Happy 2020! Whether you agree that the new decade started this month or doesn’t start until January 2021, we hope that you will agree that this latest edition of the Miyares and Harrington LLP newsletter is worthy of your time.
 
Stop at the firm’s booth 1021 at the annual trade show of the Massachusetts Municipal Association. Pick up some swag and shoot the breeze. And don’t forget to catch Donna Brewer as one of the presenters at the Municipal Law Update seminar, Friday January 24, 2020 from 3:45 to 5:00 pm. Catch up on what you may have missed in 2019.
 
Congratulations to Bryan Bertram, Ivria Glass Fried, and Ray Miyares, who submitted an amicus curiae brief on behalf of the Wellesley Department of Public Works, in the case of Magliacane v. City of Gardner. The decision issued by the Supreme Judicial Court reaffirms that the Massachusetts Tort Claims Act is the exclusive remedy for bringing tort claims against municipalities. The decision will be reviewed in detail in our February newsletter.
 
In other news, Ray Miyares was a featured speaker at a seminar entitled “Moving to All-Electric,” at the Harvard Medical School Tosteson Medical Education Center. Ray discussed the Town of Brookline’s newly adopted By-Law prohibiting new fossil fuel infrastructure in major construction and assessed the prospects of obtaining the Attorney General’s approval for that By-Law to go into effect.


This month's newsletter features:
  • New Ethics Commission Advisory on Gifts and Gratuities

  • Municipalities Maintain a Substantial Degree of Control over Adult Use Cannabis Establishment Licensing Through the Host Community Agreement Process

  • Clamping Down on PFAS: MassDEP Finalizes Waste Site Cleanup Standards and Proposes Drinking Water Standards

  • Rapid Fire Updates – New IGR Regarding Community Preservation Fund

  • Trivia
New Ethics Commission Advisory on Gifts and Gratuities
The State Ethics Commission recently issued a new advisory on the kinds of gifts and gratuities a public employee may receive under M.G.L. c. 268A. Advisory 19-1: Gifts and Gratuities provides general guidance regarding restrictions that the conflict of interest law places on gifts given to state, county, and municipal employees. This advisory replaces the prior Advisory 04-02. Advisory 19-1 provides an updated format, a list of frequently asked questions, and new guidance on subjects such as crowdsourced fundraisers, public employee discounts, complimentary meals, and gifts from lobbyists.
 
Generally, public employees may not accept gifts worth $50 or more given (1) for or because of the employee’s official position or (2) for or because of any official action the employee has performed or will perform in the future. There are also rules about the acceptance of gifts under $50. A gift is given because of an employee’s official position if it would not have been given had the employee not held the status, authority, or duties associated with the employee’s public position—for example, a gift card given to each member of a planning board. Public employees also may not accept anything worth $50 or more because of an official act that the public employee has performed or will perform, such as concert tickets worth more than $50 from a business association given to the sponsors of a favorable bill. Public employees are always prohibited from accepting bribes regardless of value.
 
With the exception of gifts from lobbyists, public employees may accept certain gifts, however. Gifts under $50 may be accepted, but a disclosure may be required. For gifts over $50, public employees may accept gifts unrelated to an official action or position, retirement gifts, certain types of travel and event expenses, unsolicited perishables, class gifts to teachers, or gifts to a public agency for the agency’s use. Certain limitations or requirements do exist, however, so it is always best to read the rules carefully and double-check with counsel if there is a question. Furthermore, statewide elected officials, major policymaking employees who are required to file a Statement of Financial Interest, and members of their immediate family are prohibited from accepting gifts of any value from lobbyists.
 
Advisory 19-1 also includes an extensive list of frequently asked questions, updated to reflect modern ethics considerations. For example, the advisory directly addresses the question of gifts from a crowdsourcing fundraiser, such as GoFundMe. The State Ethics Commission is of the opinion that this does not run afoul of the state ethics law, but only if the gifts are being given for reasons other than a public employee’s official action or official position, public resources are not used to create the crowdsourcing site, and no targeted solicitation to contribute to the fundraiser is made to the individuals or entities under that employee’s official authority or with whom they have official dealings.

Municipalities Maintain a Substantial Degree of Control over Adult Use Cannabis Establishment Licensing Through the Host Community Agreement Process
A Superior Court Judge recently confirmed that municipalities are not required to enter into Host Community Agreements with adult use (recreational) marijuana establishments, a prerequisite for obtaining a license to operate from the state’s Cannabis Control Commission. In reaching this decision, the Judge affirmed the ability of municipalities to direct the siting of adult use marijuana establishments within their borders.
 
In Mederi, Inc. v. City of Salem, a prospective marijuana establishment licensee sued the City after it refused to enter into an HCA with the prospective licensee. The City’s zoning ordinance limited the number of adult use retail establishments to five. It also developed a process for reviewing applications for certain factors, such as location, traffic and parking, security, and industrial experience and financing. The City received numerous applications and eventually selected five operators with which to enter into HCAs. Mederi was not one of the five. Because Mederi did not have an HCA with the City, it could not apply for a license from the Cannabis Control Commission. Mederi claimed that the City acted arbitrarily and capriciously, its decision was based on impermissible grounds and not supported by substantial evidence, and that it exceeded its authority in refusing to execute an HCA with Mederi.
 
In entering judgment for Salem and dismissing the complaint, the Judge made two essential findings: First, the Judge found that Salem acted within its authority under the law to enter into HCAs with only a limited number of applicants. The Judge held that, although the state grants the ultimate license to operate, the statute governing adult use establishments affords municipalities discretionary authority over “substantive issues related to the time, place, and manner” of the proposed establishments through the HCA process. Furthermore, local factors, such as traffic, geographic diversity, and disproportionate impacts on certain neighborhoods, are not considered by the state. The adopted legislation empowered communities to consider these factors during the HCA negotiations.
 
Second, the Judge reviewed Salem’s decision regarding whether to enter into an HCA under a deferential, arbitrary and capricious standard of review. This means that, so long as a community’s decision to enter into an HCA (or to refrain from executing an HCA) is not unreasonable or made willfully “without consideration and in disregard of facts and circumstances,” the Court will not substitute its judgment for that of the municipalities. In Salem’s case, the Judge held that there was a rational basis for the City’s decision to deny Mederi an HCA based on the number of proposed establishments in the vicinity, and therefore upheld the City’s actions.
 
This case represents the first time that a court has explored a municipality’s ability to deny a prospective operator an HCA and provides clear guidance not only on a municipality’s authority to direct the HCA process, but also the standard of review courts will employ when the decision is challenged. That said, to avoid a challenge, municipalities are encouraged to develop clear guidelines for implementation of its discretionary HCA review process.
Clamping Down on PFAS: MassDEP Finalizes Waste Site Cleanup Standards and Proposes Drinking Water Standards
MassDEP’s march forward on regulating per- and polyfluoroalkyl substances (PFAS) continued in December with release of final revisions to the Massachusetts Contingency Plan (MCP) waste site cleanup regulations (310 CMR 40.0000) and draft revisions to the Drinking Water Regulations (310 CMR 22.00). (We provided background on PFAS and discussed previous steps in these efforts in our June 2018 and April 2019 newsletters.)
 
MassDEP finalized a waste site cleanup “GW-1” standard (for groundwater within drinking water source areas) of 20 parts per trillion (ppt) for the sum of six specific PFAS compounds. The six compounds, which are similar to each other in chemical composition, behavior in the environment, and toxicity, are:
 
  • Perfluorooctanoic acid (PFOA)
  • Perfluorooctanesulfonic acid (PFOS)
  • Perfluorohexanesulfonic acid (PFHxS)
  • Perfluorononanoic acid (PFNA)
  • Perfluoroheptanoic acid (PFHpA)
  • Perfluorodecanoic acid (PFDA)
 
The 20 ppt standard, first proposed in draft MCP regulatory revisions in April 2019, is lower than the 70 ppt guideline that DEP initially issued in June 2018 for five of these six compounds. MassDEP’s December 2019 technical support document explains that, after that guideline was issued, the federal Agency for Toxic Substances and Disease Registry and various states released toxicological evaluations for PFAS identifying toxicity thresholds lower than the value derived by USEPA, which DEP had relied on for its June 2018 guidance. After reviewing this new information, DEP’s Office of Research and Standards determined that addition of the sixth compound and lowering of the toxicity value were warranted by the available data. In a commentary issued with the final MCP regulations, DEP states that the 20 ppt value was criticized as too low by some commenters and too high by others; after evaluating all of the comments, DEP concluded that the proposed 20 ppt value was appropriate.
 
MassDEP is now proposing to adopt the 20 ppt total limit for these six PFAS compounds also as a Maximum Contaminant Level for public drinking water systems. Implementation under the proposed rule will be staggered by population served and type of system. Public water systems serving more than 50,000 consumers will be required to start monitoring for these PFAS compounds by April 1, 2020; systems serving from 10,000-50,000 consumers must start by October 1, 2020; and smaller systems must start by October 1, 2021. Transient non-community systems (such as recreational areas and campgrounds) must analyze one sample for PFAS and provide the results to MassDEP by September 30, 2022. The proposed regulations require certain remedial steps to be taken if PFAS are detected.
 
Given the extensive evaluation associated with issuance of the 20 ppt standard in the MCP regulatory revisions, it appears unlikely that MassDEP will modify this value in the drinking water regulations. However, DEP is seeking comments on other aspects of the regulations, including the staggered start timing, the monitoring scheme, consumer notices, compliance calculations, and other issues. Public hearings will take place from January 23-31, 2020, and written comments are due by February 28, 2020.

Rapid Fire Updates:

CNew IGR Regarding Community Preservation Fund
 
The Community Preservation Act has been the subject of considerable interpretation and amendment since the Division of Local Services last updated its omnibus Informational Guideline Release. In response, the Division has issued a new, superseding IGR. It is a required reference for all with questions concerning the procedures and requirements of the Act.


Trivia!
 
Question: The latest movie adaptation of Little Women is garnering high acclaim, along with six Oscar nominations. Although we exult in the renewed fame of this nineteenth century denizen of Massachusetts, Louisa May Alcott’s first published writing was under a nom de plume. What name did she use?
 
Last issue's question: What sport was described by nineteenth century Boston Rev. Skinner as “insidious wickedness,” and as “the gaping jaw of Hades”?
 
Answer: Croquet. Of course.
 
Winner: Congratulations to Bill Bowler, Chairman of Hamilton’s Zoning Board of Appeals and Town Moderator. One hopes that Bill does not agree with Rev. Skinner.

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