Municipal Law News

MMLA 2019 Annual Meeting and Conference Registration

This year’s Annual Meeting and Conference will be held on Thursday, September 26, 2019 and Friday September 27, 2019 at the Springfield Sheraton, 1 Monarch Place, Springfield. Information on the conference schedule, topics, speakers and other details are found on the Events page.

Registration forms for the 2019 Annual Meeting and Conference are being emailed to members via Survey Monkey. If you do not receive the email, you can register using the link on the Events page.

If you have any questions, please contact Jim Lampke, MMLA Executive Director, at 781-749-9922 or jlampke@massmunilaw.org.

August 1, 2019 Federal Communications Commission (FCC) vote to change the cable franchise fee calculation rules

MMLA Member Bill August, our expert on all matters relating to cable franchising, has provided us with his explanation of the August 1, 2019, FCC vote relating to new franchise fee rules.  Here is Bill’s explanation:

I believe some further explanation of the August 1, 2019 Federal Communications Commission (FCC) vote to change the cable franchise fee calculation rules is in order in light of the importance of the new franchise fee rules and the complexity of some aspects of these rules.   I offer what I hope are some simple explanations of the new framework (below).  As this will impact significant payments to many (not all) municipalities, it is important for municipal officials to be aware of these developments and have access to background information explaining the changes. The following is a basic explanation.

Cable companies pay ‘franchise fees’ to municipalities if required by cable license and Federal law caps franchise fees at 5% of the cable company’s Gross Annual Revenues (GAR).  In the past, most cable companies took the position in practice that only monetary payments to the municipality would count toward the 5%-of-revenues cap.  That will be history once the FCC approved new rules are released, published and become effective in the near future, as cable companies will soon be able to count both monetary and ‘in-kind benefits’ toward the statutory 5% franchise fee cap.  That’s the big picture.  Many of the details are yet to be released including which assets may and may not be counted toward the 5% cap, how the valuations of the assets will be implemented and to what extent they will be negotiable.

Read more

WRITERS NEEDED FOR LATEST UPDATE TO MCLE-MMLA MASSACHUSETTS MUNICIPAL LAW MANUAL

WRITERS NEEDED FOR LATEST UPDATE TO MCLE-MMLA MASSACHUSETTS MUNICIPAL LAW MANUAL

[Updated 8.5.19] – MMLA, which writes for MCLE the two-volume set on Massachusetts Municipal Law, is working on the next update edition for this fall. There is still one chapter that we need an author or update authors for. This chapter can be updated based on the current text or the new authors can change the text. If you work off of an existing chapter, you will have an excellent framework for the redraft. We will provide you with a copy of the chapter in Word format which makes any editing or updating all the easier.

This is a great way to get more involved in municipal law and work on a key legal resource on municipal law. Here is the Chapter:

• Chapter 16 – Gifts and Other Charitable Dispositions to the Municipal Corporation

Please contact Co-Editors Jim Lampke at 781-749-9922; cell- 617-285-4561; jlampke@massmuniulaw.org or Bob Ritchie at cell- 413-531-2431; bobritchie@comcast.net

More than 1 person can work together on a chapter. MCLE needs the updated or new chapters by September 6. Working off of the existing chapters will make this an easier task.

For more information, contact Jim or Bob. Thank you!

MMLA Membership – Application / Renewal

MMLA Dues Notice and Membership Application 2019-2020

On June 26, 2019, current members were emailed via Survey Monkey the dues notice and membership application for the MMLA membership year that begins July 1, 2019 and ends June 30, 2020. This year we are using an electronic membership application. The notice provides the information needed for members to apply electronically through Survey Monkey and mail their dues. The electronic application is easy to complete and an efficient way for us to update our membership records.

Read more

MMLA Dues Notice and Membership Application 2019-2020

On June 26, 2019, members were emailed via Survey Monkey the dues notice and membership application for the MMLA membership year that begins July 1, 2019 and ends June 30, 2020. This year we are using an electronic membership application. The notice provides the information needed for members to apply electronically through Survey Monkey and mail their dues. The electronic application is easy to complete and an efficient way for us to update our membership records.

When you complete the application, you should receive a confirmation email with a link to your application. We will also email you a pdf of your application. In the event you are unable to print the complete application using the Survey Monkey link, you can print the pdf to mail with your dues payment.

If you did not receive the email or have any difficulty with the electronic application, please contact Jim Lampke MMLA Executive Director as soon as possible at 781-749-9922 or jlampke@massmunilaw.org.

U S Supreme Court: Knick v. Township of Scott

[Posted below with permission from Lisa Soronen of State & Local Legal Center]

In a 5-4 opinion in Knick v. Township of Scott the Supreme Court held that a property owner may proceed directly to federal court with a takings claim. In Knick the Court overturned Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which held that before a takings claim may be brought in federal court, a property owner must first seek just compensation under state law in state court. The Township of Scott adopted an ordinance requiring cemeteries, whether located on public or private land, to be open and accessible to the public during the day. Code enforcement could enter any property to determine the “existence and location” of a cemetery. The Constitution’s Takings Clause states that “private property [shall not] be taken for public use, without just compensation.” Rose Mary Knick sued the county in federal (rather than state) court claiming the ordinance was invalid per the Takings Clause after code enforcement went onto her property without a warrant looking for (and finding) a cemetery not open to the public during the day. In an opinion written by Chief Justice Roberts the Court held that the state-litigation requirement of Williamson County is overruled. The Court reasoned the Takings Clause doesn’t say: “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” The majority of the Justices were willing to overturn precedent in this case because Williamson County wasn’t just “wrong.” “Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”

 Lisa Soronen
Executive Director
State & Local Legal Center
444 North Capitol Street, N.W., Suite 515
Washington, D.C. 20001

SJC: BOSTON GLOBE MEDIA PARTNERS vs. DEPT. OF PUBLIC HEALTH

Keywords:   Public Records. Department of Public Health. Privacy. Statute, Construction
In a decision issued today from the SJC, the Court has remanded a Superior Court decision which, briefly, allowed withholding of certain birth and marriage data. The Superior Court relied on exemption (c) which “exempts from the definition of public records “personnel and medical files or information [and] any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Superior Court did not agree with the public body as to exemption (a), which provides in part “exempts from the definition of public records “materials or data” that are “specifically or by necessary implication exempted from disclosure by statute.” In remanding the case back to the Superior Court, the SJC instructed that both exemptions need to be reconsidered by the Superior Court. “The Globe’s request necessitates an approach to exemption (a) that takes into account future requests for the indices. The application of exemption (c) involves a privacy issue we have yet to address in the public records context, namely, whether there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes. We conclude that, in certain circumstances, there is.”

With respect to exemption (a), the judge on remand should make factual findings about the extent to which the indices requested here could be compared against later-requested indices to reveal information protected from public disclosure by statute. The judge should then determine whether the risk of revealing such information brings the requested indices within the scope of exemption (a).

With respect to exemption (c), which protects personal privacy, the judge on remand should first decide the extent to which the indices requested here could be compared against later-requested indices to reveal medical information absolutely exempt from the public records law. If necessary, the judge should then decide whether there is a privacy interest in the requested indices. To do so, the judge should make further findings on (1) the extent to which multiple indices could be compared to reveal private information; (2) whether the requested compilation is already available in the aggregate form requested or, if not, the ease with which it can be assembled from public information; (3) whether DPH has shown that releasing the indices could pose a risk of identity theft or fraud; and (4) the extent to which the indices could facilitate unwanted intrusions.”

The decision appears to provide further guidance on the applicability of various exemptions to the Public Records Law.

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

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.