Aug 12

Keywords:   Practice, Civil, Motion to dismiss, Summary judgment. Superior Court. Rules of the Superior Court. Administrative Law, Primary jurisdiction, Exhaustion of remedies. Unjust Enrichment. Contract, Collective bargaining contract, Unjust enrichment, Promissory estoppel. Public Employment, Collective bargaining. Police, Collective bargaining. Massachusetts Wage Act. Civil Service, Collective bargaining, Municipal finance. Municipal Corporations, Collective bargaining, Municipal finance. Continue reading »

Jul 20

Keywords: Courthouse. Zoning, Nonconforming use or structure, Governmental use. Governmental Immunity. County, Municipal zoning by-laws. Municipal Corporations, Governmental immunity, By-laws and ordinances.

The Appeals Court today issued its decision in Graham Gund v. Planning Board of Cambridge.  The court ruled that even though the structure would not have conformed to the zoning if it had not been a government building (and therefore, not subject to the zoning), the fact that it “conformed” because it was not in violation, being a government building, means that it was conforming prior to the change in zoning. which provided. “The sole issue on appeal is whether the court house, when it loses its governmental immunity by transfer to the developer, will constitute a preexisting nonconforming structure under G. L. c. 40A, § 6, and § 8.22.2(a) of the relevant zoning ordinance such that redevelopment may be approved by special permit.[3] A judge of the Land Court concluded on summary judgment in a well-reasoned decision that c. 40A, § 6, and § 8.22.2(a) of the zoning ordinance govern the developer’s efforts to redevelop the property, and we affirm”

For the full text of the case click on: Graham Gund v. Planning Board of Cambridge

Jul 18

Keywords: Courthouse. Zoning, Nonconforming use or structure, Governmental use. Governmental Immunity. County, Municipal zoning by-laws. Municipal Corporations, Governmental immunity, By-laws and ordinances. 

In an important employment case dealing with medical marijuana, the SJC issued on July 17th its decision in Barbuto v Advantage Sales in which it stated “The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer.  We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff’s discrimination claims.  We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.”  For the full text of the decision, click on: Cristina Barbuto v Advantage Sales and Marketing, LLC

Jul 18
Keywords: Municipal Corporations, Conservation commission, Bylaws and ordinances. Wetlands Protection Act.
In Cave Corp. v. Conservation Commission of Alttleboro the Appeals Court on July 14 found ” no error of law in the conclusion by the judge that the imposition by the commission of condition number twenty-nine, prohibiting disturbance of land within the wetlands protection zone, was supported by substantial evidence and was not arbitrary or capricious.” See also for discussion of effect of Commission failing to hold hearing timely.  For the full text of the decision, click on: Cave Corporation v Conservation Commission of Attleboro
Jul 06

Lisa Soronen, Executive Director of the State & Local Legal Center, with whom IMLA and MMLA often partner in municipal law advocacy, has authored a very informative series of articles on Supreme Court cases relevant to local governments from the term ending last week.  SLLC has graciously invited us to share this useful summary.   Click here access the full text of this series of articles.

Lisa Soronen
Executive Director
State & Local Legal Center
444 North Capitol Street, N.W., Suite 515
Washington, D.C. 20001
Phone: (202) 434-4845
Fax: (202) 737-1069
Email: lsoronen@sso.org
Website: http://www.statelocallc.org/
Twitter: @SLLCSCOTUS

Jun 26

The SJC today issued its decision in George v. National Water Main Cleaning Company in which it held that “that, under Massachusetts law, statutory prejudgment interest pursuant to G. L. c. 231, § 6H, shall be added by the clerk of court to the amount of lost wages and other benefits awarded as damages pursuant to G. L. c. 149, § 150, but shall not be added to the additional amount of the award arising from the trebling of those damages as liquidated damages.” For the full text of the case, click on the following link: George v. National Water Main Cleaning Company

Additional Legal News from IMLA:   Continue reading »

Jun 23

The Supreme Court of the United States today issued its decision in MURR ET AL. v. WISCONSIN ET AL. CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN No. 15–214. (Argued March 20, 2017—Decided June 23, 2017).  Long awaited by municipalities throughout the country, the issues in the case afforded SCOTUS with an opportunity to revisit takings jurisprudence. The Court affirmed the “parcel as a whole” approach to a takings challenge in the context of zoning provisions triggering a “merger” of lots, and whether the application of merger provisions results in a compensable taking. Continue reading »

Jun 15

In a decision issued yesterday [People for the Ethical Treatment of Animals, Inc. v. Department of Agricultural Resources, Docket #12207], the SJC reversed and remanded the Superior Court’s earlier judgement in favor of the Massachusetts Department of Agricultural Resources, in which the Superior Court upheld the Department’s redaction of portions of departmental records relating to animal health. The SJC decision stated:

This case concerns the scope of two exemptions from the statutory definition of “public records.”  Specifically, it probes whether information, such as names, addresses, telephone numbers, and other information, contained on animal health certificates in the custody of the Department of Agricultural Resources, is subject to disclosure in response to a public records request.  A Superior Court judge determined that such information is protected from disclosure under statutory exemptions G. L. c. 4, § 7, Twenty-sixth (n) and (c), implicating, respectively, public safety and privacy.  For the reasons that follow, we vacate that order and remand for further proceedings consistent with this opinion.

Noting the absence of prior cases laying out how exemptions (n) and (c) might apply to the facts of the case, the Court gave de novo review and construction of both.  Click here for the full text of the decision.

 

May 25

In a decision issued on Mary 23rd, the Land Court (Judge Karyn F. Sheier) upheld the decision of the Hull ZBA, which had affirmed the Building Commissioner’s order to the owner of a lawful pre-existing two-family dwelling in a single-family residential zone to cease and desist from weekly rentals.  [Lytle Trustee v. ZBA of Hull, 13 MISC 480974]  The Court held that the weekly rental was a commercial enterprise in a residential zone, and thus inconsistent with the purposes of the district. Not finding the ZBA’s decision to be “arbitrary, capricious, whimsical, or unreasonable,” the Court denied summary judgment to the Plaintiff and granted summary judgment to the ZBA.  The decision of the court offers an interesting analysis of the Town’s zoning bylaw, and the extent to which deference is appropriate to the ZBA’s interpretation of the bylaw and the ZBA’s reference to external sources to support its interpretation. Click here for the full text of the decision.

Feb 23

The Appeals Court, in Alexis D. Coren-Hall v. MBTA  (16-P-300)  decided today, ruled that the Superior Court should have granted the MBTA summary judgment due to the defective presentment of the claim.  Claim needed to be presented to MBTA “executive officer” but wasn’t.  Superior Court denied motion, finding that the executive officer had notice even though presentment was defective. For the full slip opinion, click on:  Alexis D. Coren-Hall v. MBTA.

 

Nov 22

SJC issued today a decision in SEIU v. Department of Mental Health, holding that the union could challenge a determination by the DMH that it did not have to comply with the Pacheco Law concerning privatization of services.  The SJC had previously rejected DMH  claim that the union lacked standing and found in this case that “Because unreviewable agency decision-making on such a matter would thwart legislative intent, we concluded that in these circumstances “declaratory judgment is an appropriate vehicle for relief to ensure that agencies may not evade the requirements of the Pacheco Law with impunity.”  The SJC vacated the judgment of dismissal and remanded the case for joinder of necessary parties.  Click here to view the full decision. 

Nov 15

In a decision released today – James R. DeGiacomo, trustee v. City of Quincy the SJC affirmed summary judgment granted to the City of Quincy in a major trust case, finding that the successor trustee could not challenge a long term lease, so finding on, among other reasons,  grounds of res judicata and collateral estoppel, etc.  There had been a 1972 case in which a court ruled that the lease was properly entered into.  The trust/beneficiary of the trust bringing the present case was not a party to those proceedings. Congratulations to MMLA Executive Board member and Quincy City Solicitor James Timmins on this decision. Click HERE for the full text of the decision.

Oct 21

On October 20th, the Appeals Court issued a decision in Brown v. Kalicki deciding that accreted beachfront property took on the status of registered land as it accreted and without recourse to court proceedings to amend the certificates of title. Interveners claimed prescriptive rights over this now accreted land. The lower court judge ruled that the accreted beachfront automatically became registered, and, therefore, was protected from the interveners’ claims that they have a prescriptive easement to use the beach area on the plaintiffs’ land.  On the lower court decision, the Appeals Court wrote: “The question for the judge was whether the accreted beachfront took on the status of registered land as it formed, or whether registered status could be obtained only through court proceedings to amend the certificates of title. The judge ruled that the accreted beachfront automatically became registered, and, therefore, was protected from the interveners’ claims that they have a prescriptive easement to use the beach area on the plaintiffs’ land. Applying well-established standards of review, we affirm.” Click here for the full text of this decision.

Oct 14

PARTIES: Kalu v. Boston Retirement Board
HEARING DATE: May 4, 2016
DECISION DATE: October 14, 2016
Contributory Retirement Appeal Board. Public Employment, Accidental disability retirement, Retirement. Retirement. Practice, Civil, Appeal. Administrative Law, Decision, Judicial review, Official notice, Substantial Evidence.

The Appeals Court issued a decision on retirement law today in Kalu v Boston Retirement Board. The Court held that while the appeal from the denial was timely, the denial by the Board and CRAB was not proper and remanded the matter for further proceedings. Of note, the Court found fault with CRAB’s considering evidence not in the record and without giving the parties notice and opportunity to present evidence. Continue reading »

Oct 12

SJC Issues 2 Decisions of Importance to Cities and Towns

1.  10.11.16 – The SJC has issued its opinion in Brown v. Commissioner of Probation and ruled that sovereign immunity has not been waived for post judgment interest.  The Court held that “In this case, we consider whether sovereign immunity bars a plaintiff who is awarded punitive damages, costs, and attorney’s fees as part of a judgment under G. L. c. 151B, § 9, from recovering post judgment interest on those awards from a public employer.  The trial judge denied a request by the plaintiff, Helen Brown, for such interest, concluding that sovereign immunity has not been waived with respect to such interest, and judgment was entered accordingly.  A divided panel of the Appeals Court affirmed the judgment, see Brown v. Office of the Commissioner of Probation, 87 Mass. App. Ct. 729, 735 (2015), and we allowed the plaintiff’s application for further appellate review.  Because we conclude that G. L. c. 151B, § 9, does not waive sovereign immunity from liability for post judgment interest, either expressly or by necessary implication, we affirm.” 

2.  Also, the SJC affirmed a Land Court decision that applied the rule of Murphy v. Mart Realty of Brockton, Inc.., 348 Mass. 675 (1965),in finding it was improper that a path for a trail to cross over the easement in question and then continue onto the fourth parcel, given that the easement was not intended to serve that parcel.  In Taylor v. The Martha’s Vineyard Land Trust the SJC declined to find that the rule of Murphy was applied too rigidly and that a fact intensive analysis should have been applied.

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