Meltzer BLawG Offices

Silent Denial is Constructive Approval.

Topic:  Constructive Approval; Written Findings; Regulation of Septic Systems

(By William F. Thompson & Stephen Meltzer)  The Appeals Court of Massachusetts upheld a lower court’s ruling that a town’s failure to issue a written statement of reasons for its denial of a septic system permit within 45 days of completion of permit application, as required by G.L.c. 111 § 31(E), resulted in a constructive grant of the permit.  The Court found that the statute was unambiguous and therefore, should be construed in “accordance with its plain meaning.”  G.L.c. 111 § 31 E clearly sets forth what is required of the board and the consequences for the board’s failure to abide by the statute’s timeline. 

Devine v. Board of Health of Westport No. 05-P-428 (2006).

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Thou Shall Not Covet Thy Neighbor’s Land, Especially If Thou Is Thy Neighbors Lawyer.

Topic: Real Estate, Adverse Possession

(By William F. Thompson)  The Appeals Court of Massachusetts upheld a

Land Court

decision that found that the principals of equitable estoppel barred an attorney from asserting adverse possession over a portion of his neighbor’s land.  The attorney represented a neighbor during the sale of his property to the defendant.  The attorney’s use of his neighbors land prior to the sale of the property, met the adverse possession requirements.  However, the Court found that the position taken by the attorney as a plaintiff claiming adverse possession, ‘squarely contradicted’ the position he took as counsel for the sellers.”  “One may not knowingly stand by and allow one’s land to be sold without asserting one’s title, yet thereafter assert an ownership interest against the purchaser.”

Moran v. Gala, No. 05-P-732 (2006).

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