A Classic Distinction Between Legal Remedies and Equitable Remedies:  1st Circuit Overturns Decades-Old Precedent On Citizen Enforcement of Clean Water Act

Posted on May 13, 2022 by Erik McHale

The First Circuit recently overturned a thirty-one year old decision on citizen enforcement of the Clean Water Act (CWA).  The now-overruled decision is North and South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991), in which the court held that citizen enforcement of the CWA was barred when a party has already settled the alleged violations with the state.  Notably, Scituate did not distinguish between the type of relief sought – whether the action demanded legal relief or equitable relief. 

Blackstone Headwaters Coal, Inc. v. Gallo Builders, Inc. gave citizens the green light to pursue actions seeking equitable relief, even when the defendant had already settled the alleged violations with the state.  In Blackstone, a non-profit environmental organization brought suit against four defendant-developers after they had already faced penalties from the state for violations of the CWA.  Years prior, MassDEP issued a Unilateral Enforcement Order against the defendants for several violations of the CWA.  These violations related to the construction of a large residential development in Worcester known as the Arboretum Village.  In response to the order, the defendants entered into an Administrative Consent Order with Penalty with MassDEP and paid an $8,000 administrative penalty and undertook remedial actions at the site.  Years later, the citizens group filed suit against the defendants for those same violations seeking (i) a declaratory judgment that the defendants were in violation of the CWA, and (ii) an injunction prohibiting further violations of the CWA.  Relying on Scituate, the defendants claimed the suit was statutorily precluded by 33 U.S.C. s. 1319(g)(6)(A), which bars “civil penalty action[s]” initiated via a citizen suit. 

Notwithstanding the holding in Scituate—which if honored would have provided a victory for the defendants—the First Circuit clarified when citizen enforcement actions of the CWA are permissible.  Looking to the legislative history, the court noted that the limitation on “civil penalty actions” does not apply to an action seeking other forms of relief, such as an injunction or declaratory judgment.  The First Circuit also looked to a decision by the Tenth Circuit in Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005), which reasoned that the governing principle behind the bar on “civil penalty actions” is to “avoid duplicative monetary penalties for the same violation.”  Equitable remedies do not run astray of this principle and, accordingly, are not barred by the statute. 

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Municipal Law:  Supreme Court Lightens Up On Standard of Review for Certain Sign Bylaws

Posted on May 6, 2022 by Erik McHale

Recently, the Supreme Court addressed a challenge from two private entities related to the constitutionality of a sign bylaw (“Bylaw”) instituted by the City of Austin (“City”).  In City of Austin v. Reagan National Advertising of Austin, LLC, et. al., Reagan National Advertising of Austin, LLC, and Lamar Advantage Outdoor Company, L.P. (“Respondents”) challenged the City’s Bylaw which prohibited the placement of new off-premises signs.  Off-premises signs are those that advertise things not located on the same premises as the sign.  The Bylaw provided that an owner of a pre-existing off-premises sign could “continue or maintain [it] at its existing location” but prohibited an “increase in the degree of nonconformity . . . or increase the illumination of the sign.”  Respondents had pre-existing signs within the City of Austin and sought permits to digitize some of them.  The City denied the permit applications on the grounds that digitizing them would run astray of the Bylaw.  Respondents filed suit against the City, alleging that the Bylaw violated the First Amendment. 

The leading case precedent in this context is Reed v. Town of Gilbert.  In Reed, the bylaw at issue involved restrictions on the size, number, duration, and location of certain types of signs, including temporary directional ones, to prevent improper signage.  Respondent in that case rented space at a school and placed signs in the area announcing the time and location of their upcoming church services.  The Court held that the ordinance was subject to strict scrutiny because they were content-based restrictions.  In other words, one must read the substance of the sign in order to determine whether the bylaw applied, making it a content-based restriction.  To withstand strict scrutiny, the government must show that the regulation is narrowly tailored to achieve a compelling government interest.  This is the highest standard of judicial review.  Accordingly, most bylaws are struck down when subject to strict scrutiny. 

In City of Austin, the Court distinguished Reed and indicated that bylaws which distinguish between on-premises versus off-premises signs are instead subject to intermediate scrutiny.  The Court commented that “[a] sign’s message matters only to the extent that it informs the sign’s relative location.  Thus, the City’s on/off premises distinction is more like ordinary time, place, or manner restrictions, which do not require the application of strict scrutiny.”  In other words, the Court held that the Bylaw was content-neutral as opposed to content-based, subjecting it to a lesser standard of judicial review.  The Bylaw only applied to the physical location of signs:  off-premises versus on-premises.  The substance of the particular sign at issue is irrelevant.  To satisfy intermediate scrutiny, the government need only advance a substantial or important government interest in a narrowly tailored manner.                 

The Court’s holding opens up the possibility of further sign regulation by municipalities.  Municipalities may want to take a look at their sign bylaws and see whether they distinguish between on-premises and  off-premises signs.  If they do, City of Austin indicates that this form of regulation is an acceptable practice

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“A Trap for the Unwary:”  Bankruptcy Court Declares Debtor’s Homestead Deficient

Posted on April 22, 2022 by Erik McHale

In In re Luu, Danny Luu (the “Debtor”) argued that he had a homestead exemption in the amount of $324,960.00.  He argued that because he filed a homestead declaration on March 18, 2021—just two days prior to filing his Chapter 7 case—his home was afforded the protections of the statute.  The Chapter 7 Trustee (the “Trustee”), however, objected to Debtor’s position.  The Trustee argued, in part, that Debtor’s homestead declaration was deficient because it was not “signed and acknowledged under penalty of perjury.” 

The Homestead Statute is M.G.L. c. 188 (the “Statute”).  Section 5(a) of the Statute provides in relevant part that “[a] declaration of homestead shall be in writing, signed and acknowledged under penalty of perjury by each owner to be benefitted by the homestead . . .”  In Bankruptcy cases, a claimed exemption is presumed to be valid unless a party in interest objects.  Here, the Trustee objected as a party in interest, which brought the issue before Judge Panos. 

In reaching his decision, Judge Panos explored the policy behind the Statute.  Grounded in public policy, the Statute is liberally construed to “comport with [its] beneficent spirit of protecting the family home.”  Notwithstanding this, the decision at bar turned on the plain language of the statute.  The Statute plainly and unambiguously requires that any homestead exemption be signed “under penalty of perjury.”  This was lacking in Debtor’s homestead declaration, which proved fatal to his position.  Apparently Debtor used the wrong form to fill out the homestead declaration and, as a consequence, it was not notarized.  Judge Panos concluded that to rule otherwise would contradict the plain language of the statute. 

The outcome of this case reveals the real-world consequences of overlooking this requirement.  Debtor in this case did not comply with the plain language of the statute and therefore can only claim the automatic homestead exemption of $125,000.00 instead of the $324,600.00.  Certainly a harsh result, but it seems the court’s hands were tied given the underlying facts. 

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State’s Highest Court to Determine Scope of Dover Amendment Solar Protection in M.G.L. c. 40A

Posted on March 15, 2022 by Erik McHale

Last week, the SJC heard oral arguments for a case that is anticipated to potentially impact municipal zoning, specifically in the realm of solar energy projects.  The outcome of this case will either aid or inhibit a municipality’s ability to regulate proposed solar projects.  The Firm filed an amicus brief on behalf of the Towns of Charlton and Warren, arguing in favor of the City of Waltham’s position.

Facts:  In Tracer Lane II Realty, LLC v. City of Waltham, Tracer Lane II Realty, LLC (“Plaintiff”) plans to build a solar energy facility on 30 acres in Lexington.  Plaintiff owns an abutting parcel—situated in Waltham (“City”)—which is zoned residential.  Plaintiff proposed constructing an access road over its Waltham property to the solar site in Lexington.  City summarily denied Plaintiff’s request to build the road on the grounds that the parcel is situated within a residential zone.  Plaintiff then filed a declaratory judgment action in the Land Court.  The judge declared the City’s denial invalid under M.G.L. c. 40A, s. 3, which in relevant part provides that “[n]o zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare.”  City appealed and the SJC transferred the case from the Appeals Court. 

Primary Issue Presented:  Whether, under M.G.L. c. 40A,  s. 3, allowing solar energy facilities in certain areas of a municipality but prohibiting them in other areas is permissible or whether it constitutes unreasonable regulation in contravention of the statute?

Potential Ruling:  If the SJC concludes that allowing solar energy facilities in certain areas of a municipality but prohibiting them in other areas is a permissible practice, then municipalities will have a much more involved role in regulating this form of development.  Mirick’s own, Dave McCay, noted that a ruling in favor of Waltham “will allow zoning decisions to take place where they can most thoughtfully be done—which is at the local level.”  On the other hand, if the SJC concludes the opposite, then municipalities will have much less involvement in regulating this process.  Their ability to prohibit—or at the very least limit—large-scale solar developments within their community will be greatly inhibited.

Prediction & Comments:  The City’s brief presents a compelling argument.  They allege that M.G.L. c. 40A s. 3 is not violated because the request was not to construct a solar plant on the subject parcel, but merely to use the property as an access road to its abutting commercial property in Lexington.  The denial, therefore, was not designed to prevent construction of the solar project.  Of particular importance is that this access way is not the only access way to the Lexington property, which weakens Plaintiff’s argument.  Moreover, case precedent states that the statute “should be construed to prohibit only ‘direct’ regulation” of those categories protected, not incidental effects of otherwise reasonable limitations.  81 Spooner Road v. Town of Brookline, 425 Mass. 109, 116 (2008).  If the facts were different (i.e. Plaintiff sought to build the solar project on the subject parcel), then the statute would unquestionably apply, but that is not the case here.  Given the above facts, precedent seems to be on the City’s side and their argument should prevail.  A favorable ruling for the City will preserve a municipality’s ability to regulate large-scale solar development. 

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Remote Public Meetings Authorized Through April of 2022; New Law Extends Additional COVID-19 Emergency Rules

Posted on June 18, 2021 by Brian Falk

Public bodies may continue to hold remote meetings through April of 2022 under new legislation enacted this week. The statute, Chapter 20 of the Acts of 2021, authorizes a quorum of a board or committee to meet remotely and require remote public access to the meeting, extending a modification to the Open Meeting Law put into place in March of 2020. The new statute also extends other COVID-19 rules that had proven popular or necessary even after the end of COVID-19 restrictions.

Remote Meetings:

Under the amended Open Meeting Law, a quorum of a public body may meet remotely without the chair or any other member being physically present in a meeting location. In addition, a public body may require the public to access a meeting through remote means so long as it provides “adequate, alternative means of public access” that provide “transparency and permit timely and effective public access to the deliberations of the public body, including, but not limited to, providing public access through telephone, internet, satellite enabled audio or video conferencing or any other technology that enables the public to clearly follow the proceedings of the public body.”

These provisions were included in one of Governor Baker’s earliest COVID-19 emergency orders, and are now part of the Open Meeting Law through April 1, 2022 (unless further extended).

Individuals entitled or required to appear and present before a public body remotely must be given the same level of remote access as members of the public body (being promoted to “panelist” or “presenter”, rather than simply observing a livecast or participating through audio only.)

The statute also ratifies and validates remote public meetings held on June 15, which fell outside of the protections of the Governor’s order and the effective date of the new law.

Other Extensions:

In addition to allowing for continued remote access to public meetings, Chapter 20 of Acts of 2021 extends several other COVID-19 rules, as follows:

  • Authorizes the reduction of the quorum at any town meeting through December 15, 2021;
  • Allows representative town meetings to meet by remote participation through December 15, 2021;
  • Extends local outdoor dining approvals until April 1, 2022;
  • Extends “to go” sales of wine, beer, and cocktails for off-premises consumption through May 1, 2022;
  • Extends certain eviction protections put in place during the pandemic until April 1, 2022; and
  • Extends certain flexibilities for assisted living residences, and the ability for medical assistants, podiatrists, phlebotomists, and certain military personnel to administer COVID-19 vaccines.

The statute contains an emergency preamble and therefore takes effect immediately. 

Please contact a member of Mirick O’Connell’s Public and Municipal Law Group with specific questions on the new law.

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Municipal Permitting Timelines Resume on December 1

Posted on November 20, 2020 by Brian Falk

Effective December 1, municipal boards must follow the usual permitting deadlines following a COVID-19 statute enacted last week.

Towns and cities had been operating under Section 17 of Chapter 53 of the Acts of 2020, which tolled the deadlines for commencing public hearings and issuing decisions while the Governor’s COVID-19 state of emergency remained in effect, and for 45 days after the end of the emergency. Chapter 201 of the Acts of 2020 eliminated this indefinite tolling period as of December 1, 2020.

While many municipal permitting boards have continued holding hearings and issuing decisions during the COVID-19 emergency using in-person or remote meetings, others have pushed out matters – without the risk of constructive approvals. That relief ends on December 1, when the usual timelines to hold a hearing and issue a decision resume.

The new statute allows boards to appeal to the Department of Housing and Economic Development for relief from permitting deadlines if the board:

  • is unable to conduct such meetings or hearings in person in accordance with applicable public health orders regulating gatherings during the state of emergency.
  • is unable to conduct meetings and public hearings remotely due to a lack of access to broadband or other technical limitations; and

Mirick O’Connell will continue to keep clients up to date on legislation addressing the COVID-19 emergency.

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Important Update – The Impact of Coronavirus on the Construction Industry

Posted on March 26, 2020 by David Fine

Since our post on March 18, a lot has happened from both a health and regulatory standpoint as far as the impact from the outbreak of COVID-19 (“coronavirus”) on local and state construction practice.  Here is an update, as of today, March 25.

On March 23, Governor Charlie Baker issued an emergency order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public as of Tuesday, March 24th at noon until Tuesday, April 7th at noon.

The order appended a list of designated essential services, based on federal guidance and amended to reflect the needs of Massachusetts’ unique economy, including

“Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)”

“Workers – including contracted vendors – involved in the construction of critical or strategic infrastructure including public works construction, airport operations, water, sewer, gas, electrical, nuclear, oil refining and other critical energy services, roads and highways, public transportation, solid waste collection and removal, and internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services)”

“Workers who maintain, ensure, or restore the reliable generation, transmission, and distribution of electric power”

“Workers to ensure continuity of building functions”

The industry therefore largely interpreted the order to mean that most construction work was deemed a COVID-19 Essential Service and would be permitted to continue unimpeded.

Notably, the order also provided that it

“supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the objectives of this Order.  With respect to work or travel in particular, any order or rule issued by a municipality is hereby made inoperative to the extent: (1) such municipal order or rule will or might interfere with provisions of this Order ensuring the continued operations of COVID-19 Essential Services; or (2) such municipal order or rule will or might interfere with the free travel anywhere within the Commonwealth of any person who is a member of any COVID-19 Essential Workforce where such travel is made in connection with the ongoing operation of COVID-19 Essential Services.”

On its face, this order appeared to supersede and render inoperative prior directives from municipalities, including the City of Boston, which had ordered a systematic shut down of most construction work.  Industry participants quickly appealed to the Governor’s Office for clarification.

**ALERT**

Yesterday, March 25, 2019, the Governor’s Office, through its Chief Legal Counsel, issued written guidance regarding the effect of the March 23 emergency order insofar as the order intersects with municipal efforts to address the COVID-19 crisis.

Importantly, the guidance provides that “all construction projects are to continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with guidance provided from the Department of Public Health … Local policies, regulations, or directives that provide otherwise are in direct conflict with the Order and should be withdrawn … construction projects should continue as long as they observe social distancing protocols and otherwise can continue to operate safely.”

According to this guidance, Massachusetts cities and towns may not impose a ban on construction and may not order work to cease on existing projects, as such actions are in violation of the emergency order.   However, all projects in the Commonwealth must adopt and implement COVID-19 Guidelines and Procedures for all Construction Sites and Workers at all Public Work, which are enclosed with the letter.

Industry participants are cautioned that, until cities and towns take formal action to withdraw the orders currently in place, the restrictions in cities such as Boston will remain in effect.  The situation remains fluid and there is likely to be further, imminent instruction from city and state authorities.  Indeed, just a few hours after the Governor’s Office released its guidance, the City of Boston responded with its own bulletin, stating that, “[d]ue to the public health emergency in Boston and across the Commonwealth of Massachusetts, this pause is still in effect until further notice.”

The Mirick O’Connell Construction Practice Group will continue to monitor these events.

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The Impact of Coronavirus on the Construction Industry

Posted on March 18, 2020 by David Fine

The outbreak of COVID-19 (“coronavirus”) has impacted all industries, including construction.  First and foremost, we are in the midst of a public health crisis, and the safety and well-being of all project participants should be top of mind.  We are also looking at significant economic risk and uncertainty.  Our state and federal governments have issued emergency orders.  The City of Boston this week announced a complete shutdown of construction projects, with other jurisdictions likely to follow suit.

The impacts to the construction industry and its participants are widespread and range from quarantines and labor shortages to disruptions in the local, national and global material supply chains.  All parties, whether owners, contractors, subcontractors or suppliers, should already be in the process of creating protocols for their field and office teams, proactively establishing communications with customers and vendors, and carefully reviewing and confirming all contract and regulatory requirements, which in some cases are changing daily.

The general protocols to consider include: reinforcing good personal hygiene; encouraging employees to stay home if sick; restrictions on travel; and preparedness planning, data security and working remotely.  In addition, the following concepts bear particular attention in light of these circumstances and their unique application in the practice of construction.

Delays and Extensions of Time

Most construction contracts, including standard form documents such as AIA and ConsensusDocs, contain provisions addressing the contracting parties’ rights and obligations in the event of schedule delay, including delays occasioned by “force majeure” (translated from French as “superior force”).  While most of these provisions do not reference infectious disease specifically, they commonly allow for the contract time to be extended in the event of causes outside of the contractor’s control, including a force majeure.

It is recommended at this juncture that project participants review these provisions carefully to determine their rights in light of the coronavirus impacts, and, importantly, to ensure compliance with notice and other procedural requirements.  Many of these clauses contain strict requirements for particular notice to specified recipients, to be issued promptly upon recognizing the cause of delay, regardless of whether the impact is ultimately borne out.  It is recommended here that parties create a form of notice that can be adjusted on a per-project basis, in order to establish a written record and advance notice of impacts.

Material Escalations

Contractors are beginning to receive notifications regarding delays and impacts to the supply of construction materials, and they are well-advised to review their contracts for protection against this disruption, usually in the form of material escalation clauses.  These clauses will typically specify the materials subject to escalation and define the events that trigger the clause.  The methodology for implementing the price increases is variable, and may utilize unit pricing, benchmark pricing or incremental increases based on other factors.

Given the fluidity of the current landscape, contractors should be careful to include language particular to the coronavirus impact, establishing procedures for documenting and proving actual cost increases.  The price escalation should address not only increases in price, but also corresponding adjustments in the schedule.

Termination and Suspension

Most commercial construction contracts contain language that defines the grounds upon which the owner may terminate the contract or suspend the work.  These clauses usually describe the rights of the parties regarding procedures for demobilization, remobilization, adjustments and entitlements.  It is recommended that contractors remain vigilant, be aware of these clauses, their rights in the event of an owner-directed termination or suspension, and any notice requirements to preserve adjustments that will have to made or sought in the contract sum and/or contract time.

Insurance

For each project participant affected by coronavirus impacts, there may be unique insurance considerations depending on the nature and extent of particular losses and claims.  Potential claims lie with policies that are written on an “all-risk” basis, for example, builder’s risk insurance policies, as well as business interruption insurance policies that may afford coverage, for example, for losses sustained by civil authority orders.  It is recommended that participants review their policies, with their insurance professionals to the extent possible, and determine their rights and potential loss mitigation procures that may be available.

Safety and OSHA

Obviously, worker health, safety and welfare is a priority for all employers.  These are not just moral obligations, they are memorialized in several state and federal laws and regulations.  For example, OSHA contains a duty for all employers to provide employees with a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  The current landscape presents unique risks and challenges, which are sometimes changing by the hour or even the minute.  There are several trusted resources for employers to review recommendations for best practices, including, but not limited to, directions from OSHA, DOL, CDC and others.

Mirick O’Connell will continue to monitor the impacts of the coronavirus global pandemic on the construction industry and its participants.

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Executive Order Loosens Open Meeting Law Requirements During Coronavirus Emergency

Posted on March 13, 2020 by Brian Falk

Governor Baker signed an Executive Order relieving government boards and committees from compliance with certain Open Meeting Law requirements during the novel Coronavirus (COVID-19) emergency. The Order gives public bodies greater leeway to hold closed-door and remote meetings, so that government agencies may conduct business while also complying with public health recommendations regarding social distancing.

Under the Order:

  • Public bodies may hold meetings without providing physical public access so long as the public has access to deliberations through alternative means.
  • Alternative means include telephone or video conferencing and other methods of providing real-time public access to government meetings.
  • When public participation at a meeting is required by law (such as a public hearing), the alternative means of public access must allow for active, real-time participation (such as an open conference call or live stream video with a comment option).
  • Public bodies may allow for remote participation in meetings by all members, including the chair, with no members being physically present at the meeting location.
  • All other provisions of the Open Meeting Law remain in effect (posting meeting notices, recording and approving meeting minutes, executive session requirements, etc.).

The Order is effective immediately and remains in effect until rescinded or until the Governor’s State of Emergency is terminated.

Please contact one of our attorneys with any questions about the Executive Order.

Mirick O’Connell will continue to update clients about legal issues associated with the Coronavirus pandemic.

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SJC Reverses Appeals Court on Standing Requirements Under the Zoning Act – With Record Speed

Posted on March 11, 2020 by Spencer Holland

All zoning conformities are alike, to rephrase Tolstoy’s famous opening line, but each zoning-related injury is injurious in its own way.

Such has been the time-honored tenant of Massachusetts law for abutter standing under the Zoning Act.  To successfully challenge a local zoning decision, an abutter must first identify a particularized injury that establishes standing.

Last Friday the Supreme Judicial Court (SJC) reaffirmed this principle. Acting with uncharacteristic speed, the SJC overturned an Appeals Court decision the day following oral arguments. While the SJC’s written opinion has not been published — or likely even written — as of this date, its swift judgment has induced a collective sigh of relief in the development community.

In Murchison v. Sherborn Board of Appeals, 96 Mass. App. Ct. 158 (2019), the abutter-plaintiffs appealed the local building department’s issuance of a foundation permit for construction of a single-family residence on the lot across the street, alleging that the construction would violate the lot width requirement under the town’s zoning bylaws.  After the Zoning Board of Appeals upheld the issuance of the building permit, the plaintiffs sought judicial review of the board’s decision under the Zoning Act.  The Land Court dismissed the plaintiffs’ petition for lack of standing, finding that the plaintiffs failed to establish any particularized harm that would result from the proposed construction and concluding that the plaintiffs “simply do not want any construction on [the lot].”  Murchison v. Novak, No. 16 MISC 000676 (KFS), 2018 WL 2769307, at *5 (Mass. Land Ct. June 5, 2018).

The Appeals Court reversed the Land Court’s decision, holding that the plaintiffs had, in fact, sufficiently identified an injury.  The striking thing about the Appeals Court’s decision is that it suggests local zoning bylaws define the bounds of a zoning-related injury.  The following passage from the decision shows the Appeals Court’s equivalence of bylaw nonconformity with injury:

It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.”  What matters is what the town has determined.  If the plaintiffs’ interpretation of the bylaws is correct… then the proposed development would be closer to their house directly across the street than the bylaws’ provisions permit, and, given that particularized harm, they are entitled to enforce those provisions.

Murchison v. Zoning Bd. of Appeals of Sherborn, 96 Mass. App. Ct. 158, 164–65 (2019) (emphases added).

While there is no doubt that zoning bylaws reflect the values of a community – correlating strongly with prevailing community notions of what might constitute an injury – the suggestion that a town intends to establish the rigid parameters of an injury through its zoning bylaws is belied by the frequency with which town boards issue variances and special permits allowing deviations from zoning bylaws.

The Appeals Court’s decision also stands in stark contrast to previous articulations of the Zoning Act’s requirement that abutters demonstrate an individualized injury.  As the SJC previously held in Sweenie v. A.L. Prime Energy Consultants:

The language of a bylaw cannot be sufficient in itself to confer standing: the creation of a protected interest (by statute, ordinance, bylaw, or otherwise) cannot be conflated with the additional, individualized requirements that establish standing.  To conclude that a plaintiff can derive standing to challenge the issuance of a special permit from the language of a relevant bylaw, without more, eliminates the requirement that a plaintiff plausibly demonstrate a cognizable interest in order to establish that he is aggrieved.

451 Mass. 539, 545 (2008) (internal quotations omitted).  The practical result of the Appeals Court’s decision would have been that abutters could obstruct development merely by alleging a violation of local zoning bylaws, regardless of whether such violation demonstrably harms the abutter.

While the development community will pay close attention to the SJC’s forthcoming written decision, the news of the SJC’s reversal represents a significant reassurance; the existence of a zoning nonconformity alone does not constitute an injury for standing purposes — further inquiry into the legitimacy of a plaintiff’s alleged injury remains necessary.

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PFAS Concerns Mounting for Cities and Towns as MassDEP Proposes Maximum Contaminant Level in Drinking Water

Posted on March 6, 2020 by David McCay

Many of our readers will be aware that on December 27, 2019, the Massachusetts Department of Environmental Protection (MassDEP) proposed a Maximum Contaminant Level (MCL) for PFAS in drinking water of 20 parts per trillion (0.02 ug/L or ppt) for six PFAS chemicals combined.  To that point, PFAS generally was not regulated in Massachusetts drinking water.  MassDEP’s MCL proposal follows its adoption last year of a reportable concentration for PFAS, also at 20 ppt, for soil and groundwater contamination under Massachusetts General Laws, Chapter 21E and the Massachusetts Contingency Plan (310 CMR 40.0000).  Massachusetts has been more proactive from a regulatory standpoint than many states in attempting to deal with the PFAS problem. 

As MassDEP does so, however, the implications, potential costs, and concerns for Massachusetts cities and towns that provide public drinking water are coming into sharper focus.  Earlier this week, the Massachusetts Municipal Association (MMA) submitted comments on MassDEP’s proposed MCL for PFAS in drinking water.  While the MMA expressed support “for the intent of the draft regulations to protect public and environmental health,” its anxiety over costs and unfunded mandates was clear.  “As the full scope and cost of the need for remediation is not yet known, the MMA remains deeply concerned over how municipalities could pay for what has already been and what will continue to be exorbitant clean-up costs.”  The MMA added that any new regulatory standard should not result in “new unfunded mandates.” 

While MassDEP and Gov. Charlie Baker’s administration deserves credit for attempting to address the PFAS problem head on, there is little denying that MassDEP is setting PFAS targets that, in many cases, cities and towns will now have to pay to achieve.  The Baker administration deserves further credit for including $23.9 million in its FY2019 closeout budget to assist communities with this work.  However, there is no doubt that more robust State funding and assistance will be necessary.  In the meantime, and outside of the limited state funding available, municipalities and their water rate payers will be left to shoulder the costs of PFAS testing and, if necessary, any remediation, as well as the expense of pursuing any potentially responsible parties for those clean-up costs.  As testing becomes more widespread and the magnitude of those costs is better understood, expect increased pressure on the Commonwealth for greater funding and a more comprehensive approach to PFAS testing and remediation in our cities and towns. 

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Building the Boroughs: A Year in Review

Posted on January 31, 2020 by Brian Falk

Building the BoroughsIn 2019, Mirick O’Connell’s permitting attorneys were proud to help our clients, large and small, with local approvals in Marlborough for 6 great projects.

Thank you to our clients and the City of Marlborough for a wonderful year!

Click here to learn more.

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