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Law of the Land - Real Estate Litigation Newsletter (June 2024)
Tuesday, June 11, 2024

Lions and Turtles and Bearded Dragons, Oh My!

Fleming v. Zoning Bd. of Appeals of Oxford, 103 Mass. App. Ct. 1128 (2024)

In Fleming, the Massachusetts Appeals Court grappled with some scaley zoning issues arising out of personal ownership of 460 reptiles. In this case, the zoning enforcement officer of the Town of Oxford issued a cease-and-desist order to a property owner (Fleming), citing violations of the Town’s zoning bylaw. Fleming owned 400 bearded dragons (which he was breeding and selling) and sixty turtles (which he was breeding) in a residential zone. Fleming appealed to the Oxford Zoning Board of Appeals, which affirmed cease-and-desist order; and then to the Land Court, which also affirmed. 

On appeal to the Massachusetts Appeals Court, Fleming argued that his breeding and sale operation: (1) was an as-of-right “agriculture” use; (2) did not offend the town’s home occupation bylaw; and (3) was exempt from applicable bylaws because the bearded dragons qualify as “customary household pets.” The Appeals Court disagreed. 

First, the Court observed that the breeding of reptiles does not constitute “agriculture” under the Town’s bylaw, nor under G. L. c. 40A, § 3. The bylaw contains no definition of agriculture, and therefore the Board was entitled to adopt any reasonable interpretation of that term – including an interpretation that excluded mass reptile ownership and breeding. Further, although G. L. c. 40A, § 3 includes “livestock” in its definition of “agriculture,” “bearded dragons and turtles are a far cry from the animals traditionally found on working farms -- such as horses, dogs, cattle, pigs, and goats -- and contemplated by Massachusetts law.” Fleming, at 3. 

Second, the Court upheld the Board’s determination that Fleming violated the Town’s home occupation bylaw. Fleming was cited under both Sections 2.1.3 and 2.1.6 of Chapter III of Oxford’s zoning bylaw. Section 2.1.3 prohibits home occupations that may create a hazard or become a nuisance. Section 2.1.6 prohibits home occupations that use more than twenty-five percent of the net floor area of the dwelling. Here, Fleming challenged the zoning enforcement officer’s estimation that his breeding and sale business used approximately fifty-six percent of the total floor area of the property, but he never challenged the zoning enforcement officer’s finding that his breeding and sale business created a hazard or nuisance. As a result, Fleming waived any challenge to the Town’s invocation of Chapter 2.1.3.

Finally, the Court upheld the Board’s determinations that bearded dragons are not customary pets in the Town and were not kept as pets on Fleming’s property. Similarly, the sheer number of turtles also indicated that they were not kept as pets. As the Court put it “it was reasonable for the board to decide that keeping breeding turtles by the dozens and breeding bearded dragons by the hundreds was not keeping the animals as customary household pets.” Id., at 4. 

Fleming reminds us that Courts are likely to show great deference to local zoning authorities when interpreting their own bylaws. Regulation of pet ownership and breeding is no exception.

Approval May Not Be Required, But Sufficient Plans Are

Meadow Wood LLC v. City of Brockton, 230 N.E.3d 1065 (Mass. App. Ct. 2024)

The Massachusetts Appeals Court recently interpreted G. L. c. 41, § 81P, which governs “approval not required” endorsements. 

In Meadow Wood, a developer sought approval for a planned development to be located in Brockton. The developer submitted a plan to the Planning Board of Brockton, which depicted a way running to Brockton’s border with West Bridgewater and three buildable lots abutting the way. The Board approved the plan, but subject to the way terminating in a cul-de-sac rather than the West Bridgewater town line. The developer then withdrew the original plan and submitted a revised plan, which retained the road terminating at the city border (without a cul-de-sac), and asserted that the revised plan was entitled to an “approval not required” (“ANR”) endorsement because it did not show a subdivision on account of certain land shown on the plan being unbuildable. The Board denied the endorsement on the basis that the plan was “unclear.” The Superior Court reversed, and Brockton appealed. 

The Appeals Court reversed the Superior Court (therefore affirming the Board) for two reasons. First, the Court concluded that the revised plan was indeed “simply too unclear to permit the board to conclusively determine that [the developer] qualified for an ANR endorsement.” Meadow Wood, at 3. Indeed, while the words “not a buildable lot” appeared on the revised plan, there was no indication as to which portions of the property that notation applied. Second, “by including buildable lots on both sides of the proposed way in the [original] plan, the [developer] essentially asserted that at least some portion of the land on each side of the proposed way included buildable terrain.” Id. “That claim . . . was contradicted by the [developer’s] portrayal of the relevant terrain as unbuildable due to wetlands.” As a result, “[t]his contradiction, together with the [revised] plan’s lack of clarity, [precludes the Court from concluding] that the board erred in denying an ANR endorsement.” Id. 

Meadow Wood indicates that courts will look to ensure that development plans include enough substantive detail to justify any relief requested – particularly where relief involves an excusal of regulatory requirements that typically apply. Where an “approval not required” endorsement is sought, the applicant should be sure to demonstrate precisely why. 

Part II: Landlord Unable to Evict Despite Tenant Defaults

Varano v. PDJM Land Tr., LLC, 103 Mass. App. Ct. 1127 (2024)

We last wrote about Varano v. PDJM in our November 2022 issue of Law of the Land. In the first iteration of Varano, the Superior Court held that a commercial landlord could not evict a tenant based non-material breaches of its lease. There, the tenant’s (Verano’s) breaches consisted of submitting rental payments 10 days late and failing to remedy routine maintenance issues at the premises. Recently, the Massachusetts Appeals Court affirmed that Superior Court decision in Varano v. PDJM Land Tr., LLC, 103 Mass. App. Ct. 1127 (2024).

After losing in the Superior Court, landlord PDJM appealed, arguing that the Superior Court erred in finding Varano’s breaches non-material. The Appeals Court rejected PDJM’s arguments wholesale. With respect to the untimely rent payments, the Appeals Court emphasized the “materiality” factors set forth in DiBella v. Fiumara, 63 Mass. App. Ct. 640, 646-647 (2005). Those factors include: (1) the extent to which the non-breaching party has been or will be deprived of the benefit which it reasonably expected; (2) the extent to which the non-breaching party can be adequately compensated for the part of that benefit which it has been and/or will be deprived; (3) the extent to which the breaching/non-performing party will suffer a forfeiture; (4) the likelihood that the breaching/non-performing party will cure his failure; and (5) the extent to which the behavior of the breaching/non-performing party comports with standards of good faith and fair dealing. 

Applying these factors, the Court reasoned that the late rent payments were not material breaches. The “core bargain” between the PDJM and Varano was for Varano to occupy commercial space in exchange for a stipulated monthly rent over a period of ten years. Varano paid that rent, and those rental payments where never more than a few weeks late (and typically only days late). There was no evidence that these late payments hampered PDJM’s ability to make its mortgage payments. The remaining four factors also cut in favor of Varano. The lease already included a late fee provision to compensate PDJM for any harm resulting from late rental payments. It was also clear that termination of the lease would likely force Varano to relocate his restaurant outside of the North End, possible costing him his business. 

Finally, the Court quickly disposed of PDJM’s argument that Varano’s failure to address maintenance issues and respond to a letter from PDJM’s insurance agent amounted to material breaches. The Appeals Court relied on the Superior Court’s findings that the maintenance issues cited were typical of the restaurant industry and were rectified promptly. Further, PDJM did not demonstrate that it was harmed in any way (e.g., no loss of insurance, no code infractions, no failed inspections, no forced suspension or closure of operations, etc.). 

Varano should stand as a reminder to commercial landlords that a tenant’s breaches must actually change the “core bargain” of the lease or inflict demonstrable harm upon the landlord in order to justify a lease termination or eviction. 

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