Welcome to the Miyares and Harrington, LLP e-Newsletter! It's a New Year and a whole new look for our website and the e-Newsletter. In this issue we'll explore topics ranging from the Second Amendment to the award of attorney's fees for advancing a frivolous claim in bad faith. We aim to provide targeted information to our readership and we hope that the new format makes the reading experience even more enjoyable.
We are very pleased to announce that this year marks the 30th anniversary of our firm and we are thrilled to have been your local options at work for three decades and counting!
This edition includes the following topics:
When is a Restaurant
Not a Restaurant?
Under the applicable Zoning Bylaw, this type of establishment was being regulated as a “retail store,” rather than a “restaurant.” The Planning Board found that the Dunkin’ Donuts was a permitted use as a retail store. The abutter to the property, Coco Bella, Inc., appealed to the Town’s Zoning Board of Appeals, which affirmed the Planning Board’s approval of the site plan application. Coco Bella, Inc. then brought suit in the Land Court, which ruled that Dunkin’ Donuts was a restaurant for purposes of the Zoning Bylaw, but not the type of restaurant permitted within the rural business district because not all customers were seated.
On appeal, the Massachusetts Appeals Court wrote: “A local board’s reasonable interpretation of a local by-law is given deference due to the ‘board’s home grown knowledge about the history and purpose of its town’s zoning by-law.” The Zoning Board of Appeals’ decision to affirm the Planning Board’s approval of the site plan application was upheld because the Appeals Court deferred to what it deemed to be a reasonable interpretation of the local Zoning Bylaw.
Bad Faith Claims Will
Judge Speicher of the Land Court recently dropped the hammer (legally speaking) on the Town of Sudbury’s officials and attorneys for pursuing enforcement of deed restrictions that it knew did not exist anywhere in writing. Sudbury filed the suit in order to block a 40B affordable housing project, a motive that played a strong role in Judge Speicher’s award of attorney’s fees to the developer of the property. The underlying case ended with a grant of summary judgment in favor of the defendant developers, and the attorneys’ fee claim was advanced in a collateral proceeding under M.G.L. c.231, §6F.
The Town and its attorneys had argued that the property was subject to a restriction limiting use of an access road to a single house lot. In the alternative, the Town requested rescission of the deed from the Town to the developer on the grounds that the deed did not limit the scope of the conveyance in accordance with the Town Meeting’s authorizing vote. Judge Speicher found that there was no such restriction because there was no explicit writing or combination of writings that could conceivably be read to impose the restriction.
This ruling stands out because the standard of proof required for a grant of a motion for award of attorney’s fees is high: The moving party must demonstrate that the other side acted without good faith and advanced claims that are wholly insubstantial and frivolous. Here, Judge Speicher found that the Town filed suit with full knowledge that it had no legal or evidentiary support for its claims and that the sole purpose of filing suit was to block the proposed 40B development, which meant that the claims were advanced in bad faith. The Town was forced to pay nearly $75,000 in legal bills because it advanced claims that could not pass the laugh test. Let this ruling be a cautionary tale: be sure you have at least a colorable legal theory supported by actual evidence before filing suit.
Licensing Policies Upheld
Under state law, a license to carry (“LTC”) is required to possess a firearm in public. M.G.L. c.269, §10(a). Applications for an LTC are made to a licensing authority, which is usually the applicant’s local police chief. M.G.L. c.140, §§121, 131(d). State law specifies the circumstances under which a licensing authority may grant or revoke licenses, and permits licensing authorities to impose restrictions they deem proper. A licensing authority “may issue” an LTC if the applicant either has a “good reason to fear injury” or “for any other reason…subject to the restrictions expressed or authorized under this section.”
Pursuant to this broad statutory authority to impose restrictions, many licensing authorities have adopted policies that restrict LTCs based on the “proper purpose” demonstrated by the applicant. In order to obtain an unrestricted LTC, the City of Boston and the Town of Brookline each require an applicant to demonstrate good reason to fear injury to their person or property. If the applicant cannot demonstrate a particular reason supporting such fear that is distinguishable from the public at large, a restricted LTC is typically issued that limits the purposes for which the applicant may carry a firearm in public.
The plaintiffs challenged this practice in Gould, arguing that the statutory scheme and the local policies violate the Second Amendment and the Equal Protection Clause of the U.S. constitution by (1) permitting the imposition of restrictions and (2) allowing the issuance of permits to turn on considerations the applicants consider to be arbitrary, such as where the applicant lives and works. In short, the plaintiffs argued that the Second Amendment, as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), secures the right of law-abiding citizens to carry handguns in public for the purpose of self-defense.
Assuming only for the sake of analysis that such a right exists, the Court determined that a restriction limiting the right is valid if the government can show a “substantial relationship between the restriction and an important governmental objective.” Because the government has a substantial interest in promoting public safety and preventing crime, and the licensing scheme serves that purpose by limiting possession of handguns to individuals who can demonstrate a special need for self-defense, the Court concluded that the licensing statutes and policies are constitutional.
Sanctuary Cities and
the DOJ – Updates
“Sanctuary Cities” Provision of Executive Order 13768
The County of Santa Clara and the City and County of San Francisco brought suit in the U.S. District Court for the Northern District of California to challenge Section 9(a) of President Trump’s January 2017 Executive Order 13768, which prohibits “sanctuary jurisdictions” from receiving federal grants. In April 2017, U.S. District Court Judge William Orrick issued a preliminary injunction blocking implementation of Section 9(a). On November 20, 2017, Judge Orrick granted partial summary judgment to the Counties and permanently enjoined the federal government from enforcing Section 9(a).
The cities of Chelsea and Lawrence, Massachusetts, brought a similar lawsuit, which the U.S. District Court for the District of Massachusetts stayed indefinitely (pending the outcome of the California litigation) and then administratively closed.
Byrne Justice Assistance Grant (“JAG”) Program: Conditions on FY2017 Funding
Because of the two nationwide injunctions, compliance with 8 U.S.C. §1373 is currently the sole immigration-related grant requirement that DOJ is allowed to impose. However, those injunctions could be overturned in the pending circuit court appeals. In addition, the question of which local policies violate that statutory provision is the subject of vigorous debate (and litigation). Watch this space for future updates.
Question: In what Massachusetts city is it illegal to buy, sell, or possess a squirt gun?
Last issue's 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"?
Answer: Gerrymandering is named for Governor Elbridge Gerry of Massachusetts elected in 1810. Gerry was renowned for his skill in drawing election districts for partisan advantage and one such district vaguely resembled a salamander, hence the term Gerrymander. Wellesley Selectman Jack Morgan was the first to provide the correct answer, congratulations!
Local options at work.
— — —
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.