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Posts tagged "litigation"

A NEW ERA FOR MASSACHUSETTS AERONAUTICS

On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.

Sarkisian v. Concept Restaurants, Inc.: The SJC Expands the Mode of Operation Approach to Premises Liability in Massachusetts

On June 23, 2015, the Supreme Judicial Court handed down its most significant decision in the area of premises liability since 2010. See Sarkisian v. Concept Restaurants, Inc., SJC-11786, 2015 WL 3833877 (Mass. June 23, 2015). In Sarkisian, the court was asked to "decide whether the 'mode of operation' approach to premises liability, adopted . . . in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788, 863 N.E.2d 1276 (2007), applies to slip-and-fall incidents occurring outside of the context of self-service establishments." Id., at *1.

ITW v. Falmouth ZBA: Application of T-Mobile South, LLC v. City of Roswell, Ga.

In my previous post concerning the District Court's decision in Industrial Tower and Wireless, LLC v. Haddad ("ITW v. Haddad"), 2015 WL 2365560 (D. Mass. 2015), I discussed the decision as fitting within a small, but significant, line of cases requiring local boards to base their denial decisions on the specific criteria of the local bylaw. Another noteworthy aspect of ITW v. Haddad is that it is one of the first trial-level decisions to apply the Supreme Court's decision in T-Mobile South, LLC v. City of Roswell, Ga., 135 S. Ct. 808 (2015) ("City of Roswell").

ITW v. Falmouth ZBA: Substantial Evidence Violation Based upon the "Wrong Legal Standard"

As previously posted, on May 18, 2015, P & A won summary judgment, under the Federal Telecommunications Act of 1996 (the "TCA" / "Act"), against the Town of Falmouth Zoning Board of Appeals in Industrial Tower and Wireless, LLC v. Haddad ("ITW v. Haddad"), 2015 WL 2365560, at *17 (D. Mass. 2015). The next two posts will look at two aspects of the District Court's decision that are particularly noteworthy.

Phillips & Angley Win TCA Case Against the Falmouth ZBA

On May 18, 2015, the United States District Court for the District of Massachusetts, Burroughs, J., issued its Memorandum and Order on Plaintiff's Motion for Summary Judgment, allowing summary judgment to enter for P & A's client, Industrial Tower & Wireless, LLC ("ITW"), and ordering the Defendant Zoning Board of Appeals of the Town of Falmouth, "within forty-five (45) days" to "issue all necessary permits allowing ITW to construct and operate" its proposed telecommunications facility in Falmouth, MA. See Industrial Tower and Wireless, LLC v. Haddad, 2015 WL 2365560, at *17 (D. Mass. 2015).

The Abutters Strike Back: Specially-Protected Interests and Density-Related Aggrievement

In my last post, I addressed how, between 2006 and 2011, the Supreme Judicial Court had made it easier for developers to challenge abutters' legal standing to maintain zoning appeals. However, while the Commonwealth's high court was making life easier for developers, the Appeals Court was making it harder.

The Pendulum Swings in Massachusetts Standing Law in Zoning Appeals: The "Good Old Days"

Massachusetts law has permitted neighbors to appeal zoning decisions for many decades. Like any civil action, abutter plaintiffs in zoning appeals must demonstrate that they have a substantive stake in the outcome-that they will be harmed if their neighbors' permits are allowed to stand. At Phillips & Angley, we have posted many blog entries on this topic of standing in abutter zoning appeals. The standing case law that has accumulated over the years has generally been intended to place a threshold hurdle in front of abutters' rights to appeal their neighbors' permitting. In particular, however, the pendulum of standing has swung back and forth, between making that hurdle higher and lower. Starting in 2012, we left an era in which standing was more difficult to prove to a period where many of the basic limitations on standing have been effectively removed. The following is the first in a series of two posts that look at this-nearly incoherent-progression. This post focuses on how good developers had it at the beginning of 2012.

LITIGATION AND SETTLEMENT--IT'S NOT ALWAYS EITHER/OR

Initially, this post was going to be about the substantive portions of the disputed claims in Perry v. Nemira, 2015 WL 179045, 11 MISC 457157 (AHS) (Mass. Land Ct. Jan. 15, 2015), which focused primarily on claims of right via prescriptive easements and adverse possession. In a word, the decision is lengthy (mostly due to the various chains of title that must be parsed out) and hard to condense into a neat little blog post.

Permanent Injunctions, Real Property and Finality

"'It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.'" Taylor v. Sturgell, 553 U.S. 880, 884 (2008), quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940). Likewise, strangers to a judgment do not generally have the standing to enforce the same. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975). These principles also find their expression in the requirement under the res judicata doctrines of claim and issue preclusion that there be identity of the parties in order for a claim to be barred or an issue closed for consideration by prior litigation. See, e.g., Heacock v. Heacock, 402 Mass. 21, 23-24, 25 (1988). These principles also reflect substantive and procedural Due Process concerns. People should have their days in court, and not be bound by others' days in court. It is for this reason also that default judgments, Treglia v. MacDonald, 430 Mass. 237, 242 (1999), and consent decrees, New York Cent. & H.R.R. Co. v. T. Stuart & Sons, Co., 260 Mass. 242, 248-249 (1927), have no preclusive effect in subsequent litigation.

EASEMENT DISPUTES & LIS PENDENS

Let's say you and a neighbor are in dispute about whether you've got a valid easement to cross over his property. Suppose the disputed portion of land is a dirt path that you need to use in order to access the boat launch at the pond shared by all the homes in your neighborhood. You assert that you have a right to travel on this dirt path. He disagrees, and even goes so far as to put up a locked gate across the path thereby blocking your access.

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