• Panelists at MMLA's Annual Public Construction Update Program on April 26th. ! (Left to right): Dennis Ryan, Hon. Brian Davis, Mary Pichetti, Amanda Zuretti, Angela Atchue, Chris Pertrini, Peter Mello
Municipal Law News

Appeals Court: MURROW vs. ESH CIRCUS ARTS

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

Appeals Court: ALEXANDRA STAHR vs. LINCOLN SUDBURY REGIONAL SCHOOL DIST.

KeywordsPractice, Civil, Motion to dismiss. Massachusetts Tort Claims Act. Governmental Immunity. School and School Committee, Athletic coach, Liability for tort. Negligence, School, Governmental immunity. Words, “Intervention.”

The Appeals Court in this case considered whether Tort Claims Act § 10(j) is applicable to negligence claims brought by the plaintiffs against the defendant Regional High School District.  The plaintiffs’ claims arose out of an injury sustained by the plaintiff, a member of the defendant’s varsity field hockey team, who was struck by a field hockey stick wielded by another team member during a practice session. The Court also considered whether a specific statutory exception to the immunity afforded by § 10(j) permitted the claims to proceed because they are grounded in “the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [s]he was in before the intervention.”  G. L. c. 258, § 10(j)(2).  The Court concluded the plaintiffs’ claims are barred by § 10(j) and do not come within the saving provision of § 10(j)(2). Click here to read the full decision of the Court.

MDAR – “Interim Policy for Commercial Industrial Hemp”

Chapter 55 of the Acts of 2017, An Act to Ensure Safe Access to Marijuana, updated the Commonwealth’s laws that govern the use of marijuana. The legislation also created a distinction between marijuana and hemp, allowing activities related to hemp to take place under the jurisdiction of the Massachusetts Department of Agricultural Resources (MDAR) and subject to the requirements set forth in G.L. c. 128, Sections 116 through 123. [Note: at this time, Sections 116-123 are not yet available on the State legislative website.]

MDAR has released its Interim Policy for its Commercial Industrial Hemp Program, with other programs and policies to follow as they are developed. Documents and information are available on our website at https://www.mass.gov/service-details/hemp-programIndustrial Hemp is classified as “an agricultural commodity.”  The MDAR reports that it looks forward to working with municipalities as this new-to-Massachusetts agricultural commodity is introduced.

SJC: JANE DOE vs. SECRETARY OF EDUCATION

KeywordsEducation, Charter school. Education Reform Act. Constitutional Law, Education, Equal protection of laws, Standing. Jurisdiction, Constitutional question, Declaratory relief. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing

In the SJC’s decision issued today in JANE DOE vs. SECRETARY OF EDUCATION, the Court summarized its decision as follows:

“Five students who attend public schools in the city of Boston filed a complaint in the Superior Court against the Secretary of Education, the chair and members of the board of secondary and elementary education, and the Commissioner of Education (commissioner), alleging that the charter school cap under G. L. c. 71, § 89 (i), violates the education clause and the equal protection provisions of the Massachusetts Constitution because the students were not able to attend public charter schools of their choosing.  A judge of that court allowed the defendants’ motion to dismiss.  We affirm the judgment of dismissal and conclude, as did the motion judge, that the plaintiffs have failed to state a claim for relief under either provision.”   Justice Budd wrote: “The education clause (in the Massachusetts Constitution) provides a right for all the Commonwealth’s children to receive an adequate education, not a right to attend charter schools.”  Click here for the full text of the Court’s decision.

Appeals Court: JAMES MASLOW & others vs. CAROLYN O’CONNOR

Keywords:   Real Property, Littoral property, License, Harbors. Way, Private. Trust, Public trust. Real Property, Harbors

The decision issued by the Appeals Court today focuses on “. . . whether the filling of an area of tidelands pursuant to a G. L. c. 91 license extinguished rights held by upland owners to cross that area to access the remaining tidelands and the sea.  A Superior Court judge determined that the filling of certain tidelands extinguished the plaintiffs’ rights to access remaining tidelands through the end of a private way to which they were abutters.  We reverse, because the c. 91 license by its terms preserved those rights.”

The case was remanded to the Superior Court.  The Appeals Court concluded that the c. 91 license expressly prevents the impairment of the plaintiffs’ rights, and that the plaintiffs are entitled to a declaration that they have the right to traverse Rackliffe Street to its southerly end, and ” . . . to pass from there to the mean high tide mark of Wonson’s Cove and beyond, including use of the ramp. The plaintiffs are also entitled to a suitable injunction, which should preclude the defendants from placing any structures or obstructions in Rackliffe Street or in the area bounded by the lines of Rackliffe Street extended southerly to the water, including the grassy strip.”

Click here for the text of the full opinion.

SJC: MARY ALICE BOELTER vs. WAYLAND BOARD OF SELECTMEN

KeywordOpen Meeting Law. Municipal Corporations, Open meetings, Selectmen. Moot Question. Attorney General

In its decision issued today the SJC interpreted for the first time the meaning of “deliberation” as used in the state’s Open Meeting Law. The following is excerpted from that decision:

“The plaintiffs, all registered voters in the town of Wayland (town, brought this action in the Superior Court to challenge the procedure by which the board of selectmen of Wayland (board) conducted the 2012 performance review of the town administrator.  The chair of the board had circulated to all board members, in advance of the public meeting where the town administrator’s evaluation was to take place, board members’ individual written evaluations, as well as a composite written evaluation, of the town administrator’s performance.  The board made public all written evaluations after the open meeting.  The issue before us is whether the board violated the Massachusetts open meeting law, G. L. c. 30A, §§ 18 and 20 (a), which generally requires public bodies to make their meetings, including “deliberations,” open to the public. . . .

We conclude further that the procedure the board followed in conducting the town administrator’s evaluation did violate the open meeting law.  In making this determination, we consider, for the first time, the meaning of the open meeting law’s exemption to the definition of “[d]eliberation,” which became effective in July, 2010, that permits members of public bodies to distribute to each other “reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.”

Click here for the full text of the SJC’s decision.

Appeals Court: ALLISON ST. LAURENT vs. MIDDLEBOROUGH GAS & ELECTRIC DEPARTMENT

Keywords:   Municipal Corporations, Municipal electric plant, Governmental immunity. Middleborough. Massachusetts Tort Claims Act. Statute, Construction

The Appeals Court today issued its decision in St. Laurent v. Middleborough Gas & Electric Department in which it held that the Defendant was a public employer under the Tort Claims Act.  The Plaintiff had argued otherwise.  The Court remanded the matter to the trial court to address whether proper presentment had been made.   Click here for the full text of the decision.

Appeals Court: COURNOYER vs. DEPARTMENT OF STATE POLICE

KeywordsState Police. Retirement. Police, Retirement, Training program, Authority of police chief. Public Employment, Police, Retirement, Reinstatement of personnel.

The Appeals Court today issued its decision in Cournoyer v Department of State Police, in which it held  that G. L. c. 22C, § 24A, does not require the State Police to develop individualized training programs for former State police troopers seeking reinstatement and could require them to complete recruit training at the State police academy.  “Concluding that the statute is unambiguous and that the department may require former troopers separated for more than three years to complete recruit training, we affirm, ordering that the judgment be modified to declare the rights of the parties.”   Click here for the full decision.