by Henry Lane, Attorney
Lane & Hamer, Whitinsville, MA

The ongoing saga of the recently constructed billboard on the Long Subaru property along Route 395, has moved a step closer to resolution.  On March 18, 2013, Judge Tucker of the Worcester Superior Court entered a judgment on the billboard company's appeal of the Building Inspector's determination that the billboard violated the height restriction in the Town's zoning bylaws.  Although Judge Tucker determined that the billboard did in fact violate the height restriction, he did not order the sign demolished or reduced in height.  Instead he ruled that the billboard could remain until it is damaged or destroyed by weather or accident or the ownership of the property on which it is located changes.

The case was heard on cross motions for summary judgment and without the necessity of a trial since both parties agreed that the facts were not really in dispute and that the Judge could decide the case without the necessity of live testimony.  Both sides agreed that the billboard had been constructed pursuant to a building permit issued by Webster's Building Inspector and that the Webster Zoning Board of Appeals had previously decided that the sign was located in a zoning district in which billboards are permitted after an initial challenge to the construction of the billboard. It was also agreed that a third building inspector ultimately determined that although the sign is properly located, it was 85 feet high and exceeded the "four story" height limit in the zoning bylaws.  That determination was appealed to the Zoning Board of Appeals which on a 3-1 vote failed to overturn the Building Inspector's determination because such decisions require a 4 vote majority of the Zoning Board of Appeals.

The primary issue before the Superior Court Judge was a question of whether or not the Building Inspector would be allowed to take a "second bite" at enforcing the bylaw after the first attempt was overturned by the Zoning Board of Appeals.  The billboard company argued that, since the legality of the billboard had once been challenged, and that the Zoning Board of Appeals' decision denying that challenge was not appealed by anybody, its decision was final and that no further challenge should be allowed.   The Town, on the other hand, argued that the initial challenge was limited to the question of whether or not the sign was located in an appropriate district and it did not deal with the height issue and, therefore, the Town should not be precluded from enforcing the height issue separately. 

In a 14-page decision, Judge Tucker addressed all of the issues and concluded that the sign did exceed the "four story" height restriction in the zoning bylaws. He also decided that since the first enforcement action only dealt with the location of the sign and not its height, the Town was not precluded from bringing a separate enforcement action related to the height issue. However, the Judge also found that the billboard company had obtained a building permit for the sign and had constructed the sign in good faith.  Furthermore, he noted that there was no challenge to the construction of the sign until it had been completed.

Under the circumstances, the Judge weighed the equities and determined that requiring the sign to be lowered would result in economic waste and a reduction in its usefulness.  Accordingly, Judge Tucker determined that as an equitable matter, the sign should be allowed to remain until it was damaged or destroyed or ownership of the property changed.  Despite Judge Tucker's efforts to resolve the case in a manner he judged to be fair to both sides, apparently neither side was satisfied and both parties have filed appeals from the decision. Assuming the trip to the Appeals Court follows the usual course, the billboard will remain for at least another year. 

By Attorney Henry J. Lane
Lane  Hamer, Whitinsville, MA

For the last 500 years or so, English common law and its progeny, including the laws of the Commonwealth of Massachusetts, have required that certain contracts be in writing and  signed in order to be binding.  Among the more important contracts that must be signed and in writing are contracts involving the purchase and sale of real estate.

The requirement for such contract to be in writing was clearly intended to insure that there was no misunderstanding concerning the terms and conditions of the agreement, particularly with regard to significant terms such as the purchase price.  The requirement for a signature insured that both parties clearly understood that they had progressed beyond the negotiation stage and that they intended to be bound by the agreement.

by Attorney Henry J. Lane
Lane & Hamer P.C.

 Recent media coverage of the aggressive efforts of Webster's code enforcement officials to bring property into compliance with local building and zoning regulations, dovetailed nicely with the latest episode in the saga of the Route 395 billboard.

On January 10, 2013, the Worcester Superior Court concluded its hearings on motions for summary judgment in the ongoing dispute concerning the billboard along Route 395 on the Long Subaru property.  The focus of the legal argument is the question of whether or not the Town is prevented from attempting to enforce the height restriction in its zoning by-laws in view of the fact that the issue was not raised when the Building Inspector originally questioned the construction of the billboard. At that time, the Building Inspector questioned whether or not the billboard was located in a commercial area as required by the zoning by-laws.  The matter was presented to the Zoning Board of Appeals which concluded that the billboard was located in a commercial area and complied with local requirements

by Henry Lane, Lane & Hamer 

One of the great estate planning legends is the story of the attractive young woman who married a wealthy old widower.  Like Anna Nicole Smith, our young maiden undoubtedly married only for love.  But despite the depth of her affection, she had the presence of mind to postpone the wedding until after our love-struck geezer prepared a new will, leaving his entire estate to her.  Once she confirmed that she was named as the sole devisee in the new will, she agreed to tie the knot.  After an intense but blissfully short married life, our wealthy bridegroom expired and his young bride was left to mourn her loss.  But it was only after the funeral that she discovered the actual extent of her loss.

Old Massachusetts law always provided that marriage cancels a will, unless the will specifically referenced that it was made in contemplation of marriage.  Since our wealthy widower had good legal advice, his will named his young love as his devisee, but made no mention of the impending nuptials and therefore, it was automatically revoked when he married. Our young widow was not left totally destitute of course, since she was entitled to a widow's share of the late husband's estate but substantially less than she would have received if the will had been effective.

With the adoption of the Massachusetts Uniform Probate Code effective March 31, 2012, marriage is no longer a change of circumstance that will automatically revoke a will.  A will prepared before marriage now remains valid, and if the will does not include provisions for the new spouse, the new spouse only has the right to a widow or widower's share of the decedent's estate if the old will did not leave the estate to his or her children by a prior marriage.  Obviously, even though marriage no longer revokes a will, it is still a significant change in circumstances that would warrant the making of a new will in most cases.

The traditional effect of the other two circumstances that revoked all or parts of a will remain.  Divorce continues to revoke any provisions in a will for a former spouse, as well as the designation of the former spouse as the beneficiary of trusts or life insurance policies.  However, the general rule can be modified by agreement or court decree.  For example, divorce decrees often require a spouse to maintain life insurance for the benefit of a former spouse to ensure payment of alimony or child support in case the spouse with greater earning capacity meets an untimely end.  

The other circumstance that continues to revoke certain provisions of a will is the felonious and intentional killing of the decedent. To ensure that individuals don't benefit from their criminal activity, any provision in a will for the decedent's killer or his or her accomplices is automatically revoked.  An heir need not be convicted of first or second degree murder in a criminal case in order to lose an inheritance.  Since the standard of proof is different in criminal and civil cases, a person who is acquitted in a criminal case because his guilt was not established beyond a reasonable doubt, could still lose an inheritance if a probate court determined that even though guilt was not proven beyond a reasonable doubt it was established by a preponderance of the evidence, a lower civil standard.  Somewhat surprisingly, the law does not cancel gifts to individuals responsible for accidental death or even manslaughter.

by Henry Lane, Attorney
Lane & Hamer, Whitinsville, MA

Despite their frequent mention in late Victorian English literature, orphaned children in Massachusetts are relatively rare today.  Even rarer is the orphan child with even a modest inheritance.  Nevertheless, attorneys have always advised parents with minor children that they should have a will that makes provision for their children in the event of the parents' untimely demise. 

Typically, parents had wills prepared which included provisions naming guardians to take physical custody of any minor children and to raise them as their own parents would have.  If the parents had significant assets or life insurance, the wills would also frequently appoint a trustee to manage any property left to the children.  In many cases the appointed guardians and trustees might have been the same individual, but if there were significant assets, parents would sometimes choose an individual who had demonstrated good parenting skills as guardian, and another person who demonstrated good money management skills as the trustee to manage the children's financial future.  In cases where the parents had more sophisticated financial circumstances, sometimes the trustee would be a bank or trust company. 

This basic plan worked well but had one major drawback.  The guardian or trustee had an obligation to prepare and file a financial accounting with the probate court every year.  In addition to filing the financial account, the account had to be allowed by the court which required notification of interested parties and sometimes an actual court hearing.  Although the time and expense involved in having the annual accountings approved was sometimes justified in cases where the children inherited significant wealth, in the case of a more typical family, the time and expense were a significant burden and not justified by the amount of money involved.  In addition, annual accountings filed with the probate court are available to the public and therefore did not afford the level of privacy that many families desired. 

In order to avoid the time and expense of filing and petitioning for approval of annual accounts as well as to avoid public scrutiny, many lawyers would recommend that a trust for minor children be set up independently of the will. The parents would then pass property to the trustees of the separate trust for the benefit of the children in the event of the parents' demise.  The separate trust would still allow for accountability by providing for review by other family members or trusted advisors.  Although the creation of a separate trust was an effective work- around, it did involve the complexity and expense of having to create two separate sets of documents initially and also amending two sets of documents if any changes were required.  The cost of creating, maintaining and administering two separate sets of documents can be justified if there is significant wealth involved, but for the more modest circumstances of most young parents it only added unnecessary expense and complexity. 

The recent adoption of the Massachusetts Uniform Probate Code has eliminated the requirement for the filing and approval of annual accounts by trustees appointed under a will.  The benefit of having the will appoint a guardian or trustee to manage the financial affairs of young children can now be realized without the unnecessary burden of probate court oversight.  The statistical probability of one's minor children becoming orphans remains remote and in most cases, it is no longer necessary to create a separate trust to avoid the burden and expense of annual accountings.

By Henry Lane, Attorney
Lane and Hamer, Whitinsville, MA

In a case recently decided by the United States District Court sitting in Worcester, the Town of Mendon was ordered to pay an adult entertainment company $24,754.56 for legal fees it incurred in obtaining a determination that a zoning by-law regulating adult entertainment was unconstitutional.  Like many towns in recent decades, the Town of Mendon established an adult entertainment zone in an area set aside for commercial uses.  The Mendon by-laws required that an adult entertainment business obtain an entertainment license from the Board of Selectmen and also a special permit from the Zoning Board of Appeals.  The adult entertainment company applied for a license from the Board of Selectmen for an establishment that would provide live, nude dancing and the Selectmen issued the license.  Then, instead of applying for a special permit from the Zoning Board of Appeals, the applicant went straight to court.  In its court action, the company argued that the requirement for a special permit was a prior restraint on the applicant's right of free speech and therefore unconstitutional.     Although the Mendon zoning by-law carefully regulated and limited uses in the adult entertainment district it did not clearly delineate the standards that the Zoning Board of Appeals was required to apply in deciding on whether or not to issue a special permit. Without clear standards to guide the Zoning Board, the Court decided that the by-law left too much discretion to the Zoning Board and was therefore unconstitutional.

The adult entertainment company went on to challenge mandatory conditions for all adult entertainment establishments in Mendon.  The conditions prohibited establishments from operating before all school bus routes were completed, limited the size of buildings to 2,000 square feet and most importantly prohibited the serving of alcohol in such establishments.  Despite the fact that the conditions severely limited adult entertainment businesses, the Court ruled that the conditions were reasonably related to legitimate community interests in addressing traffic and public safety concerns in a small town.

In upholding the restrictions on adult entertainment establishments, especially the prohibition on sale of alcohol, the Court may have effectively prevented the nude dancing establishment from ever operating. However, since the adult entertainment company did win the "free speech" argument, it was entitled to recover its attorneys' fees on that portion of the case.

Many towns have adopted by-laws similar to the by-laws in the Town of Mendon and many suffer from the same infirmities.  For example, the Town of Webster also requires a special permit from the Zoning Board of Appeals for adult entertainment businesses, and also fails to set clear standards for evaluating applications.

The Mendon case has been appealed by the adult entertainment company, so it is possible that the final outcome will be less favorable to the Town of Mendon.  However, based on the rulings in the case so far, towns would be well advised to carefully review their adult entertainment by-laws and either eliminate the special permit requirement or set clear standards for evaluating applications.

Several weeks ago, we discussed the recent changes made in the rules for the descent and distribution of the property of deceased persons. Those statutory rules effectively create a will for people who die without having prepared their own will and generally provide a reasonable plan for the distribution of property to the people the law has traditional considered to be the natural objects of a decedent's affections.  Of course, relying on the default rules for the distribution of property leaves a lot of details unaddressed. It fails to consider who might be an appropriate person to handle the details of estate administration; the person historically called an executor, but now called a personal representative.  It fails to address the needs of minor children, including the potential need for guardians, or to deal with the possibility of an incapacitated spouse or parent.  It also fails to anticipate estate tax issues that will again become a major concern for many middle income families if Congress allows the current estate tax exemptions to expire on January 1, 2013.

In order to address some of these issues, the Massachusetts legislature supplemented the basic rules for the descent and distribution of property by drafting a model will which is actually incorporated into the General Laws.  Originally adopted in 1987, the statutory will allows an individual to adopt a more sophisticated estate plan by simply executing a will stating that the individual is adopting the statutory will and naming a personal representative and any guardians or trustees that may be required.

The statutory will can be adopted in whole or in part, so it is quite flexible.  In its complete form, it is designed to take advantage of favorable estate tax treatment, provide for an incapacitated spouse, minor children and efficient estate administrator. Of course, all of those objectives can also be achieved in the traditional way, that is, by simply writing a regular will.

The statutory will in its complete form includes about 12 pages of text and often requires some customization to address particular situations like specific gifts of property or charitable bequests, which makes use of the model somewhat cumbersome.  Furthermore, the advent of word processors has made the customization of complex documents much easier so the adoption of a “boiler plate” will by reference to a statute is much less attractive.

In retrospect, it appears it appears that the statutory will was a solution looking for a problem. Despite being available for the past 25 years, the statutory will has never been widely adopted, and although it was designed for use in all fifty states, only Massachusetts still has it on the books.  However, if one is interested in reading the text of the legislatively suggested will, it available on-line. Search for Massachusetts General Laws Chapter 191B.

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Updates to Massachusetts law
became effective March 31, 2012.

There has always been some confusion concerning what happens to the estate of a person if he or she dies without a will.  Contrary to the fears of some, if you die without a will, your property does not automatically pass to the state unless you die without heirs, in which case your property will pass to the state.  For individuals dying without a will but with living relatives, Massachusetts has always provided for the distribution of the estate to the person's living relatives.  The distribution of the estate, however, has changed over time and was most recently revised again with statutory changes that became effective on March 31, 2012.

In the past, most of the changes in the rules concerning the distribution of estates tended to favor a surviving spouse.  For example, prior to 1978, children received two-thirds of the estate and a widow received one third.  In 1978, the ratio was changed so that the children received only one-half of the estate and the widow received the other half.  The most recent change recognizes that family compositions have become significantly more complex over time and takes into account situations in which a married couple may have children together as well as having children by previous marriages.  Naturally, taking the various family compositions into account makes the rules significantly more complicated than they used to be.  Under the new rules if a married individual dies without a will, and the deceased person and spouse only have children together, the surviving spouse receives the entire estate.  However, if an individual dies without a will but with a surviving spouse, the surviving spouse receives only $100,000.00 plus one-half of the balance of the estate if the surviving spouse had children who are not children of the deceased or if the deceased had children who are not children of the surviving spouse.

Clearly, the revised rules reflect the tension that often develops between the expectations of a second spouse and the expectations of the children of a prior marriage.  When a couple only has children together, it is assumed that the surviving spouse will pass any remaining estate to the common children upon death, but might not be as likely to treat children of a deceased spouse's prior marriage in the same way that the surviving spouse would treat children of his or her own prior marriage.

Although the new legislation makes a reasonable effort to recognize the legitimate  interests of the children of prior marriages, it should be remembered that the rules for the distribution of the estates of deceased persons are rarely the controlling factor in modest estates. The rules only go into effect if the decedent did not have a will at the time of his death and only affects property that is not passed through joint ownership or by the designation of a beneficiary.   Since real estate and bank accounts frequently pass to a surviving spouse through joint ownership and other assets such as life insurance and retirement accounts often pass through the designation of a beneficiary, the statutory rules for the distribution of the property of a decedent rarely come into play in modest estates.

The legislature deserves credit for updating the laws concerning the descent and distribution of estates to reflect the realities of modern life, but reliance on the statutory provisions is rarely the best option and is a poor substitute for a properly executed will or a carefully considered and implemented estate plan.

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By Attorney Henry J. Lane of Lane & Hamer LLC

After almost eight  months of dormancy, the legal battle over the billboard along Route 395 on the Long Subaru property is suddenly heating up.  From the public record, it is not entirely clear whether the current activity is a result of the Town filing a Motion For Summary Judgment or a result of the billboard company starting their discovery process. In any event, at this point it appears that both parties have fully engaged and that there should be some indication of where this case is going or possibly even a final resolution by this Fall.

At this point, the Town has filed a Motion for Summary Judgment which is currently scheduled to be heard on September 20, 2012, at the Worcester Superior Court.  A motion for summary judgment is a procedural device by which the Town asserts that there are no real factual disputes so that a full blown trial is not required and that, after applying the law to the undisputed facts, the Court should rule in favor of the Town.

In response, the billboard company, represented by the Worcester law firm of Bowditch & Dewey, argues that the case is not nearly as straightforward as the Town suggests.  As an initial issue, the billboard company argues that it should have additional time to investigate the circumstances of the decision of the Zoning Board of Appeals that upheld the Building Commissioner's latest decision concerning the billboard. That decision determined that the billboard exceeded the Town's height requirement and therefore had to be removed.  The billboard company argues that, based on the meeting records and newspaper accounts regarding the resignation of members of the Zoning Board of Appeals and the appointment of replacements, there appear to be irregularities in the process that warrant further investigation.

In a somewhat unusual ruling, as part of the discovery process, the Superior Court Judge authorized the billboard company to take the deposition of members of the Zoning Board of Appeals and other Town officials as part of that investigation.  In the typical appeal of a decision of the Zoning Boards of Appeal, towns are successful in arguing that individual members of the Zoning Board of Appeals should not be subject to depositions because on appeal the court hears the case from scratch and the thoughts or impressions of the individual board members who made the decision are not relevant.  Although the Superior Court Judge did not explain why he allowed individual board members and town officials to be deposed in this case, apparently he was convinced that the suggestion of irregularity was well enough supported to justify further inquiry.

Almost lost in the procedural jousting is the more technical issue on which the case should ultimately turn.  From the proceedings, it seems fairly apparent that the current billboard does in fact exceed the somewhat ambiguous "four story" height restriction on structures constructed in the Town of Webster.  However, this case turns on the question of whether or not the Town still has the ability to enforce the height restriction in view of the fact that the issue was not addressed by the Building Inspector or the Zoning Board of Appeals when the billboard issue was initially brought before the Zoning Board of Appeals.   In that initial proceeding, the Zoning Board of Appeals determined that the location on the Long  Subaru property along Route 395 was appropriate and that the billboard met all the requirements of the zoning bylaw.  That proceeding only dealt with the bylaw provision that limits billboards to commercial areas.  The height question was not raised at that time and no one appealed from the Zoning Board's determination that the billboard complied with the by-law.   It was only later when a new Building Inspector was appointed, that a "final inspection" was made and it was determined that billboard exceeded the height restriction.  The billboard company now argues that since the Town did not appeal from the Zoning Board's  initial determination that the billboard was in compliance with the zoning bylaws, the Town is foreclosed from raising the issue or, colloquially, taking a second bite of the apple.  Unfortunately, it does not appear that this particular set of circumstances has occurred very often and there is very little case law to provide guidance on the matter, so it is difficult to predict an outcome.

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by Henry Lane, Attorney
Lane & Hamer, Whitinsville, MA 

Since neither efforts at the state or federal level have had a significant impact on the number of foreclosures over the last five or six years, the Massachusetts legislature recently made its third attempt at addressing the problem. The legislation, aimed at "preventing unlawful and unnecessary foreclosures," addresses two problems, one minor and one more substantive.  The minor and more technical issue addressed by the legislation is the new requirement that before a mortgage lender can begin foreclosure proceedings, the lender's ownership of the mortgage must be clearly documented in the Registry of Deeds.  This legislative fix addressed the confusion that has arisen in recent years because of the sale and packaging of large pools of mortgage loans to various investors.  Since the mortgage loans were sold in groups and the transfers were often only documented by non-governmental loan servicing companies, it was often difficult to determine who actually owned a particular mortgage loan and consequently, almost impossible for a homeowner facing financial difficulty to effectively communicate with their mortgage lender.

The second and more substantive change is a new requirement that before a home mortgage lender can begin the foreclosure process, it must take "reasonable steps" and make a "good faith effort" to avoid foreclosure.  The legislation goes on to define what reasonable steps are and what constitutes a good faith effort.  Essentially, the legislation requires that before a lender can start the foreclosure of a mortgage, it must determine whether the lender and its investors would be better off if the lender completed the foreclosure and sold the property at a foreclosure auction or if it modified the loan in a way that made it affordable for the current homeowner.  If the lender determines that it would be better off if the loan terms were modified, the lender must offer the current homeowner modified loan terms.

On the face of it, the legislation seems perfectly reasonable and a casual observer might question why the legislature felt compelled to pass a bill requiring mortgage lenders to do what would appear to be in their own economic best interest.  Furthermore, based on the limited success of prior state and federal efforts to stem the rising tide of foreclosures, it would seem reasonable to be somewhat skeptical about the prospects for this latest legislative effort.

As with most legislation of this nature, the enactment is limited in its effectiveness.  The first limitation is the result of a compromise by the joint legislative committee appointed to reconcile House and Senate versions of the bill.  A mandatory mediation component of the legislation was deleted before passage.  Obviously, the requirement for mandatory mediation would have significantly delayed every foreclosure and would have also significantly increased the cost of foreclosure because the lender would have incurred the cost of the mediation service and of the personnel required to process the mediation.

Secondly, the legislation requiring reasonable steps and a good faith effort by mortgage lenders to avoid foreclosure is limited to modifications of certain classes of mortgage loans such as so-called "subprime" mortgages, mortgages that were originated with a very high loan to value ratio (95%), so-called "no documentation" loans and other loans that exceeded normal underwriting standards or had "teaser" rate or balloon payment features.

Finally, the net effect of the legislation is somewhat blunted by the fact that the loan modification process essentially requires the homeowner to re-apply for the loan by providing all of the same income verification and documentation ordinarily required for a standard mortgage loan.  The mortgage lender then is allowed to use up to a 45-year repayment period to determine whether or not a loan modification would be more advantageous to the lender than a regular foreclosure.  Past experience suggests that the typical struggling homeowner faced with a mortgage balance greater than the value of their home, is reluctant to sign onto a modified loan with a term of up to 45 years in the hope that sometime in the future their struggle to make payments will result in some home equity.  Under the circumstances, many struggling homeowners may simply accept the inevitability of foreclosure and decide that starting over is a better option.

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