Municipal Law News

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.

SJC: MARY ALICE BOELTER vs. WAYLAND BOARD OF SELECTMEN

KeywordOpen Meeting Law. Municipal Corporations, Open meetings, Selectmen. Moot Question. Attorney General

In its decision issued today the SJC interpreted for the first time the meaning of “deliberation” as used in the state’s Open Meeting Law. The following is excerpted from that decision:

“The plaintiffs, all registered voters in the town of Wayland (town, brought this action in the Superior Court to challenge the procedure by which the board of selectmen of Wayland (board) conducted the 2012 performance review of the town administrator.  The chair of the board had circulated to all board members, in advance of the public meeting where the town administrator’s evaluation was to take place, board members’ individual written evaluations, as well as a composite written evaluation, of the town administrator’s performance.  The board made public all written evaluations after the open meeting.  The issue before us is whether the board violated the Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a), which generally requires public bodies to make their meetings, including “deliberations,” open to the public. . . .

We conclude further that the procedure the board followed in conducting the town administrator’s evaluation did violate the open meeting law.  In making this determination, we consider, for the first time, the meaning of the open meeting law’s exemption to the definition of “[d]eliberation,” which became effective in July, 2010, that permits members of public bodies to distribute to each other “reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”

Click here for the full text of the SJC’s decision.

Appeals Court: ALLISON ST. LAURENT vs. MIDDLEBOROUGH GAS & ELECTRIC DEPARTMENT

Keywords:   Municipal Corporations, Municipal electric plant, Governmental immunity. Middleborough. Massachusetts Tort Claims Act. Statute, Construction

The Appeals Court today issued its decision in St. Laurent v. Middleborough Gas & Electric Department in which it held that the Defendant was a public employer under the Tort Claims Act.  The Plaintiff had argued otherwise.  The Court remanded the matter to the trial court to address whether proper presentment had been made.   Click here for the full text of the decision.

Appeals Court: COURNOYER vs. DEPARTMENT OF STATE POLICE

KeywordsState Police. Retirement. Police, Retirement, Training program, Authority of police chief. Public Employment, Police, Retirement, Reinstatement of personnel.

The Appeals Court today issued its decision in Cournoyer v Department of State Police, in which it held  that G. L. c. 22C, § 24A, does not require the State Police to develop individualized training programs for former State police troopers seeking reinstatement and could require them to complete recruit training at the State police academy.  “Concluding that the statute is unambiguous and that the department may require former troopers separated for more than three years to complete recruit training, we affirm, ordering that the judgment be modified to declare the rights of the parties.”   Click here for the full decision.

Appeals Court: BRUNO vs. TISBURY ZBA

Keywords:   Subdivision Control, Approval not required, Zoning requirements. Zoning, Enforcement, Nonconforming use or structure. Practice, Civil, Summary judgment, Zoning appeal, Statute of limitations. Limitations, Statute of.

Plaintiffs brought this action under G.L. c. 40A, § 7, in 2014, just shy of 10 years from the landowner’s conveyance of a “lot” shown on a 2001 ANR plan.  The Court summarized:  “The Goethals [landowners] subdivided a piece of land on which there was a primary house and a guesthouse, separating the two structures and leaving the guesthouse on an undersized lot.  We conclude that the ten-year statute of limitations under G. L. c. 40A, § 7 ‑‑ which governs actions to compel the removal of a structure because of alleged zoning violations ‑‑ commenced at the time that the lot containing the primary house was conveyed [2005], rather than at the endorsement of the approval not required (ANR) subdivision plan [2001]. The Plaintiff claims to have brought this action in 2014.  As the Land Court judge concluded otherwise, we reverse that portion of the judgment and remand for further proceedings, while affirming the judge’s denial of the Brunos’ request for attorney’s fees and costs from the members of the board.”  Click here for the full text of the decision.

 

Governor Releases Environmental Bond Bill

Gov. Baker today released an environmental bond bill that includes, among other things, a new local option procurement tool to deliver water infrastructure projects using public-private partnerships (P3).  This language would authorize cities, towns, districts and redevelopment authorities the ability to use alternative project procurement and financing methods (such as design-build, design-build operate and design-build-operate-finance) instead of  traditional design-bid-build under Chapter 30, Section 39M.  Click here for the full text of the bill.

Appeals Court: CITY OF BEVERLY vs. BASS RIVER GOLF MANAGEMENT, INC.

The Appeals Court today issued its decision in City of Beverly v Bass River Golf Management, Inc., et al in which it upheld a trial court verdict in favor of the City of Beverly against an operator of the municipal golf course for breach of contract.  Proceedings against another defendant were stayed pursuant to the automatic stay resulting from a bankruptcy filing.  The counterclaim against the city, which included claims under G.L. c. 93A,  was unsuccessful.  Congrats to MMLA members from the City of Beverly Law Department- City Solicitor Stephanie Williams and Assistant City Solicitor Eitan Goldberg- on this successful outcome.  Golf course management cases have been problematic for several municipalities- be forewarned. Click here

SJC: George Caplan vs. Town of Acton

KeywordsConstitutional Law, “Anti-aid” amendment. Massachusetts Community Preservation Act. Historic Preservation. Church.

The SJC today issued its much awaited decision in this case – George Caplan vs. Town of Acton – addressing the anti-aid amendment as it relates to the Community Preservation Act. The Court wrote:  “We conclude that the constitutionality of such grants must be evaluated under our three-factor test:  a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment.  We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.  Because the judge applied this three-factor test incorrectly in denying the plaintiffs’ motion for a preliminary injunction to prohibit disbursement of these grants, we vacate the order denying the motion.  As to the grant to preserve the stained glass windows in the main church building, we remand the case to the Superior Court for entry of an order allowing the plaintiffs’ motion for a preliminary injunction barring disbursement of the grant.  As to the grant to fund a “Master Plan” to preserve all three of the buildings belonging to the church, we remand for further proceedings consistent with this opinion.”