Blog Archive

Wednesday, August 26, 2015

APPEALS COURT DECISION EMPOWERS SPECIAL PERMIT GRANTING AUTHORITIES WITH THE ABILITY TO DENY PERMITS ON SUBJECTIVE GROUNDS

In 2007 the applicant/Plaintiff Buccaneer Development, Inc applied for a special permit to build a “retirement community,” the minimum requirements for which are set forth in § 9.6 of the Town of Lenox by-law. The proposed project satisfied all of the special provisions set forth in that section. And the Appeals Court agreed with the trial judge's conclusion that “the density of the proposed project is well within the requirements of Section 9.6,” and that the board had no basis to deny the special permit under the square footage, acreage, frontage, or setback provisions included in that section. Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *2 (Mass. App. Ct. Aug. 11, 2015)
Nevertheless, the Appeals Court on August 11, 2015 upheld the Land Court’s decision that the denial by the Lenox Zoning Board was erroneous.
The Appeals Court stated that the Board’s decision can only be disturbed if it was unreasonable, whimsical, capricious or arbitrary.
“However, ‘[e]ven if the record reveals that a desired special permit could lawfully be granted by the board because the applicant's evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit.’ Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 355, 754 N.E.2d 101 (2001). ‘[T]he decision of the board can only be disturbed ‘if it is based ‘on a legally untenable ground’ ... or is ‘unreasonable, whimsical, capricious or arbitrary.’  Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App.Ct. 483, 486, 395 N.E.2d 880 (1979), quoting from Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311 (1969).” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *2 (Mass. App. Ct. Aug. 11, 2015)
The Court determined that the denial based on broad subjective grounds was within the Board’s authority.

“Nonetheless, the three other criteria in § 6.1.1 of the by-law specifically require the board to consider more subjective factors and not to grant a special permit unless it finds that the proposed use ‘(a) [i]s ... in harmony with [the by-law's] general intent and purpose; (b) [i]s essential or desirable to the public conveniences or welfare at the proposed location; [and] (c) [w]ill not be detrimental to adjacent uses or to the established or future character of the neighborhood.’ The board's denial of the special permit was firmly grounded in its assessment that the proposed use failed to meet these criteria……’[P]articularly where the judge conducted a view,’ we are reluctant to disturb her findings. Bernier v. Fredette, 85 Mass.App.Ct. 265, 275, 8 N.E.3d 769 (2014).” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, No. 14-P-855, 2015 WL 4725043, at *3 (Mass. App. Ct. Aug. 11, 2015) 

The decision gives greater authority to special permit granting authorities to deny permits even when the applicant has met the objective requirements. Again, as usual, note that the process took over eight years to reach this point.

Paul F. Alphen, Esquire

Alphen & Santos, P.C.

Westford, MA

Tuesday, August 25, 2015

WARNING: RECENT AND NUMEROUS WIRE SCAMS ATTEMPTED IN LOCAL REAL ESTATE CLOSINGS


A local attorney informed me of a scam perpetrated on his firm involving a wire transfer. I shared the horrible story with a number of attorneys in the area, and I received numerous responses that similar scams had been attempted at their offices. Apparently this is big problem:
After a closing, the Settlement Agent received emails that appear to come from the Seller’s attorney and the Sellers asking that the proceeds be wired (with wiring instructions). In one case the Sellers had left the office with a check and the Settlement Agent received emails from the Seller and the Seller’s attorney that they had problems depositing the check and the check has been destroyed and requesting a wire.
The attorney was alert enough to call the Seller’s attorney by phone, only to learn that he never sent the emails and the proceeds check had been safely deposited. Apparently somebody had hacked the email account of one of the parties in the transaction. The email addresses being used to send the wiring instructions looked legitimate, but after closer inspection it appears that one letter was different; so that hackers are fairly sophisticated. 
Somehow the hacker knew the details of the closing, the names of the parties, the proceeds amount, etc. Very disturbing.
Some attorneys have said that they will only process wire transfers if they have an authorization letter signed in person by the Seller accompanied by written instructions, or similar safeguards.
Keep your eyes open and share this with your colleagues

Paul F. Alphen, Esquire

Alphen & Santos, P.C.

Westford, MA