Have you had your COVID-19 vaccination yet? You can catch up on the latest in municipal law developments in this February edition of the Miyares and Harrington LLP newsletter while waiting in line. But see the pertinent Rapid Fire Update below for information on a trap for the unwary.

Shout out and congratulations to Anthony Ansaldi, Town Administrator of Littleton, for answering the most trivia questions correctly in our virtual booth at the recent Massachusetts Municipal Association annual meeting and trade show. Better luck next year for the rest of you!

Donna Brewer was a panelist for the February 24 presentation on the Zoning and Land Use Impacts from the New Housing Choice Law, Ch. 358 of the Acts of 2020, sponsored by the MMLA. Program materials for that program may be found here. Next up:  Ivria Fried will be a panelist on the MMLA’s March 18 seminar entitled, “Marijuana Law Update-Are You Expecting a Delivery?” Contact the Massachusetts Municipal Law Association for a link to the recorded presentation on the Housing Choice Law or to register for the Marijuana Law Update. 

This month's newsletter features:
  • Police Reform is Here

  • Rules for Smart Growth Have Changed

  • Contract Provision Indemnifying Municipality Applies Even Without an Explicit Demand to Contractor

  • Rapid Fire Update: Don't Jump the Vaccination Line

  • Trivia
Police Reform is Here
On December 31, 2020, Governor Baker signed into law, effective immediately, An Act Relative to Justice, Equity, and Accountability in Law Enforcement in the Commonwealth The Act directly addresses issues of racial inequality, both within law enforcement and beyond. For law enforcement, it establishes a municipal police training committee to set policies and standards for the training of municipal police officers, among other categories of law enforcement personnel. The training curriculum must include programs on de-escalation tactics, hate crime identification, regulation of the use of physical force, and appropriate interactions with persons with intellectual or developmental disabilities or issues with mental wellness. Municipal police officers must be certified by the state, and those certifications require periodic retraining and renewal. Certain police responses, such as the use of choke holds or rubber bullets, are prohibited.

There are many other provisions that affect municipal operations. The Act imposes a penalty of treble damages and potential imprisonment on a law enforcement officer who submits a false record of hours worked. It requires municipal police departments, before September 21, 2021, to submit disciplinary records of its officers to the newly established Peace Officer Standards and Training Commission. It amends the Public Records Act so as to deem “records related to a law enforcement misconduct investigation” to be producible as public records. It also creates several commissions empowered to submit policy recommendations to the Legislature and executive agencies to improve the treatment of groups that historically have been treated unequally in the Commonwealth.
Rules for Smart Growth Have Changed
Our readers will remember that, in our January issue, we discussed amendments to the Zoning ActM.G.L. c.40A, brought about by Chapter 358 of the Acts of 2020An Act Enabling Partnerships for Growth. We noted then that the amendments to M.G.L. c.40A, §5, changed the quantum of vote to establish smart growth or starter-home zoning districts pursuant to M.G.L. c.40R to simple majorities instead of 2/3rds of Town Meeting or other legislative body. 
As smart growth zoning grows in popularity across the Commonwealth, keep in mind these other amendments to M.G.L. c.40R, §§1-14, Smart Growth Zoning and Housing Production. Sections 27 through 45 of Chapter 358 of the Acts of 2020 amended M.G.L. c.40R by adding important new provisions:
  • The Department of Housing and Community Development (“DHCD”) must adopt regulations, for housing units in a smart growth or starter home zoning district and that are exclusively for elderly or disabled residents or for assisted living, that limit the percentage of such housing which may be used to qualify the municipality for density bonus payments under M.G.L. c.40R, §9. In addition, 25% of the housing units that are restricted to the elderly or disabled residents or for assisted living and that are within a smart growth zoning district must be affordable housing (M.G.L. c.40R, §6(a)(8));

  • DHCD may impose limitations on zoning for mixed-use developments in smart growth districts. Additionally, mixed use developments may be permitted in starter home zoning districts only if the proposed density achieves a minimum of four units per acre (M.G.L. c.40R, §6(c)); and

  • If a municipality amends its zoning requirements in a manner that reduces the number of developable units in a smart growth or starter home zoning district, the municipality must return to DHCD the portion of any zoning incentive payment that is in excess of what would have initially been awarded for the remining developed or developable housing units. Repayment is due to DCHD within 60 days of receiving written approval of such a zoning amendment (M.G.L. c.40R, §14(b)).
Contract Provision Indemnifying Municipality Applies Even Without an Explicit Demand to Contractor
Municipal contracts typically provide that the private contractor must indemnify the municipality in the event of a claim arising from the contractor’s work. In Psychemedics Corp. v. City of Boston, issued on January 29, the Supreme Judicial Court determined that, where a City contractor had agreed in its contract to assume the defense of the City for claims arising from the contractor’s negligent acts, mere notice of such claims was sufficient to require the contractor to assume the defense. An explicit demand from the City to assume the defense was unnecessary.  
Psychemedics, a city contractor that provided hair follicle drug tests, had failed to assume the defense of the City after a group of police officers, who were terminated based on positive drug tests, filed claims against the City. The undisputed facts showed that the City had orally and in writing communicated with Psychemedics regarding the subject of indemnification and requested that Psychemedics contribute financially to the defense. Psychemedics and the City reached an oral understanding that Psychemedics would provide support by making its scientific and legal staff available to the City free of charge. Psychemedics eventually sought relief in the Superior Court for a declaration that it had no obligation to indemnify the City. The Superior Court granted Psychemedics’s motion for summary judgment, but the SJC vacated that judgment and remanded the case for further proceedings.
The central issue in the case was whether the City had afforded Psychemedics a sufficient opportunity to defend. Psychemedics argued that it had not, because the City asked only for financial support and did not explicitly demand that Psychemedics assume the defense. The Court disagreed, finding that, where the contract itself did not provide any specific process for notifying Psychemedics and requesting that it assume the defense, any notice of the claim—including oral notice—was sufficient to provide notice and the opportunity to defend. Since the contract required that Psychemedics assume the defense of any claims arising from its negligent acts, it would be in breach for failing to do so once it had notice of a claim.  Here, Psychemedics never assumed the defense, though the City never took any steps to prevent it from doing so. The Court noted that the burden on the City to provide notice and an opportunity to defend was so low because the parties had specifically contracted for indemnification, while indemnification obligations arising from non-contractual circumstances might require something more. 
Rapid Fire Update:
Don't Jump the Vaccination Line
The State Ethics Commission reminds governmental employees that they cannot use their official positions to gain preferential access to COVID-19 vaccinations for themselves or their family members. Doing so can subject the violator to a civil penalty of up to $10,000.

Question: Massachusetts is privileged to lay claim to the first-in-the-nation public coeducational and integrated high school. What school is it and, for a bonus point, when was it founded?
Last issue's question: Mignon Talbot, a professor of Geology at Mount Holyoke College is known for what important accomplishment in 1910?
Answer: Professor Talbot discovered the bones of Podokesaurus holyokensis, one of only two dinosaurs whose skeletons have been found in Massachusetts. The dinosaur was just named the official state dinosaur. Sadly, her specimen was lost in a fire in the geology building in 1916.
Winner: Trivia Hall of Fame member Mark Abrahams of the Abrahams Group once again squeaked in ahead of the competition. But a close runner-up was Michèle Girard, Associate Director and Education Coordinator of the Massachusetts Association of Conservation Commissions who is awarded full marks even though she conceded that she looked it up on Wikipedia.

Local options at work.
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