Is Governmental Response to Virus

WWW.REBA.NET THE NEWSPAPER OF THE REAL ESTATE BAR ASSOCIATION SEPTEMBER 2020 • Vol. 17, No. 4 Supplement of Massachusetts Lawyers Weekly Non-party abutter Is governmental deemed not bound response to virus by Land Court pact worse than the BY MICHAEL J. O’NEILL In a clear, well- reasoned opinion disease itself? deciding the case of Stevens, Trustee BY EDMUND A. ALLCOCK v. Zoning Board of Appeals of Bourne, No. 19-P-248 COVID-19 has turned our ( June 19, 2020), country and our way of life upside the Appeals Court down. For those of us in real estate, (Green, C.J.) held that a settlement it has had a significant impact. Like agreement between the town’s selectmen some emergencies, sometimes the and a property owner resolving a Land cure is worse than the disease. Court action did not bind an abutter who Massachusetts is one of 28 states was not party to the litigation. that have enacted some sort of evic- Consequently, the abutter was en- tion and foreclosure moratorium. In titled to use all procedures available under Massachusetts, the moratorium was enacted in March and ©lightsource G.L.c. 40A to challenge a use as a viola- is currently extended through October. In conjunction with tion of the Bourne Zoning Bylaw. that moratorium, back in March, Attorney General Maura ise of the American dream. Stimulus checks and an extra The case ofMorganelli v. Building In- T. Healey issued a 90-day collection moratorium on every- $600 a month for the unemployed might be an appropri- spector of Canton, 7 Mass. App. Ct. 475 thing other than evictions and foreclosures. Both morato- ate response; closing the courts and restricting freedom of (1979), has been a leading case on the riums prohibited the sending of any collection notices and speech are dangerous. Our legislators and politicians have application of res judicata in the zoning also prohibited the filing of almost all court cases to collect once again forgotten the working man or woman. What context and was relied upon by the prop- rent or mortgage payments. about the individual who buys a two- or three-family in an erty owner. The Appeals Court inStevens The AG’s collection moratorium was challenged in fed- effort to live out the American dream? confronted Morganelli head on, distin- eral court and found to be unconstitutional as it violated Whether intentioned or not, the eviction moratorium guishing it on several procedural grounds. the First Amendment to the U.S. Constitution’s guaran- sends a message that tenants do not have to pay rent. Why In Morganelli, an abutter brought an tee of freedom of speech (i.e. collection notices sent in the should they? After all, the landlord can’t even set foot in a action for mandamus against the building mail) as well as the guaranteed right of every citizen to ac- court of law. In fact, he can’t even communicate with his inspector, challenging a building permit cess the court system. tenant. Meanwhile, the landlord still must pay the taxes, for construction on a non-conforming Currently, there is a similar constitutional challenge in the electricity, etc. lot. The question of whether a building Massachusetts state court to the eviction moratorium. The response to COVID-19 is more dangerous than could be constructed on the lot had been Presumably, the response to COVID-19 is well inten- the disease itself. Tenants can still be protected in the the subject of a prior action by a former tioned. The concept, albeit having a decidedly socialistic courts. Judges and courts are well equipped to review (as owner of the lot and was finally adjudi- bent, is to prevent people from losing their homes, but at they often do) each case on its facts, consider the equities cated to allow construction. Id. at 408. what cost? in each case that may be presented by the COVID emer- The abutter was not a party to the prior Instead, the idealistic and socialistic response to CO- gency, and then rule accordingly. action. VID-19 has created an unprecedented constitutional crisis. As U.S. District Court Judge Richard Stearns said in In Morganelli, the Appeals Court con- If freedom of speech and access to the court system can be his recent decision declaring the Massachusetts collection cluded that the prior action was, in sub- eradicated because of a virus, then we are in big trouble. moratorium unconstitutional: stance, an action against the citizens of Blanket moratoriums cut a big swath and destroy the prom- See page 2 Canton, in which the building inspector See page 7 SJC: no per se zoning injuries as basis for standing BY DANIEL P. DAIN applicable in zoning appeal cases. sons had failed to introduce non-speculative evidence The facts of the case are unusual for a battle over of a more than de minimis injury if the proposed house Last September, the Ap- density. Merriann Panarella and David Erichsen pro- were actually built. peals Court rocked the zoning posed to build a single-family home on an unimproved Worry not, the Appeals Court concluded in review- litigation world when it found wooded three-acre lot in Sherborn. When the building ing the Land Court’s decision. No such evidence is re- in Murchison v. Sherborn ZBA inspector issued a foundation permit for an as-of-right quired to establish standing. To reach that conclusion that an injury sufficient to confer project (meaning the inspector found that the proposal required some maneuvering by the Appeals Court. standing in zoning appeals can fully complied with all applicable zoning requirements It started with the zoning violation — lot width — be inferred from the combination and did not need any zoning relief ), Robert and Ali- asserted by the plaintiffs. If a house does not comply of proximity and an allegation of son Murchison, who live across the street on a 13-acre with a lot-width requirement, then it is not a buildable a violation of a zoning require- similarly wooded lot, appealed to the Sherborn Zoning lot, and hence a house built thereon would impermis- ment. What was missing from the Appeals Court’s Board of Appeals, arguing that the building inspector sibly increase density. This was an unusual expansion of analysis was any proof of actual injury by the plaintiff. had incorrectly measured lot width. the conception of density controls. Under this reason- On March 6, one day after oral argument on further The ZBA disagreed and the Murchisons appealed ing, every dimensional requirement would be a form of appellate review, the Supreme Judicial Court issued a under G.L.c. 40A, §17, to the Land Court, asserting density control as permitting construction of a house terse order affirming the Land Court’s dismissal of the that they would be injured by the increased neighbor- that does not comply with zoning would add a house zoning appeal, by implication reversing the Appeals hood density introduced by a new house across the that otherwise would not have been there. But density Court. A more detailed decision by the SJC followed, street. is usually not thought of in this way; rather, density on July 16. The decision takes a close look at density as After a four-day trial and a view, the Land Court a basis for standing, but its reasoning is more broadly dismissed the action on the ground that the Murchi- See page 9 PAGE 2 REBAnews SEPTEMBER 2020 My summer reading included a story of a family and a century in their summer home on the Cape BY PAUL F. ALPHEN “The definition of a proper Bosto- nian, it used to be said, was some- one who lived on Beacon Hill and had an uncle in McLean,” accord- ing to one of the books I read on one of my summer vaca- tions: “The Big House: A Century in the Life of an American Summer Home” by George Howe Colt. The book, as the title states, is the story of a big rambling wreck of a house on Wings Neck, in Bourne, owned and used by generations of relatives, starting with the author’s great-grandfather who ©mamahoohooba built the home when Cape Cod was mostly scrub pine. author claims, that was first built at the tions for the sale of real estate near the The author’s great-grandfather gen- urging of fellow Wing’s Neck neigh- shore are going rapidly and parties are erously shared the house with the ne’er- bors). realizing good prices.” Why I am a REBA member… do-wells in the family. There was no But I stuck with the book for two Soon thereafter, summer colonies On the first day of my first job shortage of Harvard-educated hangers- reasons. First, reading about the genera- were created along the coastline. “A as an attorney, in 1985, I became a on, none of whom tions of Bostonians Boston family put up seven large sum- member of the Massachusetts Con- appeared to own a that returned to the mer homes on an old cabbage patch veyancers Association. Having the hammer (or know Contemplations, Big House each and called it Wild Harbor. A group of Standards and Forms to refer to have how to use one). Ruminations and Musings summer was like Brockton speculators carved a nameless been invaluable to my small practice; The author shares of a Country Lawyer watching a slow mo- ox pasture into five hundred small lots having them to rely upon is like being his family secrets (al- tion train wreck, and and called it New Silver Beach.” able to run something by an infal- coholism and men- it was hard to look Numerous names of the original lible seasoned expert.

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