This Zoom Webinar is scheduled for Wednesday, January 12th, at 2:00 PM. During this lunch time program, Ralph Sacramone, Executive Director of the Alcoholic Beverage Control Commission, will address issues related to pop-up beer gardens, and farmer brewers manufacturing and pouring licenses. Other topics to be discussed include alcohol delivery, April 1 status and emergency temporary outdoor seating vs permanent outdoor seating. For details, visit our Upcoming Events Calendar.
Municipal Law News
MMLA Webinar – Drafting and Enacting Legislation
MMLA Webinar – Drafting and Enacting Legislation
Wednesday, December 8, 2021
12:00 p.m. – 1:30 p.m.
Zoom Webinar
This lunch time program will provide lawyers new to municipal law and experienced municipal
counsels with an overview of state and local legislative processes. It will explain the state
legislative process, discuss approaches for developing, promoting, monitoring and passing bills,
and provide practical tips for drafting effective state and local legislation, including home rule
petitions, Article 97 land dispositions, bylaws, and ordinances.
Click here for details and registration information.
MEDERI, INC. v. CITY OF SALEM (SJC)
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Keywords: Marijuana. License. Municipal Corporations, By-laws and ordinances, Contracts, Marijuana. Contract, Municipality. Mandamus. Practice, Civil, Action in nature of mandamus, Action in nature of certiorari, Motion to dismiss, Judgment on the pleadings. Regulation.
In a must-read decision issued today, Merderi Inc. v. City of Salem, et al, the SJC upheld the City’s denial of a Host Community Agreement (HCA) to an applicant. The SJC held in part that “[a]lthough we observe that the interplay between the statute and the regulations may have led to consequences perhaps not contemplated by the Legislature or the commission, we nevertheless conclude that Mederi’s claims properly were denied, and thus affirm the decision.” The SJC also reviewed the legislative history of marijuana law in Massachusetts.
The Court rejected Mederi’s request for mandamus, noting that “Nothing in G. L. c. 94G, § 3, imposes a duty on a city or town to enter into an HCA with a prospective recreational marijuana establishment simply because that establishment is able to fulfill the municipality’s HCA requirements. Indeed, G. L. c. 94G, § 3 (d), the provision governing HCAs, merely provides that a prospective marijuana establishment must enter into an HCA with a host community before it can operate. That provision contemplates a negotiation between the host community and the applicant, stating that the HCA must include “all stipulations of responsibilities between the host community and the marijuana establishment.” Id.
The Court also dismissed Mederi’s claim for a cert appeal. ” Because the city had a rational basis for choosing these applicants, its decision not to enter into an HCA with Mederi was neither arbitrary nor capricious. See Attorney Gen., 382 Mass. at 62. Based on the high number of applicants on Highland Avenue, the city ultimately selected two applicants that planned to locate on that street –- Atlantic Medicinal and INSA –- that, in its view, had stronger proposals than Mederi.”
The challenge to the impact fees was also denied, with the Court finding that the applicant did not have standing since they never entered into a HCA. Other challenges met a similar fat
Congratulations to MMLA member and Salem Assistant City Solicitor Victoria Caldwell for this very impressive and important win for municipalities!
ADAM JAMES BRADLEY v. RECORDS ACCESS OFFICER, DEPT. OF STATE POLICE
Keywords: Public Records. Supervisor of Public Records. Police, Records. Constitutional Law, Access to criminal records. Regulation. Practice, Civil, Complaint.
[Excerpt] – “A convicted criminal has a statutory right to request public records concerning the crime he committed and to receive a response consistent with the public records law. The plaintiff, Adam James Bradley, appeals from an order dismissing his complaint alleging violations of the public records law, G. L. c. 66, and various other claims. The complaint alleged that the defendant, the records access officer (RAO) for the Department of State Police (department),[1] violated the public records law by ignoring Bradley’s requests for records, as well as two orders issued by the Commonwealth’s supervisor of records (supervisor) directing the RAO to respond. A Superior Court judge allowed the RAO’s motion to dismiss for failure to state a claim, and a judgment dismissing the complaint entered. Because Bradley plausibly alleged violations of the public records law, we vacate in part the judgment, and remand the case for further proceedings.”
Also of note is the Appeals Court’s discussion of the often raised denial of a request on the basis that the requester has a unique right of access via another forum. The Appeals Court decision calls into question the usefulness of that provision of the AG’s regulations. The Court stated: “Based on ‘the plain language of the regulation,’ Theophilopoulos v. Board of Health of Salem, 85 Mass. App. Ct. 90, 101 (2014), we interpret the references to ‘a unique right of access’ as stating only that the procedures of public records law do not apply to other statutory, regulatory, or judicial processes that give individuals specific avenues for obtaining specific categories of records.. . . Requests for records under those regimes are not governed by the public records law, and are not subject to appeal to the supervisor. The references to ‘a unique right of access’ made it explicit that the supervisor has no authority with respect to the enforcement of rights of access outside the sphere of the public records law.”
This case warrants close review by municipal counsel.
DOWNLOAD the decision of the Appeals Court
ROBERT D. FRATUS, JR. v. TOWN OF HARWICH (App.Ct.)
Keywords: Subdivision Control, Access ways. Way, Public: subdivision control. Statute, Construction. Mandamus. Practice, Civil, Summary judgment, Action in nature of mandamus, Standing.
Synopsis: “At issue is whether the plaintiff, Robert Fratus, Jr., has a private right of action to require the town of Harwich and its board of selectmen (collectively, town) to widen and pave two roads abutting his property and upon which he travels. Although Fratus acknowledges that there are no specific defects in the two roads, and that he has not been injured by traveling on them, he nonetheless contends that he has a private right of action as an abutter and traveler to compel the town to maintain the roads “so that they may be reasonably safe and convenient for travelers.” G. L. c. 84, § 1. Ruling on cross motions for summary judgment, a Superior Court judge disagreed, and dismissed Fratus’s complaint for declaratory judgment and mandamus relief. We affirm.”
DOWNLOAD the decision of the Appeals Court
DON PERRY v. ZBA OF HULL (App.Ct.)
Keywords: Zoning, Appeal, By-law, Building permit, Frontage, Lot. Way, Private. Practice, Civil, Zoning appeal
Synopsis: “The plaintiff, Don Perry, appeals from a judgment of the Land Court affirming the decision of the zoning board of appeals (board) of the town of Hull (town), allowing the defendants, Anne Veilleux and Charles Williams (owners), to build a house on property (locus) abutting Perry’s property. As the board reasonably construed the town’s zoning bylaw (bylaw) to distinguish between how frontage on a public street and frontage on a private way is calculated, we conclude that the owners have sufficient frontage to build the house. Further concluding that Perry’s other arguments lack merit, we affirm.” Congratulations to Hull Town Counsel Jim Lampke for this win!
DOWNLOAD the decision of the Appeals Court.
COMMERCIAL WHARF CONDOMINIUM ASSOCIATION v. DEP ( App.Ct.)
COMMERCIAL WHARF CONDOMINIUM ASSOCIATION v. DEP ( App.Ct.)
The Appeals Court today issued a decision in which it upheld the Department of Environmental Protection’s decision that a condo association needed a Chapter 91 license for activities on Boston’s Commercial Wharf. The decision discusses the history and law from 1862 and presents helpful information on Chapter 91 licenses and waterfront uses.
DOWNLOAD – decision of the Appeals Court
MMLA Membership Application and Dues Notice 2021-2022
MMLA Membership Application and Dues Notice 2021-2022
On June 28, 2021, members were emailed via Survey Monkey their membership applications for the MMLA membership year that begins July 1, 2021 and ends June 30, 2022. This year we are again asking members to apply electronically using Survey Monkey. The electronic application is easy to complete and an efficient way for us to update our membership records.
The email provided the information you need to apply through Survey Monkey. When you complete the application, you will receive a confirmation email from Survey Monkey with a link to your application. Please print the application and mail it with your dues payment to the MMLA office:
Massachusetts Municipal Lawyers Association, Inc.
115 North Street, Suite 3
Hingham, MA 02043
If you did not receive a Survey Monkey email invitation, use the following link and we will email you a PDF of your completed application to print: https://www.surveymonkey.com/r/MMLAMembership2021-2022.
Download, complete and print this hardcopy Membership Application Form 2021-2022.
If you did not receive the email from Survey Monkey, have difficulty applying electronically or have difficulty printing your application, please contact Kathleen Colleary at kcolleary@msn.com for assistance.