Posts tagged "Town"

Caplan, et al. v. Town of Acton (Lawyers Weekly No. 10-038-18)

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12274

GEORGE CAPLAN & others[1]  vs.  TOWN OF ACTON.

Middlesex.     September 7, 2017. – March 9, 2018.

Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

Constitutional Law, “Anti-aid” amendment.  Massachusetts Community Preservation Act.  Historic Preservation.  Church.

Civil action commenced in the Superior Court Department on July 7, 2016.

A motion for a preliminary injunction was heard by Leila R. Kern, J.

The Supreme Judicial Court granted an application for direct appellate review. read more

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Posted by Massachusetts Legal Resources - March 10, 2018 at 4:09 am

Categories: News   Tags: , , , , ,

Board of Selectmen of the Town of Hull, et al. v. Healey (Lawyers Weekly No. 09-054-17)

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COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 15-00161
BOARD OF SELECTMEN OF THE TOWN OF HULL & THE TOWN MANAGER OF
THE TOWN OF HULL
vs.
MAURA HEALEY, ATTORNEY GENERAL
MEMORANDUM OF DECISION AND ORDER
ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
In this action, plaintiffs Board of Selectmen of the Board of Hull and the Board Manager
of the Board of Hull (collectively “the Board”) seek certiorari review under G. L. c. 249, §4, of a
decision made by defendant Attorney General, Maura Healey (“the Attorney General”) that the
Board violated Opening Meeting Law, G. L. c. 30A, §21(b)(3), by failing to publicly identify
unions in collective bargaining disputes and a claimant in a matter in civil litigation prior to
entering executive session to discuss strategy with respect to these matters.
Before the Court are cross-motions for judgment on the pleadings. The Board seeks an
order reversing the Attorney General’s decision and for declaratory relief, and the Attorney
General seeks affirmation of her determination.
In consideration of the parties’ memoranda of law and oral arguments, and for the
reasons that follow, the Board’s motion for judgment on the pleadings is ALLOWED, the
Attorney General’s cross-motion for judgment on the pleadings is DENIED, the Attorney
General’s order that the Board amend its minutes reflecting the meetings in dispute is
VACATED, and this matter is REMANDED to the Attorney General for further review
consistent with this decision. The Town’s motion for further declaratory relief is DENIED.
2
FACTS
Claims for judicial review of administrative agency proceedings are resolved through
motions for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Massachusetts
Superior Court Standing Order 1-96, §4. The Court’s “review shall be confined to the record.”
Id. at §5. “Such record ‘shall consist of … the entire proceedings.’” Id. at §2, quoting G. L. c.
30A, §14.
The record in this case, and the relevant law, show the following.
Plaintiff Board is a public body, and plaintiff Town Manager of the Town of Hull is the
Chief Administrative Officer of the Town of Hull. Defendant Maura Healey is the Attorney
General of the Commonwealth of Massachusetts.
The Open Meeting Law, G. L. c. 30A, §§18-25 (“OML”), requires that, “[e]xcept as
provided in section 21, all meetings of a public body shall be open to the public.” G.L. c. 30A,
§20(a). Section 21 of the OML allows “[a] public body [to] meet in executive session” for an
enumerated purpose, which includes “[t]o discuss strategy with respect to collective bargaining
or litigation if an open meeting may have a detrimental effect on the bargaining or litigating
position of the public body and the chair so declares.” G. L. c. 30A, §21(a)(3). To meet in such
an executive session, in addition to declaration from the chair, the public body must also satisfy
further conditions under §21(b), including that “before the executive session, the chair shall state
the purpose for the executive session, stating all subjects that may be revealed without
compromising the purpose for which the executive session was called.” G. L. c. 30A, §21(b)(3).
On July 15, 2014, the Board convened an open, public meeting in the Hull Municipal
Building. Following dialogue on a wide range of issues, the Board’s Chair moved to enter
executive session as follows:
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[The Chair] requested a Motion to move to Executive Session to discuss strategy with
respect to collective bargaining, and that I as Chair declare that an open meeting may
have a detrimental effect on the bargaining position of the body, and move into Executive
Session to discuss strategy with respect to litigation and that I, as Chair, declare that an
open meeting may have a detrimental effect on the litigating position of the body, to
comply with, or act under the authority of the Attorney-Client privilege and move to go
into Executive Session to consult with legal counsel or obtain legal advice pursuant to the
Attorney-Client Privilege and not be reconvening into open session.
Administrative Record (“AR”) 29.
The Board voted publicly and unanimously to enter into executive session. Prior to
entering into executive session, the Board identified the subjects it planned to discuss:
Collective Bargaining, Sewer Plant Claims, Property Damage Claims; Chairman said he
wanted to discuss a claim where a resident is threatening to sue the Board.
AR 30. The Board thereupon moved into executive session.
On July 19, 2014, Susan Ovans of The Hull Times filed a complaint (“Complaint’) with
the Board, alleging it had violated the OML by going into executive session as it did on July 15,
2014. Specifically, Ovans claimed that the Board violated the OML by failing to identify the
union or other entity with which it was bargaining, by going into executive session about
“‘potential litigation’ with an unnamed party,” and by routinely citing as a reason for executive
session that the Board’s doing so was “‘to comply with or act under the authority of attorneyclient
privilege’ … particularly as the board frequently does not say which specific matter will be
discussed.” AR 4-5.
By letter dated August 15, 2014, the Board, through counsel, responded to the Complaint
and contended that he Board’s motion to enter into executive session “complied precisely with
the requirements of the OML.” AR 10. As to Ovan’s complaint that the Chair was not more
specific about the matters to be addressed in executive session, the Board’s counsel asserted that
“the law does not require under these circumstances that the Board state the union whose
4
negotiations were being discussed. Similarly, the law does not require that details of the potential
suit be stated.” AR10. This was so, argued the Board’s counsel, because
the disclosure of which union negotiations the Board was discussing would
compromise the permitted executive session and union bargaining. For example,
were the Board to have identified the particular union or unions it was negotiating
with would in the Board’s judgment, and [in] my professional judgment, disclose
or lead to the disclosure of information about the collective bargaining strategy
and activities of the town leading to adverse consequences with those particular
bargaining efforts and other bargaining that the town engages in. For example, …
the disclosure of which unions the board is discussing the town’s bargaining
strategy may likely cause other unions … or interested parties to take certain
actions that while [such actions] may be beneficial to those unions or parties
would not necessarily be beneficial to the bargaining positions of the town.
As to the lawsuit, the Board’s counsel argued:
[t]he law, as noted above, permits the Chair to not disclose details of claims and
other legal matters if doing so would compromise the purpose of the executive
session. The matter in question related to property damage claims, a subject
which was disclosed by the Chair. I was aware of the subject matter details and
concur with the Chair’s judgment in not releasing further details. The Town is
negotiating with the involved parties and their legal counsel as well as taking
steps to protect the town’s interest and minimize or eliminate potential liabilities.
To have stated more details would in my professional judgment have adverse
consequences for the Town and likely, among other things, interfere and impede
the actions being taken by the Town to protect the public interest.
AR 10-11.
By letter dated August 25, 2014, Ovans requested that the Attorney General review the
Complaint and the Board’s response. In response, the Attorney General commenced an
investigation, during which the Attorney General and the Board engaged in several rounds of
exchanges about the meeting at issue in Ovans’ complaint.
On January 29, 2015, the Attorney General issued a written letter ruling in this matter. In
it, the Attorney General indicated that she had reviewed Ovans’ complaint filed with the Board,
the Board’s response, the complaint Ovans filed with the Attorney General’s office, “the notice
for, and open and executive session minutes of, the Board’s July 15, 2014, meeting,” and
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correspondence between the Board and the Attorney General between October 2014 and January
2015, including five emails sent from the Board to the Attorney General, two telephone
conversations, and one in person conversation. AR 36. Based on that review, the Attorney
General found the Board violated G. L. c. 30A, § 21(b)(3).
The Attorney General ruled that the Board properly entered into executive session to
discuss strategy with respect to collective bargaining and potential litigation pursuant to
§21(a)(3), but violated §21(b)(3) by “failing to publicly identify the collective bargaining unit
with which it was negotiating and failing to publicly identify one of the parties with whom it was
involved in litigation before entering into the executive session.” AR 36.
As to the collective bargaining issue, the Attorney General found that the Board “failed to
publicly state ‘all subjects that may be revealed without compromising the purpose for which the
executive session as called’” as required under §21(b)(3). While recognizing that under
§21(b)(3), “[a] public body may withhold the identity of the collective bargaining unit if publicly
disclosing it would compromise the purpose for which the executive session was called,” and
that the Attorney General “generally defer[s] to public bodies’ assessment of whether the
inclusion of such details would compromise the purpose of an executive session,” the Attorney
General still expected the public body to “be able to demonstrate a reasonable basis for that
claim if challenged.” AR 38. In response to the Board’s contention that such disclosure “might
have alerted other collective bargaining units to the pending agreement, thus providing those
collective bargaining units with the opportunity to interfere or use that information to advance
their own negotiations,” the Attorney General found that, while disclosure would cause “political
inconvenience, the Board did not offer any specific information to demonstrate that disclosure of
the identities of the collective bargaining units being discussed would have detrimentally
6
affected the Board’s negotiating position.” AR 38. The Attorney General thus concluded that,
“while the Board did not need to disclose any substance about its negotiating strategy or position,
it should have publicly identified which collective bargaining unit it was meeting to discuss.”
AR 38.1
As to the litigation, the Attorney General found that this was a proper subject for
executive session under the OML, that the statute permitted non-disclosure of the opposing party
if disclosure would compromise the purpose of the session, and that the Attorney General
generally deferred to the “public bodies’ assessment of whether the inclusion of such details
would compromise the purpose for an executive session [so long as it can] … demonstrate a
reasonable basis for that claim if challenged.” AR 39. The Attorney General further
acknowledged that the property owner in the dispute at issue had sent a demand letter to the
Board, and that “[t]he executive session was called so that the Board could confidentially discuss
its litigation strategy in response to threatened litigation” with its legal counsel. AR 39.
Nevertheless, the Attorney General concluded that:
[i]dentifying the claimant would, indeed, have alerted the claimant and other
interested parties to the fact that this matter was being discussed. However, we
find that is precisely what the law required. That publicly disclosing the identity
of the claimant could have encouraged others to come forward as claimants was
not detrimental to the Board’s litigation strategy, but rather was a consequence of
its status as a public entity. Similarly, that the claimant may have taken further
action in pursuit of the claim upon learning that the Board would be discussing
the matter in executive session was a consequence of the same status. We
therefore find that the minimal amount of information – the name of the claimant
– was required, because it would have notified interested parties that this matter
was being discussed behind closed doors and would not have compromised the
Board’s confidential discussion regarding its litigation strategy.
1 The Attorney General added that “[w]e do not find this violation was intentional, and we acknowledge that the
Board was acting on advice of counsel at the time.” AR 36. (g); see also G. L. c. 30A, §23(g) (“It shall be a defense
to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the
advice of the public body’s legal counsel”).
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AR 39.
Accordingly, and pursuant to §23(c), the Attorney General ordered the Board’s
“immediate and future compliance with the [OML]” and to “amend its July 15, 2014 open
session meeting minutes to include the identity of the collective bargaining units and the
litigation matter involving property damage that it discussed in executive session.” AR 40.
The Town filed the instant action, seeking certiorari review of the Attorney General’s
determination, contending that the Attorney General’s determination that the Board lacked a
reasonable basis for failing to publicly disclose the identities of the collective bargaining unions
and claimant is legally erroneous.
DISCUSSION
1. Applicable Standards
A public body aggrieved by an order issued by the Attorney General pursuant to §23 may
seek judicial review of the order through an action in the nature of certiorari under G. L. c. 249,
§4. See G. L. c. 30A, §23(d). In such circumstances, the Court’s review is limited to correcting
“substantial errors of law apparent on the record adversely affecting material rights.” See
Commissioner of Revenue v. Lawrence, 379 Mass. 205, 208 (1979); Police Comm’r of Boston v.
Robinson, 47 Mass. App. Ct. 767, 770 (1999); Flemings v. Contributory Ret. Appeal Bd., 431
Mass. 374, 375 (2000); Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344
(2012).
The standard of review to be applied under G. L. c. 249, §4, depends on “the nature of the
action sought to be reviewed.” Black Rose, Inc. v. City of Boston, 433 Mass. 501, 503 (2001),
quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 49 (1977). In this
instance, the Attorney General determined that the Board did not comply with the OML. The
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OML provides no fixed criteria by which the Attorney General is to make a determination as to
whether the statute has been violated; as such, the Attorney General’s determination is an
exercise of discretion. Under these circumstances, the Court reviews the Attorney General’s
decision under an arbitrary and capricious standard of review. See, e.g., Frawley v. Police
Comm’r of Cambridge, 473 Mass. 716, 728 (2016); Forsyth School for Dental Hygienists v.
Board of Registration in Dentistry, 404 Mass. 211, 217 (1989); T.D.J. Development Corp. v.
Conservation Comm’n of North Andover, 36 Mass. App. Ct. 124, 128 (1994). In applying the
arbitrary and capricious standard, the Court does not weigh evidence, find facts, exercise
discretion, or substitute its judgment for that of the administrative body, but rather determines if
the decision is legally erroneous or without factual support. FIC Homes of Blackstone, Inc. v.
Conservation Comm’n of Blackstone, 41 Mass. App. Ct. 681, 684-685 (1996).
The Attorney General has both a legislative mandate and substantive expertise under the
OML2 such that her judgments regarding the OML, including regarding the application of its
exceptions, are generally subject to deference by this Court where the statute is silent or
ambiguous. See Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass.
135, 141 (2009) (citations omitted) (“[i]n general, we give ‘substantial deference’ to an agency’s
interpretation of those statutes which it is charged with enforcing”); Goldberg v. Board of Health
of Granby, 444 Mass. 627, 633-34 (2005) (deference appropriate where statute is silent or
ambiguous); Biogen IDEC MA, Inc. v. Treasurer and Receiver General, 454 Mass. 174, 186–187
(2009) (same). The Court, however, is not bound by the Attorney General’s interpretation of the
OML. See, e.g., Massachusetts Organization of State Engrs. & Scientists v. Labor Relations
2 The Legislature specifically empowered the Attorney General with the authority to “interpret and enforce” the
OML, G. L. c. 30A, §23, to “promulgate rules and regulations” and “issue written letter rulings or advisory
opinions” under the statute, id., §25, and may issue written guidance to address common requests for interpretation.
940 Mass. Code Regs. §29.08.
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Comm’n., 389 Mass. 920, 924 (1983). Further, “where the statute’s meaning is clear and
unambiguous, we give effect to the Legislature’s expressed intent. An incorrect interpretation of
a statute by an administrative agency is not entitled to deference.” Providence & Worcester R.R.
Co., 453 Mass. at 141 (citations omitted). In such circumstances, the Court must follow the law,
even if doing so conflicts with an agency’s interpretation of it. See Ellis v. Department of
Industrial Accidents, 463 Mass. 541, 552 (2012), quoting Goldberg v. Board of Health of
Granby, 444 Mass. 627, 632–633 (2005).
2. Analysis
Pursuant to G. L. c. 30A, §21(a)(3), the Board was authorized to meet in executive
session “[t]o discuss strategy with respect to collective bargaining or litigation if an open
meeting may have a detrimental effect on the bargaining or litigating position of the public body
and the chair so declares.” Procedurally, before entering executive session, the chair was
required to “state the purpose for the executive session, stating all subjects that may be revealed
without compromising the purpose for which the executive session was called.” See G. L. c.
30A, §21(b)(3). In this instance, the Chair did state the purpose for and subject of the executive
session – strategy for the collective bargaining and litigation. There is no dispute that this
purpose and these subjects were within the scope of the §21(a)(3) exception. The issue posed in
this case is whether, under §21(b)(3) and these facts, the Chair was also required to publicly
identify the unions and the litigant concerning which it sought an executive session.
A. The Collective Bargaining Disclosure
The Board contends that the statute expressly permitted it to withhold the identity of the
union or unions involved in the collective bargaining disputes at issue if, in the Board’s
judgment, doing so would “compromis[e] the purpose for which the executive session was
10
called.” G. L. c. 30A, §21(b)(3). The Board reasoned that disclosure of the identity of the
unions would result in such compromise because it would likely cause “other unions or
interested parties to take certain actions” that would “not necessarily be beneficial to the
bargaining positions of the Board.” See Administrative Record Impounded Portion (“ARIP”) at
3.
The Attorney General does not appear to contest that the identity of the unions could be
withheld under the OML under appropriate circumstances. Instead, she argues that in this case,
the Chair was required to provide “specific information” to show that identifying the collective
bargaining entity would detrimentally impact the Board’s negotiating position, contending that
“the Board never explained to the Attorney General how identifying these specific unions would
adversely affect the particular bargaining efforts discussed at the July 15, 2014 meeting. Rather
it provided examples of how disclosure of the identity of a union with which the board was
negotiating might in general be adverse to bargaining efforts.” Brief at 6. In essence, the
Attorney General argues that the determinations of the Board and its counsel that the disclosure
of the identity of the unions is not enough under the statute, and that the Board had to adduce
specific details evidencing a specific detrimental impact on the Board’s negotiating position to
satisfy the requirements of the statute.
The Attorney General’s interpretation of the OML is not found in the statute and does not
fill in a silent or ambiguous provision in it. Instead, it imposes an additional requirement not
found in the statute.
The record shows – and it appears to be undisputed – that the Board adduced support for
its conclusion (and, not insignificantly, that of its counsel) that disclosure of the identity of the
collective bargaining units at issue “would compromise the permitted executive session and
11
union bargaining” and would likely cause “other unions or interested parties to take certain
actions” that would “not necessarily be beneficial to the bargaining positions of the Board.” See
ARIP at 3, 16. The Attorney General’s role was not to supplant the Board’s judgment but to
determine whether there was a reasonable basis for the Board to have reached the conclusion that
it did. Cf. Town of Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983) (where commission
was directed by statute to affirm an administrative action if it determined the action to be
justified, the “strong tendency” of the statutory language “indicate[s] that the question before the
commission was not whether it would have acted as the [agency] had acted, but whether, on the
facts found by the commission, there was reasonable justification for the action taken … in the
circumstances found by the commission to have existed” at the time of the decision). While
adducing specific facts to support its judgment was one way in which the Board could satisfy its
burden under the OML, the Attorney General erred by insisting that adducing such proof was the
only way it could do so. Thus, while the exceptions to the openness required by the OML
crafted by the Legislature must be “construed narrowly in keeping with the law’s overriding
purpose,” McCrea v. Flaherty, 71 Mass. App. Ct. 637, 641 (2008), and while the Attorney
General’s expertise regarding the OML is to be respected, neither the Attorney General nor the
Court may not “read into the statute a provision which the Legislature did not see fit to put there,
whether the omission came from inadvertence or of set purpose.” Provencal v. Commonwealth
Health Ins. Connector Auth., 456 Mass. 506, 516 (2010), quoting General Elec. Co. v.
Department of Envtl. Protection, 429 Mass. 798, 803 (1999); see also School Committee of
Wayland, 455 Mass. at 563, quoting McCrea, 71 Mass. App. Ct. 637, 640 (2008) (“the
Legislature has recognized that ‘not everything done by public officials and employees can or
should occur in a public meeting’”).
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This is not to discount the Attorney General’s view that a public body should adduce
specific facts of a detrimental impact in cases like these where such evidence is available.
Indeed, she points to letter rulings of hers which support that conclusion. But at argument in this
matter, the Board contended that the Attorney General did not make it clear at the outset of the
investigation in this matter that she was looking for such specific facts. In fact, the Board noted
that the Attorney General’s guidance on the OML in place at the time of the 2014 meeting at
issue3 specifically advised public entities that “the body is not required to demonstrate or specify
a definite harm that would have arisen” from non-disclosure such is at issue here.4 While, as
discussed above, such specific evidence is not required to satisfy the statute, it is certainly
relevant to whether the Board complied with the OML, and there is some doubt that the Board
presented all of the facts on this point.
Because the Attorney General misapplied the law, and because it is unclear whether the
record was fully developed in this case, the Court remands this matter to the Attorney General
pursuant to G.L. 30A, §14(7) for it to determine, pursuant to G.L. 30A, §23(c), whether there has
been a violation of the OML in light of this decision. In this regard, the Court rejects the Board’s
argument that a hearing is necessary; Section §23(c) of the OML permits the Attorney General to
resolve an OML complaint without a hearing unless it imposes a civil penalty. No hearing is
thus required if no civil penalty is assessed.5
3 See Attorney General’s Open Meeting Law Guide (2011), at 8, available at
http://archives.lib.state.ma.us/bitstream/handle/2452/113757/ocn769688330.pdf?sequence=1&isAllowed=y.
4 The parties cite to a subsequent version of this Guidance, but both agree it was not in effect at the time of the July
15, 2014 meeting. It is thus irrelevant here.
5 The Court does not reach the Board’s contention that at the meeting following the one in dispute, the Board openly
discussed details of the executive session with respect to one of the unions with which it was bargaining and that it
would disclose the identity of the other union once an agreement was finalized. ARIP at 4. Thus, even had the
Board violated the statute by improperly withholding the names of the unions, that violation may well have been
cured by the Board’s “independent deliberative action” taken at the subsequent meeting. See Pearson v. Bd. of
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B. The Litigation Disclosure
The Court reaches the same result regarding the Attorney General’s objections to the
Board’s declination to identify the litigant it wanted to discuss in executive session.
The Attorney General’s objections to the Board’s decision not to identify the litigant in
the matter it wanted to discuss in executive session are unfounded in the statute. The OML
specifically permitted the Board to withhold that information if doing so would preserve the
purpose of the executive session – to discuss litigation strategy. As the Board argues, part of that
strategic discussion was focused on avoiding further litigation from this or other parties and the
attendant costs to the Town. A fair reading of §21 shows that the Legislature did not intend to
deny public bodies the ability to engage in such strategic planning much like a private entity. Cf.
Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450–51 (attorney-client
privilege applies over communications between public agencies and their counsel because it
serves “the same salutary purposes in the public as in the private realm”). Under a given set of
the facts, confidentiality is often necessary to formulate such strategies, and may require the
public body to maintain in confidence the identity of the counterparty in such a dispute. The
OML does not prevent a public body from withholding from public disclosure the name of a
litigant if the facts warrant it doing so to preserve the purpose of the executive session in light of
adverse impacts that would otherwise result from such disclosure.6
Selectmen of Longmeadow, 49 Mass. App. Ct. 119, 125 (2000) (court found that subsequent notice at a public
meeting could cure any open meeting law violations of previous, improperly held executive session). The Court
leaves this issue for the Attorney General’s consideration on remand.
6 Under §21(a)(9), a public body is required to publicly identify the parties in any mediation in which the public
entity engages, but is not specifically required to make such disclosure when the public body wishes to go into
executive session to discuss litigation or collective bargaining strategy under §21(a)(3). This distinction makes
sense. The decision to mediate reflects a fully-formed strategy, and its public disclosure does not interfere with the
public body’s ability to defend itself. In contrast, the development of that strategy – including the decision whether
to mediate at all – requires confidential discussions which are often necessary.
14
The Attorney General’s determination that the Board was prohibited from considering the
damage to the Town that may result from public disclosure of the name of the litigant, and her
corollary finding that public disclosure of the identity of the claimant was required by the OML
even where such disclosure “could have encouraged others to come forward as claimants … [or
encourage] the claimant … [to] take[] further action in pursuit of the claim upon learning that the
Board would be discussing the matter in executive session,” undercuts the statutory exception
and, in fact, may render it meaningless. Indeed, the Attorney General’s own guidance did not
require as much; it merely reflected the OML’s requirement that a public body which otherwise
properly convenes in executive session under the litigation exception must show that “an open
meeting may have a detrimental effect on the litigating position of the public body.”7
Because the Attorney General misapplied the law in evaluating whether the Board
properly declined to disclose the identity of its litigation opponent, and because as noted above
there is some doubt that the record is not complete in this case, the Court remands this matter to
the Attorney General for review of the Board’s decision in light of this decision.
7 See Attorney General’s Open Meeting Law Guide (2011), at 8.
15
ORDER
The motion for judgment on the pleadings filed by plaintiffs Board of Selectmen of the
Board of Hull and the Board Manager of the Board of Hull is ALLOWED. The motion for
judgment on the pleadings filed by defendant Attorney General is DENIED. The Attorney
General’s order that the Board amend its minutes reflecting the meetings in dispute is
VACATED and this matter is REMANDED to the Attorney General for further review
consistent with this decision. Plaintiffs’ motion for further declaratory relief is DENIED.
SO ORDERED.
MICHAEL D. RICCIUTI
Justice of the Superior Court
Dated: December 14, 2017 read more

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Posted by Massachusetts Legal Resources - December 22, 2017 at 7:17 pm

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Town of Chelmsford, et al. v. Newport Materials, LLC, et al. (Lawyers Weekly No. 12-126-17)

COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 1681CV03455
TOWN OF CHELMSFORD1 & another2
vs.
NEWPORT MATERIALS, LLC & others3
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS NEWPORT
MATERIALS, LLC AND 540 GROTON ROAD, LLC’S MOTION TO DISMISS
The Town of Chelmsford (“Chelmsford”) and its fire chief, Gary Ryan (“Chief Ryan”),
bring this appeal pursuant to G. L. c. 40A, § 17, challenging a decision by the Town of Westford
(“Westford”) and the Westford Planning Board (the “Board”) granting defendants Newport
Materials, LLC and 540 Groton Road, LLC (collectively, the “Newport Parties”) special permits
for the construction and operation of an asphalt manufacturing plant (the “Project”) on a piece of
property located in Westford, near the Chelmsford line (the “Property”). The matter is now
before the court on the Newport Parties’ motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1)
based on the plaintiffs’ alleged lack of standing, as well as Mass. R. Civ. P. 12(b)(6). Because
the court agrees that the plaintiffs lack standing to bring this appeal, the Newport Parties’ motion
to dismiss is ALLOWED.4
1 By and through its Board of Selectmen
2 Gary Ryan, in his capacity as Chief of the Chelmsford Fire Department
3 540 Groton Road, LLC; Dennis J. Galvin, Mathew Lewin, Darrin Wizst, Michael J. Green, and
Kate Hollister, as members of the Westford Planning Board; and the Town of Westford, by and
through its Board of Selectmen
4 Because the court allows the motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction, the court does not reach the Newport Parties’ arguments that the
plaintiffs’ complaint must be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief may be granted.
BACKGROUND
The Newport Parties own the Property, which is located at 540 Groton Road, in
Westford, Massachusetts. The Property is an industrially-zoned, 115.52 acre lot. Ninety-two of
those acres are in Westford, while the remaining twenty-three are in Chelmsford. The location
of the proposed Project is entirely within the Westford portion of the Property. The Newport
Parties do not propose to alter any portion of the Property located in Chelmsford.
There is no allegation that Chelmsford itself owns land abutting the Property. The Property is
abutted on the west by the Fletcher Quarry, an active and operational quarry since the 1800s that
has no objection to the Project; on the south by Route 40; on the north by vacant industrial land;
and on the east by U.S. Route 3, industrial properties and a single residence located at 263
Groton Road in Chelmsford. None of the abutting industrial properties, nor the owner of the
single residence, is a party to any litigation involving the Project.
In 2009, the Newport Parties filed applications with the Board seeking the special permits
necessary to operate an asphalt manufacturing plant on the Property. Seven years of
administrative proceedings and litigation between the Newport Parties, Westford, and the Board
followed. The central issue in dispute was whether the Project qualified as “light
manufacturing” as defined by the Westford Zoning Bylaw (the `Bylaw”). 5 After the Board
denied their initial applications, the Newport Parties appealed to the Land Court, which
remanded the matter back to the Board. After further unfavorable proceedings before the Board
5 The Bylaw defines “light manufacturing” as: “fabrication, assembly, processing or packaging
operations employing only electric or other substantially noiseless and inoffensive motor power,
utilizing hand labor or quiet machinery and processes, but subject, however, to the following
conditions: any light manufacturing business, the conduct of which may be detrimental to the
health, safety or welfare of persons working in or living near the proposed location of such
manufacturing, including, without limiting the generality of the foregoing, special danger of fire
or explosion, pollution of waterways, corrosive or toxic fumes, gas, smoke, soot, dust or foul
odors and offensive noise and vibrations, is expressly prohibited.”
0)
and the Westford Zoning Board of Appeals, the Newport Parties appealed again to the Land
Court. This time, the Newport Parties, Westford, and the Board entered into mediation and were
able to reach a settlement. The settlement resolved the litigation and required the issuance of a
Special Permit for Major Commercial Project (“MCP special permit”), which the Board had
previously voted against, subject to numerous conditions. On September 27, 2016, the Newport
Parties, Westford, and the Board signed a settlement agreement and filed an Agreement for
Judgment with the Land Court that incorporated an MPC special permit for the proposed project
and the settlement agreement. The Land Court issued an Order Allowing the Agreement for
Judgment to Enter subject to certain modifications on October 24, 20156, and issued a Revised
Order which entered the Agreement for Judgment as originally filed by the parties on November
9, 2016. As required by the Revised Order, Westford filed the MCP special permit with the
Westford Town Clerk on November 14, 2016.
The MCP special permit states that the project will include “a hot mix asphalt (HMA)
drum mix plant, a hot oil heater, oil and asphalt storage tanks and a rock crushing plant.”
According to the MCP special permit, components of the asphalt plant operation will include,
among other things: four 200-ton silos (sixty-eight feet in height) that allow the hot asphalt to
load into trucks that pull underneath; a tank farm with two 30,000-gallon indirect fired asphalt
cement vertical tanks with unloading pumps (thirty-six feet in height); a HYCGO Gencor 100
hot oil heater with expansion tank stand; two 31,000-gallon fire cisterns; and one 10,000-gallon
above-ground storage tank for Number 2 fuel oil.
Condition 5 of the MCP special permit, entitled “Fire and Life Safety and Hazardous
Materials,” imposes twenty-one specific safety-related conditions on the Newport Parties.
Among other things, it requires the Newport Parties to provide: a foam cart on the Property
throughout the lifetime of the operation of the plant, for firefighting purposes; “OSHA’s
confined space training for the Westford and Chelmsford Fire Department staff on an annual
basis and … re-certification for Westford and Chelmsford employees as needed over the lifetime
of the asphalt plant’s operation;” “a detailed briefing to representatives of the Westford and
Chelmsford Fire Departments, as designated by the respective Fire Chiefs, with regard to spill
containment procedures;” and access for the Westford and Chelmsford fire chiefs to “conduct an
inspection of the plant on an annual basis” relating to such spill containment procedures. The
plaintiffs’ complaint alleges that neither Chelmsford nor its fire department was contacted by the
defendants regarding either the imposition of the condition requiring briefings on spill
containment procedures or the additional training. Condition 5 does not, however, unilaterally
impose obligations on the Chelmsford Fire Department (which was not a party the settlement) to
attend these trainings and briefings; it only imposes obligations on the Newport Parties to
“provide” them.
The plaintiffs allege that the Project is inherently dangerous and poses a risk of fire
because it will involve the use and storage of highly flammable and explosive materials, and that
Chelmsford may be called to provide emergency aid to Westford should a fire occur.
Chelmsford and Westford, along with sixteen other communities, are signatories to the District 6
Fire Chiefs Association Mutual Aid Agreement for Joint Fire, Rescue and Ambulance Service
(the “Mutual Aid Agreement”), dated July 1, 2008. While the plaintiffs’ complaint alleges that
the Mutual Aid Agreement “requires Chelmsford to provide support as needed” in emergencies,
the Mutual Aid Agreement itself is not so explicit. It does not specifically state the
circumstances under which Chelmsford would be called to assist Westford or whether
Chelmsford is the first of the seventeen other signatories to be called when Westford needs
4
assistance. The Mutual Aid Agreement provides that “[a]ssistance shall be rendered according to
the procedures set forth in the Operational Plan developed and agreed to by all parties to this
agreement,” but the Operational Plan is not included in the exhibits before the court and its terms
are not otherwise described in the pleadings. According to the complaint, mutual aid responses
by the Chelmsford Fire Department to Westford have increased significantly in the past two
years, with five responses in 2013, two in 2014, thirteen in 2015, and at least thirteen in 2016.
Although the allegations of the complaint are not entitled to a presumption of truth or even to be
viewed in the light most favorable to the plaintiffs (see infra), for purposes of this motion, the
court assumes that Chelmsford has provided assistance to Westford pursuant to the Mutual Aid
Agreement as described in the complaint and will continue to do so in the future.
DISCUSSION
A. Standard of Review
A motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) for lack of standing (or other
lack of subject matter jurisdiction) may be based solely on the facts alleged in the complaint or
on additional evidence submitted by the moving party. If the motion is not supported by
additional evidence, it “presents a `facial attack’ based solely on the allegations of the
complaint” and the court must assume the truth of those allegations for the purpose of deciding
whether it has subject matter jurisdiction to hear the plaintiffs claim. Callahan v. First
Congregational Church of Haverhill, 441 Mass. 699, 709 (2004), quoting Hiles v. Episcopal
Diocese of Massachusetts, 437 Mass. 505, 516 n.13 (2002). If, however, the moving party
submits “documents and other materials outside the pleadings” in an attempt to “contest the
accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff,” the
court must “address the merits of the jurisdictional claim by resolving the factual disputes
between the plaintiff and the defendants.” Id. at 710-711. Where the defendant makes such a
5
“factual challenge,” the factual allegations in the complaint are not presumed to be true, id. at
711, and the evidence submitted regarding subject matter jurisdiction is “not viewed in the light
most favorable to the non-moving party.” Wooten v. Crayton, 66 Mass. App. Ct. 187, 190 n.6
(2006).
Here, the defendants attach several exhibits to their motion, thus presenting a “factual
challenge” to the plaintiffs’ jurisdictional allegations. As a result, the allegations of the
complaint are not entitled to a presumption of truth and the evidence submitted in connection
with the motion need not be viewed in the light most favorable to the plaintiffs. In this case,
however, even if the court were to limit its analysis to the allegations of the complaint and
presume them to be true, the court would reach the same conclusion that the plaintiffs lack
standing to pursue their claims. 6
B. Standing under G. L. c. 40A, § 17
Standing is a jurisdictional prerequisite to proceeding with an appeal under G. L. c. 40A,
§ 17. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012).
A plaintiff may demonstrate standing in one of two ways: by establishing that they are a “person
aggrieved” by a decision of a zoning board of appeals or special permitting authority; or (2) by
demonstrating that they are a “municipal officer or board” with “duties relating to the building
code or zoning within the same town as the subject land. “7 G. L. c. 40A, § 17; Planning Bd. of
6 The plaintiffs’ reliance on Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), for the
proposition that, in defending the motion to dismiss, they need only show “factual allegations
enough to raise a right to relief above the speculative level,” is misplaced, as the Iannacchino
standard applies to motions brought pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a
claim, not motions brought pursuant to Mass. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction.
7 Because the plaintiffs do not own land either abutting the Property or directly across the street
from the Property, they are not entitled to a presumption that they are persons aggrieved. See
Marashlian, 421 Mass. at 721-722. See also G. L. c. 40A, § 11 (defining “parties in interest”
Marshfield v. ZoningBd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998). The plaintiffs
bear the burden of proving standing. 81 Spooner Road, LLC, 461 Mass. at 701, citing
Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34-35 (2006). For the reasons
explained below, the court concludes that the plaintiffs have no standing as either “person[s] aggrieved” or “municipal officer[s] or board[s]” under G. L. c. 40A, § 17.
C. Plaintiffs Are Not “Persons Aggrieved”
“A plaintiff is a `person aggrieved’ if he suffers some infringement of his legal rights.”
Marashlian v. Zoning 13d. of Appeals of Newburyport, 421 Mass. 719, 721 (1996), citing Circle
Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). “Of particular
importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that
the Zoning Act is intended to protect, either explicitly or implicitly.” 81 Spooner Road, LLC,
461 Mass. at 700. See Dwyer v. Gallo, 73 Mass. App. Ct. 292, 295 (2008) (“To succeed, the
[plaintiffs] must show that the zoning relief granted adversely affected them directly and that
their injury is related to a cognizable interest protected by the applicable zoning law. “). “[T]he
term `person aggrieved’ should not be read narrowly,” Marashlian, 421 Mass. at 721, but
“[a]ggrievement requires a showing of more than minimal or slightly appreciable harm.” Kenner
v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011). “The injury must be more
than speculative.” Marashlian, 421 Mass. at 721. “The adverse effect on a plaintiff must be
substantial enough to constitute actual aggrievement such that there can be no question that the
plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would
entitled to notice of public hearing under zoning law as including “owners of land directly
opposite [subject property] on any public or private street”).
7
choke the courts with litigation over myriad zoning board decisions where individual plaintiffs
have not been, objectively speaking, truly and measurably harmed.” Kenner, 459 Mass. at 122.
The plaintiffs contend they “have alleged harms to their legal interests relating to the
dangers inherent in the use and storage of the highly flammable and explosive materials that will
be used by the [Newport Parties] in the operation of the proposed asphalt plant.” They claim this
is an interest the Bylaw is intended to protect because the Bylaw states that the purpose of its
restriction of “light manufacturing” uses is to protect the “health, safety or welfare of persons
working in or living near the proposed location of such manufacturing.” The plaintiffs argue that
if there is a fire on the Property, the Chelmsford Fire Department may be called to assist pursuant
to the Mutual Aid Agreement, putting Chelmsford firefighters within the class of persons
working at the Property which the Bylaw intends to protect. They claim they have a legal
interest in protecting the health and safety of Chelmsford’s firefighters and that “[t]his legal
interest is directly tied to the interests the Bylaw seeks to protect.”
As evidence of the risk of fire, explosion and chemical contamination associated with the
Project, the plaintiffs point to several of the safety requirements imposed by the MCP special
permit, including that the Newport Parties must have a foam cart on the Property for firefighting
purposes, and must provide OSHA confined space training and briefings on spill containment
procedures to the Westford and Chelmsford fire departments. The fact that the MCP special
permit conditions address fire and contaminant risks posed to the Westford and Chelmsford fire
departments, they argue, is evidence that “such risk is inherent and obvious in the operation of an
asphalt manufacturing facility, and is not in any way speculative.”
The court disagrees, and concludes that the plaintiffs’ alleged harms to their legal
interests are too speculative and remote to qualify them as “aggrieved parties” with standing to
8
pursue an appeal under G. L. c. 40A, § 17. 8 See Sweenie v. A.L. Prime Energy Consultants, 451
Mass. 539, 545-546 (2008) (plaintiff abutters were not “persons aggrieved” with standing to
challenge gas station’s removal and replacement of underground storage tanks where alleged
aggrievement was based on “purely speculative” fear that removal of tanks could potentially
contaminate their drinking water wells); DaRosa v. Ackerman, 2011 WL 6210377 (Mass. Land
Ct. Dec. 5, 2011) (plaintiff abutters were not “persons aggrieved” with standing to challenge
defendants’ plan to build addition to home where plaintiffs’ concerns that building addition close
to plaintiffs’ home would pose greater risk of spreading hypothetical fire were “purely
speculative”); Brooks v. Board of Appeals of Chelmsford, 2010 WL 2681956, *5 (Mass. Land
Ct. July 7, 2010) (plaintiff abutters whose property was used for industrial purposes were not
“persons aggrieved” with standing to challenge zoning decision approving affordable residential
housing development where plaintiffs’ alleged “harms” that project’s residents would object to
ongoing industrial use on plaintiffs’ properties and generalized harms of public safety were
“speculative at best”); Bullen v. Velarde, 2009 WL 1843616 (Mass. Land Ct. June 29, 2009) .
(plaintiff neighbors were not “persons aggrieved” with standing to challenge neighbor’s
installation of septic system where argument that proposed septic tank might fail due to improper
use, overuse, or improper maintenance was too speculative). The fact that Chelmsford and
Westford are parties to a Mutual Aid Agreement that may result in Chelmsford assisting
Westford if there is a fire at the Project does not confer standing on Chelmsford to challenge
Westford’s decision to issue the MCP special permit and allow the Project to move forward. The
defendants have submitted as Exhibit 18 to their motion an affidavit from Thomas J. Klem, a fire
8 For purposes of this ruling, the court assumes, without deciding, that the plaintiffs have alleged
a right or interest G. L. c. 40A and the Bylaw are intended to protect.
6
protection engineer, in which Mr. Klem avers that the Project poses no special or unique danger
of fire or explosion, will meet or exceed Massachusetts code requirements, and will have
adequate fire protection. The plaintiffs, meanwhile, have failed to put forth evidence that the
Project poses a special risk of fire or contamination, pointing only to the MCP special permit
conditions specifically aimed at safety and fire prevention. The existence of these conditions
does not lead to the conclusion that the Project is inherently dangerous or poses a unique risk of
fire or.spill of contaminants. If anything, the myriad of conditions imposed by the MCP special
permit support the conclusion that the Project, as permitted, is as safe as any “light
manufacturing” use permitted by the Bylaw.
Even if the court accepted as true the plaintiffs’ allegations that the Project poses a
special risk of fire or contaminant spill, the plaintiffs would still lack standing. To grant the
plaintiffs standing on grounds that the Chelmsford Fire Department might have to provide
emergency aid to Westford if a fire occurs at the Project would impermissibly broaden and dilute
the meaning of “person aggrieved.” While the term “person aggrieved” is not to be construed
narrowly, Marashlian, 421 Mass. at 721, it must be construed in a way that requires a real,
nonspeculative injury, so as to avoid “chok[ing] the courts with litigation over myriad zoning
board decisions where individual plaintiffs have not been, objectively speaking, truly and
measurably harmed.” Kenner, 459 Mass. at 122. Sixteen other communities are signatories to
the Mutual Aid Agreement involved here and there are, presumably, many more such
agreements between other communities in the Commonwealth. See G. L. c. 48, § 59A
(permitting cities, towns and fire districts throughout Commonwealth to authorize their fire
departments to go to aid of other communities for extinguishing fires and rendering other
emergency assistance). To conclude that the plaintiffs have standing here would be to grant any
10
community that is a party to a mutual aid agreement the right to challenge another signatory
community’s decision to allow any number of potential uses within its borders, e.g., a large
wood-framed apartment building, that might catch fire and result in the need for support pursuant
to the mutual aid agreement. Such a result would be inconsistent with how Massachusetts court
have defined the term “person aggrieved.” See Kenner, 459 Mass. at 120-122; Marashlian, 421
Mass. at 721; Dwyer. 73 Mass. App. Ct. at 295.
D. Plaintiffs Do Not Have Standing as Municipal Officers or Boards
Section 17 of G. L. c. 40A grants standing only to municipal officers or boards “that have
duties relating to the building code or zoning within the same town as the subject land.”
Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998)
(“Marshfield”). Marshfield, which considered whether the planning board of one town had
standing to challenge a zoning decision regarding land in an adjacent town, is controlling. Id. at
702. In that case, Marshfield’s planning board sought to challenge a Pembroke zoning decision
allowing a cinema complex to be built along the main access route between Marshfield and the
principal highway. Id. at 700. Despite its observation that the project would “have a greater
impact on the health, safety, and general welfare of the inhabitants of Marshfield than on their
counterparts on Pembroke,” the Supreme Judicial Court held that Marshfield’s planning board
had no standing to challenge the decision. Id. The Court concluded that for a municipal officer
or board to have standing, it not only must have duties to perform in relation to the building code
or zoning, but those duties must relate to the same town as the land at issue. Id. at 703.
Observing that the Ҥ 17 grant of standing to municipal officers and boards is exceptional in that
it does not require any showing of injury to a legally protected interest,” the Court reasoned that
“the provision must be construed narrowly so as to minimize the class of parties who have
11
suffered no legal harm, yet `can compel the court to assume the difficult and delicate duty of
passing upon the validity of the acts of a coordinate branch of government.” Id. at 702, quoting
Ginther v. Commissioner of Ins., 427,Mass. 319, 322 (1998). As a result, the Court concluded
that the Legislature had not intended G. L. c. 40A, § 17 “to grant standing to the planning board
of one town to challenge a decision of another town’s zoning board.” Id.
Here, neither Chief Ryan nor Chelmsford’s Selectmen “have duties relating to the
building code or zoning within the same town as the subject land.” Id. at 703. The Mutual Aid
Agreement solely provides for fire departments to aid each other in extinguishing fires and
rendering other emergency assistance. It does not provide for a fire chief or department in one
community to have any rights or duties with respect to the building code or zoning in any of the
other signatory communities. If Marshfield’s planning board (the primary duties of which relate
to zoning) has no standing as a municipal board to challenge a neighboring town’s decision to
allow significant development along the main road between Marshfield and the highway, a fire
chief (whose primary duties are unrelated to zoning) cannot have standing as a municipal officer
to challenge the decision of Westford and the Board to allow the Newport Parties’ Project to go
forward. See id. Construing the statute narrowly, as Marshfield requires, compels the
conclusion that G. L. c. 40A, § 17’s grant of standing to municipal officers and boards does not
confer standing to the plaintiffs here to pursue the claims raised in their complaint.
ORDER
For the foregoing reasons, the Newport Parties’ motion to dismiss pursuant to Mass. R.
Civ. P. 12(b)(1) is ALLOWED.
Dated: September 6, 2017 Kathe M. Tuttman
Justice of the Superior Court
12 read more

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Posted by Massachusetts Legal Resources - September 8, 2017 at 8:32 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

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Posted by Massachusetts Legal Resources - August 18, 2017 at 5:46 am

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Hartman v. Town of Stoughton, et al. (Lawyers Weekly No. 12-108-17)

COMMONWEALTH OF MASSACHUSETTS

 

NORFOLK, ss.                                                                      SUPERIOR COURT

                                                                                                CIVIL ACTION

  1. 17-0880

 

MICHAEL J. HARTMAN

 

vs.

 

TOWN OF STOUGHTON, et al.

 

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

 

Plaintiff Michael J. Hartman brings suit against the Town of Stoughton and the members of its board of Selectmen (collectively, the “Town”), alleging that he was not validly terminated from his positon as Stoughton Town Manager and has been wrongfully prevented from performing his duties.  Before the Court is Hartman’s motion for a preliminary injunction, seeking to restrain and enjoin the Town from preventing Hartman from performing his duties as Town Manager unless and until he is dismissed from that position in accordance with Article 4, §C4-1, of the Town Charter. read more

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Posted by Massachusetts Legal Resources - August 17, 2017 at 7:01 pm

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AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, et al. (Lawyers Weekly No. 10-104-17)

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-12224

AIDS SUPPORT GROUP OF CAPE COD, INC.  vs.  TOWN OF BARNSTABLE & others.[1]

Barnstable.     February 14, 2017. – June 14, 2017.

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

Hypodermic Needle.

Civil action commenced in the Superior Court Department on November 10, 2015.

A motion for a preliminary injunction was heard by Raymond P. Veary, Jr., J., and the case was reported to the Appeals Court by Robert C. Rufo, J.

The Supreme Judicial Court granted an application for direct appellate review. read more

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Posted by Massachusetts Legal Resources - June 15, 2017 at 3:18 am

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Hanlon v. Town of Sheffield (Lawyers Weekly No. 11-052-16)

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-799                                        Appeals Court

JOHN R. HANLON, JR.  vs.  TOWN OF SHEFFIELD & others.[1]

No. 15-P-799.

Suffolk.     March 7, 2016. – May 13, 2016.

Present:  Kafker, C.J., Katzmann, & Grainger, JJ.

Zoning, Private airstrip, Validity of by-law or ordinance.  Statute, Construction.  Municipal Corporations, By-laws and ordinances.

Civil action commenced in the Land Court Department on March 21, 2012.

The case was heard by Howard P. Speicher, J., on a motion for summary judgment. read more

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Posted by Massachusetts Legal Resources - May 13, 2016 at 8:32 pm

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Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 10-052-16)

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-11885

MARIA A. KITRAS, trustee,[1] & others[2]  vs.  TOWN OF AQUINNAH & others.[3]

Suffolk.     December 8, 2015. – April 19, 2016.

Present:  Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.

Easement.  Necessity.  Real Property, Easement.  Law of the Case.

Civil action commenced in the Land Court Department on May 20, 1997.

After review by the Appeals Court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J.

After further review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. read more

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Posted by Massachusetts Legal Resources - April 19, 2016 at 4:56 pm

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Malloch v. Town of Hanover, et al. (Lawyers Weekly No. 10-163-15)

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-11713

KRISTIN MALLOCH  vs.  TOWN OF HANOVER & others.[1]

Suffolk.     January 5, 2015. – September 24, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Civil Service, Decision of Civil Service Commission, Eligibility list, Judicial review, Police, Promotion.  Police, Promotional examination.  Administrative Law, Agency’s interpretation of statute, Decision, Findings, Judicial review, Agency’s authority, Substantial evidence.  Practice, Civil, Review respecting civil service. read more

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Posted by Massachusetts Legal Resources - September 24, 2015 at 5:56 pm

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Sherman v. Town of Randolph, et al. (Lawyers Weekly No. 10-164-15)

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-11711

SCOTT SHERMAN  vs.  TOWN OF RANDOLPH & others.[1]

Suffolk.     January 5, 2015. – September 24, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Civil Service, Decision of Civil Service Commission, Eligibility list, Findings by commission, Judicial review, Police, Promotion.  Police, Promotional examination.  Administrative Law, Decision, Findings, Judicial review.  Practice, Civil, Review respecting civil service.

Civil action commenced in the Superior Court Department on May 18, 2012. read more

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Posted by Massachusetts Legal Resources - September 24, 2015 at 2:22 pm

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