Wednesday Weekly Conference Call – Wednesday, August 19th, from 2:00 PM to 3:00 PM. This week’s Topic: Protecting Your Community in Bankruptcy Matters During the Pandemic! In keeping with our past practice, we also include a Question & Answer component. You raise your current hot issue and receive helpful feedback from your colleagues (this is a remote potpourri event much like we used to do from time to time when we met in person). Your suggestions…… Please respond with ideas, volunteers can attend the calls for free! (well, so can everyone else, but it sounds good). If you have particular info on this topic, please offer to be a discussion leader, contact Jim Lampke. Click on “Read More” for Zoom Log-In information and for details of this week’s topic and of upcoming schedule:
Keywords: Real Property, Conservation restriction. Damages. Practice, Civil, Summary judgment, Damages
In its decision in this case, the Appeals Court addresses the scope of enforcement options available to the holder of a conservation restriction, in particular whether injunctive relief is the holder’s sole remedy for violations of the restriction’s terms. The trial court had ruled that Section 32 of the state’s Conservation Restriction Act (G.L. c. 184, Sections 31-333) does not authorize enforcement by way of the payment of damages or attorneys fees. The Appeals Court concluded otherwise: “The plain language of § 32 provides that “[t]he restriction may be enforced by injunction or other proceeding, and shall entitle representatives of the holder to enter the land in a reasonable manner and at reasonable times to assure compliance. If the court in any judicial enforcement proceeding . . . finds there has been a violation of the restriction . . . then, in addition to any other relief ordered, the petitioner bringing the action or proceeding may be awarded reasonable attorneys’ fees and costs incurred in the action.” (Emphasis added.) . . . Thus, § 32 by its own terms does not limit enforcement measures to injunctive relief alone.” Click here for the full text of the Appeal Court’s decision.
Keywords: Zoning, Nonconforming use or structure, Special permit, Variance, Height restriction, Accessory building or use. Practice, Civil, Zoning appeal. Municipal Corporations, By-laws and ordinances
There is probably no more abstruse area of Massachusetts zoning law than nonconforming uses, structures, and lots. The infamous density of G.L. c. 40A, Section 6, that deals with this topic is often discussed in terms of “grandfathering”. In this Appeals Court decision Justice Jim Milkey lays out a long-overdue clarification of Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014). Justice Milkey disposes the case at hand with: “We reverse and take this opportunity to clarify the meaning of Deadrick.” And then then he proceeds to do with the piercing clarity reminiscent of decisions of Justice Rudolph Kass. But what may turn out to be the most memorable part of the decision appears in Footnote 11:
 Providing such protection commonly is known — in the case law and otherwise — as “grandfathering.” We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase “grandfather clause” originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster’s Third New International Dictionary 987 (2002) (definition of “grandfather clause”); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).
This is a “must read” decision. Click here for the full text.
The Administration, Senate and House agreed to hold FY21 URRA and Ch. 70 education aid harmless in light of the pandemic, agreeing to fund such accounts by at least the level allocated for FY20. Ch.70 education aid even received a slight increase of a total of $107mm. Attached hereto is the DLS spreadsheet that sets forth FY21 local aid levels by municipality. Click here for PDF of the local aid listing.
On a related note, the Legislature agreed to hold formal sessions through the balance of the calendar year irrespective of the traditional deadline of concluding formal sessions on July 31 of the second year of their bi-annual session (which would be today). This essentially means that the legislature can act on key policy matters after today, including pending FY21 capital spending plans, Housing Choice legislation, and so-called police reform proposals, beyond today’s customary deadline to conclude formal business and essentially “kill” any bills not enacted by that time. – [Matt Feher, Chair, MMLA Legislative Committee]
On June 22, 2020, members were emailed via Survey Monkey their membership applications for the MMLA membership year that begins July 1, 2020 and ends June 30, 2021. This year we are again asking members to apply electronically using Survey Monkey. The electronic application is easy to complete and an efficient way for us to update our membership records. (See Application Links)
The email provided the information you need to apply through Survey Monkey. When you complete the application, you will receive a confirmation email from Survey Monkey with a link to your application. Please print the application and mail it with your dues payment to the MMLA office:
Massachusetts Municipal Lawyers Association, Inc.
115 North Street, Suite 3
Hingham, MA 02043
If you did not receive the email or have any difficulty applying electronically using Survey Monkey, please contact Kathleen Colleary at firstname.lastname@example.org for assistance.
Keywords: Building Permit. Municipal Corporations, By-laws and ordinances, Building inspector, Enforcement of building code. State Building Code, Criminal penalty. Zoning, Enforcement, Criminal penalty. Notice. Moot Question. Practice, Civil, Summary judgment, Moot case, Counterclaim and cross-claim
[Excerpt] – “The plaintiffs, entities owned or controlled by Michael J. Maroney (collectively, Maroney or plaintiffs), were the developers of a fifty-lot residential subdivision (property) in the city of Haverhill (city). When Maroney was part way through the subdivision build out, with many of the homes already completed, city officials stopped issuing the necessary permits for the remaining subdivision lots. The city contended that Maroney had to complete a water pressure booster station before building on the lots in question, and that he had not done so. Maroney then brought this suit in Superior Court, seeking, among other things, relief in the nature of mandamus to compel the appropriate officials to issue the permits. Maroney also began building on several of the lots for which he did not have permits. The city building inspector issued cease and desist orders, and counterclaimed in this action for civil penalties due to the unauthorized building.
A Superior Court judge entered summary judgment for the city on Maroney’s affirmative claims, and also granted the building inspector summary judgment on his counterclaims. At a subsequent damages hearing before a different judge (damages judge), the building inspector sought fines of $1,300 per day for each unauthorized build, but notably, only for time periods between when Maroney commenced construction and the dates the building inspector sent the cease and desist orders. The damages judge entered judgment on the city’s counterclaims in the amount of $970,206.82, inclusive of prejudgment interest.
Maroney appeals. We dismiss the appeal from the portion of the judgment dismissing Maroney’s claims, as the claims he now presses have become moot because he no longer owns the property, having lost it to foreclosure. We reverse the judgment on the counterclaims, however, because the building inspector did not follow the required procedures to impose such fines.”
Click here for the full text of the Appeals Court’s decision.
Keywords: Practice, Civil, Summary judgment. Contract, Settlement agreement, Performance and breach, Construction of contract. Judgment, Implementing settlement agreement. Judicial Estoppel
The Appeals Court affirmed a Superior Court judgment which was in favor of the Town on its claim that the Defendant former employee repudiated a settlement agreement. The Court noted ” We conclude that Dalrymple’s delay in signing the settlement for a period of nearly one year after the agreement was first made, while litigating claims that were barred by the release, constituted a repudiation of the agreement as a matter of law. Accordingly we affirm the entry of judgment in favor of the town.” [Excerpt] – “The plaintiff, Nancy Dalrymple, appeals from a summary judgment entered in favor of the town of Winthrop (town), dismissing her complaint for breach of contract and unjust enrichment. . . . On appeal, she contends that the town committed a breach of a settlement in a Federal court action. The town maintains that Dalrymple repudiated the settlement agreement and pursued claims barred by its terms. We conclude that Dalrymple’s delay in signing the settlement for a period of nearly one year after the agreement was first made, while litigating claims that were barred by the release, constituted a repudiation of the agreement as a matter of law. Accordingly we affirm the entry of judgment in favor of the town.”
Kudos to MMLA Michele E. Randazzo who appeared on behalf of the Town of Winthrop. Click here for the full text of the Appeals Court’s decision.
Keywords: Firearms. Constitutional Law, Right to bear arms. Practice, Civil, Judicial review of license to carry firearms, Action in nature of certiorari, Judgment on the pleadings. District Court, Jurisdiction
[Excerpt] – Until paragraph (1 1/2) was added to G. L. c. 140, § 129B, effective January 1, 2015, a licensing authority could only approve an application for a firearm identification (FID) card or deny it on the basis that an applicant was a “prohibited person” under the statute. Paragraph (1 1/2), which is at issue in this case, addresses the possibility that a licensing authority might conclude that someone who is not a prohibited person is “unsuitable” to possess an FID card. In that event, paragraph (1 1/2) does not empower the licensing authority to deny the FID card. Rather, it provides that “the licensing authority may file a petition” “in the [D]istrict [C]ourt of jurisdiction” “to request that an applicant be denied the issuance or renewal of [an FID] card.” The statute reserves to the District Court the decision whether the licensing authority has met its burden of proving by a preponderance of the evidence that the applicant is unsuitable. G. L. c. 140, § 129B (1 1/2).
Click here for the full text of the Appeals Court’s decision.