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: Malden Police Patrolman’s Association v. City of Malden

 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.

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Appeals Court: Graham Gund v. Planning Board of Cambridge

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

SJC: Cristina Barbuto v. Advantage Sales and Marketing, LLC

 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

Appeals Court: Cave Corp. v. Conservation Commission of Attleboro

Keywords: Municipal Corporations, Conservation commission, Bylaws and ordinances. Wetlands Protection Act.

In Cave Corp. v. Conservation Commission of Attleboro 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

U S Supreme Court – Summary of State and Local Cases

 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

SJC – Statutory Prejudgment Interest Not Applied to Trebled Damages

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:  

Last Day of the 2016 Supreme Court Term

Today was the last day of the 2016 Supreme Court term, and the Court did not disappoint. IMLA will send separate analyses out for the cases that warrant it, but here are some highlights from today’s opinions and orders.

In Hernandez v. Mesa, the case that involved a US border patrol agent shooting and killing an unarmed Mexican teenager, in terms of qualified immunity, the Court concluded that “facts an officer learns after the incident ends – whether those facts would support granting immunity or denying it – are not relevant.” The majority of the analysis of this case pertained to Bivens and the extension of that doctrine to these facts, but the qualified immunity issue is important and relevant to local governments.

In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that the State’s policy of denying grants for the installation of playground surfaces to applicants owned or controlled by a religious entity violated the Free Exercise Clause of the First Amendment because it denied the Church an otherwise available public benefit on account of its religious status.

The Court also granted two important petitions for certiorari. First, it granted the “travel ban” cases and consolidated them (Trump v. International Refugee Assistance Project and Trump v. Hawaii). The Court also agreed to stay part of the lower court’s injunction. Specifically, the Court granted the stay to “the extent the injunctions prevent enforcement of §2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” But the Court left the remainder of the injunction in place with respect to respondents and those similarly situated. The Court ordered this case to be docketed for oral argument in October. The second notable grant was Masterpiece Cakeshop v. Co. Civil Rights Comm’n. The issue in this case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

The Court denied certiorari in Town of East Hampton v. Friends of East Hampton, a preemption case in which IMLA participated as an amicus. The Court also denied certiorari in Peruta v. California, which involved the question of whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law. Justice Thomas and Gorsuch dissented in the denial of certiorari in the Peruta case.

Finally, as noted on Friday, the Supreme Court issued a major decision in a takings case: Murr v. Wisconsin. IMLA will be hosting a webinar on this case in the coming weeks, so please stay tuned for the announcement of that webinar.

A link to the Supreme Court opinion page where you can find each of the above-referenced opinions is below.