Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Further Foreclosure Fallout

Posted in Foreclosure, Title

In its decision earlier this year in U.S. Bank Natl. Assn. v. Schumacher (pdf), the Supreme Judicial Court addressed the impact of a failure to comply with requirements for providing notice of the mortgagor’s right to cure a default pursuant to M.G.L. c.  244, § 35A (our post on Schumacher is here).  The recent Appeals Court case of Haskins v. Deutsche Bank National Trust Co. (pdf) provides additional guidance with respect to Section 35A notices.

Haskins granted a residential mortgage to the entity known commonly as “MERS.”  Although MERS was the legal mortgage holder, the loan was beneficially held by Deutsche Bank as Trustee of a mortgage securitization trust.

Neither MERS nor Deutsche Bank serviced the loan.  Rather, IndyMac Mortgage Services was responsible for the billing and accounting, and it also apparently was responsible for foreclosure decisions.

Section 35A requires the notice to inform the mortgagor of “the name and address of the mortgagee, or anyone holding thereunder.”  Haskins defaulted and IndyMac sent him two notices of default and of his right to cure, pursuant to Section 35A.  However, the notices identified IndyMac as the mortgage holder. 

Haskins never cured his default, but instead sought to prevent the foreclosure, claiming the Section 35A notice was ineffective because IndyMac was not the mortgage holder. 

The Appeals Court rejected both the borrower’s call for strict compliance with Section 35A and also the Bank’s suggestion that the proper standard for reviewing a Section 35A letter is whether it was fundamentally unfair.  Instead, the court looked to the realities of the business world and the intent of Section 35A.  Schumacher had recognized that the purpose of the notice requirement is to give the mortgagor a fair opportunity to cure a default before the loan is accelerated and the foreclosure process begins.   In order to accomplish that purpose, “the statutory notice is designed to provide the mortgagor with the information necessary to contact the party who holds all relevant information about the loan . . . and who holds authority to . . . allow the mortgagor to cure any default” or to discuss modifying the loan.

The Appeals Court then observed that neither MERS nor the Bank had responsibility for modifying the loan or making foreclosure decisions.  Those responsibilities rested with the servicer, IndyMac.  Therefore, considering the statutory objective, the court concluded that the term “mortgagee” in Section 35A includes the servicer.

Although he did not dispute that he had received the notices, Haskins also argued that Section 35A requires that they be sent by certified mail.  The Appeals Court shot down this claim. 

Haskins and Schumacher make clear that the courts are not granting borrowers who have defaulted on their mortgage loans an easy out based on claims of technical noncompliance with the requirements of Section 35A.

No Deference for Unreasonable Interpretation of Zoning Bylaw

Posted in Zoning

In its recent rescript opinion in Pelullo v. Croft, the Appeals Court affirmed a Land Court decision that overturned a building inspector’s interpretation of an undefined term in the Natick Zoning Bylaw.  The Appeals Court found that the building inspector’s interpretation was unreasonable and therefore not entitled to deference.

At issue was the meaning of the undefined term “lot depth.”  The Natick Bylaw provides that undefined terms “shall have their ordinarily accepted meanings or such as the context may imply.”  Based on that language, the building inspector issued a building permit for construction of a single-family residence, deciding that, for lots that he considered ”oddly-shaped,” lot depth should be calculated based on a diagonal line.  Neither the building inspector nor the Board of Appeals (which upheld the building inspector’s decision) offered any reasoned basis for this approach.

In affirming the Land Court’s decision, the Appeals Court noted that the Bylaw provision on undefined terms is not a license to give such terms a meaning that suits the personal views of those charged with enforcement of the Bylaw.  While acknowledging the deference usually given to a zoning board’s interpretation of a local bylaw, the court emphasized that unreasonable interpretations are not entitled to such deference.

Landowner Near Gillette Stadium Gets New Set Of Downs In Eminent Domain Case

Posted in Eminent Domain

In its recent decision in Rodman v. Commonwealth (pdf), the Massachusetts Appeals Court reversed a Superior Court judgment entered after a jury trial almost 10 years ago.  That judgment had required the plaintiffs, who sought damages for an eminent domain taking of their land in Foxboro, to repay the Commonwealth about $165,000 – the amount by which the pro tanto award the plaintiffs received exceeded the damages the jury found were caused by the taking.  [Disclosure:  I was the Assistant Attorney General who represented the Commonwealth at trial.]    

The case involved a taking of about 10% of the plaintiffs’ 57.7-acre parcel of land across from Gillette Stadium.  Most of the land had never been developed, and most of the taking was from that undeveloped area.  A small part of the taking was from a gravel parking lot at one end of the property.

At trial, the parties disputed the admissibility of engineering testimony and development plans offered by the plaintiffs.  The plaintiffs claimed that their undeveloped land could have been developed (before the taking) for high-end commercial uses such as a hotel, manufacturing, or a warehouse – all of which would have required a special permit.  The plaintiffs acknowledged that they had never taken any steps to get a special permit, and did not know of any instances where special permits had been granted in similar circumstances.  The plaintiffs’ expert nevertheless sought to testify that special permits would have been issued because special permits are “generally granted where no waivers, or other zoning relief, are required.”  The Commonwealth argued that this evidence should have been excluded because special permits were not legally available in the special zoning overlay district at issue, and because there was no evidence that such permits would have been granted.

The trial judge agreed with the Commonwealth’s position and excluded the plaintiffs’ evidence.  As a result, the plaintiffs’ appraiser lowered his estimate of the pre-taking value of the property by almost $500,000, which reduced the plaintiffs’ claimed damages by a corresponding amount, to about $1.6 million.  The Commonwealth’s appraiser testified that the plaintiffs’ damages were $600,800, a figure based largely on the taking of part of the gravel parking lot. 

At the conclusion of the trial, the jury returned a verdict in the amount of $600,800 – the exact amount to which the Commonwealth’s appraiser testified.  Because that amount was below the pro tanto award that the Commonwealth had made to the plaintiffs prior to trial, the court’s judgment required the plaintiffs to repay the difference – about $165,000 – to the Commonwealth.

On appeal, the main issue was how to value land subject to an eminent domain taking where the valuation testimony is based on a theoretical use of the property that differs – sometimes, as here, substantially – from its existing use.  The Appeals Court ruled that the trial judge committed reversible error by excluding the plaintiffs’ evidence of the particular uses to which the land could have been put.  The court noted, “[i]t is true that with the testimony of its own experts and in cross-examination of the plaintiffs’ experts, the Commonwealth presented evidence that the [undeveloped] property still had the same amount of frontage and could be developed in the same ways before and after the taking.”  The court nevertheless opined (without citing any record support) that, “[w]ithout question, the excluded testimony impacted the credibility of the plaintiffs’ engineering and appraisal experts’ testimony.” The court concluded that “[t]he ultimate determination of value was a question of fact for the jury who were entitled to hear all relevant testimony as to how the property could be developed before making that determination.” Continue Reading

Breaking: SJC Rules That Candidate Can’t Be Barred From Soliciting Signatures At Private, Stand-Alone Supermarket

Posted in Landlord-Tenant, Miscellaneous, Policy

In a closely-watched case affecting hundreds of stores and other commercial establishments across Massachusetts, the Supreme Judicial Court (SJC) today ruled that Article 9 of the Massachusetts Declaration of Rights - which protects the right of equal access to ballots – trumps the right of private property owners to bar individuals from soliciting signatures in support of a candidate’s nomination to public office.  Here is a full copy of the court’s decision in Glovsky v. Roche Bros. Supermarkets, Inc.  In its 1983 decision in  Batchelder v. Allied Stores Int’l, Inc., the SJC reached a similar conclusion with regard to a large, enclosed shopping mall, reasoning that malls had become the functional equivalent of municipal “downtowns.”  Glovsky extends this principle to a single, stand-alone supermarket, though the court’s reasoning seems equally applicable to other commercial establishments that offer “assorted products” and “draw large numbers of people on a daily basis.”  While ruling in the plaintiff’s favor on the access issue, the court rejected his claim that the store manager’s statement that the store “had adopted a policy against signature solicitation” constituted ”threats, intimidation or coercion” within the meaning of the Massachusetts Civil Rights Act. 

In a strongly-worded dissent, Justice Robert Cordy asserts that the majority “significantly expands the scope of the right [under Article 9] at the expense of the rights of countless commercial property owners across the Commonwealth.”  He notes that this outcome departs from “the overwhelming national consensus” in similar cases, ”completely undoes the intended balance between the rights of property owners and the rights of those whom they invite to use their property,” and “creates serious consequences for property owners who miscalculate their obligations despite their best intentions.”  

Particularly in this election season, owners of Massachusetts retail establishments of all kinds would be wise to study Glovsky, consult with their real estate counsel, and re-evaluate their policies on signature collection.

Fully Conforming Structure Not Tainted By Nonconforming Use

Posted in Nonconforming Use, Zoning

In a case of first impression, the Appeals Court recently ruled that a dimensionally conforming structure used for a nonconforming use can’t be considered a nonconforming structure under M.G. L. c. 40A, § 6 (Section 6), first paragraph.  The case is Welch-Philippino v. Zoning Board of Appeals of Newburyport (pdf).

Under Section 6, the alteration or extension of a pre-existing nonconforming commercial structure triggers the need for a so-called Section 6 finding, which is a finding that the proposed structural changes will not be substantially more detrimental to the neighborhood than the existing structure.

Welch-Philippino involved the proposed renovation and modernization of a nursing home in Newburyport.  As with the existing nursing home structure, the new structure would comply with all dimensional requirements of the Newburyport zoning bylaw.  The nursing home use pre-dates zoning and is lawfully nonconforming.

An abutter appealed a special permit authorizing the project to proceed.  The abutter argued that aAre you kidding me? fully conforming structure used for a nonconforming use should be treated as a nonconforming structure under Section 6, and therefore require a Section 6 finding.  The Land Court rejected that argument, finding no support for it in the statute.  Instead, the court ruled that the proposed new structure is – and thus should be treated as – a fully conforming structure.  According to the Land Court, where a change or extension of a nonconforming use is proposed, the proper procedure is to apply the so-called Powers test, derived from the 1973 case Powers v. Building Inspector of Barnstable (pdf).  Applying that test, the Land Court found that the project is allowed as of right because it does not amount to a change or substantial extension of the lawfully nonconforming commercial use.  The Appeals Court agreed.

Welch-Philippino adds another smidgen of clarity to the law of nonconforming structures and uses in Massachusetts.  However, this body of law will continue to be a source of confusion for landowners and abutters – and a source of fees for land use litigators – until the Legislature amends the “difficult and infelicitous” language of Section 6.  For more on Section 6, see our prior posts here and here.

Recorded Deed With Phony Acknowledgement Is Ineffective

Posted in Miscellaneous, Title

In a case of first impression, the Appeals Court ruled last week in Allen v. Allen that a recorded deed with an acknowledgement falsely stating that the grantor had personally appeared before the notary public was unenforceable against a family member with a competing, subsequently recorded deed. 

Allen pitted the plaintiff sister, Deborah, against her defendant brother, Harold Jr.  In July, 2001, the siblings’ mother, Ethel, signed a deed conveying her Lexington home to Harold Jr.  That deed was recorded in August, 2001 with a facially valid acknowledgement.  In November, 2001, Ethel created a realty trust and conveyed the same property to herself and Deborah as trustees, reserving a life estate for herself and providing that, upon her death, the property would be sold and the proceeds divided among several of her descendants, including Deborah but – wait for it – excluding Harold Jr.  Fast forward to 2009:  Ethel dies, Harold Jr. whips out his 2001 deed, and Deborah marches into Land Court.

The case went to trial on several issues.  Regarding Harold Jr.’s deed, the Land Court found that, while Ethel’s signature on the deed was genuine, she did not – contrary to the acknowledgement – personally appear before the notary (an attorney who was friendly with Harold Jr.).  Rather, the court found, Ethel signed the deed in front of Harold Jr., who then brought it to the notary to get his signature on the acknowledgment.  Under M.G.L. c. 183, § 29, a deed may not be recorded without a proper acknowledgement.  Because the one on Harold Jr.’s deed – though facially valid – was defective, the deed was not entitled to be recorded; therefore, the court reasoned, the deed did not provide constructive notice to third parties, including, in this case, Deborah.

The Appeals Court affirmed the Land Court’s decision in all respects, agreeing that “the latent defect in the certificate of acknowledgement of the July [2001] deed prevented it from giving constructive notice to Deborah of the prior conveyance.”  Because Deborah had no actual notice of that conveyance, Ethel’s November 2001 deed to herself and Deborah as trustees ostensibly passed good title to the Lexington property. 

Deborah may have won this battle, but the war apparently isn’t over.  In a footnote, the Appeals Court mentions that Harold Jr. has filed a separate Land Court case alleging that Ethel’s November 2001 deed was the product of undue influence.  Stay tuned.  

Appeals Court Fixes One Anomaly In The Tricky Law Of Nonconforming Structures

Posted in Nonconforming Use, Variances, Zoning

In a previous post we discussed Gale v. Zoning Board of Appeals of Gloucester (pdf) and the “difficult and infelicitous” language of the first two sentences of M.G.L. c. 40A, § 6 governing nonconforming uses and structures.  In Gale, the Appeals Court upheld the grant of a special permit authorizing the reconstruction of a single-family house that increased existing setback nonconformities.  The court ruledhouse plans.jpg that in such circumstances, the special permit must include a so-called Section 6 finding, i.e., a finding that the project will not be substantially more detrimental to the neighborhood than the existing nonconformity.  The Gale court made no distinction between a reconstruction that increases existing nonconformities and one that creates new nonconformities.  Under Gale, then, the owner of a nonconforming single- or two-family house arguably could undertake a reconstruction that created new nonconformities upon the issuance of a special permit – no variance would be required.

In its recent decision in Deadrick v. Zoning Board of Appeals of Chatham (pdf), the Appeals Court reconsidered this aspect of Gale.  In Deadrick, the court found that, under M.G.L. c. 40A, § 6, there’s a difference between a reconstruction that increases existing nonconformities and one that creates new nonconformities.  The former may be authorized by a special permit and Section 6 finding; the latter requires a variance.

The Appeals Court based its decision in Deadrick largely on what it perceived to be an illogical result if new nonconformities could be approved by special permit.  The court noted that, until now, it appeared (based on the language of Gale) that the owner of a fully conforming house who wished to build an addition that violated setback requirements would need a variance, while the owner of a nonconforming house who wished to build an addition that similarly violated setback requirements could do so with an easier-to-obtain special permit and Section 6 finding.

After Deadrick, it’s clear that the owner of a nonconforming single- or two-family house needs a variance for any reconstruction that creates new nonconformities.  However, that owner can still expand existing nonconformities with just a special permit and Section 6 finding.

Some Old Land Use Restrictions Don’t Die, Or Even Fade Away

Posted in Restrictive Covenants, Subdivision Control, Title

In its recent decision in Samuelson v. Planning Bd. of Orleans, the Appeals Court affirmed and expanded on its 2011 decision in Killorin v. Zoning Bd. of Appeals of Andover, which confined the reach of M.G.L. c. 184, § 23. That statute generally limits conditions or restrictions on the use of land to a term of 30 years. Thus, where the statute applies, the condition or restriction automatically expires – or “sunsets” – after 30 years, whether that limit appears in the document or not.

In Killorin, the Appeals Court held that this statutory sunset provision did not apply to a condition imposed by a zoning board of appeals in a special permit issued pursuant to M.G.L. c. 40A, § 9.  And now, in Samuelson, the court has extended Killorin to similarly preserve conditions that were imposed by a planning board in approving a subdivision plan.

Samuelson involved an application for subdivision approval by the owners of a lot that was itself created by a 1975 subdivision of a large oceanfront parcel into six lots.  The Town of Orleans planning board approved the 1975 subdivision subject to various express conditions, including a condition that any further subdivision would require upgrading a private access road and installing municipal water.  More than 30 years later, the owners of one of the six original lots applied to the planning board for approval to divide their lot in two. The planning board approved the application without requiring the owners to meet the 1975 conditions, agreeing with their argument that those conditions had expired in 2005, “by operation of G.L. c. 184, § 23 . . . .”

An abutter appealed to the Land Court, which reversed the planning board’s approval.  On the owners’ further appeal, the Appeals Court affirmed the Land Court’s ruling and expressly extended Killorin to conditions imposed by a planning board in the context of a subdivision approval.  It is now clear that such conditions are not subject to the 30-year limit contained in M.G.L. c. 184, § 23.

The Appeals Court, in interpreting the statute, has sharpened an important distinction:  land use restrictions that are “created by deed, other instrument, or a will” are subject to the statute and expire after 30 years, while “land use restrictions imposed as a condition to the discretionary grant of regulatory approval under the police power” are not subject to the statute and can remain in force indefinitely.  While the court sought to limit its holding to the facts of the case – i.e., to conditions imposed in a subdivision approval – the fundamental difference between, on the one hand, restrictions created by private parties in deeds, wills and other instruments, and, on the other hand, restrictions imposed by regulatory authorities in land use approvals, strongly suggests that the 30-year sunset provision in M.G.L. c. 184, § 23 is unlikely to apply to any type of land use condition or restriction imposed by a government body acting pursuant to its police powers.

Known Monuments Decide Boundary Dispute

Posted in Miscellaneous, Title

In its recent decision in Bernier v. Fredette, the Appeals Court affirmed a Land Court ruling concerning the importance of monuments in deed descriptions.  In real estate parlance, a monument is a fixed object used by surveyors to establish land boundaries.  While it doesn’t break new ground, this decision provides a good illustration of the legal principles governing the interpretation of old deeds and titles. 

some known monumentsIn Bernier, a triangular piece of land along a common boundary triggered a dispute between the adjoining property owners. The two properties, located in Acushnet, date back to the 1870s.  Lot 13 is owned by the plaintiff, Bernier, and Lot 16 is owned by the defendant, Fredette.  To prove his case, Bernier began by placing Lot 16 on the ground according to the deed description and the location of four out of the five monuments described.  By examining abutter deeds, Bernier was able to determine the distance and direction of the northern, southern and eastern boundary lines of his own lot. Bernier then used the directional and distance calls in the deed to locate the western boundary.  The Land Court concluded that Bernier’s approach to locating the boundary on the ground was reasonable, and therefore the disputed area was part of Bernier’s lot. 

It is well-established that a deed description is the best barometer of the grantor’s intent.  Here, the Land Court held that the original grantor intended for the referenced monuments to provide the bounds of the property.  Further, when monuments are referred to in a deed, they have priority over directional calls and courses.  Due to a scrivener’s error in one directional call, the monuments at issue did not establish the boundary perfectly.  However, the Land Court ruled that the original grantor’s intent was for the monuments to delineate the lot.  Even though Bernier could not locate the fifth monument due to the creation of a cranberry bog, the court held that Bernier’s approach of revising the erroneous directional call to connect the monument boundaries of the lot was proper.  In the words of the Land Court, to conclude otherwise would leave “a gore of unconveyed land between Lot 16 and its eastern abutters.”

The Appeals Court observed that a trial judge has significant discretion in deciding issues of fact, assigning weight to testimony, and assessing the credibility of witnesses.  The Land Court judge made a determination that Bernier’s approach to locating the lot with four of the five monuments was more reasonable than Fredette’s approach.  Fredette located the property using another deed that referenced the fifth monument, even though 4,000 feet of the land was not surveyed.  The Appeals Court ultimately concluded that “where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

The takeaway:  Known monuments are afforded great deference in construing lot boundaries, and a trial court’s decision will not be overturned on appeal if it rests on the trial judge’s findings of fact.

Sam DeLuca is a 2014 graduate of Suffolk University Law School and will be admitted to the Massachusetts Bar in June, 2014. He is currently serving as an intern at the Massachusetts Land Court.

SJC Reverses Eminent Domain Judgment For Impacts From Sagamore Bridge “Flyover”

Posted in Eminent Domain, Miscellaneous

In its decision issued last week in Sorenti Bros., Inc. v. Commonwealth, the Supreme Judicial Court (SJC) ruled that a gas station owner is not entitled to eminent domain damages due to the elimination of the rotary at the foot of the Sagamore Bridge in Bourne.  The owner claimed that the so-called “flyover” project impaired its access to the road system and thereby lowered the value of its property.  The Superior Court allowed the owner to introduce evidence of damages due to impairment of access based on two statutes:  M.G.L. c. 81, §7C, the limited access highway statute; and M.G.L. c. 79, § 12, the eminent domain statute governing damages when only part of a property is taken.  The jury returned a verdict for $4.15 million.  After deducting the $1.7 million “pro tanto” amount previously awarded to the owner, and adding interest and costs, the final judgment was about $3 million.  The Commonwealth appealed and the Appeals Court, in an unpublished decision, affirmed the judgment.  The SJC granted the Commonwealth’s application for further appellate review on the issue of impairment of access damages, reversed the judgment, and remanded the case to the Superior Court for a new trial.  [Editor’s note:  the author of this post was trial and appellate counsel for the Commonwealth in Sorenti].

Before the flyover project, the owner’s gas station abutted a state road called Canal Street, and a town road called Meetinghouse Lane, both of which fed directly into the nearby Sagamore rotary.  As part of the project, the Commonwealth extended Routes 3 and 6 over the Sagamore Bridge by constructing a new limited access highway over the former rotary.  The Commonwealth also eliminated the portion of Canal Street abutting the gas station to the west, and relocated Canal Street to pass along the southern boundary of the gas station parcel.  The part of Canal Street that was eliminated then became part of a new commuter parking lot.  Below is a “before and after” plan showing the former rotary and the new traffic pattern.before and after taking

As a result of these changes, the gas station had the same number of access points to public streets as before the project, but with the elimination of the rotary and part of Canal Street, the station’s access to Routes 3 and 6 became longer and somewhat more circuitous.  The owner claimed it was entitled to compensation under two different statutes for the loss in value to its property. 

First, the owner claimed it was entitled to damages under Chapter 81, § 7C, because the flyover project eliminated the part of Canal Street that the gas station previously abutted.  The owner claimed it was entitled to compensation under this statute even though the limited access highway was built over the former rotary and not on any part of Canal Street.  The SJC rejected this claim, ruling that, given the wording of the statute, for a property owner to recover damages due to the construction of a limited access highway, the highway must be built in whole or in part over the same public way on which the owner’s property fronts or abuts.  Because the new highway was not laid out within Canal Street or the other abutting public way, the owner has no claim under Chapter 81, § 7C.

Second, the owner claimed it was entitled to damages under Chapter 79, § 12 because, as provided by that statute, an owner is entitled to “all injury to the part [of the owner’s property] not taken caused by the taking or by the public improvement for which the taking is made . . . .”  The SJC rejected this claim too, ruling that the owner was not entitled to damages because the owner still had “reasonable access” from both abutting public ways.  The SJC observed that “not every detrimental effect of a public improvement project qualifies as a compensable injury,” and that “a landowner is not entitled to compensation merely because his access to the public highway system is rendered less convenient.”   The court noted that the owner in essence was seeking damages because “the public roads are not configured in the same manner as they were before the flyover project.”  The SJC concluded that, as a matter of law, the more circuitous route to and from the new highway does not rise “to the level of a substantial impairment that could be found to entitle” the owner to damages under Chapter 79, Section 12.  In so ruling, the court affirmed an 1892 opinion written by Justice Oliver Wendell Holmes, in which the court stated: “‘the advantage which the landowner had [of having] the luck to enjoy . . . being where the crowd was’ is not compensable injury.”

We will follow this case on remand and report on the outcome in a future post.