Municipal Law News

11th Annual Public Construction Update – Wednesday, October 20, 2021 @ 3pm

11th Annual Public Construction Update

Diversity, Equity and Inclusion Issues in Public Construction

“Do the best you can until you know better.  Then do better.” – Maya Angelou

2020 was a tumultuous year in many ways.  The COVID-19 pandemic transformed our very way of life.  An election for the ages tested the boundaries of our American democracy.  The tragic killing of George Floyd and protests across the country by the Black Lives Matter movement which came in the aftermath, inspired renewed and meaningful discussions surrounding social justice, antiracism and similar issues.  Recognizing the increasing demand on local governments and their legal counsel to address these issues across the spectrum of municipal operations, the goal of the 11th Annual Public Construction Update in 2021 is to provide a closer and up-to-date examination of the issues of diversity, equity and inclusion as these concepts touch on public construction.  An outstanding slate of panelists who are well-recognized leaders in this area will speak on topics such as gender and minority workforce participation goals, MBE/WBE certification and goals, prevailing wages, and other related issues.

This year’s panelists are expected to include:

  • Christopher J. Petrini, Program Chair & Moderator, Petrini & Associates, P.C, Framingham, MA
  • Dr. Yvonne M. Spicer, Mayor, City of Framingham
  • Deborah Anderson, Assistant Attorney General, Construction Bid Unit
  • Susan Moir, ScD, Research Director, PGTI: The Policy Group on Tradeswomen’s Issues and
    Founder, Tradeswomen Building Bridges, the North American Network of Women Working in the Construction Trades
  • Barbara Dillon DeSouza, Assistant Attorney General, Fair Labor Division
  • Anatoly Darov, Esq., Darov & Associates US PLLC, Boston, MA
  • Jillian Jagling, Esq., West Group Law PLLC, Boston, MA

The cost for this in-person event is $55 and includes a post-program dinner at the Publick House.  For attendees who are not interested in attending the dinner, the cost is $20.  Registration is open to both MMLA members and non-members, and thanks to the generous donations of our membership, grants are available to attorneys (whether they are members of MMLA or not) who are new to the practice of municipal law and want to see what MMLA and our programming is all about.  If you or a colleague wish to attend this program through MMLA’s grant program, please contact James Lampke at jlampke@massmunilaw.org.

Feel free to also invite your municipality’s officials to attend with you, such as procurement officers, town managers/administrators, and other personnel.

Topic:  11th Annual Public Construction Update
When:  Wed. October 20, 2021 3:00pm-6:30pm followed by dinner
Location:  Publick House Historic Inn, 277 Main Street, Sturbridge, MA

Register in advance for this in-person program at the link below:

https://www.surveymonkey.com/r/MMLAOct2021Event

Please note that there is now a COVID-19 vaccination requirement for this event – all persons attending this event must be fully vaccinated against COVID-19 (at least 14 days after receiving the second Moderna/Pfizer dose or 14 days after receiving the Johnson & Johnson dose) and be prepared to show paper or electronic proof of vaccination while at the event.  Please contact James Lampke at the email above if you have any questions about providing proof of vaccination.  PLEASE DO NOT EMAIL VACCINATION INFORMATION TO MMLA.

Based on current guidance from the CDC, for the safety of all our panelists and attendees, everyone attending the program will be required to wear a face covering while inside at the venue (except while eating or drinking) regardless of vaccination status.

MEDERI, INC. v. CITY OF SALEM (SJC)

DOWNLOAD the decision of the SJC

Keywords:  Marijuana. License. Municipal Corporations, By-laws and ordinances, Contracts, Marijuana. Contract, Municipality. Mandamus. Practice, Civil, Action in nature of mandamus, Action in nature of certiorari, Motion to dismiss, Judgment on the pleadings. Regulation.

In a must-read decision issued today, Merderi Inc. v. City of Salem, et al, the SJC upheld the City’s denial of a Host Community Agreement (HCA) to an applicant.  The SJC held in part that “[a]lthough we observe that the interplay between the statute and the regulations may have led to consequences perhaps not contemplated by the Legislature or the commission, we nevertheless conclude that Mederi’s claims properly were denied, and thus affirm the decision.”  The SJC also reviewed the legislative history of marijuana law in Massachusetts.

The Court rejected Mederi’s request for mandamus, noting that “Nothing in G. L. c. 94G, § 3, imposes a duty on a city or town to enter into an HCA with a prospective recreational marijuana establishment simply because that establishment is able to fulfill the municipality’s HCA requirements.  Indeed, G. L. c. 94G, § 3 (d), the provision governing HCAs, merely provides that a prospective marijuana establishment must enter into an HCA with a host community before it can operate.  That provision contemplates a negotiation between the host community and the applicant, stating that the HCA must include “all stipulations of responsibilities between the host community and the marijuana establishment.”  Id.

The Court also dismissed  Mederi’s claim for a cert appeal.  ” Because the city had a rational basis for choosing these applicants, its decision not to enter into an HCA with Mederi was neither arbitrary nor capricious.  See Attorney Gen., 382 Mass. at 62.  Based on the high number of applicants on Highland Avenue, the city ultimately selected two applicants that planned to locate on that street –- Atlantic Medicinal and INSA –- that, in its view, had stronger proposals than Mederi.”

The challenge to the impact fees was also denied, with the Court finding that the applicant did not have standing since they never entered into a HCA.  Other challenges met a similar fat

Congratulations to MMLA member and Salem Assistant City Solicitor Victoria Caldwell for this very impressive and important win for municipalities!

ADAM JAMES BRADLEY v. RECORDS ACCESS OFFICER, DEPT. OF STATE POLICE

Keywords:  Public Records. Supervisor of Public Records. Police, Records. Constitutional Law, Access to criminal records. Regulation. Practice, Civil, Complaint.

[Excerpt] – “A convicted criminal has a statutory right to request public records concerning the crime he committed and to receive a response consistent with the public records law.  The plaintiff, Adam James Bradley, appeals from an order dismissing his complaint alleging violations of the public records law, G. L. c. 66, and various other claims.  The complaint alleged that the defendant, the records access officer (RAO) for the Department of State Police (department),[1] violated the public records law by ignoring Bradley’s requests for records, as well as two orders issued by the Commonwealth’s supervisor of records (supervisor) directing the RAO to respond.  A Superior Court judge allowed the RAO’s motion to dismiss for failure to state a claim, and a judgment dismissing the complaint entered.  Because Bradley plausibly alleged violations of the public records law, we vacate in part the judgment, and remand the case for further proceedings.”

Also of note is the Appeals Court’s discussion of the often raised denial of a request on the basis that the requester has a unique right of access via another forum.  The Appeals Court decision calls into question the usefulness of that provision of the AG’s regulations.  The Court stated: “Based on ‘the plain language of the regulation,’ Theophilopoulos v. Board of Health of Salem, 85 Mass. App. Ct. 90, 101 (2014), we interpret the references to ‘a unique right of access’ as stating only that the procedures of public records law do not apply to other statutory, regulatory, or judicial processes that give individuals specific avenues for obtaining specific categories of records.. . . Requests for records under those regimes are not governed by the public records law, and are not subject to appeal to the supervisor. The references to ‘a unique right of access’ made it explicit that the supervisor has no authority with respect to the enforcement of rights of access outside the sphere of the public records law.”
This case warrants close review by municipal counsel.

DOWNLOAD the decision of the Appeals Court

ROBERT D. FRATUS, JR. v. TOWN OF HARWICH (App.Ct.)

KeywordsSubdivision Control, Access ways. Way, Public: subdivision control. Statute, Construction. Mandamus. Practice, Civil, Summary judgment, Action in nature of mandamus, Standing.

Synopsis:  “At issue is whether the plaintiff, Robert Fratus, Jr., has a private right of action to require the town of Harwich and its board of selectmen (collectively, town) to widen and pave two roads abutting his property and upon which he travels.  Although Fratus acknowledges that there are no specific defects in the two roads, and that he has not been injured by traveling on them, he nonetheless contends that he has a private right of action as an abutter and traveler to compel the town to maintain the roads “so that they may be reasonably safe and convenient for travelers.”  G. L. c. 84, § 1.  Ruling on cross motions for summary judgment, a Superior Court judge disagreed, and dismissed Fratus’s complaint for declaratory judgment and mandamus relief.  We affirm.”

DOWNLOAD the decision of the Appeals Court

DON PERRY v. ZBA OF HULL (App.Ct.)

Keywords: Zoning, Appeal, By-law, Building permit, Frontage, Lot. Way, Private. Practice, Civil, Zoning appeal

Synopsis:  “The plaintiff, Don Perry, appeals from a judgment of the Land Court affirming the decision of the zoning board of appeals (board) of the town of Hull (town), allowing the defendants, Anne Veilleux and Charles Williams (owners), to build a house on property (locus) abutting Perry’s property.  As the board reasonably construed the town’s zoning bylaw (bylaw) to distinguish between how frontage on a public street and frontage on a private way is calculated, we conclude that the owners have sufficient frontage to build the house.  Further concluding that Perry’s other arguments lack merit, we affirm.”  Congratulations to Hull Town Counsel Jim Lampke for this win!

DOWNLOAD the decision of the Appeals Court.

COMMERCIAL WHARF CONDOMINIUM ASSOCIATION v. DEP ( App.Ct.)

COMMERCIAL WHARF CONDOMINIUM ASSOCIATION v. DEP ( App.Ct.)

The Appeals Court today issued a decision in which it upheld the Department of Environmental Protection’s decision that a condo association needed a Chapter 91 license for activities on Boston’s Commercial Wharf.  The decision discusses the history and law from 1862 and presents helpful information on Chapter 91 licenses and waterfront uses.

DOWNLOAD – decision of the Appeals Court

MMLA Membership Application and Dues Notice 2021-2022

MMLA Membership Application and Dues Notice 2021-2022

On June 28, 2021, members were emailed via Survey Monkey their membership applications for the MMLA membership year that begins July 1, 2021 and ends June 30, 2022. This year we are again asking members to apply electronically using Survey Monkey. The electronic application is easy to complete and an efficient way for us to update our membership records.

The email provided the information you need to apply through Survey Monkey. When you complete the application, you will receive a confirmation email from Survey Monkey with a link to your application. Please print the application and mail it with your dues payment to the MMLA office:

Massachusetts Municipal Lawyers Association, Inc.
115 North Street, Suite 3
Hingham, MA 02043

If you did not receive a Survey Monkey email invitation, use the following link and we will email you a PDF of your completed application to print: https://www.surveymonkey.com/r/MMLAMembership2021-2022.

Download, complete and print this hardcopy Membership Application Form 2021-2022.

If you did not receive the email from Survey Monkey, have difficulty applying electronically or have difficulty printing your application, please contact Kathleen Colleary at kcolleary@msn.com for assistance.

VALLEY GREEN GROW v. TOWN OF CHARLTON (App.Ct.)

DOWNLOAD the decision of the Appeals Court.

In Valley Green Grow, Inc. v. Charlton, and a companion case, Valley Green Grow, LLC vs. Planning Board of Charlton, the Appeals Court affirmed a Land Court decision which had overturned 2 local decisions of the ZBA and Planning Board. The Appeals Court addressed ” local zoning regulations as they relate to the creation of a large marijuana establishment[4] in the town of Charlton (town). The town’s planning board concluded that the plaintiffs'[5] proposed marijuana establishment constitutes “light manufacturing” as that term is used in the town’s zoning bylaw (bylaw) and, therefore, is not a use allowed in the agricultural and commercial business districts in which the proposed development site is located. On summary judgment, a judge of the Land Court concluded and declared that the proposed use is “an indoor commercial horticulture/floriculture establishment (e.g. greenhouse) use allowed by right” in the two zoning districts.” The case provides a good discussion on marijuana law and local zoning.

ALEXANDER STYLLER v. BOARD OF APPEALS OF LYNNFIELD (SJC)

DOWNLOAD  – the decision of the SJC

KeywordsReal Property, Lease. Zoning, By-law, Permitted use, Lodging house, Person aggrieved. Jurisdiction, Justiciable question, Land Court. Land Court, Jurisdiction. Practice, Civil, Standing, Substitution, Moot case. Moot Question. Words, “Tourist home.”

[Excerpt] – “General Laws c. 40A, § 6, generally protects property uses that were lawfully in existence prior to newly adopted restrictive zoning regulations.[2] In this case, the plaintiff, Alexander Styller,[3] contends that use of his family home for short-term rentals constituted a prior nonconforming use that is exempt from a zoning bylaw of the town of Lynnfield (town) that, as amended in 2016, expressly forbids such rentals in single-residence zoning districts.  He asks the court to overturn the Land Court judge’s decision and rule that short-term rentals were permissible prior to the bylaw amendments.  We decline to do so.”

The SJC, in a related decision (SHARON HEATH-LATSON v. ALEXANDER STYLLER) ruled in connection with a wrongful-death action relating to the same short-term rental property.  Click here to download the decision of the court in this related decision.