Municipal Law News


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.


KeywordsMassachusetts Bay Transportation Authority. Easement. Real Property, Easement. Public Utilities, Electrical transmission line

In Sudbury v tMBTA, ete al, the SJC today affirmed a Land Court dismissal of the Town’s challenge to the MBTA’s plans to divert an easement to a private use.  The Town challenged the matter on the prior public use doctrine.  The SJC declined to extend the doctrine in this case, explaining ” the scope of the common-law doctrine of “prior public use.”  Under this long-standing doctrine, public lands acquired for one public use may not be diverted to another inconsistent public use unless the subsequent use is authorized by plain and explicit legislation.  Robbins v. Department of Pub. Works, 355 Mass. 328, 330 (1969).  Here, we are asked to extend this doctrine and to determine that the prior public use doctrine bars the diversion of public land devoted to one public use to an inconsistent private use.  Because such a sweeping change would not advance the purposes of the doctrine, and would create widespread uncertainty concerning numerous existing holdings of private land that were transferred by public entities, we decline to adopt the municipality’s proposed reworking of the doctrine.  Accordingly, we affirm the Land Court judge’s decision dismissing the complaint, albeit, in part, on somewhat different grounds.”  Issues of standing were also discussed by the SJC.  Click here for the full text of the SJC’s decision.


KeywordsElections, Ballot, Primary. Secretary of the Commonwealth. Constitutional Law, Elections

[Excerpt] – “In response to the COVID-19 pandemic, the Legislature passed an emergency law designed to increase voting options in the September 1, 2020, primary election as well as the November 3, 2020, general election.  See St. 2020, c. 115.  A prominent additional voting option included in the act is expansive voting by mail.  For the primary election, voters may apply for a “mail-in” ballot, so long as their application to vote by mail is received before 5 P.M. on Wednesday, August 26, 2020.  See St. 2020, c. 115, § 6 (e) (2).  Those mail-in primary election ballots must be completed and received by local election officials before 8 P.M. on September 1.See St. 2020, c. 115, § 6 (h) (3); G. L. c. 53, § 43.  The mail-in ballots can be returned by mail, dropped off in drop boxes provided by local officials, or hand-delivered to election officials.  See St. 2020, c. 115, § 6 (h) (1).  A voter who has requested a mail-in ballot can also choose to vote in person on either election day, as always, or between August 22 and 28, 2020, at early polling locations established pursuant to the act, in lieu of submitting his or her mail-in ballot.  See St. 2020, c. 115, § 7 (b) (1). . . .

. . . Having reviewed the emergency law and its implementation by the Secretary, we conclude that the existing September 1 deadline is constitutional.  The new law does not significantly interfere with the constitutional right to vote in the September 1 primary election.  Rather, the legislation enhances the right to vote in the primary, as well as the general, election, by providing multiple means of voting, including options to vote by mail that previously never existed.”  –   Click here for the full text of the SJC’s decision.


KeywordsReal Property, Tax lien, Tax title, Assignment of tax title, Foreclosure of tax title. Taxation, Real estate tax: tax taking, Tax lien, Real estate tax: foreclosure of tax lien, Real estate tax: assignment of tax title, Real estate tax: redemption, Real estate tax: foreclosure of right of redemption

[Synopsis] – “GANTS, C.J.  In 2011, Jessye Williams, Jessie Williams, III, and George Wortham (owners) failed to pay the real estate taxes on their New Bedford home.  As a result, the city of New Bedford (city) took tax title to the property in November 2011, pursuant to G. L. c. 60, §§ 53-54.  The owners subsequently did not pay their real estate taxes in 2012, 2013, 2014, and 2015, and each year, these taxes were added to the amount due in the city’s tax title account.  In May 2016, Tallage Lincoln, LLC (Tallage), a for-profit entity in the business of acquiring tax titles from municipalities, was the successful bidder at a tax title auction conducted by the city, and the city assigned Tallage its tax title to the property.  Later in 2016, Tallage initiated proceedings to foreclose (i.e., terminate) the owners’ right to redeem the property.  The owners filed a timely answer to the petition, exercising their right of redemption.  In 2018, Tallage asked the Land Court to find the redemption amount that the owners would need to pay to avoid losing their home.  Tallage requested that the redemption amount include the real estate taxes owed to the city at the time that Tallage was assigned the tax title account in 2016; the real estate taxes that Tallage itself had paid on the property in 2016, 2017, and 2018; the statutory interest rate of sixteen percent per year on the unpaid real estate taxes and the taxes paid by Tallage; and Tallage’s legal fees.  A Land Court judge rejected Tallage’s requested finding, ruling that the statutory scheme set forth in G. L. c. 60, § 52, did not permit assignees of tax title accounts, such as Tallage, to include their own subsequent tax payments in the amount required for redemption.  The judge noted that if the owner paid the redemption amount, § 52 assignees could seek to recover those payments through a lien on the property.  Tallage appealed from the decision, and we transferred the appeal to this court on our own motion.  For the reasons that follow, we affirm the judge’s decision.”  –  Click here for the SJC’s full decision. 


KeywordsConstitutional Law, Freedom of speech and press. Public Employment, Termination. Practice, Civil, Summary judgment

The Appeals Court here affirmed the Superior Court motion judge’s dismissal of his summary judgment motion in his Federal civil rights claim against the former Secretary of the Department of Elder Affairs personally and his claim under the Massachusetts public employee whistleblower statute against EOEA for speaking out publicly about elder endangerment in assisted living residences. The Appeals Court’s review is de novo in order to determine whether all material facts have been established and the moving party is entitled to judgment as matter of law. “The threshold inquiry for the court is whether the employee spoke ‘as a citizen upon matters of public concern.’  Connick v. Myers, 461 U.S. 138, 147 (1983).  If the court reaches that conclusion, the court next balances the interest of the employee speaking out as a citizen on matters of public concern and “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. . . . The third step requires the employee to proffer sufficient evidence that would permit a reasonable jury to find that the protected speech was ‘a substantial or motivating factor behind the adverse employment action.’  Guilloty Perez v. Pierluisi, 339 F.3d 43, 55 (1st Cir. 2003).  If the employee satisfies that initial burden, the burden of persuasion shifts to the employer to prove, by a preponderance of the evidence, that it would have taken the same action regardless of the protected speech.  See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (Mt. Healthy defense).  This showing by an employer defeats the employee’s § 1983 claim.  See Decotiis, 635 F.3d at 30.  The first two parts of the analysis are questions of law that are subject to de novo review.

Of interest, the Court also concurred with the lower court’s conclusion that “even if there are material facts in dispute with regard to causation, the [individual defendant] was entitled to qualified immunity as matter of law.”

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





KeywordsReal Property, Conservation restriction. Damages. Practice, Civil, Summary judgment, Damages

In its decision in this case, the Appeals Court addresses the scope of enforcement options available to the holder of a conservation restriction, in particular whether injunctive relief is the holder’s sole remedy for violations of the restriction’s terms.  The trial court had ruled that Section 32 of the state’s Conservation Restriction Act (G.L. c. 184, Sections 31-333) does not authorize enforcement by way of the payment of damages or attorneys fees. The Appeals Court concluded otherwise: “The plain language of § 32 provides that “[t]he restriction may be enforced by injunction or other proceeding, and shall entitle representatives of the holder to enter the land in a reasonable manner and at reasonable times to assure compliance.  If the court in any judicial enforcement proceeding . . . finds there has been a violation of the restriction . . . then, in addition to any other relief ordered, the petitioner bringing the action or proceeding may be awarded reasonable attorneys’ fees and costs incurred in the action.”  (Emphasis added.) . . .  Thus, § 32 by its own terms does not limit enforcement measures to injunctive relief alone.”  Click here for the full text of the Appeal Court’s decision.


Keywords: Zoning, Nonconforming use or structure, Special permit, Variance, Height restriction, Accessory building or use. Practice, Civil, Zoning appeal. Municipal Corporations, By-laws and ordinances

There is probably no more abstruse area of Massachusetts zoning law than nonconforming uses, structures, and lots. The infamous density of G.L. c. 40A, Section 6, that deals with this topic is often discussed in terms of “grandfathering”. In this Appeals Court decision Justice Jim Milkey lays out a long-overdue clarification of Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014).  Justice Milkey disposes the case at hand with: “We reverse and take this opportunity to clarify the meaning of Deadrick.”  And then then he proceeds to do with the piercing clarity reminiscent of  decisions of Justice Rudolph Kass.  But what may turn out to be the most memorable part of the decision appears in Footnote 11:

[11] Providing such protection commonly is known — in the case law and otherwise — as “grandfathering.”  We decline to use that term, however, because we acknowledge that it has racist origins.  Specifically, the phrase “grandfather clause” originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867.  See Webster’s Third New International Dictionary 987 (2002) (definition of “grandfather clause”); Benno C. Schmidt, Jr., Principle and Prejudice:  The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).

This is a “must read” decision. Click here for the full text.