• The Association's regular monthly program for October covered a broad range of issues relating to alcoholic beverages licensing with a focus on recent legislation governing farmer wineries and breweries.
Municipal Law News

SJC: 135 Wells Avenue, LLC. v. HAC and Newton ZBA

KeywordsMunicipal Corporations, Property, Use of municipal property. Real Property, Deed, Restrictions. Housing. Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals: jurisdiction. Permit

The SJC on direct appellate review upheld the Appeals Court and the Newton Zoning Board of Appeals, confirming that the negative easement held by the city was “a property interest in land,” and that the HAC does not have authority to modify that interest.  The decision goes on to decline to determine “that the purposes for which the restrictive covenant was enacted are now incapable of being attained, and, consequently, that the restrictive covenant should be declared null and void.”  The lower court’s judgment on the pleadings was affirmed. For the full text of the decision go to:   135 Wells Avenue, LLC. v. HAC and Newton ZBA

MMLA News & Notes:

Save the Date . . . December 6th! – A dollar doesn’t go as far as it used to these days. That’s no less true for local governments facing necessary capital projects with ever decreasing financial resources.  Everyone – including our cities and towns – could use “a little help from our friends.”  Come hear how a “P3” might well become such a friend to municipalities. Visit “Upcoming Events” for program details.

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SJC: LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE vs. COURT ADMINISTRATOR OF THE TRIAL COURT

KeywordsMoot Question. Practice, Civil, Moot case. Trial Court. Public Records

The SJC today issued its decision in Lawyers Committee for Civil Rights & Economic Justice v. Court Administrator, et al in which it upheld a Single Justice’s dismissal of the case which sought a court order that the Trial Court produce certain records (thus affirming the Superior Court) as the Public Records Law does not apply to the judiciary, and the issue in any event became moot when the Court provided what documents it had that were responsive to the so-called public records request.  For the full text of the case, click on the following link: LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE vs. COURT ADMINISTRATOR OF THE TRIAL

MMLA Mourns the Passing of a Dear Friend and Mentor to Many – David J. Fenton, Sr.

November 1, 2017 – One of our Association’s best friends and long-time role model for many passed away on November 1st. David J. Fenton, Sr. labored long in the vineyards of the Lowell City Attorney’s office, but always made himself available to his peers in municipal law to discuss legal matters or just enjoy professional friendship. He graced our professional assemblies with his cheerful wit and insightful observations. He was a former president of MMLA. He will be much missed.

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Appeals Court: CARLOS ANDRADE vs. CITY OF SOMERVILLE – Tort Claims Act, Return of Firearms License

Keywords:   Massachusetts Tort Claims Act; Firearms; Licenses; Governmental Immunity; Municipal Corporations, Governmental immunity; Negligence, Governmental Immunity; Police, Negligence; Practice, Civil, Motion to dismiss.

The Appeals Court today issued its decision in Andrade vs City of Somerville in which the City took an interlocutory appeal of the denial of its motion to dismiss claims against it alleging negligence in gun licensing processing and releasing a gun.  Reversing the Superior Court, the Appeals Court held that the city’s conduct was based upon licensing activity described in Section 10(e) of the Massachusetts Tort Claims Act and that the city is accordingly exempt from suit. The decision contains very informative comments regarding gun licensing.  Congratulations to Assistant City Solicitor and MMLA member David Shapiro for this important win for the City.  For the full text of the case, go to the MMLA website at Andrade vs. City of Somerville

Appeals Court: PHILIP SALIBA vs. CITY OF WORCESTER -Lie Detector Tests by Public Employers Prohibited

Keywords:  Practice, Civil, Motion to dismiss. Public Employment, Polygraph test. Statute, Construction

10.27.17 – The Appeals Court today issued its decision in  PHILIP SALIBA vs. CITY OF WORCESTER in which it stated “Massachusetts law prohibits employers, public as well as private, from subjecting applicants for employment, as well as employees, to a ‘lie detector test,’ whether the test is administered in this State or elsewhere.  G. L. c. 149, § 19B. [1]  The statute includes safeguards for employees who assert their rights, provides criminal penalties for those who violate the statute, and permits persons aggrieved by a statutory violation to bring a civil action against the violator for injunctive relief and damages. [2]  This appeal requires us to address a question of first impression, namely, whether § 19B(2) prohibits a Massachusetts employer from considering the results of a lie detector test administered lawfully by an out-of-State employer in connection with an individual’s earlier application for employment in another State. [3]  For the reasons that follow, we conclude that § 19B(2) does not apply in the circumstances of this case, and accordingly, we affirm the judgment dismissing the plaintiff’s complaint.” For the full decision, click on: PHILIP SALIBA vs. CITY OF WORCESTER.

SJC: VIRGINIA B. SMITH vs. CITY OF WESTFIELD – Article 97, Parkland

VIRGINIA B. SMITH v. CITY OF WESTFIELD

KeywordsMunicipal Corporations, Parks, Use of municipal property. Parks and Parkways. Constitutional Law, Taking of property. Due Process of Law, Taking of property.

Excerpt “Article 97 of the Amendments to the Massachusetts Constitution, approved by the Legislature and ratified by the voters in 1972, provides that ‘[l]ands and easements taken or acquired’ for conservation purposes “shall not be used for other purposes or otherwise disposed of” without the approval of a two-thirds roll call vote of each branch of the Legislature. The issue on appeal is whether a proposed change in use of municipal parkland may be governed by art. 97 where the land was not taken by eminent domain and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes. 

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Appeals Court: Commonwealth vs. Michael W. O’Donnell – Administrative Warrant

KeywordsSearch and Seizure, Expectation of privacy, Administrative inspection, Warrant. Constitutional Law, Search and seizure, Privacy. Practice, Criminal, Warrant, Sanitary code violation. Electricity. State Sanitary Code. Municipal Corporations, Building inspector

The Appeals Court decision today in Commonwealth v. Michael W. O’Donnell dealt with the limits of an “administrative inspection” and the circumstances in which a search warrant or administrative inspection warrant is required.

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