Nelson v. Conservation Commission of Wayland (Lawyers Weekly No. 11-113-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1437 Appeals Court KENNETH TODD NELSON vs. CONSERVATION COMMISSION OF WAYLAND. No. 15-P-1437. Middlesex. May 16, 2016. – August 31, 2016. Present: Rubin, Milkey, & Neyman, JJ. Zoning, By-law, Wetlands. Municipal Corporations, Conservation commission, By-laws and ordinances. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on December 3, 2014. The case was heard by Peter B. Krupp, J., on a motion for judgment on the pleadings. George F. Hailer for the plaintiff. Mark J. Lanza for the defendant. RUBIN, J. The plaintiff[1] appeals from a judgment of the Superior Court affirming a determination by the conservation commission of Wayland (commission) that there are wetlands on his property.[2] That determination was made under Wayland’s wetlands and water resources protection by-law. See chapter 194 of the Wayland town code (2015) (by-law). Under the by-law’s definition, wetlands are protected more broadly than they are under the Wetlands Protection Act and the accompanying regulations. See § 194-1 of the by-law (“The purpose of this chapter is to provide a greater degree of protection of wetlands, buffer zones, and related water resources, than the protection of these resource areas provided under [G. L.] c. 131, § 40, and the Wetlands Regulations promulgated thereunder by the Massachusetts Department of Environmental Protection”). Compare § 194-2 of the by-law, with G. L. c. 131, § 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014). The plaintiff agrees that the town has the authority to provide such broader protection, but argues that the commission’s decision here was not supported by substantial evidence. The plaintiff brought an action in the nature of certiorari (G. L. c. 249, § 4) in the Superior Court. The plaintiff moved for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The judge denied the motion and upheld the commission’s decision. This appeal followed. The commission made two findings supporting its conclusion that the property at issue contains wetlands within the meaning of the by-law. These findings, in full, provide that “[p]lants including [r]ed [m]aple, American [e]lm, skunk cabbage, and other hydrophilic vegetation comprise at least 50% of the vegetational community.” Further, “[r]unoff water from surface drainage frequently collects above the soil surface.” Section 194-2 of the by-law defines “wetland” as “[w]et meadows, marshes, swamps, bogs, and other areas where groundwater, flowing […]
Categories: News Tags: 1111316, Commission, Conservation, Lawyers, Nelson, Wayland, Weekly
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-112-16)
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-1240 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants. No. 13-P-1240. Suffolk. June 3, 2014. – August 31, 2016. Present: Kantrowitz, Hanlon, & Carhart, JJ.[2] Conflict of Laws. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause. Contract, Insurance, Choice of law clause. Real Property, Environmental damage. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. CARHART, J. This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2). The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]
Commonwealth v. Vargas (Lawyers Weekly No. 10-138-16)
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-10075 COMMONWEALTH vs. PABLO VARGAS. Hampden. March 11, 2016. – August 30, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.[1] Homicide. Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights, Assistance of counsel, Public trial. Due Process of Law, Assistance of counsel, Interpreter. Evidence, Admissions and confessions, Voluntariness of statement, Hearsay. Waiver. Telephone. Defense of Others. Self-Defense. Interpreter. Practice, Criminal, Admissions and confessions, Voluntariness of statement, Waiver, Assistance of counsel, Instructions to jury, Hearsay, Motion to suppress, New trial, Interpreter, Public trial, Capital case. Indictment found and returned in the Superior Court Department on November 2, 2004. A pretrial motion to suppress evidence was heard by Daniel A. Ford, J.; the case was tried before Francis R. Fecteau, J.; and a motion for a new trial, filed on December 23, 2013, was heard by C. Jeffrey Kinder, J., and a motion for reconsideration was also heard by him. John M. Thompson for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. CORDY, J. There is no dispute that on the night of September 23, 2004, the victim, Tremayne King, was killed by the defendant, Pablo Vargas. The defendant stabbed the victim eight times during an altercation at the residence of the victim’s estranged wife, Yanira Rodriguez, who was the defendant’s girl friend. At trial, the defendant sought to rebut the charge of murder in the first degree on the theory of self-defense, alleging that he fought and killed the victim because he feared for his life. On May 24, 2006, a Hampden County jury convicted the defendant of murder in the first degree on a theory of extreme atrocity and cruelty, rejecting the Commonwealth’s alternative theory of premeditation. In December, 2013, the defendant moved for a new trial, which was denied, as was his motion for reconsideration thereof. On appeal from his conviction and from the denial of his motion for a new trial, the defendant claims that (1) his statement made during police questioning shortly after the altercation should have been suppressed; (2) the trial judge erred in excluding relevant so-called Adjutant evidence of the victim’s history of violence, see Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005); (3) the judge erred in admitting certain testimony concerning the […]
Commonwealth v. Gonzalez (Lawyers Weekly No. 11-111-16)
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-1626 Appeals Court COMMONWEALTH vs. HECTOR GONZALEZ. No. 14-P-1626. Hampden. December 4, 2015. – August 29, 2016. Present: Cohen, Trainor, & Katzmann, JJ. Controlled Substances. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Probable cause. Probable Cause. Indictments found and returned in the Superior Court Department on July 11, 2013. A pretrial motion to suppress evidence was heard by C. Jeffrey Kinder, J. An application for leave to prosecute an interlocutory appeal was allowed by Fernande R. V. Duffly, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Thomas E. Robinson for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. KATZMANN, J. In the instant appeal from the denial by a Superior Court judge of the defendant’s motion to suppress, the defendant challenges the warrantless search of his person and arrest based on information police received from a confidential informant. A single justice of the Supreme Judicial Court allowed the defendant’s application for leave to pursue an interlocutory appeal of the Superior Court’s order and reported the matter to this court. The primary issue posed by this appeal is whether the exclusionary rule precludes a judge from considering evidence of a prior incident in an unrelated case in evaluating the accuracy of a confidential informant’s “track record” where that evidence was suppressed in the unrelated case after a finding by a different judge that the informant’s veracity had not been adequately established. On the record before us, we answer that question in the negative and affirm the order denying the motion to suppress. Background. We recite the facts as found by the motion judge after an evidentiary hearing. On June 14, 2013, at approximately 7:40 P.M., Detective Edward Kalish, an experienced narcotics detective with the Springfield police department, received information from a confidential informant (CI) that, at that moment, a Hispanic male named Hector Gonzalez was in possession of a large quantity of heroin on Knox Street in Springfield. The CI further stated that Gonzalez was wearing dark shorts, dark shoes, and a light blue basketball jersey bearing number “8” with the name “Bryant” on the back. The CI said that Gonzalez was a passenger in a blue […]
Zoning Board of Appeals of Hanover v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-110-16)
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-893 Appeals Court ZONING BOARD OF APPEALS OF HANOVER vs. HOUSING APPEALS COMMITTEE & another.[1] No. 15-P-893. Plymouth. May 9, 2016. – August 29, 2016. Present: Agnes, Massing, & Kinder, JJ. Housing. Zoning, Housing appeals committee, Comprehensive permit, Low and moderate income housing. Administrative Law, Agency’s interpretation of regulation, Regulations. Municipal Corporations, Fees. Civil action commenced in the Superior Court Department on March 11, 2014. The case was heard by William F. Sullivan, J., on a motion for judgment on the pleadings. Jonathan D. Witten (Barbara M. Huggins with him) for the plaintiff. Paul N. Barbadoro for Hanover Woods, LLC. Bryan F. Bertram, Assistant Attorney General, for Housing Appeals Committee. MASSING, J. Defendant Hanover Woods, LLC (developer), filed an application with the plaintiff zoning board of appeals of Hanover (board) for a comprehensive permit to build a 152-unit mixed-income housing project. Considering the board’s filing fee to be unreasonable, however, the developer paid only what it unilaterally determined to be a reasonable filing fee. Deeming the application incomplete, the board did not accept it for filing. By the time the developer paid the remainder of the fee, six weeks later, the town had qualified for a safe harbor under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), effectively giving the board unreviewable discretion to deny the developer’s permit. Nonetheless, the defendant Housing Appeals Committee (HAC) ultimately ordered the board to issue a comprehensive permit to the developer for a 200-unit project. The board appeals from a judgment of the Superior Court affirming the HAC’s order. Because we conclude that the HAC erred in determining that the developer’s application was complete on the date of its incomplete submission, rather than on the date the filing fee was paid in full, we reverse. Background. On October 22, 2009, the developer filed an application for a comprehensive permit for a project to be called Woodland Village, consisting of 152 units to be offered for sale, as well as parking spaces and other site improvements on a twenty-four acre parcel of land in Hanover (town). Thirty-eight of the units, or twenty-five percent, were designated to be affordable units. Under the board’s fee schedule, the filing fee for a project of that size was $ 250 per housing unit, or $ 38,000. […]
Commonwealth v. Herndon (Lawyers Weekly No. 10-136-16)
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-11702 COMMONWEALTH vs. FRANKIE HERNDON. Suffolk. March 11, 2016. – August 26, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.[1] Homicide. Firearms. Evidence, Identification. Identification. Practice, Criminal, Capital case, Sequestration of witnesses, Public trial. Constitutional Law, Public trial. Indictments found and returned in the Superior Court Department on December 19, 2011. The cases were tried before Patrick F. Brady, J. Theodore F. Riordan (Deborah Bates with him) for the defendant. Teresa K. Anderson, Assistant District Attorney (Joseph F. Jimezic, Assistant District Attorney, with her) for the Commonwealth. BOTSFORD, J. A Superior Court jury found the defendant, Frankie Herndon, guilty of murder in the first degree of Derrick Barnes on the theory of deliberate premeditation and of possession of a firearm without a license. On appeal, the defendant challenges (1) the failure of the judge to instruct the jury on eyewitness identification in accordance with the defendant’s requested instruction that was created after State v. Henderson, 208 N.J. 208 (2011), and that presaged this court’s provisional eyewitness identification instructions set forth in Commonwealth v. Gomes, 470 Mass. 352 (2015); (2) the admission in evidence, through the testimony of two police officers, of an alleged out-of-court identification of the defendant and his codefendant, Frederick Henderson, by a witness although that witness did not testify concerning that alleged identification; and (3) the naming of the defendant’s sister as a witness, which resulted in her sequestration from the court room. We affirm the defendant’s convictions. Background. From the evidence presented, the jury could have found the following facts. At some point before moving with their family to a town outside Boston, the victim and his brother Darryl Barnes (Darryl) had lived on Fayston Street in the Dorchester section of Boston. On August 27, 2011, Darryl and the victim returned there to visit people they knew from childhood and who were participating in a festival in Boston. Between approximately 5 and 5:30 P.M., Darryl parked his automobile on the street. The victim and Darryl left the vehicle and walked along the street, where they met their cousin Rondale Williams. The victim, Darryl, and Williams continued to walk and stopped in front of one house on the street. After a few minutes, Darryl left to drive another cousin home. Shantee […]
JB Mortgage Co., LLC v. Ring, et al. (Lawyers Weekly No. 11-109-16)
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-1258 Appeals Court JB MORTGAGE CO., LLC vs. JORDAN L. RING, THIRD, & another.[1] No. 15-P-1258. Middlesex. May 18, 2016. – August 26, 2016. Present: Katzmann, Carhart, & Sullivan, JJ. Guaranty. Limitations, Statute of. Civil action commenced in the Superior Court Department on March 4, 2014. The case was heard by Peter B. Krupp, J. Michael P. Utke (Steven F. Smoot with him) for the plaintiff. Luke Rosseel for Jordan L. Ring, III. KATZMANN, J. The plaintiff, JB Mortgage Co., LLC, appeals from a judgment of the Superior Court dismissing its action to enforce defendant Jordan L. Ring, III’s guaranty of a promissory note secured by a mortgage on real property. The trial judge found that the plaintiff’s suit was barred by the applicable statute of limitations because it was filed more than twenty years after a default existed on the underlying note. The central issue before us is when the cause of action on the guaranty of the note accrued. We affirm. Background. On July 21, 1988, Edward C. Simonian, as trustee of the DX Trust (trust), executed a promissory note in favor of Bank Five for Savings (bank) in the face amount of $ 400,000. Under the note, the trust was required to make monthly payments of principal and interest, with all remaining unpaid balances due two years from the date of execution. In addition to other penalties for failure to make timely payments, the note provided that, “If default be made in the payment of any installment under this note, or if there is a failure to carry out the terms and conditions of the mortgage or any other instrument given as security for this note, . . . the entire principal sum and accrued interest shall at once become due and payable without notice at the option of the holder of this note.”[2] The note was secured by a first mortgage on commercial property in Hull. The note was also backed by a guaranty executed by Simonian and Ring under seal the same day, July 21, 1988. In pertinent part, the guaranty stated: “[T]he undersigned hereby guarantees to the [b]ank the prompt payment and the faithful performance and observance of every liability, obligation, covenant and condition . . . to be paid, performed […]
Smith, et al. v. City of Westfield, et al. (Lawyers Weekly No. 111-08-16)
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-773 Appeals Court VIRGINIA B. SMITH & others[1] vs. CITY OF WESTFIELD & others.[2] No. 15-P-773. Hampden. April 14, 2016. – August 25, 2016. Present: Green, Trainor, & Milkey, JJ. Municipal Corporations, Parks, Use of municipal property. Parks and Parkways. Constitutional Law, Taking of property. Due Process of Law, Taking of property. Civil action commenced in the Superior Court Department on April 27, 2012. The case was heard by Daniel A. Ford, J. Thomas A. Kenefick, III (Mary Patryn with him) for the plaintiffs. Anthony I. Wilson (John T. Liebel with him) for the defendants. TRAINOR, J. The plaintiffs, Virginia B. Smith and other Westfield residents (collectively, residents), appeal from a judgment for the defendants, the city of Westfield and others (collectively, Westfield), which vacated a preliminary injunction that, in effect, prohibited a school construction project at the John A. Sullivan Memorial Playground (playground).[3] The residents challenge the judgment for two reasons. First, they argue that the playground was sufficiently dedicated to invoke the protection of art. 97 of the Amendments to the Massachusetts Constitution, notwithstanding the fact that no documents were ever recorded that dedicated the land for art. 97 purposes.[4] Second, the residents contend that the judge erred in concluding that a Statewide comprehensive outdoor recreation plan (SCORP) contradicts Mahajan v. Department of Envtl. Protection, 464 Mass. 604 (2013). We affirm, as we conclude that the playground has not been designated for an art. 97 purpose in a manner sufficient to invoke its protection. Background. This matter came before a Superior Court judge on cross motions for judgment based on an agreed statement of facts. We summarize those facts, reserving some facts for later discussion. On November 13, 1939, Westfield took title to the land in question for the purpose of satisfying a tax debt pursuant to G. L. (Ter. Ed.) c. 60, §§ 53 and 54. In 1957, Westfield passed an ordinance recognizing the land as a playground and naming it the John A. Sullivan Memorial Playground. In 1979, the Federal Land and Water Conservation Fund (LWCF) awarded Westfield a grant that, in part, was used to upgrade the playground. A SCORP was required for Westfield to be eligible for that grant. See 16 U.S.C. § 460l-8(d) (1976).[5] The SCORP, which the residents assert applies to this matter, states: […]
Tusino v. Zoning Board of Appeals of Douglas, et al. (and a companion case) (Lawyers Weekly No. 11-107-16)
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-1400 Appeals Court 14-P-1193 LOUIS C. TUSINO vs. ZONING BOARD OF APPEALS OF DOUGLAS & another[1] (and a companion case[2]). Nos. 15-P-1400 & 14-P-1193. Worcester. June 3, 2016. – August 25, 2016. Present: Vuono, Wolohojian, & Blake, JJ. Jurisdiction, Zoning. District Court, Jurisdiction, Appellate Division. Zoning, Appeal. Appeals Court, Jurisdiction. Practice, Civil, Zoning appeal, Appellate Division: appeal, Action in nature of mandamus, Moot case. Mandamus. Moot Question. Civil action commenced in the Uxbridge Division of the District Court Department on December 8, 2014. The case was heard by David B. Locke, J., on a motion for summary judgment. Civil action commenced in the Land Court Department on August 21, 2009. The case was heard by Robert B. Foster, J., on a motion for summary judgment. Gerald E. Shugrue for Louis C. Tusino. Henry J. Lane for Joseph Bylinski. Michael J. Kennefick for building commissioner of the town of Douglas, & another. WOLOHOJIAN, J. These two cases arise out of the construction of a house on a nonconforming lot in Douglas. The dispositive issue on appeal is whether we have jurisdiction over a direct appeal from a decision of the Uxbridge District Court in a zoning appeal under G. L. c. 40A, § 17. Concluding that we do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas, 2015-P-1400 (zoning appeal). Because our disposition of this case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-1193 (mandamus appeal), we dismiss it as well. On July 8, 2008, Tusino obtained a building permit to build a house on a lot he owns in Douglas. Construction began in February, 2009, and Bylinski, who owns the adjacent property, immediately thereafter asked the building commissioner to revoke the permit. The commissioner denied that request, and Bylinski appealed to the zoning board (board). The appeal was constructively allowed, and the building permit was revoked. On appeal, the Superior Court affirmed the revocation of the permit. Tusino did not further appeal, and the Superior Court’s decision became final. Tusino thereafter applied to the board for a variance. This too was denied. He appealed the denial to the Land Court, which entered summary judgment against him. On February 21, 2014, in a memorandum and order issued pursuant to our rule 1:28, we affirmed the […]