• Members of the Association meet for a networking dinner at the Publick House in Sturbridge before a most informative evening panel discussion of Opioid Litigation
Municipal Law News

Appeals Court: BRUNO vs. TISBURY ZBA

Keywords:   Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of.

Plaintiffs brought this action under G.L. c. 40A, § 7, in 2014, just shy of 10 years from the landowner’s conveyance of a “lot” shown on a 2001 ANR plan.  The Court summarized:  “The Goethals [landowners] subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot.  We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed [2005], rather than at the endorsement of the approval not required (ANR) subdivision plan [2001]. The Plaintiff claims to have brought this action in 2014.  As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board.”  Click here for the full text of the decision.


Governor Releases Environmental Bond Bill

Gov. Baker today released an environmental bond bill that includes, among other things, a new local option procurement tool to deliver water infrastructure projects using public-private partnerships (P3).  This language would authorize cities, towns, districts and redevelopment authorities the ability to use alternative project procurement and financing methods (such as design-build, design-build operate and design-build-operate-finance) instead of  traditional design-bid-build under Chapter 30, Section 39M.  Click here for the full text of the bill.


The Appeals Court today issued its decision in City of Beverly v Bass River Golf Management, Inc., et al in which it upheld a trial court verdict in favor of the City of Beverly against an operator of the municipal golf course for breach of contract.  Proceedings against another defendant were stayed pursuant to the automatic stay resulting from a bankruptcy filing.  The counterclaim against the city, which included claims under G.L. c. 93A,  was unsuccessful.  Congrats to MMLA members from the City of Beverly Law Department- City Solicitor Stephanie Williams and Assistant City Solicitor Eitan Goldberg- on this successful outcome.  Golf course management cases have been problematic for several municipalities- be forewarned. Click here

SJC: George Caplan vs. Town of Acton

KeywordsConstitutional Law, “Anti-aid” amendment. Massachusetts Community Preservation Act. Historic Preservation. Church.

The SJC today issued its much awaited decision in this case – George Caplan vs. Town of Acton – addressing the anti-aid amendment as it relates to the Community Preservation Act. The Court wrote:  “We conclude that the constitutionality of such grants must be evaluated under our three-factor test:  a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment.  We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.  Because the judge applied this three-factor test incorrectly in denying the plaintiffs’ motion for a preliminary injunction to prohibit disbursement of these grants, we vacate the order denying the motion.  As to the grant to preserve the stained glass windows in the main church building, we remand the case to the Superior Court for entry of an order allowing the plaintiffs’ motion for a preliminary injunction barring disbursement of the grant.  As to the grant to fund a “Master Plan” to preserve all three of the buildings belonging to the church, we remand for further proceedings consistent with this opinion.”

1st Circuit Court of Appeals: HILL vs. EDWARD WALSH, et al. (City of Taunton)

The First Circuit Court of Appeals on February 27, 2018 issued its decision in Hill v Edward Walsh, et al. in which it adopted for the circuit the “emergency aid” exception to warrantless entry of property.  The police, who were seeking a person who had almost overdosed, thought he was in his parent’s home and in danger, entered the home without a warrant.  The Court clarified the standard to be followed by police in such matters, holding that it clarifies “our circuit’s emergency aid doctrine: officers seeking to justify their warrantless entry need only demonstrate “‘an objectively reasonable basis for believing’ that ‘a person within [the house] is in need of immediate aid.'” Michigan v. Fisher, 558 U.S. 45,47 (2009) (alteration in original) (internal quotations omitted).  They do not need to establish that their belief approximated probable cause that such an emergency existed. We thus modify our previous pronouncements in United States v. Martins, 413 F.3d 139 (1st Cir. 2005), and its progeny.”  The Court affirmed qualified immunity for the police officers.

Congrats to MMLA member and Taunton First Assistant City Solicitor Daniel de Abreau who represented the City of Taunton.  Click here for the full text of the case.

Appeals Court: CINDY KING vs JOSEPH Z. SHANK, et al.

KeywordsMunicipal Corporations, Removal of public officer, Selectmen. Elections, Recall. Practice, Civil, Preliminary injunction. Appeals Court, Appeal from order of single justice. Injunction.

The Appeals Court issued today its decision in King v Shank, and a companion case, which reviewed injunctions issued against the Town of Townsend restraining it from  holding a recall election against two selectmen.  The Appeals Court provided instructive guidance in interpreting recall laws and found that grounds did not exist to enjoin the recall.  Following preliminary injunctions enjoining a recall election in these two consolidated cases, the Appeals Court today reversed, dissolving the injunction orders of a single justice in one case and the Superior Court judge in the other case.  The complaints sought declaratory judgments that the recall petition was invalid.  The defendants, ten residents of the town of Townsend, had petitioned to remove Cindy King and Gordon Clark from their positions as members of the town board of selectmen by way of recall petitions.  The town board of registrars found the petitions to be in order, and the board scheduled a recall election. Click here for the full text of the Court’s decision.  Congrats to  MMLA member Ira Zaleznik who represented the Town in the case.


Keywords:   Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Liability for tort, Governmental immunity. School and School Committee, Liability for tort. Negligence, Governmental immunity.

The SJC today issued its decision in Alyssa Cormier vs. City of Lynn in which it held “the issue that we must decide is not whether the school was negligent for failing to act reasonably to prevent the bullying that led to Matthew’s injuries; the complaint alleges that it was, and for purposes of this appeal, we accept that allegation as true.  Rather, the issue on appeal is whether, under the act, the public defendants may be held liable for that negligence.  We conclude that the act protects them from liability for such negligence.”  Click here for the full text of the Court’s decision.

Appeals Court: TOWN OF HULL vs. KANSKY

The Appeals Court on February 21, 2018 issued its Rule 1:28 decision in Town of Hull v Kansky in which it affirmed a ruling of a Housing Court Judge that the defendant, in a code enforcement matter, was not entitled to a trial by jury.  In this case, the Town of Hull sought and obtained a permanent injunction against the defendant from her excessive feeding of birds which had created a public nuisance and health hazard.  One of the issues during the proceedings before the Housing Court was whether the defendant was entitled to a jury trial.  The Town opposed that request on the basis that the relief sought was equitable, which in the absence of a specific statute did not permit a jury trial.  After the trial and the permanent injunction issuing, the defendant appealed to the Appeals Court.  The sole issue involved in the appeal was whether she was entitled to a jury trial.  The Appeals Court, in summarizing the law that there is no right to a jury trial in equitable matters, affirmed the action of the Housing Court in denying the jury claim.  The outcome might have been different had the Town also sought monetary damages, thus suggesting municipalities need to be careful as to the relief they seek.  Congrats to MMLA member and Hull Town Counsel James Lampke who represented the Town during the trial and appeal.  Click here for the the full text of the Court’s decision.