SJC hears challenge over town's right of first refusal under chapter 61A in Watermark land sale
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Summary
At oral argument, attorneys for Watermark LLC said a notice under Mass. Gen. Laws ch. 61A, §14 failed to state a change in use and thus did not trigger Duxbury's right of first refusal; town counsel argued the notice's reference to subdividing two 40,000-square-foot lots sufficed to show proposed residential use. The court questioned whether intent must be decided by a factfinder.
Jason Rollins, attorney for Watermark LLC, argued before the Supreme Judicial Court that a notice of intent filed under Mass. Gen. Laws ch. 61A, §14 did not satisfy the statute because it did not state that the land would be converted to residential, industrial, or commercial use. "Nowhere in that notice," Rollins told the court, "does it say that the property is going to be converted to residential, industrial, or commercial use." He urged the court to reverse the Superior Court's summary-judgment ruling and send the question of intent to trial as a factual issue.
Rollins said the contemporaneous notice described "seek to subdivide two 40,000-square-foot lots, plus or minus, and maintain the rest as agricultural," and that description did not on its face identify a conversion to nonagricultural use for the portions remaining in agriculture. He argued the town's option should apply only to portions being converted, and that allowing purchase of the entire parcel at agricultural value would give the town an unintended windfall.
Jeffrey Blake of KP Law, representing the town of Duxbury and the Duxbury Affordable Trust, countered that the notice met §14's requirements because it included a statement of proposed use, the location and acreage, and the landowner's contact information. Blake said the phrase "seek to subdivide" and the specification of 40,000-square-foot lots "connotes residential use," and he noted that municipalities regularly compare notices to the statute and ask for clarification within the 30-day cure period when elements are missing.
"Under the summary-judgment standard, as you know, this is going to be de novo before you," Blake said, arguing that, if ambiguity exists, the court may consider extrinsic evidence in the record. He pointed to contemporaneous communications with the town and to case law—particularly Town of Sudbury v. Scott—as supporting the view that intent can sometimes be resolved on the papers rather than at trial.
Joshua Siegel, counsel for RH/B'naiah Cranberry Company Inc., said the Superior Court properly entered summary judgment because either the notice was facially sufficient and therefore effective under §14 or, if it was defective, the town failed to return it as insufficient and thus did not follow the statutory cure procedure. Siegel also invoked appellate precedent on whether a notice may be revoked once tendered and on how rollback and conveyance taxes under §§12'13 operate.
Justices repeatedly pressed counsel on two issues: whether the court should confine its review to the face of the notice or may look to extrinsic evidence of subjective intent, and whether the town's rights must match the precise terms of the buyer's bona fide offer or instead may cover the entire parcel described in the documents. Counsel debated whether Town of Sudbury v. Scott controls the partial-parcel analysis and whether Delrecca v. Card or later statutory changes affect revocation rules.
The record includes a notice that describes subdividing two 40,000-square-foot lots and maintaining the remainder as agricultural, a purchase-and-sale agreement (P&S) with contingencies tied to chapter 61A nonexercise, and references in the record to a 120-day period for town action under §14. Counsel also discussed a roughly 28.14-acre parcel in argument as the larger tract at issue.
No ruling was issued from the bench at the close of argument. The court took the arguments under advisement; an opinion and any disposition will follow in due course.
