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Robert Foster is an associate in the Labor and Employment Practice Group in the firm's San Diego (Del Mar) office.

I’ll be speaking at the meeting of the ALI-ABA Land Use Institute on August 17-19.  The meeting takes place at the Massachusetts Continuing Legal Education (MCLE) Conference Center at 10 Winter Place in Boston.  Topics include:  an update on planning and land use decisions, where I’ll be discussing condition uses and nonconforming uses; and federal laws and regulations

The Appeals Court has affirmed a Superior Court judgment ordering that a house built in violation of both zoning and a previous Superior Court judgment be torn down.  In Cornell v. Michaud (pdf), the defendant Michaud owned several parcels on Harris Pond in Blackstone, Massachusetts.  Some of the lots had been reconfigured and been granted

In Nexum Development Corp. v. Planning Board of Framingham, the plaintiff developer challenged the defendant planning board’s denials of the developer’s applications for subdivision approval and for a cluster development special permit.  The Appeals Court affirmed the Superior Court’s denial of the developer’s appeal.  The Appeals Court held that, although the planning board failed identify its reasons for

In a St. Patrick’s Day decision, the Appeals Court interpreted the “bona fide offer” requirement in the version of M.G.L. c. 61A, § 14 (which governs the classification of land as agricultural for property tax purposes) that was in force before the statute’s 2006 amendment.  Reversing a contrary Land Court decision, a divided Appeals Court panel held that an offer conditioned on receiving approvals

Along with the Red Sox and Patriots’ Day, one of the unique features of Massachusetts is that modern property rights can be ruled by 370-year-old statutes.  The Colonial Ordinance of 1641-1647 declared that owners of land adjoining the shore also own the tidal flats – the land betweenBeachpath.JPG the high and low water marks (out

The federal Home Affordable Modification Program (HAMP) provides a mechanism for struggling homeowners to modify mortgage loans with participating lenders.  HAMP’s effectiveness has been questioned, but it recently provided the legal basis for a preliminary injunction against a foreclosure.  In the bankruptcy proceeding In re Cruz (pdf), the debtor, Mr. Cruz, had applied with Wells Fargo

Celltower.JPGBuried within the federal Telecommunications Act of 1996 (TCA) is a provision governing the zoning of wireless communications facilities – i.e., cell towers.  Section 704 of the TCA, now codified at 47 U.S.C. § 332(c)(7), states that except as otherwise provided, local zoning authority over cell towers is preserved.  It then places significant limits on that authority. 

In Massachusetts, the legal process for evicting commercial and residential tenants is governed not by the common law but by a statute (a very old statute – parts of it date from the 1700s), M.G.L. c. 239.  Chapter 239 gives a landlord an expedited judicial procedure, called summary process, to recover possession of its property from a tenant whose tenancy has been terminated – in other words, to evict the tenant.  The statute also allows landlords to recover damages from the tenant for unpaid rent, use and occupancy, and, if the lease permits, rent going forward and fees.

In Cummings Properties, LLC v. Cepoint Networks, LLC (pdf), the Appeals Court was asked if a landlord in a summary process action could sue – in addition to the tenant – a guarantor of the lease.  Cummings Properties leased commercial space to Cepoint Networks.  Bernard Adama executed the lease on behalf of Cepoint, and also signed a personal guaranty of the lease.  Cepoint defaulted on its rent payments, and Cummings brought a summary process action to recover possession and rent from Cepoint.  Cummings also named Mr. Adama as a defendant, seeking to recover the unpaid rent from him under his guaranty.  The District Court entered a default judgment against Cepoint, but dismissed Mr. Adama on the ground that a guarantor is not a proper defendant in a summary process action.  The Appellate Division of the District Court affirmed.

The Appeals Court agreed.  It found the answer as to whether a guarantor could be a defendant in a summary process action in the language of chapter 239, section 1, which provides that “if the lessee . . . holds possession without right . . . , the person entitled to the land or tenements may recover possession thereof under this chapter.”  Thus, the Appeals Court reasoned, summary process under Chapter 239 can only be brought against the party in possession of the premises.  Since a guarantor is not in possession, he is not a proper defendant in a summary process action.  The Appeals Court rejected the landlord’s arguments that guarantors should be defendants because (1) the statute provides for damages, (2) the Massachusetts Rules of Civil Procedure provide for joinder, and (3) judicial economy warrants joinder.  In essence, the Appeals Court’s response was that the statute’s language means what it says, and it’s up to the legislature to change it. 

Continue Reading Appeals Court Rules That Summary Process Can Only Be Used Against Parties In Possession

Doctor.JPGWhile many legal doctrines have poetic names (ancient lights, fruit of the poisonous tree), few are as vivid as “infectious invalidity.”  At its simplest, this land use doctrine holds that an owner of an existing lot that is legally non-conforming with zoning (say, because it doesn’t meet increased lot area requirements) who also owns adjoining land cannot lawfully create a new, fully-conforming parcel without first “curing” the non-conformity by using some of the adjoining land.  If there is not enough “extra” land to cure the non-conformity, the new lot is deemed “infected” – and non-buildable – even if it ostensibly conforms with all current requirements.  Unfortunately, new and apparently conforming lots are sometimes created in this manner and then conveyed, leaving the unwitting buyer with a non-conforming lot and the seller unjustly enriched.

In its recent decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf), the Appeals Court addressed infectious invalidity in the context of floor-area-ratio requirements for single-family homes.  In doing so, it also made an important point about standing.

In Spooner Road, the eponymous parcel was a residential lot with a single-family home in the Town of Brookline.  Under the town’s zoning bylaw, the maximum floor-area ratio (FAR) for single-family homes – the ratio of a home’s floor area to the size of the lot – is .30.  The existing house on the existing lot easily met that ratio.  The plaintiff LLC divided the lot in two and, in a twist on the typical infectious invalidity scenario, kept the newly-created lot for itself and sold the remaining, now-smaller lot with the house on it to a third party.  The new lot ostensibly met all zoning requirements.  The remaining house lot, however, was now too small to meet the FAR limit.  Neighbors, the Foggs, challenged the LLC’s building permit for the new lot, and the Brookline zoning board of appeals revoked the permit.  The Land Court affirmed the board’s decision based on infectious invalidity, and the LLC appealed.

The Appeals Court first addressed the Foggs’ standing.  Under Massachusetts law, the Foggs as abutters had a presumption of standing that the LLC could rebut with affirmative evidence, shifting the burden to the Foggs to present affirmative evidence of sufficient harm to confer standing.  The LLC claimed that it had rebutted the Foggs’ presumption of standing, but the Appeals Court disagreed.  The court found that the LLC’s effort to rebut the Foggs standing, which consisted of pointing to Mr. Fogg’s deposition testimony in which he offered his own unsupported opinion of his harm, was not the type of affirmative evidence necessary to rebut the presumption.  In the words of the court, the “LLC cannot claim shelter under this rule and cause the burden to shift to George Fogg, simply by offering his opinion testimony and by drawing speculative conclusions from that testimony.”

Continue Reading Doctor, Doctor, (Don’t) Give Me the News: Appeals Court Diagnoses “Infectious Invalidity”