Posts tagged "Housing"

Brockton Housing Authority v. Mello (Lawyers Weekly No. 11-010-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-1708                                       Appeals Court   BROCKTON HOUSING AUTHORITY  vs.  KEITH G. MELLO.     No. 16-P-1708.   Plymouth.     November 6, 2017. – January 26, 2018.   Present:  Sullivan, Blake, & Singh, JJ.     Housing Authority.  Landlord and Tenant, Termination of tenancy.  Controlled Substances.  Words, “Keeping.”       Civil action commenced in the Southeast Division of the Housing Court Department on January 25, 2016.   The case was heard by Anne Kenney Chaplin, J.     Laura F. Camara for the defendant. Caitlin P. Milone for the plaintiff.     SULLIVAN, J.  Three months into Keith G. Mello’s occupancy of a one-bedroom apartment at the Caffrey Towers development (premises or apartment), the Brockton Housing Authority (BHA) filed an action pursuant to G. L. c. 139, § 19, to void his tenancy.  Following a trial, a judge of the Southeastern Housing Court ruled that Mello “engaged in conduct, and allowed his guests to engage in conduct, which constitutes the keeping of controlled substances in the premises.”  She entered a judgment voiding the lease and permanently enjoining Mello from entering any portion of Caffrey Towers, a Federally subsidized housing development for the elderly and the disabled.  See New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 369 (2001) (Olan).  Mello appeals from the final judgment.[1]  We affirm. Background.  We summarize the facts as found by the judge.  Dennis Sheedy, a BHA asset manager, observed Mello’s guests arriving at Caffrey Towers in an impaired state, and unwilling (or unable) to cooperate with security.  On December 1, 2015, Anthony Giardini, a Brockton police officer who served as the community liaison to the BHA conducted an investigation into complaints in or about the premises.  As he approached Mello’s apartment, he heard loud voices coming from inside and smelled the odor of “some sort of substance.”[2] After entering the apartment, Officer Giardini saw three people, including Mello, sitting in a room.  There was smoke that smelled like marijuana and crack cocaine.  He observed drug paraphernalia in plain view, including a flat mirror “lined horizontally,” lying on a room partition, a debit card, and the remains of what could be a filter for a crack pipe.  He also saw two daggers, one of which was next to the mirror within reach of Mello, who was in “an intoxicated state.”  Officer Giardini concluded that those present in the apartment had been smoking […]

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Posted by Massachusetts Legal Resources - January 26, 2018 at 4:29 pm

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135 Wells Avenue, LLC v. Housing Appeals Committee, et al. (Lawyers Weekly No. 10-184-17)

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-12253   135 WELLS AVENUE, LLC  vs.  HOUSING APPEALS COMMITTEE & others.[1]       Suffolk.     April 6, 2017. – November 13, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2]     Municipal Corporations, Property, Use of municipal property.  Real Property, Deed, Restrictions.  Housing.  Zoning, Housing appeals committee, Low and moderate income housing, Board of appeals:  jurisdiction.  Permit.       Civil action commenced in the Land Court Department on January 14, 2016.   The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Daniel P. Dain for the plaintiff. Maura E. O’Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another. Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee. Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens’ Housing and Planning Association, amicus curiae, submitted a brief.     GAZIANO, J.  The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use.  As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city’s deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space.  The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. 135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23.  In order to proceed with development of the project, in May, 2014, 135 Wells asked the city’s board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction.  At the same time, 135 Wells applied to the city’s zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project.  The […]

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Posted by Massachusetts Legal Resources - November 14, 2017 at 4:38 am

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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. […]

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Posted by Massachusetts Legal Resources - August 29, 2016 at 3:17 pm

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Eisai, Inc., et al. v. Housing Appeals Committee, et al. (Lawyers Weekly No. 11-072-16)

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-680                                        Appeals Court   EISAI, INC., & others[1]  vs.  HOUSING APPEALS COMMITTEE & another.[2] No. 15-P-680. Suffolk.     March 8, 2016. – June 20, 2016.   Present:  Hanlon, Sullivan, & Massing, JJ. Housing.  Zoning, Housing appeals committee, Comprehensive permit, Person aggrieved.  Practice, Civil, Zoning appeal, Standing.     Civil action commenced in the Superior Court Department on March 11, 2014.   The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings.     Christopher Robertson (Jonathan D. Witten with him) for the plaintiffs. Suleyken D. Walker for Housing Appeals Committee. Kevin P. O’Flaherty for Hanover R.S. Limited Partnership.      MASSING, J.  This appeal concerns the standards that defendant housing appeals committee (HAC) applies when it reviews the decision of a local zoning board of appeals to deny an application under the Comprehensive Permit Act, G. L. c. 40B, §§ 20-23 (act), based on municipal planning concerns. The plaintiffs, owners and lessors of commercial and industrial properties neighboring the proposed housing development (hereinafter, abutters or, in context, interveners), appeal from a judgment of the Superior Court affirming the HAC’s decision directing the zoning board of appeals for the town of Andover (board) to issue a comprehensive permit to defendant Hanover R.S. Limited Partnership (developer).  The abutters claim that the HAC impermissibly applied a new standard, not contained in any statute, regulation, or previous HAC decision, in evaluating Andover’s municipal planning efforts.  In the alternative, they claim that the HAC erroneously applied the applicable standard.  The defendants, for their part, contend that the abutters lack standing to bring this appeal.  Concluding that the abutters have standing, we reach the merits and affirm the judgment of the Superior Court affirming the HAC’s decision. Background.  On August 19, 2011, the developer filed an application for a comprehensive permit to build a mixed income rental housing development to be known as the “Lodge at Andover” within an existing office and industrial park.  The proposed location for the residential development, 30 Shattuck Road, is mostly within Andover’s River Road industrial D district, a commercial and industrial area in the northernmost part of Andover, near the River Road exit of Interstate Route 93.[3]   Shattuck Road, a dead end, and Tech Drive, a small looping road off of Shattuck Road, make up the office and industrial park consisting of ten large businesses and one vacant lot:  the proposed […]

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Posted by Massachusetts Legal Resources - June 20, 2016 at 5:17 pm

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Seales v. Boston Housing Authority (Lawyers Weekly No. 11-178-15)

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; SJCReportersjc.state.ma.us   14-P-1551                                       Appeals Court   TINA SEALES  vs.  BOSTON HOUSING AUTHORITY. No. 14-P-1551. Suffolk.     October 6, 2015. – November 16, 2015.   Present:  Cohen, Meade, & Agnes, JJ. Boston Housing Authority.  Housing Authority.  Municipal Corporations, Housing authority.  Practice, Civil, Action in nature of certiorari.  Administrative Law, Hearing, Substantial evidence, Judicial review.  Evidence, Hearsay. Controlled Substances.     Civil action commenced in the Boston Division of the Housing Court Department on January 23, 2014.   The case was heard by Jeffrey M. Winik, J., on a motion for judgment on the pleadings.     Angela Marcolina for the defendant. Alex Mitchell-Munevar for the plaintiff.      MEADE, J.  Tina Seales is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8.”  The program is administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012), and related HUD regulations.  In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to serious or repeated violation of her lease.  Seales appealed the proposed termination.  Following an informal hearing, a hearing officer, by a decision dated January 2, 2014, upheld the termination of Seales’s Section 8 housing subsidy.  Thereafter, Seales successfully sought relief in the nature of certiorari under G. L. c. 249, § 4, in the Housing Court.  On appeal from that judgment, the BHA claims that the judge erred in determining that the hearing officer improperly found that criminal or illegal activity occurred on the rental premises that constituted a serious violation of Seales’s Section 8 lease.  We reverse. Background.  Seales resided at 25 Drayton Avenue in the Dorchester section of Boston.  She was a participant in the BHA’s Section 8 program and had been receiving Section 8 housing benefits for approximately fifteen years.  Seales lived with her three children, then ages sixteen, seventeen, and nineteen.  In August of 2013, Seales received notice that the BHA proposed to terminate her participation in the program due to a family member having engaged in drug-related activity and serious or repeated violation of her lease.[1]  The BHA based its allegations on a Boston police incident report, a leased housing recertification questionnaire, family obligations, and the lease itself. 1.  The incident report.  According to the Boston police incident report, on July 9, 2013, police Officers Femino, […]

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Posted by Massachusetts Legal Resources - November 16, 2015 at 4:04 pm

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Fernandes v. Attleboro Housing Authority (Lawyers Weekly No. 10-186-14)

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-11580   DAVID FERNANDES  vs.  ATTLEBORO HOUSING AUTHORITY.     Bristol.     September 4, 2014. – November 19, 2014. Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.   Labor, Wages.  Superior Court, Jurisdiction.  Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission.  Public Employment, Termination, Reinstatement of personnel.  Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel.  Employment, Termination, Retaliation.  Damages, Additur.  Practice, Civil, Additur, Attorney’s fees.  Housing Authority.  Municipal Corporations, Housing authority.     Civil action commenced in the Superior Court Department on November 13, 2009.   The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Maria M. Scott for the plaintiff. David D. Dowd for the defendant.          SPINA, J.  David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009.  Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A.  Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled.  Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office.[1]  Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims.  The jury awarded damages against the AHA in the amount of $ 2,300 for unpaid wages due to misclassification, and $ 130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions.  Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution.  Fernandes filed a motion for reinstatement to the position of maintenance mechanic […]

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Posted by Massachusetts Legal Resources - November 19, 2014 at 5:13 pm

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Figgs v. Boston Housing Authority (Lawyers Weekly No. 10-141-14)

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-11532 TRENEA FIGGS  vs.  BOSTON HOUSING AUTHORITY.       Suffolk.     April 8, 2014. – August 18, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Boston Housing Authority.  Housing Authority.  Municipal Corporations, Housing authority.  Practice, Civil, Action in nature of certiorari.  Administrative Law, Hearing, Substantial evidence.  Evidence, Hearsay.     Civil action commenced in the Boston Division of the Housing Court Department on August 24, 2012.   The case was heard by Jeffrey M. Winik, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Michael J. Louis & Angela Marcolina for the defendant. Jeremy T. Robin for the plaintff. The following submitted briefs for amicus curiae: Jeffrey C. Turk for Greater Boston Real Estate Board & another. James M. McCreight, Alex Munevar, & Quinten Steenhuis for Massachusetts Coalition for the Homeless & others. Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles Hamilton Houston Institute & another.     SPINA, J.  Trenea Figgs is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8,” administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012) and implementing HUD regulations.[2]  On November 22, 2011, the BHA notified Figgs of its intent to terminate her participation in the Section 8 program due to allegations of serious or repeated violations of her lease.  Several weeks earlier, Boston police officers had executed a search warrant for Figgs’s apartment in connection with a criminal investigation of her brother, Damon Nunes, and had discovered, among other things, two plastic bags of marijuana, a .380 caliber Ruger pistol, and five rounds of ammunition.  Figgs appealed the proposed termination.  Following an informal hearing on February 22, 2012, a hearing officer, by decision dated August 6, 2012, upheld the termination of Figgs’s Section 8 housing subsidy. On August 24, 2012, Figgs filed a verified complaint in the Housing Court for injunctive and declaratory relief.  She sought to enjoin the BHA from terminating her Section 8 housing subsidy on the ground that the informal hearing failed to satisfy her procedural due process rights under the Fourteenth Amendment to the United States Constitution, and she sought a declaration that the bases for her termination were insufficient.  In response, the BHA filed a […]

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Posted by Massachusetts Legal Resources - August 18, 2014 at 11:50 pm

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Loring Towers Associates v. Furtick v. Boston Housing Authority (Lawyers Weekly No. 11-033-14)

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‑799                                        Appeals Court   LORING TOWERS ASSOCIATES[1]  vs.  MELVIN FURTICK; BOSTON HOUSING AUTHORITY, third-party defendant. No. 13‑P‑799. Essex.     December 3, 2013.  ‑  March 27, 2014. Present:  Grainger, Brown, & Carhart, JJ.   Summary Process.  Practice, Civil, Summary process, Complaint, Parties.  Boston Housing Authority.  Due Process of Law, Housing.       Summary process.  Complaint filed in the Salem Division of the District Court Department on April 23, 2012.   Following transfer to the Northeast Division of the Housing Court Department, a motion to dismiss a third‑party complaint was heard by David D. Kerman, J.     Michael J. Louis & Angela Marcolina for Boston Housing Authority. Laura Gallant (James Breslauer with her) for Melvin Furtick.       BROWN, J.  Melvin Furtick, a physically disabled and mentally ill senior citizen, has been a participant in the Federal Housing Choice Voucher Program, better known as “section 8,” for over thirty years.[2]  The Boston Housing Authority (BHA) terminated Furtick’s housing assistance benefits, a protected property interest, in violation of his due process rights.  Such a result cannot be countenanced by any court of law.  Accordingly, we affirm the judgment of the Housing Court in this summary process litigation restoring Furtick’s housing benefits retroactively to the date of the unlawful termination.   Facts.  Except where noted, the following facts are undisputed.  On January 17, 2012, the leased housing division of the BHA sent a letter addressed to Furtick at his subsidized apartment in Salem, notifying him of the proposed termination of his housing assistance benefits based upon his failure to attend two section 8 voucher recertification meetings scheduled for November 28, 2011, and December 22, 2011.  See § 13.6.2 of the BHA Administrative Plan for Section 8 Programs (revised December 6, 2011) (BHA administrative plan).  The BHA letter informed Furtick that he had the right to an informal hearing regarding the proposed termination before the BHA’s department of grievances and appeals as long as he requested a hearing within twenty days.  See id. at § 13.6.3.  When Furtick failed to respond within the twenty-day appeal period, the BHA, by letter dated February 7, 2012, and mailed to his apartment, terminated Furtick’s subsidy effective March 31, 2012.  As Furtick was in jail during that time, he had no actual knowledge of any of this.[3]  Upon his release, Furtick returned to his apartment and discovered that […]

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Posted by Massachusetts Legal Resources - March 27, 2014 at 4:33 pm

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Consalvo Calls to Save Boston Housing Program for Elderly

At Wednesday’s city council meeting,City Councilor Rob Consalvo called for stop gap funding to save the Boston Housing Authority resident services program that assists more than 3,500 low-income, elderly and disabled residents across the city. “On May 1 the resident services program was ended due to cuts on the federal level that funded the program the and the impact of those cuts are being felt locally,” said District 5 City Councilor Rob Consalvo, during the meeting. “All resident service coordinators were eliminated…” In total, 40 positions are no longer being funded. “This has a dire and serious impact on Boston people who are still going to live in public housing. [Resident Service Coordinators] work day-to-day to provide help on healthcare, nutritional services, substance abuse help, money management… and to keep people safe and people living a good quality life.” The matter was referred to the Committee on Housing, during which the Boston Housing Authority will testify on how they intend to fill the needs of that program, especially during the more active months of summer. Consalvo said that the Boston Housing Authority “does a great job. They need our help.” SOUTH END PATCH: Facebook | Twitter | E-mail Updates  South End Patch

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Posted by Massachusetts Legal Resources - June 6, 2013 at 10:43 pm

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Massachusetts Housing Opportunities Corporation v. Whitman & Bingham Associates, P.C., et al. (Lawyers Weekly No. 11-031-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑53                                         Appeals Court   MASSACHUSETTS HOUSING OPPORTUNITIES CORPORATION  vs.  WHITMAN & BINGHAM ASSOCIATES, P.C., & another.[1]     No. 12‑P‑53. Essex.     October 3, 2012.  ‑  February 21, 2013. Present:  Graham, Vuono, & Hanlon, JJ.     Sewage Disposal.  Limitations, Statute of.  Negligence, Installation of septic system, Misrepresentation.  Fraud.  Contract, Performance and breach.  Consumer Protection Act, Unfair or deceptive act.       Civil action commenced in the Superior Court Department on May 23, 2008.   The case was heard by Maynard M. Kirpalani, J., on motions for summary judgment.     Daniel J. Murphy for the plaintiff. Eric A. Howard (Patricia B. Gary with him) for Whitman & Bingham Associates, P.C.     GRAHAM, J.  After a wastewater treatment plant for one of its development projects vastly exceeded projected costs, the plaintiff, Massachusetts Housing Opportunities Corporation (MHOC), filed a complaint alleging tort claims (counts I – III), breach of contract (count IV), and violation of G. L. c. 93A (count V) against the defendants, engineering firms Whitman & Bingham Associates, P.C. (Whitman), and Aquapoint, Inc. (Aquapoint).[2]  A judge of the Superior Court granted the defendants’ motion for summary judgment, and MHOC appeals.  It argues that the judge erred in concluding that its tort and contract claims are barred by the applicable statute of limitations, and that its c. 93A claim is without support in the record.  We affirm.   Background.  The undisputed facts, viewed in the light most favorable to the nonmoving party, MHOC, are as follows.  In 2003, MHOC, a property development corporation, was in the process of developing a condominium project in Sterling (development).  On October 2, 2003, it entered into an agreement with Whitman to design “a subsurface sewage disposal system” (septic system) for the development.  Whitman, in turn, hired Aquapoint to provide information about sewage treatment equipment and permitting advice.  Whitman began work on the design, and, in November, 2004, told MHOC that the septic system could be permitted relatively inexpensively under the Department of Environmental Protection’s (DEP) Title 5 alternative system for piloting program (piloting program).[3]  Thereafter, on December 15, 2004, Whitman submitted an application under the piloting program on behalf of MHOC.  MHOC signed the application and paid the $ 430 filing fee by check.  Also in December, 2004, MHOC received a $ 300,000 bid from a third party, M.P. Crowley, to construct the septic system […]

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Posted by Massachusetts Legal Resources - February 21, 2013 at 10:04 pm

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