TOWN OF WAYLAND v. DEAN CRESCITELLI and ELEANOR A. BLAQUERE

The Town of Wayland (“Town”) filed a complaint with this court on May 12, 2008 seeking a determination of its rights pursuant to G. L. c. 61B. In its complaint, the Town seeks a declaratory judgment, pursuant to G. L. c. 231A, that it has a right under the provisions of G. L. c. 61B to purchase approximately twelve acres of land in Wayland, Massachusetts sold in October 2007 from defendant Eleanor Blaquere (“Blaquere”) to defendant Dean Crescitelli (“Crescitelli”). Answers to the complaint were filed by both Defendants, on June 19, 2008 and August 4, 2008, respectively.

On January 6, 2011, Crescitelli filed a motion for summary judgment. After receiving a time extension from this court, the Town filed its opposition and a cross-motion for summary judgment on February 18, 2011. In response, Crescitelli filed an opposition to the Town’s cross-motion for summary judgment on March 3, 2011. A hearing on the summary judgment motions was held on March 18, 2011. Although properly noticed in Crescitelli’s initial summary judgment motion, the Town’s opposition and cross-motion, and in Crescitelli’s opposition to the Town’s cross-motion, Blaquere has not filed any briefs, motions or oppositions pertaining to this summary judgment motion. Her counsel was present at the hearing, however.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Blaquere’s late husband, Robert Blaquere, acquired the thirteen (13) acre property at issue, 41 River Road, Wayland, Massachusetts (“locus”), on June 25, 1953. See Crescitelli Statement of Facts Pursuant to Rule 4 of the Rules of the Land Court (2005) ¶ 2 (hereinafter “Statement of Facts”). Robert Blaquere subsequently conveyed the locus to himself and his wife, as tenants by the entirety, on September 1, 2004. Id.

2. Robert Blaquere died on November 3, 2005, and Blaquere received an undivided interest in the locus by operation of law. See Crescitelli Statement of Facts ¶ 5.

3. On May 19, 1986, the Town Board of Assessors accepted and approved Robert Blaquere’s application to value, assess and tax a twelve (12) acre portion of the locus as recreational land for the fiscal year ending June 30, 1985, under the provisions of G. L. c. 61B. See Crescitelli Statement of Facts ¶ 3. On July 16, 1986, a recreational land tax lien under G. L. c. 61B on the twelve acre portion of the locus was recorded with the Middlesex South Registry of Deeds. Id. Neither the application, nor the lien, contained a description of the twelve acre portion of the locus. Id.

4. On January 31, 2005, the Town Board of Assessors accepted and approved Robert Blaquere’s application to value, assess and tax thirteen acre locus as recreational land for the fiscal year beginning July 1, 2006 and ending June 30, 2007, under the provisions of G. L. c. 61B. See Crescitelli Statement of Facts ¶ 4. Classification and taxation of the locus under G. L. c. 61B ended on June 30, 2007. Id.

5. Blaquere and Crescitelli entered into a purchase and sale agreement (“PSA”) for the locus for $375,000 on July 8, 2007. See Crescitelli Statement of Facts ¶ 6.

6. A certificate of rollback tax pursuant to G. L. c. 61B, § 8 was requested by Blaquere’s selling attorney on September 20, 2007, and paid on October 25, 2007. [Note 1] See Town Statement of Facts Exhibit C. The rollback taxes were paid by Blaquere, not Crescitelli. See Crescitelli Opposition Statement of Facts ¶ 19.

7. Blaquere’s attorney hand-delivered a notice of intent to sell the locus, with a copy of the executed PSA between the parties, to the Town’s Board of Selectmen, Board of Assessors, Planning Board, and Conservation Commission, on October 17, 2007. See Crescitelli Statement of Facts ¶ 7. The notice stated that Crescitelli proposed no changes in the portion of the locus classified as recreational land under G. L. c. 61B, and that he would continue to use the remaining one acre for a single-family home. Id.

8. In addition, Blaquere’s attorney submitted a letter to the Town’s Board of Selectmen on October 17, 2007 in which he stated that the locus was not being sold for, or converted to, residential use, and that he therefore believed that the Town’s right of first refusal was not triggered under G. L. c. 61B. See Crescitelli Statement of Facts ¶ 8. This letter was not accompanied by a certified copy of an executed PSA specifying the purchase price and all terms and conditions of the proposed sale of the locus limited only to the portion of the locus classified under G. L. c. 61B. See Town Statement of Facts ¶ 14. The purpose of the letter was to notify the Town of Blaquere’s intent to sell, should it later be determined that the Town did in fact have a right of first refusal. See Crescitelli Statement of Facts Exhibit 7.

9. The locus was conveyed one week later, on October 24, 2007, by Blaquere to Crescitelli. Crescitelli Statement of Facts ¶ 9. That same day, Crescitelli executed a declaration of homestead, covering the entire locus. Id.

10. Pursuant to the conveyance on October 24, 2007, Blaquere and Crescitelli entered into a written escrow agreement in which they: (1) acknowledged that the locus is subject to a right of first refusal under G. L. c. 61B; and (2) agreed to co-operate and comply with the requirements of G. L. c. 61B with regard to notice, obtaining releases and transferring the locus to the Town in accordance with G. L. c. 61B. See Town Statement of Facts ¶ 15. This agreement provided for the placement of $15,000 in escrow, payable to Crescitelli, in the event the Town exercised its right of first refusal pursuant to G. L. c. 61B. Id.

11. Under the belief that the Town had a right of first refusal, the Board of Selectmen approved the purchase of an 11.65 acre parcel of the locus for one dollar. See Crescitelli Statement of Facts ¶ 10. Notice was sent to Blaquere and Crescitelli. Id.

12. Prior to the Town’s exercise of the right of first refusal, the Board of Selectmen held a duly noticed public hearing on the exercise of this right. See Town Statement of Facts, ¶ 17.

13. The twelve acre parcel of the locus that the Town wishes to purchase under a right of first refusal remains in the same substantially natural, wild, or open condition it was in when Crescitelli purchased the locus from Blaquere on October 24, 2007. See Crescitelli’s Motion for Summary Judgment Exhibit 12; Exhibit 13 ¶ 4.

14. Crescitelli continues to use the locus as his primary residence, as he had intended to do since his purchase of the locus. See Crescitelli Opposition to Plaintiff’s Cross-Motion Exhibit 16.

Summary Judgment

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and, therefore, its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party . . . .” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

The court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings [and discovery documents], together with . . . affidavits, if any . . . .” Mass. R. Civ. P. 56(c). Further, the court can look to the Statements of Facts presented by the parties in conjunction with their summary judgment motions pursuant to Rule 4 of the Rules of the Land Court. The Court finds this case to be ripe for summary judgment under Mass. R. Civ. P. 56.

Discussion

Under G. L. c. 61B, a landowner may apply for a reduced tax assessment for all, or a portion, of his land if that property is used solely as recreational land or for recreational purposes. G. L. c. 61B, § 2; G. L. c. 61B, § 3. Recreational land is “[l]and not less than five acres . . . retained in substantially a natural, wild, or open condition or in a landscaped or pasture condition . . . .” G. L. c. 61B, § 1. Recreational uses are limited to those uses enumerated in G. L. c. 61B, § 1, including activities such as hiking, camping, nature study and observation, and boating. Id. If the landowner intends to convert the land to residential, commercial or industrial use while the land is assessed as recreational land under G. L. c. 61B, or within one year from the time the land was so characterized, the landowner must notify the town of that intention. G. L. c. 61B, § 9. The conversion can be done either by the landowner, or through a sale for such conversion. Id. After notice from the landowner, the town has a right of first refusal to match a bona fide offer, or an option to purchase the land if the landowner is converting the land. Id. In either situation, the prerequisite to trigger the town’s right of first refusal is converting the land from recreational use to non-recreational use. Id.

The pertinent inquiry in this case, therefore, is whether Crescitelli had an intent to convert the recreationally assessed portion of his property to a residential, commercial or industrial use. “‘The intent with which a person acts is usually a question of fact . . . to be determined from his declarations, conduct and motive, and all the attending circumstances’ but there must be evidence from which that intent may be found.” Galotti v. United States Trust Co., 335 Mass. 496 , 501 (1957), quoting Casey v. Gallagher, 326 Mass. 746 , 749 (1951). If the buyer’s intent is not disclosed before the sale of subject land, the buyer’s “intent will become evident soon after the sale when the [buyer] begins a process of conversion.” Sudbury v. Scott, 439 Mass. 288 , 299 (2003) (interpreting an analogous statute G. L. c. 61A, § 14). “The discontinuance of forest certification shall not, in itself, for the purposes of [G. L. c. 61A, § 9], be considered a conversion.” [Note 2] G. L. c. 61A, § 9. Likewise, “[s]pecific use of land for a residence for the owner . . . shall not be a conversion for the purposes of this section . . . .” (emphasis added). Id.

Crescitelli did not have any intent to convert the use of the residentially assessed portion of his locus to a residential, commercial or industrial use. Blaquere and Crescitelli executed the PSA on July 8, 2007, and Blaquere’s attorney submitted a notice of intent to sell the locus, on October 17, 2007, along with a certified copy of the PSA. See Findings of Fact ¶¶ 5, 7. The notice stated that Crescitelli proposed no changes to the portion of the locus which had been classified as recreation under G. L. c. 61B, and would continue to use the remaining acre, containing a single family home, as his residence. See Findings of Fact ¶ 7. Additionally, Blaquere’s attorney submitted a letter to the Town’s Board of Selectmen that same day, which stated that the locus was not being sold for, or converted to, residential, commercial or industrial use, and that Blaquere’s attorney did not believe that the Town’s right of first refusal was triggered under G. L. c. 61, § 9. In the more than three years since Crescitelli has purchased the locus, he has not changed its use. See Findings of Fact ¶ 14. Crescitelli’s declarations, conduct and motive, and all the attending circumstances, are evidence of his intent to use the locus in the exact same manner as Blaquere had before the sale, when the land was classified as recreation under G. L. c. 61B. Crescitelli’s intentions for use of the locus are further demonstrated by his use after the sale, which, again, was consistent with Blaquere’s previous use. Finally, Crescitelli’s use of the home on the locus as his residence does not constitute a conversion under the explicit terms of G. L. c. 61B, §9. The sale of the property, and its subsequent occupation by Crescitelli, do not constitute a conversion under G. L. c. 61B; therefore, the sale and occupation did not trigger the Town’s right of first refusal.

The Town also argues that Crescitelli’s declaration of homestead, coinciding with the conveyance of the locus, constituted a conversion under G. L. c. 61A, § 9, and triggered the Town’s right of first refusal. Declarations of homestead pursuant to G. L. c. 188, § 1, are designed to protect the declarant’s residence from the claims of creditors or improvidence. Dwyer v. Cempellin, 424 Mass. 26 , 29-30 (1996). Homestead laws are based on a public policy that favors the preservation of the family home regardless of the homeowner’s financial situation. Shamban v. Masidlover, 429 Mass. 50 , 53 (1999). The fact that a portion of the homeowner’s property is taxed under G. L. c. 61B should not overrule the homeowner’s interest in protecting the entirety of his property, especially since the homestead laws are interpreted liberally for the purpose of protecting the home owner. See Id. See also Pratt v. Pratt, 161 Mass. 276 (homestead may exist over entire house even though part is occupied by another family).

Crecsitelli’s declaration of homestead does not constitute a conversion for G. L. c. 61B purposes because to construe it as such would go against the statute’s policy, which is to protect the homeowner’s property. Crescitelli recorded a declaration of homestead on October 24, 2007, the same day Blaquere conveyed the locus. See Findings of Fact ¶ 10. That declaration of homestead incorporated the entire thirteen acres of the locus, not just the one acre portion used as Crescitelli’s residence. Id. The intent behind Crescitelli’s declaration was to protect the entire parcel of land he had purchased from Blaquere from any prospective creditors, not just the residential portion. If Crescitelli had only made a declaration for the residential portion of the land, as the Town contends he should have done to prevent the declaration from being considered a conversion under G. L. c. 61B, he would have left the recreation portion exposed to creditors. To interpret a declaration of homestead as a conversion of recreational land under G. L. c. 61B would render the statute inapplicable to any land owner who seeks creditor protection of any land assessed as recreational. This result is clearly not the intended result, leading to the conclusion that Crescitelli’s declaration of homestead is not a conversion under G. L. c. 61B, § 9. Since the declaration of a homestead was not a conversion, it did not trigger the Town’s right of first refusal.

Blaquere’s request, and payment, of rollback taxes under G. L. c. 61B, § 8 is another action by which the town argues that Crescitelli converted the use of the recreational part of his property to either residential, commercial or industrial use. “Whenever land which is valued, assessed, and taxed under [G. L. c. 61B] no longer meets the definition of recreational use, it shall be subject to additional taxes, in this section called rollback taxes . . . .” G. L. c. 61B, § 8. In the present circumstances, there was no change in use of the locus from the time a portion of the locus ceased to be assessed as recreational land on June 30, 2007, through the purchase of the locus by Crescitelli on October 27, 2007, until the date this summary judgment motion was filed. See Findings of Fact ¶¶ 7, 8, and 14. See also G. L. c. 61B, § 9 (“[t]he discontinuance of [recreational] certification shall not, in itself, for the purposes of this section, be considered a conversion”). Although a request for a calculation, and payment, of a rollback tax may be evidence of a change in use of previously recreational land, neither are always definitive as to that point. This is especially so in this case, where there has been no change in the use of the land since it was last assessed as recreational, and where the buyer, Crescitelli, neither requested nor paid the rollback taxes. The Town’s argument that payment of the rollback taxes proves a change in the use of the locus, triggering its right of first refusal under G. L. c. 61B, § 9, is therefore incorrect. The payment of the rollback taxes in this case served no purpose other than to protect Blaquere, or Crescitelli, from payment in the event that they became due. Rollback taxes would only have been due if, at some point, Blaquere had stopped using portion of the locus assessed under G. L. c. 61B for recreational purposes. There are no allegations here that such was the case, and the rollback taxes were possibly paid in error. [Note 3] An erroneous payment of rollback taxes, even if this were the case, cannot be the impetus for conversion of the use of a portion of the locus from recreational to non-recreational, thus triggering the Town’s right of first refusal.

The Town’s final argument for its contention that the use of the recreational portion of the locus has been converted is that Crescitelli acknowledged that the locus was subject to the right of first refusal in the escrow agreement he signed with Blaquere on the same day the property was transferred. The escrow agreement, signed by both parties, stated that they: (1) acknowledged that the locus is subject to a right of first refusal under G. L. c. 61B; and (2) agreed to co-operate and comply with the requirements of G. L. c. 61B with regard to notice, obtaining releases and transferring the locus to the Town in accordance with G. L. c. 61B. See Findings of Fact ¶ 10. Whether the locus’ use has been converted to a non-recreational use is a conclusion of law, as evidenced by the fact that it is a central issue in the present case. The courts in the Commonwealth have long held that “the confession of a party as to the legal effect of his contract cannot bind him . . . .” Boston Hat Manufactory v. Messinger, 19 Mass. 223 ( 2 Pick. 223 ), 240 (1824). See also Wasserman v. Tonelli, 343 Mass. 253 , 257 (1961). Crescitelli and Blaquere cannot, therefore, be bound by the escrow agreement merely because it indicates that the land might be subject to the Town’s right of first refusal under G. L. c. 61B, § 9. It did not constitute a conversion or intent to change the use of the property.

For all of the above stated reasons, I find and rule that the Town has failed to show that Crescitelli, or Blaquere, converted any portion of the locus to a use not in accordance with G. L. c. 61B, thereby triggering the Town’s right of first refusal. [Note 4] Accordingly, the court GRANTS the Defendant’s motion for summary judgment, DENIES the Plaintiff’s cross-motion for summary judgment, and ORDERS that summary judgment be entered for the Defendants.

So Ordered

By the Court. (Trombly, J.)