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STATE AND LOCAL GOVERNMENT LAW

1/13/2014
Beginning: outline what were gonna cover. Today: explain the course, details, subject matter,
approach, philosophy, expectation
Subject matter:
Negotiation exercise (March)
Final exam
Grading
No textbook
(local law: must not be preemptive, not contradictory, and repugnant to federal law).
Land use: Power of a local government/community to create land use ordinance, to interpret
them, to make them reflect the changes going on the community. [Comprehensive planning
and master planning].
First few classes: super structure of terms and classes: table of contents. Do through some
cases.
Home rule: Ordinances and By-laws (structure, drafting, constitutional issues)

Local gov: is as a business corporation: CEO (mayor elected by shareholders registered


voter); board elected by registered voters; budget. EXCEPT: it is done in the open
(transparency). Will learn about public records: is legal advice written inside the
municipal a public record? Open meeting.

Ethics: different from private. Conflict of interests: common law and statutory.

Volunteer on local level: municipal employee, not get paid, become subject to whole
host of potential conflicts. Could bar law firms from dealing with the community.

Municipal finance: caps, limits

Civil rights claim: more about behaviors of local officials. Constitutional standards to
succeed in those claims: was the behavior such that is shocks the conscience?

Collective bargaining, taxes, abatement, public bidding statute, environmental matters,


affordable housing, inclusionary zoning.

Guests: open dialect way: how/why got into it, what their ethics are.

Videos of some meetings: explain the procedure: rules of engaging: public hearing, open
meeting: watch the behaviors of local officials and understand what they dont know
and how they politically put it forward (how incorrect they usually are).

A case study at the end of the topic: carefully selected and reviewed/summary of what
weve been talking about: how we use the case in a comprehensive plan to create a
strategy to achieve what our clients want.

The Street: Town meetings: only meet 1 -2 times a year. How to time all of these.
Owner of Star Market: want to upgrade. Community is guarded and protected about
their historic asset: any structure in the community that has that age must go to local
historic commission and get from them 2-part finding: this structure is not historic; if it
is historic: should it be preserved? Force the owner to develop the owner to think of
different way. -> Have to get the fining: it is historic but it should not be preserved.

Rezoning: certain problems: can be attacked under the guide of illegal spot or contract
zoning. Present all of the information, carefully scripted the actual environment that
reflects what the case said would win a case for legal rezoning (public record fit in the
case).

Assignments:

Each week: will send an assignment: will highlight the materials and cases that
were going to cover the following weeks. Separate: Tuesday and Thursday.

Assignment will be the entirely outline of the course.

Read: documents number such and such. Might say: scan/review: take a piece
at the comprehensive plan: want to go through, headnotes, topics. Sometimes
PRINT OUT: short.

Negotiations:
o Probably in March. VERY IMPORTANT.
o Not graded
o Part of class participation
o Will give a bunch of documents: have a month to look through: will assign roles,
will come to class on the first day. Get all issues out on the table. Divide into
groups and negotiate -> Solutions of the problems. Each group will give a paper
on what you did.
Final exam:
o Take home
o Narrative, fact pattern: will represent smb in the fact pattern: see if you can
figure out all issues, ask to choose 4-5 issues: see if can tell how to strategize
about that issue.
Careers/creating a practice/life in big/small law firm/public agency. Real estate
transactions (permitting, planning, zoning, institutional organization).
Name, year, college, ever work government politics.
Reading:
o Town meeting: purest form of democracy (MA and New England). Harder to get
people to come and there has been moves to get rid of town meeting and
streamline whats going on in the town.

Changing how the town does it work: changing the citys charter,
drafting public meeting conduct. Sometimes meetings get out of hand,
people get nasty -> how people should behave.
o International municipal lawyer negotiation: conflicting
o Local government: if have conflicting client -> youre in the pocket of the lawyer,
do not give great advice -> if you operate as a municipal attorney: all about trust
and objectivity. But want to get rid of attorneys who have some institution
history and become politicians.
o Takeaway: must check with the city/town whole: building, everything that
going on.
o Historic district: people buy certain homes: basically control anything you can
see: if own (something as simple as handicapped: local district:
certificates/appropriateness).
o Sun, Sand, and a Sea of Municipal Headaches: classic local gov story.
This afternoon: assignment that cover 2-3 classes. Handout on one page.

1/15/2014

Concepts, definitions and topics. Put it into a case study.


Takeaways:
o Context of litigation
o Introduces to how the municipal attorney should operate, how the law department
(town counsel) operate within the context of the municipal operation.
o Will learn: what is municipal employee: there are limitations on rights, conflicts of
interest statute. Have issues, limitations and responsibilities under the Model Rule
of Professional Conduct for lawyers.
o Will learn: two major conflicts: financial conflict, the appearance of impropriety
(what does the reasonable person think about what you are doing: do they believe
youre fair, objective, are not political).
o Collective bargaining, elections, balancing free speech and confidentiality. Attorney
client privilege. Core of the fact pattern is about political activity within the
context of the law department in a municipality that according to a person in charge
may affect the work quality of the partner (city counselor): succeed only if they are
perceived as open, honest, transparent and not political (not particularly
persuasive): a municipal attorney represents multiple clients (often have conflicting
interest): you must have the credibility in order to render a decision that these folks
argue all the time (lawyers should be fired, should hire another lawyer).
o Home Rule:
Genesis of all municipal power today
Came to be in the late 60s in this country: what it is, what it is not and
happened before that
Both statutorily constitutional: Massachusetts (chapter 43(b)); right of
citizen town to create constitution (charter): how to create, what in them,
give the right to organize the kind of government they want to have so long
as it does not conflict with state or federal law (reviewed by the counselor).
From the charter, comes comprehensive plan, master plan (how the county
wants to see it self, vision): give right to community on how it wants to live.

From those plan, comes law: how do you envision (city: by laws, ordinance:
town opposite).
What city counselor does:
Involves city of Newton. Helen Dona v. Mann et Levine: happened at a
time: represents all departments/ agencies of the city: write legal opinions
(try to figure out what they are: quasi, traditional, legal advice, advisory,
public documents): multiple clients (conference of clients over cases
affordable housing): no direction from the mayor (zoning board of appeals):
here on behalf of []
Workman compensation, all kinds of issues.
City atty law department : raise and defend all claims made or against the
city. Sometimes outside counselor hired (collective bargaining, real estate
tax payment). In this law dept., a mini law firm: weekly meetings, discuss
everything, files opened everybody, confidential information. Charter of the
City: states Mayor (executor): appoints the city solicitor: appoint the
assistant and they serve at will as does the city solicitor: no rule, no written
regulations: basically what are standards set by the head of the department.
Facts: Dangeon: former head of the department, very political: Levine was
notified that hes gonna be solicitor. Immediately called the lawyers into
the meeting: Dona (have own private practice with her boyfriend). Levine:
no political activity that will affect the objectivity of this working
environment.
Dona run for state representative and one of the clients also run for state
representative: violate the rule Levine made (run against the client who she
represents: no a lot of confidential info about this person).
Rules of American bar association: public officer should not engage in
activities are or maybe in conflict with his official duty.
Strike: state did not come in. Local community has to do it. Going to court
to get an injunction against the union; Criminal complaints. Union endorsed
her.
Issue: Does the city solicitor have the power to fire her on her exercise of
her constitution right (1st Amendment right to run for public office).
Judge: solicitor: compelling state interest to operate an efficient document
w/o politics: have the right to make reasonable rule. Rule against politics to
ensure efficiency.
A petitioner may have a Constitutional right to talk politics but no right to be
a policeman: if you are municipal employee, you have to accept certain
limitations on your otherwise absolute constitutional right to do whatever
you can do as a citizen. A city can impose reasonable conditions upon
employment: very different from private sector.
2007: assistant law director: new law director came in, have bylaws to fire
at will: refuse: fire, brought suit: have constitutional right to continue
employment: no such right, can be discharged with or without cause
Document 1c: June 6, 2010: Assistant State Attorney who refused to stop
engaging in political policies (tea party rally, talk show): SA fired her and
quote Justice Holmes: no constitutional right to be a policeman: Local gov
functions only if they are trusted and objective. Otherwise, the actions of
the official erode and confidence erodes.

God, Gay, Atlanta Fire Department: Mayor: No, we have the right to have
people in our government so their employee will have some respect and the
outside world will buy into were doing it the right way.
Takeaways: Charter, how the community organizes itself, legal department learns
about municipal employee, lawyers ethics, collective bargaining, multiple clients.
Big takeaway: local gov functions only if they foster and create objectivity,
credibility, integrity, strong ethical standard and strong sense of self.
Home Rule:
A concept that when you get in practice and involve with transactional
matters and write opinions, it comes into play.
Evolves in the late 60s. As we develop and rural areas became residential
areas, people want to take control of how they want to shape their local
gov. Prior to that time, operate under Dillons Rule. 1873: National Bank of
Cleveland: stood for principle: a municipal corporation could not do
anything w/o approval of the state: all power from the state: If the local
ordinance created, has to get permission from the state. OK unless state
statutes say cant do.
Dillon rules 3 concepts:
A local community could fist do only those things granted by
express words in a state statute
Could have the power to do those things necessarily or failure
implied or incident to power expressly granted
o E.g. - Create a budget to fund fire station. Has to be
approved by the state. Any time a local community did
something and have some doubts, 99% in court, court will
rule against city and town.
Could have the power essential to accomplishment of those objects
and purposes.
Those powers granted by express words: E.g. : public and safety welfare of
inhabitants, necessarily or fairly implied or incidental to the power: create a
fire department: OK.
People want to take control. MA: happened in 1966: embodied in general
law chapter 43 b. Community was allowed suddenly to structure their local
gov: did through concepts like charter, comprehensive plan, master plan,
ordinances and bylaws to implement that master plan and etc.
43b has the precise wording that govern whatever the community does:
Section 13: any city or town may by bylaws ordinance exercise any function
which the legislature has the power to confer upon it which is not
inconsistent or denied by clear implication to the city or town.
Different from Dillons rules, all cases since 1966 broadly give lot of power
of city or town: if any doubt, good chance that the courts will uphold what
local government does: do they have the right to do that (public health
safety). If there is any rational relationship between the decision and
master plan/comprehensive plan, virtually impossible for plaintiff to
overturn the decision: huge broad discretion under home rule given to
city/town.
If you wind up in an appeal, youve done everything possible to be sure you:
so decision wont be overturned.

Charter:
Usually starts with the study committee: there is in the community a group
of people who want something: hundreds of them, these groups pop out,
decide either we need a charter: if a city or town does not have a charter,
any time a measure passed, it must go to the state for approval: want to
create a new structure for the government: always get together and form a
study committee: take a look at current structure of the government: this is
good or not good, make certain recommendations.
Following:
Document No. 2: A community decides it wants to create/amend a
charter: Most states are totally home rule, some are partially home
rule. Their constitutional statute will say: can do and cant do.
This group gather signature from 70% of registered voters of the
community to get the matter on the ballot. Along with the
questions come 9 people who were willing to serve.
If there is an agreement we should do something in the charter,
create a new one.
Within certain number of days: must be public hearing.
Within 16 months: preliminary report: proposing: publish in general
circulation and mailed in every household in the community.
Reviewed by the Attorney General: because the State want to make
sure since we are home rule: making the right: consistent with, nor
repugnant to, not preemptive by the state law.
Final report issued within 18 months of the election.
Charter goes on the ballot: simple, specific.
[Must see: Newton History Museum]
Changes in 1983: Home Rule: under HR, could initiate w/o going to the
state.
Offices of Mayor has been made full time
Private citizens were given more power by preliminary election,
citizen assistance officer, 5-year capital improvement programs
With home rule came the [] of the town: do through your budget
and employing people. Maintenance/infrastructure program: have
to pass it out over number of years: put it in the charter force the
city to think through successive 5 years period of time, think of
estimate the costs, and have it there so in fiscal year the budget will
reflect the maintenance (every 5-year period of time).
A referendum
Initiative: to propose to the legislation that they seem to be
ignoring.
Locally elected neighborhood area councils: Home rules give the city
the right to be progressive and cutting edge: create the mini
government, unique to the city:
o City is divided into 14 villages historically
o Those used to be placed so in the center there was drug
stores, shopping center, etc.

Each village has the right to create the little government: 4


out of 14 actually done that. Bring up issues, relate those
issues to their elected officials: represent them to the citys
legislative body: activism, participation.
Complete Records: state enacted public status statute: any
document created by or sent to a municipal gov is a public
document: there are ways to obtain: what the charter is saying is
city board, agencies: you must transcribe in some way minutes of
your meeting to be available to the public. Every time meet, has to
be posted 48 hours in advance.
o Public records, meetings: evolve from when it started
minutes of the meetings to records of the meetings. Now,
even put the audio on the website.
o As lawyers: practice tips: whenever you are involved with
city or town (representing a developer to get a permit):
make a practice to get a hold of the tape, have transcribe
the meeting but have a transcription of every single
meeting -> litigation, ordinance, bylaw: vague or we need to
understand: go to these: become important to litigators.
Planning functions: Charter added the requirement to create a
comprehensive plan. MA is a non-planned state: it is a state where
the state says city and town must create a plan, any decision you
made must be consistent with the plan (land use). Supposed to
guide the local legislative body and the Board is supposed to refer
to the comprehensive plan: our decision further the goal or policy of
the plan. If the community takes an action (changes the zone from
single family or multifamily) and cite a portion of the
comprehensive plan (want to develop multiple housing): if there is
an appeal bc of the relation to the comprehensive plan, 9.9
times/10: will win. Local government: Court will defer to the local
community as long as substantiated by the comprehensive plan of
the community.
Town in Brookline: does not have a charter. Everything the town meeting
does have to go to state legislature. E
Cities and towns are corporations : 351 in MA (Some are cities, some are
towns, but most are towns).
Form of government: Executive branch, legislative branch and city attorney
(often time becomes the quasi-judicial plan: try to interpret, solve problems
between school committees and budget committee).
Home Rule: Powers of the city: construed liberally in favor of the City
(Section 1-4) Constructions: Home Rule we want you, our elected officials
to be as liberal, cutting edge as possible. If there is any doubt, go first and
let the court decide.

1/20/2015

Continue introducing you to concepts, terms, theories, ideas that are really part of
laboratory of local government
Home Rule Chapter 43B

From home rule comes Power for local government to create Charter (De minis
constitution) that establish procedure to bring more local participation, reorganization
of the local government (as different goals changes, those on legislative body can
reorganize fairly quickly, consolidate, streamline how local government changes)
City (Mayor, legislative body); Town (town management, town meeting (legislative body
of the town): But have changed: Town has changed -> really city and sometimes when
doing business in a particular community, think of town (call itself a city): as we go
through this, have to know the rules of engagement and how they operate/structure.
Today: Finish the Charter Comprehensive Plan/Master Plan (these are documents
vision for how community sees itself now; how it would like to see itself 10-15 years out.
Some states require community to have a plan: think about where community have
different uses to create : every action of the local legislative body are supposed to refer
to this vision and documents finding and conclusion as how their decision relate to
comprehensive plan:
o in non-planned state like MA : if not have master plan, at the end of the day,
sort of a kind, if written properly, if the language is written properly, -> allow
flexibility. During 15 years period, can pick and choose how it wants to use the
language: abide into goals and policies (mission statements).
o Example: when a community was developing (3 basic parts: land use, housing
and open space: major categories that every community concern about +
transportation, etc.).
o Very important if you represent clients who want to do some real estate
development: what is the goal (create affordable housing), policies (mechanism
to implement those goals) (by doing this and that).
When dealing with local community, have to think ahead to potential litigation: have to
do step by step correctly: permit granting, usually have a reference to the
comprehensive plan (this project further the goal of comprehensive plan [] and
policies []): MA is a home rule state, local board has broad discretion: court assume
local board understand what the community wants: if there is a written connection to
the plan: appeal : judge will be hard pressed to overturn the decision. Up to today,
whenever I mention comprehensive plan: 2 reactions: (1) No clue (elective officials); (2)
Laughing. Job: to gently and nicely explain to them what theyre supposed to be doing.
When finish: preservation/creation of a physical environment for the community: its
the guide for growth (these are flexible techniques to achieve the kind of community
the folks who live there want to live in): everything has to be home rule and cant
conflict with state statute.
(3) Legislation:
o They can create legislation as long as what they do not conflict/inhibit the
legislation and/frustrate [the purpose] of the state statute. Critically important
to understand these concepts because: most practitioners never encounter
these concepts
o Zoning opinion: local ordinance and bylaw frequently slipped by and get
approved: usually contradictory to state statute: Life Insurance problem.
Quincy: Mayor : 5-year capital improvement program (Each year identify streets, road,
infrastructure that need to be changed and project the amount of money).

I-93 protesters: an employee of city of Boston: unacceptable to put public safety at


risk: your rights are curtained if you work for public agencies (obligation to sustain
objectivity and policies of the city of Boston).
Guide to future decisions, any [decisions] passed by the Board have to refer: should
there be an attack, youre in good shape bc of the relations with the comprehensive
plan.
Article 10 (Newton Code): Initiative, Referendum
o Initiative: means that local folks have the right to petition their legislative body
to pass a measure. Comparable and not violation of any state law (preemptive).
If city attorney says OK -> go to legislative body: within 30 days, vote: adopt it or
forget about it: if the activist who wants it: within 40 days, get a garner of [55%]
of registered voter to sign -> to next citys ballot.
o Referendum [Ordinance only]: opposite: legislative body passed an ordinance
they dont like: have to get 10% of the registered voters of the community, file a
petition to resend it within [20 days] it passed. A measure becomes effective
after 20 days it passed unless vetoed. If legislature doesnt accept -> go to the
next ballot.
o Charter: can be changed by local initiative so long as the change that is being
requested does not involve the composition of the legislative body or any other
body in the city that require the new charter: E.g. this city has the largest
legislative body of any community: 24 elected officials. Always a move to
reduce the number of the elected officials: never informed how to do it: what
required is a complete new charter.
o Comprehensive plan or master plan are visions, courts pay great attention to
these plan. If the local community is doing its job properly -> judge will have a
hard time overturning unless it is over off the chart or has intangible reason.
o MA is not a planned state: no rigid requirement: so
o Can be changed fairly quickly by legislation.
How comprehensive plan get created:
o Legislative body will adopt: this is our master plan for the city
o Why: activists, people who move recently, demographics change, more
revenues needed from commercial development, etc. lots of time communities
really want commercial development, dont want it ignorance but not near
pond, river: -> group is put together, no official status for this group: usually
appointed by the [] of the municipality: usually advocates for [economic
development, housing, business interest, education, environment, historic
preservation, open space preservation and development]: a profile of the
diversity of a particular community.
o Group get together, set a list of topics want to talk about: open meeting and
public hearing to let people speak: talk about population of the community,
demographics (is it growing, in what section of the town), housing, housing
stocks, schools, economic development, commercial development, taxes,
community facilities (tools, open spaces, active recreation, transportation,
bikes, bike lane), urban design (how can we through rezoning create that
image), delivery of services, trash pickup, natural resources, historic resources.
o Open discussion

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Group then look at each of those topics, specifically in area of zoning: economic
effects of making changes within these categories: economic, social and physical
effect.
Then sit down and say: what are our goals for this community. How we are
going to implement those goals: do through policies.
These plan are supposed to be valid for 10-15 years -> revisit. Update. If they
get to master plan, dont have to change it for a very long time.
[This project further goals and policies of this master plan or policies. But have
to read zoning ordinance/bylaw: here what we need to do to achieve the citys
goals]
Goals, policies implemented through legislation: just like the community dont
change: they dont change ordinance and bylaws which provide mechanism to
achieve those goals.
At the end of the day, these plan create what the community wants for its
lifestyle, environment: achieve those goals through various policies.
Example:
Still have lots of small communities, want to retain their character:
Document 5:Franklin: 2003: a small bedroom community: Goals
Policies (strategies to implement Goals).
Master Plan:
Introduction
Divide master plan in different uses:
Goals and policies: more tax revenue but my neighborhood
(unnecessary growth).
Land Use/Housing/Open Space: reflect concerns of everybody in the
city.
Newton Master Plan: Goal: Open Space
Policy (F): We want development but dont want to mess up
the city:
Cluster development: through a special permit, can apply for
affordable housing but must keep a portion of the site open for
recreational use or as a condition for granting the permit
(conservation): cant destroy/dump it. Taking competing ideas:
be able to develop, achieve one of the goals of the
comprehensive plan.
Housing:
Goal: assure adequate housing and equal housing opportunity.
Policy: Provision of housing affordable to all income groups:
mandate to legislature to create a mechanism to achieve this
goal.
o Inclusionary zoning ordinance: want to increase
affordable housing: want to require the folks who build
housing to factor into their preformat some low and
affordable housing and not make a lot of money:
o Wrote an ordinance: 10% ordinance: Developers first
have to submit to the legislative body a subdivision plan
and say to legislative body: we could create as of right 4
house lots: we want to build a multifamily housing here

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that have 10 units: can apply but must also: if do 4 by


right and 10 (6 more units): 10% of that 0.6, round up,
have to provide us on site, off site or has to create an
amount of money that would donate to the housing
authority.
Open Space goal:
Ensure all open reconcile the need for open space with the need
for land to accommodate future housing and economic
development.
The comprehensive plan asks for Open Space plan: would have
committee create a wish list of parts of the city they like to have
acquired by the city: in the open space plan, list the acquisition
of the NGINO plan: every year the state has grants and if there
are items on these plan -> may fund them.
City bought the land (community farm): all depends who is
louder than the other person.
2007 Plan of the city:
Implementation of the comprehensive plan:
These plans most of the time: policies, goals but the community has not done
anything about it: most situations when there is a permit granted for something
and there is objection to it: argument: this project is not consistent with the
comprehensive plan. This come into play significantly with allegation of spot
zoning: is when a parcel of land is changed by the legislative body from one
goal to another: allegation is change was specific benefit of the owner and then
the owner has to read all the cases and come up with a strategy that this is not
spot zoning because there are benefits to the city. BUT: have these arguments,
and in planned state, have strong arguments
Planned states: all actions are required to be consistent with the
comprehensive plan.
Got the plan, during that time, things changed: a community (permit
granting authority) is not into the plan state ever: their guide
permeated.
Hospital want to expand: make deal with Safeway to relocate Safeway
to another location. Hospital will purchase it. It is unzoned but in the
comprehensive: some sort of housing should be there: violate our
comprehensive plan. BUT: too bad, need for health care, hospital, and
grocery store: further other goals and policies of our comprehensive
plan.
If read carefully, skills of persuasion could potentially win the day: local
legislative acts: extremely difficult to challenge a local board decision
unless what a local community does is preemptive by state/federal law.
Difficult to figure out if it is preemptive. State/fed statutes could be
comprehensive: does not mean necessarily its comprehensive: have to
read the statute. However, one category of state/fed legislation \: take
over the field, preempt location actions expressly or by implication: SO:
Legislation that deal with a particular subject comprehensively
describe what a local community can or cant do: preclude
exercise of local power in home rule legislation: there are

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categories without questions that preempt local action: Budget,


tax, criminal, landlord-tenant: Those things are run by the state.
A local community cant decide to pass an ordinance in those
categories: cant interfere with private matters between
landlords and tenants. E.g. marijuana: fed law.
2nd category: intent was to preempt: can be inferred from the
language: not necessarily clearly drafted: recurring thing: state
statute or fed statute: for political reason, the local community
want to pass certain legislation parallel what the state does: can
local gov ordinance or by law happen will frustrating purpose of
the state late:
Bloom case: the most classic description of preemption: what is
and what is not:
o In MA, has a statute all about discrimination. State set
up a commission against discrimination: an adjudicatory
board: can assess fines; happen a lot with brokers,
leasing to minorities, etc. City of Worcester through
activities saw problems in their communities: get
legislative body pass an ordinance to create a human
rights commission: suspend something to do with
brokers and landlord: brought suits: ordinance
preempted by comprehensive state statute.
After class: Non-planned state: dont say anything about the master plan. Once has a master
plan, follow as a guide.
Planned state: there is a state statute stipulating that communities have to create master plans
and have to follow master plans
1/22/2015

Understandable by the public and folks working in the city hall


Blooming case + Preemption (fed preemption analysis): AGs opinions in different
states. MA: whenever a local gov enact a bylaw, in a town, it goes directly to AG for
opinions on whether or not the action is preempted by state law. In the city: it does not
happen.
Usually at the end of ordinance/bylaws: Approved content + character: means legally
this is a defensible action. Not saying this is all constitutional: That is the whole concept
of home rule: lawyer are supposed to take position that what they want to do may be
close to something they should not do but if is smith defensible, they should go for it
and let the court decide.
Legislative Act
Going to introduce to 2 kinds of local : non-zoning ordinances (everything from animal
control to noise): passed just by regular legislation, just done majority by those
members. In a town meeting: legislative body; City: city council + board of alderman
passed ordinance. Zoning: deal with the use of the land, more intensely scrutinized:
public[] hearing, timeframe in which action has to be taken + vote (super majority:
2/3 of the membership): Your threshold is significantly higher. If have a board with 24
members, need 16.

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Bloom case:
o MA: the result of this case is pretty much followed everywhere: rule is the
same, different court/lawyer interpret different things -> different results.
o Bloom: have very comprehensive state statute in MA: home rule was blooming:
on the state level: have commission charged with investigating discrimination in
housing, race, sex, school, etc. have the power to adjudicate their decision are
appealable. City of Worcester: want to have its own human rights commission:
an ordinance was created: parallel the state statute : step by step. Only
difference: could not adjudicate: could do their best to mediate try to get
people together to solve problems, if fail, could report to the state but
otherwise two pieces of legislation co-exist. Citizens of Worcester brought
lawsuit: you cant do this, the state statute preempt: wasting our time +
finances.
Court: analyze all local statutes: start out using federal preemption
analysis:
Test whether both fed and state legislation may operate is
whether both can be enforced without interfering: if there are
two pieces of legislation that are pretty parallel: is the primary
one impaired: whether a challenged state statute [full purpose
+ objective]: Can they co-exist?
General proposition: given considerable latitude: require a
sharp conflict of local bylaw and state legislation before local
one be deemed invalid.
Structure: local ordinance: if it has some legitimate municipal
purpose: deemed valid, presumed constitutional -> you go from
there. This court is saying: we have 2 co-existing pieces of
legislation: is there a sharp conflict between the two: legislative
intent must be clear that local gov cant do whatever it wants to
do.
Not necessarily a bar []: If the state legislative purpose can be
achieved: local ordinance is not inconsistent with the state
legislation: local ordinance operating at the same time as long
as nothing in the state legislation: doing what they are doing
conflict: Key: parallel processes but only the state can
adjudicate the regulation: as long as the local bylaw does not
require more that would be preempted.
Conclusion: Home rule: A local gov can do as long as what they
do not deemed inconsistent/repugnant to + frustrate the
purpose : definite categories: totally clear that the following
things take over the field: budget (statutory process): cant say
by ordinance; criminal law, landlord-tenant cant interfere with
those private relationships; taxation: cant change the way tax is
levied/assessed. Other than that, get into multiple shades of
grey.
o Document 6: Created immediately after Bloom case: Establish department of
human services: Establish purposes: must start every local piece of legislation
with the Statement of Purpose; must establish that there is a valid credible

13

municipal interest that will be furthered by this ordinance/by law: presumed to


be constitutional and valid.
Sec 14-16: Recommendations: Not adjudicate (not go further than the
state allow)
Functions: every piece of legislation has to somehow explain how its
gonna operate, Whos gonna be in charge. Directors shall hire all
employees: refer to and went back to the Charter: Mayor appoint
Department, department appoint [head] who will serve at will.
Human rights commission: policy of the city (Statement of purpose:
establish legitimate municipal purpose); set up a municipal board (these
boards are appointed by the legislative in the town: board of selectmen
or town managers: the folks become municipal employees, subject to
the state conflict of interest statute (apply to all ME, does not matter
even if you cant make decisions).
Functions: there must be very specific criteria by which the local board
operates: there must be standards clear and specific. Otherwise if the
standards are not set forth by which the board is supposed to operate, a
board decision can be attacked because pp can argue they have
unfettered discretion: there is no guide, principle.
Power to subpoena witnesses: there is a state law that empower local
community to do this [Cited in the para): made it 2/3 votes.
Main function: to resolve any matter over which has jurisdiction and
investigate: choose the word mediate (nor solve/adjudicate).
Sec 14-39: Construction of article (home rule): if a new ordinance is
being created: just like if youre working on a lone document for a
commercial real estate transaction and editing it to become what client
wants to be: make sure everything at the end consistent with the
beginning: provisions in this particular ordinance will be superseded:
nothing shall be interpreted to contravene the General Law of the
Commonwealth: our intention is: were not contradicting any state law
-> interpret the world of this in that manner. Legislation: a court will
look at language of a particular statute: legislators who vote cant even
be deposed: if there is a controversy over language or appeal over
discretional permit: a court will not ever delve into motivation of
legislation or the members of the commission: cant go there; the only
time: if the behavior shocks the conscience to get to the point you
might have the right to delve: is there behavior rise to level of civil
rights: very 2 cases ever succeeded: they have incredible discretion:
you represent air tight clear, not appealable bc to try to win on these
kinds of things: you wont.
Local legislation preemption: will go through a number of cases:
Preemption: inferred/implied or frustrate the purpose of the state.
Town of Carol v. Ryan: Implied preemption may be found when the :
not completely clear: when read state statute as a whole -> conclude
may preemption: when there is an actual conflict between the two:
conflict exists permit what the state statute prohibits: A question of law
interpretation: final arbitrator is the court: language, definition within

14

the statute: will not consider what the legislator might have said: cant
get into motivation.
Reading entire statute and determining even though statute
does not say not do but by all the language implied cant do.
Foreclosure: ordinance/bylaw to require owners to maintain these
property until a new buyer comes along: owner: a drafting issue. In
foreclosure, until the foreclosure is complete, the owner for the
property is the owner. All have the problem: definitions are wrong.
Easthampton Savings v. Springfield: passed 2 ordinances: one
was to be required if an owner of the property notice required
the lender to mediate with the property owner under
supervision of an appointed person who works for the city: we
need to get lender to negotiate the term of the loan: good
thing bc could not find who the lender was. Until the mediator
says we cant make this happen, we cant foreclose Second:
maintaining the property: assume the owner was the lender,
not the local property owner.
Brought suit: ordinance preempted by the state foreclosure
statute.
US SC: Normally a local ordnance is presumed valid and unless
there is some sharp conflict/problem, theyre fine. Its a state
issue -> refer to MA SJC: does our foreclosure statute preempt
what Springfield tried to do?
Decision: Mediation ordinance was absolutely preempted by
state law and the legislation ordinance also was preempted by
state law: the concept of preemption is very significant and is
very important to lots of industries/discipline: banking, lending,
real estate development.
Boston Gas v. Newton:
Fee applied for permission to open gas. Under state regulatory
scheme, at the end of the work, the state is obligated to inspect
the result: it is their expertise: very clear in the statute: what
happened was hungry for money, they passed an ordinance:
well do inspection of your work, well say its OK but you have
to pay us for: Brought suit: preempted by state law If part of
state statute arent crystal clear; cant do by implication: cant
do that.
In addition, what youve done is impose a tax on Boston Gas
(User fee: go to community v. Tax: state)
Boston Edison
State Statue does not infer clearly that the activity of the local
government is wrong. Court concluded the town of Bedford in
their local bylaw frustrate the general scheme for the state
statute.
Telephone pole: a new pole tied to the old pole. Must be
removed within 90 days. Did not happen in 90 days: Bedford:
dont get in 90 days, for every day after that, pay us 300$: Cant

15

do that, we understand that state law but there is a scheme,


way to do this, we need to get all wires relocate: state implied
we have a little flexibility here.
Court agreed
CHR General:
Condominium statute passed in the state: many apartment
buildings were being converted to condominium and transform
to condominium.
Passed an ordinance: before there can be any conversion of
apartment building to condominium: have to offer to the past
tenant. If current tenant cant pay, owner is obligated to set up
a relocation program and assist them in finding a new place.
CHR: youre stopping us from converting: creating an ordinance
absolutely inconsistent with state law: adding something to the
statute that statue prohibited.
Home Rule statute Chapter 43B: enunciate areas where local
law preempted: landlord-tenant.
Wendell: a comprehensive state statute and decision the local
governed get:
State statute: pesticide can be used in the following manner:
Town of Wendell: pesticide cant be used for various reasons:
only for agriculture and domestic use: cant contradict that
much as a clear absolute conflict.
Ohio v. City of Cline: folks who apply carrying concealed weapon cant
do. Cline: not in our parks, cant carry concealed weapons in our park.
Gun folks sued: state statute preempted the local community for doing
that: Town of Cline: court agree can carry concealed weapons in park.
Tremont Redevelopment v. Previterra: about wetland protection act:
allow local community to actually create local bylaw or ordinances that
are more strict: totally opposite Bloom: in addition local community can
add stuff and make it more stringent. Town of Westwood: flood plain
watershed bylaw: in addition to standard required by the state, the
town of Westwood add a requirement: a lawsuit brought against the
town: if a town decide to do that: should perceive the same law: have to
read the statute.
Wetland protection act: 100 foot buffer zone: flat, determined
by the engineer: cant encroach into 100 foot buffer zone: the
subdivision will be lot of small: some folks take opinion: really
a regulation of the use of land, thus, should be approved in a
different process [Back Door Zoning].
Municipal Attorney opinion:
Open meetings: every meeting has to be open to the public: must be
noticed 48 hours in advance (public can come and observe and
understand how the decision is made). Meetings can never be closed to
the public except for 7 reasons, one of them is to discuss litigation. If a
local board wants to get advice from local lawyer from a contract, which
is not an allowed reason to go into an executive (closed) session: when

16

in closed session precluded from disclosing what was discussed in the


executive session. Once the litigation/settlement is over, you have a
right to go to the city clerk and say: I want the minutes of that executive
session because it is no longer valid: But most dont know.
Opinion structure:
Frequently advisory, sometimes actually legal advice, are public or
quasi-judicial (interpretation of the relationship between the state
statute and local ordinance from San Diego that was passed).
Introduction/Question Presented/Short Answers/Background (legal
analysis of the answer).
Often time, if youre doing one of those jobs and have followed the
basic outline about being objective, genuine and trustworthy: make the
opinion stick. If doubt: may be ignored: All about trust because you
cant enforce these decisions.
If disclose, misdemeanor: San Diego: exact same thing, may find misdemeanor
more serious: Is this ordinance constitutional/is it preempted by the state
statute?
If in MA, Bloom: preempted bc youre adding something to what the
state says. If duplicative with state law : OK.
In CA: this guy says duplicative is not OK. [Not correct according to
Prof].

1/29/17

Once a statute is passed in any community, medical marijuana can go to any district so
long as
Many towns passed a temporary . In Wakefield: we ban it, you cant have medical
marijuana: citys ordinance is not: theory is the town, legislative body of the town
meeting: produce of those town meetings: AG is supposed to review it and write an
opinion. AG did: they conclude that the ban frustrate the purpose of the Statute. Then
goes on to say municipality is not prohibited from adopting its bylaws so long it is not
conflict with the At: all saying is it is said in Statute you cant enact the bylaws to
regulate the use, make sure youre not conflict with state statute (pure home rule).
Constitutional issue hidden here:
o Free speech/legitimate municipal concern: for local bylaw not to be against the
US Constitution, the regulation at the end of the day must allow for one
available avenue for this use to exist: the state statute is clear: you can regulate
so that it is compatible with your community but cant: trying to restrict when
the local board passes the ordinance (supposedly they have scoured the areas
and conclude there are places where business can go.
License, found location in Brookline, met all standards: Activists tried to
amend bylaws by saying that if it is within 500 feet of a daycare center
that you cant go there -> affect Levines client. They went out and
found a daycare operator and a place for this company to go.
Ordinance and bylaw are constitutional bc they leaves spaces where
these things can go and not contradict with the state statute: regulate
time, place and manner (not content) . Signs can be regulated by
location but not content.

17

o
o

Attorney General has a limited standard of review:


Standard of review: limited power of disapproval : in any ordinance or bylaw,
the opening has introduction that introduces municipal interests or the bylaw or
ordinance will be deemed invalid.
o MA: very strong home rule theory, other states are less rigid
o Zoning has always been treated as local matter: it is virtually impossible to
overturn a local decision on a zoning matter. IF the local board follows the
standard in the ordinance and by law and enunciate their conclusion/finding, a
judge will not overturn it: a De novo trial.
o Represent and somebody appeal: you (the defendant) go first: you present all
your information de novo: take the record below before the local board, bring
in experts, present all facts and all testimonies new. Judge will then take a look
at everything and say: are there reasons supporting: did they follow the
requirements and the standards of the ordinance: if they did, OK its valid. Was
their conclusion arbitrary? Judge may say to himself: it complies, they
determine it was OK. A judge in zoning matter cannot substitute his or her
judgment for the judgment of the local board: unless the judge ultimately
determine its off the chart.
Burlington: Statute passed, knew that immediately medical marijuana can go to any
place: temporary moratorium: ban marijuana facility until they pass the ordinance:
have the right to stop whats going on for a limited period of time while the city/town
undertake to solve the problem: e.g. community is growing, infrastructure is tested
severely: if its a town (town meeting) or city council will pass an ordinance say: for the
next two years, the building commissioner is not allowed to issue building permits in
these locations of our city or town while we rewrite so that we can deal with this: OK to
do this: Exclusionary zoning.
In town of Burlington: they did just that: We approve this temporary moratorium
Legislation itself: some examples of legislation to introduce new subjects + drafting +
structure of these local ordinances and bylaws: whether or not a city solicitor/councilor
should sign them, enforceability, constitutional issues.
Drafting:
o Hard to do and hard to do properly, particularly on the local level. If these local
bylaws not drafted properly -> confusion from the public but also folks
administered these ordinances get very confused.
o When you draft: think about (1) goals of these things: will go to a tree
ordinance: established to preserve the urban [], also a money-making activity,
also things that prohibited people from building things they want to build bc
they are not zoning ordinances, sanctions, fines, are the standards subjective
(how much discretion is given to the local board how far the local board can
go) or objective; what a court can determine a legitimate municipal purpose.
o All local legislation is presumed to be constitutional, If challenged: their
standard of proof is the ordinance or bylaw is unconstitutional beyond a
reasonable doubt. Local legislation: if fairly debatable , the court will deem that
it is constitutional (very heavy burden).
o Will go through a number of cases:
Issue of validity: is there a proper statement of purpose/legitimate
concern set forth in writing

18

Valid: what is there are undefined terms or vague language: how is that
clarified
Whatever the local interpretation is, unless it introduce completely
absurd results, will prevail.
Most zoning ordinance and bylaws: sign ordinance does not at all
contemplate what the city now: have to go to building commissioner to
get interpretation. If there is an ordinance or bylaw and there is
something vague or not clear and client felt being impacted and person
should not have the right to do it. You can: Chapter 48 5 and 8 MA:
Aggrieved party (e.g. building permit issue, should have been
issued and ordinance or bylaws: appeal the decision to the
building commissioner or inspection service commissioner):
they are required within a certain number of days to render a
decision (its OK, I believe that it is intended that they are
allowed to do this). Client has the right to appeal the decision to
zoning board of appeals: by super majority can overturn the
decision of the local commissions decision. If super majority is
not granted: local interpretation grants.
Given enormous deference and rarely overturned.
(3) Standards in the ordinance or by law : Objective, do they
give the board unfettered discretion: what about undefined
terms and rare that these things are overturned.
Granier v. Shrewsbury: No standard, no guide, living the local board unfettered
discretion and the court overturned.
State statute: every community must issue this: local board that issue
these to examine the locations, number of licenses in the city or towns
and if they in need for doing that.
Town did not enact bylaw with those standards, only based on policies:
no standard, instruction to handle.
Court: violates preemption: conflict with the state statute, frustrate
purposes; unfettered discretion: you cant do that.
GUse v. New Berlin:
Add few more concepts: this was about a subdivision and city council
decided they want to write: I understand what subdivision: signs of lots
but give right to look at other subdivisions of the community and if we
feel new subdivisions lot: they should be smaller.
Court: (1) because ordinance because it has a valid statement of
purpose was presumed constitutional; (2) there was standards; (3)
precedents: no such thing as precedents in zoning: often hear people at
public hearing say: the world is coming to an end: if you approve this,
you have to approve this everywhere: Not so. Local boards look at each
applications on its own, what might be reasonable with conditions here:
same projects over there may not be, may not be required to approve
it. [VERY IMPORATN].
International outdoor case: sign has no statement of purposes, billboard people
brought sued to claim: it was unconstitutional: Court: you cant do this because
signs are forms of speech, can be regulated time, place and manner and

19

ordinance did not say anything about that nor does your ordinance explain why
this is something important to the municipality: restraint on free speech.
o Candy/Kennedy case: variance that was granted, petitioner is o obligated to
exercise the permit within one year:: all this person did was getting a building
permit: variance lapses, you did not substantially exercise it: yeah he did and
Court: OK, say OK because there was no definition of what substantially
exercise means, to local, Getting a building permit was OK.
o North Andover:
Grocery store (Butcher boy): store food, cement path connected
electricity: dimensional requirement: building and structure must be 20
feet from the lot line: these were on the lot line. Residents brought
suit: shut them down because those are structures and they violate our
zoning bylaw.
Building commissioner: they are not structure, they ca be moved: we
agreed with the commissioner.
Land court: it is so clear from your bylaw that these are buildings, your
conclusions are absurd -> overturned.
Takeaway: judge will look at the language and will specifically use
normal statutory language (ordinary meaning of the words)
o Huntington: local bylaw allows nursery in certain zone, could sell trees and
shrubs that were home grown. One nursery import them form place they were
grown: Commissioner: intend of the ordinance is they should be home grown
on the premises: it did not say homegrown on the premises,
Supreme Court of NY: its OK: the idea that this court should define the
undefined as a matter of law when: will usurp power of the court: if the
local board made a determination and it did not produce an absurd
results -> will be OK.
Legislation:
o Landmark preservation: historic, conservation districts, will learn about back
door zoning (none absolutely control how you can use your property, cant
even: unless board says its appropriate: use as mechanism to stall and defeat
commercial purposes (create huge problems for people who do real estate and
own houses:

3/2/2015

Objective standards, open to interpretation. Supposed to take a look at the evidence,


whether or not the evidence satisfied the criteria set forth: did you submit the sufficient
evidence the Board look over. Judge will then conclude (1) is the decision of the local
board based on legally tenable reason; if you are aggrieved person: you presented the
evidence but it was more; regular permit: judge will decide if tenable reason; (2) if
hypothetically the permit was approved or denied: was the board arbitrarily/ capricious:
the judge cant substitute his or her judgment: this historic case: if local board has big
standards and then make a determination and judge look at the decision: legally tenable
because they comply with what they supposed: historical should not be demolished:
cant substitute my judgment in place of the local board.
Historic district:

20

Every state will have an enabling legislation, allowing communities to enact


bylaws and ordinances: give local community demolition and create historic
district.
o An area of the community with boundaries and that boundary is established by
a study committee who allegedly put together an inventories of properties
within the boundary: creating by creating those inventories: fabulous example
of architectural style: people of significance live with their families. So the
boundaries are established, has to be a study report that has some intellectual
context: have to establish by the state: if bunches of people get together and
create a historic district to create the historic characters of the area -> historic
district. If client own property in historic district: broker will not tell them
because they dont know find out later that they have that will cost a lot of
money: E.g. put steps: if visible from public way -> have to local district
commission: designed guidelines these commissions have: they can tell you we
dont like it bc of materials youre using incomparable with other houses. [Left:
used to be an office building: in a historic district). Went to local Chestnut Hill
district commission: too big too close to the street, dont like, want slates: dont
care. They have the right to impose zoning regulation in addition to zoning
ordinance and bylaws: could be 25 feet from the lot line. It could have certain
ground floor area: out of character with the street and dont like the materials.
o Compromise: small house, office building, slate roof, to the college, its a way
that community and groups can regulate/manipulate uses. Technically they are
not regulations they are [] even though they have zoning power.
Landmarks:
o These are one parcel one structure historic districts but they are yet different
from historic district. Landmarks are building that are either on the national
registry of historic places which have certain criteria and you can get tax breaks
if youre on national registry. In a historic district, you cant demolish anything.
o A structure designed on national register or eligible : can be nominated for
landmark status: if voted: can never be torn down and has to be rehabilitated
no matter the cost if needed. The property owners have little say. A piece of
property can be nominated by the legislative body or a member of it, the Mayor
of the city, director of planning and investment or commissioner of services.
There is a process with alleged standards that the local board review before
they vote to make it landmark. Supposed to decide if it is associated with the
broad social history of the city or historically significant in the context of group
or structure: These are standards. If voted to become a landmark, the person
is stuck with it and must fix it or sell it to somebody who will.
o Standards: look like zoning:
Historical value and significance of the building, structure, landscape,
relations to the features to similar features: all in the eyes of the
beholders.
Talk about the use of the property: a standard to decide whether it
should be landmark: use is compatible with preservation of the site
(this is zoning).
To put it the context of how it affects clients and how courts interpret:
MNM partner case: Newton corner, express bus you can get into
Boston: behind bus stop theres an office building: neighborhood street

21

used to go all over to the other side of the turnpike. Then separate
parts of the city: how the state destroyed neighborhood of Newton
corner: big political thing. At the end of the street theres a house
falling apart. Owner of the office building bought it because need more
parking: want to tear the house down and enlarge their parking lot.
Owner of the office building has to go to historical district commission
and get a demolition delay waiver because the house was 150 years old:
it is historic and should be preserved -> owner of the office building
could not demolish the building for a year: willing to wait. During this
one year, they went to their local aldermen: I want you to nominate this
for the landmark. They did. The fact that this house is not on the
historic register nor necessarily eligible to be on the national register
and nobody presents evidence: the local historic commission voted to a
landmark: at the time it happened: chairman of historic commission:
voted to make it a landmark.
The office company filed an appeal within 20 days for judicial review.
The decision of the board being appealed: The historic commission
holds that this house is a distinctive place, visual anchor to historic
Victorian neighborhood -> go on : historic contributed to the boundary
line between, now hold the edge of the district (there is no district), the
existing use is compatible with maintenance of the side (dont mean
anything): put language of the ordinance and put it: nowhere in the
decision do they go through all the standards or refer to the most
simple, basic, prerequisite: eligible to be in the national register: did not
exist, not there.
Findings of the court:
Lawyers representing the office made a huge mistake: did not
appeal the ordinance itself: Prof: they should have because the
standard is so vague and should have it declared that it is
unconstitutional.
Try your hardest never have to appeal this thing: Superior
Court: judges are clueless, no idea of what this is a bout. Land
Court: good with it. These lawyers went to Superior Court.
De novo trial: No. Whether or not the standard of review is
whether the decision was supported by substantial evidence or
whether the decision was arbitrary or capricious. Judge: not to
decide this nice point (Of course they do). Established in its
bylaw (judge does not know): crazy: towns have bylaws; city
have ordinance. Property met the historical set forth in the land
mark. Main force is to suggest was acting only to prevent the
demolition of the building: they were on a jihad by chance:
determined never to allow it to happen. Clearly justified their
actions based on their criteria in the ordinance:
Here you have a vague ordinance, an application for
landmarking (completely frivolous):
Question: what exactly are these people doing: the Board:
landmarking: act a quasi-judicial function: they take evidence,
they are fact finders and they make findings: they do make

22

findings of facts and so forth based on the evidence: took


evidence, debated, thought about it and wrote about the
decision. A local board whose decision is reached on an
individual property and scrutinized the property: that is quasijudicial function, not legislative -> another reason why these
local boards doing these non-zoning maters are actually
performing quasi-judicial: not legislative, supposed to look at
facts, make findings in the best interest of the community.
Zoning is done in the following ways: (1) regulate the use of
lands as stated in this non-zoning ordinance; (2) regulate the
buildings use: in this particular zone, you can or cant have an
office: height, use, area, dimension of open space, qualities of
the communities: that is zoning. There is no difference
between these local historic committee do and zoning but they
are held to different standard (although the review is the same).
Local neighborhood conservation district: if youre practicing in
local level: this is a new technique: the enabling legislature for
this state does not talk about this, there is no authorization for
community to pass bylaws or ordinance for neighborhood
conservation district: Cambridge has a bunch of them.
Brookline: want to focus : study committee (they want to create
a new preservation planning tool(neighborhood conservation
district): will provide flexibility: you have these historic district:
this is even more detailed and more specific and more
dimensionally zoning oriented than historic district (who has
power to regulate both and dimension): they can actually do
more: development of new land use mechanism (historic
preservation is not a land use mechanism): as this was being
developed, lots of folks in the community who though it was
great, have one thing in mind: this entire movement pop up
because theres a place was created after WW2: housing
community rental: owner wanted to build a few more units:
town going nuts because they dont want more kids: want to
stop under zoning: by right project: under historic stop that
existed in the town: this was by right: people decide what
theyre gonna do: heard Cambridge and decided to do this: very
few people spoke up against. One wrote an article: talked
about the proposed by law: imposed dimensional requirements:
look a lot like zoning: resemble zoning bylaws: do not afford a
safeguard of how zoning bylaws are approved: will violate
Chapter 43A and the home rule commitment to the
Constitution. The standard are broad and leave the board with
unfettered discretion.
What does the bylaws talk about: No building over 2.5 stories
in height: new concepts: form based zoning: instead of saying
a structure can only have certain height, depth: the whole idea
is: if it looks good in the community and fit -> will be OK: the
uses in it will go there so long as it takes care of itself. But this is

23

what a local historic commission look at: this is zoning.


Headline from Boston glove: Brookline OK: nobody knows what
they were doing: special town meeting to vote in a new
regulatory tool (BUT THIS IS NOT NEW, NOT A REGUALTORY
TOOL, THIS IS A REVIEW PROCESS) : Less define the historic
district to be more specific than zoning: taking into account :
folks, we have a zoning bylaws in this town: it talks about
preserving the character of the neighborhood: consider before
they make their own decision: creating many zoning districts
that are run by people who are appointed and not elected:
create little spot zoning throughout the community that are not
parts of essential concept of zoning (uniformity): consider the
community where different uses should and shall occur: this is
what zoning does for the community: it protects the
community: more difficult and hardly standardized: [Gella]:
this will invite the design police: have this pass
[27B]: every bylaws in a town has to be reviewed by the
attorney general, AG has the job of reviewing this legislative by
law: all opponents file briefs, why it should have approved as
zoning bylaws: have public hearing, compatible with the
scheme: Chapter 43C does not recognize: this bylaws is in
consistent with and frustrate the purpose Chapter 48: all
arguments given to the Attorney General:
Arguments given by the AG (clarified and highlight zoning,
preemption and introduce how political all of this stuff is):
carefully after this class: cant conclude anything but this is a
politically decision:
o Adopted as general by law and not zoning by law:
whether zoning by law is a close one. In light of limited
standard of review of bylaws and strong presumption of
validity attached to bylaws (State of purpose connect to
legitimate municipal concern): have to presume,
regardless of anything else: this is absolutely
supportable, constitutional and valid. Approve because
they are not clearly in violation of the state statute
(Chapter 48): maybe she should have written these
neighborhoods constitution district always bring in
people affected and have a bit standards: 50% buy into
this and we give up property rights: they did not consult
with the owners of Hancock Village: just did it because
they want to stop what he was trying to do.
o Police power: certain kinds of local police powers are
zoning, certain kinds are not zoning and the key
headnote phrase to decide if youre going to challenged
is the nature and the effects of the piece of legislation.
o Zoning power is merely one category of police power
concerning specifically land use: was not enacted the
same way: quote cases: line dividing matter: regulate

24

through zoning and ordinance bylaws is not clear:


whatever local people do, if there is some connection
with judicial purposes: it is valid: whether zoning or not
zoning is open to questions.
o The use of the police power to regulate the off-street
parking undercut 40A and frustrate the purposes ->try
really hard to point out this is toxic.
o Legislative but within the language there was no zoning,
no setback regulations: those were a lot clearer.
o Analyze Brookline zoning bylaw: point out the purpose
of the Brookline zoning bylaw encourage the most
appropriate use of the land, historically and
architecturally significant structure
o Zoning bylaw preempt the field: we are going to
encourage perseveration of historically and
architecturally significantly structure.
o No case of MA: constrained to approve.
o PROF: contradictory to the state and the town zoning
bylaw. Yet, it existed. Hancook village: thohvtj of
Comprehensive permit for affordable housing:
MA: virtually copied all over the countries:
every community in this state must have 10% of
its housing stock set aside for low and moderate
income people. -> if a community has not
reached its 10% . If it is below 10% -> property
owner has the right to go to the local zoning
board of appeals and seek: a comprehensive
permit: take care of every permit that is
required for the project: a zoning variance,
special permits or making local district
determination: does all local board do in one
place and one hearing: thats what were going
to do. Go the Zoning Board of Brookline, will
create a 40B: this building has 250 apartments:
25% of them must be for low and affordable
income people, the rest of them are market: he
figure out financially that this is going to work
for him. 2 years ago, they started this process.
Last week, the board of appeals close the
hearing: doing deliberation, will get this permit:
all the folks will fail.
Non-allegedly: will see how it affects life, life trespass
ordinances, noise ordinances and various ways local
communities try very hard to regulate educational and religious
use through the backdoor.
EW 400: Thursday: Next Thursday

2/5/2014

25

How to figure out if zoning ordinance and regular ordinance:


o Ultimate reason to clarify what is zoning and what is not: Zoning really
regulates land and use of land, entitled to extreme scrutiny, discussion, and
debate. All zoning statutes require public hearings. And strict discussion and
standards in normal legislation-all that really matters in preemption
152 s.w 3rd 486-Cheorke country club: country wants to do some improvements, in
order to do it have to demolish some house, people convinced local ordinance passed to
demolish structure potentially eligible for historic status. Premised idea that demolish
was not zoning, but passed moratorium until passed another zoning ordinance
o we are affecting use of land; precluding people from using their land with
moratorium as well
o city claimed it was police power building ordinance;
o what is effect: court determined that it was about regulating the use of land.
Ragon:
o Town passed bylaws as a regular piece of regulation. Problem when city/town
do this: no public advertising. Most people will feel the effect of these things
dont know these things are being passed. More often, do that for the purpose:
they are the shapers and want this to happen or have a political issue.
o Court:
Whether or not a bylaw: may in some circumstances be grounded in
the towns police power.
Its the nature and effect of the bylaw: the municipal police power
cant be viewed in a vacuum: cant be exercised in a manner frustrate
purpose of the state: very complicated. Should have been done: one
way is dicey question.
Spendelhauer case:
o All about people getting angry about people parked on the street overnight.
They convinced their council to pass a bylaw that precluded overnight parking.
People brought suit this is a zoning bylaw: you did it under majority.
o Court agreed because they took a look at the zoning bylaw: has one of its
purposes is to protect: the entire parking is handled through its zoning bylaw: an
attempt to go through back door quickly.
o Brookline zoning bylaw: one of its purposes if preserving character of the
neighborhood, one section about architecture design review. One could
conclude that this neighborhood district is a zoning by law. It was passed nearly
by majority but it has zoning power and regulate the use of land.
Zweifelhaufer: points out whether it could be zoning ordinance
Dont just look at zoning or bylaw: look at other pieces that will affect. (Document
10A)
o Tree Ordinance:
To preserve the urban forest
Promoted by environmentalists
Bad for real estate developers or church/religious institutions
Board of Alderman deem that necessary and desirable in the interest
of public health and safety (police power but also zoning purposes) to
enact an preservation of trees while allowing use of land.

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Ordinance passed as general police power but the purposes mixed


between zoning and police power
If other than private home owners and municipality need to take down
trees, the number of the size in the aggregate of any trees taken down 8
calibers or more must be replaced by the same caliber of trees: have to
prove to the tree warden: could plant for 2 inches of trees: Have to
present to the tree a detailed list of the trees taken down: what kind of
tree, where it is located why it is taken down -> provide to the tree
warden
Tree warden can say: I dont like this species, you have to plant this
species: if you cant replace or have a deficit, he will figure out in the
market: there are X number of trees you have to replace but you cant > you have to owe us 350k.
More interesting because its a housing development in Castle Wood:
absolutely a forest: actually replacing a huge number of trees but fall
short what was there in the forest in the first place but created
Affordable Housing.
Hospital had to pay a couple hundred dollars for the city: not fair, not
right, there is a party of this ordinance that you can get a waiver, Who
for appropriate reason can say you can pay a reduced fee: No.
Light Trespass Ordinance: (Document No.9)
All bout light pollution.
Not a zoning ordinance
Does not apply to any land own by the municipality nor private resident,
only to commercial property and to property owned by [e.g. BC].
BC v. Newton: This happen typically bc BC (lights, residents unhappy,
lobby Board of Aldermen to pass the ordinance which made every light
(steady and constant) above the horizontal land, cant fall outside the
boundary of the parcel of land, waiver of substantial hardship.
Every ordinance and bylaw has to be enforced and there has to be a
penalty. In this case, during the debate, the legislative body cant find
any department of the city willing to enforce this: no part of the city has
the duty enforce it. Effects: not enforce as the complaint.
Clever language: City agency that review applications for construction
(Section 20-27): shall inform applicants of such standard: Special
service department will tell your client: they cant enforce it bc its not
a zoning ordinance and the ordinance did not give them a right. Board
and commission that review.
Takeaway: this ordinance was passed. We put together a plan with
light: building department: heres the problem: we will start zoning
and Ill show you some definition. The commissioner, who has the
power to interpret definitions, decided that these were structured: this
means they will abide by setback requirements: In order to put up
these light balls -> have to be on the edge of the soccer field, light the
soccer field: pole has to exceed height.
BC is an educational institution, goal is to promote athletics and good
health: facing regulating over regulating educational use -> Brought suit:
we are a Dover institution. MA is unique. Have an amendment to

27

constitution: may locate in any zone, district, community and


community may only regulate it reasonably to a point where if the
regulation is impairing or impeding the educational mission -> its illegal.
The city: this is not a zoning ordinance. Dover prohibits land use
regulations that are overregulating. -> you lose.
As we go further: Citys gonna lose -> this is a zoning ordinance. Settle
the case. Need to get the lights: college agrees to (1) limitation of
number of games happen at night per month -> messing up
classes/practice schedule.
How city and town are hard to do stuff, please neighbor: often time, go
off radar, people dont have time, energy -> we will compromise.
o Noise Ordinance:
Philosophy: police power
Nobody wants to have trash truck pickup truck in the morning: set forth
clearly prohibited uses and times. When it is allowed, what is the
decibel level: 7 a.m. 4p.m: decibel level cant be higher than []:
Neighbor made complaint, police came to measure decibel from the
property line. E.g. cant go beyond 5 decibel: problematic.
How it works:
Scope: snow clearance, emergency, exempt any program or
activity in effect and as it exists (park).
Time Restrictions: Subject to the maximum noise levels listed
Have a use, time restrictions and decibel limitations.
Then have construction and demolition, clearly within the police
power.
Approved as to legal form and character by the city counselor (Home
Rule, Preemption, Zoning, Non-Zoning, Drafting): No outdoor group,
club or team sports event, game, practice, or drill taking place on an
athletic field shall commence prior to 7:00 a.m. Problems:
Drafting: When does it end (Prof: Quite stupid)
BC v. Newton: Athletic field: track team run with sneakers. Neighbor
annoyed by the fact: you cant hear them but theyre out there at 6
because the class starts at 8: an educational institution, have the right
to do that, instruct the judge not to blow whistle. Got this amendment
filed/to be passed.
Back door zoning: regulating use, inserting a use and there is
nothing about decibel level (prohibited after certain hours but
cant totally prohibit): absolutely zoning.
On behalf of BC: attended a number of meetings.
A neighbor moved to existing athletic field and does not like
facts that kids practice in the fall/spring
Ordinance almost got passed: Had we not checked all agenda,
would not have known this would happen.
Try to connect all the dots, think through every part of what we
are dealing.
Pushing the Envelope:
o Doing things that are OK but may be not OK.

28

o
o
o

Towns meetings: open and representative: open town meeting: every single
registered member has the right to vote. By state law, must be held one a year
in the fall. Town usually have 3 or 4 of them. Some town remains town but
elected city council to try to accomplish things.
City: dont have this problem because they meet more often.
Articles to be considered for legislation.
At this towns meeting, the following was being proposed:
Article 63: we are concerned about energy consumption, electric power
usage, we know in the town of Concord that there are condominiums:
they can preclude folks who own condominium.
Have a bylaw that said: we dont care
Like CHR case: cant interfere with private contracts on the local level in
a Home Rule state. MA is a real home rule state
If were the town counsel: will say cant do this, it is a violation of the
Home Rule, police power, regulation of the use of land (you cant say
you will have the right to do this without zoning ordinance: Zoning is
about use): Pre-emption, Zoning By law, will cite all cases (conservation
district in Brookline).
Should handle it by:
Vermont: a home rule state: the environmentalists: we want to
change our home rule legislation -> pass a right to drive statute
that change home rule notwithstanding other provisions of law
to the contrary: revoking part of their home rule statute:
There has to be a purpose and a legitimate municipal interest.
What they did: findings and purpose: totally appropriate
Legislature: drive, close line: cool but cant just at local level
contradict the state statute and do it -> have to get legislature
to set the tone -> then free to do it.
Hawaii: detailed state legislation: notwithstanding law to the contrary.
Some other examples:
Town of Brookline: first in the state to ban trans fat in any
restaurant in the town.
o Is it a zoning bylaw/does it regulate use? Determined
by Attorney General (health: safety, clearly within
power with local community, did not conflict with the
state statute, not about the use of the land and how it is
use): distinction between nature and effect: HOW it is
use
San Francisco: 2010: legislative body became the first in the
nation to ban toys in meals for children if they have certain
calories level: idea is to curtail childhood obesity through an
ordinance.
Back to town of Brookline: A statute of legislation [] (one in
Chapter 43B: local community cant, state: we set the standard,
dont mess with it).

29

Town of Brookline: want to have higher tax for SUV (use more
gas). Cant have. If counsel in Brookline, would have written an
opinion to the town meeting: dont do this.
Plastic bags: Newton passed 2 weeks ago: banned not only a
certain kind of plastic bag but also paper bags: effect:
businesses that sell food, put stuff in plastics and papers must
now require customers to use other bags to bring home.
o This city, was passed as a regular ordinance: none of
the grocery store: just begin to understand the financial
impact: there is a group of the community who are
environmentally conscious: these are people who go
out and vote. If youre in a corporate department,
represent Star Market, Whole Food: has to be aware of
whats going on in the community: if dont follow in
local level: something like this happen your client will
be unhappy.
Brookline passed containers for take-out food: Dunkin Donuts
in Brookline has to buy separate kind of stuff to dispense their
food.
Town of Concord: cant be a bottle of water sold in any store in
Concord because it is made out of bottle.
In a lot of communities, in order to get asked a very important
health issue and energy conservation, the community will
amend their zoning bylaw and ordinances: will create a section
in their bylaw an ordinance: a formula business: a type of biz
activities: standardized (Burger King):
o Local communities (Concord) amended the zoning
bylaw to say that in the following districts, there cant
be more than 4 businesses.
o IN purposes section, recite the reason as: the village
character, signage, design.
o Under zoning (legitimate purpose is to maintain
character of community: there will be no more than 4
restaurants): get at childhood obesity than regulating it
as parents.
LA: spot on: there will not be fast food restaurant in the
following locations: cite all reasons (comprehensive plan) and
targeted low-income neighborhood: no more fast food.

2/17/15
Today:
o 2 guys: one is a sitting alderman in the city; the other is a town meeting member.
Quick summary: (Pushing the envelope)
Today + Thursday: Non-Zoning bylaw and ordinances that are allegedly not
zoning.
Introduce you to zoning, purpose, structure of the ordinances, bylaw,
explain introduction
Special permitting (when it comes up, what its all about)

30

Will go through actual permit (part of it), to explain how you will be drafting
these opinions: values.
Then, federal government, Constitutional issues (basic and explain), come
with understanding these law not to be consistent with state law but also
fed law (Free speech; Silence)
Forms of local governments, how they operate, how important it is for you
to understand all of these rules, why, how to do it.
End up with a case study.
Negotiation exercise:
(1) instructions (summary of the facts for you)
(2) Document dump: big pile of papers, heres the issue, would you
get it together.
(3) Who youre going to be in this negotiation: between now
Thursday: go through, get the gist: how youre gonna do it, what it is
for, go through facts with you. Will be covering every other issues
that is in the fact pattern.
Thursday: dont leave till the last minute: have to roll with it, go
through all materials.
Pushing the envelope:
o Great article 10C (trans fat): Just read it, get the gist of everything Ive tried to teach
you:
NY< county legislature make it illegal to smoke in the car is a child is
present.
How do you enforce something like that and how do you enforce it so that it
is equally enforced, not just complaint or bias: Whether its trans fat needs
to enforce by some government body:
Who does not know the law exist, pass through
Summarize: despite the anecdote, people who study lawmaking
said there was little evidencenotion of good behavior now than in
the past.
o Zoning:
In this country, we have Euclidean zoning: comes from a SCOTUS case
(village of E): what this case establishes was the following:
No home rule, everything has to be approved by the state
legislature, no flexibility.
This case recognized the police power that ordinarily until that time
dealt with local issues like today: health and safety of the
community also involves regulation of land use. This case allows
zoning by district allow each community to divide its own areas into
district that would allow certain uses: business, residential,
institutional or whatever felt appropriate for the community (before
the comprehensive plan), charter. Within the districts, there are a
number of uses allowed, within each zone, we allow uses but also
after they have bene reviews and approved by a permit authority
who has discretion to say: as long we can mitigate impact of this use
with conditions which have to be rationally related to the use (e.g.
use allowed is a restaurant or restaurant to certain size, needs

31

permit. The permit authority cant say:e.g. need traffic light and
we can pay for it because theres no relation between restaurant
and traffic light)
Then home rule came along, changed this so that if a city/town has
comprehensive plan, they ca figure out, setting up goals how they
want their community to be. They can create zones in multiple
different ways. Zoning becomes it is today: Euclidean zoning
district: consistent with a comprehensive plan: a system of zoning
set up for each community.
A number of cases we will go over.
Important Zoning Map Information (Newton, Needham)
Same substance
In every bylaws (ordinance), just written differently: sometimes
charts instead of narratives.
Start out with a statement, the third para is most important: The
Zoning Planscity of Newton)
Under the state law, the person who holds the office is the supreme
court of interpretation of definition, zoning maps and anything else
that may come up.
Will teach you: When to get those interpretation/how those
interpretations are appealable, how to avoid appeal.
A typical zoning map, tells you the zoning district that the
community has decided it want: business district and its level of
density, limited manufacturing district, etc. Theoretically what
produces this map was a plan when people in the community get
together when they do the comprehensive plan: in that area, we
can have office by right because we looked at the street system and
we make a determination that works. The problem is dynamics of
the community change but the ordinance dont change -> create a
real problem for future development: does not do anything about it.
Will give some examples.
When you go to local city/town hall, procure maps: Client: I want
to put a restaurant right there, can I do it? If I do it, what do I have
to go through ? Can I get a building permit or permitting process?
Permit authorities are sometimes the same elected body,
sometimes they are appointed, sometimes separated. Sometimes
Planning board, city counsel, zoning board of appeals. Have to read
and figure out which board does what.
Remember to say: I have to go to the Engineering department of a
community and tell them Id like to see the backup for this zoning
map: because as time goes on, the legislative body will change the
zoning map: in this particular area (multi-family), we will change it
to business one. Oftentimes, that change does not get translated to
the zoning map. Often times, translated but incorrectly because
map that changes zone is not the same scale as the zoning map:
Have to be very careful.

32

Example: Office building: all locations, found Subsequent


Amendments (1951): a location where the state was taking land to
build 128. Is there anything else I should look at? Yes, another
amendment in 1962, cross hedged area: in the business zone. But
look at the rest of the law: it was blank (means unzoned). Saw road
loop around: zoning map was completely wrong. It has this parcel
in the business district, its not completely in the business district, it
was surrounded by the roads (state land): You need special permit
to get a building permit but you have to rezone the property
because it does not have zoning: burden is increase, not only permit
but also a change of zone. Signals a number of legal issues: (1) how
does one get into that side? Get by state road. Bought the zoning
map, did the background, started analysis that get complicated.
Zoning Ordinance itself: want to buy it, have it in our hand: there
are parts of them treat noise that are not zoning but will affect
particular bylaws and ordinances the use of land, though not a part
of discretionary permit granting process, they are parts of
regulations that your client needs to comply.
Have to write an opinion to the lender, rely on documents: in that
zoning opinion: anything applies to zoning ordinance. Before, have
to list documents you use, must have a true copy of the ordinance
attached to your opinion.
2007 Ordinance with amendment to 2009: big blinking line: in
many communities, have public ordinance or bylaw as of certain
date: In this case: 2009: the community should be recodified these
ordinance law: any time enact the change of the ordinance, district
or dimensional requirement of a zone is supposed to be
incorporated into this. In addition, once you get through the
engineering department, you say: do you have a package of new
ordinances or by laws passed since 2009. They will say: No. You
have to figure out who make these changes, what are the process.
It is easier today (website). Have to researched what has been
passed since that date: youre in the zone they messed up. But also:
here are the rules. Finally: there are 2 kinds of states: vesting (MA)
and non-vesting : you get the up to date ordinance or bylaw (great),
then you have to say to yourself: is there anything going on, is
anyone filing anything, is any committee thinking of filing the text:
important bc zoning changes begin with a public notification in the
newspaper. Once that is advertised, if you are in a non-vested
state: your client is not vested in the existing ordinance or bylaw on
the day s/he filed the application. Vested (dont get filed until
received permit): Between the time you file and before you get
permit, there is publication of notice, it may affect your client and it
will apply retroactively.
E.g..: Vesting state: once client filed, they are vested in the existing
ordinance or bylaw.

33

In a non-vesting state: client is McDonald, locate a street address:


only way it will work is the drive through: get zoning map, looks
great, up to date ordinance in particular: under the text, by right,
your client could get a building permit to have a drive through. But
when the words get out that there will be McDonalds, lot of elective
officials we dont want fast food. In non-vesting: publication of
notice to change the location of that particular zone to limit the
right to have drive thru -> your client is dead. If passed, will apply ->
your client will not have the drive through. [WILL TALK ABOUT THE
TRICKS]
Newton Ordinances:
Always starts out with definition, purposes, boundary lines, use
regulations (what you can use), density. In addition to non-zoning
ordinance and by law, getting the zoning map straightened out,
read the definition.
o Building (30-1): want to build tennis court: would know that
there has been interpretation to the contrary, has not got
around to amend this. You should go to the inspection
service commissioner, say here the plan for this house. He
may say: NO because that tennis court is really a structure,
does not have to have a roof.
o Few years later, new commissioner, reason: those arent
structure. These definitions were inaccurate, these arent
definition of what they want to do. When a new
commissioner comes on board, will get complete new
definition.
o Have to be ultra careful with every project that you do.
Example of what the community do:
o Health club: like most parts of ordinances and bylaw, the
amendment results from community: at certain point and
time, lots of health club pop up but nothing in ordinance
that regulates or the parking regulations: a move: for one,
they amended the zoning ordinance to define the health
club. Also amend the parking ordinance. But forgot to
amend the use provision in the ordinance. If you were
representing a health club, go through ordinance of by law:
where my client located: nowhere, they forgot to decide
where these things go.
o Go to inspection service committee: whats the deal here?
Oh, we decided to call it a club and wherever it says in the
zone you will have a club-> you can put the club there.
o Be wary of definitions.
Business Districts: (Section 30-11): subject to density and
dimensional controls
o Each zone will list the kind of uses that are either allowed or
allowed with special permits.
o Allowed uses: Part 1
o Allowed with condition: Part 2:

34

o
o
o

P1: You can have an office use but in the dimensional part,
there are limitations: your clients may not be able to fit the
use your clients want. Immediately, they cant.
P2: Special permits (permit granting authority: elected
body): 30-11 (d): One could have a restaurant, having over
55 seats, not open to business after certain hours.
If you client wants to put a restaurant, must go through
particular process, must comply with parking and
dimensional requirements + other criteria for the permit
issuance.
For each type of zone, theres a chart: for residential uses:
religious and non-profit uses, for our business( office)
As of right this building can be 2 stories, 24 feet of height:
lot, move on the lot area, setback.
Go back to client: thats too small. The use is allowed but
we need a taller and larger building in order to get the rent
and space we need. Take another look at the chart: by
special permit: you may have an allowed use. Your client
may go to the lender: thats not good enough, we need a
taller building: In this area, we want structure that are
taller, closer to the street. Take a look at what available for
this allowed use in other districts.
Find exactly what lenders, architects and comprehensive
plan wants:
Know the use
Dimensional requirement
Zone
Have to change the zone: say to your client: heres
the deal: we need a special permit, need to change
the zone in order to get the dimension were
looking. When you change the zone, youll get into
dicey territory bc lots of folks oppose and sue under
illegal spot zoning or illegal contract zoning.
All of these steps: have to think ahead to litigation and
prepare your case so that if its the pattern you have to
follow, wind up with an appeal, and have to present all
evidence and law in all the way so that on appeal, you win.
Parking:
If client want an office building. By right: on this
piece of land, in addition to building, have to fit all
the parking. There are ways to get exemptions: the
community kinds of get all the way. Legislative
body loves to control everything. Thats what
create incredible regulatory burden. Lots of
communities are not business friendly, always a
political fight and dynamics.
Special permits (Part 2)

35

Discretionary board will look at the use, decide if


they can impose so that the use and the building is
acceptable (will work in that particular location).
Procedure: simple: usually a review process with
the staff of city of town that takes a few months.
When they feels ready -> youll file application.
Under state law: hearing has to be assigned within
45 days, then hearing, at the hearing, you present
applicants present facts. Permit granting authority:
they are quasi-judicial authority, will decide facts.
Your role is to present facts to convince the permit
granting authority that the criteria they are looking
at are []
Here how it works: "The board of aldermen may
grant (1) (2) (3) (4) (5). : application meets all of
the following criteria: then have the 5 criteria:
These 5 standards are more objective than what
you find in most bylaws and ordinances.
Appropriate site is appropriate location for
such use: convince board that this is an
appropriate: have to hire a marketing
person.
The use will not adversely affect the
neighborhood: always difficult. When the
permit granting authority is the elected
board, they are supposed to put on a
difficult hat: its difficult for them -> get real
problem.
No nuisance or serious hazard to vehicles or
pedestrians
o A movement to make sure new
structure are rehabilitated
structures: environmentally
sensitive. Stretch code: is the
lowest form, involves water uses,
roofs, gathering water off the roof.
Thats one of the standard now in
most community.
You make your representation: when the votes
come, it must be 2/3 super majority because zoning
is significant and highly recognized (of the members
present). Then during this process, have to make
sure the decision of the permit granting authority +
finding of facts will get into the permit because
heres the review process: if theres an appeal, its
called de novo trial: what the judge does it make 2part analysis: first, will look at these standards and
permit: Heres the standard and this community

36

has the right to make these standards: home rule,


comprehensive: do they find facts that substantiate
their conclusion? The reason given for the votes
are legally tenable (if denial have to be legally
tenable): nonetheless, are the decisions arbitrary
and capricious: take a look at the project in its
entirely, zoning ordinance and bylaw: your job in
the presentation of the board: get all the stuff in
there. Judge will take a look at that: I get it, I see it
but enormous discretion to the local board: the
judge will not overturn the decision as long as the
reasons are legally tenable and some reasonable
relationship to the charter, overall zoning of the
community, comprehensive plan.
Ordinance No. Z-93: need a permit, parts of this evolving
new formally shopping center into a new urban reality: the
Zoning ordinance just did not really have a mechanism to
get all of these done. We have to in addition to special
permit change the zone because the comprehensive plan: in
this area, we want tall structure and close to the street. The
zone that the market was on did not have that: we have
the zone change + additional permit. Later, when judge
look at the zone change: your job is to make sure its in the
fact finding, is it fairly debatable: related someway to the
comprehensive plan -> OK.
Change of zone accompanied by a survey, plans (needs).
We change the zone to allow for the heights and various
uses that we wanted were allowed but they were allowed
by special permits.
Structure of how to do it:
Often times communities did not allow you to draft:
planners will write and planners are not lawyers.
So, somehow or other, through your being during
this process, create a relationship, se tit up so that
you can write or participate in writing of it. Dont
always succeed, last minute attempt to clarify what
the planner wrote
At the beginning, theres preamble: Findings:
theyre saying in their decision that they have found
substantially served and recite all various sections
of the ordinance that require a special permit.
Then we go through: the findings (these are
conclusion of facts that the board has come
through): we have drafted for them.
Number 10: No nuisance, serious hazard: in
support of this finding, the Petitioner []: have
cited, based it on these two documents which are
attached to the permits.

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Basically took each of those criteria, put it in the


permit with reasons to support it. When you get to
court (even the land court sometimes), judges are
clueless about zoning. If not this level of specificity,
they will get nervous.
Findings with regard to rezoning in business 4:
Arguments: several members only wanted
that particular zoning to allow the height,
leave it for the rest: illegal spot zoning (the
reason is if you put entire site into the zone
-> theyre behind everywhere and dont like
it). Lawyer: anytime theres a tall building,
you can say No. Dont give us a change of
zone that is appealable that could mess up
the entire business economics.
Because there could be an appeal, want to
be sure you got into writing the rationale
based on which legislative body granted
change.
Presentation of cases: zoning they do is not
illegal (Want to put there in case of appeal):
the change of zone promotes the uniformity
requirement of the zoning act. Substantial
relationship.
Conclude: Board finds rezoning: language is
in the city charter: every decision is to be
consistent/guided by the comprehensive
plan and is supposed to be stated in the
permit. If judge question -> have it all
there.
After Studies: we agree to perform these
after studies to show there were enough
parking. Set forth mitigation efforts,
confine certain things if there were
problems.
Thursday: onsittion stuff, fed gov and litigation

2/19/2015

Negotiation Exam
o Ungraded
o Hard
o Introductory global concept: all about the concept of a changing community
(constantly changing) as a result of changing demographics, economics, status
of folks living in the community (real estate prices)
o About a community from suburban to somewhat urban and peoples
expectation (expect it to stay frozen for multiple reason). Bound by
Comprehensive plan, master plan, how they are out of date and dont related to

38

these plan. Folks want more regulations. Will be about dispute resolution and
negotiation technique.
Summary of negotiating technique: READ + EXPLAIN.
Sense of property and citizenship will be turned upside down: all about
growth, rapidly changing community, folks who want to stop it: very
typical in a community. Maybe seem a lit exaggerated. Happened all
the time, lots of different subjects, very intense. When frustrated, they
tried to do things ultra vires (through backdoor, non-zoning) that
regulate the use of land and peoples right to use the property the way
they want to: Have a historic district: question is what exactly is that,
what about zoning, dont we have enough? Is it a regulation or it is
simply an ordinance in the city.
Town tension: city has educational use (e.g. BC).
Want through this process to learn to become solutions (problem
solving) although may not be ultimate best solution for your clients.
Ask you to role play
Want: lots of cases: how to be guided and not lead by the cases (hard
thing to do: not to be captured by case law): a good lawyer knows the
case law, his or her right + understanding social science and psychology
Work hard on preventive lawyering, getting to the final solution as
quickly as possible.
Sometimes refer to as dance of local government: different dancers,
citizens volunteers, lawyers in addition to being the lawyer for a
particular entity, youre also lawyer: a resident but also a lawyer ->
representing the entity + have certain lawyerlike ethical standard. Also
have advocate, politicians + real significant legal issues. There are a
number of issues involved in this (a) we covered + see if you can use to
create a strategy for client.
Also: next several week: covered everything you need to know about
legal issues. When get to negotiation itself, when were doing it, Prof
will ask questions.
Significant ethical issues involved: Everything were gonna be talking
about is political, state-local, home rule, human dynamics, the need for
objective criteria for anything go on at local level.
Understand that in the statute an case law, even though historic districts are not
zoning, if a person in this state non-vesting does not have a building permit to
do something in their house, and publication about historic district: like zoning
ordinance, if it passes and that person doesnt have the building permit yet, the
historic district rule will bind on him. MA is the only state in country, other state
gives deference to educational +religious institutions: in MA, Constitution
amendment + Chapter 48: education use can locate in any district, zone, subject
only to reasonable regulation. Big issue: what is reasonable, how is reasonable
it should be. We will get into that in great details.
Highlight facts + community dynamics:
1988: a woman on her wheel deeded 13 acres of land to Lasell (Tow
year women college), hired a new president, job was to up the
enrollment, bring the schools close to bankruptcy, make it a 4-year coed education wheel. When this woman divides, the president wanted

39

to build something was cutting edge: it is a residential place where folks


can go, buy and rent and live as they age they will get assistance
(assisted living). There is a nursing home as well in to which these folks
can transition. The president and his folks: how do we build? In fact,
apply for a special permit because the multi-story building. AS part of
what was offered to the city, the college agreed to pilot payment
(payment in lieu of taxes): pay tax on certain things but not a lot. E.g.
Newton Hospital: have a garage for visitors: that is taxable. City of
Newton doubled the valuation of garage (5 to 12 million): happened just
because the city needs money. Offered 3 million to the city to put into a
fund for low income housing: 20% will be for low income elderly folks;
college: offered to do nothing on entire campus for 75 years. President
was upset. However, he then said: lets figure out how to do it: a
design was made with a series of building. We designed the continuing
care facility, in each building, has a classroom, has a dean, a posted
curriculum, interrelation classes, each resident signed up a commitment
to participate in educational endeavor. Reason do this was because of
Dover Amendment: find a way to present as an educational use. Folks
at the city: ridiculous. Levine: no, this is educational. Want educational
under Dover Amendment: could not comply completely with the
requirement of zoning ordinance. We said to the city: we applied for
building permit but objected. We are in educational use -> dimension
requirement in the zoning ordinance is unreasonable. Go to land court > city figure out theyre gonna use: judgement: Lasell village
(classroom, intergenerational combination). Have neighborhood
meeting with the community: lets figure out how to solve your
problem: convince these meetings: one of the things will do is to
provide them with future thinking of what would happen with the
college.
Trustee just passed a 10-year plan: what necessary happens: their
visions, their wishes: dont know if money will be there, purposes is
something theyre gonna do in 5 years: thats the whole concept of
education: it cant be inhibited so severely that they cant renovate as
things go on: too much changes, too much unexpected behavior.
Architect hired was not good communicator: unbeknownst, the Lasell
neighborhood association was formed: surrounding community was
created as a result of the college being there coupled with North Begale
Park: there was a railroad built from Boston to the current area ->
create the whole area of the city. One day, Levine was checking in with
the history committee: meeting on Lasell historic district: worked with
the city, states to create a historic district that include the college but
never discuss with the college whatsoever.
Date next week: want to have a paper (not big paper): want to ask questions
about anything (after, before, email), whatever youre confused about:
represent one of these parties: figure out what are the issues here, problems,
how were going to seek and achieve a solution: think about negotiating: (a)
what issues are most important for my client: can decide whatever they want;
as a lawyer, manage the client so that. Think through: all issues + what are

40

important for clients. Have to figure out other issues the party is going to throw
on the table -> will talk more.
o Give the cheat sheet to professor, get every single issue on the table. Will
divide into 6 groups of 4, 1 group of 3: will negotiate: Goal is to figure out a
solution, a mechanism to get a solution: historic district: preservation,
memoranda agreements: may decide not agree to it or you want to support the
historic district: whatever you come up is fine: focus on municipal attorney,
what exactly should they be doing, role in this particular situation + actually use
the negotiating technique that weve gone over ahead of time.
o Will ask each group to prepare: collectively, collaboratively: what you talked
about, why you talked about it, why you solved the problem, what negotiating
technique you use. Will have a discussion about the actual work product.
Editorial from Boston Globe (Lasells Opportunities):
o Took place after defeat (loss the lawsuit)
o De Witt: president.
o The issues are joint: he instructed all of us that in fact they persist with historic
district, well get building permits before they advertise for historic district: if
we did not have the building permits and they get to the point we need state
approval to advertise -> well be out of luck if it passes.
Then we have a letter to the editor responding to the editorial: from the alderman
representing this district:
o This college is a constituent of yours (alderman), this is about a historic district,
not about noise, rape, trash, car). This aldermans right: bucolic:
o When we were doing special permit, to tie to comprehensive plan, quote:
Newton is becoming an increasingly urban community at a suburban: they were
offended that any part of the city has become urban:
o Changed the fabrics of the community:
o Adding educational element to invoke the Dover Amendment and circumvent
regulations.
o Alderman, lawyer, making a case about one of her constituents: not good.
Letter from a purpose who writes: educate himself on historic district and some reasons
he used to support it:
o Level of understanding permeated in the community, lack of education given to
the community
o Change that is unregulated: there are bylaws and ordinance to regulate
changes. Historic preservation is not a regulation, regulation is land use -> see
the confusion here.
o Chestnut Historic District: BC successfully defeated there is no historic district
over the main campus. This is the level of sophistication of the laymen. He
grew up to be al alderman in the area.
Elderly peoples property right:
o My only assets, who are you to tell me as long as I comply with the zoning
People oppose to district:
o Social engineering
o None of us are buying into this.
o Rule of thumb: nothing in the statute, nothing in the: no historic district be
established unless 80-90% of the residents agreed to it: bc it is the giving up of

41

property right: that calculation was never made, the college (center of historic
district), comprise 1/3 of the district.
Have an idea of what it is all about. Urged to pace, dig into it

o
Zoning:
o Is a negotiation, not supposed to be adversary, supposed to be flexible and
guided by objective standards.
o Form-based zoning: on the West Coast: the theory: form-based zoning is all
about street scale, not about uses in a particular position: the following uses can
go into these places: its all about the design of the building that will have long
lasting quality of life improvement rather than allowed in a particular building:
regulations on the street scale rather than regulating locations: building type,
dimensions, parking locations and features: sounds like a historic district, may
want to delve into that.
o Zoning ordinances, zoning bylaw, how theyre drafted, not drafted well,
preemption, state statutes. Another aspect lots of communities ignore: federal
government. Lots of communities tried to have immigration bylaws: targeting
owners of building that rent to documented immigrants: Preemption: you cant
do
o Constitutional issue: Free speech: adult entertainment and science.
Sexually oriented business (SOB): these are retail uses: in each
community, we have zones, in some of those zones, retail uses are
allowed -> if there is not ordinance/bylaw that restrict or regulate SOB,
it is a retail use, if it complies with the use section, dimensional and
parking it is as of right use: in 1976: all started to maculate: SCOTUS
cases: if a community tries to ban it completely (this is free speech an
expression, mechanism of free speech): that ordinance will be deemed
to be content based, subject to strict scrutiny, wont survive. Rather,
these ordinances and bylaw must be based on time, place and manner
(hours of operation, where they regulate, how they are going to be
operated. If a community want to regulate SOB, in the preamble in the
ordinance or bylaw, it must state clearly: (1) they must state a
significant governmental interest (legitimate concern), that substantial
governmental interest must be supported by studies: of that community
and/or surrounding community and the studies will produce a need to
curve secondary effects: were gonna do something about these
businesses because theyre creating crimes, we will regulate them. Last
component: OOK will do c=but cant zone them out, must be a venue
for free speech (must be some place in the community).
AS the ordinance and bylaw become: lots of challenges by these
business because this is lucrative business: communities: OK, we have to
have this use, will put in part 2 of the zoning ordinance in certain district
so that a special permit will be required.
Criteria are clear and objective: local discretion: huge local discretion.
In addition, what happens was there were lots of adult business already
existing before they pass the ordinance.
Now: if there is an as of right use or as of right building in the
community as a result of their: the building can no longer use: invalid
use, structure: community has the right over period of time to phrase:

42

overall concepts actually can be enacted. Many SOB become nonconforming uses. Then come more amendments to state law you can
phase them out for a short amortization period and require them to
apply for a special permit within 90 days they pass ordinance: all cases
lost. The ordinance was drafted in the following way:
Statement of Purpose
Clear definitions of what the ordinance is regulated
There is a section about where within the district they will
designate these uses (conditions like no SOB can be located
within 500 feet of another or 1000 feet of residential property
line: want to disburse them. Some go as far as: business cant
locate within 1k feet of the same business of another
community (is being litigated): worked hard to restrict them
allow venue for free speech but very hard.
E.g. downtown Boston: used to be zone where the SOB of
Boston could locate (the Combat Zone)
City of Minneapolis:
o Create one of these ordinances. Said on Sunday: other
retail businesses could be opened. Claiming a violation
of free speech. City: we did a study and do this to curb
secondary effects. Business owners: do you have study
to prove Sunday is more: argue this was a content
based ordinance.
o 7th circuit: closure of the store altogether means: a city
may not regulate by suppressing the speech itself.
RUS case: ordinance was passed with absolutely no study
whatsoever, no finding of substantial government standard. The
only testimony was given by an alderman and their city
attorney.
2/24/2015
Article 30 -35: Start out with purpose (recite substantial government interest):
[DOCUMENT about ADULT ENTERTAINMENT]
o Purpose
Study: academic, takes from other communities.
Passed 15 years ago, study has not been updated at all
This is going to be a content-neutral ordinance rather than contentspecific. Protected by the Constitution of the US: show you avenues
available for free speech.
o Definition:
Design ad operating criteria: will not be granted unless each of the
following standards: special permits (permit authority, city: may grant a
discretionary permit if all the following criteria comply in its fact-finding
process except different standards here. Criteria: locations, traffic are
they appropriate. Here: different criteria that shield the discussion of
granting permit: see if they can substantiate each of these criteria to
grant permit for each use.

43

You will find it in Part 2 Special permits if it meets criteria, insurance


requirement, etc.
Disbursement: cant be located within 500 feet from the nearest
religious use, school, public park; 1000 feet from any nearest adult
entertainment; adjacent community: to figure out if we allow speech in
that corner of the city, we make sure but we can also look to the other
community in addition to lets meet the community and see if they can
establish adult entertainment nearly our border: CONSTITUTIONAL,
valid
Manner of use:
Special Permit Application:
(6) comply with all dimensional and parking requirement: in
every ordinance and by law, they can apply for a special permit
to waive requirement if in their presentation they can
substantiate
Must demonstrate full compliance:
Alcoholic licenses: thousand forms: all the information: if
there a new manager, has to go to the board to be interviewed.
Expiration [INTERESTING]

2-year limit on this: 2 years, you come back, we check again to


make sure you have not created secondary effects or we have
the right to not review your special permit -> your permit will be
expired and youll go out of the business
Newton: 2 avenues of speeches: (1) street is a subject of a case study
(Thursday): become a collected groups of businesses: no availability:
compiled with every constitutional -> set up impossible to do. If
content neutral, study, clear and objective standards: all these are
appropriate.
Signs: another example of free speech
o Town of Cary from North Carolina: Felt town did not treat well, he put letter:
screed b the town of Cary. Town: illegal, you cant do that. We have a sign
ordinance: in residential zone, you may not have certain signs: the purpose of
this size ordinance regulating these is like SOB: the substantial government
interest must be put forward in the preempt of these ordinance: were
protecting public safety. So, all of these regulations have been deemed
appropriate content neutral time place manner: all about the community,
health, safety, moral, etc.
o Here we have a free speech issue. Will go through some of the language
because it is appropriate [RELEVANT TO THE NEGOTIATION].
Court: sign is ordinance because it further government interest and
leave open channels of community: same as any other constitutional
issue, a local community has to be very concerned that it complies with
these constitutional tenets: beyond dispute, town interest in
protecting public safety are substantial.
Ordinance cant substantially burden speech more than necessary
(intermediate scrutiny). Then: maybe an argument for negotiation:

44

homeowner: standards are so vague: can be vague if fails to provide a


person with ordinary intelligence
o Chestnut Hill Signage ordinance: have not set down and wrote their ordinance
and bylaw: in order to achieve/attract the kind of tenant they wanted: a sign
package was created: was not allowed: instead of trying to amend the
ordinance: have special to give us interpretation about the signs: When go
through approval process, the folks who review signs behave the way all
communities behave: getting nervous: this was new, invented -> should we
allow it: have elected officials + appointed people who support this new vision
but hesitant to allow its implementation:
o WGBH buildings sign: very nervous: because of public safety and driver:
convince would not interfere with public safety. Permit granting authority +
WGBH: why would a public station or an owner even consider doing something
like that: talk about content of sign is unconstitutional but go beyond what
zoning should do (not the boards business).
Agree to sit down with you every month and show you the image were
going to put there each month. If huge objection to the content -> well
comply: this is content based, illegal, unconstitutional: but they did it
and they still do it. Will bring hundreds of thousands of dollars to the
city v. a group of nervous people. E.g. Chestnut Hill: powerful people.
In order to get Chestnut Hill business going, agree to do the following:
Pedestrian signs: they change. 4 businesses have been in
operation in the street.
Agree: pedestrian should not contain language in violation.
Agreed because the owner OK.
(14) to consult on the message content: authority to request
modifications to the content of the Pedestrian Director and Wall
Panel/Blade Panel: Says absolutely nothing. At the end of the
day, owner can say NO: request.
Overview of forms of municipal government: Town Meeting Handbook
o OPEN TOWN MEETING:
MA: have 351 municipal corporation in the state: various sizes, various
forms; 280 towns; 262 of those which are open town meeting
legislature.
There are towns that are really cities but they call themselves towns:
have town meeting, town manager, dont have town meeting anymore.
Reason is town is a form of government (purest form of democracy):
cumbersome, dont work well. Lots of town have started to get rid of
town meeting.
Differences between open town meeting and registered meeting
Every registered member of the town: a quarter has to be
established for the town meeting. In an open town meeting,
those are the members, everybody can speak and everybody
can vote. The fact: its difficult because of time constraint,
communities are creating agenda so that important items are
first,: only 2% actually participate.

45

At municipal time, they have the right to vote for the Board of
Alderman: so what you have going on in these communities is very few
people actually government and understand what it is going on.
Under state law, when there is a special permit or change of zoning law,
the legislative body (2/3) of the community. If open town meeting: 2/3
of 39k: Arguments: no, just majority of people there. BUT: Levine: 2/3:
does not distinguish town and city:
Representative town meeting: every registered voter can speak but only
legislative members can vote. What Community do is like : in each
geographic area: you will have 3 elected representatives at the town
meeting: are the most intelligent people.
Every community has the Handbook.
Town of Brookline/MA: Framingham: in the town meeting, have to use
a huge political campaigns: coffee, dinner, whole year worth of people
to get to the meeting.
Dont have a charter: every piece of legislation goes to the
legislature.
Traditional town meeting:

2/26/2015

Finish with town and city, forum of government, Board of Selectmen, manager . Will
switch to city: same function, power obligation but you have a different structure. Have
an executive (mayor), Board of Selectmen (agenda, docket), will emphasize and finish an
example of how important it is to understand the rule. How frequently if you know the
rule and understand he process, can achieve for your client sometimes through
technicalities youre unable to achieve. You achieve through this technicality and
actually held those folks who will vote against what your client want and give them the
out. Real drama.
Next week: freedom of religion (big issue throughout the country), place that in an open
meeting (how it operates, how the folks who make decision have no clue what theyre
talking about).
Zoning stuff:
o Article appeared in New Boston magazine.
o Example of local government at its very worse (about local housing). City:
liberal, always want affordable housing but maybe not next door to me or down
the street.
o Requirement 10% of its units be affordable housing for low income:
o Highlights:
Article says that the building
Focus: stop affordable housing in Waban community.
o Bring all attention: all the time. By the end of the class: bring a case study, the
neighborhood behave exactly was in the article
Cities and towns:
o Document 16: Town meeting handbook: go through paras:
Approve operating and capital
Legislative body of the town meeting: 2/3 vote for zoning (except state
law related to local: 3 kinds of legislation under Home Rule: budget,

46

enabling legislation (where state will say, heres the pattern and
legislation, if you doubt it, you can do it: community reservation act). If
city or town accepts, in addition to regular tax bill: 1-3% of value of the
home, will use for affordable housing, historic, open space. Third one is
a special legislation: community dealing with financial matters.
Participants in meeting:
Have a moderator: usually elected in the regular town election
for 3 years. The moderator in the city is usually the president of
the elective body. Town moderator has enormous power: put
the warrant (the matter that the town is going to discuss).
Decide the order of the business (Can be become political, if
there is something controversial, can put it at the end of the
meeting), decide the length of time a person can speak: not a
prior restraints on free speech: the person in charge has the
right to limit the amount of time the person can speak, and the
moderator in any town meeting always have a town counsel or
work out with town counsel any legal issue. When the time
comes, will ask a question and the town counsel will react.
We have the town meeting, the structure in the last class:
decline of these forms of meetings: lots of towns are trying all
sort of things to get people there. Other towns are moving into
city (not really become into the city), substitute with a town
counsel, still have a town structure. Have to understand how a
particular town if you do stuff in MA, Maine, etc.
The article in number 14 are very informative about whats
going on. Framingham: did not even have a representative
town meeting and a town manager 290 years after it was
formed.
Used because its a model: not every town organized exactly
like this. Will run through highlight: Westwood Home Rule
Charter Act: create their form of government, approve by the
legislature. At the beginning: the intent and purpose of the act
is to secure through adoption of this act all power possible to
the constitution: the idea is we want to push the envelope to
whatever we can do:
legislative power: board of selectmen are executives, make
proposal to legislative body, will point to the town council and
town manager (important because the town manager is mostly
appointed by the board of selectmen: has numerous functions,
run the town). The qualification of the person is like the person
who has business experience, MBA or business experience in
the public sector: this is the type of person who becomes town
manager. HE or she appoint the management head, appoint
the police chief, fire chief, set salary of everybody in the town,
collective bargaining
Agenda of the town meeting.

47

Of note: when you do zoning matter: zoning begins with


publication in the newspaper: this is the notification: all the
stuff we were talking about: this is an important document and
absorb (Annual Town Meeting).
o Article 7: Submitted by Board of Selectmen: double
speak for the following: at the end of the fiscal year:
have a little circle: that amount of money reported to
the state, state certify: become free cash: like a
supplemental budget, community can dig in for specific
reason. Town: Board of Selectmen; City: Executives can
do that.
o Article 11: Neighborhood Conservation District
Commission:
To see if the town will amend
Will be greater control with neighborhood
conservation district: to protect unique
character of the neighborhood in ways that are
not typically protected by the Zoning Bylaws or
other By-laws of the town of Brookline.
Examples: (ii) Any addition or alteration to the
existing exterior:: this is zoning, not historic
preservation.
Guideline to reviewable project: (f): consider
traffic and parking impacts (in every bylaw,
theres a section on parking: its clearly zoning,
its not even close to historic: this prompt a lot
of historic preservation stuff: all about disputes,
other things and somehow get folded into
historic preservation.
o Town meeting + city council: same rule, require 2/3
majority of the membership of the board. The
legislative board of the zoning is the zoning map district
and the text. Anytime want to change the map, create
district, change the text of ordinance or bylaw: 2/3 vote
of the membership of the legislative body. Much easier
to handle with the members of the town legislative
body. The other stuff is permit: variance, special
permits: handled not by legislative body. Sometimes
the legislative body is also the discretionary permit
granting authority: problem: they are not politicians
but they forget. People are elected and appointed: a lot
of time they want to get re-appointed: discretionary
stuff is not legislative body, the other stuff is legislative
body.
o City: legislative body has no more than 7-50 members
so they can get stuff done (the norm): these people
being elected at large but you have problem: have 24
elected people, city is divided into each ward, 2 are

48

elected at large, one is elected only by people in that


ward. Important to understand how that work because
if theres a problem going on -> have to deal with them
+ understand.
Rule: Whatever you do, have to read the rules +
understand how they run their meetings, which
committee of this legislative body will be
handling what it is presented whos on the
committee, how to change your presentation: it
will resonate with them (politics, intellectual
property, etc.).

14 (A):
o NJ: local unit realignments: this commission has not
done anything that it was supposed to do. Want to
emphasize that 351 towns in MA: is not unique to MA.
So the legislature in NJ found the following: currently
have 566 municipalities, each with its own layer and
bureaucracy -> need to be recognized. Set up this
bipartisan commission: very similar to fold who wont
give up the town meeting as a form of government: NJ
is even worse and they cant seem to get rid of it either.
o On the website: theres an article about the town of Bill
Rickard: very interesting:
o Board Meetings:
Dont meet in the summer. Meet the third
Monday of every month. If you want to find
something for your client to appear on their
agenda for a particular meeting, must file with
the city clerk for a certain date. Client is
properly getting financing, theres a time frame
so it will appear: have to know the rule, how
does this work.
Rule will also tell you the: committee,
reconsideration (town meeting use Rule and
order: characteristics peculiar to a legislative
body: reconsideration: this is one right out of
Roberts rules of order: if someone wants to
reconsider it, if they file this little thing, its
important because if you need a majority of
super majority, some of the people arent there
or perhaps you listen to the debate:
strategically work with someone in the board:
If it appears that were short of your vote: I
want you to change your vote from yes to no ->
youll be on a prevailing side, youll consider
couples of weeks: we have time to do: critically
important because the folks who are on these

49

boards are people (Family, job), they sometimes


get sick: very human kind of practice.
Then in the rule: record of proceeding: C: a
quick way of doing it: always a booklet for you:
if you read the rules -> find out if they have one
as well.
Special recording requirements: exactly same
requirement in any state: must take the vote
and set forth the reason for the vote: Board
make findings, found that the site was
appropriate for this particular use bc no hazard
to the environment: vote and reason to support
the vote: either negative or positive.
Orders, Ordinances:
The town attorney/city attorney is
required under these rules: before the
ordinance get to the board, they are
supposed to read it over and decide is it
in proper legal form: does not mean its
legal, just mean its in legal form or
character. When legislative body get it,
just assume its legal.
Then there are always committee
reports/helpful for us if theres a
dispute or some litigation to use in
evidence: under public record law:
required for transparency: talk about
dockets: in the city, the agenda are
called docket, in other cities: called
agenda.

Document 17: Docket:


Heres the items that each community will be discussing, they
make it to the agenda.
Some examples:
o Public hearing: referred to public safety: Boston Coach:
each university is licensed if they have transportation
system. Bc of the relationship -> was forced into
creating the bus license that we dont need. Go
through this every single year: give the neighbor the
chance to bring up problems they have:
o Then: Report Docket: stuff will talk over next 2 weeks:
how each community behave: how each meeting is
going to discussed, vote on
207-14: request to transfer in the Snow and Ice Control
Accounts: suspect this year, thats gonna reach 3 million $ from
free cash: this all happens toward the end of the year. Budget
and accounts: money is not used for everything Toward the end
of the year, if something is left over, will transfer.

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Board Action: a proposed ordinance enabled the city to


respond: inadequately care for: the neighborhood didnt work
together, couple of aldermen decide to propose something:
that was debated in the community and ultimately it was not
voted on.
The committee approved it. Biggest concern was enforcing:
dealing with people with mental health issues.
Mass town bans texting
Situation where an alderman on the board decided do this to
attack him politically but did not quite get what they were
doing;
They unconsciously do something that was in strict compliance
wiht the law: open meetings are to allowed the public to
observe public deliberation: produced by legislative body or
received by a legislative body or not: texting: those are public
record, turn out to be embarrassing or texting another member:
violation of the open meeting law :deliberation is private but no
longer private: this conform with open meeting law.
Using rule to achieve for your client through technicalities that will not be achieved.
Also mechanisms for those who want to vote for something but cant. A mechanism
through litigation to get this resolved. The ambiance of that just transferred to the
drama Im going to talk about
o Needham street is a state road owned by state, original route 128 and it was the
first industrial park in the US. All these buildings are factories. NE Concrete
Pipe Company: tax was going up in the community because the commercial tax
pay was going down : was being retuned into collective retail establishment:
decide they have to leave, put the property up for bid and it became under
purchase and sale agreement by Stop and Shop. SS figured out very quickly that
in order to make this work. Roadways have to be widened, reconstructed so
that the additional traffic could be accommodated, capacity of the road could
be increased.
o Create a public private partnership: SS agreed to pay for the design construction
drawing to increase the roadway, the capacity, sidewalk and the state agree to
do the construction in addition, I knew that the comprehensive plan of the city
(very old of that time) kind of hint to: this is an area of potential development,
represent tax for the community: great opportunity: no grocery store now have
nearby grocery store; prove the city with an economic opportunity: we created
a computer model for the city so that we know capacity of the road way. If an
application for a special permit came in and want to do something, the permit
granting authority can ask: what is the capacity of the road here: do we want to
suck out X % of capacity while we want develop: really neat package that we put
together for the opportunity of the city.
o Special permit standard: A very controversial situation: rather the creation of
an economic development opportunity in the most commercially lucrative area
of the city. Affect the whole area: Levine worked with a commercial
videographer. Created a story that hits all the standards in the ordinance:
appropriate location, no nuisance or hazard, roadways are OK but tried to make
it as consumable as possible for the neighborhood.

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Surrounded by residential property. So congested: folks want to get


one end to another where they want to go: one may logically think.
With this new plan, it would take all traffic off their streets.
Each criteria: improving the neighborhood -> get it all there.
Will tell what happened

3/12/2015

Talk a little bit about articles (community -: No room for tolerance), Dover Amendment,
watch and participate in an open meeting. Will highlight some of the materials: great
exercise.
No Room for tolerance: another example of community not doing what they should do
(backdooring, trying to stop something: was a mosque, the community did not want it,
wants the mosque start its application, the towns fathers tried to pass a new zoning
ordinance barring the mosque from happening. Comments: rather than stand up to the
opposition: they did this. One of the concept during the video is the concept of
leadership and what is it and having the courage to do the right thing, to understand the
law and say to your constituents: you live in the country; we have to balance the rights
with the constitution, we are the country of diversity and inclusion.
Article 2: Bridgewater of NJ: pay millions for liability did not come out of taxpayers
pocket although tax went up.
Article: Where religions meets real estate: have an idea about community: com change,
demographics change, Orthodox Jews became majority -> voting block: forced to
examine its exemption: facially getting a long, theres an unspoken nastiness that is
going on: will find everywhere you live, everyplace you may work. Teenex: liberal
place: interesting bc new and equal orthodox Jews move in: there is a law in every
state usually every 3 years every home in every community has to be revalued: come to
your house and reassess it; perhaps value goes up or down: tax rate depends on value
of your house: valuation will affect mostly the areas where the orthodox Jews do not
live: want to create opportunity for developments: IDEA OF COMMUNITY
Dover Amendment:
o Only MA
o Imminate from a case: Attorney General v. Dover: upscale community in MA, all
residential, very expensive. The facts simply in the 40s: town meeting passed a
bylaw that precluded churches, religious organizations, and educational uses in
most of their zoning district. 1950s: we passed a statute was to preclude a local
community from deciding what kind of education they will let in the community
and religious organizations keep the seed temple. Historically, people think of
religious organizations as a [] boat in acres of land, this is no longer: small,
people get comfortable with. 1950s: MA constitution was amendment chapter
48, Section 3: Dover Amendment: says no by law or ordinance can prohibit or
limit the use of the land for any church or prohibit the use of land for any
educational purpose: not valid: apply prospectively and retroactively: AG: look
at the bylaws of Dover and retroactively invalidated it. This case came about,
we have the Dover Amendment.
o Primarily about Dover Amendment, all about this statute (fed statute) being
bludgeoned on the community, a necessary bludgeoned, forces tolerance
curbed local gov from using arbitrary means to preclude the use of [] forces.

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o
o

Orthodox Jews who practiced in this sect are very aggressive, sometimes very
difficult to deal with. In the video, some Jews people who dont like this form of
practice: which should not play a role in anything. What these groups do is they
form a group to pray, do it in a home near their house (group of people in the
neighborhood get to know each other, Jewish, form this place, always in a
house where they can walk: very rigid, will not drive from sundown Saturday
and Sunday evening). Cant say to a religious belief: we dont want you in this
neighborhood: this is a substantial burden on free exercise of religion. Kabab
bought a house, immediately next door to an elementary school, could not build
parking, pay the area, want to move in but knew under [RLUIPA?]: religious
have to get a special permit to waive a parking requirement: anticipate
membership of 75 people. Under the zoning ordinance in this city, for every 3
seats, they need a parking space, could accommodate 2 parking space, apply 2
waivers for 45 spaces, could not get around for doing that for couple of years,
made an arrangement, for 2 years plus: hold ceremony without any problem.
Then somebody called, they called to the quasi-judicial body to get a permit
waiver.
Section of the ordinance (m) Exemption: quasi-judicial body was looking to the
facts: start out: you can have exception to the requirement: the zoning
ordinance in this city was deemed unconstitutional by a judge in the land court
over a student: Stockhouse: replica was what we tried to get: went to the land
court: one of the reason they want: prevail: the way the ordinance works is for
place of assembly (of which there are many, e.g. classroom), we have X
number of seats (cafeteria, football field), you divide 3 inches: for every 5 beds
in the room, need a parking space: BC needs 3800 parking spaces: we did not
need. Every time goes and do something, need to apply for a waiver. Court: you
cant do this because youre double counting: that ordinance: which was
supposed to be changed was not changed.
Board of aldermen: special permit section: procedure to obtain the
permit, not the criteria: how you process the permit: literal compliance
is impracticable due to the nature of the use, location, size, width
depth, shape, or grade of the lot: standards supposed to be valuating.
(c) Procedures:
(d) For special permits, need criteria do not apply in the case were going to
watch.
Site is an appropriate, etc.
What they were debating: a draft of permit (Dec 15, 2003) that was presented
by the committee, has finding of facts, conditions to mitigate the impacts.
Under RLUIPA, Dover Amendment: the use if allowed, thats not an issue and
local community has the right under both to mitigate the impact reasonably. If
mitigate unreasonably or preclude: RLUIPA and Dover allow community to
relax both restriction, cant: to impede religions.
Framers and drafters : we have found to approve this some of the stuff
that the case has told us. Its using the cases to justify the decision.
Have various mitigating conditions: e/g except on the days where the
congregations are prohibited from driving: right to park on public
street, no difference than after church on Sunday, want to have a group
over the house to study or something: those people can come and park

53

on the street, or family come over: Except on the days (during the
week),: the religious organization agreed that it would not schedule
activities of any kind while the school is in session to satisfy the fear that
cars are going to hit kids.
Request permission from Newton Public School
No more than 75 people will be there, no group activities will be held
between these hours.
No community center type activities: churches house homeless people,
kitchen, all of this through case law has been determined a religious
activities.
Board realized there will be people voting against -> have to state their
reasons: prepare a denial permit with reasons why its going to be
denied: folks have opportunity to choose one or another. Reasons are
set forth:
Denied the permit because: (12-15)
o Dedham street is not sufficient to support: allow
parking on both sides of the street (traffic coming
mechanism: complain cars go too fast, forced people to
slow down if cars are parked on both sides of the
street).
o There is a significant demand for on-street parking.
Quasi-judicial body: judges, fact finders. All meetings of public
bodies are public meetings open to the public (post 48 hours in
advance, opportunity for the public to come and observe, watch
the deliberation). This quasi-judicial body, like many, not all are
elected but these people happen to be elected through
legislative body: they are supposed to drop political stuff, now
the body that is legal, judicial, not [] of their neighborhood and
of the city as a whole and the overarching law that guides them.
[1] This is not about the use of the site: the religious use of the
site is by right, this is about parking: can parking be reasonably
[] with exception or are we going to overregulate? [2] Dover
Amendment was devised to preclude local communities from
keeping religious out: harbor: permits, in good faith , can bring a
lawsuit claiming overregulation. Want to observe during the
video how elected official behave, which ones are really seeking
the greater goods, which one understand the law and what they
are doing, which one mitigate the facts to come to conclusion
they want which one ignore the legal advice, which one
disagree with the legal advice. When we get to studying
municipalities: they chose not to listen to you: in private
practice: Im not gonna represent you. Municipal: youre stuck
with them. Try to figure out who is the leader. Also, remember
most of communities now when these meetings are held have
local access to cable T: talking to their constituents through TV,
behave in a very different way. Will interrupt about the role of
the municipal attorney: all about discussing pending of
threaten litigation, land use and neighborhood. Very shades of

54

inclusiveness, non-inclusiveness, very little recognition: part of


fabrics of the community, if no reason required by state or fed
law: not theoretical thing. Will get a glimpse into tension exist
between cities and towns but also religious institutions. Will
hear about bad actors: we dont trust them: the Concept
want to take away: permits, variances, run with the land and is
enforceable (if this gets approved, and this [cinegar] does not
follow one of the conditions, can issue a : take them to district
court, can be fined for violating the permits, does not matter if
they sell the house to another [kebab], nice people or bad
people: does not matter but its what this is all about: people
are people, dont like or trust, or like and illustrate the fact
finding. Watch the demeanor of these people: these folks are
not leaders.
Town moderator: elected, run the meeting, keep time on how they
speak.
First woman: Elected only from her pecuniary neighborhood [Very
appropriate one].
Second woman: chairman of the school community, also Jewish, did
not read a thing: should have known about restriction during the week.
She dealt with street parking: when youre dealing with the board, you
have to educate people. Problem: sometimes they wont talk to you
because When they are in quasi-judicial function: some adopt no exparte communication: bad thing to talk privately to somebody. But
Those adopt no ex-parte communication will talk to their constituents
(at home). So, sometimes they talk to you and sometimes they wont
talk to.
Talk about the use: cant do anything about it, but can mitigate
their impacts to their satisfaction. They did not get what this is
about.
3rd speaker (Leonard Gentile relating to Noise Ordinance)
A politician: believes that a neighborhood is never to change,
people have expectation, he did not have courage to say to
them: you have to embrace change because thats what
happens in the world. We have constitution of the US, through
statute: has to be tolerant, and your expectation has to be
modified. Life is not static, and you will run into this all the
time: Historic district popped up: freeze everting are not
allegedly land use regulation.
Next: Law student:
Forgot about BC case
Demonstrate no understanding of fed law and restrictions
impede/affect religious uses.
He talked about Criteria for use, did not talk about criteria for
waiver for a permit.
Chairman (law student)

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Parking Waiver: exceptions to the parking requirement:


standard for the waiver: if its determined: nature of the use,
public interest: meet those standards
Look at the use, what will happen in the future: whether the use
is going to be a good use on the site: got mixed up.
Confusion even with the folks who get it.
Next speaker (who represent the area):
Next fellow (Yates): someone who was a neighborhood activist
Dover Amendment: religious: free exercise of religion.
He just disclosed what he said in the executive session: [Prof
Conclusion: does not exist in governmental setting: client
attorney privilege: when theres a 3rd party presence, the A-C
privilege has been waived. The executive session under the
open meeting law: everything said in the discussion remained
confidential until litigation is over: He stated in an open
meeting has made a request: have a minutes of executive
sessions, I have the right to request it. This is a mistake they
made all the time].
Next:
Substantial burden under RLUIPA
Rest:
Try to be part of the fabrics of the community.
What happened was the permit granting authority denied
Editorial: Sinned-against synagogue:
Ultimately, there was a lawsuit, some of the members realize
theyre going to lose: School suddenly allowed them to park ->
satisfy the neighbor: will not park on the street.
A quarter of a mile: historic home, bought: Historical
commission imposed demolition delay: finally the building
came down, they built a religious building out of the sale of the
neighborhood: could not comply: a large religious institution.

3/17/15

Today: Finish up with RLUIPA [Inject Dover Amendment, think about all of these issues).
Church in Lexis MA, want to build a new parish hall (purpose: related to core religious
belief), necessary to have school and other activities on Sunday going at the same time.
The zoning bylaw requires a 200 foot setback on all site. -> On their parcel, the new
parish hall would not fit. Went to [] (ultimate interpreter): you need to waive
dimensional requirement because (1) we are in MA, we have Dover Amendment, which
says you can regulate our use (allow religion). However, it cant be so restricted that it
infringe on our ability to practice and use. 1st Amendment, RLUIPA, Dover: I will do
that, I will waive and you can build. Neighbor: noise, traffic, kill our children, dont want
this. The decision was made based on RLUIPA, not Dover (use higher standard).
Neighbor appeal the decision to the Zoning Board of Appeal: affirms the decision of the
local commissioner services: wrote that the local zoning bylaws imposes burden:
eliminate its ability to develop for its religious belief. The appeal then went on to the US
District Court. The lawyer represent the neighbor : need to be made by community and

56

neighborhood than having Congress tell us the local rule does not apply. IN the appeal,
the neighbor says: the parish hall will enjoin the enjoyment of property rights by [noise,
traffic].
Good Plaintiff lawyer:
o What could go there as of right: could find several uses that would produce
traffic, noise, but he did not do that.
o Good for negotiation:
Cross-motion for summary judgment: The facts are such and we will
prevail on merits -> no reason to go further -> we will win.
What the court said was:
First, took a look at the local zoning bylaw: the compelling
government interest [to protect safety and general welfare]
Plaintiff tried to get RLUIPA out of the picture: made claim
about the constitutionality of the Statute: never go to the SC
but numerous federal district courts declaring it to be
constitutional (kind of flawed),
RLUIPA talk: cannot function without physical space adequate,
highly individualized: Burden is on religious institution to
appeal: lots of these institutions do not have financial basis to
do this.
Substitute concept of educational use: we have Dover
Amendment; RLUIPA does not apply. In MA: we have extra
cloud of Dover Amendment. In other: dont have but enormous
deference is given to them
What happened was the neighbor lost and the church built its parish.
o Next: Non-profit. Parish used to house homeless people: in the community
that 98% white; 2 African American homeless men. Problem: to a lot of people:
is that a church? Church now serve meals, outreach to the community, become
institutions, a different kind of religious practice.
o Doctrine Church: Over to education: schools are no longer places you go down,
sit and go home. More programs: law school students defend people who are
evicted. Have an inter-educational program: so everything is changing. What
happened here is somebody in the community notice that there were 2 AA men,
reported the situation to the Borough Attorney. The City Solicitor sided the
Pastor for having a group home which are not allowed under : tried to explain
this is part of my religious mission. City Solicitor: what are you talking about?
American Civil Liberty Union step in: at the core, this is difficult for borough
official to wrap their minds around the concept that church : church help the
most unfortunate. City Solicitor: small town attorney, abuse of fed power to
override our zoning law (the level of solicitation). In addition, RLUIPA and Dover
are not things that preclude local zoning at all. They are addition to the zoning
of the local community: additional criteria that has to be invited because
Congress figure out that the local zoning bylaw abuse rights and privileges
guaranteed by the Constitution (an addition to the local zoning bylaw). Civ
Liberty Union took the case to court.
P: D violated their liberty rights by preventing them from housing,
shelter and ministering to homeless individuals.
o Exercise: Think about Constitutional Law:

57

First Amendment of the US: Congress (city of Boston, Congress) shall


make speech (religion = speech)
[] Amendment: citizens of the US.
Church: residential community, virtually white community. This church
is an AA community church. Part of their core beliefs include lots of
singing and loud singing, using PA system. Neighbors get upset, spoke
to the church, understood. We wont use PA system on Friday but will
use on Saturday. Went to the city to intervene. The church: were
going to celebrate Jesus: first Amendment right. Not letting us do it is a
violation of RLUIPA.
Noise, time place and manner: Certain decibel level (cannot be
higher than certain level).
Do not have the ordinance yet.
Assume passed the ordinance (have presumption of
constitutionality): the Church: I dont care, this is my religious
belief, you cant stop me even if Im louder.
o Could say: we understand your religious belief +
RLUIPA. However, RLUPA applies to land use
regulation. My noise ordinance is not a land use
regulation. Church: this is just back door zoning.
o Being a local city/town attorney is not as simple as you
think.
o RLUIPA: substantial financial damages that can be
attached to the behavior of the neighbor community.
State of Arizona v. Painter:
Good for the other side: also apply to education fed
constitution.
Complaint: Noise ordinance
o Creating of unreasonably loud and disturbing noises
prohibited. [Attack: constitutionally vague. Remember
MnM partners case: Ps lawyer attack the decision as
not complying the standards of the ordinance: would
attack the ordinance itself because it has standards and
criteria that are subjectively vague. There was no
definition of what that means].
o List a bunch of things that are detrimental: yelling,
shouting, pets, blowing whistles, use of vehicles, etc.
Noises near school, churches, Completely outlie.
o Sec 23-15: Exemptions
o Went to court: Dont have Dover, just have RLUIPA +
fed constitution. Lawyers dont push much on RLUIPA
because: noise ordinance regulate the use of the land:
much more about first amendment + balancing
property right with legitimate governmental/municipal
concerns: how do you negotiate with appropriate
conclusions that are not directed by the law.
o Results: Ways to measure sound: measure the sounds
that are coming up and ambient level: that will be the

58

level above which you cant be. In this case, it did not
exist.
o Court: unreasonably loud, disturbing.
o P: go to RLUIPA. Attack ordinance: does not define,
disturbing, unnecessary, list the exemptions.
o Order: part of the churchs exercise of its religion.
Purpose is to prove they will prevail on merits. Court
look clearly at the language, it must provide people of
normal intelligence what the standards are and how
they are to comply. If there are too much guessing,
these ordinances and bylaws will not pass strict
scrutiny.
o Courts conclusion: fails strict scrutiny, does not contain
an objective standards.
o Irreparable harm: A compelling government standards,
[Balancing test: legitimate gov concern v. property
rights: they feel some people are taking their property
rights away: some sort of historic value to their
property
Maine RLUIPA situation: Stop praying (place of worship): had a hearing
before the Board of Appeals in Maine
Loving your neighbor as you love yourself. We can set rules,
write law and draw zoning: when those guidelines are broken,
we can see regrets: take compassion, compromise: What a
community is, how it operates, how it should operate.
Religious right, 1st 14th Amendment, RLUIPA.
EDUCATIONAL ISSUES:
o Start out with Enabling Legislation (2nd or 3rd class): created by Home Rule. If a
community accept this legislation and has a right to create, every community in
this state and in other state: has created historical commission.
o Historical condition: established under General Laws Chapter 40, Section 8D:
refer to is Home Rule: a lot of these stuff is a little bit more than the Enabling
Legislation said we can do but were comfortable that it is not preempted by the
state legislation: what we are writing is not precluded by it and not repugnant to
the state legislation.
o Affecting the historical assets of the city
o To conduct a survey
o When a historic district is created, it is created through a study committee (a
historical committee: in our EXAMPLE: not the historical committee: Fine).
o Purpose: to promote the preservation and protection of the distinctive
characteristics of buildings
o What does a historic district look for?
Anything that is visible from the public way is subject to jurisdiction of a
historic commission. If happen to have big walls in front of your house
or big trees: they do not exist the house is visible from the public.
Exterior architectural features: color and texture of exterior building
materials. Anything: pretty much what you want to do to your house:

59

have to go to their commission to get a certification of appropriateness


(what we call).
(2) Before creating a historic district: has to (2):
Legal matter: if it is passed, must register in the appropriate registry
deed and the map must be also registered in the appropirat registry
deed.
Procedures:
Apply, has to be heard within 40 days.
Every single local: if there is a disapproval: put the reason: Zoning
decision, vote and the reason for supporting that vote. The reason has
to substantiate decision based on the criteria based on the bylaw or the
ordinance: every decision of the local historic district has got to refer to
the criteria in the bylaw. Similar to special permit: we find first criteria
because [] Back to MnM partner: just replicate the standards of the
bylaw: enormously subjective, coupled with the ability of the board:
how does one make their case before a court: a real difficult thing.
If youre applied and denied, within 20 days: file a request with the
commission: zoning in MA: the decision is made: must file within 20
days the decision is filed with the city or town clerk. Criteria for
determination:
The local historic commission shall consider the historical value
and significance of the site, building or structure. The general
design, textual, relation to the buildings and structures in the
vicinity: Without design guideline to address, will be very
subjective to make determination by the members of historic
commission [ARGUMENT: better write these out ahead of time
-> clear if we end up in a historic district).
With new constructions: (2) impose dimensional and set-back
requirements: have a decision that has to be made: historic
commission has zoning power under the guide of historic
preservation: this is appropriate concern: now the historic
commission is saying: historic commission trump local zoning: is
it another part of the zoning ordinance?
Ordinary maintenance: have to go to the same commission.
There are exclusions: terraces, sidewalks: a terrace walk or
sidewalk is a structure that initially come under.
Freestanding lighting fixtures: put at the end of your walk: get
permission to put the fixture that they like there, cant control
the pole.
(f) Exclude paint colors: very typical drafting error: you cant tell
the color to paint my house.
Securing Historically Significant Buildings and Structures: if want
to demolish the building to do something else. If by chance that
particular structure suddenly burnt down or get demolished: we
dont trust you we have a rebuttal presumption that you
demolish the building without our permission: cant get a
building permit for 2 years. In addition, demolition by the

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neglect: a lot of time people cant afford to maintain their home


and keep the structure going: they stop: ordered to fix it: the
reach of something historic being in a historic district.
Location and setting: a potential idea: instead of historic district,
why dont we take some property. Distinguishing district:
existing or proposed use Emphasize: historic is not about use
Judicial review:
o Appeal within 20 days. If the court finds the decision to
be supported by substantial evidence: may require the
burden of proof: If your client get the certificate of
appropriateness denied, you have the burden of going
forward. IDENTICAL TO the way zoning are handled.
o Public hearing
o 2/3 votes
Thursday: position papers: get all matters together. Break up
into groups.

3/19/2015

Cheat sheet: Issues:


o Dover Amendment and Chapter 40 A Section 3: mandatory : by right use subject
only to reasonable regulation relative to
Representing LNA:
Strike the balance towards the solution and will negotiate in that
way
Aldermen: have another layer of ethical obligations: conflict of
interest
Not a zoning regulation: does not matter what Dover says:
Document written by Levine: to do renovation: our posit
ion is that what youre doing here really violate Dover Amendment.
Wind up denial, having to appeal it.
In the body of the ordinance and in the enabling legislation: fully aware that
this is a complicated: Chapter 43C: there are provisions for the commission
to be more restrictive than the zoning ordinance: can regulate bulk, heights,
the building lower than the zoning under the purview of historic district.
Rebut: back door zoning
2 historic concern: education + religious. Education definition of court:
similar to RLUIPA, not just classroom, but other stuff. Folks dont want that
stuff in the neighborhood and cantgrasp the notion its part of the fabric of
the community, part of changes. The aldermen come in to try to mediate.
Historic preservation decisions discretionary permit granting board and are
they creating a pattern of land use by imposing historic preservation
standard and therefore in violation of Dover Amendment: building on this
creation of land use pattern: going to a Board that has certain standards and
criteria that are vauge and your memebrs and neighbors are educational
institutions and the Board in its discretion said: that addition is too big on a

61

scale with the neighborhood: does that in any way butt off against by right
use.
Disticntion between a non-zoning ordinance and a zoning
ordinance: Dover Amendment allows educational use subject to
reasonable land use regulation.
What exactly this district is doing:
o Restricting the use and precluded the use which is by right
o Nobody has a slam dunk here.
Spot zoning:
The singling out of one area for different treatment (for the sole
economic benefit of the property): the concept here is not spot
zoning but for college people, that in fact could be spot zoning
because: we knew what college wanted, were convinced that
theyll say No anyway. Require an amendment of the zoning
ordinance and the city as a whole would have to say: in area like
this, that have these chracteristics, a certain land mass area we will
allow the following different dimensional standards.
Anemous: the motivation for an individual vote is irrelevant. Court
do not delve into motiviation. They wil say: we look only at the
result, if its facially constitutional -> its OK. The only time the
Plaintiff can create a case under Section 90 83: does the behavior of
the board rise to the level of shocking conscience. The whole idea:
now does not rise to any level of shocking conscience.
Effect of historic district: if the aldermen want to do something with
the house to increase value, will have to go to historic commission:
increase cost. Her job under the statute: statute is very clear: she
must go to the city solicitor and request his opinion. The opinion
will say: you have a financial conflict of interest or you dont. She
has a right to file a disclosure: I have a remote financial interest in
the result here. If you are appointed and you have this issue: you
must go and get an opinion and if there is a financial conflict: go to
your appointing authority: I think youre OK. The appointing
authority is the arbitrator of the community. All of these opinions:
youre a lawyer: want to understand the level of tolerance in the
community and whether you want to subject yourself to this. The
problem is often you go to city/town clerk and you dont know what
theyre talking about. Sometime, this opinion is not the public
record.
Public hearing, 2/3 votes: got this process (feel like zoning, never litigated),
boundary change:
Representingt he city:
If this is zoning: once there is publication of notice in the newspaper, if it
changes dramatically, there must be a public hearing. If this is zoning, you
can discuss trust, community (how come you let them get out but make us
stay in). Isnt in this particular case, a historical use: it was there before the
community, community formed around it. Is it the evolution of the historic
use -> when go to discretionary board: how can you say No to it: another
state education evolves, it changes all the tiem.

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LNA:
Only represent the neighborhood (but only members who oppose).
Would it bind all people of the neighborhood?
o Aldermen:
District have the right to say to us: want to build it closer to the lot line and
we want it to be historically compatible with everything: Great except it
violates the zoning setback: we have to go to special permit granting
authority to get a special permit bc under the zoning regulation, this
building is bigger than purely by right. Dimension require us to get a specila
permit and the special permit granting authority has not right to waive the
setback requirement.
Neighborhood: we have the right. But were not zoning body.
College will have to get special permit from 2 bodies.
Variance: relate to the land (hypothetically it would cost fortune to blast it).
The only way you can build is you can apply variance from enforcement of
ordinance or bylaw. In this case, there is no variance.
Another issue: this is not zoning, therefore, no legal requirement that the
members of the Board who are gonna vote have to be at the public hearing
at the meeting. Zoning: a member of the Board cannot vote unless present
at the hearing. Historic district: get different people at different meeting:
no rule for engagement, no consistency. Think about revamping the rule if
you do it this way.
o Design guideline:
Under Dover: we have the right to do this stuff. How about modifying
things like ramps from your purview? How about wording the guideline so
that in your evaluation, you acknowledge that there will be big buildings:
how are you going to evaluate? Not an easy test.
Vague terms:
o Problem: City Councillor: represent the Board of Alderman, Zoning Board of
Appeals, Special Services Commissioner: there may be litigation and I cant take a
position on this because I have to defend whatever decisions being made or if the
district is passed. If it is not passed, there will e a lawsuit and I will have to defend
the decision as well. Have to be extremely careful about rendering advice to them.
Pilot Agreement:
o Lasell village:
o College can walk away without paying money.
Vesting:
o Building permit:
o LNA did not want to stop even College says stop: bc they can attain building permits
before
o Maybe this is zoning because zoning is about [ ] if not zoning: no problem.
Ordinance:
o Vague: LNA: presumption: the actual standard: Hana case: court have to look at
the language: is a person with reasonable intelligence able to understand what
theyre going to be judged by. In Chicago: they overturned it: subjective standard
youre dealing here arent much different from the case at all.
o College: dont mess with us, we may prevail.

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Litigation: lawsuit: college brings the lawsuit: question that would come up either
side is it right, is there an actual controversy. If ordinance got passed: there is no
controversy here.
Home Rule Preemption:
o Cant conflict with 40A Dover: there cant be any land use regulation that is
unreasonably restricting educational use
o 40C: can create this historic district and it says the district can contain the right to
impose even stricter land use regulations: Historic preservation standard: if its
zoning: conflict and frustrate the purpose of Chapter 40A.
Other solutions:
o Zoning change:
Change of zoning ordinance: zoning is legislative, it would be a hard sell to
create a new zone because it would be other parts of the city where the
neighborhood could be eligible to take advantage of this: DIFFICULT though
a POSSIBILITY.
o Contract:
Vote here is legislative body. Give this deal to the aldermen: what if they
dont want it: that may work for you guys but we have a neighborhood over
here and if we change what we usually do tailored for you guys, pope in my
district would want to do the same thing but I dont want to do that. Its up
to the aldermen to incorporate whatever they want.
o Community Benefit Agreement: no such thing in MA, even if there were, they would
not apply anyway.
o MA Historic District Commission: make that a state requirement.
Aldermen: the aldermen elected only by people at the district but their oath of office is to
the city.

3/24/2015
Negotiation:
Administrative question: Makeup class: 3-5 Wednesday or Thursday
Global comments: [Offering individual group to sit and go over what you read].
o Facts: Take the facts, extract the issues better, extract those issues that are
significant to your role and how youre going to deal with them, how youre
gonna face.
o Commonality of errors:
Drafting: not a transactional document: have to take time to write this:
CLEAR + USE UNAMBIGUOUS LANGUAGE. Leave it open to
interpretation. Complete sentence and good grammar.
Dover Amendment allows the use by right and the college can
build a structure where the use can exist subject to dimensional
requirement which must be reasonable.
RLUIPA applies to regional uses.
Aldermen making decisions before the vote take place: today,
this piece of legislation is legislation therefore aldermen took
the position of legislation. Can even go out and pick it. The
motive dont count unless you violate some civil rights of

64

people. However, if as an aldermen you decide this is juicy


issue (zoning) I will not decide my decision. If it turns out
zoning, I would not want to mess up.
Strategy:
Possible conflict of interest . How you plan to handle it? You
plan to bring it up during negotiations or dont you? Why?
Assistant City Solicitor: Have to stick to the law. Figure out
their claim: Dont offer to the public (they are not your client).
Attorney-client privilege.
Who is the final authority here : its the legislative body that
votes.
Big topics:
Drafting, conciseness, preciseness, being unambiguous, proofreading. Taking necessary time to produce quality.
2 ideas for alternative mechanism for achieving solutions:
(1) Institutional master planning: exist in several cities (Boston):
basic idea of institutional planning. Have to revise the zoning
ordinance to include this. For discussion: 1st page: harder to
report that was made by a zoning reform.
Comprehensive Plan: Institutional Master Plan
o Quoted from comprehensive plan: almost 20% zoned by
religious, educational. Future land use should reflect
the share of attendance of the community interest that
exist, accommodation and change over time for both
institution and community in which they reside.
o Definition of master plan: accumulated effects: current
and future of the institution: city has to
plan for 10 years or 30 years plan. College project what
it might want to do and allow for zoning to be set aside:
institutional master planning
Or Charter:
o Purpose to : permit limited self-government as a part of
city government: delegate any substantive authority
with regard to zoning: they cant do zoning.
Educational perspective: the reason why it said that is
preemption: special permit granting authority the right
to grant permit. That right cant go to any other group
(LNA or others). Just an idea.
o Historical challenge: historic and arent historic -> have
to come to conclusion.

Negotiating strategy
List of the issues youre talking about: what each persons big issues are.

Conflict of Interest: Alderman living within the district, have financial conflict of interest
because: it does not have to be an immediate financial interest. If the aldermen went through

65

appropriate process from the city solicitor that said: you do have a financial conflict of interest
for the following reasons: the aldermen does not have an appointing authority (the appointing
authority is the : the elective official has the right to make decision: I believe I can proceed
objectively with trust, credibility therefore I am going to continue. The remedy is the electorate
voting that person out of the board.
Another conflict: reasonable person out there: Even you dont have a financial conflict, there is
an appearance of impropriety. Its all over the place. Each community has their own tolerance
of conflict of interest.
Finally, with the aldermen: if they are going to support the district: mathematically: youre are
acting unethically. We will report you to the ethics commission thats a no vote (to present:
2/3): all levels of psychology,

3/26/15

Gumley case: Appeal process of a local historic district commission or a historical


commission is identical to the appeal of a zoning decision. It is a de-novo review where
the judge looks at the writing fo the decision and decide first: are there legally tenable
reason (there has to be somewhat objective standard and criteria that the decision is
talking about). If there are, then was the decision as a whole arbitrary, capricious?
Cant make decision by substituting judges opinion for local board: they are deemed
most appropriate to decide for the community.
Warner case: also about the same thing, the decision actually paraphrase the language
without giving any reason for the decision at all. Applicant was a bad actor: she never
finishes it, thats what happen with these districts and they are unsupervised,
unmanaged. Your job is to focus them (not an easy thing to do).
St Francis case: what happened with local historic district: real impetus for all of this
was stuff that any college does (operation, traffic), try to get at it through historic
preservation. This is about religious school that has parking: plan is to remove parking
down the street, reduce the payment currently exist. Denied bc the neighborhood was
angry about the school operates. Court: this is not a historic issue. The historic
commission cant as neighbor inject themselves into decision making process.
Weber case: understand the extent of power of the historic district. E.g. want to put
in a hot tub (there is steam you can see it from the public way): that does not make
any difference read Weber. About a wood burning stove in the backyard that nobody
can see from the public way. But when you burnt it, smoke comes up. Neighbors did
not like. Commission: out of character with historic nature of our community. Court: a
common sense reading of the bylaw: should be regarded as integral part of the boiler,
not exempt from the reach of the bylaw. These districts have immense control over
what folks do with their home.
Landlords Revenge: Mannequin wearing lingerie
o Retail store happened to be SOB: in a historic district in Alexandre, Virginia. Can
a historic district control this:
Man who owned this building has successful hunting and fishing
company. Served in the historic commission. He want to extend the
roof. HDC denied his certificate of appropriateness. He could not do it.
What can I do by right? He figured out under zonng of Alexandre, he

66

could put retail uses in this building: How can he put this SOB in this
building:
Alex did not have an adult entertainment bylaw -> its a retail
use. Even if its in a historic district, he cannot regulate whats
inside.
o Decided to create an Adult Entertainment:
Free speech: time, place and manner, promoting a compelling
substantial governmental interest that is supported by studies. where
the only study was testimony from a couple of aldermen that is was bad
thing (WW: unconstitutional).
Church suing town to get addition built:
o Church wants to build a 13k feet addition, it is in historic district: the historic
district commission denied his certificate of appropriateness, claiming the size
of the building was too big, out of scale with the historic district: you cant do
this.
o What might be your argument:
No any other place you cant have this.
Core religious value: we need to have this place.
Zoning
Under RLUIPA: Historic Commission: its not about use, about historic
preservation and street scale. You already have a place to worship.
There is no consistent jurisprudence whatsoever in any RLUIPA cases. It
boils down to local discretion and local inteprertation of historical
district scale. Then you add in all of these conflicting statutes and
vagueness. It to Lasell: its all about community, negotiations, good
faith, trust, compromise. What happens here is they actually set down
and talk to each other and work out a solution where the church could
and did build the same thing. But they talk about other issues: traffic,
by the same token: not only RLUIPA but core value: this place is zoned,
if we run away, this place will be converted to places that produces
more traffic. Trying to compromise and set up mechanism for
discussion.
Go into educational uses
Leave with this: Dover Amendment protects educational uses (reasonable regulation):
Newton historic commission: preschool -8th grade: expand parking by right educational
uses. As I was touring: said to business manager: old garage. Over 50 years old. Have
to go through demolition delay process: This structure in a different location should be
preserved. If it is preserved, the school has to wait a year before it wants to do under
Dover Amendment. Levine: Heres the deal. In one year, if you preserve it, we will tear
it down anyway.

3/31/2015
Techniques to Achieve Historic Preservation; Introduction to The Municipal/Governmental
Attorney (City Solicitor, City Attorney, Town Counsel, Corporation Counsel, etc.): Opinions,
Representation of Multiple Clients, The Attorney-Client Privilege, The Work Product Doctrine,
Conflicts of Interest (statutory, common and case law on the Local, State and Federal levels),
financial, gifts, appearances of conflicts, prohibitions after government employment, The Rule

67

of Necessity, Legislative Immunity, Quasi-Judicial Immunity, Local ordinance/by-law Codes of


Conduct, and Conflicts of Interest Opinions; Municipal Immunity and Torts; Civil Rights Claims
(involving Governmental officials, employees, Boards, etc.) SLAPP Suits; Residency
DUTIES: Read: Document # 31 A, E, F
CASES:
Duties: Board of Public Works of Wellesley, 377 Mass 621
Opinions: Read: Document #31 G (only once!); 33 A, B; Review/Scan Document # 35 B
Representation of Multiple Clients: Read: Document #36 Review/Scan: Document #37A
(Read: City Solicitor Letter in middle dated Aug. 22, 2003);
CASES: Fillipone, 392 Mass 622, Town of Johnston, 892 A 2d 123

1. CITY ATTORNEY
a. Find what they do in the bylaw or ordinance of the town.
i. Do the same thing.
1. Differences: in few towns, these folks are elected (San Diego).
ii. Most others are appointed by the executive
iii. Duties: all the same
1. Big difference: model they choose to follow.
iv. A number of topics we will cover:
1. Opinions: these folks write opinions, will teach the structure of
these opinions.
a. Different categories: sometimes guide how to behave, often
times quasi-judicial in nature (interpret a charter, ordinance
and discuss preemption and all sort of definitions).
b. This person is buffering the , i.e. - represent a public entity,
open meeting law. How do these opinions fit into those
statutes?
2. Will also talk about Attorney-client privilege
a. Have public record law. Usually third party around -> what
happen to the A-C privilege does not usually exist. Will
discuss all of that.
3. Will talk in the context of having multiple clients and how they
frequently conflict with each other.
a. Figure out how to deal with these internal conflicts.
b. Your job is to try to resolve the issue. The best way is to
explain to one party the position of the other parties.
c. Have to disclose certain thing that a lawyer in a private
sector may not disclose.
4. Will talk about conflict of interest
a. Financial conflict of interest
b. The appearance of impropriety

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c. Gifts, perpetuities.
5. What happen when you become a formal government employee:
a. Municipal employee: can be a volunteer to participate in
local task force. His or her law firm partners/family
members get embroiled in conflict of interest statute.
There are limitations on their behaviors.
b. Will learn about the rule of necessity: the chilling effects of
these conflict statute.
c. How can you encourage people to participate at local level?
Level of tolerance of community? Who is the arbitrator of
the community
6. Legislative Immunity: elected officials are immune from all kinds of
behavior
a. Civil Rights Action: what it takes to challenge some elected
official on a civil right claim? The standard is: Does the
behavior of the local person rise to the level of shocking
conscience. What shock your conscience rarely shock
conscious the courts conscience.
7. Vicarious liability
INTRODUCTION:
2. Who is the client of governmental lawyer?
a. Depends on who the person is.
b. The model that is most respected and followed by folks:
i. A client is the municipal corporation, not the individual partner per se. All
of them collectively and higher ethical standard that the person holding this
job is ultimately to the municipal corporation.
ii. You work with other multiple clients and together tried to come to a place
where youre furthering the public (governmental) interest.
iii. How do you do that?
1. Through building trust: if you are the governmental attorney: not
work if all parties trust you and the general public trust you. Do
that through your actions daily and monthly, demonstrate youre
not politically allied to any party.
2. Becomes a problem for folks who do not have a strong sense of
themselves.
a. No tension, no service staff: Unless you have a strong sense
of yourselves to do this job and understand there is a shelf
life for this job, youre not gonna do a good job.
iv. Another way to define client: abstract of public interest:
1. To the law
2. Should not be afraid to say to your client, you cant do that. If you
do that, this is something will happen.
3. You have established trust, objectivity and they decide to do it
anyway: you still have to defend them.
4. If you have these conflicting clients, as a city attorney have the
choice (power) to determine if there is going to be a conflict of

69

interest: can decide not to represent any party or represent one


over another.
a. Do you want to do that
b. How strongly you feel your ultimate client want to do that?
c. Or do you say: go get your own client.
d. E.g. School committee. Fighting legislative body. As clear
that school committee is wrong and they wonts listen to
you. Im representing legislative body: have to know what
the town/city charter says. All appropriation from the
executive. Therefore, that client of yours has to get a client.
3. Statement of Principles City Solicitors and Town Counsel Association:
a. Decide to come up with this statement of principles.
b. Highlight parts of it:
i. Legal services to city and town
ii. Commit themselves to standard set forth herein. Hold themselves to
highest standards of conduct set forth herein.
iii. Member will conduct themselves in a manner that avoid the appearance
that legal advice is based solely upon political alignment or partisanship,
because such advice undermines public trust. Members should not be
deterred from giving candid advice by the prospect that the advice may be
unpalatable to the client.
1. Strong sense of yourself.
2. Respect the law
3. Community
4. Many folks do this job does not subscribe to model 1-3, they are
extremely political. They thought their client is the person who
appointed them.
iv. What happen if you dont follow the model?
1. Complaint about City Attorney Deirdre Dexter: I cannot express the
depth of dissatisfaction with her services.
2. If you do one of these jobs, you will learn that most elected people
will come from neighborhoods (they were activists), they know
nothing about how law, city and town operates. One of your job is
to help them mature in place and teach them about these stuffs.
Then your job will become easier. -> Another component is to be a
teacher and instruct folks on local law so they can understand the
implications of their decisions.
3. Must have thick skin to follow that job.
4. Inconsistence:
a. If the city/town council is political biased : E.g. opinion will
be rendered (is there any conflict of interest: Opinion1: No;
Opinion 2: Yes, even though same facts. The idea of these
opinions is you have aright to understand conflict of
interest. If they are inconsistent -> youll have a problem.
b. These opinions: are they public documents? Often times,
the city/town attorney does not want to disclose any
written opinion that they discover: They are public, only

70

certain times can they remain confidential, private. Even


during those certain times, they are public documents.
v. Vero Beach lost trust in attorney
1. Wind up with settlement.
vi. Excerpts from inauguration speech where a city attorney is elected: will run
into basic trouble if you dont follow these:
1. Do criminal prosecution, civil rights stuff. They are political and
have an agenda. They are to operate and behave the way I
described [1-3 above].
a. Accountable to the people of city of San Diego
b. Attorneys, not politicians
c. Take ethics and professional responsibilities seriously.
d. Need to earn credibility and respect.
e. Will run our office as a law firm.
f. Giving legal views, not political views.
4. Dealing with the media:
a. Very particular on how you explain things to them: Often times, completely wrong.
80% lucky they get it right.
b. City solicitor stands up in court for Newton:
i. Contracts: labors, services, requests for proposals, deed, licenses, propose
legislation.
ii. Always have a city interest in my mind regardless of whom Im acting for:
where theyre heading is not in the best interest of the client. Your job has
another level of responsibility: have to tell your client that the apartment is
not the way to do it, heres the long term implication for the community.
iii. Advocates preventive law: and encourages department heads and city
officials to check with him before proceeding with questionable issues.
iv. A good municipal law will:
1. Meet with client on a periodic basis to potentially hear problems
before they happen.
2. Talk about it, try to guide these people into the right path.
3. Lots of city and town do not have fulltime/in house lawyers. There
are some firms out there who specialize in representing but they
only get a call when theres a problem
c. National Institute of Municipal Lawyers: Take this job and love it.
i. Poor advice been given or good advice been ignored municipality not fare so
well:
1. You faced with ethical dilemma. Youre in a position to present
before they occur, can be proactive, Require patience,
thoughtfulness, and care, and a degree in media relations.
5. To sum up, if you do it correctly, you can become the third branch of the government: Have
to be
a. Objective
b. Independent
c. Courageous to give your judgment based on law
d. Ethical: follow the law
e. Not political under any circumstance
f. Have a very strong sense of your self understanding this could not be your career.

71

g. WRONG: if you participate in creating policies. You help them understand the legal
implications of what they are deciding, not help with what they are deciding. This is
a fine line.
h. Must do (a g) to develop trust and objectivity
6. Opinions:
a. Sometimes its legal advice if theres a legal problem.
b. Hypothetically, one of your client (legislative body) has problem with trash pickup
people. Want to fire them but do not understand the legal consequence of that.
Say: we want to get legal advice form you about this convene their meeting and go
into executive session: can happen only for stated purposes, one is not getting legal
advice, one is to discuss litigation (illegal meeting). If you are going to offer legal
advice in an open meeting, you must do so and there is no attorney-client privilege
because the definition of an open meeting is you have [].
c. Then quasi-judicial opinion.
d. In communities during budget time, you have school community budget which is
separate from municipal budget. In MA: school budget was autonomous. School
committee set the budget and they determine what they need, nobody can cut it.
That has changed, today the legislative body can cut individual line item. They can
cut the bottom line. If they decide because of the tax gap that only so much
revenue can be raised: they have the right to say I cut 60 lines out of your budget.
You can decide where you take the money from. This is the law today. Before:
legislative body has no power to rein in spending of the school committee. In the
city charters (in the unique home rule closet), this one was all about maintaining the
facilities by the school committee. The charter says:
i. School committee must provide up to a maximum expenditure to 2% of the
school departments operating budget. Take last years budget. That
percentage goes into account, can use money to maintain. What the SC was
doing was using that money and expanding the library, adding on to building
(ordinary maintenance and repair).
ii. LB: No, that is capital improvement and you have to come to us. We will
expose you politically bc youre being deceitful.
iii. Attorney: tried to explain to the school committee. Wind up writing an
opinion:
e. Structure:
i. Start out here the issue,
ii. Conclusion (Holding)
iii. Discussion
1. Introduction: ordinary maintenance and repair. Do not include
actions which designed to extend the useful life of the
2. Principles of construction:
a. Go to ordinary meaning of the words. So, you go about half
way down in this para: what did the people intend by
adopting the language in their charter. What would they
have intended have they thought about the question.
b. Look at ordinary and common understanding of the word.
Look at other situations: how did they define these words.
3. Application of the principles of construction
iv. Sources: List of various documents that we look at:

72

f.

1. These opinions are not simple, they are complex, have to be legally
sustainable.
Consequences: Board shut down in site-plan discussion
i. Here you have a situation where a new high school was being built. This
high school costs was escalating and at this particular time, the cost has
reached 186 million $. The most expensive high school in the US and
country.
ii. Legislative body under the charter has the authority to approve the site plan
and the charter states and they have the right to approve all changes.
iii. What happening was the Mayor, school committee, activists were working:
the Site Plan was approved. He was improving the building with them.
Costs were going up. The aldermen said: hold on here, we know all the
changes are being made. Mayer has not come back to us for approval of
these changes as the Charter says.
iv. Mayor: I dont have to do that bc in the approval document (when you pass
the approval road), the building will be constructed consistent with these
following plans. Yes, those plans have changed but not changed so
dramatically that we need to come back to you. It absurd. Legislative body
keep saying to the Mayor: were dealing with the public purse. We have to
approve all the thins, we want to approve those changes before we have no
choice but to pay for them.
v. City Solicitor: represents the Mayer, Board of Aldermen: We have the right
and I will write an opinion. Not a public document -> no one else will read.
He told his clients (Mayor): Charter does not mean every single change
would go before you bc that will produce an absurd result.
1. Alderman: thats OK thats our job.
2. Opinion of the article: have a confidential opinion giving an
interpretation of the charter to two clients: its now being
discussed in an open meeting. So, in addition, you have clients who
are saying: I dont trust you, I want to get my own lawyer.
3. City solicitor: timed out, there is a problem here. Only I, eh city
attorney can decide if you can get your own counsel. I will say I will
not represent you and will not say theres a conflict.
4. The basis of this complex situation is trust: he is viewed as
representing interest of the Mayor as opposed to the municipal
corporation and the best interest of the municipal corporation.
5. Should have negotiated a compromise: Tell Mayor: it wont be so
painful, will be political, you will get your way bc you have the local
activists.
vi. A CS Lost his right to keep opinion confidential once the opinion is discussed
in a public meeting to a third party. Therefore, the attorney-client privilege
is waived. Someone can say: I like a copy of the opinion.
vii. If City Attorney decide that s/he has a conflict between the two. If there is
such conflict, the CA does not have to bail out, can chose one client over the
other. What he is saying is the way I build and I operate is I will not
represent anyone of you, go get somebody else.

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1. The problem in this case is what if I represent a Mayor: what if a


Mayer does not request an appropriation for the Aldermen to get
an outside counsel.
viii. Opinion:
1. Section of the Charter
2. Real conclusion: force building plans to return to the board for
multiple amendments. Clearly, an application would be extremely
burdensome and unreasonable, if not absurd.
3. However: he has two clients, his job is to balance his interest and
public interest + understand social science and psychology + people
upset so much money is being spent on this school: would it be
better for mayor to do it in a much more congenial way.
ix. Conclude: Cutting the board to size
1. Example of how you deal with the press if you are a city attorney:
a. Always a movement to cut it down because people get
annoyer: every member is compelled to say something ->
nothing get done, too much liberation.
2. You can ask anybody in the community: who is your representative?
Unless that person has a particular issue, they will not have any clue
because they dont have to deal with them. Election: few people
show up. Those others get what they deserve.
x. Lesson:
1. Dont lose your temper, dont raise your voice . Have the makebelief thick skin.
Duties: Board of Public Works of Wellesley, 377 Mass 621
***
4/7/2015

AUBURNDALE HISTORIC DISTRICT REDUX


Opinions: Read: Document #31 G (only once!); 33 A, B; Review/Scan Document # 35 B
Representation of Multiple Clients: Read: Document #36 Review/Scan: Document #37A
(Read: City Solicitor Letter in middle dated Aug. 22, 2003);
CASES: Fillipone, 392 Mass 622, Town of Johnston, 895 A 2d 721
The Attorney-Client Privilege and Work Product Doctrine: Read: Documents # 31I, #42 B, D, E,
F
CASES: Town of Wellesley, 1998 WL 151078, General Electric, 429 Mass 798,(and AttorneyClient Privilege) Construction Co.,Inc. 449 Mass 44,(and Attorney-Client Privilege) Decatur County
v. Bainbridge Post, 2006 WL 1843131; Professional Firefighters v. Local Government Center, New
Hampshire, 159 NH 699

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Conflicts of Interest: [The page numbers refer to the PDF sequence] Read in Document #39
regarding MGL c. 268A, Sections 2 and 3 [p. 11], s. 18 [p. 20], s. 19 [pp. 12, 13, 16], Rule of
Necessity [p. 17], s. 23 [pp. 18-19]; Copies of the statutory language will be distributed in
class]; Read: Documents # 35 A ( #1-Rule of Necessity) # 40 A (regarding Sangiolo, Linsky, Sacks,
Vanaman, Letter to Laura Epstein, Statement of Disclosure),(I DISTRIBUTED COPIES OF THESE
MATERIALS LAST WEEK) 40 E, F, G, 41; Read: Document #35 C
CASES: Avon, 352 Mass 1581, Scaccia, 431 Mass 351, Life Insurance Association, 431 Mass 1002,
San Francisco v. Cobra (38 Cal 4th 839), In Matter of Dolan,76 NJ 1, State of West Virginia v.
Wilkes, 2007 WL 4157128, Hedman; 2008 WL 4952613, Million Bucks, 2009 WL 3762702, Scull v.
Local Finance Board, 2014 WL 2440783
I.

Recap of negotiation outcome:


a. Lasell:
i. Ultimately, it was approved by the vote of 7/5/2(absent): manage to get 2/3
majority. 3 aldermen participated and voted (seems not ethically correct):
its there. The district exists.
ii. Planning and Development handout: allow creation of the district: Any
district created shall not become effective until a map or maps have been
recorded. [Section 4]: There is registered land as well as just land: very
detailed, different kinds of plan that are required for registered land.
iii. Lengthy process, approved by the land court.
iv. At this moment, no land has been recorded by the registry of deed. For
litigators: have an argument at some point if you were involved in litigation.
v. There was in fact litigation:
1. College filed a complaint: has adopted gerrymandered historic
district in the neighborhood of Auburndale in violation of Dover
Amendment. DA requires reasonable regulation.
2. In adopting the district, the city has attempted an end run around
the protections to which Lasell is statutorily entitled under the
Dover Amendment. Lasell ask the court to determine and declare (1)
Historic District is invalid; property not subject to Historic District
Ordinance.
3. Request: historic district is invalid bc stated purpose if pre-textual,
regulate use in violation of Dover Amendment.
4. Section 14A: purports/restricts future use, enjoyment of such land.
Right to file and prosecute such a petition shall be affected by the
fact that no permit or license to erect structures or to alter, improve
or repair existing structures.
vi. Lasells opposition to citys motion to dismiss:
b. One thing they left out is there are no plans, there are no districts as we speak but
they left out.
i. Leon Lombardi (Land Court judge):
1. Wrote an opinion
2. Under Section 14A, this court exercise exclusive jurisdiction. Agrees
with the citys argument that the Abundale like other forms of
regulation. Even he does not get this is not a regulation, this is a
site plan review. Its something that take a look at historic

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c.

d.

e.
f.
g.

preservation, likened with [] that deals with wet lands, regulate wet
land, not the use of land.
3. This court lacks subject matter jurisdiction and exhaustion is
necessary.
4. So, there is historic district.
Things happen in historic district:
i. Sign signage: have to go to historic commission to get approval for the sign
(satisfy the design guideline, compatible with historic character). Problem
because they want the street gate to be consistent, they want the sign to be
put back, violate the setback requirement (move this closer in violation of
the setback). We went through administrative site plan review (engineering,
planning departments, etc. Planning department wrote a memo. However,
because zoning is being violated, Lasell has to go to board of appeal to get a
variance. Howard: has the right to impose zoning regulation, therefore we
dont have to get a variance. Variance relate to the land and the
topography and as a result of this, you cant comply literally with the
requirement of zoning ordinance. This does not apply here. Therefore, the
commission has effectively denied the application.
ii. How do you handle?
1. College has to spend more money under state statute,
commissioner has the authority to make decision: are the decsions
have been imposed on this site unreasonable.
2. We prepared a letter and gave it to commissioner and request a
waiver from the ordinance , reconfirmation that site comply with
the ordinance. Basically said, this is absurd, does not apply and we
should be giving building permit.
3. Commissioner agreed. In the future, a different commissioner
would have said No. This is interpretive.
iii. Another sign in a different location of college. About a year later, same
district,
1. They denied
2. Reason is inconsistent with the character of the district with regards
to the style of brink, stone foundation, color and material of the
lettering and their relationship to the Victorian character of the
street. The commission suggests a change in materials in the
lettering to nickel, brass, or bronze consistent with Victorian
character.
House that president used to live in. A new president moved in Theyre taking this
building and moving their admission people there. They ultimately approve it. But
under Zoning, has to create parking lot. Went to commissioner, commissioner
refused to grant a dover waiver for parking. Prove by people here are already in the
campus, dont need parking space.
District heritage? No idea what is was.
Is the proposal appropriate to the existing community character ?
Demolition of any character is strongly discouraged and will only be considered
when all other possible options for refusing a structure have been exhausted.
Responsibility of the applicant.

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II.

h. This is higher because why would there be a district why in the building has no
historic district?
i. Language is vague. They dont change because they dont want to. E.g.
BC: It was deemed by the Chief Justice of Land Court that it was
unconstitutional, double counted and the decision said to the city to fix it.
20 years later, still try to make the city to change it.
Governmental attorney opinion how they are how they handle conflict
a. Shrinking the board: a how-to guide:
i. Toxic bland of reporting and opinion giving in the public by the city attorney.
ii. 3 options:
1. home rule petition: different kind of legislation: mandatory (how
you raise tax), enabling (if city or town accepts this, you can
implement it), local initiative (this is what they are talking about):
we could have legislative body pass a measure to cut the size of the
board, send it back to state legislature and have them enact.
2. City solicitor however did not read the statute: Home Rule
Procedure Act. Simply put amendment to a charter. Under chapter,
can be proposed by [] with concurrence of a mayor: only a charter
commission elected under the chapter may propose any change to
the terms of office of legislative body. Pretty simple: you have
either reporter who dont understand or solicitor not knowing what
he was talking about.
3. Mechanism:
a. The charter commission
b. And Initiative Petition: he describe it OK but forgot : have a
combination of things that pretty bad. However, typical.
Morale of the story: never rely on any opinion given to you
by any municipal employee where local employees will say:
you go and check that bc there is no fiduciary relationship
between you and that person: they owe you no duty. If
theyre wrong, you cant recover any damages.
4. Section 11: any changes after that, it is required in Section 11: that
change goes on the ballot (next regular election) to be approved by
the voter.
5. Home Rule petition (Chapter 50: An act relative to the charter of
the City of Newton):
a. Fine but never went on the ballot.
b. Have controller, treasurer, act on behalf of the city with no
authority. If involved in bond, youre litigator, you have an
argument.
b. Article 33 C: Lynn:
i. Members have been appointed by the city council forever. Way back, the
legislative body appoint the members of board of appeal. A new mayor
came went to her city solicitor: how do I appoint these people. Theyve
been doing wrong since 1965: law says the executive appoints. Their
decisions were invalid.
ii. City Solicitor: dont advise unless asked.

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iii. Mayor: to validate 30 years reappointed all of them. BUT Levine dont think
its the way they do it.
c. Multiple clients: how does it affect C-A
i. Work-product document:
1. During the course of litigation, anything that lawyer produces in
terms of draft, public attorneys opinion and paralegal and
whomever, those are privileged, different from the regular
attorney-client privilege.
2. All of this litigation stuff: once the litigation ends, it is a public
document (All of them), available to be produced, they can be
discovered.
3. The first concept with the multiple client that want you to
remember is the city attorney is the person who will decide who
represent who if s/he believes that there is a conflict of interest.
a. Philllip: stand for principle that city atty had the right to
decide if there is conflict to interest, s/he can decide
whether to represent a party.
b. This case involves torts: In MA, there is a torts claim act:
municipalities through enabling legislation can indemnify a
municipal employee acting within the scope of their
authority.
c. At the time this case about, indemnification was up to [] $.
New legislation passed: if city/town accept, they can
indemnify up to 1 mill. Till today: if there is a civil right
violation and acting way beyond negligence, there is no
indemnification for that the city employee has to pay out of
his pocket unless the city decides to indemnify anyway.
d. Here, the mayor decides: Holmes live across the street, use
to be in the city hall taking bath he was friend with the
secretary. Secretary doing personal check book, embezzle
money from him. She acted a violation of civil rights
individually and her plaintiff was Phillip Holmes.
e. City Attorney: make a decision: he may have to testify
against the mayor and mayor may have cause of action
against the city and said: Sorry, you have to go get your own
lawyer: get appropriation from the legislative body.
f. RULE: He can decide when he has multiple clients yelling at
each other.
4. Doc. 37: City win
a. School budget was autonomous (legislative body could not
cut that amount of money). When town was developing
school. Today, legislative body cant cut the school budget.
Various line items have to be adjusted but school
committee re-adjust.
b. School committee would put in its budget for grant they
have applied for. The problem was when the money came
in, they kept it: if they get all the money, their budget was
increased by a million one.

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c. Legislative body got involved: sue them, if you dont, we will


cut their budget anyway and let them sue us.
d. Brought both parties together and try to balance their
interest. Real client is abstract notion of public interest.
Say to school committee: not right and does not create a lot
of trust, why dont you reconsider this and lets try to work
something out.
e. Arguments will be used by a legislative body: Im breaching
C-A privilege bc disclosing how the other party use. But my
obligation is to that abstract client in the sky and therefore I
have the right to decide.
f. C-A privilege is to encourage folks to talk to their lawyer but
it will never be revealed. If the client is the municipal and
under old law, the privilege is held by client: if municipal is
your client, who in that corporation has the right to waive
the privilege? Nobody.
g. Conclusion: No attorney-client privilege in public section in
Levines opinion.
h. When talk to one municipal client: there is no attorneyclient privilege, if you worry: go get a private lawyer.
i. School committee went on get its lawyer, stay with
legislative. You can represent both parties, no party (could
not say Im not represent school committee or legislative)
or I could choose one over the other. Most city attorneys
would not dare do that bc they have to be sure theyre right
and understand one of their client may get really angry with
them and politically try to get them out of the job. In
Levines youth, he decided to stick with legislative body bc
think the other one is arrogant, impossible to do it.
j. Reach out a consent judgment where 500k was restored but
the million one was put in the escrow and in fact if they got
the grant, it went back to the pot of the city. If grant was
not granted, they got the money.
5. Another example: Teddy bear club
a. French speaking elementary school.
b. Neighbors convinced that drop off/pick up time for the kids
would create
c. Under Dover Amendment, school can district only subject to
reasonable regulation. They were moving to a house,
comply with the zoning ordinance.
d. City went onto inspection service commissioner: issued a
building permit. Building permit as of right are repealable:
an aggrieved person within 30 days from actual notice.
Zoning board of appeal hold a hearing, take a super majority
to overturn the decision of the Inspection service
commission to issue the permit. Under open meeting law: if
there is threatened litigation, board can go in
close/executive session. Another member of law

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department can present: you cant overturn this building


permit bc hes right, you will lose the appeal. Hear
testimony, vote is taken: 4 to overturn building permit
decision; 1 is OK. Rejected not only the advice given to the
commission but their own lawyers legal advice. Then the
school sued the city (zoning board of appeal) and the
commissioner. City Solicitor represent all the parties. In
this case, stuck with the idea of representing a client who is
being sued who did not follow your advice: CS could decide
there is a conflict of interest with the zoning board but he
did not have the gut going against any. He sent it out and
the mayor asked for an appropriation for one lawyer to
represent both parties
6. Doc 38B: A request by a city solicitor to the state ethic commission
to answer the question: been asked by the mayor of the city to
present the case to get a variance: were selling some surplus
authority: want to get some guidance.
a. City of Attorney: I want you to represent in this sale
b. Can I appear before one of my own clients? If youre on a
zoning board and your client has an application: can you still
in front of the board and make a representation?
c. Under agency law, public employees/attorneys do appear
and have the right to appear in front of their own client.
d. But: is my theory in this application consistent with the
advice I gave to the client before Yes then probably its
OK. But what if they deny it? Have to represent them if the
mayor sued the board of appeals.
e. Finally, what if your appearing before this board and they
say: we have a question, lets ask SC. But hes representing
the mayor. Whom do they get the info from
f. State ethic commission:
i. Represent zoning board of appeals even though he
does not actively involve
ii. Under professional conduct, authorized to
represent several people: a disabling conflict could
arise: contrary. Can see how dicey this gets.
iii. Finally, good practice suggests SC makes it clear: he
is appearing as an advocate to the abstract client
(municipality) and not to the board of appeals.
BUT: this create a problem for CS.
7. Last example: Town of Femal: wind turbine constructed with
building permit, approved by building commissioner: allegedly has
PTSD: nose exacerbate his condition. Board of Appeals deny his
appeal and upheld Dover Commissioner Decide was wrong. Board
of Selectmen bought suit against their own board.
8. Recap:

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III.

IV.

a. Can choose one client over another, can represent both,


can choose neither one (depending on the fact), can appear
before your client and have boards that sue each other.
b. Conservation District of Brookline: the owner of the
property decided to go through a 40B. Zoning board of
appeals finally close the hearing and issue the permit.
Board of Selectmen filed a lawsuit over the zoning board
that they elected.
Classic attorney-client privilege and how does it work in the government.
a. You settle by disclosing the other party or clients position. Understand that if your
model is your client is municipal operation: there is no client -> lead to conclusion
that there is no privilege.
b. But: if you have a city counsel, 7 members. Each apply for opinion, it is legal advice.
City attorney get very mixed up when its applied: It applied to legal advice (not
about interpretation or what this ordinance really means), just apply to legal advice.
c. Does that one member hold the privilege/Can they waive it? Is that advice rendered
to the entire board? Do the board have the right to waive it?
i. If you take the position either way that the Board hold privilege, they have
to vote to do that. We have open meeting law: all deliberations have to
take place in public, therefore, if they vote to waive or not to waive privilege,
they have to disclose the privilege that they are talking about in an open
meeting. -> there is no such thing as client attorney privilege in municipal
context (by the end of the day, just [): Who is the client that hold privilege if
there is such a thing?
Public record Open meeting law
a.

1/14/2015
1. At the end of the day, even if no [] there is still the appearance and what would a
reasonable person out there think about the behavior of these people if they
understand all the text. Code of conduct: require folks who volunteer/elected to
disclose all kinds of relationship (mostly financial) that they have. These are published
and available to the public so that if a person who is elected and then there is a situation
that might involve something s/he disclose that person has already disclosed it even
though it was inappropriate at that point: its OK, thats the level we accepted, its OK
for the person to participate.
2. 38C: All about folks who have been given a ruling/decision that they dont have a legal
conflict. What they forget is a catch-on: I dont have a conflict but is there appearance
of impropriety? Am I still in a conflict situation? Their appointing authority is valid with
an appointed person: they must first get clearance: they will still be elected by
mayor/Board of Adelman. City Attorney did not tell them about it.
3. Examples:
a. 40R: 2 newly elected officials in Seattle who disclosed that her parents + other
family members own land in the heart of downtown. Another: parents own
property near railroad. City Attorney: they could participate and do not have
conflict of interest. Nonetheless, they did not take the last step: go to their shell
to try to evaluate the mood and tone of the community and maybe if they did,

81

would have rescued themselves (apperane that they would have been influcned
in their vote).
i. Friend in Brookline: left being a selectman because constantly, there is a
group on participate issue despite not having a conflict, they went
ahead and filed a claim against him for ethical violence: he had to do
with local media -> made his life unpleasant.
b. 40Q: parts of the case [DONT HAVE TO READ]: Carrogan v. State Ethics
Commission:
i. Got an opinion from City Counsellor that he did not have a conflict of
interest and no appearance of priority: sued that he should have
rescued himself but Court: he should not
ii. Reasoning:
1. No doubt requiring C to rescuing himself, deprive of his right to
express himself. He claims that to rescue himself was a
violation of free speech (the voting was free speech according
to court).
2. Appear to conflict with public duty do not burden that official
and his constituent. The individual judgment of a reasonable
person in this situation would be materially affected by his
commitment in the private capacity.
3. Recusal is to avoid corruption or the appearance of corruption
iii. Recap:
1. Individual level of tolerance
2. At the end of the day, even if she does not, she has conflict of
interest, it is the appearance of impropriety: fight affordable
housing (that is her business), is it right that she is on the board.
c. 44A: Same guy, got married, bought a house. He bought the house outside his
district. Got his friends together, they create a piece of legislation to change the
line because the house was very close to the district, they bump it out a little bit.
He got the idea not to participate, he should have gone to solicitor: can I
participate in his vote. CS: Do you have a financial conflict of interest because
as an elected official, you can get health insurance, 15k stipend every year, it is
not like there is a financial interest that is reasonably foreseeable, its there. ->
you have a conflict of interest. Nonetheless, you dont have appointing
authority, you can look at yourself and decide would there be appearance of
impropriety if I voted. A person would conclude there is appearance of
impropriety. He did not do so: very typical behavior in any community with
hundreds of appointed and elected officials.
i. Files with city clerk
ii. At the end, he makes a legal conclusion: my interest is not financial in
nature. Nonetheless to avoid the appearance, I do not intend to speak
on the item of redrawing the ward line. Law: if there is a conflict of
interest, one does not only speak about one item, but lead the road. He
does not quite get it but the ward line was changed. He voted and
participated.
d. An event a couple of years ago: had the chairman with the board, own property.
There is presumption of a financial interest in the result of the decision on the
property. The chairman acknowledge that: I wont participate. However, he did,

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he voted on the site plan, attended all the discussion, inspected the property.
Nobody challenged him
e. Another case, people did challenge. A question of lack of knowledge of the law,
if the folks in the community are going to do something. More often than not,
they dont do anything.
f. Couple of examples from cases
i. Mr.& Ms. Smerk: Planning board. Trial level: the judge invalidated his
wifes vote and vacated his appointment.
1. When a family members vote: conflict is usually present. The
interest may not be a direct pecuniary one. There may not be a
legal conflict of interest but lets talk about impropriety and its
appearance: impair her activities:
a. Words are important.
b. Youll see a slight difference in attitude: might
reasonably be expected to impair. MA: would
reasonably be expected to impair.
c. Fed statute: might create appearance of
ii. Murphy (2003 WL ): Chairman of the zoning board of appeal. Next
door neighbor oppose to the application. Chairman has buddy neighbor
friendly with him. Should he recluse himself from voting?
1. CI: Statute: NO member of any zoning commission or board of
board of appeals shall participate any matter in which s/he
directly or indirectly interested in personal or financial sense:
2. Court: a personal interest is defined as personal bias sense of
fairness zoning officials in out states are required to possess: is
sufficient to require disqualification: at the end of the decision:
the fact that they were neighbors of the chairman does not
raise to level of impropriety -> judge decided it was OK.
iii. Supreme Court: same issues as well:
1. Scalias appearance conflict:
a. Facts: vice president Cheney was tasked by president
bush to check into energy issue. A task force was
created, Cheney was the chairman. When asked to
produce the minutes of these meetings, he refused:
executive privilege. 2 organizations brought suit that
ultimately went up to SCOTUS: we have the right to
understand that this group was deliberating and their
conclusion. This case was accepted by SCOTUS, Mr.
Cheney, longtime friend of Mr. Scalia (Bush v. Gore:
Scalia was the split vote). Why this case was pending,
Cheney invited Scalia on a duck hunting trip. He went
on for 4 days. His plane seat on airforce 2 was free.
Nobody raised the issue like Section 2 of MA (people
offer gift to people who can do things that affect them
is a bribe). There is a fed statute of the judges: judges
have to step aside where his impartiality might
reasonably be questions.

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b. Scalia ignore this language, substitute by would


reasonably. Went on and vote.
c. An appointment for life, back to the self, the person.
Whether they conclude their behavior might in some
way make people feel those people making decision
that affect their lives are not biased.
iv. Code of Ethics: it requires anybody who either volunteer or elected to
disclose all kind of things (value, predator, equity ownership in
businesses)
1. These requirements for financial disclosure require people to
make disclose. You can point to and say: I told you. So no
appearance of impropriety. Many places do not have these
disclosures.
2. Behavior of local officials: In this case
v. Recap: [IMPORTANT] Happen all the time but did not usually get called
out.
1. 36C: Article about Englewood NJ: has lots of industries,
residential use (high-end). This guy Perino, lives across this little
street from a huge factory for Unilever: get his permit to build
his building. Part of the deal to install 35 foot trees: as the year
went by, they want to expand: put loading docks right off his
house which require trees to be chopped down. Mr. Perino got
fed up, Im going to appeal this decision Btw, stop chopping
down the tree till this is resolved.
a. Secky, an attorney, go to guy in the community.
Personal lawyer of the mayor of this community. He
and mayor also investors together ina shopping center
and a taxi company. They own shares in a bnak in that
community. Mayor is the chairman of the bank, Secky
is the vice chairman of the bank. Banks president son is
the attorney for the planning board that votes on these
permits. Mayors vote on these decisions as well.
Several members own shares in the bank as well. The
borrow attorney was asked to write a decision: IS there
a financial conflict: He wrote: no problem, no conflict of
interest. They went ahead.
b. This bank was bought by Interchange bank and
suddenly the shares own by these people became
worth millions of dollars. Prior to the vote, Unilever
contributed 3 mill to the bank for their credit union.
The article ends with the following statements:
i. Perino believes all connections mischievous:
feel his claim baseless, suspicious. May simply
the way a small town works: it is. In any
community, can clearly identify folks who live
next door to each other, real morass of conflict
of interest. Depends on the community and
individual: problem, level of confidence: Up to

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ppl in community to decide how to handle this.


Often times, nothing is done -> bad feelings
about government.
2. Conflict of interest in exam questions [not in exam]
a. Bankers have relationship with many people. The
appearance of impropriety: dispute: where this guy
who wants to be in the sewage authority: turns out to
be a question on ethics: founder and director of a local
bank, large contributor to mayors campaign. Need to
be appointed by the city council. Another council
member works part time and own some shares in the
bank. The city attorney is the director of the bank and
is a major stock holder.
b. Exam question which of these people should recluse
themselves and why? Profs answer: ALL. But, how do
you get things done and volunteer
4. Legislative Immunity:
a. Folks elected are immune from suit, their motives cant be questioned unless
there is a violation under Section 1932 US Code: is the behavior of the local
legislature or quasi per outrageous, vindictive, fill with racial animus, retribution
so that they raise to the level of shocking the conscience
i. What shocks of the conscience?
b. Motive of a voting is irrelevant, only the decision itself can be appealed for
various reasons if it is acceptable. It does not matter what the individual
motivation is of the person taking such a vote. They cant be deposed. Cant
call legislator and ask: why do you vote this way: does not matter: it is the vote,
there is presumption that all these folks act in good faith.
c. And Derren: our supreme court here goes into great details how you cant delve
into mindset of a particular person of a legislative body.
d. Harry Joe case:
i. Got this guy, who is a partner in a law firm and elective legislator, he
believes that there need to be an active, moratorium on construction of
a building: moratorium: zoning or bylaw that would stop something
that would otherwise allowed for a reasonable period of time why the
community is figuring out how to deal with the problems.
ii. During a reasonable period of time, the community has the right to stop
the construction of the apartment building.
iii. This guy got momentum and voted for moratorium. His client built the
apartment building, decided to sue the law firm.
iv. Law suit complaint: negligently failed to inform, breach of fiduciary duty
to disclose conflict of interest. The decision has wonderful language:
our legal system: When these obligations conflict, legislative immunity
shield lawyer from liabilities.
v. Court: there is definitely a conflict but this guy is a legislator. He acted
in good faith, he is immune. The action of the municipal employee is
impugned to his partnership: they are immune as well.
e. RLUIPA:
i. American Islamic Center:

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1. Facts: Islamic Center wanted to build a temple. The Zoning has


to be changed. The legislative body refused to change the
zoning, brought a suit under RLUIPA. Therefore, it is a land use
decision covered by RLUIPA. Court: not, its a legislative act,
they are immune and you cant delve into their motives.
2. Other things, quasi immunity: for folks who serve on zoning
board of appeals who make judicial decision: fact finders: make
decision like judges are not supposed to make decisions ahead
of time.
f. Quasi-judicial immunity: the Droxel case: about an applicant for a rock quarry.
The application (Special permit) was denied, the applicant appealed. HE won
the appeal but was angry with the behavior of the board. He brought sued
under 42 US Code: Board ignored. One member he a brother who operate a
quarry -? Therefore, he would be biased. The permit has finding of facts: we
find it appropriate. IN this case, they allegedly found negative things, and got
this overturned.
1. Court: folks, you have the right to appeal and you did. TO
determine whether or not as in every particular land use, the
result was arbitrary, youre not gonna get into each persons
motivation, can only look at actual evidence: evidence that
shock the conscience -> we can have something to talk about:
you got everything you deserve but not going to go further.
g. Legislator, quasi judicial capacity: immune
i. Stop and Shop Reporter. He was one of the architects of the car:
competing with local businesses an drive them out. The hearing started
in one morning, reconvene the next morning. He went home the title of
it is: Stop and Shop blackmailed into approving
ii. What a lawyer has to do to present a case to a quasi-judicial body:
iii. When you prepare these cases, do want to prepare and maneuver:
explain that I have to anticipate a lawsuit. Convinced the only way we
would succeed: presentation was legal, not threatening, intimidated.
Here are criteria in your ordinance, in order for you to deny, you ave to
find the following.
iv. At the end of the day, he has quasi-judicial immunity, legislative
immunity: he did in fact announce his decision before all the evidences
are in: one could went to the state ethics commission and brought an
ethics claim against him. We need 16 votes if we brought this action.
Even if hes recused, we still need 16 votes.
5. Municipal Immunity:
a. Till 17th century, municipalities was immune: truck driver hit you, cant sue
municipality
b. MA: not immune anymore bc it is the same in every state. Started in MA with
the Whitney case: SC faced with an automobile accident. Next case we get: In
the case, the court points out vividly why the concept of municipality needed to
be refined and cut back: a person who has been run over can hardly be
expected. Goes on to talk about the following: if the activity of the municipality
is discretionary, then there still no liability. However, if one of the actors is

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implementing a policy that he been made and do so in a negligent manner, the


municipality must indemnified that person unless they were willfully negligent.
c. Statute was passed and conceptually, it said the following: a municipality is
responsible for the negligent (even gross negligent of an employee who is acting
in the scope of their employment). In MA, therefore you must indemnify that
person up to 100k $. IN Maine, its 10k. But in any state, there is an amount of
money if a municipal employee is acting in his capacity. Gross, willful negligent:
NO. For that, the employee must get their own lawyer.
i. Example: policeman stop somebody and you think a reasonable
likelihood that why they were drinking and you let them go -> wrong.
ii. SOL: will indemnify up to 100k. The city attorney will determine
whether or not the person was acting within their scope of authority.
Obligation on the part of employee to cooperate.
iii. Since the passage of the statute, two additional sections have been
added: Section 9 in MA: Enabling legislation. Community may
indemnify employee up to 1 mill. Another section (Section 13): if
community accept the section, community shall indemnify the
employee within their scope of liability up to 1 mill.
iv. Question: When you have an employee who was perhaps not negligent
but bordering on it : do you defend them? Depends on politics of the
community and the actual defense: if the person has a good case ->
they will defend.
v. Discretionary, what is not? Total immunity to no more immunity?

4/16/2015
1. Agenda:
a. Finish municipality
b. Talk about civil rights
c. Residency of municipal employee
d. Public records
e. Open meetings
f. Municipal real estate (buying and selling property)
2. Discretionary act of municipal employee:
a. Greenwood:
i. Town of MA formulate a decision to use telephone booth to pull of parts of
municipal parking lot to redirect where people park. A young woman trick
and injure herself. Parents brought suit against town, claiming negligence.
Town: not, that was a part of developing a policy.
ii. Court: It is immune from negligence because of the gov torts liability
because its decision to use the telephone pole as parking area was policy
making/planning (discretionary act that makes city/town exempt from torts
liability.
iii. Decision went on: line of demarcation rests on policy making, not the
implementation and execution policy. Court conclude that the execution of
the policy is not discretionary. So the definition is very simple: if a
governmental entity is developing a policy that is not subject to a claim of

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negligence; however, the execution of it is and was not done properly.


Think of a policeman who directing traffic. S/he is trained but there is
discretion that comes into lots of actions that police take. That is where
most of cases line: did the policeman make an improper or negligent
decision. Was it something that part of the discretionary act or violation of
the policy already set.
b. Chiao Yun Ku (Framingham)
i. Has a policy that its plowers cannot work more than 12.5 hours for one
shift. There is one accident for an employee who was on the 25 hours: it
was a snow storm, we have to make a decision to allow these people to
work more: discretionary function on their side.
ii. Court: Not, there was an established policy and you violated. You have to
change the policy.
c. It was taken away with limit. However, fast forward to today with all kinds of
physical problem, it is being shift away: Subject matter is sewage in the basement:
i. 1935 Hanson v. Ortoborn (Iowa): City made a decision to install a new
sewage system. Also decided to maintain it. Every year, there was flushing
and check on. They did not have enough money, decided not do to it. His
basement was flooded with sewage. Town: we did make this decision;
however, our decision not do to it was a discretionary operational decision.
1. Court: Decision was not operational. You made a policy, if you not
gonna do, have to change the policy.
ii. Idaho 2007: exact same thing: sewage in the basement, decision to install
the system: Real enterprise
1. Court: it was a non-operational decision, a policy decision. Just
depend on facts, time of the cases and what city/towns what to do.
d. People battle over overlay: public duty principle. Duty of municipality to take care
of people in the community
i. Remit cooperation v. City of Chicago (509 Feder 3rd 860): Town/city check
the fire sprinkler system in all parts of Chicago. To do so, you have to turn
off the water. Shift was over, folks went home, did not put the water on.
The entire building was destroyed. Brought suit against city for negligence,
failed to perform your property.
1. Court: policy supporting this public duty rule is the governments
duty to preserve is owed to the public at large. Indeed, if
municipality is required to meet, enormous public resources would
be diverted.
2. Have a trend: lots of folks in Boston file claim that plough his their
car. City of Boston dismissed, using this defense: we cant be
responsible for every single thing that happened.
ii. Young lady injured before participate, the school requires parents to sign a
relief of liability -> if coach is negligent, the city would not be liable. In fact,
parents brought suit and the relief concept was held appropriate bc this is a
non-essential municipal activities. They are everywhere. As budgets get
tighter, city and town try to balance by passing on to the tax payers
additional fees in order to participate in non-essential activity.
iii. Gonzalez v. City of []: own a piece of property, public sidewalk in front of his
house, was not in good repair. She tripped and hurt herself. She sued the

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city and this guy Wang: a residential buffer to the public driveway is
responsible for maintenance of the side walk. Defense was: state
law/home rule preemption: this ordinance is unconstitutional, you cant do
this.
1. SC in CA threw that out: there is no conflict under state law.
2. Then relative to this poor guy who has to participate in maintaining
a public side walk: provide additional response of liabilities for
maintenance of sidewalk, no exhaust citys liabilities.
iv. For Northeast: community has to shovel: not enough money in the budget.
They still do that bc its a public issue but only do certain route, the other
are left. Require owners to shovel within 36 hours of the snow storm.
Troubling for elderly people. City/town set up a place where kids can come
over but you have to pay them.
3. Legislative, quasi, municipal immunity. Hard of municipal immunity, there are employees
who either act not in their capacity (e.g. police in uniform but was off duty) but more
importantly, noxious, nasty, for willful act, city/town not liable. This is individuals
responsibility. They have to get their employee.
a. If you have a municipal employee in a union and they do one of these horrible
things, does the city let them hang out to dry: 90% of the time questionable, city
attorney: is it OK/possible to defend this people? Is it possible this is a willful act?
They will defend them bc politically it is better to do that.
b. Will talk about horrible acts in terms of members of board in order for the person to
have a claim against a members of discretionary permit granting authority the
constitutional claim are violations of due process, discrimination, basic rights being
denied in vicious discrimination, intentional torts. Actions are brought under fed
law (1983), state: chapter 12, section 11(h) and 11(i).
c. Environment case:
i. Huge delay, ultimately the subdivision was denied. Applicant brought suit
against the planning board and they claim procedural irregularities, racial
enemies and intentional act to delay and frustrate subdivision plan. This is
classic permitting land use planning process.
ii. Court: every appeal by a developer from an adverse ruling necessarily
involve some claims that the board exceeded authority in some manners
often for reverse opinion. Not enough to give these state law claims
constitutional labels, rather, take a look at body of law about granting
permit. If there is rational basis for the decision, findings the appeal no
matter how much you think the motive of the decider are terrible, you
appeal the decision and try to prove it was whimsical, capriciously,
d. What is they really behave terribly
e. Theson rich case:
i. Developer who wanted to do a 40B (affordable housing if city/town has not
reached 10% of its housing stock available for low income folks). IN
Burlington MA, did not want this 40B.
ii. Selectmen went and made an eminent domain technique of the parcel
(taken for public purpose/use). Once its taken, there is 3 years period
during which the owner of the property has to dispute the payment. The
taking itself is not appealable unless it is for public purpose. This developer
brought suit against the board of selectmen: this is illegal taking and you

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guys acted in bad faith, behave to the point where your action and
comments are coercion. There was threat, intimidation.
iii. On trial level, the judge agree: what the board of selectmen did, is nothing
more than discretionary(?) boards do: you have to appeal their decision.
Town of Burlington: go to do because somebody forgot under 40B statute,
the board must act within a certain period of time (40) days after they close
the hearing. What happened was the SJC: no, this is not a civil right
violation. What they did not raise to level of shocking conscience. We are
throwing the taking out, you failed to act -> 40B real constructive [] for your
failure to act.
f. What is not raising to level of shocking conscience: about a subdivision, same
activity
i. What not raise to the level of shocking conscience: court: require by
infringing property is the use of governmental power for purpose of
oppression or abuse of government power that shock the conscience or
action that is not rational not key to legitimate interest [very lofty
statement]. Mere error on the govs action is not enough. Merely being
wrong is not enough. Neither merely acting in excess of authority enough.
Neither is being arbitrary, bad faith, its government power being used for
purposes of oppression, use the gov power to shock the conscience, action
irrational [civil right violation]. It never happens. Rarely anyone succeeds.
ii. Back in 2000, Willowbrook:
1. Village was developing, town council was required to give: came to
Ms. Ollick: we want a 33 feet easement. She: not fair cause
everyone has to give 15 feet. Youre trying to get back. She finally
negotiated 15 feet, but angry at the local people She sued under
civil right statute, went up to the SCOTUS.
2. Breyer:
a. The allegation quite apart from sufficient to state a claim for
relief under traditional equal protection analysis. Zoning
decision will often, perhaps almost always ,treat one land
owner over another.
b. This case does not directly raise question simple instance of
faulty zoning would violate equal protection clause. Do not
feel concern about transforming a run of the mill zoning
case into a constitutional right. A valid basis for doing this.
g. Case of Puerto Rico 448
i. Loan, governor of PR threaten all kinds of things. He did not get the loan.
He sued the governor under 42, US Code.
ii. Court: no scientifically precise formula for determining this act is
sufficiently shocking, analysis varies with subject matter. To shock the
conscience, officials: conduct must have truly outrageous, uncivilized and
intolerable. Mere violation do not arise to shocking behavior.
h. The best case: Mongeau:
i. Building inspector (Reed), Mongoue land was taken by ED. He got the right
in form of promise that he could buy a 16-80 foot building. He want a
building permit. T he building inspector did not like him. He said to Mr.
Mongeou I cant issue permit because you do not have frontage under

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zoning ordinance. You need to go get a variance (served I cannot do what I


could otherwise do by right). He gets the variance. City inspector: you need
to go to another board and get site plan review, and an order of condition
(something from the conservation commission). He went to the board,
conservation commission, back to Mr. Reed.
ii. Reed: Im organizing a group of people who are going to appeal, will delay
you even further. People appeal, Reed was behind it.
iii. Because of the delay, Mongoues variance lapses (1 year). He has to go back
to board of appeal to get a an amendment of the variance.
iv. Reed: still want you to make the payment to an unspecified account. If you
dont do that, I wont get you. Mongoue brought suit.
v. Most of the behavior of Mr. Reed was not so outrageous that it shocks the
conscience. Allegation before issuing the permit might shock the
conscience but not there. The person doing the activity in order to
indemnify by the community and he sue the town of Monborough and this
guy individually. Person acting this activity must have been do so under his
official capacity: no by law in the town requiring this. He was doing it on his
own. Town was immune. It did not shock the conscience.
i. Firefighters: Association of Cleveland Firefighters v. Cleveland:
i. Violate to force us to live in the community.
ii. Court: it is OK to do this by the town using the concept: city and town ahs
the right to require public employee to live in the town because they have
the expertise immediately available in order for them to their function.
Residency requirement is not unconstitutional (e.g. Boston).
j. Some states require immunity insurance.
k. Basic rule: city and town are immune unless negligence up to certain limits. MA:
maybe or shall be liable (shall be bc of collective bargaining). Lots of non-essential
activities that are going on the community, based on park, playground. This
happened was en
4. Affordable Housing:
a. CDDB: if it is used to create affordable housing, restore housing for affordable
buyer. A lot of communities will appropriate money to purchase home and building
to be made available through reasonable price. When they buy this property, they
are required to sign an agreement. In the deed it says: property can only be sold to
another public servant. Price can only be up. One way city and town try to address
this problem.
5. Environmental Issue
a. Coastal wetland v. Inland wetland: C: your property is by the ocean, coastal back,
more prevalent is inland wetland: boxes, swamps, lands that are, ponds, lakes, river
stream.
i. E.g. Have a pond, hire an engineer, approach Newton Technology Parking.
Get environmental engineer. Measure 100 feet and within this 100 feet, if
your client want do to any kind of construction, they will do it if they comply
with 100 details of scientific measurements. Fill out notice of intent.
Assuming everything meets conditions, they will issue order of [], folks who
want to appeal such a thing may do so to a state agency. This department
will view what local commission did to either reject or issue superseding
order.

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ii.

Another part of this that happen in mid-80s If property is also near river
(can be a stream of Charles river), under the river act: an amendment to the
wetland act: you measure the mid line of the river and if what you want to
do is within 200 feet of the midline, your client will have to deal with 100
foot and 200 foot, must present to the commission to convince them that
the only way you can do project you want to do is to do this.

6. Public records:
a. What is not public record anything presented to a governmental agencies or created
by that agency or individuals subject to certain exception is a public document: the
baseline.
b. IN MA: Chapter 66, exceptions in MA: in chapter 4, section 7 (section when talking
about A-C privilege). It parallel the statute: 5 US Code Section 552(b).
c. What is a public record:
i. Def: all books, papers, maps, financial statement etc. made or received by a
employee of any city or town unless such fails within one or more
exceptions. Have to assume everything is public opinion (similar to
assuming that no client-attorney privilege exist).
ii. Custodian/supervisor of public record: when a person wants public record
of believed withheld from him or her: that person must in times when it is
not totally clear if the exemption applies, have to make a balancing decision:
e.g. publishing salary , the custodian has to take a look at what going on in
the community, if there is one exemption and custodian believes that there
is an investigation, they can decide a public right to know. Firs exception:
criminal offender record, hospital record, juvenile record. Create real
problem for school.
iii. For years, the custodian of record was being forced to decide when there
perhaps something going on in the school bus: can we (city/town) disclose if
they have a crim record? In 2003, where schools will have access to and
obtain all crim record or perspective employees, who may have directed
unmonitored contact with children.
iv. Salaries: Opinion of the city attorney in San Diego: are the salaries of
members of mayor staff and city council public because I want to see them.
Question: are these salaries public? Answer: Yes. The way the decision is
written is good: all about if there is a lawsuit, what may the court decide.
He said: it is highly likely that the public interest is greater than the
individual right of privacy. An assessment of public interest is made by
custodian of record on a case by case basis: its a balancing test that must go
on.
v. Next exemption: deliberative process: the definition of that exemption is as
follows: intra agencies memoranda, letters relating to policy position being
developed by the agencies or legal advice to legal agencies are exempt but
this exception does not apply to reasonably completed legislation or
studies/reports on which the development of the policy decision has been [.
1. Not public until the lawsuit is over. They are public documents and
can be requested to be received. Lots of communities dont know
that or they choose not to know that.
vi. Best case: Larasa:

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1. Develop a case of immigration, finally make the decision in the


written policy. Reference is made from Department of Justice. IN
addition, he quotes another parts of decisions f justice department.
DOJ refuse to turn it over. They had to at the end of the day
2. Argument: Read it publicly but the city and town attorneys get
afraid if someone is appealed a piece of legislation, they would have
given away their case.
3. But: the public has absolute right to understand, including your legal
advice: understand and make sure your advice is correct and be
prepared to defend it.
vii. 48D: Bush Cheney: governors keep calendars who they spoke to. They
dont want to tell anybody whom they met its private. Other folks believe
they have the right to understand the deliberative and the mind of the
governors who they talk to. If its during a process that something is being
created as a policy, once its said, we want to know your calendar. Huge
fights over it. Opinion is quite well-written.
1. Since 1991, public record statute has been harnessed over the
country, giving folks more access. As part o the deliberative
process, people have the right to know whom they talk to. The
deliberative process: must have some reasonable limit.
d. Emails: Dont email local people. The email are public record, discoverable. Dont
want to be deposed in a lawsuit, force to go through every single line of them. Use
the telephone.
i. Be careful, they are public documents. What most public officials do at the
end of the email is to have a disclaimer: when responding, please be advised
that he may be considered a public record. Maybe because its not in the
statute, its an opinion of the AG.
ii. An email like any other document is a public document. Allegedly a person
in the public can request a copy of an email sent by a public official.
iii. Depends on community, there are different ways to handle it. Some have
very specific rules. What supposed to happen is that these emails are
supposed to be printed out, and handed over to the city or town clerk who
keep them for two or three years. Then it is reasonable to discuss them.
This rarely happen even though there is disclaimer.
iv. Hillary Clinton:
1. Those emails a couple of years ago: some cases: using a personal
computer on government business was OK. That has changed: any
kind of correspondence between you and the city councilor, if it
eliminates from your personal emails, they are public documents,
discoverable and the public officials cant destroy them.
e. Documents per se: 42 E
i. Question was asked of a city attorney whether a report from a law firm to
the city council about investigation about financial act of San Diego, even
though every page is marked confidential: whether that supposed
document must be produced if there is request.
ii. City Attorney: Yes First there is no client attorney privilege bc was
discussed openly in an opening meeting. IF there was, it was waived.

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Second, there became a public record of this -> therefore it is a valid


discoverable public documents.
iii. Other things:
1. Investigatory materials (e.g. study of police): those documents
would not be in the public interest to disclose. However the
deliberative process: once that particular crime is over, those
reports are discoverable.
2. Trade secret: commercial info. Lots of time they are asked to do
this, they will voluntary offer opinion on the basis of confidentiality
3. Bid and proposals: There are 2 kinds of offering that happen with
public agencies, governmental entities: a bid: are advertised for
goods, services, plowing contract, building sidewalks, etc. Due by a
certain date, they are confidential until the date they are open.
Logic is competition. Dont want other party to come and see what
other party has bid. Once they are open, they are public. For
professional services. If want to renovate school, will craft a
request for proposals with criteria and will go out to bid. With bids,
the procurement statute require the community to choose the
lowest bidder
4. Real property appraisal: in municipal real estate, frequently,
municipalities sell property and sometimes they take property. The
city and town will hire an appraiser to get an appraisal of the parcel
of land -> know what to tell for until the deed is conveyed (over),
that appraisal is confidential. If want to discuss, that is the reason
to go into closed session. It is confidential until its time to close the
deal. Only when they are taken to several parcels of land. E.g. the
convention center of Boston is built on 8 separate parcels of land.
One owner of the parcel of land waited until each of those parcels
have been sold and the deed conveyed: said: I want to see all of
those, unfortunately he lost.
iv. When a public request is made, here is how it works:
1. If in fact it is a public document (custodian does not need to figure
out), person can come in, ask for document: not all the time.
2. Statute: when an request is made, it should be in writing. The
holder has 10 days to respond. To bring it, website 40E and 50B
[Just for Fun]
a. HAL Want to get some documents: requests to the state to
the supervisor report for the state. Oct 2001, it took 6
months for them to respond. The response was: never saw
them.
v. Metadata: coding underlined your emails/documents: There are various
versions of transactional documents: Lawyer 1: this is the way it will be
written, etc. You send the final documents, when you send that, the stuff
will appear on the screen. Often time in litigation with a public document: I
want the metadata. Was able to find 2 cases: 2009 and 2010. One case
from Arizona says: metadata is not a public document. The other one is
from WA: it is public.
7. Open meeting: 48G

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a. Where a member of the city council prepare the document handed it out only to
specific people, not everybody. When meeting over, they took it back. Other
members want copies of that. Creator of this document did not want to give it out,
claiming it was never entered into official record. Nonetheless it was proffered in
public to members -> it is a public documents, disclosabe, producible mostly
because it happened in open meeting.
b. Open meeting:
i. Involved in an open meeting lawsuit.
ii. Classic definition of what is an open meeting
iii. Email (remember theories of local/state gov. Not supposed to deliberate in
private; your deliberate process has been completed)
iv. Chance meeting: definition in state statutes but public officials have a life:
they start talking about issues that happen to be current. Two members of
5 members of zoning board of appeals where the required vote is super
majority (4/5) meet talking about application for variance. Two of them can
easily defeat the application bc it wind up with 3/5: is it a meeting?
c. Exempts:
i. Town meetings are not open meeting:
1. Philosophy: everybody in the community is a member of the town
meeting, there is no reason to open it to.
2. Town of Lincoln: want to a program about this, knew in L they
would have a town meeting because they had budget problem, may
have wanted to cut. Called and said: we are coming to the meeting.
Town managers: you cant come, went to his town council: you can
say that they cant come bc town meeting is not open.
ii. Site Visit:
1. In every land use matter gotta walk the land: not supposed to talk
to each other, ask legal questions (this would establish the
meeting). Difference between town visit and meeting.
2. Finally, our state legislator dont have to have open meeting. If they
dont want you to come, they dont have to see it, its all private.
Exempt from open meeting law (why? No idea).
3. Town in Newton: tried forever to make a requirement that
legislative body has open meeting: never happens -> not an open
meeting.
d. Open meeting: A meeting is any corporal convening and deliberation of a
governmental body for which a quorum is required in order to make a decision in
which a public business has or advisory power (dont have to be the final vote
taker), not include site inspection, town meeting and the state legislative.
e. Site Meeting:
i. When there is a development project, the chairman of the community
would usually say: we will have a site visit: the public does not know about
it, what happens 9.9 times/10, everybody finds out about it. People
monitor every move of people who make the decision. They demand to
show up and to be a part of the decision: the elected officials will say to the
city solicitor or town counsel: I think youd better come too. BC we are
politicians, we better invite: turn into not only open meeting but public
hearing which was never noticed. As a result, if you are appealing, if

95

something like that happen, you have an absolutely appealable and


thorough a process issue throw out decision. The standard rule should be:
notice (you public notice of an open meeting).
1. Difference between public hearing and open meeting:
a. PH: is required in some form during a zoning process. The
conduct of a PH which is open to anybody is notice,
advertise, mailed within certain distance. Anybody who
appeals have the right to speak.
b. Once the public hearing is Over, the hearing is closed. After
that, people who are handling the land use stuff will discuss
it, but it has to be in an open meeting. Members of the
public can come and listen. OM is the opportunity for the
public to observe the deliberative process.
c. Example: AG of CA: wrote about site visit. In CA, it is except
from being an open meeting:
i. These gatherings are informal derivative, fact
finding decision.
ii. I dont care if they are exempt from the statute,
they are meetings, open to the public
d. Only exemption from having an open meeting that you
need to know about:
i. To discuss litigation pending or threatened or to
discuss public bargaining. The other ones are like:
1. To discuss reputation, mental health other
than competence of a municipal employee.
2. Discuss investigate criminal charges,
appraisal, interviewing applicants, trade
secret, proprietary info
a. Once toned down to 2-3 applicants,
must talk about in public session:
often times people withdraw their
names.
e. District attorney for Plymouth county: a very common thing,
was discussing a rubbish contract: because they were
getting legal advice, they decided to go into close session.
You cant do that: state statute: Folks went to the district
attorney who filed suit against Board of Selectmen and
won. The district attorney frequently get complaints and
sometimes the committee of the board act egregiously.
Unfortunately, in this state and in most, when theres a
violation of the open meeting law, there is no penalty
financially or others: Often times, slap on the wrist.
i. Shrewsbury MA: board of selectmen desperate to
discuss salary. Not reasonable to go into : spoke to
their town counsel. When we public the notice, we
will go into to discuss collective bargain strategy.
They ran into the executive session, they talked
about sick time, salary. Some folks file the

96

complaint: give me the minutes of your executive


session: you are supposed to give records: they did
not give them anything, finally figure out whats
going on.
2. Open meeting applies to little forces, study groups. E.g. Levine:
zoning group: 6 people to discuss. Have to notice everyone of our
meeting to the public. Shockingly only 1 person has ever shown up.
He knew that we are going to make enormous changes and
recommendations to the zoning ordinance.
3. Chance meeting:
a. Most folks at local level believe their action would be
reported at the front page of NYT.
b. This section shall not apply when a chance meeting or social
meeting when matters related to business are discussed so
long as no final agreement is reached. If there is a meeting
or gathering and thigs are discussed but no action is taken,
thats OK. Those of us say: it does not matter is there is
quorum. Any discussion is furthering a thought process
they should not discuss anything except in an open meeting.
c. No chance meeting shall be used to circumvent. You can
have these chance meetings but we rely on yoor good faith
and your trust on you.
d. Harking back to conflict of interest statute: suppress wrong
doing: one of the basis: we cant rely on good faith of the
appointed people.
e. A case that elaborate on this: is from Mississippi (Garnesh
River State publishing v. City of Jackson):
i. Dysfunctional, hire a consultant, set up a retreat,
learn and improve themselves. Going into this
retreat was 6 counsels. There was no notice of this
gathering. The newspaper brought suit: youre
violating the open meeting law. Court: No because
were not deliberating. We dont have a quorum of
council: the fact well gonna talk about stuff is
irrelevant. Language: Even though there was
quorum but we did not take any action, that OK.
Court: no you voted that bc you could have. Certain
principles of a free society should be protected.
ii. Cities, towns, states are passing interesting
amendment to their open meeting law statute. The
trend is any getting together is a meeting. Some of
them have passed statute, call those constructive
meeting. The trend is these are all meetings that
should not have happened.
4. Emails: Any city council have group emails They are innocently
created sometimes to set up date of BBQ or parties but they are
used for transmitting ideas. Thats where these boards run into
trouble. What happened on a fairly basis is the members will shoot

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an email: Can you believe what alderman So and so is thinking


about X? That person responds and copies the others. Before you
know it, you have multiple dialogues going on:
a. Thats a meeting, violate open meeting law.
b. However, we have Vicken case: all about where court focus
and members of these boards get some education
sometimes: Concept of stimulated.
c. Beck case is all about emails back and forth. Did they raise
to the level of the meeting? None of them was
simultaneous. Rather, the shortest time period was 4
hours. Emails are public and have to reveal all of them. Bc
of the concept of Simultaneously and meeting is the
meeting of certain people -> not a violation of open
meeting law. But the exchange is public.
d. Tip: If you are litigator, appealing decision of state or local
board, very frequently this is a way to attack their final
decision. So, town of Raley: passed a policy that banned
email between officials to discuss or debate an issue. They
can use email for housekeeping, date, with constituents but
not to have a conversation. Rouley: not matter if what you
do in violation of this policy is not simultaneous: Even no
simultaneity, you can still violate. It can be the next day.
e. Sometimes, what they put at the end of email: this is
intended one-way, not discussion. Any response should be a
new email.
f. Boston redevelopment authority invited all members of the
Boston city council to a meeting. The meeting was not
noticed, the subject was urban renewal section of the code.
So some folks in Boston found out about this, went to public
attorney: they are violating open meeting law. District
attorney said: tell your folks they are violating, everybody
was invited. Not matter everybody goes, its a meeting.
Both BRA and city council make sure that there is no
quorum of both boards. When one party walk out for
another to go in, there would be brief of the discussion.
When a matter comes up for vote, there would be 20 mins
discussion, 3 hours pause: went into the room to discuss,
came back and vote. Deliberation was outside public view.
i. SJC:
g. 49Q: Texas: same thing happen in Boston. Irving walking
quorum meeting:
i. The spirit behind the law is simple. We paid the tax,
its our money. About having discussion on fire
department issue. Sometimes public meeting bring
a level : members of the council never has majority
of council members, would have been voted a time
consuming matter, public would have to be
notified. Its everywhere.

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f.

How city and town by itself buy and sell real estate
i. City and town look for places to build schools e.g. If there was a decision
that a new school must be built: must publicly advertised the public purpose
of what they are looking for. They got responses. BY 2/3 votes of legislative
body, they can vote to buy this piece of property. Not determined by the
offeror. Parcel of land will have a valuation that assessor attached to it each
year. Procurement statute: statute said ou take the most recent 3 years
evaluation: price can pay.
ii. Selling a piece of land is different: there are parcels of land and uses that
community dont need it anymore. Often times there are public works,
building, through conciliation the community does not need anymore and
want to make some money.
1. Statute: department or agency who controls the parcel. The
department tin charge declare its surplus, offer to reuse for any
department in the community. No taker, city and town is free to
sell the parcel.
2. Because these formal municipal; uses are in neighborhoods, the
ordinance and bylaws always say: when a property declared surplus,
city must form a joint advisory: you want whatever reuse to be
acceptable to the neighborhood and whoever buy this property wil
understand: public use, it does not have a zoning district -> cant be
a office building, 5-story building. Whoever buy the property has to
go through a re-zoning process. This group is formed, those parties
interested in buying the property will come and meet with the
neighbor. This is what were thinking. Based on this use, this is the
value. Neighborhood will come to a determination, make a
recommendation to the city council and executive: we urge you
choose this buyer at this price. No obligation to follow but they will
often follow bc it would help them with getting approval.

4/21/2015
1. Housekeeping
a. Will do Tuesday + Wednesday (same time)
b. Thursday+ Tuesday: land use planning and zoning, how it relates to comprehensive
plan.
2. Overview of zoning ordinances, bylaws and how they structure.
a. Zoning maps ordinances: Ultimate source of interpretation is inspection
commissioner or building inspector will make determination of what map is correct,
what interpretation is correct.
b. Check out the history of the places to make sure the map is correct.
c. Every community is divided into districts, different names. Each district is divided in
the text into 2 parts: First is those uses that are allowed in that district and second
is uses allowed only through discretionary permits (conditions built into it to make it
comfortable for the surrounding community)
d. Zoning ordinances and bylaws are not necessarily codified. Not every item that has
been passed is in the book that you might buy: have to ask: is there an addendum,
how do you find what has been passed since publication of the ordinance?
e. Vesting and non-vesting:

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f.

i. MA is a non-vesting state. Most states are non-vesting.


1. Non-vesting: if you already have a building permit, special permit,
variance, before those permits have been issues, there is a
publication of notice (mechanism by which a proposed change in
the zoning is to occur statutorily public notice. Discretion of the
change if published in the newspaper e.g. Globe or local
newspaper). A change of zone or a change in the text. If after that
publication, that change occurred, it will apply retroactively. If your
client has not received the building permit theyre not gonna get it if
what they want to do has not been affected by the change. If they
have the building permit and there is the change it will be revoked.
2. A vesting state: when you apply, you become vested in the
ordinance or bylaw, text that existed at that time.
3. Two ways that you can still save your client from this problem:
a. The use that your client want to put in the zone: a proposed
change to the text where that use will not be allowed if
prior to the vote, under subdivision control law (pretty
general), your client files a parameter plan (surveys) plan
map of the parcel, the use provision of the zoning bylaw or
ordinance on the date that it is filed will be vested: any time
prior to the vote that will eliminate the use, the use exist
and your client will put the use in there with a valid building
permit.
b. The other way to do it is through a definitive subdivision
plan. Nothing more than: all of the lots: if that is the
purpose and the town/city has published notice to change
the lot sizes before the votes, your client cant proceed for 8
years because you will have frozen not only the use, not
only the dimension.
Every zoning ordinance/bylaw is set up this way: Newton Ordnances Chapter 30
i. Here are the allowed uses in this zone, subject to density and dimensional
controls. If one of those is the use you want, you will then go to the
dimensional charge. If it fits parking requirement, then it fits the dimension,
the parking bylaws/ordinance will say: if all 3 of those work, you are eligible
to get a building permit.
ii. Special permit Conditional use: type of thing this community has decided
through comprehensive plan and study of the city: these are ones that can
go there subject to a review by the discretionary board, allow to put
conditions on the use: hospitals, hotels, laboratory. We have tendency to
have a larger impacts on the community.
iii. Dimensional chart: Each kind of use has its own dimensional limitation.
Theory is: as of right (uses allowed): require more time, money, discussion
to the lenders.
iv. Sometimes it turns out use is OK but in fact in order to get the loan, it has
to be a bigger building. Look on this chart, perhaps want 6-story building.
In addition to special permit, you will have to change the zone as well:
legislative + discretionary process, usually take in tandem, sometimes

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community will require you to change the zone first, then get into special
permit.
3. Building permits are often issued without public notice. Some communities have in their
bylaws requirement that has to be made. The way it work (MA), but model is consistent
everywhere. IN MA: Chapter 40A: a building permit can be appealed with 2 steps: you say
to the issuer (commissioner) you issue this in error, please revoke it. S/he has 40 days to
respond. That person then has the right to appeal to zoning board of appeal in MA. The
zoning board of appeal will hear the case and they can by a super majority overturn the
issuance of the permit. IF only 3 votes to overturn it, its not overturn.
a. Who has standing to appeal these things? The rule is the following:
i. Person who wants to appeal must do so within 30 days of actual notice.
Actual notice (they knew permit will be issued) is pretty rigid.
ii. Standard for the judge: The person could they have known or should they
have known about the building permit. The further away in time from the
issuance of the permit, the less likely you have standing to appeal.
b. Another twist: Chapter 40A section 7: when you all help start helping
homeowners/developers: I look at the building: that allegedly have all the building
permits, violations, sometimes you will find the following:
i. The use went into the building was illegal and somebody somewhere
messed up. Chapter 40A section 7 : if after 6 years, if after illegal use, that
use cannot be forcibly removed, they become illegal uses that cant be
removed from the neighborhood/area.
ii. A non-conforming use is one that went to the building legally (comply with
bylaw/ordinance): pre-existing legal non-conforming uses.
iii. Sometimes, will find building that was built erroneously without building
permit. Most community requires as built survey. Some communities dont
do that: you have buildings that were used illegally. What happen is after
10 years if that building, nobody has appealed, it becomes a building that
cant be forcibly removed. Not a preexisting non-conforming structure.
There are mechanisms to alter these structures, make them bigger, add on,
make it more current with the market: those structures and the uses cant
be expanded. Often time, in residential housing market, people buy houses
dont get into zoning stuff and they find out that this is an illegal house,
cant be removed but if they buy it with the idea of adding on things, they
cant do it. Very important to check this building [...] (e.g. raising roof)
iv. Can appeal within [] days + 6-10 year thing.
c. Gallivan: stands for principle if a person knew and could have appealed within 20
days of the building permit, they did not, they cant then use this 40A section 7
because they have 10 more years to go. Its one or another. They cant just choose
which way they want to do it. People do get vested right in their property, if a nasty
person knew : they could wait 9 years and start a suit for a forcible removal
(demolition of that house).
d. Delprete case:
i. Have this man, who has this building permit, was revoked. Tried to get a
variance (all about the land), it was denied because he has not enough
frontage. He tried another case to force the court to order a variance.
Court say they dont have the right to do it (they cant substitute their
judgement). IN response to another request, equitably I am suffering: this is

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unfair. Court: No. Appeal court (Feb 2015):t eh court sent it back to the :
cant be estopped from enforcing zoning ordinance or bylaw. A number of
cases allow equitable remedy. Court should look at: would the result of
forcing removal result in substantial hardship, has the landowner changed
his position on reliance of approval, is there any injury to the public interest
ii. It does happen + The only hope that a court on equitable principle allow
them to stay there [Very rare that the court can do so]
e. Sehos:
i. Property owners lost everyone of them. As of today, this man has to tear
down his house (in MA)
f. If you do your job properly, you are obligated to disclose that to refinancing lender.
4. Site Plan Review
a. Another by right process. In most communities with commercial, if its the property
owner still has to go through a local process of review. Not a regulatory process, its
purely a review and there are in every ordinance and bylaw a series of criteria that
the reviewing board has the right to look at.
b. Example:
i. Have the following plans specifically. These are the criteria: you have a new
office building, this reviewing board look at off street loading, screening of
parking area, put more succinctly and visualize: residential neighborhood.
Because the parking area go right up to the lot line, theyre concerned about
the headlight. They say: you need for have 6 foot and not 3 foot: that is
appropriate recommendation and the owner of the property has to comply.
What happens more often than not is the following:
ii. The review processes are often structured as review for change of the zone.
The procedure is holding a public hearing, notice is provided, they have the
public hearing, listen to everybody. BC its usually before the same board
that does these special permits, they forget what they are doing and start
imposing conditions that do not conform. You cant do that, that is
tantamount to a denial of a by right use.
c. To illustrate all of this. First.
i. Canton MA: about a restaurant, the board reviewing it deny the by right
use because they decide it was too much traffic. Court: you cant do that.
You created these zones, as of right uses. We presume you did some
homework and decide the street system could handle a restaurant in this
location. If your community has changed and became more populated, its
still as of right. You have to change your bylaw or ordinance. Site plan
review is not a regulatory process. Review your ordinance and bylaw, say:
20 years ago, this was fine. Today, a restaurant that has 50 or few seats is
OK. If you want more, we will put that in Part 2 (you have to get special
permit), help us to figure out how to mitigate traffic impact.
ii. Northborough case (Not to be read handout):
1. Stop and Shop allows use and the allowed zone comply with all
dimensional requirements. Site Plan review: what happens is
supposed to be their procedure a public meeting: they have 15 and
in the 15, they said now we want from S&S another traffic report.
2. S&S: we have enough. You have no right under your criteria to ask
for that. You have 15 of this, you can only have 1. They sued and

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they won. This demonstrate the lack of understanding of local folks


and local board of what a site plan review is. They dont make the
decision. They only review an as of right use.
iii. Skid case: in Braintree, no as of right uses. Every single use subject to
discretionary special permit. One application brought suit, it is
unconstitutional. Court: yes. Struck down the entire bylaw of Braintree
because of that.
iv. Greenfield: actually tried to do the same thing 2 years ago.
5. Special Permits (Discretionary)
a. A special permit is in part 2: uses that are allowed only after approval (not review)
by a special permit granting authority (Chapter 40A MA) Who has brought
discretion: take supermajority, a quasi-judicial function (board members receive info
and fax), must be a public hearing (people come, talk and give their reasons) from
the date of the close of that public hearing in MA the board doing this must take
final actions within 19 days of the date of close of hearing (vote + reason supporting
it): we find this and that that support a positive to negative vote
b. These 90 days period can be extended by agreement. If community try hard to
make this work, by agreement, 90 days can be extended. Sometimes, as a strategy
matter, they will say No. A lot of times, you have a loan commitment and a
timeframe and could only be good for certain period of time, dont get approval ->
that get all messed up. Your job if you do this is to extraordinarily organized,
competent, know you are doing with whom and get it within the timeframe.
c. Here is how it works: in MA the decision/permit is filed a day or so after in the city
or town clerks office. Some city/town will send notice that the decision that it has
been filed. An aggrieved person has the right to appeal within 20 days, if that
person misses it, they are out of luck (building permit: 30 days). The appeal is filed
within 20 days, if there is procedural irregularities (somebody does not get per),
there are 90 days building permit. You check the public notice and list because if
there is procedural irregularities, the lenders want to close it immediately. An
aggrieved person is a person who is a legal butter (property owner within 300 feet
of the edge of the particular site), has rebuttable presumption of standing: you as P
lawyer can challenge them. One of these pope have particular injury that is distinct
from everybody else in the community:
i. Have a client live across of the street from a condominium. They are afraid
they cant get out, voice their concern at the hearing. Nothing is done to
help them they bring suit. In order to withstand being rebutted, they must
have credible testimony, cant just speculate. If do that and survive, will
have standing. If just talk about it, the case will be thrown out.
ii. Other people in the community can try but they dont have presumption
,harder for them to maintain the standing.
d. Conditions are placed on special permit must bear a rational connection to the
permit. Heres the standard first by which a special permit committee review:
i. In Newton, the board of aldermen is also the permit granting authority. It
says they can grant permit if in their judgement public and welfare can be
served, subject to conditions, safeguards and limitations. They cant
approve this unless its in the judgment the use can be in harmony and the
application meets all of the following criteria:

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1. The specific site is an appropriate location for such use, structure:


BECAUSE [__]. The conditions that are imposed must have a
rational nexus to the project. E.g. they request and the board
impose as a condition that the developer has to put a traffic light at
the end of the condo drive.
a. There are 2 part test: Nollan Dolan principle:
i. Nollan the rational nexus: clearly mitigate the
impact of the impact.
ii. Dolan: rough proportionality.
iii. Here 3 units on a busy street, that developer will
probably say:
1. We should not have to pay for all of that
because there are preexisting conditions
(rough proportionality to the particular
project).
2. The use as developed and operated will not adversely affect the
neighborhood
3. There will be no nuisance or serious hazard to vehicles or
pedestrians
e. New Star Market:
i. Tried to get grant for city to Hammond Pond (its drying up because there
are pipes form Route 9 that emptied into the pond). Purify to hopefully
revive the pond. In this very area of the Star Market.
ii. To desire and install a permit, we estimate it would cost 130k. Star Market
agree to give money to the city. Concerned this would draft in a way that
on appeal we will not be subject to condition that (someone would say we
bribe to the city). There was an appeal. Star Market wins.
iii. How Levine drafted: Section 4: the purpose for which the Grant is to
mitigate prior and anticipated impacts from this Special Permit project in
addition to the approved, adequate mitigation from this Projects new storm
water system.
f. VSH case: [important]
i. Abuts Needham street (State road, city does not own). Vas case states
clearly these conditions in a permit in addition to rational nexus must be
things that can be accomplished within the control of the applicants. If
there are requirements for work on state road, that is illegal because the
developer cant control what the state does.
ii. City got nervous because abutting our property so as we were approaching
an approval week ago, they present us a condition: you will come in
Needham street. I said to them: I cant do that because even if we agree to
do it, what if state does not. Read the case. Wen and meet with the state:
we kind of thing we agree with this, in a few years: we can read this later.
We took on p. 5 that would satisfy the city and we agree with: will apply for
and use good faith effort to obtain necessary state permit to construct 2
crosswalks, access point prior to certificate of occupancy: we gave the city
what they were looking for. There is no binding obligation if the state will
allow to do it.
6. Site Plan Review and Approval (As of Right/By-Right): "Read": Document #52C

104

7.
8.

CASES: Y.D. Dugout, 357 Mass 25, Scit, 19 Mass App Ct 101, Prudential v.
Westwood, 23 Mass App Ct 278

9. Building Permits (As of Right/By-Right): CASES: Security Mills, 413 Mass 562, Carstenson,
11 Mass App Ct 348, The Teddy Bear Club (2004 WL 2212768), Lake Bluff Housing
Partners,197 Wis 2d 157 , Schey v Johnson, 2011 WL 5625751, Guaranteed Builders v.
Bylinski, 2012 WL 676222; Richardson v. ZBA of Chilmark, 2012 WL 2053200; Connors v.
Annino, 460 Mass 790; Designer Limousines v. North Hempstead 2011wl 2652887;
Gallivan, 71 Mass AppCt 850; DelPrete v. Ruble, 2013 WL 3477209
10.
11. We will get into by right (as of right what can be done in each particular zone, should the
use be allowed, dimensions, parking are satisfactory, how these building permits get appeal,
standard, process, rules relative to that. Will do another by right process (site plan review:
a review process, can be denied, takes the majority vote only). We will switch to
discretionary permit (Discretionary, uses that can go into certain area of the city or town so
long as the board and their review feels that theyre able to mitigate the impacts sufficiently
so that the use will be OK. Will learn about those conditions (essential nexus to the actual
use). Then will learn about non-conforming uses and structures (what they are, theyre
rooted in property rights, variances, soil, how you appeal these things: people do it all the
time, who has standing to appeal. Once they survive the attack, what is the trial (de novo
trial) and will get into legislative zoning (zoning map, text, how does it get changed, appeal
process). When you have a zone change, there are 2 basic forms of attack: illegal spot
zoning or illegal contract zoning. All within basic framework of: community, through these
processes development, the community try to get all benefits that they cant pay for
anymore. Tension is (1) cost; (2) is benefits being requested a benefit that is related to the
project.
12. In MA, we get a different way. Will talk about Lincolns fee, development impact fees, they
are all different. Will learn about zoning moratorium (actions taken legislatively to pause
whats going on in the community for a limited period of time, why community trying to
solve, create a comprehensive plan. These are used sometimes for reasons they should not
be used. Those attack them on basis of (1) unconstitutional taking of property (exclusionary
zoning):mechanism to put certain kind/class of people out of the community and (2) racial
discrimination.
13. Exclusion and inclusion zoning: Zoning that will incentivize developers to create affordable
housing for those who cant afford the market rates.
14. State of MA: Chapter 40B, how it is constitutional. How Christie is implementing it in all
sorts of something.
8. Zoning and Planning: Building Permits, Site Plan Review and Approval (As of Right/ByRight), Master Planning/Comprehensive Plans, Changes of Zone, Spot Zoning, Contract
Zoning, Special Permits (aka Conditional Use Permits), Nonconforming Uses and
Structures, Variances, Development Agreements, Standing, Appeals and Appeal Periods,
DeNovo Review and Trials, Subdivision Control (ANR Plans, Preliminary and Definitive
Subdivision Plans), Building Moratoria, Interim Zoning, Growth/Slow Growth, Public/
Private Partnerships, Imposing Costs on or Offering Inducements for Business Activity,
Linkage Fees, User Fees, Development Impact Fees, Exclusionary Zoning, Inclusionary

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Zoning, Anti-Snob Zoning, MGL C. 40B, 40R, 43D, Introduction to the Community
Preservation Act
9.
10. Building Permits (As of Right/By-Right): CASES: Security Mills, 413 Mass 562, Carstenson,
11 Mass App Ct 348, The Teddy Bear Club (2004 WL 2212768), Lake Bluff Housing
Partners,197 Wis 2d 157 , Schey v Johnson, 2011 WL 5625751, Guaranteed Builders v.
Bylinski, 2012 WL 676222; Richardson v. ZBA of Chilmark, 2012 WL 2053200; Connors v.
Annino, 460 Mass 790; Designer Limousines v. North Hempstead 2011wl 2652887;
Gallivan, 71 Mass AppCt 850; DelPrete v. Ruble, 2013 WL 3477209
11.
12. Site Plan Review and Approval (As of Right/By-Right): "Read": Document #52C
13.
14.
CASES: Y.D. Dugout, 357 Mass 25, Scit, 19 Mass App Ct 101, Prudential v.
Westwood, 23 Mass App Ct 278
15.
16. Master Planning/Comprehensive Plans, Changes of Zone, Spot Zoning, Contract Zoning:
Review/Scan: Documents # 54A (case study which will be covered after DeNovo Trial
below; I will provide a printout/copy of this document as a class handout when we discuss
the case study in class)
17.
18. CASES: Sylvania, 344 Mass 428, Rando, 444 Mass App Ct 60, McLean Hospital, 56 Mass
App Ct 559, W.R. Grace 56 Mass App Ct 559, Pheasant Ridge, , 399 Mass 774, Durand v.
IDC Bellingham, 440 Mass 45, Gosier , 891 NYS2d 788; B.A.M. Development v. Salt Lake
County, 2012 WL 1564340; Smith v. City of St. Louis, 395 S.W.3d 20.
19.
20. Special Permits (aka Conditional Use Permits): Review/Scan Document # 53; Read:
Documents # 55, A, B; 54B;
21.
22.
CASES: V.S.H. Realty,30 Mass App Ct 358, Dymek, 2006 WL 2848665,
Erickson, 2007 WL 2683534, Krupski, 2008 WL 4356095
23.
24. Nonconforming Uses and Structures: CASES: Titcomb, 64 Mass App Ct 725, Valatie, 610
NYS 2d 941, Rockwood v. Snow Inn, 409 Mass 361, Bridgewater, 351 mass 20, Orange, 68
Mass App Ct 358, Rosema v. Seattle, 2012 WL 279479; Sodarno v. Marks, 2012 WL
1345314; Bjorklund, 450 Mass. 357;
25.
26. Variances: CASES: Mobile v. Williams, 636 So. 2d 413, Oklahoma City v. Shanbour, 435 P2
569, Spinner,1998 WL 782004, Barbian, 2007 WL 3071484, Bjorkland, 450 Mass 357
27.
28. Development Agreements: CASE: NONE
29.
30. Community Benefit Agreements: CASE: NONE
31.
32. Standing: CASES: Van Renselaar, 58 Mass App Ct 104, Hanna, 68 Mass App Ct 420,
Denneny, 59 Mass App Ct 208, Barvenik, 33 Mass App Ct 129, Marshalian, 421 Mass 719,
Standerwick, 337 and 447 Mass 20, Reik 2007 WL 2949058
33.

106

34. Appeals and Appeal Period: CASES: Calnan v. Planning Board of Lynn, 63 Mass. App. Ct.
384, Silva (arbitrary and capricious), 2007 WL 2177931, O'Brien (notice requirements),
2007 WL 4125825
35.
36. DeNovo Review and Trial: CASES: Barlow, 64 Mass App Ct 314, Subaru, 8 Mass App Ct
483, Britton, 59 Mass App Ct 68
37.
38. Subdivision Control: CASES: NONE
39.
40. Building Moratoria, Interim Zoning, Growth/Slow Growth: CASES: Sturges, 380 Mass 246,
Collura, 367 Mass 881, Zuckerman, 442 Mass 511, Golden v. Rampano, 334 NY 2d 138,
Fitzgerald, 2007 WL 2319791, Monks 84 Cal App 3D Ct 75
41.
42. Linkage Fees, Development Impact Fees: CASE: Key West, 537 So. 2d 641
43.
44. User Fees (or Tax ?): Read: Document # 56A
45.
CASE: Emerson College 391 Mass 415, Denver Street LLC v. Saugus,
2012 WL 2432592
46.
47. Exclusionary Zoning, Inclusionary Zoning, Anti-Snob Zoning, Incentive Zoning,
Comprehensive Permits (MGL C. 40B), Smart Growth (MGL C. 40R), Community
Preservation Act:
48.
49. Read: Document # 58A (pp. 1-3
4/23/2015
1. Give me more:
a. Project in Boston: neighborhood request. As the citys budget shrink, more
dependent on developers to finance their sidewalk, path. One way is through
threaten litigation, Citi threaten developer to do things under the umbrella of
making the project work better.
2. Developing around the country:
a. Community benefit agreement: nothing more , not enforceable agreement,
negotiations between neighborhood representatives to create benefits, agree to
conditions that wont necessarily have any connection to the project (school
building). Present to permit building authority, if accepted, would include in the
project.
b. Statutorily, in 13 states, have Development agreement: if the state authorizes these
forms of agreements and the local community accepts the Enabling Legislation, this
is another mechanism to freeze the [] in stage. E.g./ - parcel, use allowed in that
zone in existence and a developer wants to do something there but not quite ready
to do it. At some point, that area may change. If there is this kind of legislation, will
enter into agreement with community to do certain things that they would
otherwise not obligated to do: sign, effective for 5 years, freeze the zoning in stage,
that person would have followed through if they choose but they are vested in that
particular site.
i. Those agreements would run with land.

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3. Next permit: Extensional/no-conforming structure or use:


a. This concept is vested in property right. Idea is somebody use the building or put
the use in there allowed by ordinance or bylaw. Since that time, the ordinance or
bylaw has changed, if build today, would not be able to build the same structure
and perhaps the use is not allowed. If it was done properly, that structure and
those uses become a pre-existing lawful non-conforming structure or use. If owner
of that property wants to enlarge that building or intensify/extend the use, have to
apply a discretionary permit. This is the result of this intensification of the use or
enlargement of the structure (substantially more detrimental to the neighborhood
than the existing). Court defer to the conclusion of local board saying that local
board understand and can interpret what the community needs and want, hard to
overturn one of these decisions.
b. Here is how it works:
i. If there is a building: parcel, structure inside, at the time it was build,
appropriate (right out to the lot line, no front setback). Today: there is a
setback . So, its not conforming as set back and it is bigger, a valid
preexisting nonconforming structure. The owner wants to expand it.
Depends on how the local zoning bylaw/ordinance is written, the conclusion
of the language is either its permissive or mandatory. Mandatory: the
dictate of the Snow case is followed: is want to enlarge, have to enlarge in
accordance with the now-zoning. If it is permissive, the community would
allow an application and may be approved for the following: they may take
an existing nonconformity and expand it. The rule overall is you cant create
a new conforming. Perhaps this new conforming structure and under the
zoning, want to add another story: cant add because it would create a new
nonconforming structure.
1. Star Market. Was able: property line is the front door, building is
built right out to the front line. Able to get this finding to extend an
existing of the non-conforming structure. In Brookline: want to
phase these things out, wrote: if a structure is decided to be
extended by 25% or more of its footprint: it is substantial: thats
how they keep these things from extending. It is hope to expire.
c. Nonconforming uses within the building:
i. E.g. children day of school. Totally valid when went into structure, owner
starts dancing. Neighbors: not sure, noise, traffic. Go to the local permit
granting authority: want to intensify this use and expand what we are doing
related to dancing. We dont believe the result is more substantially
detrimental to the current board. Up to the board to make a determination
is it OK to allow this nonconforming use, then they will make a decision.
ii. There are some cases that will help these local boards. The idea is you kind
of run it through a test. The test is called Bridgewater: a local board is
supposed to look at when look at intensification of the use to a structure: is
the proposed use reflective of the nature and purpose of the original use
which was allowed. IS there a difference in quality an structure of the use.
Financially, is the use different in kind? Very subjective. These uses
(nonconforming uses) if that dance studio for children go out of business
and stay away for 2 wars, the landlord put in a different use: that use is not
doing well, dance for kids want to come back. These nonconforming uses

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can be fade down: community changes the vision through master planning:
if that use has been abandoned for 2 years or more, its expired and cant be
revived. Other things that happen: community can phase them out of
existence bc this is what community see for its future.
iii. Galore: Midwest, community begin to develop, have a mobile home park,
has non-conforming structure and uses, often time, community pass a new
ordinance: based on our new plan, next time you sell our mobile home, you
cant do that.
4. Infectious invalidity:
a. Have a lot, the lot happens to be a non-conforming lot, meaning the land area is too
small for what the current zoning requires when the lot was established through
subdivision plan, it was conforming. The house built on it conforms (the right size,
line, distance). A young couple buys and want to enlarge it, go and ask for a building
permit. You have to go to the zoning board of appeal to get a special permit to
extend the non-conforming. But: its conforming and when we extend its still
conforming. His problem is if zoning board of appeals feel the result would be
substantially detrimental of the neighborhood. Because it was on a non-conforming
lot, the non-conforming lot affect the house, need a permit under discretionary
permit of the board of appeals.
5. A variance:
a. Has standard of approval different from public convenience and welfare : its
hardship, hardship related to the land, soil, topography: owing to circumstance
relating to soil condition, shape, topography, literal [] would involve substantial
hardship, financial or otherwise.
b. Visual way to remember: Vacant lot but it happens that it has a lot of leaches. Buy
the land, wants to build the house. The only way they can construct it so that it
complies with the setback is build it over the leech. Say: its enormously dangerous
to the neighborhood -> setback is a hardship to us. -> It is eligible for a variance.
c. There are also use variance: (1) You must find that in the ordinance or bylaw will
say: zoning board of appeals have the authority to grant them. If dont find, cant
get one in the community. In the ordinance and bylaw, in zone, part 1: you have
bunch of uses that you can use. Sometimes, because of the soil condition, the
owner of the property cant use the uses that he allows to use by right. E.g. soil is
too wet, foundation does not work, has to put in footing, if the ordinance or bylaw:
ask for use variance, what use I want to put the property: have to go to the rest of
ordinance, choose from another location as long as its an allowed use You will get
a variance based on the land in the use.
6. Subject to appeals:
a. Timing: what happens with these permits is once they are voted, they are filed in
the city or town clerk office. That starts the appeal period. Some community sent
notices to all legal [buffer]: permit has been filed in city or clerk office. Most of the
time, notices are not sent. They have to follow carefully: law is if the appeal is not
filed within 20 days, you have lost your right to appeal. Little twist: 20 days to
appeal the permit. If you feel that there was a procedural error (E.g. client did not
get notice of the public hearing, your client believes that the notice for this permit
was not the same, was substantially different, there is a 90 days appeal period.
When you are representing a developer who receive the permit, has to do all boring
work, make sure the permit go into newspapers are completely accurate.

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Otherwise, usually the funding happens pretty quickly, you still have 20 days and
not 90 and have to write an opinion that is not [collateral attack].
b. Who has standing/right to appeal:
i. A person who owns property generally speaking if they can show with
credible evidence not speculation that they have a particular injury unique
to them and not the community generally, they probably will have standing
to appeal. Will find all of this in Barmaric case: a person who owns
property if they have this kind of info, they may have standing. If that
person is a property owner, they also have a rebuttable presumption of
standing: if your client gets a permit and your client knows that there is an
appeal, may attack: try to rebut that presumption: other people who live
further away do not have that presumption.
ii. E.g. 3 unit condominium: someone living in the street, the permit granting
authority does not make them put in a traffic light, that person appeals. If
they receive a traffic study and conclude that eh would have trouble getting
out of his highway, he would have standing. If not, would be speculation.
c. Trial:
i. Barlow v. Subaru case
ii. Presnet the case: present the record below: present all facts to substantiate
all the findings and criteria and you start all over again, represent it, can
have different experts, more testimony: its de novo. At the end of trial,
judge will look at evidence, make 2-part finding: are reasons given in the
permit legally tenable (looking through all, do all the facts support that, if
so, or even come close legally tenable reason would have been given); is the
decision itself arbitrary or capricious? If its legally tenable, its not
arbitrary. In zoning judge cant substitute their judgment for that of the
local board Local board has raw discretion unless their decisions are totally
off the board
7. Legislative Zoning: changing zoning district
a. Communities are supposed to take a look at the zoning map and change it. E.g.
we want smart growth, want to build affordable housing. 9.9/10, that never
happens, perhaps that area was zoned as single family. Zone has to change to allow
that kind of use (mass, height, etc.) Your client will line up changing zone. Same
thing apply to actual text of these bylaws and ordinances.
b. Change the zone: require a super majority: 2/3 super majority of the membership.
Once the public hearing is over, that board (legislative board) has 90 days in MA to
take final actions: vote and the reason for it. With a special permit, by agreement
with the parties, the time between which the decision can be made and the change
of zoning, 90 days go by and no vote, it disappears, you have to refile it. In
nonvesting states there is a proposal to change the text of the zoning ordinance,
been published, public hearing, 90 days go by, at that juncture: you go to inspect
room service: I want my building permit now before that is published.
c. If there is an appeal for change of zone: standard is pretty vague: if the vote of the
legislative body to change the zone is somehow related to the goal and policy of the
comprehensive plan, if there is one, you almost there. Appellant to the change of
zone must prove their case beyond a reasonable doubt. All the cases use language
as follow: if the decision to change the zone is fairly debatable, it will be sustained,

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total deference to the legislative body: fairly debatable, will stand up and a judge
will not overturn it.
d. These changes of zones are attacked when there is an appeal on 3 basis: (1) not
debatable; (2) spot zoning: illegal (3) contract zoning (CASE:)
i. Spot zoning:
1. Factually, an example of not illegal spot zoning but contract zoning
2. You have a spot, does not matter is its a little spot or big spot. The
theory is the legislative body, not only it has to be debatable you
cant change the zone for the sole economic benefit of the owner,
in order to chip away at that, here are the findings:
a. Historically, it was an old warehouse (huge, bunker from
WW2). It was built in the 50 after this area was dug out. All
of these single family houses are up on the hill because
everything was dug out. Factually have this structure which
is unique and recognizable by the community. This is in a
manufacturing zone (typically allow obnoxious uses).
Comprehensive plan of this city want to get rid of
manufacturing use and create more comfortable with the
neighborhood
b. You have the spot. Comprehensive plan: we should do
something with it.
c. Take a look at the surrounding area (single family uses)
open space, public use, 7-story hotel, golf course. You have
a variety of uses surrounding the site (patch work). Next
thing: look at the zone around the site (single family, public
uses), high intensity business of a hotel, in a single family
zone, multifamily.
d. What you have is a variety of uses, zone, site is different
and recognized as a different place in the community.
Request for zoning change was from manufacturing to
business (Far less intrusive than a manufacturing zone).
There is a public benefit. Put all together.
e. It is spot zoning: conclusion is [] Because the business
zone we want to put it into, although allows uses in the
future, because the other uses could potentially be
detrimental to the neighborhood, what we did was we offer
a contract, made an agreement with the legislative body
before they voted where we executed and drafted a deed
restriction: we said in this zone although the following uses
are allowed, they are never allowed We in fact created a
zone by contract. Now you have a first class office building
created by changing the zone, making a case and winning
and we did contract zoning. This turns out to be the highest
tax payer in the city.
ii. Contract zoning:
1. Started in 1962: Sylvania case (happened in Newton)
2. 50 years later, involved in a lawsuit over this particular area because
of the contract zoning and deed restriction which take out certain

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uses (like housing), which is what my client wants to put their


because of the citys need for affordable housing.
3. Sylvania case: Electric company want to build land in the single
family zone, want city to change the zone. Legislative body: this
comply with our comprehensive plan, we should put it here but:
residential neighbors are here, want to take 30 acres and want you
to allow us (City) to buy it for 1 d0llar, its gonna be a buffer to the
neighbor. An option to purchase was created. In addition, the
zoning in limited manufacturing allows for height, bulk and so forth
that everybody found was too much. A covenant was created: not
only the following uses are put here but the setbacks which under
the limited manufacturing zone is gonna be 45 feet, the height can
only be 60 feet. The idea is to create a smaller structure within that
land area. There was a lawsuit brought by the neighbor: this
contract stuff was extraneous consideration bore no [] to the
change of zone. Court: change of zone: it does have a rational
relationship thats what contract zoning.
4. Rando: request to change a single family zone to a commercial zone,
involves 14.5 acres of land to buffer, etc.: all legal contract zoning.
That is how community today get what they need and what they
want. Your client will line up doing these things: mitigate the
impact of the project but not extraneous consideration, they are
completely legal. The only state in the country that has gone away
from this concept is MA. The Sylvania case: in MA: we thrown that
out and you dont have the connection .
5. IDC Birmingham case : developer says will give you 8 million dollars
for the school. Neighbors: thats extraneous consideration, nothing
to do, violate the Sylvania case. SJC: this is a way for community to
get more of what they want that they did not before. There is no
reason to invalidate a legislative act on the basis of extraneous
consideration bc we defer to legislative without considering their
motive, just look at the decision: if fairly debatable, thats OK.
a. 8 mill must be voluntary, cant be coercive.
iii. Warehouse case: heres the warehouse lot, the vote to change the zoning is
2/3 super majority of the membership. If prior to the vote, the owner of
20% of the land within 300 feet of that area sign an objection, the vote
change from 2/3 to . (raising from 16 to 18). A lot of signatures were
signed through coercion and misinformation, as a result of that literally, 2 of
them: retraction: round up back at 16.
iv. Appeal changes of zone:
1. Who can appeal:
a. Not the same as discretionary permit where you would
have more than speculation. Virtually anybody can appeal
if they feel like they would suffer an adverse impact (very
illusive). Must prove beyond a reasonable doubt, hard to
overturn changes for the zone.
2. Appeal period: MA: 90 days from the date that the legislation is
voted. Procedural appeal are 120 days and if you are in a town in

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MA has to be approved by the attorney general. AG has 60 days.


Town: voted, 60 days and 90 days more. In both town and city: 120
days. If represent developer, developer received changes in zone,
you have these appeal period, usually receive in tandem a special
permit or extension of the non-conforming use or structure. Have
multiple period, have to explain to the lender: even though not
expired, we believe that a reasonable judge would not. Thats zone
changes.
3. Hanna case:
a. Will run into tax title: In Hanna case, it was deviated
standing to appeal: he has not paid his taxes, under state
law, if a property owner has not paid their tax day within 60
days when its due, city or town can institute a tax taking,
merely a form that is filed in the registry of deed as a
security instrument. Town/city has a lien on the city/ the
whole case was all about: legally reason: you cant appeal
because youre in tax tile. You still own it.
b. Once the city or town decide to act on title, will close to
foreclosure, city/town will own the property. It will be sent
around to all department: do you want this: if they say no:
disposition of real estate: have to advertise in most city and
town has joint commission.
8. More zoning:
a. In city/town: just dont happen too quickly, the legislative body decide to create a
moratorium: come all different names, scheduled, faced moratorium. Just call
interim building moratorium: if a city or town need to create a new comprehensive
plan, change the zoning ordinance/bylaw or figure out how it would improve its
structure and need some time to do it, can pass an ordinance or bylaw to preclude
any building at all or only certain kind of building: this period of time for the
moratorium must be for a reasonable period of time: must be clear what the
community wants to do.
b. E.g. case in NY: soil problem need to figure out how to fix it. A building
moratorium for 2 years, in nature of scheduling moratorium, lots of subdivisions
being built. For every 10 lots in a subdivision, the property owner could get only 1
building permit per year. Court determined it was totally reasonable and correct.
The more type if Collary case: in Wollington MA. All about multifamily housing that
was proliferating in Wollington. City: we gotta change zoning bylaw because by
right apartment building is hurting us. Totally appropriate. They did it, it was for 2
years. There are text: usually with 2 different theories: one take that only one
building permit for this 2-years or 3 year period: this is unconstitutional taking; the
other is exclusionary zoning (if you can only issue one building permit out of 10, you
are discriminating and no allow people to move into the community).
c. Zackamn case: town of Hardley, where they passed a moratorium which said for
every subdivision you can get a building permit. You can get 4 building permit per
year no matter how many lots in your subdivision was approved. Mr. Zackaman:
farms were going out of business, got a subdivision approval for 40 lots. Found out
she can only build 4 houses per year. Take 10 years: this is a taking without just
compensation. That moratorium has been in effect for 14 years already. They just

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said moratorium forever. The town of Hardley: we made a mistake and we will fix
it: every 7 years we will renew it. AG: you cant do that.
d. Tuesday: finish up with:
i. Exclusionary Zoning
ii. Inclusionary Zoning
iii. Creation of affordable housing through statutory mechanism
4/28/2014
1. 1977: AA gentleman, who wanted to create integrated housing apply for zoning change
of the district where the property was from single family to multiple family, was denied
based on premise change of the zone conflicted with the comprehensive master plan of
the village. The plaintiff believed strongly that this is all about racial discrimination, he
brought a 1983 Action, racial animus, coercion, cant get into motive unless some of
these allegations prove to be true and shock the conscience. Decision of the district
court held that the villages decision was motivated by racial discrimination. The village
appeal that to the court of appeals and they found that it was not racial discrimination
but th result of the zoning may affect the rezoning decision. Court of appeals: reversed:
was racial discrimination and a claim under Section 1993: disproportionately affect
black, continue to be mark by residential resolution. This kind of an action is not going
to be held unconstitutional. Just because it results in racially disproportionate impact.
The law of the land: if in fact the: if results in a discriminatory situation, the court says:
do something else about it local community. Local communities started to do
something about it. Mount Laurent (NJ): 2nd one in 1988: that case said if there is a
pattern/scheme of zoning that in effect produces the racially discriminatory result and
the result of excluding low income people, each community must establish zoning
regimen to provide racially diverse housing. This is a doctrine, we require NJ provide a
real estate opportunity for low income housing. A couple of years ago, theres an
editorial called Mt Laurel doctrine. [Limited the use of pattern zoning. NO zone for
multiple family, as a means to prevent construction of affordable housing: low,
moderate income housing, given less well-off family: good school, good jobs. Christie
seeks to weaken the case.
a. Strong impact:
i. Directly on point, shocking
ii. Conflict interest of the person on zoning board of appeals: 40B: a
comprehensive permit to create affordable housing in Newton. The
zoning board of appeals deny that application. Were in appeal now.
Politically we have the situation with mayor of the city just last week
gave a budget presentation: 4 initiatives to create affordable housing,
none will happen, its just purely political relation.
iii. How zoning schemes preclude creation of affordable housing: result is
very little affordable housing, coupled with : denied yet talked the
other way. Problem in wealthy
iv. Will be a fair housing complaint filed against this city for misuse fund
which are to be used to create affordable housing. Zoning ordinance
preclude affordable housing. Enormously explosive both economically
and socioeconomically.
b. 1969: MA: A statute that has been copied everywhere. Here, called Chapter
774 (known today Chapter 40B: mechanisms for creating affordable housing).

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i. States: all communities must have 10% of housing stock for affordable
housing. Mathematically, if there are 29k housing units, 10%, the statue
went on to say: if the community has not reached 10%, the ability to
apply comprehensive permit which override local housing. There was a
law suit brought by Hannover v. housing committee. The claim was 2fold: illegal spot zoning because it creates a zone for sole benefit of the
owner, it violates home rule: ability of the local community to plan and
do everything as long as it is not contrary to/repugnant to state law.
Court: no, it was not for the economic [] of the region to create
affordable housing. As far as home rule, we hear you. BC the need for
affordable housing our right the city/town right to plan. You got to
include in the plan the ability to create affordable housing for telling the
Mt Lauren decision and several others.
ii. How does it work:
1. How AAH work:
a. First, the developer has to create an entity that the
nonprofit, limited liability
b. In order to make application must have a parcel of land
under control (real estate auction, purchase and sale
agreement)
c. The entity must have secured a loan commitment but
not a conventional lender. Rather from special kinds of
funding agencies. In MA: MHSA, teleprogram, tax
exempt, HOT program. All of those things come
together and the community has not reached its 10%
d. Apply to the local board of zoning. In one hearing, they
can receive permit for everything that they would
otherwise have to go to separate permit: special permit,
variance, historic certificate of appropriateness:
everything at one time. The only thing not included is
conservation of order
e. Once the hearing is closed, the board must render its
decision within 40 days and if they deny the application
and the community has not reached its 10%,the
application can appeal to (1) housing appeal committee;
or (2) superior court. And the applicant will claim that
the decision to deny is inconsistent with the local
means: have not reached your 10% . Often time,
because the community has not reached 10%, the
board tried to cut down the size of these buildings
because they are usually large and for example, Route
9: Milton: big building: 339 unit apartment building,
25% are affordable. Counts toward the 10%, not just
the affordable one. They usually out of scale, in places
that neighbors freak out and dont want in their
neighborhood. Creates quite an interesting dynamics.
They tried to cut down the size and often time the profit
margin for developers is not as great as regular

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f.

multifamily housing because they get much lower rent


(guideline Section 8 Housing), becomes uneconomic to
create this. If that happen the developer has the right
to appeal that and through performance and will
hopefully for them produce the info to overturn the
decision. Thats generally how this work in the state
that has done this.
At the beginning, when these housing program for
financing was create, they were like mortgages in many
ways. The statute at the beginning was not clear as it
should have been. At the end of 50 years, developers
were getting rid of affordable housing and put with
market rates.
i. Wellsley: Produces the change of the statue: as
long as there is a structure is not complied as of
right with the local zoning bylaw or ordinance,
the affordable unit must remain in perpetuity.
ii. This entire process has been very controversial.
Neighborhood, city and town dont like these
things. Philosophical argument back is: then get
your 10% and you dont have to argue
iii. Mechanisms to avoid AH: if the community
creates a plan of how they are going to attract
ad have built AH for 10 years period then they
can avoid these application: very few
communities do that bc they cannot create
their plan
iv. 2004: legislature passed the statute called 40R:
opponents for community to create a smart
growth zone: overlay district: has to be near
public transit, the underlying zoning cant allow
very dense intent structure: 25% of which has
to be affordable. Community cant have more
than 25% in this zone. If the community creates
this plan and get approved by the state into this
zone, they are allowed to create the zone
through zoning change and they will get money
from the states for infrastructure improvement,
construction. Purpose is to give community the
opportunity to choose where the affordable
unit will go, mixed in with []. Its a way for
community to start squashing for this statute
yet create affordable housing. There are only
11 communities that actually done it. We are
going to create a 40R: no place in this city
where there could possibly a 40R zone: our
legislative body cant get out its own way like
other communities: will never happen.

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2. Other ways to create affordable housing:


a. Started same time with 40B and Mt Lren. Participated
in the drafting of the third: Incentive Zoning
(Inclusionary zoning): allow developers to get a density
bonus in return for creating AH. This is not 40B, this is
in the zoning ordinance or bylaw as a requirement
condition to a permit to create AH.
b. How it works:
i. Property owner own a large parcel and want to
create multifamily housing
ii. Ordinance: OK but must create a subdivision
plan to inform us how many using unit as of
right you can create. Hypothetically, under
zoning ordinance or bylaw: 4 units can be
created. The developer tell the city: I want to
build 8 units of housing. The ordinance says:
OK, if you want to build 8 and you can build 4 by
right, you must provide 10% of the overage (4)
for AH. So what the ordinance say to the guy is
you must provide one unit of Ah in the project
offsite (someplace else) or make a contribution
based on formula to the housing authority for
its use to create affordable housing.
iii. Over the years, the ordinances have changed.
Every state/city in town has one of these. This
one ultimately became 25% and at the end of
15 years its expired. Became and expiring use.
The reason for that: developers and lenders
could not grasp all of this. Unit drew lower,
economic hardship on the developer and lender
could make the deal: that was changed in 40
years. Today, its 20% in perpetuity, as well
these units must be allocated throughout the
building in locations similar to []:must be of
similar size: if there are unit of 100 square feet,
the finished must be comparable. E.g. 88
units housing development way down at the
corner of the city. 14 of the units will be
affordable: plan to the citys housing group and
demonstrate to them these units are
comparable size, units in order to comply with
the current inclusionary zoning. Therefore the
financing the client will get includes that deficit
in their performance: this is inclusionary zoning
iv. There are all kinds of programs and ways to
figure out income levels. E.g. = 40B: those units
were proved by the state agencies (another part
ou have to do before you apply: the rate youll

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charge for the rent is not really low income:


very affordable but in a community where the
rent is enormously high and folks like you want
to live in a nice apartment near public
transportation and which is near where you
work (might not be in the core city; even in the
core city, its still close to public transportation).
That is what is happening today and city and
many others are avoiding and creating
problems: Needham just approved what this
city denied in a former industrial park, revised
the park that was dying. Never have to face 40B
again in their town.
3. . Another way is community preservation: enabling legislation:
only if city or town vote to accept it, will it apply. City or town
can choose between 1% or 3%: in addition to tax bill, they will
get an additional tax bill between 1-3% of their evaluation.
They will pay their bill, then you take 1-3% depend on what
community decides of that amount of money and pay that at
the same time, go into a fund called community preservation
fund, will be used for creation of aH, historic preservation,
maintenance and acquisition of open space. Communities
accepted this: very little of money is used to create AH, open
space. Many communities have this.
a. The state is supposed to match these funds so that if
city votes to use X dollars for Ah, state will match. They
dont have money to do that anymore. Dont really
help incentivize community: another reason: great
public relation.
2. Users fees:
a. Once
b. Emerson college case: what is a fee and what is a tax? If its a tax, its illegal
c. With EC case, college does not pay taxes. City of Boston tried to make Emerson
Pays anytime the fire department shows up. Court: you cant do that bc that is
a public benefit. You city of Boston make decision to have a fire department for
the entire city, you cant charge extra for that. That is tax.
d. Visualize public guys about to connect a house to the new sewage system. No
ordinance or bylaw to require : the owner is doing that by choice it is a benefit
to them and not to the community as a whole. Fee charge is to pay for the cost
of these guys in connecting: This is User fee
e. Standard to decide: (1) is it shared by pp in the community; (2) is it compensate;
(3) is it done at the option and not mandatory.
3. Development impact fee:
a. Will not see it here
b. Inflow: a city or town in a state that allows Development impact fee can create
bylaw/ordinance to achieve:
i. Requirement for this fee: calculated as: what will be the financial impact
on our school, infrastructure, what will the financial impact on fire and

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police, very detailed, clear. Developer understand the total amount of


money need to pay upfront for as it goes along. Usually for 5 years
period. This is a way for community has been buffering themselves
along these costs. In this state, there is no such thing
ii. Will not find in NE
iii. Inflow
1. Clean up its act
2. Most city and town has the same sewage ad clean water in the
same pipe. Requirements that these must be separated.
3. What community has been doing:
a. A whole bunch of new toilet, flushes going into the
system and what community is doing without an
ordinance or bylaw are saying: we figure that you
should really be paying X dollars per gallon that we
calculate will come from these additional flushes.
b. You say: (1) that is illegal, there is no ordinance, no
bylaw, nothing uniform throughout the city, you cant
do that. You want your permit, you will do this
(Extortion). Your client will say: go to the lender: the
permit granting authority basically say: you have to do
this or we will not grant your permit. We will install the
most modern kind of toilet and the water used is point
6; however, it did not work. That 99 unit apartment
place is paying 4 million toward the improvement of the
sewage storm water system in the city in an area
already incompliance with ADA requirement.
4. Extracurricular things
a. Proposition 21/2: A tax cap using this state:
i. Back in the 80s there was a huge outcry about property tax will go out
of control. State passed the statute called 21/2: when it first started,
you take the valuation of every property in the city or town except nonprofits and you add it up so each house has a valuation, you multiply
that by 21/2, that is the amount money can be raised: city or town
budget together cannot exceed costs that exceeds what the revenue is
going to be. AS time goes on, more money needed, budget tighter:
every 3 years property is supposed to be revalue, when these values go
up, the base is bigger: in addition, if there is new growth
(development), that add, you get more money that way.
ii. Secret: in the lower right hand: is a list of all the non-profit and they
have a value: those they add in anyway. 21/2 times bring more money.
b. 2 basic ways to raise more money:
i. Override: go on ballot, have to approve by the voters: problem: never
go away: whatever that tax is, you mathematically backed into the
evaluation and that remains part of the base. Forever, the 21/2 gets
bigger. More common stuff is through bonding and what we call death
exclusion.
ii. In this city a new high school was built as a result of an override by the
education: an amount of money need to be raised, it was bonded over

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10 years period: every homeowners have an additional payment to


make. At the end of 10 years it disappears: a debt exclusion.
c. Collected bargaining:
i. MA: an illegal strike, we have to go to court to get an injunction against
the union.
ii. Collective bargaining: city/town/union sit down. Bargain in good faith
on mandatory items. If a new item is added during 1 year of negotiation
it becomes mandatory for the next time. If for some reason the
contract cant be negotiate, the current contract extend for another
year. Law is when this new contract is passed, if there is enough money
in the budget to do everything, city or town must either cut something
else in the budget or try for override the only thing cant be bargained:
if city/town decides they have to cut 10 policemen or firemen:
governmental decision. Bargaining cannot be putting these people
back, can only about how these people are going to be removed. Try to
work out a way so that the impact on union is not that great.
Ethics:
Lawyers 2 layers:
o Lawyer
o Participate: common law
Injects what they do, how they write with whole lot of social science, psychology.

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