Municipal Law News

SJC: DAWN DESROSIERS v. GOVERNOR

KeywordsGovernor. Civil Defense. Public Health. Constitutional Law, Governor, Separation of powers, Right to assemble. Due Process of Law. Statute, Construction. Words, “Other natural causes

DOWNLOAD – SJC Decision

The SJC upheld the Governor’s authority under public health statutes to issue state of emergency and orders.  Assistant Attorney General Margaret Hurley stated:  “A huge congratulations to my colleagues in the Attorney General’s Office who worked very hard on this case (and many other similar cases)!”     [Excerpt] – “We conclude that the CDA provides authority for the Governor’s March 10, 2020, declaration of a state of emergency in response to the COVID-19 pandemic and for the issuance of the subsequent emergency orders; the emergency orders do not violate art. 30 of the Massachusetts Declaration of Rights; and the emergency orders do not violate the plaintiffs’ Federal or State constitutional rights to procedural and substantive due process or free assembly.”

Governor Baker’s COVID-19 Reopening Update

Today Governor Baker and Lt. Governor Polito announced an update to the state’s reopening process as well as several updates to sector-specific guidance in order to combat the rising cases of COVID-19 across the Commonwealth. The measures outlined below with go into effect at 12:01 a.m. on Sunday, December 13.

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Appeals Court: FLAVIA MORETALARA v. BOSTON HOUSING AUTHORITY

FLAVIA MORETALARA v. BOSTON HOUSING AUTHORITY

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Excerpt from the Appeals Court decision:

The plaintiff, Flavia Moretalara, is an elderly tenant who suffers from various disabilities.  Her son often visited her at her apartment to help take care of her.  Unbeknownst to the plaintiff, her son also hid heroin and a high-capacity firearm magazine there.  When he was arrested and the contraband discovered, the Boston Housing Authority (BHA) terminated the plaintiff’s Section 8 housing benefits.  She, in turn, sought to reverse that decision in court, claiming that her disabilities prevented her from detecting and preventing her son’s misconduct on the premises.  She also provided evidence that, going forward, her son had agreed not to return to her apartment, and that she had secured a new personal care attendant who would help her monitor her apartment.  Based on a record developed over a series of administrative hearings, a Housing Court judge ruled in the plaintiff’s favor and enjoined the BHA from terminating her Section 8 benefits.  On the BHA’s appeal, we affirm.[1]

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.