Retirement Board of Stoneham v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-189-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12098 Retirement Board OF STONEHAM vs. Contributory Retirement Appeal Board & another.[1] Middlesex. October 5, 2016. – December 22, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Retirement. Municipal Corporations, Retirement board. Public Employment, Retirement. Contributory Retirement Appeal Board. Civil action commenced in the Superior Court Department on February 6, 2014. The case was heard by Robert L. Ullmann, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Douglas S. Martland, Assistant Attorney General, for Contributory Retirement Appeal Board. Thomas F. Gibson for Christine DeFelice. Michael Sacco for the plaintiff. LOWY, J. This case requires us to answer two questions: (1) whether a municipal retirement board possesses absolute discretion to terminate a part-time employee’s membership in a retirement system to which that board has granted the employee membership; and (2) even if such a board does not have the power to terminate a part-time employee’s membership, whether a “separation from [an employee’s] service” under G. L. c. 32, § 3 (1) (a) (i), occurs when a part-time employee working two jobs for the same municipal employer ceases to work only one of those jobs. We answer both questions in the negative and reverse the judgment of the Superior Court. Background. Christine DeFelice began working on a part-time basis for the Stoneham school department (department) in November, 2000. In April, 2001, she took on a second part-time job with the department to fill a temporary vacancy, increasing her weekly workload from nineteen and one-half hours per week to over thirty hours per week for the ensuing nine weeks. At the end of the nine-week period, DeFelice continued to work for the department on a part-time basis until at least June, 2009, only occasionally working more than nineteen and one-half hours per week.[2] In 2009, DeFelice sought retroactive membership in the Stoneham retirement system as an employee of the department, based on the nine-week period in 2001 during which she worked over thirty hours per week. Under the membership eligibility criteria for part-time employees established by the Stoneham retirement board (board) that were in effect during 2001, Stoneham employees were eligible for membership in the retirement system if they were […]
Categories: News Tags: 1018916, Appeal, Board, Contributory, Lawyers, Retirement, Stoneham, Weekly
Moronta v. Nationstar Mortgage, LLC, et al. (Lawyers Weekly No. 10-190-16)
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-12042 ELNEDIS A. MORONTA vs. NATIONSTAR MORTGAGE, LLC, & another.[1] December 22, 2016. Consumer Protection Act, Demand letter. Elnedis A. Moronta commenced this action in the Superior Court, alleging that the defendants, Nationstar Mortgage, LLC (Nationstar), and Fremont Investment and Loan, among other things, violated his rights under G. L. c. 93A. Summary judgment was entered against Moronta on all his claims. On Moronta’s appeal, the Appeals Court concluded that there was a genuine issue of material fact as to Moronta’s c. 93A claim and reversed the grant of summary judgment. Moronta v. Nationstar Mortgage, LLC, 88 Mass. App. Ct. 621, 622 (2015). In doing so, the Appeals Court rejected the defendants’ argument that Moronta’s c. 93A claim was barred due to his failure to serve a demand letter, on the ground that no demand letter is required under G. L. c. 93A, § 9 (3), where “the prospective respondent does not maintain a place of business . . . within the commonwealth,” regardless of whether it “keep[s] assets” here. Moronta, supra at 626 n.11. We granted Nationstar’s application for further appellate review, and we subsequently limited the scope of review to issues concerning the demand letter.[2] The underlying facts of the case are set forth in the Appeals Court’s opinion and need not be repeated here. Moronta, 88 Mass. App. Ct. at 622-625. Before us is a purely legal question concerning the correct interpretation of G. L. c. 93A, § 9 (3). The question is whether, as Moronta argues, a plaintiff is excused from serving a demand letter if the defendant lacks either a place of business or assets in the Commonwealth, or whether, as Nationstar argues, a plaintiff must serve a demand letter unless the defendant has neither a place of business nor assets in the Commonwealth. Put another way, the question is this: if the defendant keeps assets in the Commonwealth, but does not maintain a place of business here, must the plaintiff serve a demand letter? We conclude, as did the Appeals Court, that the plaintiff need not do so. We begin with the “general and familiar rule . . . that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of […]
Doe, Sex Offender Registry Board No. 376575 v. Sex Offender Registry Board (Lawyers Weekly No. 11-179-16)
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-926 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 376575 vs. SEX OFFENDER REGISTRY BOARD. No. 14-P-926. Suffolk. October 20, 2016. – December 22, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Jurisdiction, Sex offender. Evidence, Sex offender. Obscenity, Child pornography. Civil action commenced in the Superior Court Department on December 18, 2012. The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings; a motion for reconsideration was considered by him; and a motion for postjudgment relief, filed on April 30, 2015, was heard by him. Christopher M. Bova for the defendant. Jay G. Hook for the plaintiff. BLAKE, J. While he was in the United States Army, John Doe No. 376575 (Doe or plaintiff) was convicted by general court martial of possession of child pornography in violation of art. 134, 10 U.S.C. § 934 (2012), the “general” provision of the Uniform Code of Military Justice (code). Following his release from military confinement, the sex offender registry board (board) classified Doe as a level two sex offender. Doe sought review in the Superior Court, where the judge concluded that the board lacked jurisdiction over Doe because his conviction under art. 134 was not a “like violation” sex offense requiring registration. See G. L. c. 6, §§ 178C-178P (sex offender registration statute). The board now appeals. We conclude that, under the circumstances here, where Doe had notice of and subsequently pleaded guilty to possession of child pornography under 18 U.S.C. § 2252 (2012), the art. 134 conviction was a “like violation” such that it constitutes a sex offense under G. L. c. 6, § 178C. We vacate the judgment.[1] Background. We summarize the facts found by the hearing examiner, supplemented by undisputed facts from the record. After a soldier stationed with the plaintiff observed what he believed to be child pornography on the plaintiff’s computer, he notified his commander, who initiated an investigation. A “U.S. Army Criminal Investigation Command” final investigation report (investigation report), dated January 6, 2012, states that probable cause had been established to believe that the plaintiff had “committed the offense of Possession of Child Pornography when his personal computer was forensically examined, and multiple images of child pornography were discovered.” The investigation report further notes […]
Commonwealth v. Beaulieu (Lawyers Weekly No. 11-178-16)
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-69 Appeals Court COMMONWEALTH vs. DONNA BEAULIEU. No. 15-P-69. Essex. April 12, 2016. – December 21, 2016. Present: Cohen, Rubin, & Hanlon, JJ. Assault and Battery. Practice, Criminal, New trial, Comment by judge, Disqualification of judge, Assistance of counsel. Evidence, Prior misconduct, Identification. Identification. Complaint received and sworn to in the Lynn Division of the District Court Department on April 24, 2013. The case was tried before Albert S. Conlon, J., and a motion for a new trial was heard by him. Andrew P. Power for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. HANLON, J. After a jury trial, the defendant, Donna Beaulieu, was convicted of assault and battery on her teenage daughter.[1] Approximately one week later, the victim recanted; the defendant then filed a motion for a new trial based solely on the recantation. After an evidentiary hearing, the motion was denied. The defendant now appeals from the denial of her motion for a new trial, arguing that the judge abused his discretion by “berating” the recanting witness and threatening her with incarceration for testifying in support of the defendant’s motion. The defendant also appeals from her underlying conviction on three grounds. First, she argues that the judge abused his discretion by admitting evidence at trial of prior bad acts. Second, she alleges counsel was ineffective for failing to object to that evidence and for calling a police witness who gave damaging testimony. Finally, the defendant contends that the judge erred in denying her motion for a required finding of not guilty, given what she describes as a lack of identification evidence at trial. We affirm. Background. a. The trial. The jury heard the following evidence. On April 22, 2013, the victim, a middle school honor student, became ill at school; she went to the school nurse’s office, and, afterwards, her mother picked her up and took her home. When she arrived at home, she rested on the couch for a few hours, then had dinner and started working on her homework in the kitchen. At some point later, her mother called her into the living room; her mother was “frustrated” because she was having difficulty using a Web site relating to their cellular telephones. When the victim came into the […]
Adams v. Congress Auto Insurance Agency, Inc. (Lawyers Weekly No. 11-177-16)
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-452 Appeals Court MARK ADAMS vs. CONGRESS AUTO INSURANCE AGENCY, INC. No. 15-P-452. Middlesex. March 10, 2016. – December 21, 2016. Present: Kafker, C.J., Vuono, & Henry, JJ. Negligence, Insurance company, Employer, Foreseeability of harm, Causation, Retention of employee, Entrustment, Emotional distress. Damages, Emotional distress. Consumer Protection Act, Responsibility of employer. Practice, Civil, Summary judgment, Motion to amend. Civil action commenced in the Superior Court Department on April 16, 2013. Motions for summary judgment and to amend the complaint were heard by Peter B. Krupp, J. Henry P. Sorett for the plaintiff. Jeffrey S. Robbins for the defendant. HENRY, J. This case arose from an employee’s improper use of confidential information accessed through her workplace computer. The employee gave that information to her boy friend, who used it to intimidate a witness, Mark Adams. Adams brought this action against the employer, Congress Auto Insurance Agency, Inc. (Congress Agency or agency). A Superior Court judge dismissed four of his five claims. The case proceeded to discovery on the remaining claim against the agency that alleged negligent failure to safeguard Adams’s personal information. The same judge subsequently granted the agency’s motion for summary judgment on the remaining count and in the same memorandum and order denied Adams’s motion to amend his complaint to reinstate the dismissed claims and to add a claim for violation of 18 U.S.C. §§ 2721-2725. Adams appealed. We affirm in part and reverse in part. Summary judgment. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Lev v. Beverly Enterprises-Massachusetts, Inc., 457 Mass. 234, 237 (2010) (Lev), quoting from Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 (1997). The burden rests on the defendant, as the moving party, to affirmatively demonstrate the absence of a genuine issue of material fact on every relevant issue. Ibid. Facts. Viewed in the light most favorable to Adams, as required at this stage of the proceedings, the summary judgment record discloses the following facts. The Congress Agency hired Elizabeth Burgos in August, 2003, as a customer service representative, promoting her to […]
Commonwealth v. Garcia-German (Lawyers Weekly No. 11-176-16)
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-947 Appeals Court COMMONWEALTH vs. JASON A. GARCIA-GERMAN. No. 15-P-947. Plymouth. October 13, 2016. – December 20, 2016. Present: Cypher, Cohen, & Green, JJ. Search and Seizure, Motor vehicle, Probable cause, Administrative inspection. Probable Cause. Constitutional Law, Search and seizure, Probable cause. Complaint received and sworn to in the Plymouth Division of the District Court Department on September 2, 2014. A pretrial motion to suppress evidence was heard by Brian F. Gilligan, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the matter was reported by him to the Appeals Court. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. Darla J. Mondou for the defendant. GREEN, J. The Commonwealth appeals from an order by a judge of the District Court allowing the defendant’s motion to suppress evidence seized during a warrantless search of his vehicle while it was parked in a parking lot outside the Plymouth County correctional facility (facility).[1] We conclude that the motion judge correctly ruled that the search was not justified by probable cause, and reject the Commonwealth’s alternative suggestion that the presence of the vehicle on correctional facility grounds, in these circumstances, furnished “special needs” to justify an exception to the warrant requirement, as a permissible administrative search. Background. We summarize the facts found by the motion judge, which we supplement, for the purpose of furnishing context, with uncontroverted evidence the motion judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). At approximately 7:30 P.M. on Friday evening, August 29, 2014, Officer James Creed of the Plymouth County sheriff’s department was on patrol in the parking lot of the facility, when he saw two motor vehicles — a gray BMW and a gray Volvo — enter the visitor’s lot. Two Hispanic males, the defendant and a companion, emerged from the BMW, and a white male, later identified as an attorney, emerged from the Volvo. All three men entered the bail lobby of the facility. At the time of their arrival, visiting hours at the facility had ended; the three men had come to the facility for the purpose of posting bail for […]
Categories: News Tags: 1117616, Commonwealth, GarciaGerman, Lawyers, Weekly
Chambers, et al. v. RDI Logistics, Inc., et al. (Lawyers Weekly No. 10-187-16)
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-12080 TIMOTHY P. CHAMBERS[1] & another[2] vs. RDI LOGISTICS, INC., & another;[3] DEE & LEE, LLC, & another,[4] third-party defendants. Bristol. October 5, 2016. – December 16, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Independent Contractor Act. Federal Preemption. Statute, Federal preemption, Severability. Practice, Civil, Summary judgment, Standing. Employment, Retaliation. Protective Order. Civil action commenced in the Superior Court Department on September 20, 2013. An emergency motion for a protective order was considered by Richard T. Moses, J.; a motion for reconsideration was considered by him; and the case was heard by him on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harold L. Lichten (Peter M. Delano with him) for the plaintiffs. Michael T. Grant (Andrew J. Fay with him) for the defendants. LENK, J. We are called upon in this case chiefly to consider whether G. L. c. 149, § 148B, the independent contractor statute, is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), 49 U.S.C. § 14501(c). The plaintiffs, who contracted with the defendants through small corporations that the plaintiffs apparently formed for this purpose, performed services in Massachusetts as furniture delivery drivers. They brought this putative class action against the defendants under the independent contractor statute, asserting that they had been misclassified as independent contractors. Following the addition of other claims and counterclaims, summary judgment entered for the defendants dismissing the plaintiffs’ claims on the ground that they were preempted by the Federal statute. We conclude that, while a portion of the independent contractor statute is preempted by the FAAAA, the remainder is severable and remains applicable to the plaintiffs’ misclassification claim. Nor is summary judgment dismissing that claim warranted on the separately asserted basis that the plaintiffs lack standing as individuals to assert claims for misclassification under the statute. Material issues of disputed fact preclude the entry of summary judgment on either basis. We conclude similarly that the dismissal, without explanation, of the claim of retaliation that Timothy Chambers individually asserts under G. L. c. 149, § 148A, was improper. Finally, we review the denial of the plaintiffs’ request for a protective order, brought in the wake of the defendants’ communications with putative class members in which they were offered payments in exchange for signed releases. […]
DeCroteau v. DeCroteau, et al. (Lawyers Weekly No. 11-175-16)
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-1442 Appeals Court JOSEPH DeCROTEAU vs. MICHAEL DeCROTEAU & others.[1] No. 15-P-1442. December 16, 2016. Practice, Civil, Standing, Preliminary injunction. Corporation, Stockholder. Lis Pendens. The plaintiff, Joseph DeCroteau, brings this interlocutory appeal from a Superior Court judge’s orders denying his motions for a preliminary injunction and for approval of a memorandum of lis pendens.[2] See G. L. c. 231, § 118, second par. He claims that he holds an equitable ownership interest in the property at issue in the parties’ dispute, such that the judge should have allowed both motions. We affirm. Background. The plaintiff is a fifty-one percent shareholder of DeCroteau Corporation, which owns and operates the Gaffey Funeral Home located at 43 High Street in Medford (the property). The plaintiff is a licensed funeral home director who runs and manages the funeral home. The plaintiff’s brothers, Mark and Michael DeCroteau, are minority shareholders in DeCroteau Corporation. The property is owned by DBR Realty LLC (DBR). DeCroteau Corporation is the tenant of DBR, and Mark and Michael[3] are the sole members of DBR. At all times relevant to this action, the plaintiff had no legal ownership interest in DBR. At the time of its acquisition of the funeral home in 2009, DeCroteau Corporation entered into a five-year written lease with DBR. The lease expired in 2014, and DeCroteau Corporation became a tenant at will when it failed to exercise an option to renew contained in the lease. In 2015, DBR listed the property for sale. In response, the plaintiff filed a verified complaint in Superior Court against Mark, Michael, and DBR (collectively, the defendants) seeking, inter alia, equitable relief to restrain the defendants from any attempt to sell the property.[4] In addition, the plaintiff filed motions for (1) a preliminary injunction prohibiting the defendants from marketing, transferring, or encumbering the property without prior court authorization, and (2) approval of a memorandum of lis pendens relating to the property. Following a nonevidentiary hearing, the judge denied both motions. Discussion. a. Preliminary injunction. The plaintiff sought to enjoin the defendants “from taking any action to market, transfer or encumber” the property, arguing that he has an equitable ownership interest, and that Mark and Michael have breached their fiduciary duty to him in endeavoring to sell the property, thus jeopardizing his livelihood and putting the […]
Sullivan v. Smith (Lawyers Weekly No. 11-174-16)
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-1626 Appeals Court EARLINE SULLIVAN vs. CRAIG S. SMITH. No. 15-P-1626. Hampden. September 20, 2016. – December 16, 2016. Present: Meade, Carhart, & Kinder, JJ. Parent and Child, Child support. Probate Court, General equity power, Notice. Jurisdiction, Equitable. Uniform Interstate Family Support Act. Jurisdiction, Personal. Due Process of Law, Jurisdiction over nonresident. Practice, Civil, Service of process. Notice. Complaint in equity filed in the Hampden Division of the Probate and Family Court Department on November 12, 2014. Judgment was entered by David G. Sacks, J.; a motion for postjudgment relief, filed on July 31, 2015, was considered by him; a motion to dismiss, filed on September 3, 2015, was heard by him; and a corrected order lifting a stay on child support payments was entered by him. Ann E. Dargie for the defendant. KINDER, J. Craig S. Smith (Smith or father), a Georgia resident, appeals from a judgment and orders of the Probate and Family Court ordering him to pay postminority child support to Earline Sullivan (Sullivan or guardian), the former guardian of Smith’s unemancipated eighteen year old son. On appeal, Smith argues that the Probate and Family Court lacked personal jurisdiction over him, and that the judgment is therefore void. He also challenges the sufficiency of both service of the complaint and notice of the hearing at which the judgment entered. We affirm, concluding that the long-arm provisions of the Uniform Interstate Family Support Act (UIFSA), G. L. c. 209D, § 2-201,[1] provide personal jurisdiction over Smith, that service of process was sufficient, and that he had adequate notice of the hearing. Background. We summarize the relevant factual and procedural history from the undisputed facts set forth in the judge’s orders, as well as the verified complaint and the relevant dockets. See Eccleston v. Bankosky, 438 Mass. 428, 429 (2003). See also Brookline v. Goldstein, 388 Mass. 443, 447 (1983) (both trial judge and appellate court may take judicial notice of court records in related action); Jarosz v. Palmer, 436 Mass. 526, 530 (2002). Smith is the father of a son born on July 13, 1996. Smith acknowledged paternity in an action brought first by the mother pursuant to G. L. c. 209C, and later by the Department of Revenue pursuant to G. L. c. 119A and G. L. c. 209C. Smith was ordered […]
Furlong, et al. v. Zoning Board of Appeals of Salem, et al.
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-1174 Appeals Court MICHAEL F. FURLONG & another[1] vs. ZONING BOARD OF APPEALS OF SALEM & another.[2] No. 15-P-1174. Suffolk. October 7, 2016. – December 12, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. Civil action commenced in the Land Court Department on February 17, 2012. The case was heard by Robert B. Foster, J. Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc. BLAKE, J. The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-waived trial, the judge affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm. Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a “marine travel lift” hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina’s boat repair facility, allowing the removal of the Quonset […]