Van Liew v. Chelmsford

Mass. Appeals Court, No. 13-P-145, February 28, 2014: No municipal duty to enforce preservation easement; no standing for mandamus declaratory judgment.

Van Liew brought a mandamus action against the Selectmen of Chelmsford, MA, to require them to enforce a preservation easement. (In Massachusetts, Preservation easements and conservation easements are governed by the same statute, M.G.L. chapter 184, section 32, and referred to as “restrictions”.) The easement, contained in a deed when the Town sold the property, prohibited constructing any additional buildings other than “barnlike structures and silos … [with] the exterior appearance of farm buildings and barns.” A subsequent owner, Epsilon Group, LLC (“Epsilon”) obtained permits to construct a two-story office building, a parking lot, and other structures on the property. The Selectmen voted not to take legal action to enforce the preservation restriction.  (These facts are taken from the Superior Court opinion, civil action 12-1581, Nov. 9, 2012) and the recorded easement.) Van Liew contended that the proposed construction violates the easement and that Selectmen have a nondiscretionary statutory duty to enforce the easement. He sought a writ of mandamus compelling the Board to initiate legal action to enforce the easement and declaratory relief to that same effect. The trail court held Van Liew lacks standing to seek mandamus because the Selectmen have no “public duty” to enforce the easement. It also said Van Liew was not entitled to a declaratory judgment because did not have a “legally cognizable injury.” (According to his appellate brief, Van Liew is a resident of the Town, but it makes no mention of where he lives in relation to the easement property.) The trial court granted the Town’s motion to dismiss. Van Liew appealed.

The appeals court upheld the trial court’s decision. As to mandamus the court wrote, “As the judge correctly determined, the public right exception is unavailing here because enforcement of the preservation restriction, rather than a duty required by law, is discretionary. See G. L. c. 184, § 32.” As to declaratory judgment, the court agreed that the absence of a “particularized interest” meant that Van Liew has no legally cognizable injury.

The court’s decision was issued under a rule that it may be cited for its persuasive value but not as binding precedent.

The decision is available at Google Scholar at http://scholar.google.com/scholar_case?case=12244023845822915253&q=Van+Liew+v.+Board+of+Selectmen+of+Chelmsford&hl=en&as_sdt=40000006&as_vis=1 and is currently also at http://weblinks.westlaw.com/result/default.aspx?action=Search&cnt=DOC&db=MA-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=CO%28APPFTT%29+%26+DA%2802%2F28%2F2014%29+%26+TI%28VAN+LIEW%29&rlt=CLID_QRYRLT89787625973&rltdb=CLID_DB96460625973&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=MACS1.0&service=Search&sp=MassOF-1001&srch=TRUE&ss=CNT&sskey=CLID_SSSA94475625973&vr=1.0.  Because of the limitations of the ruling, the decision is unlikely to appear the Massachusetts Trial Court Law Libraries website http://masscases.com/.

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