The Appeals Court, in an unpublished decision, has determined that a trailer on a lot, even though not being used at the time of the enactment of zoning, was enough to disqualify the lot for treatment as a grandfathered lot under G.L. c. 40A, § 6, par. 4.
The case is Kibbe v. Town of Douglas, 2007 WL 1791700 (Mass.App.Ct. June 21, 2007) and the full text can be found HERE.
The Land Court has determined that, even though a use has not changed its classification under the town's bylaw, any change triggers the necessity for review.
The property changed from potato chip factory to a vacant building to a plumbing supply to woodworking shop. Even though the vacancy was not long enough to be considered an abandonment of the prior use, "each time the underlying activity in the building changed, despite retaining the 'industrial' moniker, it was subject to at least review by the Planning Board or special permit granting authority."
The Court also found that even though "the Building Inspector's response [to the plaintiff's enforcement request did] not explicitly and unequivocally deny [his] Request," referring the matter to the planning board "was sufficiently definitive to constitute an 'order or decision,' tantamount to a refusal to enforce the Bylaw."
The case is Pepin v. Belrose, 2007 WL 1783871(Mass.Land Ct. Jun 21, 2007) (NO. 06 MISC. 328868 KFS) and the full text can be found HERE.
The Appeals Court has determined that the Town of Wrentham inappropriately denied a 40B (Comprehensive Permit) Application without even assessing the merits of the application. The town denied the permit summarily based upon the fact that it had met the 10% threshhold.
The Court found that the town must first hold a hearing and determine, as part of a complete review of the application, whether the proposal is "consistent with local needs." Having met the threshhold creates the presumption, but does not preclude the necessity for hearing the merits of the application.
The statutory language also vests jurisdiction to appeal the denial to hear the merits of the application based on the summary determination of local need in the Housing Appeals Committee (HAC).
As a part of its review, the HAC determined that the Town of Wrentham inappropriately included "residents at the Wrentham Developmental Center (WDC), a facility owned and operated by the Department of Retardation (DMR) to provide services for the mentally disabled including diagnostic, training, school, residential, and employment services" when calculating the number of affordable units in town.
The Appeals Court decided that judicial review of that determination was premature because the HAC has merely remanded the application for consideration by the town on its merits, and has not ordered issuance. Therefore the HAC's order is not final and not yet ripe for review.
The case is Town of Wrentham v. Housing Appeals Committee, 06-P-587 (June 27, 2007) and can be found HERE.
As anyone who recently borrowed money to buy a house or refinanced their mortgage can tell you, the stack of paperwork required by the banks is staggering. The “closing package” is so complete (and I use that term loosely), even the loan processors rarely understand what it all means. How then can regulators insure that borrowers understand the trouble they are getting into?
The Federal Trade Commission has determined that the current disclosure forms for consumer loans don’t get the job done, and that better forms would better inform the consumer. See the June 13 FTC report here.
The unfortunate reality is that banks and mortgage companies never REPLACE anything, they only ADD to what is already there. Old, outdated and stale paperwork is commonly required. When informed of the superfluous nature of their documents, the reaction is usually the overused refrain – it’s the lawyers fault.
[Read more in the Boston.com Blog]
After much debate, the townspeople of Hopkinton recently voted down the opportunity to purchase 708 acres from the bankrupt owners of Weston Nurseries. The land was protected under Massachusetts state law, Chapter 61A, as agricultural land and was paying lower taxes as a result.
Boulder Capital, a developer, will purchase the land and has presented plans to develop 940 houses and apartments, and 450,000 square feet of commercial space.
[Read More in the Boston.com Blog]
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.
The case is Boothroyd v. Zoning Board of Appeals of Amherst, SJC-09896 (June 14, 2007) and can be found HERE.
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.
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 . . .
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.
Click HERE for a full text of the Opinion.
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.
Stephen E. Meltzer Attorney and 17 year resident of Framingham.
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