The US Court of Appeals for the First Circuit on August 20th issued its decision in Galileo Mondol et al vs City of Somerville, in which it affirmed summary judgment for the defendants in a suit for damages related to alleged sexual assaults at a summer soccer camp. In addressing the speculative nature of the Plaintiffs’ allegations, the Court stated that, the claims [Mondol, et al] assert against the Appellees would require the Court to create a pyramid of inferences, which the Court declined to do. “Assumptions are not a substitute for evidence. In this instance, [Appellants’] assertion[s] pile inference upon inference until the entire pyramid topples of its own weight.” P.4. As to [Mondol’s] allegations that the evidence could lead one to the reasonable inference that the Appellee city officials were engaged in a conspiracy, the Court stated that “[t]his is beyond speculative and borders on the preposterous.” P. 7. Congrats to MMLA members Leonard Kesten and his colleagues from Brody, Hardon, Perkins and Kesten, and Somerville City Solicitor Frank Wright for this successful outcome. Click here for the full decision of the Court of Appeals.
Keywords: Beach. Real Property, Beach. Environment, Coastal wetlands. Wetlands Protection Act. Regulation
The SJC today issued its decision in Miramar Park Association, Inc. v. Town of Dennis, in which it vacated adverse findings against the Town made in the Superior Court and vacated an injunction against the Town. The dispute arose over whether ” the town of Dennis violated Massachusetts environmental regulations by requiring that materials dredged from the mouth of a tidal river be deposited on a publicly-owned beach, rather than on an adjacent, privately-owned beach.” The lower court found it did and, among other things, ordered the Town to periodically re-dredge the river and to deposit the dredged material on the plaintiffs’ private beach.. The SJC found insufficient proof that the Town violated any wetlands law. Congratulations to KP-Law attorney and MMLA member Greg Corbo, Esq. for his successful representation of the Town of Dennis. Click here for the full decision of the SJC.
Keywords: Civil Service, Decision of Civil Service Commission, Judicial review, Promotion, Fire fighters. Fire Fighter. Declaratory Relief.
The Appeals Court today issued its decision in Cucchi v City of Newton, et al, in which it held that the strict 30 day appeal period under C. 31, sec. 44 remains unaffected by a motion for rehearing, notwithstanding c. 30A, sec. 14’s reference to motions for a rehearing. The appeal period is not tolled under the applicable law. The case was remanded on the claim for a declaratory judgment, which the lower court had dismissed without explanation.
(Excerpt from decision) – “In Curley v. Lynn, 408 Mass. 39, 41-42 (1990), the court held that a person seeking judicial review of a Civil Service Commission (commission) decision under G. L. c. 31, § 44, as then in effect, was required to file a petition seeking such review within thirty days of receipt of the commission’s decision, and that such time was not tolled by filing a request for reconsideration with the commission. Section 44 was subsequently amended in 1992, primarily to shift jurisdiction to conduct judicial review to the Superior Court, but also to include a cross-reference to judicial review under G. L. c. 30A, § 14. Section 14(1) provides that the timely filing of a petition for rehearing with an agency tolls the time for seeking judicial review of the agency decision.
The question we face here is whether § 44, as now in effect, continues to impose the strict thirty-day deadline for seeking review of commission decisions identified in Curley, or instead whether its cross-reference to § 14 means that the time for seeking review is tolled by the timely filing of a petition for rehearing. We conclude that § 44 continues to impose a strict thirty-day deadline and, thus, we affirm the portion of the judgment dismissing, as untimely, the plaintiffs’ claim for judicial review. As for the plaintiffs’ claim for declaratory relief, however, which was dismissed without explanation, we vacate that portion of the judgment and remand for further proceedings.”
Click here for the full text of the Appeal Court’s decision.
Keywords: Wetlands Protection Act. Zoning, Wetlands. Municipal Corporations, Conservation commission. Practice, Civil, Action in nature of certiorari, Judgment on the pleadings
The Appeals Court today issued its decision in DeLapa v Conservation Commission of Falmouth in which it upheld a decision in favor of the Town on motions for judgment on the pleadings in an appeal of the denial by the Conservation Commission of an NOI under both state and local law to rebuild a pier damaged in a storm.
“In 2015, winter storms caused significant damage to a dock in Falmouth (town) owned by Joanne Delapa, as trustee of the Delcor Realty Trust (Delcor). Delcor sought approval from the town conservation commission (commission) to repair the dock, which would involve, inter alia, driving four pilings into a protected wetlands area. Acting in part pursuant to the town wetlands protection by-law and accompanying regulations, the commission denied Delcor’s application after finding it deficient in various respects. Delcor brought an action in the nature of certiorari to challenge the commission’s denial, see G. L. c. 249, § 4, and on cross motions for judgment on the pleadings, see Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), a Superior Court judge ruled in the commission’s favor. On Delcor’s appeal, we affirm the judgment.”
MMLA member and Assistant Town Counsel Patricia Harris represented Falmouth in this appeal. Click here for the full text of Judge Milkey’s decision.
Hold the Dates! – September 20-22
MMLA 2018 Annual Conference
Red Jacket Beach Resort
South Yarmouth, Cape Cod
Keynote – Justice Andre A. Gelinas, (Ret.)
Keywords: Zoning, Person aggrieved. Practice, Civil, Zoning appeal, Standing, Presumptions and burden of proof, Findings by judge
In its decision today the SJC addressed the question of whether the trial judge could determine sua sponte that a direct abutter’s presumptive standing was rebutted where the defendants did not press the issue at trial. The Court concluded that in the circumstances of the case the judge properly reached the question and affirmed the judgment of dismissal. Click here for the full text of today’s decision. MMLA Vice President Peter Mello represented Framingham on this appeal.
Keywords: Municipal Corporations, Police, Collective bargaining. Police, Assignment of duties, Collective bargaining. Public Employment, Police, Collective bargaining. Labor, Police, Collective bargaining. Arbitration, Collective bargaining, Police. Injunction. Practice, Civil, Preliminary injunction
In this case the Appeals Court ruled that “the transfer and assignment of police officers is within the exclusive managerial authority of the police chief as a matter of public safety pursuant to G. L. c. 41, § 97A, and may not be delegated or contravened through arbitration or collective bargaining.” The Court also concluded that “a municipality seeking to enforce its statutory rights to exclusive managerial authority need not show irreparable harm to be entitled to a preliminary injunction.” Former MMLA President Chris Petrini represented the Town of Framingham in this case. Click here for the full text of the Court’s decision.
Keywords: Municipal Corporations, Removal of public officer, Selectmen. Elections, Recall. Practice, Civil, Preliminary injunction. Injunction
In its decision today, the SJC ruled that a local recall election of a town selectman “may not proceed” because the Town’s recall act (Chapter 27, Acts of 1995) limited the reasons for which a recall election may occur. Justice Budd, writing for the Court, stated that the reasons alleged for the Town’s recall election were not grounded on those established in the act. The recall election petition was brought by ten registered voters of the Town. Click here for the full text of the Court’s decision.