Danusis v. Longo, 112399, 97-P-2140

• Decision Date: 23 November 1999
• Docket Number: No. 97-P-2140,97-P-2140
• Citation: 48 Mass.App.Ct. 254,720 N.E.2d 470
• Parties: (Mass.App.Ct. 1999) RITA DANUSIS & another <A HREF="#fr1-1" name="fn1-1">1 v. JOHN LONGO & another. <A HREF="#fr1-2" name="fn1-2">2
• Court: Appeals Court of Massachusetts

720 N.E.2d 470 (Mass.App.Ct. 1999)

RITA DANUSIS & another¹ v. JOHN LONGO & another.²

No. 97-P-2140

MASSACHUSETTS COURT OF APPEALS

Argued May 13, 1999.

November 23, 1999

Essex County

Civil action commenced in the Superior Court Department on March 13, 1997.

Manufactured Housing Community. License. Municipal Corporations, Board of health.

Administrative Law, Judicial review. Statute, Construction. Practice, Civil, Complaint,

Amendment. Words, "Lot," "Tract of land."

Motions to amend the complaint and for summary judgment were heard by Charles M. Grabau, J.

Alan S. Fanger for the plaintiffs.

Kurt B. Fliegauf for Board of Health of Salisbury.

John D. Hughes for John Longo.

Scott Harshbarger, Attorney General, & Donna L. Palermino, Assistant Attorney General, for the

Attorney General, amicus curiae, submitted a brief.

Perretta, Dreben, & Spina, JJ.³

PERRETTA, J.

This is an appeal by Rita Danusis and the Kendall Lane Tenants Association

(collectively referred to as tenants) from a summary judgment granted by a Superior Court judge

in favor of John Longo and the Salisbury board of health (board). By their complaint, the tenants

sought a determination that they were entitled to the protections afforded by the long-standing

Manufactured Housing Act (Act), G. L. c. 140, §§ 32A-32S.⁴ The Superior Court

judge determined that the complaint was not timely filed. He also denied the tenants'

then-pending motion to amend the complaint by adding a count under G. L. c. 93A. Because we

conclude that the tenants' complaint was timely filed, that they are entitled to the protections

provided by the Act, and that their motion to amend the complaint should have been allowed, we

reverse the judgment.

1. The Manufactured Housing Act. A brief overview of the statutes involved in this case

would be helpful to an understanding of the Act. Sections 32A through 32S of the Act provide

comprehensive and substantial rights to owners of manufactured homes who place such

structures upon land rented by them.⁵ These rights and protections have been enacted because

"[b]oth the Legislature and the courts of the Commonwealth have recognized that manufactured

housing communities provide a viable, affordable housing option to many elderly persons and

families of low and moderate income, who are often lacking in resources and deserving of legal

protection." Greenfield Country Estates Tenants Assn. v. Deep, 423 Mass. 81, 83 (1996). See

Commonwealth v. DeCotis, 366 Mass. 234, 243 & n.7 (1974); Quinn v. Rent Control Bd. of

Peabody, 45 Mass. App. Ct. 357, 359-360 & n.4 (1998); St. 1986, c. 317, an emergency

proclamation amending § 32L and adding § 32R to the Act.⁶ Whether the rights

and protections afforded by the Act⁷ are available to an owner of a manufactured home

depends upon whether the home is situated in a "manufactured housing community" as that term

is defined in § 32F, as amended by St. 1991, c. 481, § 19, that is, "[a]ny lot or tract

of land upon which three or more manufactured homes occupied for dwelling purposes are

located . . ." Because the tenants reside in manufactured homes situated on land owned by

Longo, the primary issue on appeal is whether he is using the land to operate a manufactured

housing community.

2. The facts. It is against the backdrop of these pertinent provisions of the Act that we recite

the undisputed facts as they appear in the materials submitted by the parties on their motions to

dismiss or for summary judgment.⁸ In 1973, Longo, a real estate developer, purchased

approximately thirty-three acres of land in Salisbury. Thereafter, he submitted a subdivision plan

of the parcel to the local planning board. Pursuant to his plan, which was approved in October,

1976, the parcel was divided into forty-nine single-family house lots.⁹ Access to these lots, as

can be seen from the appended sketch, is gained either from Lafayette Road (U.S. Route 1) or

Kendall Lane.¹⁰

Sometime in 1978, Longo began to allow the owners of manufactured homes to place their

structures upon certain of the subdivided lots owned by him. Next, in January of 1982, Longo

conveyed twenty-four of the forty-nine subdivided lots owned by him to himself as trustee of a

realty trust. Longo rents, on a monthly basis, seventeen of those twenty-four lots to owners of

manufactured homes, one home per subdivision lot.¹¹ Each manufactured home rests upon a

foundation and has appropriate utilities as would conventional stick-built housing. Each of the

seventeen lots has its own septic system, provided by Longo, who also pays the real estate taxes

on each of the separately assessed lots. The tenants pay for their own utilities and water.

As alleged by the tenants in their complaint and affidavits, they are retired, disabled, of modest

means, and are living on fixed incomes. They claim that, throughout the years, Longo has failed

to maintain the property in question, has increased rents, has charged excessive rents, has

terminated various tenancies, and has threatened to terminate tenancies unless the rental increases

are paid. The tenants also allege that when Longo discovered that they intended to claim

coverage under the Act, he attempted to persuade certain of them to abandon their affiliation with

the association and represented that their rents would increase were it determined that the

seventeen lots fell within the scope of the Act. The tenants, nonetheless, commencing in 1991

and continuing up to the filing of this action in 1997, complained to the board of selectmen and

the defendant board of health that they were being denied their rights under the Act and

Salisbury's rent control provisions.

Salisbury officials took no action in response to the tenants' concerns and complaints for about

four years. In the meantime, Longo has never applied for a license to operate or maintain a

manufactured housing community under § 32F of the Act. In June, 1995, the board of

selectmen determined, apparently on the basis of advisory opinions from the Attorney General of

the Commonwealth and town counsel, that Longo's property fell within the scope of the Act and

ordered the board of health to proceed with the licensing process. Notwithstanding the

selectmen's determination, the board of health took the view that the seventeen lots did not

constitute a manufactured housing community within the meaning of § 32F and refused to

proceed further.

It appears that the board of health reached its conclusion, that Longo was not required to seek a

license, after a vote taken at a meeting held on March 19, 1996. That vote was unaccompanied by

a written decision or any other memorialized explanation. As further alleged, the tenants did not

receive any notice of the board's decision or of their right of appeal from the board's

determination.¹² They brought this action about twelve months later, on February 24,

1997.¹³

3. The tenants' complaint. There is a threshold issue to be resolved before we consider the

substance of the tenants' complaint, that is, whether they timely brought their action.

a. Timeliness of the complaint. In his memorandum of decision, the Superior Court judge noted

that "[a]lthough not styled in the form of a c. 30A appeal, the complaint . . . appears to challenge

the March [19,] 1996 refusal by the Board of Health to require that Longo obtain a license under

G. L. c. 140, § 32." Relying upon the limitations period set out in G. L. c. 30A, §

14(1), the Superior Court judge concluded that the tenants' complaint was untimely because it

had not been brought within thirty days of the decision of the board of health.¹⁴ Finding and

concluding that there were no special circumstances warranting the tenants relief from that

statutory time requirement, the Superior Court judge dismissed the complaint and entered

judgment for the defendants.

There is no dispute that the tenants did not file their complaint within thirty days of the vote of

the board of health. It does not follow, however, that the complaint was untimely filed. Three

provisions of the Act are relevant to the question of the timeliness of the filing. We begin with

§ 32B, which reads: "The board of health of any city or town, in each instance after a

hearing, reasonable notice of which shall have been published once in a newspaper published in

such city or town, may grant, and may suspend or revoke, licenses for . . . manufactured housing

communities located within such city or town" (emphasis supplied). If Longo is using his

seventeen lots for a manufactured housing community, he is required under § 32F, as

earlier noted, to obtain a license under § 32B to do so. Finally, and controlling on the

question of timeliness is § 32K, which states that "[a]ny person aggrieved by any act, rule,

order or decision of the licensing board may appeal to the superior court."¹⁵ As established by

these provisions of the Act, the board of health is the licensing board.

A local board, such as a board of health, is generally not a "state agency" within the scope of G.

L. c. 30A, § 1(2). See Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning

Bd. of Lawrence, 403 Mass. 531, 538 (1988); Roslindale Motor Sales, Inc. v. Police Commr. of

Boston, 405 Mass. 79, 85 n.8 (1989); Fratus v. Selectmen of Yarmouth, 6 Mass. App. Ct. 605,

608 (1978). Nor did the board of health proceed in accordance with the norms of an

administrative agency; notice, hearing and so forth. As to the Act, there is nothing within §

32K or any other provision that subjects any appeal under that section to the thirty-day appeal

period set out in c. 30A, § 14(1).

Even were we to conclude that the tenants' complaint was subject to c. 30A, we also would

conclude that they were entitled to circumvent the normal course of administrative review

because their complaint presents special circumstances which justify an action seeking a

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