Municipal Law News

Appeals Court: ROBERT MURPHY vs. BOARD OF APPEAL OF BILLERICA

Keywords:   Zoning, Lot size. Real Property, Merger. Trust, Revocable trust

The Appeals Court on February 18, 2020 affirmed a decision of the Land Court in a merger case.  Landowner claimed the land continued to have grandfather protection and that the ZBA erred in upholding a denial of a building permit due to inadequate lot size.  At the time the land had become non-conforming there was a more generous zoning provision that insulated the property from merger.  However, several years later that “anti-merger” provision was eliminated.  Landowner claimed the protection from merger continued.  ZBA and Land Court held otherwise.  The Appeals Court affirmed, holding that the lots did merge, notwithstanding the creative forms of ownership created by the plaintiff.  The Land Court distinguished Kneer v ZBA of Norfolk. Click here for the text of the Appeals Court’s decision.

Appeals Court: BRYNA S. KLEVAN v. CITY OF NEWTON

KeywordsPractice, Civil, Summary judgment. Sewer. Municipal Corporations, Sewers. Massachusetts Tort Claims Act. Governmental Immunity. Negligence, Governmental immunity, Duty to warn.

The Appeals Court, in an interlocutory appeal of a denial of immunity defenses raised by Newton in a case involving water and sewerage infiltrating the Plaintiffs home, reversed the Superior Court’s denial of summary judgment which was based on exemptions 10 (b) and 10 (j) of the Tort claims act.  The Appeals Court’s reversal was “because in our view § 10 (j) operates to bar the plaintiff’s claim.”  The Appeals Court only addressed section 10 (b) (discretionary function) in footnotes to the case, since its holding on 10 (j) was dispositive of the appeal.  Congrats to Newton Assistant City Solicitor (and MMLA Amicus Chair) Maura O’Keefe on this important win for municipalities.  Click here for the full decision of the Appeals Court.

SJC: JANICE MAGLIACANE v. CITY OF GARDNER

KeywordsMassachusetts Tort Claims Act. Water. Municipal Corporations, Liability for tort, Water supply, Governmental immunity. Governmental Immunity. Negligence, Governmental immunity. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Class action

In this decision interpreting the Massachusetts Tort Claims Act, Justice Gantz vacated order allowing the city’s motion to dismiss and remanded the case to Superior Court.  An amicus brief was filed in the case by MMLA member Cynthia L. Amara, on behalf of MMLA.  Justice Gantz summarized the case as follows:

     Plaintiff Janice Magliacane is a homeowner in the city of Gardner (city) whose hot water heating system failed prematurely three times due to corrosion of its copper heating coils.  She replaced the coils on the first two occasions but, after the third malfunction, switched out her tankless hot water system for a water heater to avoid additional replacement costs.  She was not alone; as alleged, the hot water heating systems of hundreds of other homeowners in the city also failed because of corroded copper heating coils.

      Magliacane commenced this putative class action suit in the Superior Court alleging that the city and its private water supply contractors, AECOM Technical Services, Inc. (AECOM), and Suez Water Environmental Services, Inc. (Suez) (collectively, defendants), were negligent and grossly negligent and created a nuisance in knowingly supplying corrosive water to the city’s residents.  The city moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and for entry of separate and final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).  After a hearing, the judge allowed the city’s motion to dismiss, concluding that Magliacane failed to make timely presentment as required by the Tort Claims Act (act), G. L. c. 258, § 4.[3]  Magliacane filed a notice of appeal, and we transferred the appeal to this court on our own motion.

      Magliacane contends that her class action claims fall outside the scope of the act because a city historically has been exempt from sovereign immunity when it acts in a “proprietary” or “commercial” capacity by selling water to its residents.  She also argues that, even if her claims are covered by the act, she made timely presentment because the city fraudulently concealed her cause of action, thereby tolling the act’s presentment requirement until she had actual knowledge of her claims.

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Appeals Court: PLYMOUTH RETIREMENT BOARD v. CRAB

Keywords:   Employment, Police, Retirement. Statute, Construction. Contributory Retirement Appeal Board

In a ruling issued today, the SJC overturned a Superior Court judgment in favor of the Plymouth Retirement Board which held that an officer seeking to buyback time as a permanent intermittent did not have to make payments in G.L. c. 32, sec. 4(2).  Interpreting the statute differently, the SJC ruled that such payments had to be made even though the statute did not clearly state so. Click here for the full text of the case.

 

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.