Current Developments in Municipal Law
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____________________________________________ Massachusetts Department of Revenue Division of Local Services Current Developments in Municipal Law 2010 Court Cases Book 2 Navjeet K. Bal, Commissioner Robert G. Nunes, Deputy Commissioner ____________________________________________ www.mass.gov/dls Court Decisions Table of Contents Book 2 Page Massachusetts Court & Arbitration Cases and Federal Court Cases Adams vs. Board of Assessors of Westport, 76 Mass. App. Ct. 180 (January 26, 2010) - Chapter 61A – Agricultural Land Tax Classification – Roll Back and Conveyance Taxes – Change in Use – Exemption for Construction of Residence for Family Member 1 Mark Andrews v. City of Springfield, 75 Mass. App. Ct. 678 (November 3, 2009) – Bidding – Building Contract – Lease with Option to Purchase – Construc- tion Contract Subject to Bidding Laws – Invalid Contract 4 Bererhout v. City of Malden, 431 B.R. 42 (June 22, 2010) – Bankruptcy – Automatic Stay of Collection Activities – Unpaid Parking Tickets – Administrative Hold on Renewal of Registration – Obligation to Discontinue Collection Efforts 8 Brasi Development Corp. v. Attorney General, 456 Mass. 684 (May 10, 2010) – Bidding – Building Contract – Long-term Lease 15 Calvao v. Town of Framingham, 599 F.3d 10, (First Cir. March 17, 2010) – Fair Labor Standards Act – Special Pay Period – No Duty to Give Notice to Employees 27 City of Lynn v. Lynn Police Association, 455 Mass. 590 (January 6, 2010) – Back Pay – Collective Bargaining – Bailout Act – Memorandum of Agreement to Repay Voluntary Concessions When City Received Additional Funds – Arbitration 33 City of Worcester v. AME Realty Corporation, 77 Mass. App. Ct. 64 (June 21, 2010) – Tax Foreclosure – Motion to Vacate Decree – Actual Notice – Rights of Redemption 38 District Attorney for the Northern District v. School Committee of Wayland, 455 Mass. 561 (December 31, 2009) – Open Meeting Law – Use of E-Mail Communications Between School Committee Members – Circumvention of the Law 43 Department of State Police v. Massachusetts Organization of State Engineers and Scientists, 456 Mass. 450 (April 2, 2010) – Stay of Grievance Arbitration – Removal of Civilian Employees – Non-Delegable Management Right 49 i Faneuil Investors Group, Limited Partnership v. Board Of Selectmen Of Dennis, 75 Mass. App. Ct. 260 (September 28, 2009) – Title to Property Taken for Affordable Housing – Housing Authority – Mortgage as a Transfer of Title - Reversion 56 Foley v. Town of Randolph, 598 F.3d 1 (First Cir., March 10, 2010) – Fire Chief Discipline - First Amendment –Freedom of Speech – Performance of Official Duties 62 Fordyce v. Town of Hanover, 457 Mass. 248 (July 9, 2010) – Bidding – Building Contract – Contractor’s Misrepresentations Not Relied Upon in Bid Process – Bid Not Invalid 68 International Salt Company, LLC v. City of Boston, 590 F.3d 1 (First Cir. December 18, 2009) – Breach of Contract – Failure to Comply with Uniform Procurement Act 77 Kunelius v. Town of Stow, 588 F.3d 1 (First Cir., November 9, 2009) – Chapter 61- Right of First Refusal – Forest Land Tax Classification – Assignment of Town’s Right of First Refusal – Exercise of Right - Failure to Complete Transaction – Liquidated Damages 81 Onex Communications Corporation v. Commissioner of Revenue, 457 Mass. 419 (July 30, 2010) – Sales/Use Tax – Research & Development Use Tax Exemption - Manufacturing Corporation 94 Rudy v. City of Lowell, Civil Action No. 07-11567-NMG, 2010 U.S. Dist. LEXIS 57046 (US Dist Ct of Mass., June 7, 2010) – Fair Labor Standards Act – Standby Pay – Regular Pay – Calculation of Overtime 101 Sikorski’s Case, 455 Mass. 477 (December 11, 2009) – Workers’ Compensation - Public School Ski Trip - Teacher Chaperone – Injury While Skiing 104 Spillane v. Adams, 76 Mass. App. Ct. 378 (March 2, 2010), Further Appellate Review Denied 456 Mass. 1108 (April 28, 2010) – Ownership of Tidal Flats – Low Water Mark Boundary – Adoption of Scientific Standards 108 Town of Norwell v. Massachusetts School Building Authority, 76 Mass. App. Ct. 1125 (April 16, 2010) – SBA Reimbursement of Legal Fees – Rules Change 115 Garrett v. Connor, 18 LCR 16 (Land Court, January 7, 2010) –Lack of Authority of Planning Board To Retain Counsel – Selectmen’s Authority to Initiate Action & Retain Counsel Under Town Charter 118 Parker v. Board of Selectmen of the Town of Stow, 18 LCR 1 (Land Court, December 31, 2009) – Natural State & Recreational Use Restriction - Public Trust Doctrine - Active and Passive Recreation – Athletic Fields – No Time Limitations 120 ii City of Springfield v. Masjid al-Tawheed, 18 LCR 119 (Land Court, February 22, 2010) - Tax Title - Foreclosure of Right of Redemption - Failure to Appeal Tax Abatement Denials 131 Sugar Ray Realty Corporation v. Duco Associates, 26 Mass. L. Rep. 531 (Bristol County Superior Court, February 11, 2010) – Foreclosure Notice - Publication – Newspaper Not Published in Town and Few Subscribers in Town – Void Sale Due to Defective Notice 136 Town of Brimfield v. Caron, 18 LCR 44 (Land Court, January 12, 2010) - Chapter 61- Municipal Right of First Refusal – No Waiver of Right to Purchase by Acceptance of Rollback Taxes – Property Sold Without Notice to Town 138 Town of Natick v. Dyer, 18 LCR 219 (Land Court, April 12, 2010) - Tax Title Taking - Burden of Persuasion - Instrument of Taking – Application of Payments 151 Massachusetts Coalition of Police, Local 399, Rutland Police Patrolman’s Union and Town of Rutland, MA, American Arbitration Case No. 1139-1772-09 – Quinn Bill Educational Incentives – Reduction in Benefits Due to Underfunding by State – Collective Bargaining Agreement – Arbitration Upheld Reduction Interpreting Contract Provision as Protecting Town from State Failure to Fund 157 iii MILTON B. ADAMS & another 1 vs. BOARD OF ASSESSORS OF WESTPORT. 1 Marilyn Adams. No. 09-P-324 APPEALS COURT OF MASSACHUSETTS 76 Mass. App. Ct. 180; 920 N.E.2d 879; 2010 Mass. App. LEXIS 81 November 10, 2009, Argued January 26, 2010, Decided SUBSEQUENT HISTORY: Review denied by Adams residential, commercial or industrial use" within a pre- v. Bd. of Assessors of Westport, 456 Mass. 1106, 925 scribed period. Sudbury v. Scott, 439 Mass. 288, 294, N.E.2d 864, 2010 Mass. LEXIS 235 (Mass., Apr. 28, 787 N.E.2d 536 (2003). The compensation may take one 2010) of three forms. Id. at 294-295. First, under G. L. c. 61A, § 12, a landowner who sells the subject property, or PRIOR HISTORY: [***1] changes its use, may be liable for a conveyance tax, as Suffolk. Appeal from a decision of the Appellate Tax was assessed in this case. 3 Second, under G. L. c. 61A, § Board. 13, if the land ceases to qualify as agricultural land, roll- back taxes may be assessed. 4 Finally, under G. L. c. 61A, COUNSEL: Jeffrey T. Blake for Board of Assessors of § 14 5 any property which has [**881] been [*182] Westport. classified under the chapter as agricultural or horticul- tural cannot be sold for or converted to a nonqualifying Dana Alan Curhan for the taxpayers. use unless the municipality is notified and given a 120- day first refusal option to purchase the subject property. JUDGES: Present: Rapoza, C.J., Smith, & Lenk, JJ. 3 As to a change in use, G. L. c. 61A, § 12, in- OPINION BY: SMITH serted by St. 1973, c. 1118, § 1, provides in rele- vant part that: OPINION "Any land in agricultural or hor- [*180] [**879] SMITH, J. The board of assessors ticultural use which is valued, as- of Westport (assessors) appeals from a decision of the sessed and taxed under the provi- [**880] Appellate Tax Board (tax board) abating a con- sions of this chapter, if changed by veyance tax assessed pursuant to G. L. c. 61A, § 12, on the owner thereof to another use real estate owned by Milton and Marilyn Adams (tax- within a period of ten years from payers). We affirm. the date of [***3] its acquisition Under G. L. c. 61A, the so-called Agricultural Clas- by said owner, shall be subject to sification Act, 2 "the owner of five acres or more of land the conveyance tax applicable that has been in agricultural or horticultural use for the hereunder at the time of such 'two immediately preceding tax years,' G. L. c. 61A, § 4, change in use as if there had been may apply to the board of [*181] assessors to have the an actual conveyance, and the land assessed on the basis of its value for agricultural value of such land for the purpose purposes only, and not on its value as judged by the of determining a total sales price 'highest and best use' standard under which real property shall be fair market value as de- customarily is assessed." Franklin v. Wyllie, 443 Mass. termined by the board of assessors 187, 194, 819 N.E.2d 943 (2005). Essentially, c. 61A of the city or town involved for all provides a tax break for landowners who devote at least other property." five acres of their property to agricultural or horticultural use. The rate of the conveyance tax is ten percent if 2 See Mann v. Assessors of Wareham, 387 the property's use changes in the first year of Mass. 35, 35, 438 N.E.2d 826 (1982). ownership, and the rate decreases by one percent for each following year, so that if the usage In exchange for the benefit of the [***2] tax break, change occurs after ten years of ownership, no c. 61A requires that landowners "compensate the mu- conveyance tax will be due. G. L. c. 61A, § 12. nicipality if and when the land is sold for or converted to 4 "Roll-back taxes are the difference between the application, but left blank the adjoining line on the the property taxes actually paid under c. 61A and form entitled "Acres to be Classified." The assessors what would have been paid if the land had been granted the application in November, 2005, as to all assessed outside of c.