Ah, February. A short month, so an easy trivia question. But don’t skip the enthralling monthly topics in this issue of the Miyares and Harrington LLP newsletter.
We congratulate our own Ivria Glass Fried for the honor of being named an Up and Coming Lawyer 2020 in Massachusetts Lawyers Weekly’s Excellence in the Law.
The firm also congratulates its client, the Town of Stockbridge, for its selection as “the most charming small town in America” by travel website Big Seven Travel.
Those of you who attended last month’s Massachusetts Municipal Association’s Annual Meeting got to hear Donna Brewer’s presentation as part of a panel on municipal law updates from 2019. This program is an annual highlight of the meeting and this year covered such disparate topics as marijuana and filming in public buildings. You may review the printed materials here.
Last but not least, we are happy to announce that Ray Miyares has a new grandson, Dylan Overend, born on January 7th. Dylan joins big brother Luke, who is a grown-up 2½!

This month's newsletter features:
  • The Tort Claims Act Applies to Municipal “Commercial” Services but Permits Class Actions

  • The Pesticide Control Act Does Not Preempt a Municipality’s Authority to Enforce its Wetlands Bylaw

  • City Preliminarily Enjoined from Enforcing its Marijuana Moratorium

  • Rapid Fire Updates – New DLS Municipal Finance Training and Resource Center and YouTube Channel; New Municipal Zoning Tracker

  • Trivia

The Tort Claims Act Applies to Municipal “Commercial” Services but Permits Class Actions
Our January newsletter promised an analysis of Magliacane v. City of Gardner, an important decision from the Supreme Judicial Court concerning the Tort Claims Act, M.G.L. c.258, §§1-14. In that case, a homeowner sued after her hot water heating system failed because of corrosive City water. She claimed that the City and its private water supply contractor both knew of the water’s corrosiveness and failed to treat it properly, making both the City and the contractor negligent and responsible for creating a nuisance. Although a lower court judge dismissed those claims, the SJC reinstated them. While this would seem to be simply bad news for municipalities, there is some positive guidance.
The plaintiff claimed that the Tort Claims Act should not apply at all to the claim against the City because, in providing City water, it was acting as the proprietor of a commercial service, not in any governmental capacity. The Court instead reaffirmed that the Act applies to all tort claims against municipalities, including where a City or Town acts in a “proprietary” or “commercial” fashion. The Court noted that past judicial efforts to distinguish between the different types of activities that a municipal government may engage in had resulted in “a crazy quilt of complex and confusing distinctions,” prompting the SJC to reaffirm that the Tort Claims Act did away with all of those distinctions.
This decision confirms that Cities and Towns may continue to provide important services, such as water, without abandoning the important protections provided by the Act—including the requirement of a presentment letter and a statutory cap on damages of $100,000. However, the Court held that the statutory time period to present a tort claim (two years) might be lengthened in cases of fraudulent concealment. In addition, the SJC recognized for the first time that a plaintiff can bring a class action under the Tort Claims Act, so long as such a claim is included in the plaintiff’s presentment to the City or Town. Both rulings open municipalities to potentially greater liability under the Act, particularly where municipal services affect large numbers of users.
Magliacane is already being distinguished at the appellate level to reassert the narrow scope of liability under subsection 10(j). M.G.L. c.258, § 10(j)exempts from liability municipalities alleged to have failed to use due care to prevent or mitigate harm if the municipality did not originally cause the harmful situation. The plaintiff in Klevan v. City of Newton alleged that the City was liable for significant property damage caused when the City’s water main pipe broke and flooded the sewer system, causing flooding and sewage backup in the plaintiff’s home. The Appeals Court reversed the trial court and held that summary judgment for the City was proper. In doing so, it distinguished the potential liability of the City of Gardner to the Magliacane plaintiff because that case alleged that the original act was the delivery of water known to be corrosive. In contrast, the city of Newton was not alleged to have caused the water main pipe to burst and the mere design and placement of the water pipe near the sewer pipes was not the type of original act that caused the flooding.
The Pesticide Control Act Does Not Preempt a Municipality’s Authority to Enforce Its Wetlands Bylaw
A recent Berkshire County Superior Court decision, Stockbridge Bowl Association, Inc. v. Town of Stockbridge Conservation Commission, provides an important clarification regarding the limits of the preemptive effect of the Pesticide Control Act over municipal decision-making. In a case argued by our own Rebekah Lacey, the Court upheld a local Conservation Commission’s authority to deny a permit under a local wetlands bylaw for a proposed project using an herbicide to control invasive aquatic plants in a Great Pond.
The Massachusetts Pesticide Control Act, M.G.L. c.132B, §§1-16, sets a framework for licensing pesticides and pesticide applicators within the Commonwealth. In 1985, the Supreme Judicial Court held that the Act preempted a local requirement regulating the use of pesticides, but the decision left open the possibility that there was some room for municipalities to regulate pesticides in ways that did not conflict with the Act. Town of Wendell v. Attorney General, 394 Mass. 518, 526 (1985). The Legislature subsequently amended the Act to state that “[t]he exclusive authority in regulating the labeling, distribution, sale, storage, transportation, use and application, and disposal of pesticides in the commonwealth shall be determined by this chapter.”
In 2014, a Middlesex Superior Court relied on this change to uphold the Attorney General’s disapproval of a local bylaw establishing a mechanism for a board of health to determine whether a utility’s proposed use of pesticides complied with state and federal law. The Attorney General continues to routinely disapprove local bylaws that seek to directly regulate the use of pesticides.
In 2018, however, an association of lakefront property owners applied to the Stockbridge Conservation Commission for a permit under the local wetlands bylaw to apply the herbicide fluridone to Lake Mahkeenac (also known as the Stockbridge Bowl) in an effort to eliminate Eurasian watermilfoil, an invasive aquatic plant. The Conservation Commission denied the permit after finding that removal of a significant quantity of aquatic vegetation would have adverse impacts on the lake ecosystem. The association appealed the denial, asserting that, because of the preemptive effect of the Pesticide Control Act, the Conservation Commission had no authority to prevent the use of an herbicide approved by the Massachusetts Department of Agriculture.
The Superior Court judge forcefully rejected this argument, holding that “the Town of Stockbridge’s Conservation Commission was not compelled by the Pesticide Control Act to approve the SBA’s proposal to use fluridone to treat Watermilfoil in the Stockbridge Bowl.” The decision confirms that the Pesticide Control Act does not preempt municipal authority to administer local bylaws that may have collateral effects on the use of pesticides. In other words, an activity under the jurisdiction of a local board – such as removal of vegetation from a lake- is not removed from that jurisdiction simply because the proponent chooses to use a pesticide to achieve the desired goal. The decision is a useful reminder that even express statutory preemption has its limits.

City Preliminarily Enjoined from Enforcing its Marijuana Moratorium
On January 24, 2020, a Middlesex Superior Court judge enjoined the City of Cambridge from enforcing an ordinance that prohibits non-Economic Empowerment applicants from receiving Cannabis Business Permits from the City for a two-year period. A copy of the decision may be found here.
M.G.L. c.94G governs the sale of adult use cannabis and explicitly permits municipalities to adopt regulations that impose reasonable safeguards on the operation of marijuana establishments, provided that they are not in conflict with the statute or the regulations of the Cannabis Control Commission. In creating the licensing structure, the Commission issued regulations to provide priority status to medical marijuana establishments seeking to convert or add adult use sales and to economic empowerment applicants. The regulations clarify that the Commission will review priority applications on an alternating basis between economic empowerment applicants and medical establishments seeking to sell marijuana for adult use.
Subsequently, Cambridge adopted a Permitting Ordinance that created a separate local license for cannabis retail stores. The Ordinance provided that only economic empowerment candidates could obtain licensure for the first two years after the passage of the Ordinance. Medical marijuana establishments seeking to add adult use sales must wait the two-year period, despite their priority status afforded to them by the Commission.
Revolutionary Clinic II, an operating medical marijuana establishment in Cambridge, challenged the Ordinance, and the Court issued a preliminary injunction, preventing its enforcement. In reaching its decision, the Court focused on the fact that Cambridge’s licensing structure prevented the Commission from reviewing priority applicants as it had outlined in its regulations.
This decision comes on the heels of another Superior Court judge’s decision upholding the City of Salem’s decision to deny a Host Community Agreement to a retail marijuana establishment based on traffic and local concerns about over saturation. We explored that decision in last month’s newsletter. The difference, the Court explained, is that Chapter 94G does not grant the Commission the authority to consider local issues like traffic congestion and geographic diversity in deciding which applicants should be awarded licenses. In contrast, the Commission’s regulations expressly address priority review.
Both the Salem and Cambridge decisions provide some guidance as municipalities begin to regulate adult use marijuana establishments. That said, questions remain as to whether municipalities may impose additional safeguards on licensees that exceed those explicitly addressed in the Commission’s regulations.

Rapid Fire Updates:

Check out the new DLS Municipal Finance Training and Resource Center! It is full of helpful videos and documents. DLS even has its own YouTube Channel. If you have a question about municipal law fundamentals, these sites may help you find an answer.
Check the Accuracy of Your Municipality’s Marijuana Bylaws and Ordinances on the new Municipal Zoning Tracker. The Cannabis Control Commission has a new web page identifying every municipality’s bylaws or ordinances for adult-use marijuana. Make sure that the information about your municipality is correct.

Question: What is the largest copyrighted work of art in the world?
Last issue's question: The latest movie adaptation of Little Women is garnering high acclaim, along with six Oscar nominations. Although we exult in the renewed fame of this nineteenth century denizen of Massachusetts, Louisa May Alcott’s first published writing was under a nom de plume. What name did she use?
Answer: Turns out that she used two pen names for her early writings, either Flora Fairfield or AM Barnard. We would have accepted either as correct, primarily because either was correct.
Winner: Congratulations to Diana LeLacheur, the erudite spouse of Reading’s Town Manager Bob LeLacheur. It is nice to hear from our readers’ extended family.

Local options at work.
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THIS NEWSLETTER MAY BE CONSIDERED ADVERTISING UNDER MASSACHUSETTS SUPREME JUDICIAL COURT RULES. This newsletter is intended for clients and friends of Miyares and Harrington LLP. It provides general information about legal developments and should not be used as a substitute for professional advice on your particular legal situation.

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