Has there been a scarier year than 2020? Global pandemic, record-setting number of tropical storms, land hurricanes, wildfires, and let’s not forget murder hornets. But we’ve made it to October; 2021 has to be better, right? In the meantime, our October edition of the Miyares and Harrington LLP newsletter contains nothing spooky, just items of interest.
 
Once again our attorneys have been recognized by their peers for excellence in their fields.  Ray Miyares and Donna Brewer are SuperLawyers® in the field of State, Local, and Municipal Law, Rebekah Lacey is a SuperLawyer® in the field of Environmental Law, and Ivria Glass Fried is a Rising Star® in the field of Environmental Law.

This month's newsletter features:
  • Making a Difference

  • A Spectral Appearance of the Doctrine of Prior Public Use

  • An Extra Scary Halloween; Trick or Treating During a Pandemic

  • Rapid Fire Updates: MassDEP Finalizes PFAS Drinking Water Standard; ABCC Clarifies Rules Around Indoor Alcohol Service

  • Trivia
Making a Difference
We are pleased to announce that Rebekah Lacey is the new chair of the firm’s Environmental Practice Group. Rebekah has years of experience advising and representing municipalities and private-sector clients on all aspects of environmental matters, including drafting regulations and bylaws; permitting, enforcement, and litigation; investigation, cleanup and transfer of contaminated properties; and regulatory compliance.
 
Rebekah is a graduate of Yale University and earned an M.S. in Water Resources from the University of Vermont, where she concentrated her studies on sediment toxicity assessment. She worked for almost a decade as an environmental scientist in both the public and private sectors. Her interest in the intersection of environmental regulation and science eventually led her to obtain a J.D. from Harvard Law School, where she served as Senior Editor of the Harvard Environmental Law Review.
 
As an environmental lawyer, Rebekah has been an active member of her professional community, serving as Co-Chair of the Boston Bar Association Wetlands, Waterways and Water Quality Committee and as a member of the Water Quality Committee of the Massachusetts Coalition for Water Resources Stewardship. She is currently the President of the Massachusetts Association of Conservation Commissions and frequently teaches a MACC training unit on wetlands enforcement.
 
Rebekah will never pass up an opportunity to tour a wastewater treatment plant and freely admits that her fascination with the arcane technical and legal details of environmental issues qualifies as nerdy. Her interest in obscure information also served her well as a winning contestant on Jeopardy!.
 
Rebekah is always happy to field questions on wetlands, stormwater, wastewater, solid and hazardous waste, and any other environmental law topic. Feel free to try to stump her with trivia questions as well!
A Spectral Appearance of the Doctrine of Prior Public Use
The common law doctrine of prior public use states that public lands devoted to one use cannot be diverted to another inconsistent public use without plain and explicit legislation authorizing the diversion. The Supreme Judicial Court, in Town of Sudbury v. Massachusetts Bay Transportation Authority, recently rejected an effort to expand the doctrine to include subsequent inconsistent private uses.
 
The Court summarized the origins of the prior public use doctrine “as a means to resolve conflicts over the use of public lands between State-chartered corporations, municipalities, or other governmental agencies that might claim authority to use another government entity's land, or to take the land by eminent domain, in a potentially never-ending cycle of takings.” In short, the doctrine “prevents the absurd result of public entities, each with the authority to exercise eminent domain, taking and retaking the same property from each other ad infinitum."
 
In the case, the Town of Sudbury challenged an option contract between the MBTA and Eversource allowing the installation of an underground electrical transmission line along a disused railroad right of way (“ROW”), 4.3 miles of which is situated in Sudbury. The ROW passes through land formerly owned by the Boston and Maine Railroad for freight rail service. In the 1970s, the MBTA acquired the ROW for passenger and freight rail service. The ROW is now abandoned and overgrown, but the MBTA’s agreement with Eversource allows development to facilitate the transmission line.
 
In its challenge, Sudbury argued that the Eversource contract was inconsistent with the prior public use by the MBTA. The substance of Sudbury’s challenge was that either Eversource’s transmission lines qualified as a prohibited, inconsistent public use, or that the prior public use doctrine should be extended to bar inconsistent private uses as well. The SJC dismissed the first argument by concluding that, while Eversource serves the public, it is nonetheless a private for-profit corporation and its transmission lines were therefore not a public use.
 
As to the second argument, the Court recognized that the doctrine had never before been applied to bar a subsequent private use by a private entity. In addition, the Court noted that transactions like the Eversource contract between government and private entities are commonplace. To extend the doctrine as Sudbury requested would have the effect of making deals between public and private entities prohibitively expensive. These concerns, coupled with the potential wave of lawsuits that could arise out of similarly situated transactions, persuaded the Court to decline to extend the doctrine and affirm the Land Court’s dismissal of Sudbury’s suit.


An Extra Scary Halloween; Trick or Treating During a Pandemic
Your municipality may consider “canceling” trick or treating this year. Of course, youngsters may still choose to go out; short of imposing a curfew, there is little your municipality can do to enforce the prohibition. But should your Board of Health or Select Board choose not to issue an edict against candy collection, you may consider issuing guidance on how to have a safe Halloween.
 
On October 7, 2020, the Department of Public Health released its Tips for a Safe and Healthy Halloween. These tips are based on the Center for Disease Control and Prevention’s Activity Guidance, which recommends that individuals enjoy Halloween outside rather than attending indoor events and consider placing hand sanitizer by any treats left outside. The DPH and the CPC also remind everyone that a costume mask – no matter how spooky – is not a substitute for a face mask or face covering. Getting creative with yard decorations and holding virtual costume or pumpkin carving contests is also highly recommended.
 
Other ideas for staying safe, while still having fun (and getting to eat candy), include:
  1. Setting up a candy graveyard for family members to search for candy in your yard;
  2. Participating in a Halloween Bicycle Parade;
  3. Passing candy through a candy chute directly into a trick or treat bag; or
  4. “Ghosting” your friends by dropping off candy at their door.
 
Word is that some people may be working on the perfect Zoom background for the occasion… so beware!

Rapid Fire Updates:

MassDEP Finalizes PFAS Drinking Water Standard
 
On October 2, MassDEP published the final revisions to its drinking water regulations regarding per- and polyfluoroalkyl substances (PFAS). As expected, DEP adopted the proposed Maximum Contaminant Level of 20 parts per trillion for the sum of six PFAS compounds. The final regulations include some changes from the December 2019 draft version discussed in our January 2020 newsletter, including later compliance deadlines. More information, including responses to comments and a quick reference guide, is available at https://www.mass.gov/lists/development-of-a-pfas-drinking-water-standard-mcl.
 
ABCC Clarifies Rules Around Indoor Alcohol Service
 
On October 14, the Alcoholic Beverages Control Commission issued an Advisory Regarding Indoor Events Held by Hotels and Other On-Premises Licensees and an Advisory Regarding Indoor Table and Bar Service. The advisories, along with all other COVID-19 related advisories, may be found here. These advisories clarify the rules governing indoor gathering and indoor service more generally.



Trivia!
 
Question: What municipality has the oldest town hall in continuous use for Town Meetings?
 
Last issue's question: What dietary staple is the subject of a memorial monument in Charlestown, MA?
 
Answer: Clearly, the monument honoring the humble potato needs a better PR profile. The Millers River Potato Shed Monument is located near the Boston Sand & Gravel facility in Boston. It commemorates the sheds that lined the railway lines, from which millions of potatoes were offloaded from the mid-19th century until the sheds burned down in the 1960s. Yelp reviewers sniff that the monument is not worth going out of your way to see, but it is part of a short pedestrian walkway called the Millers River Littoral Way. You may enjoy the walk by the water, so check it out!
 
Winner: While no one knew the answer without assistance, we give honorable mention to Bill Shaughnessy, Superintendent of Wellesley’s Water and Sewer Division, who was curious enough to find the answer. Keep that inquisitive mind active, Bill. Congratulations!


MiyaresHarrington
Local options at work.
 
— — —
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.

Address: 40 Grove St, Wellesley, MA 02482, USA
Phone:  (617) 489-1600