THE COST OF LEGAL COUNSEL

On the front page of the November 26, 2012 edition of Massachusetts Lawyers Weekly appears an article about a derivative suit brought against a large law firm for racking up $1.2 million in legal fees regarding a contemplative possible sale of a company; and it did not sound as if there was a buyer in sight. The legal fees were accumulated by 34 lawyers billing at rates of up to $825.00 an hour.

I have heard leadership of state wide bar associations express concern about the growing number of people who are representing themselves pro se in litigation, or are turning to the omnipotent internet for legal advice. Perhaps the fear of $825.00 per hour legal bills are scaring people away from seeking legal advice.  I decided to perform an informal investigation.  Lawyers.com says that “In rural areas and small towns, lawyers tend to charge less, and fees in the range of $100 to $200 an hour for an experienced attorney are probably the norm. In major metropolitan areas, the norm is probably closer to $200 to $400 an hour.”  An article in The Wall Street Journal in 2011 that said that “A few pioneers had raised their fees to more than $1,000 an hour about five years ago, at the peak of the economic boom. But after the recession hit, many of the rest of the industry's elite were hesitant, until recently, to charge more than $990 an hour.” I also found the United States Consumer Law Attorney Fee Survey Report 2010-2011 published by an Ohio law firm that concluded that on average small firm attorneys in the northeast charge $285.00 an hour and large firms on average charge $382.00 an hour.

I then signed on to a well known web site that prepares legal documents. I tried to have a deed prepared and I learned that the base price was $249.00 plus shipping and the deed would be ready in 5 to 7 business days. Most firms around here do not charge much more than $249.00 for a deed and would have it ready the same day or the next day. To the credit of the web site, when I selected that I wanted a deed prepared for the conveyance of land to a third party for monetary consideration I was informed that they could not produce the document and that I will have to consult with an attorney.  I then shifted gears and ordered a very simple will without real estate, without trusts and without specific bequeaths. The charge with shipping was $71.00 and it arrived within a week. It appears to create a valid Massachusetts self-proving will if properly executed before two disinterested witnesses and a notary, but it has raised my intellectual curiosity on how the preparation of a will by a non-attorney corporation is not the unauthorized practice of law. I am sure that some brilliant people have already solved that problem; but I also incorrectly made that assumption when I heard Boston radio stations a few years ago broadcasting advertisements for off-shore sports gambling.

 

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

 

http://www.lawbas.com

SJC REVERSES APPEALS COURT CONNECTION FEE DECISION

In October 2011 in a blog post I referred to the Appeals Court decision in Denver Street, LLC v. Town of Saugus, 78 MassAppCt 526 (2011) wherein the Court found a sewer connection fee was an illegal tax. The SJC has now reversed the decision. The town was under an Administrative Consent Order (“ACO”) from DEP to repair leaks in the sewer system. The ACO allowed the town to add one gallon of new flow for every 10 gallons of inflow and infiltration (“I/O”) corrected. The town required new developers, who did not wish to wait unit the I/O was corrected and the sewer connection moratorium to be lifted, to pay a charge multiplied by a factor of 10 for each gallon of new sewerage proposed to be added to the system. The SJC found the requirement to be reasonable because the fee required was directly related to the requirements of the ACO. There is interesting commentary regarding the case in the September 12^th edition of Massachusetts Lawyers Weekly. Attorney Donald Pinto (who was not involved in the case) commented that he sees the decision as “good news for municipalities that are operating deficient sewer systems under ACOs with DEP, and bad news for developers.” Counsel for the Town of Saugus, Ira H. Zaleznik, disagreed and is quoted as saying “There is a difference between a community trying to renovate or rehabilitate a sewer system on the backs of new users from this kind of case.” The decision contains more guidance regarding the acceptable standards for connection fees.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

FOREST, AGRICULTURAL AND RECREATIONAL LIENS REQUIRE THE RECORDING OF POTENTIALLY FOUR DOCUMENTS TO CLEAR TITLE.

Thank you to Scott Pittman and Michael Pill for a thoughtful article about dealing with MGL Chapter 61,  61A and 61B liens at closings.  The article appears in the June 25^th edition of Lawyer’s Weekly. They conclude that absent a REBA Title Standard, a Massachusetts Department of Revenue Form CL-6 and Form CL-9 must be obtained and recorded to effectively release the lien. Their article appears, partially, to be a plea to the REBA Title Standards Committee to consider a Title Standard to allow the recording of either form to release the lien.

Their article goes on to reference the municipal right of first refusal that arises upon the sale of land for, or conversion to residential, commercial or industrial use. But the article does not say that in order to clear the title to land which is subject  to a Chapter 61, 61A or 61B lien that one or more affidavits must also be recorded. For example, MGL Chapter 61A, Section 14 (which was materially revised in 2008) describes in detail the steps that must be taken in the event a party wishes to convert their land, which includes providing a detailed notice of intent to sell or convert. The statute anticipates that the landowner will then record an affidavit that the proper notice was given: 

“A notarized affidavit that the landowner has mailed or delivered a notice of intent to sell or convert shall be conclusive evidence that the landowner has mailed the notice in the manner and at the time specified. Each affidavit shall have attached to it a copy of the notice of intent to which it relates.” Mass. Gen. Laws Ann. ch. 61A, § 14 (West)

After the notice is provided, the land may be conveyed if a notice of non-exercise is recorded or 120 days passes without recording a notice of exercise or a notice of assignment.

“No sale or conversion of the land shall be consummated until the option period has expired or the notice of nonexercise has been recorded with the registry of deeds, and no sale of the land shall be consummated if the terms of the sale differ in any material way from the terms of the purchase and sale agreement which accompanied the bona fide offer to purchase as described in the notice of intent to sell except as provided in this section.” Mass. Gen. Laws Ann. ch. 61A, § 14 (West)

“Failure to record either the notice of exercise or the notice of assignment within the 120 day period shall be conclusive evidence that the city or town has not exercised its option.” Mass. Gen. Laws Ann. ch. 61A, § 14 (West)

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

PAROCHIAL (AND ARBITRARY) DECISION MAKING OCCURS OUTSIDE THE LEAFY SUBURBS.

Land use practitioners will enjoy reading Chief Justice Scheier’s recent decision in MLM Realty Trust v. Moroney, et al (2012WL1392976) April 18, 2012. It appears as if a group of neighbors in Somerville opposed the division of a parcel of land into two conforming lots and the construction of a by-right-use three family residence on one of the lots. After nine months of hearings, numerous reports from staff and consultants, and an opinion from the Assistant City Solicitor, the Planning Board emerged from a curious executive session and voted to deny the application.  Justice Scheier found: “In its decision, the PB articulated two ‘intractable’ problems—traffic and the impact of the three-unit residential structure on the historical features of Locus and the surrounding neighborhood. The traffic concerns are not supported in any way in the summary judgment record, which establishes that the traffic impacts of the proposed new lot and use will be negligible. Even read generously, the PB's decision simply expresses the view that the fact that Lot 2 will no longer be a vacant lot is per se the intractable problem that can have ‘no reasonable solution.’ ... The PB's reasoning, adopted by the ZBA, misconstrues site plan case law and overreaches the authority of the boards under the Zoning Act and the case law interpreting the Zoning Act, all of which applies to Somerville, notwithstanding the fact that the City is not subject to the provisions of the SCL.”

Because there was no evidence that the proposal would create a traffic problem, the Court determined that the PB’s finding with respect to traffic “were an error as a matter of law”. And, any concerns regarding the historical character of the property could have been addressed by the imposition of conditions of approval.

In reaching the decision, Justice Scheier, provided a handy summary of the criteria applicable to Site Plan Approval, as follows:

 “In reviewing an application for site plan approval that concerns an as-of-right use, the scope of the board's review is narrow. Wolcott–Marshall, Inc. v. Town of Rutland, 7 LCR 119, 121 (1999) (citing Prudential Ins. Co. v. Bd. of Appeals of Westwood, 23 Mass.App.Ct. 278, 281–82 (1986)). If the proposal meets all applicable zoning ordinances or by-laws, the board must approve the site plan application, but can impose reasonable terms and conditions on the proposed use. Prudential Ins. Co., 23 Mass.App.Ct. at 281–82 (quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass.App.Ct. 101, 105 n. 12 (1984)); see also Castle Hill Apartments Ltd. P'ship v. Planning Bd. of Holyoke, 65 Mass.App.Ct. 840, 841 (2006) (‘The use being one permitted as of right in the relevant zoning district, the board was limited to imposing reasonable conditions on the use.’); Quincy v. Planning Bd. of Tewksbury, 39 Mass.App.Ct. 17, 21–22 (1995) (‘[W]here the proposed use is one permitted by right the planning board may only apply substantive criteria consistent with Prudential Ins. Co. of America v. Board of Appeals of Westwood, ... (i.e., it may impose reasonable terms and conditions on the proposed use, but it does not have discretionary power to deny the use).’). Only if the ‘problem [cited by the board] was so intractable that it could admit of no reasonable solution’ is the board allowed to deny a site plan application. Prudential Ins. Co., 23 Mass.App.Ct. at 283.”

It is unfortunate if the PB caved to pressures from the neighborhood and chose to disregard the advice of counsel and disregard the recommendations from City staff. The applicant had to incur legal fees and spend about nineteen months in Land Court, after nine months of hearings before the PB and a trip to the ZBA. This is not a good example of how Massachusetts is supposedly a good place to do business, but it is interesting to see that parochial decision making by municipal boards is not confined to the leafy suburbs.

 PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com
http://www.lawbas.com

NEIGHBORLY ACCOMMODATION PREVENTS THE CREATION OF A PRESCRIPTIVE EASEMENT

Among the recent real estate cases reported in Lawyers Weekly were a few where the Plaintiffs apparently forgot to bring any evidence to support their claims. But there was also a recent Land Court decision where the Plaintiff brought enough witnesses for a two day trial, but the evidence was insufficient.  In Sprocket Realty, LLC v Wendy’s International, LLC and others, 2012 WL 1026031, an abutter to a proposed Wendy’s restaurant filed an appeal of a Special Permit granted by the Agawam Zoning Board. The Plaintiff brought 12 witnesses. The Defendants brought zero; and won the case. The Plaintiff’s appeal was based on its claim that it had prescriptive rights of access and parking over a portion of the abutting parcel. The court said that “An easement by prescription over land of another requires a use that is open, notorious, continuous and adverse for twenty years” citing Ryan v. Stavros, 348 Mass. 251, 263 (1964); Labounty v. Vickers, 352 Mass. 337 (1967) and pointed out that is not necessary to prove that the use has been exclusive.

The Plaintiff failed to prove that the access across the abutting lot was continual for a period of twenty years. Even the evidence of parking by customers and employees of the Plaintiff was insufficient to prove that a prescriptive easement was created. The court concluded: “Here, neighborly accommodation was consistent with the relationship between the owners of the abutting properties. Such accommodation was reasonable given the fact that the two properties were largely connected by pavement from at least 1974 or 1975 to 2010, allowing customers to patronize more than one business without moving their vehicles, and that employees of the two major commercial entities (the Pharmacy and the Bank) frequented each other's businesses. The testimony of witnesses proferred by both parties supports an inference that, to the extent the owners of the Coyote Parcel knew or should have known of parking on their land by Pharmacy customers or employees (who were not also frequenting a business on the Coyote Parcel), it was mutually understood by the abutting landowners that such parking was permissive and not adverse.”

 I liked the “neighborly accommodation” finding to support the conclusion that the use of the abutter’s property was permissive and not adverse.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com
http://www.lawbas.com

WATCH OUT FOR “NO FURTHER DEVELOPMENT” CONDITIONS

Another lesson arises from the recent Superior Court decision of Vaillancourt v Grey Wolf Realty, LLC, 2012 WL 1370997.  In 1985 the Tyngsborough Planning Board approved a special permit for a PUD with a condition that no future development shall be allowed on the site which would increase density or the number of occupants. In 1987 the land was rezoned to R-1 and the PUD zoning by-law was rescinded. From 1993 to 2006 numerous permits were granted for additional buildings without challenge. In 2006 Town Meeting voted to change the zoning for the property and voted to issue preliminary approval of a new multi-family development plan. The land owner applied for a special permit for the multifamily development including a request that the no-further-development condition be removed. The special permit was constructively approved “as a result of a lack of clerical help”. A resident of one of the condominium units constructed within the original PUD filed a timely appeal of the constructive approval.

Yet another great true-life story that only a land use attorney can truly appreciate. Imagine the frustration of those who were directly involved: they have a great story to tell, but no audience, whereas no sane person is going to take the time to listen to the crazy esoteric details of conditional approvals and constructive approvals, etc. This is why it is better to be a criminal attorney.

The Court referred to Mark Bobrowski’s book and Barlow v. Planning Bd or Wayland, 64 Mass App Ct 314, 319 (2005) to support the proposition that Planning Boards can amend a previously granted special permit. The Court looked at the history of the property, including the Town Meeting votes to change the zoning and to support the preliminary plan, as evidence of significantly changed circumstances that would justify the Planning Board to approve a modification to the special permit, and affirmed the constructive approval. 

The moral of the story: When we submit special permit applications not only do we have to propose language regarding the standard to be used to demonstrate that the permit has been properly “exercised” pursuant to the Lobisser v Bellingham decision, we also have to be alert to conditions that should no longer apply if the land is subsequently rezoned or the special permit is otherwise unnecessary. 

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

http://www.lawbas.com

PLANNING BOARDS CANNOT DENY SUBDIVISIONS BASED ON THEIR “FEELINGS”

The Land Court continues to provide a source of light and hope in a sometimes dreary real estate market. In Tirone Dev. Corp. v. Ward, 11MISC444552AHS, 2012 WL 695722 (Mass. Land Ct. Mar. 2, 2012),  the Agawam Planning Board denied a four (4) lot subdivision plan on the following grounds:

“ i) impact of seasonal high water table on future stability of the road surface

ii) construction concerns (air pollution caused by dust, exhaust, noise, structural damage)

iii) density concerns that conformance with drainage plans will be compromised

iv) drainage concerns post-construction

v) density concerns that substandard existing sewer may get worse

vi) speculation about continuous enforcement problems for Town of Agawam relative to landscaped strips

vii) inadequacy of Homeowners Association Agreement

viii) subdivision will degrade the neighborhood, and ‘In addition, the Board is of the opinion that the subdivision does not satisfy the Agawam Subdivision Rules and Regulations.’”

Judge Sands wrote: “To be sure, a planning board has the authority to regulate sewage, drainage, roads, and similar municipal concerns relating to a subdivision plan. In the Rules and Regulations there are detailed requirements for sewers, drainage, and roads which Defendant has the authority to strictly apply to the Plan. However, Defendant's ‘feelings’ that it will be difficult to maintain adequate grading over the years, and its ‘concern’ that adjacent properties ‘may’ receive more drainage, are not sufficient reasons grounded in the Rules and Regulations, because the Rules and Regulation are properly ‘comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required and what standards or procedures will be applied to them.’” Citing Castle Estates, Inc. v. Park and Planning Bd. of Medfield, 344 Mass. 329, 334 (1962).

The Court also found that the Board’s conclusion that the subdivision will degrade the neighborhood, without any reference to related criteria in the Subdivision Rules and Regulations, was erroneous, as was their conclusion that the Homeowner’s Association Agreement was inadequate, without providing further specifics.

The matter was remanded back the Planning Board, and the Plaintiff was given an opportunity to amend its plans. The process stated in 2009 with the submission of a Preliminary Plan. The Definitive Plan was denied in December of 2010 and an appeal was filed on January 14, 2011.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com http://www.lawbas.com

NO MORE MR. NICE GUY (OR GAL); APPEAL TO THE ZBA FIRST, ASK QUESTIONS LATER

Massachusetts Lawyers Weekly recently reported on Purcell v. Sherrill, et al within which the Essex Superior Court made it painfully clear that the thirty (30) day period described within M.G.L. c. 40A, § 15 for filing an appeal of the issuance of a building permit is a hard and fast time limit. The Court was not moved by the Plaintiff’s attempt to first informally persuade the Building Commissioner that the building permit was issued in error.  As practitioners commonly have done (but never again), the Plaintiff filed a G.L. c. 40A, § 7  request for enforcement after learning of the grant of the building permit, believing that he had 30 days after receiving a response from the Building Commissioner within which to file an administrative appeal with the Board of Appeals.  The Court referred to Connors v. Annino, 460 Mass. 790, 955 NE2d 905 (2011) within which the SJC considered the case of a party that had taken a similar route and filed his appeal after pursuing a Section 7 request for enforcement. The SJC stated: “… G.L. c. 40A, § 15 (§ 15), prescribes the time in which the administrative appeals described in § 8 must be taken. Specifically, § 15 provides that ‘[a]ny appeal under [§ 8] to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.’ With respect to an appeal from an ‘inability to obtain [a § 7] enforcement action’ the date from which the thirty-day period for appeal is measured is the date of the written response of the municipal building official to the aggrieved person's request for enforcement. With respect to a building permit, the date of its issuance is considered ‘the date of the order or decision.’ Id. at § 15. For purposes of § 8, the issuance of a building permit qualifies as an ‘order or decision of the inspector of buildings, or other administrative official,’ see Gallivan, 71 Mass.App.Ct. at 854, 887 N.E.2d 1087, and therefore any appeal to the permit granting authority under § 8 must be brought within thirty days after the permit has issued. See Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass.App.Ct. 424, 427, 771 N.E.2d 199 (2002).”

The SJC left the door open for appeals beyond the 30 day window, but within 30 days after seeking a request for an enforcement action, if the appellant did not have adequate notice of the order being challenged or when an abutter proceeds to construct something without a building permit.

The bottom line: no more Mr. Nice Guy. When you get a call of an alleged zoning violation, file an immediate appeal to the Board of Appeals. Do not try friendly persuasion. I wonder what will happen in those towns that do not allow you to file an application with the ZBA until you have first obtained an abutters’ list, and the clock will run out if you wait for the list.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com

www.lawbas.com/

THIS HAS NOTHING TO DO WITH REAL ESTATE LAW

This has nothing to do with Real Estate Law, but the news stories of people buying fraudulent Superbowl tickets reminded me of this story. Its remotely related to law. My “friend” Peter (not his real name) and a bud happened to be in NYC the same weekend that the Celtics were playing the Knicks in the playoffs. On the internet, Tickets were going for 3 times face value. Peter does not usually take chances and although he had attended thousands of sporting events, he rarely buys tickets from scalpers. Peter made friends with Knicks fans and asked to see their tickets. Peter became familiar with the appearance and feel of genuine season tickets and genuine individual Ticketmaster tickets for the event. Peter made various inquiries with the nice scalpers in the general vicinity of Madison Square Garden and declined to purchase various counterfeit tickets. He was then offered 2 genuine season ticket style tickets for the game at a reasonable price. He examined the tickets and determined they were genuine, but in his excitement he did not have the scalper accompany him inside the lobby of MSG and take them to the “scanner” window to verify that the tickets were genuine. It turns out the tickets were genuine, but the ticket owner had previously sold them back to Ticketmaster via the TicketExchange program for resale (at a nice profit), and TicketMaster was able to electronically make the bar code on the tickets invalid.  Peter had a great time in NYC anyway and watched the game in a nearby establishment dressed in Celtic green, but he has learned a valuable lesson: If genuine tickets can be electronically rendered useless, do not buy tickets from scalpers unless (a) they are one of the guys who have been standing on the corner of Canal St and Causeway for the past 8 years or (b) the seller is willing to accompany you to a verification station.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.

paul@lawbas.com http://www.lawbas.com/

A WARNING ABOUT THE 60 DAY CERTIORARI STATUTE OF LIMITATIONS

Thanks to Luke Legere for his article in the January 2012 issue of REBA News. It brings attention to the Appeals Court decision of Carney v Town of Framingham, 79 Mass App. Ct. 1129, review denied, 460 Mass 1111 (2011). He states that “The date of issuance of the enforcement order is irrelevant for determining the deadline for filing a certiorari appeal. The 60-day period to file a petition for certiorari review will begin running the day the vote is taken to issue the enforcement order.” He also says that the Court left open the possibility that the clock started to run at the date of their first enforcement order months earlier and it was not further extended by a later action to amend the order. This could spell trouble in situations when a board fails to issue a speedy notice of their decision…or when a client does not immediately recognize the importance of a notice and bring it to counsel’s attention. I wonder what happens in situations when a Town sends no notice of its action.  Perhaps we have to monitor every board meeting.  The article is also a good illustration of the value of REBA News (as opposed to many of the curmudgeon conveyancer rants authored by yours truly). 

PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com http://www.lawbas.com/

THE WHEELS OF JUSTICE TURN SLOWLY

Perhaps from time to time you have read about the ongoing saga of the lot at 74 Bubier Road in Marblehead, created by defendant Wayne Johnson in 1994. Mr. Johnson build a house on a non building lot, despite warnings from the Land Court that he proceeded at his peril. By Judgment dated May 10, 2000, the house was ordered removed.  The latest decision in a case that has gone on for sixteen (16) years appears in Schey v. Johnson No. 95 MISC. 221634(KCL) [2011 WL 5625751] decided by Judge Long on November 18, 2011.  Judge Long wrote: “Sixteen years after filing, eleven years after entry of judgment, five years after that judgment was affirmed, and after all other possibilities to change the demolition and removal order have been attempted and rejected, this case has reached an endpoint. In accordance with that judgment and this court's order dated August 2, 2010, the house at 74 Bubier Road must be demolished and removed, immediately. If Mr. Johnson has not entered into a contract by December 16, 2011 for the prompt demolition and removal of the house and foundation and the re-grading of the lot, he shall be held in contempt of this court, to be enforced by all appropriate remedies. See, e.g., Furtado v. Furtado, 380 Mass. 137, 144 (1980); Barreda v. Barreda, 16 Mass.App.Ct. 918, 920–21 (1983). A copy of that contract must be filed with the court and served on counsel by no later than December 19, 2011. If, for whatever reason, Mr. Johnson fails to comply with this order, the Scheys may themselves proceed to have the house demolished and removed and seek appropriate orders from this court for reimbursement of all associated costs.”

According to a newspaper report, the parties reached an agreement last month that the house would be demolished by February 17, 2012. According to a newspaper report from earlier last year, Johnson spent more on legal fees than the original $425,000.00 spent to build the house.

There are probably a few lessons to be learned from the entire story, but one lesson is for sure: The wheels of justice turn slowly.

PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.
paul@lawbas.com http://www.lawbas.com/