TOWN OF BRIMFIELD vs. BRIAN CARON, MICHAEL SOSIK, JR. and BATISTA & SONS, INC.

Introduction

At issue in this case is a 35.9-acre property in Brimfield that was classified and taxed as forest land under G.L. c. 61. While the property was so classified and without any notice to the town, its then-owner, defendant Batista & Sons, Inc., conveyed the property to defendant Brian Caron, [Note 1] who subsequently cleared trees and removed earth materials from the property. The town contends that the conveyance was therefore a “s[ale] for, or conver[sion] to, residential, industrial or commercial use” under G.L. c. 61, § 8 that would trigger its right of first refusal to purchase the property on the same terms and conditions as Mr. Caron. The defendants argue that even assuming the conveyance would have triggered the right of first refusal, the Town Meeting failed to approve the purchase of the property and therefore the town’s rights are no longer enforceable. In addition, Mr. Caron argues that he paid the roll-back taxes in order to withdraw the property from G.L. c. 61 and therefore the town no longer has an option.

The parties filed cross-motions for summary judgment. For the reasons set forth below, I ALLOW the plaintiff’s motion for summary judgment in part and DENY it in part. Also for the reasons set forth below, I DENY the defendant’s motion for summary judgment.

Facts

Summary judgment is appropriately entered when, as here, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following facts are undisputed for the purpose of the parties’ motions.

By deed dated March 2, 1992, William X. Pratt acquired a 35.9-acre property in Brimfield, which was later identified as Lot 7 on a 1993 survey. [Note 2] Deed from Edward J. McDonough to William X. Pratt (March 2, 1992), recorded at the Hampden County Registry of Deeds (hereinafter, the “Registry”) in Book 8021, Page 181; Plan of Land in Brimfield, MA, Surveyed for William X. Pratt (Owner) by Sherman and Woods, Land Surveying & Engineering, 118 Park St., Palmer, Mass. (June 29, 1993), recorded in the Registry in Plan Book 286, Page 11. Mr. Pratt subsequently filed an application for the 35.9-acre parcel to be classified as forest land pursuant to G.L. c. 61, §2. On November 7, 1995, the board of assessors approved his application, classifying the parcel as forest land “effective as of January 1, 1995 for the fiscal year beginning July 1, 1996.” Classified Forest – Agricultural or Horticultural – Recreational Land Tax Lien (Nov. 7, 1995), recorded in the Registry in Book 9656, Page 212 (Oct. 18, 1996). [Note 3] Hereinafter, the 35.9-acre parcel is identified as the “Forest Parcel.” The town then began taxing the Forest Parcel pursuant to such classification. [Note 4]

On May 30, 2000, defendant Batista & Sons, Inc. (“Batista”) purchased both the Forest Parcel and an adjacent parcel of land containing 1.667 acres (“Lot 1”). Deed from William F. Pratt, Marilyn G. Griffin and Kevin J. Pratt to Batista & Sons, Inc. (May 30, 2000), recorded at the Registry at Book 11224, Page 559. [Note 5] On December 8, 2000, Batista’s counsel, Robert E. George, sent a letter to the town’s assessor’s office, which stated that the Forest Parcel “was not ‘sold for or converted to residential, industrial, or commercial use.’ (Chapter 61, Section 7).” [Note 6] Verified Complaint at Ex. F (Letter from Robert E. George to Joan E. Navarro, Town of Brimfield (Dec. 8, 2000)). Lot 1 was never classified as forest land pursuant to G.L. c. 61, 2.

On January 21, 2005, Batista and Caron entered into a purchase and sale agreement for both the Forest Parcel and Lot 1. The purchase and sale agreement indicated that the total purchase price for the two parcels would be $275,000. It did not, however, indicate how the total purchase price was to be allocated between the two parcels and, instead, treated the two parcels as one for the purposes of the sale (identifying the two parcels as the “Property”). The two deeds conveying the Forest Parcel and Lot 1 to defendant Brian Caron, however, recite the consideration for each lot as $137,500. Quitclaim Deed from Christopher Batista, president and treasurer of Batista & Sons, Inc. to Brian R. Caron, individually (May 9, 2005), recorded at the Registry in Book 15026, Page 145 (conveying the Forest Parcel); Quitclaim Deed from Christopher Batista, president and treasurer of Batista & Sons, Inc. to Brian R. Caron, Trustee of C & F Realty Trust (May 9, 2005), recorded at the Registry in Book 15026, Page 143. Prior to the closing, [Note 7] neither Batista nor Mr. Caron provided the town with written notice regarding the conveyance of the Forest Parcel or its terms and conditions.

On May 17, 2005 – after the date of the deeds conveying the parcels [Note 8] – Mr. Caron (both individually and as trustee of the C&F Realty Trust) and Daniel Flynn entered into a loan agreement with Michael F. Sosik, Jr. for $250,000. [Note 9] Plaintiff’s Appendix of Exhibits at Ex. C, Loan Agreement (May 17, 2005) (hereinafter, “Plaintiff’s Appendix”). The Loan Agreement indicates that “[t]he Borrowers intend to construct a single-family home on Lot 1 with their own funding. . . . The Borrowers intend to excavate gravel from Lot 7 [the Forest Parcel] during the life of this loan.” [Note 10] Id. On May 17, 2005, Mr. Caron (individually and as trustee of C & F Realty Trust) also granted mortgages on the Forest Parcel and Lot 1 (respectively) to Mr. Sosik to secure the payment of the $250,000. Id. at Exs. E-F at ¶ 16 (both titled “Mortgage, Security Agreement, and Assignment of Leases and Rents”). Both mortgages indicate that “[t]he proceeds of loans or loans evidenced by the Note shall be used exclusively for business purposes and no part of the proceeds shall be used for personal, family, household or agricultural purposes.” Id. Likewise, the Commercial Fixed Rate Note (signed by Mr. Caron, individually and as trustee, and Mr. Flynn) indicates that “[t]he Borrower represents that the proceeds of this Note will be used for commercial and business purposes and not for personal, family, household or agricultural purposes and the Borrower acknowledges that this representation has been relied upon by the Lender.” Id. at Ex. D (Commercial Fixed Rate Note at 3).

On May 23, 2005, after the Forest Parcel was conveyed to Mr. Caron, Attorney Robert E. George (Batista’s counsel) sent a letter to the Board of Selectmen indicating the following:

Please be advised that his office represents Batista & Sons, Inc. relative to the sale of land located at Route 20, Brimfield, Massachusetts. The purpose of this letter is to request execution of the enclosed Release of Right of First Refusal under chapter 61.

The corporation intends to sell all of the property it owns at this location. The agreed purchase price is $275,000.00.

Kindly acknowledge the Board’s willingness to release their rights of first refusal to the property by executing the enclosed and returning the same to me at your earliest convenience.

Defendant Brian Caron’s Appendix of Exhibits at Ex. L (Letter from Robert E. George to Board of Selectmen (May 23, 2005), attached as an Exhibit to the Affidavit Pursuant to Chapter 61, § 14, notarized by Robert A. George) (hereinafter, “Defendant’s Appendix”). Attorney George did not attach the purchase and sale agreement to this letter and did not outline any of the terms and conditions of Mr. Caron’s offer other than the purchase price. Mr. Caron indicated that he was unaware Attorney George had sent this letter. Defendant Brian R. Caron’s Opposition to the Town of Brimfield’s Motion for Summary Judgment and Request for Summary Judgment in Favor of Defendant at 11, ¶ 65 (hereinafter, “Defendant’s Motion”).

Also on May 23, 2005, Attorney George, purporting to act on behalf of Mr. Caron, [Note 11] requested “to remove Lot 7 from the provisions of Chapter 61. When the roll back tax is computed please forward to me so that I can get it to Mr. Caron.” Plaintiff’s Appendix at Ex. I (Facsimile Cover Sheet from Robert E. George (May 23, 2005)). The Board of Assessors calculated these back taxes (total roll-back due of $12,921.42) on that same day and they were forwarded to Mr. Caron. Id. at Ex. J (Certificate of Penalty Tax for Classified Forest-Agricultural or Horticultural-Recreational Land). Mr. Caron likewise indicated that on or about May 23, 2005, he spoke with Ms. Navarro and Sue Hilka in the assessor’s office and confirmed that there were back taxes due. Defendant’s Appendix at Ex. P (Aff. of Brian Caron at ¶ 20).

On June 16, 2005, Mr. Caron applied for a special permit for “earth removal.” Plaintiff’s Appendix at Ex. K (Application for Zoning Permit). [Note 12] In his application Mr. Caron indicated that he was seeking to change the land use from “Agriculture Land to Earth Removal.” Id. At the hearing on the application, Mr. Caron indicated that he wanted to remove 10,000 yards of gravel for a barn and that he would eventually remove 50,000 yards of gravel from the property. Defendant’s Appendix at Ex. J (Zoning Board of Appeals’ Minutes (Sept. 13, 2005)). The minutes also indicate that Mr. MacFadden (a ZBA member) noted that “the ZBA had received a letter from the Board of Assessors and that it appears there are issues of site control and we may have to table further discussion until December. The parcel of land is in Chapter 61 . . . .” Id.

On July 27, 2005, town counsel responded to Attorney George’s May 23, 3005 letter seeking the release of the town’s right of first refusal. In that response, town counsel indicated the following: (1) public records indicated that the property had already been sold prior to notice being delivered to the town; (2) the deed stated that the purchase price for the Forest Parcel was $137,500; (3) Attorney George’s letter failed to include the purchase and sale agreement (indicating the terms and conditions of the sale); and (4) since the sale, earth materials had been removed from the property. [Note 13] Verified Complaint at Ex. M (Letter from Deborah A. Eliason to Robert E. George (July 27, 2005)). In addition, town counsel asserted that “[t]he actions of Batista & Sons, Inc. have clearly violated G.L. c. 61. The town is entitled to be made whole and to be given the opportunity to purchase the Property. The notification to the Town is not sufficient because it was given after the sale of the Property and the purchase price includes property that is not classified under G.L. c. 61.” Id. Finally, town counsel noted that the time for the town to exercise its option would only begin once the bona fide offer with all of its terms was provided. Id. It therefore requested that Attorney George forward a copy of the purchase and sale agreement. Id.

On June 28, 2005, Mr. Caron wrote a check to the town in the amount of $12,921.42. Id. at Ex. R (Treasurer’s Check). He also provided a check for $75.00 for the release fee. Id. The town subsequently cashed those checks. There is a notation on the certificate that the roll-back taxes were “paid in full.” [Note 14] Plaintiff’s Appendix at J.

On August 15, 2005, the town received a copy of the Purchase and Sale Agreement. In response, the Board of Assessors sent a letter to Mr. Caron indicating that the 120-day time period for exercising the town’s right of first refusal commenced on the date the agreement was received. Verified Complaint at Ex. O (Letter from Joan E. Navarro, Deputy Assessor to Brian R. Caron (Aug. 26, 2005)). The Board of Assessors also indicated that it would treat the purchase price for the Forest Parcel as $137,500, as was stated in the deed. Id.

On October 6, 2005, the Board of Selectmen “voted to exercise the option of the Town to purchase said Premises in accordance with G.L. c. 61, § 8, contingent upon a favorable vote appropriating the funds for the acquisition of the premises at the next duly called Special or Annual Town Meeting and provided that the amount appropriated shall be contingent upon the vote at a Town election to exempt from the provisions of Proposition 2½, so called, the amount required to satisfy the obligations, including principal and interest, under the bond.” Id. at Ex. P (Notice of Exercise of Chapter 61 Option to Purchase Land (Oct. 11, 2005), recorded at the Registry in book 15409, Page 104) (emphasis in original). The notice referred to both Batista and Mr. Caron and indicated that they were “notified that the Town shall purchase the Premises in accordance with the terms of the bona fide P&S, with a purchase price of $137,500.00 subject to and expressly reserving the Town’s right to reduce said purchase price by an amount which compensates the Town for the loss of fair market value due to Caron’s activities following the conveyance of the premise without proper notice to the Town under G.L. c. 61, § 8.” Id. The town served copies of the notice on both Batista and Mr. Caron. Verified Complaint at Ex. Q (Affidavit Under G.L. c. 183, § B).

On November 29, 2005, the town held a special town meeting to vote on whether to acquire the Forest Parcel. At that meeting, “Mr. Caron stated that he would not sell [the Forest Parcel] for $137,000.00 and he would defend himself with a court action.” Defendant’s Appendix at Ex. M (Special Town Meeting Actions November 29 2005). The Town Meeting then voted and the motion to purchase the Forest Parcel for $137,500 failed (seventy-three in favor and fifty-eight opposed). Id.

On April 26, 2006, the Zoning Board of Appeals informed Mr. Caron of the following:

The Brimfield Zoning Board Of Appeals voted unanimously on April 25th to grant your request for a Special Permit to remove sand and gravel with restrictions from property on US Route 20 known as Lot 7.

The special permit’s restrictions will reflect input from abutters, concerned citizens, and relevant town boards. In addition the decision must meet the approval of town counsel and the ZBA. These steps are expected to take between 30 and 60 days. Once the completed decision is filed and released a 20 day appeal period must pass in order for it to become final. Removal of material cannot commence until this process is completed, a permit fee paid, and a performance bond posted. [Note 15]

Defendant’s Appendix at Ex. I (Letter from Michael MacFadden, Chairman to Brian Caron (April 26, 2006)). Since 2006, Mr. Caron admits to removing 915 cubic yards of fill, gravel, and sand from the property. [Note 16] Plaintiff’s Appendix at Ex. L (Defendant Brian Caron’s Response to Plaintiffs’ Request for Interrogatories at Ex. A (Weekly Gravel Report)). The town moved to stop such removal and, on February 28, 2007, the court (Long, J.) issued a preliminary injunction, prohibiting these activities pending further court order.

Other pertinent facts are included in the Analysis section below.

G.L. c. 61 [Note 17]

G.L. c. 61 permits an owner of ten or more contiguous acres of forest land used for forest production to apply for and, if certified by the state forester, receive a classification of its property as forest land. [Note 18] G.L. c. 61, § 2. The classification limits the property’s taxes to: (1) a “products tax equal to eight per cent of the stumpage value of all forest products cut therefrom with authorization of the owner,” and (2) a “land tax based upon application of the local rate applicable to commercial property on five per cent of the fair cash valuation placed on said land under the provisions of chapter fifty-nine” (the Assessment of Local Taxes), “but in no event at a valuation of less than ten dollars per acre.” G.L. c. 61, § 3.

Most important to this case, G.L. c. 61, § 8 provides the following:

Land taxed under this chapter shall not be sold for, or converted to, residential, industrial or commercial use while so taxed unless the city or town in which such land is located has been notified of the intent to sell for, or so convert to, such other use; provided, however, that the discontinuance of forest certification shall not, in itself, be deemed a conversion. . . . [Note 19] For a period of one hundred and twenty days subsequent to such notification, said city or town shall have, in the case of intended sale, a first refusal option to meet a bona fide offer to purchase said land, or, in the case of an intended conversion not involving sale, an option to purchase said land at full and fair market value to be determined by impartial appraisal. . . . No sale or conversion of such land shall be consummated unless and until either said option period shall have expired or the landowner shall have been notified in writing by the mayor or board of selectmen of the city or town in question that said option will not be exercised. Said option may be exercised only by written notice signed by the mayor or board of selectmen, mailed to the landowner by certified mail at such address as may be specified in his notice of intention and recorded with the registry of deeds, within the option period.

Analysis

The Forest Parcel Was Classified and Taxed Pursuant to G.L. c. 61 at the Time of the Conveyance to Mr. Caron

At the time of the conveyance from Batista to Mr. Caron, the Forest Parcel was being taxed as forest land pursuant to G.L. c. 61. See, e.g., Aff. of Susan Hilker (Oct. 3, 2008) (attaching the Fiscal Year 2005 Real Estate Tax Bill (July 1, 2004 to June 30, 2005) that indicates that the property was classified as forest land (code 601 – “All land designated under Chapter 61”)); Plaintiff’s Appendix at Ex. G (Municipal Lien Certificate (May 17, 2005) indicating that the property was “subject to lien under MGL chapter 61”); Case Management Conference Joint Statement at 5 (filed Jan. 12, 2007) (outlining Batista’s position, stating “On May 9, 2005, Batista & Sons, Inc. conveyed 35.9 acre tract in Brimfield classified under G.L. c. 61 to Brian Caron.”); Aff. of Joan E. Navarro at 2, ¶ 9 (Aug. 5, 2008). As noted above, Mr. Pratt applied for classification pursuant to G.L. c. 61 and the town approved his application. In its approval, the town Board of Assessors noted that such classification was “effective as of January 1, 1995 for the fiscal year beginning July 1, 1996.” Classified Forest – Agricultural or Horticultural – Recreational Land Tax Lien (Nov. 7, 1995), recorded in the Registry in Book 9656, Page 212 (Oct. 18, 1996). The ten-year period for classification would therefore end on June 30, 2006, after the May 9, 2005 conveyance to Mr. Caron. It is also undisputed that Batista did not affirmatively withdraw the Forest Parcel from classification. Accordingly, the Forest Parcel was being taxed under G.L. c. 61 at the time of the conveyance.

The defendants’ arguments to the contrary and suggesting that the Forest Parcel was improperly being classified and taxed pursuant to G.L. c. 61 fail. Mr. Caron argues that Batista was responsible for reclassifying the Forest Parcel when it acquired the property and since it did not, the Chapter 61 classification lapsed. This argument finds no support in the statutory language or in any case law of which I am aware (Mr. Caron cites to none). Rather, G.L. c. 61, § 2 simply notes that “[l]and shall be removed from classification by the assessor unless, at least every ten years, the owner files with said assessor a new certification by the state forester.” [Note 20] It does not state that when a property is transferred, the new owner must reclassify the property. Indeed, the very fact that G.L. c. 61, § 8 addresses the sale of a classified property and does not include such a requirement is telling. The statute appears to require affirmative action from the owner of a classified property (during the ten-year classified period) only if he or she seeks to withdraw the property from classification or intends to sell or convert it to “residential, industrial or commercial use.” See G.L. c. 61, §§ 6-8.

Mr. Caron also argues that the Forest Parcel “was removed from the Chapter 61 provisions and not classified as forest land during the relevant time period.” Defendant’s Motion at 17. The only support for this statement is Mr. Caron’s reference to the Forest Parcel’s tax bill for fiscal year 2006. Id.; Defendant’s Appendix at Ex. U (Fiscal Year 2006 Real Estate Tax Bill (“for fiscal year commencing July 1, 2005 and ending June 30, 2006”)). The tax bill for the fiscal year commencing July 1, 2005 does not support the contention that the Forest Parcel was removed from Chapter 61 at the relevant time period – the date of the purported conveyance to Mr. Caron, which occurred on May 9, 2005. It is undisputed that after Mr. Caron purportedly acquired the Forest Parcel, he paid the roll-back taxes. By doing so, were it not for this action, Mr. Caron would have effectively removed the Forest Parcel from the G.L. c. 61 provisions as was indicated on his tax bill for fiscal year 2006. His actions, however, did not effectively remove the Forest Parcel from G.L. c. 61 prior to Batista transferring the property to him and, as discussed below, have no impact on the town’s right of first refusal. [Note 21]

Finally, Mr. Caron’s argument that since the application form identified as “Forest Management Plan” submitted to the Commonwealth states that “[i]n the event of a change of ownership of all or part of the property, the new owner must file an amended Ch. 61/61A plan within 90 days from the transfer of title to insure continuation of Ch. 61/61A classification,” Defendant’s Appendix at Ex. B, Batista was required to recertify the property, also fails. First, the Forest Management Plan application attached as Exhibit B to Mr. Caron’s motion was an application submitted by Batista in 2001. It is unclear whether such “requirement” was in effect at the time Mr. Pratt conveyed the property to Batista. Second, and more importantly, this “requirement” is simply noted on an application. It is nowhere to be found in the statute and the parties have not indicated that it is part of an agency regulation. [Note 22] I simply do not find any support to the argument that a new owner is required to take affirmative actions to maintain the G.L. c. 61 certification and classification. See, e.g., South Street Nominee Trust v. Bd. of Assessors of Carlisle, 70 Mass. App. Ct. 853 , 859 (2007) (“property already classified as forest land remains so classified unless the property owner fails to file a new certification,” e.g., after the expiration of the ten-year certification period); Ward v. Costello, 2000 WL 1473459, at *5 (Mass. Super. Aug. 16, 2000) (“If, at the end of ten years, the owner wishes to continue the classification as forest land, he must obtain a new certification from the state forester.” (emphasis added)).

Based on the foregoing, it is undisputed that at the time Batista attempted to convey the Forest Parcel to Mr. Caron, it was classified by the town as forest land pursuant to G.L. c. 61.

The Conveyance of the Forest Parcel Constituted a Conversion under G.L. c. 61, § 8

At the time of the conveyance, Mr. Caron intended to use the Forest Parcel for “residential, industrial or commercial use” and therefore the conveyance constituted a conversion under G.L. c. 61, § 8, triggering the notice requirements of that section. “The critical date is the date of the sale, and the critical intent is the [buyer’s] intent to discontinue the [forest] use of the land on acquiring title.” Sudbury v. Scott, 439 Mass. 288 , 299 (2003) (interpreting G.L. c. 61A, which contains nearly identical provisions as G.L. c. 61) (emphasis added). Although issues of intent are not always appropriately decided in a motion for summary judgment, this issue can be decided in this Memorandum since Mr. Caron’s intended use of the property is not a disputed fact in this case. See, e.g., Brunner v. Stone & Webster Engineering Corp., 413 Mass. 698 , 705 (1992) (“In coming to that conclusion, we recognize that ‘where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate.’ Flesner v. Technical Communication Corp., 410 Mass. 805 , 809 (1991). That is not to say, however, that, in such cases, summary judgment is always inappropriate.”); Dolan v. Airpark, Inc., 24 Mass. App. Ct. 714 , 717 (1987) (“It is true that ‘[t]he granting of summary judgment in a case where a party's state of mind or motive constitutes an essential element of the cause of action is disfavored. . . . The issue of a party's intention or knowledge, raised by the pleadings, often cannot be resolved adequately from a consideration of the limited materials which accompany a summary judgment motion.’ However, this is not an absolute rule.” (internal citations omitted)).

Here, Mr. Caron does not dispute that he intended to use the property for something other than forest land. For example, as noted above, the following facts are undisputed. The Loan Agreement Mr. Caron entered into to obtain funds to purchase the property indicated that “[t]he borrowers intend to excavate gravel from Lot 7 [the Forest Parcel] during the life of this loan.” [Note 23] Plaintiff’s Appendix at Ex. C; Defendant’s Appendix at Ex. Q. The mortgage also indicated that “[t]he proceeds of loan or loans evidenced by the Note shall be used exclusively for business purposes and no part of the proceeds shall be used for personal, family, household or agricultural purposes.” Plaintiff’s Appendix at Ex. E (emphasis added). The note likewise stated that “[t]he Borrower represents that the proceeds of this Note will be used solely for commercial and business purposes and not for personal, family, household or agricultural purposes and the Borrower acknowledges that this representation has been relied upon by the Lender.” Id. at Ex. D (emphasis added). In addition, Mr. Caron admitted that “I intended to run a business, Caron Farm Lands and Nursery, out of the property. I received a d/b/a certificate for that purpose – to sell nursery products out of the property.” Defendant’s Appendix at Ex. P (Aff. of Brian Caron at ¶ 17) (emphasis added). He also previously stated that “[p]rior to purchasing the property I intended to operate some sort of farm and farm stand from Lot 7” and that he would sell “harvested timber and gravel excavated during the reclamation of the forest land to agricultural land . . . .” Plaintiff’s Appendix at Ex. L (answers to interrogatories).

Mr. Caron also noted that he is the President of a company called Caron Construction and Environmental, Inc., which uses trucks printed with “Caron Construction & Environmental Sand & Gravel” on their side, and further admits to “excavation and removal of earth materials from the property.” Id. at Ex. H (requests for admissions at 8-9). He further admitted that, “[a]fter the closing, I hired a forest management company, Tetreault Forest Management, to harvest firewood and to clear approximately three acres on the property.” Defendant’s Appendix at Ex. P (¶ 18). Consistent with these statements regarding his intended uses of the Forest Parcel, on June 16, 2005, Mr. Caron applied for a zoning permit and indicated that he planned on changing the use of the Forest Parcel from “agricultural land to earth removal.” Id. at Ex. H (emphasis added). At a September 2005 Zoning Board of Appeals meeting on that application, the minutes indicate that the board noted that the Forest Parcel was “in Chapter 61,” Mr. Caron “said he wanted to remove 10,000 yards of gravel to be able to put in the barn,” and “Mr. Caron said he would eventually go for the full 50,000 yards.” Id. at Ex. J. All of these facts clearly show that Mr. Caron intended to use the Forest Parcel for commercial activities, not as forest land.

Nor does Mr. Caron truly dispute that he intended to use the Forest Parcel in a manner inconsistent with Chapter 61 requirements. Rather, Mr. Caron notes that when he purchased the Forest Parcel, he was unaware that it was classified as forest land [Note 24] and believed that the town no longer had a right of first refusal because it accepted his payment of the roll-back taxes. Specifically, Mr. Caron states that a “Certificate of Title” was prepared, which did not mention the Chapter 61 classification and the first time that he became aware of any issues was when Tetreault Forest Management informed him that there were back taxes due on the property. Defendant’s Motion at 10-11. However, it is undisputed that the Chapter 61 lien was recorded at the Hampden County Registry of Deeds. Verified Complaint at Ex. C; Defendant’s Motion at 2, Ex. A. Although the “Certificate of Title” that Mr. Caron refers to does not list that lien, it is not actually a certificate of title issued by the land court and, in fact, does not even cover the Forest Parcel. Instead, it is simply a certification made by Attorney Donald C. Cournoyer, Jr., indicating that he examined the records in the registry for the “property described in a Quitclaim Deed from Christopher Batista . . . to Brian R. Caron, Trustee of C & F Realty Trust, dated May 9, 2005 and recorded at the Hampden County Registry of Deeds on May 18, 2005 and recorded at the Hampden County Registry of Deeds on May 18, 2005 at 2:01 P.M. at Book 15026, Page 143.” Supplemental Affidavit of Brian R. Caron at Ex. C (Certificate of Title (May 18, 2005)). This deed corresponds to Lot 1, not the Forest Parcel. [Note 25] In any event, even if Mr. Caron did not have actual knowledge that the Forest Parcel was classified under Chapter 61, he is charged with constructive knowledge since it is undisputed that the lien was recorded at the registry. [Note 26] Since Mr. Caron had knowledge of the Chapter 61 lien, the sale of the property to him did “not extinguish the right [of first refusal]. The holder is entitled to specific performance of the option as to a subsequent owner who purchased with notice of the holder’s right of first refusal.” Sudbury, 439 at 297.

Furthermore, the fact that Mr. Caron paid the roll-back taxes after he purchased the Forest Parcel does not change the fact that the Forest Parcel was being taxed under Chapter 61 at the time of the conveyance. As noted above, “the critical date is the date of sale . . . .” Id. at 299. As discussed below, Mr. Caron’s payment of the roll-back taxes does not constitute a waiver of the town’s right of first refusal.

Based upon the foregoing undisputed facts, I find and rule that Mr. Caron intended to use the property “for residential, industrial or commercial use” and the conveyance of the Forest Parcel to Mr. Caron was thus a sale or conversion triggering the town’s right of first refusal pursuant to G.L. c. 61, § 8.

Notice and Right of First Refusal

It is undisputed that Batista and Mr. Caron failed to provide the town with written notice prior to the conveyance of the Forest Parcel. As noted above, it was not until May 23, 2005 that Batista’s counsel sent a letter to the Board of Selectmen, stating that “[t]he purpose of this letter is to request execution of the enclosed Release of Right of First Refusal under Chapter 61. The corporation intends to sell all of the property it owns at this location. The agreed purchase price is $275,000.” Verified Complaint at Ex. L; Defendant’s Appendix at Ex. L. This letter failed to comply with the requirements of G.L. c. 61, § 8 since it was not sent until after the sale occurred, it failed to include the purchase and sale agreement, and an affidavit regarding notice was not recorded. G.L. c. 61, § 8; Smyly v. Royalston, 15 LCR 502 , 504-05 (2007); Meachen v. Bd. of Assessors of Sudbury, 6 LCR 235 , 237 (1998) (regarding substantially similar provisions of G.L. c. 61A). Accordingly, “the 120 day option period [did] not begin to run . . . .” Smyly, 15 LCR at 505.

Although the May 23rd letter failed to comply with the notice requirements of G.L. c. 61, it did place the town on constructive notice that the Forest Parcel was being “sold for, or converted to, residential, industrial or commercial use while so taxed . . . .” G.L. c. 61, § 6. Arguably, therefore, the town was required to “investigate and exercise [its] option within a reasonable period of time.” Sudbury, 439 Mass. at 297-98. Here, the town fulfilled its requirement to investigate by mailing a letter to Batista’s counsel, notifying him that the May 23rd letter was defective and requesting a copy of the purchase and sale agreement. Verified Complaint at Ex. M.

A copy of the purchase and sale agreement was forwarded to the town, which was received on August 15, 2005. However, it is undisputed that the purchase and sale agreement covered both Lot 1 and the Forest Parcel and did not contain a purchase price for the Forest Parcel alone. It goes without saying that the purchase price for the Forest Parcel is a material term of an offer for the Forest Parcel. Since the town lacked a material term of the offer, there was no bona fide offer for the Forest Parcel and the town’s right of first refusal therefore never ripened. As this court has previously noted,

[b]ecause the Section 8 option allows the municipality to “meet a bona fide offer to purchase,” it is implied by this language that the municipality has been made aware of all the terms of the offer in order to “meet” such an offer. To find otherwise would be to discourage full disclosure in transactions of this nature and frustrate a municipality’s attempt to “meet a bona fide offer.” Certainly this is not what the legislature intended and it is not what this court wishes to promote.

Smyly, 15 LCR at 504-05.

Indeed, such frustrations were borne out in this case due to the defendants’ failure to provide the town with proper notice and a bona fide offer for the Forest Parcel. The town, in an effort to ensure that its rights were preserved, attempted to exercise the right of first refusal based upon the purchase price listed in the deed to Mr. Caron for the Forest Parcel ($137,500). On October 6, 2005 (well within the 120-day option period beginning with the mailing of the purchase and sale agreement), the Board of Selectmen voted to exercise its option, contingent on the Town Meeting voting to appropriate funds and contingent on those funds being exempt from the provisions of Proposition 2½. Verified Complaint at Ex. P. Notice of the board’s exercise of its option was recorded as is required by G.L. c. 61, § 8. Id. Such actions were all that was necessary for the town to exercise its option according to the requirements of Section 8. Meachen, 6 LCR at 238 (town properly exercised its option even with the Town Meeting contingencies). However, Mr. Caron attended the Town Meeting and announced that he refused to sell the Forest Parcel for $137,500. Perhaps (although I do not decide for the purposes of this Memorandum), that announcement played a roll in the Town Meeting voting to not appropriate town funds to purchase the Forest Parcel. In any event, the town’s efforts to exercise its option certainly were frustrated by the defendants’ failure to provide a purchase price for the Forest Parcel.

Because there was no bona fide offer for the Forest Parcel presented to the town (or a purchase and sale agreement that allocated the total purchase price between the two parcels), I find and rule that the town’s right of first refusal has not yet ripened and the 120-day option period has not begun to run. Accordingly, the subsequent actions of both the town and Mr. Caron were a nullity, including the town’s purported exercise of its right and the Town Meeting vote.

Although the town argues that the purchase price in the deed for the Forest Parcel is definitive and constitutes the offer the town must meet, Mr. Caron has presented enough to place this fact in dispute. Since the town is seeking summary judgment declaring the purchase price to be $137,500, I must view the evidence on that issue in the light most favorable to Mr. Caron. That evidence includes the following: (1) the purchase and sale agreement only contained a single purchase price for the “Property” (both Lot 1 and the Forest Parcel); (2) the Loan Agreement for the purchase indicated that “[t]he lot release consideration [for Lot 1] must be at least $60,000”; (3) Mr. Caron stated that he was unaware that the purchase price was being split equally between the two parcels and that the HUD Settlement Statement did not indicate such division; [Note 27] (4) Mr. Caron “considered the purchase price for Lot 7 (36) acres to be $225,000.00 and $50,000 for Lot 1 (2 acres)”; (5) Batista indicated that “[t]he consideration for both parcels was divided equally between two deeds as a matter of convenience and does not reflect the true comparative value of each parcel;” (6) Batista also indicated that “the purchase price of $275,000.00 was intended primarily as consideration for the 35.9 acre parcel. . . . The 35.9 acre parcel was worth far more than the smaller parcel and the total consideration was primarily for the larger parcel.” Plaintiff’s Appendix at Exs. B, C, & L; Defendant’s Appendix at Exs. D & P; Aff. of Christopher Batista, President of Batista & Sons, Inc. (Oct. 9, 2008); Supp. Aff. of Brian R. Caron (Oct. 9, 2008). [Note 28] In addition, the very characteristic of the two parcels itself supports Mr. Caron’s assertion – the Forest Parcel contains 35.915 acres, while Lot 1 contains a mere 1.667 acres. Defendant’s Appendix at Exs. N-O.

The evidence submitted thus places the purchase price in dispute and summary judgment on this issue is therefore inappropriate. Because the purchase and sale agreement contained all other material terms of the offer and the only term needed for the town’s right of first refusal to ripen is the purchase price for the Forest Parcel alone, a trial is now necessary on that issue. In addition, as noted above, it is undisputed that Mr. Caron has altered the landscape of the Forest Parcel. Such actions may have diminished the value of the Forest Parcel to the town since it expected to have an option to purchase forest land that had been protected pursuant to the provisions of G.L. c. 61. The plaintiff acknowledged at the hearing on the motions for summary judgment that whether an adjustment to the purchase price is necessary is an issue that is not appropriate for summary judgment. Accordingly, this issue shall also be addressed at trial. Once final judgment enters that sets the purchase price (subject to adjustments, if any), the town shall thereafter have 120 days to exercise its rights in accordance with G.L. c. 61.

Mr. Caron’s Payment of Roll-Back Taxes did not Waive the Town’s Right of First Refusal

Contrary to Mr. Caron’s arguments, Mr. Caron’s payment of the roll-back taxes did not waive the town’s rights under G.L. c. 61, § 8 for two key reasons. First and most importantly, as noted above,

a town’s right of first refusal ripens into an option to purchase when the town receives notice of an intended sale under c. 61[] for a non[forest land] use. The statute contemplates that buyers and sellers will act in good faith and will notify the town if a sale for such use is intended. If a sale for non[forest land] use is consummated without such notice to the town, then the town’s right of first refusal endures. A town’s option to purchase may be specifically enforced against one who acquired title to land under c. 61[] for non[forest land] use, and without notice to the town of the intended sale.

Sudbury, 439 Mass. at 297-98 (regarding essentially identical provisions of G.L. c. 61A) (emphasis added).

Here, as noted above, notice was not provided to the town prior to the consummation of the sale as is required by G.L. c. 61, § 8. The statute specifically states that “[n]o sale or conversation of such land shall be consummated unless and until either said option period shall have expired or the landowner shall have been notified in writing by the mayor or board of selectmen of the city or town in question that said option will not be exercised.” G.L. c. 61, § 8 (emphasis added). Had Batista and Mr. Caron complied with the statutory requirements and their requirement to “act in good faith,” the option to purchase the Forest Parcel would have irrevocably vested in the town. Billerica v. Card, 66 Mass. App. Ct. 664 , 669 (2006) (regarding G.L. c. 61A). Mr. Caron’s attempt to pay roll-back taxes thus would not have had any impact on that vested right. Id. Accordingly, Mr. Caron cannot now benefit from his and Batista’s failure to comply with the statutory requirements of G.L. c. 61 and avoid the consequences of Section 8 simply by having paid the roll-back taxes after the sale had already consummated. [Note 29]

Second, the acceptance of Mr. Caron’s payment of the roll-back taxes does not constitute a waiver of the town’s right of first refusal. “Waiver may occur by an express and affirmative act, or may be inferred by a party’s conduct, where the conduct is consistent with and indicative of an intent to relinquish voluntarily a particular right [such] that no other reasonable explanation of [the] conduct is possible. Here, where waiver is not explicit, it must be premised on clear, decisive and unequivocal conduct . . . .” Kact, Inc. v. Rubin, 62 Mass. App. Ct. 689 , 695 (2004) (internal citations and quotations omitted). In this case, any action by the assessors cannot possibly constitute a waiver of the town’s right of first refusal. G.L. c. 61, § 8 clearly states that a sale cannot occur unless the “option period shall have expired or the landowner shall have been notified in writing by the mayor or board of selectmen of the city or town in question that said option will not be exercised. Such option may be exercised only by written notice signed by the mayor or board of selectmen . . . .” Accordingly, the right of first refusal and any waiver of that right can only be exercised by the mayor or board of selectmen. Even if the assessors’ action of accepting the roll-back tax could be considered an implicit waiver of the right of first refusal (a matter I do not decide), since the mayor or board of selectmen control whether the right is exercised, the acceptance of the roll-back tax cannot bind the town or result in a waiver of its rights. See Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977) (“a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance”); Sancta Maria Hospital v. Cambridge, 369 Mass. 586 , 595 (1976) (“one dealing with the officers or agents of a municipal corporation must, at his peril, see to it that those officers or agents are acting within the scope of their authority”). Accordingly, the assessor’s acceptance of the roll-back taxes did not constitute a waiver of the town’s right of first refusal.

Mr. Caron did however pay the roll-back taxes. Accordingly, should the town exercise its right of first refusal and purchase the Forest Parcel, it must reimburse Mr. Caron for the amount he paid, plus interest.

Conclusion

For the foregoing reasons, the plaintiff’s motion for summary judgment is ALLOWED, in part and DENIED, in part. Also for the foregoing reasons, Mr. Caron’s motion for summary judgment is DENIED. The conveyance of the Forest Parcel to Mr. Caron constituted a “s[ale] for, or conver[sion] to, residential, industrial or commercial use while so taxed” under G.L. c. 61, § 8. Accordingly, Batista and Mr. Caron failed to comply with the notice provisions of that section and the town’s right of first refusal endures. Although the purchase and sale agreement outlines substantially all of the material terms of Mr. Caron’s offer that the town would have to meet to exercise its option, the exact purchase price of the Forest Parcel is a disputed material fact. Accordingly, the parties shall contact the court to schedule a pre-trial conference and trial on that issue and whether the purchase price is subject to any adjustments due to Mr. Caron’s actions after acquiring the Forest Parcel. Until that trial has concluded and final judgment has entered, this court’s preliminary injunction (Feb. 28, 2007) shall continue. As noted in that order, “the defendants are hereby prohibited and enjoined from conducting any activities that alter the 35.59 acre parcel at issue in this case (Lot 7 on the plan recorded in Book of Plans 286, Page 11 in the Hampden County Registry of Deeds; known to the town assessors as Map 11, Block A, Lot 9) until further order of the court. This includes, but is not limited to, a prohibition on any further land clearing, any further excavation of any kind, any further removal of soil or gravel, and any further construction.” Preliminary Injunction (Feb. 28, 2007). [Note 30]

SO ORDERED.

By the court (Long, J.)