In addition to efforts made by the Federal Government and the Attorneys General of several states to encourage more mortgage modification plans, there have also been efforts at the local legislative level.  Since basic property rights are primarily established at the state level, local legislative efforts have had a more direct impact on the foreclosure process than recent federal efforts.

The first major legislative response to the foreclosure crisis in Massachusetts occurred n 2007.  The 2007 legislation addressed a number of issues, including more carefully regulating sub-prime mortgages in an effort to avoid the trap caused by the practice of offering sub-prime borrowers a low "teaser" rate for the first few years of a mortgage loan with a much higher rate kicking in in subsequent years.  The legislation also provided for additional funding to more closely supervise mortgage brokers and lenders. However, the two more significant changes that addressed the concerns of the typical homeowner were a lengthening of the payment default period and a subtle change in the rights of a homeowner after foreclosure.

With respect to the default period, mortgage loans traditionally had a thirty (30) day default period.  That meant that if a homeowner missed a mortgage payment, the bank could "default" the homeowner and begin the process of foreclosure thirty (30) days later.  The 2007 legislation extended the default period to ninety (90) days so that a homeowner who missed a payment had ninety (90) days to make up the missed payment or payments before the bank could start foreclosure proceedings. The other change related to the status of the homeowner after foreclosure.

Traditionally, after the foreclosure of a home, the homeowner had no further rights as a tenant and whoever purchased the home at the foreclosure sale could start eviction proceedings immediately.  The 2007 legislation made the former homeowner a "tenant at will" which means that he had all the rights of a normal tenant and could not be evicted until after his tenancy had been terminated. Terminating a tenancy typically requires a (30) day notice to quit before eviction proceedings could begin, which effectively gave the homeowner a two to three month grace period before the former homeowner could be physically evicted from the premises.

The 2007 legislation obviously did not resolve the mortgage foreclosure crisis and in 2010 the legislature made additional changes in an effort to assist struggling homeowners.  The 2010 legislation again extended the default period for missed mortgage payments and provided that a homeowner would have 150 days to make up any missed mortgage payments unless the mortgage lender went through a mediation process with the homeowner to consider alternatives to foreclosure, such as a mortgage modification plan.

The 2010 legislation also again extended the rights of homeowners who had lost their homes in foreclosure, providing that they could only be evicted for just cause unless the purchaser at the foreclosure sale had entered into a purchase and sale agreement with a good faith third party purchaser.  Of course, the former homeowner would still be required to make monthly rent payments to the new owner of the property while that former homeowner occupies the property.

Since the 2007 and 2010 changes haven’t had a significant impact on the foreclosure picture, the legislature is again considering changes to the law. The current proposal would make mediation with a view to mortgage modification mandatory before a bank or other lender could begin the foreclosure process.  Although bills to that effect have been passed by both the Massachusetts House and Senate, they have been sent to a legislative conference committee to address differences in the respective versions.  It is uncertain if a compromise version will be adopted before the current legislative session ends on July 31, 2012.

by Henry Lane, Attorney
Lane & Hamer, Whitinsville, MA

Failed Promise of Mortgage Modification

As the economy continues to struggle, the avalanche of mortgage foreclosures has continued unabated.  In past year, a mortgage lender's right to foreclose was largely theoretical because somewhat more conservative lending standards typically ensured that homeowners had at least some equity in their homes and therefore, even if they lost jobs or otherwise fell on hard times, they were able to sell the property for at least the amount of the mortgage prior to any foreclosure action.

In more recent years as lending standards became more lax and many homebuyers were able to obtain financing for one hundred percent of the purchase price of their homes, the equity cushion disappeared.  Furthermore, as property values declined, even homeowners who had a significant down payment or had built up equity by paying down the principal balance on a mortgage loan discovered that their equity had disappeared.  Homeowners who then ran into financial difficulty were no longer able to sell their homes for the amount due on the mortgage and, therefore, had little recourse but to allow their bank to complete the foreclosure process.  Occasionally homeowners who owed more on their mortgage than their home was worth were able to arrange so-called "short sales" with their bank accepting less than the full amount owed on the mortgage; but, in many cases the homeowners discovered arranging a short sale was not worth the time and effort required, particularly if the bank was still going to hold them responsible for any deficiency in the amount the bank received from the sale.

As more and more people in the middle class found themselves unable to keep up with their mortgages, various legal and legislative efforts were undertaken in an attempt to keep people in their homes.  Unfortunately, despite some marginal success, the various legal and legislative efforts have been of limited utility.  As with so many social problems, an effective solution to the mortgage foreclosure crisis requires balancing the interests of several competing constituencies.  Any solution that mandates mortgage modification risks imposing ruinous losses on financial institutions and/or the public treasury.

One of the first major efforts to address the issue was the Bankruptcy Reform Act of 2005, which was designed to tighten up the bankruptcy provisions.  Among the proposals for inclusion in the Bankruptcy Reform Act was a provision that would have allowed a bankruptcy court to modify a homeowner's mortgage to reflect the current market value of their home.  So, if a homeowner purchased a home for $300,000.00, financed it with a mortgage loan of $280,000.00 but a subsequent drop in real estate values reduced the value to $200,000.00, the homeowner could request the bankruptcy court to modify the mortgage balance to $200,000.00 and reduce the monthly payments accordingly.  Financial institutions naturally opposed the proposal since they considered it to be somewhat one sided in that it was available to homeowners even if they were able to make the payments originally agreed to and didn't allow the banks to recover their losses if the value of the property increased in future years.  Congress ultimately rejected the loan modification provisions for first mortgages although it did provide that individuals filing bankruptcy under Chapter 13 (a so-called wage earner plan) agreeing to make partial payments on their debts, could wipe out a second mortgage or equity line of credit if there was not enough equity in the home to support it.  Despite the fact that Congress ultimately did not give the bankruptcy court authority to modify first mortgages, there have been other legal efforts to encourage loan modifications.

At the federal level, two major efforts were the Making Home Affordable program created by the Financial Stability Act of 2009 and the February 2012 settlement with five national mortgage servicers that encourage banks and other lenders to modify loan terms for qualified home owners who are struggling to make mortgage payments.

Cooperation by banks and other lenders in these efforts would appear to be motivated by the reality that it does not make economic sense for a bank to go through the expense of foreclosing on a mortgage if the homeowner is willing to make payments that reflect the current value of the property.  Obviously, after foreclosure, a bank will only be able to sell the foreclosed home for its market value.  If the current homeowner is willing and able to make payments based on the reduced market value, the bank can realize the same economic benefit without the risk or expense of an actual foreclosure, and the homeowner may be able to maintain good credit.

Despite the fact that these efforts at mortgage modification seem to make economic sense for both banks and homeowners, the programs have not yet been notably successful. For many people the prospect of having to make significant mortgage payments for another 20 or 30 years with a modified mortgage to keep a home in which they have no equity and which may actually be continuing to lose value is not very attractive.  Since most banks and other lenders are not willing or permitted to pursue homeowners for loan deficiencies after foreclosing, many people have apparently decided that it makes more sense to simply walk away and start over.  Unfortunately, this increase in abandoned properties creates public safety problems and further decreases neighborhood property values making it more difficult to stabilize the housing market.

For more information on federal loan modification programs see www.makinghomeaffordable.gov and www.nationalmortgagesettlement.com.

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Our last column concerned a recent case that dealt with the abandonment of "Old" Thompson Road in 1826. In the actual town meeting vote, "Old" Thompson Road is referred to as the road from the Sly house to Capt. Bates.  Further research indicates that Stephen Sly lived on what is now Ash Street where he owned a significant farm before he died in 1773, shortly before the Revolution.  The Bates family homestead was on the new Thompson Road.

In addition to information we found in real estate records, we also know something about Stephen Sly's legal affairs from probate records.  Probate records in Worcester County are well maintained and Stephen Sly's original Will and probate records are still held among the records of the Worcester Probate and Family Court, where they are available for inspection by any member of the public upon request.  Examination of the Will and probate records reveal how little the probate process has changed in the last 235 years and how much society has changed.  The basic probate process of filing the Will, appointing an executor or administrator, and filing an inventory of real and personal property was largely unchanged from 1773 until March 1, 2012, when Massachusetts implemented a new Probate Code that updated much of the archaic practice and terminology.

Among the dramatic social changes reflected in the Will of Stephen Sly is the treatment of slaves.  Although slavery is usually associated with the American South, it was not abolished in Massachusetts until1783.  Stephen Sly apparently had a slave and his Will provides:

My Will is that my Negro Boy, Prince, shall, if he behaves himself pretty well, be set at liberty and go free, when he shall arrive to the age of twenty-one years, until which time he shall serve my wife but the said Prince shall after he is set free pay unto my son, John, yearly, and every year four Spanish Milled Dollars, while he is able to labor… and if the said Prince shall fail… then my son, John, shall take him and sell him for life.

Fortunately, since he was under the age of 21 in 1772 when Stephen Sly wrote his Will, Prince probably lived to see slavery abolished in Massachusetts.  In light of current circumstances, it is hard to believe both that slavery was common in Massachusetts at the time of the Revolution  and  that Spanish money would have been considered a stable reserve currency in 1773;  but obviously before independence was declared, modern banking and our own national currency were established, foreign currency was apparently the best option.  On the other hand, with Spanish multinationals acquiring the Commerce Insurance Company and Sovereign Bank, maybe Spanish currency will once again attain economic significance in Webster.

A case recently concluded in the Massachusetts Land Court focused on one of Webster's ancient ways known as "old" Thompson Road and highlights one of the complexities of real property rights in New England villages.

The earliest comprehensive map of the Town of Dudley was created in 1795, when it encompassed most of what is now the Town of Webster.  Dudley was a classic New England hilltop village in 1795, with a meeting house on Dudley Hill in the area now dominated by Nichols College.  The major roads radiated from the center of Dudley to provide access to neighboring communities.   The original road to Thompson appears to have begun in Dudley center and run southeast along what is now Dudley Hill Road, Indian Hill Road and Carpenter Road to the French River. After bridging the river it continued along the northerly portion of what is now Ash Street to a point on what is now the "new" Thompson Road near Hubbard Hospital.

Shortly after the 1795 map was prepared, New England began its rapid transition from an agricultural economy to a more industrial economy, resulting in dramatic shifts in population and commerce.  With the shift in economic activity to the villages along the rivers and lakes there was no longer a compelling need for a through route from the old center of Dudley to Thompson, Connecticut, along the pre-colonial route.

Good transportation was essential for both an agricultural and an industrial economy, but it was also a major expense, so early town meetings spent significant amounts of time on issues relating to the layout, acceptance, maintenance and discontinuance of public ways.  Since road maintenance costs consumed a significant portion of municipal budgets, towns regularly discontinued ways that were lightly used or had been replaced by alternate routes.

In 1826, the Dudley town meeting determined that the portion of the "old" Thompson Road between Ash Street and the new Thompson Road was no longer necessary and voted to discontinue it, which meant the Town had no further responsibility for its maintenance.  A new comprehensive map of the Town of Dudley was created in 1830, shortly before the Town of Webster was incorporated as a separate municipality in 1832. On the 1830 map the discontinued portion of "old" Thompson Road has disappeared although several new routes to Thompson, Connecticut are shown.

Discontinuance of a public way eliminates the requirement for the municipality to maintain the way and consequently creates a problem for landowners along the way.  Initially, of course, the fact that the municipality no longer maintains a way, does not result in the way disappearing and many discontinued ways continued to be used as private ways or farm roads and logging roads.  As industrialization in small villages continued and farms were gradually abandoned, use of the discontinued ways necessarily diminished and many deteriorated into cart roads or paths through the woods.

In more recent years, as land values increased dramatically, there has been considerable interest in using discontinued ancient ways for access to interior parcels of land and also to meet the requirement for frontage on a way incorporated into most modern zoning codes.  A real estate developer can significantly reduce his development costs if he can use an ancient way for access to interior land as opposed to constructing an entirely new road that meets contemporary subdivision standards.   Even if the ancient way requires upgrading and paving to meet access requirements, a developer can still realize significant savings over the cost of developing a roadway through raw land.

As a result of the increase in development, there has been a significant amount of litigation over the last several decades concerning what rights, if any, abutting landowners have in discontinued public ways and whether such ancient ways can be used to satisfy the requirements for access and frontage. In the case of "old" Thompson Road the owner of approximately 75 acres of land with frontage on the discontinued section of "old" Thompson Road between Ash Street and Route 395 filed a law suit against a neighboring landowner in an effort to establish a right to use a portion of "old" Thompson Road that passed through the neighboring property for access.  Since the possibility of access to the "new" Thompson Road was cut off by the construction of Route 395, the suit was filed against the abutting land owner to the west.  Unfortunately, the interior landowner failed to establish a right to use the discontinued portion of "old" Thompson Road in the Land Court case and he presumably is left to find access in another location.

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Henry Lane, Attorney
Lane & Hamer PC
Whitinsville, MA

Recent attempts by the Town of Webster to limit the use of Webster Lake by commercial vessels took another interesting turn recently when the Office of the Attorney General disapproved of a bylaw voted by the town meeting on October 17, 2012.

As we have previously noted, Webster Lake is a great pond and therefore, subject to some interesting legal provisions originating in the Colonial Ordinances of 1641 to 1647.  Under the Colonial Ordinances, great ponds were available to all of the citizenry for fishing and boating as well as other uses such as ice harvesting.  As Massachusetts and particularly eastern Massachusetts became more densely populated and industrialized, inevitable conflicts arose concerning access to and use of the waters of great ponds,  and matters in one town came to a head in the 1860's.   The dispute concerned Jamaica Pond which was a great pond originally located in the Town of Roxbury (now a part of Boston).  The first disputes concerned operations of a grist mill which was located at the outlet of the pond and ground grain for local residents.

Apparently, over time the grist mill business grew and began using more and more water, lowering the level of Jamaica Pond, which resulted in complaints that excessive amounts of water were being used by the grist mill to grind grain being imported from Boston and elsewhere.  Various regulations were adopted by the Town to limit the use of water by the grist mill for grinding "foreign grain", which appeared to resolve the matter for a time.

More serious problems arose when competing ice companies began fighting with the Town about the right to cut ice for refrigeration.  The Town voted to impose a fee on every ton of ice removed from the pond.  When the largest ice company refused to pay the fee, the Town went to court accusing the company of stealing 8,000 tons of ice.   The case ended up in the Massachusetts Supreme Judicial Court  which affirmed the ongoing vitality of the Colonial Ordinances relating to great ponds, and, accordingly, that the Town of Roxbury did not own Jamaica Pond or the ice on the pond and therefore, was not entitled to sell the ice.

On the other hand, the Court also ruled that "towns may regulate the use of ponds by reasonable bylaws adopted and approved according to the statute…".  Although the Supreme Judicial Court reaffirmed the historic rights of the citizenry to utilize great ponds , it also recognized the need to regulate competing uses so that chaos did not ensue.  However, the Court also explicitly recognized that there is an established procedure for adopting local bylaws.

In Webster's case, the final procedural requirement is that bylaws adopted by the town must be approved by the Attorney General. M.G.L. c. 40 § 32.  We assume that the requirement that town bylaws need to be approved by the Attorney General was a reflection of the fact that in the early days of the Commonwealth many small towns did not have access to sophisticated legal counsel.  Therefore, it was quite possible for a small town to adopt bylaws that were clearly unconstitutional or violated some other statutory requirement or limitation.  Presumably cities were expected to have legal departments that were sufficiently familiar with municipal law to insure that ordinances adopted by the city council complied with constitutional or statutory requirements.

In this case, the Webster bylaw adopted on October 17, 2012, attempted to regulate the time within which commercial vehicles could operate on Webster Lake.  In disapproving that bylaw, the Attorney General determined that although towns generally have the right to control the use of great ponds by bylaw, that right has been legislatively limited to great ponds that are less than 500 acres in size (M.G. L. c. 131 § 45).  Since Webster Lake is approximately 1200 acres in size, the legislature has given regulatory authority to the Department of Environmental Protection.

More research would be required to determine why the legislature decided that the Department of Environmental Protection rather than the local municipality should regulate the use of great ponds that are more than 500 acres in size, but it may have decided that in the case of very large lakes the Department is better able to balance the historic interests of all of the citizens of the Commonwealth as a whole against the interests of the immediate community and lakefront property owners.

Of course, although the Attorney General's office has substantial experience with municipal matters, its decisions are not necessarily infallible; its decisions approving or disapproving municipal bylaws are subject to review by the courts.

By Henry Lane, Attorney
Lane & Hamer PC, Whitinsville, MA 

In 1995, the Department of Environmental Protection adopted extensive revisions to Title V of the State Environmental Code. Title V regulates the construction and operation of subsurface sewerage disposal systems which are often referred to simply as septic systems. The changes adopted in 1995 established more stringent engineering standards for newly constructed septic systems and also introduced a new requirement for the inspection of systems serving homes and businesses that were being sold. Under the new regulations whenever a home or business served by a septic system is being sold the system must be inspected by an engineer or licensed subsurface sewage disposal system inspector. The regulations established a program for licensing inspectors and also established criteria for system inspections.

The inspection system was established for the purpose of protecting groundwater from contamination by the effluent from failed systems but the inspection criteria are substantially less demanding than requirements for a new system. More importantly, the inspection criteria do not include testing to determine whether or not the system is adequate to handle any anticipated demand. Once a system has been inspected, a report is prepared and the inspector indicates whether the system passes or fails. The report is filed with the local board of health which reviews the results and follows up to ensure that failed systems are repaired. A copy of the report is also generally provided to each prospective purchaser and often to the financial institution financing the purchase. If the report indicates that the system has failed the purchaser and or the financial institution financing the purchase will generally require that the system be repaired prior to closing or that sufficient funds are placed in escrow to cover the cost of repairs after the closing.

Although the Title V inspection system was established for the sole purpose of ensuring that failed septic systems were not directly contaminating groundwater, in common practice it has become a substitute for a more thorough inspection by prospective purchasers. Typically homebuyers will arrange for a home inspection before entering into a purchase and sale agreement, but will not have the septic system independently inspected, relying instead on the Title V inspection. Furthermore, homebuyers do not inquire about any problems with the system or consider how use of the system may change when they move into the home.

It is not unusual for an old system to be marginally functional and pass a Title V inspection but be totally inadequate for use by new owners. For example an elderly couple or single person may find an existing septic system to be adequate for the limited amount of effluent they generate, but the new family with three teenage children may find the same system totally inadequate to handle two loads of wash and eight showers every day. So it is not unusual for a purchaser to find that although the septic system serving their new home passed a Title V inspection, it fails shortly after closing and needs to be replaced. The bad news is that not only is the new owner faced with an expense that could range up to $30,000 but there is no recourse against anyone else.

Despite what one might think, the new owner does typically not have a claim against the inspector, because the inspector is only responsible for determining whether or not this system met any failure criteria on the day of the inspection. The inspector does not warrant or represent that the system will continue to function or will be adequate for any future use. Furthermore the inspector is typically hired by the seller so the inspector does not have a contractual relationship with the buyer which would support a legal claim. Similarly the new owner also does not have a claim against the seller unless the seller has made specific misrepresentations about the adequacy or operation of the system. In many transactions today the buyer may never even meet the seller and even if the buyer and seller do meet, the standard purchase and sale agreements in common use expressly provide that the seller is making no particular representations about the condition of the property and that the buyer is relying on their own inspections with regard to the condition of the property. That leaves only the brokers who also are generally protected from liability unless they have actual knowledge of a defect or deficiency in the system.

One might suggest that brokers could be more diligent in explaining the inadequacy of a Title V report and recommend that the purchaser obtain a more thorough inspection of subsurface sewage disposal systems. In practice, we suspect that many brokers are happy to allow a Title V inspection report to substitute for a more thorough inspection in order to avoid adding even more complication to an already overly complicated closing process. In short, subsurface sewage disposal systems are one more example of a situation in which the buyer must beware.

Henry Lane, Attorney 
Lane & Hamer, PC
Whitinsville, MA

On the 25^th anniversary of the issuance of Webster Lake's most controversial waterways license, a little review is warranted. Much of the law relating to the use of water bodies in Massachusetts dates back to an era when rivers were the major source of energy to power local industry and harbors were a critical feature in the transportation infrastructure.

Lakes and ponds had economic value in colonial times for their fish and for ice harvesting purposes but later became primarily important as water power reservoirs.  Since lakes and ponds did not have major economic importance, laws relating to the use of waterways were largely focused on coastal harbors and major rivers with great ponds a bit of an afterthought. As a result, there was a functional regulatory vacuum with respect to small docks and piers on local water bodies, including Webster Lake.  But as time went on and recreational use of lakes became more intense, more attention was paid to the still limited statutory provisions relating to docks and piers.

The first and simplest provision in M.G.L. c. 91 § 10A, relates to "temporary floats and rafts" and authorizes a local harbormaster to grant permits for anchoring such seasonal structures.  As previously noted, the use of the term "harbormaster" presupposes a level of activity generally not associated with private structures used for docking small craft for recreational purposes.  Nevertheless, the limited authority which in towns like Webster resides in the Board of Selectmen, has been used to grant annual permits for structures in Webster Lake.

In addition to the temporary permits that may be granted by the harbormaster, M.G.L. c. 91 § 13 provides for a multi-year waterways license for more permanent structures such as wharfs, piers and walls in great ponds. By regulation, licenses for private docks on residential lakefront property are available under a special simplified procedure.  The license is issued by the Department of Environmental Protection and requires a bit more formality with respect to the application and also provides some standards with respect to setbacks from abutting property lines and interference with navigation.

The statutory authority expressly provides that the D.E.P. license and jurisdiction extends to the waters of any great pond below the natural high water mark which always raises the interesting question of who has the authority to regulate Webster Lake to the extent that it exists beyond its natural boundaries.  Anecdotal evidence suggests that Webster Lakes' current elevation is approximately five (5) feet above its historic natural elevation as a result of damming improvements made to enhance its capacity as a reservoir for powering Cranston Print Works.  Assuming a five (5) foot difference in elevation, the current edge of the water line may extend 20 to 30 feet horizontally beyond the natural high water mark depending on the slope of the land under the water in any particular location.  If the horizontal extent of the high water mark is currently 20 or 30 feet beyond the natural high water mark, it would appear that D.E.P. does not have statutory jurisdiction to license piers or wharfs that are constructed on that land.  However, despite the apparent lack of statutory authority, the Department of Environmental Protection through regulations, assumes that authority although it has conceded by regulation that it can only charge "occupation" fees for licensed docks to the extent that they are located below the natural high water mark of a great pond.

Twenty-five years ago, the D.E.P. issued a Waterways License for the Treasure Island Marina. The staff of the Department of Environmental Protection initially issued a waterways license for the marina consisting of 81 aluminum floating docks with capacity for 136 boat slips in a "secluded area" of the lake.  The Board of Selectmen took a firm stand against the construction of the marina and appealed from the grant of the license. Any person who is "aggrieved" by a decision to issue or deny a waterway license is entitled to appeal for an adjudicatory hearing to the Commissioner of the Department of Environmental Protection.    The hearing is much like a trial although slightly less formal and is typically conducted by a hearing officer appointed by the Commissioner.  The Commissioner must then review the evidence produced at the adjudicatory hearing and issue a ruling which is then subject to further review in the courts.

Among the more interesting findings by the Commissioner of the Department of Environmental Protection in 1987,  was that prior to the Treasure Island Marina application, there were less than five (5) licensed piers or docks on Webster Lake, that there was no harbormaster and that no temporary mooring permits had been issued.  A casual observation would suggest that prior to Treasure Island's application, there were significantly more than five (5) piers or docks on the lake but apparently none were constructed with the benefit of a license or permit. Nevertheless, the Town argued that the lake was already crowded with boats during the summer months and that additional boats would result in a public safety hazard.

However, after hearing all the evidence the Commissioner decided that the public benefit from providing better access to the lake outweighed any potential hazard resulting from increased traffic and the grant of the license was affirmed.  Now looking back 25 years, it appears that despite the concern expressed by the municipality 25 years ago, the construction of the Treasure Island Marina has not resulted in any of the anticipated concerns and may actually be contributing to public safety by providing the Webster Police Department with better access to the lake.

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Henry J. Lane
Attorney, Lane & Hamer LLC

Recent news reports concerning the bankruptcy of Direct Air and the cancellation of service from the Worcester Airport is a current reminder of the difficulties facing transportation companies.  Although airlines, including Direct Air and American Airlines as well as a number of other so-called legacy carriers, have recently gone through bankruptcy or other restructuring proceedings, they are only the latest in a long history of transportation company failures.

Starting after World War II and continuing into the 1950's and 1960's, it was the railroads that failed, including the Boston and Maine Railroad, the New York-New Haven and Hartford Railroad, the New York Central and other northeastern New England railroads, several of which served the Webster and Dudley area.

Prior to the railroads, it was the street railway companies, many of which failed in the 1920's and 1930's with the advent of the automobile; and, before the street railway companies were the canal companies, which lasted for a very short time before being upstaged by the railroads.  But the first of the major transportation company failures were the turnpike road corporations.

Prior to the American Revolution, the local economy consisted almost entirely of rural agriculture centered around small villages with very little commerce occurring between villages or regions.  Since rural communities were largely self-sufficient, there was very little need for transportation between villages and towns and the roads and paths linking towns were very rudimentary.  Beginning with the advent of industrialization in the very late 18^th and early 19^th century, the ability to transport raw materials and finished goods became much more important.  However, small rural communities and existing governmental structures were not prepared to meet the need for regional transportation systems, so the New England states adopted a model borrowed from England and created public service companies to construct roads linking communities and regions.   The model was essentially the first iteration of what has developed into the modern corporation with private shareholders raising capital from private investors to build toll roads throughout the region.

The corporations were typically individually chartered by the state legislature and authorized to construct a toll road from a specified city or town to another city or town.  The turnpike corporations were also given the power of eminent domain, which allowed them to take private property for the purpose of building their roads.  The delegation of powers of eminent domain became common in later years to facilitate the construction of railroads, reservoirs, pipe lines, and public utilities, although it has become very controversial in more recent years when it has been used to take private property to facilitate urban renewal and commercial development.

Toll gates on early toll roads were similar to a turnstile with pointed ends on the rotating bars which became known as turnpikes.  The resulting road was originally known as a turnpike road, which name was shortened to "'turnpike "in common usage.  Dozens of turnpikes were built in the early years of the 19^th century including the Central Turnpike which linked Webster and Dudley to Boston on the east and Hartford on the west.  The Central Turnpike Corporation was chartered by the Massachusetts Legislature in 1824, and the Central Turnpike was constructed in subsequent years beginning service in about 1830.

Like most of the turnpikes constructed in that era, the Central Turnpike may have been an important transportation resource to the budding industrial enterprises in Webster and Dudley, but it was an economic failure.  By 1836, the Central Turnpike Corporation had abandoned its eastern end, but continued to collect tolls in Webster until 1839.  After the Corporation disbanded, the road was made available to the local municipalities that wished to maintain the portion of the road within their limits.

The Central Turnpike was largely accepted by the municipalities through which it passed.  The route of the turnpike is still largely intact and is still called Central Turnpike in the Town of Sutton.  In the westerly part of Sutton the route turns southwesterly and travels along what is now known as Joe Jenny Road in Oxford, passing through a small corner of Douglas and into the Town of Webster where it is currently known as Sutton Avenue.  From Sutton Avenue it continued past the Cranston Print Works along East Main Street through the Village of Webster, crossed the French River and into Dudley along West Main Street and eventually to the state line.  A Connecticut charter authorized the construction of a toll road from the state line to Tolland, where it connected to an existing route to Hartford .

In the 180 years that have passed since the Central Turnpike was laid out and constructed, its function as the major regional transportation link has been largely superseded.  Railroads initially provided more efficient transportation and by the mid-20^th century significant state and interstate highway systems had been constructed to provide even more efficient surface transportation to the Webster/Dudley area.  But the historic route laid out by a private corporation, using the power of eminent domain, continues to be the central east/west arterial roadway for the community.

By Henry Lane, Attorney
Lane & Hamer, LLC

The year 2012 marks the 100^th anniversary of the sinking of the Titanic.  In addition to the serious loss of life, the disaster had minor economic consequences for the Webster-Dudley area.  The demise of the "unsinkable" steamship also resulted in the demise of the Southern New England Railroad.

The Southern New England Railroad was the dream of a Canadian railroad which was looking for a way to get access to a southern New England port to compete with New York Central and New Haven Railroads which dominated rail traffic in southern new England and to deal with the fact that the port of Montreal was frozen over during the winter months.  The plan called for a new railroad to be built from Palmer where there was a connection to the Canadian controlled Central Vermont Railroad to the port of Providence.

The route ran through the towns of Dudley and Webster and was designed to exceptionally high standards with a layout width of 120 feet rather than the standards 82.5 feet (5 rods).  In addition, the plan called for overpasses or bridges at all road crossings so there would be no interference with automobile traffic.  Land for the railway was acquired and construction started in 1911.

Most of the grading was completed, roads relocated and bridge construction started when the Titanic went down. Among the passengers was Charles Mellville Hayes, President of the Grand Trunk Pacific Railroad, who unfortunately went down with the ship.  Despite several attempts to finance completion of the work without its chief patron, the railroad went into bankruptcy before it ran a single train.

The trustee in bankruptcy sold off the land acquired for the railroad and much was eventually taken for non-payment of taxes from purchasers who were unable to find economic uses for the long narrow strips of rail bed.  A casual review of the topographical maps of Dudley and Webster clearly reveals the trace of railroad because the completed grading left a long narrow strip of land that is uncharacteristically level for central Massachusetts.

Since the railroad failed many years ago, long before land banking and the rails-to-trails movement began, it does not appear that there was a real effort to preserve the corridor as a resource.  In more recent years the unfortunately named Southern New England Trunkline Trail, formerly the New Haven Midland Division, which closely parallels the easterly part of Southern New England rail bed, was largely acquired by the Commonwealth of Massachusetts when it was abandoned.

More will be written about the legal implications of the presence of a significant number of abandoned railroads in Webster and Dudley in the coming months, but on the anniversary of the sinking of the Titanic, the interesting thing is that after 100 years the dream of the Canadian railroad has been realized in a small way.

Much has changed since 1911.  The construction of the St. Lawrence Seaway has alleviated much of the need for access to a southern port and the New York Central and New Haven are no more.  However the demise of the New Haven Railroad and the reorganization of the Providence and Worcester Railroad (P &W) have given the Canadians alternative access to Providence.  The route utilizes the old Central Vermont (now New England Central) line from Palmer to Willimantic, then east along the Willimantic branch of the P & W to the Norwich division of the P&W, then north to the P&W yard in Worcester and south along the original P&W lines to Providence.

Like the 1911 plan, the route goes through Palmer and ends in Providence and passes through Webster on the way, while avoiding the use of major competitors.  One other thing that has changed is that one of the principal commodities that may be shipped on this connection is ethanol as a gasoline additive, a product that was probably not shipped to Providence in significant quantities in 1911.

By Henry J. Lane 
Attorney, Lane & Hamer, LLC

Several months ago some controversy arose over the revocation of a building permit for a billboard along Route 395 in Webster. Although many people assume that the issuance of a building permit protects the applicant from future surprises concerning the legality of the proposed work and don’t consider the possibility that the building official may have made a mistake and that the revocation of a building permit is possible, two recent cases highlight the issue.

The first case which recently made the news concerns a beach front home in the town of Truro on Cape Cod. In the Truro case a wealthy businessman owned a small cottage on a nine acre parcel of land in the dunes made famous by the paintings of Eric Hopper. The lot was not located on a public way and could only be reached by a narrow dirt road through the dunes and therefore did not qualify as a buildable lot. Nevertheless the owner decided to build a very large contemporary style home on the property and applied for a building permit on the theory that the new house was an alteration or reconstruction of the cottage, although it was to be located about 200 feet away from the original cottage. The building inspector accepted the argument and issued the permit.

The neighbors appealed to the zoning board of appeals which agreed with the building inspector and upheld the issuance of the building permit. The neighbors filed a new appeal with the Land Court but since the building permit was still valid, the land owner went ahead and began construction of the new home. The case took about three years to wend its way through the Land Court and the Massachusetts Appeals Court, but last summer the Appeals Court decided that replacing a small cottage with a 6000-8000 square foot house did not qualify as an alteration or reconstruction. Despite the court decision, with the house now complete, the neighbors decided to drop their opposition and withdrew their request that the building permit be revoked. Nevertheless, recent news reports indicate that even though the neighbors have dropped their opposition to the house, the building inspector himself has now ordered the house to be demolished. Since the courts ruled that the building permit was improperly granted and violated the town’s zoning bylaws, the municipal officials apparently decided that justice requires that the zoning by-laws be enforced as a matter of fairness, whether the neighbors complained or not.

The second case arose more locally. In 2008, the building official in the town of Douglas issued a building permit for the construction of a new house on a very small lot on the shore of Wallum Lake. Although the permit was issued in 2008, construction did not begin until 2009. As soon as construction started, a neighbor advised the building official that the lot had less than 10 percent of the required area for a new home and requested that the permit be revoked. A few days later, without giving any rationale for giving a building permit for a significantly undersized lot, the building official refused to revoke the permit. The neighbor appealed to the Douglas Zoning Board of Appeals which held hearings but did not issue a timely decision. In June of 2009, the Board’s failure to make a timely decision resulted in a revocation of the building permit.

However, despite the fact that the building permit had been revoked, the builder continued to build, with the acquiescence of the building department which refused to order construction to stop and actually issued a permit for electrical work to be performed in the now illegal building. The builder appealed the revocation of the building permit to the Superior Court arguing that the request for the revocation of the building permit was too late and that the zoning board improperly failed to make a decision. Unfortunately for the builder, on January 31, 2012, the Superior Court decided that the neighbor’s request was timely, that the lot was undersized and that the building permit was properly revoked. Since all of the appeals are not exhausted, time will tell if the building permit revocation will stand. Time will also tell if the Douglas building department, like the building officials in Webster and Truro, will decide that enforcing the zoning by-laws in an evenhanded manner is more important than refusing to admit that mistakes were made.