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Mass. high court hears dispute over abutter standing after alleged defective Chapter 61A notice
Summary
At oral argument in SJC-13845, counsel for Helen Benavakis and other abutters told the Supreme Judicial Court that required Chapter 61A notice was not sent to most statutorily listed recipients, while town and purchaser lawyers argued only the municipality may enforce the right of first refusal; the justices pressed on standing, remedies and the practical effect on title.
The Massachusetts Supreme Judicial Court on oral argument considered whether nearby property owners can challenge a sale under Massachusetts General Laws Chapter 61A after plaintiffs say required statutory notice was not given.
Appellants' counsel (name not stated) told the court that "the notice requirements were never met except for 1 of the 6 parties who was entitled to notice, namely the town manager," and argued that failure to follow the statutory notice scheme deprived abutters of a meaningful chance to protect open space and their property interests.
The counsel emphasized that three named plaintiffs are servient-estate abutters with easements over the cranberry bog at issue — identifying Ronald Knight and his wife, the Wards, and Linda Powers — and said those easement rights "would accrue to any purchaser, including the town of Barnstable if it exercises [its] right of first refusal." The plaintiffs seek a declaratory judgment and, secondarily, a writ to compel municipal action to address what they call a defective conveyance to Bard Partners LLC.
Several justices pressed appellants' counsel on the statutory text and limits of standing. A justice asked whether Chapter 61A "specifies that abutters have a right to enforce the statute," and the counsel replied that the statute is silent but cited federal and state cases recognizing cognizable aesthetic and open-space injuries. The appellants relied on Scott v. Sudbury, Riley v. Hopedale, and Enos (2000) as legal support for their position that a declaration could void the conveyance and require the town to restart the Chapter 61A process.
Lisonbee Cogliano, appearing for the Town of Barnstable, argued that Chapter 61A assigns the right of first refusal "exclusively to the municipality" and that the legislative scheme provides the town the remedies and timing to respond (including the 30-day and 120-day statutory windows discussed at argument). "The remedy, however, lies in the hands of the town," Cogliano told the court, and she urged the justices to respect municipal discretion and decline to create a private right of enforcement the legislature did not provide.
Matthew McLaughlin, representing Bard Partners LLC, warned that allowing private suits on technical notice defects would "elevate form over substance" and permit abutters to invalidate otherwise completed transactions on minor procedural grounds, potentially creating protracted uncertainty for purchasers.
The court also debated whether later involvement of town officials — including a town attorney's acknowledgment of a defective notice and an apparent executive-session discussion involving the conservation commission and town council — changed the legal analysis. Counsel for the town and purchaser argued the record shows the municipality ultimately declined to exercise the right of first refusal and that mandamus is not available to compel discretionary municipal decisions.
No formal decision was announced at argument. The justices focused on three core questions: (1) whether private parties (abutters or nonprofit advocates) fall within Chapter 61A's zone of interest and thus have standing for declaratory or mandamus relief; (2) whether defects in notice that were later addressed informably change the legal remedy; and (3) whether a declaratory judgment undermining title is the appropriate remedy when the town retains discretion to act. The court took the case under advisement.
