by Christine M. Netski
As new and unprecedented personal and professional challenges continue to unfold amid the COVID-19 pandemic, I continue to be inspired by the way our legal community has come together to respond quickly, effectively and compassionately to so many impacts the crisis is having on access to justice and our profession. I have also been humbled by our members’ unwavering support and deep engagement during such difficult and uncertain times. Your dedication has allowed the BBA to continue to fulfill its mission to advance the highest standards of excellence for the legal profession, facilitate access to justice, foster a diverse and inclusive professional community, and serve the community at large in a virtual environment.
As we look ahead, although we don’t know when we’ll be able to gather again at 16 Beacon Street, we do know that we’ll continue to serve our members’ needs and support our profession as we move through new phases of this crisis. I want to share some of our efforts that are currently underway.
Expansion of Virtual Education Resources
Educational programs are our most significant member benefit. Our members rely on our programs to help them adjust to changes in our profession, learn new skills, and enhance their practices.
We launched our first webinar on March 25 and, since then, we have hosted 50 webinars viewed live by over 2,000 attendees.
Soon after the crisis began to escalate in the Commonwealth and rapid changes in the law began to accumulate, a number of Sections, including Labor and Employment, Criminal Law, and Trust and Estates, sprang into action to host programs addressing the latest legal developments in their practice areas. Others, including the Life Sciences Industry Group and the Privacy, Cybersecurity, and Digital Law Section, convened roundtable discussions where experts shared insights into the current and anticipated impacts of the crisis.
In addition to covering the rapidly-developing changes in the law, our webinars have also provided members with critical information and advice about how best to practice remotely. These programs have offered guidance on topics like handling remote proceedings, conducting virtual depositions, and practicing ethically under these unusual circumstances. Some have offered our members the chance to hear directly from our courts, including through a virtual version of the annual Bankruptcy Bench Meets Bar program and a webinar on the current state of civil litigation in Superior Court during the pandemic.
This summer we will continue to build on the foundation of our successful virtual programming. We plan to take steps to improve the virtual member experience by refining and expanding our educational offerings to include CLE-accredited programs and virtual conferences. Looking ahead to the fall, we are asking our Sections, Forums, and Industry Groups to keep up their excellent work and plan for a robust slate of educational programs, with the hope that we can again convene in-person, but with the agility to proceed virtually if necessary.
Supporting the Profession
In addition to supporting continuing legal education for our members, we’re proud to be able to offer opportunities to help attorneys stay connected and well. Earlier this month, we participated in Lawyer Well-Being Week, which included a program on practical mindfulness for attorneys and a series of round tables – one targeted to legal aid attorneys and another to solo and small firm practitioners – where attendees could share their current challenges and learn about effective self-care strategies.
We’ve also been pleased to be able to assist our affinity bar partners in staying connected and reaching their membership by hosting a series of virtual roundtables and happy hours over the last few months. We look forward to continuing to offer these types of opportunities and to continuing to explore new ways of supporting wellness in the months ahead.
Graduating law students and new lawyers are entering the profession at an especially challenging time, and we are and will continue to take steps to bolster their professional growth. Our popular Friday Fundamentals series has moved on-line, and our members are continually adding more offerings to help law students and new lawyers gain the basic legal skills necessary to succeed in their practice areas.
We are also looking to meet the unique needs of graduating law students, as well as those new to practice, by expanding our Bar Coaching Program. The expanded program will offer mentorship and study support for both first time and repeat test takers as they prepare to sit for the bar exam during this time of heightened stress. The program will also now offer mentorship and guidance for new attorneys who are adjusting to the intricacies of practice from home, in an uncertain economy and without the typical in-person mentorship they would receive in their workplaces.
Finally, we know the profession will evolve and our members’ needs will change over the coming weeks and months. We remain committed to responding to those needs and helping our members adapt their practices to continue to best serve the evolving needs of their clients.
Thank you for your commitment to our mission and we look forward to continuing to serve you and all our members as we work together to meet the challenges that lie ahead.
Christine M. Netski is the President of the Boston Bar Association. She is also a managing partner and a member of the executive committee at Sugarman, Rogers, Barshak & Cohen, P.C.
by Eric Shupin
Discriminatory government policies in zoning and land use over the last 50 years have intentionally created racially segregated communities with concentrated areas of poverty. More than a half-century since passage of the Fair Housing Act of 1968, “even as metropolitan areas diversify, white Americans still live in mostly white neighborhoods.” In the Boston area, residential racial segregation exceeds the national average significantly, with Black and Hispanic households overwhelmingly residing in communities with the greatest educational challenges, limited resources, and the poorest educational, economic, and health outcomes. Alarming emerging data from the COVID-19 pandemic suggests that in urban cores, “[b]lack and brown people are dying at rates more than twice their share of the population”—likely because high density urban areas are comprised disproportionately of racial minorities with higher prevalence of preexisting poor health-related conditions. The racial gap in COVID-19 deaths exposes the urgent need for bold government intervention to undo the legacy of decades of exclusionary zoning that continues to perpetuate residential segregation in the Commonwealth.
AFFORDABLE HOUSING SHORTAGE AND SEGREGATION
An adequate, affordable housing supply throughout Massachusetts is critically necessary to disrupt existing patterns of residential segregation. As of 2018, 32% of Black and 16% of Latinix/Hispanic residents of Massachusetts lived in Boston. This is compared to the state’s overall population breakdown of 7% Black and 12% Latinx/Hispanic.
Not nearly enough housing has been produced outside of Boston over the past 30 years. Between the 1960s and the 1990s, annual housing production in Greater Boston actually dropped by 52 percent, and, multifamily housing production dropped by more than 80 percent. Consequently, rents and home prices in the region have been perennially among the highest in the nation, placing an increasing and unsustainable burden on renters, especially lower-income residents who are disproportionately people of color. In 2017, with only about three new housing units permitted for every thousand residents, Greater Boston continued to rank among the top-five in average housing costs and ranked 18th in housing production among the nation’s 25 largest metropolitan areas.
An adequate housing supply can help stabilize prices and enhance affordability, but production alone will not address the Commonwealth’s persistent patterns of racial residential segregation. Legislation and land use policies that explicitly address the need for affordable housing to be equitably distributed throughout Massachusetts are needed. Since its enactment in 1967, Chapter 40B has been the main statutory means to incentivize affordable housing production statewide. It empowers local Zoning Boards of Appeals in jurisdictions that have not met the 10% Subsidized Housing Inventory (SHI) “safe harbor” threshold to approve “comprehensive permits” for denser, larger, and higher development projects than would otherwise be permitted under local rules if they contain 20–25% affordable units. In the past 50 years, Chapter 40B has helped create over 60,000 homes, but, after all those years, currently only 67 of Massachusetts’ 351 municipalities are at or above the 10% SHI threshold.
Although Chapter 40B has helped, the Commonwealth still faces serious challenges to combatting patterns of residential segregation. Massachusetts needs additional zoning tools and reforms to overcome our legacy of restrictive zoning.
RESTRICTIVE ZONING AND FAIR HOUSING
The Massachusetts’ Zoning Act, G.L. c. 40A (“Chapter 40A”), delegates to all municipalities (except Boston) the power to enact their own zoning codes to regulate the use of land, buildings, and structures for the purpose of protecting the “health, morals, safety and general welfare of the community.” While the Legislature retains the ultimate authority to set zoning policy for the Commonwealth, in practice, local zoning laws represent the piecemeal expression of their development preferences and local control over such externalities as population growth, traffic congestion, noise, aesthetics, and property values. Without reform, most Massachusetts’ communities will continue to restrict the development of all but the most expensive—and exclusive—type of housing: single-family homes on large lots.
According to Massachusetts’ 2019 Analysis of Impediments to Fair Housing, density-restrictive zoning raises serious civil rights concerns because low-density developments tend to exclude Black and Hispanic residents disproportionately, whereas multifamily rental options promote the inclusion of traditionally excluded minority households.
ZONING REFORM TOOLS
Statutory zoning reform, coupled with judicial development of a more restrictive doctrine on abutter standing, can complement existing incentives, such as Chapter 40B and the Housing Choice Designation.
Enacting Housing Choice
We can start by amending Chapter 40A to make it easier for communities to pass local zoning changes that encourage more housing and “smart growth” development. Currently, any zoning change requires a two-thirds vote by all members of Town Meeting or city council. G.L. c. 40A, § 5. Without amendment, this often insurmountable threshold will ensure the status quo of our exclusionary land use practices.
H.4263, initially filed by Governor Baker, would enable municipalities to pass by a simple majority vote a narrow set of zoning changes related to multifamily housing, including mixed-use developments and accessory dwellings (or in-law apartments), and to approve special permits for certain affordable housing developments that are consistent with smart growth principles. Other zoning changes that might further restrict new and/or affordable housing, such as increasing dimensional requirements, would continue to require a super-majority vote. If sufficiently coupled with subsidies to build affordable housing, this measure would make a substantial impact by empowering the simple majority of the community to vote for such zoning amendments in favor of housing.
Curtailing Frivolous Abutter Challenges
Massachusetts’ jurisprudence on standing has accorded disproportionate power for abutters to challenge a project for the improper purpose of obstruction and delay. Abutter challenges—even without merit—can hold up affordable housing construction sufficiently to make the project financially unviable.
In Murchison v. Sherborn, a decision issued in less than 24 hours, the Supreme Judicial Court ruled that abutters must prove they would suffer some kind of demonstrable harm to have standing to bring a legal challenge to a project. While the claim that a proposed single-family home on a 3-acre neighboring lot would cause density-related harm may be an extreme case, the case exemplifies the frivolous type of challenges many affordable housing developers face. To promote the creation of more diverse housing types across Massachusetts, we must encourage a new jurisprudence or take legislative action on standing to deter frivolous abutter challenges of locally-supported affordable housing developments.
Each municipality can also adopt its own inclusionary zoning policy to require a certain portion of a housing development to be set aside as affordable. For example, Boston’s policy currently requires 13% to be set aside as affordable; Cambridge requires 20% to be income-restricted. The challenge for such policies is that sufficient density is required to make a mixed-income development economically feasible: if the required set aside for affordable units is too high, inclusionary zoning can have the unintended consequence of discouraging new development that can foster diversity in communities that are traditionally opposed to increased density. It is also dependent on a community approving projects large enough to trigger the policy in the first place. Even with these limitations, such policies are an important tool to combat exclusionary zoning.
Zoning is a powerful legal and public policy choice: it determines what gets built and where and who gets to live in a community, as well as who is excluded. Zoning reform is long overdue in Massachusetts to remediate our history of residential segregation. H. 4263 is a first step for Massachusetts to start building desperately needed diverse housing opportunities.
Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association. Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School. The opinions expressed in this article are his own.
On Thin ICE: Advocating for Non-Citizen Civil Litigants in an Era of Increased Immigration EnforcementPosted: May 28, 2020
by Caddie Nath-Folsom
In a time of unprecedented fear and uncertainty among immigrant communities, non-citizens may be afraid to pursue or defend their legal rights in state civil matters. This article is intended to help civil attorneys without immigration expertise more effectively assess the risks that their non-citizen clients face, confront immigration-related threats from opposing parties, and ensure access to justice for non-citizen litigants.
Opponents in cases involving divorce or custody, employment, landlord/tenant disputes, or tort and contract matters sometimes try to use immigration status as a litigation weapon, threatening explicitly or implicitly to report or expose a non-citizen party to Immigration and Customs Enforcement (ICE) to force settlement or gain an upper hand. Given the current political climate, these threats may be very effective against clients. Civil attorneys therefore need to be prepared a) to assess whether being reported to ICE is something the client actually needs to be worried about, and b) if it is, to push back against the threat and safeguard the client’s ability to exercise his or her rights under the law.
How then can a civil attorney without a background in immigration law determine whether being reported to ICE poses any real risk to a client? The attorney can fairly effectively assess the relative risk by determining whether ICE, or its umbrella agency, the Department of Homeland Security (DHS), has already detected the client’s presence in the United States. People who are “detected” include those with valid legal status and those with ongoing immigration court proceedings. If DHS is already aware that the client is present in the United States and the client is not currently detained, it means that the client is either not subject to detention or that DHS has determined that it isn’t necessary to detain this particular person. In either case, DHS is very unlikely to send ICE agents out to arrest that individual just because the opponent makes a report. However, if the client is “undetected,” or not currently on the DHS’s radar, the danger of being reported to ICE is very real. In 2017, the Trump administration announced the elimination of earlier policy guidelines that prioritized the detention and deportation of those with criminal convictions or who posed a threat to public safety. Today, ICE focuses its enforcement resources on whomever it can find.
While in some cases it may be difficult to ascertain whether or not a client is detected, usually the attorney can make an educated guess by talking to the client about her immigration history. Most often, undetected clients either entered the U.S. with a valid visa and then remained after its expiration or crossed a land border into the U.S. between ports of entry without being caught by border agents. In either case, it is important to determine whether the client has ever had any contact with immigration officials in the U.S. or was ever ordered to appear in immigration court and failed to do so. Those who fail to appear for immigration court hearings, almost without exception, are ordered removed (deported) in absentia, even if they were minors at the time of the hearing. Clients with old removal orders are at the greatest risk of detention or deportation if an opponent exposes them to ICE. If apprehended, the prior removal order can be immediately reinstated, and they can be deported from the U.S. in short order.
Where it is difficult or impossible to determine if a client is undetected, the attorney should err on the side of caution and assume that an opponent’s threat to report the client to ICE is something to be taken seriously.
It is important to discuss the risk of exposure with undetected clients, particularly where there are indications that the opponent may use the client’s immigration status as a litigation weapon, such as prior explicit threats to have the client deported. For some clients, the cost of possible exposure may outweigh the benefit they stand to gain through litigation.
As an advocate, no matter the client’s level of risk, the lawyer should be ready to head off and push back against immigration threats. This may require creativity in developing a litigation strategy to protect the client and it will mean actively working to prevent immigration status from becoming part of the case. The lawyer should be cautious about pre-arranged events, including depositions and settlement conferences, which might provide an aggressive opponent with an opportunity to expose the client to ICE. Advocate to keep information about the client’s immigration status out of discovery, particularly if it is raised as an intimidation tactic and not relevant to the merits of the case. Lawyers may also remind opposing counsel that threats related to immigration status may violate the Rules of Professional Conduct and could amount to criminal extortion. See Mass. Rules of Prof’l Conduct R. 3.4(h) and (i), R. 4.4(a), R. 8.4(d), (e); Wash. Rules of Prof’l Conduct R. 4.4 cmt. 4 (2013); NC Formal Ethics Op. 2005-3 (2005); Ass’n of Bar of City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2017-3 (2017).
It is also critical to bear in mind Fifth Amendment protections in preparing for discovery and cross examination that could elicit admission to acts that constitute uncharged criminal acts (such as unlawful border crossings and aiding others to enter the U.S. unlawfully).
Finally, attorneys representing non-citizen clients should be prepared to address client fears about attending court hearings due to widespread reporting on ICE enforcement actions in courthouses. In June 2019, a federal district court judge temporarily enjoined all ICE enforcement activity in courthouses in Massachusetts. See Ryan v. ICE, 1:19-cv-11003-IT (D. Mass. June 20, 2019). Even before the injunction, ICE activity in courthouses appeared to be limited to targeted arrests of specific individuals, all of whom were attending criminal hearings, and did not include random checks of persons in a courthouse. While the injunction stands and ICE maintains current policies, non-citizen clients should not fear attending hearings on civil matters in Massachusetts.
The immigration regulatory landscape is complex and constantly changing. The information here provides only a high-level roadmap to help in assessing risk. Clients with more complex immigration histories or specific questions regarding eligibility for immigration relief should be referred to a qualified immigration attorney.
Caddie Nath-Folsom is a staff attorney at the Justice Center of Southeast Massachusetts in Brockton. She represents survivors of crime in immigration and family law matters.
by Caiti A. Zeytoonian
In McLean Hospital Corporation v. Town of Lincoln, 483 Mass. 215 (2019), the Supreme Judicial Court (SJC) held that emotional and social skills-based education falls within the scope of a Massachusetts statute that exempts educational land uses from local zoning laws. The case reaffirms that the protection afforded to educational uses under that statute—G.L. c. 40A, § 3, commonly known as the “Dover Amendment”—extends beyond traditional forms of education and includes uses that provide therapeutic or rehabilitative support in addition to a primary educational purpose.
The Dover Amendment provides, in relevant part:
No zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for . . . educational purposes on land owned or leased . . . by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. (emphasis added).
The law, enacted in 1950 in response to local zoning bylaws that prohibited religious schools within residential neighborhoods, was intended to provide special zoning status for religious and educational uses. Since the Dover Amendment’s inception, the SJC has interpreted the scope of “educational purposes” broadly. See, e.g., Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869 (1980) (facility where formerly institutionalized adults resided while “being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources” qualified as educational use); Gardner-Athol Area Mental Health Ass’n v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) (residential facility where adults with mental disabilities would be taught “daily living, as well as vocational skills, with the goal of preparing them for more independent living” served a primary educational purpose). These interpretations of the Dover Amendment were consistent with the SJC’s longstanding tradition of taking a broad view of the notion of ‘education’:
Education is a broad and comprehensive term. It has been defined as “the process of developing and training the powers and capabilities of human beings.” To educate, according to one of Webster’s definitions, is “to prepare and fit for any calling or business, or for activity and usefulness in life.” Education may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.
Mt. Hermon Boys’ Sch. v. Town of Gill, 145 Mass. 139, 146 (1887) (emphasis added). The McLean Hospital decision can be viewed as the latest in a long line of cases continuing this tradition.
The SJC’s Decision in McLean Hospital
The plaintiff, McLean Hospital (“McLean”), purchased land in the town of Lincoln for the purposes of developing a residential skills-based program for adolescent males with “emotional dysregulation,” known as the “3East Program” (the “Program”). Despite receiving initial approval for the Program’s development by Lincoln’s building commissioner, McLean faced opposition from Lincoln residents, who challenged the program before the local zoning board of appeals (the “ZBA”). Upon review, the ZBA decided that the Program was “medical or therapeutic,” as opposed to “educational,” in nature, and, thus, did not qualify for exemption from the town’s zoning laws under the Dover Amendment. McLean filed an action in Land Court to challenge the ZBA’s decision. Finding in favor of the ZBA, the Land Court judge held that the proposed use of land was not “for educational purposes,” due primarily to the fact that the Program focused on “therapeutic” inward-facing life skills rather than “educational” outward-facing life skills.
On appeal, the SJC considered whether the Program, which was “designed to instill fundamental life, social, and emotional skills,” qualified as “educational” for purposes of Dover Amendment protection. McLean, 483 Mass. at 217. Ultimately, the Court concluded that the proposed program and its skill-based curriculum, “although not a conventional educational curriculum offered to high school or college students,” fell “well within the ‘broad and comprehensive’ meaning of “educational purposes” under the Dover Amendment.” Id. at 216 (citation omitted).
The SJC reached this conclusion by applying a two-pronged test: (1) whether “the bona fide goal” of the use can reasonably be described as “educationally significant;” and (2) whether “the educationally significant goal [is] the primary or dominant purpose for which the land or structures will be used.” McLean, 483 Mass. at 220 (citing Regis College v. Weston, 462 Mass. 280, 286 (2012)) (internal quotation marks omitted).
Applying the first prong, the SJC considered the various aspects of the Program’s curriculum, which was to employ a “highly structured, nationally recognized, dialectical behavior therapy approach to attempt to develop social and emotional skills in students with severe deficits in these skills” and to feature a curriculum “taught in an experiential manner by specialists in clinical education.” McLean, 483 Mass. at 217, 219. The Program was to consist of instruction and practice in social and emotional skills focused in: (1) mindfulness and ability to pay attention; (2) emotional regulation; (3) development and maintenance of interpersonal relationships; (4) distress tolerance; and (5) validation, which the SJC described as “well-established areas where prior research has shown that training can be very effective.” Id. at 218. Ultimately, the SJC found that the Program would qualify as educationally significant, thereby upholding the longstanding notion that a program that instills “a basic understanding of how to cope with everyday problems and to maintain oneself in society is incontestably an educational process” within the meaning of the Dover Amendment. Id. at 221 (emphasis in original) (citation omitted).
Applying the second prong, the SJC rejected the Land Court’s characterization of the Program as predominately therapeutic, explaining that a skills development program does not lose its primary educational purpose simply because “the particular competencies taught also may be therapeutic, rehabilitative, or remedial of an underlying condition.” Id. Notably, the SJC rejected the defendants’ contention that the Program was not educational due to the presence of a psychiatrist on staff and the fact that “participants may be a threat to themselves or others, in light of some of their histories of thoughts of suicide or self-injurious behaviors.” Id. at 223. As the SJC explained, the concepts of education and rehabilitation are not mutually exclusive, and “an attempt to sever that which is educational from that which is therapeutic is ordinarily a rather futile exercise.” Id. at 225. Moreover, the SJC rejected the lower’s courts distinction between outward-facing and inward-facing life skills:
Both inward-facing and outward-facing types of skills, even assuming they can be meaningfully parsed in this manner, are part of “the idea that education is the process of preparing persons ‘for activity and usefulness in life’” and thus protected as a significant educational purpose under the Dover Amendment . . . . We also decline to adopt the judge’s parsing of distinctions between a “therapeutic” program to teach inward-facing life skills and an “educational” program to teach outward-facing life skills.
Id. at 224-25 (citations omitted).
Implications of the McLean Decision Moving Forward
Advocates for persons with disabilities have celebrated McLean as a significant victory in the fight towards securing equal access to education for all. The decision confirms that a determination of whether a proposed use has an educationally significant purpose should focus on the program itself, rather than the type of student participating in the program. In so doing, McLean makes it clear that education with a therapeutic purpose and education with a traditional academic purpose are both valid and meaningful forms of education that are equally entitled to benefit from the Dover Amendment.
While McLean has widely been regarded as a decision concerning specialized education for persons with disabilities, the case has important implications for traditional education as well. As public school curriculums continue to evolve towards the inclusion of emotional and behavioral learning, McLean should be viewed as a significant and powerful reminder of what our jurisprudence has long understood to be true: All students must be learners – not just of arithmetic and spelling – but of the capacity to behave and interact with self-awareness, self-regulation, and empathy for others. The SJC has long held that education is a “broad and comprehensive” term. Thus, the importance of McLean does not lie in the creation of new legal precedent, but in the deliverance of an impetus to align society’s understanding of what it means to educate a human being with that of our courts.
Caiti A. Zeytoonian is an Antitrust & Competition associate at Morgan, Lewis & Bockius LLP. She represents and advises clients in connection with federal and state government antitrust investigations, civil and criminal antitrust litigation, and antitrust compliance issues.
by Danielle Johnson
*This article is a companion piece to “Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd.”
If you approach the steps of the Edward Brooke Courthouse (named after the first African-American elected to the U.S. Senate since Reconstruction) around 8:45 A.M. on a Thursday morning—colloquially known as “Eviction Thursday” in Boston—there is a seemingly endless line of people, mostly in street clothes, waiting anxiously to get through the security screening. I approach, dressed in a suit and dress shoes with my hair neatly dreadlocked. I walk quickly past the lines of waiting litigants with my bar card and driver’s license in hand. I am a young African American woman and I am an attorney. In court, I am both an anomaly and a chameleon, depending on whom I encounter.
The Court: The Tale of Two Lines
The familiar discomfort starts outside the courthouse. To get through the door of the courthouse to the Eastern Housing Court sessions on the fifth floor, I must walk past the long lines of fellow people of color waiting to submit themselves to the security screening—that often includes an electronic pat-down—before being allowed in the building. It is my weekly routine to swallow the discomfort of the two lines; one short line for predominantly white attorneys and another longer line for the litigants, including my clients, predominantly people of color. I present my bar card and driver’s license, and after close inspection—notably which are not scrutinized for my white colleagues who flash their cards and proceed before me— I am allowed to pass the first test and enter the foyer of the marbled courthouse.
Inside, the courthouse is buzzing, and the clamor of chatter and movements echo throughout the hallways. I make my way up to the fifth floor for the call of the lists. Exiting the elevator, the scene that awaits can overwhelm an unsuspecting person, but it is business-as-usual for Eviction Thursday. The two “Attorney of the Day” tables are set up to provide quick legal advice, one for pro se landlords and the other for pro se tenants. The area is so crammed with people that one cannot see the Attorneys of the Day. This is not surprising given that in 2019 alone, 39,600 households faced eviction in Massachusetts. Of these, 92% of the tenants were unrepresented; in contrast, more than 70% of landlords were represented.
At the “Attorney of the Day” table for tenants, I flip through the dockets and see the usual massive number of new eviction cases – about 150 in total – and 55 motion hearings on the two lists. The day will be long. I brace myself for the ongoing series of tests that I will face, each of which will demand that I prove who I am, making Eviction Thursday an even more exhausting day.
The Client: “You’re My Lawyer?”
Finding my client among the sea of black and brown faces who are anxiously searching for answers from anyone who might be willing to listen is do-able if I have previously met the tenant. Today is not that day. Working in legal aid, where there is a mismatch between high demand and limited resources, I often walk through the hall shouting out names of clients I will meet for the first time in court. When my first call does not yield a response, I call again. Success! I formally introduce myself to the client and field the expected question: “You’re the attorney I spoke with?” Surprise mixed with suspicion registers on my client’s face. For my clients, it is my youth that is concerning. I am used to this look of doubt as an attorney who practices exclusively with elders; this is my second test of the day. It is the unspoken challenge to my legitimacy raised by my appearance. I deflect their anxiety with humor using stereotypical images of attorneys common to their generation: “I must look adolescent, not the Matlock or Perry Mason you were expecting?” To get past the awkwardness, I direct my client’s attention to the goal for the day and what to expect in the courtroom. But sometimes this is not sufficient assurance. I confidently explain to my client that this is “not my first rodeo,” and hope that I have gained their trust. I leave them to their thoughts and move on to find opposing counsel.
The Bench and the Bar
Housing courts tend to have their usual players, so locating a specific attorney is not often difficult. Again, today is not that day. Like a chameleon, I pass unnoticed through the tenants, a sea of brown and black faces crowding the halls while waiting anxiously for the courtrooms to open, and quickly scan each white individual in a suit. In the courtroom, shades of brown dominate, speckled here and there by clusters of ivory. I am not the only person of color, or the only woman, or the only person of modest economic means. Even so, there is a clear dichotomy: the majority of the tenants are minorities while the majority of attorneys are white and male. Then there is me.
As the list is called, the attorneys jockey for seats in the jury box. In that segregated space, protected against the huddled masses packed into courtroom, the color scheme flips; today, I am the only grain of pepper in a sea of salt. I sigh, recalling the day the court officer singled me out: “Hey, you can’t sit there. You a lawyer?” Moving past colleagues to an empty seat, I speculate that they are wondering: “Does she know this section is for attorneys?” This is the daily reality of what it means to be an attorney of color in Massachusetts, navigating unwritten tests to prove that I exist, I am qualified, and that I belong.
Once the call of the lists begins, the doors to the standing-room only courtrooms are shut. Any defendant not present in the correct courtroom for the call will be defaulted. Most tenants who answer are visibly anxious. Once referred to court mediation on the third floor, some will go over agreements with a housing specialist, but most will be diverted to sign, without the benefit of a hearing or trial, the pre-drafted form agreement for judgment offered by the landlord’s attorney. This is accomplished quickly in the hallway, often with no understanding on the part of the tenants of the document they have signed, including the waiver of their right to request a stay, seek reconsideration, or pursue an appeal. Instead, they blindly focus on the quickest option that allows them to remain in their home and escape the stress of being in court.
My client, who was previously pro-se, had signed such an agreement for judgment with the landlord. The slightest breach of any of its conditions, including all incorporated lease terms, is deemed material and could trigger an execution for possession – and the agreement waived all stays of execution. But today, there will be no execution for possession. Today, I have prevailed in negotiating an amendment to the “Sword of Damocles” agreement, and substituted a sustainable repayment plan with sufficient time to access third party rental assistance through the Residential Assistance for Families in Transition (RAFT) program for the onerous agreement for judgment. I also connected the elderly client to the court’s Tenancy Preservation Program (TPP). I am the most pleased with my success in changing the basis for the eviction from “fault” to “no-fault,” thereby protecting my client from mandatory termination of their Section 8 Housing Choice Voucher.
I have passed today’s last test. I achieved a successful outcome. I demonstrated my competence to my client and proved my negotiation skills to an opposing counsel with whom I had not worked with in the past.
Legal Aid and the Massachusetts Bar
Back at my office at Greater Boston Legal Services, my shoulders relax. Here, I am not burdened by expectations to conform to the culture and hierarchy of a Boston law firm. I am not oppressed by inadvertent stereotyping nor subject to daily microaggressions that would stunt any lawyer’s professional growth. Notwithstanding, my dominant experience navigating my chosen profession is one of alienation, exclusion, and discomfort—the price that I pay under the “invisible labor clause” for being a black woman legal aid attorney in Massachusetts, serving the poorest people in Boston who are predominantly people of color, like me.
In my career, I have experienced racism, gender discrimination, and elitism. My experience is not unique. Throughout the Commonwealth, attorneys of color are called upon to prove their qualifications daily, to colleagues, clients, court personnel and even clerks and judges.
The 2019 demographic survey conducted by the Supreme Judicial Court, in collaboration with the Massachusetts Board of Bar Overseers, revealed that out of 22,743 participating attorneys, 20,043 (86%) identified as White, and only 494 (2%) identified as Black or African American, 519 (2%) as Hispanic or Latinix, and 574 (2%) as Asian. These numbers make clear what my experience has proven—there is a gross lack of minority representation in the Massachusetts bar.
This is not a “woe is me” story. It is a call to action for cultural diversity in law firms and legal organizations and, more importantly, for reflection on and recognition of each of our implicit biases. My day is over, but these challenges will repeat tomorrow and next week and every month thereafter with a new list of scared, mostly poor, minority tenants, assembled in lines to enter a courthouse, named for the first African American Attorney General of Massachusetts, all in effort to get “justice.” We should do better. We can do better.
Danielle Johnson is a Staff Attorney at Greater Boston Legal Services where her practice focuses on elder housing and disability benefits. Danielle also participates in the Lawyer for the Day Program at the Metro South Housing Court, assisting tenants. Danielle is also a member of the Boston Bar Association, the Massachusetts Black Lawyers Association, and the Massachusetts Black Women Attorneys.
Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. BuddPosted: May 28, 2020
Voice of Judiciary
*This interview is a companion piece to “Walk in My Shoes: A Day in the Life of a Black Woman Attorney” by Danielle Johnson.
I was fortunate to recently talk with Justice Kimberly S. Budd about her career path and her experiences as a woman of color in the legal profession.
SH: What drew you to the law?
KB: I was lucky in that my Dad was a lawyer so he exposed me to the law. I have to admit, though, that when I was a kid, I did not really have an understanding of what a lawyer did. I do remember going in to work with him on the weekends, and helping him by pulling files. That’s what I grew up in. When I graduated from college, I went on to law school because I didn’t know what else to do (I majored in English). In hindsight, I wish I had taken a year to work between college and law school. I felt really young and inexperienced in law school.
SH: Has your identity as a woman of color affected your experience as a judge?
KB: I think it is fair to say that being a woman of color affects every part of my life, including being a judge. The piece written by Danielle Johnson about her experiences in Housing Court brought back similar memories of my experience as a young litigator. I have been mistaken for a defendant’s girlfriend by a court officer, and have been underestimated by countless numbers of opposing counsel over the years.
As a judge in Superior Court, it was clear that attorneys, litigants and jurors were not expecting to see a Black woman judge when they came into the courtroom. I remember one particular afternoon I was sitting in a civil motion session in Middlesex County and working with a Black woman courtroom clerk and a Black woman court officer. I think those who had business in the “D” session that afternoon were surprised to see our team!
When I handled criminal cases, many of the defendants were Black. I like to believe that it made a difference for them to see someone who looked like them on the bench, especially if everyone else in the courtroom was White.
SH: What was your experience with Judicial Evaluations?
KB: State court trial judges are evaluated periodically by practitioners who are surveyed anonymously. The evaluations have both objective and subjective components, resulting in a numerical rating, and written comments. In 2014 a review of the judicial evaluations showed that judges who were of color and women judges consistently received lower ratings than White male judges. Attempts were made to figure out how to account for bias, implicit or otherwise. We haven’t come up with a solution, and I’m not sure that there is one. The evaluations reflect the biases that exist in our society.
I have to admit that whenever I received my evaluation results, it was difficult to look at the comments. Many were good, but it was the negative ones that consumed my attention. After my first evaluation I stopped looking at the written comments altogether.
SH: You are the third African American ever appointed to the SJC, correct?
KB: Yes, and the second Black woman. Chief Justice Rodrick Ireland was the first African American appointed to the court in 1997 (the first in the Court’s over 304 year history). He subsequently became the Chief Justice in 2010. He was an excellent chief—and a great leader; everyone thought he did an amazing job. He was cognizant of the fact that his performance likely would affect the way judges of color who came after him would be perceived.. When Chief Justice Ireland retired, Justice Geraldine Hines replaced him and was the first African American woman.
SH: Can you describe your relationship with Justice Hines?
KB: I have been fortunate to know Gerri for a long time. She started in the Superior Court, back in 2001. I remember attending her swearing in ceremony when she first became a judge and being so excited for her and for the Commonwealth. Little did I know that eight years later I would be her colleague on the Superior Court. She was my mentor there, and again when I joined the SJC. It makes such a difference when you have someone in your corner showing you how to do the job, answering your questions and rooting for you to succeed. Her presence on the SJC when I arrived was huge. And her absence is still felt (she retired in 2017). She is only a phone call away though!
SH: The future of the SJC. Do you see more diversity coming?
KB: I sure hope so.
I would hate to think that anyone would use my presence on the Court to support an idea I am one of just a handful of people of color who are qualified to be a Justice of the Supreme Judicial Court. That certainly is not the case. I also cringe when I think there are some who might believe that I am here only because they needed a Black person to fill a slot. Even though diversity and inclusion are and should be priorities for the Commonwealth’s judiciary system and in many workplaces, I believe that I hold my own on the SJC. I am not just taking up space. And like Danielle, I work every day to prove it.
Kimberly S. Budd is an Associate Justice for the Massachusetts Supreme Judicial Court (“SJC”), where she has served for nearly four years, and a former Justice of the Massachusetts Superior Court. She was appointed to the Superior Court by Governor Devall Patrick in 2009. Justice Budd was a litigation associate at Mintz Levin, an Assistant United States Attorney in the United Stated Attorney’s Office for the District of Massachusetts, and a University Attorney for Harvard University in the General Counsel’s Office. She also worked at Harvard Business School as the Director of Community Values. Justice Budd earned her bachelor’s degree in English from Georgetown University and her law degree from Harvard Law School.
by Donald R. Pinto, Jr.
The Massachusetts Land Court is one of a kind. Created in 1898 to administer the then-new land registration system, the court’s jurisdiction has since expanded to encompass an extraordinarily wide range of real estate and land use disputes. The only other state with a Land Court is Hawaii, and that court’s jurisdiction remains limited to land registration matters. The Massachusetts Land Court stands alone as the nation’s only all-purpose real estate specialty court.
Among the many types of cases it now hears, the Land Court has exclusive original jurisdiction over complaints for the confirmation and registration of land, as well as (except for certain domestic relations cases), “[c]omplaints affecting title to registered land . . . .” M.G.L. c. 185, §§ 1(a) & 1(a ½). From time to time this provision prompts questions concerning the jurisdiction of other trial courts over claims involving registered land. The Appeals Court recently addressed such a question in Johnson v. Christ Apostle Church, Mt. Bethel, 99 Mass. App. Ct. 699 (2019). Before turning to Johnson, some background on the development of the Land Court’s expansive jurisdiction will provide useful context.
The Evolution of the Land Court’s Subject Matter Jurisdiction
Originally named the Court of Registration, the Land Court was created by Chapter 562 of the Acts of 1898. The court’s jurisdiction was limited to “exclusive original jurisdiction over all applications for the registration of title to land within the Commonwealth, with power to hear and determine all questions arising upon such applications, and also . . . jurisdiction over such other questions as may come before it under this act . . . .” After a brief period as the Court of Land Registration, in 1904 the court was re-named the Land Court and its exclusive original jurisdiction was expanded to include four causes previously heard by the Superior Court: writs of entry; petitions to require actions to try title; petitions to determine the validity of encumbrances; and petitions to discharge mortgages. During the next 15 years the court was given exclusive original jurisdiction over petitions to: determine the boundaries of tidal flats (another transfer from the Superior Court); determine the existence and extent of a person’s authority to transfer interests in real estate; determine the enforceability of equitable restrictions on land; foreclose tax titles; and determine county, city, town, and district boundaries.
The 1930s saw an even greater expansion of the Land Court’s jurisdiction. In 1931, the court was given original jurisdiction concurrent with the Supreme Judicial Court (“SJC”) and the Superior Court over suits in equity to quiet or establish title to land and to remove clouds from title. In 1934, one of the most significant expansions of Land Court jurisdiction occurred: the court was given original jurisdiction concurrent with the SJC and the Superior Court over “[a]ll cases and matters of equity cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, except suits in equity for specific performance of contracts.” In 1934 and 1935, the court also was given exclusive original jurisdiction over petitions under M.G.L. c. 240, § 14A to determine the validity and extent of municipal zoning ordinances, bylaws, and regulations, and original jurisdiction concurrent with the SJC and the Superior Court over suits in equity involving: redemption of tax titles; claims between joint trustees, co-executors and co-administrators; fraudulently conveyed real estate; and conveyances of real estate to municipalities, counties, and other subdivisions of the Commonwealth for specific purposes.
The Land Court’s jurisdiction remained relatively static for the next 40 years. In 1975, the legislature enacted the Zoning Act, M.G.L. c. 40A, and the court’s existing jurisdiction under M.G.L. c. 240, § 14A, was broadened, empowering it to hear (concurrently with the Superior Court) appeals from zoning boards of appeals and special permit granting authorities. Jurisdiction over appeals from planning board decisions under the subdivision control law was added in 1982.
In 1986, in response to confusion over the scope of the Land Court’s exclusive jurisdiction over the land registration system – particularly regarding other trial courts’ ability to decide claims involving registered land – the legislature added to the Land Court’s list of exclusive jurisdictional grants, “[c]omplaints affecting title to registered land . . . .” As will be discussed below, while this language clarified the issue to a degree, it left important questions unanswered.
In 2002, the Land Court’s jurisdiction was again significantly expanded. The court was given original jurisdiction concurrent with the Probate and Family Court (the “Probate Court”) over petitions for partition, and original jurisdiction concurrent with the SJC and the Superior Court over civil actions for trespass to real estate and actions for specific performance of contracts where any right, title, or interest in land is involved. The legislation also expanded the court’s jurisdiction over land-use disputes, granting the court jurisdiction to hear certiorari and mandamus actions under M.G.L. c. 249, §§ 4 and 5 where any right, title, or interest in land is involved “or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.” Two notable exceptions to this latter grant of jurisdiction are appeals from decisions of conservation commissions under local wetlands protection ordinances and bylaws and appeals from decisions of boards of health under Title 5 of the state sanitary code.
The most recent expansion of the Land Court’s jurisdiction occurred in 2006, when the legislature established a special “permit session” within the court. This special session provides more intensive case management and expedited handling of cases involving larger real estate developments, defined as those comprising 25 or more dwelling units, or 25,000 or more square feet of gross floor area, or both. In cases accepted into the permit session, the Land Court’s original jurisdiction (which is concurrent with the Superior Court) is even more expansive than its regular jurisdiction, encompassing virtually every type of local, regional, and state land-use permit, approval, order, and certificate. This sweeping jurisdiction includes, for example, appeals from decisions under the Boston zoning code, local wetlands protection ordinances and bylaws, and Title 5 of the state sanitary code – actions that are outside the Land Court’s regular jurisdiction.
It should be noted that in addition to the elements of the Land Court’s jurisdiction compiled in M.G.L. c. 185, § 1, and its permit session jurisdiction set forth in M.G.L. c. 185, § 3A, other statutes confer jurisdiction on the Land Court over other categories of cases. Two notable examples are M.G.L. c. 240, §§ 10A, which gives the Land Court jurisdiction concurrent with the Superior Court over actions to determine the scope and enforceability of restrictions on land, and St. 1943, c. 57, under which the court has jurisdiction concurrent with the Superior Court over suits in equity to determine, in connection with mortgage foreclosures, whether the mortgagor is a servicemember entitled to protection under the federal Servicemembers Civil Relief Act, 50 U.S.C.A. § 3901.
St. 1986, c. 463, § 1
Before 1986, there was uncertainty over the extent to which trial courts other than the Land Court could decide cases involving registered land. For example, a damages claim for breach of a purchase and sale agreement for a parcel of registered land does not affect the title to that land, and thus can be brought in Superior Court. However, a case involving the scope of an easement over registered land presents a more difficult question. In Deacy v. Berberian, 344 Mass. 321 (1962), the plaintiff filed suit in Superior Court seeking to enjoin the defendants from interfering with her use of a right of way over registered land. Based on the language of the original Land Court decree, the defendants claimed that the plaintiff’s use of the way was limited to passage “on foot and with teams,” and that passage by automobiles was precluded. 344 Mass. at 326. On appeal from a judgment for the plaintiff, the defendants argued that the Superior Court lacked jurisdiction to decide the issue. Id. at 328. In response the SJC stated, without further comment or analysis, “[w]e are of opinion [sic] that the purposes of the Land Court Act are not violated by the Superior Court interpreting the original decree so as to give effect to a common mode of transportation.” Id. Similarly, in Cesarone v. Femino, 340 Mass. 638 (1960), the plaintiff filed suit in Superior Court seeking a declaration that he was the owner of a parcel of registered land because his signature on a deed purportedly conveying that parcel was forged. 340 Mass. at 639. On appeal from a judgment for the plaintiff, the defendants argued that because it involved ownership of registered land, the plaintiff’s claim was within the Land Court’s exclusive jurisdiction. Id. The SJC disagreed, characterizing the claim as one based on general principles of equity, concluding, “it appears that either the Land Court or the Superior Court could take jurisdiction.” Id. at 639-640.
In an effort to clarify the scope of the Land Court’s exclusive jurisdiction over registered land and, by implication, the scope of other courts’ jurisdiction over cases involving registered land, in 1986 the legislature – as noted above – amended the court’s main jurisdictional statute, M.G.L. c. 185, § 1, to provide that the court has exclusive jurisdiction over “[c]omplaints affecting title to registered land . . . .” St. 1986, c. 463, § 1; M.G.L. c. 185, §1(a ½). However, it appears this amendment has failed in its mission: while the question whether a claim “affects title” to registered land seems like a simple one, in practice it has proved difficult for our appellate courts to answer in a consistent fashion.
Johnson v. Christ Apostle Church, Mt. Bethel
Such a question was at the center of the Appeals Court’s decision in Johnson v. Christ Apostle Church, Mt. Bethel, 96 Mass. App. Ct. 699 (2019). Johnson involved a dispute between the plaintiff homeowner (“Johnson”) and an adjacent church over Johnson’s use of a driveway on the church’s property that provided access to Johnson’s property. Both properties are registered land. 96 Mass. App. Ct. at 700. After years of peaceful coexistence, in 2013, the church installed a six-foot fence on the property line, which prevented Johnson from continuing to use the driveway. Id. Johnson filed suit in Superior Court asserting claims of negligence, adverse possession, and violation of the “spite fence” statute, M.G.L. c. 49, § 21, which deems certain fences a form of private nuisance. Id. After a trial solely on the nuisance claim, the court ruled for Johnson and ordered the church to install gates in its fence to restore Johnson’s access. Id. at 700-701.
On appeal, though neither side raised the issue, the Appeals Court vacated the judgment on the ground that it effectively granted Johnson “a permanent easement to use the church’s property.” Id. at 701. Citing M.G.L. c. 185, §1(a ½), the Appeals Court held, “[t]he Superior Court does not have jurisdiction to so encumber registered land.” Id. In support of its holding the Appeals Court cited Feinzig v. Ficksman, 42 Mass. App. Ct. 113 (1997), which also involved use of a driveway on registered land. In Feinzig, the Superior Court had entered a judgment enjoining the defendant from interfering with the plaintiffs’ use of the defendant’s land. 42 Mass. App. Ct. at 115. The Appeals Court vacated that judgment, characterizing it as “a de facto encumbrance in the nature of an easement” that affected the defendant’s registered title, and therefore was within the Land Court’s exclusive jurisdiction and outside the jurisdiction of the Superior Court. Id. at 117. The Appeals Court observed, “while a Superior Court judge may order the discontinuance of a trespass on registered land, that judge may not fashion a judgment which has the effect of imposing an encumbrance on the registered title.” Id. at 115-116.
The Appeals Court’s Johnson decision omits any reference to O’Donnell v. O’Donnell, 74 Mass. App. Ct. 409 (2009), a decision that is hard to square with Johnson. In O’Donnell, the defendant mother was embroiled in litigation in the Probate Court with one of her sons over the validity of deeds to two parcels of registered land. 74 Mass. App. Ct. at 411. The mother claimed that those deeds had been procured by undue influence and fraud, and in breach of the son’s fiduciary duty. Id. The son unsuccessfully moved to dismiss the Probate Court action on the ground that it fell within the Land Court’s exclusive jurisdiction over registered land. Id. In response, the son and his brothers filed a new case in the Land Court seeking a declaration that the deeds were valid. Id. The Land Court dismissed that case on the ground of the prior pending Probate Court action, concluding that the judgment the mother sought in the Probate Court “would not of its own force purport to modify the registered title,” and therefore did not intrude on the Land Court’s exclusive jurisdiction over claims “affecting title to registered land.” Id. The Appeals Court affirmed, noting that both the Land Court and the Probate Court have general equity jurisdiction and can decide claims concerning registered land, “as long as the action desired would not have the effect of altering the registered title.” Id. at 412, citing Steele v. Kelley, 46 Mass. App. Ct. 712, 725 (1999). The Appeals Court added that, if a Probate Court judge were to find the deeds valid, “they still would represent no more than ‘a contract between the parties, and . . . evidence of authority to the recorder or assistant recorder [of the Land Court] to make registration.’ A separate act of registration would remain necessary to modify the title directly.” Id., quoting Steele, supra.
It is true that under our system of land registration, with a few narrow exceptions, no matter can formally affect a registered title unless it appears in the certificate of title or is noted on that certificate’s memorandum of encumbrances. M.G.L. c. 185, § 57 crisply states, “[t]he act of registration only shall be the operative act to convey or affect the land.” This is the principle on which O’Donnell rests. But if the Probate Court can enter a judgment determining the validity of a deed to registered land because that judgment itself does not affect the title, why is the Superior Court, in the exercise of its equity jurisdiction, precluded from entering a judgment ordering a defendant to install gates in its fence so that the plaintiff can use the defendant’s registered land (Johnson), or enjoining a defendant from interfering with the plaintiffs’ use of the defendant’s registered land (Feinzig)? After all, such judgments would not of their own force purport to modify the registered title. They would stand simply as adjudications of the parties’ respective rights, and “evidence of authority to the recorder or assistant recorder to make registration.” O’Donnell, supra at 412. Under the reasoning of O’Donnell, it appears, other courts would be free to adjudicate virtually any dispute involving registered land – not only claims concerning the validity of deeds, but claims involving easements and other lesser interests in registered land.
If there is a reasoned way to harmonize the Johnson/Feinzig view of the Land Court’s exclusive jurisdiction over registered land with the O’Donnell view, it is not readily apparent. The Johnson/Feinzig view is preferable in that it comports with the legislature’s presumed intent in 1986 to curb decisions like Deacy and Cesarone, supra, and reserve most disputes involving registered land for resolution by the Land Court, which is solely responsible for administering the registration system and has over a century of expertise in handling such disputes. The distinction that the Feinzig court drew between a claim of trespass on registered land, which does not affect title (at least where the trespasser claims no rights in the land), and a claim of a right to use registered land (whether direct or de facto), which does affect title, is sound and consistent with M.G.L. c. 185, §1(a ½). The O’Donnell view, in contrast, allows for no limiting principle and could lead to a significant erosion of the Land Court’s exclusive jurisdiction over registered land. The real estate bar will be grateful if a future appellate decision resolves the contradiction between these two approaches and finally provides the clarity that the legislature sought to achieve in 1986.
See HRS § 501-1.
 St. 1904, c. 448, § 1.
 St. 1906, c. 50, § 1.
 St. 1906, c. 344, § 1.
 St. 1915, c. 112, § 1.
 St. 1915, c. 237, § 3.
 St. 1919, c. 262, § 1.
 St. 1931, c. 387, § 1.
 St. 1934, c. 67, § 1.
 St. 1934, c. 263, § 1.
 St. 1935, c. 318, §§ 1-5.
 St. 1975, c. 808, § 3.
 St. 1982, c. 533, §§ 1 & 2.
 St. 1986, c. 463, § 1.
 St. 2002, c. 393.
 St. 2006, c. 205, § 15.
 M.G.L. c. 185, § 3A.
Donald R. Pinto, Jr. is a partner of Pierce Atwood LLP based in the firm’s Boston office. He has over 30 years of experience representing clients in all aspects of real estate and land-use litigation in the trial and appellate courts.