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Municipal Law News

Appeals Court: JOANNE DELAPA vs FALMOUTH CONSERVATION COMMISSION

Keywords:   Wetlands Protection Act. Zoning, Wetlands. Municipal Corporations, Conservation commission. Practice, Civil, Action in nature of certiorari, Judgment on the pleadings

The Appeals Court today issued its decision in DeLapa v Conservation Commission of Falmouth in which it upheld a decision in favor of the Town on motions for judgment on the pleadings in an appeal of the denial by the Conservation Commission of an NOI under both state and local law to rebuild a pier damaged in a storm.

“In 2015, winter storms caused significant damage to a dock in Falmouth (town) owned by Joanne Delapa, as trustee of the Delcor Realty Trust (Delcor).  Delcor sought approval from the town conservation commission (commission) to repair the dock, which would involve, inter alia, driving four pilings into a protected wetlands area.  Acting in part pursuant to the town wetlands protection by-law and accompanying regulations, the commission denied Delcor’s application after finding it deficient in various respects.  Delcor brought an action in the nature of certiorari to challenge the commission’s denial, see G. L. c. 249, § 4, and on cross motions for judgment on the pleadings, see Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), a Superior Court judge ruled in the commission’s favor.  On Delcor’s appeal, we affirm the judgment.”

MMLA member and Assistant Town Counsel Patricia Harris represented Falmouth in this appeal.   Click here for the full text of Judge Milkey’s decision.

SJC: TALMO vs. ZBA OF FRAMINGHAM

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.

Appeals Court: TOWN OF FRAMINGHAM vs FRAMINGHAM POLICE OFFICERS UNION

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.

SJC: CINDY KING vs. TOWN CLERK OF TOWNSEND

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.

Appeals Court: BRIAN HICKEY vs. ZBA OF DENNIS

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.

SJC: JULIO ACEVEDO vs. MUSTERFIELD PLACE

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.