Municipal Law News

Appeals Court: JOSEPH LEONARD v. ZBA OF HANOVER

Keywords:   Zoning, Nonconforming use or structure, By-law, Judicial review, Appeal. Statute, Construction

In yet another case the Appeals Courts again revisits the “infelicitous” and “impenetrably dense” text of G.L. c. 40A, Sec. 6, dealing with nonconforming uses and structures.  In this case, the Leonards had operated a florist shop in the Town of Hanover for some time.  The florist shop has displayed and sold flowers, pumpkins, and other seasonal plant products from inside and outside of a building in the town’s commercial zoning district.  The building commissioner told the Leonards that outdoor display of goods requires a special permit. A concrete barrier had been constructed along their property to separate it from an abutting restaurant property.  Assorted enforcement actions led to this appeal. On cross motions for summary judgment, the Superior Court judge declared that the Leonards’ outdoor displays were not lawful prior nonconforming uses and therefore required a special permit, thereby upholding the town’s cease and desist orders.  But the judge also found that the placement of concrete barriers was not an “alteration” of the property and did not require a special permit or site plan approval under the town’s zoning bylaw, reversing the cease and desist order relating thereto.  The Appeals Court today vacated in part and reversed in part.  Click here for the full text of the Appeals Court’s decision.

SJC: BOSTON POLICE DEPT. v. CIVIL SERVICE COMMISSION

Boston Police improperly bypassed candidate due to hair testing

Keywords:   Civil Service, Police, Appointment, Testing, Decision of Civil Service Commission, Findings by commission, Judicial review. Labor, Police, Civil service, Judicial review. Municipal Corporations, Police. Police, Hiring. Public Employment, Police. Administrative Law, Judicial review, Substantial evidence. Practice, Civil, Review of administrative action

The Civil Service Commission ruled correctly in finding that the Boston Police Department had not sufficiently demonstrated that an officer candidate had used illegal narcotics when it relied on a single disputed hair test, the Supreme Judicial Court ruled 6-1 on Oct. 30.  [Quoted from Mass Lawyers Weekly on-line headline] – Click here for the full text of the SJC decision.

We thank James Timmins for submitting an amicus brief on behalf of the MMLA.

Appeals Court: BARRY BLOOMSTEIN v. DEPARTMENT OF PUBLIC SAFETY

KeywordsLicense. State Building Code. Administrative Law, Decision, Findings, Proceedings before agency. Moot Question

The Appeals Court today issued its decision in Bloomstein v Department of Public Safety, in which the DPS had increased a recommended 3 month suspension of a construction supervisor’s license to 12 months.  The Superior Court upheld that action.  The Appeals Court reversed and remanded, finding numerous procedural errors by the agency and non-compliance with G.L. c. 30A process.  Among other errors, the Board members who did not hear the case did not read the record.  One member stated on the record “that she “[j]ust couldn’t even imagine reading through all these exhibits.”  Click here for the full text of the Appeals Court’s decision.

Appeals Court: PAUL C. NORDBERG v. COMMONWEALTH

KeywordsDepartment of Youth Services. Statute, Appropriation of money, Construction. Declaratory Relief. Jurisdiction, Declaratory relief, Justiciable question. Practice, Civil, Declaratory proceeding, Motion to dismiss. Governmental Immunity

The Appeals Court on Thursday issued its decision in Nordberg v. Commonwealth, in which it upheld in part and reversed in part a suit by a private individual against the state over line items set forth in general appropriation acts.  The case provides a helpful discussion of private rights of action against the government and sovereign immunity.  Click here for the Appeals Court’s decision.

Appeals Court: EDWARD McGOVERN v. STATE ETHICS COMMISSION

KeywordsState Ethics Commission. Conflict of Interest. Administrative Law, Conflict of interest, Substantial evidence, Judicial review. Evidence, Administrative proceeding, State of mind, Expert opinion. Police Officer. Motor Vehicle, Investigation of accident. Probable Cause

The Appeals Court  issued on Thursday its decision in McGovern v State Ethics Commission in which it upheld  the SEC’s findings of violations of the Conflict of Interest Law by a police lieutenant in giving preferential treatment to a fellow police officer in an alcohol related motor vehicle incident.  The case is particularly informative by its analysis of substantial evidence and other administrative law issues. Click here for the full text of the Appeals Court’s decision.

MCLE: “1st Look” at What Municipal Counsel Needs to Know When Cannabis Comes to Town

MMLA would like to call to your attention an important and timely legal educational program by our long-time partner MCLE. It is entitled:

“1st Look” at What Municipal Counsel Needs to Know When Cannabis Comes to Town –
Learn how to navigate and advise your town
on the burgeoning new, multifaceted cannabis industry.

In-Person Program Thursday, 10/17/2019, 3:00 pm – 5:00 pm, MCLE Conference Center, Ten Winter Place, Boston

Live Webcast Thursday, 10/17/2019, 3:00 pm – 5:00 pm, Live Webcast, www.mcle.org, Live Webcast

Recorded Webcast Thursday, 10/31/2019, 9:00 am – 11:00 am, Recorded Webcast, www.mcle.org, Recorded Webcast

For more program details, and additional information on this program and for registration information, click here.

SJC: McLean Hospital Corporation v. Town of Lincoln

KeywordsZoning, Educational use. Education, Zoning. Words, “Educational purpose.” 

Reversing the decision of the Land Court, the SJC’s decision rejected the Land Court’s denial of “Dover Amendment” protections to McLean’s residential program reasoning that the Land Court’s conclusion that program activities were medical and not educational for purposes of G.L. c. 40A, Section 3, was wrong.  Click here for the full text of the SJC opinion.

SJC: Joseph P. Marchese v. Boston Redevelopment Authority

Keywords: Eminent Domain. Authority for taking. Redevelopment Authority. Urban Renewal. Easement. Uniform Procurement Act. Practice. Civil. Eminent domain proceeding. Standing. Judgment on the pleading

The Supreme Judicial Court today issued its decision in  JOSEPH P. MARCHESE vs. BOSTON REDEVELOPMENT AUTHORITY,in which it held that the plaintiff, described as “merely a private party with neither a property interest nor an existing business…adversely affected” by the 2013 taking of an easement in Yawkey Way by the Boston Redevelopment Authority, lacked standing to challenge the process by which the Red Sox subsequently acquired rights in the street.

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