GloucesterTimes.com, Gloucester, MA

September 5, 2013

Judge: Judge gives Conomo a mixed verdict

By James Niedzinski
Staff Writer

---- — ESSEX — An Essex County Superior Court judge has found that two of the four plaintiffs in a home ownership suit on Conomo Point own their cottages, but that those owned by the other two belong to the town of Essex.

The finding comes after weeks of testimony by Conomo Point tenants, town officials, an expert in house moving, and after court visits to Conomo Point.

The ruling by Essex County Superior Court Judge Richard Welch III was issued Tuesday; the four plaintiffs were Judson, Perry, Donna and Barbara Pratt of Robbins Island Road; the David R. Wendell 1993 Revocable Trust house on Conomo Point Road; Clinton B. Smith of Middle Road, and Paul Touher of Cogswell Road.

In his findings, Welch writes that the Pratt house and the Smith house belong to their respective tenants, as they are smaller than the other two houses involved and can be moved easily.

Welch, however, reached a different conclusion for the Wendell trust and Touher properties.

“In this case, neither the party leasing the land nor the town, came to any express or implied agreement regarding the fate of the structure at the end of the lease,” the court document reads.

The main aspects of the case involved whether or not the houses are considered “fixtures” on the town-owned land, and whether there was an agreement with the town that the builder could remove the cottages when the leases ended — something the plaintiffs thought would never happen.

In legal terms, a fixture is generally something that is attached to the land with anything more than the power of gravity. Houses are a common example of fixtures, but almost none of the issues surrounding Conomo Point land issues can be considered common.

Welch pointed out that, through various incarnations, the Conomo Point commissioners were aware that tenants would sell their structures, and the town has referred to the residents as “homeowners.”

He also recognized that the term “homeowner” was used at times as a colloquial expression, but “these references evidence some understanding that the residents owned their structures,” he wrote.

Peter Madsen, a former Conomo Point Commissioner active in the 1970’s testified he routinely advised people who were buying a lease that the lessee owned the cottage, according to the court document.

Welch determined that during the course of the leases, the tenants themselves owned the simple, initial cottages.

“The fact that the commissioners approved the transfer of leases cuts both ways,” Welch wrote. “The builders of the structures apparently never attempted to remove any structure from Conomo Point; arguably this indicates the intention that the structure was and remained part of the real estate. Still, the builders plainly were selling the structures as personal property.”

Welch noted what many already know — when signing a lease, tenants should not assume anything, even if 100-year patterns indicate a landlord would continue to rent to residents. Residents are offered the right of first refusal should the town decide to sell the lots, but the town may intend to take back some the land and not sell it.

In 1987, a town meeting vote was approved to not sell any of the property at Conomo Point. Afterward, a class action suit was filed against the town, eventually two 10 year leases were agreed upon, those expired in 2011.

“The reality, however, is that no one focused upon what would happen at the end of the lease,” he wrote. “The plaintiffs in this action simply assumed that the leases would never end.”

Testimony from Touher stated that, after a sizable expansion his house was not intended to be moved.

Because of the expansion, Welch found that the home could not be moved from the land without damage, as the house is apparently pinned to the bedrock and the town did make it clear the intent to not renew the lease when it ended.

Since, the town has offered to sell Touher the property, but he has not accepted.

Throughout his findings; Welch cited previous cases of what determines a beach cottage, as well as the improvements made to the Touher and Wendell.

Ultimately, if these houses were to be moved, Welch found that moving them would cause significant damage to the land or structure, the other houses in the case were simpler and smaller.

In addition, because there was no agreement between what would happen when the lease ended for the trust property, Welch had to determine whether or not the house was affixed to the land.

Welch also wrote that a former Conomo Point commissioner who testified — or any other town official — ever gave assurance that the leasing would continue in the future.

Aaron Sturgis, an expert in home moving, testified that the three story house could conceivably be moved from Conomo Point. During his testimony, Sturgis also said that nearly any structure can be moved.

“Given the way it is affixed to the land, and the nature and size of the structure, it is difficult to conceive of the parties ever intending that this substantial home was to be moved at the end of the lease,” Welch wrote.

Welch found that the Pratt and Smith houses can be moved when the leases expire.

Town Administrator Brendhan Zubricki said Conomo Point leases are set to expire at the end of this year and the Board of Selectmen may agree to offer leases to Conomo Point residents.

The judge reiterated that no one focused upon the long term future when it came to the Touher and Wendell trust properties.

“Apparently, no one considered the situation where relatively simple cottages on Conomo Point would be converted into more significant structures which were affixed to the land,” he wrote.

Welch noted that the plaintiffs would understandably hope the leases continue.

“The residents of Conomo Point obviously yearned for the past, but they should have been prepared for the future,” he concluded.

James Niedzinski can be reached at 978-283-7000, x 3455 or at jniedzinski@gloucestertimes.com.