Blog Archive

Friday, December 30, 2011

Practicable Access

The term “practicable access” as it relates to ANR plans was further defined within the December 14, 2011 Appeals Court decision of Houle v. Planning Board of Plainville 81 Mass. App. Ct 1104 (2011). The Plainville Planning Board had denied ANR endorsement notwithstanding that the land had frontage on a poorly maintained public way and notwithstanding that the municipality had a duty to maintain the public way (see Sturdy v. Planning Board of Hingham, 32 Mass.App. Ct 72, 76 (1992)). The Court found that portions of the road were passable only by four wheel drive vehicles or vehicles with oversized tires after a storm. The Court further found that emergency vehicles were not so equipped, and concluded that “there is no practicable means of access for emergency vehicles” to the lots shown on the ANR plan.  The Court concluded that the inadequacies of the roadway were beyond the type of deficiencies present in the Sturdy case (where the road was “close to impassable at very wet portions of the year), and ANR endorsement could properly be withheld. Next time, make sure the Town grades the road before submitting an ANR plan (or have a neighbor like ours on the Cape who grades the road himself a few times a year).


Wednesday, November 16, 2011


Take a look at Brockton Power Company, LLC v Planning Board of the City of Brockton, an August 19, 2011 decision of the Land Court. The Plaintiff had submitted an application for site plan review and the Planning Board refused to perform a technical review of the application materials because the Plaintiff has appealed an Order of Conditions issued by the Conservation Commission; the Planning Board took the position that it did not have to review the plan while the appeal was pending.
The Court found that there was nothing in the ordinance or the regulations stating that obtaining a final Order of Conditions was a prerequisite to site plan review. The Court concluded that the “Plaintiff is entitled to site plan review and final action by the Planning Board, and that the Planning Board may condition any approval on an unappealable approval of the [Superseding Order of Conditions].”

Judge Sands further reasoned: “It seems unlikely that the burden of technical review would become unfair simply because Plaintiff submitted revisions while an appeal was pending instead of waiting until it prevailed in the appeal. It is not uncommon for a substantial project to require approvals from multiple authorities with different jurisdictions and powers. For example, it is ‘well established that municipalities may enact more stringent requirements than those provided in the [WPA].’ FIC Homes v. Conservation Comm'n, 41 Mass.App.Ct. 681, 686, 673 N.E.2d 61 (1996). The Ordinance unquestionably gives the Planning Board power to review aspects of the site plan that are beyond the scope of the DEP and its SOC. Occasional conflict between authorities may be expected during the application process, but the possibility of such friction is not a valid justification for the Planning Board to refuse action on the matters properly within its jurisdiction and discretion.”

All too often municipal boards impose “ad hoc” burdens upon applicants which are not published within the By-Laws and Rules and Regulations. This is at least one case that attempts to remind boards that they must live within their own regulations and avoid making up rules as they go.


Tuesday, October 11, 2011

When a Fee is an Illegal Tax

Take a look at Denver Street, LLC v Town of Saugus, 78 Mass. App. Ct. 526 (2011). Further Appellate Review was granted in March, but if the decision stands it provides some more clarification regarding the distinction between “fees” (which are “…charged in exchange for a particular governmental service which benefits the party paying the fee in a manner not shared by other members of society”; are paid by choice; and compensate the government for providing services) and “taxes” which are permissible only when authorized by the Legislature.

In Saugus, like many other Towns, the Town’s sewer system leaked and the Town entered into an Administrative Consent Order with DEP which contained a plan to remedy the leaking The plan included imposing a fee to developers wishing to make a new connection based on the number of gallons of new sewer flow proposed by the development. The Plaintiff paid the fee under protest and filed a complaint in 2005. The Appeals Court agreed with the Superior Court that the fee was an illegal tax because the funds were used to repair existing problems with the system, which would have to be accomplished regardless of the new project proposed by the developer. Not surprisingly, the Court also found that the funds collected by the Town were not exclusively used on repairing the leaks, but $440,000.00 was spent on repairing a pumping station.

The Appeals Court concluded: “Because new sewer users received no benefits that were not shared by other members of the town, and the amount of the [inflow and infiltration] reduction contribution was not reasonably related to the cost of services from which the new users alone derived a benefit, the [inflow and infiltration] reduction contribution was an illegal tax and not a fee.”

Wednesday, September 21, 2011


Notwithstanding the rhetoric, we all realize that the Federal Government cannot, by itself, jump start the nation’s economy. It is interesting that our local and state politicians have generally gone into hiding regarding the topic of economic growth. An exception to the norm occurred recently upon the announcement of a business expanding in Merrimack Valley. State and local politician were drawn to the ribbon cutting like moths to a flame, and were seen patting each other on the back; although we know that they had nothing to do with the expansion. 

We know how a capitalist economy works. Business growth and success begets more business growth and success.  But what can we do to help the economy? Perhaps too much human energy is being wasted surfing the web, twittering, facebooking and watching TV. There is a risk that a society glued to TV and computer screens can lose focus on what is really important. [Perhaps, writing and reading blogs only contributes to the problem.] Rather than just criticize the younger generation for wasting time, I am going to offer a suggestion: Those who use social media should use some of their time on-line sharing with others information about good quality products that they have found that are Made in the U.S.A.. We need to encourage one another to purchase American made goods. Here is my first contribution to the effort: Of course we all know about the good-old Ford F-150 and Ford Mustang, but I also found a very nice navy blazer at Brooks Brothers that is manufactured in Massachusetts! It makes me feel better every time I put it on.  Now it’s your turn.


Tuesday, August 30, 2011

I returned from vacation...

I returned from vacation to find construction equipment clearing the site across the street from my office. A local developer has pulled the trigger on a 240,000 retail/professional center. In the current economic climate the sound of heavy equipment is somewhat welcome. We have seen some other interest in commercial and light industrial development as well. It is starting to feel like we have “turned the corner”. The site across the street was the subject of a recent land court decision. See:  The decision of Judge Trombly was appealed, and is pending in the Appeals Court. Apparently the developer is exercising the rights created by 2006 amendments to Chapter 40A, Section 11 which allow projects to proceed at the developer’s own risk: “The person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone.”

I have enjoyed hearing about your various vacation adventures mountain climbing, biking and white water rafting. Many many of our peers are getting more adventuresome as they get older; you have to admire their stamina…until you realize that many of them have specifically planned their vacations so that they will be out of Blackberry-reception-range. I followed suit and spent four days navigating a 40’ motor yacht from Plattsburg, NY on Lake Champlain to Falmouth, MA. I did not know it was possible until 3 days before the trip, and there were moments during the trip that I was not sure it was possible.

Monday, July 25, 2011


There is an interesting article on the Cape Cod online news site at

The Community Health Center of Cape Cod had proposed a $9.25 million expansion program to meet the growing demand for low cost health care. A subcommittee of the Cape Cod Commission has voted to recommend that the Commission waive the nearly $815,000.00 in permitting and planning fees that would otherwise be required by the Commission. Such fees are in addition to the fees that will be required by the local municipal boards. The article is a reminder of the extraordinary costs associated with development in Massachusetts. Absent a waiver, the non-profit health center would have had to raise the $815,000.00. They are very fortunate.


Wednesday, July 20, 2011

Community Preservation Act – Will Pending Changes Save the Program?

In a recent news story in the Cape Cod Times, as reported by Mary Ann Bragg on June 6, 2011, certain Cape Cod towns are seeking state legislative support to authorize new taxes on private vacation rentals and real estate sales in a continuing effort to increase municipal income. Home-rule petitions from Brewster, Eastham, Provincetown and Yarmouth would expand room occupancy taxes to vacation rentals, and a home-rule petition from Provincetown proposes a new 0.5 percent real estate transfer fee.Under state law, hotels, motels, lodging houses and larger bed-and-breakfasts assess room occupancy taxes with proceeds split between the state and the town. For some Cape towns, the proceeds of the current tax are said to amount to more than $1 million annually. Reportedly, the town of Brewster could gain $500,000 annually in revenue with the broadened occupancy tax. Eastham projects a similar increase in tax receipts from the same change in the occupancy tax. Provincetown voters have sent the Legislature two home-rule petitions: one to broaden the room occupancy tax, and the other to impose a real estate transfer fee on most buyers. The town says that the real estate transfer fee alone could bring at least $400,000 annually in new revenue.

It is no wonder that cities and towns want new revenue sources during difficult fiscal times. Balancing the state budget is the paramount issue on the agenda in the current term of the Massachusetts General Court. No one believes that even “level funding” of local aid will be enough to meet shortfalls that threaten municipal budgets across the state. Even if the aforementioned measures advocated by Cape Cod towns are approved – which remains in doubt, these types of proposals offer little or no hope for most other communities.

New Legislation

To support certain unmet municipal needs, a coalition of cities and towns and allied nonprofits has proposed amendments to the state’s Community Preservation Act, i.e.  Mass. G. L. c.44B, which was enacted by Chapter 267 of the Acts of 2000. (CPA)  The central purpose of the CPA was to provide dedicated funding for local historic preservation and the acquisition of open space and affordable housing.  Under current law participating cities and towns have to approve a surcharge on real property of not more than 3 per cent of the real estate tax levy against real property in a town, with certain exceptions.  Once adopted at the local level, a community can then access matching funds from the state through the CPA trust fund.  The money in this trust fund comes from all CPA recording fee surcharges – generally $20 per instrument – that are collected at all registries of deeds. 

When the CPA was first adopted in 2000, the state match was 100%.  With 147 cities and towns now participating, and the severe decline in real estate transactions – and recording fees, the projected state match for October 2011 has been projected to be only 25%.  The coalition’s current legislation (S.1841, H.765) proposes two solutions to increase CPA funding: an annual adjustment by the Commissioner of Revenue to the CPA recording fee surcharge from $20 per instrument to a maximum of $50; and local options to include other revenue in the local CPA fund, i.e. hotel/motel excise taxes, local meals tax, linkage fees, tax title revenue, and other such funds. With the increase in recording fees, the coalition says that this new revenue would underwrite a guaranteed 75% state match of funds for participating communities.

REBA has not favored the dedication of recording fees, i.e. user fees, to non-registry purposes.  When the CPA was passed in 2000, the seed money for CPA purposes through a small recording fee surcharge represented the best among several bad options.  Perhaps the legislature felt that Registry consumers might not complain about such charges on a HUD-1.  However, when only a few towns adopted the CPA, the result was that the state matching money was benefiting only those few communities.  As we suspected, the dramatic downturn in real estate transactions highlighted a somewhat dubious policy of relying on an unpredictable, indeed unstable, funding source for community preservation.  Undaunted, for several years the Coalition for Community Preservation filed legislation to authorize a CPA surcharge of up to $70 per instrument, even while the voters in many towns were voting down local adoption of the CPA.    

The tide started to turn, when municipal revenues were further strained by other priorities and CPA proponents organized more effectively.  In addition, the legislature passed amendments to the CPA to make it easier to use local revenue for popular local projects like preserving town archives or funding affordable housing trusts. Although 147 cities and towns have now adopted the CPA, it has been less popular in cities, in part because they don't have open space to preserve, and because mayors have been reluctant to raise real estate taxes.  A decision by the Supreme Judicial Court in Seidman v. City of Newton, 452 Mass 472 (2008) meant that communities could not use CPA funds to restore deteriorated parks and recreational fields, unless they were first acquired with CPA money.  The coalition bill would address this limitation and allow the use of CPA funds for recreational uses on existing fields and parks.  To make the CPA more attractive to cities, the new bill would permit local option on other funding sources, authorize the adoption of a commercial property tax exemption (similar to the residential one already in the statute), and allow broader use of funds to support community housing through homeowner assistance programs and the like.

 Lead sponsors of the coalition legislation (S.1841, H.765) are Senator Cynthia Stone Creem (D-Newton) and Representative Stephen Kulik (D-Worthington).  Co-sponsors include 114 other legislators, representing 58% of the combined memberships of the House and Senate – an impressive total.  The legislation has been recommended by the Joint Committee on Community Development and Small Business and is now before House Ways and Means. 

-Edward J Smith, REBA legislative counsel

Friday, July 8, 2011


In 2006 the Massachusetts Department of Revenue commented on gifts received from developers in a publication called “City and Town”. “Mitigation payments, infrastructure charges or other extractions made by a private in connection with a regulatory activity” are not considered “gifts” by the DOR and the funds must be deposited into the municipality’s general fund and can only be spend when authorized by appropriation in accordance with MGL Chapter 4, Section 53. In a Town, mitigation payments can only be spent for a specific purpose if authorized by Town Meeting. There is further comment in the following 2010 memo from DOR

- Paul F. Alphen, ESQ.

Wednesday, June 15, 2011


This week we came across a title where an improved lot in a Massachusetts city changed hands a half dozen times although the property was subject to a mortgage. The various deeds contained errors that would suggest that they were not prepared by attorneys, nor were title examinations performed. The outstanding mortgage was granted by a prior owner to a strangely described mortgagee. The names have been changed to protect the innocent, but it reads: “…grants to Jose Important, Trustee of Happy Financial Credit Counseling, Inc (By its actual President Billy McGee) of 100 Main Street, Big City, [wrong county], Massachusetts.”
There is no record of the corporation. There is no such party at that address. There are no other documents at the registry of deeds to or from similar names. Google tells us that Billy McGee is an alias for Jose Important, but short of hiring a private investigator, we have found neither of them.
The date of execution of the mortgage is 4 months prior to the date of the acknowledgement, and the mortgage was recorded 10 months after that.
We have requested that Seller’s counsel find the mortgagee and obtain a discharge. We have to give some thought to the form of the discharge because of the contradictory terms used in the name of the mortgagee, including a non-existent corporation and a vague reference to a trust. We have concluded that problems like this arise when people try to save a few dollars in attorney’s fees.

Wednesday, May 25, 2011

Chapter 61 Continues to Befuddle Some

Chapters 61, 61A and 61B seem to create more than their fair share of confusion. On multiple occasions I have seen Seller’s Counsel (and believe it or not, Town Counsel) err in the manner in which land classified under one of the Chapters is removed from such designations. The statutes were modified in 2008 with the goal of clarifying the process wherein a city or town is granted a right of first refusal to purchase land classified under the statutes. From a title perspective it is imperative that the parties properly document the process and record the necessary affidavits and documents. If you were to write an article on the process for removing property from Chapter 61B, for example, you would simply cut and paste the provisions of Section 9. The statute does a good job of spelling out the steps. A recent Land Court decision clarified the fact that the sale of land classified under one of the Chapters with no intent to change the use of the land from recreational use, would not trigger the Town’s option to purchase the land.  In Town of Wayland v Dean Crescitelli and Eleanor A. Blaqure, No. 08 MISC 380131(CWT), decided April 5, 2011, Judge Trombly found that the buyer of land classified under Chapter 61B “did not have intent to convert the use of the residentially assessed portion of his locus to a residential, commercial or industrial use” and reiterated  that “If the buyer's intent is not disclosed before the sale of subject land, the buyer's ‘intent will become evident soon after the sale when the [buyer] begins a process of conversion.’” citing Sudbury v. Scott, 439 Mass. 288, 299 (2003) (interpreting an analogous statute G.L. c. 61A, § 14). Judge Trombly also reminded us that “The discontinuance of forest certification shall not, in itself, for the purposes of [G.L. c. 61A, § 9], be considered a conversion.” In the earlier Sudbury v Scott case, the SJC warned that “… there may be instances where the new owner will continue the agricultural use for a brief period after sale to conceal his true purpose, with the intent to defeat the town's right of first refusal. A town that can establish such intent as of the date of sale, and a failure to give notice, is entitled to specific performance of its option to purchase.” Town of Sudbury v. Scott, 439 Mass. 288, 299, 787 N.E.2d 536, 544 (2003).
It will be interesting to watch the subject land to see if a new use is now proposed for the land whereas a town’s option to purchase is valid only while the land is classified under the statute and for one year thereafter, and the parties removed the land from such classification in 2007 when the battle with the Town began. Perhaps the one defect in the law is that a landowner can remove land from Chapter 61B and one year later chose to change the use of the property to another use and by-pass the option to purchase process, unless the city or town can prove in court that the landowner had the intent to convert the land at the time the property was declassified.


How many times have we heard that to stay current, we have to engage in social media? We have read concerns about young lawyers crossing the permissible boundaries of solicitation on their Facebook pages, but we have been told that having a web site is useless unless we also use other forms of social media. Having read that 72 year old U.S. Supreme Court Justice Breyer is on “the Facebook” and on “the Twitter”, was the straw that broke the camel’s back. REBA now has a Facebook page and we are now blogging. I was asked to initiate the REBA blog conversation because it is apparent that my REBA News articles are nothing but long-winded blogs (ok, you caught me).
I also have to thank Richard Vetstein, James Sifflard and George Warshaw, who were speakers at the 13th Annual MCLE Real Estate Law Conference. They emphasized the importance of remaining current with communication technology. I told my 20 something sons that I now have a Facebook page and I will be blogging. Their responses via text message: “HA HA HA. Why is my father on Facebook?” Well, it appears that the younger generation checks their favorite blogs and websites each morning the same way that we old people read the newspaper each morning. Blogs can be useful to keep the real estate community current on changes in the law and emerging issues, but it can also be a form of therapy. The therapeutic value can come from sharing experiences that arise in our practices. I am reminded of that regularly when gentle readers connect with something I have written in REBA News. I recently wrote a rant about some of the mean spirited blogging that can crop up around applications pending before a Planning Board. I called it a form of adult bullying when anonymous malcontents spread lies about a proposed project. I heard from a town planner who said the article was being circulated among local officials who have been frustrated by the recent increase in adult bullying; but they were relieved to read that other towns were also having similar experiences.
So, here we go. Our 150 year old institution is staying forever young.