Municipal Law News

SJC: RICHARD MEYER v. VEOLIA ENERGY NORTH AMERICA

KeywordsWay, Public: defect. Municipal Corporations, Notice to municipality. Notice, Action alleging injury caused by defect in public way. Statute, Construction

In this decision, the SJC ruled that the notice requirements of the “defect in the public way” statute are not applicable to private parties.  The Court summarized as follow:

While riding his bicycle on Sudbury Street in Boston, the plaintiff, Richard Meyer, struck a utility cover that was misaligned with the road surface and injured himself.  Within thirty days of the incident he submitted notice of claim to the city of Boston (city) regarding his injury.  Thirty-one days after the incident, the city informed him that it would not pay Meyer’s claim because the defendant, Veolia Energy North America (Veolia), was responsible for the defect that caused Meyer’s injuries.  A few days later, Meyer gave notice to Veolia and subsequently brought suit against Veolia for negligence.  A judge of the Superior Court granted summary judgment to Veolia and dismissed Meyer’s lawsuit.  He concluded that G. L. c. 84, § 15 (§ 15 or road defect statute), provided the exclusive remedy for Meyer’s claim against Veolia.  He further concluded that Veolia was entitled to notice within thirty days from the date of Meyer’s injury under G. L. c. 84, § 18 (§ 18 or notice statute), but that Meyer had not provided that notice.

We conclude that the decision below was erroneous.  The text of §§ 15 and 18, the legal and legislative history relevant to those statutes, the case law, and the practical realities of providing notice within thirty days all confirm that the road defect and notice statutes apply to governmental and quasi governmental actors responsible for the public duty of maintaining the public way, and not to a private party such as Veolia that has created a particular defect in the way.  Sections 15 and 18 do not limit Veolia’s common-law liability under tort law.  Consequently, Veolia may be sued for its own negligence without providing thirty days’ notice.  Accordingly, we reverse the grant of summary judgment for Veolia.

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

SJC: RCA DEVELOPMENT, INC. v. ZBA OF BROCKTON

KeywordsSubdivision Control, Approval not required, Plan. Practice, Civil, Summary judgment

In the decision issued May 1, 2019, the SJC affirmed the Land Court’s determination that the 1964 division of a lot in Brockton was not a subdivision under the subdivision control law and the City’s zoning ordinance and further that the owners were not otherwise required to seek any planning board action.  After their appeal to the zoning board of appeals was denied the basis that the locus had merged with the adjoining lot and had therefore lost its “grandfathered” status as buildable under the 1963 zoning ordinance, the plaintiffs appealed to the Land Court. There, the plaintiffs argued that the property at issue resulted from a division that did not constitute a subdivision, and that the legitimacy and buildability of the lot should be considered under the 1963 zoning ordinance, which was in effect at the time of the division. The board countered that the lot was unbuildable because the division of the lot did not comply with the subdivision control law, and that the 1963 zoning ordinance should no longer apply because the locus merged with lot 47 due to common ownership. Click here for the full text of the decision.

Appeals Court: POLICE CHIEF OF TAUNTON vs. PAUL N. CARAS, et al

Keywords Firearms. License. Practice, Civil, Judicial review of license to carry firearms, Action in nature of certiorari.
APPEALS COURT REVERSES LOWER COURT’S OVERTURNING CHIEF’S DETERMINATION OF UNSUITABILITY IN GUN CASE
The Appeals Court , in Chief of Police of Taunton v Carras issued today, overturned a District Court’s reversing of a Police Chief’s determination of unsuitability, which was upheld by the Superior Court, and upheld the Chief’s determination.  Of note, the Appeals Court held that the lower courts erroneously substitute their judgment for that of the Chief’s in determining unsuitability.   Click here for the full text of the Court’s decision.
Congrats to MMLA member and Taunton Assistant City Solicitor Daniel de Abreu on his victory in this important case.

Save the Dates!

Save the dates!  MMLA is having 2 great programs over the next 2 months-

1.  Wednesday, April 24, 4:30 p.m. to 8:00 p.m., The Aegean in Framingham
Alcoholic Beverages Licensing Update
2.  Wednesday, May 15, 3:00 p.m. to 8:00 p.m., the Publick House, Sturbridge
9th Annual MMLA Construction Law Program, chaired by Christopher Petrini, Esq.
NOTE CHANGE IN DAY OF WEEK TO WEDNESDAY FOR BOTH THESE PROGRAMS

Appeals Court: JAMES CUTICCHIA et al. v. TOWN OF ANDOVER et al.

KeywordsMunicipal Corporations, Group insurance. Insurance, Group, Premiums. Public Employment, Retirement benefits. Retirement. Statute, Construction. Practice, Civil, Summary judgment.

[Excerpt] “In 2016, the town of Andover increased the percentage share that retired town employees had to pay for their health insurance.  Three retired town employees brought this action alleging that G. L. c. 32B, § 22 (e), prohibited the town from implementing such increases prior to July 1, 2018.[3]  On cross motions for summary judgment, a Superior Court judge ruled that the language of § 22 (e) unambiguously supported the town’s position that the increases were lawful.  For the reasons that follow, we vacate the judgment.” Click here for the full text of the Appeals Court’s Decision.

Municipal Attorney Positions Posted

The Town of Barnstable has posted an RFP for the position of Town Attorney, to fills the shoes of MMLA member Ruth Weil.who is retiring.  Visit “Career Opportunities” for details.

Also, 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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