Most people with a basic understanding of real estate and property law are familiar with the concept that contracts for real estate need to be in writing. The statute of frauds bars the enforcement of agreements for “the sale of lands, tenements or hereditaments or of any interest in or concerning them” unless such an agreement is in writing.
The “writing” requirement need not be done solely through a formal, written contract. Recent decisions have found such a writing to occur through email, text message, and other electronic means.
Overview of Contracts for Real Estate
The most common forms of contracts for real estate, in my experience, are offers to purchase real estate, purchase and sale agreements, and leases. Such agreements are most commonly done through written paper, which all of the parties sign.
It is a common mistake, however, to believe that such agreements must be put in traditional written form to be binding. Rather, as it is becoming increasingly common to communicate through electronic means, courts are finding that such electronic exchanges can create binding agreements.
Electronic Communications: Email, Text Messages
Several years ago, a Land Court decision held that text messages could be used to create binding contracts for real estate. The court reasoned that, under the proper circumstances, communications through text message were no different than traditional letters between parties.
The same reasoning applies to email and, in my opinion, any electronic means of communication, including social media.
With this in mind, those involved in real estate need to be incredibly careful when using electronic communications.
Compared to writing a traditional letter, sending a text message or email can be done in a matter of seconds. As such communications can create binding contracts for real estate, one must use extra caution when using email and text messages for such matters.
If you need assistance with a real estate matter, contact me for a consultation.
Zoning is an important topic for any property owner, especially landlords. Landlords should have a basic knowledge of zoning before offering property for rent, and know what to do if problems arise later on.
What is Zoning?
Zoning are local rules on the use of real property. Zoning often regulates the size, shape, and use of property in a town or city. These regulations are generally found in a town or city’s ordinances, which are usually available online.
Most towns and cities are divided into zoning districts, where only certain uses are permitted. It is common to have zoning districts for residential and commercial purposes. Towns and cities generally have a zoning map that indicates the zoning district for a particular property.
Failing to comply with a zoning regulation can have severe consequences. A town or city often has the power to issue a fine or stop-work order for a property in violation of the respective zoning ordinance.
Zoning for Landlords: Is My Property Allowed to be Rented?
For landlords, a critical issue to determine is whether the property they wish to rent is allowed for renting. Many zoning ordinances have specific requirements on where rental housing is allowed, and the minimum requirements for such rentals. This is often in addition to the state sanitary code, which applies to all residential housing in Massachusetts.
A landlord should never assume that property is suitable for renting simply because a prior owner did so in the past. It is not uncommon for zoning violations to continue for many years before finally being brought to enforcement by the town or city.
If a landlord’s property is not allowed for renting, a landlord may be able to request permission for doing so, through a variance, special permit, or some other zoning request.
Zoning for Landlords: Short-Term Rentals
Landlords need to be especially cautious about using property forshort-term rentals. Short-term rentals are becoming increasingly regulated by Massachusetts towns and cities. Some municipalities require registration of these rentals, and others are banning them all together. Best for landlords to know such requirements before entering into such rentals.
If you need assistance with a zoning or landlord-tenant matter, contact me for a consultation.
Appearing before a zoning board is often required when a property owner is seeking a specific use of their property, or wishes to appeal a decision of a town or city building department. Unlike courts, where most parties are represented by attorneys, it is common for individuals to appear on their own behalf before a zoning board (although having an attorney can help in many cases).
Here, I want to offer some advice on appearing before a zoning board in Massachusetts.
What Are the Zoning Boards in Massachusetts?
The two most common zoning boards in Massachusetts are the Zoning Board of Appeals (“ZBA”) and the Planning Board. Each town or city has different rules on the specific zoning relief that each of these boards can consider.
Some towns and cities also have zoning decisions heard by the city council or selectboard. Boston has its own, unique system of zoning decision making.
Know What Is Required For What You Are Seeking
Zoning requests have different requirements that an applicant must satisfy. Simply explaining why you want the zoning relief is generally not enough; an applicant must show why their request meets each of the requirements.
Variances have detailed requirements which are generally uniform for all Massachusetts cities and towns. Special permit requirements are often unique for each individual jurisdiction.
Put It In Writing
A good piece of advice on appearing before a zoning board is what you can do before the meeting. You should consider submitting a letter to the board, in advance, that explains what you are looking for and why you meet each of the zoning requirements.
Doing this before the meeting will give the board members time to review your request in advance.
Seek the Support of Abutters
Often, a zoning request can implicate the rights of persons living near the property, known as abutters. Because of this, zoning boards often like to hear that abutters have no objection to the zoning request before them.
If you can, try to obtain a letter of support from such abutters or, even better, ask them to appear at the meeting on your behalf. If an abutter has concerns about the zoning relief you are seeking, try to work this out with them in advance.
Understand the Appeals Process
Anyone aggrieved by a zoning decision has the right to appeal. Such appeals, however, generally come with an extremely tight deadline. If you find yourself having to appeal, be sure to pay close attention to the timing of when the appeal must be filed. You should also consider obtaining an attorney, as zoning appeals can be complicated.
Zoning is an incredibly important topic for property owners in Massachusetts. If you find yourself in need of assistance with such a matter, contact me for a consultation.
Preventing adverse possession is a concern that all property owners should keep in mind when dealing with a trespasser upon their property. Without taking the proper action, one’s property can be lost to another.
What is Adverse Possession?
Adverse possession is a legal claim that allows a party to obtain real property owned by someone else if the trespasser has used it continuously for a minimum of twenty years. Adverse possession has a number of specific requirements, including one that the use of the property must be non-permissive. In other words, the party using the property must have done so without the land owner’s permission.
In Massachusetts, there is a presumption that the use of another’s property is non-permissive, unless there is something to show otherwise. With this in mind, property owners need to be careful when dealing with a circumstance in which someone else is using their property.
Preventing Adverse Possession: Give Them Permission to Use the Property
The first, and easiest means of preventing adverse possession, is to simply give the other party permission to use the property. This is a good option when the other party’s use of the property isn’t a major concern, and (other than to avoid adverse possession) there is no real harm to the land owner.
Permission to use property can be done through a license, which is a limited right to use property that, importantly, is revocable. When giving such permission, it should always be done in writing, with proof of receipt to the other side. It is also a good idea to consider recording this notice in the land records.
Note that giving permission to the other party must be done within the twenty-year deadline for adverse possession. If the twenty-year period has already elapsed, adverse possession may already have occurred.
Preventing Adverse Possession: File a Court Action To Remove the Trespasser From the Property
If you do not want to give the other party permission to use your property, a court action to remove the trespassing party may be necessary. A court has authority to issue an injunction, which is a legal order preventing a party from doing something. In the case of a trespasser, a court can order a party to stay off of another’s property.
Preventing adverse possession is an important matter for any property owner with a trespasser. If you need assistance with such a matter, contact me for a consultation.
I previously wrote a post about Murchison v. Zoning Board of Appeals, concerning the matter of challenging a zoning decision. This was a decision from the Appeals Court that discussed who can pursue a zoning appeal. Murchison, in essence, held that any zoning decision that affected a density matter was grounds for pursuing a zoning appeal.
This decision was of great concern to many developers and real estate professionals, who worried that the decision would allow anyone to pursue a zoning appeal. The Supreme Judicial Court (“SJC”) agreed to review this decision again, and ruled that the party trying to pursue this appeal in Murchison lackedstanding to do so.
Challenging a Zoning Decision: Who Is Permitted to File an Appeal?
Massachusetts law allows for appeals of local zoning decisions from zoning board of appeals (“ZBA”), planning boards, and other local zoning agencies. Such an appeal must be filed twenty days after the decision is filed with the city or town clerk.
Challenging a zoning decision requires a party to be aggrieved. In essence, this means that the party will suffer harm from the zoning decision. In legal terms, this is referred to as having standing to pursue the case.
Standing for a zoning appeal is a critical, threshold requirement. If a party lacks standing, the appeal will be dismissed.
Zoning Appeals After Murchison
Murchison concerned one of the common grounds for showing aggrievement: density. Density is often regulated through front and side setback requirements, height limitations, and lot-width restrictions. The purpose of such density restrictions are to prevent overcrowding of properties.
Massachusetts law allows a party to apply for an exemption from a zoning requirement, known as a variance. In limited circumstances, the town or city zoning board can grant such a exemption. If, however, another party is harmed by such a decision, they have a right to appeal.
For example, if a property owner obtains a variance allowing them to build a storage shed closer to their neighbor’s home, the neighbor will likely be able to appeal this decision.
The Appeals Court decision in Murchison (which the SJC overturned) suggested that any violation of a density requirement was grounds for standing. This was contrary to prior decisions, which suggested that a party needed to show some actual harm from the zoning relief. If, for example, the party wishing to appeal was not located near the subject property, the Appeals Court decision suggested that the zoning appeal could still proceed.
The SJC overturned the Appeals Court decision in Murchisonthe day after the hearing in this matter. I’ve never heard of the SJC ever issuing a decision so quickly, which underscores the importance of this matter.
However, the SJC has not yet issued a written decision on this matter. Until they do, the law on zoning appeals remains unclear.
If you need assistance with a zoning appeal, contact me for a consultation.
Last month, I obtained a favorable decision in a Superior Court lawsuit. As a civil litigation lawyer, I generally focus on real estate matters, including landlord-tenant matters, zoning issues, and boundary disputes. This case was a different area of law than I usually handle, but still concerns some incredibly relevant topics on succeeding in a civil litigation matter.
To defend my client, I focused heavily on the extensive case law concerning this particular emotional distress claim. The law only allows such a claim in very limited circumstances, which I focused on when preparing our defense.
A successful civil litigation attorney takes advantage of discovery, the process by which a party is allowed to learn about the other side’s claims and defenses. In this case, I forced the other side to admit that they didn’t satisfy several of the requirements for their claim.
Many people, understandably, think that every legal proceeding ends in a trial, like we see on TV or movies. In reality, many claims can be resolved without a trial, through a dispostive motion, which asks the court to make a ruling on the merits of the overall claim, without a trial.
Here, I made a motion for summary judgment. Summary judgment is a final decision on a legal claim, where the relevant facts are not in dispute. Rather than go through a trial, summary judgment permits the judge to make a final decision on a case.
The decision for a civil litigation attorney to request summary judgment should not be made lightly. Summary judgment is only allowed when the facts are undisputed. If a case concerns a scenario where the parties disagree about the relevant facts, summary judgment will not be allowed.
I’ve seen too many cases where a civil litigation attorney requests summary judgment when the facts are clearly in dispute. Doing so is a waste of the client’s time and simply delays bringing the case to trial.
In this case, I believed summary judgment was appropriate, and a good use of my client’s time and money. The Court agreed, and ruled in our favor! This decision brought this matter to an end without a trial, and saved my client considerable time and money.
As a civil litigation attorney, there is no better feeling than getting your client a successful outcome in a case. It is especially gratifying when I’m able to do so at minimal time and expense for my client.
If you need assistance with a civil litigation matter, contact me for a consultation.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest blog on an upcoming Appeals Court decision regarding attorney fees for a lis pendens appeal. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at email@example.com.
In DeCicco v. 180 Grant Street, LLC, SJC-12831, the Supreme Judicial Court is considering whether a party may seek appellate attorney’s fees in a lis pendens appeal in addition to attorney’s fees in the trial court.
A defendant may challenge the lis pendens by filing a special motion to dismiss the lis pendens as frivolous or “devoid of any reasonable factual support [or] arguable basis in law [or] is subject to dismissal based on a valid legal defense such as the statute of frauds.” G.L. c.184, §15(c).
Filing a special motion to dismiss stays discovery but also expedites the case; the court shall hear the motion within three days of the date “notice of the motion was given to the claimaint.” Ferguson, 96 Mass. App. Ct. at 389, n.12. Whoever loses the special motion to dismiss also has an immediate right to pursue an interlocutory appeal-and the ultimate prevailing party has the right to recover attorney’s fees and costs. Id. , n.13.
This case stems from a purchase and sale agreement for a large, new $2M home in Lexington that went awry. The buyers (DeCicco) later filed a suit asserting breach of contract, implied warranty of good faith and fair dealing and obtained a memorandum of lis pendens.
The sellers (180 Grant Street) brought a special motion to dismiss and dissolve the lis pendens. A judge of the Superior Court allowed the motion to dismiss and concluded that the facts did not support that the buyers and sellers intended to be bound by the purchase and sale agreement-and was therefore frivolous. The judge also awarded slightly less than $18,000 in attorneys fees to the sellers. The buyers unsuccessfully appealed. However, the Appeals Court disagreed with the seller’s claim that the appeal was frivolous and declined to award attorney’s fees and cost on appeal. The sellers successfully sought further appellate review of this specific point.
The case distills to two apparently colliding definitions and applications of the term “frivolous.” As earlier, the lis pendens statute defines frivolous as a claim lacking factual or legal support or barred by an established legal defense. G.L. c.184, §15(c). A trial court that finds a frivolous claim shall award the moving party fees and costs.
On the other hand, an appeal is frivolous when: (1) under settled law, an appellant harbors no reasonable expectation of reversal or (2) when a litigant engages in such egregious conduct during briefing (like personally attacking a party or making claims without any good faith basis) that their conduct fatally quagmires any meritorious arguments. See e.g. Avery v. Steele, 414 Mass. 450, 455-456 (1993), citing, inter alia, Mass. R.A.P. 25.
However,“unpersuasive arguments do not render an appeal frivolous”-the appellate court has broad discretion to determine whether an appeal is frivolous. Steele, 414 Mass. at 455. Put another way, frivolous appeals are very much the exception and not the rule. Compare US Bank National v. Johnson, 96 Mass. App. Ct. 291, 297 (2019) (cleaned up.) (Frivolous claims are “[futile and without] a ‘prayer of a chance.’”)
The buyers argue that the express absence of a provision relating to appellate attorney’s fees in the lis pendens statute should favor them. Indeed, attorney’s fee awards are very much the exception and not the rule in American jurisprudence and in the absence of express authority for attorney’s fees, parties bear their own costs.
On the other hand, the sellers (supported by the Real Estate Bar Association [REBA] as amicus curiae) contend that the 2002 amendments to the lis pendens statute creating the expedited special motion to dismiss function to avoid long clouds over title from litigation. Awards of attorney fees are integral to those amendments to avoid those clouds and not awarding them thwarts that purpose. REBA recalls that before 2002, there was rampant abuse of lis pendens and the 2002 amendments were remedial.
The sellers further emphasize that other fee award statutes that do not explicitly mention appellate attorney’s fees are still inherent in those statutes to fulfill the purpose of those statutes. The sellers and REBA specifically analogize the lis pendens procedure to special motions to dismiss under the Anti-SLAPP statute (G.L. c.231, §59H) where appellate fee awards are available. Compare Ferguson, 96 Mass. App. Ct. at 390-391.
The sellers also argue that, in the context of lis pendens, the definition of frivolous at trial must also follow to an appeal. REBA clarifies this by arguing that the two standards are different and a finding of a frivolous claim for purposes of lis pendens is independent of a frivolous appeal.
On the one hand, the buyer’s points follow the established rule because courts do not add words to a statute that the Legislature explicitly did not include. Commonwealth v. Calvaire, 476 Mass. 242, 245 (2017). Indeed, courts cannot insert otherwise absent words by interpretive “surgery.” Commonwealth v. Dayton, 477 Mass. 224, 226 (2017). Courts also construe statutes creating appellate review strictly. Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694, 699 (1943).
On the other hand, resolving silence in a statute must also operate to further the statute or statutory scheme. Charbonneau v. Presiding Justice, 473 Mass. 515, 519 (2016). Courts also always interpret statutes as a whole. Silva v. Carmel, 468 Mass. 18, 23 (2014). If attorney’s fees are fundamental to accomplishing how the special motion to dismiss avoiding clouding title, the seller’s and REBA’s points are especially compelling.
One of REBA’s points feels hollow: how often do appeals actually result in dissolution of lis pendens? Put another way, in the context of lis pendens, is frivolous the rule rather than the exception? Having two different standards and applications of “frivolous” are sensible. Compare Commonwealth v. Trussell, 68 Mass App. Ct. 452, 454-459 (2007) (the standard of good cause to file a late appeal in criminal cases is less exacting than in civil cases because of the liberty interests at stake.) But REBA did not discuss or answer that in their brief.
At the same time, appellate review should not be so costly that there would be no review of lis pendens. This would follow from awarding attorney’s fees across the board and would potentially be an absurd and irrational result and is one that courts avoid. Compare i.e. City of Revere v. Gaming Commission, 476 Mass. 591, 606-607 (2017).
Unfortunately, due to COVID-19 crisis, unfortunately, the SJC is not hearing oral arguments in this case. Nevertheless, as the SJC often does, they will strike a thoughtful balance between these clashing principles.
Joe Schneiderman practices appellate advocacy exclusively in Massachusetts and Connecticut. Joe recently won, as amicus curiae, Youghal v. Entwistle, 484 Mass. 1019 (2020), involving appellate procedure in eviction cases, and in June 2019, Joe also successfully co-authored and appeared for oral argument on behalf of the amici in the similar case of Ten Diamond Street Realty Trust v. Farrar, 95 Mass. App. Ct. 1118 (No. 19-P-315, Rule 1:28 Decision, June 24, 2019). Joe gratefully thanks Adam for his sixth opportunity to guest blog!
Short term rentals in Massachusetts, like the rest of the country, come with some unique legal challenges. Such rentals, which most commonly occur through AirBnb, are not a traditional landlord-tenant relationship, but still come with various legal obligations.
The law is still developing, so this blog post may (and almost certainly will) need updating in the future.
Short Term Rentals and Zoning
Anyone interested in using their property as a short term rental needs to consult with their local zoning ordinances. Zoning regulates how property in a town or city may be used.
Some towns or cities in Massachusetts have heavily restricted short term rentals. In other places, such as Boston, short term rental owners need to register these units.
If you are considering a short term rental, check with your municipality and determine if any zoning relief is required. Do so before starting a short term rental (or considering buying a such a property). Some zoning relief, such as a variance, can take several months to obtain and is never a guarantee.
Short Term Rental Issues for Residential Tenancies
If you are an owner of residential property in Massachusetts, it’s a good idea to put in an addendum about whether your tenants can use their apartment as a short term rental.
While the law is not settled on this point, there is an argument to be made that, unless explicitly prohibited, short term rentals are not necessarily a violation of a standard lease agreement. Best to make this clear in any rental agreement.
Dealing With a Guest Who Won’t Leave
What happens if a short term rental guest won’t leave? Although not completely settled, it seems unlikely that such a guest would be considered a tenant, which would require a formal eviction proceeding.
In such a scenario, a short term rental owner could simply try to contact the local authorities, who may be willing to remove the holdover guest without a formal court hearing. If legal action becomes necessary, a civil action for trespass is a possibility, with a request for an immediate court order to have the occupant removed from the property.
If you need assistance with a short term rental, contact me for a consultation.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest blog on upcoming zoning decisions from the Massachusetts Appeals Court. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at firstname.lastname@example.org.
Verizon sought to build a cellular tower in Dudley. On August 22, 2017, Verizon successfully obtained a special permit from the Dudley Planning Board. On September 11, 2017, the Pecynas, as self-represented abutters, timely appealed the special permit to the Worcester Superior Court but did not join Verizon as a party. Compare G.L. c. 40A, §17 (Aggrieved party has 20 days to appeal.) Curiously, the Town Clerk issued a certificate of no appeal the next week. As ten months of litigation elapsed, Verizon built the tower.
Later represented by counsel, the Pecynas unsuccessfully sought an injunction to demolish the tower and to belatedly join Verizon as a party. A Superior Court judge denied both motions and dismissed their appeal, reasoning that: (1) because the Town Clerk never received the notice of appeal, the appeal was untimely and (2) belatedly joining Verizon would be prejudicial because Verizon built the tower despite the faulty notice. The Pecynas appealed to the Appeals Court. Curiously, the Town of Dudley did not file a brief-although Verizon appeared and argued as amicus curiae.
The Pecynas asserted that they notified the town orally that they intended to challenge and appeal the special permit. The Pecynas further asserted that they attempted to file the appeal but the Town Clerk refused to accept it until Day 21-and apparently wanted discovery on that point. By contrast, Verizon asserted that only actual notice suffices, citing much of the caselaw leading to Hickey. Verizon also asserted that the Pecynas forfeited or waived their right to seek discovery on the issue notice by filing a written motion for discovery.
Like Hickey, two compelling doctrines are clashing here. On the one hand, courts demand and enforce strict compliance with the timing and notice provisions of Section 17. Those provisions ensure that Verizon has no encumbrances to building its tower, or conversely, so the Pecynas know about and can challenge it.
If the Pecynas have truly preserved their right to seek discovery on notice, a good intermediate solution is for the Appeals Court to remand the case for a hearing on that point-and possibly even retain jurisdiction. The trial judge could weigh whether the prejudice to the Pecynas of having the town thwart their ability to appeal outweighs the prejudice to Verizon of relying on a faulty certificate to build a tower.
Nimchik (Lemire, Singh, and Wendlandt, J.J.)
This case is a challenge to “spot zoning”, i.e., singling out land in a particular area without regard to the general objectives of zoning. More specifically, a building supply company successfully applied to the Chicopee City Council to rezone parcels residential land to business land to facilitate the construction of a garage. This residential neighborhood is west of Route 33 near Westover Air Force Base. That part of Route 33 is, to quote Homer J. Simpson, a “miracle mile where value wears a neon sombrero and there’s not a single church nor cultural institution to offend the eye.” The abutters sued in the Western Housing Court, asserting that the rezoning amounted to unlawful spot zoning. A Judge granted summary judgment for the business and city.
The abutters press on appeal that constructing the large garage and subsequent large truck traffic would be detrimental to the residential neighborhood and only benefits the building supplier and is not a public benefit for zoning. The abutters further contend that the city council’s voting practices to rezone the land were unlawful because there were not enough votes supporting the rezone. Finally, the abutters contend that the judge needed to make express findings of fact resolving the appeal as the judge allowed the motion in a handwritten margin endorsement.
The city and the supplier counter that much of the abutting land is already zoned for business and that the residents will not suffer any detriment. The city and the supplier further argue that the abutters have forfeited or waived any issue on the voting practices by not expressly raising the issue in opposition to summary judgment. Much of the oral arguments focused on this point; Justice Lemire asked counsel for the abutters three different times about how and where this issue appeared below.
Spot zoning, i.e.,, that a municipality has singled out land without regard for the public welfare and purposes of zoning is certainly a serious issue since the Zoning Act requires uniformity-and amounts to a constitutional violation. But, the abutters are carrying a heavy burden to prove not only that there is spot zoning but that there should be a trial. the abutters so See e.g. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 108 (2003). The abutters’ brief hints that, perhaps, Chicopee could have and should have granted a variance because of unusual land conditions here-indeed, one parcel is triangular. But if the city and the supplier are right about the neighboring land, the motion judge probably correctly resolved the issue at summary judgment.
Johnson (Milkey, Sullivan, and Ditkoff, J.J.)
An ice cream stand owner on Lake Avenue along Lake Quinsingamond in Worcester sought to expand into a full borne fast food restaurant. He sought a special permit and variance for relief from the required parking spaces the Worcester Zoning Code require. Abutters who own property on Lake Avenue (also then self-represented) sued and the Superior Court granted summary judgment for the city and property owner.
On appeal, the abutters assert that by adopting the findings of the zoning board verbatim as their facts in support of summary judgment, which were unsupported, summary judgment was inappropriate. The abutters specifically emphasize that they put forward evidence that the expansion would increase noise, traffic and there is nothing unique about the parcel topographically to justify the variance. Rather, the Board granted the variance because it would be substantially beneficial. The abutters have also pressed that summary judgment was inappropriate in light of how the zoning appeal process is a de novo factual review.
The City counters that the abutters did not oppose their statement of facts. This raised concerns at argument-Justices Sullivan and Ditkoff alike pressed counsel for the city on whether or not there was not factual support. This led to the City’s point that the abutters have waived or forfeited this issue on appeal-and it was too late to challenge that in a motion for reconsideration. Justice Milkey contended that responses to interrogatories were part of the record-and questioned whether or not that fact alone would create a genuine issue of fact. The City continued to harp that the pro se abutters waived it-which drew serious doubt from Justices Milkey and Sullivan. Indeed, Justice Sullivan quite emphatically asked counsel for the city, “Is the city troubled by the notion of making a waiver argument against a pro se taxpayer where the problem was created by the manner in which the city presented its case?”
The verbatim adoption of one party’s statement of facts is not error in and of itself. See e.g. Cormier v. Carty, 381 Mass. 324 (1981) But, those facts are subject to challenge for clear error and reviewing courts will carefully scrutinize those findings. Id. This is also just as much of an issue in zoning cases-the verbatim articulation of the variance standards without factual support for the variance is error. Indeed, a board must make detailed findings to justify a variance. See e.g. Wendy’s Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374, 387 (2009)
If the city did indeed make shoddy findings that do not justify the variance and indeed there is no basis for it, summary judgment is completely inappropriate and a trial should occur. The only question is whether or not the abutters waived or forfeited the issue-and even that is not crystal clear. If the abutters did indeed proffer responses, that should suffice as counter evidence to defeat summary judgment.
All three appeals could rise or fall on the issue of waiver/forfeiture. The waiver/forfeiture rule means that a party cannot raise a legal issue for the first time on appeal that they did not raise in the lower court. To quote Justice John Greaney, the waiver/forfeiture rule exists because “…there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right.” Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). In criminal cases, the rule is relaxed. But in civil cases, including zoning cases, the rule is hard and harsh-even if the parties are self-represented. As earlier, if the Pecynas did not put the lower court on notice of the Town Clerk gaming the system, their appeal is or may be doomed.
Similarly, in Nimchik, although the validity of the vote to rezone is potentially a serious one, if the abutters did not properly preserve the issue, it’s not fair game on appeal-and neither the lower court nor the appellate court will comb the record to identify it. If there is a question about preservation, lay it out at the outset-or write a compelling a reply brief pointing out how the parties raised and addressed the issue below. Or better yet, avoid the issue of preservation by bringing in appellate counsel to frame and hone the legal issues and write a compelling motion or opposition.
However, in Johnson, if the parties did all they thought they could do to put the lower court on notice of some issue of fact, waiver/forfeiture is completely inappropriate. Indeed, Justice Sullivan made an important point during oral argument that it would not be fair to hold the rule against a self-represented party who tried to put the lower court on notice of an issue that the city did not.
Nimchik and Johnson offer important opportunities to clarify the application of summary judgment to zoning cases. Summary judgment is appropriate when a party’s evidence demonstrates there is no genuine issue of material fact and one party deserves judgment as a matter of law. However, zoning appeals are also de novo proceedings-that is, a court finds completely new facts without regard to how the zoning board found facts. Jury trials are available in Superior Court zoning appeals.
However, nearly 40 years ago, the Supreme Judicial Court specifically endorsed and recognized summary judgment as an appropriate remedy in zoning appeals, even though zoning appeals could be quite “factually complex.”. Framingham Clinic v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 299 (1981). Zoning boards often (tend to) assert that their decisions and findings deserve substantial deference-including on appeals from summary judgments in their favor. This is despite how appellate courts review summary judgment decisions de novo-without deference to the lower court judge.
This tangle also arises in practice. As noted earlier, the abutters/plaintiffs asserted that they wanted express factual findings in both Nimchik and Johnson. But motion judges do not find facts on summary judgment, motion judges determine whether there is some genuine issue of material fact. An express articulation of facts would be better suited for resolving a case on cross-motions for summary judgment to explain why there are no issues of fact and one party or the other is correct as a matter of law. Ideally, the Appeals Court will clarify this tangle and provide substantive guidance to the practicing bar about how to frame and pursue these motions.
Joseph N. Schneiderman has an appellate practice with a particular interest in zoning since he took on the Boston Zoning Board in the Appeals Court. Joe also speaks to the Hampden County Bar AssociatIon’s Real Estate Section about the latest appellate developments. Joe gratefully thanks Adam for another opportunity to blog!