Kunelius v. Town of Stow, et al

Filing 920091109

Opinion

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var WPFootnote1 = 'The record reflects that Kunelius intended to donate the 42.1\
acres of forest land to the Town. We need not speculate about her\
reasons for structuring her affairs in the way that she did, rather\
than attempting to sell only the 8.57 acres in a transaction\
separate from the contemplated land donation. See Mass. Gen. Laws\
ch. 61 § 8 (2001) (providing that only land taxed under Chapter 61\
is subject to the right of first refusal); see also Town of Sudbury\
v. Scott, 787 N.E.2d 536, 542 & n.11 (Mass. 2003) (clarifying that\
Mass. Gen. Laws ch. 61A § 17 should be interpreted to allow "the\
municipality to exercise its first refusal rights as to the portion\
of the land that is to be separated from the remainder, when sold\
or converted, as set forth in [Mass. Gen. Laws ch. 61A § 14], while\
the remainder of the land may remain in c. 61A"(emphasis added)).\
'

var WPFootnote2 = 'The day before, on February 10, 2009, The Stow Community\
Preservation Committee, the body that administers Community\
Preservation Act Funds, heard a joint FORA/TPL plea to use funds to\
support the Trust\'s planned exercise of the ROFR. The Committee\
voted to recommend that the Town approve the necessary expenditures\
at the Town\'s annual meeting in May 2009.\
'

var WPFootnote3 = 'There is no indication in the record that these limitations\
on TPL\'s authority were disclosed to Kunelius or the Town at this\
time.\
'

var WPFootnote4 = 'In April 2003, McDonnell represented to the Massachusetts\
Department of Housing and Community Development that TPL had access\
to a six million dollar line of credit from a bank and would\
consider using this resource, even though internal TPL discussions\
suggested that TPL\'s governing board was unlikely to approve the\
use of financing in this project.\
'

var WPFootnote5 = 'At this time, TPL received discouraging news on the zoning\
front: outside counsel advised TPL that approval of the variances\
was extremely unlikely.\
'

var WPFootnote6 = 'On appeal, Kunelius has not advanced any developed argument\
in support of her claims against McDonnell in his personal\
capacity, and therefore those arguments have been waived. Pomales\
v. Celulares Telefonica, Inc., 447 F.3d 79, 85 n.4 (1st Cir. 2006)\
'

var WPFootnote7 = 'We note that during the pendency of discovery, all defendants\
jointly filed a motion to certify a central question of this suit\
to the Massachusetts Supreme Judicial Court. The defendants argued\
that "there is no controlling precedent in the decisions of the SJC\
or the Massachusetts Appeals Court" regarding whether a liquidated\
damages clause negotiated between the owner of Chapter 61 lands and\
a willing buyer should, by operation of law, become a provision\
that is applicable to a municipality or non-profit conservation\
organization exercising an ROFR. This motion was eventually\
withdrawn, subject to renewal.\
'

var WPFootnote8 = 'The Massachusetts legislature has since abrogated the rule in\
Wyllie, and Mass. Gen. Laws ch. 61A § 14 and C. 61 §8 now require\
that in order to be "bona fide," an offer must not be "dependent on\
potential changes to current zoning or conditions or contingencies\
relating to the potential for or the potential extent of\
subdivision of the property for residential use or the potential\
for, or the potential extent of development of the property for\
industrial or commercial use, made by a party unaffiliated with the\
landowner for fixed consideration payable upon delivery of the\
deed." St. 2006 C. 394 §§ 18, 31.\
                                    We apply the law as it was before the legislature amended it,\
effective March 22, 2007. See Fleet Nat\'l Bank v. Comm\'r of\
Revenue, 852 N.E.2d 22, 28-29 (Mass. 2007) (noting that retroactive\
application of statutes adjusting substantive rights, as opposed to\
remedies, is disfavored and thus the court employs a presumption\
against retroactive application that it uses to resolve uncertain\
cases)(citing Austin v. Boston Univ. Hosp., 363 N.E.2d 515 (Mass.\
1977)); see also City of Newburyport v. Woodman, No. 309692, 2007\
WL 3256964, at *3-4 (Mass. Land Ct. 2007) (noting that General\
Court enacted C. 394 to overturn the decision in Wyllie, but that\
this enactment was not to be applied retroactively).\
'

var WPFootnote9 = 'Alternatively, these courts permit the exercise of an ROFR\
even if there are insubstantial variations between the bona fide\
offer and the holder of the ROFR\'s offer, which is essentially the\
same thing. See Miller, 87 F.3d at 226.\
'

var WPFootnote10 = 'There are good reasons to wonder whether worrying about\
whether liquidated damages take on a penal aspect is wise as a\
matter of contract law or economic policy. See generally, Charles\
J. Goetz and Robert E. Scott, Liquidated Damages, Penalties, and\
the Just Compensation Principle, 77 Colum. L. Rev. 554, 556 (1977)\
(arguing that uncritical application of the penalty doctrine\
"frequently induces a costly reexamination of the initial\
allocation of risks and may also deny the non-breaching party\
either adequate compensation for the harm caused by the breach or\
the opportunity to insure more optimally against such harm").\
'

var WPFootnote11 = 'In this regard, we note that the record suggests that the\
current, less favorable liquidated damages provision was not\
included among Cohousing\'s original offers but was made a part of\
the agreement that Kunelius\'s attorney ultimately drafted. While\
this fact is not dispositive of her claim, it is clear that the\
appellant was not stuck with this clause as the result of an\
adhesion contract, and the record further suggests that the\
appellant did not arrive at this particular clause due to a\
substantial inequality in bargaining power. \
'

var WPFootnote12 = 'In order to uphold the liquidated damages provision, we also\
need to conclude that Kunelius\'s damages were difficult to measure\
at the time of contract formation. In light of the Kelly court\'s\
observation that such damages are often hard to value in\
transactions involving the purchase and sale of real estate, this\
is an easy threshold to clear.\
'

var WPFootnote13 = 'The Town and the Trust had six months to close. Closing had\
to occur on or before September 26, 2003 because the contract term\
granting an extension of the closing date was contingent on the\
"Chap. 40B approval process . . . proceeding forward." Although it\
could be argued that the pertinent time of contract formation for\
purposes of evaluating the liquidated damages clause was the time\
Kunelius negotiated the bona fide offer, evaluating the propriety\
of the damages clause at the time the Trust exercised its\
assignment is not a "second look" in the classic sense, because it\
was at that point that the Trust accepted the contract, and an\
agreement was formed between Kunelius and the Trust. See T.W.\
Nickerson, Inc., 898 N.E.2d at 878. Rather, a second look occurs\
when a court evaluates the propriety of a damages provision at the\
time of breach. See Kelly, 705 N.E.2d at 1116 (explaining that\
under a so-called "second look" analysis, a court looks to the\
actual damages resulting from the breach) (emphasis added).\
'

var WPFootnote14 = 'We note that appellant\'s complaint did not specify whether\
she was proceeding under the consumer or business protection\
provisions of Chapter 93A. At summary judgment, counsel for the\
appellant specified for the first time that she was proceeding\
under the business-to-business provisions. We note that had the\
plaintiff proceeded on the consumer prong of Chapter 93A, summary\
judgment for the defendants would have been appropriate because the\
plaintiff did not serve the defendants with a demand letter as\
required by that section. See Mass. Gen. Laws ch. 93A § 9. \
'

var WPFootnote15 = 'The agent testified that he paid the appellant about $250 per\
month to board his horse at her farm. Thus, the record supports\
the inference that appellant likely received payment for boarding\
five horses at her farm at the time she entered the contract.\
'

var WPFootnote16 = 'The district court dismissed the Chapter 93A claim against\
the Town because the Town assigned the ROFR to the Trust and never\
became a party to the appellant\'s contract with the Trust. \
Kunelius, 2008 WL 4372752 at *4 n.7. The appellant has not\
challenged this ruling on appeal and it is therefore waived. Stamp\
v. Metro. Life Ins. Co., 531 F.3d 84, 88 (1st Cir. 2008). The\
district court, however, did not have occasion to determine whether\
a partnership between the Town and the Trust existed because it\
found that any such partnership was entitled to summary judgment\
for the same reasons that the Trust was entitled to summary\
judgment. Kunelius, 2008 WL 4372752 at *1 n.1, *5. As we, like\
the district court, conclude that the Trust was entitled to summary\
judgment on this count, we need not decide whether any such\
partnership existed because it too would be entitled to summary\
judgment. \
'

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