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HomeMy WebLinkAbout2012-08-07 Planning Board Supplemental Materials (32) URBELIS&FIELDSTEEL, LLP 155 FEDERAL STREET BOSTON,MASSACHUSETTS 02110-1727 THOMAS URBEus - - - Telephone 978-475-4552 e-mail tju@uf-law.com - Telephone 617-338-2200 Telecopier 617-338-0122 July 26, 2012 North Andover Planning Board Town of North Andover 1600 Osgood Street North Andover, MA 01845 Dear Members: Since 1996 I have served as the Amicus Curiae ("Friend of the Court") Brief Coordinator for the Massachusetts City Solicitors and Town Counsel Association. I review cases involving municipal law which have been decided at the trial level and are pending in appellate courts, discuss the issues with the attorneys in the cases and recommend to my Association colleagues which pending cases on appeal are appropriate for the filing of an Amicus Curiae Brief. Enclosed is a recent article which I wrote for the Association's Newsletter which I thought you might find of interest. I was the author or a co-author of 22 of the 28 briefs filed in the cases which are listed in the article. As always, please call if you have any questions. Very truly yours, Thomas J. rbelis TJU/kmp Enclosure cc: Curt Bellavance (w/enc) Judy Tymon(w/enc) ea\%�V51\uvrk\n-andovecorresp\planningbcard lu2atca docs , AMICUS CURIAE REPORT By Thomas) Ucbehs Esq As part of the mission of the City Solicitors and Town come? Counsel Association, the Association files Amicus Cu- _ Has the issue been (somewhat) addressed in riae ("Friend of the Court") briefs with various appel- late courts when there are issues to be decided in a prior decisions? case which could have an impact upon a significant — Is the position of the municipality requesting the number of municipalities.The members of the Associa- amicus brief consistent with the position which tion who write these briefs in support of municipalities the Executive Committee believes the vast major- are not compensated for their services and the Asso- ity of municipalities would adopt? ciation does not charge municipalities for the writing, — Is the Issue or case one of enough importance or printing and filing of the briefs. Impact on municipalities or is it Just an interesting issue which lawyers might debate? The Association receives many requests to participate — How likely is it that the issue will reoccur? in drafting and filing an amicus brief. It is the policy of — Does language or the logic of the brief on behalf the CSTCA to be very selective in the filing of such of the municipality already address how the deci- briefs.. The Executive Committee authorizes the filing sion might affect other municipalities? of such briefs.The criteria which the CSTCA considers in deciding whether to file such a brief are the follow- — Does the municipality want the Association to file an amicus brief?ing: Has the municipality itself filed a brief? level? — Would the Association's brief be merely a "me- - Is the case at an appropriate appellate leveltoo" brief in that it would essentially reiterate — Does the case reflect an issue of concern to a and support what the municipality's brief says or substantial number of municipalities? is there some other avenue of argument which How many amicus briefs has the Association filed might only be raised by the Association? recently, with the thought being that the Asso- ciation wants the courts to look at our briefs with an eye toward quality and not necessarily (here comes another one of those CSTCA briefs) quan- tity.Is the case more of a fact intensive one,with par. 4 x Cont.onto p.4 titular facts which are determinative to the out- =;f Volume I, Issue 4—Summer 2012 THE MUNICIPAL LAW NEWSLETTER© Page 4 AMICUS CURIAE REPORT t; from p..3 ;• — Is there enough time (very often the Association Morrissey v. New England Deaconess Assoc., 458 Mass. 580 Is brought into the mix when all briefs are al- (2010) ready filed) and human resource available (Court agreed with CSTCA that tort claims for private nui- (remember the authors of the brief are uncom- sante that are brought against the Commonwealth fall within pensated) to write a brief which the Association the purview of the Massachusetts Tort Claims Act, G.L. c. can be proud to file? 258 and in this case were barred by the express language of — Is there some overriding, overreaching,global, all G.L. c. 258, §10(e), an exception preserving sovereign immu- encompassing reason why the Association nity under the Massachusetts Tort Claims Act as to claims should file a brief in the case? based on, Inter alia, the Commonwealth's issuance of a per- mit.) Following is a list of reported cases In which the Associa- tion has filed such an Amicus Curiae brief over the last 16 Fordyce v Town of Hanover,457 Mass.248 (20 10) years in support of cities and towns throughout the (Court agreed with CSTCA that in the absence of detrimen- Commonwealth: tal reliance by the building committee, a general contractor's intentional misrepresentation, even if intended to deceive Reels College v Town of Weston,462 Mass.280 (2012) the committee, does not constitute "fraud"within the mean- ing of G.L. c, 149, §44Dh(h), and therefore does not require (Contrary to the position of the Town, which was sup- that the committee's prequalification of the contractor be ported by the CSTCA, the Court vacated summary judg- vacated.) ment for the Town and concluded that while the protec- tion of the Dover Amendment is not limited to tradi- tional or conventional educational regimes, the term Blair v Dept of Conservation and Recreation 457 Mass. 634 "educational purposes" should be construed so as to (2010) minimize the risk that such protection will improperly be (Court agreed with CSTCA that for purposes of a regulatory extended to projects that do not in fact have as their taking claim for monetary damages, the "relevant parcel" primary and genuine purpose a goal that reasonably could which should be considered in the analysis is the entire par- be described as educationally significant.) cel, not just the portion of the property affected by the chal- lenged governmental regulation.) Marcus v City of Newton,SJC, decided May 7,2012 (Contrary to the position of the City, which was sup- Calvao v.Town of Framingham,(First Circuit) (20 10) ported by the CSTCA, the Court concluded that the City (Court agreed with CSTCA that a city or town need not was not entitled to summary judgment under G.L. ch. 21, give notice to its public safety officers as a matter of federal §17C, the recreational use statute where the plaintiff paid law before the municipality takes advantage of a special a fee to a sports league rather than directly to the City statutory exemption for these officers from usual overtime for the use of a field.) requirements.) Adams v City of Boston 461 Mass. 602 (2012) Silva v City of Attleboro,454 Mass. 165 (2009) (Court agreed with CSTCA that G.L. c. 41, §I08L, a local (Court agreed with CSTCA that monetary charges for the option statute establishing a career Incentive pay program issuance of burial permits were valid fees and not taxes.) for police officers, through a system of shared funding with the Commonwealth, requires only that municipals- - - ties pay one-half the amounts specified in the payment provision, plus any amount actually received from the ,�.., Commonwealth.) -,_ •- Cont.onto p.5 �§ Volume 1, issue 4—Summer 2012 THE MUNICIPALLAWNEWSLETTER© Page S AMIGU$ CURIAE REPORT cont.'from p: 4 81 Spooner Road LLC v Town of Brookline,452 Mass. 109 municipal approvals of a pro- (2008) ro(2008) posed residential subdivision _ (Cour[agreed with CSTCA and upheld maximum floor plan, as well as all necessary g P `` area in zoning bylaw.) permits.) Bell Atlantic Mobile of Massachusetts Corp. td v Com- RCN-BecoCom LLC v P Commissioner of Revenue missioner of Revenue,451 Mass. 280(2008) - x et al.,443 Mass. 198 (2005) (Court agreed with CSTCA that a provider of wireless cel- - lular telecommunication service was not a "telephone com- (Court determined in an pany"for purposes of central valuation of certain of its per- appeal from a determination of the appellate tax board sonal property.) that the plaintiff, a limited liability company classified as a telephone company, was not exempt from taxation of its Zoning Board of Appeals of Groton v. Housing Appeals personal property [machinery, poles, wires and under- Committee,451 Mass. 35 (2008) ground conduits, wire and pipes] by virtue of G.L. c. 59, (Court agreed with CSTCA that Housing Appeals Commit- §5, Sixteenth.) tee did not have authority to order the town to convey an easement to a developer,) Zuckerman v. Town of Hadley,442 Mass. 511 (2004) (Contrary to the position of the Town of Hadley, which Suffolk Construction Co. Inc v Division of Capital Asset was supported by the CSTCA, the court concluded that Management,449 Mass.444 (2007) except when used to give communities breathing room for periods reasonably necessary for the purposes of growth (Court agreed with CSTCA that confidential communica- planning generally, or resource problem solving specifically, tions between public officers and employees and govern- zoning restrictions of an indefinite or unlimited duration mental entities and their legal counsel, undertaken for the on a municipality's rate of development are unconstitu- purpose of obtaining legal advice or assistance, are pro- tional.) tected under the normal rules of the attorney-client privi- lege.) Durand v. IDC Bellingham LLC,440 Mass.45 (2003) Carleton v. Commonwealth, 447 Mass. 791 (2006) (Court agreed with CSTCA that a voluntary pledge by a corporation that if the Town of Bellingham were to re- (Court agreed with CSTCA that in a handicap discrimina- zone a particular parcel for industrial use [and if other tion case brought by a hearing-impaired individual who events occurred], the corporation would pay the town a sought employment as a municipal fire fighter,where a cer- certain sum,was not an adequate ground on which to find - tain level of hearing acuity was an essential qualification for "contract zoning" to set aside the town's otherwise valid a municipal fire fighter, the accommodation the plaintiff legislative act of enacting at town meeting a bylaw rezoning sought—the use of hearing aids—was not a reasonable one the parcel for industrial use.) and, therefore, the plaintiff had no reasonable expectation of proving that he was a qualified handicapped person.) Sharon v. City of Newton.437 Mass.99 (2002) Town of Franklin v. Wyllie.443 Mass. 187(2005) (Court agreed with CSTCA that in a case in which a minor was injured while participating in a city's high school's (Contrary to the position of the Town, which was sup- cheerleading practice, the plaintiffs father had authority to ported by the CSTCA, the court concluded that a fully exe- bind the plaintiff to an exculpatory release that was a cuted purchase and sale agreement for land taxed as agri- proper condition of her voluntary participation in extra- cultural or horticultural under G.L. c. 61A, constituted a curricular sports offered by the city.) bona fide offer to purchase, thereby triggering a town's right of first refusal even where the purchaser's obligation under the agreement was conditioned on the receipt of Cont.onto p.6 Volume I, Issue 4—Summer 2012 THE MUNICIPAL LAW NEWSLETTER© Page 6 gMICUS CURIAE REPORT°cont:from,p 5 "' rl Zoning Board of Appeals of Wellesley v Ardemore Apartments granting authority took "final action" within the meaning of Limited Partnership,436 Mass. 811 (2002) G. L. c. 40A, § 9, by recording with the city clerk the result (Court agreed with CSTCA that where a comprehensive permit of its vote on an application for a special permit, and was itself did not specify for how long housing units must remain not compelled by that section to file at the same time the below market, the comprehensive permit statute required the reasons for its decision in order to avoid a constructive owner to maintain the units as affordable for as long as the approval of the application.) housing was not in compliance with local zoning requirements, regardless of the terms of any attendant construction subsidy Brum v: Town of Dartmouth & Others, 428 Mass. 684 agreements.) (1999) (Court agreed with CSTCA that under the so-called statu- Town of Milford v. Boyd,434 Mass. 754 (200 1) tory public duty rule set forth in G.L. c. 258, §10(j), public (Contrary to Town of Milford's position, which was supported school officials were not liable under the Massachusetts by the CSTCA, in an action arising out o/ a town's tax collet- Tort Claims Act for their alleged negligent failure to pro- tecttor's placing I I units in a commercial condominium complex in a certain student from a known threat that resulted in tax title for failure to pay real estate taxes, the court required his murder on school premises by third parties.) the town to pay condominium common area charges assessed after taking record title to the condominium units.) Lawrence v City of Cambridge,422 Mass.406 (1996) (Court decided in a civil action where the plaintiff alleged a Western Massachusetts Lifecare Corporation v Board of Asses- city police department negligently failed,to protect him, sors of Springfield, 434 Mass. 96 (200 1) resulting In him being shot, there remained a genuine issue (Court agreed with CSTCA that a charitable corporation of material fact whether the city's promise to protect the formed exclusively to provide housing, nursing care, and other Plaintiff"when [he] closed [his] store at night" was explicit related services designed to meet the special needs of the eld- and specific so as to fall within the provisions of G.L. c. 2S8, erly failed to demonstrate that it was entitled to a charitable §I0(j)I, and thus make the city liable.) exemption pursuant to G.L.c. 59,§5.) - Flatley v City of Malden„40 Mass.App.Ct.38 (1996) Fafard v. Conservation Commission of Barnstable, 432 Mass. (Court agreed with CSTCA that a city's public works com- 194 (2000) mission's classification system of incrementally increasing (Court agreed with CSTCA that a municipal conservation com- rates to consumers for higher consumption of water was mission acted within its authority under the local bylaw to deny not demonstrated to be unreasonable and discriminatory a permit to build a pier on the basis that the pier would have a because it resulted in higher rates charged to apartment dwellers who were not metered separately but whose significant adverse impact on recreation.) building was equipped with a single meter.) Greater Franklin Developers Association v. Town of Franklin 49 Mass.App. Ct.500 (2000) Town of Middleborough v Middleborough Gas and Electric Department,422 Mass. 583 (1996) (Contrary to the position of the Town, which was supported by the CSTCA, the court decided that a "school impact fee;' (Court determined a municipal gas and electric department charged to persons constructing new housing or expanding an was sufficiently separate and distinct as a financial and politi- cal entity from the municipality itself so as to properly be a existing dwelling,was an impermissible tax.) defendant In a negligence action brought by the municipality for damages arising out of a fire that partially destroyed a Board of Aldermen of Newton v. Maniace,429 Mass.726 (1999) public school building owned by the municipality.) (Court agreed with CSTCA that a special permit