New England Survey Systems, Inc. v. Department of Industrial Accidents (Lawyers Weekly No. 11-076-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-331 Appeals Court NEW ENGLAND SURVEY SYSTEMS, INC. vs. DEPARTMENT OF INDUSTRIAL ACCIDENTS. No. 15-P-331. Suffolk. December 8, 2015. – June 30, 2016. Present: Grainger, Hanlon, & Agnes, JJ. Workers’ Compensation Act, Failure to obtain insurance, Cancellation of insurance. Department of Industrial Accidents. Statute, Construction. Due Process of Law, Administrative hearing. Administrative Law, Judicial review. Civil action commenced in the Superior Court Department on April 26, 2013. The case was heard by Frances A. McIntyre, J., on a motion for judgment on the pleadings. Timothy K. Cutler for the plaintiff. Douglas S. Martland, Assistant Attorney General, for Department of Industrial Accidents. AGNES, J. The Workers’ Compensation Act, G. L. c. 152 (act), provides that whenever the Commissioner of the Department of Industrial Accidents (the department) determines that an employer has not provided the insurance required by law,[1] “a stop work order shall be served on said employer, requiring the cessation of all business operations at the place of employment or job site.” G. L. c. 152, § 25C(1), as amended through St. 1989, c. 341, § 82. The stop work order takes effect upon service on the employer, and remains in effect until the employer satisfies the commissioner that it has obtained the required insurance and paid the $ 100 per day civil penalty for each day it was in violation of the law, beginning with the date of service of the order. § 25C(1) of the act. Section 25C also provides for additional civil and criminal penalties against employers who do not obtain the insurance required by law. See G. L. c. 152, § 25C(5)-(6), (9)-(11). Subsection (10) of § 25C sets forth one of the additional civil penalties that an employer who fails to obtain the insurance required by the act may face. It reads as follows: “(10) In addition to being subject to the civil penalties herein provided, an employer who fails to provide for insurance or self insurance as required by this chapter or knowingly misclassifies employees, to avoid higher premium rates, will be immediately debarred from bidding or participating in any state or municipal funded contracts for a period of three years and shall when applicable be subject to penalties provided for in section fourteen” (emphasis supplied).[2] The issue before us, which is one of first impression, is […]
Plymouth Public Schools v. Education Association of Plymouth & Carver, et al. (Lawyers Weekly No. 11-077-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-906 Appeals Court PLYMOUTH PUBLIC SCHOOLS vs. EDUCATION ASSOCIATION OF PLYMOUTH & CARVER & another.[1] No. 15-P-906. Plymouth. April 11, 2016. – June 30, 2016. Present: Cypher, Katzmann, & Massing, JJ. School and School Committee, Professional teacher status, Maternity leave, Arbitration, Termination of employment. Arbitration, Arbitrable question, School committee. Public Employment, Paid leave, Termination. Family & Medical Leave Act. Civil action commenced in the Superior Court Department on February 18, 2014. The case was heard by Frank M. Gaziano, J., on motions for summary judgment. Matthew D. Jones (Ashley F. Call with him) for the defendants. Michael J. Long for the plaintiff. MASSING, J. Defendant Kristen Bilbo taught in the plaintiff Plymouth Public Schools (district) over the course of five consecutive school years. She took maternity leave during two of them. The district tendered a notice of nonrenewal at the end of the fifth year. Bilbo asserts that her service, interrupted only by her leave permitted under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (FMLA), entitles her to professional teacher status,[2] giving her rights including arbitration of her dismissal.[3] The district contends that Bilbo is not entitled professional teacher status or arbitration because she did not serve three consecutive full years. We conclude that whether Bilbo has attained professional teacher status is for the arbitrator to decide. Background.[4] Bilbo worked full-time as a special education teacher at Plymouth North High School starting on March 10, 2008, through the end of the school year in June, 2013. She took maternity leave during her first and fourth full years as a teacher, for sixty days in 2009 and for fifty-six days in 2012. Bilbo’s leave was authorized under the FMLA. She was paid during both absences using accumulated sick time and a sick-leave bank available under the governing collective bargaining agreement. Toward the end of her fifth year of teaching, by letter dated May 31, 2013, the district provided Bilbo with notice that she would not be reappointed to a teaching position for the next school year.[5] The letter explained, “You are not being appointed to a teaching position based upon the recommendations of your supervising principal and program manager and the concerns about continuity of instruction and the education of our students.” Asserting that she possessed professional […]
Bogertman, et al. v. Attorney General, et al. (Lawyers Weekly No. 10-090-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12063 TIMOTHY BOGERTMAN & others[1] vs. ATTORNEY GENERAL & another.[2] Suffolk. May 2, 2016. – June 28, 2016. Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, JJ. Initiative. Constitutional Law, Initiative petition. Attorney General. Gaming. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 7, 2015. The case was reported by Cordy, J. Matthew S. Cameron for the plaintiffs. Elizabeth N. Dewar, Assistant State Solicitor, for the defendants. Jeffrey S. King & Hayley Trahan-Liptak, for Eugene McCain, amicus curiae, submitted a brief. GANTS, C.J. In this appeal, we decide whether the Attorney General properly certified an initiative petition that seeks to amend G. L. c. 23K to authorize the Gaming Commission (commission) to award one additional license for a slot machine parlor. Article 48 of the Amendments to the Massachusetts Constitution, which governs the process for presenting proposed laws directly to Massachusetts voters through popular initiatives, sets forth certain standards for initiative petitions. In this case, the plaintiffs contend that the petition violates two of art. 48′s restrictions, which prohibit initiative petitions that are (1) limited to local matters, or (2) substantially the same as those presented at either of the two preceding biennial State elections. See art. 48, The Initiative, II, §§ 2, 3, of the Amendments to the Massachusetts Constitution, as amended by art. 74 of the Amendments. We conclude that the petition complies with these provisions and was therefore properly certified by the Attorney General. Background. In 2011, the Legislature enacted the Expanded Gaming Act, St. 2011, c. 194, which established the commission and a highly structured process for introducing, licensing, and regulating casino and slots gambling in the Commonwealth under a new statute, G. L. c. 23K. See Abdow v. Attorney Gen., 468 Mass. 478, 480-483 (2014) (describing Expanded Gaming Act). Chapter 23K authorizes the commission to award up to three “category 1″ licenses for gaming establishments “with table games and slot machines” (i.e., casinos) in certain specified regions of the Commonwealth, and no more than one “category 2″ license for a gaming establishment “with no table games and not more than 1,250 slot machines” (i.e., a slots parlor). See G. L. c. 23K, § 2 (defining category 1 and 2 licenses); G. L. c. 23K, § 19 (a) (specifying number and regional locations of category […]
Commonwealth v. Tejeda (Lawyers Weekly No. 11-074-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us 15-P-1085 Appeals Court COMMONWEALTH vs. JOSEFA TEJEDA. No. 15-P-1085. Suffolk. April 14, 2016. – June 24, 2016. Present: Kafker, C.J., Kinder, & Neyman, JJ. Misleading a Police Officer. Probable Cause. Practice, Criminal, Dismissal, Complaint. Words, “Trick,” “Scheme,” “Device.” Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on October 8, 2014. A motion to dismiss was heard by David Weingarten, J., and a motion for reconsideration was considered by him. Zachary Hillman, Assistant District Attorney, for the Commonwealth. David S. Victorson (Lia C. Monahon with him) for the defendant. KINDER, J. The defendant was charged in the Roxbury Division of the Boston Municipal Court Department with possession of heroin, see G. L. c. 94C, § 34, and misleading a police officer, see G. L. c. 268, § 13B.[1] Prior to trial the defendant moved to dismiss both charges, arguing that the complaint application failed to establish probable cause. The motion was denied as to the heroin charge, but allowed as to the charge of misleading a police officer; the Commonwealth appealed.[2] This interlocutory appeal presents the question whether the concealment and destruction of evidence can mislead a police officer within the meaning of G. L. c. 268, § 13B. On the facts presented here, we conclude that it can. Accordingly, we vacate the order dismissing the charge of misleading a police officer. Background. We summarize the facts set forth in the application in support of the complaint. On October 8, 2014, Boston police Officer David Crabbe was on patrol near Roxbury and Washington Streets, an area of Boston known for open drug dealing. His attention was drawn to a white male later identified as Christopher Willett. Earlier in the day Officer Crabbe had observed Willett attempting to trade food stamps for drugs. Officer Crabbe observed Willett walking briskly on Marvin Street toward Shawmut Avenue. Willett was accompanied by the defendant, known to Officer Crabbe as “Josefa Tejada [sic].” He lost sight of them briefly as he entered his cruiser to follow. Officer Crabbe next observed Willett and the defendant on Madison Park Court behind a parked car. They made eye contact with Officer Crabbe, turned, and began to walk away. Officer Crabbe then observed a third individual squatting behind the car. He recognized him as Jim Figueroa, known to Officer Crabbe as a heroin user. Figueroa […]
DeMarco v. DeMarco (Lawyers Weekly No. 11-075-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-190 Appeals Court KATHERINE DeMARCO vs. MICHAEL DeMARCO. No. 16-P-190. Suffolk. April 5, 2016. – June 24, 2016. Present: Meade, Hanlon, & Blake, JJ. Divorce and Separation, Relief from judgment, Separation agreement. Statute, Retroactive application. Contract, Modification. Complaint for divorce filed in the Suffolk Division of the Probate and Family Court Department on November 18, 2008. A motion for relief from judgment and a complaint in equity, both filed on August 7, 2015, were heard by John D. Casey, J. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Blake, J. Michael P. Angelini for the husband. Elaine M. Epstein (Richard M. Novitch with her) for the wife. David H. Lee & Holly A. Hinte, for Lee & Rivers, LLP, amicus curiae, submitted a brief. BLAKE, J. The husband, Michael DeMarco, and the wife, Katherine DeMarco, reached a surviving settlement agreement while trial was underway on their pending complaints for modification of alimony under the Alimony Reform Act of 2011, G. L. c. 208, §§ 34, 48-55 (act), and for contempt for nonpayment of alimony. The agreement provides for a lump sum payment to the wife in exchange for a termination of the husband’s alimony obligation. After the judgments entered incorporating the settlement agreement, the Supreme Judicial Court released its decision in Chin v. Merriot, 470 Mass. 527 (2015), and in two related cases,[1] wherein the court concluded that the provision of the act relevant here is to apply prospectively. Thereafter, the wife filed a motion for relief from the judgments, and a complaint in equity, asserting that she was entitled to relief from the provisions of the settlement agreement based on the recently released decisional law. The judge allowed the motion, and the husband sought, and obtained, leave to file an interlocutory appeal. We reverse.[2] Background. The parties were divorced in May, 2010. The alimony provision within their separation agreement (2010 agreement), which merged with the judgment of divorce, provided that the husband was to pay alimony to the wife until the death of either party, the wife’s remarriage, or “[a]t such time as the Husband has no gross earned income, after turning age 68.” In 2011, the Legislature enacted the act, see St. 2011, c. 124, which took effect on March 1, 2012. See St. 2011, c. 124, […]
Commonwealth v. Magadini (Lawyers Weekly No. 10-089-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11874 COMMONWEALTH vs. DAVID MAGADINI. Berkshire. December 7, 2015. – June 23, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Trespass. Necessity. Practice, Criminal, Request for jury instructions. Evidence, Cross-examination, Relevancy and materiality, Bias of government witness. Complaints received and sworn to in the Southern Berkshire Division of the District Court Department on April 8, April 9, and July 8, 2014. The cases were tried before Fredric D. Rutberg, J. The Supreme Judicial Court granted an application for direct appellate review. Joseph N. Schneiderman for the defendant. Jessie J. Rossman (Matthew Segal with her) for American Civil Liberties Union of Massachusetts & others. John Bossé, Assistant District Attorney, for the Commonwealth. HINES, J. The defendant, David Magadini, was convicted by jury on seven counts of criminal trespass, each based on the defendant’s presence, in 2014, in privately-owned buildings where he was the subject of no trespass orders.[1] Five incidents occurred between February and March, the sixth occurred on April 8, and the seventh occurred on June 10. Before trial and during the charge conference, the defendant requested a jury instruction on the defense of necessity, asserting that his conduct was justified as the only lawful alternative for a homeless person facing the “clear and imminent danger” of exposure to the elements during periods of extreme outdoor temperatures. The judge denied the request, concluding that the defendant had legal alternatives to trespassing available. As to each conviction, the judge imposed concurrent sentences of thirty days in a house of correction. A single justice of the Appeals Court stayed the sentences pending resolution of this appeal. We granted the defendant’s application for direct appellate review. On appeal, the defendant asserts the following errors at trial: (1) denial of his request for an instruction on the defense of necessity; (2) limitation of his cross-examination of witnesses; (3) misstatements made by the prosecutor during closing argument; and (4) denial of his motion for a required finding of not guilty on the charge stemming from the April 8 incident.[2] We conclude that the judge erred in denying the defendant’s request for an instruction on the defense of necessity as to the six trespassing charges related to the incidents from February through April, 2014,[3] and that the […]
Commonwealth v. Dirgo (Lawyers Weekly No. 10-088-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11992 COMMONWEALTH vs. AARON DIRGO. June 21, 2016. Practice, Criminal, Argument by prosecutor. After a jury trial, the defendant, Aaron Dirgo, was convicted of aggravated rape and abuse of a child (four counts), G. L. c. 265, § 23A, and indecent assault and battery on a child under fourteen years of age (two counts), G. L. c. 265, § 13B. He appealed from the convictions and from the denial of his motion for a new trial. He argued, among other things, that the prosecutor’s improper closing argument, to which he did not object at trial, created a substantial risk of a miscarriage of justice. The Appeals Court affirmed. Commonwealth v. Dirgo, 87 Mass. App. Ct. 1115 (2015). We granted further appellate review limited to the issues concerning the closing argument. Because we conclude that the cumulative effect of various improper statements in the prosecutor’s argument created a substantial risk of a miscarriage of justice, we reverse. 1. Facts. The complainant in the case, whom the parties refer to as H.R., met the defendant when she was twelve years old. Her mother and brother were friendly with the defendant and his son, and their families socialized together. The complainant testified that the defendant began to sexually assault her after she volunteered to babysit for the defendant’s son. When she babysat in the evenings, she would sometimes stay overnight at his house. At first the defendant touched her under a blanket as they sat on the couch and watched television. She described that over time the touching became more “intimate.” After the complainant turned thirteen years old, the defendant “progressed . . . [to] sexual intercourse.” She testified that they had sexual relations frequently between 2010 and May, 2011, although she could not identify specific dates. She also testified that, at the time, she developed strong feelings for the defendant and wanted to be in a relationship with him. Although the complainant told a friend at school about the relationship, she kept it from her mother. She also wrote notes to the defendant about her feelings and their relationship, although she did not deliver them. When her mother discovered one of her notes and confronted her, the complainant denied that she and the defendant had an inappropriate relationship. She described her account in the note as […]
Commonwealth v. Teixeira-Furtado (Lawyers Weekly No. 10-087-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12010 COMMONWEALTH vs. EDDY G. TEIXEIRA-FURTADO. June 20, 2016. Constitutional Law, Search and seizure. Search and Seizure, Threshold police inquiry. Threshold Police Inquiry. The defendant, Eddy G. Teixeira-Furtado, was a passenger in a motor vehicle that was pursued and then stopped for traveling at a “speed greater than is reasonable.” See G. L. c. 90, § 17.[1] While the vehicle was still in motion, the defendant got out of the vehicle, looked uncertainly in the direction of the police officers, and grabbed the right side of his waist area. The police officers gave chase. When the defendant was apprehended, he was carrying a firearm. A complaint issued in the Boston Municipal Court charging the defendant with several firearm offenses. Before trial, a Boston Municipal Court judge allowed the defendant’s motion to suppress the evidence derived from the encounter, and denied the Commonwealth’s motion for reconsideration. A single justice of this court granted the Commonwealth’s application for leave to pursue an interlocutory appeal. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed in an unpublished memorandum and order pursuant to its rule 1:28, Commonwealth v. Teixeira-Furtado, 87 Mass. App. Ct. 1133 (2015), and remanded for further proceedings. We granted further appellate review. We affirm the order allowing the motion to suppress. Background. The motion judge’s findings establish that on the evening of November 23, 2012, three officers of the Boston police department’s youth violence strike force, wearing plainclothes and traveling in an unmarked police vehicle, were patrolling areas of the city known as “hot spots” — areas they knew to be gang affiliated and where guns had been recovered. One officer observed a known gang associate park a vehicle and then enter a pizza store with the defendant.[2] Approximately fifteen minutes later, “the officers were on Bentham Road close to a stop sign facing Mt. Ida Road when they ‘observed a car traveling at a speed greater than reasonable’ on Mt. Ida. The area is a residential one with ‘plenty of kids around.’ It was nighttime. The officers recognized the car as the Honda Accord that [the gang associate] had been driving earlier. They activated the unmarked cruiser’s lights and siren and went after the Honda Accord. The car did not stop immediately but went […]
Categories: News Tags: 1008716, Commonwealth, Lawyers, TeixeiraFurtado, Weekly
Melrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Company, LLC (Lawyers Weekly No. 11-073-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1762 Appeals Court MELROSE FISH AND GAME CLUB, INC. vs. TENNESSEE GAS PIPELINE COMPANY, LLC. No. 14-P-1762. Middlesex. November 17, 2015. – June 20, 2016. Present: Cypher, Trainor, & Rubin, JJ. Easement. Real Property, Easement. Estoppel. Subdivision Control, Decision of planning board. Practice, Civil, Injunctive relief. Laches. Civil action commenced in the Superior Court Department on April 23, 2013. The case was heard by Kimberly S. Budd, J., on motions for summary judgment. Brian J. McNelis for the plaintiff. Dianne R. Phillips (Nathaniel F. Hulme with her) for the defendant. RUBIN, J. The plaintiff, Melrose Fish and Game Club, Inc. (club), sued Tennessee Gas Pipeline Company, LLC (TGP) in Superior Court for trespass because of TGP’s alleged interference with an easement[1] and breach of contract. The suit arises from TGP’s construction, in 1998, of a natural gas pipeline facility across the entire width of Cheever Avenue in Saugus, a paper street over which the club claims an easement. On cross motions for summary judgment, the Superior Court judge allowed TGP’s motion and denied the club’s. The judge ruled, first, that the breach of contract claim was barred by the six-year statute of limitations in G. L. c. 260, § 2; second, that the club’s easement over Cheever Avenue had been extinguished before it filed suit, either by estoppel or by frustration of purpose; and, third, that even if the easement still existed, the club’s request for injunctive relief would be barred by laches. The club appeals the second and third rulings. We reverse. Background. The club owns three lots of land in Saugus near the Melrose border. TGP owns a lot that shares a border with one of the club’s lots. The land making up these four lots, along with much of the surrounding land in Saugus, was once owned by Wilbur F. Newhall. In 1910, a plan subdividing Newhall’s land into dozens of different lots was recorded at the registry of deeds (1910 plan). The 1910 plan shows Cheever Avenue bounding lots 76-80, amongst others, on their northeast sides. Up until around 1999, Cheever Avenue was entirely a paper street.[2] In 1963, the club acquired lots 78-80 from Saugus (club lots), which had acquired the lots by tax takings between 1930 and 1951. The original deeds for those lots, as […]
Eisai, Inc., et al. v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-072-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-680 Appeals Court EISAI, INC., & others[1] vs. HOUSING APPEALS COMMITTEE & another.[2] No. 15-P-680. Suffolk. March 8, 2016. – June 20, 2016. Present: Hanlon, Sullivan, & Massing, JJ. Housing. Zoning, Housing appeals committee, Comprehensive permit, Person aggrieved. Practice, Civil, Zoning appeal, Standing. Civil action commenced in the Superior Court Department on March 11, 2014. The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings. Christopher Robertson (Jonathan D. Witten with him) for the plaintiffs. Suleyken D. Walker for Housing Appeals Committee. Kevin P. O’Flaherty for Hanover R.S. Limited Partnership. MASSING, J. This appeal concerns the standards that defendant housing appeals committee (HAC) applies when it reviews the decision of a local zoning board of appeals to deny an application under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), based on municipal planning concerns. The plaintiffs, owners and lessors of commercial and industrial properties neighboring the proposed housing development (hereinafter, abutters or, in context, interveners), appeal from a judgment of the Superior Court affirming the HAC’s decision directing the zoning board of appeals for the town of Andover (board) to issue a comprehensive permit to defendant Hanover R.S. Limited Partnership (developer). The abutters claim that the HAC impermissibly applied a new standard, not contained in any statute, regulation, or previous HAC decision, in evaluating Andover’s municipal planning efforts. In the alternative, they claim that the HAC erroneously applied the applicable standard. The defendants, for their part, contend that the abutters lack standing to bring this appeal. Concluding that the abutters have standing, we reach the merits and affirm the judgment of the Superior Court affirming the HAC’s decision. Background. On August 19, 2011, the developer filed an application for a comprehensive permit to build a mixed income rental housing development to be known as the “Lodge at Andover” within an existing office and industrial park. The proposed location for the residential development, 30 Shattuck Road, is mostly within Andover’s River Road industrial D district, a commercial and industrial area in the northernmost part of Andover, near the River Road exit of Interstate Route 93.[3] Shattuck Road, a dead end, and Tech Drive, a small looping road off of Shattuck Road, make up the office and industrial park consisting of ten large businesses and one vacant lot: the proposed […]