Black Rock Golf Club, LLC v. Board of Assessors of Hingham

81 Mass. App. Ct. 408

Facts:  Black Rock Golf Club, LLC (Black Rock) is the owner of real property (club), which encompasses approximately 175 acres which is dedicated to an 18-hole golf course and practice areas, a four-level club house, a recreation center, an outdoor pool, and five outdoor tennis courts, walkways, and parking lots. Of the club's more than 300 members, only 86 had paid the $125,000 full initiation fee. Other members had paid initiation fees ranging from $65,000 to $115,000. Other members had not paid initiation fee but instead received membership as incentive to purchase a condominium.

           

The club generated four categories of income: 1) golf revenue (membership dues, guest fees, cart rentals, tournament fees, and initiation fees); 2) clubhouse food and beverage sales; 3) merchandise sales; and 4) miscellaneous amenities and services.

           

The board of assessors of the town of Hingham valued the club at $20 million for the fiscal year of 2006 and at $18.6 million for 2007. The valuation by the assessors was based upon capitalization of income methodology where its expert estimated the income earned by Black Rock as owner and operator of the club for the tax years in question and applied a capitalization rate to it. However, Black Rock made its own valuation which was not based simply on an estimation of the club's net income with the application of the capitalization rate. Instead, its expert estimated the fair market rental income which Black Rock could have achieved if it had chosen to lease the club to a third-party management company, a common practice in the golf club industry. By this method, Black Rock's expert proposed a valuation of “$10,000,000 to $11,000,000.”

Procedural History:  The valuations of the club in 2006 and 2007 resulted in tax bills of $186,760 and 169,911 respectively. In both years, Black Rock filed an application for abatement, which the assessors denied. Black Rock then appealed to the Appellate Tax Board (Board) who concluded that the assessors has overvalued the property and granted the abatements for both years. The Board based its reasoning on Black Rock's capitalization or market rental hypothesis while adjusting the rental percentage for the golf revenue from twenty-two percent to twenty-five percent, and adopted the assessors' capitalization rates instead of Black Rock's. The Board then valued the club at $13.39 million in 2006 and $14.09 million in 2007. The Board also found the assessors' computation of imputed interest on initiation fees to be flawed because 1) that method assigned interest income on both refundable and nonrefundable portions of the fees; and 2) the assessors estimated the amount of received initiation fees on the faulty premise that all members had paid the maximum figure of $125,000, when in fact, most of the members had paid less, if at all.

Issue:  Whether the Board's rejection of the assessors' methodology has the support of substantial evidence?

            No. The court employed the substantial evidence standard to determine that the Board's general acceptance (with adjustments) of Black Rock's valuation was flawed because Black Rock's expert did not adequately establish that a fair market lease would calculate rent on the basis of different fixed percentages of a club's four revenue streams. None of the eleven clubs considered by Black Rock's appraiser followed the model of a management rental rate based on a discrete percentage of revenues from golf, food and beverage, merchandise, and miscellaneous sales. Furthermore, eight of the eleven properties surveyed by Black Rock's appraiser were public and generated revenue through daily greens fees whereas Black Rock, as a private club, would generate its revenue from initiation fees and membership dues.

           

While the law permits the board to “choose between reasonable alternative valuation methods, it nonetheless requires the board to assure the reasonableness of its choice by adequate findings that are reasonably intelligible[.]” The court held that the Board's decision fell below the level of substantial evidence because the surveyed eleven properties and the club lacked comparability. However, the Appeals Court vacated the judgment and remanded the case back to the Board because it was not satisfied with the assessors' reasoning as to the incorrectness of the board's rejection of their own income capitalization rationale.  (MW)

Sheppard v. Zoning Bd. of Appeal of Boston

81 Mass. App. Ct. 394

Facts:  McGarrell pruchased a 2,600 square-foot lot in South Boston that was 26 feet wide by 100 feet deep. When the property was purchased, there was a severely dilapidated single family home that McGarrell intended to tear it down to the studs and rebuild. After McGarrell obtained a building permit, he discovered that the house was in worse shape than he had thought and that its foundation was crumbling. As a result, the entire new home needed to be built from scratch.

           

Given the size and shape of the lot, any new home would violate the existing dimensional zoning requirements, but McGarrell was able to have restructured the old house through reliance on the preexisting, nonconforming structure provision of the Boston zoning code. Without obtaining additional approvals, McGarrell began building a new house that was larger than the old one. Sheppard, the neighbor adjacent to McGarrell, complained and the city of Boston enjoined the construction.

Procedural History:  In order to build the new house from scratch, McGarrell sought approval from the Boston inspectional services department which denied such approval to build a larger house. Pursuant to the board's instructions, McGarrell then applied for five variances to allow his proposed house to be built. The board subsequently granted the requested variances for his submitted plans but McGarrell eventually abandoned these plans and revised them to respond to some of Sheppard's concerns. Under these revised plans, the home was to be still larger than the old house, bringing it closer to Sheppard's house. The board again granted McGarrell variances pursuant to the newest plans, holding that the average height of the building was the most significant area of the expansion and that McGarrell could increase the height of the building as a matter of right under the code. Furthermore, the board concluded that the expanded “footprint” of the house had a de minimis impact on the surrounding neighborhood. Sheppard brought the current action. Following a three day trial in 2004, the judge concluded that Sheppard lacked standing and issued a judgment dismissing her appeal and the Suffolk County Appeals Court reversed in 2009. McGarrell appealed, urging the court to revisit its decision in the earlier appeal. McGarrell argued that strict compliance with the zoning requirements would amount to unlawful discrimination, given his chronic emphysema and need to construct a dwelling suitable to his medical needs.

Issue #1:  Whether the board erred in allowing the variances to McGarrell?

Yes. The court found that the judge committed an error of law when he concluded that McGarrell could expand the house vertically as a matter of right. An increase in the size of an existing building could intensify the nonconformity, which is impermissible. The court was guided by the Supreme Judicial Court's holding in Bjorklund v. Zoning Bd. Of Appeals of Norwell, which stated that some changes, such as construction of a dormer, or so slight that they “could not reasonably be found to increase the nonconforming structure.” 450 Mass. 357, 360-61 (2008). In light of that decision, the Court of Appeals held that it could not find the increased height and mass of the building to be de minimis, especially even the calculation of the increased size of the building most favorable to McGarrell appeared to show an increase that was more than 10%.

Issue #2:  Whether denial of the variances would amount to unlawful discrimination?

No. The Federal Fair Housing Act creates an affirmative duty on municipalities to afford their disabled citizens reasonable accommodations necessary to afford such persons equal opportunity in the use and enjoyment of their property. Although McGarrell had chronic emphysema and that when he applied to the board for his variances, he asserted that the requested relief would allow “a dwelling suitable to his medical needs[,]” the board did not rely on his health issues in granting the variances. The judge's silence as to McGarrell's alleged personal hardship was consistent with the case law. The court held that McGarrell could not make out a claim for discrimination based on the trial record because there was no testimony that the house's extended footprint and increased height were necessary to enable him to live there. Accordingly, McGarrell cannot make out a claim that he was denied an equal opportunity to enjoy the housing of his choice as a result of a disability.

Issue #3:  Whether the court should remand the case with the directive that the house be torn down in light of McGarrell having failed to prove his entitlement to the variances?

No. The case law recognizes that tear down orders do not necessarily follow every determination of a zoning violation. Rather, the court may consider equitable factors and the potential availability of money damages as an alternate remedy. In this case, the original home on McGarrell's property was dilapidated, an eyesore, and a health hazard. Furthermore, McGarrell could have rebuilt the old house as of right under article 9, which allows for some expansion of the nonconforming structure.

Reversed and remanded.  (MW)

Okoli v. Okoli & another (No. 2)

81 Mass. App. Ct. 381 

Facts:  Same as Okoli v. Okoli, 81 Mass. App. Ct. 371 (2012).

Procedural History:  While the parties' divorce case was underway, the husband filed the present action in Superior Court, alleging eight causes of action. Claims I and II alleged breach of contract against the wife based on her promise in the 2001 agreement that the husband would not be responsible for any financial obligation to the children and the wife would not sue him for child support. Claim III alleged duress against the wife in inducing him to sign the forms by threatening to withdraw support for his visa application. Claim IV alleged intentional infliction of emotional distress against the wife for her conduct in obtaining the husband's signatures for the consent forms. Claim V alleged fraud and deceit against the wife based on her utilization of the consent forms even though the husband did not read them in full and based on allegations that the wife had forged his signature. Claim VI alleged breach of contract against the Boston IVF based upon its acceptance of the husband's consent despite having no personal contact with him. Claim VII alleged fraud and deceit on part of Boston IVF for accepting the last consent form without the annotations that he had made on previous forms. Claim VIII alleged conspiracy to defraud against both of the defendants on their collective behavior in obtaining the husband's consent.

           

The Judge granted motions to dismiss brought on behalf of both defendants, ruling that the present complaint was merely a collateral attack on the Probate and Family Court judgment that the husband was the legal father of the twins based on his consent to the wife's IVF and was therefore required to pay child support. The husband appealed.

Issue:  Whether the lower court erred in dismissing all of the husband's claims based upon the doctrine of collateral estoppel.

            Yes and no. The court determined that Mass.R.Civ.P. 12(b)(6) and Mass.R.Civ.P. 12(b)(9) offered a more direct path to dismissal of the complaint than the doctrine of collateral estoppel. However, the court reversed as to Claim V because collateral estoppel did not apply and the claim could not be dismissed under rule 12(b).

           

The court concluded that Claims I and II must be dismissed under Rule 12(b)(9) due to the “[p]endency of a prior action in a court of the Commonwealth” because Rule 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action that is still pending. Since Claims I and II address the enforceability of the 2001 agreement concerning child support and their divorce case initially addressed the issue, he is precluded from bringing these claims.

           

Claims VII and VIII, against Boston IVF were dismissed under rule 12(b)(6) based on the statute of limitations. Tort transactions must be commenced within three years after the cause of action occurs. Claims VII and VIII are tort claims concerning fraud and conspiracy to defraud. The husband's cause of action occurred upon Boston IVF's acceptance of his final consent form in 2002 and he filed his complaint in 2008; beyond the three year limitation period.

           

Claims III, IV, V, VI, and VIII were not barred by collateral estopell and Claim VI was not barred by collateral estoppel or Rule 12(b)(9) because Boston IVF was not a party to the divorce case. Claims III, IV, V, and VIII were not barred by collateral estoppel as to the wife because the issues in these claims and the prior adjudication were not identical and the issue decided in that earlier litigation was not essential to the judgment. However, the court found that the husband had failed to sufficiently plead claims III, IV, and VIII in order to survive a Rule 12(b)(6) motion.

           

As to Claim V, the court did find that the husband's fraud allegation against the wife was sufficient to survive the motion to dismiss. This claim is distinct from the analysis of the husband's consent to IVF in the parties' divorce proceedings in that the fraud claim examines the husband's actions just prior to signing the last form as he claims that he would not have agreed to sign the form but for the wife's fraud. Therefore, this claim was remanded. (MW)

Okoli v. Okoli (No. 1)

81 Mass. App. Ct. 371

Facts:  The parties were married in Boston on October 4, 1991 and separated in November of 2000. They had unsuccessfully attempted to have children since 1992 and when they separated, were on a waiting list for donor eggs to pair with donor sperm for an attempt at in vitro fertilization (IVF). In November of 2001, donor eggs became available and the wife sought the husband's consent for Boston IVF, Inc. to begin the IVF process. The parties signed a written agreement on December 20, 2001 (2001 agreement). The agreement provided that the husband gave his consent for the wife's fertility treatment, that he would recognize any offspring which resulted from the treatment, that the husband would not have any financial obligations with regards to the treatment or its results, and that the wife would not at any time ask or sue for any other financial obligation regarding the treatment or its results.            

The husband agreed to execute the 2001 agreement in exchange for his wife's continued support of his citizenship application. Accordingly, the court found that at the deterioration of the marriage, the wife used her sponsorship of the husband's citizenship application to lever her own interests. Prior to each round of IVF, the husband consented, noting next to his signature on each form that his consent was limited by the 2001 agreement. The wife told the husband that Boston IVF would not accept his consent forms with the notations and the he must sign the forms with them, assuring him that she would never seek child support. On November 13, 2002, he signed the final consent form, without the limitation, for the procedure that resulted in a viable pregnancy and birth of twins. When the husband signed the last form, he had not read it and signed it in the parking lot of Boston IVF.

Procedural History:  The Probate and Family Court ordered the husband to pay child support for the twin minor children, holding that he consented to the artificial insemination of his wife. The judge held that since the husband gave consent to the wife's impregnation, paternity was consequently established. The husband appealed, arguing that he consented to the wife's IVF subject to the terms of the agreement and thus consent could not be established under G.L. c. 46, § 4B. Second, the husband argued that his consent was voidable because it was given under duress, given that his consent was motivated by his wife's threat that she would withdraw her support for his “green card” application. Lastly, the husband argued that his signature on the final consent form was forged. Further, the husband contended that even if he was liable for child support, the judge miscalculated the wife's income, and therefore the amount that the husband was ordered to pay should be reduced.

Issue:  Whether the husband consented within the meaning of G.L. c. 46, § 4B thereby making him responsible for financial support of the twins?

            G.L. c. 46, § 4B provides that “[a]ny child born to a married woman as a result of [IVF] with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” The court held that, the volitional act of sexual intercourse is equivalent to the volitional act of signing a consent to IVF. In both cases, the intent of the putative father toward parental status plays no role. His volitional actions resulted in the creation of a child, and the law will attach parental responsibilities as a result. When a husband consents to an IVF procedure, knowing that a child may result, parental status attaches.

           

The court declined to address the husband's duress or fraud with regard to the wife's alleged inducement of the husband to sign the 2010 agreement by threatening to withdraw her support for his citizenship. The court did not address these arguments because they had not been properly briefed due to his failure to outline the legal standard for duress or provide sufficient factual predicate to assist in evaluating his claim.

           

As to the husband's claim that the wife forged his signature, the judge did not credit the expert who testified in support of this claim and the court declined to disturb the judge's finding that the expert testimony was not credible.

           

Lastly, the court found no error in the judge's calculation of the wife's income. The judge, within her discretion, relied upon the wife's Federal tax returns and calculated the amount due to her in support.  (MW)

Commonwealth v. Mazzarino

81 Mass. App. Ct.358

Facts:  On August 7, 1957, the defendant, who was twenty-five years old, raped a seventy-two year old woman after breaking into the apartment where she was staying. A jury convicted him of three counts of rape and he was sentenced to nineteen and one-half to twenty years at the Massachusetts Correctional Institution and an additional nineteen and one-half to twenty years, suspended during ten years' probation. On February 26, 2008, the district attorney's office, anticipating the defendant's release, filed a petition with the Superior Court for the defendant's commitment as a sexually dangerous person (SDP) under G.L. c. 123A.

Procedural History:  At trial, two psychologists testified and opined that the defendant was a SDP. The defendant also called a psychologist and psychiatrist; one who testified that he was not a SDP and the other who stated that there was not sufficient information to make a determination either way. One expert testified that the defendant was unable to conform his behavior to the requirements of institutions and that she did not believe that probation would be effective. The judge also gave a curative instruction, which ordered the jury not to speculate on any dismissed charges mentioned during testimony, except to the extent those charges were relied upon by the experts in the evaluation process.

           

The defendant was found to be a SDP and he appealed arguing that the judge erroneously denied his motion for a mistrial after one of the experts referred to the defendant's history of offending against both female and male victims as a factor she considered in arriving at her opinion.

Issue #1:  Whether the trial judge erred in denying the defendant's motion for a mistrial by using an expert’s reference to the defendant's history of offending against “both female and male victims” as a factor in arriving at her opinion that the defendant was a SDP.

            No. The court found that any prejudice that might have been caused by the inadmissible evidence was sufficiently remedied when the trial judge promptly struck the witness's entire answer and issued a curative instruction during his final charge, specifically addressing the issue of the defendant's prior sexual offense charges.

Issue #2:  Whether the judge impermissibly provided to the jury an explanation of the G.L. c. 123A, § 9 release process (i.e. that the defendant would be able to petition for release every twelve months)?

            No. The court found that brief explanations of the G.L. c. 123A, § 9 procedure were necessary to explain the witness's answers; giving the jury the ability to make an informed judgment about the witness's credibility. Furthermore, this evidence was more probative than prejudicial to the defendant.

Issue #3:  Whether the judge erred in allowing the victim impact statement?

            The defendant argues that the judge erred in allowing the victim impact statement because it was prepared for sentencing and not for trial. However, G.L. c. 123A, § 14(c) allows the introduction of “oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition.” The court found that in this case the statement was short and added little to the otherwise considerable amount of evidence admitted describing the governing offense. Furthermore, the judge gave a curative instruction by explaining that the jury was to not base their verdict on bias, prejudice, or sympathy to any party.

Issue #4:  Whether it was a prejudicial error to admit evidence of the defendant's refusal to meet with the qualified examiners?

            No. The court found that this argument fails because it was not made to the trial judge and may not be made for the first time on appeal.

Issue #5:  Whether the defendant’s commitment based on his diagnosis of antisocial personality disorder violated his rights to due process under the Fourteenth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights?

            No. The defendant’s diagnosis was not the sole factor in the court’s determination that the defendant was sexually dangerous. Rather, his diagnosis along with testimony that his personality disorder made him likely to engage in sexual offenses if not confined to secure facility formed the basis for such a determination. Therefore, the court was satisfied with the jury’s verdict that the defendant was a sexually dangerous person. (MW)