We were delighted to see so many clients and friends at the MMA Annual Meeting last week and hope you came away with some good information and new insights. It was a pleasure to chat with many of you at the Member Associations Breakfast sponsored by our firm - we are honored to support the MMA in this way each year. We look forward to doing it all again in 2011!
Attorney Ilana M. Quirk will be the Faculty Chair at the Massachusetts Continuing Legal Education seminar on the subject of "Advocacy Before Municipal Real Estate Permitting Boards" to be held on February 10, 2010, from 8:30am-12:30pm at the MCLE Conference Center, 10 Winter Place, Boston, MA. For more information on this seminar, go to www.mcle.org.
Attorneys Kay Doyle and Joel Bard received an Appeals Court affirmation of their victory on behalf of the Town of Pembroke in Plymouth Superior Court in Town of Pembroke v. Foundation for Humanity. The Massachusetts Appeals Court upheld a Superior Court judgment in favor of the Town, finding that the six-year statute of limitations in the state Zoning Act did not bar the Town from enforcing its Zoning Bylaws prohibiting multi-family dwellings where the property owner received building permits for single-family dwelling units on the same property. The case establishes that inaccurate descriptions in building permit applications cannot later be used to bar zoning enforcement. The Appeals Court also ruled that a property owner may not collaterally attack the substance of a cease and desist order in Court after failing to file the proper administrative appeal from the cease and desist order.
Attorneys Gregg J. Corbo and Jeffrey T. Blake have obtained a landmark victory before the Supreme Judicial Court, limiting the authority of the Department of Environmental Protection (DEP) to impose restrictions on municipal water suppliers. Click here to read the decision.
Attorney George Pucci, a senior litigator in our Land Use Group, has obtained a major victory for the Town of Weston and the Weston Zoning Board of Appeals to prevent construction of a massive 362-unit luxury housing development in a single-family residential district, in violation of the Town’s Zoning Bylaws. Attorneys for the plaintiff, Regis College, argued that the project was exempt from applicable zoning regulations under the guise that the project qualified as an educational facility for senior residents subject to protection under the Dover Amendment of the Massachusetts Zoning Act. In a case which the plaintiff’s attorneys aggressively litigated against the Town in the Massachusetts Land Court for more than four years, with zero willingness to compromise on the size and scope of the project in any way, Justice Sands granted the Town’s motion for summary judgment on the Dover use issue, ruling that the proposal does not qualify for Dover Amendment protection because the alleged educational component of the project is not its predominant use. As is consistent with the Town’s position from the outset of the litigation, Justice Sands found that the residential and financial components of the project “dwarf” any educational components, and that while the concept of a senior residential facility on campus grounds may be commendable, he hoped that Regis would “develop a facility that comports with the zoning requirements of Weston while still meeting and exceeding the needs of aging residents.” The firm is proud to have assisted the Town in protecting the integrity of its local Zoning Bylaws, in order to preserve the health, safety, and general welfare of its residents.
Attorneys Jeffrey Blake and Megan Bayer recently obtained a favorable decision in their defense of the City of Woburn in the case of Michael P. O’Meara, Trustee of the Michael P. O’Meara Revocable Trust v. City of Woburn, Middlesex Superior Court C.A. No. 06-0451. This matter was an action brought by the plaintiff claiming that the City sewer servicing his commercial building was negligently maintained. As a result of this alleged negligent maintenance, there was a sewer backup in the building which he alleged caused him approximately $96,000 in damages (actual damage plus lost rent). After the close of the plaintiff’s case, the City moved for judgment as a matter of law, arguing that the plaintiff failed to meet his burden of proof. The judge conducting the trial took a short recess, returned, and issued a judgment in favor of the City.
Len Kopelman Named Super Lawyer:
For the 4th year in a row, Leonard Kopelman, founder and president of our firm, has been selected as a Massachusetts "Super Lawyer" by Law & Politics and Boston Magazine. As a specialist in municipal law, Len was recommended by his peers as one of the top attorneys in the State practicing in this area of law. Nominations to be included in this list of exceptional lawyers are received from thousands of attorneys state-wide and are independently vetted by a panel of peers based on 12 indicators of peer recognition and professional achievement. The objective of the list, according to the magazine, is "to create a credible, comprehensive and diverse listing of outstanding attorneys."
Attorney Vicki S. Marsh represented the Town of Plymouth in its acquisition of the Crawley Woodlands Preserve property off Billington Street from the Crawley family. This property is a beautiful 70-acre site designated a “priority habitat” by the Natural Heritage and Endangered Species Program. This acquisition protects the property for open space and public water supply purposes as well as protecting its wildlife. This property was acquired from a grant from the Federal Land and Water Conservation Fund, a grant from the Department of Fish and Game, from Challenge Grant funds and Community Preservation funds. Kopelman and Paige, P.C., represented the Town in all aspects of negotiations with the Seller and the various agencies involved including the review of the Conservation Restriction, the recording of the deeds and conservation restriction, and the issuance of the title certification on the property.
For further information, please click here to see.
One of the ways cities and towns have increased their inventories of affordable housing is through the transfer of municipally owned property, usually tax title parcels, to the housing authority or a non-profit like Habitat for Humanity. Usually, these transfers are for nominal consideration in return for the eventual grant of an affordable housing restriction from the new homeowner to the city or town. To make sure that the property will be used for affordable housing in accordance with the wishes of the municipality, our deeds include the right of the municipality to take the property back (a right of reverter) if the property is not conveyed to an affordable buyer within a certain period of time, typically three years from the date of the deed.
We were certainly pleased that this language was approved by the Appeals Court in the recent decision in Faneuil Investors Group LP v. Board of Selectmen of Dennis, 75 Mass. App. Ct. 260 (2009). Faneuil Investors Group filed an action in the Land Court to reinstate the mortgage it held on property once owned by the Dennis Housing Authority. This property had reverted to the Town after the violation of a restriction in the deed from the Town to the Housing Authority. The particular provision of the deed from the Town reserved the right in the Town to enter the property and revest title to it if the Housing Authority ceased to exist or if the property was conveyed or transferred without the written consent of the Board of Selectmen. The Town exercised its right of reverter on the grounds that the Housing Authority had granted a mortgage to Citizens Bank without obtaining the written consent of the Board of Selectmen. (Faneuil purchased the note from Citizens Bank.) Faneuil argued that the mortgage was not a conveyance that would trigger the right of reverter, and further, even if the mortgage did trigger the reverter, the Board of Selectmen had no authority from Town Meeting to include a reverter provision in its deed. In its decision, the Appeals Court recited the many Massachusetts cases that have held that mortgages are conveyances of title and refused to treat the mortgage as a security interest. The Court further found that the provisions included in the deed were well within the authority given to the Board by Town Meeting and established a “reasonable mechanism by which the Board can execute the intent of the vote”, i.e., the continued use of the property for affordable housing.
Leonard Kopelman delivered the commencement address to the graduates of Harvard University's School of Continuing Education at Harvard's 358th Commencement held on June 4, 2009, in Cambridge, MA.
Attorney Mary L. Giorgio obtained a rare legal decision construing the statute of limitations of the so-called "vicious dog statute", G.L. c. 140, §157. The Orleans District Court allowed the Town of Wellfleet Board of Selectmen's Motion to Dismiss a complaint brought under that statute on the basis that it was untimely filed. Following is a brief case summary. (LUCINDA GOLDMAN v. BOARD OF SELECTMEN OF THE TOWN OF WELLFLEET)
After a public hearing on a complaint concerning an alleged vicious dog, the Board of Selectmen ordered the dog banished from the Town. The dog owner, who with her counsel, attended the hearing, subsequently petitioned the Orleans District Court to review and reverse the decision pursuant to G.L. c. 140, §157. That statute requires that such a petition be filed "within ten days after such order." The order was sent by mail to petitioner's permanent residence and hand delivered to petitioner's summer house in Wellfleet on a Wednesday. The tenth day, from the date the order was voted, fell on the second Friday after the vote. The tenth day, after the order was sent, fell on the second Saturday after the order was sent. Town argued the statute required, at the latest, that the complaint for review be filed on the next business day after the second Saturday, which would be the following Monday. The complaint was not filed until Tuesday, one day late, and, consequently, the Town argued that the complaint should be dismissed as the Court had no jurisdiction to hear the complaint on the basis that it was untimely filed.
The District Court agreed, finding that the filing period commenced upon either the date the Selectmen voted the banishment order or, at the latest, the date it was sent to the dog owner, not the date of receipt of the order. The Court also found that the intermediate weekend days within the ten-day period should not be excluded from the computation of the ten-day filing period. Accordingly, the Court found that the complaint was late filed and dismissed the case for lack of jurisdiction.
Attorney Janet Hetherwick Pumphrey’s book review of “Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing” has been published in the Massachusetts Law Review (April 2009). Click here to view article.
Attorney Joyce Frank's article entitled "Indemnification Under the Massachusetts Tort Claim Act: Government As Insurer" has been published in the Massachusetts Law Review, Case Comment (April 2009). Click here to view article
On Friday, March 27, 2009, Charter Communications filed for bankruptcy, as expected. We have attached a most typically asked question and answer summary for your review. Please click here.
In a landmark decision issued on December 10, 2008, the Norfolk Superior Court (Brady, J.), ruled that the Department of Environmental Protection (DEP) does not have the authority to impose conditions upon public water suppliers’ use of water under registration statements issued in accordance with the Water Management Act. Under the Water Management Act, public water suppliers who withdrew more than 100,000 gallons of water per day prior to passage of the Act were permitted to register those withdrawals as a means of grandfathering such uses. The Act provides that public water suppliers could continue such registered withdrawals as long as they applied for renewal every ten years. Registration statements came up for renewal in 2007, and as part of the process, DEP imposed conditions limiting the amount of water that could be used for residential purposes. Thirteen communities filed complaints in the Superior Court seeking to have the conditions stricken from the renewed registrations. The Superior Court consolidated the cases and ruled that the clear legislative intent of the Water Management Act was to grandfather existing withdrawals and no provision of the Act expressly permitted DEP to impose conditions on registered withdrawals. Accordingly, the Court issued a judgment requiring DEP to accept all registration renewal applications without condition. Although DEP is likely to appeal, at this juncture, public water suppliers who received registration renewals in 2007 are not required to adhere to those conditions. Kopelman and Paige, P.C. represented five of the 13 plaintiffs – Harwich, Manchester-by-the-Sea, Millis, North Reading, and Brockton.
Attorney Richard T. Holland's article entitled "'True' Breaches of Contract" has been published in the Massachusetts Law Review, Volume 91, No. 3 (October 2008). Click here to view article.