JOHN A. PECK and CHARLES W. MANN vs. TOWN OF HANSON and ELLEN STILLMAN.

John A. Peck and Charles W. Mann, the plaintiffs, entered into a Purchase and Sale Agreement to purchase property of the defendant Ellen Stillman situated in the Towns of Hanson and East Bridgewater. Stillman's land had been classified as forest land pursuant to the provisions of G.L. c. 61 and a portion thereof as agricultural land pursuant to the provisions of G.L. c. 61A. Prior to the consummation of the Agreement, the defendant Town of Hanson (the "Town") voted to exercise an option to purchase the land so classified. This has led to the present action which involves a controversy between the plaintiffs and the Town as to whether in fact the Town has an option, and if so, whether it has been properly exercised. There is a further dispute between the plaintiffs and the defendant Stillman as to their rights and obligations pursuant to the Purchase and Sale Agreement. Accordingly, the trial of this action brought to obtain a Declaratory Judgment pursuant to the provisions of G.L. c. 231A has been bifurcated with the issues which have arisen between the plaintiffs and the Town submitted for decision to the Court on an Agreed Statement of Facts. The parties submitted excellent trial memoranda as well as making their arguments orally in open Court on March 23, 1989. There also have been admitted into evidence twenty-five (25) exhibits which are incorporated herein for the purpose of any appeal.

The Agreed Statement of Facts which I hereby adopt and as to which I so find and rule are as follows:

1. The plaintiffs, John A. Peck and Charles W. Mann, entered into a written Purchase and Sale Agreement dated July 23, 1986 with the defendant, Ellen Stillman, pursuant to which Peck and Mann, as Buyers, agreed to purchase approximately 118 acres of unimproved land owned by Stillman situated in the Towns of Hanson and East Bridgewater, Massachusetts. Of the land which is the subject of the Purchase and Sale Agreement, approximately 108 acres is within the Town of Hanson and approximately 10 acres is within the Town of East Bridgewater.

2. Peck and Mann intended to purchase the Stillman land for the purpose of creating a residential subdivision. The Purchase and Sale Agreement provides, among other things, that Peck and Mann would cause a subdivision plan, as well as all other plans and materials necessary for submission to the Hanson Planning Board and other governmental bodies to secure approval of the proposed development, to be prepared within 150 days of the date of the Purchase and Sale Agreement and, within 365 days of said date, would furnish Stillman with evidence that final approval of the subdivision plan by the Hanson Planning Board and other governmental bodies had been obtained, subject to certain rights to extend such deadlines. The Purchase and Sale Agreement also expressly provides that Peck and Mann might terminate the Agreement and have their deposits returned if they were unable to obtain approval of their subdivision plan.

3. On or about October 24, 1986, Peck and Mann filed an application for approval of a preliminary subdivision plan with the Hanson Planning Board. The preliminary subdivision plan was approved, subject to certain modifications and conditions, on December 24, 1986. One of the conditions was that a traffic study be undertaken and submitted to the Planning Board with the application for approval of a definitive plan. The traffic study was completed in or about May, 1987. Peck and Mann filed an application for approval of a definitive subdivision plan on or about June 1, 1987.

4. Of the approximately 108 acres of Stillman's land within the Town of Hanson that is covered by the Purchase and Sale Agreement, 89.3 acres had been classified and taxed as forest land pursuant to the provisions of M.G.L. c. 61. Stillman first applied to the State Forester for a Certificate of Management leading to such classification by application dated June 29, 1979 and submitted a proposed Forest Management Plan for approval of the State Forester. The Forest Management Plan encompassed management practices to be accomplished within the next five years. The Massachusetts Department of Environmental Management, acting through the State Forester, thereafter approved the Forest Management Plan and issued a certification that said 89.3 acres was being managed under an approved Forest Management Plan. Such certification was in effect from January 1, 1980 through December 31, 1984. The Hanson Board of Assessors approved the 89.3 acres as Classified Forest Land pursuant to c. 61 on November 25, 1980. The Hanson Board of Assessors thereafter prepared a Statement of Classification of Forest Land dated December 3, 1980 with respect to said 89.3 acres, and recorded the Statement of Classification of Forest Land with the Plymouth Registry of Deeds on December 16, 1980, Book 4928, Page 21.

5. By application dated June 8, 1984, Stillman applied to the State Forester to approve a new Forest Management Plan and to issue a new Certificate of Management with respect to 90.79 acres of forest land, which included all of the 89.3 acres that were covered by the existing Forest Management Plan and Certificate of Management. The new Forest Management Plan encompassed management practices to be accomplished within the next ten years. Stillman's 1984 application for a Certificate of Management for said 90.79 acres was approved by the Massachusetts Department of Environmental Management, acting through the State Forester, and a certification that said 90.79 acres was being managed under an approved Forest Management Plan was issued on July 17, 1984 for a period beginning January 1, 1985 and ending December 31, 1994. The 1984 Certificate of Management was thereafter sent to the Hanson Board of Assessors, but the Hanson Board of Assessors did not execute the assessor's portion of the application and certification form or execute and record a new Statement of Classification of Forest Land with respect to said 90.79 acres. The Board did continue to treat 89.3 acres as classified forest land for the purpose of computing the amount of tax to collect from Stillman.

6. Of the approximately 108 acres of land in the Town of Hanson that is the subject of the Purchase and Sale Agreement, approximately 4 or 5 acres are classified and taxed as agricultural land pursuant to the provisions of M.G.L. c. 61A. Said 4 or 5 acres were first classified and taxed as agricultural land in fiscal year 1987. No notice or statement of such classification was recorded at the Registry of Deeds prior to the commencement of this action on October 2, 1987.

7. The 89.3 acres that are covered by the Purchase and Sale Agreement which were classified as forest land in November, 1980, pursuant to M.G.L. c. 61 have been under that classification continuously since then.

8. The Purchase and Sale Agreement provides that the price for all of the land, including the portion in East Bridgewater, is $1,600,000. The Purchase and Sale Agreement also provides that Peck and Mann shall pay an additional amount if they receive subdivision approval for more than 80 lots from the Town of Hanson Planning Board. The Purchase and Sale Agreement also provides that Peck and Mann shall pay an additional amount if the sales price of each lot sold between the 71st and 80th lot exceeds $60,000. Peck and Mann ultimately received subdivision approval for 82 lots from the Town of Hanson Planning Board.

9. Stillman wrote four separate, identical letters dated June l, 1987 to the Hanson Board of Selectmen, the Hanson Board of Assessors, the Hanson Planning Board and the Hanson Conservation Commission notifying them of her intent to sell that part of the land within the Town of Hanson covered by the Purchase and Sale Agreement which had been taxed pursuant to c. 61 and c. 61A. The letters stated that Stillman had received a bona fide offer to purchase said land in the amount of $1,400,000. The June 1, 1987 letters were deposited in the U.S. mail on June 2, 1987 and were sent to each of the four addresses by certified mail, return receipt requested. The June 1, 1987 letter was received by the Hanson Board of Selectmen on June 3, 1987. Receipt of the letter was noted at the weekly meeting of the Hanson Board of Selectmen held on June 9, 1987, and the substance of the letter was entered in the minutes of the meeting.

10. The June 1, 1987 letter was further discussed at the weekly meeting of the Hanson Board of Selectmen on June 16, 1987. In particular, the question of whether the Town of Hanson wished to exercise a right of first refusal pursuant to c. 61 and c. 61A was discussed. A vote was taken, and the result was 3 to 1 against attempting to exercise a right of first refusal.

11. The subject of the possible purchase of the Stillman property was again discussed at the weekly Selectmen's meeting on June 23, 1987. At that time, the Board of Selectmen voted to look into a time schedule for holding a special Town meeting and a special election. The Board of Selectmen also determined, due to time constraints, to request Ms. Stillman to grant a 30 day time extension for the Town to exercise a right of first refusal.

12. By letter dated June 25, 1987 from Bruce Young, Vice Chairman of the Board of Selectmen, to Ms. Stillman, Mr. Young requested Ms. Stillman's agreement to a 30 day time extension to exercise a right of first refusal. By letter dated June 30, 1987 from Ms. Stillman to Mr. Young, Stillman declined to agree to any extension of time.

13. On June 30, 1987, the Hanson Board of Selectmen voted to call a special Town meeting for Saturday, July 25, 1987 to vote upon whether the Town should exercise a right of first refusal to purchase the Stillman property. The Board also voted to call a special Town Election in the minimum amount of time possible for the purpose of deciding whether or not the Town wished to vote to appropriate and spend a sum of money necessary to meet the existing offer from Peck and Mann.

14. It was subsequently determined by the officials of the Town of Hanson that, in order to comply with applicable election and voter registration laws, the earliest date such election could be held was August 3, 1987.

15. In response to reading a newspaper article stating that the option period for the Town to exercise its right of first refusal with respect to the Stillman property expired on August 3, 1987, Ms. Stillman wrote a letter dated July 20, 1987 to the Board of Selectmen. The letter was received by the Board of Selectmen on July 21, 1987.

16. A Special Town Meeting was held by the Town of Hanson on July 25, 1987. At the meeting, the Town voted to purchase the Stillman property, the purchase to be funded by a bond issue in the amount of $1,415,000, conditional upon a favorable vote at the August 3, 1987 Special Election exempting the bond issue from the requirements of Proposition 2 1/2.

17. On or about July 28, 1987, Stillman wrote a letter to the Town of Hanson enclosing a copy of the Purchase and Sale Agreement with Peck and Mann, which letter was received during the week of July 28.

18. On August 3, 1987, the Town of Hanson voted at the Special Election to exempt the proposed $1,415,000 bond issue from the requirements of Proposition 2 1/2.

19. By notice dated August 3, 1987, signed by the members of the Hanson Board of Selectmen, and sent certified mail, return receipt requested, the Town of Hanson notified Stillman of its intent to exercise its right of first refusal pursuant to M.G.L. c. 61 and c. 61A with respect to that part of the Stillman property in the Town of Hanson that was subject to the Purchase and Sale Agreement and which had been taxed pursuant to G.L. c. 61 or c. 61A. A notice of exercise was recorded with the Plymouth Registry of Deeds on August 3, 1987. No such notice of intent to exercise was given or recorded prior to August 3, 1987.

20. The Town of Hanson has never voted at a special or regular town meeting to close its town offices on Saturdays.

21. Ordinarily, the Plymouth County Registry of Deeds is closed for business on Saturdays. The Plymouth County Registry of Deeds was closed for business on Saturday, August l, 1987.

22. During all relevant times to include the months of July and August 1987 the official hours of operation of the Hanson Town Hall as listed in the Town's annual report was Monday through Friday from 8:30 a.m. through 4:30 p.m. and Tuesday evenings from 7:00 - 9:00 p.m.

23. At the time of Ms. Stillman's June 1, 1987 letters, the 89.3 acres referred to in paragraph 4 was classified in the Hanson Assessor's office as forest land and taxed at reduced rates pursuant to M.G.L. c. 61 and the 4 or 5 acres referred to in paragraph 6 was classified as agricultural land and taxed at reduced rates pursuant to M.G.L. c.61A.

24. Ellen Stillman is the owner of the land in litigation.

The principal issues presented by the initial aspect of the action concern the effects of the classification of locus as forest land, the statutory provisions applicable thereto, and the adequacy of the action of the Hanson Assessors. The second issue before me presents the question for consideration as to the validity of the purported exercise of the option by the Town. In brief, I find and rule that the Stillman land was reclassified pursuant to the provisions of G.L. c. 61, as amended by St. 1981 c. 768, that the failure of the assessors to file a new certificate did not defeat such classification on the present factual situation and that accordingly the Town had an option to purchase. I further find and rule that the option was validly exercised within the statutory time frame.

CLASSIFICATION OF STILLMAN LOCUS AS FOREST LAND

The provisions of c. 61 as they existed at the time defendant Stillman initially applied to have a portion of her land classified as forest land contained no provision for an option to purchase by the municipality in which the land is situated. [Note 1] By St. 1981 c. 768, section 8 was added to the chapter and made provision for a first refusal option. Said section 8 requires that before land taxed under c. 61 is sold or converted to residential, industrial or commercial use, the city or town in which the land is located must be notified of the intent to sell for, or so convert to, such other use. The section continues:

for a period of sixty days subsequent to such notification, said city or town shall have, in the case of intended sale, a first refusal option to meet a bonafide offer to purchase said land . . . . Such notice of intent shall be sent by the landowner by certified mail to the mayor and city council of a city, or to the board of selectmen of a town, to its board of assessors and to its planning board and conservation commission, if any, and said option period shall run from the day following the latest date of deposit of any such notices in the United States mail. 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. Such 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.

The statute as amended in 1987 now provides for 120 days for the municipality to exercise its option. See St. 1987, c. 95. There is no contention in the present litigation that appropriate notice was not given to the Town, so I have not set forth all applicable provisions in section 8 but only those relative to the exercise of the option.

The initial question presented by the 1981 amendment is whether it applied to the Stillman land. Section 2 of the Act provides, in pertinent part, that the amended chapter 61:

shall not apply to land classified prior to the effective date of this act until the expiration of the term of the forest management plan governing such land or until one year after the withdrawal of such land from classification, whichever is longer. Notwithstanding the provisions of any laws to the contrary, the owner of such land, prior to the end of said period, may elect to remove such land from classification without imposition of a withdrawal tax, or may elect to apply for classification of such land under the provisions of section one.

The plaintiffs argue that this language means that the 1981 amendment would not apply to the Stillman land until the expiration of the term of the forest management plan governing such land or until one year after the withdrawal of such land from classification, whichever period is longer. If this interpretation were followed, then it is arguable that the recertification by the state forester in 1984 fell under the previous chapter 61 without an option to the Town to purchase it. It seems clear, however, that this construction cannot be adopted. When the defendant Stillman made her second application for certification, it was after she had received from a supervisor of the regional forest and parks a notice dated January 1, 1984 explaining the changes made under the 1981 amendment and in connection with the notification a statement that in order to be reclassified as of the next January 1, her woodland would have to be recertified in 1984. The Commonwealth explained to the defendant in the form letter that for recertification of her land in 1984 she would have to file her plan with the regional office no later than July 1 to be effective on the following January 1. There was a further explanation that section 2 provides a one year grace period beyond the then current expiration date of December 31. The explanation also stated that during the grace year the landowner was free to withdraw all or part of the land from classification without penalty, but was given time also to apply for a recertification by July 1 of the grace year to come within the new law. In brief, the statute did not prohibit landowners from applying for a recertification under the revised chapter 61 to be effective at the stated expiration date of their then existing management plan. If they were uncertain, however, of what course they wished to follow, then section 2 of the 1981 legislation gave the landowner one year to decide whether they wanted to withdraw their land from classification or to bring it within the new Act. Ms. Stillman chose to apply for recertification at the earliest possible time, and this was granted by the Commonwealth; accordingly, §8 of c. 61 is applicable to this transaction.

Section 1 of c. 61, as originally applicable to the locus, set forth the requirement that the assessors record in the registry of deeds a statement of their action in classifying forest land which then constitutes a lien upon the land covered by the application for such taxes as may be levied under chapter 61. The Act further provides that the statement "shall name the owner or owners and shall include a description of the land adequate for identification. Unless such a statement is recorded, the lien shall not be effective with respect to a bonafide purchaser or other transferee without actual knowledge of such lien." Section 2 as added by St. 1981 c. 768, §1, contains a similar provision although it imposes an additional obligation that a copy of the recorded statement be forwarded to the office of the state forester. The Hanson Assessors properly filed for record the statement of their action in making the original classification, but they did not record the 1981, section 2 statement of classification. The exhibits suggest that the recording was delayed until the recording fee had been obtained from defendant Stillman. The plaintiffs argue that accordingly the Town had never accepted the recertification and that it was still acting under the pre-1981 provisions. The statutory scheme, however, does not give the Town the right to veto the certification by the state forester in this way, but with the Town's remedy limited to the appellate process by which the Board of Assessors may appeal the certification. See 304 CMR §8.06(l) (a). The Hanson Assessors did not so appeal, and there is no indication in the record that they dispute the recertification.

I make no determination as to whether the result would be different if there were a third party affected by the action of the Assessors who was a bona fide purchaser or other transferee without actual knowledge of the Town's lien. The plaintiffs make no such claim. Accordingly, I find and rule that the statutory scheme is not vitiated by the failure of the Board of Assessors to file a statement of the recertification and that the Town of Hanson has the benefit of the option set forth in §8 of c.61.

EXERCISE OF OPTION

The parties have agreed that the notification from defendant Stillman was dated June 1, 1987 and that the four letters constituting such notification were deposited in the United States mail on June 2, 1987. The statute as it then read gave the Town sixty days to exercise its right of first refusal. Section 8 provided that said "option period shall run from the day following the latest date of deposit of any such notices in the United States mail." The Town argues that the correct interpretation of this language is that the sixty day option period starts to run on June 3, that the date on which the period commences normally is excluded, that accordingly, therefore, the first day from which the count is made is June 4 and that the sixty days expired on Sunday, August 2, which, by virtue of the provisions of G.L. c. 4, §9, was automatically extended to Monday, August 3. I reject this artificial method of computing the sixty day period. While the language of the statute might give some credence to the Town's position, I conclude that the General Court intended to adopt the usual rule of computing time. As Justice Liacos has stated for the Supreme Judicial Court:

In computing time from a date, act or event, the settled rule . . . is to exclude the day from which the period of time runs unless a contrary intention is disclosed by the statute, instrument or contract with respect to which the question arises. (citations omitted)

Board of Assessors of Salem v. State Tax Commission, 371 Mass. 410 , 412 (1976).

I interpret c. 61 as being a codification of such provision in the present context. If then one follows the usual procedure and eliminates June 2 from the computation and starts the count of the sixty days from June 3, the statutory period expires on August 1, but August l, 1987 was a Saturday.

The plaintiffs argue that the option period expired on August 1 since the parties have agreed that no vote had been found authorizing the Town Hall to be closed on Saturdays. In fact, the Town Hall is closed for business on Saturdays and so is the Registry of Deeds in Plymouth. The statute requires an "in tandem" exercise of the option both by notification to the landowner and the recording with the Registry of Deeds within the option period. The plaintiffs stress that the reported cases require that an option strictly follow the requirements from which the option was granted, see Cadillac Automobile Company of Boston v. Stout, 20 Mass. App. Ct. 906 (1985), a case which originated in the Land Court, and this view, of course, correctly states the law.

The plaintiffs further argue that the language of G.L. c. 41, §ll0A, which reads as follows:

Any public office in any city or town may remain closed on any or all Saturdays as may be determined from time to time, in a city by the city council, subject to the provisions of the city charter, or, in a town, by vote of the town at a special or regular town meeting, and the provisions of section nine of chapter four shall apply in the case of such closing of any such office on any Saturday to the same extent as if such Saturday were a legal holiday.

does not apply since no vote of the Town authorizing closing on Saturdays has been found. However, it is always presumed that municipal authorities act regularly and in accordance with their duties, and accordingly, I find and rule that the closing of the Town Hall on Saturdays is presumed to have been done in accordance with statutory authority. That being so, the provisions of G.L. c. 4, §9 apply to the same extent as if such Saturday were a legal holiday. See Minnie v. Chicopee, 344 Mass. 743 (1962) and Miller v. City of Boston, 25 Mass. App. Ct. 997 (1988). In addition, there is no dispute that the Plymouth County Registry of Deeds was closed for business on Saturday, August 1, 1987, and that the notice of exercise of the option could not be recorded until Monday; since the statute requires a two-fold action, the Registry closing extended the option period to August 3, 1987.

CLASSIFICATION AS AGRICULTURAL LAND

A portion of the Stillman land was classified as agricultural land pursuant to the provisions of G.L. c. 61A, but no questions have arisen as to the option insofar as it relates to the provisions of §14 of said chapter, [Note 2] other than to the extent the same questions are presented as to the validity of the time frame.

On all the evidence, therefore, I find and rule that the recertification of the Stillman land was pursuant to the provisions of G.L. chapter 61 as amended in 1981; that the Town of Hanson had an option, pursuant to the provisions of section 8 thereof, to purchase said land; that the option was validly exercised, both as to the forest and agricultural lands; and that the Town now may proceed to complete the acquisition of the premises which the defendant Stillman is compelled to convey to it.

Judgment accordingly.