We made it through November, and for that we give thanks. We are also thankful for you, our readers, who motivate us to search out and summarize developments of interest to municipal officials. We hope that this November edition of the Miyares and Harrington LLP newsletter isn’t a turkey!
 
We are pleased to announce the addition of two new lawyers. Maurica Miller comes to us from Mead, Talerman & Costa, where she concentrated her practice in land use and zoning matters. Maurica is a graduate of Virginia Tech and Suffolk University Law School.  Rian Rossetti joins us after practicing as a litigation associate at WilmerHale. She is a graduate of Northwestern University and UCLA School of Law. We look forward to both of them getting to know you.
 
In addition, we have a new legal assistant, Molly Schultz who, among her other duties, will be taking over production of this newsletter.
This month's newsletter features:
  • Open Meetings in the Time of Zoom: Remote Participation and Social Media Postings

  • A Rare Analysis Interpreting the Permitted Uses of Land Subject to a Conservation Restriction

  • Rapid Fire Updates: MassDEP Proposes to Expand Waste Ban; Town Meetings in a Pandemic Winter

  • Trivia
Open Meetings in the Time of Zoom: Remote Participation and Social Media Postings
The Division of Open Government (DOG) issued two significant determinations last month. The first decision, OML 2020-138, answers the question whether it is a violation of the Open Meeting Law (OML) for the chair of a public body to fail at the start of a meeting to identify by name the members of a board who are attending remotely. The DOG says yes.
 
Remote participation rules were relaxed on March 12 in response to the worsening COVID-19 pandemic when Governor Baker issued an Executive Order temporarily suspending the requirement of the OML that meetings be physically accessible to members of the public and that a quorum of a public body, including the chair, be physically present at the meeting location. All other provisions of the law and regulations remain in effect, including those pertaining to remote participation. The OML regulations state “[a]t the start of the meeting, the chair shall announce the name of any member who will be participating remotely. This information shall also be recorded in the meeting minutes.” 940 CMR 29.10(7)(b).
 
The Somerset Planning Board acknowledged that its Chair failed to announce the name of the members participating remotely. However, the Board argued that members’ names were displayed at the bottom of their individual virtual tiles and that this should relieve the Chair of the requirement to announce each member’s name at the start of the meeting. The DOG disagreed, stating:
 
[T]here were nine to ten additional individual virtual tiles on display at the beginning of the September 1 meeting as the Board was holding a public hearing, and each additional participant appeared on screen with his or her name displayed. For those members of the public who are not familiar with the Board, it would not have been clear which individuals were members of the Board. Therefore, in the specific circumstances here, we find that the Board violated the Open Meeting Law by failing to announce the names of the members who were participating remotely during the September 1 meeting.
 
While the decision leaves open the door for a different result if members of the public body are the only individuals appearing on the screen, we advise chairs always to state the name of those members participating remotely at the start of the meeting.
 
A second DOG ruling dealt with public officials’ postings on social media, which have a heightened public profile as more public business is discussed online. When do postings cross the line and constitute “deliberation” that can occur only at a posted meeting? In OML 2020-139, members of the Weston Select Board posted comments to a Facebook group that included a quorum of the members of the public body. There were two types of comments posted by Select Board members. The first type comprised substantive comments regarding a development project and an OML determination, matters within the Board’s jurisdiction Nonetheless, the DOG concluded that the member’s comments did not violate the OML because the group to which the comment was posted had almost 3,000 participants, the comments were clearly in response to comments by a member of the public, and no members of the Board responded to the post.
 
Despite this result, the decision reminds members of public bodies to “use particular care to avoid deliberation when writing a post that may be visible to other members of the public body, especially in a ‘closed’ Facebook group and in particular if the closed group is relatively small.” To differentiate between comments directed to the public and comments directed to another member of the public body, the DOG noted that one “must examine the communicator’s intent.”
 
The second type of posting consisted of communications among Select Board members about adding a discussion of the OML determination to a Select Board agenda, in the course of which they referenced the late hours of some of their meetings. These comments were also not a violation of the Open Meeting Law, since they fall within the law’s exemption for scheduling discussions from the definition of a deliberation.
A Rare Analysis Interpreting the Permitted Uses of Land Subject to a Conservation Restriction
In 1969, the Conservation Restriction Act, M.G.L. c.184, §§31-33, created a framework to protect conservation lands, historic properties, and agricultural lands. Since then, conservation restrictions (CRs) on real property have grown in popularity as a tool for conserving land in Massachusetts and are regularly used to preserve land for the public and to offset the impacts of residential and commercial development. Nevertheless, few courts have had cause to address the manner in which they are interpreted when disputes arise. The Appeals Court, in Wildlands Trust of Southeastern Massachusetts, Inc. v. Cedar Hill Retreat Center, Inc., sheds some light on this question.
 
The grantor of a CR voluntarily agrees to place use restrictions on the landowner’s property, and the holder of the CR obtains the right to enforce those restrictions. Typically, CRs are held by governmental entities or charitable organizations and, when approved by the State Secretary of Energy and Environmental Affairs, are enforceable in perpetuity. The Appeals Court noted that at the time of the Wildlands trial, CRs were then being used to preserve more than 4,000 properties in the Commonwealth. 
 
The dispute in Wildlands was, in essence, over whether rental of a 12-acre parcel on the shores of Duxbury Bay violated the terms of the CR that had been placed on the property. The CR, held by the Wildlands Trust, permitted the property to be used for: (1) quiet enjoyment of nature for religious, aesthetic non-motorized/passive recreation, scientific and/or educational purposes; (2) research and study in the fields of religion, geology, conservation, and nature; or (3) classes, conferences, and retreats where consistent with purposes described in the CR. A rental fee could be charged for uses covered by the third permitted category.
 
The Trust challenged the rental arrangement, initially arguing that the rental of the property was permitted only for retreats that had a religious or charitable purpose, but by the time of trial arguing that the property was being overused as a commercial hotel or resort that exposed the property to damage from excessive foot and vehicle traffic.
 
The Appeals Court applied the ordinary rules of contractual interpretation to interpretation of the permitted uses under the CR. To that end, the three categories of permitted uses were reviewed and considered separately. It was not necessary for permitted retreats to promote conservation. Rather, it was sufficient if the retreats did not materially harm the natural flora and fauna of the property. The Trust failed to meet its burden of proving such harm.
 
The takeaway for our readers is that conservation restrictions, like any other agreement, should be drafted carefully to capture the intent of the parties with clarity. Precise language helps future parties to a perpetual restriction avoid conflict over its interpretation.
Rapid Fire Updates:
MassDEP Proposes to Expand Waste Ban
 
The Massachusetts Department of Environmental Protection is proposing amendments to its solid waste regulations (310 CMR 19.000) to expand the “waste ban” list of items that cannot be disposed of in a landfill or by incineration. The amendments would ban the disposal of mattresses and textiles as solid waste, requiring (with some exceptions) that these items be reused or recycled. The threshold of the existing commercial food waste ban would also be lowered to apply to entities that generate one-half ton or more of organic waste per week. Businesses subject to this ban must separate food waste from the trash and send it to an anaerobic digestion facility or compost site. Comments may be submitted until 5:00 PM on December 4, 2020 by email to dep.swmp@mass.gov or by mail to John Fischer, MassDEP, One Winter Street, Boston, MA 02108.
 
Town Meetings in a Pandemic Winter
 
With the advent of the cold weather, it is no longer practicable to hold Town Meetings outdoors. The Department of Public Health has issued guidance for best practices for conducting Town Meetings indoors. The Department advises lowering quorum requirements, social distancing, requiring face coverings, and thorough hygiene protocols.

Trivia!
 
Question: Where was Herman Melville when he and Nathaniel Hawthorne discussed ideas that inspired Melville to write Moby Dick?
 
Last issue's question: What municipality has the oldest town hall in continuous use for Town Meetings?
 
Answer: Pelham, MA holds that distinct honor, not just in Massachusetts but in the entire nation. Its Town Hall has been used for Town Meetings continuously since 1743.
 
Winner: Carol Cavanaugh, Superintendent of the Hopkinton Public Schools, responded correctly. She admitted that she looked it up, but one can’t fault an educator for doing research, can one? Congratulations, Carol!

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