King v. Shank, et al (and a companion case) (Lawyers Weekly No. 11-026-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 17-P-809 Appeals Court 17-P-1096 CINDY KING vs. JOSEPH Z. SHANK & others[1] (and a companion case[2]). Nos. 17-P-809 & 17-P-1096. Suffolk. November 1, 2017. – March 2, 2018. Present: Milkey, Blake, & Singh, JJ. Municipal Corporations, Removal of public officer, Selectmen. Elections, Recall. Practice, Civil, Preliminary injunction. Appeals Court, Appeal from order of single justice. Injunction. Civil action commenced in the Superior Court Department on March 24, 2017. A motion for a preliminary injunction was heard by John T. Lu, J. A proceeding for interlocutory review was heard in the Appeals Court by Green, J. Civil action commenced in the Superior Court Department on June 9, 2017. A motion for a preliminary injunction was heard by Gary V. Inge, J. Ira H. Zaleznik (Benjamin W. O’Grady also present) for the defendants. John M. Dombrowski for Cindy King. SINGH, J. In February, 2017, the defendants, ten residents of the town of Townsend (town), petitioned to remove Cindy King and Gordon Clark from their positions as members of the town board of selectmen (board) by way of recall petitions. The town board of registrars found the petitions to be in order, and the board scheduled a recall election for June, 2017. King filed a complaint in Superior Court seeking a declaratory judgment that the recall petition was invalid and a preliminary injunction enjoining the recall election. After a judge of the Superior Court denied the motion for a preliminary injunction, King filed a petition for interlocutory relief pursuant to G. L. c. 231, § 118, first par. A single justice of this court issued the preliminary injunction enjoining the recall election as to King. Clark then filed a parallel action in the Superior Court, citing the single justice’s order in the King litigation. A different Superior Court judge allowed Clark’s motion and issued a preliminary injunction enjoining the recall election as to Clark. The defendants appeal the preliminary injunctions issued by the single justice in King’s case and the Superior Court judge in Clark’s case. Both appeals are brought pursuant to G. L. c. 231, § 118, second par. The town’s recall election remains stayed pending this appeal. We reverse. Standard of review. “We review the grant or denial of a preliminary injunction for abuse of discretion.” Eaton v. Federal […]
Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)
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-1366 Appeals Court AQUA KING FISHERY, LLC vs. CONSERVATION COMMISSION OF PROVINCETOWN. No. 16-P-1366. Barnstable. April 13, 2017. – June 16, 2017. Present: Kafker, C.J., Grainger, & Kinder, JJ. Shellfish. Municipal Corporations, By-laws and ordinances, Conservation commission, Shellfish. Wetlands Protection Act. Fisheries. Civil action commenced in the Superior Court Department on February 13, 2015. Motions for judgment on the pleadings and a special motion to dismiss counterclaims were heard by Gary A Nickerson, J. Stephen M. Ouellette for the plaintiff. Gregg J. Corbo for the defendant. GRAINGER, J. Aqua King Fishery, LLC (Aqua King), the owner of the commercial fishing vessel Sentinel, appeals from a judgment of the Superior Court entered pursuant to an order denying, in part, its motion for judgment on the pleadings. At issue is Aqua King’s failure to obtain a permit from the conservation commission of Provincetown (commission) for the use of hydraulic dredge fishing gear in its commercial sea clam fishing operation on areas of the ocean floor near Provincetown’s shore. Aqua King contends that the activity at issue is controlled by the Division of Marine Fisheries (DMF) and is thus exempt from municipal and other State regulations. Aqua King consequently sought to reverse the enforcement order issued by the commission.[1] Aqua King also appeals from the judge’s partial allowance of the commission’s cross motion for judgment on the pleadings with respect to its counterclaim based on an asserted violation of § 40 of the Wetlands Protection Act, G. L. c. 131 (WPA).[2] In its cross appeal, the commission, Provincetown’s local authority enforcing the WPA and regulations of the Department of Environmental Protection (DEP), appeals from the judge’s rulings that (1) denied its motion for judgment on the pleadings insofar as he concluded that article 8 of the Provincetown wetlands by-law was unenforceable, and (2) denied its request for imposition of a $ 25,000 fine, the maximum penalty allowed under the WPA. We address the judge’s rulings in the context of the limited scope of judicial review applicable to an agency decision challenged, as is the case here, by a petition for certiorari pursuant to G. L. c. 249, § 4.[3] Judicial review of an agency decision in the nature of certiorari “allows a court to ‘correct only a substantial error of law, […]
Categories: News Tags: 1108117, Aqua, Commission, Conservation, Fishery, king, Lawyers, Provincetown, Weekly
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