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Town must pay fees over 40B opposition.

Byline: Kris Olson

A rare decision ordering a town to pay a developers legal fees is a clear warning to municipal officials not to allow local anti-affordable-housing fervor to affect their decision-making processes, attorneys say. The developer in the case had proposed using a parcel it had acquired from the town four years earlier to build a 250-unit development under the states affordable housing law, G.L.c. 40B. The town subsequently sued the landowners and the developer, claiming that the land-swap transaction had created a restrictive covenant or equitable servitude, which limited the use of the privately owned parcel to one single-family home. The town also argued that the Board of Selectmen had acted beyond the authority Town Meeting had granted it by conveying the parcel to the trust without such a restrictive covenant. Both sides moved for summary judgment, with the defendants prevailing. The defendants then sued for attorneys fees under G.L.c. 231, 6F. To prevail under the statute, the defendants would have to show that the towns claims had been wholly insubstantial, frivolous and not advanced in good faith. The defendants argued that the town either knew or should have known its claims were without merit and forged ahead merely to delay or thwart the G.L.c. 40B development. While Land Court Judge Howard P. Speicher may not have used the words wholly insubstantial or frivolous in his summary judgment decision, he wrote that he did not find any of the issues raised by the Town to present anything resembling a close call. [divider] The Town filed the present action with knowledge that it was without legal or evidentiary support, and for the purpose of blocking the proposed G.L.c. 40B development on the back of its frivolous claims. Judge Howard P. Speicher [divider] As for the absence of good faith, Speicher noted that the record contained uncontradicted evidence that town officials understood prior to the conveyance that the parcel would not be subject to a restrictive covenant. The Town filed the present action with knowledge that it was without legal or evidentiary support, and for the purpose of blocking the proposed G.L.c. 40B development on the back of its frivolous claims, Speicher concluded. The 12-page decision is Town of Sudbury v. Bartlett, et al., Lawyers Weekly No. 14-6-17. The full text of the ruling can be ordered here. Rare motion William C. Henchy, who represented developer Sudbury Station LLC, said it was the first G.L.c. 231, 6F motion he had filed in 33 years of practice, and the first he had ever seen allowed. While Chapter 40B affordable housing projects are often controversial, opposition to the Sudbury proposal was a little bit beyond the pale, the Orleans attorney said. While the towns suit suggested that there had been an agreement to develop only one house on the swapped land, Henchy said there was never any such agreement, which the town knew full well. Henchy obtained proof of that assertion via the minutes of a 2011 executive session meeting of the Board of Selectmen. At that meeting, the town planner reported that the property owners had been asked to deed restrict the parcel to one lot and had responded no. The chairman of the board stated that even without the restriction, the land swap is still a good deal for the Town, the minutes indicated. Henchy said the Supreme Judicial Court served a warning 30 years ago in the case Pheasant Ridge Associates Limited Partnership, et al. v. Town of Burlington, et al. In that case, the SJC invalidated a municipal land taking, which was proper on its face, because it had been undertaken in bad faith solely to block a Chapter 40B development. Chapter 40B does allow cities and towns to seek modifications or deny projects altogether, if there is a legitimate community concern, such as safety, Henchy said. But what it cannot do is engage in political pandering and try to stop a 40B project simply because it is not popular, he added. You run a risk if you go outside the lane, he said. Here, the town of Sudbury was well outside the lane. The towns Boston attorney, Donald R. Pinto Jr., declined to comment, citing the plaintiffs pending appeal. [divider] You run a risk if you go outside the lane. Here, the town of Sudbury was well outside the lane. William C. Henchy, lawyer for developer   [divider] Like Henchy, Sudbury attorney Robert D. Abrams, who is representing the trustee landowners, said he has found Chapter 231, 6F motions rare in 45-plus years of trying cases. And, while nine out of that he has seen have been denied, he guessed that such motions would be denied 99 out of 0 times when brought against a municipal corporation or government agency. But here, the facts warranted Speichers finding, Abrams said. What should help the defendants award of fees withstand appellate review is the volume of evidence and the fact that the town doesnt deny one ounce of those facts, he added. To Abrams, Speicher followed the path outlined by Justice Robert J. Cordy in the SJCs 20 decision Fronk, et al. v. Fowler, et al., which instructed judges to take all of the circumstances into consideration when assessing bad faith under a G.L.c. 231, 6F motion. Given that 40B was specifically aimed at so-called bedroom communities, Speichers decision sends the message that courts are not going to allow municipalities to unreasonably obstruct affordable-housing developments under the law, Abrams said. Courts understand that if 40B is not vigorously enforced by courts, then developers will not able to withstand the delays, and the goal of providing subsidized housing will not be met, he said. Boston attorney George A. Hall Jr., who represents municipalities, agreed that cities and towns are generally given the benefit of the doubt with their court filings. But when they are trying to derail a 40B project, suddenly their motives will be scrutinized closely. As municipal counsel, Hall said he tries to make sure that the decision-makers do not get caught up in the emotion that often greets 40B proposals. The case also offers a reminder to municipalities just how much is in the public record that can come back to haunt them in later court proceedings, he said. That includes executive session minutes, which become public documents once the valid reason for calling the session dissolves. With a business client, those conversations never come out, he said. With towns, they do. Northampton attorney Michael Pill predicted that the towns appeal of the decision will be successful, adding that he finds the chilling effect of Speichers decision deeply concerning The town has a constitutional right to petition for redress of grievances, Pill said, adding that that right is reinforced by the anti-SLAPP statute, G.L.c. 231, 59H. Swap leads to conflict In May 2011, Sudbury Town Meeting voted to transfer a 45,24-square-foot parcel to the JOC Trust. In exchange, the town received a parcel of approximately two acres for use as a cemetery. The vote was made subject to the towns Planning Board approving a subdivision plan for the trusts land. The plan that was approved limited the subdivision to one residential lot. The subdivision plan was referenced in the deed to the parcel, which the Board of Selectmen executed on Nov. 7, 2012. On Jan. 29, 2016, Sudbury Station LLC applied to the Board of Appeals for a comprehensive permit under Chapter 40B to build 250 dwelling units on the land shown on the subdivision plan. The Board of Appeals subsequently approved a 30-unit project, which the developer is separately challenging before the Housing Appeals Committee. In the towns suit against the developer and trustees, Speicher on Oct. 6 rejected the towns arguments that the land-swap transaction had created a restrictive covenant or equitable servitude, limiting the use of the trusts parcel to one single-family home. Specifically, the town argued that the intent to create a restriction was clearly apparent in the language of both the subdivision plan and the town vote recorded with the deed. But Speicher found that that inference was wholly unjustifiable, and is so contrary to the apparent intent of the deed as to raise no legitimate issue of ambiguity (of the deed so as to justify the consideration of parol evidence). The argument that an equitable servitude had been created fared no better, in large part due to the absence of a writing that would satisfy the Statute of Frauds. And there was no ambiguity in the Town Meeting vote, Speicher added. While he did not specifically label the claims wholly insubstantial or frivolous initially, he also did not find them merely to be of the novel legal theory variety, Speicher wrote in his decision on the defendants motion for attorneys fees. Rather, I considered them, and so find them to have been, advanced with a lack of any substantial legal or evidentiary support, he wrote. While the executive session minutes were strong evidence of a lack of good faith, it was not the only undisputed evidence, Speicher noted. Specifically, he cited the statement by a member of the Board of Selectmen decrying Sudbury Station as the kind of project that would bring the riff-raff into the center of town you know, riff-raff like they have in West Virginia, with people that will be working on their cars in the front yards, hanging laundry on their laundry lines, and leaving a mess outside. The town subsequently confirmed its intent to block the 40B project by issuing an official press release after filing suit, which referenced an attempt to enforce restrictions on a parcel of land, restrictions it knew it did not own, Speicher noted.   Town of Sudbury v. Bartlett, et al. THE ISSUE: Can a plaintiff municipality be ordered to pay defense fees under G.L.c. 231, 6F? DECISION: Yes, because in its opposition to a Chapter 40B affordable housing project it advanced wholly insubstantial and frivolous claims without good faith (Land Court) LAWYERS: Donald R. Pinto Jr. of Pierce Atwood, Boston (plaintiff) Robert D. Abrams of Sudbury (defendant JOC Trust) William C. Henchy of Orleans (defendant Sudbury Station LLC)

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Title Annotation:affordable housing law, Massachusetts
Author:Olson, Kris
Publication:Massachusetts Lawyers Weekly
Date:Dec 28, 2017
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