Municipal Law News

Appeals Court: CROSSING OVER, INC. v. CITY OF FITCHBURG

KeywordsAutomatic Sprinkler Appeals Board. Lodging House. Zoning, Lodging house. Fair Housing Act. Anti-Discrimination Law, Housing

[Excerpt] – The plaintiffs, Theodore Bronson and Crossing Over, Inc. (collectively, Crossing Over), and the intervener, the Massachusetts Alliance for Sober Housing, Inc., appeal from a partial judgment on the pleadings entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), dismissing Crossing Over’s claims for injunctive relief and damages against the defendants, the city of Fitchburg (city), the city’s fire prevention bureau (fire department), and the Automatic Sprinkler Appeals Board (board), in which Crossing Over sought to bar the enforcement of an order of the city fire chief requiring installation of sprinklers in the plaintiffs’ sober home.[3]  In the two counts before us, Crossing Over, the operator of a sober home, contends that the fire department’s enforcement of the sprinkler law, G. L. c. 148, § 26H, against its sober home[4] violates G. L. c. 40A, § 3, because § 3 prohibits the enforcement of laws and regulations that impose restrictions on facilities serving the disabled that are not imposed on family units of similar size.

We conclude that the sprinkler law is a State law that is unaffected by the prohibitions against local enforcement contained in G. L. c. 40A, § 3.  We therefore affirm the judgment entered on the first two counts of the complaint, but remand for consideration of the plaintiffs’ disability discrimination claims under State and Federal law.

Click here for the full decision of the Appeals Court.

Wednesday COVID-19 Zoom Conference

On Wednesday, November 18th, the Association held another Covid-19 Legal Issues Call.

The topic was thr new changes to the tolling law, which go into effect December 1, 2020.  As you will recall, section 17 of c. 53 of the Acts of 2020 provided for a tolling on applications and hearings of local boards.

Last week the Legislature enacted Chapter 201 of the Acts of 2020, which in sections 33, 34, 35, 36 and 37 made important changes to the tolling provisions of section 17 of c. 53 of the Acts of 2020, effective in a few weeks on December 1, 2020.

This week’s conference call featured a discussion led by MMLA member Susan Murphy of  Dain, Torpy, Le Ray, Wiest & Garner, P.C. and one of Hingham’s Town Counsels .  Susan has alerted us to this change and also prepared a help redlined version of sec. 17 showing the changes.  See attached and excerpt from the new law.

We thank Susan for alerting us to this and for her helpful information.

We will notify you of the next Zoom conference and conference link.

Memo on modifications (Nathaniel Stevens)
Chapter 201 Modification of Sec. 17 of Chapter 53 (Susan Murphy)
Chapter 201 Modification of Sec. 17 of Chapter 53 (Susan Murphy)
MACC Alert to Conservation Commissions
MACC Link #1
MACC Link #2

Appeals Court: WETLANDS TRUST of SOUTHEASTERN MASSACHUSETTS v. CEDAR HILL RETREAT CENTER

KeywordsReal Property, Conservation restriction. Practice, Civil, Findings by judge, Presumptions and burden of proof. Waiver

“In this case, we interpret a conservation restriction (restriction) voluntarily placed on a parcel of real property owned by the defendant, Cedar Hill Retreat Center, Inc. (Cedar Hill).  The plaintiff, Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust), contends that a Superior Court judge incorrectly construed certain provisions of the restriction, and that, as a result, the judge erred in determining that Cedar Hill did not violate the restriction.  We agree that the judge’s interpretation of one provision of the restriction was inconsistent with its plain meaning.  However, we affirm the judgment because we agree with the judge that Wildlands Trust did not prove that Cedar Hill committed a breach of the restriction as properly construed.”

The Appeals Court here offers a very helpful overview of conservation restrictions governed by G.L. c. 184, §§ 31-33, best described as “negative easements”, under which the fee owners of the restricted land retain possessory interests in the land while non-possessory interests are owned and enforceable by the owner of the conservation restriction (typically a governmental agency or conservation trust). The points of abrasion that often occur typically require an analytical reconciliation of (a) uses by the fee owner and (b) the specific terms and provisions of the restriction. In this case, the Appeals Court found no violation of the covenants embodied in the restriction.

Click here for the full decision of the Appeals Court.

Appeals Court: BOSTON POLICE DEPT. v. RONNIE C. JONES

KeywordsPolice, Compensation. Civil Service, Police, Reinstatement of personnel. Labor, Police, Contempt, Damages, Overtime compensation. Public Employment, Police, Reinstatement of personnel. Damages, Back pay, Interest, Mitigation. Interest. Judgment, Interest. Municipal Corporations, Police, Governmental immunity. Practice, Civil, Contempt, Declaratory proceeding

On November 10, 2020, the Appeals Court issued the latest decision in an almost two decades long legal battle over the discharge of certain Boston police officers when they failed a hair test for the presence of cocaine.  The Civil Service Commission upheld the discharge of four officers but ordered reinstatement without loss of benefits for six officers.  That order was upheld with a slight modification by the Superior Court, which decision was upheld by the Appeals Court in 2016.  After settlement negotiations were unsuccessful, a second round of litigation ensued on a contempt claim.  Both parties appealed the Superior Court judgment to the Appeals Court.

The decision needs to be read and cannot be fully summarized here.  But some of the key issues addressed by the Appeals Court of interest to municipal attorneys include:  As relates to the officers – 1. claim for estimated overtime and detail pay- denied by Appeals Court as contrary to precedent; 2.  Claim  for post judgment interest- denied in absence of clear waiver of immunity; 3. Claim for additional compensation to relieve them of the tax burden caused by receiving large lump sums in back pay- denied in absence of law or clear waiver of immunity for such claims.  As relates to the City –  1.  Opposing prejudgment interest- such interest allowed under G.L. c. 231, 6C; 2.  Reduction of back pay due to mitigation issues-  While recognizing obligation to mitigate damages, the Appeals Court upholds trial court’s determination that City did not meet sufficiently its burden of proving plaintiffs did not adequately mitigate their damages; Appeals Court discusses what employer must show on mitigation; 3. Claim that the back pay award should be offset by any earnings and wages that the officers earned from second and third jobs and overtime following the termination of their employment.  Appeals Court agrees with trial judge that those earnings, out of fairness, should not be deducted from the back pay award.

Click here for the full decision of the Appeals Court.

SJC: DANIEL WRIGHT’S CASE

Keywords: Marijuana, Medical. Workers’ Compensation Act, Insurer, Medical benefits. Words, “Health insurance provider”

In a decision issued October 27, 2020, the Supreme Judicial Court affirmed a denial by the Reviewing Board of the Industrial Accident Board for an order directing the insurance company to pay for $24,000.00 in costs the injured employee incurred as part of his treatment from an industrial accident.  The DIA upheld the denial on the basis that mamajuana is a federally prohibited drug.  The SJC affirmed the denial but based on the language of the medical marijuana statute itself, which does not require a health insurer provider from being required to pay for medical marijuana.  Click here for the full text of the SJC’s decision.

Appeals Court: CELLCO PARTNERSHIP v. CITY OF PEABODY

KeywordsLand Court. Telecommunications Act. Telecommunications, Personal wireless service facility. Zoning, Telecommunications facility, Special permit, Issuance of permit, Public utilities. Public Utilities, Telecommunications

In Cellco Partnership (dba Verizon) v City of Peabody, the Appeals Court today affirmed the Land Court’s grant of summary judgment in favor of Verizon and the order to issue the special permit Verizon sought.  The Land Court and the Appeals Court found that the denial by the City of the special permit “constituted an effective prohibition on personal wireless services in violation of the Federal Telecommunications Act (FCA).”   The Appeals Court found Verizon had met the high burden to establish it was entitled to the special permit.  Click here for the full decision of the Appeals Court.

Appeals Court: JOHN RODRIGUES v. PERAC

KeywordsPublic Employee Retirement Administration Commission. Public Employment, Reinstatement of personnel, Retirement. Labor, Fire fighters, Public employment. Fire Fighter, Hiring, Incapacity, Retirement. Anti-Discrimination Law, Handicap, Age, Offer of reinstatement, Employment. Hearing-Impaired Person. Handicapped Persons. Employment, Discrimination. Declaratory Relief

In a decision issued today in JOHN RODRIGUES VS. PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION (PERAC)  the Appeals Court has sent back to the trial court a challenge to the use by the Public Employee Retirement Administration Commission of the Human Resources Division’s promulgated health and physical fitness standards  in a return to service case.  While upholding findings that seven claims were properly dismissed, the Appeals Court concluded “. . .  that Rodrigues’s claims for declaratory relief should not have been dismissed, as they raise significant questions of law as to whether PERAC should be applying HRD’s initial fitness standards in a return to service context.  We accordingly remand for further proceedings the claims for a declaratory judgment concerning PERAC’s compliance with c. 32, § 8, and c. 31, § 61A.” Click here for the full decision of the Appeals Court.

Appeals Court: JOHN RODREGUES v. PERAC

KeywordsPublic Employee Retirement Administration Commission. Public Employment, Reinstatement of personnel, Retirement. Labor, Fire fighters, Public employment. Fire Fighter, Hiring, Incapacity, Retirement. Anti-Discrimination Law, Handicap, Age, Offer of reinstatement, Employment. Hearing-Impaired Person. Handicapped Persons. Employment, Discrimination. Declaratory Relief

In a decision issued today (JOHN RODRIGUES VS. PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION),  the Appeals Court has sent back to the trial court a challenge to the use by the Public Employee Retirement Administration Commission of the Human Resources Division’s promulgated health and physical fitness standards  in a return to service case.  While upholding findings that seven claims were properly dismissed, the Appeals Court concluded “however, that Rodrigues’s claims for declaratory relief should not have been dismissed, as they raise significant questions of law as to whether PERAC should be applying HRD’s initial fitness standards in a return to service context.  We accordingly remand for further proceedings the claims for a declaratory judgment concerning PERAC’s compliance with c. 32, § 8, and c. 31, § 61A.”  Click here for the full decision of the Appeals Court.