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

A NEW STANDARD FOR DEMONSTRATING THAT A VARIANCE HAS BEEN EXERCISED

Last month in Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013) the SJC determined that a variance decision that had been relied upon by the applicant did not expire notwithstanding that the decision was not recorded within one (1) year of its grant as required by Statute.

“ No variance, or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed, or that if such appeal has been filed, that it has been dismissed or denied, or that if it is a variance which has been approved by reason of the failure of the permit granting authority or special permit granting authority to act thereon within the time prescribed, a copy of the petition for the variance accompanied by the certification of the city or town clerk stating the fact that the permit granting authority failed to act within the time prescribed, and no appeal has been filed, and that the grant of the petition resulting from such failure to act has become final, or that if such appeal has been filed, that it has been dismissed or denied, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title.” Mass. Gen. Laws Ann. ch. 40A, § 11 (West)

In the Land Court, Justice Long found that the Permit Extension Act did not extend the time period within which a variance decision must be recorded. Justice Long wrote:  “ The Permit Extension Act, in relevant part, provides, ‘[n]otwithstanding any general or special law to the contrary, an approval in effect or existence during the tolling period shall be extended for a period of two years, in addition to the lawful term of the approval.’ St.2010, c. 240 § 173(b)(1) (emphasis added). As Cornell makes plain, however, under G.L. c. 40A §§ 10 & 11, ‘a variance does not ‘take effect’ until it is recorded ... and the recording of a variance within one year of its grant is necessary to ‘exercise’ it.’ Cornell, 453 Mass. at 891. Simply put, unless ‘substantial reliance’ is sufficient to bring variance rights into effect, there is no actual ‘variance’ unless and until timely recording occurs. Thus, absent a ‘substantial reliance’ exception, there was no ‘approval’ capable of being extended by the Permit Extension Act. In short, on the facts of this case, the ‘substantial reliance’ issue cannot be avoided.” Grady v. Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass. Land Ct. July 27, 2011) judgment entered, 09 MISC. 419147 KCL, 2011 WL 3163300 (Mass. Land Ct. July 27, 2011) aff'd sub nom. Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013)

Those of you who find this kind of thing exciting will no doubt remember Paul Cornell who attempted to develop two lots in Dracut but was stopped when the SJC finally ruled that he had not exercised his variance decision within a year. Within that year period “Cornell hired a registered land surveyor to prepare an ‘approval not required’ plan (ANR), see G.L. c. 41, § 81P, which subsequently was filed with the planning board, and approved and indorsed on August 14, 2002. Cornell then retained Norse Environmental Services, Inc. (Norse), to prepare septic and wetlands delineation plans. Norse began testing the soil in November, 2002, and submitted a septic plan to the board of health on February 14, 2003. At some point in early 2003, Cornell applied for an order of conditions from the conservation commission. By March 7, 2003, the anniversary of the issuance of his variance, the board of health and the conservation commission continued proceedings concerning Cornell's applications several times, and had not issued any decision concerning Cornell's applications” Cornell v. Bd. of Appeals of Dracut, 453 Mass. 888, 889, 906 N.E.2d 334, 336 (2009).

Notwithstanding actions that most of us would have considered to be steps that relied upon the original grant of the variance, the Court in Cornell did not agree.

In the Grady case, the SJC upheld the Land Court decision that found that the following steps were sufficient for a finding that the variance had been exercised: “They had previously (pre-grant) hired a surveyor (Jan. 27, 2008) and architect (Sept. 2, 2008). Now they (1) hired a general contractor (Feb. 18, 2009), (2) applied for a building permit (Feb. 22, 2009), (3) were issued that building permit by the City's building inspector (Feb. 24, 2009), (4) hired (at the City's insistence) a supervising architect to review the progress of the work and prepare periodic reports for the City (Jun. 15, 2009), (5) applied for and received a $350,000 construction loan from Community Credit Union of Lynn (Jun. 17, 2009), (6) granted a mortgage on Lot B to Community Credit Union (Jun. 17, recorded Jun. 18, 2009), (7) drew an initial $59,120 from the loan to begin funding construction activities (Jun. 19, 2009), and (8) began clearing the site (Jun.2009). Each involved a corresponding expenditure.” Grady v. Langone, 09 MISC. 419147 KCL, 2011 WL 3242211 (Mass. Land Ct. July 27, 2011).

It is important to note that the Grady variance was recorded a year and eleven (11) days after the grant thereof, the Plantiff had notice of the original variance proceedings but did not file an appeal and the Plaintiff’s land was subject to an easement that was created over her land for the purpose of the use being constructed on the lot in question.

 

 PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

 

THE TENNIS COURT BUBBLE BURST

In the recent Land Court decision of E&C Sports, LLC v. Town of Holliston, 11 MISC 445780 (KFS), 2013 WL 1804192 (Mass. Land Ct. Apr. 5, 2013), we are reminded of two principals. The case pertained to applications submitted by a swimming and tennis club seeking approval of an “air supported structure so as to provide tennis courts year round to the members of the Tennis Club.”  The case reminded us that:

1. A use or structure that depends on a previously issued variance is not a lawfully pre-existing non-conforming use or structure. Therefore, such use or structure cannot expand in accordance with a MGL Chapter 40A Section 6 Special Permit which otherwise allows non-conforming uses and structures to be altered and expanded. “It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use.” Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 531 (1990), rev. denied, 407 Mass. 1103 (1990); see also Star Enterprise v. Zoning Bd. of Appeals of Medfield, Land Court Misc. Case No. 141347 (1991) (Kilborn, C.J.), aff'd 35 Mass.App.Ct. 1109 (1993) (Relying on Mendes, holding that a Section 6 finding was not possible in the action because “a use based on a variance was not non-conforming within the meaning of Section 6”); and

2. If you submit two applications, for example an application for Site Plan Review and an Application for a Special Permit, and at the hearing the Board appears to act upon only one, speak up and ask them to specifically act on both applications. If you assume that you can obtain a Special Permit by constructive approval (see MGL Chapter 40A Section 9, clause 13) you may be sadly disappointed. In the E&C case the Court found that that it was the Board’s intention to act on both applications and constructive approval was not available to the petitioner/plaintiff.  Over the years, I have seen many examples of a Board losing track of the details of the applications before it and forgetting to specifically act on one application. If you attempt to rely on constructive approval you may also lose your opportunity to file an appeal under Chapter 40A Section 17, which must be filed within twenty days of the decision being filed with the Town Clerk.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

 

http://www.lawbas.com