Monthly Archives: February 2016

MMA Best Practices


The Massachusetts Municipal Association published in January a series of “best practices” for towns in Massachusetts, and I thought I would share them as I had time. This process is where we can share the collective knowledge of all the other towns, as we figure out how best to do things.

The first “best practice” is about how much we should have in reserves, and the MMA recommends more than 5% or two months of  your operating funds.  Our budget is about $60m./year, so I make that amount to be about $10m.  I think that is about twice what we have.

MMA Fiscal Policy Committee
Best Practice Recommendation: Municipal Reserves

BEST PRACTICE: Adopt, as a set policy or practice, adequate funding of municipal reserve accounts to mitigate budget risks from extraordinary and unforeseen events and maintain fiscal stability over time. This could include the adoption of reserve funding targets of 5 percent or more, based on the size of the municipal budget and consideration of spending and revenues risks. This could also include the identification of specific year-end fund balances or revenues from other sources
to contribute to reserve accounts. A good policy or practice could also include rules for the use or draw down of reserves and for replenishment of depleted accounts.

It is widely recognized that those state and local governments that have established and funded reserve and stabilization accounts at sufficient levels have been well-served, because reserves allow states and localities to sustain services in times of economic and fiscal distress and limit the risk from extraordinary and unforeseen occurrences. Sound policies and practices, along with adequate levels of reserves, can also have a positive impact on credit ratings and can reduce  the cost of borrowing and capital project spending.

The Division of Local Services advises that a good reserve policy will establish target balances for the local stabilization fund and other reserves and “develop a schedule of annual appropriations … designed to reach and sustain target balances gradually over time.”

A Best Practice adopted by the Government Finance Officers Association (GFOA) Executive Board recommends that “governments establish a formal policy on the level of unrestricted fund balance that should be maintained in the general fund.” The GFOA suggests that the balance be maintained at no less than two months of general operating fund revenues or expenditures, although the amount of the balance and the measurement depend on the specific circumstances of the municipality. The GFOA also recommends that the purpose of various parts of the fund balance be specified, including, for example, “a portion for working capital, one for budgetary stabilization, and one for responding to extreme events.”

References from the Government Finance Officers Association (GFOA):

BoS on 2/23

This may be the shortest agenda I have ever seen, but the meeting could still take some time.


Town Hall, Chenery Meeting Room, 2nd floor Tuesday February 23, 2016@ 7:00 PM

Review of Articles for Annual Town Meeting

Other business that may arise

Candidate interviews

The LWV does not exist by name, but the Cheryl Dunlea and the other individuals who have done the candidate nights in the past for the LWV are instead doing candidate interviews this year, and the interviews are now ready for online viewing via the links below.



Hello all!

The staff of Medfield TV worked wonders!!  The first round of interviews for Medfield Town Elections on March 28th have been edited and are now on Medfield TV and on You Tube.  The second round of interviews will be taped on February 25th and will be ready the week after.

Hope you enjoy watching them!

Thank you all for your support of this new idea.

A special thank you to:

Carol Mayer, Town Clerk

Kevin Murphy, Medfield High School Social Studies Teacher

Aditi Thatte, and the staff of Medfield TV.

Please let me know if there is anything you would like to change, and if we should try this format again next year.

Take care,

Medfield Elections- Medfield TV youtube links below:

Meet the Candidates for School Committee:

Meet the Candidates for Trust Fund Commissioner:

Meet the Candidates for Planning Board:

Meet the Candidates for Selectman:

Meet the Candidates for Housing Authority:

Meet the Candidates for Library Trustee:

Yahoo Mail Stationery

2/16/16 BoS meeting




Board of Selectmen meeting notes from 2/16/16:

  • Number of selectmen:  Abby Marble suggested to selectmen that the town would be better served by a board composed of five selectmen instead of three.  The board went through a discussion of the mechanisms by which a town has to implement a charter commission in order to have that issue addressed and discussed. Selectmen DeSorgher noted that with five selectmen, that selectmen would then be permitted to speak with one another outside of meeting without violating the open meeting law.  A future meeting with the Charter Review and Bylaws Committee will be scheduled.
  • Sidewalks:  The selectmen had received information on preferences for future sidewalks from the Police Chief, DPW Superintendent, and School Superintendent.  Based on their recommendations, the selectmen prioritized as the next sidewalks to be built in town the ones on Metacomet Street and the one on Dale Street. The selectmen asked for more information as to costs from the DPW superintendent on the two sidewalks recommended on E. Main St. and Adam Street, so that they could make a decision between the two.
  • Energy committee:  The selectmen sent a letter by the energy committee legislative leadership in support of continuing solar photovoltaic state support by means of SREC’s and net metering. Selectmen also discussed the Energy Committee recommendation to buy the streetlights in town and replace them all with LED fixtures, which would save about $25,000 per year in energy costs. Mike Sullivan raised issues about the possible maintenance issues for which the town will be responsible for the fixtures, to which I suggested that can be solved by hiring a maintenance contractor to take care of the fixtures for the $5000 per year recommended by the Energy Committee which prices included in the projected savings.
  • Hospital Road 40 B:  The Larkin Brothers developers have now accumulated approximately 8 acres next to the Medfield State Hospital (former Mozer property and adjoining lands) and are reportedly planning a 40 development there with 40 to 60 units. Each unit would be approximately 2500 ft.².  I was tasked to meet with the Larkin’s to discuss ways in which their development could be changed to be more acceptable to the town – Mike Sullivan suggested age restricted housing with first floor master suites.
  • Hospital Road water main:  At the request of the town administration, the selectmen signed amendment to the Environmental Partners Group, contract to add $38,000 project not being completed on time. Additionally, Mike Sullivan reported that the  contractor will be repainting Hospital Road curved to curb this summer to complete its contract.
  • Community Compact:  Lieut. Gov. Polito came to the town house yesterday to sign the community compact with the town making Medfield the 144th town to sign on. We will get a $30,000 grant towards our 20 year capital planning project.  There is the possibility of a $50,000 risk analysis IT grant available as well.  Medfield has designated transparency and citizen engagement as among the topics the town wanted to focus on as part of the community compact.
  • Sgt. Burton of the Medfield Police Department was appointed to be Community Emergency Response Coordinator.
  • DPW workers breakfast allowance was increased from $8 to $10.
  • Selectmen DeSorgher reported that February 21 is the 340th anniversary of the attack on Medfield by King Philip.


Municipal Modernization Bill status

State-House-smaller_1 (1)

Here is an email exchange that gives you the current status of the Municipal Modernization Bill from our State Representatives -interesting that it has been broken into five parts for hearing purposes –


Denise and Shawn,

I hope you will support the Municipal Modernization Bill – the Massachusetts Municipal Association was asking us today to contact you about it.  Thanks in advance.

Best, Pete


Dear Pete,

It has been broken into 5 parts and is being heard in 5 different committees. I believe this is with the intention to expedite  the components.

I will follow the pieces carefully.

Hope all is well with your family and Medfield!



Shawn Dooley

Hey Pete.

Already voted to accept the sections that were sent to Revenue so hopefully the rest of committees will follow as well.

Met with Chairman of ways and means earlier today and asked for the bills to be reconsolidated into one big bill again.  Non committal but expressed that the Lt gov asked for the same thing.

Thanks so much for the note.


Shawn Dooley

State Representative, 9th Norfolk

Medfield, Millis, Norfolk, Plainville, Walpole, & Wrentham.



Municipal Modernization Bill

This today from the MMA on the Municipal Modernization Bill –



February 16, 2016


Please Call Your Legislators Today and Ask Them to Pass the Municipal Modernization Act Now

Legislative hearings have been completed on the sweeping Municipal Modernization Bill that Gov. Baker and Lt. Gov. Polito filed in December. Five different committees heard testimony from scores of local officials and stakeholders during the past five weeks, and the next step will be for the legislation to be reassembled into one strong package for votes in the House and Senate.

Because several of the important reform measures in the Municipal Modernization Act are opposed by special interest groups, your legislators will need to hear from you.

The Governor’s Municipal Modernization Act (H. 3905) features dozens of welcome reforms related to procurement, municipal finance, human resources, economic development and the general administration of local government. The bill was based on a wide range of input from local leaders, and is built around four major actions: 1) updating and repealing obsolete state laws; 2) promoting independence at the local level; 3) streamlining state oversight; and 4) providing municipalities with greater flexibility and day-to-day decision-making powers.


  • Giving cities and towns control over the number of liquor licenses that can be issued to restaurants and bars in the community;
    • Enacting unemployment insurance reforms to prevent school crossing guards, school bus drivers, and others from collecting unemployment payments during school vacations;
    • Allowing cities and towns to decide whether to exempt positions from Civil Service;
    Increasing procurement thresholds to eliminate unnecessary red tape and delays for simple purchases;
    Certifying the full and fair value of property values every 5 years, instead of every 3 years;
    • Replacing many of the mandatory paid classified ads for zoning and other notices with electronic posting as used in the Open Meeting Law; and
    • Giving municipalities the ability to levy fines to enforce the requirement that utilities remove double poles within 90 days.

The bill includes over 200 provisions that would update and reform a wide swath of state laws governing everything from basic municipal finance and administration to allowing cities and towns a first option to purchase tax-exempt property, and was written based on suggestions made by local officials on ways to make running local government more efficient and less costly, and to return “home rule” authority to cities and towns where it makes sense. The bill includes a number of proposals from the MMA’s legislative package.

Information about the municipal modernization bill can be found on the MMA website by clicking here.


Earlier this year, legislators divided the Municipal Modernization Act into five smaller bills, and sent them to different committees for public hearings.

With public hearings concluded, it is now time to bring the parts back together into a single consolidated bill and make plans for debate and passage in the House and Senate.

With the end of formal legislative sessions only 5½ months away, there is no time to waste. Please call your legislators today and ask them to reassemble the Municipal Modernization Act into one strong bill, and ask them for a commitment to pass the bill early this spring.

When you speak with your legislators, please ask them to talk to the leaders in their branches (the Speaker of the House, the Senate President and the Chairs of the House and Senate Ways & Means Committee) and seek a commitment to take up and enact a consolidated bill before the session ends.

The Municipal Modernization Act Will Help Every City and Town

Please Ask Your Legislators to Make the Bill a Top Priority this Session

Energy Committee on 2/11


MEC Meeting Minutes-February 11, 2016

Attendance: Andrew Seaman, Lee Alinsky, Cynthia Greene, Pete Peterson, Maciej Konieczny, Fred Davis, Marie Nolan

  1. January 13 meeting minutes accepted with additions.
  2. High School Students – not in attendance.
  3. Energy Manager’s Report
    1. WWTP Solar – Could start generating next week. PV system will be accepted by Town 3/1/16. On wait list for SRECs.
    2. 60 kW system is being considered for Public Safety Building. Roof weight and conduits sized for this system. Dore & Whittier drawing up plans. About a 7 to 9-year payback with SRECs. Options include having it done by GC or going out to bid later. Building construction estimated to be done October 7, 2016. Awaiting word on expansion of SREC program before moving forward with these plans.
    3. LED streetlights – Revised analysis provided by Fred D and Andrew S. Fixtures and installation costs $104,864 ($88,677 after incentives). Results in savings of $34,740/year including utility incentives and installation. Simple payback of 2.6 years to replace all 347 lamps with new LED fixtures after purchasing old HID fixtures for $1. Andrew confirmed $1 price from Eversource, offer good until April after Town Meeting. If Medfield did not purchase streetlights, likely replace with high sodium fixtures like existing on as need basis. Concluded best to replace all 347 streetlight all at once. Westwood used this approach with grant money from Green Communities. Andrew S. will investigate adding line item for streetlight purchase in this year’s capital budget or adding a warrant article. If wait one year, then forgo the $34,000 savings for one year. Streetlights are mounted on Verizon poles. Town owns arm and lamp itself. LED light warranty is 10 years. Money could be set-aside annually in reserve fund to pay for replacement in 15 years.
  4. Solarize Massachusetts’ status – Marie N. presented proposal at last week’s Selectmen’s meeting.   The program received endorsement by them and a letter of support was written. Andrew S. is to submit application with attachments to Mass CEC tomorrow. It could take 4-6 weeks to learn whether application is accepted.
  5. Community Shared Solar – similar to virtual net metering. Lee A. described the renewable Mass based program and will present possible projects for Medfield residents to consider at a future meeting.
  6. Next steps for Green Communities: MEC presented at Warrant Committee and Hospital Reuse Committee. Warrant committee will vote on stretch code article at their February 23rd MEMO meeting cancelled due to snow. Andrew S. scheduled to present at Permanent Planning & Building Committee but he may be on leave at the time. COA meeting to be scheduled. Recommended that at least I MEC member joins Andrew S at these meetings. Other community groups to present at: Lions, New in Towne, Medfield Green, and Legion. Andrew S will develop 5-year Energy Plan pending stretch code approval at Town Meeting. Press Release to be written on town energy-related initiatives. Looking into a possible writer to interview Andrew S.
  7. MMA Annual Meeting, Energy Session attended by Fred D. – Reported out the remarks made by the ISO-New England representative and the MA Energy Commissioner.   General sentiment was that new natural gas pipelines are not needed in the state.   Also reported at the meeting that over half (155) of MA towns are designated Green Communities.

Next month’s meeting – tentatively scheduled for March 17, 2016. Location and date to be confirmed.


New sidewalk rankings


Tonight the BoS will discuss the input from DPW, the schools, and Police on what the town order of priorities should be for new sidewalk construction in town.  These are the recommendations from those three:

The Superintendent of Public Works recommendations, in order of preference,
for new sidewalks is as follows:

1. Metacomet from South Street to Pleasant Street.
2. Adams Street from Dale Street to West Street.
3. Adams Street from West Street to West Mill Street.
4. West Mill Street from Adams Street to Ice House Road.
5. Dale Street near Charlesdale.
6. Ice House road to Copperwood.

school department would request sidewalks at the following streets:

Metacomet St- This would be our first priority
Adams St.- Important for Dale St. students
Green St. to Summer St.- This would finish the area that began last year
Friary St.- This will help with planned adjustments to bus routes

From Police Chief Meaney
Recommended sidewalk construction:

Metacomet Street; Dale street; East Main Street


Let the selectmen know today if you have an opinion.

ZBA’s broad discretion on LCB


The ZBA has really broad discretion in dealing with the LCB petition, as noted in the 2015 Massachusetts Appeals Court case below.

In this case, the Lennox ZBA hung its denial of a permit for a proposed residential retirement community on the thinnest of grounds, and yet the courts upheld that exercise as being within the ZBA’s discretion:  “In general, Board members agreed that the proposed project was simply too dense and too out-of-character  with its surroundings.”  This despite that the proposed density was not different than what was already there.

Note however the strong dissent. Some commentators have liked the dissent better, but it is not what has prescedence.

Buccaneer Development, Inc. vs. Zoning Board of Appeals of Lenox.

No. 14-P-855.


87 Mass. App. Ct. 871; 35 N.E.3d 737; 2015 Mass. App. LEXIS 107

April 8, 2015, Argued
August 11, 2015, Decided

PRIOR-HISTORY:    Suffolk. Civil action commenced in the Land Court Department on January 9, 2008.
After review by this court, 83 Mass. App. Ct. 40 (2012),  the case was heard by Dina E. Fein, J., sitting by designation, on a case stated.
Buccaneer Dev., Inc. v. Zoning Bd. of Appeals, 83 Mass. App. Ct. 40, 980 N.E.2d 458, 2012 Mass. App. LEXIS 293 (2012)

HEADNOTES-1 Zoning, Special permit, Board of appeals: decision.
A town’s zoning board of appeals (board) acted within its discretion and conformably with the applicable by-law in denying a special permit to build a residential retirement community, where the board’s decision was firmly grounded in its assessment that the proposed use failed to be in harmony with the by-law’s general intent and purpose, was not essential or desirable to the public conveniences or welfare at that location, and would be detrimental to adjacent uses or to the established or future character of the neighborhood.  Berry, J., dissenting.

COUNSEL: Brett D. Lampiasi for the plaintiff.

Jeremia A. Pollard for the defendant.

JUDGES: Present: Berry, Milkey, & Massing, JJ.


Massing, J. In denying the plaintiff developer’s request for a special permit to build a residential retirement community, the defendant zoning board of appeals of Lenox (board) was frank: “In general, Board members agreed that the proposed project was simply too dense and too out-of-character  with its surroundings.” A judge of the Housing Court, sitting by designation in the permit session of the Land Court, reviewed the board’s decision under G. L. c. 40A, § 17, and after a bench trial, including a view of the project site, affirmed the denial of the special permit. We affirm.
Background. The plaintiff, Buccaneer Development, Inc. (Buccaneer), seeks to build a residential retirement community for individuals fifty-five years of age and older, consisting of twenty- three single-family townhouses on twenty-three acres of land in the town of Lenox (town). The parcel, which is located on East Street in a residential zoning district, is adjacent to sixty-eight acres of protected open space to the north and northeast. It is situated between four single-family homes to the west, on lots ranging from .49 to 2.75 acres, and a 1950s era cul-de-sac development to the east, of seventeen modest single family homes on a total of 8.2 acres. To the south lies the Cranwell resort and associated properties, including a golf course, mansions, ten condominium units on one-acre lots, and a housing development of thirty-seven units on twenty-one acres. The public high school is located approximately eight-tenths of one mile north on East Street.
On June 22, 2007, Buccaneer submitted an application for a special permit to the board.1 After a series of public hearings, the board voted 5-0 to deny the application on December 12, 2007, and its decision was filed on December 28, 2007. The decision records the board members’ reasons for denying the application. Citing various subsections of the applicable town zoning by-law (by-law), one member “noted that the proposed development was unduly dense and would be detrimental to the established ‘small town’ character of the neighborhood,” and another stated that “it was neither essential nor desirable to the public welfare at the proposed location.” A third member said “it was not in harmony with the general intent and purpose of the Bylaw, it was not desirable to the public welfare, it would be detrimental to adjacent uses and the established character of the neighborhood, and would exacerbate existing traffic hazards.” The two remaining members “concurred,” both noting that the requirements and purposes of the by-law were not satisfied.

1   Under § 6 (“Use Regulations”) of the town’s zoning by-law, as in effect at the relevant time, a special permit was required to build a retirement community in a residential (R1A) zone.
Buccaneer sought relief from the board’s decision by filing a complaint under G. L. c. 40A, § 17, in the Land Court. As explained in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 980 N.E.2d 458 (2012) (Buccaneer I), on February 1, 2008, the board filed a notice of transfer, and, over Buccaneer’s objections, the complaint was ultimately heard in the Housing Court. A judge of the Housing Court affirmed the board’s denial of the special permit on September 20, 2010, and a corrected judgment issued on December 14, 2010. Id. at 45.  Buccaneer appealed from the Housing Court judge’s decision, and we vacated the judgment on the ground that the Housing Court lacked subject matter jurisdiction under G. L. c. 185, § 3A. We remanded the case for redetermination in the permit session of the Land Court, directing that “[t]he case shall be adjudged in light of the town by-law as it existed in December, 2007.” Buccaneer I, supra at 45 n.7.
On remand, the Chief Justice of the Trial Court, acting under G. L. c. 211B, § 9, designated the same Housing Court  judge who had tried the case as a justice of the permit session of the Land Court, nunc pro tunc to February 1, 2008. The trial judge then issued an order to show cause why she should reopen the case rather than go forward on a “case stated” basis. See Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989, 991, 475 N.E.2d 408 (1985). Buccaneer responded that it did not object to the “case stated” procedure, but reserved its objection to “this Court exercising jurisdiction over this action in the first place.” The judge then adopted her prior findings and decision and, on April 8, 2014, re-entered the judgment affirming the board’s2 denial of the special permit.3

2   See note 5, infra, and accompanying text.
3   Although these procedures in response to Buccaneer I essentially put Buccaneer in the same posture it was in before we issued that decision, Buccaneer does not challenge the propriety of these procedures in this appeal. Regarding the designation, we observe that the Chief Justice of the Trial Court by statute possesses “the power to assign a justice appointed to any department of the trial court to sit in any other department of the court, for such period or periods of time as he deems will best promote the speedy dispatch of judicial business.” G. L. c. 211B, § 9(xi), as appearing in St. 2011, c. 93, § 52. See St. Joseph’s Polish Natl. Catholic Church v. Lawn Care Assocs., 414 Mass. 1003, 1004, 608 N.E.2d 722 (1993) (approving use of interdepartmental assignment to cure jurisdictional defect nunc pro tunc).
Discussion. In an appeal from a trial court’s review of a decision of a municipal board under G. L. c. 40A, “we defer to the factual findings of the trial judge unless they are clearly erroneous. We review the judge’s determinations of law, including interpretations of zoning by-laws, de novo, but we remain ‘highly deferential’ to a board’s interpretation of its own ordinances.” Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728-729, 991 N.E.2d 1060 (2013) (citations omitted).
Buccaneer applied for a special permit to build a “retirement community,” the minimum requirements for which are set forth  in § 9.6 of the by-law, as amended through May 4, 2006.4 The proposed project satisfied all of the special provisions set forth in that section. In this regard, we agree with the trial judge’s conclusion that “the density of the proposed project is well within the requirements of Section 9.6,” and that the board had no basis to deny the special permit under the square footage, acreage, frontage, or setback provisions included in that section.

4   The by-law was admitted as an exhibit at trial. Given our disposition of this case, we do not address the board’s claim that subsequent amendments to the by-law have rendered this appeal moot.
However, “[e]ven if the record reveals that a desired special permit could lawfully be granted by the board because the applicant’s evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355, 754 N.E.2d 101 (2001). “[T]he decision of the board can only be disturbed ‘if it is based “on a legally untenable ground” … or is “unreasonable, whimsical, capricious or arbitrary.”‘” Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486, 395 N.E.2d 880 (1979), quoting from Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311 (1969).
Section 6.1.1 of the by-law enumerates five factors the board must consider in determining whether to grant a special permit. Two of these factors are more or less objective: the board must find that the proposed use “(d) [w]ill not create undue traffic congestion, or unduly impair  pedestrian safety” and “(e) [w]ill not overload any public water, drainage or sewer system” or similar municipal facilities. The board found “no significant impact to the existing sewer system,” and only one member of the board voiced concern that the proposed development “would exacerbate existing traffic hazards.” We reject the board’s argument on appeal that it properly based its denial of the special permit on traffic congestion, crash data, or pedestrian safety. The trial judge specifically found that the evidence did not “support the conclusion that the proposed project would increase traffic congestion or adversely affect pedestrian safety,” and the board has not shown that the judge’s finding in this regard was clearly erroneous.
Nonetheless, the three other criteria in § 6.1.1 of the by-law specifically require the board to consider more subjective factors and not to grant a special permit unless it finds that the proposed use “(a) [i]s … in harmony with [the by-law’s] general intent and  purpose; (b) [i]s essential or desirable to the public conveniences or welfare at the proposed location; [and] (c) [w]ill not be detrimental to adjacent uses or to the established or future character of the neighborhood.” The board’s denial of the special permit was firmly grounded in its assessment that the proposed use failed to meet these criteria.
The facts found by the trial judge provide support for the board’s determination. The judge found that “the proposed project would significantly alter the area in the immediate vicinity” of the project:

“[T]here now exists 23 acres of open land, abutting 68 acres of similarly open land immediately to the north; the overall impression is one of open space, pasture, and indigenous vegetation. Were the project to go forward, there would be 23 single family homes, similar in appearance, clustered around a parkway in a manicured setting. … [F]rom the perspective of the immediate neighborhood, the Buc[c]aneer project would represent a[ ] substantial change in the appearance and ‘feel’ of the area. At some point, development in an area reaches a ‘tipping point;’ the fact that past development has not been viewed as incompatible with the neighborhood does not mean that incremental additional development must always be viewed similarly.”

“[P]articularly where the judge conducted a view,” we are reluctant to disturb her findings. Bernier v. Fredette, 85 Mass. App. Ct. 265, 275, 8 N.E.3d 769 (2014).
“We do not consider this to be one of the exceptional cases where a board can be ordered to grant a special permit.” Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. at 488. This case is unlike MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639-640, 255 N.E.2d 347 (1970) (board did not provide an adequate statement of its reasons for denying the special permit and committed numerous errors of law in the process), Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 298, 285 N.E.2d 436 (1972) (board’s findings inadequate, “amount[ing] to little more than a mere recitation of the statutory and by-law standards” and “indicat[ing] that the board did not have sufficient evidence before it to make the necessary findings”), or Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 485, 961 N.E.2d 1055 (2012) (board failed “to apply its own standards  rationally”). Here, the board acted within its discretion, consistent with the facts on the ground, and conformably with the applicable by-law.
Conclusion. The judgment of the Land Court dated April 8, 2014, is modified by  deleting “Planning Board” and inserting “Zoning Board of Appeals” and by deleting “dated December 21, 2007,” and inserting “filed December 28, 2007.” As so modified, the judgment is affirmed.5

5   Evidently, by the time the final judgment issued, the trial judge had lost sight of the fact, noted in her 2010 findings of fact, that, while the case originally also involved an appeal from the planning board of Lenox’s denial of an application for a special permit under a different section of the by-law, “[t]hat aspect of the dispute has been resolved … and is not … before the court.” The parties appear to have proceeded before us on the assumption that the final judgment is, in fact, an affirmance of the decision of the zoning board of appeals, rather than of the planning board, and we have modified the judgment accordingly.

So ordered.


Berry, J. (dissenting). While I recognize full well the broad discretionary powers vested in local zoning boards to grant or deny applications for special permits, and the highly deferential nature of our review of the board’s interpretations of its own ordinances, a board’s discretion is not limitless, and as applied to this case, I do not accept, and cannot give deference to, the fatally vague and cursory decision of the Lenox zoning board of appeals (board), which, from all that appears, was tantamount to an unbridled and arbitrary conclusion that the board simply did not want this project to move forward. On this record, I find no basis in fact, and thus no support, for the board’s denial of the application of Buccaneer Development, Inc. (Buccaneer), for a special permit. Accordingly, I respectfully dissent.
I turn first to the applicable section of the town of Lenox zoning by-law (by-law). Section 6.1.1 of by-law requires as follows:

“Before granting a special permit for any use requiring such permit under the provisions of this By-law, the [b]oard [must] find that the proposed use:
“(a) Is in compliance with all provisions and requirements of this Bylaw, and in harmony with its general intent and purpose;
“(b) Is essential or desirable to the public conveniences or welfare at the proposed location;
“(c) Will not be detrimental to adjacent uses or to the established or future character of the neighborhood;
“(d) Will not create undue traffic congestion, or unduly impair pedestrian safety; [and]
“(e) Will not overload any public water, drainage or sewer system … .”

The majority seeks to uphold the board’s denial of the special permit on the basis of the first three criteria in § 6.1.1 of the by-law, or as the majority writes, the three “more subjective factors.” Ante at 874. To this end the majority opinion holds that “[t]he board’s denial of the special permit was firmly grounded in its assessment that the proposed use failed to meet these criteria,” and that “[t]he facts found by the trial judge provide support for the board’s determination.” Id. at 875
To the contrary, based on my review of the record, I believe the board’s reasoning stood on far more untenable ground. The board gives us only the following in support of its conclusory denial of Buccaneer’s application for a special permit:

“[T]he proposed development was unduly dense and would be detrimental to the established ‘small town’ character of the neighborhood,” “violated the spirit of the Bylaw … because it was neither essential nor desirable to the public welfare,” “would be detrimental to adjacent uses and the established character of the neighborhood,” and “was simply too  dense and too out-of-character with its surroundings.”

These specious conclusions, which, in my view, consist of merely a summary recitation of the criteria found within § 6.1.1 of the by-law, without citation to any fact, finding, or reasoned analysis, are “legally untenable.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73, 794 N.E.2d 1198 (2003). For me, what is missing from the board’s decision, for example, is any explanation or reasoning as to why Buccaneer’s proposed project was neither essential nor desirable to the public welfare, or how the project was detrimental to the small town character of the neighborhood, or what aspects of the project would be detrimental to adjacent uses. “When a decision contains conclusions that do  nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, we are constrained to conclude that the decision is ‘unreasonable, whimsical, capricious or arbitrary,’ and therefore invalid.” Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 386, 909 N.E.2d 1161 (2009) (Wendy’s), quoting from Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486, 709 N.E.2d 798 (1999). That, in my view, is the correct assessment of the record and the necessary conclusion in this case.
Other reasons offered by the board for denying Buccaneer’s special permit stand in direct conflict with the specific findings of the trial judge. For example, as the majority acknowledges, one member of the board stated that the project was “unduly dense.” The trial judge, however, specifically found that “the density of the proposed project is well within the requirements … and were density the only issue herein, there would be no basis for denying the special permit.”
Even accepting, as I do, the “‘peculiar’ combination of de novo and deferential analyses,” Wendy’s, 454 Mass. at 381, involved in the lower court’s review of the board’s decision, it seems apparent, on this record, that the trial judge gave far too much deference to the board’s conclusions. As previously noted, there is an antidevelopment flavor to the board’s decision. From all that appears, the reasons provided by the board, unsupported by the evidence, and summarily accepted by the majority, could be read simply to indicate that the board preferred that the land at issue remain undeveloped. Given the speculative nature of the board’s rationale, it appears that the trial judge could have, and in my view, was indeed required to, conduct a more exhaustive review of the facts behind the board’s stated reasons for denying Buccaneer’s application for a special permit.
That is indeed why we have the important judicial function of review under G. L. c. 40A, § 17, so that a trial judge may make independent findings of fact, and then determine whether “the reasons given by the board [had a] ‘substantial basis in fact,’ [or were, on the contrary,] ‘mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.'” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475, 961 N.E.2d 1055 (2012), quoting from Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308, 312, 296 N.E.2d 220 (1973).
I add that the board’s arbitrary denial of Buccaneer’s special permit, in my view, reflects the as-applied vague and standardless  nature of the by-laws at issue. “[L]ocal by-laws must provide adequate standards for the guidance of the board in deciding whether to grant or withhold special permits.” Josephs v. Board of Appeals  of Brookline, 362 Mass. 290, 294, 285 N.E.2d 436 (1972).
Finally, I find troublesome the summary manner in which the Housing Court judge, i.e., trial judge, sitting by special cross designation, adopted her prior findings, word for word, without conducting any further hearing in the permit session of the Land Court. Buccaneer expressly reserved objection to the Housing Court retaining jurisdiction, with the same judge sitting as the presiding trial judge on remand from this court in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 980 N.E.2d 458 (2012).1

1   Having preserved this jurisdictional challenge, to be noted is that Buccaneer did then agree to have the case presented on the extant record — not an unreasonable litigation strategy, I think.
It may be that this cross designation procedure between the Housing Court and the permit session of the Land Court, as in this case, is an emerging intra-court development. See Skawski v. Greenfield Investors Property Dev., LLC, 87 Mass. App. Ct. 903, 26 N.E.3d 1112, further appellate review granted, 472 Mass. 1103, 36 N.E.3d 29 (2015) (holding that, under G. L. c. 185, § 3A, the Housing Court lacked subject matter jurisdiction over the abutters’ G. L. c. 40A appeal from the grant of a special permit in a case where the Housing Court judge [coincidentally, the same Housing Court judge as in the instant Buccaneer appeal] sought to have the case administratively transferred from the Housing Court to the Superior Court and also requested cross designation and assignment to the case).
It may be that adopting this practice as a common procedure, designating the Housing Court judge who had initially tried the case, to sit as a special justice in the permit session of the Land Court, is an appropriate common Trial Court transfer vehicle. Or, it may be that such cross designation should be an exceptional mode for litigation in the permit session of the Land Court. To be considered perhaps is the specialized judicial function of the Land Court permit session and the clear legislative intent in G. L. c. 185, § 3A, to grant original jurisdiction over these matters only to the permit session of the Land Court or the Superior Court.2 These are court administration issues which may be  beyond the  scope of this dissent. And, the standards for this kind of cross designation might be appropriate for review in the Supreme Judicial Court under G. L. c. 211, § 3. But, I emphasize that Buccaneer did preserve its jurisdictional objection. See note 1, supra, and accompanying text.

2   A number of errors occurred in the handling of this case, which are troubling. (a) The docket. The final judgment states that it was entered on April 8, 2014, but the docket provided to us shows an entry on April 4, 2014, “entering new judgment.” No document has been provided to us that would correspond to a judgment entered on April 4. (b) The decision on appeal. In her 2010 decision, sitting in the Housing Court, the trial judge correctly noted that, while the case originally also involved an appeal from the planning board of Lenox’s denial of an application for a special permit under a different section of the by-law, “[t]hat aspect of the dispute has been resolved … and is not … before the court.” But, inexplicably, in 2013, sitting by designation in the permit session of the Land Court, in an order for judgment, the judge stated (erroneously), “In reviewing the record, it appears that the parties, this court, and the Appeals Court have all, at various times, misidentified the defendant as the Zoning Board of Appeals. The original pleadings and docket make clear, however, that the named defendants are the Planning Board for the Town of Lenox, and the members thereof. Any references to the defendant as the Zoning Board of Appeals are hereby corrected as scrivener’s errors.” The judge’s 2013 error was carried forward to the final judgment, from which Buccaneer purports to appeal, and which states, “Judgment shall enter in favor of the defendants, affirming the decision of the Planning Board for the Town of Lenox dated December 21, 2007, which denied a special permit to the plaintiff Buccaneer Development, Inc.” In fact, Buccaneer did not pursue an appeal from the planning board’s decision, which, in any event, does not appear in the record appendix. We have corrected the judge’s error in our disposition of this case. See “Conclusion” and note 5, ante.
The majority ultimately determines, see ante at 875-876, that what was, in effect, a “veto” of Buccaneer’s special permit is saved because there was a finding of some sort of “tipping point,” calibrated by the judge after a view of the subject property. The majority quotes as follows:

“[T]here now exists 23 acres of open land, abutting 68 acres of similarly open land immediately to the north; the overall impression is one of open space, pasture, and indigenous vegetation. Were the project to go forward, there would be 23 single family homes, similar in appearance, clustered around a parkway in a manicured setting. … [F]rom the perspective of the immediate neighborhood, the Buc[c]aneer project would represent a[ ] substantial change in the appearance and ‘feel’ of the area. At some point, development in an area reaches a ‘tipping point;’ the fact that past development has not been viewed as incompatible with the neighborhood does not mean that incremental additional development must always be viewed similarly.” (Emphasis supplied.)

Ibid. The problem with this purported “tipping point”-based analysis is that it is nothing more nor less than a wholly subjective commentary by the G. L. c. 40A reviewing judge that Buccaneer’s project would alter the “feel” of the surrounding area. Indeed, the vagary of the word “feel” only reinforces the entirely subjective analysis here, which is not grounded in zoning law or the requirements of G. L. c. 40A review. What does it mean to “feel” a project is not too dense in an area, or, conversely, to “feel” a development project is too dense? What we have here, at the end of the day, is a “tipping point”/”feel.” My research has discovered no other case under G. L. c. 40A in which the words “tipping point” or “feel” govern. If the future of special permit reviews were to turn on such inchoate expression, then G. L. c. 40A appeal and review would be standardless and virtually meaningless to the special permit applicant.
For the foregoing reasons, I would vacate the judgment and remand this matter once again to the Land Court, for an independent review of the board’s decision denying Buccaneer’s application for a special permit.
********** Print Completed **********

Time of Request: Friday, February 05, 2016  11:32:07 EST

Print Number:    2825:548030718
Number of Lines: 310
Number of Pages:

Send To:  CUI, MA Report

SCOTUSBLOG on filling vacancies


Supreme Court vacancies in presidential election years

In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year.  The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  In that period, there were several nominations and confirmations of Justices during presidential election years.    

The first nomination during an election year in the twentieth century came on March 13, 1912, when  President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911.  The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.

President Woodrow Wilson (a Democrat) made two nominations during 1916.  On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two.  Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican.  On July 14, 1916, Wilson nominated John Clarke to replace him; Clarke was confirmed unanimously ten days later.

On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932.  A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.

On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.

On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell.  A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.

In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year.  But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.

On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956.  With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957.  The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.

And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but the Fortas nomination was the target of a bipartisan filibuster – principally in reaction to the Warren Court’s liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year.  That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench.

Tom Goldstein also contributed to this post.

Posted in Everything Else, Justice Scalia passes away

Recommended Citation: Amy Howe, Supreme Court vacancies in presidential election years, SCOTUSblog (Feb. 13, 2016, 11:55 PM),