Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

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

Two Cheers For Nude Dancing

Posted in Police Power, Zoning

In its decision last week in Showtime Entertainment, LLC v. Town of Mendon, the Supreme Judicial Court (SJC) struck down a Town of Mendon bylaw banning alcohol at “adult entertainment businesses.”  This is the latest case to grapple with the tension that often arises between a municipality’s exercise of its police powers and citizens’ exercise of their First Amendment rights.  While the result of the decision is to invalidate the offending bylaw, the court offers suggestions for how the town can revise its bylaw to pass constitutional muster.

In 2008, Mendon created an adult entertainment overlay zoning district.  In short order the plaintiff, Showtime, applied for a license to operate a strip club in the new district.  While that application was pending, a citizen group calling itself “Speak Out Mendon” petitioned the board of selectmen to enact bylaws strictly regulating adult businesses, including by forbidding the sale of alcohol at such business.  The group cited two studies suggesting that the presence of alcohol near “sex-oriented businesses” causes an increase in crime.  Showtime’s application was denied and, days later at a special town meeting, Mendon adopted the proposed new bylaws.  Showtime applied for a license under the new regime, and this time its application was granted.  License in hand, Showtime promptly filed suit in federal court challenging the new bylaws − particularly the alcohol ban − as unlawful restrictions on the constitutionally protected “expressive activity” of nude dancing.

The U.S. District Court ruled in Mendon’s favor and Showtime appealed.  The First Circuit then certified two questions to the SJC:  (1) do the pre-enactment studies considered by the town establish a “countervailing state interest” justifying the alcohol ban; and (2) if the ban is so justified, is it adequately tailored to minimize any infringement on First Amendment rights?

On the first question the SJC sided with the town, ruling that the studies cited by Speak Out Mendon were sufficient to establish the town’s “countervailing interest” in controlling the “explosive combination” of nude dancing and alcohol.  The court acknowledged that regulating such activity is “inevitably intertwined with the right of free speech,” and trotted out this nifty quote from one of its prior decisions:

the artistic preferences and prurient interests of the vulgar are entitled to no less protection than those of the exquisite and sensitive esthete.

Nonetheless, the SJC rejected Showtime’s challenge to the studies on which the town relied.  The court held that the town’s countervailing interest “need not be perfectly demonstrated.”  Rather, “the evidence before the municipality must lead to the reasonable conclusion that a countervailing State interest exists in fact.”  Though both studies concerned cities in California (one being Los Angeles), and only one study considered the role of alcohol in exacerbating the negative effects of sex-oriented business, the SJC found the studies sufficient (if barely so) to establish the town’s interest, and faulted Showtime for failing to present affirmative evidence to rebut them.

It was the First Circuit’s second question that scuttled Mendon’s bylaw.  The SJC ruled that the bylaw is not sufficiently tailored, and therefore impermissibly infringes on Showtime’s First Amendment rights.  The applicable standard requires that the challenged regulation “focuses on the evils the [town] seeks to eliminate . . . and eliminates them without at the same time banning or significantly restricting a substantial quantity speech that does not create the same evils.”  The SJC found that by banning alcohol at any establishment in the overlay district that displays live nudity, Mendon’s bylaw is broader than necessary.  The court noted that, in addition to strip clubs, the bylaw would ban alcohol at a (hypothetical) theatre showing “the rock musical ‘Hair,’ the play ‘Equus,’ and Richard Strauss’ opera ‘Salome’ and Oscar Wilde’s play of the same name.”  In the court’s view, the bylaw’s blanket ban on alcohol “is not the logical response” to the town’s belief that alcohol at adult businesses increases crime.  Rather, the town “must seek other, narrower means to pursue its goal of crime prevention.”  In this regard, the court suggested that the town might permissibly further its “countervailing interest” through increased security requirements, or by limiting (as opposed to completely banning) alcohol consumption.

Given this ruling, I expect Mendon is already at hard work on a revised bylaw, and Showtime is gearing up for the next round in this battle.  We’ll keep you posted.

Breaking: SJC Rules That Real Estate Salespersons Are Not Covered By Independent Contractor Statute

Posted in Legislation, Miscellaneous

This morning the Supreme Judicial Court (SJC) released its decision in the closely-watched case of Monell v. Boston Pads, LLC.  The main issue on appeal – one of critical importance to the real estate brokerage industry – was whether the state’s 2004 independent contractor statute, M.G.L. c. 149, § 148B (part of the Wage Act), applies to real estate salespersons who work for brokerage firms under M.G.L. c. 112, § 87RR, which governs the licensing of real estate brokers and salespersons.  As the SJC observed, these two statutes conflict:  under the independent contractor statute, the plaintiff salespersons would be deemed employees, while under the real estate licensing statute they could be either employees or independent contractors, depending on the nature of their relationship with the broker they work for.  Under the independent contractor statute, if the defendant brokerage firms had misclassified the plaintiffs as independent contractors when they were actually employees, the brokers would be subject to substantial civil and even criminal penalties.

The SJC affirmed the lower court’s ruling that the independent contractor statute does not apply to real estate salespersons.  The court cited the familiar canon of construction that, where two statutes are in conflict, the more specific law (the real estate licensing statute) controls over the more general law (the independent contractor statute).  However, the SJC noted that its decision does not resolve the entire dispute:  because even under the real estate licensing statute, salespersons may be either employees or independent contractors, and because the parties did not litigate the issue of how real estate salespersons should be classified outside the framework of the independent contractor statute, the court stated, “we think it prudent to leave that issue’s resolution to another day, when it has been fully briefed and argued.”  The court added, hopefully, “Should the Legislature be so inclined, it may wish to clarify how a real estate salesperson may gain employee status under the real estate licensing statute.”

It will be interesting to see how the real estate brokerage industry responds to Monell, and whether the Legislature takes up the SJC’s invitation to resolve this important open issue by amending the real estate licensing statute.

Appeals Court Panel Refuses To Narrow Declaratory Judgment Remedy For Zoning Disputes

Posted in Special Permits, Zoning

In a recent “unpublished” decision in Cohen v. City of Somerville (pdf), an Appeals Court panel confirmed that M.G.L. c. 240, § 14A – which allows a landowner to obtain a judicial declaration of the extent to which a zoning regulation applies to a proposed use of land – remains available even after the landowner has “engaged the administrative process” by applying for and being denied a building permit.  The defendant city acknowledged the 1983 case of Banquer Realty Co. v. Acting Building Commissioner of Boston (pdf), in which the Supreme Judicial Court (SJC) stated this principle, but argued that Banquer Realty Co. had been narrowed by the SJC’s later decision in Whitinsville Retirement Society, Inc. v. Northbridge (pdf).  The panel disagreed, noting that Whitinsville denied relief under the statute because the plaintiff there was seeking a declaration of the extent to which a special permit – not a zoning bylaw or ordinance – applied to the plaintiff’s land.  Stating, “we continue to follow Banquer Realty Co. as clarified by Whitinsville Retirement Soc., Inc.,” the panel reversed the trial court’s dismissal of the plaintiffs’ M.G.L. c. 240, § 14A claim.  The remaining appellate claim concerned the trial court’s grant of summary judgment to the city on the issue of whether the plaintiffs’ proposed use of their land as the site of an Ocean State Job Lot store amounted to a “change in use” from the previous supermarket use.   On this claim, too, the panel reversed, finding that the plaintiffs’ evidence – while thin – was enough to create a disputed issue of material fact, thereby precluding summary judgment.

SJC Removes Another Arrow From The Foreclosure Defense Quiver

Posted in Foreclosure, Title

In its recent decision (pdf) in Abate v. Fremont Investment & Loan, the Supreme Judicial Court (SJC) affirmed a Land Court judgment dismissing a foreclosed borrower’s “try title” action.  “Try title” is a nineteenth century cause of action that allows an owner of land to force someone with an adverse claim to the land to either bring an action and prove his “better title” or forever hold his peace.  The statutekeep firing! is M.G.L. c. 240, §§ 1-5.  Since the onset of the current foreclosure crisis, mortgagees facing foreclosure have been using the try title mechanism to challenge the mortgage holder’s right to foreclose, often by contesting the validity of one or more assignments of the mortgage as it moved through the secondary market.

To bring a try title action, a plaintiff must allege that (1) he holds record title to the land, (2) he is in possession of the land, and (3) there is an actual or possible adverse claim.  In Abate, the plaintiff’s mortgage had already been foreclosed.  Nevertheless, Abate filed a try title action claiming that the original mortgagee’s assignment of the mortgage was “fraudulent, invalid, void and/or legally inoperative,” therefore the foreclosure itself was invalid and he was still the owner of the property.

The defendants, who were the foreclosing mortgagee and prior holders of Abate’s mortgage, moved to dismiss the case on the ground that his allegations were insufficient to show that the last assignment in the chain was invalid.  Abate opposed the motion, arguing that under the two-step procedure typically used in try title actions, the question of who has “better title” must await the second step of the proceeding, in which the defendant becomes the plaintiff and, in a case such as this, must prove that his foreclosure was valid.

The Land Court allowed the defendants’ motion to dismiss, ruling that, in the first step of the procedure, the plaintiff must demonstrate at least the first two elements of the claim:  record title and possession.  This is necessary because, if either of those elements is in doubt, the court may not have jurisdiction to entertain the case in the first place.  The Land Court held a hearing and, considering all the evidence, rejected Abate’s substantive claims and found that the last assignment – and therefore the foreclosure – was valid.  Since Abate could not prove he had record title to the property, the court had no jurisdiction and the try title action was dismissed.

On appeal the SJC affirmed the Land Court’s judgment in all respects.  The court agreed that the first two elements of the plaintiff’s case – record title and possession – must, if challenged by the defendants, be determined at the outset of the case, to establish the court’s jurisdiction.  As to the third element – the existence of an adverse claim – the SJC held that, even if challenged, the plaintiff’s allegations should be presumed to be true, with resolution of that issue reserved to the second step of the procedure.  In this way, the court noted, “we harmonize the two-step try title procedure with the traditional use of the rules of civil procedure as a device for raising jurisdictional issues before the court.”

Though in Abate the foreclosure had already occurred, the SJC went on to say:

Nonetheless, because the issue may arise in future try title actions between a mortgagor and mortgagee, we take this opportunity to resolve the conflict in the Land Court try title decisions on the adverse claim element of subject matter jurisdiction.  We conclude that where a mortgagor challenges the right of the mortgagee to foreclose, the “adverse claim” element of a try title action is sufficiently alleged only if the foreclosure has already occurred.

By requiring mortgagors to wait until after foreclosure to file a try title action, and by allowing (if not requiring) defendants to challenge the mortgagor’s claims concerning the validity of the foreclosure at the outset of the case, the SJC has taken the try title mechanism off the table as a way to prevent a foreclosure, and has reduced its attractiveness as a means of delaying the mortgagee’s disposition of the foreclosed property.  Both of these are salutary developments that should help accelerate the real estate market’s ongoing recovery from the foreclosure crisis.

SJC Confirms That Zoning And Subdivision Control Are Two Different Animals

Posted in Nonconforming Use, Subdivision Control, Variances, Zoning

Last week the Supreme Judicial Court (SJC) issued its much-anticipated decision in Palitz v. Zoning Board of Appeals of Tisbury.  The fact that the high court took this appeal directly from the Land Court (bypassing the Appeals Court) caused some to wonder whether a dramatic change in the law on the relationshipYou have a variance for that? between zoning and subdivision control – especially with regard to pre-existing buildings – was in the works.  In the end, the court largely stuck to the path marked by prior decisions.  My colleague Jesse Abair and I filed an amicus brief on behalf of the Massachusetts Association of Regional Planning Agencies, the Massachusetts Association of Planning Directors, Inc., the Massachusetts Chapter of the American Planning Association, and the Martha’s Vineyard Commission.

Palitz concerned land in Tisbury (on Martha’s Vineyard) shown on a plan that the town’s planning board in 1994 endorsed “Approval Not Required” (ANR).  The basis for the ANR endorsement was a provision in the Subdivision Control Law which exempts from that law a division of land on which there are two or more pre-existing buildings (i.e., buildings in existence before the town adopted the Subdivision Control Law) so that, after the division, there is one building on each new lot.  This is known as the “existing building” exemption.   In connection with this ANR endorsement the owner also obtained a variance because the resulting lots violated setback and lot size requirements of the zoning bylaw.

In 2012 Palitz, who owned one of the lots, sought to rebuild her 200-year-old house.  The new house would retain the same footprint as the old one but would be almost 10 feet higher and would include a basement.  The building inspector refused to issue a building permit until Palitz obtained a new or amended variance.  When Palitz applied for such a variance she was denied.  She appealed that denial to the Land Court, arguing that she didn’t need a variance because her house was a lawful pre-existing, nonconforming structure that was grandfathered under the state Zoning Act, M.G.L. c. 40A, § 6 (Section 6).  The Land Court disagreed and upheld the local decision.

The SJC affirmed the Land Court, holding that the prior variance “cannot serve as a launching pad for the expansion of zoning nonconformities” through use of the grandfathering protections in Section 6.  Thus, Palitz’s project did require a new or amended variance.  However, the SJC found no reason to disturb the Land Court’s conclusion that her variance application was properly denied.

The cases on pre-existing uses and structures are a dense thicket, and Palitz is no exception.  Had Palitz’s predecessor not used the “existing building” exemption to obtain an ANR endorsement placing her house on its own lot, it’s possible Palitz would have been able to rebuild the house using the protections afforded by Section 6 – a much easier task than meeting the notoriously difficult variance standard.  Indeed, that was Palitz’s principal argument.  But those protections were lost when her predecessor created a new lot through the “existing building” exemption of the Subdivision Control Law, and then obtained a variance to excuse the resulting zoning violations.  This is so even though Palitz’s 200-year-old house itself didn’t change.  Palitz confirms that zoning and subdivision control are two different animals that must be addressed on their own terms.

Period Of Public Ownership Doesn’t Stop Adverse Possession Clock

Posted in Miscellaneous, Title

The Appeals Court’s recent decision in 1148 Daviol Street LLC v. Mechanic’s Mill One LLC will be of interest to adverse possession buffs.

The issue on appeal was whether the plaintiff’s adverse possession claim started running during a 14-year period when the defendant’s property was owned by the City of Fall River.  The defendant argued that the claim could not have commenced during that period because of M.G.L. 260, § 31, which codifies the ancient common law principle that “time does not run against the sovereign” (“nullum tempus occurrit regi” for you Classics majors).  In 1987 the Legislature revised the statute to expand the categories of public property that can be recovered at any time (i.e. without regard to claims of adverse possession or prescriptive use) to include land held for various recreational and environmental uses as well as for “other public purpose[s].”  The defendant reasoned that, since its land had been held by Fall River for a public purpose, and no adverse possession claim could have been asserted against the city, those 14 years of municipal ownership should be excluded from the 20-year period required to prove adverse possession.

The Appeals Court brushed the defendant’s argument aside with “little difficulty.”  The court stated, “[n]othing in the statutory language immunizes [public lands] from having an adverse possession claim begin to accrue during the period of public ownership.”  The court noted that, while the 1987 amendments broadened the protections afforded to public lands, “nothing in the statute evinces an intent that such protections also benefit a subsequent private owner.”  The court further noted that M.G.L. 260, § 21, the statute of limitations governing private actions to recover land, was not changed in 1987, and includes no exception for land formerly held by the Commonwealth or its political subdivisions.  The coup de grâce for the defendant’s position was the court’s observation that the public policy considerations underlying the 1987 amendments to G.L. c. 260, § 31 “no longer come into play once the land in question is transferred to a private party.”

Though it’s almost 300 years old (in America), the adverse possession doctrine continues to develop before our eyes.

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.