February, when a person’s thoughts turn to love. Whether you celebrate Lupercalia or commemorate the martyrdom of one or more St. Valentines, we hope that you continue to love reading the Miyares and Harrington newsletter. And take ❤️! At least it is no longer pitch black at 5 pm.

This month's newsletter features:
  • Appeals Court Sides with Conservation Commission in Takings Case

  • Town Meeting vs. Select Board: There Are Some Things that Town Meeting Can’t Do

  • Gun Licenses: Some Are Granted; Some Are Not

  • Staffing Changes Do Not Constitute Good Cause for Failing to Approve Minutes Under the Open Meeting Law in a Timely Manner

  • Trivia – Multiple Choice

Appeals Court Sides with Conservation Commission in Takings Case
Conservation commissions can breathe a sigh of relief because the Massachusetts Appeals Court has overturned a jury verdict awarding compensation to the owner of a waterfront parcel who was denied a permit under the Falmouth Wetlands Bylaw.
 
In Smyth v. Conservation Commission of Falmouth, the Falmouth Conservation Commission had denied an Order of Conditions for a project to construct a residence and related infrastructure within wetlands resource areas protected by the Bylaw. After the denial was upheld in Superior Court, the owner brought a regulatory takings claim against the Commission and the Town of Falmouth.
 
A regulatory taking occurs when a government regulation “goes too far,” infringing so greatly on private property rights that it has the same effect as if the government had taken the property by eminent domain. In such a case, the government must provide just compensation to the property owner. Over Falmouth’s objection, the judge ordered that the case be tried before a jury, which found that the permit denial constituted a regulatory taking and awarded the plaintiff $640,000 plus interest.
 
Falmouth filed an appeal, arguing that the plaintiff had no right to a jury trial and the permit denial did not meet the test that case law establishes to determine when a regulatory taking has occurred. On behalf of the Massachusetts Association of Conservation Commissions, our own Rebekah Lacey filed an amicus curiae brief in support of the Town, arguing that application of reasonable regulations intended to prevent public harm from private use of land is not the type of government action that requires that an affected property owner be compensated. The brief noted that, if this kind of permit denial were held to be a taking, municipalities’ ability to prevent harm from flooding and coastal storms would be severely impeded.
 
The Court held that the case should not have gone to the jury, because a regulatory takings claim is not the type of action for which a right to trial by jury was recognized in 1780, when the Massachusetts Constitution was adopted, guaranteeing that right in certain types of cases. But rather than remand the case to Superior Court for a bench trial, the Appeals Court reviewed the trial record and concluded that, even if viewed in the light most favorable to the plaintiff, the evidence did not support a claim of regulatory taking. Among other things, the Court agreed with the position taken by Falmouth and MACC that government regulation of land use intended to mitigate harm typically does not constitute a taking. Thus, the Court ordered that judgment should issue in favor of the Town. This is a happy ending for municipalities, removing the specter of massive regulatory takings claims for common land use regulations.

Town Meeting vs. Select Board: There Are Some Things that Town Meeting Can’t Do
There are times when citizens want to check a board’s authority by requiring that Town Meeting voters approve items that a state statute assigns to the authority of the board. Charlton Town Meeting voters tried to do just that by adopting a Bylaw that would have required Town Meeting approval of any Host Community Agreement (HCA) for recreational marijuana. It also sought to void any previously signed HCA that did not comply with M.G.L. c.94G. On January 15, 2019, (Case #9154) the Attorney General’s Municipal Law Unit disapproved the Bylaw.
 
The Attorney General concluded that the proposed Bylaw interfered with the contracting authority of the Board of Selectmen, as the statute gives approval of HCAs to the municipality’s contracting authority and does not require Town Meeting approval. The statute, M.G.L. c.94G, §3, requires that a marijuana establishment or a medical marijuana treatment center execute an agreement with the host community. It does not specify the method of approval by the host community. The regulations, 935 CMR 501.101 (1)(a)(8) state that the applicant for a marijuana establishment license must submit a certification “signed by the contracting authorities for the municipality….”
 
The Attorney General noted that negotiations over HCAs are protracted, conducted by representatives who have the authority to agree to terms. But there is no representative who can speak for Town Meeting and no method by which either party can know if the negotiated terms will be approved by Town Meeting. Since the negotiation of an HCA can be lengthy and complicated, potentially for naught, the requirement of Town Meeting approval was deemed to be an unreasonable risk to the prudent business person and thus barred by M.G.L. c.94G, §3 as unreasonably impracticable.
 
Moreover, since the statute and regulations are silent as to Town Meeting approval of HCAs and the regulations refer only to the community’s contracting authority, the Attorney General concluded that the Legislature intended that the Board of Selectmen in its capacity as the Chief Executive Officer should exercise its traditional contracting role. By requiring Town Meeting approval of HCAs, the Attorney General concluded, the Bylaw text “usurps the authority of the Board of Selectmen” to enter into contracts on the Town’s behalf….”

Gun Licenses: Some Are Granted; Some Are Not
A person must be licensed to carry a gun under M.G.L. c. 140, §131 in order to preserve the public health, safety and welfare. The licensing authority must make a two-step inquiry to determine if the applicant (1) is a suitable person and (2) has a proper purpose for carrying a firearm. The licensing authority may also restrict such licenses to specific purposes and revoke a license if the individual is no longer suitable. The licensing authority has considerable latitude in making those decisions, but surprisingly little precedent to follow. Both Phipps v. Police Commissioner of Boston and Nichols v. Chief of Police of Natick, two recent decisions by the Supreme Judicial Court, provide some guidance on how that discretion may be exercised.
 
In the Phipps case, the Supreme Judicial Court found that the Boston Police Department overstepped its authority by revoking a license without a reasonable ground. Suitability is tied to the goal of keeping firearms out of the hands of persons who could cause a risk to public safety. The applicant had been robbed at gunpoint while closing his business in the Dudley Square area of Boston. He thereafter sought a license to carry a firearm for protection. Despite relaying this reason to the officer who processed his application, she advised him to seek only a license for hunting and target shooting and request to remove the restriction once he had received the license. The applicant followed this advice, but his request to remove the restriction was denied. When he sought clarification on the issue, the head of the licensing bureau found that he was no longer a suitable person because the applicant purportedly mischaracterized his conversation with the licensing officer and the applicant was not able to recite his exact number of criminal charges and arraignments. The SJC ruled that, while a license holder does not need to violate the law in order to be deemed unsuitable, “discretion to make a suitability determination is not without limits.” The Department’s stated reason for revoking the license were not reasonably related to the statute’s goal of keeping firearms out of the hands of persons who could be a risk to public safety. The court also held that the rejection of the applicant’s request to lift the restriction was similarly improper because the applicant had demonstrated that he sought the license for a proper purpose.
 
In Nichols, the SJC upheld that the Natick Police Department’s denial of the applicant’s application for a license to carry on the grounds he was a recovering drug addict. Nichols was in substance abuse recovery for a 15-year stimulant and opiate addiction. He was also a pharmacist. At the time of his application, Nichols had completed a supervised probationary period and his pharmacist’s license had been reinstated, subject to a four-year probationary period. He was also continuing treatment for his addiction, with his substance abuse specialist supporting the application. Nevertheless, the Department denied his application on the ground that he was unsuitable. The SJC held that licensing authorities are not required to provide a denied applicant a definitive time period in which a past act will no longer render the applicant unsuitable. Rather, each application must be considered in light of the extent of the applicant’s past and the nature of the applicant’s recovery. In this respect, the SJC agreed that the Department had correctly evaluated—and denied—Nichols’ application.

Staffing Changes Do Not Constitute Good Cause for Failing to Approve Minutes Under the Open Meeting Law in a Timely Manner
On January 25, 2019, the Attorney General found that the Kingston Board of Selectmen violated the Open Meeting Law (OML) by failing to approve minutes in a timely manner as required by M.G.L. c.30A, § 22(c). The OML’s regulations define “timely manner” as “within the next three public body meetings or within 30 days, whichever is later, unless the public body can show good cause for further delay.” 940 CMR 29.11.
 
The Kingston Board of Selectmen did not approve the minutes of its November 28, 2017 meeting until its 31st meeting thereafter, and 336 days had passed; did not approve its March 9, 2018 minutes until its 22nd meeting thereafter, and 236 days had passed; and did not approve its April 20, 2018 minutes until its 18th meeting thereafter, and 194 days had passed. The Board pointed to staffing changes to justify the delay. Although the Attorney General noted the demands on a public body with limited staff, she ultimately concluded that the public body is responsible to comply with the law and that staffing changes did not provide good cause for the delay.
 
This decision is clearly significant for public bodies that rely upon staff to create agendas, post meeting notices, and draft minutes. Vacancies in such positions will not support a public bodies’ non-compliance with the OML. A copy of the OML decision may be found here.


Trivia!
 
Multiple Choice This Month.
 
What percentage of Massachusetts land is forested?
 
                     a) 62%
                     b) 48%
                     c) 77%
 
Last issue's question: You’ll recall that this was not really a trivia question, but a shout-out for the correct source and wording of a quote used in our annual holiday card. The quote, attributed to Ralph Waldo Emerson, is:
 
                     After every storm the sun will smile;
                    for every problem there is a solution,
                    and the soul's indefeasible duty is to be of good cheer.
 
Answer: Well a first: We didn’t get a single answer! (The joker who sent us a Yogi Berra quote does not win by default)
 
Winner: Congratulations to our own Ray Miyares. Since we found no “correct” quote or author, our friends and colleagues will continue to have the pleasure of receiving our winter solstice ecard with the same quote and attribution we have always used. Ray said something about the burden of proof.


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