Академический Документы
Профессиональный Документы
Культура Документы
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)
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.
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?
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.
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
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.
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).
o
o
o
o
o
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
10
11
12
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
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
16
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
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
20
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
23
24
2/5/2014
25
26
27
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
33
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
36
37
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
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
44
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
48
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
50
51
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.
52
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
55
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
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
60
3/19/2015
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.
62
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.
63
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
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
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
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
68
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
70
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.
73
74
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.
75
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.
76
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.
77
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.
78
79
80
III.
IV.
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,
82
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.
83
84
85
86
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
87
88
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
89
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
90
91
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:
92
93
94
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
96
97
98
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:
99
f.
100
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
101
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
102
103
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
105
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.
107
108
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.
109
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,
110
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
111
112
113
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).
114
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
115
f.
116
117
118
119
120