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Commercial Real Estate, Real Estate

A Serial Plaintiff Gets Another Day in Court

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Court Favors ADA “Tester” in Maine Inn Lawsuit
By Christopher R. Vaccaro
Special to Banker & Tradesman

Deborah Laufer is a severely disabled Florida resident.  She needs a wheelchair to get around, and has limited use of her hands and impaired vision.  Her disabilities require numerous accommodations, such as accessible parking, wheelchair ramps and widened passageways.

She is also a self-described Americans with Disability Act “tester” – an individual who seeks out businesses that are noncompliant with the ADA and its regulations, but does not intend to actually use the businesses’ services.

Under the ADA, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment … of
any place of public accommodation by any person who owns … or operates a place of public accommodation.”

Hotels are public accommodations subject to this law. ADA regulations require that hotel reservations systems describe accessible features in hotel facilities “in
enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” These regulations are designed to help disabled individuals efficiently determine from hotel online reservation systems whether a hotel can accommodate them.

Surfing for Online Violations

Whether testers like Laufer have “standing” to file lawsuits is a threshold issue in discrimination cases. Courts developed the standing doctrine to ensure that plaintiffs
have concrete injuries, and that they are not merely concerned bystanders seeking to vindicate their value interests. In order to have such standing, plaintiffs must suffer actual injury, traceable to the defendants’ misconduct, which can be redressed by the courts.

Plaintiffs without standing cannot maintain lawsuits, and courts must dismiss their cases. In 1982, the United States Supreme Court ruled in Havens Realty Corp. v. Coleman that a Black tester had standing to sue a real estate company that refused to show her available housing. However, many federal courts have dismissed ADA lawsuits filed by serial testers, ruling that the testers lack standing.

Laufer surfs the internet looking for hotels nationwide whose online reservation systems lack information on accessibility.  When she finds them, she engages lawyers
to sue hotel operators in federal court for ADA violations, seeking declaratory judgments, injunctive relief and attorney’s fees. The ADA does not allow private parties to collect monetary damages, but it does require violators to pay their attorney’s fees, thus creating a lucrative industry for lawyers that work with testers like Laufer. With such lawyers’ assistance, Laufer has filed over 650 lawsuits involving non-compliant ORS.

Some federal courts have ruled that Laufer lacks standing to maintain her lawsuits.  But she persists, despite occasional setbacks.

Hotels that fail to comply with ADA requirements for online reservation systems face increased risk of liability in the wake of a recent court filing

Who Has Standing?

In 2020, she discovered that the online reservation system for the Coast Village Inn and Cottages of Wells, Maine lacked information on accessibility. She filed suit in the federal court in Maine, claiming that the inn’s online reservation system caused her “humiliation and frustration at being
treated like a second-class citizen.” The district court dismissed her suit, ruling that she lacked standing to sue the inn because, as an ADA tester, she did not suffer an actual injury, and no injury to her was imminent.

Last month, the U.S. Court of Appeals for the First Circuit, which hears federal appeals from Maine, Massachusetts, New Hampshire and Rhode Island, overruled the Maine federal district court. While acknowledging the division among federal appeals courts on Laufer’s standing to file suits as an ADA tester, the First Circuit appeals court ruled that Laufer had standing to sue the Maine inn.

The appeals court acknowledged Laufer’s claim that the inn’s online reservation system lacked accessibility information required by ADA regulations. This denial of information to Laufer, a disabled individual, was actionable under the ADA. Laufer’s status as a tester, with no intent to actually use the accessibility information, did not change this. The deficient reservation system
caused Laufer a concrete injury, because the lack of information put her “on an unequal footing to experience the world in the same way as those who do not have disabilities.” For these reasons, the First Circuit appeals court reversed the district court’s judgment, allowing Laufer’s lawsuit to proceed.

Because of the split among federal appeals courts on ADA testers’ standing, the U.S. Supreme Court may eventually decide this issue. For now, hotels and inns, especially those located in Maine, Massachusetts, New Hampshire and Rhode Island, should make sure their websites and reservations systems, including those operated by outside services, disclose the availability of accommodations for disabled individuals. They should also spread the word that testers like Laufer are out there looking to start lawsuits when they discover violations of ADA regulations.

Download the article as seen in Banker & Tradesman on October 31, 2022. Learn more about Christopher R. Vaccaro.

Commercial Real Estate, Real Estate

In Falmouth, Illegal House Sold to Affordable Housing Developer

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Previous Owner Began Construction Despite Zoning Violations
By Christopher R. Vaccaro
Special to Banker & Tradesman

A Falmouth builder recently learned the hard way that building permits and certificates of occupancy do not protect illegally built structures from timely forced re­moval orders.

Pheasant Lane in East Falmouth, a resi­dential neighborhood near Green Pond and Menauhant Beach, is part of a subdivision created in 1970. The subdivision consists of several lots, each with roughly 10,000 square feet of area, which was the minimum lot size under Falmouth’s zoning bylaw in 1970. Homes have been constructed on most of these lots, but 33 Pheasant Lane, with 11,540 square feet of area, remained undeveloped.

After 1970, the zoning bylaw was amended three times to increase the appli­ cable minimum lot size; first to 15,000 square feet in 1971, then to 20,000 square feet in 1984, and finally to 40,000 square feet in 1993. Before the 1984 increase, 33 Pheas­ ant Lane was part of a 7-acre parcel under common ownership. The property was sold as a separate lot in 1985, with less than the required 20,000 square feet of area.

Undersized Lot Fails Zoning Test

The Massachusetts Zoning Act provides “grandfathering” protection from increased minimum lot size requirements for house lots not held in common ownership with ad­ joining land, if they conform to then-existing requirements and have at least 5,000 square feet of area and 50 feet of frontage. Because 33 Pheasant Lane was owned in common with adjoining land when the minimum lot size increased in 1984, it is not grandfa­thered. In 1994, the Falmouth Zoning Board of Appeals (ZBA) issued two decisions pre­ venting construction on 33 Pheasant Lane.

None of this history deterred Pheasant Lane LLC, which contracted to buy the lot and applied for a building permit for a sin­gle-family home in November 2018. Its building permit application contained two misstatements; namely, that the lot was not an “undersized lot,” and that it had not been the subject of a prior ZBA decision. After the Falmouth building commissioner issued a building permit, Pheasant Lane LLC bought the undersized lot for $165,000 in January 2019.

When work began in early 2019, a neigh­bor, who was also a ZBA member, com­plained to the building commissioner. The building commissioner refused to act. Fal­mouth’s town counsel informed the builder about the zoning problem in March 2019, before the builder had done significant work, but the builder continued construc­tion. The neighbor appealed to the ZBA. While that appeal was pending, the building commissioner issued a certificate of occu­pancy for the completed home.

Tourists depart a ferry in Falmouth harbor. Falmouth’s Zoning Board of Appeals issued a comprehensive permit to a nonprofit developer for a single-family home in September after a court ruled that the dwelling was illegally constructed by a previous owner

A Nonprofit Spies and Opportunity

In December 2019, the ZBA (with the neighbor recusing himself from the deci­sion) ordered the building commissioner to rescind the certificate of occupancy, and required the builder to return 33 Pheasant Lane to “its natural state” as it existed be­fore construction.  The building commissioner ordered the builder to remove the home from the property within 30 days. The builder appealed to the Land Court.

Falmouth Housing Trust, Inc., a nonprofit that promotes the development of affordable housing in Falmouth, saw an opportunity.

Falmouth is currently 417 units short of the required number of affordable dwelling units needed for Falmouth to use regulatory ex­ emption thresholds under the “anti-snob zon­ing” act in Massachusetts General Laws, Chapter 40B.

The Falmouth Housing Trust offered to buy the property from the builder if it could obtain a comprehensive permit from the ZBA allowing use of the property as an af­fordable single-family dwelling for a low- or moderate-income household.  The builder accepted this offer, hoping for a graceful exit from this debacle. The ZBA issued the comprehensive permit for the affordable dwelling unit in September.

Addie Drolette, the president of the Fal­mouth Housing Trust, summarizes the bene­ fits of this outcome.

“Considering the lack of workforce hous­ing in Falmouth, the Falmouth Housing Trust could not sit by and watch this beauti­ful home be demolished without attempting to save it. We are grateful to the town and its leadership for accepting our efforts to create another affordable home, and for the builder’s willingness to sell the property at a significant loss rather than continue with the litigation,” Drolette said.

The builder could have avoided this prob­lem to begin with, if before it bought the lot and built the house, it had done a thorough zoning analysis, and disclosed that the lot was undersized under local zoning in its building permit application. The Falmouth building commissioner also deserves some blame, for issuing a building permit on an 11,540 square-foot lot in a zoning district with a minimum lot size of 40,000 square feet.

Download the article as seen in Banker & Tradesman on October 31, 2022. Learn more about Christopher R. Vaccaro.

Branding, News, Trusts & Estates

Law Offices of Susan M. Mooney joins Dalton & Finegold

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We are pleased to announce that effective November 1, 2022, The Law Offices of Susan M. Mooney joins the law firm of Dalton & Finegold LLP.

The Law Offices of Susan M. Mooney was originally founded in 1989 (as Carey and Mooney, P.C.).  The Law Offices of Susan M. Mooney, P.C. was established in 2001 after Attorney Paula M. Carey, became a member of the Massachusetts judiciary.  The firm has provided legal representation to more than 3,000 individual clients and their families over thirty-three (33) years of practice.  Susan and her team are committed to providing zealous and effective legal representation in a variety of practice areas, including estate planning, probate and trust matters and elder law.  They take great pride in providing personal attention to the needs of each individual client.  Susan and her team are devoted to providing the attention and commitment necessary to represent the interests of each client and strive to obtain the best possible results for them.

Looking toward the future, Susan felt it was important to be part of a well-respected law firm not only capable of continuing to represent her clients in and around the Stoneham area, but a firm who is just as committed to providing a high level of service that the community has come to expect from The Law Offices of Susan M. Mooney.  Susan will be working along with Partner Ashley Evirs as she transitions to Dalton & Finegold.

“As Managing Partner at Dalton & Finegold, I speak for the whole firm when I say we are very excited to welcome Susan Mooney and her excellent staff to the D&F team.  You can expect to receive the same great service you have enjoyed for so many years just under a new name!” says Barry Finegold, Managing Partner/Founder of Dalton & Finegold LLP.

Susan will maintain her office in Stoneham at 51 Main Street and phone number: 781-279-2234.   

Dalton & Finegold was founded in 2000 by Barry Finegold and Bill Dalton and has been servicing clients in the practice areas of real estate, estate planning and real estate litigation for the past 22 years.  Recognized in 2022 by the Boston Business Journal as Fast 50, Dalton & Finegold continues to grow smartly, ensuring that every client receives personalized service designed to meet their needs.

 

 

 

 

Estate Planning, Trusts & Estates

Pitfalls of Relying on a Last Will and Testament

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Pitfalls of Relying on a Last Will and Testament

A Last Will and Testament is a legal document that coordinates the distribution of your assets after you pass away.  While many individuals believe that a Will is a sufficient way to allocate assets to their loved ones, there are numerous short comings in relying on a Will as the core document in your estate plan.  This Article covers the top 6 pitfalls of relying upon a Last Will and Testament.

The first pitfall is the ability for your Will to be challenged.  The provisions of your Will, including your direction as to the disposition of your assets, may be exposed to challenges by individuals or family members who disagree with your wishes.  The Court will allow any of your natural heirs and any individual you have named as beneficiary in your Will to challenge any provision contained in your Will.  The likelihood of a challenge increases if there is strife in the family, a disinherited family member, or unequal distributions between beneficiaries.  Once a challenged is levied, it can impose a large financial burden on the estate and can take years to resolve

The second, and unavoidable, pitfall with a Will-based estate plan is that you are exposed to the costly, time consuming, and intrusive process of the probate court.  While many individuals believe that creating a Will is an effective way to cut down on legal expenses, you will likely end up spending a large amount of money on costs associated with probate proceedings.  The probate process can cost upwards of 10% of the value of the estate.  Further, the probate process is lengthy.  It can take around eight months to have your Personal Representative (formerly referred to as Executor) appointed and the probate process itself takes at least a year to finalize.

The third pitfall presents itself during the probate process, when your beneficiary’s access to the inherited assets is often restricted.  This can be especially problematic if you have minor beneficiaries or beneficiaries with special needs or disabilities.  Under the provisions of a simple Will, an inheritance left to a minor (person under 18 years of age) will be held by the Personal Representative until the beneficiary turns 18, at which point the entire inheritance will be distributed to them outright.  Most individuals would prefer to have their minor beneficiaries inherit at a later age or have the money allocated for specific purposes such as education.  In addition, beneficiaries with special needs or those receiving government benefits will not be protected under a simple Will.  It is likely that these beneficiaries will have their existing benefits suspended or terminated.  This would also jeopardize their eligibility status for programs they otherwise would have been immediately eligible for.  A simple Will is also unable to protect the inherited assets from a beneficiary’s creditor, divorcing spouse, or any lawsuits which might be pending against the beneficiary.

The fourth pitfall is the public nature of the probate proceedings.  An inventory of all your assets is filed with the Court, which is public information, as well as the names and addresses of your family members and beneficiaries.  Due to modern day technology, these records are easily available online, free of charge, for anyone to look up without you or your family’s knowledge, and without requiring permission from you or the Court.

The fifth pitfall worth mentioning is that a Will is only effective after death.  Therefore, a Will does not aid in the management of your affairs should you become incapacitated.  Without further estate planning, your family members will be left without guidance, and you will be left without a trusted representative to make your medical and financial decisions.  Often times this can result in the need for the appointment of a Guardian or Conservator for you or your assets, a process that is expensive and time-consuming.

The sixth, and final pitfall covered in this Article is that a simple Will does not protect your estate from estate taxes.  While the 2022 federal estate tax exemption is $12.06 million, it does not mean that individuals with an estate value less than $12.06 million should disregard a concern for estate taxes.  Some states, including Massachusetts, have a state-level estate tax with a much lower exemption amount.  In Massachusetts, the estate tax applies to any estate over $1 million.  This amount is sometimes easily attained when you factor in real estate, life insurance, retirement accounts, and any investment or cash accounts.  This is especially important for married couples as a simple Will cannot effectively maximize each spouse’s $1 million Massachusetts exemption.

Ultimately, these shortcomings may place an undue burden on your family or friends both during your lifetime and after you pass away.  A simple way to avoid these pitfalls is to establish a Revocable Living Trust as the core document to your estate plan. A Revocable Living Trust is a legal instrument through which one person, called the Trustee (typically yourself), holds and manages the Trust assets for the benefit of the beneficiaries named in the Trust.  Traditionally you are the beneficiary of the Trust during your lifetime and you name one or more beneficiaries to inherit after you pass away.

The Benefits of a Revocable Living Trust 

A Revocable Living Trust does more than merely instruct distribution of your assets after you pass away.  A Revocable Living Trust also allows you to manage your affairs while you are alive with no restrictions.  In the event you become incapacitated or pass away, your Trust will appoint a successor Trustee to ensure that you and your affairs are properly managed.  This individual or institution has the discretion to decide how assets are distributed to your minor or adult beneficiaries and take into consideration any specific wishes you may have. Transferring your assets into a trust and designating your Trust as the beneficiary of your assets will allow you to avoid the costly, time consuming, and intrusive process of probate court. Unlike a Will, your trust does not become a matter a public record and can remain private.

Furthermore, a Revocable Living Trust more comprehensively protects minor beneficiaries and those with government benefit concerns.  Additionally, a properly drafted Revocable Living Trust can protect the assets you leave behind for an adult beneficiary from a divorce, creditor, or lawsuit.   A Revocable Living Trust is also recommended to better protect your assets from an estate tax, whether it be Federal or Massachusetts, and ensure the value of your estate is preserved to its fullest extent.  A Revocable Living Trust allows a married couple to protect up to $2 million in assets in Massachusetts from estate tax exposure.

We often hear that individuals and families want to keep their planning simple and believe a simple Will can accomplish their estate planning goals. Wills and simple estate plans can be very deceiving.  While creating a simple Will may cost less at the time, in the long run, you pay far more in time and money than the cost of instead creating a Revocable Living Trust.

If you have questions about your Estate Planning needs, our Attorneys are ready to assist you!

Commercial Real Estate, Real Estate

In Andover, a Welcome Mat for Biotech Growth

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Platinum Rating from MassBio Reflects Lab-Friendly Environment
By Christopher R. Vaccaro
Special to Banker & Tradesman

The Massachusetts Biotechnology Counsel is a private nonprofit located near the Massachusetts Institute of Technology and Kendal Square in Cambridge.  Its members include biomedical firms, academic hospitals and allied organizations, and it’s mission is the advancement of Massachusetts’s leadership in the life sciences industry.

MassBio’s 2022 snapshot summarizes the growth of that industry in Massachusetts. According to the report, life sciences employment in Massachusetts has grown by 131 percent since 2006, with 13 percent growth in 2021 alone. There are over 106,000 people employed in the Massachusetts biopharma industry, with average salaries above $200,000 per year.
In 2021, venture capital firms invested $13.7 billion in biopharma companies head-quartered in Massachusetts, and the National Institute of Health invested another $3.3 billion in Massachusetts. Massachusetts real estate used for life sciences increased from 18 million square feet in 2011 to 40 million in 2021, and it is expected to reach 56 million square feet this year.

Communities Go Platinum 

Much of the Massachusetts life sciences industry is situated in Middlesex and Suffolk Counties, mostly in Cambridge, Boston and Waltham, but MassBio also recognizes several other “BioReady” communities that can accommodate life science developments. It awards bronze, silver, gold and platinum ratings to Massachusetts communities, based on their ability to offer favorable land use laws and necessary infrastructure to life science firms.

MassBio reserves its platinum rating for communities that are best prepared for life science developments. To earn a platinum rating, a community must either have a board of health that adopted NIH guidelines on rDNA activity, and permitted buildings with at least 20,000 square feet available for biotech uses, or have shovel-ready, pre-per-mitted land sites with municipal water and sewer capacity and completed reviews under the Massachusetts Environmental Protection Act.

MassBio has awarded platinum ratings to 37 communities – Andover, Bedford, Beverly, Billerica, Boston, Burlington, Cambridge, Canton, Chelmsford, Devens,    Fitchburg, Framingham, Franklin, Gloucester, Grafton, Haverhill, Leominster, Lexington, Lowell, Lynn, Malden, Marlborough, New Bedford, Newton, North Andover, Norwood, Quincy, Revere, Shrewsbury, Somerville, Southfield, Springfield, Taunton, Waltham, Westborough, Woburn and Worcester.

Pfizer broker ground on a 180,000-square-foot expansion of its Andover campus in 2017 after receiving a tax increment financing agreement from town officials.

Expedited Permitting at the Interstate Crossroads

Andover is among several communities outside the Route 128 belt that have earned MassBio’s platinum rating. Located at the intersection of two interstate highways, and hosting an attractive town center, dedicated open space, and two commuter rail stations, Andover is a desirable place to live and work. Its zoning bylaw establishes expansive industrial zones along Interstate 93, where research laboratories and manufacturing facilities for pharmaceuticals, biologics, and medical devices are specifically allowed as of right. The town offers an expedited permitting process for specified priority development sites under Massachusetts General Laws Chapter 43D, which guarantees local permitting decisions within 180 days.

Andover already has about 2 million square feet of building space devoted to life sciences, of which Pfizer Pharmaceuticals occupies over 1 million square feet. Other life science firms such as Draeger Medical Systems, Smith & Nephew and Straumann USA have significant presences in Andover. The town has an additional 500,000 square feet of new life science space in its pipeline. This includes 100,000 square feet of new construction at 4 Corporate Drive, which IQHQ purchased in 2020. That property is leased to University of Massachusetts Lowell and Ora Inc.

Andover is willing to consider tax increment financing to encourage life science developments. In 2017, Pfizer used a TIF to expand its Andover campus by 180,000 square feet. Under the five-year TIF, the town agreed to 100 percent real estate tax relief on Pfizer’s expansion for three years, plus 65 percent relief in years four and five, capped at $2.9 million total tax relief. Andover expects to realize a $3.8 million TIF benefit over 10 years from the expansion. Pfizer’s expansion not only benefits people locally. Its Andover campus is instrumental in manufacturing the COVID-19 vaccine, which benefits people worldwide.

Paul Materazzo, Andover’s director of planning and land use, points out that Andover encourages employee amenities such as restaurants and daycare facilities near life science firms.

“It has been a remarkable ride witnessing Andover’s transformation into a life science cluster,” Materazzo said. “The hard work put in by Andover’s boards and committees over the years has distinguished Andover as a life science leader in the commonwealth. As we continue to welcome new life science companies seeking space near Cambridge and Boston, Andover has become an attractive alternative, based upon our understanding of their needs, location, and available incentives.”

Andover has available sites with excellent infrastructure, an accommodating regulatory environment, and a willingness to provide tax incentives. Its welcome mat is out for more life science developments.

Download the article as seen in Banker & Tradesman on September 26, 2022. Learn more about Christopher R. Vaccaro.

Litigation

Dalton & Finegold Welcomes Litigation Partner Patrick Heffernan

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ANDOVER, MASSACHUSETTS – September 22, 2022 – Patrick Heffernan has joined Dalton & Finegold, LLP as a partner in the firm’s Litigation Group in the Andover office. Prior to joining Dalton & Finegold, Heffernan practiced litigation at Tinti & Navins, P.C.

Heffernan is a litigation lawyer who focuses on complex contract and business issues, homeowner and general contractor disputes, commercial and residential landlord-tenant matters, condominium disputes, land use disputes, and various employment matters. He has helped clients in all phases of dispute resolution from out-of-court negotiations through trial. He also assists small businesses with general corporate representation including business entity formation, corporate upkeep and business succession matters, preparing ownership and management agreements, and contract drafting. During law school, Heffernan served as the Editor-in-Chief of the New England Journal on Criminal and Civil Confinement.

“Our firm continues to expand strategically with focus on providing exceptional service and response time to our clients. Patrick Heffernan is a terrific addition to our litigation group. He is a talented lawyer who is highly respected by his peers and clients and will be an immediate asset to our firm,” said Barry Finegold, Co-Founder and Managing Partner of Dalton & Finegold.

Added Heffernan, “I’m pleased to be part of Dalton & Finegold because of its strong reputation and commitment to client services. I am looking forward to strengthening Dalton & Finegold’s expanding litigation practice and bringing its clients the highest quality of counsel that they have already come to expect.”

Heffernan is a graduate of the New England School of Law (J.D., 2012), the Isenberg School of Management at the University of Massachusetts Amherst (M.B.A., 2017), and Connecticut College (B.A., 2007).

Attorney Heffernan grew up on the North Shore and lives in Topsfield with his wife and three children.

About Dalton & Finegold, LLP

Dalton & Finegold, LLP specializes in residential and commercial real estate law, estate planning, business law, and litigation. Headquartered in Andover, Massachusetts, with offices in Boston, Amesbury, Concord, Lakeville, Longmeadow, Marlborough, Manchester, and Nashua, we have provided exceptional service to our clients for over 20 years.

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CONTACT: Anne Webster, COO | Phone: (978) 470-8400 | Email: awebster@dfllp.com

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