Meltzer BLawG Offices

No litmus test for local need; Even if a municipality reaches its 10% minimum affordable housing under Chapter 40B, a housing project may still be consistent with a local need and avoid local zoning.

The Supreme Judicial Court found that the Town of Amherst appropriately granted a comprehensive permit under chapter 40B because the town had an “overwhelming need for affordable housing”  outweighing “’constraints imposed by the zoning bylaw,’” despite the fact that it already supplied the statutory minimum of 10% affordable units.

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The case is Boothroyd v. Zoning Board of Appeals of Amherst, SJC-09896 (June 14, 2007) and can be found HERE.

Zoning Appeal is part of mortgaged premises: Lender owns security interest in zoning settlement.

Judge Young, in Blue Hills Office Park LLC v. J.P. Morgan Chase, et al, --- F.Supp.2d ----, 2007 WL 755202 (D.Mass. 2007) has determined that an owner's interest in a zoning appeal is part of a mortgagee's interest in a property.  The mortgage, in pertinent part, provided that the "the words 'Mortgaged Property' shall include any portion of the Mortgaged Property and any interest therein."

In Blue Hills, Judge Young found that the plaintiff/mortgagor breached the terms of the mortgage when it negotiated a settlement in a zoning case with a neighbor for a $2 million cash payment, and then disbursed that cash to the principals of the plaintiff, all without the lender's knowledge or consent.

The "Zoning Appeal was included in the mortgaged property.  The Zoning Appeal is a cause of action related to, derived from, and used in connection with the mortgaged property.  [Plaintiff's] standing to bring the Zoning Appeal derived from its ownership of the mortgaged property."

To read the full text of the opinion, click HERE.

Boston Globe Highlights ME!

Meltzer BLawG Offices was highlighted in this past Sunday's Boston Globe Real Estate Section: Brokers in Blogsville.

Evidently, according to the article, "[real estate] [a]gents are going online to get knowledge and information."

From me, I guess, they are getting "basic advice and reminders of what consumers should be aware of, and wary of."

Go figure . . .

Zoning Misbehavior is Not Rewarded – Billerica Builder Must Tear Down House

In Wells v. Zoning Board of Billerica, the Appeals Court determined that the applicant committed “zoning misbehavior” and created non-conforming lots, and a lot not qualified for a local bylaw exemption from the principal of abandonment.  The applicant built a new house on the offending lot at his own peril, after being warned, and must remove the house and restore the lot.

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Click HERE  for a full text of the Opinion.

Sellers Beware: Court Again Finds an Offer to Purchase Enforceable and Orders Specific Performance

In Kurker v. Shoestring Properties, --- N.E.2d ---, 2007 WL 1063971 (April 12, 2007), the Massachusetts Appeals Court held that the final Offer to Purchase (OTP) was enforceable between the Seller (Stuart Bornstein) and the Buyer (Wayne Kurker) and that the Buyer was entitled to specific performance of the agreement. 

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Click HERE to see the full text of the Opinion.

The Justice Mills Lawyer’s Relief Act of 2007 or Multiple Avenues of Appeal of a Comprehensive Permit Still Available.

Topics:  Administrative Appeal; Zoning Appeal; Mootness; Housing Appeals Committee

Writing for the Appeals Court in Taylor v. Board of Appeals of Lexington, Justice Mills concluded that a G.L. c. 40A, §17 Superior Court Appeal of a grant of a comprehensive permit (G.L. c. 40B) by abutters did not become moot by a Developer appeal to the Superior Court of a Housing Appeal Committee (“HAC”) decision modifying the permit.

The decision ratifies the apparent statutory scheme allowing an appeal by a developer to the HAC, then further appeal of the HAC decision in Superior Court, while at the same time allowing abutter appeals of the ZBA decision directly to the Superior Court.

For the full text of the case click HERE.

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No Tax Takings When Owner is Reasonably Ascertainable

Topics: Tax Taking; Notice; Due Process

The Land Court vacated a tax taking by the Town of Norwell because the Town and Land Court failed to notify the land owner of the foreclosure proceedings. Town of Norwell v. Owners Unknown, 2007 WL 853836 (March 22, 2007). The failure to notify was a violation of due process, which made the one-year limitation on the filing petitions to vacate under MGL c.60 § 69A inapplicable, and thus an invalid tax taking.

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Failure of Tax Assessments by a Town does not create a Roadway by Prescriptive Easement

Topics: Public Way ; Prescriptive Easement; Layout

The Appeals Court has affirmed summary judgment finding that, as a matter of law the Town of Marblehead had not created a public way from an existing way, by either a manner prescribed by statute or prescription on their parcel of land. McLaughlin v. Town of Marlblehead , Slip Opinion No. 06-P-119 (March 23, 2007).

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Is Land your Business?

Land Law is ours: www.Landlaw.biz

Meltzer Law Offices

Housing Market: Mixed Signals about Falling Prices for February

Two reports have been issued, one by the Massachusetts Association of Realtors, and the other by the Warren Group, but they give opposite responses to the housing market sales.

According to an article in the Boston Globe, Mass. Home Prices Still Fall, available at, http://www.boston.com/business/ticker/2007/03/mass_home_price.html, the reports are clear that “the February median sales price for a single family home in Massachusetts fell just over 4 percent.”

Massachusetts Association of Realtors, reports that sales for detached single family homes in the state rose 1.2 percent, but the median selling price fell 4.1 percent. In addition, condo sales rose 4.5 percent on a volume basis, but the median condo price in February 2007 fell 1.8.

The Warren Group, to the contrary reports, sales of single family homes in Massachusetts fell 1.4 percent, and the median price for a single-family home fell 4.6 percent. Likewise, condo sales fell 3.2 percent, and the median condo sale price fell 4.8 percent.

I, on the other hand, am 100 percent sure that housing prices will eventually rise and that and that the volume will either rise or fall, but will not stay the same.

What do YOU think?

Standards, Standards, Standards, do your town Bylaws have them?

Topics: Zoning, Validity of by-law or ordinance

In Fordham v. Butera, 68 Mass. App. Ct. 907 (March 5, 2007), an abutting homeowner appealed the permit amendment to neighboring homeowner under M.G.L. c. 40A §17 and the validity of the Bylaw under M.G.L. c. 185 §1(j 1/2). The Land Court found that the Bylaw was invalid because it lacks sufficient standards and accords “unbridled discretion” to the Board in deciding whether to grant a permit.

Regardless of whether the Bylaw is categorized as a special permit with guidelines (zoning) or as independent municipal power (general Bylaws), the granting authority must have standards that fairly guide the board’s exercise. If the standards are lacking the Bylaw is invalid.

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Click here for full text of case: Download

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