Municipal Law News


KeywordsZoning, Person aggrieved. Practice, Civil, Zoning appeal, Standing, Presumptions and burden of proof, Findings by judge

In its decision today the SJC addressed the question of whether the trial judge could determine sua sponte that a direct abutter’s presumptive standing was rebutted where the defendants did not press the issue at trial.  The Court concluded that in the circumstances of the case the judge properly reached the question and affirmed the judgment of dismissal.  Click here for the full text of today’s decision.  MMLA Vice President Peter Mello represented Framingham on this appeal.


Keywords: Municipal Corporations, Police, Collective bargaining. Police, Assignment of duties, Collective bargaining. Public Employment, Police, Collective bargaining. Labor, Police, Collective bargaining. Arbitration, Collective bargaining, Police. Injunction. Practice, Civil, Preliminary injunction

In this case the Appeals Court ruled that “the transfer and assignment of police officers is within the exclusive managerial authority of the police chief as a matter of public safety pursuant to G. L. c. 41, § 97A, and may not be delegated or contravened through arbitration or collective bargaining.”   The Court also concluded that “a  municipality seeking to enforce its statutory rights to exclusive managerial authority need not show irreparable harm to be entitled to a preliminary injunction.” Former MMLA President Chris Petrini represented the Town of Framingham in this case. Click here for the full text of the Court’s decision.


Keywords:   Municipal Corporations, Removal of public officer, Selectmen. Elections, Recall. Practice, Civil, Preliminary injunction. Injunction

In its decision today, the SJC ruled that a local recall election of a town selectman “may not proceed” because the Town’s recall act (Chapter 27, Acts of 1995) limited the reasons for which a recall election may occur.  Justice Budd, writing for the Court, stated that the reasons alleged for the Town’s recall election were not grounded on those established in the act.  The recall election petition was brought by ten registered voters of the Town.   Click here for the full text of the Court’s decision.

SCOTUS: Supreme Court decides internet sales tax case in favor of South Dakota

June 21, 2018 – Today, in South Dakota vs. Wayfair, the Supreme Court announced in a 5-4 opinion that the “physical presence rule” for the purpose of requiring out of state sellers to collect and remit sales tax is “unsound and incorrect,” has limited States’ and local governments’ “ability to seek long-term prosperity,” and that Quill Corp. v. North Dakota, 504 U. S. 298 (1992), and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967) are therefore overruled.  Amanda Kellar, Director of Legal Advocacy at IMLA (International Municipal Lawyers Association), sent out to IMLA members the following report on today’s SCOTUS decision, noting that the decision is “a huge win for state and local governments.”  Click here to read Attorney Kellar’s report and for a link to the full text of the Supreme Court’s decision.

Also Lisa Soronen, Executive Director of the State & Local Legal Center, has provided us with an update on the decision.  Click here for that Attorney Soronen’s update, republished with permission of SLLC.


KeywordsZoning, Notice, Appeal, Board of appeals: decision. Practice, Civil, Zoning appeal, Summary judgment. Notice.

Today the Appeals Court held that actual knowledge by an assistant town clerk that a zoning appeal complaint had been filed in court satisfied the statutory requirement for the appellant to file a copy of the complaint with the town clerk within 20 days of the ZBA’s decision. Excerpt: “Section 17 of the Zoning Act, G. L. c. 40A, sets out the procedural requirements for a person aggrieved by a decision of a zoning board of appeals or special permit granting authority to seek judicial review “by bringing an action within twenty days after the decision has been filed in the office of the town clerk,” and further specifies that “[n]otice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days.”  A judge of the Land Court allowed the defendant’s motion for summary judgment, dismissing the plaintiffs’ complaint, on the ground that the plaintiffs did not timely give the required notice to the town clerk.  Because the undisputed facts in the summary judgment record establish that the town’s assistant clerk had actual knowledge of the plaintiffs’ complaint within the required time, we reverse the judgment.”  Click here for the full text of the Appeals Court’s decision.


Keywords:   Housing Authority. Massachusetts Tort Claims Act. Words, “Controlled affiliate,” “Public employer

On direct appellate review, the SJC concluded that neither a “controlled affiliate” nor the “manager” of a controlled affiliate is a “public employer” as defined in the act.  Justice Gants wrote: “On February 22, 2013, the plaintiff, Julio Acevedo, allegedly slipped and fell while descending stairs at his apartment in a public housing development in Framingham known as Musterfield at Concord Place (property), and suffered serious injuries.  He filed a complaint in the Superior Court alleging various claims for damages against three defendants:  the Framingham Housing Authority (authority); Musterfield Place, LLC, a “controlled affiliate” of the authority, which owns the property (owner); and FHA Musterfield Manager, LLC, the managing agent for the owner (manager).  The owner and manager moved for partial summary judgment, seeking a ruling that they should be deemed public employers under the Tort Claims Act (act), G. L. c. 258, § 2, and therefore may not be liable for damages in excess of $100,000.  The judge denied the motion, concluding that the act “clearly defines the scope of a public employer,” and did not include controlled affiliates within that definition.  Recognizing that the issue whether controlled affiliates are deemed public employers under the act is a matter with “potentially broad impact throughout the Commonwealth” and that it has not been addressed by any other Massachusetts court, the judge reported his decision to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1410 (1996), and stayed the action until the appeal is decided.  We conclude that neither a controlled affiliate nor the manager of a controlled affiliate is a “public employer” as defined in the act, and therefore, we affirm the denial of the defendants’ motion for partial summary judgment.”

 Click here for the full decision.


KeywordsSchool and School Committee, Arbitration, Collective bargaining, Termination of employment. Arbitration, School committee, Collective bargaining. Public Employment, Collective bargaining, Termination. Education Reform Act. Practice, Civil, Stay of proceedings, Moot case.

The Appeals Court affirmed a decision of the Superior Court which had stayed a grievance arbitration proceeding commenced by the association before the Department of Labor Relations (DLR). The association had argued that the arbitration became moot once the teacher involved withdrew his grievance and that the matter should have been dismissed. The association had also argued that the teacher had an absolute right to arbitrate an alleged collective bargaining agreement violation that preceded his termination.  The association maintained that it is irrelevant that the teacher did not have professional teacher status, that he had been employed for less than ninety days, and that reinstatement was the remedy being sought.  Click here for the full text of the Appeals Court’s decision.


Keywords:  Zoning, Appeal, Person aggrieved, Board of appeals: notice of hearing. Practice, Civil, Zoning appeal, Standing, Motion to dismiss. Notice

The Appeals Court, in another very interesting “standing” decision, concluded that the plaintiff in this case was not a party in interest because, although within 300′ of the ESH property, she was neither an abutter nor an abutter to abutter, but rather only an abutter to land directly opposite to ESH.  The plaintiff claimed that she is a party in interest as one of the “abutters to the abutters within three hundred feet” because she lives within three hundred feet of the Esh property; but the Court disagreed.  “The phrase “within three hundred feet” modifies “abutters to the abutters” and does not create a standalone category of parties in interest.  To read § 11 otherwise would “render [a] portion of it meaningless.” For the full decision of the Court, click here