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/