Municipal Law News

MMLA Webinar – “Single Justice Practice in the Massachusetts Appeals Court”

Zoom Webinar – Thursday, April 29th, 12:30 – 2:00 PM

One of the unique features of the Massachusetts appellate system involves single justice practice in the Appeals Court.  Municipal counsel may consider petitioning the single justice for relief from a decision involving an injunction or interlocutory order, such as the denial of a motion to dismiss, summary judgment motion, or discovery order.  However, petitions are granted only in limited circumstances and only certain relief is available, and counsel must comply with specific requirements for filing a petition. This program will provide an overview of single justice practice from the perspective of the Appeals Court.  Even if you do not regularly practice in the Appeals Court, this is a topic you need to know about now, and before you get served with a motion for interlocutory relief.  Program participants will include Appeals Court Associate Justice John Englander, Clerk Joseph Stanton, and Assistant Clerk Anne Thomas.  Program orgaizer and MMLA Executive Board member Brandon Moss will moderate.

Registration for the webinar and payment of a $10.00 registration fee are required to attend. To register and pay the $10.00 registration fee, please go to the following link:

https://us02web.zoom.us/webinar/register/WN_TdclgReITxGef7cxzyaxTw 

After registering, you will receive a confirmation email containing information about joining the webinar. If you have any questions, etc., please contact Jim Lampke at 617-285-4561 or email him at:  james.lampke@lampkelaw.com

Click on this link for Program Materials (hyperlinks) and Panelist Bios

ITHACA FINANCE v. FRANCISCA LEGER (App. Ct.

DOWNLOAD – decision of the Appeals Court

Keywords:  Real Property, Tax title, Foreclosure of tax title. Taxation, Real estate tax: tax taking, Real estate tax: foreclosure of tax lien, Real estate tax: foreclosure of right of redemption. Practice, Civil, Relief from judgment. Judgment, Relief from judgment. Due Process of Law, Notice, Taking of property. Notice, Tax taking, Foreclosure of mortgage. Mail

In Ithaca Finance, LLC vs. Franscisca Leger, the Appeals Court today upheld statutory notice mailed by the Land Court to the property owner about the tax foreclosure proceeding was sufficient notice.  The property owner sought to challenge, after the one year redemption period, the tax foreclosure, claiming an exception to the one year redemption period due to alleged “violation of its rights to substantive or procedural due process”.  A Land Court judge had vacated the judgment finding a violation of due process.  The Appeals Court reversed, finding that the statutory notice sent by the Land Court to the property owner was sufficient due process notice.

RICHARD BROOKS v. DEPARTMENT OF CORRCTION

DOWNLOAD – the decision of the Appeals Court

Keywords –  Practice, Civil, Action in nature of certiorari, Statute of limitations. Limitations, Statute of. Imprisonment, Enforcement of discipline

In Brooks v, Department of Correction, issued today, the Appeals reversed a Superior Court decision regarding whether an appeal to Superior Court under the cert statute by a prisoner of discipline was timely when it was not filed within the 60 days after the decision was made, but rather was filed on the 60th day after the prisoner received the decision.  Notably, the Appeals Court opined that “[w]e conclude here that the last administrative action taken by the department was the issuance of the superintendent’s decision, which occurred no earlier than February 4, 2019, when the decision was served.[1]  The department regulation governing “Appeal Procedures” — which provides that “[t]he Superintendent shall normally decide an appeal within thirty (30) days of its receipt and notify the inmate in writing of the decision with supporting reasons,” 103 Code Mass. Regs. § 430.18(2) (2018)[2] — comports with our conclusion.”

TOWN OF CONCORD v. WATER DEPARTMENT OF LITTLETON et al (SJC

KeywordsWater, Municipal Corporations, Water supply, Special act. Statute, Construction, Repeal, Special law

[Excerpt] –

The Legislature passed the Water Management Act (WMA), G. L. c. 21G, in 1985, establishing a Statewide regulatory program for water withdrawals, prohibiting withdrawal of more than 100,000 gallons per day from any water source without a registration or permit.  See G. L. c. 21G, §§ 2, 4, 5, 7.  Under the WMA, an existing user of a water source could register their previous usage, and a new user had to apply for a permit.  G. L. c. 21G, §§ 2, 5, 7.  This case concerns whether the WMA impliedly repealed the special act, passed by the Legislature in 1884, that granted Concord the right to use Nagog Pond, located in Littleton and Acton, as a public water supply.  St. 1884, c. 201 (1884 act).  The 1884 act not only granted Concord the right to “take and hold” the waters of Nagog Pond for water supply purposes, but it also provided that Littleton, Acton, or both towns could take the waters of the pond if needed and that in the case of such taking, the water supply needs of Littleton and Acton “shall be first supplied” if “the supply of water in [Nagog Pond] shall not be more than sufficient for the needs of the inhabitants of the towns of Acton and Littleton.”  St. 1884, c. 201, §§ 2, 10.  In 1909, Concord exercised its rights under the 1884 act to take the waters of Nagog Pond, and it still uses the pond as a public water supply.  Littleton and Acton have not exercised their rights under the 1884 act, and the issue before us is whether those rights still exist after the passage of the WMA.

Concord commenced this action against the Littleton water department (Littleton), seeking declaratory relief in the Land Court, and Acton’s motion to intervene was allowed.  A judge concluded that the 1884 act was impliedly repealed by the WMA, thereby extinguishing Littleton and Acton’s rights under the 1884 act.  Our holding narrows the judge’s decision, as we conclude that the WMA impliedly repealed the provision of the 1884 act that provided that the needs of the inhabitants of Littleton and Acton “shall be first supplied.”  See St. 1884, c. 201, § 10.  We further determine that the WMA did not impliedly repeal the provisions of the 1884 act that granted Concord the right to “take and hold” the Nagog Pond waters, St. 1884, c. 201, § 2, and that provided Littleton and Acton with the right to take the water if needed, St. 1884, c. 201, § 10.

DOWNLOAD the SJC decision

MMLA Webinar: New Adult Use Marijuana Delivery Regulations Rolling into Town

Please join MMLA and MMA for an exciting discussion as we explore the new regulations governing the delivery of adult use marijuana. The panel will feature the Chair of Cannabis Control Commission, Steven Hoffman, Brockton’s City Solicitor, Megan Bridges, and Easthampton City Planner, Jeff Bagg. This event will provide a general overview of the new regulatory framework and how those regulations may impact municipalities. We will also examine what steps cities and towns may take to regulate this new use.  The webinar is scheduled for Thursday, March 18th, from 2:00 PM to about 3:30 PM.

This is a free webinar and open to all.   Registration is required, however.   To register, click on the following link:

Register in advance for this webinar:
https://us02web.zoom.us/webinar/register/WN_BuGDvNLWT56llbAT1YlX6A

After registering, you will receive a confirmation email containing information about joining the webinar.

MARGARET DEWEESE v. GORDON COLLEGE (SJC)

KeywordsReligion. Constitutional Law, Freedom of religion. Anti-Discrimination Law, Religious beliefs, Employment. Employment, Discrimination

Today the Supreme Judicial Court issued an important case on religion and employment.  In Margaret Deweese-Boyd Vs. Gordon College & Others  The Court discussed the clash between the ministerial defense (which limits the government interference in religious areas) and the employment/discrimination laws (which protect employees).  The court found that the employment of the plaintiff was not as a minister and thus the ministerial defense was not applicable.  The SJC remanded the case back to the trial court for further proceedings consistent with this decision.  Mass Lawyers Weekly reported: The “ministerial exception” does not apply to an associate professor of social work at a private Christian liberal arts college, and she should be allowed to pursue her claims that the school unlawfully retaliated against her for her vocal opposition to the school’s LGBTQ+ policies, the Supreme Judicial Court decided on March 5.

DOWNLOAD the SJC decision.

SAID A. ABUZAHRA v. CITY OF CAMBRIDGE (SJC

DOWNLOAD  – full text of SJC decision

KeywordsEminent Domain, Validity of taking, Right to damages. Statute, Construction. Practice, Civil, Attorney’s fees, Costs, Interest, Frivolous action

In  Said A. Abuzahra v. City of Cambridge,  the Supreme Judicial Court yesterday addressed the issue of whether a property owner can accept a pro tanto offer and also challenge the validity of the taking.  A Superior Court judge had denied the plaintiff’s request for an order that the City pay the pro tanto.  Reversing the Superior Court, the SJC held that accepting a pro tanto award does not result in a waiver of a claim challenging the validity of the taking.

Link to Universal Hub’s on-line article – Click on:  Download Article

[Excerpt]  –   The issue presented is whether G. L. c. 79, the so-called “quick take” statute, permits a property owner to both accept a pro tanto payment for an eminent domain taking and simultaneously challenge the lawfulness of that taking.[2] Under c. 79, once a taking authority records an order of taking, the authority generally must tender a payment pro tanto to the property owner.  G. L. c. 79, § 8A.  However, the statutory framework is silent as to whether the acceptance of the pro tanto payment by the property owner precludes a challenge to the validity of the taking.

The plaintiff argues that the defendant city of Cambridge (city) must immediately tender him the full amount of the pro tanto payment, along with accrued interest since the time of taking, because G. L. c. 79 as it is currently written does not condition his acceptance of the pro tanto payment on waiving his right to challenge the taking of his real property.  The city disagrees, arguing that the statutory framework and case law prohibit a property owner from accepting a pro tanto payment so long as the property owner pursues a claim challenging the lawfulness of the taking.  According to the city, if the plaintiff challenges the taking, which is his statutory right, then he will have neither his property, which has been taken pursuant to the quick take statute, nor the pro tanto amount.

We conclude that G. L. c. 79 permits the plaintiff to both accept a pro tanto payment and simultaneously challenge the validity of the underlying taking.  We do so because of the enormous power that the quick take statute provides, which immediately transfers ownership of the property from the property owner to the taking authority independent of judicial processes; the clear requirement of a pro tanto payment; and the absence of any statutory provision waiving pro tanto payments when the taking itself is challenged.  Therefore, we affirm the order by a single justice in the Appeals Court, vacating a decision by a Superior Court judge that denied the plaintiff’s motion to compel payment of the pro tanto amount, and we remand the matter to the Superior Court for further proceedings consistent with this opinion.

Charles Zaroulis, MMLA Past President and Former Executive Director, Remembered

MMLA Executive Director Jim Lampke remembered his friend and peedecessor: “He was also my predecessor as Secretary-Treasurer.  More significantly, he was a close friend of mine, and to all of us.  You could always count on Charles to ask a good question or offer pertinent solutions to municipal legal issues.  He had an encyclopedic memory for municipal law and cases. Our Annual Meetings (and we will get back to them) will never be the same for many of us with Charles and Jackie as regular dinner companions.  I can’t remember a meeting they did not attend. Please keep Charles and his family in your thoughts and prayers.  May his memory be a blessing for his family and friends.” We expect to have more details later and will share them with you.
Click here for his Obituary.    [DOWNLOAD:  A few scenes from recent times with Jackie and Charles]