What Happens After a Foreclosure Sale?
Homeowners who have gone through a foreclosure often ask me what happens after a foreclosure sale. More specifically, these homeowners often ask if they need to leave their home right away after a foreclosure auction sale. The answer is no. Even after a foreclosure sale, the new owner is required to perform an eviction of the occupants remaining in the foreclosed property.
Massachusetts is a non-judicial foreclosure state. This means that a bank does not need to go to court to get permission to foreclose (unlike states like New York and Florida). A Massachusetts foreclosure requires sending a number of required notices, publishing a foreclosure sale notice, and holding a foreclosure auction. If done correctly, the bank (or third-party buyer) becomes the record owner of the property. While ownership of the home changes after a foreclosure sale, possession does not. The new record owner is required to bring an eviction case against the former homeowner(s) residing in the foreclosed home.
What happens after a foreclosure sale? The bank (or third-party buyer) must file an eviction against any persons who remain in the property. This eviction, known as a summary process action, is generally filed in a District Court or Housing Court. In these cases, the homeowner has the opportunity to defend against the new owner’s claim to possession by alleging that the foreclosure was not performed correctly.
An important point to note for homeowners in such a case: you do not need to leave the home until the court orders you to do so. The new owner must obtain a judgment from the court allowing them possession of the home. Until this is done, the new owner cannot forced you out of the property under any circumstances.
What Should You Do After a Foreclosure Sale?
If you have gone through a foreclosure of your home, contact a foreclosure defense attorney for a consultation, regardless of your intentions for the home. In other words, even if you plan to leave the home, it is still worth speaking to an attorney. An attorney can help determine if you have a defense against the foreclosure. Even if you plan to leave the home, a foreclosure defense attorney can assist you with resolving any liability you may have against the new owner and possibly get you relocation assistance.
Potential clients often ask me for advice on how to avoid foreclosure. Here are a few important tips I recommend.
Contrary to free “advice” available on some Internet websites, foreclosure defense is not about getting a free home. While there are ways of delaying or stalling foreclosure, that is only what can be done: delay the inevitable. The only sure means to avoid foreclosure is paying the mortgage loan for the property. To do so, a homeowner needs income. For purposes of obtaining a loan modification, a lender will generally consider any documented source of income. This is an important qualification for showing a lender that you qualify for a modification: you must be able to account for where the money comes from. This advice is usually most relevant to self-employment and rental income. Lenders generally want to see such income deposited in a bank account. Without such deposits, a homeowner faces a difficult time trying to prove they really earned the alleged source of income.
An important side note: homeowners facing foreclosure who do not have the required income to obtain a loan modification should still contact an attorney for assistance with their case. An attorney can help a homeowner review their options and decide with them their best course of action.
One of the single, most important pieces of advice I can give homeowners to avoid foreclosure is to keep a record of all contact with your lender. If you find yourself in a situation where legal action may be necessary, having a record is a huge help in advancing your case. Even homeowners with the best memories are often unable to remember specific details occurring years ago. Keeping a paper trail of your communications with a mortgage lender can be one of the best things you do to avoid foreclosure.
Most importantly, seek the help of a foreclosure defense lawyer sooner than later if you find yourself facing foreclosure. Stopping a foreclosure becomes increasingly difficult as a foreclosure date is scheduled (but still not impossible; homeowners in any stage of the foreclosure process should talk to a attorney if foreclosure defense is needed). The sooner you speak to an attorney, the better luck an attorney will have in helping you resolve the problem.
If you need help to avoid foreclosure, contact me for a consultation.
The Supreme Judicial Court issued an important ruling last weekend extending the “paragraph 22 defense” to other homeowners facing foreclosure. In Federal National Mortgage Association v. Marroquin, the Court extended the benefit of the prior Pinti v. Emigrant Mortgage decision to those homeowners who similarly challenged a foreclosure based on non-compliance with paragraph 22 of the standard mortgage (a full copy of the decision is included below). This is alot of information to take in at once, so read on for a “non-lawyer” explanation!
Paragraph 22 of the standard mortgage is a provision in a typical mortgage agreement that requires a foreclosing entity to provide a default notice to borrowers prior to foreclosure. This notice requires specific disclosures that need to be given to the borrower. In the wake of the recent foreclosure crisis, many of these notices have had errors, and have not included all of the required disclosures. A paragraph 22 defense is a challenge to a foreclosure based on non-compliance with this mortgage requirement.
In Pinti v. Emigrant Mortgage, the Supreme Judicial Court determined that the failure to strictly comply with this mortgage requirement made the foreclosure void. Pinti, importantly, required “strict compliance” for this part of the mortgage: a borrower does not need to show any harm from such a defect to challenge the foreclosure. The Court’s decision in Pinti was “prospective”: it would only apply to the homeowners in Pinti and future foreclosure challenges based on non-compliance with paragraph 22. In Aurora Loan Services v. Murphy, the Appeals Court extended the Pinti ruling to other cases on appeal at the time of the Pinti decision.
In Federal National Mortgage Association v. Marroquin, the Supreme Judicial Court needed to decide whether a paragraph 22 defense could be raised by a homeowner who had a trial court case pending at the time of Pinti. This would include post-foreclosure eviction cases and Superior and Land Court challenges to foreclosure. In Marroquin, the Supreme Judicial Court extended Pinti to these cases as well. If a homeowner had raised a paragraph 22 defense in one of these cases at the time of Pinti, “strict compliance” would apply.
Marroquin will likely apply to only a small range of cases. The Supreme Judicial Court did not suggest that the prospective ruling of Pinti has changed. In other words, a homeowner who did not properly preserve a paragraph 22 defense will not be helped by Marroquin. As this decision comes over 1.5 years after Pinti, there are likely many homeowners who had such viable defenses, but failed to preserve them, on the belief that Pinti’s prospective ruling would not let this defense apply to their case.
This is my main complaint with Marroquin and the Supreme Judicial Court’s other decisions on paragraph 22. The Court in Pinti knew that the issue of the paragraph 22 defense would come before the Court again. Why the Court could not have addressed this matter in the first place, making these later decisions unnecessary, is beyond me. Nonetheless, Marroquin fully resolves the scope of this defense for homeowners with a paragraph 22 defect.
If you find yourself in need of assistance with foreclosure, contact me for a consultation.
Today is Be Kind to Lawyers Day. Yes, they make a celebration for everything these days . . .
Joking aside, I feel that most people do appreciate the work of lawyers. Many of my clients, who are faced with complex and challenging legal matters, appreciate the work of attorneys. Nonetheless, it is nice to have a day in my “celebration.” Happy Be Kind to Lawyers Day!
A 72 hour notice to quit is a unique type of notice that is generally used for post-foreclosure eviction (“summary process”) cases. Receipt of one of these notices is a sign that an eviction case following a foreclosure sale will begin soon.
A notice to quit is required prior to the start of an eviction case. For evictions involving landlord/tenants, where the parties previously entered into a rental agreement, there are specific requirements for the notice to quit required prior to eviction. Terminating a tenancy for non-payment of rent, for example, generally requires a 14 day notice to quit. The sending of a notice to quit for a landlord/tenant eviction is a mandatory part of the process; a court will throw out an eviction if the proper notice is not sent, or the landlord cannot prove that the landlord received it.
The same is not true for a post-foreclosure eviction case, where the landlord (often the bank or lender who purchased the home at the foreclosure sale) is attempting to evict the former homeowner. There is no specific requirement as to what type of notice a foreclosing entity needs to provide to a former homeowner. Many cases on this matter suggest that no notice to quit is required for one of these cases (unlike a landlord/tenant eviction).
Despite the law suggesting that no such notice to quit is required, out of custom, a 72 hour notice to quit is generally used for post-foreclosure eviction cases. This notice informs the former homeowner that they have 72 hours to leave the property, or an eviction will begin. A notice to quit is generally served by a sheriff or constable.
Despite the 72 hour “deadline” in one of these notices, a former homeowner does not need to leave their home after receiving one of these notices. A homeowner only needs to leave the home after a court enters an execution for possession, allowing the owner of the property to physically remove the former homeowner and their possessions from the property. Before doing so, a former homeowner (like a tenant) is entitled to their “day in court” and allowed to present their reasons why they should not be evicted from the home. The 72 notice to quit, simply put, is merely the start of the eviction process, and not the end.
A homeowner who receives a 72 hour notice to quit needs to act quickly in defending themselves against the imminent post-foreclosure eviction. If you find yourself in such a case, contact me for a consultation. Eviction cases move quickly, and it is important to have an experienced attorney to help you understand your rights.
The Supreme Judicial Court issued a decision this week on postforeclosure notices, and whether the failure to send one invalidates a foreclosure sale. In Turra v. Deutsche Bank, the Court ruled that the failure to send one of these notices does not void a foreclosure (disclosure: this was my appeal!). A full copy of the decision is below.
The law in question, G.L. c. 244, § 15A, requires a mortgagee to notify the local municipalities of a foreclosure thirty days after the sale has occurred. As the Court acknowledged in Turra, prior court decisions suggested that strict compliance with this law was required to perform a lawful foreclosure. The question in Turra was whether this was such a requirement, and whether a failure to comply with this step would invalidate a foreclosure. Turra determined this statute isn’t grounds for challenging foreclosures.
I don’t read Turra to suggest that a failure to comply with a postforeclosure notice requirement can never be used to challenge a foreclosure. If a homeowner or someone else is actually harmed from a bank’s failure to send such a notice, this violation may potentially be a consumer protection claim. Turra is clear, however, that such a violation, on its own, is not enough to be a foreclosure defense.
While Turra wasn’t the outcome I wanted, I’m pleased that the Supreme Judicial Court acknowledged the basis for my argument, and conceded that its prior caselaw suggested this was a plausible defense. The decision mentions two other decisions where courts came out the oppositie way on this question of law (one of these decisions was one of my other cases using this defense). You can’t win ’em all!
Turra has an important lesson of wisely choosing a foreclosure defense strategy. The Internet is filled with foreclosure defense hoaxes and myths that do struggling homeowners more harm than good in trying to save their homes. A review of unsuccessful foreclosure defense cases in state and federal court shows dozens of cases lost on the same arguments that courts routinely reject. My strategy in defending homeowners is to make arguments that have a basis in law, and reject arguments that don’t work. I reject the “kitchen sink” approach to foreclosure defense, where one raises every argument they can think of, irrespective of whether the claim has any hope of succeeding. It is far better, in my opinion, to stick with arguments that work, and try new approaches. While not successful in this case, my legal argument on these postforeclosure notices succeeded in several of my other cases, and helped keep a deserving family in their home. If you find yourself facing foreclosure, don’t rely on an Internet myth to defend yourself: contact an experienced attorney for assistance.


text:
Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal.
Lamb's Chapel v. Center Moriches Union Free School Dist.
Antoine v. Byers & Anderson, Inc.
United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc.
Cardinal Chemical Co. v. Morton Int'l, Inc.
Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc.

matches: v. v. v. v. v. v.


Sheriff. Constitutional Law, Separation of powers. Practice, Criminal, Sentence. Statute, Construction.
A sheriff's release from confinement in a house of correction of select inmates who had not fully served the committed portions of their sentences, pursuant to a program in which the sheriff placed in home confinement inmates who met certain criteria and supervised them by means of, inter alia, global position satellite monitoring bracelets, did not impermissibly intrude on the core judicial function of sentencing in violation of art. 30 of the Massachusetts Declaration of Rights and did not constitute an ultra vires act on the part of the sheriff, where G. L. c. 127, §§ 48, 49, and 49A, provided specific legislative authorization for such a program. [264-269] COWIN, J., dissenting.
INDICTMENT found and returned in the Superior Court Department on May 23, 2006.
Orders directing sheriff to confine defendant and certain other committed offenders were entered by Diane M. Kottmyer, J., and motions for reconsideration and for a stay were considered by her.
Thomas Drechsler, Special Assistant Attorney General (Steven J. Masse with him) for the Sheriff of Middlesex County.
Randall E. Ravitz, Assistant Attorney General, for the Superior Court Department of the Trial Court.
Edward J. McDonough, Jr., & Thomas E. Day for the Sheriff of Hampden County & others, amici curiae, submitted a brief.
Beth L. Eisenberg, Committee for Public Counsel Services, Lauren Petit & Lee J. Gartenberg for the Committee for Public Counsel Services & others, amici curiae, submitted a brief.
Procedure 467, also known as the "Global Position Satellite Monitoring Program" (GPS program), by the Middlesex County sheriff's office (sheriff), violates art. 30 of the Massachusetts Declaration of Rights insofar as it allows the sheriff to release from the Billerica house of correction (house of correction) and place in home confinement select inmates who have not fully served the "committed" portions of their sentences. For the reasons that follow, we conclude that the placement of select inmates in the GPS program does not violate art. 30 and does not constitute an ultra vires act by the sheriff.
and (f) "not considered a risk to public safety." Id. Certain conditions render an inmate ineligible for the GPS program, including commitment on an escape charge or a prior escape, a mandatory sentence, an offense of domestic violence, or being the subject of an active protective order. See Policy and Procedure 467.05(3).
Every inmate participating in the GPS program shall be required to wear a tamper-proof transmitter, which enables the sheriff's staff to monitor the inmate twenty-four hours a day, and shall be required to have, among other things, an approved home and work plan and a reliable means of transportation, either private or public. See Policy and Procedure 467.06 & 467.09(1). Each inmate's activities are supervised by a GPS monitoring officer who approves the inmate's itinerary and any changes thereto, and who conducts random checks on the inmate, both by telephone and by onsite visits. See Policy and Procedure 467.09(2) & 467.09(4). All inmates participating in the GPS program shall be supervised for "out of place" violations and for the use of alcohol and illegal drugs, and they shall be required to submit to random and frequent "urine surveillance." See Policy and Procedure 467.09(5).
arrest, a new case, a positive urine screening, a violation of the rules of conduct, or a reclassification. [Note 5] See Policy and Procedure 467.10.
served. [Note 8] On September 17, 2007, after Donohue had served 195 days of his sentence, the sheriff transferred him, pursuant to Policy and Procedure 467, from the physical confines of the house of correction to the confines of Donohue's home with a GPS monitoring bracelet. Donohue worked from his house for a mortgage company, and he was permitted to leave for scheduled appointments with appropriate permission. In addition, Donohue was required to attend five Alcoholics Anonymous and Narcotics Anonymous meetings a week, attend a weekly class at the Community Counseling Center, and perform weekly community service.
in his personal residence on an electronic bracelet, notwithstanding the fact that Donohue had not finished serving the "committed" portion of his sentence. The judge advised the sheriff that he did not have statutory authority to declare the personal residence of a defendant under sentence to the house of correction to be "a place of confinement" and that he was in violation of the mittimus. The judge ordered the sheriff to confine Donohue "in the House of Correction, Billerica, pending disposition of this matter, except to the extent that G. L. c. 127, §§ 48, 49 and 86F[,] expressly authorize the Sheriff to release [Donohue] 'during necessary and reasonable hours' for the purposes set forth in those statutes." The sheriff complied with this order.
A further hearing on the matter was held on September 27, 2007. At this proceeding, the sheriff confirmed that Donohue's earliest release date on parole, after application of all statutory credits, would be November 27, 2007. The sheriff further stated that, at any given time, ten to fifteen inmates under sentence to the house of correction were "classified" to the GPS program and, therefore, were not being housed in a facility maintained by the sheriff.
has not served the sentence imposed by the court, but has been released pursuant to the GPS program.
3. Discussion. "A sentencing judge is given great discretion in determining a proper sentence." Commonwealth v. Lykus, 406 Mass. 135, 145 (1989). The judge has the authority to decide the length of a defendant's sentence, provided that it is within the limits set forth by the statute under which the defendant has been convicted. See id. See also Commonwealth v. Power, 420 Mass. 410, 413 (1995), cert. denied, 516 U.S. 1042 (1996). Further, in the exercise of her sentencing discretion, the judge may consider a variety of factors including the defendant's behavior, family life, employment history, and civic contributions, as well as societal goals of "punishment, deterrence, protection of the public, and rehabilitation." Id. at 414. See Commonwealth v. Celeste, 358 Mass. 307, 310 (1970); Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 586 (1991).
Generally, however, once a judge has sentenced a defendant, authority over the defendant passes from the judicial branch to the executive branch of government in that the defendant becomes subject to the sheriff's control. [Note 14] The Legislature has conferred on the sheriff broad authority over the house of correction. General Laws c. 126, § 16, states that "[t]he sheriff shall have custody and control of the jails in his county, and, except in Suffolk County, of the houses of correction therein, and of all prisoners committed thereto . . . and shall be responsible for them." See Sheehan, petitioner, 254 Mass. 342, 345 (1926) ("The execution of sentences according to standing laws is an attribute of the executive department of government"); Commonwealth v. Dascalakis, 246 Mass. 12, 20 (1923) ("The execution of the sentence belongs to the executive department of government" and is not "a judicial function").
imposed by the Legislature. Here, the sheriff continues, it was appropriate to assign Donohue to the GPS program, a program that has continued uninterrupted for nearly twenty years, after Donohue had served 195 days within the physical confines of the house of correction. The sheriff argues that this type of confinement has not been prohibited by the Legislature. Moreover, he asserts that the judge took an overly restrictive view of the statutory framework governing the sheriff's authority to manage the inmates under his control.
We are not required to resolve in this case whether the sheriff is correct that art. 30, or his broad statutory authority to determine the place of confinement of inmates within his custody and control, permits him generally to "confine" an inmate in his home before the inmate has served the committed portion of his sentence at the house of correction or other correctional facility. We reach this conclusion because, in our view, G. L. c. 127, §§ 48, 49, and 49A, provide specific legislative authorization for the GPS program and for the placement of Donohue, or similarly situated inmates, in it.
under [§ 48] outside correctional facilities. Such rules and regulations shall include provisions for reasonable periods of confinement to particular correctional facilities before a committed offender may be permitted to participate in such programs and provisions for feeding, housing and supervising participants in such programs in such manner as will be calculated to maintain morale and prevent the introduction of contraband to the facility." Certainly education, training, and employment programs that house qualified inmates in their own homes, designed to allow a gradual, but supervised, reintegration into society, strictly monitored by a GPS bracelet, would foster morale and prevent the introduction of contraband into the correctional facility.
portion of his sentence. [Note 20] See G. L. c. 127, § 49 (committed offender enrolled in any program outside correctional facility "shall remain subject to the rules and regulations of the correctional facility and shall be under the direction, control and supervision of the officers thereof during the period of his participation in the program").
4. Conclusion. The portion of the October 2, 2007, order of the Superior Court directing the sheriff to keep Donohue in custody in the house of correction until he has served the sentence imposed by the court is reversed. The portion of the October 2, 2007, order directing the sheriff to return to custody in the house of correction any other committed offender sentenced by a judge of the Superior Court who has not served the sentence imposed by the court, but has been released pursuant to the GPS program, is vacated.
COWIN, J. (dissenting). In concluding that the sheriff has statutory authority to conduct the GPS program, the court acknowledges that the release program at issue here must be authorized by the Legislature. Once that acknowledgment has been made, the court's position becomes untenable because applicable statutes provide no such authorization. Contrary to the view of the court, these statutes are not merely silent on the subject; they expressly forbid the release that took place in this case.
342 (1992). An agency regulation or policy "that is contrary to the plain language of the statute and its underlying purpose may be rejected by the courts." Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 646 (2000).
Here, Donohue was sentenced to two and one-half years in the Billerica house of correction, eighteen months to be served, with the balance suspended for four years, pursuant to G. L. c. 90, § 24, see ante at n.6. Thus being sentenced, Donohue became a "committed offender" as defined in G. L. c. 125, § 1 (c), which states that a "committed offender" is "a person convicted of a crime and committed, under sentence, to a correctional facility." A "correctional facility" is defined by statute as "any building, enclosure, space or structure used for the custody, control and rehabilitation of committed offenders and of such other persons as may be placed in custody therein in accordance with law." G. L. c. 125, § 1 (d). The sheriff may release committed offenders from correctional facilities under limited circumstances set forth expressly in G. L. c. 127, §§ 48, 49, and 86F, the statutory scheme governing work and education release. [Note Dissent-1], [Note Dissent-2] No language in these provisions (or any others) permits the release program as presently implemented.
and promulgate rules and regulations regarding programs established under [§ 48] outside correctional facilities. Such rules and regulations shall include provisions for reasonable periods of confinement to particular correctional facilities before a committed offender may be permitted to participate in such programs and provisions for feeding, housing and supervising participants in such programs in such manner as will be calculated to maintain morale and prevent the introduction of contraband to the facility."
The key language here is that "before" a committed offender is allowed to participate in any program outside of a correctional facility, the commissioner must arrange for "reasonable periods of confinement to particular correctional facilities." That is, one precondition for participation in any outside program is that housing must be prepared for the participating inmates in "particular correctional facilities" during their involvement in that program. It follows that housing outside of "correctional facilities" is not authorized. [Note Dissent-3] This interpretation is reinforced by language referring to housing the inmate "in such manner as . . . to . . . prevent the introduction of contraband to the facility." If the inmate could live at home, there would be no need for a requirement that he be housed in a manner to prevent him from bringing contraband into the institution.
or having been ordered by the commissioner or such administrator to return to the correctional facility, neglects or refuses to do so, said inmate shall be held to have escaped [from prison] . . . ." G. L. c. 127, § 49.
This provision addresses only two sites, the correctional facility and the place of employment, from which an inmate in an outside program may escape. No mention is made of another place, such as an inmate's house, where the inmate may be located for a sufficiently lengthy period of time and from which he might attempt to escape. Read in the context of the first quoted provision, the escape clause further supports the interpretation that the Legislature did not intend inmates in outside programs to be released into their own homes for the duration of their sentences. Last, §§ 48 and 49 apply to both county jails, as is the case here, and State prisons. It is highly unlikely that the Legislature would have intended the release of significant numbers of convicted criminals, including those serving time in State prison, into the community without so much as a mention of it in a detailed and comprehensive statutory framework.
Instead, the statutes contemplate that an inmate taking part in an education, training, or employment program outside a correctional facility will continue to be housed in a facility while participating in the program. Donohue's personal residence is not a "facility." [Note Dissent-4] See Commonwealth v. Morasse, 446 Mass. 113, 120 (2006) ("Being restricted to one's home is not the equivalent of being incarcerated"). The GPS program, by releasing a committed offender into his own home, thus exceeds the sheriff's authority under governing law.
its places of confinement. Solution of the problem invites various possible, albeit unattractive, remedies. The government can raise and expend funds to expand facility space, with the accompanying political strain of deciding in whose localities such expanded facilities shall be located. Alternatively, we could reduce certain sentences, thereby confining some convicted individuals for shorter periods of time. We could decriminalize certain offenses, thus removing those who commit these offenses from the incarcerated population altogether. There may well be other strategies, but I am certain that there are none that will be noncontroversial.
In our system of government, policy decisions of this nature are assigned to the Legislature. That body may act on its own or in response to initiatives of the executive branch. When the Legislature fails to act, it may be tempting for judges or executive officials to redress the vacuum and make the policy decisions themselves. This only creates further evasion of responsibility and public confusion regarding the roles of the different branches of the government.
Today, the court acknowledges that the release in question cannot lawfully take place without statutory authorization. Because the court, as well as the relevant executive branch officials, apparently believe that such release is in the public interest, they locate in the applicable statutes authorization that simply is not present. Indeed, for the reasons I have stated, the statutes fairly read forbid inmate release. It is not for us as judges to approve or disapprove of policy decisions; our function, within constitutional limits, is to apply the statutes as written. Accordingly, I respectfully dissent.
[Note 1] The predecessor to the GPS program, known as the "day reporting system," was first implemented by the sheriff in 1988. For a discussion of the expansion of the day reporting system, see note 12, infra.
[Note 2] Policy and Procedure 467 has been revised since the October 1, 2007, order of the Superior Court. None of the changes affects this appeal.
[Note 3] Policy and Procedure 467 states that it is consistent with 103 Code Mass. Regs. § 952.01 (1999), a regulation promulgated by the Department of Correction that relates to "community release programs," operated by county correctional facilities. See Policy and Procedure 467.02 (2007).
[Note 4] The meaning of this particular criterion is unclear from the language of Policy and Procedure 467.05.
[Note 5] In a letter dated December 17, 2007, the Secretary of the Executive Office of Public Safety (Secretary), informed the sheriff that, in light of the current litigation challenging the GPS program, he had reviewed the use of electronic monitoring programs by county sheriffs' departments throughout Massachusetts. The Secretary told the sheriff that the Middlesex County sheriff's office is one of at least seven sheriffs' offices that uses and relies on a home confinement program. The Secretary stated that, "[a]lthough the details of the programs vary, there are some consistent practices from county to county." He pointed out that each program "has strict procedures for classification and participation," with "public safety being an utmost concern," and that the programs "require much more than electronic monitoring." The Secretary further stated that a home confinement program, as an alternative to institutional incarceration, "is an effective tool for the successful re-entry of inmates into the community while minimizing the public safety concerns associated with overcrowding in prisons and releasing inmates who are not prepared to reintegrate into society." In the Secretary's view, the discontinuation of electronic monitoring programs could be devastating to overcrowding problems and to societal reentry efforts. This December 17, 2007, letter from the Secretary was not part of the record on appeal, but the Attorney General assented to its inclusion in the appendix to the sheriff's brief.
[Note 6] General Laws c. 90, § 24 (1) (a) (1), states that for a conviction of operating a motor vehicle while under the influence of alcohol, third offense, "the defendant shall be punished by . . . imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by . . . imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence . . . ."
[Note 7] A "correctional facility" is statutorily defined as "any building, enclosure, space or structure used for the custody, control and rehabilitation of committed offenders and of such other persons as may be placed in custody therein in accordance with law." G. L. c. 125, § 1 (d). A "committed offender" is "a person convicted of a crime and committed, under sentence, to a correctional facility." G. L. c. 125, § 1 (c).
[Note 8] The mittimus directed, in pertinent part, as follows: "We therefore COMMAND YOU, The said Sheriffs and Deputies to remove the said Edward Donohue to said House of Correction, Billerica and we command you, the Master of said House of Correction Billerica to receive the said Edward Donohue and the said Edward Donohue to imprison and employ in an[d] within the precincts of said House of Correction Billerica for and during the time of 2 1/2 [years] -- 18 months to be served[,] balance suspended for 4 years."
[Note 9] Article 30 of the Massachusetts Declaration of Rights provides: "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."
[Note 10] In her decision, the judge noted that the sheriff had questioned the court's authority, in the first instance, to issue the September 20 order to show cause and the September 21 order of confinement, in light of the fact that judgment already had entered in Donohue's criminal case and there was no actual controversy before the judge. The judge wrote that "there is no doubt that the ability to enter orders is necessary to the very existence of the court and essential to the maintenance of the court's authority," quoting Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 447 (1997). See Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 631 (1985) ("Courts have traditionally issued orders and injunctions directing public officials to carry out their obligations"). Further, she continued, because the court's inherent judicial powers "have their basis in the Constitution, regardless of any statute, every judge must exercise his inherent powers as necessary to secure the full and effective administration of justice," Querubin v. Commonwealth, 440 Mass. 108, 115 (2003). The judge stated that the imposition of a sentence in a criminal case is "a core judicial function." United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995), citing Ex parte United States, petitioner, 242 U.S. 27, 41 (1916). As such, the judge concluded that, under established law, the court had the authority to issue orders necessary to enforce the sentence entered as a final judgment in this case. Cf. Commonwealth v. Dascalakis, 246 Mass. 12, 20 (1923) ("Doubtless the court has power to enforce the execution of sentence by appropriate process, but execution of sentence is in its essence an executive or ministerial and not a judicial function"). The sheriff has conceded that a court has the authority to order the Middlesex County sheriff's office to perform its legal obligations. See Attorney Gen. v. Sheriff of Suffolk County, supra at 629. Because we agree with the judge's jurisdictional analysis, we need not review this particular aspect of the case in further detail.
[Note 11] A "[c]ommunity release facility" is defined as "[a] correctional facility that provides housing and programming for participants of Work Release, Pre-Release or Alcohol Treatment Programs." 103 Code Mass. Regs. § 902.01 (1999). Cf. note 7, supra. The term "[w]ork release" is defined as "[a] formal arrangement sanctioned by  G. L. c. 127, §§ 48, 49, 49A, and 86F [,] whereby an inmate is permitted to maintain approved and regular employment in the community." 103 Code Mass. Regs. § 902.01.
[Note 12] The basis of the sheriff's motion for reconsideration was his contention that the judge's October 2, 2007, order conflicted with past orders of the Superior Court. More specifically, in March, 1989, two inmates of the house of correction filed a class action lawsuit in the Superior Court seeking to ameliorate the overcrowded conditions of their confinement which, they alleged, violated their rights under the Fifth and Eighth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights (cruel or unusual punishment). The plaintiffs also sought a declaration that various conditions at the house of correction violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. As a preliminary matter, the plaintiffs sought injunctive relief. In his memorandum and order entered April 30, 1990, a judge in the Superior Court stated that the plaintiffs did not satisfy all of the necessary requirements for preliminary relief. Nonetheless, he concluded that the plaintiffs did establish a substantial likelihood of success on the merits and a showing of irreparable harm with respect to many of their allegations. Consequently, as part of his order, the judge directed the sheriff to "use his best efforts to enlarge the use of the day reporting system." Subsequently, a memorandum of understanding dated October 1, 1993, was entered by a different judge in the Superior Court in accordance with the April 30, 1990, determination. It reiterated that "[t]he sheriff will continue to use his best efforts to enlarge the use of the day reporting program." The memorandum also provided that it "shall not be interpreted to restrict, supersede, or otherwise alter the constitutional, statutory or regulatory responsibilities of any of the defendants named in this action." The judge construed this memorandum of understanding as an agreement for judgment, and he stated that, for all purposes, it would constitute the final judgment in the case. See Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977). See also Ansara v. Regan, 276 Mass. 586, 589 (1931) (parties to agreement for judgment are "bound by the legal effect of the judgment as if it were the outcome which a court would have reached had the issues disclosed by the pleadings been fully tried and decided"). As to the applicability of this agreement for judgment to the present case, the judge here concluded that the sheriff's argument that such judgment gave the sheriff the authority to release committed inmates in violation of his constitutional and statutory responsibilities was without merit. The 1993 agreement for judgment is not determinative of the appeal now before us.
[Note 13] Donohue did not file a brief in this appeal or participate in oral argument. We acknowledge the amicus brief filed by the Committee for Public Counsel Services, Massachusetts Correctional Legal Services, and Inmate Legal Services for the Middlesex County Sheriff, and the amicus brief filed by thirteen Massachusetts Sheriffs and the Massachusetts Sheriffs Association.
[Note 14] The office of sheriff is part of the executive branch of State government. See Opinion of the Justices, 353 Mass. 801, 802 (1968).
[Note 15] Based on the judge's order that Donohue serve eighteen months of his two and one-half years sentence, he would be eligible for parole once he served one-half of the committed portion of his sentence, or nine months. See 120 Code Mass. Regs. § 200.02(1) (2003).
[Note 16] Contrary to the position advocated by the dissent, we do not construe the language of G. L. c. 127, § 49, to mean that a committed offender must be confined to a particular correctional facility during the time that the offender is participating in education, training, or employment programs established under G. L. c. 127, § 48, outside a correctional facility. The language of § 49 only states that regulations pertaining to these programs "shall include provisions for reasonable periods of confinement to particular correctional facilities before a committed offender may be permitted to participate in such programs" (emphasis added). In other words, a committed offender will be required to spend some time inside a house of correction before that offender will be considered for participation in a program outside the correctional facility. Otherwise, a defendant ordered to serve, for example, a sentence of two and one-half years, would be immediately eligible for participation in such programs because he is eligible for parole within fifteen months. The dissent's interpretation of § 49 is inconsistent with our reading of the statutory scheme as a whole.
[Note 17] We note that "[i]n the case of a committed offender who participates in any program outside a correctional facility established under [§ 48], the time spent in such participation shall be credited toward the serving of his sentence in the same manner as though he had served such time within the facility" (emphasis added). G. L. c. 127, § 49. Contrast Commonwealth v. Morasse, 446 Mass. 113, 120-121 (2006) (recognizing that pretrial confinement to one's home on electronic bracelet is not equivalent of being incarcerated and does not qualify for sentencing credit).
[Note 18] A Department of Correction regulation defines "[w]ork [r]elease" as "[a] formal arrangement sanctioned by  G. L. c. 127, §§ 48, 49, 49A, and 86F whereby an inmate is permitted to maintain approved and regular employment in the community." 103 Code Mass. Regs. § 902.01.
[Note 19] Another type of program set forth in regulations pertaining to county correctional facilities is a "[c]ommunity [r]elease [p]rogram." See 103 Code Mass. Regs. § 952.01 (1999). The term "[c]ommunity [r]elease" is defined as "[r]elease into the community of an inmate in order to participate in work release, educational/vocational release, or [a] furlough program in accordance with the general laws and regulations governing such programs." 103 Code Mass. Regs. § 902.01. The regulation pertaining to "[c]ommunity [r]elease [p]rograms" states that "[t]he facility shall provide a program of release preparation which may include temporary release programs for all eligible inmates to prepare them for parole or discharge from the facility." 103 Code Mass. Regs. § 952.01.
[Note 20] General Laws c. 127, § 49, states that "[i]f any inmate who participates in any program outside a correctional facility established under the provisions of [§ 48] leaves his place of employment, or having been ordered by the . . . administrator [of a county correctional facility] to return to the correctional facility, neglects or refuses to do so, said inmate shall be held to have escaped from said prison or institution . . . ." G. L. c. 127, § 49. See Policy and Procedure 467.11 (escape). The language of § 49 plainly suggests a legislative intent to treat an offender enrolled in a program outside a correctional facility as nevertheless constructively within a penal institution for escape purposes. See Commonwealth v. Best, 381 Mass. 60, 63 (1980) (upholding conviction of escape where inmate was participating in work release program because, under G. L. c. 127, § 86F, inmate who leaves place of employment shall be held to have escaped from his place of confinement). Cf. Commonwealth v. Hughes, 364 Mass. 426, 429 (1973) (for purposes of escape, "prisoner is as much in the custody of the correctional facility when he is on furlough as when he is physically within its walls").
[Note 21] The judge below expressed concern that the continuation of the GPS program could affect the administration of justice because uncertainty about the length of time a defendant actually will serve could affect a judge's decision to sentence an inmate to the house of correction, rather than to a State prison. There is always some degree of uncertainty, from a judge's perspective, about the precise amount of time that a defendant will serve within the physical confines of a house of correction. The judge will not know, for instance, whether a defendant may be paroled after having served only one-half of his sentence. Moreover, in all likelihood, it will be the seriousness of the offense and the defendant's criminal background that will dictate whether a defendant is sentenced to a house of correction or a State prison. See generally DuPont v. Commissioner of Correction, 448 Mass. 389, 394 & n.12 (2007) (differentiating sentence to house of correction from sentence to State prison).
[Note Dissent-1] Committed offenders may also be released into the community pursuant to G. L. c. 127, § 90A, which governs furloughs and temporary releases, and which is not at issue in this case.
[Note Dissent-2] "Community release" is defined in general by 103 Code Mass. Regs. § 902.01 (1999) as the "[r]elease into the community of an inmate in order to participate in work release, educational/vocational release, or furlough program in accordance with the general laws and regulations governing such programs." Any community release program would thus be governed by G. L. c. 127, §§ 48, 49, 86F, and 90A.
[Note Dissent-3] The use of the word "before" is intended to mean that this is a condition that must be fulfilled before an inmate may participate in a program, i.e., the commissioner or administrator must arrange for the inmate's continued incarceration before the inmate can be sent to a program. In contrast, the court's argument that "before" does not impose a condition, but only means that the inmate must be incarcerated for some time before he is eligible for a program, see ante at n.16, makes no sense. That interpretation would only repeat what the statute provides at the beginning of § 49, i.e., that the commissioner or administrator may permit an inmate "who has served such a portion of his sentence . . . that he would be eligible for parole within eighteen months" to participate in outside programs. G. L. c. 127, § 49.
[Note Dissent-4] A "[f]acility" is defined as a "place, a building (or part thereof), a set of buildings (to include the staff and services), that is used for the lawful custody or treatment of individuals. A facility may be owned or operated by public or private agencies." 103 Code Mass. Regs. § 902.01.
[Note Dissent-5] See ante at n.5, where the court states the view of the Secretary of Public Safety that "the discontinuation of electronic monitoring programs could be devastating to overcrowding problems and to societal reentry efforts."


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Vacating a default judgement in New York, as we have previously discussed, is not always easy. Often it is up to the discretion of the trial court. There are certain times, however, when the defaulting party may not need a reasonable excuse for failing to appear, as long as it does not wait too long to ask the court to excuse the default. This can include parties, such as corporate defendants, who have failed to receive a summons and complaint at least partially through their own fault.
A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.
Accordingly, the decision by Special Term to consider CPLR 317 was not an abuse of discretion, and reversal by the Appellate Division “on the law” was improper. Nor can we conclude, on the factual findings before us, that vacatur of the default under CPLR 317 was in any event an abuse of discretion. A defendant who meets the requirements of that section normally will be entitled to relief, although relief is not automatic, as the section states that a person meeting its requirements “may be allowed to defend the action” (emphasis added; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 317.08). Thus, denial of relief under CPLR 317 might be appropriate where, for example, a defendant’s failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice (see, Rifenburg v. Liffiton Homes, 107 A.D.2d 1015, 486 N.Y.S.2d 529, supra; Cascione v. Acme Equip. Corp., 23 A.D.2d 49, 258 N.Y.S.2d 234).
We would also note that even under CPLR 5015, there is no per se rule that a corporation served through the Secretary of State, and which failed to update its address on file there, cannot demonstrate an “excusable default”. Rather, a court should consider, among other factors, the ***12 length of time for which the address had not been kept current.
Resolution of disputes on the merits rather than by default is favored, and to that end a liberal policy toward opening defaults exists (see, e.g., Picinic v. Seatrain Lines, 117 A.D.2d 504, 508, 497 N.Y.S.2d 924; Bishop v. Galasso, 67 A.D.2d 753, 412 N.Y.S.2d 214). Service on a corporation by delivering process to the Secretary of State is not personal delivery to the corporation or to an agent designated under CPLR 318 (Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116). The lack of a reasonable excuse for not maintaining a correct address with the Secretary of State does not preclude CPLR 317 relief (Marquette Co. v. Norcem, Inc., 114 A.D.2d 738, 739, 494 N.Y.S.2d 511). With these several principles in mind, we reverse.
It is undisputed that “no one from Jon-Bar was occupying” the premises to which service was mailed, namely, 47 Seawane Road, East Rockaway, New York, and that Jon-Bar did not in fact receive the notice sent. Because Jon-Bar has asserted a prima facie meritorious defense, the preconditions of CPLR 317 have thus been met. Given that vacatur of a default is a discretionary function (see, 1 Weinstein-Korn-Miller, N.Y.Civ.Prac. ¶ 317.08), it is relevant to note that plaintiff was aware of Jon-Bar’s address, it being recited in the mortgage instrument as RD 1, Box 615, Stone Ridge, New York, as well as the address of Jon-Bar’s president at Inwood, *874 Long Island, who had been in plaintiff’s employ until just a few months before the foreclosure suit was commenced and thus plaintiff could have effected personal service (see, Winters v. Albany Executive House Apts., 102 A.D.2d 985, 986, 477 N.Y.S.2d 794; Brac Constr. Corp. v. Di-Com Corp., 51 A.D.2d 740, 379 N.Y.S.2d 483). Finally, there is no indication in the record that Jon-Bar’s default was deliberate or intentional.
The easiest way to serve a summons and complaint upon a Defendant corporation authorized to do business in New York often is by serving the summons and complaint on the Secretary of State of the State of the New York. That, however, sometimes is not enough. If a Plaintiff does in fact know the correct address for the corporation, and it can put the summons and complaint into the hands of a corporate representative, it might be better to do that. Especially given the court’s proclivity towards deciding cases on the merits, actually trying to ensure that the summons and complaint is put into the Defendant’s hands is probably a good idea. Doing the right, rather than the expedient, thing, often can make it easier to win in the end.

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112 MERWIN AVENUE, LLC ET AL. v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD.
The plaintiffs, 112 Merwin Avenue, LLC (LLC) and the Joan Abeshouse Grossman Family Limited Partnership (LP), appeal from the decision of the defendant, the Planning and Zoning Board of the city of Milford (board), which had denied the plaintiffs’ applications for a special exception and coastal site plan review.
The plaintiffs appealed from the board’s decision to the Superior Court. Both the plaintiffs and the defendant filed trial briefs. In addition, the plaintiffs filed a reply brief. The trial was held on May 14, 2007. At the trial, all counsel proposed that the court and counsel visit the site of the property that is the subject of this litigation. This court agreed, and all counsel and the court visited the site on Thursday, May 24, 2007, at approximately 8:00 a.m.
General Statutes § 8-8(b) governs appeals from decisions of planning and zoning boards to the Superior Court. “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” (Internal quotation marks omitted.)Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
(1991); or “by the production of the original documents or certified copies from the record.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
In the complaint, the plaintiffs allege that they own the subject CT Page 14627 properties. (Appeal, ¶¶ 1 and 2.) They allege that they are both classically aggrieved, as owners of the subject properties whose application to use those properties has been denied; (Appeal, ¶ 15); and statutorily aggrieved, as each plaintiff owns land that abuts land involved in the decision of the board; (Appeal, ¶ 16). At trial, the plaintiffs introduced two deeds: plaintiffs’ exhibit 1, which shows that the plaintiff LP is the owner of 106 Merwin Avenue, and plaintiffs’ exhibit 2, which shows that the plaintiff LLC is the owner of 112 Merwin Avenue. “[A] plaintiff’s status as owner of the property establishes that she has `a specific personal and legal interest in the subject matter of the decision.’ The fact that the agency’s decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that `this specific personal and legal interest has been specially and injuriously affected.'” (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). From this undisputed evidence, therefore, the court finds that the plaintiffs are classically aggrieved by the commission’s decision. As the court finds that the plaintiffs are classically aggrieved, it is not necessary to consider whether they are also statutorily aggrieved.
Notice of the commission’s decision was published in the New Haven Register on June 23, 2006. (ROR, Item ii.) The plaintiffs commenced this CT Page 14628 appeal on July 6, 2006, within fifteen days from the date of publication, by service of process upon the board, by leaving two copies of the summons, citation and appeal with the city clerk of the city of Milford, Alan H. Jepson. (Marshal’s Return.) Accordingly, the court finds that this appeal is timely and that service of process was proper.
“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). “In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record.” (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
“Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [i]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). “Because the interpretation of the regulations presents a question of law, [the court’s] review is plenary.” (Internal quotation marks omitted.) Id., 21.
The parties agree that the board has not stated a formal, collective reason for its decision in the record. “When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission’s decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must CT Page 14629 be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).
In support of their appeal, the plaintiffs make the following three arguments: (1) The application should have been approved because it meets all of the requirements in the statutes and regulations; (2) the nonconforming use of the subject properties as multifamily dwellings has not been abandoned; and (3) the board acted illegally and arbitrarily in disregarding the only expert evidence in the record regarding flood control. These arguments are addressed in turn.
The plaintiffs first argue that their special exception application satisfied all of the requirements in the statutes and regulations and that, accordingly, it should have been approved. Specifically, they argue that § 7.3.5 of the Milford zoning regulations requires approval of special exception applications by owners of legal nonconforming two-, three-or four-family dwellings to extend, enlarge or alter such structure or use if the applicants satisfy the minimum development standards for the zone. They maintain that the application for a special exception does not turn on whether the application is special or exceptional.
The defendant board maintains that it properly denied the plaintiffs’ application because it does not comply with § 6.2 et seq. of the zoning regulations. It argues that § 6.2.1 prohibits enlargement, extension, movement or change of nonconforming uses beyond the footprint of the existing nonconforming structure. It further notes that § 6.2.1 provides: “No non-conforming use of a structure shall be extended to occupy land outside such structure or space in another structure.” Milford Zoning Regs., Art. VI, § 6.2.1. The defendant contends that the proposal violates this prohibition because it requires the merger of the CT Page 14630 two lots at 106 and 112 Merwin Avenue. Further, it notes that § 6.2.6 of the regulations requires a nonconforming structure to be restored within two years of its partial destruction and that such restoration may be made only if 50 percent or less of the structure has been destroyed; it argues that because more than 50 percent of the structure at 112 Merwin Avenue was destroyed, the plaintiffs are prohibited from restoring the property regardless of whether the nonconforming use had been abandoned. Moreover, it argues, the three-family structure located at 112 Merwin Avenue was partially destroyed more than ten years prior to the plaintiffs’ submission of their application, which exceeds the two-year limitation for restoration set forth in § 6.2.6.
The defendant also argues that the board has broad discretion in determining whether an application for special permit or special exception meets the requirements set forth in the regulations. It maintains that § 7.3.5 of the regulations does not supercede § 6.2.6, and that § 7.3.5 simply authorizes owners of nonconforming multifamily structures to apply for special exceptions, but does not require the board to approve such applications. It also contends that § 7.3.5 does not apply to the plaintiffs’ property because its right to continue the nonconforming use has been extinguished pursuant to § 6.2.6. It further maintains that the property at 106 Merwin Avenue does not meet the minimum requirements of the SFA-10 district, specifically the minimum lot width of fifty feet, because that parcel is merely thirty-eight feet wide. They note that the plaintiffs’ proposal would combine the two parcels into one lot, arguably meeting this requirement, but that combining these lots would violate the prohibition against expanding a nonconforming use or structure set forth in § 6.2.1. It notes that the regulations contain no provision that would allow the plaintiffs to combine their land to meet the requirements of the SFA-10 district for the purposes of § 7.3.5.
In their reply brief, the plaintiffs note that only one of the three units at 112 Merwin Avenue was destroyed in the explosion, not two. They further maintain that issues of abandonment or merger of lots are irrelevant. They contend that § 7.3.5 of the regulations grants a specific right to owners of legal two-, three-or four-family dwellings to extend, enlarge or alter such nonconforming lot, structure or use. Finally, they argue that they are not prohibited from combining their parcels to meet the standards for the SFA-10 district. They maintain that their application meets the standards of § 7.3.5 and that the board had no discretion to deny it.
Before the court can address the issue of whether the plaintiffs were otherwise entitled to the special exception, the court first must CT Page 14631 address whether the plaintiffs’ nonconforming use had been extinguished. Section 7.3.5 provides in relevant part that “[a]n owner of a legal nonconforming Q, 3, or 4-family dwelling, office or restaurant use of land or structure . . . shall be authorized to make application for a Special Exception to extend, enlarge or alter said legal non-conforming lot, structure or use, provided that the applicant meets the minimum development standards of the SFA-10 District for a 2, 3 or 4-family use . . .” (Emphasis added.) As this regulatory provision applies only to owners of legal nonconforming uses or structures, the court must determine whether the plaintiffs’ properties meet this requirement. The parties do not dispute that the structures on these parcels were legal nonconforming structures in the past, but they disagree as to whether the nonconforming use of 112 Merwin Avenue has been extinguished. Accordingly, the court must consider whether the nonconforming use of that property has been abandoned.
The plaintiffs contend that the record does not contain evidence demonstrating that their nonconforming use of the subject property has been abandoned under § 6.2.7 and that the board did not make a finding of abandonment. They further argue that the specific requirements of § 7.3.5, which authorizes expansion of nonconforming uses, supercede those of § 6.2.6, pertaining to restoration, and § 6.2.7, pertaining to abandonment of nonconforming uses. They contend that abandonment is a question of fact and that the board could not reasonably have concluded from the facts in the record that the plaintiffs intended to abandon their nonconforming use. They maintain that the evidence shows that 106 Merwin Avenue has been continuously occupied as a multifamily dwelling for over thirty years, that 112 Merwin Avenue was partially destroyed through no fault of the owner, and that the owner testified that she never intended to abandon the nonconforming use of that property. The defendant counters that the plaintiffs have abandoned their nonconforming use of the property at 112 Merwin Avenue.
Under the clear and unambiguous language of § 6.2.6 of the regulations, if the court were to limit its analysis to the application of that provision to the evidence in the record, the plaintiffs’ right to continue their nonconforming use of 112 Merwin Avenue has been extinguished. Although the record supports the plaintiffs’ assertion that one unit, not two, was destroyed in the gas explosion in 1993; (ROR, Item r, p. 5: Leo Carroll, p. 26: Joan Grossman); and, consequently, the provision in § 6.2.6 of the regulations, prohibiting CT Page 14632 restoration of nonconforming structures where more than 50 percent of the nonconforming structure has been destroyed, would not apply to the property at 112 Merwin Avenue, the record contains substantial evidence to support the board’s assertion that the structure was not restored within two years of sustaining the damage. In fact, the record shows that it has not been restored for approximately thirteen years, between when the damage occurred and submission of the present application. Consequently, under the two-year time limitation set forth in § 6.2.6, the plaintiffs’ right to restore and continue that nonconforming use has been extinguished.
Nevertheless, as the defendant concedes, zoning “regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use . . .” General Statutes § 8-2. Consequently, despite the language in § 6.2.6 of the regulations prohibiting the restoration or continuation of the nonconforming use of 112 Merwin Avenue solely on the basis of the plaintiffs’ nonuse for more than two years, the court must consider the plaintiffs’ argument that they nevertheless have not abandoned their nonconforming use of the property.
“A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must b in existence at the time that the zoning regulation making the use nonconforming was enacted . . .
“Nonconforming uses are protected by the express language of General Statutes § 8-2. To be sure, [i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate . . . While [t]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . legally existing nonconforming uses are property rights vested in the land . . . [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations . . .
(2006). “Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987). Section 6.2.7.1 of the regulations establishes that “[t]he term abandonment, as used herein, shall mean the voluntary discontinuance of a use, when accompanied by an intent not to re-establish such use . . .” Milford Zoning Regs., Art. VI, § 6.2.7.1. “Thus, under the [Milford zoning] regulations, two criteria must be satisfied in order to establish abandonment of a nonconforming use: (1) that there was a voluntary discontinuance of the use; and (2) that the voluntary discontinuance was accompanied by an intent not to reestablish that use.” Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 82, 674 A.2d 855 (1996).
Although no testimony was presented at any of the zoning hearings to directly contradict Grossman’s testimony, the defendant counters that the assessor’s field card for the property describes the property as vacant land and notes that it is taxed as such. (ROR, Item I.) The board argues that the record contains no evidence that the plaintiffs ever attempted to challenge the assessment and that they “have reaped the benefit for property assessed as vacant land . . .” (Defendant’s brief, p. 10.) It notes that the record shows that the property has been a “boarded up derelict structure that has not been used for any purpose for years.” (ROR, Item z.) Moreover, it notes that pursuant to § 6.2.7.1 (1) of the regulations, “[a]ny failure to take all reasonable steps to CT Page 14634 resume the non-conforming use with reasonable dispatch in the circumstances, including advertising of the property for sale or lease” constitutes “prima facie evidence of intent to abandon” a nonconforming use.
(1993). Accordingly, the court must determine based on the conflicting evidence in the record whether substantial evidence in the record would support a finding by the board that the plaintiffs intended to abandon their nonconforming use of 112 Merwin Avenue.
The record contains no evidence that the plaintiffs challenged the description of the property in the tax assessor card as vacant land, and the lower assessment and taxes that were concomitant with that description. (See ROR, Item I.) Although it may be contrary to human nature to bring to the attention of tax assessors or tax collectors the fact that property is being undervalued, as that would undoubtedly bring the undesired result of increasing the property tax assessment, allowing the property to be described as vacant land would support a finding that the plaintiffs intended not to reestablish their nonconforming use. If the plaintiffs intended to reestablish the use, they could have challenged that assessment. Moreover, the record is devoid of any evidence, other than Grossman’s conclusory assertions, showing any specific actions that the plaintiffs took to reestablish their nonconforming use of their property prior to submission of the present application. This inaction by the plaintiffs, therefore, constitutes substantial evidence of their intent to abandon the nonconforming use.
Although Grossman’s testimony could arguably constitute evidence of her lack of intent to abandon the nonconforming use of the property at 112 Merwin Avenue, the court’s role is not to substitute its judgment for that of the board, but merely to examine the record to determine whether it contains substantial evidence in support of the board’s decision. Moreover, even if the board had credited Grossman’s testimony that she had taken affirmative steps to preserve the nonconforming use, that testimony does not state specifically what she did or whether those efforts were more than sporadic or intermittent, especially in light of the evidence showing that the property has been unoccupied for roughly thirteen years, and that, other than their prior submission of an identical application which had been withdrawn and subsequently re-filed as the present application; (ROR, Item a); this application is the only CT Page 14635 such application that has been filed by the plaintiffs concerning these properties during that thirteen-year period. (ROR, Item b.) For these reasons, the defendant’s implicit finding that the nonconforming use of the property at 112 Merwin Avenue has been abandoned is supported by substantial evidence in the record.
The plaintiffs also argue that § 7.3.5 of the zoning regulations supercedes § 6.2.6 and that § 6.2.7 is inapplicable. The plaintiffs contend that not only was there no abandonment, but the express and specific authorization contained in § 7.3.5 renders abandonment a non-issue. The plaintiffs contend that the only requirements for approval of their application are (1) that the nonconforming use predates the adoption of any municipal regulation rezoning the area to single-family residences and (2) that the applications meet the minimum standards for the SFA-10 district.
The simple answer to this argument is that § 7.3.5 is applicable only to legally valid nonconforming uses or structures, and, as discussed above, such use of 112 Merwin Avenue has been abandoned. The plaintiffs cannot successfully argue that the property is nonconforming while maintaining that the nonconformity is not subject to the legal analysis of abandonment. The court has found that the nonconforming use of 112 Merwin Avenue was abandoned. As such, the property does not qualify for a special exemption under § 7.3.5 of the zoning regulations.
Moreover, the plaintiffs do not contend that 106 Merwin Avenue would quality for a special exception without being combined with 112 Merwin Avenue. Accordingly, the appeal is not sustained on the ground that the plaintiffs are entitled to approval of their application.
The plaintiffs also contend that the board disregarded the only expert evidence available regarding the issue of flood control, a technically complex matter outside the expertise of the board members. They maintain that this expert presented evidence or testimony showing that the proposed project would bring the property up to present day flood control standards and would not significantly alter the flooding characteristics of the site or of adjacent properties. They contend that their decision, therefore, was not based on the evidence in the record and that the board acted arbitrarily in disregarding that evidence. The defendant does not address this argument in its brief. Because the court has concluded that the nonconforming use of 112 Merwin Avenue has been abandoned, and that, consequently, it does not qualify for a special CT Page 14636 exception under § 7.3.5 of the regulations, the issue of whether the board inappropriately disregarded expert evidence on flooding issues is irrelevant and will not be addressed.
The decision of the board is supported by substantial evidence in the record. Therefore, the court dismisses the plaintiffs’ appeal.
(1996) (“[i]ssues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided”).
 Although the plaintiffs maintain that § 7.3.5 of the Milford zoning regulations supercedes § 6.2.7 of the regulations, the language of the regulations does not support this argument. Section 6.2.7 provides in relevant part: “Any non-conforming use which has been abandoned shall not thereafter be re-established. Any structure or land, CT Page 14637 or structure and land combination which was formerly devoted to a non-conforming use which has been abandoned, shall not again be devoted to any use other than those uses which are allowable in the Zoning District in which it is located . . .” Section 7.3.5 provides in relevant part: “An owner of a legal non-conforming 2, 3, or 4-family dwelling . . . use of land or structure which preexisted the original adoption of the Zoning Regulations by the City of Milford, or are non-conforming as a result of the adoption of subsequent zoning regulations shall be authorized to make application for a Special Exception to extend, enlarge or alter said legal non-conforming lot, structure or use, provided that the applicant meets the minimum development standards of the SFA-10 District for a 2, 3 or 4-family use . . .” Contrary to the plaintiffs’ assertion, § 7.3.5 does not supercede § 6.2.7 because these two sections do not conflict. Section 6.2.7 pertains to abandonment of nonconforming uses, while § 7.3.5 pertains to expansion of such uses.
 Further, § 7.3.5 provides in relevant part: “An owner of a legal non-conforming 2, 3, or 4-family dwelling . . . shall be authorized to make application for a Special Exception . . .” Thus, this provision does not require the board to approve all such applications, but merely authorizes such an owner to apply.

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Bowing to budgetary constraints, the 2008 session of the Rhode Island General Assembly effectively terminated the Rhode Island Historic Tax Credit Program for all projects for which an application was not filed prior to January 1, 2008.
Rhode Island’s Historic Tax Credit Program, established pursuant to R.I. GEN. LAWS §§ 44-33.2-1 to -6, provided a generous credit against Rhode Island state income taxes in an amount equal to thirty percent (30%) of qualified rehabilitation expenditures (QRE’s) incurred in rehabilitating and placing in service certified historic structures. The tax credits were assignable, and therefore, saleable, allowing developers to sell the tax credits to generate equity for rehabilitation development projects.
Since its effective date, January 1, 2002, the historic tax credit program enrolled 277 projects through June, 2007, representing an aggregate investment of $1.53 billion in QRE’s, according to a study released by Grow Smart Rhode Island on behalf of the 57 member Coalition for Neighborhood & Economic Renewal. See Grow Smart Rhode Island, “Rhode Island Historic Preservation and Investment Tax Credit, Economic & Fiscal Analysis” (2007)(Grow Smart Rhode Island is a state-wide non-profit organization which promotes alternatives to suburban sprawl and urban decay). The study concluded that as of June, 2007, the program is generating thousands of jobs and approximately $2.5 billion in economic activity for a state-estimated investment of $460 million through the year 2012. Id. Projects have been certified in 23 Rhode Island communities. Id.
But the program became a victim of its own success, with the Governor and the General Assembly focusing on the annual cost to the State Treasury. For that reason, the program was effectively ended by the General Assembly, providing that eligibility in the program is limited to applicants who submitted a Part I application to be certified as a certified historic structure by the Rhode Island Historical Preservation and Heritage Commission through its historic tax credit application process prior to January 1, 2008. See 2008 R.I. Pub. Laws 6 (2008-H8016 Substitute A, AN ACT RELATING TO TAXATION-HISTORIC STRUCTURE-TAX CREDITS) (the “Amendments”); R.I. GEN. LAWS § 44-33.2-3(a)(2008). The thirty percent (30%) tax credit is now available only for projects that were completed on or before December 31, 2007. The Governor had proposed that projects participating in the tax credit program would also be subject to a limitation on the amount of credits available, but this retroactive approach was rejected by the General Assembly.
While the new legislation allowed applicants who certified projects prior to January 1, 2008 to participate in the program, the benefits of the program were substantially reduced. The tax credit was reduced from thirty percent (30%) minus a 2.25% processing fee, for an effective credit of 27.75%, to an effective credit of twenty-two percent (22%). The legislation establishes a processing fee which effectively is netted against the credit, since the credit is a percentage of QRE’s and the processing fee is a percentage of QRE’s. Accordingly, under the new program a developer may select either a twenty-five percent (25%) credit and pay a three percent (3%) processing fee, a twenty-six percent (26%) credit and pay a four percent (4%) processing fee, or a twenty-seven percent (27%) credit and pay a five percent (5%) processing fee, for an effective net credit of twenty-two percent (22%) in each instance. R.I. GEN. LAWS § 44-33.2-3(b)(1)(A)-(C)(2008). The different level of credits versus fees was designed to give developers some flexibility in controlling their expenditures prior to receipt of the credit.
Regardless of the level of credit selected, two and one quarter percent (2.25%) of estimated QRE’s was payable as a processing fee on May 15, 2008, with the remaining fee to be paid by March 5, 2009 (i.e. .75% of QRE’s, 1.75% of QRE’s, or 2.75% of QRE’s depending on the level or processing fee selected). Payments made after March 5, 2009 accrue interest as set forth in R.I. GEN. LAWS § 44-1-7. R.I. GEN. LAWS § 44-33.2-3(b)(1)(D).
A unique feature of the Amendments is that an applicant participating in the new program enters into a contract with the Rhode Island Department of Revenue, through its Division of Taxation. The purpose of the contract is to provide the guaranty of the State to the applicant that, in fact, the tax credit would be available from the State. See R.I. GEN. LAWS § 44-33.2-3 (b)(1). The development community insisted on this contractual guaranty, given the prior proposals for retroactive elimination of the tax credit. The development community was concerned that without this guaranty, the amount of credits could be subsequently reduced.
The contract specifically provides, at Section 12(a), that if the applicant “has secured a Certification of Completed Rehabilitation from the Commission, the Tax Division guarantees delivery of one hundred percent (100%) of the amount of the Tax Credit to the Applicant, pursuant to R.I. GEN. LAWS §44-33.2-3(b)(1), as a party that incurred Qualified Rehabilitation Expenditures for the Substantial Rehabilitation of a Certified Historic Structure…or to the Assignees of the Applicant�.” R.I. Division of Taxation, Agreement for Historic Tax Preservation Investment Tax Credit § 12(a).
The contract further provides that it “constitutes a binding and enforceable agreement between the Applicant and the Tax Division” and that the agreement “and the rights granted hereunder shall be enforceable by the Parties through all remedies available at law and in equity.” Id. at § 12(c).
The Amendments specifically provide that both the contract and the credit itself may be assigned to an affiliate, without the consent of the State. For purposes of the contract assignment section, the term “affiliate” is defined as “any entity controlling, controlled by, or under common control with such person, firm, partnership, trust, estate, limited liability company, corporation (whether for profit or non-profit) or other business entity.” R.I. GEN. LAWS § 44-33.2-3(b)(1)(F).
The Amendments also allow assignment of the contract to an entity that is providing the QRE’s, but this assignment requires the consent of the Division of Taxation when assigned to a non-affiliate of the applicant, “which approval shall not be unreasonably withheld”. Id. Accordingly, a developer selling a project to someone that would actually be incurring the QRE’s would be allowed to assign the contract with the State to the new developer in order to facilitate the rehabilitation of the project. With regard to the assignment, in the event that a developer is selling the project and taking purchase money financing, the developer-assignor may wish to obtain some security for the payment of the remaining portion of the processing fee due March 5, 2009, and may also want to impose requirements to ensure that the new developer will do nothing that endangers the tax credits, such as violating the applicable regulations or failing to follow requirements for proper historic rehabilitation of the structure, in the event that the developer has to exercise its rights under its mortgage and take back the property.
With further regard to assignment of the contract with the State, no express assignment of the contract to a lender is allowed, and such an assignment would appear not to be explicitly permissible under the Amendments. However, the applicant could perhaps assign all its rights to the lender, including its rights to assign the contract, and this would appear to allow the lender which takes over the project to cause the contract to be assigned to a new developer who would incur the QRE’s to complete the rehabilitation of the project.
With respect to the assignment of the credit itself, this right was unchanged by the Amendments and remains available to tax credit owners who seek to sell the credit in a private transaction for consideration. R.I. Gen. Laws § 44-33.2-3(e).
At the time that the applicant enters into its contract with the State, it must estimate the QRE’s it anticipates incurring in its rehabilitation project. It is this estimate which forms the basis for calculation of the processing fee and the tax credit. For example, estimated QRE’s of $2,000,000 would result in a $60,000 processing fee and a $500,000 credit if a 25% credit was selected. What happens if the estimates are poor, and the QRE’s are either higher or lower? What happens if the applicant abandons the project?
The Amendments provide that the tax credit shall be the lesser of (i) the amount of tax credit identified in the contract with the Division of Taxation on or before May 15, 2008, and (ii) the actual QRE’s multiplied by the tax credit percentage selected by the taxpayer on or before May 15, 2008. R.I. GEN. LAWS § 44-33.2-3(b)(1). Accordingly, if the developer selected a 25% credit and paid a processing fee of $60,000 based upon QRE’s estimated to be $2,000,000, expecting a net credit of $440,000 ($2,000,000 x 25%= $500,000 – $60,000 (3% processing fee)), and the QRE’s actually incurred were $1,000,000, the actual credit payable would be $250,000 ($1,000,000 x 25% = $250,000). In the event that the QRE’s were higher than had been estimated at the time the contract with the State is entered, the developer would receive the lower level of credit (i.e. the credit actually paid for with the processing fee).
That being said, all is not bleak for the developer. The Amendments provide that if the processing fee paid is greater than the amount of actual qualified rehabilitation expenditures multiplied by the percentage processing fee chosen, the differential shall be refunded to the applicant without interest. R.I. GEN. LAWS § 44-33.2-3 (b)(1)(E). So in the case where the actual QRE’s were less than the estimated QRE’s which formed the basis of the processing fee, the amount of processing fee overpaid is refundable. Id. In the prior example, where estimated QRE’s were $2,000,000 and actual QRE’s were $1,000,000, and the credit payable (at the 25% level) was $250,000, one half of the $60,000 processing fee would be refunded.
The contract with the State addresses the second question. The contract, at Section 5(b), provides that refund of the processing fee shall be granted if the applicant has abandoned the project and indicates in writing to the Tax Division that it no longer desires a tax credit. R.I. Division of Taxation, Agreement for Historic Tax Preservation Investment Tax Credit § 5(b).
Finally, the Amendments established a historic preservation tax credit trust fund which is to be maintained outside of the State general fund “for the purpose of reserving funds for tax credits issued under this section.” R.I. GEN. LAWS § 44-33.2-4.1. All processing fees are to be deposited in this tax credit trust fund, and the legislation further provides that the General Assembly “may cause sufficient amounts to be deposited into the fund equal to the amounts of credits under contract no later than September 1, 2008.” Id. (emphasis added). Note that the General Assembly is not obligated to make such deposits. The General Assembly also authorized the Governor to borrow such funds as are necessary to guaranty all obligations incurred under the contracts with the State. Id.
At the time the legislation was signed into law by the Governor on April 12, 2008, it was unknown how the legislation would be received by the development community, although representatives of the development community did work closely with the General Assembly leadership in crafting the Amendments. Based upon information provided by Grow Smart Rhode Island, it appears that many developers opted to salvage their credits rather than try to develop the projects without them. See Grow Smart Rhode Island, Chairman’s Report For June 19, 2008. According to the Grow Smart report, processing fees were paid on 82 projects in 18 different communities (with 48 of these projects being located in Providence). Id. Bristol had the highest number of projects (5) but Central Falls ranked second in the total aggregate dollar value of projected QRE’s. Applicants in the revised program estimated an aggregate of slightly over $1 billion in QRE’s, which would obligate the State to pay approximately $255,000,000 in credits.Id.
Grow Smart has also made it a legislative priority to seek rejuvenation of the tax credit program in the next session of the General Assembly.
We will see if history does, in fact, repeat itself.
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