Posts tagged "Attleboro"

Cave Corporation v. Conservation Commission of Attleboro (Lawyers Weekly No. 11-088-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-944                                        Appeals Court   CAVE CORPORATION  vs.  CONSERVATION COMMISSION OF ATTLEBORO.     No. 16-P-944.   Plymouth.     April 6, 2017. – July 14, 2017.   Present:  Green, Blake, & Lemire, JJ.     Municipal Corporations, Conservation commission, By-laws and ordinances.  Wetlands Protection Act.       Civil action commenced in the Superior Court Department on January 9, 2015.   The case was heard by Richard J. Chin, J., on a motion for judgment on the pleadings, and a motion for clarification or reconsideration was considered by him.     Matthew Watsky for the plaintiff. Rebekah Lacey for the defendant.     GREEN, J.  When a municipal conservation commission fails to act timely on a notice of intent for work affecting wetlands, the applicant is entitled to seek relief from the Department of Environmental Protection (DEP).  G. L. c. 131, § 40.  If, on the applicant’s request for relief, the DEP thereafter issues a superseding order of conditions authorizing the work described in the notice of intent, the superseding order controls the work under the Wetlands Protection Act (act), G. L. c. 131, § 40, notwithstanding any more restrictive provisions of an otherwise applicable municipal wetlands ordinance or by-law.  See Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 865 (2007).  Cave Corporation (Cave), the plaintiff in the present case, contends that such a superseding order operated to divest the conservation commission of Attleboro (commission) of all authority to regulate activity on the land subject to the superseding order, even if the same land is also the subject of a separate notice of intent on which the commission acted timely.[1]  A judge of the Superior Court disagreed, and we affirm. Background.  The Attleboro city council adopted the Attleboro wetlands protection ordinance (ordinance) on October 2, 2001, and the commission, acting pursuant to authority delegated by the ordinance, promulgated rules and regulations thereafter.  Section 18-1.1 of the ordinance recites as its purpose: “to protect the wetlands, water resources, and adjoining land areas in Attleboro by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon resource area values, including but not limited to the following:  public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention including coastal storm flowage, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, […]

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Posted by Massachusetts Legal Resources - July 14, 2017 at 7:19 pm

Categories: News   Tags: , , , , , , ,

Shrine of Our Lady of La Salette Inc. v. Board of Assessors of Attleboro (Lawyers Weekly No. 10-049-17)

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-12021   SHRINE OF OUR LADY OF LA SALETTE INC.  vs.  BOARD OF ASSESSORS OF ATTLEBORO.       Suffolk.     December 5, 2016. – March 22, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Taxation, Real estate tax:  abatement, Real estate tax:  exemption, Real estate tax:  classification of property.  Real Property, Tax.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     Diane C. Tillotson (Ryan P. McManus also present) for the taxpayer. Michael R. Siddall (James M. Hannifan also present) for board of assessors of Attleboro. Heidi A. Nadel, for Massachusetts Council of Churches & others, amici curiae, submitted a brief. Felicia H. Ellsworth, Eric L. Hawkins, & William R. O’Reilly, Jr., for Roman Catholic Archbishop of Boston & others, amici curiae, submitted a brief.     GANTS, C.J.  This is an appeal from a decision of the Appellate Tax Board (board) concerning property in Attleboro owned by the taxpayer, Shrine of Our Lady of La Salette Inc. (Shrine).  The Shrine sought a tax abatement from the board, claiming that certain portions of its property were exempt from taxation under G. L. c. 59, § 5, Eleventh (Clause Eleventh), the exemption for “houses of religious worship.”  The crux of the appeal is the scope of this exemption.  For the reasons set forth below, we conclude that property is exempt from taxation under Clause Eleventh where the dominant purpose of the questioned portion of property is religious worship or instruction, or purposes connected with it.  Applying this principle, we conclude that the board erred when it found that the Shrine’s “welcome center” and maintenance building were not exempt under Clause Eleventh.  We affirm its denial of an abatement for the former convent that the Shrine leased to a nonprofit organization for use as a safe house for battered women, and for the wildlife sanctuary that was exclusively managed by the Massachusetts Audubon Society in accordance with a conservation easement.  The safe house and wildlife sanctuary might have been exempt from real estate taxation under G. L. c. 59, § 5, Third (Clause Third), as the property of a benevolent or charitable organization devoted to charitable use, had the Shrine satisfied the filing requirements for such an exemption, but they were not exempt under Clause Eleventh.[1] Background.  […]

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Posted by Massachusetts Legal Resources - March 22, 2017 at 2:43 pm

Categories: News   Tags: , , , , , , , , ,

Fernandes v. Attleboro Housing Authority (Lawyers Weekly No. 10-186-14)

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-11580   DAVID FERNANDES  vs.  ATTLEBORO HOUSING AUTHORITY.     Bristol.     September 4, 2014. – November 19, 2014. Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.   Labor, Wages.  Superior Court, Jurisdiction.  Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission.  Public Employment, Termination, Reinstatement of personnel.  Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel.  Employment, Termination, Retaliation.  Damages, Additur.  Practice, Civil, Additur, Attorney’s fees.  Housing Authority.  Municipal Corporations, Housing authority.     Civil action commenced in the Superior Court Department on November 13, 2009.   The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Maria M. Scott for the plaintiff. David D. Dowd for the defendant.          SPINA, J.  David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009.  Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A.  Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled.  Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office.[1]  Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims.  The jury awarded damages against the AHA in the amount of $ 2,300 for unpaid wages due to misclassification, and $ 130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions.  Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution.  Fernandes filed a motion for reinstatement to the position of maintenance mechanic […]

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Posted by Massachusetts Legal Resources - November 19, 2014 at 5:13 pm

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