SUBDIVISION CONDITIONS DO NOT EXPIRE, BUT ARE NOT ETCHED IN STONE

In the Appeals Court case of Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014), the court agreed with the Land Court that conditions imposed within a Definitive Subdivision approval do not expire after 30 years (as would a restriction on land in accordance with G.L. c 184 s 23). The court referred to Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass.App.Ct. 655, 657, 955 N.E.2d 315 (2011) in which such a conclusion was already established as applied to conditions within a Special Permit.

 

But, that does not mean that subdivision or special permit conditions can never be removed or modified; it means that the party seeking the removal or modification must do so with the proper procedure, i.e an application for a subdivision modification in accordance with G.L. c41 s81W. However, in the Samuelson case, the applicant never sought a modification, and the court said:

 

“The fact that the condition imposed by the board in 1975 did not automatically expire in 2005 does not necessarily mean the Kennedys lack any potential recourse. Subdivision approvals are not permanently etched in stone, but can be modified in accordance with the provisions of G.L. c. 41, § 81W. Some claim can be made that that is in fact what the board did here, and the Kennedys now argue that the board's decision should be analyzed and upheld on that basis. However, our review of the summary judgment record reveals that the Kennedys never raised such an argument to the judge below. Moreover, despite the fact that the judge repeatedly stated that the Kennedys never requested a modification of the 1975 approval pursuant to § 81W, and that the board never treated their request as such, the Kennedys made no argument in their opening appellate brief that the judge erred in this regard. Instead, they raised the § 81W issue for the first time in their reply brief. Accordingly, even had the Kennedys raised the issue below, that argument was waived.” Samuelson v. Planning Bd. Of Orleans, 86 Mass. App. Ct. 901 (2014)

Paul F. Alphen, Esquire

Alphen & Santos, P.C.

UNLAWFUL STUDENT HOUSING IN BOSTON: IT’S ALL ABOUT MONEY

Last week the Boston Globe completed its “Spotlight” series on unsafe apartments rented to college students in Boston, and the sometimes deadly and dangerous consequences of same. Like many “Spotlight” reports, it could have been written by Captain Obvious because anybody who attended college in Boston, or knows anybody that attended college in Boston, knows that apartments are routinely cobbled out of basements and attics. Notwithstanding the attempt by the article to spread the blame around to landlords, Boston Inspectional Services and the colleges, the real culprit is: money.

            The colleges accept more students than they can house. Students (and often parents) don’t want to pay more than they have to. Landlords want to make a profit. Inspectional Services claims it does not have the financial resources to properly police the landlords and the apartments. I doubt the City of Newton would allow students to live in unlawful basement and attic units. I was reminded of 81 Spooner Road LLC v. Zoning Board of Appeals of Brookline, 78 Mass. App. Ct. 233 (2010), aff'd on other grounds, 461 Mass. 692 (2012) in which a resident chased a neighbor all the way to the Appeals Court because he feared the neighbor was going to construct a game room in the attic of a single family dwelling. In the suburbs, the neighbors would complain loudly and frequently, and the city would purse enforcement and recover the maximum penalties allowed by law. The City of Boston should take a hint from the suburbs and collect as much money as possible from the landlords as filing fees, inspection fees and penalties; and use the revenue to hire more inspectors and prosecutors. For reasons unexplained in the article, Boston appears to collect very little money from offending landlords. The article stated that one landlord had received tickets totaling $51,720 for violations but paid only $3,010 and most of the unpaid tickets were dismissed. In the suburbs, one cannot open a hot dog stand without obtaining a pile of permits and paying for the related fees, expenses and “peer review consultant fees.”

                        But unless the problem is addressed head on, it will only get worse. The article hints at the overall economic impact caused by lack of enforcement. As landlords find ways to squeeze in more and more tenants per building, the additional rent revenue artificially increases the value of the buildings which (a) artificially drives up the cost of real estate in the neighborhood forcing out more and more owner occupied buildings and (b) places pressure on other competing landlords to stuff more tenants in their buildings. Consequently, the cycle continues and creates more unlawful units. We know from the experiences of the real estate booms and busts over the past few decades that artificially increasing the price of real estate generally pads the wallets of the few at the expense of many.

            Finally, every college and university that turns a blind eye to the problem should immediately rewrite their policies and practices. The tragic and preventable death of Binland Lee should be a wake up call to every college President in Boston to become proactive in protecting the health and safety of their students.

PAUL F. ALPHEN, ESQUIRE

ALPHEN & SANTOS, P.C
paul@lawbas.com

http://www.lawbas.com

THE LAND COURT RULED THAT A “GREEN STRIP” PROVISION DID NOT PROHIBIT UNDERGROUND UTILITIES AND SUBSURFACE SYSTEMS THEREIN

On December 22, 2009, the plaintiff Cohasset Associates sought site plan approval from the Cohasset Planning Board in order to construct a 30,000 square foot retail building, on vacant land. After a hearing that was continued eight times, in November 2010 the Planning Board issued a decision with a condition that no soil absorption system could be constructed within the 30’ wide green strip. Section 5.4(10) of the Zoning Bylaw provides as follows:

 

“Within the highway business, technology business and light industry districts, there shall be maintained a green strip not less than thirty feet wide on which to grow grass, bushes, flowers, or trees which shall be unbuilt upon, unused, unpaved, and not parked upon along any property line abutting land residentially zoned.”

 

A “Green Strip” is defined as “An area landscaped with grass, trees, or shrubs and cannot be built upon, paved, parked upon, or used for vehicular traffic.”

 

The green strip encompasses approximately 28,000 square feet, and approximately 280 square feet of Soil Absorption System No. 1 lies within the subsurface of the green strip.

 

The Plaintiff appealed to the Land Court pursuant to G.L, c.240 Section 14A. In July 2013 the Land Court found for the Plaintiff and ruled that it was not prepared to allow the Planning Board to interpret the Bylaw in such a manner as to produce absurd results:

 

“The Bylaw sets out no explicit purpose for the Green Strip. Nevertheless, Sections 5.4(8) and 5.4(10) create visual, landscaped vegetative areas around certain commercial uses. It is the view of this court that the legislative purpose which underlies Section 5.4(10) is the establishment of a visual buffer between commercial and residential uses. Viewing such purpose in tandem with the Bylaw provisions cited supra, i.e. those which refer to a range of permitted surface activities and uses, this court is not prepared to read into the Bylaw a prohibition on legal subsurface uses. ‘The language of a [bylaw] is not to be enlarged or limited by construction unless its object and plain meaning require it.’ Tession v. Commissioner of Dept. of Transitional Assistance, 41 Mass.App. Ct, 479, 482 (1996) (internal citations omitted). Moreover, construing the Green Strip restrictions as pertaining to lawful subsurface uses, would in no way further the purpose of a Bylaw provision intended to create a visual buffer.

 

“A ‘statute or ordinance should not be construed in a way that produces absurd or unreasonable results when a sensible construction is readily available.’ Manning v. Boston Redevelopment Authority, 400 Mass. 440, 453 (1987). In the case at bar, the Planning Board's interpretation of Section 5.4(10), could lead to a perhaps unintended, unreasonable result. For example, such interpretation would seemingly preclude placement of otherwise allowable subsurface utilities including water lines, electric and telecommunication cables. It is noteworthy in this regard, that the Board set no limitation on the subsurface depth which is to remain ‘unused’”. Staszko vs. Moore, Mass. Land Ct., No. 10 MISC 442981 HMG (July 23, 2013)

 

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

CHAPTER 40A § 7 STATUTE OF LIMITATIONS CLARIFIED (AND PERHAPS NARROWED A BIT)

In an unpublished decision issued in December, the Appeals Court provided further clarification of the statute of limitations contained in G.L. 40A, § 7. In  Guaranteed Builders, Inc. v. Bylinski, 84 Mass. App. Ct. 1125, 999 N.E.2d 502 (2013) “the defendant homeowner obtained a variance and a building permit, and he constructed a single-family dwelling on the locus in Douglas in 2005. Alleging that the home had not been built in accordance with the permit, the plaintiff sought enforcement of town zoning bylaws via a letter to the building commissioner in 2012.”

Yes, that is correct: seven (7) years later.

After the ZBA concluded the house had been built in conformance with the variance, the plaintiff appealed to Land Court and the judge determined it was time barred by the provisions of Section 7 which read:

“ No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen; provided, further, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law…” (emphasis added)

The plaintiff appealed arguing that the judge erred by ignoring the second part of Section 7 which the plaintiff asserted allows an action to be brought within ten years if it pertains to a variance or special permit. The provision states:

“…no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, or the conditions of any variance or special permit, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation.” (emphasis added)

The court dissected the language of Section 7 and determined that “the six-year statute of limitations applies to challenges to structures and uses that were built or improved in accordance with a building permit, see Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 216–218 (1982), whereas the ten-year limitations period applies to challenges made to structures not built pursuant to or in reliance on a building permit. See Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass.App.Ct. 226, 227 (1991) (the second paragraph of G.L. c. 40A, § 7, contains a ten year statute of limitations ‘applicable to actions complaining of structural violations for which no permit was given’).”

Since the complaint was not filed within the six year window, the Appeals Court found that the Land Court properly dismissed the case.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

 

http://www.lawbas.com

ROADWAY EASEMENTS BY ESTOPPEL CONTINUE TO BEFUDDLE SOME

In the past few months there have been multiple Land Court cases regarding rights in paper streets and the application of the law of Easement by Estoppel. This past July,  Judge Piper concluded that:  “Murphy v. Mart Realty of Brockton, and the related body of law establishes that ‘when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.’ 348 Mass at 677 (quoting Casella v. Sneierson, 325 Mass 85, 89 (1949)). In determining whether a way has been sufficiently defined as a proposed street, reference may be made to the plans described in the deed. Id. ‘A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.’ Labounty v. Vickers, 352 Mass. 337, 344 (1967), quoting Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 354 (1926).” Puner v. Sierputoski, 11 MISC 454440 GHP, 2013 WL 3776820 (Mass. Land Ct. July 15, 2013).

See also Lepesqueur v. Swann, 11 MISC 445669 (HMG), 2013 WL 3816726 (Mass. Land Ct. July 19, 2013) wherein Judge Grossman found that a party had rights in a paper street and also found that it had not been abandoned although the road had never been constructed and was covered with woodlands and brush. Judge Grossman found that the paper street had not been abandoned because non use by itself did not constitute abandonment. “Abandonment of an easement is a question of intention, and ‘cannot be found unless it clearly appears that such abandonment was intended by the owner.’[citation omitted]  Mere non-use, no matter how long continued, will not work an abandonment. [citation omitted] In order to establish the abandonment of an easement, there must be ‘acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence.’[citations omitted] ‘Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement’ [citation omitted]”

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

SEEKING YOUR THOUGHTS: HAVE YOU BEEN REQUIRED TO PROVIDE ADDITIONAL OPINION LETTERS IN CONDO CLOSINGS?

Have you been required of to provide an attorney’s opinion letter to residential mortgagees,  for their benefit and the benefit of FNMA, in relation to a closing on a residential condominium unit certifying as to various provisions contained in the condo documents and all amendments thereto and further:

That  you are familiar with all laws, ordinances, regulations and other legal requirements which were applicable with the respect to the establishment and administration of the condominium in the jurisdiction and locality where the unit  is located;

None of the amenities or facilities, including any recreational or parking facility, related to or associated with the condominium are, or are proposed to be, leased to the Owners Association or unit owners. None such amenities or facilities will be subject to any restriction or reservation in favor of the developer or declarant of the condominium or any affiliate of such developer or declarant, as the term “affiliate” is used in Section 803.08 of the FNMA Conventional Home Mortgage Selling Contract Supplement; and  

The project documents may provide for implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment within sixty (60) days after it receives proper notice of the proposal, provided the notice was delivered by certified or registered mail, with a return receipt requested. Notwithstanding the foregoing, project documents that were recorded prior to August 23, 2007, may provide for implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment within 30 days after it receives proper notice of the proposal, provided the notice was delivered by certified or registered mail, with a return receipt requested.

Have you been required to provide the opinion letter at no additional charge above and beyond your capped fee for the title exam, review of the title exam, title certification, coordination of the closing, performing the closing, acting as settlement agent, recording the documents and disbursing funds?

Are you familiar with ALL laws, ordinances, regulations and other legal requirements which were applicable with the respect to the establishment and administration of the condominium?

Have you examined Section 803.08 of the FNMA Conventional Home Mortgage Selling Contract Supplement?

Have you been able to examine the condo docs and all amendments to be in a position to provide a legal opinion on the above types of questions (ie an “implied approval to be assumed when a mortgagee fails to submit a response to any written proposal for an amendment…”)?

I am interested if you have. I have talked with some small firms who are now moving away from performing residential closings because they see a trend where lenders are shifting the burden of compliance with federal regulations to the closing attorneys.  The attorneys fear that if the borrower defaults and the loan reverts back to the lender under the new rules the lender will seek a remedy from the closing attorney. Your thoughts?

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

 

SEEKING A MGL CH 240 SEC 14A DETERMINATION FOR A NON-CONFORMING LOT

Take a look at Lois A. Jones v. The Town Of Harwich No. MISC 12-46068, Commonwealth of Massachusetts, Trial Court Land Court Department, Plymouth June 24, 2013. The Plaintiff was able to avoid the expense and time delays of (a) preparing plans and seeking a building permit, (b) obtaining a denial from the Building Department, (c) seeking a reversal by the Zoning Board of Appeals, and (d) filing a judicial  appeal of a denial once issued by the ZBA.  “The instant action was initiated pursuant to G.L. c. 240, § 14A by the plaintiff, Lois Jones (plaintiff / Jones). Ms. Jones seeks a judicial determination concerning the extent to which Article IV and Article VI, Table 2 Area Regulations and Table 3 Height and Bulk Regulations of the Harwich Zoning Bylaw (Zoning Bylaw) apply to her parcel of land on Sea Street Extension in Harwich, Massachusetts. Asserting that her property is exempt under G.L. c. 40A, § 6, Jones asks this court to conclude that the dimensional and area regulations of the Zoning Bylaw do not apply to her property.”

 Land Court Jude Grossman determined: “It is true that the language of the statute does not explicitly contemplate a judicial determination as regards the applicability of G.L. c. 40A to a property, since the statute is not a ‘municipal ordinance, by-law or regulation.’ However, the plaintiff seeks not a determination of the applicability of G.L. c. 40A, § 6 per se, but rather a determination concerning the effect of the Bylaw upon the locus. Although an interpretation of G.L. c. 40A, § 6 may constitute a necessary element, it is secondary to the interpretation of the Zoning Bylaw. This court possesses the jurisdiction to consider G.L. c. 40A, § 6 within the context of a challenge to a zoning bylaw.”

Judge Grossman then determined that the lot was a protected non-conforming lot. Nice.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com