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THIS NEWSLETTER MAY BE CONSIDERED ADVERTISING UNDER MASSACHUSETTS SUPREME JUDICIAL COURT RULES. This newsletter is intended for clients and friends of Miyares and Harrington LLP. It provides general information about legal developments and should not be used as a substitute for professional advice on your particular legal situation.
Volume 1 (Nov. 2014 - Nov. 2015)
Volume 2 (Jan. - Dec., 2016)
Land Court Rules Formula Businesses Zoning Bylaw Invalid
Some municipalities have adopted zoning ordinances or bylaws that discourage or impede development by businesses with a large regional or national identity. Last month, the Land Court invalidated such a zoning bylaw in the Town of Wellfleet (Cumberland Farms v. Jacob). The Town’s “Formula Business” Bylaw required a special permit for any retail trade business that maintains a “standardized (formula) array of merchandise, exterior trademark or service mark…that identifies the business as one (1) of twenty five (25) or more other businesses worldwide.” The bylaw also established various criteria for obtaining the special permit. Read More >
Panhandling Ordinance Violates First Amendment
There has been a new development in the rapidly changing law governing the municipal regulation of speech. In Thayer v. City of Worcester, the city’s ordinances restricting aggressive panhandling have been held to be unconstitutional.
Worcester’s ordinances had the stated purpose of protecting the public safety and welfare by prohibiting “aggressive panhandling” and limiting the use of traffic islands to the purpose of crossing the street. Despite a preamble that paid homage to balancing the First Amendment Rights of its citizens against the need to protect public health and welfare, Worcester’s ordinances did not survive strict judicial inspection. Read More >
Settlement Agreements That Contain Personal Information and a Confidentiality Provision Are Nevertheless Public Records
Cities and Towns often resist releasing settlement agreements on the grounds that they are confidential and contain information that identifies a particular individual. Identifiable information regarding disabled students and their families would seem to be particularly immune from public release. Nonetheless, the Supreme Judicial Court in Champa v. Weston Public Schools, held that public schools must release settlement agreements with parents of students with disabilities after redacting the personally identifiable information (PII) contained in the agreements.
The plaintiff requested copies of all agreements entered into by the school district with parents and guardians of students with disabilities resulting in out-of-district placements. The school district denied the request based on the federal Family Educational Rights and Privacy Act (FERPA) and the Massachusetts Student Records Regulations. Read More >
What is Massachusetts’s official State Explorer Rock?
Implied Warranties in Construction-Management At-Risk Projects
In Coghlin Elec. Contractors, Inc. v. Gilbane Bldg. Co., the Massachusetts Supreme Judicial Court considered that arises in the increasing number of public construction projects conducted under the construction-management-at-risk statute (M.G.L. c.149A).
On a standard design-bid-build construction project, a public owner first hires a designer to prepare specifications and plans for the project and then conducts a public bidding process to obtain the services of a general contractor to implement the design. Read More >
Licensing Boards Are Not Required to Provide an Explanation for Denial
of Fuel Storage License
In Cumberland Farms, Inc. v. City Council of Marlborough, the Appeals Court upheld a decision of the Marlborough City Council to deny Cumberland Farms’ application for a fuel storage license, even though the City Council had not provided a reason for the denial. The Superior Court dismissed Cumberland’s Farms’ appeal of the decision by applying the arbitrary and capricious standard of review.
Cumberland Farm challenged the application of the arbitrary and capricious standard of review to the Council’s decision, arguing that, instead, the substantial evidence standard of review governed. Read More >
State Ethics Commission Issues New Advisory for Job Seekers and For Those Leaving
On September 16, 2015, the State Ethics Commission approved Advisory 15-1: Avoiding Conflicts of Interest while Seeking a New Job and After Leaving Public Employment. Advisory 15-1 updates and replaces Advisory 90-01: Negotiating for Prospective Employment. Notably, the Advisory does not alter the Commission’s prior advice, but rather explains in a more concise manner how the conflict of interest law, M.G.L. c.268A, applies to public employees when they are seeking a new job.
Community Compact Update: 41 Signed Compacts, 120 Applications!
In our April 2015 Issue we discussed Governor Baker’s Executive Order No. 554, creating the Community Compact Cabinet. The Community Compact Cabinet is charged with the task of elevating the Administration’s partnerships with cities and towns. The Executive Order also established Community Compacts, a voluntary agreement between the Baker-Polito Administration and individual cities and towns. Communities seeking to enter into a Community Compact must agree to implement at least one of the “best practices” across a variety of areas. In exchange, communities receive state technical assistance resources and extra points on state grant applications, such as those offered by the MassWorks Infrastructure Program. As of this month more than 120 cities and towns have applied to participate in the program, with 41 executed Compacts so far. Has your municipality applied?
Local Sex Offender Residency Restrictions Ruled Unconstitutional.
On August 28, 2015, the Supreme Judicial Court held, in Doe v. City of Lynn, that a municipal ordinance that imposes restrictions on the right of sex offenders to reside in the locality is inconsistent with the comprehensive statutory scheme governing the oversight of convicted sex offenders, and therefore, violates the Home Rule Amendment and Home Rule Procedures Act.
Under the Home Rule Amendment, a local regulation is unconstitutional if it is “inconsistent” with the laws of the Commonwealth or the constitution. A regulation is “inconsistent” if the state Legislature intended to preempt the locality’s authority to act. Read More >
Visiting Student Athletes at Public Parks: Recreational Use Statute Does Not Protect Municipalities from Liability.
The Supreme Judicial Court’s recent opinion in Murray v. Town of Hudson clarifies that the Recreational Use Statute, M.G.L. c.21, §17C does not shield municipalities from liability for negligence resulting in injuries to visiting student-athletes, even if the sporting event is held in a town park off of school grounds.
In Murray, the Town of Hudson’s High School baseball team had hosted a varsity baseball game against Milford High School at a public park. During the game, the Milford High School coach instructed a pitcher on his team to warm up in the away team’s bullpen, which contained exposed wooden timbers that formed the boundaries of the warm-up area. While the pitcher was loosening up, he suffered a badly torn meniscus in his left knee when his foot struck a wooden berm as it came down on the follow-through of the pitch. Read More >
Changes at the ABCC: New License Application, Patio Guidelines, and Form 43.
On August 26, 2015, the Alcoholic Beverages Control Commission issued a Memorandum on License Application Forms outlining recent changes to the liquor license application and its policies (view the Memorandum, here). We have highlighted a few of the more substantive changes pertinent to Local Licensing Authorities below:
Landlords receiving a percentage of the alcohol sales as part of the rental agreement will no longer have to provide a Personal Information Form or CORI forms. Read More >
Liquor License Renewal Season!
With the start of school also comes liquor license renewal season. We would like to share a friendly reminder that all renewal applications must be signed during the month of November by a legally authorized individual. The following people may legally sign the renewal application: shareholder, director, or officer of a corporation; a member or manager of a LLC; the license manger; an appointed trustee in bankruptcy; appointed administrator/executor of an estate of a deceased licensee; or a pledge holder who has filed the appropriate forms. Accordingly, Local Licensing Authorities should ensure that an authorized individual has signed the renewal form.
Shifting Sands at the AG’s Office? Recent Open Meeting Law Decisions Suggest That Change Is on the Way.
The Division of Open Government recently released two opinions that seem to mark changes in the way that the Open Meeting Law is interpreted by the Attorney General’s Office.
In OML Decision 2015-88 (available online here), the Attorney General found that the Framingham Board of Selectmen did not violate the Open Meeting Law when it entered into executive session to discuss whether to release written legal opinions from its Town Counsel. Read More >
Restricting Liquor Sales in Adult Entertainment Establishments Requires a Clear Reason and Adequate Tailoring.
In Showtime Entertainment LLC v. Town of Mendon, 472 Mass. 102 (2015), the Supreme Judicial Court held that a Town’s bylaw prohibiting the sale of alcohol on the premises of any business featuring nude dancing within the Town’s Adult Entertainment Overlay District was unconstitutional because it was not adequately tailored to address crime prevention in the district.
Showtime Entertainment sought a license to operate a business featuring live nude dancing and alcohol service in Mendon’s adult entertainment overlay district. Read More >
How Do I Collect Those Unpaid Fines?
Municipalities that accept the provisions of M.G.L. c.40U may establish an administrative process for the collection of fines for the violation of any rule, regulation, order, ordinance or bylaw regulating housing, sanitary or municipal snow and ice removal requirements. Prior to passage of Chapter 40U, municipalities were authorized by M.G.L. c.40, §21D to establish an administrative process for the disposition of non-criminal violations as an alternative to initiating a criminal complaint. Nevertheless, municipalities were still required to file a complaint in court to enforce fines resulting from such dispositions that remained unpaid. Read More >
Time to Update Your Workplace Employee Rights Poster.
In the November 2014 election, Massachusetts’ voters approved guaranteed earned sick time for workers at certain companies within the Commonwealth. The approval of the Question 4 ballot initiative ushered in a new set of standards for paid sick time for employees at any Massachusetts entity employing 11 or more people. Employers with fewer than 11 employees must provide unpaid sick leave.
The new earned sick time regulations, 940 C.M.R. 33.00, took effect on July 1, 2015, and contain a safe harbor provision that grants employers that already offer paid time off to their employees a six-month extension to come into full compliance with the new law by January 1, 2016. Read More >
Your Sign Bylaw or Ordinance Is Probably Unconstitutional!
On June 18, 2015, the Supreme Court unanimously invalidated the Town of Gilbert’s municipal sign code as an unconstitutional “content-based” restriction on free speech in Reed v. Town of Gilbert, Arizona.
Gilbert’s municipal sign code imposed few restrictions on political signs but strictly limited the size, duration of their display and, in some cases, the number of directional signs permitted on a parcel. Gilbert offered two governmental interests that it believed to be served by the code: preservation of Town aesthetics and traffic safety. While the Court assumed, for the purpose of its decision, that both were “compelling” governmental interests, it concluded that they were not served constitutionally by Gilbert’s sign code. Read More >
The No-Tell Hotel Is Alive and Well
On June 22, 2015, the Supreme Court issued its decision in the matter of City of Los Angeles v. Patel, holding that a municipal ordinance that permits a warrantless search of a hotel register, without an opportunity for pre-compliance judicial review of the requested search (normally accomplished through the acquisition of said warrant) violates the Fourth Amendment of the United States Constitution. Although Massachusetts law was not specifically addressed in the decision, the Supreme Court’s resolution of this case affects longstanding Massachusetts law regarding warrantless inspections of hotel guest registers by local licensing authorities and police officers.
Do You Qualify for Qualified Immunity?
On May 18, 2015, the Supreme Court issued its decision in City of San Francisco v. Sheehan, a case delineating when public officials enjoy immunity from lawsuits against them in their individual capacity. The case arose from an incident at a group home for individuals with mental illness. The home manager had called the police after Sheehan had begun acting erratically, and the two responding officers had subsequently entered, left and then re-entered Sheehan’s private room, before ultimately shooting her multiple times after she advanced on them with a knife. Sheehan sued both the City and the individual officers for, among other things, violation of her Fourth Amendment right against unlawful search and seizure.
Municipal Attorneys’ Work Product Is Protected under the Public Records Law
Recently, the Massachusetts Supreme Judicial Court provided some much-needed clarity and insight to a widely debated issue: Whether the Public Records Law (available for review here) protects an attorney’s work product, prepared by or for a public entity in anticipation of litigation or trial, from public disclosure. In DaRosa v. City of New Bedford v. Monsanto Company (decision available here), the SJC affirmed that such work product may be shielded from public disclosure pursuant to the “policy” exemption to the Public Records Law, M.G.L. c.4, §7(26)(d).
Revisions to Regulations for Registered Marijuana Dispensaries Usher in the Next Phase of Medical Marijuana in Massachusetts
On June 29, 2015, the Department of Public Health will begin accepting applications for Certificates of Registration to open Registered Marijuana Dispensaries (RMDs) under a new regulatory structure, described here, that treats applicants in a different way from what was utilized previously.
Certificates will still be available only to non-profit corporations, but applications will now be received and considered in the order they are submitted. According to DPH, this means that applicants seeking to open RMDs are no longer in competition, and applications are no longer scored and compared against other applicants within the same county.
The Mullin Rule Runaround and the Mullin Rule Workaround
In 1983, the Appeals Court held that “[w]hen a municipal administrative body is acting in a judicial or quasi-judicial capacity, all [members of the board or committee] who are to join in the decision must have attended the hearing.” Mullin v. Planning Bd. of Brewster (decision available here).
Gov. Baker Issues Executive Order Mandating Review of All State Regulations
On March 31, 2015, Governor Baker issued Executive Order 562, which requires all state agencies to initiate a review of all regulations currently issued, proposed, or to be proposed under its jurisdiction. Unless the Agency determines that the regulation is “mandated by law or essential to the health, safety, environment or welfare of the Commonwealth’s citizens,” it must sunset as of March 31, 2016. Read More >
Introducing: A More User-Friendly MassDEP
The Massachusetts Department of Environmental Protection has announced the creation of a new Office of Municipal Partnerships and Governmental Affairs and the new position of Permit and Regulatory Ombudsman, both with the goal of strengthening partnerships with cities and towns and increasing awareness about MassDEP’s projects and the permitting process.
New Sunday Entertainment License
The Department of Public Safety has revised the License for Public Entertainment on Sunday and application form. Significantly, the new licensing form has consolidated the application and the license into a single form. A copy of the License for Public Entertainment on Sunday and Application may be found here.
Unsuitability Determinations for Firearm Identification Cards
Chapter 284 of the Acts of 2014, An Act Relative to the Reduction of Gun Violence, became effective on January 1, 2015. While the Act revises many of the laws governing firearm distribution, one of the more significant changes pertains to the local licensing authority’s ability to control firearm ownership.
New Revolving Fund Specifically Related to Tax Titles
On December 16, 2014, Governor Patrick signed into law Chapter 390 of the Acts of 2014, an Act Relative to the Establishment of Tax Title Collection Revolving Funds. The new law adds M.G.L. c.60, §15B, allowing cities and towns to establish revolving funds for expenditures related to tax takings or tax title foreclosures.
Signs on Public Property: Function vs. Content-Based Regulation
The U.S. Supreme Court recently heard oral arguments from an Arizona church and the Town of Gilbert, Arizona regarding a dispute about the Town’s ordinance regulating signage on public property. The church, “Good News Community Church,” meets in various rented spaces in and around Gilbert. The shifting location of the church services necessitates the use of a sign to point members of the congregation to that week’s meeting place.
It’s Blizzarding; It’s Town Meeting Night! What Can We Do?
On January 7, 2015, Governor Patrick signed into law Senate Bill 2121, an Act Further Regulating Town Meeting Notice. The new law adds M.G.L. c.39, §10A, which allows Town Moderators to recess and continue Town Meetings in the event of a weather-related or other public safety emergency.
New Federal Regulations Limit Local Review of Telecommunications Applications
On January 8, 2015, the Federal Communications Commission (FCC) published new rules in the Federal Register that affect local permitting reviews of requests to modify existing wireless telecommunications facilities. The new rules become effective 90 days after their publication.
Open Meeting Law – Traps for the Unwary
Compliance with the Open Meeting Law, M.G.L. c.30A, §§18-25 requires both diligence and vigilance. The Attorney General’s Office scrutinizes Open Meeting Law complaints carefully, and strictly applies the Law’s requirements. Based on our review of the numerous decisions that have been recently rendered, the following four common violations seem to pose the most traps for an unwary public body:
Dealing with Airbnb: the challenges of peer-to-peer housing
Over the past few years, there has been a sharp increase in the use of peer-to-peer rental platforms such as Airbnb, Vacation Rental by Owner, and Homeaway. These online marketplaces have become a significant part of our society, with expected revenue from the major companies to increase to $335 billion globally by 2025.
Deference to a Town’s Interpretation of its Zoning Bylaws only when it is “Reasonable”
On October 22, 2014, the Appeals Court issued a slip opinion in the matter of Pelullo v. Croft, 86 Mass.App.Ct. 908 (2014), rejecting the Natick Building Inspector’s interpretation of “lot depth,” a term used but not defined in the Town’s Zoning Bylaw, as unreasonable and therefore not entitled to deference. This decision is a reminder that local officials’ interpretations of zoning bylaws will receive deference only to the extent that such interpretations are reasonable.
New Procedure for Notice of Non-Compliance for Drinking Water Program
The MassDEP Drinking Water Program has established a new procedure when issuing notices of non-compliance (NONs) to public water systems. NONs will now include an attached Compliance Schedule Approval (CSA) Form.
Does Your City or Town Need to Improve its Drinking Water or Wastewater Infrastructure but Lack Funds?
M.G.L. c.40, §39M, which became effective on August 6, 2014, provides cities and towns with a new tool to fund capital improvements to public water and wastewater systems. The new statute allows local acceptance of a tax surcharge of up to 3%, with the revenue dedicated to a separate account known as the Municipal Infrastructure Investment Fund.
Revisions to Tax Increment Financing (TIF) Statutes
Chapter 287 of the Acts of 2014, signed into law on August 13, 2014, revises a number of statutes related to the Economic Development Incentive Program (EDIP). Under the EDIP, certified projects that lead to new, permanent job creation can receive tax incentives, including the ability to enter into Tax Increment Financing (TIF) Agreements with host municipalities allowing exemptions from the real and personal property taxes applicable to the project.
Update to the Water Management Act Regulations
On November 7, 2014, the Massachusetts Department of Environmental Protection (the “Department”) promulgated new Water Management Act (WMA) regulations (310 CMR 36.00). The revised regulations create enforceable standards, criteria and procedures to manage water withdrawals throughout the Commonwealth.
Supreme Judicial Court Clarifies Existing Structures Exemption in Subdivision Control Law
In the brand new decision Palitz v. Zoning Bd. of Appeals of Tisbury (March 3, 2015), the Supreme Judicial Court has clarified the legal effect of the “existing structures exemption” contained in the Subdivision Control Law.
Fix Potholes with the Winter Recovery Assistance Program
On March 19, 2015, the Baker Administration announced that it had established a “Winter Recovery Assistance Program,” a $30 million targeted effort to assist cities and towns with repairing the winter’s damage to roads and bridges under municipal jurisdiction.
New Community Compact Cabinet Committed to Strong State-Local Partnership
On January 23, 2015, Governor Baker signed Executive Order No. 554, creating the Community Compact Cabinet. Chaired by Lieutenant Governor Polito, the Cabinet includes:
Changes to the Open Meeting Law Guide
Recently, the Attorney General’s Office released a revised Open Meeting Law Guide. The new Guide, which may be found here, contains two significant changes:
Municipal Grant Finder
As Town Meeting season approaches and communities look towards FY2016, we encourage you to visit the Municipal Grant Finder. The Municipal Grant Finder (here), created last year under the Patrick Administration, provides a central location to learn about state grant opportunities. This easy-to-use tool is a valuable resource to local leaders seeking additional funding prospects.
Volume 1, Issue 12 (Nov. 2015)
Volume 1, Issue 11 (Oct. 2015)
Volume 1, Issue 10 (Sept. 2015)
Volume 1, Issue 9 (Aug. 2015)
Volume 1, Issue 8 (July 2015)
Volume 1, Issue 7 (June 2015)
Volume 1, Issue 6 (May 2015)
Volume 1, Issue 4 (March 2015)
Volume 1, Issue 3 (Jan. 2015)
Volume 1, Issue 2 (Jan. 2015)
Volume 1, Issue 1 (Nov. 2014)
Volume 1, Issue 5 (April 2015)
Can a Holiday Display Become a Public Nuisance?
With the holiday season upon us, a case from Florida presents a tale of woe for municipalities whose residents have taken holiday displays to the limit.
The City of Plantation brought suit against local residents Mark and Katherine Hyatt seeking abatement of a public nuisance and an order to scale down the nature, size, and promotion of the self-titled “Hyatt Extreme Christmas.”
The Hyatts started the display in 2006 and, over the years, have expanded it to an extraordinary degree: At the property there are over 200,000 individual lights; a 30-foot lighted Christmas tree; snow (in Florida!); a large-projection movie screen; a 20-foot Ferris wheel for stuffed animals; a parade; and yes, even Santa makes an appearance. Read More >
Recreational Marijuana Legalized – Now What?
On November 8, 2016, Massachusetts’s voters approved a citizen’s petition to legalize the recreational use of marijuana by a margin of 7.2%. The law will allow individuals 21 years or older, to use, possess, and cultivate, marijuana in established amounts commencing on December 15, 2016. In addition, starting on October 1, 2017, the Cannabis Control Commission (“CCC”), a newly established state agency, must begin accepting applications from commercial marijuana businesses, including cultivators, testing facilities, product manufacturers, and retailers (“marijuana establishments”). The CCC must act on all applications within 90 days of receipt. Therefore, the first marijuana establishment will be authorized to open its doors no later than January 2, 2018. Read More >
A Step Toward Modernization of the Records Retention Schedule
Secretary of the Commonwealth William F. Galvin has recently rolled out two updated resources for municipal records retention that may prove useful in deciphering your records retention obligations under the Public Records Law. Both resources offer a relatively user-friendly method to determine quickly how long a particular record must be retained. Read More >
The Supreme Judicial Court Upholds Split Tax Structure
Prior to 1978, Article 4 of the Massachusetts Constitution strictly prohibited the imposition of taxes on one class of persons or property at a rate different from that imposed on other classes. Reflecting strong public sentiment favoring the establishment of lower property tax assessments for residential property and open space, voters ratified a constitutional amendment, Article 112 on November 7, 1978. Read More >
Question: What was the first painting purchased by the Norman Rockwell Museum in Stockbridge and who is pictured in it?
Last issue’s question: What is the other name for Lake Chargoggagoggmanchauggagoggchaubunagungamaugg, and in what Town is it located?
Answer: Lake Chargoggagoggmanchauggagoggchaubunagungamaugg is also mercifully known as Webster Lake, located in the Town of Webster adjacent to the Connecticut border.
John Westerling, Director of Public Works for the Town of Hopkinton, was the only individual to answer correctly and also to identify the lake’s alternate name. For those keeping score at home, the Town of Hopkinton has produced the last two winning answers. Congratulations!
An Occupational Hazard of Elected Officials Is Protected by the First Amendment
The Supreme Judicial Court recently held that vile letters sent to a Rehoboth Selectman did not constitute criminal harassment “[b]ecause the letters were directed at an elected political official and primarily discussed issues of public concern [and therefore fell] within the category of constitutionally protected political speech at the core of the First Amendment.” Commonwealth v. Bigelow, 475 Mass. 554 (2016).
Over a ten-week period in 2011, Harvey Bigelow sent five anonymous letters to Selectmen Michael Costello’s home. The letters used a variety of personal insults and alleged that the Selectman had engaged in criminal activity and sexual improprieties. Read More >
Record Access Officers: Getting Ready for the New Public Records Law
By now, most communities are well aware that the revised Public Records Law will take effect on January 1, 2017. Under the new law, cities and towns will have to designate one or more employees to serve as a Records Access Officer (RAO). This designation should be made well before January 1 to ensure compliance with the Act.
Designating an RAO
The Act provides that the municipal Clerk or the Clerk’s designees shall serve as RAOs. The municipality is not required to take any specific action to designate the Clerk as an RAO. The Clerk is statutorily authorized to serve. Read More >
Affirmation that Local Conservation Bylaws Can Define Wetlands More Broadly than State and Federal Law
The Appeals Court has upheld a determination by the Wayland Conservation Commission that there were wetlands on an applicant’s property under the local bylaw’s definition of wetlands. The August 31 decision in Nelson v. Conservation Commission of Wayland affirmed a Superior Court judgment in favor of the Conservation Commission, rebuffing the plaintiff’s challenge that the Commission’s decision was not based on substantial evidence. This decision serves as a reminder to conservation commissions that written findings supported by a strong record are crucial elements of a decision under a local wetlands bylaw. Read More >
Question: What is the other name for Lake Chargoggagoggmanchauggagoggchaubunagunga-maugg, and in what Town is it located?
Last issue’s question: What is the name of the first woman in America honored with a statue, where is the statue located, and why was she honored?
Answer: Hannah Duston/Dustin was the first woman honored with a statue. While there are more than six memorials of Hannah (one in Haverhill), the first statue of her is located in Boscawen, New Hampshire. Hannah is famous for killing Native Americans that had taken her and her daughter captive. Another little known fact is that Hannah is an ancestor of our own Jennie Merrill.
Christopher Sandini, Finance Director of the Town of Hopkinton, was the only individual to identify Hannah. Congratulations!
Get Ready for Early Voting
For the first time ever, Massachusetts will hold an early-voting period ahead of the general elections in November. Enacted in 2014, the early voting law, M.G.L. c.54, §25B, and its implementing regulations, 950 CMR 47.00, require cities and towns to allow residents to vote for ten days before the biennial statewide election. This year, early voting for the general election will run from October 24 to November 4.
Although the law provides for greater flexibility in the voting process, it also imposes additional burdens on City and Town Clerks who must administer the program. In order to assist in preparing for early voters, we have included a non-exhaustive list of those steps that communities should take prior to the start of the early voting period. Read More >
Expanded Protection for Illegal Structures That Violate Zoning Requirements
M.G.L. c.40A, §7 has long contained two “safe harbor” provisions. The first is for any structure or use that violates local zoning but was originally undertaken pursuant to a building permit: After six years, these structures and uses become immune from zoning enforcement. The second is for any structure (but not a use) that violates local zoning and was constructed without a building permit: These structures become immune from zoning enforcement after ten years. Read More >
New Requirement for Establishment of Departmental Revolving Funds
As we reported in our August newsletter, the Governor signed into law Chapter 218 of the Acts of 2016, An Act Modernizing Municipal Finance and Government on August 9, 2016. Section 86 of the Act amends the statute that authorizes municipal use of departmental revolving funds, M.G.L. c.44, §53E1/2, to change the manner by which revolving funds may be authorized. Under existing law, municipalities vote annually to authorize such funds. Beginning in Fiscal Year 2018, however, departmental revolving funds must be
established by a bylaw or ordinance that specifies: Read More >
It’s a Christmas Miracle! Alcohol Sales on the Day After Christmas
On August 10, 2016, Governor Baker signed the new economic development law, An Act Relative to job creation and workforce development. While the central focus of the law is to advance job creation and strengthen community and housing development efforts, the law also makes it legal for package stores to be open the day after Christmas. Under the old law, it was illegal to sell alcohol the day after Christmas if Christmas fell on a Sunday. Read More >
Question: What is the name of the first woman in America to be honored with a statue, where is the statue located, and why was she honored?
Last issue’s question: J.K. Rowling has declared that Ilvermorny, the American Wizarding School, is set in what Massachusetts town?
Answer: Ilvermorny stands at the highest peak of Mount Greylock, which is located in the Town of Adams.
We had many correct answers this month! However, congratulations are in order to Bob LeLacheur, Town Manager of Reading, for being the first to contact us with the correct answer. He wins 10 points for Reading.
Municipal Modernization Act Changes (Just About) Everything
On August 9, 2016, Governor Baker signed into law An Act Modernizing Municipal Finance and Government. While the Act has been promoted as updating the legal strictures applicable to municipal government and bringing local governance into the 21st century, it may be better understood as addressing a laundry list of concerns that cities and towns have raised over time, while leaving others unaddressed. The Act is less about modernization, and more about making small, but important, changes to a large number of local government practices. Unless otherwise noted, the Act will take effect on November 7, 2016. Some of the key changes include: Read More >
Equal Pay Legislation Prevents Wage Discrimination Based on Gender
On August 1, 2016, Governor Baker signed a bipartisan pay equity bill, An Act to Establish Pay Equity, to ensure equal pay for comparable work for all Massachusetts workers. The Act, which was passed unanimously by both legislative branches, is effective January 1, 2018.
The new Act is significant because it provides a more comprehensive definition of “comparable work” than set forth in the prior law, which was adopted in 1945. While variations in wages are permitted, differences in pay must be based on one of the following enumerated attributes: Read More >
OML Update on Aggregating Communications and Approval of Minutes
July proved to be an important month for interpretations of the Open Meeting Law, with a Superior Court case dealing with serial communications during staff evaluations and an Attorney General decision addressing the approval of minutes by a public body.
In Boelter v. Wayland Board of Selectmen, the Superior Court held that aggregating the comments of a quorum of a public body into a single document outside an open meeting violates the Open Meeting Law. While the state’s highest court had already found such communications to be in violation of the law (District Attorney for the Northern District v. School Committee of Wayland, 455 Mass. 561 (2009)), the decision in Boelter is a good reminder for those public bodies currently utilizing this practice to draft staff evaluations and other documents. Read More >
Drought Hits Massachusetts!
On July 8, 2016, Energy and Environmental Secretary Mathew Beaton declared a Drought Watch for Central and Northeast Massachusetts and a Drought Advisory for Southeast Massachusetts and the Connecticut River Valley. This declaration came after a recommendation from the Drought Management Task Force (DMTF), a group comprised of state, federal, and local officials and professional organizations. Read More >
Question: J.K. Rowling has declared that Ilvermorny, the American Wizarding School, is set in what Massachusetts town?
Last issue’s question: “I have come to the conclusion that one useless man is called a disgrace; that two are called a law firm; and that three or more become a Congress!” is a quote attributed (falsely) to what Massachusetts political figure? And where does the quote actually come from?
Answer: John Adams. The quote actually comes from the musical play, 1776.
We had no correct responses this month, which leads us to recall another quote, this one from Nobel Laureate Naguib Mahfouz: “You can tell whether a man is clever by his answers. You can tell whether a man is wise by his questions.” It sounds like our crack trivia question writers may include a few too many wise guys!
New Public Records Bill Approved by the House and the Senate
On June 3, 2016, the Governor signed into law “An Act to improve public records,” which markedly changes the requirements applicable to municipalities’ public records responses under the Public Records Law. The law will go into effect on January 1, 2017. Some highlights:
Writing Requirements. The law will require that requests for public records be in writing and delivered by hand, first class mail or electronic mail.
Record Access Officer. The law will require municipalities to appoint a dedicated records access officer (RAO) to assist in responding to public records requests and will further require online posting of commonly requested public records. Read More >
Do’s and Don’ts When Dismissing Non-Union Public Employees
Do you think that you can fire some employees for any reason at all or for no reason because they are “at-will”? Must employees be given a hearing with forewarning of the reasons for the hearing before they can be fired or disciplined? The answer to both questions is the same: It depends. Two recent cases provide some guidance: Read More >
Supreme Judicial Court Requires DEP to Adopt Regulations
The Massachusetts Supreme Judicial Court recently held in Kain v. Department of Environmental Protection, that the Department of Environmental Protection (DEP) failed to fulfill its statutory mandate under the Global Warming Solutions Act, which compels the Commonwealth to reduce its “greenhouse gas” emissions by at least 25% by 2020 and 80% by 2050 from all sectors of the economy. In order to achieve these goals, DEP was required to adopt regulations establishing a “desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions” by January 1, 2012. Read More >
Question: “I have come to the conclusion that one useless man is called a disgrace; that two are called a law firm; and that three or more become a Congress!” is a quote attributed (falsely) to what Massachusetts political figure? And where does the quote actually come from?
Last issue’s question: Who wrote “By the rude bridge that arched the flood” and to what was the author referring?
Answer: The statement is contained in Ralph Waldo Emerson’s poem, “Concord Hymn,” and refers to the battle over the Old North Bridge in Concord. Shout out to Keith Bergman, Town Administrator in Littleton, for being the first to respond correctly.
EPA and MassDEP Issue Revised Municipal Stormwater (MS4) Permit
On April 4, USEPA Region 1 and MassDEP jointly issued a much-anticipated final version of the “National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts” (better known as the MS4 Permit), which governs the stormwater discharges of most Massachusetts cities and towns. Permit documents and information on public meetings about the permit to be held in May and June are available here. Some frequently asked questions about this permit are presented here: Read More >
Municipal Drone Regulation: A 500-Foot View of the Unclear Skies Ahead
A drone is a remote-controlled pilotless aircraft that the Federal Aviation Administration (FAA) calls an “unmanned aircraft system” (UAS). This definition includes everything from a hobbyist’s model airplane to the many different types of vertical-rotary aircraft that share some flight capabilities of a helicopter.
The recent rise in popularity of drones has caused municipalities to consider how to minimize the risks associated with drone operation, including public safety risks, risks to personal privacy, and risks to quiet enjoyment of private property. In 2013, for example, the City of Northampton adopted a resolution asserting local jurisdiction, within its City limits, over “the immediate reaches of airspace” up to an altitude of 500 feet. Read More >
Division of Conservation Services Opens Grant Round for Fiscal Year 2017
The Division of Conservation Services offers grant programs to municipalities to assist in the acquisition of conservation and recreation land. The following grant programs are now accepting applications: Read More >
Question: Who wrote “By the rude bridge that arched the flood” and to what was the author referring?
Last issue’s question: What sweet and sticky treat was invented in Union Square, Somerville, in 1917?
Answer: Marshmallow Fluff!
Congratulations again to Christine Lindberg, Chair of the Middleton Board of Selectmen and Chief Aide to the Town Manager of Salisbury for being the first to answer the question correctly. This is the second win in a row for Chris, whose prize last month was apparently an inadvertent promotion to Salisbury Town Manager! If only life were that simple!
A New Standard in Employment Discrimination Cases
In a recent case, Bulwer v. Mount Auburn Hospital, the Massachusetts Supreme Judicial Court altered the burden of proof borne by employees who allege that their employer discriminated against them on the basis of their race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, or ancestry. In the past, without a documented discriminatory epithet, employees faced a steep uphill climb to have employment discrimination claims under state law heard by a jury. The Court in Bulwer eliminated the need for a plaintiff to produce that elusive discriminatory “smoking gun.” This will likely allow for more employment discrimination cases to proceed past the summary judgment stage. Read More >
Wetlands Enforcement: Top Five Tips
Our own Rebekah Lacey recently co-presented a workshop entitled “Effective Wetlands Enforcement” at the Annual Environmental Conference hosted by the Massachusetts Association of Conservation Commissioners (MACC). The workshop was designed to provide conservation commission members and staff with knowledge and tools to help them address violations of the Wetlands Protection Act and local wetland bylaws in a way that achieves compliance and avoids legal pitfalls.
The slides from the presentation can be found here.
Public Records Law: Fees for Copies of Public Records
The 5-cent cup of coffee is sadly a thing of the distant past but, since February 28, 2016, a nickel goes a bit further than before. That’s because the Division of Public Records has adopted emergency regulations governing the fees for copies of public records, 950 CMR 32.06. The revised regulations provide that “the charge for black and white paper copies or printouts of records shall not exceed 5 cents per page, for both single and double-sided black and white copies.” Read More >
Time to Update Your Town’s Special Municipal Employees List
At the Annual Municipal Law Conference, held on March 16, Deirdre Roney, General Counsel of the State Ethics Commission, shared that the Commission’s plans to post a list of all positions with the designation of Special Municipal Employees for each community on its website. The Commission intends to reach out shortly for an updated list of such employees. Read More >
Open Meeting Law Complaints Now Posted
In hopes of increasing transparency, Attorney General Maura Healey announced on March 14, 2016, that Open Meeting Law complaints will be posted on the state’s website (see here). While the complaint itself will not be visible, members of the public will be able file a Public Records Law request with the state or the city or town to obtain a copy.
What sweet and sticky treat was invented in Union Square, Somerville, in 1917?
Last issue’s question: What two sports, played both domestically and internationally, were invented in Massachusetts?
Answer: Volleyball and basketball.
Congratulations to Salisbury Town Manager Christine Lindberg for being the first to contact us with the correct answer.
Adopting a “Chapter Land” Policy – Chapters 61, 61A,
Landowners can reduce property taxes by enrolling some or all of their land as open space for the purposes of timber production, agriculture, or recreation (often referred to as “chapter land”) under M.G.L. c. 61, 61A, or 61B. Enrollment confers upon the municipality a right of first refusal that is triggered if the land is sold for, or converted to, a different (“non-chapter”) use while the land is enrolled in the program or within one year of withdrawal from the program. Read More >
E-Commerce Safe Zones: Sell Your Old Stuff and Get Peace of Mind
Unless you have been residing in a remote wilderness since its advent, you are likely aware that the Internet is a wonderful shopping tool. One slice of the e-commerce pie that has grown in popularity is the modern day answer to the print newspaper’s classified section of yesteryear: Craigslist.com. Craigslist, as well as a growing number of imitators, allows people to post free local advertisements online for goods and services, about which an interested purchaser may then contact the poster. Then, after brief email or telephone haggling over the price, the ad poster and the buyer must meet to seal the deal.
It is this final portion of the process that has engendered the attention of Massachusetts’s municipalities: Read More >
No Public Hearings under the Zoning Act on Election Days
With the presidential primaries right around the corner, we would like to remind everyone that a public hearing under the Zoning Act may not be held on any day on which a state or municipal election, caucus or primary is held in the same city or town.
What two sports, played both domestically and internationally, were invented in Massachusetts?
Last issue’s question: What is the highest point in Massachusetts?
Answer: Mount Greylock in the Town of Adams.
Congratulations to Bill Bowler, Chair of the Hamilton Zoning Board of Appeals, for being the first to contact us with the correct answer.
Municipalities Must Notify the Attorney General of Alternative OML Posting Method
In a recent Open Meeting Law decision (OML 2015-188), the Attorney General’s Office clarified that municipalities must notify the Attorney General in writing if they adopt an alternative notice posting location.
The Open Meeting Law mandates that a public body post notice of every meeting. The notice must be “conspicuously visible at all hours in or on the municipal building in which the clerk’s office is located,” or comply with an alternative method approved by the Attorney General. Read More >
It’s Snow Time! MassDEP Issues New Snow Disposal Guidance
On December 21, 2015, the Massachusetts Department of Environmental Protection released Snow Disposal Guidance No. BWR G2015-01 (see here). The recommended best management practices are similar to, but supersede those in the previous guidance: Municipalities should dispose of snow on pervious upland areas away from sensitive resources (such as drinking water aquifers and wetland areas) or on impervious areas served by well-functioning stormwater management systems. In addition, however, there are two important changes: Read More >
Appeals Court Weighs in Again on DEP Preemption of Conservation Commission Decisions
When a conservation commission issues or denies an order of conditions (or issues an order of resource area delineation) under the Wetlands Protection Act (WPA), the applicant may seek a superseding order from MassDEP. But what if the commission’s decision is also based on a local wetlands bylaw? That depends, as the Massachusetts Appeals Court has explained in a series of decisions, which it added to earlier this month in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester. Read More >
What is the highest point in Massachusetts?
Last issue’s question:
• What is Massachusetts’s official State Explorer Rock?
Answer: Dighton Rock. Dighton Rock is an 11 foot-high “glacial erratic” boulder that once rested on the shores of the Taunton River. Dighton Rock is covered with petroglyphs.
Volume 2, Issue 9 (Dec. 2016)
Volume 2, Issue 8 (Oct. 2016)
Volume 2, Issue 7 (Sept. 2016)
Volume 2, Issue 6 (Aug. 2016)
Volume 2, Issue 5 (June 2016)
Volume 2, Issue 4 (April 2016)
Volume 2, Issue 3 (March 2016)
Volume 2, Issue 2 (Feb. 2016)
Volume 2, Issue 1 (Jan. 2016)
Public Records Law, Exemption (n): Boston Globe v. Department of State Police
As our regular readers may remember, the Supreme Judicial Court recently examined the public safety and privacy exemptions of the Public Records Law, M.G.L. c. 66, §10, in People for the Ethical Treatment of Animals v. Department of Agricultural Resources. In its first consideration of the issue since the PETA case, the Massachusetts Appeals Court applied the SJC’s new guidelines for withholding documents under the public safety exemption to a set of real-world facts in the case of Boston Globe Media Partners v. Department of State Police.
In this case, an appeals court panel concluded the appellant should be given the opportunity to present evidence to meet the SJC’s new legal framework issued after the commencement of the Boston Globe’s appeal. Read More >
The Truth, and Nothing But the Truth
It is well known that an employer cannot subject a potential employee to a lie detector test in Massachusetts. But can an employer rely upon the results of a lie detector test that someone else independently administered? The Appeals Court recently answered that question “yes.”
In the case before the Court, the plaintiff applied for a job as a police officer with the City of Worcester. At about the same time, he applied for a job with the Connecticut State Police. He voluntarily submitted to a lie detector test for Connecticut. The Worcester Police obtained a copy of the results and decided not to offer him employment, in part based on the polygraph. Read More >
Failing Science: No Marijuana Field Sobriety Test
Roadside field sobriety tests are scientifically based assessment tools that are intended to help police officers determine if a motor vehicle operator has a blood alcohol content above the legal limit of 0.08%. However, the recent Supreme Judicial Court case of Commonwealth v. Gerhardt makes clear that there is no such scientific consensus on the efficacy of alcohol-focused field sobriety tests for use by police in evaluating a subject for marijuana intoxication and that those tests may not be invoked in court to support a marijuana related OUI charge.
A State Trooper pulled over the defendant Thomas J. Gerhardt's car shortly after midnight on February 13, 2013 while he was driving with two passengers and without the rear lights on. Read More >
Question: Gerrymandering, the process of redrawing electoral districts in order to establish a political advantage for a particular party originated in Massachusetts. Who can tell us the origin of the term “gerrymander”?
Last issue’s question: In 2016, Steve Connolly’s pumpkin smashed the record for the All-New England Giant Pumpkin Weigh-Off, topping the scales at this weight (closest wins)!
Answer: Mr. Connolly's Topsfield Fair-winning pumpkin tipped the scales at an astounding 2,075.5 pounds!
Huge congratulations to John K. Westerling, Hopkinton's Director of Public Works, for being the first to submit the correct answer.
Attorney General Issues Revised Open Meeting Law Regulations
On October 6, 2017, the Attorney General’s revised Open Meeting Law regulations went into effect. The new regulations purport to “streamline, modernize, and clarify Open Meeting Law (OML) compliance while simultaneously sustaining the law’s spirit of transparency.” See the Attorney General’s Notice. Notably, the revised regulations change posting requirements for those communities that have adopted the website as the official notice location, incorporate new standards for reviewing and approving minutes, and amend the required educational certifications. For an overview of the major regulatory amendments and how the changes may impact municipal public bodies, please review the Miyares and Harrington LLP Client Advisory on the topic. Read More >
MS4 Stormwater Permit Litigation: Environmental Groups Take Action
As you know from past editions of this newsletter, USEPA Region 1 and MassDEP issued a revised Municipal Separate Storm Sewer (MS4) permit in 2016. Municipalities and environmental groups both appealed the permit, and the agencies postponed the permit’s effective date to July 1, 2018. Environmental advocacy organizations were unhappy about the postponement and are taking their concerns to court.
Specifically, on September 22, a group of Massachusetts watershed associations filed suit in federal court against EPA to challenge EPA’s decision to delay the effective date of the MS4 permit. The Complaint has been served on the federal government; presumably the plaintiffs will seek to move the case forward quickly, since it will become moot when the new permit goes into effect on July 1, 2018. Read More >
Danger: Strict Adherence to the Scope of an Administrative Warrant Required
A recent Massachusetts Appeals Court decision, Commonwealth v. O’Donnell, provided important guidance regarding the scope of administrative warrants in the context of compliance with local bylaws and the Massachusetts Sanitary Code. In O'Donnell, the Appeals Court reversed the lower court’s decision and ordered the suppression of evidence recovered pursuant to an administrative warrant because it exceeded the permissible bounds of that warrant. Read More >
The Long Arm of Article 97
In 1972, Article 97 of the Massachusetts Constitution created a constitutionally enforceable right to a clean environment as follows:
The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. Read More >
Question: In 2016, Steve Connolly’s pumpkin smashed the record for the All-New England Giant Pumpkin Weigh-Off, topping the scales at this weight (closest wins)!
Last issue’s question: Who was the first woman to serve as a Federal District Judge and what Massachusetts library holds her donated papers?
Answer: Rya W. Zobel, whom President Jimmy Carter nominated to a new seat on the United States District Court for the District of Massachusetts by in 1979, donated her judicial papers to the Social Law Library.
Congratulations are once again in order to Hamilton Zoning Board Chair William F. Bowler, Esq. for being the first (and only) person to provide the correct answer to this tricky multipart question.
Do you have an employee who has been prescribed medical marijuana? Do you drug test your employees? Then pay attention to the Supreme Judicial Court’s decision of July 17, 2017, in Barbuto v. Advantage Sales and Marketing, LLC. The employer had a policy requiring all of its employees to pass a drug test when it hired the plaintiff for an entry-level position. Ms. Barbuto informed the company that she used medically-prescribed marijuana for Crohn’s Disease. While she did not use it before or at work, she was fired when her drug test came back positive for marijuana.
Among her claims, Ms. Barbuto sued for handicap discrimination under M.G.L. c.151B, §4 and violation of public policy. The trial court dismissed these claims by granting the defendant’s motion to dismiss. The Supreme Judicial Court reversed dismissal of the portion of her claims based on Chapter 151B. Read More >
When a Private Way Stays a Private Way
Many municipalities have roads that have never been accepted as public ways under M.G.L. c.82, but nevertheless have many attributes of a public way: the general public uses them; the municipality picks up school children and trash on the road; the municipality plows and cleans them; and the municipality may even be repair them. Two recent Appeals Court cases reached different conclusions when determining whether such private ways became public ways by prescription. Read More >
6th Circuit Ruling Affects Local Government’s Ability to Regulate Cable Companies
On July 12, 2017, the U.S. District Court of Appeals for the Sixth Circuit vacated certain portions of rules issued by the Federal Communications Commission (FCC) that limited the ability of local governments to impose certain non-cash exactions on cable companies and to regulate non-cable services provided over “mixed-use” cable systems. Read More >
State and Federal Updates on Local Enforcement of Immigration Laws
Since our May article on the President’s Executive Order penalizing “sanctuary cities,” there have been a number of developments on the federal level and within Massachusetts regarding local enforcement of federal immigration laws. Read More >
Rapid Fire Updates
Question: Who was the first woman to serve as a Federal district judge and what Massachusetts library holds her donated papers?
Last issue’s question: How much was John Adams paid to defend the British soldiers accused of perpetrating the 1770 Boston Massacre?
Answer: John Adams received the modest retainer of 18 Guineas, which would be the equivalent of approximately $3,450 in today’s dollars.
In an e-Newsletter first, we did not receive a correct answer to the prior trivia question and we would like to extend plaudits to all who resisted resorting to Googling! One popular, but ultimately incorrect, submission was that John Adams represented the British soldiers pro bono.
Let’s Get Down to Grass Tax: Changes to the Recreational Marijuana Law Are Approved
Last year’s statewide Referendum vote on Question 4 legalized the recreational use and personal cultivation of marijuana for adults 21 years or older. The Question 4 vote established a three-member Cannabis Control Commission (CCC), which was charged with drafting the regulations that would be applicable to the recreational marijuana industry in Massachusetts. The CCC was given plenary powers over the licensure of marijuana establishments, which includes facilities that cultivate, process, distribute, and sell the finished marijuana products at retail stores. Referendum voters also approved a 12% tax on the sale of recreational marijuana, which was comprised of the 6.25% sales tax, a 3.75% state excise tax, and a local-option sales tax of no more than 2%. Read More >
U.S. EPA Postpones Effective Date of Massachusetts Municipal Stormwater General Permit
On June 29, the Environmental Protection Agency’s Region 1 office announced that the effective date of EPA’s General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems (“MS4s”) in Massachusetts would be postponed from July 1, 2017 to July 1, 2018. The permit is currently under appeal in the D.C. Circuit by Massachusetts municipalities and others. The municipalities requested that EPA postpone the permit’s effective date so that they would not have to expend resources to comply with requirements that may change due to the appeal. Read More >
Conservation Commissions Retain Jurisdiction Under Local Ordinances and Bylaws in the Face of a DEP Superseding Order of Conditions under the WPA
The Massachusetts Appeals Court recently upheld an order of conditions (OOC) issued by the Attleboro Conservation Commission (Commission) for the construction of a subdivision roadway and utilities, which the applicant appealed because it included a condition to which the applicant objected. The July 14 decision in Cave Corporation v. Conservation Commission of Attleboro affirms local authority to require consideration of cumulative and indirect effects under a home rule wetlands ordinance or bylaw. It also affirms a conservation commission’s power (under an appropriate bylaw or ordinance) to impose conditions on an entire parcel proposed for subdivision. Miyares and Harrington LLP argued this case before the Appeals Court and is pleased to have assisted the City of Attleboro in securing this victory. Read More >
A New Test for Regulatory Takings of Merged Lots
In a recent regulatory takings decision, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), the U.S. Supreme Court reaffirmed the commonly applied rule that undersized lots held in common ownership are deemed to have “merged” for the purpose of applying local zoning requirements.
The Murrs owned two adjacent lots along the St. Croix River—lot E and lot F—which, due to topography, had less than an acre each of land suitable for development. Their parents had purchased the two lots in the 1960s and maintained them separately before conveying lot F to the Murrs in 1994 and lot E in 1995. Read More >
Question: How much was John Adams paid to defend the British soldiers accused of perpetrating the 1770 Boston Massacre?
Last issue’s question: Credited with the birth of the industrial revolution in the U.S.A., what city in Massachusetts was the first planned industrial city?
Answer: Lowell, Massachusetts. Francis Cabot Lowell was the driving force behind the Boston Associates and the namesake of the country’s first planned industrial city.
Congratulations to Blake Martin, Vice President, Environmental Resources Manager at Weston & Sampson for wining the race to provide a correct answer!
Mass Supreme Judicial Court Shines New Light on Public Records Law’s Privacy and Security Exemptions.
In People for the Ethical Treatment of Animals v. Department of Agricultural Resources, 477 Mass. 280 (2017), the Massachusetts Supreme Judicial Court vacated a lower court’s determination that the identity, business address, and telephone numbers of people who transported nonhuman primates in Massachusetts are protected from disclosure by the public safety and privacy exemptions to the Public Records Law. The Court established new guidelines for interpreting these exemptions, and then remanded the case for further consideration in accordance with these guidelines. The decision thus represents the first time that the public safety exemption has received judicial consideration. Read More >
D.C. Circuit Court of Appeals: The FAA’s Drone Registration Rule Doesn’t Fly
In our April 2016 newsletter, we previewed the Federal Aviation Administration’s Small Unmanned Aerial System Rule (the “Registration Rule”) governing non-commercial drones. The Registration Rule was finalized on August 29, 2016, and required non-commercial drone operators to register their drones (called “unmanned aerial systems”) if they weigh more than .55 pounds and less than 55 pounds.
Almost immediately the Registration Rule was the subject of a legal challenge. In the recent case of Taylor v. Huerta, the Registration Rule was invalidated by the D.C. Circuit Court of Appeals. Read More >
The State Has Spoken
Is your community interested in prohibiting needle access programs? Does it already have a prohibition? If so, then the Supreme Judicial Court’s decision in AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, 477 Mass.296 (June 14, 2017) will be important to you. You may read the decision here.
In the Barnstable case, the Town claimed that two state statutes required that the AIDS Support Group obtain Town approval before it could distribute free clean hypodermic needles out of its Hyannis site. The Group’s purpose was to prevent the spread of diseases such as HIV and Hepatitis C. However, the Town found improperly discarded needles at public sites, determined that some of them came from the Group’s distribution program, and ordered the Group to cease and desist distributing needles in Hyannis. Read More >
Question: Credited with the birth of the industrial revolution in the U.S.A., what city in Massachusetts was the first planned industrial city?
Last issue’s question: What Massachusetts congresswoman cosponsored a 1938 bill intended to allow the admission of 20,000 Jewish children fleeing Nazi persecution?
Answer: Edith Nourse Rogers (R), in addition to being the first woman elected to Congress from Massachusetts, cosponsored the bipartisan bill to increase the quota for Jewish children coming into the United States.
Congratulations to Hamilton Zoning Board Chair William F. Bowler, Esq. for being the first to provide the correct answer to this very difficult question. Bill has been our winner so many times that we think we may have to start of Hall of Fame just for him!
Federal Court Blocks “Sanctuary Cities” Executive Order Provision; Attorney General Issues Narrow Interpretation of Contested Provision.
Many Massachusetts municipalities have recently taken notice of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” issued by President Trump on January 25, 2017, which addressed the enforcement of federal immigration laws. Section 9(a) of that Executive Order provides, in part:
A number of Massachusetts municipalities have declared themselves to be “sanctuary” cities or towns and thus became concerned about their federal funding after the Executive Order was issued . Read More >
Appeals Court Nullifies Wetlands Enforcement Order and Fines
A recent Appeals Court decision, Dubee v. Conservation Commission of Bridgewater, 91 Mass. App. Ct. 1116 (2017), provides a number of important reminders about the proper procedure for issuing wetlands enforcement orders and fines for violations of those orders.
The Whispering Wood subdivision was constructed in 2005. The developer, RETEP Realty Trust, did not seek authorization from the Conservation Commission. However, the Commission did not take any action until 2012, when it made a determination that the Trust had constructed a stormwater drainage system within 100 feet of the pond without filing a Notice of Intent (NOI) or Request for Determination of Applicability (RDA), as required by the Wetlands Protection Act, M.G.L. c.131, §40. Read More >
A Governor Baker Executive Order Encourages Municipalities to Plan for Climate Change Impacts
On September 16, 2016, Governor Charlie Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth. As its name suggests, the Order sets forth climate change obligations of agencies of the Commonwealth and every City and Town. Unsurprisingly, the Order references the Global Warming Solutions Act and its associated greenhouse gas emissions reduction requirements as well as indicating that an increase in extreme weather events is cause for increased statewide preparedness. Read More >
Consolidation: Division of Professional Licensure and the Department of Public Safety Merge
On March 27, 2017, the Division of Professional Licensure (DPL) and the Department of Public Safety (DPS) were consolidated to create a new Office of Public Safety and Inspections within the DPL. The DPL is housed under the Office of Consumer Affairs and Business regulation. Read More >
Question: What Massachusetts congresswoman cosponsored a 1938 bill intended to allow the admission of 20,000 Jewish children fleeing Nazi persecution?
Last issue’s question: What Town can lay claim to having the oldest Town Hall in continuous use for Town Meetings in Massachusetts (built in 1743)?
Answer: The Town of Pelham, Massachusetts’ town hall sits on a hill at the corner of Daniel Shays Highway and Amherst Road, and has been the site of town meetings for 273 years.
Congratulations to Laura A. Gemme, Town Clerk for the Town of Reading, for being the first to respond with the correct answer!
Gain a Foothold on Legal Standing
Standing can be defined as the legal capacity of a party to bring suit in court. Standing serves a gatekeeping function by denying access to the judicial system to persons who lack a sufficient interest in a legal dispute.
A February, 2017 Massachusetts Appeals Court decision, Butler v. Town of Framingham, provides an opportunity to clarify the legal concept of “standing.” In Butler, an elected Town Meeting member brought a complaint alleging that the Town was unfairly burdening residential property owners by using a different valuation formula than what it used for commercial properties. Read More >
La Salette Shrine: SJC Rules on Scope of Religious Property Tax Exemption
The Supreme Judicial Court issued a decision on March 22, 2017, regarding the scope of the real property tax exemption under M.G.L. c.59, §5, Clause Eleventh, the exemption for “houses of religious worship.” The Court concluded that real property is exempt from taxation under Clause Eleventh where the dominant purpose of the property is religious worship or instruction, or the use is ancillary to religious worship.
The National Shrine of Our Lady of La Salette is a Massachusetts not-for-profit corporation with purposes including: promoting devotion to Our Lady of La Salette through pilgrimages and through the administration of the sacraments of the church... Read More >
The Oxford Comma Strikes Again!
The First Circuit Court of Appeals issued a ruling on March 13, 2017 that is sure to spark debate among grammar nerds and finicky lawyers everywhere. Our clients often marvel at the willingness of lawyers to argue over the presence or absence of a comma, and nowhere is this argument more intense than in the use of the “serial comma,” more commonly known as the “Oxford comma.” The Oxford comma is the final comma in a list of things and, depending on your point of view, it is either a grammatical essential or totally optional as long as the meaning is clear. Read More >
Question: What Town can lay claim to having the oldest Town Hall in continuous use for Town Meetings in Massachusetts (built in 1743)?
Last issue’s question: What Massachusetts Town has the lowest zip code?
Answer: Agawam's 01001 is the lowest zip code in Massachusetts.
We had many correct answers this month! However, congratulations are in order to Maria J. Glynn, Executive Assistant for the Town Manager's Office of the Town of Hopkinton, for winning the race to answer first.
Get with Times, Post Online: New Law Requires Newspapers to Publish
Public Notices Online.
A new state law, effective January 21, 2017, requires that newspapers publish legal notices online in addition to in the newspaper’s print edition. Although responsibility for compliance with the law falls primarily on newspapers, public entities have a role to play as well.
Chapter 174 of the Acts of 2016, An Act Relative to Electronic Publication of Certain Legal Notices, added a new Section 13 to Chapter 4 of the Massachusetts General Laws. The new law states that any notice legally required to be published in a newspaper must also appear on the newspaper’s website and “on a statewide website that may be maintained as a repository for such notices.” Read More >
Hold Your (High) Horses: Recreational Marijuana Establishments Delayed
As we wrote previously in this space, Massachusetts voters, by a final tally of 53.7 percent in favor with 46.3 percent opposed, approved Question 4 on the November 8, 2016 ballot and legalized, with certain restrictions, the recreational use, possession, and cultivation of marijuana for adults 21 years or older. The passage of Question 4 imposed a timeline on Treasurer Deborah B. Goldberg to create the Cannabis Control Commission (CCC), a new regulatory body charged with issuing licenses to marijuana retailers. Read More >
All Signs Point to: Revise Your Sign Bylaw!
As two recent federal court cases demonstrate, the Supreme Court’s decision in Reed v. Town of Gilbert, Arizona, is percolating through the lower courts as more challenges to municipal sign regulations arise. We review two recent decisions here: The first comes from the D.C. Circuit, and demonstrates that Justice Alito’s concurrence in the Reed case was the utilitarian lifeline local regulators needed to interpret Justice Thomas’s majority opinion. The second case, from the U.S. District Court for New Hampshire, appeared to pit a local church’s First Amendment rights of free speech and the free exercise of religion against a Town’s power to regulate signage, but it came down to a much less dramatic application of the law. Read More >
Secretary of the Commonwealth Updates Public Records Guide
William Galvin, Secretary of the Commonwealth, updated the publication, “A Guide to the Massachusetts Public Records Law” (the “Guide”) in January 2017 to account for the recent amendments to the Public Records Law. The Guide, available here: Read More >
Question: What Massachusetts Town has the lowest zip code?
Last issue’s question: What was the first painting purchased by the Norman Rockwell Museum in Stockbridge and who is pictured in it?
Answer: “The Problem We All Live With,” which pictures Ruby Bridges’ history-changing walk integrating the William Frantz Public School in New Orleans on November 14, 1960.
We had many correct answers this month! However, congratulations are in order to Meghan Jop, Assistant Executive Director for the Town of Wellesley, for being the first to contact us with the correct answer.
Volume 3, Issue 8 (Nov. 2017)
Volume 3, Issue 7 (Oct. 2017)
Volume 3, Issue 6 (Sept. 2017)
Volume 3, Issue 5 (Aug. 2017)
Volume 3, Issue 4 (July 2017)
Volume 3, Issue 3 (May 2017)
Volume 3, Issue 2 (Spring 2017)
Volume 3, Issue 1 (Feb. 2017)