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Massachusetts Zoning & Land Use Blog

MERGER & GRANDFATHERING: WHEN A COURT INTERPRETS A ZONING PROVISION DIFFERENTLY THAN THE ZBA

By Jeffrey Angley posted in Zoning on Monday, May 6, 2013

In many M.G.L. c. 40A, § 17, appeals, courts are required to interpret the local zoning bylaw or ordinance to address the underlying substantive issue. The judge's standard of review in these cases must give "substantial deference" to a board's reasonable interpretation of its zoning code. However, erroneous interpretations, are not entitled to deference. And it is interesting to see how this dynamic plays out both during a case and after the fact. The recent case of Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 (2013) (on appeal from the Land Court) provides a good example.

In Mauri, the court looked at the "longstanding rule that considers adjoining undersized lots held in common ownership as one lot for zoning purposes, in the context of a local [Newton's] zoning ordinance that has been interpreted to provide protection against such merger." Id. at 337.

In this case, the defendants owned two adjoining residential lots that were undersized under the current zoning ordinance. Or, in zoning lingo, two "pre-existing nonconforming lots". Lot 39 has a garage and Lot 40 has a single-family dwelling. The defendants sought a building permit to construct a single-family home on the garage lot. Plaintiffs objected due to density concerns, even though the proposed house would have met current setback requirements (the proposed house would have been between 12 to 14.5 feet from plaintiffs' existing home).

The Newton building inspector issued the building permit for the new home, finding that the garage lot fell within the grandfathering provisions found in the local zoning ordinance. Although plaintiffs appealed the decision the ZBA, the requisite supermajority vote was not reached to revoke the permit. In the Land Court, however, the plaintiffs prevailed on summary judgment and the permit was revoked. The Appeals Court affirmed the lower court's decision.

After finding that the plaintiffs had standing to bring the appeal, the Appeals Court (and the Land Court) addressed the concept of "merger" in the context of zoning and the desire for conforming lots, both pursuant to M.G.L. c. 40A, § 6, and Newton's local grandfathering ordinance provision, §30-15(c).* The Appeals Court found that the protections afforded by c. 40A, § 6, did not apply to the garage lot in this instance because it was not a vacant lot.

The court then looked to see whether the local grandfathering provision offered more liberal protection. Ultimately, the Appeals Court held that it did not. As it often does, the court's analysis involved both an issue of grammatical interpretation and statutory construction. The court's inquiry focused on "which lot must be improved with a dwelling in order to qualify for the exemption; that is whether the term "such lot" as used in § 30-15(c)(3)(b) refers to the lot for which a building permit is sought, i.e., "the lot at issue," [garage lot] or the "adjacent lot" [house lot]. The Appeals Court affirmed the Land Court's interpretation that "such lot" refers to the "lot in question" (the garage lot). As a result, it is the garage lot that must be improved with a single or two-family dwelling in order to qualify for grandfather protection, which was not the case here. See id. at 342.

The court also considered whether this interpretation was illogical or unreasonable in any way. Defendants made a colorable argument in this regard, asserting that "it is illogical to provide merger protection for a lot that is already improved with a residential structure as it would already be protected as a prior nonconforming use" and thus the only lot requiring protection was the garage lot. See id. The Appeals Court was not swayed by their argument, nor the arguments raised in the amici briefs that asserted that upholding the Land Court decision "will create great havoc in the city as residents long have been relying on the buildable status of lots such as the garage lot." Id. at 343-44.

And, indeed, the City of Newton now seems to be struggling with how to sort out the consequences of this decision, i.e., how to navigate the new terrain created by the courts' interpretation of § 30-15(c). In a Working Session Memorandum posted online, dated March 22, 2013, from Newton's Director of Planning and Development to the Chair of the Board of Aldermen and the Zoning and Planning Committee, the ramifications of the Mauri decision are noted-for example, at least ten homes are now rendered non-compliant by the decision. The scenarios under two different petitions introduced to address the noncompliance are also discussed in the seven page memorandum. An additional memorandum related to this issue has also been circulated in Newton (available here) and further hashes out the various options available to the city to deal with the Mauri aftermath. It appears that the latest meeting occurred on April 22, but there is no further information available online as of this post. We will continue to monitor how Newton ultimately deals with a court decision that has had some tangible consequences for at least some of the city's landowners.

* Here is the full text of the local zoning ordinance at issue (language specifically reviewed by the court in italics/bold):

Any increase in area, frontage, or setback requirements ... shall apply to any lot in a residential zoning district except to the extent that either the provisions of [G.L. c. 40A, § 6,] as in effect on January 1, 2001, or the following provisions, provide otherwise. Any increase in area, frontage, or setback requirements prescribed in [this ordinance] shall not apply to any lot in a residential district if all of the following requirements are met:

(1) At the time of the recording or endorsement ... or on October 11, 1940, if the recording or endorsement occurred before October 11, 1940, the lot (a) conformed to the requirements in effect at the time of recording or endorsement, whichever occurred sooner, but did not conform to the increased requirements, and (b) had at least five thousand square feet of area, and (c) had a least fifty feet of frontage.

(2) The size or shape of the lot has not changed since the lot was created unless such change complied with the provisions of section 30-26.

(3) Either (a) [t]he lot was not held in common ownership at any time after January 1, 1995, with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, or (b) [i]f the lot was held in common ownership at any time after January 1, 1995, with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single family or two-family dwelling.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: amendments, grandfathering, litigation, merger, zoning, zoning codes

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ZONING APPEALS: WILL SANCTIONS EVER MAKE SENSE?

By Jeffrey Angley posted in Zoning on Friday, April 26, 2013

Earlier this month, the Land Court (Long, J.) rendered a zoning decision denying defendants' request for sanctions despite the fact that plaintiff had failed to meet the quantitative and qualitative showing for standing required to maintain his appeal of the special permit that was granted to the existing and prospective landowners. The case yields both encouraging and troublesome outcomes.

In Kushnirsky v. Bloomquist et al., 2013 WL 1461776, 12 MISC 464638(KCL) (Mass. Land Ct. Apr. 11, 2013), the city council granted a special permit to the defendants to operate an automobile repair shop. Plaintiff, an abutter, appealed the grant of the special permit and also included a claim for "spot zoning" relative to the zoning amendment that now allows automobile repair shops as a special permit use. Plaintiff was represented by legal counsel during the case.

Defendants sought to dismiss the case via summary judgment, and included a motion for attorney's fees pursuant to M.G.L. c. 231, § 6F, which provides that

Upon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge . . . the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith. The court shall include in such finding the specific facts and reasons on which the finding is based.

If such a finding is made with respect to a party's claims, the court shall award to each party against whom such claims were asserted an amount representing the reasonable counsel fees and other costs and expenses incurred in defending against such claims. . . .

...

No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof.

As a reminder, in zoning cases where the plaintiff's standing is in question-and here, though the plaintiff had presumptive standing, the defendants offered a supported challenge-the plaintiff must

'put forth credible evidence to substantiate his allegations.' [citation omitted] 'Credible evidence' includes both quantitative and qualitative components. [citation omitted] Quantitatively, the plaintiff must produce specific facts in support of the injury he claims, and show that those injuries are to interests protected by the zoning ordinance. . . . Qualitatively, the plaintiff's evidence for his claims must be of a kind on which a reasonable person could rely. . . . As a matter of law, 'conjecture, personal opinion, and hypothesis' are not of such kind. [citations omitted]

Id. at *3. The court notes exactly how plaintiff failed to meet this burden.

  • Plaintiff "did not oppose the summary judgment motion with any facts, nor even a memorandum of law. All he has placed in the record are his pleadings." Indeed, the defendants' filed version of the "undisputed material facts" were uncontested by and without response from plaintiff.
  • He "cites his personal concerns about increased traffic in the area as a harm that he will suffer from an operational repair garage on the property. Yet he offers no traffic study to support this contention, nor is he a traffic engineer."
  • Plaintiff "admit[ted] that the area already has a high level of automobile traffic and gives no support for the claim that a special permit allowing the establishment of a repair garage on the property will exacerbate traffic to a level that is harmful to him."
  • He claims that the noise and odors that a repair garage on the property will emit will cause him harm. But, again, he has failed to support those claims with any expert evidence (indeed, any admissible evidence at all), and has failed to show how these alleged noises and odors would be more harmful to him than the noises and odors that he already experiences from the gas station across the street from the property at issue and the other nearby commercial businesses.

The court rightfully and ultimately concludes that each of plaintiff's alleged "harms is based on speculation and his own opinions, not on any factual support" and therefore does not have requisite standing to maintain the appeal.

Yet, despite all of these shortcomings, the plaintiff was ultimately not subject to sanctions pursuant to c. 231, § 6F. To this end, the court notes

Having reviewed the entirety of the record, I cannot say that [plaintiff's] claims were "wholly insubstantial, frivolous and not advanced in good faith" when this case was filed. [He] is an abutter to an abutter, obviously concerned about the location of another business in the neighborhood, and brought this case with the advice and assistance of experienced counsel. To his credit, once the defendants came forward with their summary judgment motion, [plaintiff] did not attempt to fight it. Having reviewed that motion and its supporting evidence, he obviously (and correctly) concluded that he could not prevail and let the motion go forward unopposed. My ruling might have been otherwise had [plaintiff] put up obviously flawed counterarguments. But he did not, and I will not penalize him for taking the right course once he saw he would lose.

Kurchinsky at *4.

What is perhaps most troublesome about this case is that it continues to leave the door open for the myriad of zoning appeals that are based on purely speculative claims of increased traffic and noise, certainly two of the most common purported injuries resulting from zoning decisions. There are countless cases like this one where standing is ultimately defeated because there is no evidence (on the plaintiff's part) to support the notion that any injuries will result from traffic and/or noise. To be fair, there are plenty of cases where these injuries are sufficiently substantiated to withstand a standing challenge (even if the plaintiffs do not ultimately prevail on substantive grounds). But by continuing to allow plaintiffs to attempt to thwart legitimate, lawful development from taking place by using lawsuits like these-and without financial penalty no less-land owners and business owners are ultimately the ones who suffer due to financial losses associated with significant litigation costs, project delays and increased labor and construction costs.

The fact that so many of these kinds of cases have already become solid frameworks for standing jurisprudence in the zoning context, begs the question of the role, if any, of Rule 11 sanctions in cases like these. There are more than enough examples available to counsel that indicate the level of quantitative and qualitative support that is necessary to go forward with the suit, much less file it. Yet flimsy cases continue to be filed.

As we wait for workable zoning reform to bear fruit, perhaps one fragment of hope is found in the court's warning that had this plaintiff-and, by extension, future ones like him-gone forward with his case and made faulty arguments opposing the summary judgment motion, the court might not have been so amicable about sanctions under § 6F. It does seem to ring a warning bell for future litigants and their counsel, though it likely does not give much comfort to most permit holders at the outset of the permitting process given the relative difficulty in prevailing in these kinds of sanctions requests and the time and expense involved in bringing dispositive motions to terminate such unsupportable zoning appeals.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: litigation, sanctions, special permit, zoning

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VARIANCES: DEMOLITION NOT A "RIGHT" TO BE EXERCISED IN ONE YEAR

By Jeffrey Angley posted in Zoning on Friday, April 12, 2013

In a very short rescript decision, E & J Props., LLC v. Medas, 464 Mass. 1018 (2013), issued by the SJC on March 19, 2013, the highest court (on further appellate review of a Rule 1:28 decision), held that the defendant variance holder was not precluded from completing the demolition of a structure on his lot well after a year since the variance was issued.

The basic facts of the case are as follows:

  • In 2005, ZBA granted defendant a variance "[t]o demolish existing structures and to subdivide [the subject property] into twenty . . . buildable lots . . ." and that the "[r]ights [a]uthorized by this [d]ecision shall be exercised within one year of the grant." The defendant's plan (submitted with its variance petition) showed that an existing structure would be demolished on the property.
  • Within one year of the variance decision, the planning board endorsed an ANR plan showing the property divided into twenty lots.
  • Plaintiff purchased sixteen of those lots, and began construction of some e housing units on a portion of the lots.
  • Meanwhile, defendant demolished a portion of the existing structure. The defendant continued to own the remaining four lots, which were the site of the now-partially demolished existing structure.
  • In early 2009, the building inspector issued a notice of violation to defendant, and ordered that the defendant cease and desist from violating the zoning ordinance provision relative to execution of the variance. That is, the building inspector believed that by not demolishing the entire structure within one year of the variance decision, that the defendant was in violation of the zoning ordinance and the terms of the variance itself.
  • Defendant appealed the building inspector's notice of violation to the ZBA, arguing that the variance contained no deadline for completion of demolition (or any other activities authorized by the variance).
  • ZBA reversed the notice of violation, stating that the conveyance of the sixteen lots and commencement of the construction constituted "'substantial use of the rights' granted by the variance." (citation omitted)
  • Plaintiff (abutter/owner of the 16 lots) appealed the ZBA's decision to the Land Court.
  • The Land Court affirmed the ZBA's reversal.
  • Plaintiff appealed. The Appeals Court reversed (Rule 1:28 decision) the Land Court, essentially upholding the Building Inspector.

Upon further appellate review in the SJC, the highest court noted that the ZBA's "variance decision neither required demolition nor imposed a time deadline for the demolition to occur." To the extent that "[t]he terms of a variance must appear on its face," this particular variance decision contained no such timelines or deadlines. See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 205 (2005).

Perhaps more importantly, however, was the SJC's noting the following:

While the variance decision requires that 'rights authorized by the decision' be exercised within one year, demolition was not a 'right' authorized by the variance per se. To construe demolition as a 'right' subject to lapse after one year would be nonsensical, as demolition was precisely the result sought by the building inspector in his enforcement order.

E & J Props., LLC at 1019 (emphasis added). For this reason, the SJC found the ZBA's reversal of the building inspector's notice of violation reasonable and legally tenable.

This kind of nuanced review of the ZBA's variance decision sends a reminder to zoning boards to be specific with their words, if they envision a specific outcome; here Fall River apparently did not care how long the demolition work would take, knowing that eventually it would happen. It also, however, sends a message to variance holders and any potential opponents that there will be some flexibility read into the terms of the variance if the ZBA was not explicitly detailed, yet another thing to consider before contemplating an appeal.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: appeals, deadline, demolition, variance, zoning

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POT SPOT ZONING

By Jeffrey Angley posted in Zoning on Tuesday, March 26, 2013

Massachusetts cities and towns use zoning districts (residential, commercial, industrial, etc.) to set forth the type of land use(s) and structures permissible within a given geographical area. Chapter 40A, § 4, requires that these "districts shall be uniform within the district for each class or kind of structures or uses permitted."

Sometimes, however, cities and towns run afoul of this and unlawfully engage in what is known as "spot zoning", which is

the singling out of one area of land for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of the rezoned land.

Farrington v. City of Cambridge, 81 Mass. App. Ct. 1135 (2012) (unpublished) (citation omitted). Usually spot zoning takes place in the context of allowing certain landowner(s) to undertake a particular use (via district rezoning or a zoning amendment) not otherwise allowed in that zone. Similarly, "reverse spot zoning" happens when an amendment bars a landowner from a particular use of his land (i.e. changing the zoning district or moving the boundary line of the zone to render a more restrictively zoned parcel that prevents the landowner from engaging in a business that would have otherwise been allowed prior to the change).

Such zoning amendments can be challenged in court as spot zoning, but they will only be overturned if the "plaintiff demonstrates 'that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety . . . or general welfare.'" Id. (quotation omitted). The Massachusetts Zoning Manual suggests that reverse spot zoning has been largely scrutinized more closely by the courts than spot zoning. See Massachusetts Zoning Manual, §2.3.5(e) (5th ed. 2010).

One of the newer contexts where spot zoning might feasibly come up is with the siting of medical marijuana dispensaries in Massachusetts. If the areas where dispensaries are allowed or not allowed is too narrow, the potential for spot zoning and reverse spot zoning increases. This has already been recognized and pointed out by some municipal authorities, such as in Norwood. The potential becomes even more plausible given the Attorney General's March 13, 2013 rulings (for Wakefield and Burlington) that prohibit outright bans of medical marijuana dispensaries (though temporary moratoria are permissible). Ideally, the anticipated Department of Public Health regulations (due out in May 2013) will assist municipalities with figuring out where the ideal locations are for dispensaries.

Across all cities and towns in Massachusetts, the issue of medical marijuana dispensaries will be frequently discussed and debated in the coming months. As the Massachusetts Zoning Manual aptly points out, "public welfare is an elastic concept". See Massachusetts Zoning Manual, §2.3.5(a) (5th ed. 2010). Perhaps this is even more particularly relevant in the context of dispensing medical marijuana. From a zoning standpoint, one of the initial considerations will be to avoid any spot zoning (or reverse spot zoning) challenges. And certainly the first hurdle will be ensuring that no parcel(s) are unlawfully singled out for disparate treatment that runs contrary to the legitimate public purposes on both sides of the issue.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: amendments, dispensaries, marijuana, spot zoning, zoning

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CONSERVATION RESTRICTIONS - A BRIEF OVERVIEW

By Jeffrey Angley posted in Land Use on Monday, March 11, 2013

For owners of environmentally sensitive land, granting a conservation restriction (also referred to as a conservation easement) is a land use tool that may make sense in some cases. Though they are a voluntary limitation on the use of land, common reasons to grant a conservation restriction include,

  • landowner's desire to make a charitable contribution (with/without a claimed IRS income tax deduction);
  • required by a local or state permitting process;
  • required for certain special permit approvals; or
  • required by a wetlands protection (M.G.L. c. 131, § 40) Order of Conditions.

In our office, for example, we assisted a client creating a forty-six (46) lot residential subdivision, which was required (under a local zoning bylaw open space provision) to permanently protect at least 50% of the site's upland area as open space. Our assistance during the permitting process ultimately resulted in the perpetual protection of thirty-three (33) acres of upland and seven (7) acres of wetlands as open space via a conservation restriction.

As defined by M.G.L. c. 184, § 31, a conservation restriction means

a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use, or to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas.

For those wishing to create a conservation restriction, they must submit an application to the Massachusetts Executive Secretary of Energy and Environmental Affairs (EEA) for approval (pursuant to M.G.L. c. 184, § 32). The application form itself (available online in Word format at the EEA's website) is eleven (11) pages, exclusive of requisite document attachments and the draft conservation restriction. The application form strongly encourages the use of the EEA's Model Conservation Restriction, which is also available (PDF format) on the EEA's website noted above. Once submitted, the application form will be reviewed for approval by counsel within the EEA's Division of Conservation Services (DCS).

Just a few things to consider when contemplating a conservation restriction:

  • Will the restriction exist in perpetuity (forever) or be limited in duration? (Note: The application form expressly states that it is not DCS policy to approve anything less than permanent restrictions, except in exceptional circumstances.)
  • If there is a mortgage on the property, a subordination will need to be obtained from and executed by the lender(s) and duly recorded.
  • A restriction may fit into other categories (agricultural preservation restriction, historical preservation restriction, and/or watershed preservation restriction) and thus notification about other joint holders (i.e. Massachusetts Historical Commission) and pending approvals is required.
  • All encumbrances and improvements on the property must be disclosed.
  • Geographic information, including topography, acreage and type of land (vegetated wetland, upland forest, etc.) must be described, as well as past and present use of the subject property and adjacent parcels.
  • Will public access be allowed (and if yes, any limitations must be explained)?
  • Copies of any applicable Orders of Condition, special permits, USDA soil data, court orders, settlement agreements, surveys, plot plans, and other similar documentation (set forth in a checklist within the application) must be submitted.
  • The local conservation commission must certify (via signatures) that the proposed restriction is in the public interest. If the conservation restriction will overlap more than one municipality, each of the relevant conservation commissions must provide their approval and certification.
  • The proposed conservation restriction must be approved by DCS, and prepared in a form that is ultimately suitable for recording in the appropriate Registry of Deeds.

In our experience, the process for obtaining an approved conservation restriction can be time and information intensive, but it is made all the more easier given the approachability of DCS's staff and their technical assistance.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: conservation easement, conservation restriction, environment, land use, landowner, special permit

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Prescriptive Easements On Appellate Review: The Importance of Subsidiary Findings at Trial

By Jeffrey Angley posted in Land Use on Sunday, February 24, 2013

On February 8, 2013, the Supreme Judicial Court another land use/real estate decision in White v. Hartigan, 464 Mass. 400 (2013), a case on direct appellate review from the Land Court. At issue in the case (a quiet title action) was whether the plaintiffs owned a fractional interest in a beach located on Martha's Vineyard, or, alternatively, whether they had acquired a prescriptive easement to use the beach and the land leading thereto.

Complicating facts include decades of shoreline erosion which ultimately submerged the portion of beach at issue (which had been created by an 1841 deed). Plaintiffs argued that the deeded rights were "a moveable beach parcel that shifts upland with the northerly migration of the beach." For those that like really old deeds, this case has those too.

The Land Court (Trombly, J.) granted summary judgment in favor of defendants that the plaintiffs did not hold record title to the beach, thereby rejecting their claim of movable interests. The SJC affirmed this portion of the lower court's judgment (and in its decision provides a concise overview of common law principles of littoral rights).

As for the plaintiffs' alternate prescriptive easement claim, which went to trial-a thirteen day trial!-the Land Court (Trombly, J.) decided that they had not met their burden of establishing a prescriptive easement. However, the SJC ruled that the Land Court's findings of fact were insufficient to permit appellate review and remanded the case for further proceedings.

First, the SJC laid out the standard: a lower court's

findings of fact [must] be of sufficient detail [citation omitted] and contain 'as many of the subsidiary facts as are necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue.'" [citation omitted].

In that vein, the SJC found that each of the three elements of prescriptive easements that the Land Court found to be unsupported by the facts-(1) open and notorious; (2) twenty-year period; and (3) adverse use-could not be analyzed on appellate review because there were no (or insufficient) subsidiary findings at the SJC's disposal, particularly given that the parties had pointed to considerable and contradictory evidence presented at trial that was not ultimately part of the findings of fact supporting the judge's ruling. As the SJC points out, "a bare conclusion without subsidiary findings does not allow for adequate appellate review." For this reason, the SJC remanded the case for further findings of fact.

Now, after more than eight years since the initial complaint was filed in late 2004, the parties are required to head back to the Land Court. What likely complicates matters more is the fact that the presiding Land Court judge at trial, The Honorable Charles W. Trombly, Jr., has since retired from the bench. It is unclear how the remand will play out with another judge. It is highly unlikely that another trial would take place, so it is likely that the new judge will instead proceed by making additional subsidiary findings based solely on the trial transcripts and admitted exhibits.

Could this have been prevented? In other words, was there a mechanism for ensuring a meaningful (and less time consuming) appellate review the first time through? Possibly, with a Mass. R. Civ. P. 52(b) post-judgment motion to amend the findings of fact. Whether such a motion would have been granted here is irrelevant at this stage, but this is the kind of procedural tool that counsel should be aware of in fact-intensive claims, such as prescriptive easement cases, that are likely to go on for appellate review. And perhaps, more to the point, in cases where the trial judge is scheduled to retire (final judgment issued a mere month before Judge Trombly retired).

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: SJC, appeals, easements, land court, land use, litigation, real estate

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M.P.M. Builders: A Useful Tool for Resolving Easement Disputes

By Jeffrey Angley posted in Land Use on Wednesday, February 20, 2013

Easements come up a lot in our practice at Phillips & Angley (for a recap of easement basics, see our April 19, 2012 post). When we receive a call involving an easement, the easement, or right of way, is typically the focus of the dispute, but sometimes an easement itself can be the vehicle for resolving the controversy, particularly in adverse possession cases. This post concerns a change in the law of easements, effected by the Supreme Judicial Court in 2004, which has created new flexibility for property owners in regulating rights of way and defending against easement claims over their properties.

In 2004 the Supreme Judicial Court handed down its decision in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004), in which the court (Cowin, J.) adopted § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which states as follows:

Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

By adopting this provision from the Restatement, the court abrogated the existing principle at common law that both the easement holder and the owner of the land had to agree to change the location of the right of way.

The Supreme Judicial Court made this change for several reasons. First, it "maximizes the over-all property utility by increasing the value of the servient estate [i.e., the property over which the right of way extends] without diminishing the value of the [easement]; minimizes the cost associated with an easement by reducing the risk that the easement will prevent future beneficial development of the servient estate; and encourage the use of easements." Second, it generally brings the relocation of easements into greater accord with this area of the law. The existing common law rule was an outlier in relation to other relevant principles of law, such as "the owner of real estate may make any and all beneficial uses of his property consistent with the easement." Thus, under the prior rules, there was the odd result that the owner of the property could make all changes to his property not inconsistent with the easement, except for moving its location. Third, it preserves the difference between an easement or use right over and full ownership of real estate, because "[a] rule that permits the easement holder to prevent any reasonable changes in the location of an easement would render an access easement virtually a possessory interest rather than what it is, merely a right of way."

The new right of a property owner to relocate an easement unilaterally, however, was not made absolute. Section 4.8(3) itself places many restrictions on that right: the property owner must bear the expense of the relocation, the relocation can only be made "to permit normal use or development" of the property, and any relocation is subject to the criteria found in subsections (a)-(c), intended to preserve the utility of the easement. In addition to these conditions, the Supreme Judicial Court also imposed the requirement that the property owner seek a decree from a court of competent jurisdiction before relocating the easement.

In the eight plus years since the Supreme Judicial Court decided M.P.M Builders, there have been a handful of decisions from the Appeals Court and the Land Court applying that holding and § 4.8 of the Restatement, fleshing out the contours of this change.

In Carlin v. Cohen, 73 Mass. App. Ct. 106 (2008), the Appeals Court held that building a significantly larger house is a "normal use or development" justifying a relocation under M.P.M., and that diminution in the value of the easement holder's property (not the right of way itself, but his property) is irrelevant under M.P.M. The Appeals Court has otherwise held that M.P.M. applies to prescriptive easements, see Trenz v. Town of Norwell, 68 Mass. App. Ct. 271, 280 (2007); and to implied easements by necessity. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 296 (2005). We have found these holdings particularly useful in our practice because they provide flexibility to property owners in defending claims for prescriptive or implied easements. Frequently, in the alternative from claiming that easements of these types do not exist over our clients' properties, we have been able to advocate for more palatable locations assuming their existence.

Of perhaps greatest significance in expanding the reach of M.P.M., Judge Sands of the Land Court has issued two decisions in which he has held that M.P.M. permits the property owner unilaterally to narrow or diminish the size of the easement area burdening her property. Hogan v. Gordon, 19 LCR 497, 502-503 (Oct. 7, 2011) (Misc. Case No. 376292) (Sands, J.) affm'd at 82 Mass. App. Ct. 1122 (2012) ("Although the Plaintiffs argue that narrowing the easement is not permissible, M.P.M. Builders clearly states that reasonable changes can be made to 'the location or dimensions of an easement") (emphasis in trial decision); Nora, LLC v. Gelch, 19 LCR 331, 335-336 (July 12, 2011) (Misc. Case No. 319094) (Sands, J.) (same). This advancement in the application of M.P.M. has huge practical potential, as frequently rights of way are never built out to the specifications of the underlying plans of record. This application of M.P.M. provides a potent alternative to various claims for extinguishment of portions of easement areas, by abandonment, adverse use or implied waiver, all of which can be quite difficult to prove at trial.

While the foregoing decisions have broadened the application of M.P.M., some cases have fleshed out the limitations of the rights conferred by that decision. In Strecker v. Tavares, 2010 WL 2306132, *3-4 (Mass. App. Ct.) (June 10, 2010), a panel of the Appeals Court in an unpublished decision held that "unclean hands" can bar an M.P.M. relocation claim, i.e., if the property owner gets the easement holder to change his position to his detriment based upon the present location of the easement, that property owner may be precluded from taking advantage of his rights under M.P.M. In Danforth Village, LLC v. CSE Framingham, LLC, 2011 WL 940502, *5-6 (Mass. Land Court) (March 14, 2011) affm'd at 81 Mass. App. Ct. 1129 (2012), the Land Court, Grossman, J., held that "nowhere, in allowing for judicially-sanctioned relocation of an easement did the Supreme Judicial Court purport to allow the servient estate, in effect, to extinguish an easement when a nearby public way will serve the same purpose as the deeded right of way. M.P.M. Builders simply does not allow a servient owner to unencumber his property in this fashion." In short, M.P.M. does not allow relocation of an easement to land of a stranger.

Two other decisions from the Land Court have underscored the fact that meeting the requirements of M.P.M. for an easement relocation does not speak to whether that relocation complies with local zoning. See Pasquine v. Newhall, 17 LCR 569 (Aug. 31, 2009) (Misc. Case No. 329770) (Trombly, J.) (upholding conditions placed on grant of special permit to relocate common driveway); Reynolds v. Baker, 2008 WL 5394919, *5 (Mass. Land Ct.) (Dec. 29, 2008 ) (Scheier, C.J.) (declining to consider M.P.M. claim before necessary zoning relief in place to move common driveway). In both of these cases provisions of the local zoning bylaws required special permit relief for the development of a common driveway. Thus, before initiating an relocation action under M.P.M. practitioners must consider the zoning implications of such a claim.

While it cannot always be successfully invoked, and many questions remain unanswered, such as how it works with multiple servient estates, the first eight years of M.P.M.'s application has demonstrated the unquestionable usefulness of the change in the law effected by that decision.

Written by Nicholas M. Shapiro, Esq., of Phillips & Angley on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: SJC, easements, land court, land use, litigation, right of way

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Forensics at the Land Court

By Jeffrey Angley posted in Real Estate Law on Monday, February 11, 2013

When most people think about the kinds of cases that are litigated at the Land Court, forensic analysis of evidence is not likely at the forefront of their minds. Most people likely think that those kinds of juicy cases are reserved for criminal trials in Superior Court.

But, from time to time, the Land Court hears real estate cases requiring forensic expert testimony. For anyone interested in real estate law, these kinds of cases can make for some interesting reading, like the very recent case of Allen v. Allen, 2013 WL 139318, 10 MISC 420492GHP (Mass. Land Ct. Jan. 10, 2013). In the Allen case, the opposing parties were brother and sister with competing claims of ownership to their deceased parents' home.* The sister's complaint had two counts: fraud and conversion. The basis of the sister's claims was an alleged forgery of a deed that purportedly conveyed the property (during the mother's life) from mother to mother and son as joint tenants.

Perhaps it goes without saying that the alleged forged deed was procured by the brother before his mother died, and that it conflicted with a later deed that supports the sister's claims. In any event, the purportedly forged deed had both the mother's signature and a notary public's signature (but more on this later).

Factually, the case is worth the read in its own right if only for the sibling drama and conflicting testimony. But what is even more intriguing is the level of detail involved in the handwriting analysis of the allegedly forged deed.

Just look at some of the Court's (Piper, J.) highly scrutinized findings of fact related to the forensic analysis of the signature on the deed in question:

32.The Q1 [signature in question] signature was naturally prepared, that is, it was executed by hand. There are several indications in the Q1 that it was created quickly, as one would expect with a signature, and was not a labored drawing, or a tracing. Variations in pen pressure also support this conclusion.

33. The Q1 was created with a ballpoint pen. Several so-called "goop marks" created when a build up of ink and paper fibers from a ball point pen are deposited on the page-are present in the Q1. Several of the known signatures also contain goop marks in the same general area as the Q1, another indication of genuineness.

...

35. To begin, there are many similarities between the Q1 and known examples of Ethel Allen's signature. The 't,' 'h,' and 'e' in the word Ethel are very consistent with known signatures. Aspects of the capital 'M' in the Q1 are consistent with the known samples: the arches of the 'M' are pointed and form a 'V in the middle, and the 'V does not descend to the baseline, features which are consistent with known signatures. The final 'l-e-n' in the word Allen is highly consistent with the known examples. The relative height of the two 'l's in Allen in the Q1, the first being shorter than the second, is found in almost all of the known examples analyzed.

36. The initial capital 'E' in "Ethel" in the Q1 at first appears totally wrong. Instead of a tall epsilon shape, it more resembles the numeral 6. Totally missing is the middle loop, which is present on virtually all of the known samples. The initial capital 'E' is so different, in fact, that one might wonder how a forger could possibly be satisfied with it. Without more, this would appear to be a significant difference; however, there is one known sample with a very similar capital 'E' and that is K1-17.

After a few more similar findings of fact, the Court ultimately finds that the mother's signature on the deed in question is not a forgery.

But not so fast. The brother ultimately still does not prevail in the case.

The reason is a cautionary one for counsel (perhaps especially those that are also notaries public): there was enough evidence in the case to indicate that although the mother actually signed the deed, she did not do so in the physical presence of the notary public who notarized it. In fact, the facts (as found by the Court) showed that she was not anywhere near the attorney-notary public's office the day she executed the deed, and that his acknowledgment/notary was added at some point thereafter (assumedly at the brother's request). Thus, "[s]he did not indicate to the notary that the execution was her free act and deed, at any time after she executed it. She did not sign in his presence, and did not acknowledge the Deed later." To that end, the Court found that the deed did not provide constructive notice, even though it had been recorded a few weeks after it was executed:

The deed, not in fact having been acknowledged in any fashion, was not 'entitled to record,' and so imparted no constructive notice to the Trustees. To hold otherwise would reward a grantee, paying nominal consideration, who puts on record a deed purportedly acknowledged, but which in truth was not.

Perhaps the ultimate lesson here is that it is never a good idea to notarize deeds-even those purportedly signed freely-after the fact, much less outside the presence of the grantors. Aside from the duties and obligations imparted to notaries public on how and when they can notarize documents, Allen reminds us that bad habits and any presumptive inability to "get caught" may ultimately void the underlying transaction, including to the detriment of one's own client.

* Because the parties agreed to sell the property after the start of litigation but prior to trial, the relief being sought ultimately turned on who was entitled to the proceeds being held in escrow.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: acknowledgment, deed, evidence, forensic, forgery, notary, real estate law

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A CASE TO WATCH: City of Arlington, TX v. FCC

By Jeffrey Angley posted in Zoning on Thursday, January 31, 2013

An interesting case is on appeal before the U.S. Supreme Court: City of Arlington, Texas v. FCC, 668 F.3d 229 (5th Cir. 2012).* Oral arguments were held at SCOTUS on January 16.

The case involves administrative agency authority, jurisdictional deference and the application of the doctrine previously set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 83 (1984), all interestingly enough within the context of siting wireless telecommunications towers pursuant to the Telecommunications Act of 1996 and the (in)actions of local zoning boards.

Two great links summarizing the case (including embedded links to the oral arguments and transcripts from the January 16 SCOTUS hearing) can be found at:

Stay tuned as we await the Supreme Court's decision.

* Consolidated with another case, Cable, Telecommunications, and Technology Committee v. FCC.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: Supreme Court, Telecommunications Act, administrative law, jurisdiction, zoning

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INDEMNIFICATION PROVISIONS IN RIGHT OF WAY AGREEMENTS

By Jeffrey Angley on Tuesday, January 22, 2013

Easement agreements are used to address a wide array of issues and interests of landowners including resolving property disputes, clarifying property rights between neighbors or granting new rights of access. Common to all however, is the fact that one person's land will be used by another party or person or sometimes many parties and persons. Right of way agreements that allow others to pass and repass over the land of another often raise questions about the liability of the landowner for loss or injury occurring to the easement holder or third parties who might use the easement-whether with permission or without. What then are the essential duties involved in this relationship and what can be done to mitigate exposure to landowners? As we will see, the relationship between the landowner (the owner of the servient estate) and the easement holder (the owner of the dominant estate) and various third parties is governed by competing legal propositions.

Commonly, the duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement. See Shapiro v. Burton, 23 Mass. App. Ct. 327 (1987), citing New York Cent. R.R. v. Ayer, 242 Mass. 69, 75 (1922). As a consequence, the landowner does not have a duty to repair or maintain the easement area. But what if the owner of the servient estate chooses for his own purposes to modify the easement in some way, such as resurfacing or changing the grade? In that instance, the owner of the servient estate must, as to new and different constructions, himself maintain the way so as to be equally safe and suitable for passage as was the way when originally created. See New York Cent. R.R. v. Ayer, 242 Mass. at 75. Thus in the absence of a fixed obligation to repair or maintain as fixed by an express easement, the law implies the obligations and duties as between the easement holder and the land owner.

But what of the duty owed to third parties who find their way to a road or passageway? What duties are owed to such persons by the land owner for defects in the way or injuries incurred in the use of the way? As a general proposition, all landowners in the Commonwealth owe a duty of reasonable care (negligence standard) for the safety of all lawful entrants upon their property as well as certain foreseeable child trespassers and trespassers who are known to be in a position of peril. See Schofield v. Merrill, 386 Mass. 244, 245-46 (1988). The rule is different for an adult trespasser, who as an entrant without consent or invitation, is entitled to no greater duty of care than that the landowner refrain from wilful and reckless disregard for the entrant's safety. Id. This duty of reasonable care then seems to conflict with the obligation of the easement holder to maintain and repair the right of way.

In the absence of an express easement that provides for the allocation of responsibility for such third persons, parties will have to rely on finding which party, landowner or easement holder, is responsible for maintenance and repair and use that duty to set the obligation toward third persons. Yet in drafting express easements, the parties often seek to allocate the risks and responsibilities to third parties through insurance and indemnification provisions. Thus easement holders are often required to provide a minimum level of general liability insurance coverage and name the landowner as an additional insured. As additional protection for landowner, the easement holder is often required to indemnify and hold the landowner harmless from liability associated with the use of the easement.

Recently, we have been involved in a number of easement negotiations that have highlighted the varying levels of protection afforded by indemnification agreements and the efforts by each party to allocate risk. Most indemnification agreements start with similar language. The easement holder is required to

indemnify and hold harmless [Landowner] from and against all claims, demands, suits, costs, expenses, liabilities, fines, penalties, losses, damages and injury to person, property or otherwise, including, without limitation, direct, indirect and consequential damages, court costs and reasonable attorney's fees, arising from or in any respect related to any exercise of or use of the Easement by the [Easment Holder], and their guests and invitees [and others depending on the circumstances] except . . . .

Typically however, an easement holder will seek to limit the extent of their exposure by excepting from the indemnity provision the conduct or acts by the landowner. Two exceptions are frequently offered up, one which excepts both negligent and willful and intentional acts of the landowner and the other that excepts only willful and intentional acts. The typical provisions are as follows:

Excepting Negligent and Intentional Acts: except such injury, loss or damage as shall have been caused by the negligence or willful act of the indemnified party, its agents, guests, invitees, family members or employees.

Excepting Intentional Acts: except such injury, loss or damage as shall have been caused by the willful or intentional act of the indemnified party, its agents, guests, invitees, family members or employees.

Careful thought must be given to these two alternative exceptions and how they relate to the expected use of the property and, more importantly, what level of protection is truly afforded. When an easement holder offers up an indemnity provision but demands that the negligent and willful acts of the landowner be excepted, what real protection is provided? Since the landowner owed a duty of care to all lawful entrants to his property, the exception of negligence from an indemnity clause means that the easement holder is providing highly limited protection to the landowner, akin to indemnity for strict liability. Strict liability without regard to negligence or fault exists in this Commonwealth where unusual and extraordinary uses of land which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use. See Clark-Aiken Co. v. Cromwell-Wright Co., Inc., 367 Mass. 70, 83-85 (1975).

On the other hand, when the easement holder provides indemnification for the negligent acts of the landowner, it usually reflects the fact that the easement holder and not the landowner will be responsible for maintenance and repair and so helps insulate the landowner from the claims of third parties who seek to rely on doctrines of premises liability in the usual shot gun approach to liability. Of course the interplay between indemnity and insurance coverage can be complex and landowners and easement holders alike should seek out competent and experienced legal counsel to help draft express easements. After all, such agreements usually involve appurtenant rights that run with the land in perpetuity and so demand rigorous planning and forethought.

Written by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

Tags: agreements, easements, indemnity, liability, real estate law

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