Nothing too scary in this October edition of the Miyares and Harrington LLP newsletter. We are thrilled to read of the adventures of Limpy the turkey in Reading and follow his exploits daily on his Facebook page. We hope that he makes it through the month of November.
 
We are pleased to acknowledge that Ray Miyares and Donna Brewer are once again SuperLawyers® in the field of State, Local, and Municipal Law. Ivria Glass Fried is once again a Rising Star® in the field of Environmental Law.
 
Donna Brewer presented a primer on Proposition 2 ½ as part of the MMLA’s program on Municipal Finance 101. If you missed the recent program, you can review the presentation slides here.

This month's newsletter features:
  • This is the Story of Emily and Ruth, A Cautionary Tale for Municipal Zoos

  • The Red Sox and Eminent Domain: A Winning Combination

  • When Density Can Support Standing for Appeals of Land Use Decisions

  • Rapid Fire Updates – Information on Sale of Hemp-Derived Products; Coming Soon: More Off-Premises Licenses Can be Held by Any Person or Combination of Persons

  • NEW – Try This Word Puzzle Instead of Trivia

This is the Story of Emily and Ruth, A Cautionary Tale for Municipal Zoos
Emily and Ruth are denizens of the City of New Bedford’s Buttonwood Park Zoo; they are Asian elephants. A citizen sympathetic to their plight sued under the Endangered Species Act, 16 U.S.C. §§1531-1544, claiming that they were being harassed and harmed as a result of their captivity. The Endangered Species Act provides standing to private citizens to pursue claims. Section 9 of the Act makes it illegal for an individual to “take” any endangered species. Court decisions that have considered the breadth of the Act have adopted a most expansive definition of “take,” including making it illegal to harass or harm an endangered species such as the Asian elephant.
 
The record before Federal District Court Judge Young was not unblemished regarding Emily and Ruth’s care at the municipal zoo, but he focused on current conditions to determine if the Act was being violated. He relied, in part, on the standards of care found in the Animal Welfare Act, 7 U.S.C. §§2131-2159, and its regulations, even though that Act excludes animal husbandry for animals intended for exhibition purposes. The care provided to the animals would violate the ESA if it “creates the likelihood of injury to [the elephants] by annoying [them] to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering,” unless the care satisfies a generally accepted animal husbandry practice and complies with AWA. Rowley v. City of New Bedford, No. 17-11809 (D. Mass. Sept. 24, 2019).
 
The physical care of the elephants was found to meet all acceptable standards. The court had the most difficulty, however, determining whether the animals’ emotional needs were adequately addressed. It was concerned about evidence that Emily was bullying Ruth and the zoo was not doing enough to protect Ruth from Emily. During the trial, in fact, the zoo confined Ruth to the barn, a move that the plaintiff alleged caused Ruth emotional and physical distress. The court accepted the zoo’s explanation that the confinement was aimed at protecting Ruth from Emily, limited to feeding times when Emily was most aggressive to Ruth.
 
What truly caused the court to rule in the city’s favor, however, was the lack of expert testimony in elephant care and behavior. The case might have had a different outcome had the plaintiff produced the necessary expert. The citizen standing provision of the ESA and the viability of a legal claim for violation even if the animal husbandry standards of the AWA are met means that municipal zoos should pay equal attention to the physical and emotional needs of the animals in their care.
The Red Sox and Eminent Domain: A Winning Combination
Die-hard Red Sox fans recall when the Red Sox were not terribly successful in reaching the pinnacle of Major League Baseball competition – the World Series. Their lack of success (ultimately, for 86 years), among other factors, caused the Boston Redevelopment Agency (now the Boston Planning and Development Agency) in 2003 to designate the area around Fenway Park as an urban blight. The Agency then exercised its eminent domain authority to take a 10 year easement over Yawkey Way which it sold to the Red Sox to use as an extension of Fenway Park’s concourse. By 2013, the Red Sox had won the World Series twice and arguably the area was no longer blighted. Nevertheless, the BRA exercised its eminent domain authority again to take a permanent easement over Yawkey Way and sold the exclusive use and control of the Way to the Red Sox on all home game days for so long as Major League Baseball games are played at Fenway Park. The BRA did not offer the easement rights to public bidders.
 
The plaintiff, a local attorney and business owner, sued claiming that he should have been given an opportunity to bid. He also claimed that the BRA exceeded its authority because the area was no longer blighted by 2013.
 
His complaint was dismissed for lack of standing, a ruling affirmed by the Supreme Judicial Court. Marchese v. Boston Redevelopment Authority, SJC-12659 (September 13, 2019). The plaintiff was neither an owner of, nor an abutter to, Yawkey Way. The sale of the easement rights was exempt from Ch. 30B, the Public Procurement Act, if it was pursuant to a plan approved by an appropriate authorizing agency. Contrary to the plaintiff’s argument, the SJC concluded that the exemption from the procurement statute was not limited to urban renewal plans. As the taking and the sale were pursuant to an approved demonstration project plan of the BRA, it met the criteria for exemption from public bidding.
 
With regard to the plaintiff’s claim that the area was no longer blighted in 2013, the SJC said that, even if that were true, invalidation of the 2013 taking would result only in reversion of the public way easement to the City. It was entirely speculative that the City would then have offered easement rights to bidders, that the plaintiff would have been the successful bidder, and that he could have obtained permission from the fee owners, one of whom is the Red Sox, to operate concessions. What is of particular interest is that the plaintiff was largely repeating the criticism lodged at the BRA by the State Inspector General. The IG had issued an opinion that the 2003 temporary taking could not be extended, and that a new taking required a finding that the area remained a blighted area in 2013. In that opinion, the IG had concluded that the BRA was required to open the easement rights to public bidders or obtain special legislation in order to ensure fair value was obtained. Of course, the BRA did neither. The IG further criticized the process as rushed, lacking informed judgment, and failing to ensure that the City got fair market value. The SJC did not need to address the IG’s criticisms by holding that the plaintiff lacked standing.
When Density Can Support Standing for Appeals of Land Use Decisions
The Appeals court, in Murchison v. Zoning Bd. of Appeals of Sherborn, recently clarified the circumstances under which a plaintiff will be successful in relying on an increase in density as the basis for his or her standing to challenge the decision of a local zoning board. As a preliminary matter, the harm alleged by a plaintiff-abutter in a zoning appeal must be one that the Zoning Actor the local zoning bylaw is intended to protect. In Murchison, the Appeals Court reiterated that the prevention of overcrowding is an interest protected by the Zoning Act, and further stated that dimensional requirements in municipal zoning ordinances and bylaws serve to protect neighbors from overcrowding.
 
Plaintiffs, when challenged, must also be able to demonstrate that their alleged harm is particularized to them and not one applicable to the general community. In considering this, the Appeals Court rejected an argument that the plaintiff’s neighborhood must already violate the density provisions of the local ordinance or bylaw for the plaintiff to have standing to challenge a proposed development that will increase the overcrowding:

  • There is no reason the first neighbor to violate a density regulation should have a free bite at the apple if that violation causes particularized harm to another property owner. The question for standing purposes is whether there is a particularized non-de minimis harm resulting from the unlawful overcrowding.
 
With respect to the particularity of the alleged harm, the “harm to a property from having a house across the street closer to his or her own than is permitted by the density-protective bylaws is different in kind from that suffered in an undifferentiated fashion by all the residents of the neighborhood.” The court was careful to clarify, however, that standing is not derived from the mere fact of the alleged bylaw violation but from the particular way in which the violation impacts the plaintiff in question.
 
The plaintiff lived across the street from an undeveloped lot. The defendant received a foundation permit to build a single-family home. The plaintiff alleged that the lot did not meet the minimum width requirements at the requisite points, and that the permit should therefore not have been granted. Without reaching the factual dispute, the Land Court dismissed the case for lack of standing. In part, the Land Court judge found no particularized harm because the alleged violations affected only the placement of the house on the lot. The density, therefore, would be the same. While the Appeals Court questioned whether this conclusion was correct, it concluded that where a house is placed on a lot can result in particularized harm, given that it could result in a house closer to the plaintiff’s house than would otherwise result.
Rapid Fire Updates:

Information on Sale of Hemp-Derived Products
 
Hemp is a variety of cannabis but without the levels of THC found in marijuana. Hemp is regulated by the Department of Agricultural Resources, while the Cannabis Control Commission regulates marijuana. DAR has published answers to Frequently Asked Questions regarding which hemp-derived products may be sold wholesale in the Commonwealth and which cannot.
 
Coming Soon: More Off-Premises Licenses Can be Held by Any Person or Combination of Persons
 
Currently, a person or combination of persons may hold up to seven off-premises (§15) alcohol licenses statewide. Starting January 1, 2020, that number will increase to nine. NOTE: this does not affect the cap on the number of licenses a municipality can issue. The Alcoholic Beverage Control Commission has issued an Advisory explaining how the increase works.


New Word Puzzle!
 
We get it. Not everyone appreciates trivia. So let’s try a word puzzle. Think of the name of one Massachusetts municipality, rearrange its letters and reuse one of the letters in the first name to form the name of another Massachusetts municipality. (Ex: “met” becomes “teem”) Name both municipalities.
 
Last issue's question: Two Massachusetts municipalities have the honor of having their quarried stone used in the construction of iconic government buildings in Washington, D.C. What municipalities are they and, for extra credit, what three buildings is their stone in? (Hint: one stone is pink granite, another is white dolomitic marble with red areas, and the third is white dolomitic marble.)
 
Answer: Your penitent editor confesses that there are differing answers to this question depending on the source. The US Geological Survey publication “Building Stones of Our Nation’s Capital” (1999) identifies dolomitic marble from Lee in the U.S. Capitol; Milford granite in the National Archives building, the Lincoln Memorial, the Department of the Interior Building, and Apex Building/Federal Trade Commission; and four rows of Sheffield marble in the Washington Monument, but the contract was canceled due to problems with timely delivery and quality control. Other buildings have “Massachusetts granite” but don’t identify the municipal source. Your editor’s source, “Building stones of the National Mall” by the Geological Society of America (2015) identifies pink granite from Milford in the National Museum of Natural History, Sheffield white dolomitic marble with red areas of the Stockbridge Formation in the Washington Monument, and Lee white dolomitic marble of the Stockbridge Formation in the U.S. Capitol. (But, I hear you exclaim, your source identifies three Massachusetts municipalities, not two! In my defense, I attributed the Stockbridge Formation stone to Stockbridge.)
 
Winner: Congratulations to David Freedman of Carlisle! Yes, this required search of the Internet to answer, but it was a fun learning experience.

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