decision times the emergency laws give to local, district, county, and state permitting authorities, there likely will be a backlog of pending applications and slug of new applications which will have to be processed soon after the state of emergency ends.

Given the anticipated number and nature of applications awaiting reactivation, consideration and action, it behooves anyone contemplating filing a permit application of any kind to file it sooner rather than later, in a form and by a means that is current as confirmed in advance, rather guessing what to do. It is best to be closer to the head of the line when the line starts to move.

---

The Attorneys at McGregor & Legere, P.C. have years of experience assisting developers, homeowners, and other project proponents with preparing and filing land use permit applications at all levels of government. Please contact us for any questions or a free, one-hour, no obligation consultation.

Read about the original case here...

The defendant officials then appealed to the Appeals Court. Their principal issue on appeal was whether previous counsel years earlier had served the Complaint within the time required by Rule 4 (j). The Appeals Court in March 2020 rejected that argument and all the defendants’ other arguments. It upheld the judgment and award (except for one claim of violation of substantive due process against one defendant.)

The Appeals Court remanded the case on that sole issue of the damages and attorneys’ fees on account of the vacated claim (to eliminate that from the judgment). The defendants quickly sought reconsideration of the Appeals Court remand, limited to the Rule 4(j) issue (original service of the suit). The Appeals court just as quickly denied reconsideration.

This action leaves our client Mr. Thyng’s Superior Court judgment intact that these four City of Quincy officials violated his equal protection rights with a monetary award plus interest which, as the appeal was pending, has grown to about $1.75 million.

He sued the City for alleged violations of federal and state civil rights statutes by blocking for more than 10 years his attempts to build a single-family residence in the middle of a block in a densely populated neighborhood.

After a two-week trial, the jury found five City of Quincy officials and Conservation Commission members individually liable for civil rights violations on account of denial of the constitutional right to equal protection for obstructing our client. We successfully argued that our client’s property was indistinguishable from other adjacent and nearby properties which were allowed to build, and that the stated reasons for denial were illegally “pre-textual.”

The jury also found the Conservation Administrator liable for violations of substantive due process.

The complaint as originally filed was against thirteen present or former Quincy officials or Commission members. The City of Quincy was later added as a defendant.

After the close of pre-trial discovery, all defendants filed a comprehensive motion for summary judgment, arguing that they enjoyed qualified immunity against our client’s claims and that our clients were made too late and were barred by the statute of limitations.

The Superior Court allowed the motion for summary judgment in part and denied it in part. It dismissed the claims against the City and the defendants in their official capacities, and denied it against the remaining defendants in their individual capacities.

The jury found five of the defendants liable and five of the defendants not liable. The cases against three of the defendants were dismissed voluntarily before the case went to the jury.

The final Judgment, with attorneys’ fees and interest, is more than $1.3 million. The jury awarded damages of $433,000.00, including punitive damages of $13,000.00, and the Court awarded attorneys’ fees and costs in the amount of $566,645.00, and more than $301,000.00 in interest has accrued.

Michael J. O’Neill was trial counsel.

The Conservation Commission had denied our client’s Notice of Intent in June 2004. Our client successfully appealed that denial under the State Wetland Protection Act to the Massachusetts Department of Environmental Protection. MassDEP heard that appeal and approved the project in February 2005.

Our client also had appealed the denial under the Quincy Wetlands Ordinance to Norfolk Superior Court. In March 2006, the Norfolk Superior Court remanded the case to the Quincy Conservation Commission. However, despite numerous requests by our client’s then-counsel, the Commission never held a further hearing. After our client retained us, Mr. O’Neill filed a Motion in Norfolk Superior Court on account of the Commission’s failure to hold the hearing.

In January 2008, the Norfolk Superior Court allowed the Motion and entered a Judgment declaring our client’s project approved under the Quincy Wetlands Ordinance. The Court also stated in its ruling that the Commission offered no reason, other than animosity toward Plaintiff, for not scheduling the matter for hearing. This was a key piece of evidence at the civil rights jury trial.

Other key evidence was that many of the Commission’s findings with respect to wetland resource areas that it found were present on our client’s properties were contradicted by its simultaneous or nearly simultaneous findings concerning adjacent and nearby properties that the same resource areas were not present.

Final Judgment on the jury verdict was entered on July 24, 2017. The Defendants filed a Motion for Judgment Notwithstanding the Verdict, for a New Trial, and for Remittitur, which was denied by the Court on September 25, 2017. Defendants have recently filed a Notice of Appeal.

People may register in person or online and attend in person or the online simulcast. A link to download the conference brochure is at the bottom.

Serious environmental and land use attorneys know that MCLE's Annual Environmental,

Land Use & Energy Law Conference is "the place to be" on February 8, 2018. Attorneys and
other attendees learn what happened in the Legislature, state agencies and EPA, and federal
and state courts, what's new at the municipal level, and what they've missed this year.

The Conference is designed for attorneys who have been practicing in the field for years as
well as those new to this practice area. The speakers are several well-known experts who have
been tracking trends, cases, and statutory changes.

There is a chance to meet and reconnect with colleagues at a networking breakfast. About 60-80
people attend and the same number watch and submit questions live online.

AGENDA

8:45 am-9:15 am Networking Breakfast! Come Early!

9:15 am-9:20 am  — Welcome and Introduction

9:20 am-11:20 am — Survey of Cases: Environmental Permitting Litigation; Subdivision and
Zoning Cases; DEP Administrative and Home Rule Cases; and 40B Affordable Housing Cases

11:30 am-12:30 pm — Government Updates from EPA and DEP

12:30 pm-1:30 pm Lunch (on your own)

1:30 pm-2:15 pm — Keynote Presentation: The Boston and Regional Development Boom:
Implications for Environmental, Land Use, and Energy Law Practice

2:15 pm-3:00 pm — The Changing Landscape for Energy Projects

3:10 pm-5:00 pm — Significant Evolving Practice Areas: Trends in Land and Water Conservation
Law; Brownfields Redevelopment and 21E Update; Strategies for Challenging Land Use and
Real Estate Litigation; and Climate Change Update on Mitigation and Adaptation

In addition to a faculty-prepared program book, the materials for this program include MCLE's
updated "Massachusetts Real Estate Law Sourcebook & Citator 2018," which is a compendium of real estate
resources combining the latest statutes, regulations, and judicial and administrative resources,
and summarizing key court decisions from the past year.

Download the conference brochure...

• Agenda of the Environmental Law, Land Use, Energy and Litigation Program...
• Download Mr. McGregor’s powerpoint on seminal Supreme Court regulatory takings and eminent domain cases...

Other speakers at January’s seminar covered the subjects of climate change law at the federal level, state and local adaptation and resiliency initiatives, crafting real estate development agreements for developers and municipalities, distributed solar and other alternative energy sources, net zero energy buildings and other infrastructure, real estate contamination, costs and remedies, powers and duties in condominium and other common ownerships, traditional and nontraditional Brownfields redevelopment financing including new markets tax credits, zoning and First Amendment rights according to the Supreme Court, conservation easements and related tax tips for 2017, federal and state cannabis and hemp industry regulation, chemical releases and implications for land use and liability, and the top 10 land use court decisions during 2016.

This year the conference agenda included seminars on bankruptcy law, civil litigation, employee benefits, family law, intellectual property, labor and employment law, law practice management, and business planning for lawyers. Plenary sessions were provided on cyber-liability, data security, e-discovery, electronic evidence, social media, and legal ethics.

Reed v. Town of Gilbert, Arizona

The sign case, with wide free speech implications, is Reed v. Town of Gilbert, Arizona, No. 13-502 (Sup.Ct. June 18, 2015), 576 U.S.____(2015).
http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf

A municipal sign code imposed more stringent restrictions on signs directing the public to the meeting of a non-profit group (a church) than on signs conveying other messages (such as political ads). The Supreme Court ruled that this is content-based regulation of speech that cannot survive the test of strict scrutiny.

This case was decided 9-0. The Opinion by Justice Thomas expands the meaning of “content-based” to reach many more types and varieties of signs that are subject to local sign regulation, even if they were of a nature formerly thought to be content neutral. Now, they are presumptively unconstitutional. Concurring opinions warn of this overreach.

On remand from the Supreme Court, the Court of Appeals struck down the Town of Gilbert ordinance. Other federal courts since Reed have invalidated laws barring panhandling, automated phone calls and, most recently in New Hampshire, “ballot selfies.”

This case is regarded by many commentators as vastly expanding free speech rights. The wording of Thomas’ decision seems to reach all kinds of rules distinguishing between types of speech.

www.valanduseconstructionlaw.com.jpg

This writer feels that a case presenting simple facts (requiring quicker removal of church signs than political signs) gave rise to a ruling making lots of state, county and municipal laws subject to the most searching form of First Amendment review. This puts the burden on the government to prove the challenged law is “narrowly tailored to serve compelling state interests.”

This test is very hard for a sign or speech rule to survive. As the New York Times observed on the Reed decision: “You can stare at those words as long as you like, but here is what you need to know: Strict scrutiny, like a Civil War stomach wound, is generally fatal.” (NYT 8.18.15, p.A18)

The fair housing case is Texas Department of Health and Community Affairs v. Inclusive Communities Project, No.13-1371 (Sup.Ct. June 25, 2015), 576 U.S.___(2015)
http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

The federal Fair Housing Act prevents discrimination in sale and rental of housing. Disparate-impact claims are cognizable under the FHA.

This case was decided 5-4. The Opinion by Justice Kennedy held that the FHA focuses on the consequences of the actions rather than actor’s intent, similar to Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act, enacted about the same time with disparate-impact liability.

Consequently, the Supreme Court ruled, disparate-impact liability is consistent with FHA’s purpose to prevent discriminatory housing practices, as it allows plaintiffs to counteract unconscious prejudices and disguised discrimination that may be harder to uncover than disparate treatment.

The ICP had claimed that the TDHCA granted tax credits disproportionately to developments within minority and Caucasian neighborhoods, leading to concentration of low-income housing in minority neighborhoods, perpetuating segregation in violation of the FHA.
www.texasgopvote.com.jpg

At trial, ICP had showed discrimination by disparate impact using statistical allocation of tax credits, which the Federal District Court ruled was sufficient to prove a prima facie case. Unable to show no less discriminatory alternatives existed, the TDHCA lost.

The U.S. Court of Appeals had upheld this result as consistent with regulations of HUD, the agency tasked with implementing the FHA.

The Supreme Court agreed. While this case is a block-buster in the fair housing field, allowing suits based on disparate impact, it remains a requirement under the law that a prima facie case for disparate-impact liability must meet a robust causality requirement. Evidence of racial disparity on its own is not sufficient.

The air pollution case is Michigan v. Environmental Protection Agency, No. 14-46 (Sup. Ct. June 29, 2015), 576 U.S.___(2015)
http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf

Here the U.S. EPA had interpreted 42 U.S.C. §7412(n)(1)(A) of the Clean Air Act, which requires the agency to regulate power plants when “appropriate and necessary,” to allow it to consider costs (to industry) after it had made that initial decision to regulate. The Supreme Court ruled this was an unreasonable interpretation of the CAA section at issue.

This case was decided 5-4. The Opinion by Justice Scalia ruled that when Congress orders an agency to begin regulating an industry, but says it should do so only if “appropriate and necessary,” the agency must take costs into account before it issues any orders.

EPA’s approach to regulating mercury and other toxics (the “MATS” rule) had been challenged by two dozen states and trade groups representing the electric generating and coal mining industries.
www.detroitnews.com.jpg

EPA was ruled to be wrong in refusing to make its cost-benefit analysis upfront, before starting any regulatory program, preferring to review cost-benefit when imposing plant-specific controls in regulations promulgated later.

This decision has the effect of temporarily blocking EPA from regulating power plants for mercury (potentially applicable to many other pollutants). It is important to recognize, however, that the ruling does not affect EPA’s legal authority to regulate in this area of air pollution.

On that score, the majority opinion by Justice Scalia says that EPA does not have to follow any particular method of gauging costs, but it has to fashion some way to calculate that prior to doing any regulating.

Fortunate for EPA, not every act it administers reads the same way as this section of the CAA for air toxics.