Before Torruella, Lipez and Howard, Circuit Judges.
Similar to other states, Massachusetts provides tax relief to landowners of agricultural, horticultural or forest land. When such land is converted to other uses, the Commonwealth requires landowners to compensate their respective municipalities. The compensation may be take the form of, for example, payment of a conveyance tax when the land is sold, or payment of roll- back taxes if the land otherwise ceases to qualify for preferential tax treatment. In addition to these tax features, Massachusetts law also provides that once a landowner decides to sell the land for other than agricultural, horticultural, or as relevant here, forest uses, the municipality is entitled to a right of first refusal (“ROFR”). Mass. Gen. Laws ch. 61. This ROFR provides the municipality with a 120-day period in which to meet a bona fide offer to purchase the land. The municipality thus has the right but not the obligation to preserve salutary land uses by purchasing land that the landowner desires to sell, and the landowner receives the compensation that a willing buyer in an arm’s-length transaction is prepared to pay.
In this case, plaintiff-appellant Marilyn Kunelius accepted a bona fide offer to purchase a parcel of land, which included acreage that had been certified under Mass. Gen. Laws ch. 61 as forest land. Pursuant to the statute, the Town of Stow chose to exercise its ROFR. In addition, the Town assigned this right, as also permitted by the statute, to the Trust for Public Land (“TPL” or “Trust”), a nonprofit conservation organization. From the beginning, it was clear that a number of circumstances had to align in a precise constellation for the Trust and the Town to consummate the transaction. Despite potential difficulties with the transaction, the Town and TPL nevertheless went through with the assignment of the ROFR. The Trust’s optimistic hopes for obtaining private philanthropy, state grants, and local zoning relief, however, were not fulfilled. As a result, the Town and the Trust failed to complete the transaction. In the interim, Kunelius’s previous buyer chose to develop other land.
