Municipal Law News

Municipal Attorney Positions Posted

The Town of Falmouth and the City of Lawrence are both currently soliciting applications for municipal law positions.  Falmouth will be filling the position of Associate Town Counsel, a position long held by held by MMLA member Pat Harris; and the City of Lawrence is looking to fill 1st and 2nd Assistant City Attorney positions.  For details, visit “Career Opportunities” on this website.

Land Court: VALLEY GREEN GROW, INC. v. TOWN OF CHARLTON

Action taken by the Town of Charlton’s annual town meeting in May of 2018 in the form of a general bylaw of the town purported to bar the conversion of a farm property to an indoor marijuana growing and processing facility.  In the Land Court’s decision, this was an improper attempt to exercise the town’s zoning powers through a general bylaw, the adoption procedures for which fall short of the requirements for zoning bylaws. In granting the plaintiff’s motion for summary judgment, Judge Foster held that the bylaw is “invalid and of no force and effect.”   Click here for the full text of the Land Court decision.

PASSING OF GEORGE DECAS, ESQ., FORMER MIDDLEBORO TOWN

PASSING OF GEORGE DECAS, ESQ., FORMER MIDDLEBORO TOWN

February 22, 2019 – It is with sadness that I report on the passing of our colleague George Decas, Esq.  George was a longtime member of the MMLA (formerly the City Solicitors and Town Counsel Association) and served as president of the CSTC.  He was the long time Town Counsel of Middleboro, a position now held by his colleague and law partner MMLA member Daniel Murray, Esq.

Please see his interesting obituary below.  It is believed that between George, Dan and former Middleboro Town Counsel Hon. (Ret.) Alan Hale, the Town Counsel of Middleboro has had an office in the same historic building for some 80 years.

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Appeals Court: JANICE SMYTH v. CONSERVATION COMMISSION of FALMOUTH

KeywordsEminent Domain, Jury trial, What constitutes taking. Constitutional Law, Eminent domain, Taking of property, Trial by jury. Practice, Civil, Eminent domain proceeding, Jury trial, Judgment notwithstanding verdict

[Excerpt] – “A land owner brought this action in the Superior Court, claiming that local land use regulation effected a taking of her property, requiring just compensation under the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights.  This appeal presents a question of first impression in Massachusetts:  whether the land owner is entitled to have her regulatory taking claim decided by a jury.  We conclude that the jury right does not attach to such a claim, and that the judge erred in denying the defendants’ motion to submit only the question of damages to a jury.  We further conclude that the evidence presented at the trial did not, as matter of law, support a claim of regulatory taking.  We accordingly reverse the judgment in the plaintiff’s favor and direct that judgment enter for the defendants.”         Click here for the full text of the Appeals Court’s decision.

1ST Circuit Court of Appeals – MARK GILBERT v. CITY OF CHICOPEE et al

In this case (Case No. 17-2206, February 8,2019) the Plaintiff, a Captain in the Chicopee Police Department, brought suit against the City of Chicopee et al under 42 U.S.C. 1983, alleging retaliation for exercising his right of free speech protected by the First Amendment. He claimed that his speech was in his capacity as citizen, not in any official capacity.  His case dismissed by the District Court (Justice Ponsor).  The District Court’s decision was here affirmed by the Circuit Court “with costs to appellees”.

In its decision, the First Circuit stated that “[t]his is not a case where Plaintiff wrote a letter or spoke out at a public meeting. Exactly what Plaintiff said, and when, is left very vague.”  The Court went on to say: “Our de novo review of Gilbert’s First Amendment claim is handcuffed by the lack of specificity regarding exactly what speech underlies his claim. Gilbert’s complaint muddlingly sketches a litany of occasions spanning years during which he griped to superiors and investigators, orally and in writing, about the professional behavior of his colleagues or public officials. …However, whether we view Gilbert’s complaint as encompassing one or multiple events of speaking out, the result is the same.”  The Court concluded that Gilbert failed to state a First Amendment claim.

“Because Gilbert’s claim founders at the first prong of the Garcetti v. Ceballos, 547 U.S. 410 (2006)] inquiry — that is, whether Gilbert ‘spoke as a citizen on a matter of public concern’ — we decline to reach the second and third prongs. …”

Click here to read the full text of the Court’s decision, which concludes with some flair:  “We affirm, over and out.”

IMPORTANT MMLA SEMINAR ON NEW SHORT TERM RENTAL LAW

The New Short-term Rental Law –What it Means for Your Community and How to Prepare for it

 Thursday, February 28, 2019, Program 3:30 p.m. – 8 p.m.

Hogan Center, Holy Cross College, Worcester

This program will cover what cities and towns need to know about the new short-term rental law (Chapter 337 of the Acts of 2018, “An Act Regulating and Insuring Short-Term Rentals”). The new law regulates the operation of short-term rentals of property and extends the state and local room occupancy excise to those rentals. The program will explain the key features of the law and its implementation. Topics to be covered include the taxes and fees municipalities may impose, local regulation of the short-term rental industry, what communities need to do now to benefit from this law and pending industry challenges to regulations adopted by other jurisdictions that are similar to those required or permitted under the new law.  This is an ideal program to bring others from your communities to, including administrators, elected officials, finance personnel, planning staff and code enforcement staff and others  Feel free to forward this information to them- they will appreciate it and so will MMLA.  Click here for program details and registration.

SJC: MARIA BELLALTA v. ZBA OF BROOKLINE

In its decision today the SJC – on direct appellate review – affirmed a Land Court decision upholding the Brookline ZBA’s grant of a special permit for the landowner to add a dormer window, which would increase the nonconforming floor area ratio set by the zoning bylaw. The SJC, assuming that this change would increase the preexisting nonconforming nature of the structure, addresses whether (as Plaintiff argues) a variance is required, and concluded that a variance is not required.  The SJC prefaces its decision by saying: “We once again construe the “difficult and infelicitous” language of the first two sentences of G. L. c. 40A, § 6, insofar as they concern single- or two-family residential structures. . . .   These statutory provisions set forth both the exemption afforded to all legally preexisting nonconforming structures and uses from the application of zoning ordinances and bylaws, as well as how those protections can be forfeited or retained when such nonconforming structures or uses are extended or altered.  The statute also accords special protection to single- and two-family residential structures in the event that the nonconformity is altered or extended; it is the extent of that protection in the circumstances here that we clarify.”  And later:  “The language of G. L. c. 40A, § 6, has been recognized as particularly abstruse.  See Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 20 (1987) (“The first paragraph of G. L. c. 40A, § 6 . . . contains an obscurity of the type which has come to be recognized as one of the hallmarks of the chapter“).”    Click here for the full text of the SJC’s decision.

Appeals Court: NICHOLS v. CHIEF OF POLICE OF NATICK

The Appeals Court issued on January 30, 2019 two important decisions on gun licensing- one reversing the revocation and restrictions and one upholding the denial of a license.
In Richard Phipps v Police Commissioner of Boston, the Appeals Court reversed the Superior Court’s affirming of a restriction and revocation, holding that because the  “license was restricted and then revoked based upon a generalized, subjective determination of unsuitability rather than specific, reliable information as required by our case law, and because Phipps demonstrated a proper purpose in seeking an unrestricted license” the restriction was invalid. Click here for the full text of the Opinion.
In Jake Nichols v. Chief of Police of Natick, The Appeals Court ruled that the denial of a LTC to a person who had several year history of drug abuse was within the Chief’s authority.  The District Court had affirmed the denial but the Superior Court reversed.  The Appeals Court ruled that the Superior Court’s review “exceeded the bounds of permissible certiorari review, and reverse[d]”.  Congrats to MMLA member David DeLuca of Murphy, Hesse, Toomey and Lehane who represented the Police Chief in this case (and who spoke on gun license appeals at the MMLA 2018 Annual Conference at the Red Jacket Beach Resort). Click here for the full text of the Opinion.