Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Real Estate Law and Litigation

Pierce & Mandell Attorney Michael C. Fee Recently Quoted in Lawyers Weekly

Monday, September 21, 2020

Michael C. Fee was recently quoted in the August 31, 2020 edition of Massachusetts Lawyers Weekly. The article, entitled: “State’s Eviction Ban Does Not Preclude Attachment of Assets”, explores recent court decisions regarding how commercial landlords and tenants are navigating the Covid-19 environment.

You can reach Michael C. Fee at mfee@piercemandell.com

Notarization in COVID-19 – “An Act for Providing Virtual Notarization to Address Challenges Related to COVID-19”

Tuesday, May 05, 2020

On April 27th, in response to the COVID-19 public health crisis, Governor Baker signed into law Section 71 of the Acts of 2020 entitled “An Act for Providing Virtual Notarization to Address Challenges related to COVID-19” (the “Act”). The Act allows notary publics to perform remote ink notarizations via video conferencing (such as Zoom or FaceTime) pursuant to certain requirements. The statute is temporary, and will be automatically repealed three (3) days after the Massachusetts state of emergency has been lifted.

Below is a summary of the Act, including the requirements imposed on the notary public and document signer pursuant to the Act.

Under the Act, remote ink notarization may be conducted via electronic video conferencing if:

  • The video conference allows the document signer and notary to communicate in real time and the notary observes the signer’s execution of the documents during the video conference.
  • The signer and the notary are both physically located in the Commonwealth.
    • The signer must swear or affirm under the penalties of perjury that the principal is physically located within the Commonwealth.
  • The signer must disclose any person present in the room and that person or persons must be made viewable to the notary.
  • Unless personally known to the notary, the signer must provide the notary with satisfactory evidence of identity in the form of a government-issued photo ID.
    • The notary must receive the ID in either hardcopy or electronic format and it must be retained by the notary for ten (10) years.
    • The signer must send a copy of the front and back of a government-issued ID or a copy of the front cover and page featuring the signer’s photograph, name and signature of a passport.
  • The signer must execute the documents using wet-ink signatures and make their acknowledgment, affirmation or other notarial act to the notary during the video conference.
    • The notary must create an audio and video recording of the notarial act, which must be retained by the notary for ten (10) years.
  • The signer must return the original signed documents to the notary via delivery service, courier, or other means in accordance with the notary public’s instructions.
  • Upon receipt of the original signed documents, the notary affixes his/her signature and stamp and/or seal.
    • The notarial certificate attached must include a statement indicating that the document was notarized remotely pursuant to the Act, noting the county in which the notary was located and including the date on which the notarial act was completed.
  • The notary must complete an affidavit, which states that the notary has:
    • Received a copy of the signer’s ID, if applicable;
    • Obtained the signer’s verbal assent to record the video conference;
    • Taken the signer’s attestation as to the signer’s presence in Massachusetts; and
    • Been informed and noted on the affidavit any person present in the room with the signer during the video conference, including the relationship of any such person to the signer.
  • The notary must retain the affidavit for ten (10) years following the execution of the documents.

Please note that for any document submitted for recording in land records, the notary is not required to include a copy of the affidavit.

Real Estate Documents: Under the Act, for any documents requiring notarization in the course of closing a transaction involving a mortgage or other conveyance of title to real estate, the notary must:

  • Be a Massachusetts-licensed attorney, or a paralegal under the direct supervision of a Massachusetts-licensed attorney.
  • Review a second form of identification, unless the signer is personally known to the notary.
    • This second form of identification must include the signer’s name and can be a credit or debit card, social security card, or municipal tax or utility bill dated within 60 dates of the first video conference, or other similar documents.
  • Conduct a second video conference upon receipt of the original documents, during which the signer verifies to the notary public that the document received is the same document executed during the first video conference.
    • Following the verification, the notary will affix their signature and stamp and/or seal to the documents. If the document concerns a mortgage financing transaction, the notarial certificate may recite the date stated within the body of the document, even if that date precedes the date of completion.
  • Retain copies of the signer’s identification along with the video recording and affidavit for a period of ten (10) years.

In the event that the signer does not have the ability to print documents, the notary should mail a copy to her for execution. All documents executed and notarized under the Act must be signed in wet ink and wet notarized.

Additionally, Congress is currently considering a federal remote notarization act, which would allow notaries in every state to conduct a remote online notarization and would preempt the Act. This would allow notaries located anywhere in the country to conduct remote online notarizations related to Massachusetts.

Though the Act allows for remote ink notarizations, lenders may have their own specific requirements regarding remote execution of documents. When executing lending documents, it is best practice to ensure that the process you are using does not violate the particular lender’s closing instructions.

If you have any questions regarding the Act, COVID-19, or any other legal issue, please contact a Pierce & Mandell attorney.

Curt Dooling Explains Evolving Anti-SLAPP Standards

Friday, February 28, 2020

The Massachusetts Supreme Judicial Court continues to alter the standard by which G. L. c. 231, § 59H anti-SLAPP motions are decided by trial courts. The anti-SLAPP statute authorizes a party sued because of its petitioning activity to file a special motion to dismiss within 60 days of service of the complaint. Petitioning activity may range from testifying before a government agency to speaking publicly about an issue under consideration by a governmental body. The purpose of the anti-SLAPP statute is to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits.

Pursuant to the SJC’s 1988 Duracraft test, the moving party (defendant) had to first demonstrate that the nonmoving party’s (plaintiff) claims were solely based on its own petitioning activity. Id. If the moving party met this initial burden, the non-moving party could defeat an anti-SLAPP special motion to dismiss by showing that the moving party’s petitioning activities were “sham petitioning.”

The SJC altered the Duracraft standard in 2017 in Blanchard v. Carney Hospital, 477 Mass. 141 (2017) (Blanchard I). In Blanchard I, the SJC modified the burden-shifting test by adding a second part to the analysis once the moving party made a showing that the non-moving party’s claims were solely based on petitioning activity. If the nonmoving party couldn’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a special motion to dismiss by showing that the challenged claims were not primarily brought to chill legitimate petitioning activity.

Due to numerous conflicting decisions from the trial courts and from the Appeals Court, the SJC recently clarified the Blanchard I standard in Blanchard v. Steward Carney Hospital, Inc., 483 Mass. 200 (2019) (Blanchard II). In Blanchard II, the SJC held that if the non-moving party can’t show that the petitioning activity was a “sham,” the nonmoving party could defeat a motion to dismiss by showing that its primary goal in bringing its claim was not to interfere with defendant’s petition rights, but to seek damages for the defendant’s alleged acts.

Because Blanchard I provided little guidance on how courts should determine what claims were brought to chill petitioning activity and what claims were legitimate, Blanchard II established specific factors to be used by lower courts: (1) whether the claim was a classic SLAPP suit brought against citizens for speaking out on development projects; (2) whether the lawsuit was commenced close in time to the petitioning activity; (3) the timing of the anti-SLAPP motion; (4) the challenged claim in the context of the litigation as a whole and the relative strength of the nonmoving party’s claim; (5) evidence that petitioning activity was actually chilled; (6) whether the damages requested by the nonmoving party would burden the moving party’s exercise of the right to petition.

Attorney Curt Dooling has successfully litigated numerous anti-SLAPP cases and has prevailed at the Appeals Court on anti-SLAPP cases twice in the last two years in Dever v. Ward, 92 Mass. App. Ct. (2017) and Dever v. Ward, 96 Mass. App. Ct. 1108 (2019).

Chapter 40A ZBA Appeal Process

Wednesday, January 23, 2019
Attorney Curt Dooling

You’ve done everything you thought you were supposed to do to secure local approval for your project. You’ve spoken with all of the neighbors. You’ve hosted community meetings. You’ve met with the building commissioner. You’ve hired your architect, your engineer, and your general contractor. In some instances, you have already been through site plan review and the local planning board. The last step in the permitting process for your project is to obtain a variance or special permit from your city or town zoning board of appeals (ZBA). You make your case to the ZBA, but the ZBA denies your request. You don’t need to abandon all hope. Instead, you can consider filing an appeal of the ZBA’s decision pursuant to G.L. c. 40A, § 17.

General laws c. 40A, § 17 permits “persons aggrieved” by a decision of the ZBA to file an appeal in either the Superior Court or the Land Court seeking to overturn the decision. The c. 40A appeals process is unique and is quite technical. First and foremost, the deadline to file a c. 40A appeal is twenty days after the ZBA’s decision has been filed with the city or town clerk’s office, which is usually soon after the ZBA has rendered its decision. This short deadline is strictly enforced and late filing by even one day is fatal to an appeal.

The complaint must name all individual members of the ZBA as party defendants and must list their home addresses in the body of the complaint. If the appellant is not the applicant, but an abutter or other interested party, the applicant must also be named as a party defendant.

Pursuant to c. 40A, § 17, the party aggrieved, or appellant, must allege that the decision “exceeds the authority of the board…and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled.” The appellant must also attach to the complaint a copy of the ZBA decision being appealed. After the appeal is filed in either Land Court or Superior Court, the appellant must send the complaint via certified mail to each individual member of the ZBA at their home address. Next, the appellant must file an affidavit of service with the court confirming that the complaint was served on each individual member of the ZBA.

Interestingly, neither the municipal ZBA nor the individual members of the ZBA are required to answer the complaint. However, practically speaking, the filing of a ZBA appeal will usually prompt communication from the municipality’s counsel, which can lead to a productive discussion about settlement or discovery, whichever way the case proceeds.

The judicial standard of review on appeal is a hybrid. The reviewing court, whether in Superior Court or Land Court, grants deference to the ZBA’s legal conclusions and normally will not overturn a ZBA decision unless it is based on legally untenable grounds. However, the reviewing court uses de novo review of the ZBA’s factual findings and gives them little to no evidentiary weight. This hybrid standard of review gives appellants an advantage because they can present additional evidence to the reviewing court and are not bound by factual determinations made by the ZBA.

The ZBA appeal process is unique and is undoubtedly an uphill battle. Having the right attorney on your side is essential. Pierce & Mandell’s real estate and land use attorneys have years of experience with both ZBA appeals and applications before local municipal boards.

Pierce & Mandell’s Recent Land Court Victory Regarding Scope of the Dover Amendment Now Heading to the Appeals Court

Wednesday, November 21, 2018

By: Michael C. Fee

Pierce and Mandell - Michael C. FeeThe ruling in The McLean Hospital Corporation v. The Town of Lincoln and others et al., concerns an appeal from a Lincoln ZBA determination that McLean’s proposed use of residential property is not exempt from zoning under the Dover Amendment, G.L. c. 40A, § 3. Pierce & Mandell shareholder Michael C. Fee represented a group of abutters who opposed the project.

The Lincoln Proceedings

Throughout the case McLean described its intended use as "a residential program implementing a highly structured model of learning behavior through a specialized curriculum known as Dialectical Behavior Therapy (“DBT”).” The program is currently one of two residential programs located on the grounds of McLean in Belmont and is referred to as the 3East Boys Program. It is designed principally to serve persons suffering from symptoms associated with Borderline Personality Disorder (“BPD”).

The Lincoln Building Commissioner initially determined that the proposed use was in fact educational and therefore zoning exempt. The abutters appealed to the ZBA who overturned the Commissioner’s determination. In that decision, the ZBA recognized that while there "are aspects of the methodology used by DBT that look similar to the standard methods of education," they are "not being utilized for the purpose of education, in either the traditional or non-traditional sense. Rather, they are being used as a therapeutic technique (and a recognized and effective one) to address and treat a psychological condition, to cure or ease the effects of BPD on young males." The ZBA concluded that "the objective of the program is treatment of a mental disease or disorder; the curative aspects of the program predominate.” McLean appealed to the Land Court.

The Land Court Trial

By agreement, the parties framed the sole issue for trial as "whether the proposed use of [the Property] is educational as that term is used in G. L. c. 40A, § 3, Lincoln By-law § 6.1(g), and case law interpreting the so-called Dover Amendment." Throughout the course of the trial, McLean characterized the proposed treatment program as a learning based, educational model, whose primary emphasis was to teach adaptive skills to help patients manage their BPD symptoms and improve their quality of life. McLean emphasized the acquisition of “skills” and downplayed the fact that the teaching, generalization and validation of skills was also a component of a broader, comprehensive therapeutic program.

The Town and abutters countered that while McLean’s program provides an effective and beneficial treatment to adolescent boys with an acute mental illness, the services could not be fairly characterized as predominantly educational. Instead, the program delivers a complex and coordinated treatment regimen, implemented by highly trained teams of medical professionals, led by licensed psychologists, psychiatrists and social workers. The “skills training” offered by McLean is not primarily for the purpose of educating an individual, but rather to treat an illness in a manner that will simply allow the typical patient to function without resorting to the suicidal and self-harm tendencies that are a component of the illness.

The facts required analysis of nuanced intersection between developing concepts of education, and traditional constructs that frame treatment of mental illness. While the case law establishes broad parameters for what may be considered a protected educational use under the statute, at the same time courts have recognized that there are limits, and just by virtue of the fact that something is taught, does not inherently render the activity a protected educational activity under the Dover Amendment. Kurz v. Board of Appeals of North Reading, 341 Mass. 110, 113 (1960.)

Dover’s Historical Treatment of Educational Uses

G.L. c. 40A, § 3 “preempt[s] the uniform application of zoning laws only where those laws impede the use of land for educational activities, and not where their primary effect is on noneducational uses... [I]n order to claim the protection of the Dover Amendment's ‘educational purposes’ clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.” Regis Coll. v. Town of Weston, 462 Mass. at 291. “In employing the phrase ‘educational purposes,’ the Legislature used ‘everyday words’ that must be interpreted in view of common usage . . . [I]n a broad sense, anything taught might be considered, to a greater or less degree, educational.’ Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113 . . . however, the Dover Amendment is a statute regulating ‘land use, not philosophy,’ See Needham Pastoral Counseling Ctr. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 34, (1990), and a facility would only be described as ‘educational’ in common usage if it served primarily educational purposes.” Regis Coll. v. Town of Weston, 462 Mass. at 288-289.

In order to be a qualified educational use under the statute, a program must have as its “bona fide goal something that can be reasonably described as ‘educationally significant’.” Regis College v. Town of Weston, 462 Mass. 280, 285 (2012). Moreover, such “educationally significant goal must be the primary or dominant purpose for which the land or structures will be used.” Id. (internal citations omitted).

Numerous courts have considered whether similar types of programs have educationally significant goals which are the primary and dominant purpose of the project. In rejecting or approving these requested exemptions, courts have focused on the specific attributes of the proposed programs , including who is teaching , who is being taught , the content of the material conveyed , and the overall purpose or goal of the activity. Finally, and critically, courts have sought to look beyond the individual activities or components of a program in an effort to determine whether, in the aggregate, the proposed use is educational.

Historically Massachusetts courts have held that residential programs providing a traditional education to individuals with special needs, like the program described in Harbor Sch., Inc. v. Bd. of Appeals of Haverhill were educational. In that case, the program at issue involved “periodic diagnostic reading tests which consist of word recognition, word analysis, [and] various achievement tests which involve world [sic] . . . knowledge, reading comprehension, spelling, language, simple mathematical computation, (and) mathematical problems”. Id. Harbor Sch., Inc. clarified that a program, including a residency program, which adapts traditional educational instruction in reading, writing, and mathematics to meet the needs of a particular population of individuals is “educational” under G.L. c. 40A, § 3. Id. at 605.

The principle has endured. In Fitchburg Hous. Auth., the SJC considered whether a facility for “chronically disturbed people who have been in mental institutions” was eligible for exemptions as an educational use. In that case, the use was a “training program aimed at developing or learning social and interpersonal skills such as learning to keep themselves physically clean, learning to shop and how to use money, [and] learning to cook.” Id. at 871-872. Based upon those facts, the SJC determined that the program in Fitchburg was educational and described it as “[i]nstruction in the activities of daily living.” 380 Mass. at 875. See also Gardner-Athol Area Mental Health Ass'n, Inc., 401 Mass. at 14, (“The residents would be taught daily living, as well as vocational skills, with the goal of preparing them for more independent living.”).

While the definition of “educational” is expansive, it is not all-inclusive. As was particularly relevant in this case, the court in Fitchburg distinguished an “educational” program from what the lower court deemed to be the operation of “a medical facility” based on the fact that the program in Fitchburg did not include doctors, and that the program participants were unlikely to harm themselves or others. 380 Mass. at 873. (“There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”).

Other courts have found this distinction significant. For example, in a 1988 ruling, the Land Court determined that a facility offering education intended to prevent the onset of mental illness was “educational” under G.L. c. 40A, § 3 because “common indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, were not present. [The organization] does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.” Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988).

Similarly, in a 2004 case, the Land Court found that a program involving “weekly workshops (minimum three hours) focusing on skills such as functional resume writing, interviewing for a job, cooking and healthful food shopping, home maintenance and house cleaning, car repair and maintenance, rejoining the work world, creating satisfactory relationships with co-workers and supervisors, parenting skills, conflict resolution, balancing a checkbook, creating a monthly budget, and dealing with the stigma of mental illness” fell within the parameters of education, and expressly noted that “[t]he lack of medical personnel onsite is identical” to the Fitchburg case.” Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *2 (Mass. Land Ct. June 22, 2004).

Applying the case law to the facts in Lincoln, the Town and abutters argued that the serious psychological conditions afflicting the patients McLean proposed to treat were markedly distinguishable from individuals receiving educationally significant services in the context of residential group home care. In fact, all cases in which courts have found educationally significant uses in the group home context involve individuals lacking in life or interpersonal skills that interfere with their ability to function independently in society, and detract from their quality of life. Typically, such programs serve as an immediate bridge to employment or education. Courts have drawn a bright line, however, when such programs approach active medical treatment, nursing home equivalence, or adult day care. In fact, no case law supports the contention that active psychiatric treatment of persons suffering from mental illness is “educationally significant” as that term is utilized in the context of the Dover Amendment.

The Land Court’s Ruling

The Court ultimately found that “the expansive case law interpretation of education does not reach the use proposed in this case for two reasons: First, to the extent the cases have broadened the traditional definition of education (i.e. coursework in school settings), the cases have embraced teaching in non-traditional settings, or to non-traditional learners, or both. The nature of the curriculum has been what the courts have characterized as 'core life skills' such as cooking, shopping, job-seeking, or other skills people need on a daily basis to function in society. Programs more medical in nature have been excluded from the broad definition.”

More specifically, the Court noted that “[u]nlike the programs described in Fitchburg Hous. and Gardner-Athol, McLean's proposed program does not teach such core life skills. Instead, the skills training offered by the 3East Boys Program targets the "emotional dysregulation" caused by Borderline Personality Disorder and related mental health diagnoses. The goal is self-management of the disorder so the participants can rejoin their families, return to school, or, in some cases, return to residential treatment centers.

Rather than educating the participants in daily living skills focused outward - toward assimilation into the community - and which are distinct from the participants' mental illness - the 3East Boys Program focuses on developing skills which look inward and pointedly address the manifestations of the individual's diagnosis.”

Finally, the Court concluded that “to the extent one could characterize the curriculum of the 3East Boys Program as educational due to the manner of teaching or the structure of the program itself, those components are secondary to the dominant and primary purpose. This court is persuaded that the purposes that are primary and dominant are therapeutic and curative, providing individuals who need significant intervention and tools at their disposal to help them deal with the inability to regulate their emotions due to their mental illness. The skills offer a chance to get beyond crisis points in their lives and have a method to call on in the future when needed.” McLean has filed a Notice of Appeal and may seek direct appellate review to Supreme Judicial Court. We will offer further commentary and analysis as the case progresses.

You can read the Land Court’s Decision in its entirety here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A164a39a2-0bbf-4e50-98b5-e2469568797d

Michael C. Fee is Pierce & Mandell shareholder with extensive experience in zoning and land use litigation. He can be reached at mfee@piercemandell.com.

----------------------------

1See Harbor Sch., Inc. v. Bd. of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (Reviewing details of program to determine whether or not it is educational); Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 760 (1985) (same); Fitchburg Housing Authority v. Board of Appeals of Fitchburg, 380 Mass. 869, 870-871 (1980) (same); Gardner-Athol Area Mental Health Ass’n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 16 (1987) (same).

2Whitinsville Ret. Soc., Inc. v. Town of Northbridge, 394 Mass. 757, 761 n. 3 (1985) (finding no “trained professionals” would be educating the residents).

3See Comm'r of Code Inspection of Worcester v. Worcester Dynamy, Inc., 11 Mass. App. Ct. 97, 99 (1980) (“high school seniors of the city of Worcester may enroll in the program for credit as a substitute for the senior year.”); Metrowest YMCA, Inc. v. Town of Hopkinton, No. 287240, 2006 WL 1881885, at *7 (Mass. Land Ct. July 10, 2006) (“The YMCA members and others who participate in programs there are not ‘students’”).

4See Fitchburg Hous. Auth., 380 Mass. at 872 (“interpersonal skills such as learning to keep [. . .] physically clean, learning to shop and how to use money, (and) learning to cook” deemed educational); Harbor Schools, Inc. v. Board of Appeals of Haverhill, 5 Mass. App. Ct. 600, 603 (1977) (each of these children admitted needs emotional psychiatric adjustment as well as daily educational indoctrination in the basic studies such as English, mathematics, science, etc.”); compare Kurz, 341 Mass. at 113 (“teaching of the various types of dances advertised by the plaintiff, with the possible exception of the classical ballet, can hardly be considered educational use in the ordinary sense.”)

5See Whitinsville Ret. Soc., Inc., 394 Mass. at 760 (“The issue is whether the plaintiff's project ‘is operated primarily for an educational purpose.’”) (quoting Cummington School of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 603 (1977)).

6See Fitchburg Hous. Auth., 380 Mass. at 873 (“The fact that many of the residents of the facility will have been residents of mental institutions and will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical. There will be no nurses or doctors regularly in attendance at the facility. There is no indication that the residents will be a threat to themselves or to the public.”); Austen Riggs Ctr., Inc. v. Considine, No. 288451, 2004 WL 1392279, at *3 (Mass. Land Ct. June 22, 2004) judgment entered, No. 288451, 2004 WL 1392281 (Mass. Land Ct. June 22, 2004) (“[T]he facts of this case make it clear that there will be minimal medical treatment at the Property, and the predominant use is educational in nature.”); Life Studies Found., Inc. v. City of Newton, No. 117068, 1987 WL 966066, at *6 (Mass. Land Ct. Nov. 19, 1987), aff'd, 26 Mass. App. Ct. 1111, 527 N.E.2d 752 (1988) (“[C]ommon indicia of a doctor-patient relationship such as the formation of a contract or alliance, individualized diagnosis and treatment, the payment of fees, and the keeping of progress notes and other records, are not present. Life Studies does not purport to treat mentally ill persons, and in fact attempts to screen such persons from its programs.”); see also Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 37 Mass. App. Ct. 657, 658 (1994), aff’d, 421 Mass. 106 (1995) (no active medical treatment on site).

7Whitinsville Ret. Soc., Inc., supra at 760-761 (Finding that an “element of education” was insufficient to render a nursing home educational).

8Regis Coll. v. Town of Weston, 462 Mass. at 291 (“[T]o qualify for Dover Amendment protection, the plaintiff must establish that the residential and recreational aspects of Regis East do not constitute its primary purpose but instead support the project's dominant educational purpose of providing academic and health-related instruction to older adults.”).

P&M Lawyers Help Truro Farming Co-Op Pass Zoning By-law Allowing Cannabis Cultivation

Tuesday, November 20, 2018
Pierce and Mandell - Michael C. Fee

By: Michael C. Fee

Last week the Cape Cod town of Truro became the first Massachusetts municipality to enact a zoning bylaw that allows cannabis cultivation in a residential district. The by-law was a product of intense public debate over the past several months as the Truro Planning Board attempted to craft a proposal that balanced the concerns of residential property owners with the needs of local organic farmers hoping to gain a foothold in the nascent Massachusetts marijuana industry.

At a Special Town Meeting on November 13, 2018, Truro voters approved several amendments to the Planning Board’s proposal, including increasing the number of allowed microbusinesses from 1 to 2, and eliminating the requirement that all marijuana establishments be located in stand-alone structures.

Pierce & Mandell shareholder Michael C. Fee, who has advised the Co-op throughout the permitting process, argued for increases in the bylaw’s limitations on canopy space, noting that other bylaw provisions regulating cultivation activities were sufficient to protect the residential district’s character, and that the initial maximum canopy restrictions proposed by the Planning Board would create barriers to entry and curtail growth opportunities for the Co-Op’s business. After lively debate Town Meeting approved the by-law as amended, with many speakers affirming their support for farmers in the community.

Press coverage of the Special Town Meeting can be viewed at:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Acd388ba9-e1a2-4fe8-a280-43ec391d0346

and

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A00b00a34-1148-47a3-b0e2-436e2def414d

A full text of the by-law proposed by the Planning Board can be viewed here:

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Ab4edbd0e-6f37-4f3f-adc8-cca50b3500cb

Michael C. Fee is a Pierce & Mandell Shareholder with extensive experience in zoning, land use and municipal law. He can be reached at mfee@piercemandell.com.

Pierce & Mandell’s Client Prevails in FAA Determination

Wednesday, October 31, 2018

By: Michael C. Fee

After a three year investigation, the FAA has concluded the Norwood Airport Commission unreasonably denied Pierce & Mandell client Boston Executive Helicopters access to the Norwood Airport, and improperly granted the existing fixed based operator exclusive rights in violation of Federal Grant Assurances 22 and 23.

By way of background, in 2008 the FAA determined that the Norwood Airport Commission engaged in economic discrimination by granting the fixed based operator (“FBO”) exclusive rights in violation of Title 49 of the United States Code (USC) §§ 47107(a), 40103(e) and Federal Grant Assurances 22 and 23. The FAA then issued a Corrective Action Plan directing the Airport Commission to, among other things, end the practice of awarding long-term leases of federally funded ramps which had the effect of granting the existing FBO control over a majority of Airport ramp space.

FlightLevel Norwood, LLC (“FlightLevel”) purchased the FBO at the Airport in 2009. Pierce & Mandell client Boston Executive Helicopters (“BEH”) has provided helicopter charter services at the Airport, and has requested permission and additional ramp space to expand its operations to include providing FBO services, since 2010.

In response to BEH’s requests for space and permitting approvals, the Airport Commission resisted and resorted to a pattern of obfuscation and disparate treatment. It demanded financial information, personal guarantees, and insurance coverage not required by the Airport’s minimum standards, or requested of other Airport tenants including FlightLevel.

BEH filed a Part 16 Complaint to the FAA in 2015, and on October 30, 2018 the FAA issued a Determination, finding that the Commission’s “delaying tactics, restrictions and excessive financial information requests” constituted a “continued pattern of delay to prevent BEH from completing the FBO permitting process.” The FAA concluded that the Town and the Commission’s actions constitute an unreasonable denial of access [to BEH] and unjust economic discrimination [against BEH].”

While holding the BEH at bay, the FAA also found that the Commission continued to bestow greater control of airport ramp space to FlightLevel by offering it new leases on a variety of federally funded ramps. Specifically, the Commission offered FlightLevel new lease terms for Lots A, B, and C at the Airport, notwithstanding BEH’s pending request for space for its FBO. The FAA concluded that the “Commission chose to ignore the letter, spirit and tenets of the previously ordered 2008 FAA Corrective Action Plan.” The FAA rejected the Commission’s excuse that the leases to FlightLevel were justified because it controlled abutting property. Such rationale “. . . is not justified, nor does it give first rights. . . It is camouflaging an exclusive right.”

The FAA went on to find that the Commission’s unfair treatment of BEH, and favorable treatment of FlightLevel violates Title 49 USC § 47107(a)(1) and related Federal Grant Assurance 23 (Exclusive Rights). The Commission’s subtle imposition of unreasonable restrictions on BEH, when combined with the favorable leasing practices toward FlightLevel, had the overall effect of solidifying FlightLevel’s position at the Airport to the detriment of BEH, and others. “The facts show that FlightLevel has a significant portion of the available property useful for FBO services, approximately 80%, and rather than curtailing FlightLevel’s grasp, the Airport expanded it.” This, in the judgment of the FAA, violates Federal Law and Grant Assurances prohibiting the grant of exclusive rights to a single operator.

The Director’s Order requires the Town and the Airport Commission to take immediate steps to promptly complete the FBO permitting process with BEH, discontinue leasing practices that provide exclusive rights to a single FBO, and rectify the unauthorized lease of Airport land to Verizon for non-aeronautical use. The Town and the Commission have 30 days to appeal.

The full text of the FAA Director’s Determination can be found at: https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A9034a6d1-ad1b-4b79-8322-141aebf218fc

Pierce & Mandell shareholder Michael C. Fee represents Boston Executive Helicopters in the FAA proceeding and in related litigation. He can be reached at mfee@piercemandell.com.

"Massachusetts Real Estate Litigation” by P&M Shareholder Michael C. Fee

Monday, July 30, 2018
Michael C. Fee, Pierce & Mandell, P.C., Boston, MA

Pierce & Mandell shareholder Michael C. Fee has authored the recently published LexisNexis® Practice Guide to Massachusetts Real Estate Litigation (2018 Edition). The book is intended to offer practical guidance on some of the most significant real estate issues currently being litigated in Massachusetts, and contains nearly 400 practice tips, forms and checklists. Designed to be useful to both new and experienced practitioners, the guide strives to provide succinct, easily accessible yet comprehensive analysis in the following areas:

  • Adverse Possession
  • Trespass
  • Nuisance
  • Construction Liens
  • Public Works Bonding
  • Easements
  • Restrictive Covenants
  • Eminent Domain
  • Foreclosures
  • Real Property Receiverships
  • Residential and Commercial Landlord Tenant
  • Broker Litigation, and
  • Community Associations

For more information about “Massachusetts Real Estate Litigation (2018 Ed.)”, go here.

A Cautionary Tale for Municipal Officials: The SJC clarifies the Open Meeting Law’s “deliberation exemption”

Thursday, May 17, 2018

Pierce and Mandell, P.C.By: Michael C. Fee

      The Massachusetts Supreme Judicial Court’s recent ruling in Boelter v. Board of Selectmen of Wayland (SJC-12353, April 5, 2018) interprets and clarifies, for the first time, the meaning of the term “deliberation,” which was added to the Open Meeting Law in July 2010. The Open Meeting Law requires that, with the exception of executive sessions, “all meetings of a public body shall be open to the public.” General Laws c. 30A, § 20 (a). The statute defines a “meeting” as “a deliberation by a public body with respect to any matter within the body’s jurisdiction,” subject to certain limited exclusions. G.L. c. 30A, § 18.

      A “deliberation,” is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.” The Open Meeting Law provides, however, that the term “deliberation” does not encompass the “distribution of a meeting agenda, scheduling information or distribution of other . . . reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” Id.

      While the importance of the Open Meeting Law cannot be understated, it is clear that the parameters it places on public officials are myriad and sometimes not entirely intuitive. Prior to the Legislature’s amendment of the statute in 2010, the Open Meeting Law defined “deliberation” as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.” See G.L. c. 39, § 23A, as appearing in St. 1975, c. 303, § 3. The 2010 amendment broadened the law’s definition of “deliberation,” and affirmed that a “deliberation” could encompass “any medium,” not just verbal communication. At the same time, however, the Legislature made clear that public bodies could distribute materials internally in advance of public meetings without running afoul of the statute’s proscription on “deliberation.”

      In Boelter, the chair of the Wayland Select Board had circulated to all members, in advance of a public meeting where the town administrator’s evaluation was to take place, the members’ individual written evaluations of the town administrator’s performance, as well as a composite evaluation. At the meeting, the Board reviewed, discussed and approved the composite evaluation, and the meeting minutes memorialized that the Board “praised [the town administrator] for his availability and responsiveness to the public, his work ethic, his relationship with town staff, and his accessibility to board and committee members.” Both the composite and individual evaluations were only released to the public following the open meeting.

      The process followed by the Board was subsequently challenged, and plaintiffs argued that the public should have total access to the decision-making process whenever a town official is evaluated. See, e.g., School Comm. Of Wayland, 455 Mass. at 570 (“It is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached”). Upon review, the Boelter Court acknowledged that the exemption allowing distribution of some materials was likely in response to the practical realities of governmental service, and that by permitting officials to review certain administrative materials and reports in advance, the Legislature sought to enable the more efficient administration of public meetings. It also noted, however, that the overarching purpose of the Open Meeting Law is to ensure transparency in governmental decision-making, and the Legislature specifically outlawed the expression of opinions by board members in any documents circulated to a quorum prior to an open meeting. See Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 610 (2017) (“the new version of the Open Meeting Law does not alter our belief that ‘[i]t is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached’” [citation omitted]).

      In parsing the Wayland Select Board’s actions, the Court took particular note that the materials privately distributed to the members contained “appraisals” of the Town manager’s performance. Although there was no conversation, there was nonetheless an exchange of “thoughts, impressions and conclusions” that was inconsistent with the Open Meeting Law’s requirement that all deliberations take place in public. The Court concluded that the effect of the circulation of the evaluations was that all five board members were aware of the opinions of the other four members in advance of the meeting. As a result, the circulation constituted a deliberation, or a meeting, to which the public did not have access.

      Noting that the Open Meeting Law was intended to ensure that the public is able to see for themselves how public decisions are made, See Revere, 476 Mass. at 610, the Court found that distribution of the individual and composite opinions to a quorum, prior to the meeting, violated the statute’s purpose. See G.L. c. 30A, § 18. Compare School Comm. Of Wayland, 455 Mass. at 570 (“Open meetings provide an opportunity for each member of the governmental body to debate the issues and disclose their personal viewpoints before the governmental body reaches its decision on a matter of public policy” (emphasis supplied); McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008) (Open Meeting Law “provides for public access to the decision-making process when it is in a formative stage, several steps removed from the eventual result”).

      The ruling in Boelter is both an affirmation of the Open Meeting Law’s overarching goal, transparency in governmental decision-making, and a challenge to public officials striving for administrative efficiency. The decision makes clear to municipal officials that there are now only two types of materials which may be safely distributed to a quorum outside of a public meeting: first, purely procedural or administrative materials (such as agendas), and second, reports or documents to be discussed at a later meeting, so long as such materials do not express the opinion of a board member. Careful municipal officials should consider adopting a general practice of not communicating by email at all except for distributing meeting agendas, scheduling meetings and distributing documents created by non-members to be discussed at meetings, all of which are ministerial tasks specifically sanctioned under the Open Meeting Law.

      Pierce & Mandell partner Michael C. Fee practices in the firm’s real estate and litigation departments. He is a former Town Moderator, Planning Board and Water District Chairman in Sudbury, and a current member of the Truro Open Space Committee. He frequently advises individuals and municipalities regarding public official liability under 42 U.S.C. § 1983, the Open Meeting Law, and matters involving public records, zoning, permitting, and land use.

Complexities in the Division or Sale of Multiple Parcels in Partition Proceedings

Monday, April 30, 2018

Michael C. Fee, Pierce & Mandell, P.C., Boston, MABy: Michael C. Fee

Petitions to Partition, often brought in the Land or Probate Courts, allow the division of land owned by two or more individuals. The right to partition is absolute, and does not require the consent of other co-owners. For an excellent overview of general partition principles and practice, see Jeff Angley’s primer entitled "Partition of Land".

The process of partition becomes complex when the land to be divided consists of multiple parcels. While courts strive to balance the rights and equities of the parties in partition proceedings, Schore v. Johnson, Land Court Misc. Case No. 29096, July 14, 2008 (Piper, J.), quoting Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007), and Moat v. Ducharme, 28 Mass. App. Ct. 749, 751 (1990), in cases where multiple parcels are involved generally “division in kind” becomes the favored method of partition, i.e. awarding parcels of equal value to each party. However, a court may also order sale of all of the parcels and equitable division of the proceeds when it determines that the land cannot be divided “advantageously.” G.L. c. 241, § 31. Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 (1992) and Buell v. Rubin, Land Court Misc. Case No. 310497, November 9, 2005 (Long, J.).

The General Rule

The proposition that the “primary” method of partition is by division derives principally from historical cases involving homogenous parcels where an equitable result could be derived from simple subdivision. For example, in Mello v. Mello, 322 Mass. 69 (1947), the SJC noted:

The primary method of partition is by division of the land itself by mete and bounds among the tenants in common. Until St. 1870, c. 257, and St. 1871, c. 111, § 1, later Pub. Sts. (1882) c. 178, § 65, a sale for the purpose of partition could not be ordered. Ramsey v. Humphrey, 162 Mass. 385, 386. Clough v. Cromwell, 250 Mass. 324, 330, 331. The existing statute intimates that sale may be ordered only of land "which cannot be divided advantageously." G. L. c. 241, § 31. See also § 6.

Similarly, in Buckley v. Lombard, Land Court Misc. Case No. 306156, November 30, 2007 (Scheier, J.), the Court recognized that “division in kind, or on the land, is the favored method of partition,” Id. at 7), but only after the court determines “by a preponderance of the whole evidence that the land cannot be advantageously divided before ordering a sale.” Id. at 7, citing Delta Materials Corp. at 338 (further citations omitted). In Buckley, the Court expressly recognized that G.L. c. 241, § 311 (the statutory provision authorizing sale) must be read in conjunction with G.L. c. 241, § 142, “which further instructs the Court to consider whether the land may be divided or set-off to one co-tenant without ‘great inconvenience’ to the co-owners.”

The Meaning of Statutory Terms “Inconvenience” and “Disadvantage”

What constitutes “inconvenience” or “disadvantage” has been addressed by several courts, with the inquiry focused squarely on conditions that create pecuniary inequities. For example, in Heald v. Kinnard, 180 Mass. 521, 523 (1902), the court struggled with the partition of a cranberry bog, which because of the particular way in which water flowed through the parcel, could not be divided such that each party would receive equal value. The Court observed:

In this case the advantageousness of the division was in part a question of market values, and from this point of view we are of opinion that the judge was warranted in considering the de facto condition of the premises.

Id. at 523. Although the Heald Court analyzed in depth the physical attributes of the land and the resulting options for division in kind, the key factor in determining “disadvantage” was whether division would result in a loss of value or money to a party:

The considerations which determine whether land can be divided advantageously no doubt have reference mainly to the physical conditions of the land to be divided, but the advantage or disadvantage generally must be pecuniary. Citing Vesper v. Farnsworth, 40 Wis. 357, 361, 362.

Similarly, in Clough v. Cromwell, 254 Mass. 132 (1925), a case involving parcels of land held by tenants in common on Martha’s Vineyard, the evidence established that the majority of value for the entire property was attributable to shooting privileges, and as a result the trial court found that the parties’ interests were best served by a sale of all of the land. The SJC affirmed, and relied on Heald for the proposition that the court had broad discretion to determine whether division would result in pecuniary disadvantage or monetary loss to any of the parties:

If a division by partition of the different parcels would cause great damage and loss to the owners, as the judge has found, we cannot say that he was not amply justified in ordering a sale of all of the lands, and a division of the proceeds in proper proportions.

Id. at 137.

Also instructive is the ruling Buckley v. Lombard, a Land Court case involving a partition petition for a small lot in Wellfleet, where the respondent urged division in kind to enable her to retain a right to access beach property. Citing Delta Materials Corp. and Clough v. Cromwell, Judge Scheier noted that G.L. c. 241, § 31 instructs the court to direct its inquiry “mainly to the physical conditions of the land to be divided, but the advantage or disadvantage must be pecuniary.” Id. at 9 citing Clough v. Cromwell at 332-33. The court next evaluated G.L. c. 241, § 31 in conjunction with § 14, which requires determination regarding whether division in kind could be accomplished without “great inconvenience,” and subsequently rejected the respondent’s “personal and subjective view of the value of locus” as “not the type of retained value that the partition statute contemplates.” Id.

As Buckley, Clough and Heald make clear, paramount in the Court’s analysis as to whether it can divide multiple parcels is the central determination of whether one party or another will suffer a loss of value or money as a result of a division. If such case, courts may conclude that the property cannot be “advantageously divided” and a sale of all parcels, and equitable distribution of the proceeds, is likely to follow.

The Concept of Owelty

Also critical are the provisions of G.L. c. 241, § 14 which provide that “[I]f all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or her consent, upon payment by him or them to any one or more of the others of such amounts of money as the Commissioners award to make the partition just and equal.” The statute envisions a partition resolution whereby willing owners agree to a division in kind that, although inconvenient, is acceptable. In cases where a division in kind will result in a loss of value because the parcels sold collectively are worth more than the sum of their parts, such “disadvantage” or “inconvenience” will often prohibit division unless the parties consent.

The concept of owelty in partition jurisprudence is ancient, and the principle that a party may not be forced to pay sums of money in order to establish equity in a partition proceeding has endured. In Hodges v. Pingree, 76 Mass. 14 (1857), the Supreme Judicial Court held that in partition, if the premises cannot be divided without damage to the owners, “the whole estate may be set off to any one of the parties who will accept it by paying such sums of money by way of owelty as may be awarded by the commissioners.” Id. at 15. Today, the concept of consent to owelty remains explicit in G.L. c. 241, § 14 and is often a critical component of any division of multiple, diverse parcels.

When multiple parcels are involved, partition proceedings can become complex, time consuming and costly. Experienced legal advice is essential to any party contemplating or involved in partition. Pierce & Mandell partner Michael C. Fee is a member of the firm’s real estate and litigation practice groups and represents clients in all forms of real estate litigation, including petitions to partition.

1G.L. c. 241, § 31 provides, in pertinent part, as follows:

In partition proceedings, the court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal.

2G.L. c. 241, § 14 provides as follows:

If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.


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