Massachusetts Department ofRevenue Division of Local Services Current Developments • 10 Municipal Law 2011 Massachusetts and Federal Court Cases Book 2 Navjeet K Bal, Commissioner Robert G. Nunes, Deputy Commissioner www.mass.gov/dIs MASSACHUSETTS AND FEDERAL COURT CASES Book 2 Table of Contents Supreme Judicial Court and Appeals Court Cases Assessors of Bridgewater v. BridgewaterState University Foundation, 79 Mass. 1 App. Ct. 637 (June 7, 2011) - Charitable Exemption - Charitable Foundation­ Occupancy by Public University Boston Housing Authority v. National Conference of Fireman and Oilers, Local 4 2., 458 Mass. 155 (October 22, 2010) - Charitable Exemption - Charitable Foundation - Occupancy by Public University Camara v. Attorney General, 458 Mass. 756 (January 25,2011) -Prompt 14 Payment ofWages - Wage Deduction Agreement - Valid Setoff Cape Cod Five Cents Savings Bank v. Board of Assessors of Harwich, _ 19 Mass. App. Ct. __ (September 20, 2010)(Rule 1.28) -Recreational Land Classification - Private GolfCourse - Open to the Public - Creation ofFoundation to Evade Taxes City ofBeverly v. Civil Service Commission, 78 Mass. App. Ct. 182 (October 28, 23 2010) - Civil Service Appeal - Appointment ofPolice Officer - Misconduct in Prior Employment - Reasonable Justification to Bypass Commonwealth v. Fremontlnvestment & Loan, 459 Mass. 209 (April 1, 2011) - 29 Public Records - Protective Court Order - Confidential Materials Denver Street LLC v. Town of Saugus, 78 Mass. App, Ct. 526 (January 6, 2011) - 35 Fees - Sewer Infiow/Infiltration Charge to New Users - Permissible Fee or Illegal Tax - Particularized Benefit - Reasonable Compensation for Costs Massachusetts Board of Higher Education/Holyoke Community College v. 42 Massachusetts Teachers Association/Massachusetts Community College CouncillNational Education Association, 79 Mass. App. Ct. 27 (March 11,2011) - College Administrator's Authority to Appoint Assistant Professor - Arbitrator's Authority - Non-delegable Management Decision Matteson v. Walsh, 79 Mass. App. Ct. 402 (May 2, 2011) - Life Estate - Waste - 48 Failure to Pay Real Estate Taxes - Termination North Adams Apt. LP v. City ofNorth Adams, 78 Mass. App. Ct. 602 (January 53 18,2011) -Eminent Domain -Damages -Just Compensation Porio v. Department of Revenue. 80 Mass. App. Ct. 57 (August 9, 2011) - 58 Involuntary Layoff-Civil Service Appeal - Age Discrimination Complaint- Collateral Estoppel - Disparate Impact School Committee of Chicopee v. Chicopee Education Association, 80 Mass. 65 App. Ct. 357 (September 8, 2011) - Collective Bargaining- Grievance Arbitration - Contract Interpretation - Statutory Termination Standard - Best Interest of Students Town ofDover v. Barbara B. Goucher, 80 Mass. App. Ct. 1103 (August 10, 70 2011)(Rule 1.28) - Petition to Vacate Tax Foreclosure Decree - Standing- Purchaser under Executed Purchase and Sale Agreement Willowdale LLC v. Board of Assessors ofTopsfield, 78 Mass. App. Ct. 767 72 (February 16, 2011) - Commonwealth Property Leased to Private Party for Private Purposes - Not Reasonably Necessary for a Public Park - Taxation ofLessee of Public Property Federal Court Cases Foote v. Town ofBedford et. al., 643 F. 3d 80 (1st Cir.) (April 21, 2011) First 76 Amendment - Freedom ofSpeech -Failure to Reappoint- Unpaid Position on Municipal Commission - Criticism ofMunicipal Policies In Re Nichols, 2011 Bania. LEXIS 2167 (Bankr. E.D. Mass.) (June 7, 2011) - 81 Bankruptcy - Claim for Demolition Costs - Priority "Administrative" Expenses ­ Currently Due - Lien Serves as Alternative Collection Remedy Rudy v. City of Lowell, 2011 U.S. Dist. Lexis 26956 (Memorandum, March 14, 85 2011) and 32824 (Order, March 29, 2011) (D. Mass.) <FairLabor Standards Act­ Overtime - No Offsets for Other Week Overpayments - Liquidated Damages- Extended Limitations - Good Faith - No Willfulness ii BOARD OF ASSESSORS OF BRIDGEWATER vs, BRIDGEWATER STATE UNIVERSITY FOUNDATION.' I Pursuant to an amendment to the indenture of trust ofThe Bridge­ water State College Foundation, dated February 17,2001, its name changed to The Bridgewater State University Foundation. That name change conformed to the change effected by St. 2010, c. 189, pursuant to which Bridgewater State College became a university. No. 10-P-593. APPEALS COURT OF MASSACHUSETTS 79 Mass. App. C~ 637; 948N.E.2d 903; 2011 Mass. App. LEXIS 841 March 15, 2011, Argued June 7, 2011, Decided SUBSEQUENT mSTORY: Review granted by Bd... of Background. We summarize the relevant facts as Assessors v. Bridgewater State College Found., 2011 stipulated by the parties, supplemented by additional Mass. LEXlS 736 (Mass., July 28, 2011) facts found by the board in its written decision and not disputed by the parties on appeal. 3 The town of Bridge­ PRIOR HISTORY: [***1] water (town) is a municipality [***2] in the Common­ Suffolk. Appeal from a decision of the Appellate Tax wealth of Massachusetts. The foundation is a charitable Board. foundation that was established in 1984. The university is a stateuniversity. 4 Its campus is situated on 235 acres HEADNOTES in the center of the town. The foundation owns real prop­ Taxation, Appellate Tax Board: findings; Real estate erty at the following locations in the town: (i) 180 Sum­ tax: charity, exemption; Judicial review. Administrative mer Street; (ii) 25 Park Terrace; (iii) three unimproved Law, Judicial review, Substantial evidence. parcels ofland on Plymouth Street (containing .74, 16.22 and 5.79 acres, respectively); and (iv) 29 Park Terrace. COUNSEL: Mary C. Butler for board of assessors of The foundation previously leased the buildings at 25 Bridgewater. Park Terrace and 180 Summer Street to the university for $1.00 per year per building (or part thereof used by the Michael R. Coppock for the taxpayer. university). The lease of 25 Park Terrace was written, while the lease of 180 Summer Street was oral; by the JUDGES: Present: Lenk, Green, & Katzmann, n. time of the present appeal to the board, however, both leases had expired, though the university continued to OPINION BY: GREEN use both properties without any payment. There has never been a lease from the foundation to the university OPINION of the property at 29 Park Terrace or the land on Ply­ mouth Street; the university's use of those properties has [**904] [*637] GREEN, J. At issue in the present been permissive, without payment of any amount to the case is the applicability ofthe charitable exemption from foundation. real estate taxation provided by G. L. c. 59, § 5, Third, to properties owned by the appellee Bridgewater State Uni­ 3 We omit certain stipulations concerning pro­ versity Foundation (foundation) but used in whole or in cedural details [***3] of the foundation's abate­ part by Bridgewater State University (university). ' The mentrequests which arenotmaterial to resolution Appellate Tax Board (board) concluded that the proper­ of the legal question at issue in this appeal. The ties are tax-exempt because the foundation "occupied" parties agree that there are no jurisdictional im­ the properties, including the portions used by the univer­ pediments to the foundation's requests for abate­ sity, [*638] reasoning that use of the properties by the ment for fiscal years 2007 and 2008. university in furtherance of the foundation's charitable 4 During the tax years in question, which pre­ purposes constitutes occupancy of the property by the ceded the changes described in note I, supra, the foundation, within the meaning of the statute. We re­ university was a state college. The difference is verse. immaterial forpurposes of ouranalysis. 2 See note 1, supra. The foundation is organized and operated pursuant to G. L. c. 15A, § 37, exclusively for the benefit of the 1 university (which is an institution ofpublic higher educa­ used in this clause, shall mean (1) a liter­ tion within the meaning of that chapter). s The founda­ ary, benevolent, charitable or scientific in­ tion's operating agreement [*639] with the university stitution or temperance society incorpo­ provides that the foundation shall hold, manage and in­ rated in the commonwealth, and (2) a trust vest its money and other assets "solely for the benefit of for literary, benevolent, charitable, scien­ the College' and not otherwise." The board found that tific or temperance purposes if it is estab­ the Plymouth Street parcels, though unimproved, were lished by a declaration oftrust executed in occupied by students ofthe university and student groups the commonwealth or all its trustees are for recreational purposes, that this use promoted the appointed by a court or courts in the "physical training, and the social, moral and aesthetic commonwealth and if its principal liter­ development" of the students of the university, and that ary, benevolent, charitable, scientific or such use is consistent with the charitable [***4] purpose temperance purposes are solely carried of the foundation. The board also found that 25 Park out within the commonwealth [***6] or Terrace was [**905] occupied in part by the foundation its literary, benevolent, charitable, scien­ for its own offices and in part by the university's alumni tific or temperance purposes are princi­ office, while 180 Summer Street housed the university's pally and usually carried out within the political science department. The property at 29 Park commonwealth; and real estate owned by Terrace was used by both the university and the founda­ or held in trust for a charitable organiza­ tion for fundraising events and receptions. Because the