Monthly Archives: September 2015

Hancock Village lawsuit: Brookline’s appeal dismissed

Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.

Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.

The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.

The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.

The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.

Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.

An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.

So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.

Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.

– Beacon staff, Brookline, MA, September 29, 2015


Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Losing steam: U.S. nuclear power-plants

The Pilgrim nuclear power-plant in Plymouth may be the next casualty from the Fukushima, Japan disaster in 2011. Safety director David Noyes has warned that Entergy may close the plant if it can’t see a way to make money. Many South Shore neighbors would say, “Good riddance.”

Nuclear shutdowns: At the end of 2014, Entergy closed the Vermont Yankee nuclear power-plant in Vernon, near Brattleboro. Both the Plymouth and the Vernon reactors are close relatives of the wrecked nuclear reactors in Japan. All use BWR-3 and BWR-4 “Mark I” designs by General Electric, dating from the middle and late 1960s.

Those so-called “boiling water” reactors were cheaper to build than the “pressurized water” reactors from Westinghouse, Babcock & Wilcox and Combustion Engineering. They send steam directly from reactor cores into power turbines, rather than through heat exchangers that isolate radioactively contaminated core water.

For decades, the industry-dominated U.S. Nuclear Regulatory Commission (NRC) dismissed potential problems with “boiling water” reactors as unlikely. Then came the simultaneous collapse of three of those reactors at the Fukushima Dai-ichi plant, challenged by an earthquake and a tsunami. The three reactor enclosures failed, along with the spent-fuel enclosure of a fourth reactor, releasing clouds and streams of enormously radioactive materials into the countryside and the ocean.

Despite major alarms from the 1979 accident at the Three Mile Island plant in Pennsylvania, its “pressurized water” reactor resisted a partial collapse. Unlike gross failures of the “boiling water” reactors in Japan, nearly all the damage at Three Mile Island was contained inside a reactor enclosure.

Compared with their initially more costly relatives, “boiling water” reactors have narrower ranges of stability, making them more likely to overheat and collapse when challenged by problems. Among their problems, extra monitoring and maintenance has tended to make them more costly to operate. Quoting an unpublished report from UBS (formerly Union Bank of Switzerland), David Abel and Beth Healy of the Boston Globe claim the nuclear plant in Plymouth is losing more than $2 million a month.

Closing barn doors: NRC trundled out a set of “safety enhancements” that require costly retrofits. In traditional nuke-speak, institutional NRC flacks call those “lessons learned”–making themselves sound like sleazebags. Many lessons about hazards of boiling-water reactors were taught 40 years ago, after a near-disaster at the Browns Ferry nuclear power-plant in Alabama, but those lessons were not really learned.

A March, 1975, fire under the unit 1 control room at the Browns Ferry plant, ignited by careless workers, disabled safety systems and came within about an hour of collapsing the “boiling water” reactor. After that incident, General Electric assigned three senior engineering managers to investigate the safety of the plant’s three reactors. They reported that the reactors could not survive a major challenge.

The company largely disregarded their analysis. In February, 1976, Dale G. Bridenbaugh, manager of product service for the nuclear division of General Electric, and two other GE nuclear engineers, Richard Hubbard and Gregory Minor, resigned and tried to publicize the hazards. NRC commissioned a safety review, sometimes known as the Rasmussen Report (WASH-1400).

In a 1986 conference with industry executives, held at Brookhaven National Laboratory, Harold Denton, then director of the NRC Office of Nuclear Reactor Regulation, referred to the Rasmussen Report, saying it showed “something like a 90 percent probability of a containment failing” in a “boiling water” reactor using the General Electric “Mark I” designs.

Pilgrim’s progress: During the 1980s, Boston Edison, then the owner and operator of the Pilgrim plant, was plagued by safety citations. In 1982, NRC imposed its largest fine ever, $550,000, for safety failures. Boston Edison spent about $300 million on upgrades, but the failures continued. From 1986 to 1989, NRC closed Pilgrim, mainly for extensive worker retraining.

Trying to curry favor with NRC, in 1987 Boston Edison proposed a “direct torus vent system” intended to reduce hazards, also known as a “hard vent” system. NRC did not certify the system but allowed it to be installed. Although the “hard vent” system at Pilgrim was never given realistic testing, eventually most reactors of its type were retrofitted with similar “hard vents,” including ones in Japan.

The “hard vents” of the three Japanese reactors that collapsed all failed, and then the enclosures of those reactors exploded. NRC staff responded to the unreliability of “hard vents,” first designed for Pilgrim, in their highest-priority recommendations for new regulations in 2011. The required retrofits are very expensive, and they may not prevent disasters, because they do not address basic instabilities of the “Mark I” designs.

Nuclear losers: This year, Pilgrim is back in the federal doghouse. In March, it was downgraded to the lowest NRC safety rating short of impending closure. Entergy and Exelon are apparently pulling out. Exelon announced that it will close the Oyster Creek nuclear plant in New Jersey by the end of 2019. That was built with an even earlier version of the “Mark I” reactor designs.

A parade of nuclear losers continues to lengthen. They are being ousted from business by poor operating economics of “boiling water” reactors, by high costs to recover from maintenance blunders and by high costs to retrofit unsafe designs. Those already ousted, over the past three years, have been:
* Crystal River 3, one reactor, Crystal Rver, FL, closed in 2013
* Kewaunee, one reactor, Carlton, WI, closed in 2013
* San Onofre, two reactors, San Diego County, CA, closed in 2013
* Vermont Yankee, one reactor, Vernon, VT, closed in 2014
* Oyster Creek, one reactor, Lacey Township, NJ, closing in 2019

– Craig Bolon, Brookline, MA, September 27, 2015


Evan Allen, Pilgrim nuclear plant safety rating downgraded, Boston Globe, September 2, 2015

David Abel, Pilgrim nuclear plant says it may shut down, Boston Globe, September 17, 2015

David Abel and Beth Healy, No easy answers for Pilgrim nuclear power plant, Boston Globe, September 26, 2015

Market-driven reactor shutdowns threaten local economies, Nuclear Energy Institute, 2015

Jeff McMahon, Six nuclear plants that could be next to shut down, Forbes, November 7, 2013

Japan: lessons learned, U.S. Nuclear Regulatory Commission, 2015

Prioritization of recommended actions, U.S. Nuclear Regulatory Commission, SECY-11-0137, October 3, 2011

Craig Bolon (as AppDev), Will Japan’s nuclear disaster help make Pilgrim in Plymouth safer?, Boston Globe, October 31, 2011

Tom Zeller, Jr., Experts had long criticized potential weakness in reactor design, New York Times, March 15, 2011

Matthew Mosk, Nuclear reactor design caused GE scientist to quit in protest, ABC News, March 15, 2011

Pilgrim reactor restarted after 3-year shutdown, Associated Press, January 1, 1989

David Dinsmore Comey, Fire at the Browns Ferry nuclear power station, Friends of the Earth, 1976

Human Resources: resisting the Earned Sick Time law

At a meeting Thursday, September 17, the Board of Selectmen heard a proposal from Sandra DeBow-Huang, the director of the Human Resources Office, to allow a version of what she called “sick leave” for some of Brookline’s nonunion employees. It looked designed to resist Article 7 at the town meeting on November 17.

Earned Sick Time: At the state election of November, 2014, three out of four Brookline voters said Yes to Question 4. They joined other voters statewide to enact the Earned Sick Time law, which went into effect July 1. The new law governs most private companies in Massachusetts with 11 or more employees. However, it does not apply automatically to cities and towns.

Massachusetts towns can adopt the Earned Sick Time law and follow its state regulations through votes of town meetings. That is what Patricia Connors, a Precinct 3 town meeting member, and Cornelia “Kea” van der Ziel, a Precinct 15 town meeting member, propose in Article 7. Their explanation is straightforward.

“This law allows employees to use Earned Sick Time to look after their own medical needs or the needs of family members, or to address issues related to domestic violence. It requires an employer of eleven or more employees to provide a minimum of one hour of earned paid sick time for every thirty hours worked by an employee, up to 40 hours of earned paid sick time in a calendar year.”

Proposed benefits: An effort to resist Article 7 began this summer. Apparently seeing that outright opposition could easily be overcome at town meeting, Ms. DeBow-Huang proposed some concessions. The document that emerged on September 17 showed signs of haste. Obvious mistakes included grammatical errors, dangling phrases and duplicated paragraphs. Instead of “Earned Sick Time” it used several different terms, without defining them clearly.

The focus of the proposal was a favored set of nonunion employees who currently lack Earned Sick Time benefits–specified under Brookline’s Classification and Pay Plan, a policy document Ms. DeBow-Huang does not publish on the municipal Web site. Rather than hour-by-hour accruals of Earned Sick Time, Ms. DeBow-Huang proposed periodic “lump sum” accruals, which are also recognized under the new state regulations.

An item-by-item examination of the September 17 proposal found over a dozen items for which it was more restrictive than the new state law and regulations: reducing benefits or denying benefits to some employees. There looked to be no item that expanded on those state standards. On September 17, Ms. DeBow-Huang claimed the proposal was “generous,” but the examination showed the opposite. A subtext hinted by the September 17 proposal was trying to set a model for negotiations over union contract renewals.

Union employees: Most Town of Brookline employees belong to unions. Some of the “regular” employees–working more than half-time–have gotten Earned Sick Time benefits through union contracts for years. However, there can be different benefit policies, since there are different union locals representing employees. The contracts are public records, but Ms. DeBow-Huang does not publish them on the municipal Web site, making it tedious and costly for anyone outside her office to compare them.

The November town meeting will consider whether the September 17 proposal corresponds with what Brookline voters expected when endorsing the Earned Sick Time law. It looks likely that the Board of Selectmen will oppose adopting the new law and instead will support the September 17 proposal or some variant.

– Craig Bolon, Brookline, MA, September 25, 2015


Sandra DeBow-Huang, Paid sick leave, Brookline Office of Human Resources, September 17, 2015 (reformatted for readability and annotated, items examined highlighted in red)

Craig Bolon, Issues with proposed policy in lieu of Earned Sick Time, September 25, 2015

Earned Sick Time law, Office of the Massachusetts Secretary of State, 2015

Earned Sick Time regulations, Office of the Massachusetts Attorney General, 2015

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Release of a song: Happy Birthday to You

On Tuesday, September 22, the Happy Birthday song was released from commercial prison. A chain of disputes over rights to the song, now stretching back more than 80 years, ended with a ruling in a federal case being heard in California. Judge George H. King, the chief judge for the Central District of California at Los Angeles, found that the company now claiming to own the song lacks a valid copyright.

The lawsuit was brought by Jenn Nelson, a video producer in New York who has been assembling a documentary about the song. A key, unresolved issue throughout long controversy has been lack of a clearly established author of the song’s lyrics. To careful observers, the outcome of the case had seemed likely. Without an author, there is no copyright interest. [See note, below.]

Copyright background and finding: Judge King found he did not need to resolve issues of authorship. Instead, he found no credible evidence that a potential author of the Happy Birthday lyrics had ever transferred rights to them to any publisher involved in current claims of ownership.

The song may have been created as early as 1890 by Mildred Jane Hill and Patty Smith Hill, two sisters who were writing songs for young children while Patty Hill worked as principal of the Louisville Experimental Kindergarten School. In 1893 the melody appeared with a different song, Good Morning to You, authored by the sisters and published and copyrighted by the Clayton F. Summy Co., then at 220 Wabash Ave. in Chicago.

The melody appeared with the Happy Birthday lyrics in unauthorized commercial publications at least as early as 1912. In his opinion, Judge King cited a 1911 church publication. Despite those sheet music publications, plus sound recordings and appearances in early sound films, no claims of authorship or copyright disputes emerged until more than 20 years later. What was then disputed was use of the melody in a Broadway play.

Warner/Chappell Music of Los Angeles and subsidiaries acquired purported rights to the Happy Birthday song, plus many other musical works, by purchasing a successor to the Clayton F. Summy Co. in 1988. According to news reports, since that time they could have collected as much as $50 million in royalties for use of the song in movies, recordings and commercial performances.

Ms. Nelson, later joined by co-plaintiffs in California, paid royalties to Warner/Chappell to use the Happy Birthday song in performances. They sued to recover payments plus legal costs and sought a judgment that Warner/Chappell lacked a valid copyright to the Happy Birthday lyrics. Copyright interests in the melody had expired in 1949, at the end of a copyright renewal for the original songbook published by the Summy Co.

Consequences: Legal consequences may take a few more years to conclude. At federal district court, hearings and rulings are expected on motions to certify class action status and to award damages and costs. The number of years for which royalties might have to be disgorged could be increased by precedents in the ninth federal circuit that are favorable to the plaintiffs. After that, appeals seem likely.

Circumstances of the Happy Birthday song are so unusual that rulings might never apply to another copyright case. Until this case, for more than 80 years all disputes over the song had been settled privately. People who want to use the song in commercial performances, recordings, videos and movies may start to feel free to do that, now that a federal court has finally ruled on the key element.

– Craig Bolon, Brookline, MA, September 23, 2015


Note: “Without an author, there is no copyright interest.” Authorship and originality have been ingredients of copyrights since they were authorized by the U.S. Constitution in Article 1, Section 8. In Section 4, the Copyright Act of 1909 provided, “works for which copyright may be secured under this act shall include all the writings of an author.” Section 102 of the Copyright Act of 1976 narrowed the range somewhat, saying, “copyright protection subsists in original works of authorship.” A requirement of originality, expressed in case law, was made explicit under that statute.

Memorandum and order for cross-motions, Good Morning to You Productions Corp., et al., v. Warner Chappell Music, Inc., et al., case 2:13-cv-4460 in the Central District of California (Los Angeles), filed June 20, 2013 (originally filed as Rupa Marya v. Warner Chappell Music, Inc.), September 22, 2015

Christine Mai-Duc, All the ‘Happy Birthday’ song copyright claims are invalid, federal judge rules, Los Angeles Times, September 22, 2015

The Worker and His Work, eight volumes, Board of Sunday Schools, Methodist Episcopal Church (Washington, DC), 1911

Craig Bolon, Saga of a song: Happy Birthday to You, Brookline Beacon, August 8, 2015

Land Court to Board of Selectmen: put up or shut up

In a case of dueling boards–Selectmen versus Zoning Appeals–the Massachusetts Land Court filed a written ruling on the motion of another defendant, Chestnut Hill Realty. It seeks to disqualify Town Counsel Joslin Murphy and her staff from participating in the main challenge to a proposed Chapter 40B housing development at Hancock Village.

In an odd sort of process, that ruling has been posted to the online Docket Information page for the Land Court case, making it available to anyone without a trip to see the clerk of the court. As apparent before and at the Land Court hearing, the Board of Selectman and the town counsel look to be in a pickle.

In effect, the court wrote to that board: Put up (a lawyer for the Zoning Board of Appeals) or (we shall) shut up (the town counsel as your representative). Judge Piper’s docket entry reads a bit like George Ade on steroids, for those who remember the notable Chicago Record journalist (1866-1944). Text follows.

“09/03/2015, Event: Motion scheduled for 09/03/2015 10:00 AM

“Result: Hearing Held on Private Defendant’s Motion to Disqualify Brookline Town Counsel. Attorney Murphy Appeared for Municipal Plaintiffs. Attorney Talerman Appeared for Individual Plaintiffs. Attorney O’Flaherty Appeared for Private Defendant. No Counsel Appeared for Defendant Members of the Board of Appeals. Following Argument, Court Made its Ruling[s] from the Bench, Which Are Summarized Generally Below.

“Subscribing to the View That Courts Should Be Reluctant to Disqualify Counsel, That Clients Are Entitled to the Counsel of Their Choice, and Relying Greatly on the Ethical Awareness of Lawyers, Court Is Nonetheless Troubled by the Posture of this Litigation. Here, the Board and its Defendant Members Remain Unrepresented, the Court Is Unable to Know Their Level of Satisfaction (Or Not) with That Situation, and it Is Evident that those Who Control Municipal Plaintiff’s Prosecution of this Action Have Taken No Effective Steps to Provide These Defendant Board Members with Counsel. They Thus Are Left Unable to Defend, to Participate in, and to Be Heard in this Litigation.

“This Is Not the Common Situation Where a Municipal Board Stands down During Litigation to Allow the Private Defendant (The Permit Recipient) to the Mount a Defense of the Challenged Permit. Here, the Permit Has Been Challenged by the Town Itself, Acting Through its Board or Selectmen, Claiming an Injury to the Town’s Interest as an Abutting Landowner. All Parties Agree, as They Must, That If a Law Firm Represented the Applicant During the Permitting Process, and Then, Once a Permit Had Issued, Attempted to Represent an Abutting Landowner in Challenging the Same Permit, the Court Would Be Obligated to Disqualify that Law Firm Under Mass. R. Prof. C. 1.7 [because there is a concurrent conflict of interest under 1.7(a), coupled with a claim by one client against another under 1.7(b)(3)].

“Here, Counsel for Plaintiffs Attempts to Distinguish the Instant Case by Arguing, First, That Town Counsel Commonly Represents Multiple Municipal Interests Simultaneously, Which Interests Do Not Always Perfectly Align, and Second, That Notwithstanding this Broader View of the Role and Obligations of Government Lawyers, That Here the Defendant Board of Appeals Was Afforded Special Counsel During the Permitting Process So There Is No Conflict in Fact.

“Even Recognizing the Broader Latitude Given Government Lawyers When Analyzing Their Possible Conflicts, the Court Concludes That this Is One of Those Troubling Cases Where it Might Be Obligated to Disqualify Municipal Counsel. While There Has Been No Hard Showing That Town Counsel Possesses Some Confidential Information Gained Giving Earlier Advice to the Board, the Existence of Any Such Confidences Is Very Hard to Learn Because the Party That Would Normally Object (The Former Client) Is the Board of Appeals, Which Has No Ability or Opportunity to Make Such a Concern Known to the Court; the Private Defendant, Who Brings the Motion to Disqualify, Has No Way of Knowing Whether Confidences Have Been Exchanged or Not.

“The Record Does Make Clear That the Office of Town Counsel Previously Rendered Advice, Shared with the Zoning Board, about Two Important Legal Issues in Connection with the Comprehensive Permit: the Effect of the 1946 Agreements Between the Town and the Prior Owners of the Site, and the Validity of Site Eligibility Determinations for the Project. Those Issues Are Central to the Attack the Town, Now Represented as Plaintiff by Town Counsel, Makes Against the Comprehensive Permit in Both this Litigation and in the Superior Court Case Now Before the Appeals Court.

‘Without Diminishing the Court’s Concern That this Is a Case Where a Conflict May Exist, the Court Nonetheless Defers Ruling on the Motion to Disqualify at this Time, in the Hope That Some Attention Will Be Paid to Obtaining Separate Counsel for the Board of Appeals. If Separate Counsel Appears and Assures the Court That the Board of Appeals Does Not Object to the Ongoing Representation of the Plaintiff by Town Counsel, That Would Go a Long Way to Satisfy the Court That the Motion to Disqualify Ought to Be Denied.

“If, on the Other Hand, There Is a Continuing Inability to Hear from the Board, Court Would Be Inclined to Allow the Motion to Disqualify. Parties Are to File No Later than September 30, 2015 a Report on the Status of Representation of the Board of Appeals; If by That Date No Appearance on Behalf of the Board of Appeals Has Been Filed, the Court Will Proceed Either to Rule on the Motion to Disqualify Without Further Hearing, to Schedule Further Hearing, or to Make Other Appropriate Orders.”

So far, no funding to support legal counsel for the Zoning Board of Appeals has shown up on agendas for the Board of Selectmen. September 30 is a Wednesday. Before then, the Board of Selectmen scheduled two more meetings: on Thursday, September 24, and on Tuesday, September 29. Funding for a town board would clearly be public business. Trying to hide it in closed session, perhaps under a rubric of “litigation,” would not appear consistent with the state’s open meeting law.

– Beacon staff, Brookline, MA, September 20, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Massachusetts Rules of Professional Conduct, Massachusetts Supreme Judicial Court, 2015 (2 MB)

Massachusetts Rules of Civil Procedure, Massachusetts Trial Court Law Libraries, 2015 (2 MB)

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Cable services: renewing Comcast in Brookline

On Wednesday, September 16, starting at 7 pm in Town Hall, members of the Board of Selectmen and its cable television committee conducted a public hearing on renewal of the Comcast license to operate in Brookline. What they heard was dominated by insiders, trying to extract more money for local programming efforts, now called Brookline Interactive, and for subsidies to low-income residents. Attendance was about 15 people.

Technology dreams: Boosters for Brookline Interactive seemed divided into two camps. One was looking mainly for better distribution of content, the other looking mainly for better technology to deliver it. Karen Katz of Pleasant St., president of Brookline Interactive, complained about “no delivery” of her organization’s content by Comcast, recently rebranded as Xfinity. Comcast does not display a schedule of Brookline Interactive programs. She wanted more Comcast money to support local programming efforts.

Albert Davis of James St., who described himself as a media producer, does productions at Brookline Interactive. He complained that Comcast “does not support an everyday medium”–meaning high-definition, wide-screen television–calling that “a huge mistake.” He wanted Comcast to “get involved” with Brookline Interactive, a “partnering opportunity.”

Kathy Bisbee of Gorham Ave., recently hired as Brookline Interactive director, mentioned “over the top” fees as a way to boost her organization’s take of Comcast revenue. Although she did not explain, that would be techno-speak for fee-based, Internet-distributed services such as Showtime, currently about $11 a month.

Limited incomes: At an opposite pole from Ms. Bisbee and Brookline Interactive technophiles was David Trietsch of Linden Pl., board chair of the Brookline Housing Authority. He complained that few public housing residents could afford any type of Internet service–and probably not $11 a month “over the top.” Recently, he said, RCN has offered “favorable terms” for service to the new Dummer St. project.

Frank Caro of Beacon St., a member of the cable television committee and a Precinct 10 town meeting member, spoke for retired residents. He said he found almost no “senior discounts” for telecommunication services in Brookline. He was “deeply disappointed” that Comcast offered only $2 a month off, only on “basic” service.

The sole Brookline residents to complain about the quality of Comcast services were Cathy Corman of Pleasant St. and her husband Mark Penzel. Their house had apparently been built after the neighborhood was wired and has no cable service. Comcast initially wanted over $20,000 to install a cable but then offered to do that for $2,300 if it could dig a trench beside a tree in a neighbor’s lawn.

High costs: What none of the earnest speakers mentioned but would surely be uppermost for a network operator are high costs of new technology. At an average cost per person estimated by Goldman Sachs, Comcast would need to invest around $30 million to replace its Brookline network. That looks unlikely for a business with annual revenue potential around $10 million: possibly a 10-year payback or worse.

Comcast is stuck with early 1980s cable technology: good for its day but well into old age. It was built for 1953 NTSC broadcast television, about 6 MHz per channel. HDTV in 1080p24 format–the newer “wide screen” broadcast standard since 1998–needs about three times the bandwidth, despite digital techniques. However, it can be fit into 6 MHz channels through digital compression, at loss of optical and temporal definition.

With its dated cable infrastructure, Comcast cannot achieve the level of services fiber-optic systems can provide, such as those installed by RCN and promised–some day–by FIOS technology from Verizon. However, by replacing its complex of signal-transmission electronics and requiring subscribers to install new set-top boxes and modems, Comcast could augment services.

Providing a degraded, 720i24 format of HDTV, while maintaining its repertoire of channels and continuing to use its 1980-era cables above and below the streets could be realistic. Even such a limited project might cost several million dollars to retrofit Comcast’s infrastructure in Brookline. The company would still retain a trouble-prone network of aging cables that has been irritating customers for years.

Silent voices: At the Wednesday hearing, no one spoke up for ordinary customers, surely the vast majority of those concerned about Comcast services in Brookline. The Board of Selectmen did not make any more than minimal, legally required efforts to publicize the hearing. Had they done so, the sixth-floor meeting room might have overflowed.

– Beacon staff, Brookline, MA, September 17, 2015


Mark Biegert, High-definition television bandwidth, Math Encounters (Maple Grove, MN), 2012

Karl Bode, Google fiber build estimate: $140 billion, DSL Reports (New York, NY), 2012

Heather Bellini, et al., Clash of the titans, Goldman Sachs Group, December 7, 2012

Craig Bolon, Broadband telecommunications: Brookline-based services, Brookline Beacon, August 22, 2015

Housing Authority: renovations, programs and project development, Brookline Beacon, August 11, 2014

Appeals Court: Brookline v. MassDevelopment

This Monday, September 14, at the Massachusetts Court of Appeals, Brookline presented arguments contesting a state-issued “project eligibility letter” for a proposed Chapter 40B housing development at Hancock Village. The case had begun at superior court in November, 2013. It was on appeal from an adverse ruling issued in September, 2014, allowing motions for summary judgment.

Twenty judges now serve on the Appeals Court. The panel for case number 2014-P-1817 consisted of Elspeth B. Cypher, appointed in 2000, Mark V. Green, appointed in 2001, and Sydney Hanlon, appointed in 2009. The case and court hearing attracted considerable interest, with five amicus briefs filed. Half a dozen Brookline town meeting members came to the hearing, held at the 1893 John Adams Courthouse in Boston on a sunny, mild day.

Town Counsel Joslin Murphy argued for the Town of Brookline. Benjamin Tymann argued for the Massachusetts Development Finance Agency (MDFA) and its chief, Martha “Marty” Jones of Winchester. Jason Talerman argued for other plaintiffs, several homeowners whose properties abut Hancock Village. Kevin O’Flaherty argued for the subsidiary of Chestnut Hill Realty (CHR), owner of Hancock Village, that applied for the 40B development.

Issues and arguments: Issues that were argued Monday emerged in briefs submitted early this year. With the procedure the Appeals Court follows, each lawyer got seven or eight minutes of presentation plus questions and answers–a brisk pace. The underlying contested issues were well known:
(1) Whether MDFA followed regulations when issuing a “project eligibility letter,” and
(2) Whether a 1946 agreement with the Town of Brookline still regulates Hancock Village.

Ms. Murphy and Mr. Tymann argued about the “project eligibility letter.” Mr. Talerman and Mr. O’Flaherty argued about the 1946 agreement. The basic issue about whether MDFA followed regulations for a “project eligibility letter” had been confounded by MDFA and CHR lawyers at superior court, contending that Brookline had not exhausted administrative remedies, citing a 2007 case. That side-issue dominated the Appeals discussions. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Initial questions from judges showed some unfamiliarity with Chapter 40B law and regulations, particularly those from Judge Green, who seemed to confuse the role of a local zoning appeals board with that of the state Housing Appeals Committee. Both plaintiff and defendant lawyers tried to fill gaps. Judges seemed to grasp circumstances somewhat better as the hearing went on.

Project eligibility: In arguing about the “project eligibility letter,” Ms. Murphy stressed a point made in the Town of Brookline brief: that MDFA failed to follow state regulations. Judge Green tried to steer toward MDFA and CHR viewpoints, but Ms. Murphy would not go there. After Judge Hanlon asked for clarification, she taught a short course: Chapter 40B in half a minute.

State regulations in 760 CMR 56.04(4)(b) require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.” For both elements, they require a “finding, with supporting reasoning, to be set forth in reasonable detail.” According to regulations as revised in 2008, if a state agency fails to follow the rules, there is no administrative remedy. Only developers now have any administrative appeal rights.

As in the MDFA defense brief, Mr. Tymann tried to string a tripwire, arguing that a “project eligibility letter” reflected only a “preliminary review.” Judge Green, perhaps having absorbed some instruction, queried, “The town can’t appeal to HAC?”–meaning the state’s Housing Appeals Committee.

“The town,” responded Mr. Tymann, “has opportunities…at ZBA hearings”–meaning at its local zoning board. “The project eligibility letter is a ticket to the dance contest. It does not mean you win.” Judge Hanlon sounded unconvinced. She asked, “Then anything else is off the table? Appropriateness of the site?” Mr. Tymann tried to skirt the issue. “The Land Court,” he said, “is reviewing all those issues.”

The Brookline case in Land Court, challenging a “comprehensive permit” issued by the Brookline Zoning Board of Appeals, did not begin for more than a year after its case against MDFA in superior court, challenging the “project eligibility letter.” If Brookline had been able to obtain prompt and thorough consideration in superior court, the Appeals Court and Land Court cases might not have happened.

Contract zoning: Mr. Talerman sketched background of the 1946 agreement between the Town of Brookline and the John Hancock Life Insurance Company, which convinced town meeting to rezone the property now called Hancock Village for apartments. As in the Town of Brookline brief, he cited two prior Appeals Court cases finding that public agreements over use of land were permanent.

Judge Green asked how the 1946 agreement differed from deed restrictions that expire after 30 years. Mr. Talerman responded that the distinction was made on the basis of public participation, involving a discretionary grant of regulatory authority. It has been a developing area of law, he said.

Mr. O’Flaherty called the 1946 agreement a “private agreement,” claiming it had lapsed after 30 years. Judge Hanlon asked how the circumstances differed from prior cases Mr. Talerman cited, in which towns allowed some zoning privileges in return for some restrictions. Mr. O’Flaherty said the 1946 agreement had “preceded a change in zoning.” Indeed it had, but only by a few days before Brookline’s town meeting voted on zoning.

Moreover, said Mr. O’Flaherty, by its terms the 1946 agreement lapsed if Brookline did not maintain the zoning enacted at the 1946 town meeting. Later, he said, Brookline had changed the Hancock Village zoning, claiming that “abrogated the agreement.” What happened was that in 1962 Brookline changed to a new zoning system. Within the new system, it created a special type of zone designed to be equivalent to the older type of apartment zoning assigned to Hancock Village in 1946.

After the hearing, Mr. Talerman explained that the Town of Brookline brief for the case had covered that issue. It was expected to be addressed during trial in superior court. So far, the trial has not occurred, because the superior court judge allowed a motion for summary judgment without considering such arguments.

Awaiting justice: Decisions in Court of Appeals cases are often accompanied by published opinions when they involve new directions in law, as this one seems to. However, those decisions are not particularly speedy. A survey of recent civil cases suggests Brookline might expect an Appeals Court decision in early 2016, probably well before the annual town meeting.

– Beacon staff, Brookline, MA, September 15, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Court of Appeals: Brookline’s first lawsuit over Hancock Village

Proposed development at Hancock Village in south Brookline has led to two lawsuits filed in state courts on behalf of the Town of Brookline. News reports so far don’t explain much about the differences between them. The first case, begun in 2013, challenges actions of a state agency. The second case, begun in 2015, challenges actions of the Brookline Zoning Board of Appeals. The first case is at the Massachusetts Court of Appeals in Boston on Monday, September 14 for a hearing on the merits.

Development plans: Between 2008 and 2011, executives at Chestnut Hill Realty (CHR) promoted plans for major development at Hancock Village, proposing up to 466 new housing units. Responses from nearby neighborhoods and Brookline government varied from concern to alarm. In November, 2011, Brookline enacted a neighborhood conservation law, making Hancock Village the first regulated district.

In 2012, CHR abandoned plans for conventional development under zoning, turning instead to Chapter 40B of the General Laws, Sections 20-23 and aiming to force through development in return for partly subsidized housing. To start such an approach, CHR needed sponsorship from a state agency. Rather than look to agencies mainly oriented to housing, CHR approached the Massachusetts Development Finance Agency (MDFA). Proposals were made through a CHR subsidiary called Residences of South Brookline, LLC.

In late 2012 and early 2013, MDFA reviewed a CHR proposal to add 271 housing units in 12 new buildings. This plan was similar to other CHR plans in its overall approach. There would be a high-rise structure over a rock outcrop, previously considered unbuildable: five stories of apartments above two stories of parking. There would also be 11 low-rise structures on unbuilt land near Russett and Beverly Roads that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

MDFA sought comments from Brookline and visited the site in December, 2012. In February, 2013, MDFA drafted a response, rejecting the CHR proposal because it was “not generally appropriate for the site.” The agency cited “complete elimination of the greenbelt buffer” and “massing of the…five-story building.” Possibly tipped off to impending rejection, CHR withdrew its proposal just before the response was to be sent.

The following June, CHR proposed to MDFA a revised project with 192 new housing units in 13 new buildings. Now, over the rock outcrop, there would be four stories of apartments above two stories of parking. Although the project still eliminated the greenbelt buffer and it still included a high-rise looming over the neighborhood, built over a rock outcrop, this time MDFA approved, sending a “project eligibility letter” in October, 2013.

Reversing its previously pending rejection, MDFA offered a sentence of justification. That said the project “is generally appropriate for the site taking into account factors such as proposed use, conceptual site plan and building massing, topography, environmental resources and integration into existing development patterns.”

Court of Appeals case: Within a few weeks, the Town of Brookline filed a case against MDFA in superior court, challenging validity of the project eligibility letter. As part of this first lawsuit over Hancock Village, the Town of Brookline also asserted rights under a 1946 agreement with the John Hancock Life Insurance Company, providing enduring restrictions on Hancock Village in return for the 1946 rezoning to allow construction of apartments.

In superior court, lawyers for CHR filed motions for summary judgment, arguing that claims by the Town of Brookline were inconsistent with prior cases and with state law. The circumstances are complex, but after a brief hearing on the motions, without considering circumstances in detail, Judge Patrick F. Brady of Norfolk Superior Court allowed the motions. Brookline appealed. On Monday, September 14, the circumstances will be reviewed in detail for the first time by a full panel at the Court of Appeals.

There are two main issues in the appeal:
(1) Did Judge Brady at Norfolk Superior Court make an error in dismissing claims by the Town of Brookline that the project eligibility letter was issued without adequate justification?
(2) Did Judge Brady make an error in dismissing Brookline claims about rights under a 1946 agreement with the John Hancock Life Insurance Company that led to rezoning Hancock Village for apartments?

Issue (2) might be of more interest to the second Brookline lawsuit–against the Zoning Board of Appeals, seeking to overturn the “comprehensive permit” the zoning appeals board granted this year. However, it was also cited in the first lawsuit–against MDFA. There it was opposed by CHR lawyers, through one of the summary judgment motions Judge Brady allowed–boosting the 1946 agreement into an early appellate orbit.

Project eligibility letter: Issue (1) arguments pressed by the Town of Brookline against MDFA claim the agency failed to follow state regulations. Under 760 CMR 56.04(4)(b), those require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.”

In both instances, state regulations require a “finding, with supporting reasoning, to be set forth in reasonable detail.” The Town of Brookline asserted that the agency merely recited, like cookbook exercises, the types of 760 CMR 56 findings it would need to make but did not explain them with “supporting reasoning” of any kind, much less with “reasonable detail.” [Plaintiff's initial brief, pp. 25-27]

The Town of Brookline asserted it has no useful remedy other than a lawsuit, because a change to state regulations in 2008–apparently made for the convenience of the state Housing Appeals Committee–relabeled agency findings for project eligibility letters “conclusive” and eliminated administrative reviews. [Plaintiff's initial brief, pp. 27-29]

For issue (1) MDFA owns the heavy lifting. Its response was bulked up with dozens of pages of regulations, case memoranda and official announcements. However, the gist of the defense came down to a bald assertion that a project eligibility letter is “merely an interim step” in project approval, quoting a Massachusetts case made obsolete by 2008 changes to state regulations. [Defendant's brief from MDFA, p. 1, quoting Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

The brief filed for MDFA danced around Brookline’s arguments about lack of justification for a project eligibility letter. It tried to treat a summary judgment allowed in superior court, after a brief hearing during a motion session, as though it were a settled matter of law. Instead, the purpose of an appeals case is to examine reasoning applied by a lower court. [Defendant's brief from MDFA, p. 7] [Standard of review, in Plaintiff's initial brief, p. 13]

For this case, there is little reasoning from a lower court to be examined. At Norfolk Superior Court, Judge Brady merely stated that he “remain[ed] of the view that [the Marion case] applies,” without explaining why it should–over arguments from the Town of Brookline that changes in state regulations made it obsolete. [Plaintiff's initial brief, pp. 23, 27-29 and 31-33]

The brief filed for MDFA also claimed that the state provides for a “post-permit review”–apparently meaning administrative procedures after a “comprehensive permit” has been granted. However, post-permit procedures do not include comments, and they focus on “cost examination.” There is no process for an appellant to challenge whether a site is “appropriate for residential development” or whether a “conceptual project design” is “appropriate for the site.” [Massachusetts regulations 760 CMR 56.04(7), final approval]

As the Town of Brookline observed, without a court review “of project eligibility, abutters [including the Town of Brookline] are left without any meaningful recourse.” They might have a further opportunity for administrative review only if the developer were dissatisfied with Brookline zoning appeals board actions and sought relief from the state Housing Appeals Committee. However, CHR representatives stated at a public hearing that they were satisfied with outcomes from the zoning appeals board. [Plaintiff's reply brief, p. 6]

The brief filed for CHR also opposed court review of a project eligibility letter, ignoring 2008 revisions to state regulations that closed off administrative appeals and claiming project eligibility is not a “final agency action.” CHR accused the Town of Brookline of trying to subvert purposes of Chapter 40B, Sections 20-23 with “lengthy and expensive delays occasioned by court battles.” [Defendant's brief from CHR, p. 19]

In response, the Town of Brookline quoted the court opinion in the same case CHR referenced, “…interest in…affordable housing must be balanced against…protection of health and safety…and preservation of open space.” [Plaintiff's reply brief, p. 8, quoting Standerwick v. Zoning Board of Appeals of Andover, Supreme Judicial Court, 2006]

Like MDFA, CHR did not respond to the Town of Brookline’s argument that “post-permit review” leaves no process for an appellant to challenge whether a site is “appropriate for residential development” and whether a “conceptual project design” is “appropriate for the site.” [Defendant's brief from CHR, pp. 23-25] [Massachusetts regulations 760 CMR 56.04(7), final approval]

Contract zoning restrictions: Issue (2) arguments pressed by the Town of Brookline against MDFA and CHR claim the proposed project would violate terms of a 1946 agreement with the Town of Brookline by the John Hancock Life Insurance Company. For this issue CHR owns the heavy lifting, since its financial interests are at stake.

At Norfolk Superior Court, MDFA and CHR claimed that any requirements from the 1946 agreement had been extinguished after 30 years by Chapter 184, Section 23 of the General Laws. However, that law governs recorded deed restrictions. Previous Massachusetts cases held that it does not limit public agreements, including ones sometimes called “contract zoning.” [Plaintiff's initial brief, pp. 3-4 and 14-19, quoting Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011]

The Appeals Court may regard the Killorin case as particularly relevant, since two of the three judges who heard that case have been assigned to the current Brookline case: Elspeth B. Cypher and Sydney Hanlon. The Town of Brookline asserts that it has a continuing interest in the 1946 agreement, that the proposed project would violate the agreement and that at Norfolk Superior Court Judge Brady conducted a “myopic review,” finding the Killorin decision applied only to a special zoning permit. [Plaintiff's initial brief, p. 21]

The brief filed for CHR did not respond forthrightly to arguments from the Town of Brookline. Instead, CHR asserted, “It is settled…restrictions which burden land such as those contained in the 1946 agreement can only be enforced for a period of 30 years.” However, whether or not that may be true is a main dispute in the current Appeals Court case. Wishing won’t make it so. [Defendant's brief from CHR, p. 28]

The CHR brief repeated arguments offered at Norfolk Superior Court, saying that the Killorin case “involved conditions imposed on a property by a special zoning permit.” However, the court’s summary of its decision shows it regarded special permits as examples, writing that the law at issue “did not apply to conditions or restrictions set by a government agency such as a local zoning board of appeals as part of the process of granting a special permit. [Defendant's brief from CHR, p. 28] [Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011, emphasis added]

CHR based its brief on selected quotations from court opinions, trying to argue that exceptions to the law limiting deed restrictions to 30 years applied only to special zoning permits or subdivision control, topics under which cases arose. A recent Appeals Court decision expressed a broader view, as the Town of Brookline argued in its response. [Plaintiff's reply brief, pp. 10-11]

The recent decision said, “The holding of Killorin does not turn on the identify of the local board or on the particular nature of the regulatory decision at issue.” It explained that “the key distinction was…the discretionary grant…under the police power”–that is, the general regulatory powers of a municipality. [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Analysis: In its fairly aggressive reaction to the project eligibility letter issued by MDFA, the Town of Brookline appears to be pursuing a strong remedy, seeking early intervention by a superior court rather than waiting for a “comprehensive permit” and then asking for intervention from the Land Court, as Brookline now has also done.

The main argument for early intervention by a superior court has been a claim that 2008 revisions of state regulations closed off avenues for administrative appeals. MDFA and CHR objected that no right to early intervention is provided by state law, but they did not address an equity argument that administrative remedies formerly available have been withdrawn.

In bidding to sustain a 1946 contract zoning agreement, the Town of Brookline is also treading on unusual territory. So far, no one has cited another such agreement by a Massachusetts town that was brought to a town meeting rather than negotiated through a planning board or zoning appeals board. The extensions from circumstances of prior cases may seem obvious, but they are hardly foregone conclusions.

– Craig Bolon, Brookline, MA, September 12, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015 (missing the preamble and table indexes)

Defendant’s brief from MDFA, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (11 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Defendant’s brief from CHR, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (10 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Plaintiff’s reply brief, Case 2014-P-1817, Massachusetts Court of Appeals, March 13, 2015 (4 MB)

Project eligibility letter, issued to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, October 8, 2013

Draft denial of project eligibility, addressed to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, February 13, 2013 (obtained by Town of Brookline via discovery)

Comprehensive permits [under Chapter 40B], Massachusetts regulations 760 CMR 56, Executive Office of Housing and Economic Development, 2015 (current version)

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Eric H. Killorin and others v. Zoning Board of Appeals of Andover and another, 80 Mass.App.Ct. 665, October 14, 2011

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Eileen Standerwick and others v. Zoning Board of Appeals of Andover and another, 447 Mass. 20, June 16, 2006

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Town boards: special tokes for “special” folks

Members of town boards, commissions, committees and councils may become “special municipal employees” when they are not performing paid duties as regular municipal employees. Such a classification is not automatic in most cases but must be established by a vote of a board of selectmen in a Massachusetts town. Such a vote will apply to all who hold a specified type of position and not to particular individuals.

The “special” people: A “special” designation allows lawyers on a regulatory board to hear and decide cases that are presented by other lawyers in the firm where they work, as long as they did not participate in those particular cases. The “special” people can work and be paid in arrangements for town business as long as their duties for town boards or agencies do not involve the particular arrangements. Those remain dubious practices–more understandable in a small rural town with few lawyers, professionals and businesses than in an large urban town with many of each.

Members of a board of selectmen in a large town are not eligible for “special” designation, whether or not they are paid for serving. Others who receive pay for municipal work are generally not eligible unless they perform 800 or fewer hours of paid municipal work a year.

The Brookline Board of Selectmen is known to have awarded the “special” designation to members of the Zoning Board of Appeals and the Housing Advisory Board. Participation in various matters that could be viewed as conflicts of interest suggest that Planning Board, Transportation Board and Building Commission members might also enjoy “special” status.

A list of organizations with “special” status is supposed to be “on file” in the town clerk’s office. During former years that some have come to regard as flirting with corruption, members of many town boards, commissions, committees and councils are said to have been designated as “special.” However, no list of Brookline’s “special” designations could be found on the municipal Web site.

Training on the laws: At this year’s fall town meeting, scheduled for November 17, Article 8 seeks to require training about laws on conflicts of interest for town meeting members. Some will have already received training because they are also members of town boards, commissions, committees and councils or because they volunteered for it.

Section 3.20.1 of Brookline’s general bylaws–enacted under Article 18 at the May 23, 2006, annual town meeting–applies to members of town boards, commissions, committees and councils. It requires attending training sessions about laws on conflicts of interest and open meeting requirements, organized by the Office of Town Counsel in Brookline.

Article 8 at this fall’s town meeting would allow watching an online lecture about laws on conflicts of interest and requires no training on open meeting requirements. Practical experience has shown that training sessions organized by the Office of Town Counsel proved more effective than lectures, because of questions and answers reflecting specific, local situations.

A list of members of town boards, commissions, committees and councils who have received required training is supposed to be “on file” in the town clerk’s office. However, no such list could be found on the municipal Web site.

– Craig Bolon, Brookline, MA, September 10, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Special town employees, in Minutes, Brookline, MA, Board of Selectmen, June 2, 2009, see pp. 6-7

Special municipal employees, Massachusetts State Ethics Commission, 1992

General bylaws, Town of Brookline, MA, November 18, 2014 (3 MB)

Special municipal employee, defined in Massachusetts General Laws, Chapter 268A, Section 1, paragraph (n)

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Land Court: Dueling boards, Selectmen v. Zoning Appeals

At the Massachusetts Land Court, the Brookline Board of Selectmen faced a motion to remove Town Counsel Joslin Murphy and members of her staff as their representatives in a lawsuit they had filed against members of Brookline Zoning Board of Appeals. It’s a strange case, essentially one town board suing another.

After hearing arguments starting at 10:30 am Thursday, September 3, Judge Gordon Piper indicated he would allow the motion unless the Town of Brookline provides its zoning appeals board legal representation in the case before the end of September.

Hancock Village controversy: Chestnut Hill Realty of West Roxbury, through subsidiaries, originally proposed building 466 new apartments on parts of Hancock Village in south Brookline. After false starts, they reduced the scope of the project and proposed using powers under Chapter 40B of the General Laws, Sections 20-23, to override Brookline zoning in return for building partly subsidized housing.

On February 4, 2015, after more than a year of hearings, Brookline’s zoning appeals board voted unanimously to grant a so-called “comprehensive permit” to build 161 apartments plus 292 parking spaces. There would be a high-rise structure over a rock outcrop, previously considered unbuildable, plus low-rise structures on unbuilt land that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

In a closed session at a meeting March 3, as confirmed by participants, the Brookline Board of Selectmen voted to sue the Brookline Zoning Board of Appeals. A complaint was filed in the Massachusetts Land Court on March 11, seeking to annul and revoke the permit: Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others. That became Land Court case 2015-MISC-000072.

The Town of Brookline stands directly affected by the permit partly because it owns two abutting properties: Baker School land and D. Blakeley Hoar conservation land. Other plaintiffs in the case are residents who own abutting private property. Main defendants are the zoning appeals board members who voted to grant the permit: Jesse Geller, Christopher Hussey and Jonathan Book–named in their roles as town officials. Other defendants are the Chestnut Hill Realty subsidiary awarded the permit: Residences of South Brookline, LLC.

Legal representation: The Board of Selectmen opposed the Hancock Village project throughout 2014 and, so far, 2015. However, that board assisted the zoning appeals board with services of outside counsel, who attended hearing sessions and offered advice. The Board of Selectmen approved several requests to the Advisory Committee for reserve fund transfers to pay for outside counsel. Funds went through both the Legal Services department and the Planning and Community Development department.

According to online town records, during fiscal 2014 and fiscal 2015 Brookline paid two firms who advised the zoning appeals board a total of $295,121 for services: Krokidas and Bluestein, of Boston, and Edith M. Netter and Associates, of Waltham. The lawyers who attended the appeals board sessions were Samuel Nagler and Kathryn Murphy from the Boston firm and Edith Netter from the Waltham firm. All testimony and advice was in public sessions recorded by Brookline Interactive Group.

At Land Court this week, Judge Piper appeared familiar with the background of the Brookline case. Before arguments, he expressed concern that no legal appearances had been filed for the Brookline Zoning Board of Appeals members and that no counsel attended the hearing to represent their interests.

According to communications, Judge Piper said, legal appearances were supposed to have been filed in June. Brookline Town Counsel Joslin Murphy responded that there was “no funding in place.” Judge Piper asked, “Was it requested?” Ms. Murphy said, “Selectmen were asked for support…they did not authorize any.”

Kevin O’Flaherty, representing Chestnut Hill Realty interests, maintained that Ms. Murphy and her staff had “unwaivable conflict,” responsible to represent two boards with opposing outlooks. The judge asked where there had been practical problems. Mr. O’Flaherty contended there might be problems such as obtaining documents, noting there was no counsel to contact for the zoning appeals board members.

Ms. Murphy countered that “the town has responded to discovery requests.” She noted that all sessions and records of the zoning appeals board were public and that Brookline’s Department of Planning and Community Development had provided staff support to retrieve records. She said that “the chairman of the ZBA [Zoning Board of Appeals] did correspond with the court.”

Zoning agreement: Jason Talerman, representing other plaintiffs in the case, opposed removing Ms. Murphy and her staff from the Land Court case and noted a related case now pending in the Court of Appeals. A key issue in the Appeals Court case has been a 1946 zoning agreement between the Town of Brookline and the John Hancock Life Insurance Company, specifying enduring restrictions on Hancock Village development.

Mr. Talerman had previously raised the issue in a memorandum sent on December 31, 2014, to the Brookline Zoning Board of Appeals. As in that memorandum, under the 1946 agreement, he told Judge Piper, “The project as proposed would be impossible.” In its comprehensive permit, however, the zoning appeals board took no notice of the 1946 agreement.

Threat: After more than an hour of argument, Judge Piper seemed unmoved by the particulars and returned to his initial concern over lack of legal representation for Brookline’s zoning appeals board members, saying he found it “deeply troubling.” Board members, he said, were left “entirely speechless, unable to be heard.” Since the members are being sued in their official capacities, they are apparently ineligible to present arguments pro se as plaintiff or defendant individuals might.

According to Judge Piper, “The developer,” apparently meaning the subsidiary of Chestnut Hill Realty, “is limited in its ability to gain access to the minds of the [appeals] board…I will not rule at the moment, [but]…if there is continued inability to hear from the board…I will be strongly inclined to allow the motion.” If that threat were carried out, however, it would instead leave both the main plaintiff and the main defendants in the case unrepresented.

As acknowledged to the Beacon by Ms. Murphy, Brookline has several sources of funds, including her office’s budget for outside legal services, the contingency fund and “in the worst case” a request to the Advisory Committee for a transfer from the reserve fund. Ms. Murphy did not succeed with her most recent reserve fund request.

Mysteries: Partly owing to statements in open court from Ms. Murphy, mysteries remain. There is no docket entry in the case for a communication from Jesse Geller, who chairs the zoning appeals board. If he is ineligible to represent himself in the case yet did “communicate with the court,” then how, when and what did he communicate?

Records should say whom the Board of Selectmen asked for advice about a request to provide funds for outside counsel to represent members of the zoning appeals board in the Land Court case, also what advice was offered and what members of the Board of Selectmen had to say. How and why did members of the Board of Selectmen “not authorize any” funds to represent members of another town board with whom they disagreed on a key issue?

– Beacon staff, Brookline, MA, September 5, 2015


Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court case 2015-MISC-000072, filed March 11, 2015 (click button to search public records, select Land Court Department and Case Number tab, enter case number “15 MISC 000072″ and click Search button, click any Case Number item for “15 MISC 000072″)

Complaint, Town of Brookline and others v. Jesse Geller, Member of the Brookline Zoning Board of Appeals, and others, Massachusetts Land Court, March 11, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for KROKIDAS and BLUESTEIN LLP, August, 2015

Town of Brookline, MA, FY2015 accounts, Vendor payments for EDITH M NETTER and ASSOCIATES PC, August, 2015

Comprehensive permit for The Residences of South Brookline, LLC, on the site of Hancock Village, Zoning Board of Appeals, Town of Brookline, MA, February 20, 2015 (4 MB)

Town of Brookline and others v. Mass. Development Finance Agency and others, Massachusetts Court of Appeals case 2014-P-1817, filed November 14, 2014

Jason Talerman to Brookline Zoning Board of Appeals, Re: Chestnut Hill Realty, Chapter 40B application, Brookline Department of Planning and Community Development, December 31, 2014

Irene Scharf and Jason Talerman, Testimony at Brookline Zoning Board of Appeals, February 24, 2014, see pp. 13 and 45-48

Advisory Committee: probing a disconnect, Brookline Beacon, July 29, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Board of Selectmen: Hancock Village, budget reviews, Brookline Beacon, March 4, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Board of Selectmen: Hancock Village, financial plan, Brookline Beacon, February 21, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Board of Selectmen: opposing Hancock Village 40B, defending METCO, Brookline Beacon, September 17, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B, Brookline Beacon, September 9, 2014

Judith Leichtner, Comments to Brookline Zoning Board of Appeals on proposed chapter 40B development at Hancock Village, September 8, 2014

Zoning Board of Appeals: Chapter 40B project at Hancock Village, Brookline Beacon, June 20, 2014

Brock Parker, Developer gets green light to pursue a 40B project in Brookline, Boston Globe, October 24, 2013