Creating Thriving Communities Through Land Use And Real Estate Law

Representative Cases

O’Brien Homes, Inc. V. Town Of Lunenburg, et al. – Massachusetts Land Court (2018)

Johnson & Borenstein, LLC, partner, Donald F. Borenstein, represented developer, O’Brien Homes, in a long-running dispute between O’Brien and the Town of Lunenburg over the subdivision of a former egg farm and other adjacent property in Lunenburg, Massachusetts, totaling 135 acres. The Lunenburg Planning Board rejected O’Brien’s original subdivision plan in 2009, and again rejected O’Brien’s revised plans in 2013. Johnson & Borenstein, LLC, appealed and undertook extensive discovery into the Board’s alleged reasons for twice denying O’Brien’s plans. This included electronic discovery of emails exchanged among town staff and board members outside the public hearing process. This effort revealed several damming communications, including a conservation commissioner’s message explaining that “The town prompted an executive session to inquire . . . how (town boards) could find fault with O’Brien and act upon such . . . I would assume if one of those boards had a way to stick it to him, they would support that.”

After a three-day trial and extensive briefing by both parties, the Land Court ruled squarely in O’Brien’s favor, finding that the Planning Board had no basis to deny the subdivision plans; that the project was benefited by a zoning freeze and protected from the town’s attempt to double the minimum lot area requirement; and that O’Brien had the standing to pursue the appeal. Having previously put O’Brien’s claims of bad faith on hold, the Court also invited Johnson & Borenstein, LLC, to schedule further proceedings to address those claims and to consider the entry of sanctions against the Town.

Country Places Development, LLC v. Town Of Middleton – Massachusetts Appeals Court (2016)

Johnson & Borenstein, LLC, represents the owners of two parcels in Middleton who sought to improve the road in front of their properties pursuant to a process adopted by the Town of Middleton Planning Board through regulations titled “Providing Adequate Access to Existing Lots.” The owners filed a Roadway Improvement Plan with the Middleton Planning Board, which was denied. No appeal process was provided in the regulations, so Johnson & Borenstein, LLC, filed an action in Land Court seeking relief in the nature of certiorari under G. L. c. 249, § 4, (among other grounds) from the denial. Presented with a summary judgment motion on behalf of the plaintiffs, the Land Court dismissed the Complaint in its entirety for lack of subject matter jurisdiction. Johnson & Borenstein, LLC, appealed the dismissal to the Appeals Court, which overturned the Land Court’s decision with regard to the certiorari claim, finding that judicial review at this point was appropriate because the landowners had “no alternative avenue for meaningful review of the denial” of the proposed Roadway Improvement Plan. The Appeals Court also expounded upon the availability of judicial review of a process, that, somewhat like site plan review, has been adopted by certain municipalities without explicit statutory authority and is not directly tied to zoning relief or a building permit application. The matter has been remanded to the Land Court for further proceedings.

Bank Of America, N.A. vs. Debora A. Casey, Trustee – Massachusetts Supreme Judicial Court (2016), First Circuit Court Of Appeals (2016)

Johnson & Borenstein, LLC represented Bank of America, a creditor in the bankruptcy estate of Alvaro M. Pereira. Debora Case, the Bankruptcy Trustee, sought to avoid Bank of America’s mortgage on the grounds that the notary acknowledgment was incomplete for lack of the mortgagor’s name. Johnson & Borenstein, LLC argued that the mortgage, taken in conjunction with an attorney affidavit by the notary to the mortgage, recorded pursuant to G. L. c. 183, § 5B, gave notice to the Trustee such that the mortgage was a valid secured interest. After several appeals, the First Circuit Court of Appeal, seeking clarification of the power and effect of such an attorney affidavit, certified two questions to the Massachusetts Supreme Judicial Court. The SJC agreed with Johnson & Borenstein, LLC‘s argument that, in the circumstances presented by this case, the recorded attorney affidavit, together with the recorded but defective mortgage, provides legally adequate constructive notice to a bona fide purchaser, such as a trustee in bankruptcy. The SJC further concluded, as argued by Johnson & Borenstein, LLC, that c. 183, § 5B, provides a method to correct certain types of errors that may affect the validity of an acknowledgment to a recorded deed or mortgage. Based upon the SJC’s answer to the two certified questions, the First Circuit affirmed the District Court’s judgment in favor of Bank of America.

MacLeod V. Methuen Conservation Commission – Massachusetts Superior Court (2014)

Johnson & Borenstein, LLC, represented a property owner seeking an Order of Conditions from the Methuen Conservation Commission to permit the development of the property. The Conservation Commission failed to hold the statutorily-required hearing with 21 days of the filing of the Notice of Intent but filed its Denial Order of Conditions with 42 days of the filing. In a matter of first impression, Johnson & Borenstein, LLC, sought a declaration that the Denial had no effect, arguing that, pursuant to G.L. c. 131, § 40, the Wetlands Protection Act, the Conservation Commission had lost jurisdiction based on its failure to open the public hearing with 21 days of the Notice of Intent. The Superior Court agreed and held that the Conservation Commission exceeded its jurisdiction in purporting to issue a Denial Order of Conditions, which was without effect, and that the DEP now had jurisdiction over the conditions of approval for the proposed development.

Giuffre v. Deutsche Bank National Trust Co. – First Circuit Federal Court Of Appeals (2014)

Johnson & Borenstein, LLC, represented Deutsche Bank, which held a mortgage on a property on Martha’s Vineyard. The current homeowner, Giuffre, sought a declaration that the mortgage was void because it had been granted by the former record owner of the property, who obtained the property through what Giuffre alleged was a fraudulent foreclosure scheme. Giuffre regained the property after the prior owner sought protection in bankruptcy, although he had been in possession of the property during the entire scheme. Thus, Deutsche Bank held legal title to the property pursuant to a mortgage signed not by the current owner of the property, a highly unusual factual situation. The First Circuit affirmed a ruling of the District Court that there was no basis in Giuffre’s pleadings to hold Deutsche Bank responsible for the harm the former record owner had inflicted on Giuffre, and awarded costs to Deutsche Bank.

Drew, et al. V. Ferbert, et al. – Massachusetts Superior Court (2013)

Johnson & Borenstein, LLC, represented a property owner who purchased a property and a result became involved in an ongoing litigation concerning an access easement utilized by several parcels of land in Kingston. The Court determined that our client’s neighbor was creating a nuisance on her property which unreasonably interfered with our client’s use of his land, and granted an injunction preventing further nuisance. The Court also determined that the neighbor did not hold an easement across our client’s land.

Bankowski, Trustee V. Wells Fargo Bank, N.A. – Massachusetts Bankruptcy Court (2012)

Johnson & Borenstein, LLC, represented Wells Fargo in an adversary action brought by the Chapter 13 trustee seeking to avoid the mortgage held by Wells Fargo on the residence owned by the debtors in the related Chapter 13 action, the Reids. Johnson & Borenstein, LLC, argued that the confirmation of the Chapter 13 plan, which occurred before the trustee brought the adversary action, precluded the trustee from bringing this action pursuant to the principle of res judicata.

Hauer V. Andover Zoning Board And Gibson – Massachusetts Land Court (2012)

Johnson & Borenstein, LLC, represented a homeowner who had obtained a building permit for a cabana/pool house in the backyard of their home. The neighbors objected on the ground that the cabana was not an accessory structure, and therefore violated the Andover Zoning Bylaw, and that the Andover Zoning Board had improperly upheld the Building Inspector’s refusal of the neighbors’ request for zoning enforcement. The Land Court ruled that the cabana did not violate the Zoning Bylaw and upheld the decision of the Andover Zoning Board.

CF Investments, Inc. v. Option One Mortgage Corp. – NH Superior Court (2010)

Johnson & Borenstein, LLC, represented Option One, holder of a mortgage on the plaintiff’s property. The plaintiff sought to prevent a foreclosure sale of the property and argued that the Option One mortgage was invalid because the mortgagor did not hold title to the property at the time of the mortgage as a result of an unrelated bankruptcy case. Johnson & Borenstein, LLC, requested, and received, a directed verdict after trial on the grounds that Option One had no knowledge that the mortgagor did not hold title to the property at the time of the mortgage, and nothing in the records of the Registry of Deeds would have imputed that knowledge.

Watson V. YMCA And Greater Newburyport Five Cents Savings Bank – Massachusetts Land Court (2006)

Johnson & Borenstein, LLC, represented the YMCA of Greater Boston, who sought to develop a new and more convenient access to its summer camp property in Boxford, Massachusetts. Various residential neighbors claimed the YMCA could not utilize the subdivision road on which their properties were located. The Land Court ruled on summary judgment that the YMCA had the unfettered right to utilize the road for access like any member of the public and to extend the road to its property boundary