Environmental Law

Hull-Wind-Turbine-from-seantyler-via-FlickrControversial Wind Turbine Project Approved, Over Neighbors’ Opposition, Appeals Court Rules

Plans for a controversial wind turbine on top of Turkey Hill in swanky coastal Cohasset could soon move forward after the Massachusetts Appeals Court upheld a land court ruling that the town’s planning board acted appropriately when it approved the project. The court dismissed opposition arguments by neighbors and a nearby skilled-nursing home who challenged the project’s legality.

The wind turbine is proposed to be sited at the apex of 410-foot-tall Turkey Hill in the northwest corner of Cohasset, in the 314-acre Whitney Thayer Woods, and would be within 1,000 feet of the Golden Living skilled-nursing home and homes on the Hingham side of the border. The nursing home and neighbors complained that the turbine would emit excessive “shadow flicker,” noise and also risk various public safety issues. 

In 2011, the Cohasset Planning Board held hearings on the wind turbine plans, and issued a special permit with numerous conditions for which the operator must comply. The abutters focused on the “flickering shadows” that the 150-foot blades would cast on nearby properties. Land Court judge Gordon Piper in 2012 upheld the board’s approval, determining that the permit’s special conditions adequately address safety concerns and follow zoning bylaws. For example, the permit requires that the organization monitor flickering and make sure that it doesn’t exceed 30 minutes per day or 300 hours per year.

The Appeals Court quickly shot down all of the neighbor’s concerns, holding that it would not second-guess the judgment of local officials who granted the permit.

According to the Patriot Ledger, Jim Younger, the director of structural resources and technology at the Trustees of Reservations said that the group is “very pleased” with the court’s ruling and grateful for the widespread support for the project. “At this time, we are still very interested in moving forward with the project and will be reassessing our options following the lengthy delays to the project. We will keep the community informed as we complete this review.”

Wind turbine projects are becoming increasingly more accepted by towns to boost both power and revenue so they are less reliant upon the “grid.” This ruling shows how difficult it is for abutters and neighbors to challenge a wind project once the town planning board has issued a permit.

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pic_INDEX58 Legislators Pushing Comprehensive Zoning Reform Bill

“Inclusionary Zoning” Provision May Expand Controversial 40B Law

With “Smart Growth” advocates strongly behind them, a cadre of Beacon Hill lawmakers are pushing a controversial bill that for the first time in 37 years would comprehensively overhaul state law governing municipal zoning, subdivision control, and planning. Proponents of the bill argue that stalled smart growth projects such as the new Assembly Square in Somerville (shown at right) would be beneficiaries of the new bill.

The bill, H.B. 1859 — unprecedented in its scope and reach — would change Massachusetts zoning and land use law as we know it. Approval not required (ANR) plans and current variance review standards would be gone, while “inclusionary zoning” (another potential iteration of the state’s conversional affordable housing 40B law) would be expanded along with the legality of “impact fees” — mandatory payments from developers to towns to mitigate development impacts.

The principal sponsor, Rep. Stephen Kulik, a Worthington Democrat unveiled the bill during an event this week at the Statehouse. Versions of this bill have been introduced before, but I have not seen so many legislators in support of the bill as before. Rep. Kulik said the goal is to pass the bill by the end of this year’s formal legislative session on July 31, 2013.

A summary of the bill is as follows:

  • Abolishes ANR plans, a law that allows subdivisions to be built with no planning board review or approval if the proposed homes front an existing road.
  • Allows a community to require only a simple majority vote to change a zoning law. Now, a two thirds vote at a town meeting is needed to change a zoning law.
  • Authorizes “inclusionary zoning,” which allows a community to require that a percentage of homes in a new development be affordable. In exchange, a developer could build more homes on a lot than permitted under zoning.
  • Allows a majority vote on a zoning or planning board in order to issue a special permit. Currently, it takes a two thirds vote to approve a special permit. The bill establishes a method for extending a special permit, which now can be issued for up to two years before it needs to be reprocessed.
  • Approves impact fees for a community to recoup some of the capital costs for private developments.
  • Creates an alternative process to resolve disputes among applicants, municipal officials and the public. Allows for a “neutral facilitator” to work through difficulties in a proposed development.
  • Overhauls the current law on issuing variances from zoning ordinances or bylaws. According to supporters of the bill, the current law is too restrictive for property owners and towns, tying the hands of members of zoning boards and preventing them from solving many simple problems for owners. The bill establishes reasonable procedures for variances while still maintaining a community’s ability to set conditions or reject a variance.
  • Creates the option of consolidated permitting for projects. Developers currently often need multiple permits from boards with different jurisdictions and requirements and reviews that sometimes take years to complete.
  • Rewrites a law that allows for master plans. The bill updates the elements of a master plan to include five requirements: goals and objectives, housing, natural resources and energy, land use and zoning and putting the plan into effect.
  • Allows local regulations to require dedicating up to 5 percent of subdivision land for park or playground use by residents.

In my opinion, some of the provisions are great ideas such as providing a consolidated “one-stop shopping” forum for all permitting in a town, reforming the variance standards, and providing a dispute resolution forum for local disputes. Other provisions will be much more controversial such as the inclusionary zoning and impact fees. This is a sweeping change in Massachusetts zoning and land use law, and I will be monitoring it closely. Thank you to Attorney Donald Pinto at the Massachusetts Land Use Monitor for alerting me to the bill.

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septic_systemMassachusetts Title V Septic Regulations Frequently Asked Questions (FAQ)

About 1/3rd of all homes in Massachusetts are dependent upon septic systems, rather than municipal sewer. These include some of the toniest Metrowest suburbs from Wayland, Sudbury, Weston, and Hopkinton all the way down the Cape.

While the month of April brings the start of the busy spring real estate market, it also brings thawing of the permafrost, snow and lots of rain — conditions which can wreck havoc with older septic systems and their leaching fields. Most buyers and their Realtors recoil at the words “Title V” and “fail” and for good reason. The cost to replace a failed septic system can be exorbitant, running upwards of $50,000 in some cases.

Massachusetts septic systems, also called subsurface sewage disposal systems, are governed by Title V or Title 5 of the Massachusetts Environmental Code administered by the Massachusetts Department of Environmental Protection (DEP). These complex regulations govern the inspection, design, construction and operation of septic systems. The rules affect as many as 650,000 Massachusetts homeowners with septic systems. Here are some frequently asked questions and answers on Title 5 septic regulations.

My home has a septic system. Do I need to have it inspected before I sell?

If you are selling your home, you cannot close without a passing Title V inspection of your septic system, completed by an inspector who is licensed by the state and your town. A Title V Inspection is good for 2 years. However, the inspection will be valid for 3 years if you have documented septic pumping service each year on or before the anniversary date of your septic system inspection. A list of licensed inspectors is available at your local Board of Health office. Here is a list of Board of Health Departments for Massachusetts.

The inspector will determine whether your system “passes,” “fails” or “conditionally passes” (i.e., requires repairs).

What is a conditional pass?

A conditional pass means that your system will pass if a certain condition is met. A repair or replacement of the distribution box is the most common condition that needs to be met. The inspector would write up his official Title V report with the conditional pass notes outlining the needed replacement of the distribution box. Once the repair is done, your Board of Health will issue a Certificate of Compliance which will be accepted as a passing Title V at closing.

My septic system failed. What do I do now?

If the inspection fails, your septic system must be repaired or replaced. If ownership of the house is not being changed, the homeowner may have up to two years to complete the repair. However, if the Health Agent deems the failure to be a health hazard, the homeowner can be required to begin the process of repairing it immediately.

Failed septic systems can be handled in a real estate sales transaction in two ways. First, the seller can undertake the work and complete it prior to closing, with a full sign off from the Board of Health. This is often the preferable course for all parties and the lender. Alternatively, the parties can agree to an escrow holdback to cover the cost of the septic repair plus a contingency reserve, and the work is undertaken after the closing. Some lenders don’t allow septic holdbacks, however.

What are the steps and permitting fees to install a new septic system?

The first step in beginning a septic repair is to hire an engineer to evaluate your land and to design a system that would be appropriate for your property. Once the engineer is hired, a percolation or “perc” test is scheduled. The perc test measures the rate at which water is absorbed into the ground and determines whether the soil is suitable for a septic system. Based on the results of the perc test, the size of your lot, and the number of bedrooms in your home, the engineer designs a septic system to serve the property. Once the plans have been drawn, four copies of the plans, two copies of the soil analysis, and a check for $175.00 must be submitted to the Board of Health office. The BOH has 45 days to review the plans and to either approve or reject them. If the plans are approved, the plans can be picked up and the installation of the system can begin. If the plans are rejected, the plans must be revised and an additional fee of $75.00 is charged to have them reviewed again. If the designed system requires state variances (done by the Department of Environmental Protection), an additional 90 days must be allotted for the review process.

When the job is completed is there any form of certification that it has been done and that it meets Title V standards?

At the completion of the job, (that is, when all work has been done according to the plans; when the engineer has submitted an “as-built” plan as to where the system was installed; and when the installer has submitted a certification statement), the Health Agent signs a Certificate of Compliance, (COC), which is issued to the installer. Upon payment for the work, the installer gives the COC to the homeowner.

How long does the process for repairing a septic system take, from beginning to end?

A homeowner should allow approximately 3 to 4 months for the installation of a septic system. The length of time can vary from system to system. There are a number of variables involved. The availability of the Health Agent to witness a “perc “ test is one. Because of the amount of work that has to be completed, engineers and installers are often busy for months in advance. In addition, if the designed system requires either local or state variances, time must be allotted for public / variance hearings. A system that is installed in less than 2 months (from start to finish) is the exception to the rule.

What is an average cost for the system?

New septic systems can range from $25,000 to $50,000. The type of system designed, the size of the lot, the number of bedrooms, the engineering fees, the requested variances, the type of soil, and the proximity of the system to water, all contribute to the cost of the system.

If I am required to replace my failed system and I do not have the money, what do I do?

Homeowners who cannot afford to repair their failed septic systems made apply for financial aid with the Massachusetts Home Septic Loan Program. Here is the MassHousing Web site. Here is the PDF for the Homeowner Septic Loan Repair program. Applications for this program are available at most local banking institutions. The loans are low interest and repayable over an extended period of time.

The state also provides a tax credit of up to $6,000 over 4 years to defray the cost of septic repairs to a primary residence. Forms are available from the Department of Revenue (DOR) to allow homeowners to claim up to $6,000 in tax credits for septic upgrades. The credit cannot exceed $1,500 in any year and may be spread out over 4 years. The tax credit is limited to work done on a primary residence only. Tax Form Schedule SC is the correct form for the tax credits. MassDOR Web site

I have a cesspool. Will that pass Title V?

You may be wondering how this all applies to cesspools. Cesspools are much harder to pass in Massachusetts. Does every single one automatically fail? No.

Only those cesspools that exhibit signs of hydraulic failure, are located very close to private or public water supplies, or otherwise do not protect or pose a threat to the public health, safety or the environment will need to be upgraded. Also, cesspools must be upgraded prior to an increase in design flow (e.g., the addition of a bedroom to a home.

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Richard D. Vetstein is a Massachusetts real estate attorney who helps people buy, sell and finance residential real estate. He can be reached via email at info@vetsteinlawgroup.com or by phone at 508-620-5352.

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recy3Triple Damage Penalty for Willful Cutting Of Neighbor’s Trees 

Neighbors typically get really mad when you chop down their trees. Really mad….and it can get the guy with the chainsaw into a lot of legal trouble. Can you say “triple damages”?

First enacted in 1698, the Massachusetts illegal tree cutting law (General Laws chapter 242, section 7) provides for up to triple damages for the malicious cutting, trimming, or destroying of another’s trees:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

That said, I always advise property owners who intend to cut trees near boundary lines to consult a survey or plot plan to ensure that the trees are not on their neighbor’s land.

Measure of Damages: Restoration Cost Value

The measure of damages for those harmed by the willful cutting of trees varies from case to case. The most common measure of damages is either the value of the timber cut, restoration cost, or the resulting diminution in value of the property. A claimant is entitled to assert a claim for either value, whichever is highest.

Where the trees cut are tall, hard to replace or have a particular function like screening, or all the above, it is wise to engage a certified arborist to perform a comprehensive restoration cost analysis. The restoration cost analysis takes into account the aesthetics, functionality, age, height, girth, and species of the trees, and formulates a restoration value for the replacement of the removed trees. The method, known as cost-of-cure, involves determining the cost of planting trees and the estimated time for the replacement trees to grow to the size of the destroyed trees (years to parity).

In recent cases, Land Court judges have awarded $30,000 (tripled) for the cutting of 10 mature oak trees and nearly $45,000 (tripled) for the clearing of an 800 square foot woodland area which provided privacy screening. In both of these cases, expert arborist testimony was offered on the restoration cost of the cut trees. And who can forget the case where a Somerset family recovered a $150,000 wrongful death settlement after a women dropped dead after her neighbor wrongfully cut down a swath of sentimental trees.

Branches Over The Property Line

Under Massachusetts common law, you may remove branches of a neighbor’s tree extending over your property line as long as you don’t kill or damage the tree. Also, the neighbor has no liability for roots growing into your yard and causing damage. Massachusetts law does not allow a person to cross or enter a neighbor’s property for these purposes without the neighbor’s consent, nor to remove any branches or other vegetation within the confines of the neighbor’s property. This is the “Massachusetts Rule.”

Utility Tree Cutting

I’ve been reading about many recent disputes between property owners and utility companies (Wayland v. NStar) over tree cutting within utility easements. The law provides a public utility the right to remove or trim your tree if it interferes with the necessary and reasonable operation of the utility. Furthermore, the utility is required to perform tree trimming as part of its program to maintain reliable service for its customers. The National Electric Safety Code requires utilities to trim or remove trees growing near power lines that threaten to disrupt service. Proper and regular tree trimming helps prevent the danger and inconvenience of outages.

Lastly, landscapers and tree cutting companies should get a signed directive from the homeowners and an indemnification prior to cutting trees, as my fellow real estate attorney Chris McHallam points out.

If your trees have been wrongfully removed by a neighbor or if you have mistakenly removed trees, you should consult an experienced Massachusetts property law attorney. Valuation of trees is a science, rather complicated, and best left to the professionals.

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Richard D. VetsteinRichard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who has handled numerous illegal tree cutting and boundary line disputes. Please contact him at info@vetsteinlawgroup.com or 508.620.5352.

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Fate of New Long Wharf Waterfront Restaurant At Stake

A neighborhood fight to preserve prime public waterfront space at the tip of Boston’s Long Wharf will be heard by the Supreme Judicial Court (SJC) in November. Ten North End neighbors — termed the “North End Ten” –  have been battling the Boston Redevelopment Authority (BRA) and the Department of Environmental Protection (DEP) for six years over the city’s plan to lease the space to a restaurateur who wants to build “Doc’s Long Wharf,” a new pub style restaurant and bar at the scenic location. Residents argue that the state constitution requires a two-thirds vote of the Legislature before public open space can be converted to other uses.

The legal issues in the case are rather complicated, dealing with historic uses of Long Wharf and whether it was dedicated to public use as open space and is thus protected under Article 97 of the Massachusetts Constitution, requiring a two-thirds vote of the Legislature to effect a disposition or change in use of the land. The BRA’s original proposal was for a 220-seat pub that would have replaced the pavilion located beyond the Marriott Long Wharf hotel and Chart House restaurant. BRA officials have argued that the restaurant would help activate the waterfront. Residents argued it would create more noise and disturbance in a picturesque park area.

This case really exemplifies why Massachusetts and the City of Boston have a bad reputation for real estate permitting. If you ever been down to this area at the tip of Long Wharf, you know it’s screaming out for better use. Right now, it’s often inhabited by skateboarders and vagrants, annoying folks trying to soak in the beautiful views of Boston Harbor. I think that a nice restaurant with stunning harbor views and an outdoor patio area would be amazing and a great addition to the under-utilized end of that pier. Under the proposed Chapter 91 license, the proposed use would maintain public access along the wharf. It was the same situation with Rowes Wharf decades ago, and now look at that space. It is a model of waterfront mixed use development.

But 10 neighborhood activists disagree, and the travesty is that they can derail this project for years. Indeed, the lead plaintiff, Sanjoy Mahajan, lives a mile away from Long Wharf on Jackson Street. The other plaintiffs are scattered throughout North End proper, buffered from the proposed restaurant by the massive Marriott Long Wharf, the harbor and Christopher Columbus Park. These activists are not remotely affected by the proposed restaurant in terms of noise and the like. Notably, not one resident of Harbor Towers, the residential condominium closest to Long Wharf, have participated in this legal challenge.

I hope that even if the SJC rules that a 2/3rds legislative vote is required here, that our elected officials will not cave in to the whims of a few locals at the expense of the public at large.

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Richard D. Vetstein, Esq. is a Massachusetts real estate and zoning attorney. Mr. Vetstein frequently represents Boston residents and companies in zoning matters before City of Boston zoning and licensing boards.

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Under a new Massachusetts oil heating law which went into effect on September 30, 2011, every homeowner with an oil heating system is required to install an oil safety valve or an oil supply line with protective sleeve in their system. The cost is approximately $150 to $350 depending on the system. The required upgrade is to prevent leaks from tanks and pipes that connect to your furnace. The upgrade will reduce the risk of an oil leak so by making a relatively small expenditure now, you can prevent a much greater expense in the future.

Who Must Upgrade?

Owners of 1- to 4-unit residences that are heated with oil must already have or install an oil safety valve or an oil supply line with a protective sleeve. Installation of these devices must be performed by a licensed oil burner technician. Technicians are employed by companies that deliver home heating oil or are self-employed. It is important to note that heating oil systems installed on or after January 1, 1990 most likely are already in compliance because state fire codes implemented these requirements on new installations at that time.

Who Is Exempt?

Homeowners are exempt from taking these leak prevention steps if:

  • the oil burner is located above the oil storage tank and the entire oil supply line is connected to and above the top of the tank OR
  • an oil safety valve or oil supply line with protective sleeve was installed on or after January 1, 1990, AND
  • those changes are in compliance with the oil burning equipment regulations; a copy of the oil burner permit from the local fire department may be used to demonstrate compliance.

Why Comply?

Not only is complying with the new law required, it makes good financial and environmental sense. Homeowners who take these preventive measures can avoid the disruption and expense that can be caused by heating oil leaks. A leak may result in exposure to petroleum vapors in your home. If the leak reaches the soil or groundwater beneath your house, then a cleanup must be performed to restore your property to state environmental standards. Such a leak can cost many thousands to clean up. Leaks that affect another property or impact drinking water supply wells can complicate the cleanup and increase the expense. Each year, several hundred Massachusetts families experience some kind of leak.

What will an upgrade cost?

The typical cost of installing either an oil safety valve or oil supply line with a protective sleeve ranges from $150 – $350 (including labor, parts, and local permit fees).

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a home purchase or sale.

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