Municipal Law News

VALLEY GREEN GROW v. TOWN OF CHARLTON (App.Ct.)

DOWNLOAD the decision of the Appeals Court.

In Valley Green Grow, Inc. v. Charlton, and a companion case, Valley Green Grow, LLC vs. Planning Board of Charlton, the Appeals Court affirmed a Land Court decision which had overturned 2 local decisions of the ZBA and Planning Board. The Appeals Court addressed ” local zoning regulations as they relate to the creation of a large marijuana establishment[4] in the town of Charlton (town). The town’s planning board concluded that the plaintiffs'[5] proposed marijuana establishment constitutes “light manufacturing” as that term is used in the town’s zoning bylaw (bylaw) and, therefore, is not a use allowed in the agricultural and commercial business districts in which the proposed development site is located. On summary judgment, a judge of the Land Court concluded and declared that the proposed use is “an indoor commercial horticulture/floriculture establishment (e.g. greenhouse) use allowed by right” in the two zoning districts.” The case provides a good discussion on marijuana law and local zoning.

ALEXANDER STYLLER v. BOARD OF APPEALS OF LYNNFIELD (SJC)

DOWNLOAD  – the decision of the SJC

KeywordsReal Property, Lease. Zoning, By-law, Permitted use, Lodging house, Person aggrieved. Jurisdiction, Justiciable question, Land Court. Land Court, Jurisdiction. Practice, Civil, Standing, Substitution, Moot case. Moot Question. Words, “Tourist home.”

[Excerpt] – “General Laws c. 40A, § 6, generally protects property uses that were lawfully in existence prior to newly adopted restrictive zoning regulations.[2] In this case, the plaintiff, Alexander Styller,[3] contends that use of his family home for short-term rentals constituted a prior nonconforming use that is exempt from a zoning bylaw of the town of Lynnfield (town) that, as amended in 2016, expressly forbids such rentals in single-residence zoning districts.  He asks the court to overturn the Land Court judge’s decision and rule that short-term rentals were permissible prior to the bylaw amendments.  We decline to do so.”

The SJC, in a related decision (SHARON HEATH-LATSON v. ALEXANDER STYLLER) ruled in connection with a wrongful-death action relating to the same short-term rental property.  Click here to download the decision of the court in this related decision.

11th Annual Public Construction Update – Wednesday, October 20, 2021 @ 3pm

11th Annual Public Construction Update

Diversity, Equity and Inclusion Issues in Public Construction

“Do the best you can until you know better.  Then do better.” – Maya Angelou

2020 was a tumultuous year in many ways.  The COVID-19 pandemic transformed our very way of life.  An election for the ages tested the boundaries of our American democracy.  The tragic killing of George Floyd and protests across the country by the Black Lives Matter movement which came in the aftermath, inspired renewed and meaningful discussions surrounding social justice, antiracism and similar issues.  Recognizing the increasing demand on local governments and their legal counsel to address these issues across the spectrum of municipal operations, the goal of the 11th Annual Public Construction Update in 2021 is to provide a closer and up-to-date examination of the issues of diversity, equity and inclusion as these concepts touch on public construction.  An outstanding slate of panelists who are well-recognized leaders in this area will speak on topics such as gender and minority workforce participation goals, MBE/WBE certification and goals, prevailing wages, and other related issues.

This year’s panelists are expected to include:

  • Christopher J. Petrini, Program Chair & Moderator, Petrini & Associates, P.C, Framingham, MA
  • Dr. Yvonne M. Spicer, Mayor, City of Framingham
  • Deborah Anderson, Assistant Attorney General, Construction Bid Unit
  • Susan Moir, ScD, Research Director, PGTI: The Policy Group on Tradeswomen’s Issues and
    Founder, Tradeswomen Building Bridges, the North American Network of Women Working in the Construction Trades
  • Barbara Dillon DeSouza, Assistant Attorney General, Fair Labor Division
  • Anatoly Darov, Esq., Darov & Associates US PLLC, Boston, MA
  • Jillian Jagling, Esq., West Group Law PLLC, Boston, MA

The cost for this in-person event is $55 and includes a post-program dinner at the Publick House.  For attendees who are not interested in attending the dinner, the cost is $20.  Registration is open to both MMLA members and non-members, and thanks to the generous donations of our membership, grants are available to attorneys (whether they are members of MMLA or not) who are new to the practice of municipal law and want to see what MMLA and our programming is all about.  If you or a colleague wish to attend this program through MMLA’s grant program, please contact James Lampke at jlampke@massmunilaw.org.

Feel free to also invite your municipality’s officials to attend with you, such as procurement officers, town managers/administrators, and other personnel.

Topic:  11th Annual Public Construction Update
When:  Wed. October 20, 2021 3:00pm-6:30pm followed by dinner
Location:  Publick House Historic Inn, 277 Main Street, Sturbridge, MA

Register in advance for this in-person program at the link below:

https://www.surveymonkey.com/r/MMLAOct2021Event

Please note that there is now a COVID-19 vaccination requirement for this event – all persons attending this event must be fully vaccinated against COVID-19 (at least 14 days after receiving the second Moderna/Pfizer dose or 14 days after receiving the Johnson & Johnson dose) and be prepared to show paper or electronic proof of vaccination while at the event.  Please contact James Lampke at the email above if you have any questions about providing proof of vaccination.  PLEASE DO NOT EMAIL VACCINATION INFORMATION TO MMLA.

Based on current guidance from the CDC, for the safety of all our panelists and attendees, everyone attending the program will be required to wear a face covering while inside at the venue (except while eating or drinking) regardless of vaccination status.

GEORGE DEMERIS v. TOWN OF FOXBOROUGH (App. Ct.)

In a case decided today (May 21, 20231) the Appeals Court affirmed a grant of summary judgment to the Town of Foxborough on a discrimination claim by a reserve police officer who was retired after he reached age 65.  The Appeals Court provides a good discussion of reserve officers and regular offices and the retirement age for both.  Congrats to MMLA member Doug Louison who represented the Town in this matter.
KeywordsPolice, Retirement, Assignment of duties. Municipal Corporations, Police. Police Officer. Practice, Civil, Summary judgment
DOWNLOAD the Appeals Court’s decision

“Town Meeting 101” – Free Webinar on 5.26.21

Town Meeting 101

Town Meeting 101 will be a lunch time panel focused on helping lawyers new to the world of Municipal Law learn the ins and outs of Town Meeting. We will cover practical tips for assisting Towns in Warrant, Article, and Motion preparation and for giving advice on the floor of Town Meeting. In addition, the presentation will feature a brief overview of the budget setting process for Towns. This is a must attend event! Bring your Chris Traeger level energy (as well as any questions you may have).

The MMLA New Lawyers Committee is sponsoring this free webinar on Town Meeting Process.  Although this program is geared for new lawyers, more experienced lawyers and anyone else should find the program helpful on the ins and outs of Town Meeting.

Panelists: Ivria Glass Fried, Esq.,, Miyares & Harrington; Kenneth Woodland, Esq., Department of Revenue, Division of Local Services; and Kelli Gunagan, Esq., Assistant Attorney General, Municipal Law Unit.

When: May 26, 12pm – 1pm

Where: Zoom

Register: https://us02web.zoom.us/webinar/register/WN_pNkCji9LSqiez82drhed7A 

Cost: Free

Why: Because it is Town Meeting season!

SCHOOL COMMITTEE OF CHELMSFORD v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD (App.Ct.)

KeywordsPractice, Civil, Interlocutory appeal. Administrative Law, Judicial review, Remand to agency. Commonwealth Employment Relations Board. Labor, Unfair labor practice.

DOWNLOAD – the Appeal Court’s decision.

In School Committee of Chelmsford vs Commonwealth Employment Relations Board, et al, issued today, the Appeals Court opined that a remand from an agency does not (generally) constitute final agency action ripe for an appeal.  The Court did note an exception where the agency intended its dismissal of a case to be the end of the agency’s involvement.

 

TOWN OF BROOKLINE v. GERALD ALSTON (SJC)

DOWNLOAD the decision of the SJC

KeywordsCivil Service, Decision of Civil Service Commission, Fire fighters, Reinstatement of personnel. Fire Fighter. Municipal Corporations, Fire department. Administrative Law, Substantial evidence. Employment, Discrimination, Termination. Public Employment, Termination, Reinstatement of personnel. Judgment, Preclusive effect. Anti-Discrimination Law, Race, Employment

[Excerpt] – The issue presented is whether the Civil Service Commission (commission) can consider evidence related to a racially hostile or retaliatory work environment when assessing whether a municipality had just cause to terminate a tenured civil service employee.  The underlying dispute in this case began with a racist comment, apparently on a misplaced telephone call. As Lieutenant Paul Pender was in a car driven by his son, he was cut off by a stranger.  Pender referred to the person as a “fucking n—-r.”  Unbeknownst to him, Pender had not properly hung up from a previous call, and he left a record of what he said on the voicemail of fellow firefighter Gerald Alston.  Alston is African-American; Pender, his supervisor at the time, is Caucasian.  A tumultuous six years of litigation and acrimony ensued, culminating in 2016 with Pender receiving his third promotion since leaving the voicemail and Alston being fired by the town of Brookline (town).  When Alston challenged his termination before the commission, the commission first summarily concluded that the town had just cause to terminate Alston due to his extended absence from duty and his failure to cooperate with the town’s return to work requirements.  Alston successfully challenged that ruling in the Superior Court, and the matter was remanded to the commission for an evidentiary hearing.  After that hearing on remand, the commission concluded that there was not just cause for the discharge, as the decision to terminate Alston was “arbitrary, capricious, and in violation of [his] rights under the civil service law to be treated fairly ‘without regard to . . . [his] race.’”  The commission ordered his reinstatement, and that decision was affirmed by the same Superior Court judge.  The town appealed, and we transferred the matter to this court on our own motion.

We first conclude that the commission can consider, in the context of its analysis whether an employee was fired without just cause in violation of basic merit principles, evidence of discriminatory or retaliatory conduct that is more typically addressed in the context of a claim under G. L. c. 151B.  The relevant statutes ensure that civil service employees are not terminated without just cause and that their termination be consistent with basic merit principles.  A civil service employee whose unfitness is determined to be caused by racist remarks and retaliation in the workplace and the employer’s arbitrary and capricious response to such remarks and retaliation may not be terminated by the employer responsible for causing the unfitness.  Applying this standard, we conclude that the commission’s determination that the town lacked just cause to discharge Alston is supported by substantial evidence.  Finally, as described more fully infra, we reject each of the town’s arguments as to why the commission exceeded its authority and lacked substantial evidence for its decision.

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