Happy May! Spring has finally sprung, and the spendthrifts among our readers still have their heat on. Sadly, the rest of our readers are freezing. Perhaps the intellectual stimulation to be found in this month’s Miyares and Harrington LLP newsletter will help keep you warm.
 
We offer our congratulations to Jennie Merrill who is a newly elected member of the Topsfield Planning Board. We know that Jennie will do a terrific job, and she will now have a new perspective to offer our clients on land use boards.
This month's newsletter features:
  • When do I Respond? Understanding the Differences Between the Open Meeting Law and the Public Records Law

  • Once a Tax Taking is in Land Court, It Stays in Land Court

  • No Subdivision, No ANR Endorsement, No Merger: Nonconforming Lot Retains Buildable Status

  • Rapid Fire Update: Sign Bylaws Under Attack; No FAR of Regulatory Takings Case; Cannabis Control Commission Approves Social Consumption Pilot Program

  • Trivia!
When do I respond? Understanding the differences between the Open Meeting Law and the Public Records Law
Here’s a trivia question that all our faithful readers must be able to answer: A request for minutes is submitted to a public body that held the meeting. How long does the public body have to respond to the request?
 
Answer: Ten calendar days!
 
By now, most municipal employees are well aware that the Public Records Law directs a Records Access Officer to respond to a request for records within 10 business days of receipt of the request. M.G.L. c.66, §10(a). However, the Open Meeting Lawrequires that “[m]inutes of an open session, if they exist and whether approved or in draft form, …be made available upon request by any person within 10 days.” M.G.L. c.30A, §22(c). Thus, a public body has 10 calendar days from the date a request is received to provide a response.
 
A public body must also respond to a request for executive session minutes within 10 calendar days. M.G.L. c.30A, §22(g)(2). If, at the time of a request, the public body has not conducted a review of the minutes to determine whether continued nondisclosure is warranted, the body must perform such a review and release the minutes, if appropriate, no later than its next meeting or within 30 days, whichever occurs first. Id. The body must still respond to the requestor within 10 calendar days, notifying them that it is conducting this review.
 
It is therefore important that the municipal official determine whether the request is made under the Open Meeting Law or the Public Meeting Law. The Attorney General has stated that a “request for minutes that is directed to a public body will trigger the requirements of the Open Meeting Law.” See here. Based on this, our firm advises that public bodies respond to requests for minutes filed with any member of the public body or its staff within 10 calendar days. To the extent that a request for minutes is submitted to another municipal employee or to the Records Access Officer, such as a Town Clerk, the request will likely fall under the Public Records Law and the respondent has 10 business days to provide the record.
Once a Tax Taking is in Land Court, It Stays in Land Court
Municipalities routinely file petitions in Land Court to foreclose the right of redemption of a tax taking of property. In order to avoid such foreclosures, taxpayers will seek to extinguish a tax taking by paying the taxes and fees and recording an instrument of redemption. However, if the taxpayer takes this action without following the necessary Land Court procedure, the redemption will not be valid.
 
In Ithaca Finance, LLC v. Lopez, the City of Lawrence assigned its municipal tax receivables in bulk to a private entity that then effected the tax taking and recorded an instrument of taking. The private entity then assigned the instrument of taking to a second private entity and the assignment was recorded. The assignee subsequently filed a petition to foreclose the right of redemption. The property owner and the mortgagee were served with notice of the petition. The mortgagee contacted the first bulk purchaser and was erroneously told that the instrument of taking had been redeemed. The mortgagee then recorded the certificate of redemption that it received from the bulk purchaser, but never notified either the assignee of record or the Land Court of the recording.
 
With no appearance of a defendant in court, the Land Court defaulted the mortgagee. More than one year later, the mortgagee moved to vacate the default, but the Land Court refused. The Appeals Court held that the recording of the certificate of redemption did not extinguish the tax taking. M.G.L.c.60, §64 confers exclusive jurisdiction in the Land Court for the foreclosure of all rights of redemption. M.G.L. c.60, §68 requires that a person desiring to redeem must file an answer and offer to redeem, the terms for which will be set by the court. The Court thus rules that recording a certificate outside of the Land Court process did not negate the default for failing to appear. Nor were the mortgagee’s due process rights violated. “To permit a person to redeem the tax taking by recording an instrument of redemption (as Wells Fargo did here) runs contrary to this statutory scheme…. Wells Fargo’s recording did not extinguish the tax taking….”
No Subdivision, No ANR Endorsement, No Merger: Nonconforming Lot Retains Buildable Status
Land use boards have come to expect that, when a lot is proposed to be divided, the owner must obtain either subdivision approval or Approval Not Required endorsement pursuant to the Subdivision Control Law, M.G.L. c.41, §§81K-81GG.In addition, a lot that has become nonconforming due to a zoning change will normally lose its grandfathered status by merger with an adjoining lot with that is held in common ownership. Not necessarily so, says the Supreme Judicial Court in affirming a decision of the Land Court. The decision, RCA Development, Inc. v. Zoning Board of Appeals of Brockton, may be found here.
 
In 1964, a lot in Brockton was split into two, with half going to the owner of the abutting lot to the north and the other to the owner of the abutting lot to the south. The deeds of transfer were recorded. The half-lots conformed to the then-existing zoning bylaw and no ANR endorsement was sought from the Planning Board.
 
The southerly portion of the lot, together with the lot to the south, were transferred several times. In the interim, the half-lot became nonconforming. Nonetheless, in 2016, the plaintiffs purchased the property comprising the half-lot and the full lot to the south and sought a building permit to construct a house on the half-lot. The building inspector denied the permit and the Zoning Board of Appeals affirmed.
 
The Land Court reversed and the Supreme Judicial Court affirmed that reversal. The Board of Appeals argued that the division required a subdivision plan, but the Land Court deemed this to be contrary to the plain language of the statute since the half-lot conformed to the applicable dimensional requirements of a buildable lot in 1964. In that case, the ZBA argued, the plan required ANR endorsement. Again, the SJC agreed that this was contrary to the plain language of the statute, which uses “may” to describe whether a person should submit a plan for endorsement pursuant to M.G.L.c.41, § 81P. Finally, while the ZBA might seem to have had a strong argument that the nonconforming lot merged with the south lot since they were held in common ownership per M.G.L.c.40A, §6, the Land Court noted that Brockton’s zoning ordinance was more generous in protecting lots from merger and preserved the half-lot’s buildable status. The ZBA thus did not pursue an appeal regarding merger, and the plaintiffs were entitled to a building permit.
Rapid Fire Updates:
Sign Bylaws Under Attack
 
The American Civil Liberties Union Foundation of Massachusetts recently issued an open letter to all cities and towns emphasizing that municipalities are extremely limited in enforcing sign bylaws that restrict or prohibit political signs on private property.
 
No FAR of Regulatory Takings Case
 
The Supreme Judicial Court denied a request by the plaintiff (represented by the Pacific Legal Foundation) for further appellate review in Smyth v. Falmouth Conservation Commission (discussed in our February newsletter). Thus, the Appeals Court decision holding that the denial of a wetlands permit was not a taking will stand.
 
Cannabis Control Commission Approves Social Consumption Pilot Program
 
On March 16, the Cannabis Control Commission voted to approve a proposal that would launch a future social consumption program (see here). The pilot program is dependent on the passage of pending legislation authorizing communities to permit social consumption (House bill 3541 and Senate bill 1125). The Commission will allow 12 communities to participate in the pilot program and, for the first two years, only Microbusinesses, Craft Marijuana Cooperatives, Economic Empowerment Applicants and Social Equity Applicants will be eligible for a license.


Trivia!
 
Question: What common lawn ornament was created in Leominster, MA?
 
Last issue's question: What famous poet wrote the following stanza, and what is her connection to Massachusetts?
                     Absent Place – an April Day –
                     Daffodils a-blow
                     Homesick curiosity
                     To the Souls that snow –
 
Answer: Emily Dickinson, the Belle of Amherst.
 
Winner: Congratulations to Bill Bowler, Chairman of the Zoning Board of Appeals of the Town of Hamilton. Your perplexed editor expected to hear first from our western Massachusetts colleagues on this one. That area of the state is justifiably proud of the success of its native daughter.

MiyaresHarrington
Local options at work.
 
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