March has been all COVID-19, all the time! Like you, we have been preoccupied with the fast-changing developments regarding COVID-19’s effect on municipal operations. Can boards still meet? Must they still meet? Must we pay employees who cannot work from home? What is the effect of a local declaration of emergency? You can read our latest advice on our website. We update the advice constantly, so if you would like to receive future updates, just email us at and we will add you to the distribution list.
We congratulate Tom Harrington for his ground-breaking work to obtain the first-in-the-Commonwealth court order to postpone a local election. Tom filed the complaint and obtained the order on the same day—the election was scheduled for the next day!
There are other important developments in the world of municipal law, however. We present some of those developments in this latest issue of the Miyares and Harrington LLP newsletter.

This month's newsletter features:
The Tort Claims Act Requires “Presentment” of a Claim within Two Years.
The SJC Defines It.
It is well known that, before a municipality may be sued for a tort such as negligence, claimants must “present” their claims to the appropriate public officer within two years of the alleged injury. M.G.L. c.258, §4. But section 4 does not define the term, which inevitably leads to the question: What constitutes presentment?
In a recent case decided by the Supreme Judicial Court, Drake v. Town of Leicester, the claimant was injured on school property on January 19, 2016. She mailed her letter notifying the Town of her claim for damages on January 19, 2018. It was received on January 22, 2018. The claimant sought a ruling that the postmarked date of her presentment letter satisfied the statute. The SJC disagreed and affirmed the trial court’s dismissal of the lawsuit on the grounds that the letter was not filed within the two-year deadline.
After noting that the term is not defined in the statute, the Court concluded that the “ordinary” definition of presentment is placement of an item before a person so that the person has the opportunity to observe the item. The Court noted that this definition fulfills the statute’s purposes of permitting potential recovery against governmental entities while providing a mechanism to ensure that such entities are exposed to only valid and reasonable claims. The Court thus concluded that merely mailing the notice is not the equivalent of providing the proper officer with the opportunity to observe it.
The principal takeaway from this decision is that claimants must be mindful of the strict rules of presentment, and municipalities should be alert to a potential basis for dismissal at the beginning of a lawsuit.
Municipal Ownership by Prescriptive Easement is Not a Taking
Another recent Supreme Judicial Court decision, Gentili v. Town of Sturbridge, sheds light on the distinction between a municipality’s acquisition of property rights through prescription or adverse possession and those taken for public use under the eminent domain statute, M.G.L. c. 79. In 2015 the Gentili plaintiffs brought an action in the Land Court which resulted in a judgment that the Town of Sturbridge had acquired a prescriptive easement to discharge water through a Town-owned culvert onto the plaintiffs’ property. Rather than appealing the Land Court judgment, the property owners brought a separate action in the Superior Court asserting that the Town’s prescriptive easement amounts to a taking for which the Town must pay compensation. The Superior Court concluded that the plaintiffs were not entitled to compensation and the plaintiffs appealed.
It is well established that the taking of private property for a public purpose requires just compensation to be paid to the landowner. It is also a familiar principle that the continuous, adverse use of another’s property for a prescribed period of time—in Massachusetts, 20 years—will result in the adverse party’s owning property rights consistent with the scope of that adverse use. The interesting question posed by the plaintiffs in Gentili is whether prescriptive rights obtained by a municipality, and therefore serving a public purpose, are so akin to a taking that the burdened property owner is entitled to compensation.
The SJC’s answer is no. The distinction is that the Town’s rights were acquired as a result of the prolonged inaction of the plaintiffs. The Court’s conclusion is grounded in the proposition that an “action seeking a declaration of title by adverse possession simply effectuates the statute of limitations applicable to an action for recovery of land under G.L. c.260, §21.” Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838, 844 n.14 (2004). The plaintiffs could have sought compensation or demanded the Town discontinue its adverse use within the twenty-year time frame. Instead, the plaintiffs sat on their rights for too long and they were extinguished.
This decision does not suggest that land can be taken for public purposes without compensation, but rather, serves as a reminder that municipalities are afforded the same opportunity to obtain prescriptive rights as private individuals.

What to Do When Your Website and Notice of Meetings are Offline
A number of municipal websites throughout the Commonwealth recently were impacted by an outage. Municipalities that have designated their municipal website as the official method of posting meeting notices should be aware of how web outages affect the validity of the posting for purposes of complying with the Open Meeting Law. The Division of Open Government has developed guidance on how to address this issue.
If the website is inaccessible to the public within 48 hours of the meeting (not including weekends and legal holidays), the individual responsible for posting notice to the website (often the municipal clerk) must restore the website’s functionality within six business hours of the time when that individual discovers the website’s inaccessibility. If the website is not restored during this time, the meeting must be rescheduled to another date and time. A brief restoration of accessibility is not sufficient to re-start the six-hour window.
Municipalities that have designated their municipal website as the official method of posting meeting notices cannot use alternate methods of posting. Additionally, if the official town website links users to another site for the actual posting (e.g., a website), and the official town website suffers an outage, even if the notice is still accessible on the linked site, the Attorney General’s Office considers the entire notice down for purposes of Open Meeting Law compliance.

Rapid Fire Updates:

There is nothing more rapid fire these days than the changing landscape of municipal operations in light of COVID-19. If you didn’t check out our FAQ’s for some practical advice during the course of this national emergency by clicking on the link above, you can check our News & Events page.

Question: Name the municipality with the first industrial park in the United States.
Last issue's question: What is the largest copyrighted work of art in the world?
Answer: The gas tank in Dorchester seen from the Southeast Expressway. Fun fact: The tank on which the artwork is now found is not the original painted tank. Have you spotted Ho Chi Minh?
Winner: We are pleased to congratulate Mark Abrahams of the Abrahams Group for once again being the first to respond with the correct answer. Welcome back to your winning ways, Mark!

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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