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City of Springfield v. Civil Service Commission, et al. (Lawyers Weekly No. 10-142-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11540 CITY OF SPRINGFIELD vs. CIVIL SERVICE COMMISSION & another.[1] Hampden. April 8, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Civil Service, Provisional promotion, Termination of employment, Notice. Labor, Civil service. Employment, Termination. Jurisdiction, Civil Service Commission. Administrative Law, Evidence. Notice, Termination of employment, Administrative hearing. Waiver. Civil action commenced in the Superior Court Department on July 29, 2010. The case was heard by Bertha D. Josephson, J. on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maurice M. Cahillane, Jr. (William E. Mahoney with him) for city of Springfield. Andrew M. Batchelor, Assistant Attorney General, for Civil Service Commission. Bart W. Heemskerk for Joseph McDowell. BOTSFORD, J. Joseph McDowell was hired by the city of Springfield (city) in 1987 as a skilled laborer, and soon thereafter achieved the status of a permanent, tenured civil service employee of the city. In 1993, he received the first of two provisional promotions;[3] he worked in the second of these provisional positions until 2005, when the city terminated his employment. One issue we consider in this appeal is whether, despite being terminated from his provisional position, McDowell was entitled to appeal his termination pursuant to the relevant provisions of the civil service statute, G. L. c. 31, §§ 41–45; agreeing with the Civil Service Commission (commission), we conclude that he was. We also consider whether the commission, in deciding McDowell’s appeal, permissibly could consider that subsequent to the city’s discharge of McDowell, he had been indicted and then pleaded guilty to the crime of filing false tax returns. We decide that in the particular circumstances of this case, the commission was permitted to take the criminal proceeding against McDowell and its disposition into account, but that McDowell’s indictment for filing false tax returns did not qualify as an indictment “for misconduct in [McDowell’s] . . . employment” within the meaning of G. L. c. 268A, § 25, and thus a suspension based on the indictment would not have been valid. 1. Background. McDowell began working as a skilled laborer for the city in 1987. In 1989, he was promoted to the position of carpenter within the city’s civil service system. After completing his probationary period, McDowell […]

Alford, et al. v. Boston Zoning Commission, et al. (Lawyers Weekly No. 11-124-13)

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 12‑P‑1579 Appeals Court MARK ALFORD & others[1] vs. BOSTON ZONING COMMISSION & others.[2] No. 12‑P‑1579. Suffolk. May 8, 2013. ‑ October 9, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Boston. Zoning, Amendment of by‑law or ordinance, Appeal, Educational use, Hearing, Judicial review. Quasi‑Judicial Tribunal. Administrative Law, Adjudicatory proceeding, Conflict of interest, Hearing. Practice, Civil, Zoning appeal. Constitutional Law, Right to hearing. Civil action commenced in the Superior Court Department on July 9, 2009. The case was heard by Frances A. McIntyre, J., on a motion for summary judgment. Orestes G. Brown for the plaintiffs. Michael K. Murray for Trustees of Boston College. Adam Cederbaum for Boston Zoning Commission. Denise A. Chicoine for Boston Redevelopment Authority. CARHART, J. The plaintiffs, who own property that abuts property owned by Boston College, appeal from summary judgment entered by a Superior Court judge, who determined that art. 29 of the Massachusetts Declaration of Rights does not apply to review and approval by the Boston zoning commission and the Boston Redevelopment Authority of Boston College’s Institutional Master Plan. The judge also ruled that the approval of the Institutional Master Plan was not arbitrary or capricious, and that the plaintiffs’ request to defer summary judgment pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), was without merit. We affirm. Background. In the spring of 2003, Boston College (BC) embarked on a strategic planning process to redevelop its Chestnut Hill and Brighton campuses. In November, 2003, the Catholic Archdiocese of Boston announced its intention to sell sixty-five acres of property located in Brighton. In May, 2004, BC purchased approximately forty-three of those acres and, in subsequent transactions in 2006 and 2007, purchased the remaining acreage. After BC finalized the purchases, it hired a campus architecture and planning firm to help develop a long-term comprehensive campus plan. Among BC’s main institutional objectives were to develop more “academic, residential and co-curricular facilities.” The plan was projected to cost $ 1.6 billion and span ten years. Under art. 80D of the Boston zoning code (art. 80D), when educational or health care institutions with more than 150,000 square feet seek to expand by more than 20,000 gross square feet, they must file for review an Institutional Master Plan (IMP) with the Boston Redevelopment Authority (BRA). See Bobrowski, Massachusetts […]

Kelley, et al. v. Cambridge Historical Commission, et al. (Lawyers Weekly No. 11-105-13)

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 12‑P‑1309 Appeals Court JACQUELINE KELLEY & others[1] vs. CAMBRIDGE HISTORICAL COMMISSION & others.[2] No. 12‑P‑1309. Middlesex. May 2, 2013. ‑ August 21, 2013. Present: Milkey, Carhart, & Sullivan, JJ. Historic Preservation. Massachusetts Historical Commission. Real Property, Restrictions. Practice, Civil, Motion to dismiss, Complaint, Standing. Administrative Law, Judicial review, Standing. Contract, Third party beneficiary. Civil action commenced in the Superior Court Department on June 13, 2011. Motions to dismiss were heard by Bruce R. Henry, J. Elaine M. Callahan for David Vogel, Peter Fifield, & James J. Carr, Jr. David T. DeCelles for Jacqueline Kelley. Timothy J. Roskelley for Oak Tree Development, LLC & Episcopal Diocese of Massachusetts. Arthur J. Goldberg, Deputy City Solicitor, for Cambridge Historical Commission. Annapurna Balakrishna, Assistant Attorney General, for Massachusetts Historical Commission. MILKEY, J. The St. James Episcopal church sits at the intersection of Massachusetts Avenue and Beech Street in North Cambridge. Built in 1888, the church was designed by noted New York architect Henry M. Congdon in a style that has come to be known as “Romanesque revival.” Since 1983, the church has been listed on the National Register of Historic Places, and all parties to this litigation recognize that it has significant historic value. Also at the site are a parish hall that predates the church by four years, and a small park known as “Knights garden” that was designed in 1915 by noted landscape architect John Nolen. The church property is owned by the St. James Parish (parish), which is part of the Episcopal Diocese of Massachusetts. In conjunction with a private developer, the parish has proposed a four-story, mixed-use development at the church site and on an adjacent parcel that the developer owns. Under the proposal, the church itself would remain but the parish hall and Knights garden — at least in the garden’s current form — would not. The plaintiffs are four nearby residents who allege that various historic preservation laws prevent the project from going forward as proposed. Ruling that their amended complaint failed as a matter of law, a Superior Court judge allowed the defendants’ motions to dismiss. We affirm the judgment, albeit on somewhat different grounds than those stated by the judge below. Background. The 1987 Massachusetts Historical Commission preservation restriction. In 1987, the parish granted defendant […]