The pace of activity at the State House has ramped up lately, as the July 31 deadline for formal legislative debate approaches. This week we have updates on two particular bills of interest to the BBA…
For 20 years, the BBA has supported a bill designed to clarify the original intent of a portion of G.L. c. 40A, § 7 which effects the status of structures and uses that do not comply with a zoning ordinance or by-law. Last week, legislation to achieve this goal passed both the House and Senate.
Over the past two decades, a variety of real-estate practitioners have advocated for this change on behalf of the BBA. During this legislative session, BBA Council member Michael Fee, of Pierce & Mandell, P.C.—a former co-chair of our Real Estate Law section—testified on the bill before the Judiciary Committee and helped explain it to legislators and staff. Current section co-chairs Hannah Kilson, of Nolan Sheehan Patten LLP, and Matthew Lawlor, of Robinson+Cole, also provided invaluable expertise.
Current law prohibits municipalities from taking any action to compel zoning compliance by owners and operators of non-compliant structures or uses, after six years have elapsed since inception of the alleged violation for permitted structures and uses, and ten-years for non-permitted structures. The original legislative intent was to give local authorities a reasonable time period within which to pursue enforcement of local zoning ordinances and by-laws, while offering some certainty that after that time elapsed, these non-compliant structures could be rebuilt if damaged or destroyed, and for such properties to be conveyed.
However, the language of Section 7 leaves structures or uses that survive the applicable limitations period in a kind of limbo—barring enforcement action but not granting them formal, legal status as pre-existing non-conforming structures or uses subject to protection under G.L. c. 40A, § 6. The result is that, in case of loss, buildings may need to be rebuilt in accordance with new zoning requirements, which may prove too costly. Redevelopment can be forestalled by this oversight, and the uncertainty it produces. The statute’s ambiguity is glaring in this context, leading several Appeals Court panels to interpret Section 7 in divergent ways.
As passed by the House last June, H. 3611would correct this problem by giving the non-conforming structures described above special legal status subject to the provisions of G.L. c. 40A §6 as well as local ordinances or by-laws. This would, as the statute contemplates but does not now explicitly spell out, provide clear legal status in these instances, thus offering protection to property owners and their lenders.
Last Thursday, the Senate passed a slightly-different version of the bill (S. 2259), but one that nevertheless would accomplish the same result we seek. These two versions will now need to be reconciled before the legislation can advance to the Governor for signature.
We will continue to work with the Legislature to try to (finally) provide the needed certainty in this area of the law.
While the Senate was tackling the intricacies of zoning, the Judiciary Committee released a redrafted bill on wiretap reform. The product of many months of work, the new legislation (H. 1487) would bring a much-needed update to a statute (G.L. c. 272 §99) that was initially crafted to deal specifically with mob-oriented organized crime but has remained essentially unchanged for more than four decades.
Led by our Criminal Law section, and with valuable input from the Civil Rights & Civil Liberties section, the BBA earlier this year released a statement recommending principles that should be followed in any update to Section 99. The new committee redraft incorporates many of the BBA’s suggestions and represents a meaningful advance toward modernization of the wiretap law.
For example, as the BBA recommended, the bill adds several crimes to the list of “designated offenses,” in Section 99(B)(7), that can, upon a showing of probable cause, serve as a predicate in an application for a wiretap warrant. (An applicant must also show “that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried” and “that oral or wire communications of a particularly described person will constitute evidence of such designated offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit a designated offense”.)
Specifically, the bill would add certain crimes involving (a) human trafficking, (b) money laundering, and (c) the illegal use, possession, or carrying of certain guns and other weapons—all in keeping with the BBA’s position. It also includes certain gambling crimes as designated offenses but does not add the manufacture of child pornography, as the BBA recommended.
At the same time, the proposed bill strikes a handful of crimes from the designated-offense list, such as assault and battery with a dangerous weapon, mayhem, prostitution, and all drug offenses other than trafficking—while also limiting Section 99’s applicability in burglary and larceny investigations to the felony level of those crimes.
Another area where the bill comports with BBA principles is in creating a carve-out, for first-degree murder cases, from the statute’s requirement that there be a nexus to organized crime. This limitation has been labeled outdated and not reflective of an era in which crimes are less likely to be mob-oriented and more likely to spring from loosely-connected gangs that may not rise to the level of organized crime. (The bill would include human trafficking in this carve-out.)
Two other items proposed by the BBA that were not part of the bill are modernizing the statute to recognize developments in wireless communications technology, and enhancing the statute’s existing reporting requirements to provide for electronic filing and Web-posting of more substantive information.
Now that the Judiciary Committee has weighed in, we will continue to advocate for the BBA’s principles on wiretap reform, seeking to improve the legislation even further as it advances.
Stay tuned for further legislative developments in this space, as the Legislature enters the final three months of its formal session…
— Michael Avitzur
Government Relations Director
Boston Bar Association