Home TOWN OF OXFORD, acting by and through its Board of Selectmen vs. EAV REALTY, LLC, and PULTE HOMES OF NEW ENGLAND, LLC

MISC 323064

May 6, 2009

Sands, J.


Plaintiff filed its Verified Complaint for Declaratory Judgment and Injunctive Relief on May 10, 2006, seeking to enforce its rights under G. L. c. 61B (“Chapter 61B”) relative to a 126.5 acre parcel of land located on Pleasant and Leicester Streets in Oxford, MA (“Locus”). On the same day Plaintiff filed its Motion for a Preliminary Injunction. This court allowed, in part, Plaintiff’s Motion for Preliminary Injunction on May 26, 2006 (the “Order”), finding that the 120-day option period under G. L. c. 61B, § 9 had not yet begun to run because of a defective notice, and ordering that Defendant EAV Realty, LLC (“EAV”) be enjoined from conveying Locus to Defendant Pulte Homes of New England, LLC (“Pulte”) or any other party except Plaintiff until final adjudication of the merits of this case. [Note 1] Pulte filed its Answer on June 9, 2006, and EAV filed its Answer on June 28, 2006. A case management conference was held on July 18, 2006.

EAV filed its Motion for Judgment on the Pleadings and/or Summary Judgment on August 17, 2006, together with supporting memorandum, Concise Statement of Material Facts, and Appendix, and a hearing was scheduled for February 9, 2007. At a status conference on December 7, 2006, the parties acknowledged that they were in settlement discussions and the summary judgment hearing was put on hold. At a status conference on May 21, 2007, the parties announced that settlement talks had fallen through, and this court scheduled a second hearing for EAV’s summary judgment motion to take place on December 17, 2007. On August 30, 2007, Plaintiff filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Reply to Concise Statement of Material Facts, and Affidavit of Shirin Everett, Esq. On December 17, 2007, the parties again requested a postponement of the summary judgment hearing because of continued negotiations, yet at a status conference on March 6, 2008, the parties once more indicated negotiations had fallen through and requested a new hearing date. [Note 2] On September 16, 2008, EAV filed its Supplemental Memorandum, and this court held a hearing on both motions on September 17, 2008. A decision of today’s date has been issued. [Note 3]

In accordance with that decision it is:

ORDERED and ADJUDGED that the certified letter dated January 20, 2006, addressed to the Planning Board of the Town of Oxford (the “Notice of Intent”) was defective and was not valid notice of an offer to sell Locus to Plaintiff.

ORDERED and ADJUDGED that the defective Notice of Intent to sell Locus was not valid notice to convert Locus to a residential, industrial, or commercial use.

ORDERED and ADJUDGED that EAV’s Motion for Summary Judgment is ALLOWED and Plaintiff’s Cross-Motion for Summary Judgment is DENIED.

By the court. (Sands, J.)


[Note 1] This court also allowed Plaintiff’s Motion for Lis Pendens contingent upon Plaintiff’s filing of an Amended Verified Complaint. Because Plaintiff failed to amend their Complaint accordingly, their Lis Pendens was never effective.

[Note 2] A date for the summary judgment motion to be heard was extended three additional times.

[Note 3] At the hearing, the parties agreed that this would be a summary judgment hearing, and that this court could rely on all documents submitted into the record as a part of the summary judgment/judgment on the pleading briefs.