Gareth Orsmond's Recent Articles from LexMonitor

Appeals Court Declines Invitation To Destroy Land Use Law As We Know It

gorsmond@rackemann.com (Gareth Orsmond) — Wed, 19 Oct 2011 19:30:00 GMT

The Appeals Court had a momentous decision to make in Killorin v. Board of Appeals of Andover – a decision that would mark the difference between entropy and order. Imagine a world in which every condition in every special permit, variance, subdivision approval, site plan approval, wetlands permit, and other discretionary approval affecting the use of real property ceased to exist after 30 years. That’s the world that the plaintiffs in Killorin wanted to create. Fortunately, in its decision (pdf) last week, the Appeals Court stayed the hand that sought to unleash this chaos.

The plaintiffs in Killorin owned property in Andover that benefited from a 1940 special permit that allowed the use of an 1891 mansion as an eight-unit apartment building in a district zoned for single-family housing. A condition of that special permit prevented subdivision of the lot for “so long as said apartment house shall be maintained on said lot.” In 2007 and 2008, the plaintiffs applied to the Andover Board of Appeals to modify the special permit by deleting this condition. The board denied those applications, and the plaintiffs appealed to court from the second denial. As grounds for their appeal, the plaintiffs argued that the special permit condition was subject to M.G.L. c. 184, § 23, which states, “Conditions, or restrictions, unlimited as to time, by which the title or use of real property is affected shall be limited to the term of thirty years after the date of the deed or other instrument . . ." (emphasis added). The trial court flatly rejected the plaintiffs' argument, noting that § 23 excepts from the 30-year limitation period restrictions defined in § 31 as being “in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking.” The emphasized language in § 31 clarifies the meaning of “instrument” in § 23. The plaintiffs took a further appeal to the Appeals Court, where their argument again went nowhere. Affirming the trial court, the Appeals Court construed "instrument" as used in §§ 23 and 31 to refer to “instruments of conveyance of real property” — not permit decisions arising out of municipal land use regulations.

Whether the Appeals Court realized the far-reaching consequences of this case, or simply focused on the statutory language, its decision is sound. But it does highlight the power that a permitting board has over land. The board can do what a landowner cannot: create restrictions that theoretically last forever. Now that the Appeals Court has reminded us of the permanence of permit conditions, anyone who receives a permit with a restrictive condition should think twice about whether that condition is a proper exercise of municipal authority, or whether an appeal should be taken in an effort to modify or strike a condition that will otherwise burden the land for time immemorial.

As Basis for Zoning Standing, "View" Not Getting Any Clearer

gorsmond@rackemann.com (Gareth Orsmond) — Thu, 21 Jul 2011 19:06:57 GMT

In the four months since the Supreme Judicial Court (SJC) decided Kenner v. Zoning Board of Appeals of Chatham – in which the SJC expressed its views on impaired views as a basis for standing in zoning cases (see related commentary here) – the Appeals Court has twice visited the issue. In Marhefka v. Zoning Board of Appeals of Sutton, the Appeals Court reversed a Land Court ruling that the loss of view of a pond did not create standing because views were not an interest protected by the zoning bylaw. In Schiffenhaus v. Kline, the Appeals Court affirmed a Land Court ruling that the defendant had not rebutted the presumption of "aggrievement" afforded to abutters, and went on to express a novel view on the “interests protected” prong of standing.

Both Marhefka and Schiffenhaus acknowledge the SJC’s decision in Kenner, where the SJC held that, under a bylaw requiring permitting authorities to consider the impact of scale, siting and mass on a neighborhood’s visual character, including views, a plaintiff must show both (1) a particularized harm to her property, and (2) a detrimental impact on the neighborhood’s visual character. However, while the import of Kenner is to constrain view-based standing, the recent Appeals Court decisions chart a more liberal course.

Marhefka cuts the wider swath. There, the Appeals Court held that an allegedly diminished pond view gave the plaintiffs standing to appeal a variance that would have allowed a two-car garage to be built on a lawfully nonconforming, undersized lot. To find that view was a protected interest, the court relied on the bylaw’s definition of “yard” as being “intended to provide aesthetic value as well as serve as a spatial and visual buffer between lots.” By this reasoning, almost any bylaw can be read to protect views, at least where incursions into required front, side or rear yards are at issue. All minimum yard requirements serve this same purpose, whether or not the bylaw expressly says so – this fact may be so obvious that a court could take judicial notice of it. According special treatment to bylaws that include terms like “visual buffer” in their definition of "yard" would arbitrarily elevate form over substance.

Schiffenhaus's impact is also potentially expansive. There, the Appeals Court found that the zoning bylaw did not expressly identify view as a protected interest, but it did incorporate by reference the town’s local comprehensive plan, which states, “Long and broad vistas, sights of harmonious and distinctive architecture, and views of historic and culturally important sites are part of the heritage of Truro,” and therefore must be protected. In dicta, the court found that these incorporated references made views (or at least certain views) an interest protected by the bylaw. While it's unknown how many zoning bylaws refer to a comprehensive or master plan, it's reasonable to surmise that virtually all such plans at some point discuss views, open space, scenery, and the like.

While in Kenner the SJC seemed to be sending the message that impaired views will not, in most cases, provide a basis for standing to challenge a zoning decision, the Appeals Court, in Marhefka and Schiffenhaus, appears to have thrown open new doors to view-based standing. This apparent tension between the the two courts' approaches may be resolved in some future case, but in the meantime, the status of impaired views as a basis for zoning standing remains as foggy as a Nantucket morning.

New Life for "Bounty Hunter in Troubled Titles"

gorsmond@rackemann.com (Gareth Orsmond) — Thu, 16 Dec 2010 22:10:47 GMT

In its recent decision in RJR Para Corp. v. Pond (pdf), the Appeals Court makes an important distinction between “personal injury” as that term is commonly understood, and an injuries that are personal in nature but concern rights in real property. For purposes of having standing to assert a claim under an assignment of rights from the injured person, this distinction is crucial. It is especially crucial for those who wish to walk in the footsteps of one Edward Gately, whose line of work the Appeals Court previously described, in Allen v. Batchelder (pdf), as "bounty hunting in troubled titles.”

Land Court: Bounty Hunter Doesn't Have Standing

RJR Para Corp. (RJR) brought suit to quiet title to land in Medway and Milford, Massachusetts via a claim of adverse possession. RJR made modest efforts to find the landowner, Metcalf Pond, or his heirs. These efforts (perhaps by design) failed, and RJR received court permission to serve its complaint by published notice. When no one responded to that notice, the Land Court allowed RJR's motion for default and entered judgment declaring RJR the owner of the land by adverse possession.

RJR would have walked off with the land without having to prove its adverse possession claim. But then entered Gately. He located two of Pond’s heirs, one of whom, Janet Dinan, decided to pursue the matter on her own. The other heir conveyed her interest in the land to Gately for $1,000, and assigned him all her rights as heir. Dinan and Gately then moved to intervene in the case and vacate the judgment. The Land Court allowed Dinan to intervene and then vacated the judgment, finding that RJR’s efforts to locate Pond’s heirs were inadequate. But the court denied, for lack of standing, Gately’s motion to intervene, reasoning that the right to set aside a judgment for inadequate notice is a constitutional due process claim that is “personal in nature, and ‘[a] claim for personal injury cannot be assigned.’” Gately appealed, and when Dinan later settled with RJR, Gately’s appeal became the sole obstacle between RJR and the coveted land.

Appeals Court: Bounty Hunter Does Have Standing

The Appeals Court reversed the Land Court’s decision on standing. “[T]hough the claimed violation of due process is personal in nature in that it implicates personal rights,” the court wrote, “it is not a claim for personal injury,” and only personal injury claims cannot be assigned. The court went on to note that the rule against assigning personal injury claims is premised on concerns about (1) the presentation of evidence of damage, and (2) enabling “the rich and powerful to oppress the poor.” The Court concluded that neither concern is implicated by due process claims based on injuries to real property interests.

Some Thoughts on Bounty Hunters in Troubled Titles

It’s easy to disparage the efforts of “bounty hunters in troubled titles” as serving only selfish interests, but they can play a salutary role in vindicating the rights of others. RJR Para Corp.illustrates this point, since the rights that Pond’s heirs had in the land were not protected by RJR’s inadequate efforts to serve its adverse possession complaint. One of the heirs lived in Maine, and the chances of her coming across a notice published in Massachusetts were slim. Unlike a personal injury, a threat to one’s property rights may be unknown to the potentially injured party. In this instance, Gately located two of Pond’s heirs, who were alerted to a threat to their property rights that they didn’t know existed, and, as a result, were able to realize some value from those rights. By confirming that parties like Pond’s heirs can validly assign their rights, the Appeals Court has ensured that “bounty hunting in troubled titles” will remain a viable business model.

Commonwealth v. Arno: There Aren't Enough Words to Describe the Public's Rights In Tidelands

gorsmond@rackemann.com (Gareth Orsmond) — Sat, 25 Sep 2010 15:10:29 GMT

Most coastal states own the land seaward of the high water mark, which includes the so-called “tidal flats” between the low and high water marks. In Massachusetts, however, the tidal flats are private, but subject to the public’s right to fish, fowl, and navigate, which has generally been characterized as an easement for these purposes. The “submerged land” seaward of the low water mark is owned by the Commonwealth. Much of this land has been granted or licensed to private individuals or companies, a centuries-old practice intended to promote commerce. When used by a private company, these submerged lands have been characterized as subject to a condition subsequent that they be used for a public purpose. These principles, which have evolved from the public trust doctrine, are codified in M.G.L. c. 91, sometimes called the “Waterways Act.”

The public’s rights in coastal land are at issue in the Supreme Judicial Court's recent decision in Arno v. Commonwealth (pdf). Arno’s land bordered Nantucket Harbor and included filled tidal flats and submerged lands — referred to collectively as “tidelands.” He was granted a waterways license to replace a dilapidated building with a new building that would be office space and residential condominiums, but the license included conditions requiring public access over his property, publicly-available restrooms, and so on. He looked to the courts for relief.

The Land Registration Act

The basis for Arno’s claim was the Land Registration Act, which provides a process by which the Land Court ascertains title to land so that land becomes free of all rights not specifically listed in the court’s certificate. Arno had a Land Court certificate, which he believed established that he owned the land on which he proposed to build in fee simple, free of any public rights in tidelands. The Supreme Judicial Court disagreed. It declared that Arno’s land is still subject to the public’s rights.

Only the Legislature

There are three bases for the court’s decision, each of which is significant. First, the court held that only the Legislature can extinguish the public’s rights in tidelands. This basis, which comprises most of the opinion, is also the most problematic. I’ve always viewed it as a separation of powers question. If only the Legislature can extinguish these rights, then a court lacks power to make factual findings that determine these rights, such as the location of high and low water marks. While the public’s rights in tidelands are very important, there are more important rights — I’m thinking, in particular, about constitutional and civil rights — where courts make decisions and those decisions, right or wrong, cannot be overturned after they become final. This is fundamental to the legal system. The court’s opinion does not address this issue.

Public Trust Rights Are Exempt from Registration

The second basis for the court’s decision is the soundest, although it is only two paragraphs long. The court held that the public rights in tidelands are not subject to the Registration Act because they derive from the Waterways Act, and the Registration Act exempts “claims or rights arising or existing under … the statues of this commonwealth” from the rule that rights not listed on the Land Court’s certificate do not burden the land.

When an Easement is not an Easement

The final basis for the court’s decision is a philologist’s delight. Essentially, the court seeks to clarify that, although the public’s rights in tidelands have been consistently (and statutorily) characterized as easements and conditions subsequent, they are not really, or, as the court puts it, these words are not “[to] be interpreted as importing the manifold doctrines, limitations, and precedents that apply to those words in ordinary contexts where they are used to reflect bargains struck between or among private parties.” In other words, there are no words that properly characterize the public’s rights, and the proprietary terminology traditionally used is makeshift, at best. I’m reminded of the saying that the Inuits have many words to describe snow. In contrast, the legal lexicon apparently lacks sufficient words to describe the public’s rights in tidelands.

Conclusion

Under Arno, the court has held that the Registration Act cannot extinguish public rights in tidelands, based in part on the language of that statute (the exemption for rights under state statutes). That said, there are issues with respect to separation of powers and terminology that arise from the court’s reasoning. These will have to be addressed in the future.