Cases of Note

EVALUATING EFFECTIVE NOTICE IN EXERCISE OF OPTIONS

Sourcing Unlimited, Inc. v. Cummings Properties, LLC, 102 Mass. App. Ct. 653 (2023)

In Sourcing Unlimited, Inc., plaintiff-tenant Sourcing Unlimited, d/b/a Jumpsource (“Tenant” or “Jumpsource”), sued defendant-landlord, Cummings Properties, LLC (“Landlord” or “Cummings”), seeking a declaratory judgment that it had provided sufficient and proper notice of its option not to renew the lease.

On April 14, 2010, Jumpsource executed a commercial lease (the “Lease”) with Cummings for office space in Beverly, Massachusetts (the “Premises”). The Lease contained an automatic extension provision stating that unless Tenant or Landlord provided written notice to the other of its option not to extend between six and twelve months before the expiration of the then current term, the Lease would automatically extend for a five-year period. The Lease also contained a general notice provision requiring notices to be in writing, and stating that oral, facsimile, and electronic notices would have no force or effect. The parties agreed that, together, these provisions required Jumpsource to provide written notice to Cummings of its intention to exercise its nonrenewal option between December 1, 2015, and May 30, 2016.

On January 12, 2016, Jumpsource sent an e-mail informing Cummings it had decided to close the Beverly office at the end of the Lease term in November 2016. Cummings responded, stating that Jumpsource should consult the Lease for information on extending, renewing, or cancelling options. In the correspondence between the parties over the months that followed, Cummings claimed that it was unable to accept non-renewal notices by email and that the Lease was already extended through 2021 because it had not received written notice of Jumpsource’s intention not to renew by May 30, 2016, as required by the Lease. On November 30, 2016, Jumpsource vacated the premises.

In January 2017, Jumpsource sued Cummings claiming it had provided sufficient notice of its non-renewal option. Cummings counterclaimed, alleging that Jumpsource failed to provide sufficient notice of its option and breached the Lease. Both parties moved for partial summary judgment regarding the legal effect of Jumpsource’s emails to Cummings. The trial court allowed Jumpsource’s motion, holding that the e-mail communications between the parties constituted effective and timely notice of Jumpsource’s non-renewal option.

The Massachusetts Appeals Court affirmed the trial court’s decision. The Court noted that, as a general rule in Massachusetts, option provisions require strict adherence to the terms of a lease or contract because an option holder typically possesses a unilateral right to exercise the option. Nonetheless, Massachusetts courts have recognized exceptions to strict compliance with option requirements where a nonconformity does not contravene the “crux” of an option provision. Specifically, where the deviations from option requirements are “immaterial” or “inconsequential,” particularly those involving the method of delivery of notice where neither the timeliness nor fact of delivery of notice are disputed, they do not affect the effectiveness of notice duly given. As Jumpsource provided timely, unambiguous, written notice of its decision not to renew the Lease, which Cummings received and acknowledged, the Court held that Jumpsource’s email notice was effective.

RV CAMP FOR RELIGIOUS ORGANIZATION PROTECTED BY DOVER AMENDMENT

Hume Lake Christian Camps, Inc. v. Planning Bd. Of Monterey, 492 Mass. 188 (2023)

In Hume Lake Christian Camps, Inc., plaintiff Hume Lake Christian Camps (“Hume”) appealed from a denial by the Planning Board of Monterey (the “Board”) of its application to build a recreational vehicle (“RV”) camp on its property.

Hume is an evangelical Christian organization with a mission to “evangelize the world” through its campus ministry. To fulfill this mission, Hume runs camps at three permanent locations, including Hume New England in Massachusetts (“Hume NE”). Hume NE requires that all staff, including seasonal employees, sign Hume’s statement of beliefs and agree “with the theological positions, philosophy, and policies of Hume.” Additionally, each job applicant is asked whether he or she had been baptized as a “public declaration of their faith.” Volunteers and attendees, however, are not required to sign the statement of beliefs or agree with Hume’s religious precepts.

In connection with its mission, Hume NE hosts two types of programs: “program camps” and “guest retreats.” Program camps are youth camps directed by Hume NE where attendees must engage in all activities, both religious and non-religious. Guest retreats are events where Hume NE rents out its facilities to churches, ministries, and mission organizations. The interested groups are screened to ensure that their beliefs align with Hume’s tenets and their retreat’s activities will include religious components. The group’s ministry leader is also required to sign the statements of beliefs and a guest group contract.

To promote more housing on its property, Hume applied to the Board for site plan review for the construction of an RV camp. The RV camp would be used for three distinct groups: (1) families attending the new family camp program, (2) volunteers, and (3) seasonal, temporary staff. Monterey’s zoning bylaw prohibits principal uses of a “trailer or mobile home park.” Although the Dover Amendment precludes a town or municipality from adopting a bylaw that “prohibit[s], regulate[s], or restrict[s] the use of land or structures for religious purposes [] on land owned or leased by . . . a religious sect or denomination,” the Board denied Hume’s application on the grounds that the trailer park was not a customary religious use protected by the Dover Amendment.

Hume appealed from the Board’s denial to the Land Court. After a trial, the Land Court held that use of the proposed RV camp for family attendees was protected under the Dover Amendment due to its primary religious purpose, but that the use of the RV camp by volunteers and seasonal staff was primarily financial and therefore not protected. Both parties appealed and the Supreme Judicial Court (“SJC”) transferred the case on its own motion.

In analyzing the question of whether the proposed RV camp is an exempted use under the Dover Amendment, the SJC employed a two-part test: (1) whether the proposed use’s “bona fide goal” is religiously significant; and (2) whether that religiously significant goal is the “primary or dominant” purpose for which the land or structures will be used. The SJC held that the proposed RV camp’s primary purpose of cultivating religious practice by facilitating the camp’s operations and strengthening attendance was religiously significant. It did not matter that some of the activities or tasks to be completed by the volunteers or staff were secular in nature as a religious organization may depend on such tasks to operate effectively. The SJC held that the trial court should not have inquired into each individual use of the RV camp, but instead have analyzed the RV camp as a single use subjected to a single instance of the religious purpose test. The SJC determined that: (i) housing the families at the RV camp would serve Hume’s religious mission by strengthening attendance at the new family camp program; (ii) the primary purpose of the housing volunteers and seasonal staff would be to facilitate the operation of Hume NE, which supports Hume’s religious mission; and (iii) the primary or dominant purpose of Hume NE is to serve Hume’s evangelical mission through their program camps and guest retreats. Accordingly, the Court ruled that the proposed RV camp was an exempted use protected by the Dover Amendment.

'STANDING' REMAINS IMPORTANT IN ZONING APPEALS

Whittier v. Planning Board of the Town of Ipswich, 2023 WL 3841907 (Mass. Land Court June 6, 2023)

A group of landowners in Ipswich (“Plaintiffs”) appealed a decision of the Town of Ipswich Planning Board (“the Board”) granting Ora, Inc., an ophthalmic research and development company (“Ora”), a special permit and site plan approval to build its Collaboration and Innovation Center consisting of offices, dining, lodging and other amenities (the “Project”).

The Project Site is located in a Rural Residence A (“RRA”) district where commercial uses are generally not permitted. As the site includes several features including a historic great estate mansion, Ora applied for a special permit as a Great Estate Preservation Development (“GEPD”) under the Town of Ipswich Zoning Bylaw (the “Bylaw”). The Bylaw allows the Board to grant a special permit with site plan approval for GEPD in the RRA zoning district so as to preserve the landscape features that are characteristic of Great Estates and to encourage the preservation and appropriate development of buildings and lands in the RRA district. After the Board granted the special permit, Plaintiffs appealed to the Land Court, claiming they were aggrieved by the relief granted by the Board because of traffic, safety, density, and diminution of property values concerns. Ora filed a motion to dismiss, challenging Plaintiffs’ standing to bring the appeal.

Pursuant to G.L. c. 40A, § 11, “abutters, landowners directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner” enjoy a rebuttable presumption that they are “persons aggrieved” by a decision concerning the petitioner’s property. A defendant can rebut the statutory presumption by showing that the claims of aggrievement are not interests protected by the Zoning Act or by coming forward with credible affirmative evidence that warrants a finding contrary to the presumed fact of aggrievement, or by showing that the plaintiff has no reasonable expectation of proving a cognizable harm. If a defendant is successful in rebutting the presumption of standing or if plaintiff is not entitled to the statutory presumption, the burden fall on the plaintiff to prove standing by putting forth credible evidence – through direct facts and not by speculative personal opinion – that the approved project will cause the plaintiff particularized injury that is different from the concerns of the rest of the community.

Here, five of the ten Plaintiffs purported to be abutters to Ora’s Project Site, thus qualifying as “parties in interest” entitled to the presumption of standing afforded under G. L. c. 40A, § 11. The Court noted that in a zoning appeal, however, it is sufficient for jurisdictional purposes if at least one Plaintiff is aggrieved. The Court held that Ora rebutted their statutory presumption of standing. Specifically, the Court determined that: (i) Ora’s empirical traffic study, which found that the project would cause a negligible impact on traffic, successfully rebutted Plaintiffs’ presumption of standing due to traffic and safety; (ii) Plaintiffs are not aggrieved where the project does not violate the density provisions of the Bylaw and the minimum square footage requirement for GEPDs was not intended to control density or protect abutters’ interests in particular; and (iii) diminution of property values was not a protected property interest under G. L. c. 40A and could not provide a basis on which to assert standing. The Court also found that Plaintiffs failed to satisfy their burden of proving by credible evidence that they would suffer a particularized injury special and different from the concerns of the rest of the community. The Court held that the evidence put forth by Plaintiffs—individual affidavits speculating that traffic conditions would worsen, letters from a University of Pennsylvania professor with no engineering credentials, and the affidavit of a qualified transportation engineer with no accompanying traffic impact study or site distance evaluation—did not demonstrate any particularized injury or harm regarding Plaintiffs’ traffic or safety concerns. Plaintiffs similarly could not provide any evidence of particularized harm concerning their alleged density concerns, and their final concern regarding the diminution of property values, as stated above, was not a concern that could provide a basis for standing. For these reasons, the Court held that Plaintiffs’ claimed injuries were too generalized and speculative to confer standing, and the Court therefore dismissed Plaintiffs’ appeal for lack of subject matter jurisdiction.

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