Friday, February 16, 2001
Lawsuit involving Cross Street land demonstrates weakness of Chapter 61
A decision in a Massachusetts Superior Court lawsuit involving a large tract of Carlisle forest land has narrowly interpreted the town's right of first refusal under Chapter 61. While the case is still pending, the judge ruled as a matter of law that the town did not have a right of first refusal when the landowner removed property from Chapter 61 status, paid the rollback tax and then entered into a purchase and sale agreement to sell the property, even though an option to sell the property was executed while the land was still taxed under Chapter 61.
The case, Lauriston Ward v. William Costello, Brigitte Senkler, Senkler Real Estate, Inc. and Senkler Hunneman Real Estate, Inc., involves 57 acres of land owned by Ward off of Cross Street. According to the facts in the case, in the spring of 1997 Senkler approached Ward to see if he would be interested in selling his property for $1.5 million. Ward expressed interest and Senkler introduced Ward to Costello. Ward and Costello then entered into an agreement giving Costello an option to purchase the property after Ward removed it from forest land classification.
In November 1997, Ward asked the Carlisle Board of Assessors to withdraw the land from Chapter 61 status and delivered a check for the appropriate taxes. Aware that Costello had been doing testing on the Ward property and suspicious that the request for withdrawal was in anticipation of a development plan for the property, the board of assessors requested assistance from the Massachusetts Department of Environmental Management.
DEM responded that neither DEM nor the town had any authority to refuse an owner's request to declassify or withdraw property from Chapter 61. DEM went on to explain that such withdrawal "results in termination of the municipality's option to acquire the land" and that other municipalities were confronting the same "apparent weakness in the law that allows conversion without the municipality being given the option to buy the property and thereby forestall such development." DEM recommended that Carlisle take steps to support pending and proposed legislation to amend the withdrawal provisions of Chapters 61, 61A and 61B.
After receipt of the advice from DEM, the board voted to remove Ward's property from Chapter 61, which became effective in June 1998. Immediately thereafter, Costello and Ward executed a purchase and sale agreement for the property. In September 1998, Ward filed the pending lawsuit seeking to void the agreement because it "improperly sought to circumvent" the town's right of first refusal. On this issue, the court held that the town does not have a right of first refusal because the land was not sold for, or converted to, residential, industrial or commercial use while taxed under Chapter 61.
No town participation
"At no time during the course of these proceedings," stated Superior Court Justice Martha B. Sosman, "has the Town of Carlisle sought to intervene, nor, despite full awareness of the facts and circumstances underlying the Ward-Costello transaction, has the Town done anything to indicate that it intends to purchase Ward's property." The decision noted that the attorney general, on behalf of DEM, filed an amicus brief supporting Ward's interpretation of the statute, but did not represent Carlisle's interest.
Ward land not a town prioirity
According to selectman Vivian Chaput, the selectmen were aware of the potential sale of the Ward property but did not choose to pursue the matter for several reasons. First, the town was unsure whether it had a right of first refusal under the circumstances. Second, the Ward property was not as high a priority as the O'Rourke land, which was being actively pursued at the same time.
"There are so many priorities the town has to balance," said Chaput. "It is a matter of making choices." Carlisle's Open Space and Recreation Plan, updated in January 2000, lists 13 parcels of unprotected open space of ten or more acres, totaling 925 acres of land, that are designated as category 1 priority for protection or purchase. The Ward property was listed in the Plan as a category two priority.
Status of case
As stated above, the Ward case is still pending in Superior Court and no sale of the land has yet taken place. Discovery in the lawsuit has been extended to April 1, and a trial date is expected to be scheduled at that time. In addition, there are other claims still unresolved against the defendants. Ward also alleged that the fair market value of the property was in excess of $3 million, and he brought claims against Brigitte Senkler (whom he characterized as his own broker for this transaction) for failing to alert him to the fact that his property was worth much more than the price he agreed to with Costello. No timetable has been announced for resolution of these claims.
© 2001 The Carlisle Mosquito