April is national poetry month! Alas, your poetically-challenged editor is unable to provide this month’s Miyares and Harrington LLP newsletter in iambic pentameter. Please enjoy this month’s update in free verse.
 
We are pleased to announce that Alexandra Rubin has joined our firm as Counsel. Alex was most recently a Deputy General Counsel and Administrative Hearing Officer with the Department of Public Health, where her experience included a range of administrative, regulatory and employment law matters.
 
Rebekah Lacey was a featured speaker at the April open luncheon meeting of the Real Estate Bar Association’s Environmental Law Section. Rebekah discussed the recent Appeals Court decision in Smyth v. Conservation Commission of Falmouth, which was reviewed in our February newsletter. Rebekah authored an amicus brief on behalf of the Massachusetts Association of Conservation Commissions in this case, which focused on the application of regulatory takings law to public nuisance regulation.
 
Ivria Glass Fried recently moderated a Massachusetts Municipal Law Association panel on liquor licensing, focusing on common issues of local review, approval and enforcement, as well as recent changes in ABCC procedures. Katie Stock also recently moderated a panel of the Boston Bar Association’s Continuing Legal Education program on Environmental Law Standing.
 
We extend our congratulations to our former client Cambridge Bike Safety for its successful pursuit of a ground-breaking ordinance in Cambridge to require permanent physical separation between bicycles and motor vehicles whenever a City road is improved in accordance with the City’s five-year plan for upgrading its streets and sidewalks. Ivria Glass Fried assisted in drafting the ordinance, which is currently serving as a model for a proposed ordinance in Washington, DC.

This month's newsletter features:
Minority Members of a Board Cannot Control Litigation
A recent Federal District Court decision highlights the distinction between the supermajority vote of a Special Permit Granting Authority that is needed to issue a Special Permit and the majority vote of the Board of Selectmen that is needed to defend and settle litigation over the denial of that permit. The Planning Board of Hamilton considered whether to grant a Special Permit to an applicant for a cell tower. The Board voted 4-3 to approve the Special Permit with conditions, but M.G.L.c.40A, §9 requires approval by a 5-vote supermajority, so the application was denied.
 
The applicant appealed under the federal Telecommunications Act and M.G.L.c.40A, §17 to Federal District Court, naming, as defendants, the Town, the Planning Board, and the Planning Board members in their official capacities only. A majority of the Planning Board, the same four who voted to grant the permit, refused to authorize a defense of that action. The Board of Selectmen therefore filed an answer and appeared in the Town’s defense. The three members who voted against issuing the Special Permit hired private counsel, who filed an answer on their behalf. The Selectmen then moved to strike the answer on behalf of the three members and, with the applicant, jointly filed an agreement for judgment that incorporated the terms favored by the Planning Board majority.
 
The Court held that the minority members of the Board lacked standing to participate separately in the litigation and to challenge the agreement for judgment. He cited to the Town Bylaws that authorized the Board of Selectmen to prosecute, defend, and compromise all litigation to which the Town is a party, defended by Town Counsel. The bylaws are consistent with state law, the Court noted. No statute authorizes the Planning Board members to hire separate counsel or to seek to represent the Board themselves. The Court therefore held that the minority Planning Board members’ answer be struck. The decision is Varsity Wireless Investors, LLC v. The Town of Hamilton, No. 17-11826-MLW (D. Mass. March 31, 2019).
Supervisor of Public Records Authorizes Town to Charge Fees for Segregation and Redaction, Including Attorney Time
In our March newsletter, we reported on a statement by the Supervisor of Public Records that municipalities require her authorization to charge fees for segregation and redaction of records, unless the reason for the segregation and redaction is to withhold records under Exemption (a) of the Public Records Law (records exempted from disclosure by statute). We are pleased to report that Miyares and Harrington LLP obtained authorization for a municipality to charge for time spent by an attorney reviewing e-mails in order to segregate and redact records covered by the deliberative process exemption or attorney-client privilege, which we believe will provide helpful precedent for similar petitions on behalf of other municipalities.
 
Miyares and Harrington submitted a petition on behalf of a Hopkinton Records Access Officer for a waiver of statutory limits on fees, pursuant to 950 CMR 32.06(4)(h), for responding to a public records request made by a development company. The company had threatened litigation against the Town in connection with its efforts to develop a parcel of land; the records sought were clearly relevant to the threatened litigation; and it was likely that many e-mails responsive to the request concerned the threatened litigation and thus were exempt from disclosure under the deliberative process exemption to the definition of “public record” or were subject to the attorney-client privilege. The Supervisor of Public Records approved the petition, agreeing with the Town that the records request was for a commercial purpose and allowing the Town to charge fees for segregation and redaction of the e-mails at a rate of $115.00 per hour (with a cap of 40 hours).
Town Meeting Moderators –You Set the Tone!
Town Meeting Time– the go-to guide for Town Meeting – states that, “[i]n King James’s day debate may have been properly classified in the same category with murder, but murder is now virtually nonexistent in town meetings, and other forms of violence are rare.” Well, we should certainly hope so! However, in case things get a bit out of hand this Town Meeting season, we take this time to remind Town Meeting Moderators that you control decorum during a Town Meeting (and that the police are always nearby to help).
 
No person may address Town Meeting without leave of the Moderator. The speaker should address themselves not to the meeting or to any particular member but to the Moderator and state his or her name and the precinct or street he or she lives on. No person should indulge in personalities and the Moderator may forbid any speaker to mention any person present by name or to address anyone in the second person.
 
Moderators are also reminded that no person should be permitted to speak at length unless a motion is pending. No one is to use indecent language. No person can interrupt another except for a point of order or question of privilege. Additionally, “[w]hen an array of gentlemen [or gentlewomen] rise at the same moment, and vociferate in concert, it becomes the instant duty of the presiding officer to quell this gale.” Town Meeting Time suggests vigorous rapping with a hammer to quiet the group, but we trust that each Moderator will find what works best in each individual circumstance.
 
It is also worth noting that the Moderator is not without power to remove a disorderly person. If a person addresses Town Meeting without leave of the Moderator or refuses to be silent at the request of the Moderator, the Moderator should give the individual a warning. If, after the warning, the disorderly behavior persists, the Moderator may order a constable or any other person to remove the individual.
 
Moderators are the unsung heroes of New England municipal governance. Town Meeting is the heart of our democracy and Moderators play a significant and important role in ensuring that all voices are heard and responded to respectfully.

Rapid Fire Updates:
EPA: The Clean Water Act Does Not Apply to Groundwater
 
On April 15, 2019, the U.S. Environmental Protection Agency (EPA) issued an “Interpretive Statement” taking the position that the Clean Water Act’s permitting requirements do not apply to discharges to groundwater. Although this statement does not apply where federal appeals courts have held that the Clean Water Act does apply to groundwater, the Court of Appeal for the First Circuit (in which Massachusetts is located) has made no such ruling.
 
MassDEP Proposed Waste Site Cleanup Regulations Include a Lower Standard for PFAS Compounds in Groundwater
 
On April 19, 2019, the Massachusetts Department of Environmental Protection issued draft revisions to its hazardous waste site cleanup regulations at 310 CMR 40.0000, known as the “Massachusetts Contingency Plan” (MCP). Of particular relevance to public drinking water suppliers is a new proposed cleanup standard for per- and polyfluoroalkyl substances (PFAS) in groundwater within a drinking water source area (classified as “GW-1” under the MCP). MassDEP is proposing a standard of 20 parts per trillion (ppt), a reduction from its current guideline of 70 ppt. MassDEP has stated that comments on the proposed MCP PFAS standard will be shared with the MassDEP Drinking Water Program to inform its work on developing a drinking water standard for PFAS.
 
For more information on PFAS and drinking water, see MassDEP’s web page on its development of a PFAS drinking water maximum contaminant level (MCL).



Trivia!
 
Question: What famous poet wrote the following stanza, and what is her connection to Massachusetts?
                     Absent Place – an April Day –
                     Daffodils a-blow
                     Homesick curiosity
                     To the Souls that snow –
 
Last issue's question: According to the 2010 U.S. census, which Massachusetts municipality is the most Irish town in the United States?
 
Answer: Scituate.
 
Winner: Congratulations to Robert W. LeLacheur, Jr., Town Manager of the Town of Reading. He wasn’t the only one with the correct answer, but he was the quickest responder.
 

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