Posts tagged "Board"

Anne Gamble Ten Taxpayer Group, et al. v. Health Facilities Appeals Board, et al. (Lawyers Weekly No. 09-031-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2015-3545-BLS2
ANNE GAMBLE TEN TAXPAYER GROUP, consisting of
GUSTAVE H. MURBY, ANNE C. GAMBLE, WALTER J. GAMBLE, STEPHEN GELLIS, M.D., LORING CONANT M.D., JR., CONANT LOUISE, BRIAN GREENBERG, PEGGY GREENBERG, KAREN D’AMATO, CHRISTINE BARENSFELD, JOHN W. HAGERMAN, ROBERT GAMBLE, SHIRLEY C. DUFF, JAMES K. DUFF, JAMES M. SMITH, and ELLEN K. ANDERSSON,
Plaintiffs
vs.
HEALTH FACILITIES APPEALS BOARD, MONICA BHAREL, M.D., in her capacity as COMMISSIONER OF MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH, MARYLOU SUDDERS, in her capacity as SECRETARY OF MASSACHUSETTS EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES, and CHILDREN’S HOSPITAL CORPORATION d/b/a CHILDREN’S HOSPITAL,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
AND ON PLAINTIFFS’ MOTION TO AMEND COMPLAINT
This is one of several lawsuits filed by a group of plaintiffs unhappy with a decision by the defendant Boston Children’s Hospital (BCH) to eliminate the Prouty Garden as part of a modernization and expansion project. In the instant case, plaintiffs challenge the October 27, 2016 determination by the Commissioner of the Department of Public Health and the Public Health Council (collectively, the Department) to issue a Determination of Need in connection with that project. The Department’s decision is subject to judicial review pursuant to G.L.c. 30A §14 and G.L.c. 111 §25E. With the Administrative Record having been filed, this case is before this Court on Cross Motions for Judgment on the Pleadings, as required by Superior Court Standing Order 1-96. Plaintiffs also seek leave to amend their Complaint. This Court concludes
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that the plaintiffs’ motions must be DENIED and the defendants’ Cross Motion must be ALLOWED, for reasons set forth herein.
BACKGROUND
Section 25C of Chapter 111 of the Massachusetts General Laws states that a health care institution contemplating a construction project that requires a “substantial capital expenditure” must first obtain a determination of need or “DoN” from the Department of Public Health (DPH). The purpose of the statute is to “control unnecessary expansion by health care institutions of their patient care facilities,” Howe v. Health Facilities Appeals Bd., 20 Mass.App.Ct. 531, 532 (1985), and to encourage the appropriate allocation of resources for health care purposes. Shoolman v. Health Facilities Appeals Bd., 404 Mass. 33, 36 (1989). In order to obtain a DoN, the health care institution must file an Application, which is reviewed for completeness and then forwarded for to the Public Health Council (PHC) and the Commissioner of DPH for their consideration. 105 C.M.R. §510-100.530.1 The Application is also subject to comments and a public hearing. G.L.c. 111 §25C, 105 C.M.R. §§100.400-100.410. The DoN Program Director prepares a staff report (the Staff Summary). 105 C.M.R. §§100.420-100.421. Upon consideration of the Application, the Staff Summary and comments by “parties of record” and the general public, the Department makes a final Determination of Need approving or disapproving the Application, in whole or in part. 105. C.M.R. §100.530(A). Under G.L.c. 111 §25E, any person aggrieved by the determination may, within fourteen days, file an appeal with
1 This Court was informed by counsel at the hearing on these Motions that the DoN regulations have since been amended. As this Court understands it, any changes with regard to content have no bearing on this case. The amendment has changed the number references for those regulations, however. Because the parties agree that the earlier version of the regulations apply and because they have cited to that earlier version in their pleadings, this Court uses the citations to those older regulations, even though they have now been superseded.
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the Health Facilities Appeals Board. G.L.c. 111 §25E. Within sixty days of that filing, the Board is to issue a final decision either denying the appeal or remanding it for further action.
In the instant case, all these procedural steps were followed. On December 7, 2016, BCH filed an Application for a DoN in connection with a project to create new clinical space, including a neonatal intensive care unit and improved Heart Center at the hospital’s Longwood Avenue location (the Project) If approved, the Project would require the destruction of the Prouty Garden. The plaintiffs are a group of taxpayers who oppose destruction of the garden. They are duly registered with the Department as a “party of record” to the DoN proceedings and may file comments to the Application, which they did.
As required by statute, the DPH staff, held a public hearing on the Project and the plaintiffs were among those who provided their views. After a ten month review process, DPH issued a 37-page Staff Summary that recommended approval of the Application, with conditions. That Summary was later supplemented with an Addendum that addressed certain comments, including those submitted by the Health Policy Commission (HPC). On October 20, 2016, the PHC, chaired by DPH Commissioner Monica Bharel, held a hearing to determine whether to grant BCH’s DoN Application. Among those presenting testimony at the hearing were various individuals who opposed the destruction of Prouty Garden. The PHC ultimately voted to approve BCH’s Application, and the Commissioner and the PHC, acting together as the Department, issued a Notice of Final Action on October 27, 2016. That Notice states that the issuance of the DoN was based upon BCH’s “clear and convincing demonstration that the Project meets each of the governing factors, set forth in 105 C.M.R. 100.000 and Department guidelines.” The approval expressly included certain conditions. Although the statute is ordinarily reviewable by the Health Facilities Appeals Board, the Board had not yet been
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constituted so that the determination by the Department was considered final. 105 C.M.R. §100.970(B); 105 C.M.R. §100.551(A). This lawsuit ensued.
DISCUSSION
The Legislature has determined what standard that this Court applies in reviewing a Department decision to issue a DoN. That standard is set forth in G.L.c. 111 §25E, which states that the Department’s determination may be set aside only where there has been an “abuse of discretion” or where it is in violation of the procedural or substantive law. Contrary to the plaintiffs’ position, this Court does not apply the more rigorous “substantial evidence” standard. Howe v. Health Facilities Board, 20 Mass.App.Ct. 531, 534-537 (1985); see also Shoolman v. Health Facilities Appeals Board, 404 Mass. 33 (1989). Rather, the review is even more deferential. As explained by the SJC, the decision to issue the DoN can be overturned only if it was “arbitrary and capricious.” Shoolman, 404 Mass. at 36. If there is a rational basis for the decision and it is not otherwise unlawful, then it must be affirmed. Applying this standard, this Court concludes that the plaintiffs have not met their burden of demonstrating that the Department’ decision to issue a DoN to BCH should be overturned.
As stated in the October 27, 2016 Notice of Final Action, the Department reviewed BCH’s Application to determine whether it complied with certain mandatory terms and conditions of the applicable regulations. Specifically, it sought to determine whether the Project met each of nine factors set forth in 105 C.M.R. §100.533(B). In support of their Motion, plaintiffs focus on a couple of these factors and argue that the evidence does not support the Department’s decision. One of those factors (Factor One) requires BCH to demonstrate that the Project “will not duplicate existing resources in the applicable service area.” 105 C.M.R. §100.533(B) (1). A second factor (Factor Two) requires that the project must “satisfy in whole
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or in part health care requirements of the project population of the applicable services area, without any duplication of services and other adverse service consequences…” ” 105 C.M.R. §100.533(B) (2). Plaintiffs argues that the Project does not satisfy these requirements because it is based not on present needs but on BCH projections regarding future patient volume. Moreover, these projections (they argue) are not based on increased demand from Massachusetts patients but from international and out of state patients. Citing comments by the HPC, plaintiffs express concern that shifting patients from competing local pediatric care providers to BCH could have a destabilizing effect that would translate into higher health care costs overall. Plaintiffs argue that the Department ignored these concerns and that the Department’s decision that the regulatory factors were satisfied is wholly unsupported by the facts presented to it.
In fact, a review of the Administrative Record shows that the Department did consider the same arguments and criticisms plaintiffs now make to this Court. The HPC’s comments, for example, were specifically addressed both in the Staff Summary and the Addendum. The plaintiffs may disagree with how the Department resolved those concerns, but that is not a basis to overturn its decision. Moreover, the reasons offered in support of the decision are neither arbitrary nor capricious. Regarding the danger of duplication of services, the Staff Summary concluded that the “applicable services area” referenced in the regulations can – and, in the instant case, did — extend to an area beyond Massachusetts so that it was permissible to consider patients projected to come from out of state and internationally. The Department further determined that higher acuity patients from all regions, including the Boston area, are already coming to BCH for more complex procedures than are available at other local hospitals, decreasing the danger that services would be duplicated. As to the validity of BCH’s projections, the DPH Staff required from BCH an Independent Cost Analysis which (among
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other things) reviewed population projections, historical trends, and two patient projection scenarios. That analysis concluded that the success of the Project would not require taking patients away from other local providers and was also “consistent with the Commonwealth’s effort to meet the health care cost containment goals.” In short, in making the findings that it did, the Department did not abuse its discretion or exceed its legal authority. Indeed, even under the less deferential “substantial evidence” standard, the DoN determination passes muster.
Significantly, the Department did not simply determine that BCH’s Application satisfied the nine mandatory factors imposed by the regulations. Additionally, it imposed eight conditions on BCH, among them “Condition 8.” That condition imposed three requirements on BCH that directly addressed the concerns expressed above. First, BCH was prevented from passing on its incremental operating costs to government and nongovernment Massachusetts payors or patients “in excess of the Commonwealth’s costs containment goals.” Second, BCH had to maintain its commitment to serving Medicaid patients. Third, it is required to make an annual report to the Department that includes among other things information concerning the degree to which the out-of-state demand it anticipated was actually being realized. Plaintiffs argue that this condition is somehow invalid or at the very least unworkable. This Court disagrees.
The DoN regulations expressly permit the Department to impose conditions. See 105 C.M.R. §100.552(A) (Department “may prescribe…any other conditions reasonably related to the scope of the project…and consistent with the objective of making adequate health care services reasonably available to every person within Massachusetts”). Indeed, the regulations specifically contemplate the imposition of a condition in the event that the Project falls short of satisfying any of the nine regulatory factors. See 105 CM.R. §100.533(C). Plaintiffs argue that
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Condition 8 is not in accordance with 105 C.M.R. 100. §552, which requires that the condition be “within the control of the applicant.” But each of the three requirements that Condition 8 imposes are within BCH’s control and are matters for which the Department can hold BCH accountable. That Condition 8 by its terms gives to BCH an opportunity to argue that it is noncompliant with any of the requirements because of unexpected circumstances or events does not change the fact that the condition itself (including the submission of an annual report) concerns matters within BCH’s control. Nor does this so called “escape clause” render the Condition meaningless: a finding by the Department that BCH is not in compliance with Condition 8 permits the Department to require BCH to remove beds from service and to extract other payments. In short, this Court sees no legal grounds for overturning the Department’s decision.
At the same time that the plaintiffs filed their Cross Motion for Judgment on the Pleadings, they also filed a Motion to Amend the Complaint. This Motion seeks to add a count (Count 4) which alleges that since the issuance of the DoN, BCH is in violation of the conditions that the Department imposed and has otherwise not complied with applicable regulations. BCH argues that plaintiffs’ allegations are demonstrably false and that further amendment of the Complaint would futile. Although this Court must accept plaintiffs’ allegations as true, this Court does have some discretion to deny a request to amend a complaint, and does so here. See Rule 15(a), Mass.R.Civ.P.
Count 4 alleges among other things that the report that Condition 8 requires BCH to submit to the Department is inadequate; it also alleges that BCH has not complied with Condition 7 of the DoN that requires it to implement a plan to effectively communicate with community groups. Whether BCH is in violation of those conditions, however, is a matter that
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should first be addressed to the Department, which has both the expertise and the primary responsibility for enforcing its own regulations and orders. See Athol Mem’l Hospital v. Comm’r of Div. of Med. Assistance, 437 Mass. 417, 421-422 (2002). Other parts of Count 4 do not appear to belong in this case at all. For example, plaintiffs allege public records violations, but have already filed a separate public records action which this Court has already refused to consolidate with the instant one. See Murby v. Marylou Sudders, Civ. No., 17-1036H (Suffolk Superior Court). 2 A motion to amend may also be properly denied based on “undue delay, bad faith, or dilatory motive on the part of the movant.” Vakil v. Vakil, 450 Mass. 411, 417 (2008), quoting Castellucci v. United States Fid. & Gaur. Co., 372 Mass. 288, 290 (1977). BCH argues (not without basis) that the plaintiffs here are more interested in delay than in seeking redress for real (as opposed to illusory) legal violations. In short, taking into account both the procedural background of this case together with the violations that are alleged, there is ample basis for this Court to exercise its discretion to deny the motion.
CONCLUSION AND ORDER
For all the foregoing reasons together with reasons articulated in the Memoranda of BCH and the Department, the plaintiffs’ Motion to Amend the Complaint and their Motion for Judgment on the Pleadings are both DENIED. The defendants’ Cross Motion for Judgment on the Pleadings is ALLOWED and it is hereby ORDERED that judgment enter affirming the Department’s DoN determination. The parties shall submit a proposed form of judgment within 10 days of receiving this opinion.
_____________________________
Janet L. Sanders
Dated: October 13, 2017 Justice of the Superior Court
2 Based on plaintiffs’ Reply Memorandum, it appears that at least some of the information that plaintiffs sought was provided as of the date the Motion to Amend was filed, suggesting that at least some of the alleged violations are now moot or may soon become moot once the records are provided.
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Dated: October 13, 2017 read more

Posted by Stephen Sandberg - November 3, 2017 at 2:37 pm

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New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)

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-654                                        Appeals Court

NEW BEDFORD EDUCATORS ASSOCIATION  vs.  CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]).

No. 16-P-654.

Middlesex.     May 4, 2017. – August 23, 2017.

Present:  Trainor, Vuono, & Sullivan, JJ.

Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review.  Declaratory ReliefMandamusBoard of EducationCommonwealth, Education.  EducationSchool and School CommitteeLabor, Public employment. read more

Posted by Stephen Sandberg - August 23, 2017 at 2:33 pm

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Athanasiou, et al. v. Board of Selectmen of Westhampton, et al. (Lawyers Weekly No. 11-107-17)

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
15-P-894 Appeals Court
GEORGE ATHANASIOU & another1 vs. BOARD OF SELECTMEN OF WESTHAMPTON & another.2
No. 15-P-894.
Suffolk. January 12, 2017. – August 22, 2017.
Present: Vuono, Milkey, & Henry, JJ.
Adverse Possession and Prescription. Easement. Municipal Corporations, Adverse possession. Way. Real Property, Easement, Adverse possession. Practice, Civil, Summary judgment.
Civil action commenced in the Land Court Department on May 20, 2013.
The case was heard by Alexander H. Sands, III, J., on motions for summary judgment.
Harry L. Miles (Michael Pill also present) for the plaintiffs.
Janelle M. Austin for the defendants.
1 Louanne Athanasiou.
2 Town of Westhampton.
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VUONO, J. The issue in this case is whether the town of Westhampton (town) has acquired an easement by prescription over a triangular parcel of land (triangle) and an abutting roadway (way), together the “disputed area,” owned by the plaintiffs, Louanne and George Athanasiou. On cross motions for summary judgment,3 a Land Court judge determined that the public’s use of the way for a continuous period in excess of twenty years, coupled with the town’s maintenance of the disputed area to provide for such public use, was sufficient to establish a prescriptive easement over the disputed area for the benefit of the town and its inhabitants. The plaintiffs appeal.
Background. The following facts are not in dispute. The way is an unnamed, paved roadway that connects North Road and Southampton Road in the rural town. The roads merge at an intersection located at the tip of the triangle, and the way provides a convenient connection between the two roads (known in
3 The plaintiffs commenced this action by filing a complaint in the Land Court seeking, among other things, a declaration that they are the rightful fee title owners of the disputed area. The defendants counterclaimed, asserting that the town had acquired a prescriptive easement over the disputed area. The defendants subsequently filed a motion for summary judgment after which the plaintiffs cross-moved for summary judgment on the defendants’ counterclaim. Ultimately, summary judgment entered in favor of the plaintiffs on their claim of ownership and in favor of the defendants on their counterclaim. The defendants have not cross-appealed; therefore, the issue of ownership is not before us.
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common parlance as a “cut-through”). The way is wide enough to accommodate traffic in both directions and has been used by the public continuously for more than twenty years. The town, which does not maintain private roads, has maintained the way for public traffic during that time. Once in the early 1990s and again in or about 2005, town employees oiled and graveled the way. The town plows and sands the way approximately twenty times per year. It also patches potholes, clears fallen tree limbs, prunes trees, and collects brush obstructing the way.
The triangle is an open area of land abutted on its two sides by North Road and Southampton Road and, at its base, by the way. There was no evidence that members of the general public actively use the triangle. However, the town installed a drainage system on the triangle that allows water to drain from North Road, Southampton Road, and the way. The drainage system, which includes a swale located on the triangle,4 has been cleared and maintained by the town for more than twenty years. In addition, the town has mowed the grounds as needed,5 it has removed dead trees, and it has planted new trees in the
4 A “swale” is “an elongated depression in land that is at least seasonally wet or marshy, is usu[ally] heavily vegetated, and is normally without flowing water.” Webster’s Third New International Dictionary 2305 (2002).
5 Occasionally a neighboring farmer mows the grass.
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triangle. The town has not assessed taxes on any portion of the disputed area to the plaintiffs or to anyone else.
On the basis of these uncontroverted facts, the judge determined that the disputed area is subject to the town’s prescriptive rights. The judge further concluded that the easement is limited in scope, ruling that the town may
“only . . . make use of the [d]isputed [a]rea in the manner in which they have been used . . . ; the [t]own’s prescriptive rights shall not include the right to expand upon the roadway or to take actions that would result in an increase in vehicle traffic upon the [w]ay, or to make any other use of the [d]isputed [a]rea other than to maintain same in such a manner as will ensure road safety, for aesthetic purposes (i.e., mowing), and for purposes of drainage.”
Discussion. Summary judgment is appropriate where “all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). “In reviewing a grant of summary judgment, ‘we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.’” Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-371 (2015), quoting from Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016).
To acquire a prescriptive easement over “land located within its limits for a specific public purpose,” a municipality must demonstrate (1) “unexplained use for more than twenty years
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which is open, continuous, and notorious,” and (2) “proof sufficient to satisfy a trier of fact that the municipality has exercised dominion and control over the land in its corporate capacity through authorized acts of its employees, agents or representatives to conduct or maintain a public use thereon for the general benefit of its inhabitants.” Daley v. Swampscott, 11 Mass. App. Ct. 822, 827, 829 (1981).
The plaintiffs contend that summary judgment was improper because there is a dispute whether the public’s use of the disputed area for more than twenty years was sporadic or continuous. See id. at 827. Moreover, the plaintiffs contend, there is a genuine dispute whether the town’s maintenance of the disputed area was sufficient to establish “dominion and control” by corporate action.6 Id. at 829.
We agree with the judge’s determination that the town has acquired prescriptive rights over the disputed area. The defendants’ summary judgment materials establish that the town’s and the public’s “adverse use [of the disputed area was] continuous and uninterrupted for a twenty-year period.” White v. Hartigan, 464 Mass. 400, 417 (2013). Nothing in the record
6 The plaintiffs also argue that the judge’s holding constitutes a taking by the town for which they are entitled to compensation. We do not reach this issue because it was not before the judge, and because the claim is the subject of a separate action pending in the Superior Court.
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supports an inference that the town attempted to conceal its use and maintenance of the disputed area. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44 (2007). Rather, the facts establish that the plaintiffs and their predecessors in title had “actual knowledge of [the town’s and the public’s] adverse use of the property.” White, supra. The judge correctly concluded that the defendants had satisfied their burden of demonstrating the absence of a triable issue whether the town’s use of the disputed area was open, notorious, and “continued uninterruptedly for twenty years.” G. L. c. 187, § 2.7
We further conclude, as did the judge, that the undisputed facts are “sufficient to satisfy a trier of fact that [the town] has exercised dominion and control over the land in its corporate capacity through authorized acts of its employees . . . to conduct or maintain a public use thereon for the general benefit of its inhabitants.” Daley, supra. The deposition testimony of the town’s highway superintendent, David
7 The plaintiffs have offered no countervailing evidence to support the allegation that the town’s use of the disputed area was permissive. See Daley, supra at 827. In their answers to the defendants’ interrogatories, the plaintiffs did allege that Louanne’s aunt, Carolyn Fuller Coggins, “has a strong memory of her grandmother . . . telling her” that the triangle belonged to the family and that she had given “school kids” permission to play a special game on it. There is no affidavit from Coggins in the record and even the plaintiffs themselves refer to this incident as a “single instance of permissive use.” As such, this evidence is not sufficient to show that there is a genuine issue for trial. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).
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Blakesley, provides ample “proof that the municipality authorized its employees to conduct activities on the property.” Id. at 828. Blakesley testified that he has been employed by the town for twenty-seven years. He has witnessed the way being used by the public, he personally has maintained the disputed area, and he has both observed and ordered other town highway department employees to do the same. Blakesley and other employees have plowed, sanded, oiled, and graveled the way. They have patched potholes on the way, removed trees and fallen limbs from the triangle and the way, and cleared sediments from the swale on the triangle.
The case of Rivers v. Warwick, 37 Mass. App. Ct. 593, 596-597 (1994), upon which the plaintiffs rely, is distinguishable. We concluded in that case that evidence of occasional plowing, grading, and repairing by the town of roads by which the plaintiffs accessed their summer home was insufficient to establish that those roads were made public by prescription. Similarly, in McLaughlin v. Marblehead, 68 Mass. App. Ct. 490, 500 (2007), we concluded that the town had not satisfied its burden of showing corporate action where “[i]t performed no construction, maintenance, or work on [the disputed lane] during the requisite period.” Here, by contrast, members of this rural community have used the disputed area, and the town has
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maintained the area to provide for such use, continuously for more than twenty years.
The plaintiffs dispute some portions of Blakesley’s testimony. They claim that summary judgment is precluded in the absence of (1) a traffic study to demonstrate continuous, uninterrupted public use of the way, and (2) a town vote authorizing the expenditure of town funds to maintain the disputed area. We are not persuaded. The plaintiffs’ submissions contain no admissible evidence to rebut Blakesley’s testimony, and the absence of a traffic study or a town vote does not create a genuine issue for trial. In order to defeat summary judgment, the plaintiffs are required to “set forth specific facts showing that there is a genuine issue for trial.” Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). They have not done so, and summary judgment properly entered in favor of the defendants.
Judgment affirmed. read more

Posted by Stephen Sandberg - August 22, 2017 at 5:05 pm

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Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17)

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-12270

JAMES RIVA  vs.  MASSACHUSETTS PAROLE BOARD.

August 18, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Parole.  Practice, Criminal, Discovery.

The petitioner, James Riva, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.

Riva is currently serving a life sentence for second degree murder.  After the parole board (board) denied him parole in January, 2015, he filed a complaint in the Superior Court seeking certiorari review and a declaratory judgment in connection with claimed constitutional violations that occurred in the course of the proceedings before the board.  The board’s motion to dismiss the complaint was allowed as to the declaratory judgment claim but denied as to the certiorari claim.  Riva’s subsequently-filed motion to compel discovery was initially denied, but, on Riva’s motion for reconsideration, the motion judge indicated that the motion was allowed “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.”  Riva then filed a “motion for relief,” which also pertained to certain discovery.  After this motion was denied, Riva filed his G. L. c. 211, § 3, petition in the county court.  In the petition, he argued that his case could not proceed in the trial court without the requested discovery.  The single justice denied the petition without a hearing. read more

Posted by Stephen Sandberg - August 18, 2017 at 11:39 pm

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G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)

COMMONWEALTH OF MASSACHUSETTS

 

NORFOLK, ss.                                                                      SUPERIOR COURT

                                                                                                CIVIL ACTION

  1. 17-0882

 

 

G6 HOSPITALITY PROPERTY LLC

 

vs.

 

TOWN OF BRAINTREE BOARD OF HEALTH

 

MEMORANDUM OF DECISION AND ORDER
ON PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND MOTION FOR A PRELIMINARY INJUNCTION

In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1]  At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated. read more

Posted by Stephen Sandberg - August 18, 2017 at 5:46 am

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Gund, et al. v. Planning Board of Cambridge, et al. (Lawyers Weekly No. 11-091-17)

Posted by Stephen Sandberg - July 19, 2017 at 8:56 pm

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Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)

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-1158                                       Appeals Court

ESSEX REGIONAL RETIREMENT BOARD  vs.  JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2]

No. 16-P-1158.

Essex.     March 8, 2017. – July 12, 2017.

Present:  Grainger, Blake, & Neyman, JJ.[3]

Public Employment, Retirement, Forfeiture of pension.  Police, Retirement.  PensionConstitutional Law, Public employment, Excessive fines clause.  County, Retirement board.  Practice, Civil, Action in nature of certiorari.  District Court, Appeal to Superior Court. read more

Posted by Stephen Sandberg - July 12, 2017 at 8:47 pm

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Padmanabhan v. Board of Registration in Medicine, et al. (Lawyers Weekly No. 10-111-17)

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-12119

BHARANIDHARAN PADMANABHAN  vs.  BOARD OF REGISTRATION IN MEDICINE & another.[1]

June 27, 2017.

Board of Registration in MedicineAdministrative Law, Decision.

The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of the county court dismissing his petition for relief in the nature of certiorari pursuant to G. L. c. 249, § 4.  On May 18, 2017, we issued an order affirming the single justice’s judgment and indicated that this opinion would follow. read more

Posted by Stephen Sandberg - June 27, 2017 at 3:50 pm

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Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)

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-12182

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573  vs.  SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]).

Suffolk.     February 7, 2017. – June 23, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Sex OffenderSex Offender Registration and Community Notification ActInternet.

Civil action commenced in the Superior Court Department on November 21, 2014.

A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court. read more

Posted by Stephen Sandberg - June 23, 2017 at 3:15 pm

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Langan v. Board of Registration in Medicine (Lawyers Weekly No. 10-103-17)

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-12242

MICHAEL L. LANGAN  vs.  BOARD OF REGISTRATION IN MEDICINE.

June 13, 2017.

Board of Registration in MedicineDoctor, License to practice medicine.  Practice, Civil, Action in nature of certiorari.

Michael L. Langan appeals from a judgment of the county court denying his petition for relief in the nature of certiorari from a decision of the Board of Registration in Medicine (board).  We affirm.

Background.  Langan is a board-certified physician in geriatrics and internal medicine.  In 2008, after he had tested positive for various controlled substances, he and the board entered into a letter of agreement, under which he agreed to certain conditions in order to continue practicing medicine, including refraining from the use of alcohol and controlled substances without a prescription and submitting to substance use monitoring by Massachusetts Physician Health Services (PHS).  The letter of agreement provided that violating its terms would “constitute sufficient grounds for the immediate suspension of [Langan’s] license,” and that Langan had a right to an adjudicatory hearing as to any violation found by the board. read more

Posted by Stephen Sandberg - June 13, 2017 at 3:32 pm

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