Dorrian v. LVNV Funding, LLC (and a consolidated case) (Lawyers Weekly No. 10-053-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12355 TARA DORRIAN[1] vs. LVNV FUNDING, LLC (and a consolidated case[2]). Suffolk. January 5, 2018. – April 9, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Debt. Collection Agency. Consumer Protection Act, Collection of debt. Words, “Debt collector.” Civil actions commenced in the Superior Court Department on August 22 and December 30, 2014. After consolidation, the case was heard by Janet L. Sanders, J., on motions for class certification and for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. David Schultz (Andrew M. Schneiderman also present) for LVNV Funding, LLC. Kenneth D. Quat (Josef C. Culik also present) for Tara Dorrian & another. The following submitted briefs for amici curiae: Nadine Cohen & Philip Weinberg for Greater Boston Legal Services & others. Merrily S. Gerrish, Special Assistant Attorney General, & Heather L. Bennett for division of banks of the Office of Consumer Affairs and Business Regulation. Donald S. Maurice, Jr., & Brady J. Hermann for Receivables Management Association International, Inc. Daniel S. Blynn, Meredith L. Boylan, & Benjamin E. Horowitz, of the District of Columbia, David L. Feinberg, Joseph L. Demeo, & Lawrence S. Delaney for Cavalry SPV I, LLC. KAFKER, J. The primary issue presented is the definition of “debt collector” under G. L. c. 93, § 24, particularly its application to the statute’s licensing requirement. After being sued for the failure to pay debts, the plaintiffs, Tara Dorrian and Virginia Newton, each individually filed suit against the defendant, LVNV Funding, LLC (LVNV), claiming unlicensed debt collection. The plaintiffs also alleged violations of G. L. c. 93A, asserted claims of unjust enrichment,[3] and sought to proceed against LVNV in a class action suit. A judge in the Superior Court consolidated the cases and certified them as a class action. On cross motions for summary judgment, the judge concluded that LVNV violated G. L. c. 93, § 24A, because it operated as a debt collector without a license and granted summary judgment to the plaintiffs. On the claim that LVNV violated G. L. c. 93A, the judge granted summary judgment to LVNV because it met the exemption from liability in G. L. c. 93A, § 3, as the division of banks of the Office of Consumer Affairs and Business Regulation (division) had permitted LVNV to operate without a license. […]
WorldWide TechServices, LLC v. Commissioner of Revenue, et al. (and three consolidated cases) (Lawyers Weekly No. 10-032-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12328 WORLDWIDE TECHSERVICES, LLC vs. COMMISSIONER OF REVENUE & another[1] (and three consolidated cases[2]). Suffolk. November 7, 2017. – February 22, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Taxation, Abatement, Sales and use tax. Practice, Civil, Abatement, Intervention. Administrative Law, Intervention. Due Process of Law, Intervention in civil action. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Edward D. Rapacki for the intervener. John A. Shope (Michael Hoven also present) for the taxpayers. Daniel J. Hammond, Assistant Attorney General (Daniel A. Shapiro also present) for Commissioner of Revenue. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. KAFKER, J. Fifteen years and three Supreme Judicial Court decisions ago, this protracted case commenced regarding taxes imposed on computer service contracts. The litigation began when purchasers of the service contracts filed a putative class action against the sellers,[3] claiming under G. L. c. 93A that the imposition of these taxes was unlawful and an unfair and deceptive practice. The sellers successfully moved to compel arbitration pursuant to the terms of the computer service contracts, and a judge in the Superior Court eventually confirmed the award. The next chapter in this tax saga, and the one we are required to decide today, then ensued. For the sole and express purpose of hedging their bets in response to the class action, the sellers had applied for tax abatements from the Commissioner of Revenue (commissioner) beginning in 2004. The commissioner denied the applications, and the sellers petitioned the Appellate Tax Board (board). The appellant, Econo-Tennis Management Corp., doing business as Dedham Health and Athletic Complex (Dedham Health), one of the consumers who purchased these service contracts, moved to intervene in the proceedings, which the board allowed. Thereafter, the board, with certain exceptions, reversed the decision of the commissioner and allowed the abatements, ordering the parties to compute the amounts to be abated. Taxes totaling $ 215.55 were imposed on the service contracts purchased by Dedham Health.[4] After the class action litigation on the claims under G. L. c. 93A ended in the sellers’ favor, the sellers withdrew their tax abatement petitions with prejudice. Dedham Health moved to strike the withdrawals. The […]
Categories: News Tags: 1003218, cases, Commissioner, consolidated, Lawyers, Revenue, TechServices, three, Weekly, WorldWide
James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12325 JAMES B. NUTTER & COMPANY vs. ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]). Suffolk. October 2, 2017. – January 18, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively. A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the cases from the Appeals Court. Daniel Bahls (Uri Strauss also present) for Brett Jamieson. Effie Gikas Tchobanian for the plaintiff. Elaine Benkoski, for Estate of Barbara A. Murphy & others, was present but did not argue. GANTS, C.J. In 2007 and 2008, three elderly homeowners obtained loans from James B. Nutter & Company (Nutter), secured by reverse mortgages on their homes. A few years later, two of the borrowers died; the third took ill and could no longer live in her home. Alleging default, Nutter now seeks to foreclose on the mortgages. Rather than proceed directly to foreclosure, however, Nutter brought separate actions in the Land Court against each borrower or the executors of their estate,[3] seeking in each case a declaratory judgment allowing it to foreclose pursuant to the statutory power of sale. Each of the reverse mortgages adhered to Nutter’s standard form, which states in paragraph 20 that, in the event of default, “[l]ender may invoke the power of sale and any other remedies permitted by applicable law.” The issue we must resolve is whether this language in the reverse mortgage incorporates the statutory power of sale as set forth in G. L. c. 183, § 21, and allows Nutter to foreclose on the mortgaged property in accordance with the requirements in § 21. We hold that it does. Background. 1. Reverse mortgages. For many retirees, one of the most reliable potential sources of income in later life is the accrued equity in their homes. See Consumer Financial Protection Bureau, Issue Brief: The costs and risks of using a reverse mortgage to delay collecting Social Security, at 8 (2017). In order to secure cash for their living expenses, many […]
Young v. Young (and a consolidated case) (Lawyers Weekly No. 10-152-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12240 DEREK L. YOUNG vs. JOY G. YOUNG (and a consolidated case[1]). Norfolk. March 6, 2017. – September 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2] Divorce and Separation, Alimony, Findings. Complaints for divorce filed in the Norfolk Division of the Probate and Family Court Department on January 29 and February 5, 2013. After consolidation, the case was heard by Jennifer M.R. Ulwick, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David H. Lee (Jessica M. Dubin also present) for the husband. David E. Cherny (Erin M. Shapiro also present) for the wife. Sanford Durland, III, & Glenn M. Schley, amici curiae, submitted a brief. Jennifer C. Roman & Johnathan P. Diggin, for Women’s Bar Association, amicus curiae, submitted a brief. GANTS, C.J. The Probate and Family Court judge in this divorce action made two rulings that are the primary subjects of this appeal. First, the judge found that, where the husband’s income from his employment was “on an upward trajectory,” the wife may only maintain a standard of living “consistent with the marital lifestyle (which was one where the parties[‘] needs expanded in accordance with the increasingly available income)” by an award of general term alimony that increases commensurate with the increase in the husband’s income. Second, the judge found that, because of “the complex nature of [the husband’s] compensation over and above his base salary and bonus,” and because of “the constantly shifting nature of [the husband’s] compensation,” “it is reasonable and fair in the circumstances” to award alimony to the wife in the amount of thirty-three per cent of the husband’s gross income, rather than a fixed amount. We conclude that, where the supporting spouse (here, the husband) has the ability to pay, the need for support of the recipient spouse (here, the wife) under general term alimony is the amount required to enable her to maintain the standard of living she had at the time of the separation leading to the divorce, not the amount required to enable her to maintain the standard of living she would have had in the future if the couple had not divorced. We also conclude that, although there might be circumstances where it […]
New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-654 Appeals Court NEW BEDFORD EDUCATORS ASSOCIATION vs. CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]). No. 16-P-654. Middlesex. May 4, 2017. – August 23, 2017. Present: Trainor, Vuono, & Sullivan, JJ. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review. Declaratory Relief. Mandamus. Board of Education. Commonwealth, Education. Education. School and School Committee. Labor, Public employment. Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014. After consolidation, motions to dismiss were heard by Kimberly S. Budd, J. Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants. VUONO, J. In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3] The unions sought declaratory relief pursuant to G. L. c. 231A. NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5. The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction. Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions. On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing. For the reasons […]
Categories: News Tags: 1110817, Association, Bedford, Board, cases, Chairman, consolidated, Education, Educators, Elementary, Lawyers, massachusetts, Secondary, Weekly
Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12182 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573 vs. SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]). Suffolk. February 7, 2017. – June 23, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Internet. Civil action commenced in the Superior Court Department on November 21, 2014. A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Civil action commenced in the Superior Court Department on June 22, 2015. A motion for a preliminary injunction was heard by Heidi E. Brieger, J. A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J. The Supreme Judicial Court granted an application for direct appellate review. Andrew S. Crouch for John Doe, Sex Offender Registry Board No. 326573, & another. John P. Bossé for the defendant. Dana Goldblatt, for Committee for Public Counsel Services, amicus curiae, submitted a brief. GANTS, C.J. In Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014), we permanently enjoined the Sex Offender Registry Board (SORB) “from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender.” SORB contends in these two cases that, when it unsuccessfully seeks after July 12, 2013, to reclassify a level two sex offender as a level three sex offender, the individual is reclassified a level two sex offender for purposes of Moe, and SORB may therefore publish the individual’s registry information on the Internet. We disagree. We conclude that, under Moe, a sex offender is “reclassified” only where a hearing officer allows SORB’s motion to increase his or her classification based on new information indicating an increased risk of sexual recidivism, not, as here, where the hearing officer denied SORB’s motion for reclassification and retained the earlier level two classification. We therefore remand these cases to the Superior Court for the issuance of a permanent injunction barring publication of each plaintiff’s registry […]
Hyannis Anglers Club, Inc., et al. v. Harris Warren Commercial Kitchens, LLC (and a consolidated case) (Lawyers Weekly No. 11-063-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-34 Appeals Court HYANNIS ANGLERS CLUB, INC., & others[1] vs. HARRIS WARREN COMMERCIAL KITCHENS, LLC[2] (and a consolidated case[3]). No. 16-P-34. Barnstable. October 14, 2016. – May 23, 2017. Present: Vuono, Massing, & Sacks, JJ. Consumer Protection Act, Unfair or deceptive act, Attorney’s fees, Damages. Fraud. Deceit. Damages, Consumer protection case, Deceit. Civil actions commenced in the Superior Court Department on September 6, 2011, and April 29, 2013. After consolidation, the case was tried before Christopher J. Muse, J., and a motion for attorney’s fees and costs was heard by him. Stephen Soule & Clyde K. Hanyen, Jr., for Hyannis Anglers Club, Inc., & another. John J. Lang for Harris Warren Commercial Kitchens, LLC. VUONO, J. Shortly after 5:00 A.M. on August 27, 2010, a fire erupted in the kitchen of a restaurant in Hyannis owned by Oceans Harbors, LLC (Harbors). The blaze originated in a “Pitco Frialator” (fryer),[4] a cooking appliance, which, some twelve hours earlier, had purportedly been repaired by a technician employed by Harris Warren Commercial Kitchens, LLC (Harris), a firm engaged in repairing commercial kitchen equipment. The restaurant operated on the first floor of a two-story building owned by Hyannis Anglers Club, Inc. (Anglers Club). The Anglers Club, Harbors, and their insurer, Certain Underwriters at Lloyd’s London (Underwriters), brought this action against Harris seeking damages for the losses caused by the fire and for violations of G. L. c. 93A, §§ 2 and 11.[5] Following a trial in the Superior Court, a jury found that Harris was negligent, and the plaintiffs were awarded $ 686,496.44, exclusive of costs and statutory interest.[6] Thereafter, the trial judge, who had reserved for himself the plaintiffs’ claim under c. 93A, entered findings, rulings, and an order in which he concluded that Harris had violated c. 93A when its employee, for whom Harris was vicariously liable, disabled a safety switch on the fryer, concealed this fact from Harbors, and falsified the associated work documentation in violation of the Attorney General’s rules and regulations regarding repairs and services, 940 Code Mass. Regs. § 3.08(1)(e) (1993). The judge ruled that this deceptive conduct “caused the fire that damaged plaintiffs’ businesses and property.” However, the judge declined to find, as the plaintiffs alleged, that Harris had wilfully or knowingly violated c. 93A, a ruling that foreclosed an award of […]
Benoit v. City of Boston (and a consolidated case) (Lawyers Weekly No. 10-080-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12204 BRIAN BENOIT vs. CITY OF BOSTON (and a consolidated case[1]). Suffolk. January 9, 2017. – May 16, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Workers’ Compensation Act, Compensation, Public employee, Decision of Industrial Accident Reviewing Board, Insurer. Public Employment, Suspension, Worker’s compensation. Municipal Corporations, Officers and employees. Civil action commenced in the Superior Court Department on November 24, 2014. A motion to dismiss was heard by Linda E. Giles, J. Civil action commenced in the Superior Court Department on November 3, 2015. A motion to dismiss was heard by Paul D. Wilson, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John M. Becker for the plaintiff. David Susich (Thomas A. Pagliarulo also present) for the defendant. LENK, J. On September 5, 2011, after working almost twenty years as an emergency medical technician and paramedic for the defendant city’s emergency medical services (EMS), the plaintiff suffered an incapacitating ankle injury while transporting a patient. Unable to work, he received workers’ compensation payments for almost one year pursuant to G. L. c. 152, the workers’ compensation act. Learning that the plaintiff had been indicted on October 31, 2012, on charges relating to misuse of controlled substances intended for EMS patients, the defendant suspended him indefinitely without pay pursuant to G. L. c. 268A, § 25 (suspension statute). After the defendant, a self-insured municipal employer, discontinued the plaintiff’s workers’ compensation payments, he took the matter to the Department of Industrial Accidents (DIA); the defendant was ordered to restore those payments. When the defendant did not comply with the DIA order, the plaintiff sought enforcement in the Superior Court pursuant to G. L. c. 152, § 12 (1). The defendant argued then, as now, that the provision of the suspension statute requiring that suspended public employees “shall not receive any compensation or salary during the period of suspension” prevails over the requirements of the worker’s compensation act, and that the DIA order requiring proscribed payments should accordingly not be enforced. A Superior Court judge agreed and dismissed the enforcement actions.[2] We conclude that workers’ compensation benefits are not “compensation” as defined in the suspension statute, because they are not payments made “in return for services rendered.” G. L. c. 268A, § 1 (a). The Superior Court actions brought by […]
Verizon New England Inc. v. Board of Assessors of Boston (and a consolidated case) (Lawyers Weekly No. 10-173-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12034 VERIZON NEW ENGLAND INC. vs. BOARD OF ASSESSORS OF BOSTON (and a consolidated case[1]). Suffolk. April 7, 2016. – November 2, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.[2] Telephone Company. Taxation, Assessors, Personal property tax: value. Constitutional Law, Taxation. Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William Hazel for the taxpayers. Anthony M. Ambriano for board of assessors of Boston. Maura Healey, Attorney General, & Daniel J. Hammond, Assistant Attorney General, for Attorney General & another, amici curiae, submitted a brief. Kenneth W. Gurge, for Massachusetts Municipal Association & others, amici curiae, submitted a brief. BOTSFORD, J. Two telephone companies appeal from a decision of the Appellate Tax Board (board) upholding the property tax assessments by the board of assessors of Boston (assessors) for fiscal year (FY) 2012 on certain personal property each company owns. At issue is whether the tax assessments, which were based on a “split” tax rate structure determined in accordance with G. L. c. 40, § 56 (§ 56), constituted a disproportionate tax that, as such, violated the Constitution of the Commonwealth. More particularly, the question is whether the split tax rate structure authorized by § 56 — a rate structure that provides for taxable personal property to be taxed at a rate identical to the rate applied to commercial and industrial real property but higher than the rate that would apply if all taxable property, real and personal, were taxed at a single, uniform rate — violates the proportionality requirement of Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth, as amended by art. 112 of the Amendments to the Constitution, as well as art. 10 of the Massachusetts Declaration of Rights. We conclude that the split tax structure authorized by § 56 and related statutes does not violate the Massachusetts Constitution. We affirm the board’s decision.[3] Background.[4] a. Procedural background. Verizon New England Inc. (Verizon) and RCN BecoCom LLC (RCN) (collectively, taxpayers) are subject to property tax in the city of Boston on personal property consisting primarily of machinery, poles, underground conduits, wires, and pipes (§ 39 property) that they own and use for business purposes. Pursuant […]
Chiaraluce v. Zoning Board of Wareham (and a consolidated case) (Lawyers Weekly No. 11-040-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-328 Appeals Court JOSEPH H. CHIARALUCE, trustee,[1] vs. ZONING BOARD OF APPEALS OF WAREHAM (and a consolidated case[2]). No. 15-P-328. Suffolk. January 7, 2016. – April 8, 2016. Present: Hanlon, Sullivan, & Maldonado, JJ. Zoning, Nonconforming use or structure, By-law. Civil actions commenced in the Land Court Department on July 21 and July 25, 2011. The cases were heard by Gordon H. Piper, J. Richard M. Serkey for Joseph H. Chiaraluce. Mark J. Lanza for Denise R. DePedro. SULLIVAN, J. Joseph H. Chiaraluce, trustee of the Chiaraluce Realty Trust (trust), appeals from a judgment of the Land Court in a consolidated action, which determined that the trust was not entitled to a building permit for its Wareham lot (locus). A judge of the Land Court concluded that the right to rebuild the nonconforming residential structure that once occupied the lot had been abandoned as a matter of law. We affirm. Background. We accept the facts as found by the trial judge, unless they are clearly erroneous, Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 523 (2008), and “do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge’s findings.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014). The locus, the subject of numerous efforts to build, is comprised of 7,012 square feet in a residential district that has a current minimum lot size requirement of 30,000 square feet. It has no street frontage and is accessible from the street over a twelve-foot-wide right of way. Olaf, Lorraine, and Laurence Olsen (the Olsens) purchased the locus in 1971 for $ 16,000, at which time it was improved with a residential cottage ten feet in height, twenty feet in length, and thirty feet in width, with a gross living area of 600 square feet. In August of 1991, Hurricane Bob damaged the cottage, forcing it off its cement block foundation and separating the porch from the cottage. Thereafter, in September, 1991, the Olsens dismantled and removed the cottage from the locus. Wareham’s zoning board of appeals (ZBA or board) granted a “blanket” special permit for reconstruction of residences damaged by Hurricane Bob. Although the Olsens obtained such a permit in March of 1992 […]
Categories: News Tags: 1104016, Board, case, Chiaraluce, consolidated, Lawyers, Wareham, Weekly, Zoning