Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑2010 Appeals Court BEVERLY PORT MARINA, INC. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex. September 12, 2013. ‑ December 11, 2013. Present: Green, Grainger, & Fecteau, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of regulation, Regulations. Regulation. Real Property, Littoral property, License. License. Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011. After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings. Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly. GREEN, J. Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application. See 310 Code Mass. Regs. § 9.36(5)(a) (1994). During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead. A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project. The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings. We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment. Background. The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront. The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan. See 301 Code Mass. Regs. […]
Categories: News Tags: 1114513, Beverly, Commissioner, department, Environmental, Inc., Lawyers, Marina, Port, Protection, Weekly
Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)
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 SJC‑11334 FRANKLIN OFFICE PARK REALTY CORP. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester. May 9, 2013. ‑ September 16, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review. Practice, Civil, Review of administrative action. Environment, Air pollution. Asbestos. Statute, Construction. Regulation. Words, “Wilful.” Civil action commenced in the Superior Court Department on March 22, 2011. The case was heard by John S. McCann, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff. DUFFLY, J. The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos. Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed. The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.” Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference. DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]
Categories: News Tags: 1017213, Commissioner, Corp., department, Environmental, Franklin, Lawyers, Office, Park, Protection, Realty, Weekly
Sears, Roebuck & Co., et al. v. Commissioner of Revenue (Lawyers Weekly No. 11-078-13)
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‑547 Appeals Court SEARS, ROEBUCK & CO. & another[1] vs. COMMISSIONER OF REVENUE. No. 12‑P‑547. Suffolk. January 17, 2013. ‑ June 19, 2013. Present: Cypher, Katzmann, & Rubin, JJ. Taxation, Sales tax. Debt. Appeal from a decision of the Appellate Tax Board. Michael J. Bowen for Sears, Roebuck & Co. Amy Spector, Assistant Attorney General, for Commissioner of Revenue. CYPHER, J. The plaintiff, Sears Roebuck & Co. (Sears), appeals from a decision of the Appellate Tax Board (board) denying its claims for reimbursement of sales taxes it remitted to the Commonwealth from purchases of its products by customers using a private label credit card issued by Citibank, N.A. (Citibank), and who later defaulted on their accounts with the bank. Facts. We summarize the background from the board’s findings based on the parties’ joint stipulation and their agreed statement of facts. Sears provided its customers the option of purchasing its products on credit with a private label credit card issued by Citibank. As a vendor registered with the Commissioner of Revenue (commissioner), Sears was required to collect and remit sales tax on tangible personal property to the Department of Revenue (department). G. L. c. 64H, § 2, as in effect prior to St. 2009, c. 27, § 53. Under its agreement with Sears, Citibank extended credit to the purchasers, and paid Sears the full retail price of the purchases, including the applicable sales tax. Obligated to remit the sales tax after the sale is completed, G. L. c. 64H, § 1, Sears subsequently remitted the sales tax for each sale to the department with its sales tax returns. When some of the purchasers defaulted on their accounts, Citibank wrote off those accounts after determining they were worthless. While Sears was unaffected by those losses, it nevertheless decided to seek reimbursement of the sales tax it had remitted to the department, pursuant to G. L. c. 64H, § 33, as in effect prior to St. 2008, c. 182, § 42, the so-called “bad debt statute.” Household Retail Servs., Inc. v. Commissioner of Rev., 448 Mass. 226, 227 (2007) (Household). Sears’s claims, filed with the commissioner in December, 2007, were denied. Sears then appealed the commissioner’s refusal to abate or refund the sales tax to the board pursuant to G. L. c. 62C, § 39. After a hearing, the board granted the commissioner’s motion […]
Chardin v. Police Commissioner of Boston, et al. (Lawyers Weekly No. 10-096-13)
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 SJC‑11196 MIRKO CHARDIN vs. POLICE COMMISSIONER OF BOSTON & another.[1] Suffolk. February 4, 2013. ‑ June 4, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. License. Constitutional Law, Right to bear arms. Delinquent Child. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 13, 2011. The case was reported by Spina, J. Edward F. George, Jr., for the plaintiff. Keith G. Langer for Commonwealth Second Amendment, Inc., amicus curiae. William W. Porter, Assistant Attorney General, for the intervener. Amanda E. Wall, for the defendant, was present but did not argue. SPINA, J. In this case, here on a reservation and report by a single justice of this court, we consider whether the Massachusetts firearms licensing statute, G. L. c. 140, § 131 (d) (i), infringes on Mirko Chardin’s right to keep and bear arms under the Second and Fourteenth Amendments to the United States Constitution because it precludes him from ever obtaining a license to carry firearms where, in 1995, he was adjudicated a delinquent child[2] after admitting to sufficient facts on a complaint charging him with one count of possession of a firearm without a license, and one count of unlawful possession of ammunition. We conclude that, consistent with the United States Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) (Heller), and McDonald v. Chicago, 130 S. Ct. 3020 (2010) (McDonald), the challenged statute does not infringe on a right protected by the Second Amendment.[3] 1. Statutory scheme. An individual who lawfully wants to carry a firearm[4] within the Commonwealth either must obtain a license to do so pursuant to G. L. c. 140, § 131, or be exempt from the statutory licensing requirements.[5] See, e.g., G. L. c. 140, §§ 129C, 131F, 131G. See also Commonwealth v. Seay, 376 Mass. 735, 739 (1978). “The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications.” Leduc v. Commonwealth, 421 Mass. 433, 435 (1995), cert. denied, 519 U.S. 827 (1996). In Massachusetts, there are two categories of licenses to carry firearms — Class A and Class B. See G. L. c. 140, § 131 (a) & (b). Each type of license may be issued by a “licensing authority,” […]
McCabe v. Commissioner of Correction (Lawyers Weekly No. 10-070-13)
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 SJC‑11365 JOHN McCABE vs. COMMISSIONER OF CORRECTION. April 29, 2013. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Practice, Civil, Transfer of action to Superior Court. In 1986, John McCabe was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person. Several years later, a Superior Court judge ordered that he be remanded to the custody of the Commissioner of Correction, subject to the terms of McCabe’s unexpired criminal sentences. More than twenty years later, McCabe filed an application in the county court seeking a declaration, pursuant to G. L. c. 231A, § 5, that he must be returned to the treatment center. The single justice ordered the matter transferred to the Superior Court, pursuant to G. L. c. 211, § 4A, and ordered that it be consolidated with another case that McCabe had commenced there that raised essentially the same issue. McCabe appeals from the order transferring his case to the Superior Court. We affirm. The decision to transfer a matter pursuant to G. L. c. 211, § 4A, between this court and another is a matter commended to the single justice’s discretion. See Stow v. Commonwealth, 423 Mass. 1002, 1002 (1996); Callahan v. Board of Bar Overseers, 417 Mass. 516, 519-520 (1994). McCabe fails to demonstrate any error or abuse of that discretion, and there is no occasion to disturb the single justice’s order transferring the case. McCabe’s rights are fully protected by his ability to litigate his claim in the Superior Court. We express no opinion on the merits of the claim. Judgment affirmed. The case was submitted on briefs. John McCabe, pro se. Michael H. Cohen for Commissioner of Correction. Full-text Opinions
Categories: News Tags: 1007013, Commissioner, Correction, Lawyers, McCabe, Weekly