• Panelists at MMLA's Annual Public Construction Update Program on April 26th. ! (Left to right): Dennis Ryan, Hon. Brian Davis, Mary Pichetti, Amanda Zuretti, Angela Atchue, Chris Pertrini, Peter Mello
Municipal Law News

Appeals Court: BRIAN HICKEY vs. ZBA OF DENNIS

KeywordsZoning, Notice, Appeal, Board of appeals: decision. Practice, Civil, Zoning appeal, Summary judgment. Notice.

Today the Appeals Court held that actual knowledge by an assistant town clerk that a zoning appeal complaint had been filed in court satisfied the statutory requirement for the appellant to file a copy of the complaint with the town clerk within 20 days of the ZBA’s decision. Excerpt: “Section 17 of the Zoning Act, G. L. c. 40A, sets out the procedural requirements for a person aggrieved by a decision of a zoning board of appeals or special permit granting authority to seek judicial review “by bringing an action within twenty days after the decision has been filed in the office of the town clerk,” and further specifies that “[n]otice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days.”  A judge of the Land Court allowed the defendant’s motion for summary judgment, dismissing the plaintiffs’ complaint, on the ground that the plaintiffs did not timely give the required notice to the town clerk.  Because the undisputed facts in the summary judgment record establish that the town’s assistant clerk had actual knowledge of the plaintiffs’ complaint within the required time, we reverse the judgment.”  Click here for the full text of the Appeals Court’s decision.

SJC: JULIO ACEVEDO vs. MUSTERFIELD PLACE

Keywords:   Housing Authority. Massachusetts Tort Claims Act. Words, “Controlled affiliate,” “Public employer

On direct appellate review, the SJC concluded that neither a “controlled affiliate” nor the “manager” of a controlled affiliate is a “public employer” as defined in the act.  Justice Gants wrote: “On February 22, 2013, the plaintiff, Julio Acevedo, allegedly slipped and fell while descending stairs at his apartment in a public housing development in Framingham known as Musterfield at Concord Place (property), and suffered serious injuries.  He filed a complaint in the Superior Court alleging various claims for damages against three defendants:  the Framingham Housing Authority (authority); Musterfield Place, LLC, a “controlled affiliate” of the authority, which owns the property (owner); and FHA Musterfield Manager, LLC, the managing agent for the owner (manager).  The owner and manager moved for partial summary judgment, seeking a ruling that they should be deemed public employers under the Tort Claims Act (act), G. L. c. 258, § 2, and therefore may not be liable for damages in excess of $100,000.  The judge denied the motion, concluding that the act “clearly defines the scope of a public employer,” and did not include controlled affiliates within that definition.  Recognizing that the issue whether controlled affiliates are deemed public employers under the act is a matter with “potentially broad impact throughout the Commonwealth” and that it has not been addressed by any other Massachusetts court, the judge reported his decision to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1410 (1996), and stayed the action until the appeal is decided.  We conclude that neither a controlled affiliate nor the manager of a controlled affiliate is a “public employer” as defined in the act, and therefore, we affirm the denial of the defendants’ motion for partial summary judgment.”

 Click here for the full decision.

Appeals Court: SPENCER-EAST BROOKFIELD REG. SCH. DIST. vs. TEACHERS ASSOCIATION

KeywordsSchool and School Committee, Arbitration, Collective bargaining, Termination of employment. Arbitration, School committee, Collective bargaining. Public Employment, Collective bargaining, Termination. Education Reform Act. Practice, Civil, Stay of proceedings, Moot case.

The Appeals Court affirmed a decision of the Superior Court which had stayed a grievance arbitration proceeding commenced by the association before the Department of Labor Relations (DLR). The association had argued that the arbitration became moot once the teacher involved withdrew his grievance and that the matter should have been dismissed. The association had also argued that the teacher had an absolute right to arbitrate an alleged collective bargaining agreement violation that preceded his termination.  The association maintained that it is irrelevant that the teacher did not have professional teacher status, that he had been employed for less than ninety days, and that reinstatement was the remedy being sought.  Click here for the full text of the Appeals Court’s decision.

Appeals Court: MURROW vs. ESH CIRCUS ARTS

Keywords:  Zoning, Appeal, Person aggrieved, Board of appeals: notice of hearing. Practice, Civil, Zoning appeal, Standing, Motion to dismiss. Notice

The Appeals Court, in another very interesting “standing” decision, concluded that the plaintiff in this case was not a party in interest because, although within 300′ of the ESH property, she was neither an abutter nor an abutter to abutter, but rather only an abutter to land directly opposite to ESH.  The plaintiff claimed that she is a party in interest as one of the “abutters to the abutters within three hundred feet” because she lives within three hundred feet of the Esh property; but the Court disagreed.  “The phrase “within three hundred feet” modifies “abutters to the abutters” and does not create a standalone category of parties in interest.  To read § 11 otherwise would “render [a] portion of it meaningless.” For the full decision of the Court, click here

Appeals Court: ALEXANDRA STAHR vs. LINCOLN SUDBURY REGIONAL SCHOOL DIST.

KeywordsPractice, Civil, Motion to dismiss. Massachusetts Tort Claims Act. Governmental Immunity. School and School Committee, Athletic coach, Liability for tort. Negligence, School, Governmental immunity. Words, “Intervention.”

The Appeals Court in this case considered whether Tort Claims Act § 10(j) is applicable to negligence claims brought by the plaintiffs against the defendant Regional High School District.  The plaintiffs’ claims arose out of an injury sustained by the plaintiff, a member of the defendant’s varsity field hockey team, who was struck by a field hockey stick wielded by another team member during a practice session. The Court also considered whether a specific statutory exception to the immunity afforded by § 10(j) permitted the claims to proceed because they are grounded in “the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [s]he was in before the intervention.”  G. L. c. 258, § 10(j)(2).  The Court concluded the plaintiffs’ claims are barred by § 10(j) and do not come within the saving provision of § 10(j)(2). Click here to read the full decision of the Court.

MDAR – “Interim Policy for Commercial Industrial Hemp”

Chapter 55 of the Acts of 2017, An Act to Ensure Safe Access to Marijuana, updated the Commonwealth’s laws that govern the use of marijuana. The legislation also created a distinction between marijuana and hemp, allowing activities related to hemp to take place under the jurisdiction of the Massachusetts Department of Agricultural Resources (MDAR) and subject to the requirements set forth in G.L. c. 128, Sections 116 through 123. [Note: at this time, Sections 116-123 are not yet available on the State legislative website.]

MDAR has released its Interim Policy for its Commercial Industrial Hemp Program, with other programs and policies to follow as they are developed. Documents and information are available on our website at https://www.mass.gov/service-details/hemp-programIndustrial Hemp is classified as “an agricultural commodity.”  The MDAR reports that it looks forward to working with municipalities as this new-to-Massachusetts agricultural commodity is introduced.

SJC: JANE DOE vs. SECRETARY OF EDUCATION

KeywordsEducation, Charter school. Education Reform Act. Constitutional Law, Education, Equal protection of laws, Standing. Jurisdiction, Constitutional question, Declaratory relief. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing

In the SJC’s decision issued today in JANE DOE vs. SECRETARY OF EDUCATION, the Court summarized its decision as follows:

“Five students who attend public schools in the city of Boston filed a complaint in the Superior Court against the Secretary of Education, the chair and members of the board of secondary and elementary education, and the Commissioner of Education (commissioner), alleging that the charter school cap under G. L. c. 71, § 89 (i), violates the education clause and the equal protection provisions of the Massachusetts Constitution because the students were not able to attend public charter schools of their choosing.  A judge of that court allowed the defendants’ motion to dismiss.  We affirm the judgment of dismissal and conclude, as did the motion judge, that the plaintiffs have failed to state a claim for relief under either provision.”   Justice Budd wrote: “The education clause (in the Massachusetts Constitution) provides a right for all the Commonwealth’s children to receive an adequate education, not a right to attend charter schools.”  Click here for the full text of the Court’s decision.

Appeals Court: JAMES MASLOW & others vs. CAROLYN O’CONNOR

Keywords:   Real Property, Littoral property, License, Harbors. Way, Private. Trust, Public trust. Real Property, Harbors

The decision issued by the Appeals Court today focuses on “. . . whether the filling of an area of tidelands pursuant to a G. L. c. 91 license extinguished rights held by upland owners to cross that area to access the remaining tidelands and the sea.  A Superior Court judge determined that the filling of certain tidelands extinguished the plaintiffs’ rights to access remaining tidelands through the end of a private way to which they were abutters.  We reverse, because the c. 91 license by its terms preserved those rights.”

The case was remanded to the Superior Court.  The Appeals Court concluded that the c. 91 license expressly prevents the impairment of the plaintiffs’ rights, and that the plaintiffs are entitled to a declaration that they have the right to traverse Rackliffe Street to its southerly end, and ” . . . to pass from there to the mean high tide mark of Wonson’s Cove and beyond, including use of the ramp. The plaintiffs are also entitled to a suitable injunction, which should preclude the defendants from placing any structures or obstructions in Rackliffe Street or in the area bounded by the lines of Rackliffe Street extended southerly to the water, including the grassy strip.”

Click here for the text of the full opinion.