Doe, Sex Offender Registry Board No. 203108 v. Sex Offender Registry Board
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-848 Appeals Court JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 203108 vs. SEX OFFENDER REGISTRY BOARD. No. 13-P-848. January 29, 2016. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Hearing, Standard of proof. Practice, Civil, Sex offender, Standard of proof. Administrative Law, Hearing, Standard of proof. Internet. In our decision dated May 5, 2015, we affirmed a judgment of the Superior Court issued under G. L. c. 30A, § 14, affirming the administrative decision of the Sex Offender Registry Board (board) designating Doe No. 203108 (Doe) as a level three sex offender. See Doe, Sex Offender Registry Bd. No. 203108 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 313 (2015) (Doe No. 203108). Doe timely filed a petition for further appellate review (FAR) on May 18, 2015. On December 22, 2015, the Supreme Judicial Court denied Doe’s FAR application without prejudice and remanded the case to this court for further consideration in light of two recent decisions, Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475 (2015) (Doe No. 7083), and Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492 (2015) (Doe No. 3839). 473 Mass. 1106 (2015). Although we conclude that neither of those decisions requires us to alter our decision in Doe No. 203108, Doe is nonetheless entitled to a new classification hearing in light of Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297 (2015) (Doe No. 380316). In this case, Doe’s classification hearing was held twenty months before his eventual release date, but just seven months before his earliest possible release date. (He had recently been denied parole, but the parole board offered him an opportunity to request reconsideration ninety days after the denial). Unlike the plaintiff in Doe No. 7083, at the time of his classification hearing Doe was not also civilly committed as a sexually dangerous person (SDP), making release on parole unlikely because of the need to obtain a Superior Court order of discharge. See Doe No. 7083, supra at 487 & n.11. Moreover, unlike the plaintiff in Doe No. 7083, Doe did not request a further continuance of his classification hearing date or ask the board to keep his classification proceeding open […]
Commonwealth v. Laguer (Lawyers Weekly No. 11-011-16)
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 12-P-1785 Appeals Court COMMONWEALTH vs. BENJAMIN LAGUER. No. 12-P-1785. Worcester. November 18, 2015. – January 29, 2016. Present: Cohen, Grainger, & Wolohojian, JJ. Practice, Criminal, New trial. Deoxyribonucleic Acid. Indictments found and returned in the Superior Court Department on August 4, 1983. A motion for a new trial, filed on April 28, 2011, was heard by Richard T. Tucker, J. John H. LaChance for the defendant. Sandra L. Hautanen, Assistant District Attorney, for the Commonwealth. GRAINGER, J. On January 30, 1984, Benjamin Laguer was convicted by a jury in Superior Court of unarmed robbery, breaking and entering in the nighttime with intent to commit a felony, assault and battery, and aggravated rape.[1] On appeal from a denial of the latest in a long series of motions[2] for a new trial, the defendant argues that the motion judge erred in finding that certain evidence, specifically testimony from the victim’s caretaker and deoxyribonucleic acid (DNA) test results, did not warrant a new trial, and that he also erred in concurrently allowing the Commonwealth’s motion to dismiss the defendant’s latest motion for a new trial due to fraud on the court. As was the case in previous motions considered in the Superior Court, then reviewed by this court and by the Supreme Judicial Court, the credibility of the defendant as well as that of the witnesses and the evidence presented on his behalf is central to the result. Accordingly we review the motion judge’s recitation of findings, as well as the protracted history of this case, with emphasis on the degree of trustworthiness underlying the evidence proffered to support the defendant’s claim “that justice may not have been done.” Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Background. The trial. The jury found that the defendant broke into the apartment of a fifty-nine year old woman, brutally assaulted her, and raped her over an eight-hour period. In so doing the jury rejected a defense of misidentification. The identification evidence at trial was that the victim initially told the police she was unable to identify the perpetrator, only describing him as a short black male. The following day, however, she told the police that her assailant was the defendant, who lived in the next door apartment.[3] She also identified the defendant from a photograph […]
Commonwealth v. Mitchell (and two companion cases) (Lawyers Weekly No. 11-010-16)
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 12-P-719 Appeals Court COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases[1]). No. 12-P-719. Suffolk. September 10, 2015. – January 28, 2016. Present: Green, Rubin, & Hanlon, JJ. Homicide. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Sentence, Severance, Confrontation of witnesses, Argument by prosecutor, Instructions to jury. Evidence, Voluntariness of statement, Statement of codefendant, Verbal completeness, Relevancy and materiality, Knife, Bias. Constitutional Law, Admissions and confessions, Voluntariness of statement, Sentence, Confrontation of witnesses. Indictments found and returned in the Superior Court Department on April 18, 2008. Pretrial motions to suppress evidence and to sever were heard by Charles J. Hely, J.; the cases were tried before Judith Fabricant, J., and a motion for a postconviction evidentiary hearing, filed on December 3, 2012, was heard by her. Richard L. Goldman for Terrance Pabon. Richard B. Klibaner for Pedro Ortiz. Jeanne M. Kempthorne for Markeese Mitchell. Amanda Teo, Assistant District Attorney (Mark A. Hallal, Assistant District Attorney, with her) for the Commonwealth. HANLON, J. After a jury trial, the defendants, Markeese Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of murder in the second degree in connection with the stabbing death of Terrance Jacobs. Paul Goode also was indicted, tried with the defendants, and convicted of murder in the second degree. Goode’s direct appeal originally was consolidated with the others; however, by motion and pursuant to an order of this court, Goode’s appeal was severed. Goode’s statement to the police was admitted at trial and is the predicate for one of thedefendants’ common claims of error, under Bruton v. United States, 391 U.S. 123, 135-137 (1968). Pabon and Mitchell claim error in the denial of their respective motions to suppress their statements to the police. They also contend that, because they were between the ages of fourteen and seventeen when the crime occurred, they ought to have been afforded individualized sentencing, in light of Miller v. Alabama, 132 S. Ct. 2455 (2012), and Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013). In addition, some or all of the defendants claim error in the admission of Pabon’s statement to the police; certain evidentiary rulings at trial; certain remarks made by the prosecutor in closing argument; the denial of their request for a jury instruction on withdrawal from […]
Hoegen v. Hoegen (Lawyers Weekly No. 11-009-16)
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 14-P-1491 Appeals Court PATRICK J. HOEGEN vs. CHRISTINE M. HOEGEN. No. 14-P-1491. Worcester. October 21, 2015. – January 22, 2016. Present: Green, Hanlon, & Massing, JJ. Divorce and Separation, Child support, Modification of judgment, Separation agreement, Findings, Attorney’s fees. Parent and Child, Child support. Waiver. Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on March 17, 2010. An amended complaint for modification, filed on May 23, 2013, was heard by Joseph Lian, Jr., J. Warren M. Yanoff for Christine M. Hoegen. Penelope A. Kathiwala (Barbara A. Cunningham with her) for Patrick J. Hoegen. HANLON, J. The defendant, Christine M. Hoegen (mother), appeals from a modification judgment of the Probate and Family Court which held that her former husband, Patrick J. Hoegen (father), was not obligated to include income realized from vested restricted stock units (RSU) in the calculation of child support for the parties’ minor children.[1] We reverse. Background. The parties were divorced by a judgment of divorce nisi, incorporating by reference a separation agreement, which survived as an independent contract, except as to matters relating to the children.[2] Under the agreement, the father’s child support obligation was $ 1,020 biweekly,[3] which the parties agreed was higher than the presumptive amount of support under the Massachusetts Child Support Guidelines at that time. The agreement also required that the parties “confer on April 1st of each year to evaluate whether the child support should be adjusted.”[4] Exhibit D to the agreement (captioned “Pension/Retirement Funds, Etc.”) explicitly stated that the mother “acknowledges that she is aware that the [father] does participate in a stock plan through his employment; the [mother] waives all rights, title and interests in these accounts.” On February 5, 2013, the father filed a complaint for modification, seeking to define more fully the shared parenting schedule, that is, to provide more specificity about weekday, holiday, and vacation schedules along with related transportation, and also to incorporate language regarding relocation of the children outside of Massachusetts; he also sought to extend the review of his child support obligation from every year to every three years. The father amended his complaint on May 23, 2013, requesting not only the original relief, but also that he be granted the tax exemption for both children. On June 27, […]
Charbonneau v. Presiding Justice of the Holyoke Division of the District Court Department (Lawyers Weekly No. 10-009-16)
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-11908 JOSHUA CHARBONNEAU vs. PRESIDING JUSTICE OF THE HOLYOKE DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. October 8, 2015. – January 22, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Supreme Judicial Court, Superintendence of inferior courts. District Court. Practice, Criminal, Plea. Statute, Construction. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 13, 2015. The case was reported by Botsford, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, with him) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendant. William C. Newman, Chauncey B. Wood, & Joseph N. Schneiderman, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. HINES, J. In this appeal, we determine whether a standing order of the Holyoke Division of the District Court Department (Holyoke District Court), prohibiting the tender of a so-called “defendant-capped” plea on the day of trial, contravenes the guilty plea procedure mandated in G. L. c. 278, § 18, and Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004). Joshua Charbonneau, who stands charged in the Holyoke District Court with larceny over $ 250, challenges the standing order on statutory and constitutional grounds. He contends that the standing order violates his right to tender a defendant-capped plea at any time prior to trial because neither G. L. c. 278, § 18, nor Mass. R. Crim. P. 12 imposes a time limit on such tenders. He also asserts that the judicially imposed time limit unconstitutionally burdens his right to due process. We conclude that the standing order conflicts with and impairs a defendant’s right to tender a defendant-capped plea as provided in G. L. c. 278, § 18, and Mass. R. Crim. P. 12. Consequently, we vacate the standing order on that ground and bypass Charbonneau’s constitutional claim.[1] 1. Background. On February 19, 2015, the presiding justice of the Holyoke District Court[2] (presiding justice) promulgated a standing order applicable to trials beginning with the June, 2015, jury-of-six session. In accordance with the standing order, a defendant who intended to proffer a defendant-capped plea was required to do so at the final pretrial status conference which, in the Holyoke District Court, is scheduled for the Wednesday two weeks prior to […]
Rintala v. Commonwealth (Lawyers Weekly No. 10-008-16)
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-11886 CARA RINTALA vs. COMMONWEALTH. January 14, 2016. Homicide. Practice, Criminal, Indictment, Double jeopardy. Constitutional Law, Double jeopardy. Supreme Judicial Court, Superintendence of inferior courts. Cara Rintala appeals from a judgment of a single justice of this court denying her petition for relief under G. L. c. 211, § 3. Rintala has been charged with murder in the first degree in the death of her wife. Two jury trials on this charge have taken place in the Superior Court, each ending in a mistrial after the jury were unable to reach a unanimous verdict. After the second trial, Rintala moved to dismiss the indictment on the ground that retrial was barred by double jeopardy principles because the evidence presented at her second trial was insufficient to warrant a conviction. The judge, who had presided at both trials, denied the motion. Rintala’s G. L. c. 211, § 3, petition followed. We affirm the judgment. We have reviewed the record, including the transcript of the second trial, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Without detailing the evidence that was presented over numerous days of trial, we agree with the single justice that the evidence against Rintala was sufficient to permit the jury to conclude that she strangled the victim in the basement of their house. Based on the state of the victim’s body at the time she was found by first responders, the testimony of the Commonwealth’s medical expert, the activity on the victim’s cellular telephone (and the abrupt stoppage thereof), and Rintala’s own statements, the jury could rationally conclude that, at the time that the victim was killed, she and Rintala were the only adults in the house. There was also evidence suggestive of an attempt to compromise the crime scene shortly before first responders arrived, of a tumultuous relationship between Rintala and the victim, and of Rintala’s consciousness of guilt. Because the evidence was sufficient to warrant a conviction, Rintala may be retried without violating her rights against being subjected to double jeopardy. The single justice neither erred nor abused her discretion by denying relief. Judgment affirmed. David P. Hoose for the petitioner. Steven E. Gagne, Assistant District Attorney (Jennifer H. Suhl with him) for the Commonwealth. Full-text Opinions
Amaral v. Seekonk Grand Prix Corp. (Lawyers Weekly No. 11-008-16)
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 13-P-1848 Appeals Court SUSAN M. AMARAL vs. SEEKONK GRAND PRIX CORP. No. 13-P-1848. Bristol. October 6, 2014. – January 14, 2016. Present: Cypher, Grainger, & Maldonado, JJ. Negligence, One owning or controlling real estate. Civil action commenced in the Superior Court Department on May 2, 2012. The case was heard by Richard T. Moses, J., on a motion for summary judgment. Melody A. Alger for plaintiff. Jacqueline L. Allen for the defendant. MALDONADO, J. The Massachusetts recreational use statute[1] provides that those who make their land available to the public for “recreational . . . purposes without imposing a charge or fee therefor, . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct by [the landowner].” G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268. In this case, we are asked whether the statute bars a claim of negligence asserted by a mother (the plaintiff) who was injured by an errant “go-cart” while watching her sons drive go-carts at the defendant’s recreational facility. The facility does not charge an admission onto the grounds but sells tickets for its rides, and the plaintiff had purchased tickets for use by her sons. We conclude that the statute does not bar relief for injuries caused by negligence in these circumstances. Background. Seekonk Grand Prix Corp.[2] (Grand Prix) is a Massachusetts corporation that operates a commercial recreational facility offering, among other activities, go-cart races. Grand Prix charges a fee for the go-carts, miniature golf, bumper cars, and other similar activities. It does not charge a fee to watch these activities, nor does it charge a fee to enter the facility. On May 25, 2009, the plaintiff took her two sons, ages eleven and thirteen years of age, to Grand Prix’s facility. She purchased six tickets for her sons’ use. At the time of the injury, she was standing behind a chain link fence as she watched her sons drive the go-carts. After the other drivers had returned to the station, a go-cart driven by a young girl went through the fence and struck the plaintiff, causing a number of injuries, including a pulmonary embolism that resulted from a blood clot in her left leg. The plaintiff filed a negligence action […]
Commonwealth v. Dorelas (Lawyers Weekly No. 10-007-16)
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-11793 COMMONWEALTH vs. DENIS DORELAS. Suffolk. April 7, 2015. – January 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Warrant, Probable cause. Probable Cause. Cellular Telephone. Indictments found and returned in the Superior Court Department on September 27, 2011. A pretrial motion to suppress evidence was heard by Patrick F. Brady, J. An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant. John P. Zanini, Assistant District Attorney, for the Commonwealth. Robert E. McDonnell, John Frank Weaver, Arcangelo S. Cella, Matthew R. Segal, Jessie J. Rossman, & Mason Kortz, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. CORDY, J. In this case we consider whether, where there was probable cause for the issuance of a warrant to search an Apple iPhone,[1] the search and seizure of certain photograph files conducted in reliance thereon was reasonable. The warrant authorized a search of the defendant’s iPhone for evidence of communications that would link him and another suspect to a shooting that occurred in the Hyde Park section of Boston. The search tool used to extract data from the iPhone was programmed to extract not only contact lists and text messages (texts), but also photographs. Among the photographs extracted and examined by the police were photographs depicting the defendant holding a gun and dressed in the same color jacket described by witnesses to the shooting. We conclude that where there was probable cause that evidence of communications relating to and linking the defendant to the crimes under investigation would be found in the electronic files on the iPhone, and because such communications can be conveyed or stored in photographic form, a search of the photograph files was reasonable. Finally, we conclude that the photographs in question were properly seized as evidence linking the defendant to the crimes under investigation. Background. On July 3, 2011, at approximately 7 P.M., Detective Richard Walker and […]
Commonwealth v. Carvalho (Lawyers Weekly No. 11-007-16)
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 14-P-1675 Appeals Court COMMONWEALTH vs. JOHN V. CARVALHO. No. 14-P-1675. Bristol. October 6, 2015. – January 13, 2016. Present: Berry, Green, & Blake, JJ. Intimidation of Witness. Harassment Prevention. Jury and Jurors. Practice, Criminal, Challenge to jurors, Voir dire. Complaints received and sworn to in the Fall River Division of the District Court Department on July 1, 2010, and March 30, 2011. After transfer to the New Bedford Division of the District Court Department, the cases were tried before Robert A. Welsh, III, J. Dana Alan Curhan for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. BERRY, J. Following a District Court jury trial, the defendant was convicted on two counts of intimidation of a witness, G. L. c. 268, § 13B, and one count of violation of a harassment prevention order, G. L. c. 258E, § 9. In this appeal, the defendant contends that the trial judge erred (1) in denying the defendant’s peremptory challenge of one prospective juror who was the only minority seated on the petit jury; and (2) in refusing to pose a specific question to prospective jurors as to their experience with restraining and harassment prevention orders. The defendant also argues that the evidence at trial was insufficient to support the guilty verdicts on the two counts of witness intimidation against him. We affirm. 1. Background. The jury could have found that the defendant and the victim, who rented an apartment from the defendant, had a series of hostile encounters that culminated in the victim obtaining a harassment prevention order against the defendant.[1] Following the issuance of that order, the defendant confronted the victim and made comments to her about dropping it. The defendant was charged with intimidating a witness and violating the harassment prevention order, and, as mentioned, he was found guilty by a jury in the District Court.[2] 2. Jury issues. We address two jury-related challenges posed by the defendant: the peremptory challenge and the denial of a special question regarding experience with restraining and harassment prevention orders. a. Peremptory challenge. During jury empanelment, defense counsel exercised a peremptory challenge against juror no. 1, who was the only minority juror seated.[3] The prosecutor noted for the record (but did not lodge a formal objection) that juror no. 1 was “the only minority juror.” The […]
Parkview Electronics Trust, LLC v. Conservation Commission of Winchester (Lawyers Weekly No. 11-006-16)
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 13-P-276 Appeals Court PARKVIEW ELECTRONICS TRUST, LLC vs. CONSERVATION COMMISSION OF WINCHESTER. No. 13-P-276. Middlesex. November 6, 2014. – January 12, 2016. Present: Trainor, Agnes, & Maldonado, JJ. Municipal Corporations, Conservation commission, By-laws and ordinances. Wetlands Protection Act. Department of Environmental Protection. Jurisdiction, Administrative matter. Zoning, By-law, Wetlands. Civil action commenced in the Superior Court Department on June 25, 2004. The case was heard by Mitchell H. Kaplan, J., on motions for judgment on the pleadings. Jill Brenner Meixel (Vincent J. Pisegna with her) for the plaintiff. Wade M. Welch (Melissa C. Donohoe with him) for the defendant. AGNES, J. The Wetlands Protection Act, G. L. c. 131, § 40 (act), sets forth “minimum wetlands protection standards, and local communities are free to impose more stringent requirements.” Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 866 (2007). As we noted in Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more demanding than those under State law. In such a case, when a local commission concludes that a project meets the requirements of State law, but does not satisfy the requirements of municipal law, it “introduces no legal dissonance and violates no principle of State preemption.” Ibid. In Healer v. Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718 (2009), we explained the requirements that must be met by a local conservation commission that decides to act independent of State law by exercising jurisdiction over wetlands exclusively on the basis of a more stringent local by-law.[1] In the present case, the by-law of the town of Winchester (local by-law) has a more expansive standard for “land subject to flooding” than does the act.[2] Nevertheless, the plaintiff, Parkview Electronics Trust, LLC (Parkview), contends that an order of resource area delineation (ORAD) issued by the conservation commission of Winchester (commission) is invalid under Healer because it was not based “exclusively” on the more stringent provisions of local law.[3] In effect, Parkview maintains that Healer requires a local commission to choose between reliance on State law or local law. For the reasons that follow, we reject this reading of Healer and affirm the judgment. The essential facts are […]
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