My cousin Vinnie, the suburban
real estate attorney, and I, recently met in the North End before a Celtics
game. It was great to see him
Vinnie swirled his bread around
the residual red sauce in his plate previously filled with chicken cacciatore,
as he shifted the conversation to his small practice. “Paulie”, he said with a mouth filled with
bread soaked in sauce, “I have a new client who has been in a years-long battle
with a local building commissioner who claims that the use of his property for
an auto repair shop and selling used cars is unlawful. The commissioner is
correct that the uses are not allowed in the zoning district. My client provided
me with a 6 inch high pile of correspondence between he and the town, peppered
with correspondence from his former attorney. It seems his former attorney
specialized in criminal law (when not working on his part-time thespian career).
He penned a series of inflammatory demand letters to the town manager, the
building commissioner and the town planner asserting all sorts of mischief
including violations of his client’s civil rights, unequal treatment under the
law, injustices and shenanigans. It came as no surprise to me that the matter
was not resolved and the town was turning up the heat on the landowner.”
I think Vinnie is hilarious, but
I interrupted him “That sounds like trying to deal with the medical profession.
If you ask for a diagnosis from a surgeon, don’t be surprised if the surgeon
recommends surgery, even if you don’t need it!” Vinnie replied “Right;
sometimes you just need the right physical therapist.”
Vinnie went on. “I went through
the client’s pile of paperwork. Something in the pile suggested that the
property had been used for auto repair for decades. I checked the Assessors’ property
record cards and flipped through the old files in the Building Department. I found a history of Class II Used Car
Dealer’s licenses in the Selectmen’s records, as the December meeting minutes
always list the annual license renewals. I checked the registry of deeds and identified
the names of the various owners of the property over the years and found that
they were in the auto repair business from their corporate purpose statements
on file with the Secretary of State. I then went back to town hall to wade through
copies of the zoning bylaw from the past 30 years to determine when the uses
became unlawful in the zoning district. Turns out the uses are protected as lawfully
pre-existing nonconforming uses. I
bundled together my evidence and had a cup of coffee with the building
commissioner and the town planner. Case closed.”
I was nodding my head in the
affirmative throughout his story. His approach was spot on, and second nature
for a land use guy. Vinnie concluded by
saying: “Like most of our brethren, I like to think that I am pretty good at ‘issue
identification’ and I try to send prospective clients in the right direction. I
find that even when I turn people away and recommend that they see another
specialist, it is not uncommon to hear from them again in the future when they
are dealing with a real estate issue; which is one of the benefits of
practicing for a long time. I wish all physicians were better at issue
identification.”
I couldn’t agree with him more.
A former REBA president, Paul Alphen currently serves on the
association’s executive committee and co-chairs the long-range planning
committee. He is also a member of the
Executive Committee of the Abstract Club. He is a partner in the Westford firm
of Alphen & Santos, P.C. and concentrates in residential and commercial
real estate development, land use regulation, administrative law, real estate
transactional practice and title examination .As entertaining as he finds the
practice of law, Paul enjoys numerous hobbies, including messing around with
his power boats and fulfilling his bucket list of visiting every Major League
ballpark. Paul can be contacted at
palphen@alphensantos.com.
