My Cousin Vinnie is an Expert

Paul F. Alphen

My cousin Vinnie, the retiring suburban real estate attorney, was on the Cape for a family wedding, so we made a point of getting together at my place after

the festivities.  Vinnie had, perhaps, recently completed his final function as a practicing attorney, as an expert witness in a land use case. I took him for a boat ride around Waquoit Bay, to tear him away from my bourbon collection.

“Paulie”, Vinnie bellowed, “I was on the stand for the better part of four hours. I loved every second. You reach a point in your career when nobody can throw a fast ball past you.” I knew of which he spoke. We slowly dieseled past the oyster farms and I told Vinnie that we would sample some of the harvest upon our return to the dock. Vinnie continued, “I had to explain the differences between a pre-existing non-conforming use, and a pre-existing non-conforming structure. I explained how Chapter 40A Section 7 can treat unlawful structures in place for at least ten years as pre-existing non-conforming structures, but unlawful uses inside a structure are only protected if they were used in accordance with a building permit for over six years. I spent almost two hours explaining in the ins and outs of Chapter 40A Section 6, including how you can lose the protections of the first paragraph unless construction is commenced within twelve months, and construction is continued through to completion as continuously and expeditiously as is reasonable; plus the case law on what that all means.”

I spun up the turbochargers, and we flew across the Bay. Once we slowed down, I asked Vinnie if anyone else in the courtroom knew what he was talking about.  “Paulie, only Plaintiff’s counsel.  Defense counsel was as baffled as I am when I have conversation with a bankruptcy attorney. Of course, usually the bankruptcy attorney is attempting to make me feel like an idiot. On the stand, I try to be professorial, and I try to teach everyone in the room how zoning works. It was like trying to teach a stranger about rock and roll.  Defense counsel would ask me the same questions over and over again, as if he didn’t hear me the first four times!”

As I have written in the past, each time I read each new mindless John Grisham novel, I anxiously await for him to write something unflattering about a real estate attorney, as if real estate attorneys are not real lawyers, because they don’t spar with court clerks and judges. I would like to see Grisham explain one sentence out of Section 7 to the non-lawyer, volunteer members of the Podunk Zoning Board of Appeals.

Vinnie made a career out of it.

Paul Alphen is former REBA President and current Co-chair of the Association’s Long-term Planning Committee. He is also President of an obscure organization known as The Abstract Club.  On most summer days Paul Alphen can be found on his boat in Waqouit Bay.  His “My Cousin Vinnie” stories are a longstanding feature of REBA News.  Paul can be contacted at palphen@alphensantos.com. 

Land Court Decision Acknowledges the Vagaries of Municipal Permitting

 Paul F. Alphen

In a 2009 Appeals Court decision, Paul Cornell lost his rights under a dimensional variance because he failed to “exercise” his variance

within one year, although during that time period he had his land surveyed, obtained ANR endorsement, recorded the plan, engaged an engineer to prepare a septic plan and map wetlands, obtained a permit from the Board of Health and obtained an Order of Conditions. Unfortunately, for Mr. Cornell to run that gauntlet, it took 15 months, and the Dracut Building Commissioner denied his permit.  See Cornell v. Bd. of Appeals of Dracut, 72 Mass. App. Ct. 390, 391, 892 N.E.2d 746, 748 (2008), aff'd, 453 Mass. 888, 906 N.E.2d 334 (2009).

Land Court Associate Justice Kevin T. Smith reached a far less draconian conclusion in a Plymouth case involving Zoning Bylaw provisions containing time limits. In Rawinski, Tr. of Rawinski Fam. Realty Tr. v. Conner, No. 20 MISC 000333 (KTS), 2021 WL 3355484, (Mass. Land Ct. Aug. 3, 2021), an abutter tried to prevent her neighbor from rebuilding a pre-existing non-conforming waterfront cottage on Saquish Beach rendered inhabitable by a nor’easter in March of 2018.

One of the relevant provisions of the Zoning Bylaw states that: “[a] Pre-existing Nonconforming Use or Structure which has not been used for a period of two years shall lose its protected status and be subject to all provisions of this Bylaw.” The Plaintiff/abutter appealed the issuance of the building permit to reconstruct the dwelling which was issued two years and two months after the storm.

The Court described the many uses that the property owners had made of their land “in ways that are consistent with a residential use even though the cottage was rendered uninhabitable by the March 2018 storm”, including the cottage remained on the lot; the property owner promptly pursued the many necessary permits required for the demolition and replacement of the cottage and the septic system; the owners secured the damaged cottage by erecting a fence around it; they constructed a shed and a make-shift deck on which they placed a grill and folding chairs which the Plaintiff acknowledged in deposition that she observed in 2018, 2019, and 2020; and they undertook regular seasonal clean up of the property.

Judge Smith concluded that the uses of the property were consistent with residential uses, notwithstanding that the dwelling was uninhabitable.  The Judge refused to require that the cottage be “habitable” to maintain it zoning protection whereas the zoning bylaw did not use the word “habitable”.  And unlike the decision in Cornell, Judge Smith stated: “Moreover, the extended period of time between the March 2018 storm and the issuance of the building permit in question was due, at least in part, to the vagaries of the local permitting process which required multiple permits from multiple local boards before reconstruction of the cottage could commence.” Ibid at 8.

Inasmuch as two years is a relatively short time period accomplish everything that has to be done these days to draw plans, obtain permits, and contract for the reconstruction of a building, it was nice to see the Court take a practical approach to the situation.

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.

Expressio Unius est Exclusio Alterius

Paul F. Alphen

It appears that many of the recent Land Court and Appeals Court decisions pertain to attempts by landowners to create building lots

out of odd parcels with frontage along old rights of way or partially constructed ways. Perhaps the value of real estate is up?

One of the cases provides us with some education on how to interpret inconsistent terms within a zoning bylaw. It is not uncommon for bylaws out here in the suburbs to contain inconsistencies. Bylaw provisions are amended, added and subtracted from time to time by an ever-changing cast of characters, many of whom are volunteers. In Perry v. Zoning Bd. of Appeals of Hull, No. 20-P-334, 2021 WL 2932855 (Mass. App. Ct. July 13, 2021), the Defendant owned a parcel of land with frontage on a right of way in scenic Hull, Massachusetts. The bylaw defines “Lot Frontage” as “[t]hat part of a lot (a lot line) abutting on a street or way; except that the ends of incomplete streets, or streets without a turning circle, shall not be considered frontage....” 

The Defendant/landowner wanted to count the stub end of the dead-end right of way toward his frontage calculation. The next-door-neighbor Plaintiff claimed that the definition of “Lot Frontage” requires that the measurement exclude the end of an incomplete street. The Defendant asserted that the bylaw did not specifically express such a requirement for a “way” because the language of the bylaw only referred to “incomplete streets” and did not refer to incomplete ways.

 The Appeals Court agreed that the incomplete street exception did not apply to the right of way. The Court explained their reasoning as follows: “Regardless of whether the bylaw uses the terms interchangeably elsewhere, it was not unreasonable for the board to conclude that in this instance, the reference to only streets was intentional where both street and way had been used earlier in the same sentence. ‘It is a ‘maxim of statutory construction ... that a statutory expression of one thing is an implied exclusion of other things omitted from the statute.’’   [citations omitted] Although this maxim, commonly known as ‘expressio unius est exclusio alterius,’ must be applied with caution [citations omitted}, it has particular force where the excluded phrase was used elsewhere in the same provision. [citations omitted] (, [W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present’).” Perry v. Zoning Bd. of Appeals of Hull,

 I probably knew this maxim law school, but that was a long time ago, and I appreciate the refresher.

 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.

 

Real Estate Law Talk S1 E4: A Conversation with Boston Red Sox CEO Sam Kennedy (Podcast)

In lieu of a formal keynote address, REBA presents, A Conversation with Boston Red Sox CEO Sam Kennedy, at REBA’s Virtual Spring Conference.  The program will be in a Q & A format, moderated by REBA Board member Paul Alphen.

Vinnie hates remote board meetings!

 Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, called me today

and was hot under the collar. “The remote board meetings have to stop!” he bellowed. “We can’t get anything done trying to talk to each other using World War II Era walkie talkies; it’s like:

‘Our client’s land is not located in the wetlands resource area – OVER’

‘Your client’s land is in wetlands? -OVER’

‘NO, it is not in the buffer -OVER’

‘Which buffer? -OVER’”

I had to laugh, because he was right. Only one person can talk at a time, and depending on the quality of the connection and the cheap microphones people are using, it can be impossible to understand what is being said.

“Did you read that some neighbors in Sandwich are opposed to the delicious Tree House Brewery from going into the former location of the ‘Drunken Seal Tavern’ because they were disconnected from the remote connection at the liquor license hearing” asked Vinnie. “Yes, it’s a travesty” I replied.

Vinnie went on. “So much time and energy is wasted just trying to find ways to effectively communicate simple points. Trying to show a subdivision plan via a shared screen to a board member using a 19-inch laptop screen does not work. And it is impossible to engage in simple give-and-take conversation. Like I said, its like using a bad walkie talkie. At a live meeting I can get out of my chair, point to a location on the plan and look a board member in the eye and engage in a back-and-forth conversation until we both understand one another.”

Vinnie wasn’t finished. “In one recent meeting a neighbor conducted a 30-minute filibuster, and the chairperson didn’t feel comfortable cutting him off. But in Carlisle, they know how to hit the ‘mute’ button if someone goes on too long; they’ll just cut you off mid-sentence. And Paulie, this process must be torture for you because I have seen you in action as you raise your 245-pound mass out of your chair and approach a board table with an exhibit; the board members cannot ignore you!”

“Vinnie, I am embarrassed to say: you are correct, sir”  

“Contemplations, Ruminations and Musings of a Country Lawyer” is Paul Alphen’s regular column in REBA News.

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.

VINNIE ADMITS THAT HE DOESN’T CHARGE ENOUGH

 Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, got vaccinated and felt it was now safe enough for him to visit me in Falmouth and watch me replace some of the electronic equipment on my daughter-in-law’s boat. “Why don’t you pay somebody to do this? It can’t be comfortable scrunched down there inside the little center console messing around with all those wires.” I tried to explain to Vinnie that marine electronics is one of my hobbies, and I enjoy being scrunched up inside the center console, and its very expensive to engage a real boat electronics installer.

“How much could they charge?” Vinnie asked. I told him: “They start at $120.00 per hour, per person, and they usually use two people. They also charge for every rubber glove, rag, wire tie and connector.”

Vinnie couldn’t believe it. “$240.00 an hour!? I was charging $240.00 an hour in 2008! But I know I don’t charge enough. I had to retain counsel to help me with my mother’s estate, and it was not inexpensive. Then there was the time I had to retain a litigator for that frivolous little problem a few years back; and that cost me as much as a car! Why don’t real estate attorneys charge like other attorneys?”

At first, I thought he was asking a rhetorical question. After a few moments of silence, I realized he was looking for an answer. I gave him my opinion:

“It’s a tradition. Prior to one of the financial crisis of the 1990’s our good lender clients allowed us to charge $1,000 or more to be lender’s counsel. Then one day, the market died and the fees were cut to a flat fee of around $350 per closing. The fees have not risen considerably since then. We are afraid to raise our fees, because we think people will just take their business elsewhere. The general public is oblivious to the fact that title examinations have become very complicated. Most homes have been sold or refinanced numerous times in the past 20 years, resulting in piles of mortgage paperwork fraught with potential errors.  Lenders have come and gone, leaving a trail of mis-prepared or mis-indexed mortgages, assignments and discharges. These days we expect that every title will have a problem, and when we identify the problem, everyone expects us to solve the problem. For gratis.”

“Not to mention that in 1980 a subdivision approval consisted of a two-page decision. Today the decisions are 20 pages long and the records includes a few seven-page declaration documents, a homeowner’s trust and a bunch of easement agreements. Somebody has to read and understand all that stuff.”

Vinnie responded: “And there are still plenty of lawyers out there who prepare documents for less than the registry charges to record them.”

“Everyone wants to save money. I have no sympathy for the guy who bought the lot of land here in Falmouth through an online auction. He admitted that he had not used an attorney, even though, according to the case[i] the buyer owns 13 properties in 5 states. He bought the lot so that he could park some of his 7 vehicles on the lot so he could walk to the free bus that goes to the ferry terminal, and then take the ferry to his summer home on the Vineyard. After a two-year battle with the neighbors, the court determined that the lot was good for planting tomatoes, and not much else.”

“Awesome” said Vinnie. “I wouldn’t be surprised if his litigation expenses cost him more than he paid for the lot.”

[1] [Halewijn v. Hurrie, No. 18 MISC 000697 (RBF), 2020 WL 5094679, (Mass. Land Ct. Aug. 27, 2020), judgment entered,]

“Contemplations, Ruminations and Musings of a Country Lawyer” is Paul Alphen’s regular column in REBA News.

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.

 

My Summer Reading Included A Story of a Family and a Century in Their Summer Home on The Cape.

By Paul F. Alphen

“The definition of a proper Bostonian, it used to be said, was someone who lived on Beacon Hill and had an uncle in McLean” according to one the books I read on one of my summer

vacations: The Big House: A Century in the Life of an American Summer Home by George Howe Colt.

The book, as the title states, is the story of a big rambling wreck of a house on Wings Neck, in Bourne, owned and used by generations of relatives; starting with the author’s great grandfather who built the home when Cape Cod was mostly scrub pine. The author’s great grandfather generously shared the house with the ne’er-do-wells in the family. There was no shortage of Harvard educated hangers-on, none of whom appeared to own a hammer (or know how to use one). The author shares his family secrets (alcoholism and mental illnesses) and his own memories of spending summers in The Big House as the family prepares to sell it. As is often the case, subsequent generations did not have the will or the cash to maintain an expensive summer home. The on-line book reviews are blunt, as reviewers call the book dull, too long and uninteresting. One reviewer calls the whole Colt family “twits”.  Perhaps there was an overabundance of twits, whereas the extended family used the house all summer, every summer; but no one ever repaired the window sash ropes or broken burners on the stove, or apparently anything else in the Big House.

As other reviews have said, the book drags on with personal stories of the author’s first fishing trip, playing tennis against wealthy neighbors that owned real “tennis whites”, and weekend sailboat races in Herreshoff 12s  (a boat, the author claims, was first built at the urging of fellow Wing’s Neck neighbors). But I stuck with the book for two reasons: First, reading about the generations of Bostonians that returned to the Big House each summer was like watching a slow-motion train wreck, and it was hard to look away. Secondly, the book provides some historical insight into the origins of Cape Cod as a vacation destination. The author says “In 1849, the notion of voluntarily traveling to Cape Cod to see the ocean – without planning to fish, build a ship, go whaling, or scavenge a wreck – would not have occurred to anyone, except, perhaps [Henry David Thoreau]”. In the mid 1800’s, spending time at the sea shore was deemed to be medically therapeutic by wealthy city dwellers “longing to escape the oppressive heat, fetid air, and cholera- and yellow-fever-ridden congestion of the metropolis in summer.” 

In 1872, the Old Colony Railroad completed a rail extension to Woods Hole, making it easier for Bostonians to get to the Cape.  According to a Falmouth newspaper in 1873 “Negotiations for the sale of real estate near the shore are going rapidly and parties are realizing good prices”. Soon thereafter, summer colonies were created along the coastline. “A Boston family put up seven large summer homes on an old cabbage patch and called it Wild Harbor. A group of Brockton speculators carved a nameless ox pasture into five hundred small lots and called it New Silver Beach.” Numerous names of the original resort communities remain, even if the original resorts are long gone.

As someone who has studied the real estate landscape on the Cape for 30 years, the book added a degree of perspective into the original development of the Cape as a resort community, and into the people who were the original developers. They were not all twits, and they laid the groundwork for the Cape as it is today:  hundreds of neighborhoods with their own histories and personalities; and people with their own love affairs with the peculiarities of each of those neighborhoods.  

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.

My Cousin Vinnie is not Smarter Than a Neurosurgeon

Paul F. Alphen, Esq.

My Cousin Vinnie, the suburban real estate lawyer, joined the family on one of those video conference calls where everyone shows up in a “Hollywood Squares” box, but only one person can speak at a time. It had been quite a while since the family had spent much time with one another, and it was good to catch up.

Vinnie, it turns out, had experienced some serious back problems, which had prevented him from even working from home for over a week.

One of the down sides of Hollywood Squares meetings is that it is hard to cut someone off. Vinnie was very descriptive when explaining the pain and the medical processes. Vinnie said: “I did not get to see my orthopedic surgeon. He has not met patients in person for months. I spoke with him via a ‘Telehealth’ call. I thought it was odd not getting to meet with him, but apparently medical professionals recognize the serious risks of  Covid19  and they are doing everything they can to protect their staffs, their patients and themselves from infection.”

“When I went to get an MRI, I was the only patient in the facility at that time. I was referred to a neurosurgeon, who also did not want to meet me in person. I had a video call with the neurosurgeon, who reviewed the MRI with me and prescribed physical therapy. Even my follow- up visit in late June will be via ‘Telehealth’”. 

“Then it occurred to me. Why would I contemplate opening my office back up to the public?  If two of the most respected surgeons in Boston are not meeting with patients who are experiencing debilitating pain, why should we risk the health of our staff people and our respective families through meetings with strangers to discuss boundary line disputes?  I’m certainly not smarter than a neurosurgeon!  I immediately sent a memo to our staff people that the office door would remain locked, and we will continue to work from home with no more than two employees in the office at a time to go through the mail, and pay the bills.”

I had to agree with Vinnie on three points: First, none of us are smarter than a neurosurgeon. Secondly, if medical professionals are not meeting with patients, we also need to appreciate the health risks and continue to confer with clients remotely. Thirdly, with most everyone staying at home, boundary line disputes are becoming more commonplace.

Stay safe.

A former president of REBA, Paul currently serves on the association’s executive committee and co-chairs the long-range planning committee.  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

My Cousin Vinnie’s Observations During a Pandemic

Paul F. Alphen

My Cousin Vinnie, the suburban real estate attorney, has been going to his office (alone) everyday during the pandemic. He is

pleased that he is considered to be “essential”. He sent me an email with the following unrelated observations:

It has been more than delightful to hear from collegial friends like Ed Rainen, Karen Johnson and others with new client referrals during these dreary days.

Our home builder clients are essential businesses and they, and their brokers and crews, continue to put homeowners together with new homes. God bless them all.

Almost everybody has been patient and understanding with the complexities involved in providing services, and the precautions involved in performing closing transactions.

I am glad that REBA is keeping track of the emergency legislation and working on ways to keep business moving forward.

My reduction in income has been offset from savings from restaurants, sporting events and travel. I feel bad for my dry-cleaner.

I was surprised to find attorneys with fancy downtown addresses that needed more time to respond to my case citations in memorandums because their only access to legal research materials was within the now-closed courthouse law libraries. Huh?

Conference calls that should take 20 minutes take an hour because everyone on the call is thrilled to have some form of human contact, and they don’t want it to end.

I have a suggestion on how people can spend some of their spare time: order some new casual clothes on-line. Too many people on Zoom meetings look like they are dressed for gardening.

From the video conferences I have learned that a lot of people have very nice kitchens with custom cabinetry and tray ceilings.

I learned how to insert fake photos into backgrounds in a Zoom conference; so now it looks like I have a 5,000 sq ft kitchen, overlooking the ocean.

Some towns were early adopters to using video conferences for public hearings. Some other towns, not so much. I found my local planning board to be empathetic that applicants had been waiting for many weeks for a hearing, and they did whatever they could to move the process forward.

I spent a weekend binge watching Massachusetts corruption on TV, and now I find it hard to distinguish between the fiction in “City on a Hill”, and the non-fiction in “How to Fix a Drug Scandal”. 

Although I am glad that Chapter 53 of the Acts of 2020 was enacted to deal with some of the land use permitting issues, I am concerned about the potential implications of the provisions which state: “..a permit granting authority may contest the completeness of an application at the time of filing if the application is ultimately denied by the permitting board on other grounds or if the permit is ultimately appealed by the applicant.”

I need a haircut.

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.

My Cousin Vinnie Avoids Surgery

By Paul F. Alphen

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

because I had missed the annual family Post Christmas Party at our cousin Carmella’s house. Vinnie filled me in on the current foibles of our various relatives, and provided me with a painfully detailed description of status of Aunt Mary’s cruise to Nova Scotia.  Sorry I missed it.  

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.

YOU CAN FIGHT CITY HALL: THREE RECENT DECISIONS WHEREIN LOCAL GOVERNMENTS CAME UP SHORT.

Paul F. Alphen

In three recent decisions, abutters or developers were able to prevail over municipalities. The cases are very different, but all involve MGL Chapter 40A.

STRIKE ONE:

In 2011, the town of Brookline adopted a “neighborhood conservation district” (“NCD”) bylaw designed to create local

commissions with the ability to regulate the “dimensions, layout, and design of construction” in designated districts. Brookline adopted the bylaw not as an amendment to its zoning bylaw pursuant to G. L. c 40A, or as a historic district bylaw pursuant to G. L. c. 40C, but as a general town bylaw pursuant to its general home rule powers. The Attorney General approved the adoption of the bylaw.

The first district established under the bylaw comprised solely the entire Brookline portion of the 70-acre property of plaintiff Hancock Village I, LLC, who ultimately filed an action in the Permit Session of the Land Court seeking to invalidate both the bylaw authorizing neighborhood conservation districts in the town, as well as the particular section of the bylaw creating the district encompassing the plaintiff's property. In Hancock Vill. I, LLC v. Town of Brookline, 2019 WL 4187764 (Mass. Land Ct. Sept. 4, 2019), the property owner asserted that the bylaw was not a proper exercise of Brookline's general police power, “as its subject matter falls squarely under the purview of G. L. c 40A and G. L. c. 40C, and must therefore have been enacted pursuant to the procedures provided in those statutes, and with the substantive protections and mechanisms required by those statutes.”

The Court agreed with the Plaintiff.  The bylaw attempted to regulate matters that are clearly within the scope of the Zoning Act. For example, a “Reviewable Project” was defined in the Bylaw as including “(i) a change to a building or other structure or part thereof such as removal, construction, reconstruction, restoration, renovation, replication, rehabilitation, addition, partial or total demolition and other similar activities, or the construction of a new building or other structure or part thereof ... (iii) addition or replacement of doors or windows ... (iv) a change to a site that includes constructing, placing, erecting, installing, enlarging, or moving a building or other structure or similar activities; (v) the removal or addition of streets, driveways, parking areas, walkways, or paved surfaces.”

The Bylaw further stated that “[t]he Commission may impose dimensional requirements that further the purposes of the by-law, including without limitation preventing Reviewable Projects inconsistent with the historic or architectural aspects, scale or massing, neighborhood or subdivision plan or layout, circulation patterns, or green space, open space, landscape, vegetation or viewshed character of the NCD.” The Bylaw also sought to regulate building size, height and massing, and required that projects “maintain the spatial organization of the district,” and further required that buildings shall not have a “significant negative impact on historical architectural or landscape elements ...”

The Court stated that “[a] municipality cannot utilize its general police power to enact a bylaw which is, at its essence, a zoning regulation, if it does not resort to G. L. c. 40A; doing so would frustrate the purpose and implementation of the statute. … As previously noted by this court, ‘[t]he reason for this is that zoning bylaws have different, stricter requirements for enactment than general bylaws. A zoning bylaw must be reviewed by the planning board in a public hearing and then reported on by the board, and, crucially, may only be enacted by a two-thirds vote of town meeting. General bylaws have no such requirements—they may be enacted by a majority vote.’” citing Valley Green Grow, Inc. v. Town of Charlton, 27 LCR 99,  at 105 (2019).

“Brookline impermissibly evaded these stricter requirements in a circumstance where they were necessary. Brookline's NCD Bylaw is, in its fundamental substance, a creature of zoning. It regulates subject matter falling within both the traditional definition of zoning as well as the existing purview of the Brookline Zoning Bylaw. Despite this, Brookline enacted the NCD Bylaw as a general town bylaw, and made no attempt to follow the particular procedures laid out in G. L. c. 40A. Accordingly, having failed to strictly comply with the requirements for enactment of a zoning bylaw, Section 5.10 of the Brookline General Bylaws is invalid, and of no force and effect.”

Justice Speicher also found that the NCD Bylaw constituted impermissible spot zoning by concluding that “[t]here is no doubt that Brookline's purpose in adopting the NCD Bylaw and the Hancock Village NCD Bylaw was the same purpose deemed invalid in Scherzer and National Amusements: to frustrate a single property owner's efforts to develop a particular use on its property”

STRIKE TWO:

In the case of McLean Hosp. Corp. v. Town of Lincoln, 483 Mass. 215, 131 N.E.3d 240 (2019), McLean Hospital, a non-profit institution, proposed to construct a facility in a residential neighborhood in Lincoln for conducting a residential program for adolescent males with extreme emotional dysregulation. Before McLean purchased the property, they smartly contacted the building commissioner and explained the proposed use and the commissioner agreed (in writing) that the proposed use was an educational use exempt from zoning under the Dover Amendment (MGL Chapter 40A Sec.3).  After the purchase of the property, a number of nearby residents challenged the decision pursuant to MGL Chapter 40A Sec 8 before the Zoning Board. The ZBA decided that the program was medical or therapeutic, not educational. McLean appealed to the Land Court, which determined that the program was not primarily for educational purposes. McLean appealed and the SJC took the case on direct appellate review.

Plaintiff’s counsel did an outstanding job in getting the SJC to understand and appreciate the various details of the proposed program. The Court, in an eleven page decision, described the particular educational aspects of the program. For example, the Court found that “the program teaches students to notice and identify their emotions, to slow down and consider alternatives rather than simply reacting, and to interact constructively with other people. It teaches fundamental behavioral skills so that the students, whose difficulties in emotional regulation interfere with an ability to learn in a more traditional setting, may acquire skills to respond more productively to the challenges that confront them in their day-to-day lives. The goal of the program is to enable the students to return to their communities and their families, to succeed in traditional educational programs, and to become able to lead productive lives.”

The Court explained that the term “educational” as historically used in the Dover Amendment,  is “broad and comprehensive” citing Regis College, 462 Mass. at 285, 968 N.E.2d 347, quoting Mount Hermon Boys' Sch. v. Gill, 145 Mass. 139, 146, 13 N.E. 354 (1887). “Over time, we have made clear that the protections of the Dover Amendment are not to be ‘limited only to those facilities closely analogous to traditional schools and colleges.’[citation omitted] ‘educational’  encompasses that which is ‘the process of developing and training the powers and capabilities of human beings.’ Mount Hermon Boys' Sch., supra. Thus, the Dover Amendment embraces fully “the idea that education is the process of preparing persons for activity and usefulness in life” 

In conclusion the Court, agreed with McLean and stated that “[a] determination whether the land and structures at issue here would be used for a predominantly educational purpose also does not, and should not, turn on an assessment of the population it serves. Although ‘emotional or psychiatric programs may determine the character of the training furnished to residents of the proposed facility,’ they certainly do not mark the facility as ‘medical’ or render it any less educational.”

STRIKE THREE:

Finally, I especially enjoyed the drama the played out in Penn vs. Town of Barnstable, 96 Mass. App. Ct. 205, 133 N.E.3d 846 (2019). The Town of Barnstable (a city containing a potpourri of neighborhoods and businesses) in the village of Hyannis, is the departure point of the ferries running to Nantucket. I can testify that historically, there has been a shortage of parking spaces within walking distance for the numerous ferry trips. Consequently, a cottage industry developed. Nearby property owners created parking spaces all over their yards. I spent $10 a day to park on a lawn in November.

The legislative branch of Barnstable is its 13 member elected town council. In 2013 the town conducted a study of commercial parking lots in and around Hyannis Harbor. Shockingly, not all the parking lots had any form of zoning authorization. The town council proposed a zoning amendment to create the Hyannis Parking Overlay District (“HOPD”).  “The overarching purpose of the amendment was to authorize ‘as of right’ operation of commercial parking lots on land within the HPOD that ‘ha[d] some legal pre-existing nonconforming status or [were] licensed as of May 1, 2014 as an open air parking lot involving the temporary storage of vehicles.” 

As required by MGL Chapter 40A Sec. 5, the planning board held a public hearing on the proposal (which voted four to one not to recommend) and on March 24, 2016, the town council took its own vote on the proposal, which on a seven to four vote, failed to pass for a lack of two-thirds support. Undaunted, the town council took the matter up again four (4) months later, notwithstanding the provisions of MGL Chapter 40A Sec 5 which state: “No proposed zoning ordinance or by-law which has been unfavorably acted upon by a city council or town meeting shall be considered by the city council or town meeting within two years after the date of such unfavorable action unless the adoption of such proposed ordinance or by-law is recommended in the final report of the planning board.”

Some minor modifications were made to the proposed bylaw, the planning board and the city council held a joint public hearing, and the planning board voted three to two to recommend approval, but the planning board failed to prepare a written report with recommendations (as required by the statute). The town council thought it was in the clear by first voting eleven to two that the new bylaw was “not a proposed zoning ordinance which has been previously acted upon unfavorably by the [t]own [c]ouncil”. A cynic might call that vote “somewhat self-serving.” Finally, the council adopted the slightly amended bylaw by a vote of eleven to two. 

Owners of homes adjacent to some of the parking lots included in the HPOD, filed a complaint for declaratory relief in the Land Court challenging the town council's adoption of the bylaw, on numerous grounds, including that it was invalid for failure to comply with the procedural requirements of MGL Chapter 40A Sec. 5. Item No. 2016-166. The judge allowed the plaintiffs' motion for summary judgment, and ultimately the town appealed.

The Appeals Court opined that “[t]he purpose of the two-year bar is to give some measure of finality to unfavorable action taken by a municipal legislative body so that ‘members of the public shall be able to ascertain the legislative status of a proposed change at all times, and to rely on unfavorable action ... as a complete defeat of the proposal.’ Kitty v. Springfield, 343 Mass. 321, 326, 178 N.E.2d 580 (1961) (discussing predecessor statute).”

“In Kitty the Supreme Judicial Court construed the two-year bar to apply to ‘any new action of the same character’ as a previously defeated proposal.  While no reported decision has addressed what it means for proposals to be ‘of the same character’ for purposes of G. L. c. 40A, § 5, sixth par., we are guided by cases decided in two analogous contexts.” The Court discussed cases pertaining to notice requirements in municipal hearing settings, and cases pertaining to initiative petitions,  and found that in those situations the courts have construed such provisions to “bar any measure that ‘affirms or negates essentially the same provisions [as a previous measure], with little or no substantive difference.’” 

Finally, the Court, using the analogous cases as guidance, concluded that the proposed bylaws shared “the same fundamental or essential character, with little substantive difference”, and concluded that the enactment of the bylaw was barred by the two-year prohibition contained in Section 5.

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.

MY COUSIN VINNIE SETS UP SOME GROUND RULES FOR FAMILY MEMBERS.

By Paul F. Alphen

My cousin Vinnie, the suburban real estate attorney swung by my office today. He was agitated and he was looking for some moral support.

“Paulie, remember what President Lincoln said; ‘A lawyer’s time and advice are his stock in trade’, right?”  I told Vinnie that I was

not present when Lincoln said those words, but I agreed that those words have been attributed to Lincoln. “Then, Paulie, why do our relatives expect me to provide my stock in trade without renumeration?” I asked him to clarify. “Our cousin Georgie, the dentist, for example. Does he perform free dentistry for you and your family; no he does not. But when he decided it was time to buy a big beach house in Chatham, he expected me to provide my stock in trade for free.”

“Vinnie, Vinnie, Vinnie, it’s expected that we work for free for our closest relatives, at least to the degree that we can. It’s the eleventh commandment.”    I said, and Vinnie replied: “Yeah, I know, but I decided it was time to set up some ground rules.”  All I could say is “Oh, oh, what did you do now?”

Vinnie picked up his iphone 4 and showed me an email that he sent to cousin Georgie, DMD. “Paulie,  I sent this email to Georgie, and I saved the language so that I can share it with my siblings, in laws,  and our other relatives.” It said:

“Cousin. So glad that you and Natalie are upgrading to an oceanside beach house. I love you and I am here for you, but I need some assistance from you. Here are some suggested Do’s and Don’ts going forward:

·         Do not hide the Offer to Purchase from me until the day before the P&S is supposed to be signed.

·         Do get the Offer and the proposed P&S to me as soon as you can. I would like to extend a family discount to you, so it would be helpful if I have some flexibility in scheduling when I work on your P&S; perhaps while eating my sandwich at my desk, or after 6:30 in the evening.

·         Do not do what your brother Louie did to me,  who told me on a Friday night that he had to sign a P&S on Saturday, which meant that I had to work on the P&S from my cabin on the lake where all I have for office equipment is a 7 year old computer with DSL internet, and a combination copier, scanner, printer, coffee-maker. So while the rest of the family was out in the leaky boat, I was waiting for documents to download. I then edited the P&S and sent it back to Lou and sat by my old computer waiting for comments. Meanwhile, my sons ran through the house to get my credit card so that they could fill the old Glastron with gas and outboard motor oil. At lunch time I got edits back and sent the P&S to the Seller’s attorney and the brokers and sat around waiting for their comments. Meanwhile, I received pictures via text messages from my wife and kids enjoying lunch at that lake front bar that you like so much.

·         Do not think you are doing me a favor by not interrupting my work week with your deal.

·         Do contact me at my office during business hours. At the office I have a building full of people and a leased printer, scanner, copier worth $10,000.00, which is connected to fiber-optic high-speed internet. I have a computer server with 33 years of addenda, forms and contracts. My paralegal can check the Registry of Deeds to verify the title references and conduct a preliminary check for any issues, like a pending foreclosure or that the property was in a trust. I can prepare a buyer’s addendum using the format that I have developed over the years, rather than having to type one from scratch. I can send my documents to you and the Seller’s attorney and resumed my other work while you and the attorney reviewed my drafts. I would have had the opportunity to work on your contract at times that work best for me.

·         Do avoid calling me at home or on weekends unless there is a real estate emergency.  Thank you for your understanding.”

I read it again. “Vinnie, that was a little harsh. Forward it to me so that I can use it too.”

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