Massachusetts Takes a “Wait And See” Approach to Rule 26 Discovery Rule Changes

salomon_nathalie

Unlike Federal Rules, The Recent Amendment To Rule 26 Of The Massachusetts Rules Of Civil Procedure Addresses Protective Orders Only

by Nathalie K. Salomon

Heads Up

The Supreme Judicial Court (“SJC”) approved amendments to Mass. R. Civ. P. 26, effective July 1, 2016, but unlike the recent and substantial amendments to Fed. R. Civ. P. 26, the SJC’s amendments are confined to section 26(c), concerning protective orders.  Although the SJC’s Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure (the “Committee”) considered proposals based on recent amendments to the Federal Rules, which focused on limiting the burdens of discovery (https://bostonbarjournal.com/2016/04/13/proportionality-emphasized-in-amendments-to-the-federal-rules-of-civil-procedure/). The Committee ultimately did not recommend them.  Instead, the Committee adopted a “wait and see” approach, and as a compromise, the Committee recommended, and the SJC adopted, the new language in Rule 26(c) which instructs a court to consider factors relating to the proportionality of discovery when determining whether to issue a protective order under Rule 26.

The New Massachusetts Rule 26(c)

Before the July 1, 2016 amendment, Rule 26(c) was largely a copy of its federal counterpart.  The SJC has now added a new paragraph, not present in the federal rule, at the end of the first paragraph of Rule 26(c), identifying three factors that may be considered in determining whether a protective order limiting discovery is warranted “due to undue burden or expenses.”  These factors are:

(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;

(2) whether discovery sought is unreasonable, cumulative or duplicative; and

(3) whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.

Rule 26(c) still states that the court has power to issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” and the rule also still lists the kinds of orders that the court is authorized to issue (e.g., “that the discovery not be had,” or that it may occur “only on specified terms or conditions”) – but now the Rule sets forth substantive guidance to the courts and the parties concerning the appropriate circumstances for such orders.

The Reporter’s Note observed that the amendment “should not result in a significant change to Massachusetts practice because similar factors already exist to limit discovery of electronically stored information under Rule 26(f)(4)(E),” with the exception of one factor that is omitted from the amendment of 26(c), namely “whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought.”  The Reporter’s Notes conclude that the addition of these factors to Rule 26(c) merely “confirms the existing authority of a trial judge in determining whether to grant a protective order.”

The Committee Considered, but Did Not Recommend, Changes to Mass. R. Civ. P. 26 that Would More Closely Track Its Federal Equivalent.   

The limited scope of the Massachusetts 2016 amendment to Rule 26 is the result of a “compromise” between the Committee’s recommendation not to change the Massachusetts discovery rules at this juncture and commentators advocating for the adoption of the extensive changes recently made to Rule 26 of the Federal Rules of Civil Procedure.

The Committee considered, but ultimately rejected, three  proposed changes to discovery rules based on the 2000 and 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure.  Each of those revisions would have impacted Rule 26(b), which is titled “Scope of Discovery.”  As observed by the Reporter’s Note on the amendment, the intent of these proposed changes was “to address the burdens of discovery that have been the subject of significant debate across the country over the past few years.”

The first proposed change, drawn from the 2000 federal amendments, would have refined the scope of discovery under Rule 26(b) by removing language that discovery must be “relevant to the subject matter” and replacing it with language that discovery must be “relevant to the party’s claim or defense.”

The second proposed change to Rule 26(b), taken from the 2015 federal amendments, would have adopted the principle of proportionality by listing factors to consider in deciding whether a discovery request is “proportional to the needs of the case,” such as “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The third proposed change, drawn from the 2015 federal amendments, would have deleted language in Rule 26(b)(1) that information must be “reasonably calculated to lead to discovery of admissible evidence,” a confusing phrase which, as the Committee Note to the Federal Amendment explains, “has been used by some, incorrectly, to define the scope of discovery.”

Upon review of public comments, however, and to the dismay of some practitioners as shown in the Massachusetts Lawyers Weekly’s June 20, 2016 story titled “Unfortunate delay in amending state discovery rules,” the Standing Advisory Committee ultimately recommended not to adopt the three proposed changes to Rule 26(b).  Some comments took the position that the changes are not needed.  As suggested in the Reporter’s Note, the Committee was particularly receptive to the concern that the consequences of imposing the federal changes to Massachusetts courts are unknown (“The principal objection to the amendments by the Standing Advisory Committee was based on the perception by many Committee members of drawbacks and unintended consequences of imposing the federal changes on the Massachusetts trial courts, as well as the newness of the federal changes”). Consequently, the Committee favored a “wait and see” approach, advising the SJC not to revise the discovery rules at this time.  As a “compromise,” the Standing Advisory Committee prepared draft language for the SJC’s consideration alluding to the principle of proportionality but limited to the narrow issue of granting protective orders in discovery disputes under Rule 26(c).  The SJC approved the draft amending Rule 26(c) as described above and left untouched the remaining portions of the discovery rules.

For a further discussion of the amendment to Rule 26(c), readers are directed to the Reporter’s Note (http://www.mass.gov/courts/docs/sjc/rule-changes/rule-change-rule-26-mass-rules-civil-procedure-reporters-notes-may-2016.pdf).

Nathalie K. Salomon is a litigation associate at Fitch Law Partners LLP, where she focuses her practice on general commercial litigation, with particular emphasis on the defense of banks and other financial institutions in tort and contract matters, business litigation and real estate litigation.


Siting Opioid Treatment Programs: Legal Tools for Addressing Zoning Restrictions and other Municipal Impediments

holtzman_Paulmeixel_jillby Paul Holtzman and Jill Brenner Meixel

Heads Up

 The opioid epidemic has reached historic proportions in the Commonwealth and beyond, as we are reminded by near daily news stories detailing its devastating consequences.  Massachusetts leaders have taken strong steps to curb the epidemic, including legislation signed by Governor Charlie Baker in March.[1]  Similar legislative efforts, including additional funding for treatment, are advancing in Congress, and the Department of Health and Human Services (“HHS”) announced in March an initiative to increase access to medication-assisted treatment (“MAT”) which employs medication, counseling and education.

While the Commonwealth has prioritized the need for additional treatment, municipal restrictions often hamper efforts by nonprofit and other providers to site substance-abuse treatment programs.  Although public opinion supports expanded treatment in the abstract, when a particular counseling or treatment program is proposed, opposition often arises from neighbors (whether commercial or residential).  In response, municipal officials sometimes advance pretextual bases to deny a building permit or certificate of occupancy.

Attorneys can play an important role in advocating for these programs by marshaling protections offered by state and federal law to overcome unlawful zoning restrictions and discriminatory NIMBY (“not in my backyard”) opposition.  This article outlines two statutory sources of protection for providers seeking to address the epidemic.  In addition, it discusses case law supporting remedies for substance abuse and other social-service programs that have been impeded by neighborhood opposition grounded in stereotypes about, or hostility toward, those suffering from addiction or other disabilities.

  1. The Dover Amendment, M.G.L. c. 40A, §3, ¶ 2.

While a municipality may generally impose zoning restrictions to regulate where different types of uses – residential, commercial, medical, etc. – may be sited, when an educational nonprofit seeks to site a predominantly educational program, M.G.L. c. 40A, §3, ¶ 2, also known as the “Dover Amendment,” expressly prohibits a municipality’s zoning ordinances or bylaws from “regulat[ing] or restrict[ing] the use of land or structures” for that purpose.  This means that a qualifying use must be permitted as of right in any zoning district.  This law “represents a specific exception to the general power of municipalities to adopt and enforce zoning regulations and by-laws.”  Regis College v. Town of Weston, 462 Mass. 280, 289 (2012).

The Massachusetts Zoning Act, which includes the Dover Amendment, authorizes courts to enjoin violations of the Dover Amendment.  See M.G.L. c. 40A, §7.  When representing a substance-abuse facility in response to a municipality’s invocation of inapplicable zoning restrictions, the Dover Amendment is an important legal tool.  Sometimes town officials are not familiar with the provision and a demand letter can resolve the dispute.  In other cases, it is necessary to obtain injunctive relief.  Qualifying nonprofit organizations have successfully negotiated settlements which include both permission to site their program at the chosen location and substantial attorney-fee awards.[2]

What uses qualify as predominantly educational?

If a program’s educational purpose is subordinate to other purposes, it does not qualify for Dover protection.  “The Dover Amendment protects only those uses . . . that have as their bona fide goal something that can reasonably be described as educationally significant”; such an “educationally significant goal must be the ‘primary or dominant’ purpose for which the land or structures will be used.”  Regis College, 462 Mass. at 285.

However, courts “have refused to limit Dover Amendment protection to traditional or conventional educational regimes.”  Id.  In fact, recognizing that the term “education” is a “broad and comprehensive term,” courts have determined that education is the primary or dominant purpose for which land or structures will be used in programs including substance-abuse treatment centers, group homes, programs serving formerly institutionalized adults with mental disabilities, facilities for the care and education of emotionally disturbed children, and organizations helping the homeless.  Id.; Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152, 154 (1992); Fitchburg Housing Auth. v. Zoning Board of Appeals of Fitchburg, 380 Mass. 869, 874 (1980).  Courts have specifically held that “[r]ehabilitation surely falls within the meaning of education.”  Gardner-Athol Area Mental Health Assoc., Inc. v. Zoning Board of Appeals of Gardner, 401 Mass. 12, 15 (1987).  However, “purely residential and purely recreational projects” do not qualify as “educational.”  Regis College, 462 Mass. at 287.

Courts have consistently found that the Dover Amendment protects substance-abuse treatment programs with a primarily educational purpose, including both non-medication and medication-based treatment programs.  Congregation of the Sisters of St. Joseph of Boston v. Town of Framingham exemplifies a non-medication based Dover-qualifying program.  Recognizing that Massachusetts courts have interpreted education broadly to include activities “outside the realm of a traditional curriculum,” the court held that a nonprofit educational program for families, including those recovering from addiction, was a protected educational use.  1994 WL 16193868, at *2 (Mass. Land Ct. 1994).

Recently, in Spectrum Health Sys., Inc. v. City of Lawrence, No. 2015-288-C (Essex Super. Ct.), the court granted injunctive relief to a substance-abuse counseling and education center.  In a March 9, 2015 Order, the court held that the plaintiff was protected by the Dover Amendment, noting that “Lawrence is one of a handful of communities within the Commonwealth that is significantly adversely impacted by issues of the economy, crime and substance abuse (now, especially opiate distribution and use/overdosing),” and determined that “by statute, Spectrum has a right to now operate.”  The court entered a further order on April 6, 2015, requiring the defendant to “now issue to the plaintiff . . . an occupancy permit/certificate for the use and occupancy of” the commercial property at issue.

Courts also have held that programs that include medication (the focus of the recent HHS initiative) qualify for Dover Amendment protection.  See, e.g., Fitchburg Housing Auth., 380 Mass. 869, 873 (1980) (“[t]he fact that many of the residents of the facility . . . will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical.”).  Likewise, the court in Spectrum Health Sys., Inc. v. Town of Weymouth, Civ. A. No. 06-12133-RWZ, 2006 WL 3487030 (D. Mass. Dec. 4, 2006) granted injunctive relief to a provider seeking to operate a MAT program.  The court determined that the program was “likely to prevail on the merits” on its claim that the municipality acted in violation of the Dover Amendment by refusing to issue building permits.  The court ordered the municipality “to immediately allow Plaintiff . . . to operate the subject program.”  See Order of December 7, 2006.

A similar ruling was made where a nonprofit corporation sought to site a MAT program in a commercial (and not medical) district.  In Spectrum Health Sys., Inc. v. City of Haverhill, Civ. A. No. 2014-130-B (Essex Super. Ct.), by order dated January 31, 2014, the court endorsed an agreement whereby the municipality would issue the certificate of occupancy and the provider agreed to certain terms and conditions regarding the operation of the program.  The order stated that the agreement was reached “after a full hearing by the Court, in which the Court advised that there was a likelihood of success on the merits of Plaintiff’s case and that the City of Haverhill potentially could face a sizable judgment of damages should the Plaintiffs prevail.”

The issue of whether a purpose is predominantly educational is often contested and may implicate disputed issues of fact.  For example, in Regis College, the plaintiff proposed to construct a development at the college for older adults, which would require an application and interview process for admission.  Regis College, 462 Mass. at 282.  Residents would have academic advisors and “be required to enroll in a minimum of two courses per semester,” and could potentially “pursue degrees and certificates awarded to the plaintiff’s current student body.”  Id. at 282-83.  While the Land Court entered summary judgment for the defendant determining that the use did not meet the educational requirement, the Supreme Judicial Court vacated the decision, holding that there existed a dispute of fact regarding whether the program “will primarily operate in furtherance of educational purposes.”  Id. at 281.  The SJC noted that the “primary and genuine purpose” requirement ensures that “a party invoking Dover Amendment protection does so without engrafting an educational component onto a project in order to obtain favorable treatment under the statute.”  Id. at 290.  In other words, it is not sufficient to rely upon a stray educational purpose which is a minor element of an otherwise non-exempt project.

Municipalities May Subject Dover-Protected Programs to Certain Restrictions

While municipalities cannot interfere with the siting of substance-abuse programs protected by the Dover Amendment, “such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.”  M.G.L. c. 40A, §3, ¶ 2.  However, municipalities may not restrict qualifying Dover uses beyond these regulations.  See e.g., Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33-34 (1979) (“provisions of the Lenox by-law go well beyond the scope of bulk, dimensional, and parking regulations permitted to be imposed on educational uses by G.L. c. 40A, s. 3, and place the board in a position to act, as it did in this case, impermissibly to impede the reasonable use of the (institution’s) land for its educational purposes”) (quotations omitted).

2. The Federal Fair Housing Act

In addition to the Dover Amendment, the federal Fair Housing Act (“FHA”) is often invoked in disputes regarding a municipality’s opposition to the siting of a substance-abuse treatment program.  The FHA establishes that it is unlawful to discriminate “in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.”  42 U.S.C. §3604(f)(1)(A).  Further, the FHA provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by” the Act.  42 U.S.C. §3617.  This statute protects both for-profit and nonprofit providers of services to disabled individuals, and also provides for recovery of attorneys’ fees where a violation is established.

Under the FHA, a plaintiff can assert three distinct causes of action: “intentional discrimination (or disparate treatment), disparate impact, or failure to make a reasonable accommodation.”  South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010); Easter Seal Soc’y of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228, 234 (D.N.J. 1992) (township’s misclassification of the use, among other evidence, strongly suggested discrimination).  Discriminatory intent “may be established against [a] public entity by demonstrating” discriminatory treatment, for example, by applying “different rules to the disabled than are applied to others.”  Arc of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637 (1996) (D.N.J. 1996).

Further, any interference or delay in responding to an application for a local permit may constitute a separate violation of the FHA.  Specifically, Section 3604(f)(3)(A) states that “discrimination includes … a refusal to permit … reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.”  Case law highlights that municipalities may not impose artificial obstacles to the siting of a facility providing services to the disabled, including the imposition of delay.  By way of example, in South Middlesex, 752 F. Supp. 2d at 89, nonprofit educational corporations operating residential substance abuse treatment programs sued when, in response to a proposed relocation within the Town, the plaintiffs “encountered resistance from some of the residents and local officials” over a period of years.  The court determined that discrimination under the FHA “includes delays in issuing permits that are caused in part by discriminatory intent, even if the permits are ultimately granted,” and stated that “[t]his case involves not only evidence in the record indicating delays, but also communications by the Defendants linking such delays to the nature of the projects and their residents.”  Id. at 97-98.  Accordingly, the court denied the defendants’ motion for summary judgment, finding that “there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken.”  Id. at 98.

Most recently, the Second Circuit reached a similar result in Mhany Mgmt, Inc. v. County of Nassau, No. 14-1634, 14-1729, 2016 WL 1128424 (2d Cir. Mar. 23, 2016).  A non-profit housing developer and several residents alleged that the governmental defendants had re-zoned parcels of county-owned land to prevent the construction of low- and middle-income housing as part of a long-standing discriminatory policy to exclude racial minorities.  The court determined that the defendants’ decision to re-zone was made with discriminatory intent and “was a knowing response to the vocal and racially influenced opposition among [defendants’] citizenry.”  Id. at *19.  The court held that “the district court was entitled to conclude . . . that something was amiss here, and that [defendants’] abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.”  Id. at *24.  Importantly, there was no requirement to establish that the governmental officials were themselves motivated by racial discrimination where they acted in “acquiescence” to the discriminatory objections from residents.  The same principle applies in the context of Fair Housing Act liability for discrimination on the basis of disability or handicap.

Reasonable Accommodation Requirement

The FHA also establishes that it is a “discriminatory housing practice” to refuse to make

reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.

42 U.S.C. §3604(f)(3)(B).  When a municipality refuses to make a reasonable accommodation in the implementation of its zoning “rules,” “policies,” or “practices,” the municipality violates the FHA.  Oxford House v. Town of Babylon, 819 F. Supp. 1179, 1185 (E.D.N.Y. 1993).

It is settled law that a required reasonable accommodation may take the form of an exception to a zoning ordinance.  As the First Circuit noted in Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 270 n. 22 (1st Cir. 1993), “compliance with the zoning ordinances should be ‘waived’” as a reasonable accommodation.  Similarly, the court held in Oxford House, 819 F. Supp. at 1186, that the failure to provide a reasonable accommodation is per se “discriminatory conduct” under the FHA, and stated:

Because one of the purposes of the reasonable accommodations provision is to address individual needs and respond to individual circumstances, courts have held that municipalities must change, waive, or make exceptions in their zoning rules to afford people with disabilities the same access to housing as those who are without disabilities.

An accommodation is “reasonable,” and hence required under the FHA, if it

 does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve.

Id.; see also Oxford House v. Township of Cherry Hill, 799 F. Supp. 450, 462 n. 25 (D.N.J. 1992) (“‘Reasonable accommodation’ means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual”).

3. Conclusion

By invoking the robust protections afforded by the Dover Amendment, Fair

Housing Act and other civil-rights statutes, attorneys can assist those on the front lines of substance-abuse treatment and prevention.  While municipalities are empowered to impose reasonable regulations addressing the uses specified in the Dover Amendment, the proposed siting of a qualifying use cannot be derailed or delayed no matter how vociferous the opposition from neighboring residents or businesses.  This set of legal protections constitutes a critical tool in promoting the availability of services for those suffering from the scourge of addiction.

[1] An Act relative to substance use, treatment, education and prevention, Chapter 52 of the Acts of 2016 (March 14, 2016).

[2] While the Dover Amendment does not include an attorneys’ fee provision, applicable civil rights statutes do.  As a result, for example, the City of Pittsfield paid $100,000 in attorneys’ fees to a nonprofit corporation after initially refusing to permit a substance-abuse treatment program to operate.  See “Taxpayers to pay for $100K clinic settlement,” Berkshire Eagle, August 14, 2012.

Paul Holtzman, a partner at Krokidas & Bluestein LLP, focuses on employment, civil rights and litigation matters, including discrimination, harassment, retaliation and whistleblower claims.  He also serves as a mediator and arbitrator.

Jill Brenner Meixel, a partner in Krokidas & Bluestein LLP’s litigation group, represents for-profit and non-profit entities and individuals in commercial, employment, real estate and general litigation matters.

Attorneys Holtzman and Meixel have represented social service providers including substance abuse programs in challenging municipal obstacles to siting.


A Fairer Approach in Addressing the Opioid Epidemic: Recent Changes to the Law Regarding Involuntary Commitments for Alcohol and Substance Use Disorders under M.G.L. c. 123, § 35

Lyons_Crystalby Crystal Lyons

Heads Up

The opioid epidemic, in Massachusetts and nationwide, is a public health crisis demanding the attention and resources of all facets of government. One tool that has seen substantially increased usage is M.G.L. c. 123, § 35 (“Section 35”), which permits involuntary commitment of persons with alcohol or substance use disorder for treatment of up to 90 days if a court finds that they present a likelihood of doing serious harm to themselves or others. A petition under this section often accompanies an arraignment on criminal charges related to substance use, although not every individual subject to a Section 35 petition also faces criminal charges. The increase in usage has also spurred increased attention to the standards and processes that should apply to proceedings under Section 35. The involuntary commitment of women without any criminal charges to a correctional facility (MCI-Framingham) for treatment has been the focus of the most criticism and concern, including in articles in this Journal.

In response to the scrutiny, the Legislature and courts alike have recently updated and clarified the law. First, in July 2015, the Trial Court promulgated Uniform Trial Court Rules (“Uniform § 35 Rules”) to govern Section 35 commitment proceedings, which Rules went into effect February 1, 2016. Second, this past November, the Supreme Judicial Court issued its decision in In the Matter of G.P., “concerning the operation of § 35 as well as the … uniform § 35 rules.” 473 Mass. 112, 113 (2015). Third, in January 2016, the Legislature passed House Bill 3956, signed into law as Chapter 8 of the Acts of 2016 and effective April 24, 2016, which specifically amended Section 35 to bar sending women without criminal involvement to state prison for treatment. Finally, House Bill 4056 (“Opioid Bill”), passed and signed into law in March 2016, made one additional small change, extending the warrants for arrest under Section 35 for up to 5 business days. Once these changes are fully implemented, many of the previous concerns relating to Section 35—including the inherent limitations of the court system as a mechanism to access treatment services; the increasing number of individuals, in particular women, who are civilly committed to state prisons for treatment; and need for greater uniformity in commitment hearings—should be allayed. This article addresses the primary changes and clarifications made as a result of this recent court and legislative action.

First, as the title of this article suggests, the definitions in Section 35 were updated. In order to reflect the current, clinical understanding of the underlying disorder, the terms “alcoholic,” “substance abuser,” and “addict” were replaced with “a person with an alcohol disorder, substance use disorder, or both.”

Second, and most celebrated, under amended Section 35, women without criminal convictions may no longer be sent to MCI-Framingham for treatment when no beds at other facilities are available. To implement this reform, a total of forty-three new beds have been designated for women at Taunton State Hospital and Lemuel Shattuck Hospital to cover the estimated additional need. Under a new provision, however, a judge may evaluate the need to commit an individual to a secure facility “as the only appropriate setting for treatment” (often based on risk of violence)—men to MCI-Bridgewater and women to an as yet to be designated facility approved by the Department of Mental Health or the Department of Public Health.

Third, to standardize and expedite hearings, the new Uniform § 35 Rules clarify several procedural points. When a petition is first filed, the court must make an initial assessment to determine: 1) whether a proper party under the statute has made the filing and there exists a reasonable basis to believe the standard can be met; and 2) whether the respondent, i.e., the individual subject to the petition, is present and, if not, whether that particular court is the best venue to hear the petition.

Notwithstanding that individuals are increasingly looking to “section” themselves to access treatment when other treatment resources are unavailable or inadequate, under Section 35, an individual may not file a petition on his own behalf. Nevertheless, if the court determines that there is a strong basis for a petition, the court may ask a police officer or court official (often a probation officer) to step in as the statutorily qualified petitioner. Once the court finds both a reasonable basis for the petition and a proper petitioner, the petition may not be withdrawn or dismissed without leave of the court. This restriction against voluntary termination recognizes the public health and safety concerns underlying Section 35 proceedings and may help address the problem that occurs when family members or other petitioners develop cold feet as a result of pushback they may receive from a reticent respondent.

Under the second inquiry, if the respondent is present in court, the hearing must go forward without delay in that court (and bail should be set if the respondent is also arraigned on criminal charges). There are no venue restrictions for Section 35 petitions based on residency or otherwise, and adult hearings may proceed in juvenile court and vice versa. This frees petitioners to go to the court nearest to where they are able to locate the respondent, the court where criminal charges are pending, or the court nearest to where the petitioner may live or work (particularly where the petitioner is a treating physician or police officer).

When the respondent is not present at the time the petition is filed, the court may evaluate whether it is the most appropriate court to maintain the petition, and may issue a summons or, more frequently, a warrant for the respondent’s apprehension and return to that court during court hours only. The new Opioid Bill extended the time that the warrant may be returned from three to five business days. When a respondent is located far enough away from the originating court such that travel there during court hours is not practicable, officers may instead take the respondent to the nearest court, which can seek to have the petition transferred to that court. The Uniform § 35 Rules also clarify that the petitioner need not be present for the hearing to go forward (or she may appear remotely). This is helpful where a petition must be transferred to another court but the petitioner is unable to timely travel to the new court, as well as in those cases where the petitioner may be an on-duty treating physician who cannot leave the hospital.

Finally, in light of the respondent’s liberty interests at stake, in In the Matter of G.P., the Supreme Judicial Court clarified the standards for involuntary, civil commitment under the statute. The two primary rulings in the case establish that the appropriate standard of proof is clear and convincing evidence and that substantially reliable hearsay is admissible. This holding make Section 35 hearings analogous to probation violation hearings—a familiar standard for those in the criminal justice system.

The Court also addressed the type of evidence necessary to sustain a finding of clear and convincing evidence of likelihood of serious harm directly resulting from alcohol and/or substance use. Such risk can be established by demonstrating a substantial risk of physical self-harm, harm to others, or by showing that the respondent’s judgment is impaired to such a degree that there is a very substantial risk of physical impairment or injury. Each of the three methods also requires a showing of imminence of harm, which for purposes of Section 35 means not that the risk of harm must be immediate, but rather that it must materialize in the reasonably short term—meaning days or weeks rather than months. The Court elaborated on the types of evidence which would credibly support such an imminent risk: specific threats, proximate in time or numerous in nature, with the seriousness of the threats or past harm carefully weighed. Where a risk of harm to others is alleged, it must be of a substantial level of force and intensity to be categorized as “violent behavior” or “serious physical harm” under the statute. A simple pushing of another out of the way, for example, is not sufficient.

Under the third method (impaired judgment), the Court explained that the type of harm that may suffice was akin to an inability of the respondent to treat an injury or medical condition (e.g., failure to take prescribed medication or obtain regular dialysis) or a risk due to extreme weather conditions, and an inability of the respondent’s “community” to adequately address the risk. The ability of the respondent’s community to provide protection would likely be lower where an individual is homeless or living only with elderly parents or small children. A risk of overdosing may be sufficient under this prong, but only where “strong and specific evidence [is] presented that the risk of overdosing is indeed imminent and the degree of probability she will do so is high.” In the Matter of G.P., 473 Mass. at 129 n.23. A recent nonfatal overdose would likely satisfy this prong.

Both In the Matter of G.P. and the Uniform § 35 Rules address and protect a respondent’s right to present independent medical evidence and to appeal any commitment, allowing for both motions to reconsider and expedited review on appeal.

These recent changes bring consistency, transparency, and increased fairness to Section 35 proceedings. And with the additional dedicated Section 35 treatment beds allocated for women, increased fairness also means access to meaningful treatment and rehabilitation resources.

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She previously practiced business litigation, clerked for the Ninth Circuit Court of Appeals, and graduated Order of the Coif from UCLA School of Law. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.


The 2016 Massachusetts Code of Judicial Conduct: Judicial Engagement with the Organized Bar

cohen_cynthiaberenson_barbaraby Hon. Cynthia Cohen and Barbara F. Berenson

Heads Up

In October 2015, the Justices of the Supreme Judicial Court (“SJC”) adopted a new Massachusetts Code of Judicial Conduct, effective January 1, 2016 (“new Code” or “2016 Code”).  The new Code is the culmination of three years of study by a committee of judges, lawyers, and academics, who were appointed by the SJC to study the previous, 2003 Massachusetts Code of Judicial Conduct (“predecessor Code” or “2003 Code”) and to recommend changes in light of the American Bar Association’s 2007 Model Code (“2007 ABA Model Code”).  The committee was fortunate to have among its members three prominent bar leaders:  Attorney Lisa Goodheart and Professor Renee Landers, both past Presidents of the BBA, and Attorney Michael Greco, a past President of both the MBA and the ABA.  Bar associations and individual members of the bar also provided invaluable feedback and suggestions during the public comment period.

The 2016 Code differs substantially from the predecessor Code in both form and substance.  It closely resembles the 2007 ABA Model Code in structure and overall philosophy, but it also contains a significant number of nonconforming provisions, often because the departure is more suitable for a state that does not elect its judges.  A summary of key new and revised provisions is available for review on the website of the Massachusetts Judicial Branch, as is the committee’s Report.

An important difference between the 2016 Code and the predecessor Code pertains to judicial participation in outside activities.  To a large extent, the 2003 Code shielded judges from interactions with the public, in the belief that judicial isolation would best ensure the independence, integrity, and impartiality of the judiciary.  In contrast, the 2016 Code recognizes the value and importance of judicial outreach and affirmatively encourages judges to participate in community activities, so long as they are consistent with a judge’s fundamental obligation to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety.

This new philosophy is particularly evident in rules bearing on judicial engagement with the organized bar.  Early on, in Canon 1, the new Code makes clear that judges are affirmatively encouraged to “participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.”  Rule 1.2, Comment [4]. Later, in Canon 3, Rules 3.1 and 3.7 offer specific guidance concerning a judge’s participation in extrajudicial activities, including those of bar associations.  Rule 3.1 permits a judge to “engage in extrajudicial activities, except as prohibited by law or this Code,” albeit with some general cautions.  For example, the activities must not interfere with the proper performance of the judge’s judicial duties or lead to recurrent disqualification.  That said, as long as the concerns of Rule 3.1 are satisfied, Rule 3.7 encourages judges to participate in activities that “foster collegiality among the bar and communication and cooperation between the judiciary and the bar.”

This encouragement specifically extends to speaking about the administration of justice at bar association events.  Rule 3.7, Comment 1[B].  In a departure from the predecessor Code, a judge ordinarily may do so even when the event is held in space provided by a law firm or is financially supported by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits.  Ibid.  The rationale for this liberalization is that some bar associations, particularly affinity bar associations with smaller memberships, may not be in a financial position to hold events without the support of private sponsors or the use of law-firm space.  The Code cautions, however, that the judge must avoid giving the impression that the sponsors of an event are in a special position to influence the judge.  Rule 3.7, Comment [1A].

The 2016 Code also relaxes what had been an outright  prohibition on a judge serving as a featured speaker or receiving an award or other comparable recognition at a fundraising event of a law-related organization.  A judge is now permitted to speak or be honored if the event is sponsored by a law-related organization that promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar.  Rule 3.7(A)(6A).  As explained in Comment [4], general interest organizations include, for example, state bar associations, city or county bar associations, affinity bar associations, and bar associations that specialize in particular practice areas but whose members take positions on both sides of disputed issues.

The 2016 Code continues to prohibit a judge from serving as a featured speaker or receiving an award at other fundraising events, but more narrowly defines that term.  Under the new Code, a fundraising event is one where the organizers’ chief objectives include raising money to support the organization’s activities beyond the event itself; unless that definition is met, an event is not considered to be a fundraising event, even if the revenues from the event ultimately exceed the costs.  Rule 3.7, Comment [3].

The 2016 Code also modifies the rules governing a judge’s acceptance of invitations to attend without charge a luncheon, dinner, reception, award ceremony, or similar event held by a law-related organization in Massachusetts.  A judge may now accept such invitations without having to obtain a written determination from the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose; instead, the Code presumes that a judge’s attendance at such events will serve a public purpose.  The intent of this provision is to make it less burdensome for judges and their Chief Justices to facilitate judicial attendance at local bar events.  In other instances, judges remain required to obtain determinations from their Chiefs before accepting complimentary invitations.  See Rule 3.14.

At the same time that the SJC adopted the new Code, it also revised SJC Rule 3:11, which governs the Committee on Judicial Ethics.  Among other things, the revised rule provides that the Justices may from time to time issue an Ethics Advisory to elucidate the meaning or application of a provision of the Code and to expound upon provisions that are of broad interest and application. SJC Rule 3:11(4).  Groups of judges and lawyers, including bar associations, may request an Ethics Advisory, but the court may decline to render one for any reasons it deems sufficient.  Ibid.  Although the Committee on Judicial Ethics will continue to render Informal Opinions and Letter Opinions (formerly known as Advisory Opinions) only to judges, by offering bar associations the opportunity to seek clarification of Code provisions, the new rule recognizes that issues of judicial ethics are of great interest and importance to the bar as well as the judiciary.

Hon. Cynthia J. Cohen is an Associate Justice of the Appeals Court.  She chaired the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and currently chairs the Committee on Judicial Ethics.

Barbara F. Berenson is a senior attorney at the Supreme Judicial Court. She staffed the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and is currently staff counsel to the Committee on Judicial Ethics.

 


The Impact of Recent Revisions to Fed. R. Civ. P. 37(e) — Electronic Spoliation

bresnahan_elizabethby Elizabeth Bresnahan

Heads Up

The amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, include significant changes to Rule 37(e) concerning spoliation of electronic evidence.  See Fed. R. Civ. P. 37(e).  With electronically stored information (“ESI”) becoming increasingly prevalent, the amendments are designed to clarify and streamline litigants’ preservation obligations, imposing a high bar on parties who seek to have sanctions imposed on their opponents.  Litigants can now expect uniform standards for curative measures where the circuits had previously been split and sanctions inconsistently applied.  For example, the amended Rule 37(e) represents a departure from the negligence standard which precipitated sanctions in a variety of circuits under the former Rule, and “forecloses reliance on inherent authority or state law to determine when” sanctions and remedial measures should be used.  Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment, available at https://www.law.cornell.edu/rules/frcp/rule_37.  (“Advisory Committee Notes”).  Instead, under the current Rule 37(e), courts are instructed not to impose an adverse inference, or other harsh sanctions, absent a party’s intent to deprive the other party of the at-issue evidence, resulting in prejudice.   Moreover, under the amended Rule, such corrective measures can only be imposed where electronic information that should have been preserved in anticipation of litigation is lost.  The amended Rule offers some additional protection to litigants by permitting additional discovery to repair or replace such presumed “missing” evidence.  And, even if the court eventually finds that sanctions are appropriate, they are limited to “measures no greater than necessary to cure the prejudice.”  Fed. R. Civ. P. 37(e)(1).  Thus, the result may be that, as litigants find additional protections under the amended Rule, and higher hurdles to imposing sanctions on their opponents, we may see a decrease in litigation concerning failure to preserve.

Fed. R. Civ. P. 37(e), as amended.

The text of the amended Rule, marked to show changes from the prior version, follows:

(e)  Failure to Provide[Preserve] Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.[If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Evidentiary Sanctions Under the Amended Rule.

Failure to take reasonable measures to preserve.  Rule 37(e) does not create a new duty to preserve, and as such, does not apply if the ESI is lost before the duty to preserve arises.  See Advisory Committee Notes.  Indeed, a party’s preservation obligations remain triggered when litigation is pending or reasonably foreseeable, or where the party has independent preservation obligations, e.g., under a specific statute or internal company policy.

In determining whether a party has taken reasonable steps to preserve, the Rule allows courts to consider “routine, good-faith operation of an electronic information system,” as well as the “proportionality” of the efforts to the case and to a party’s resources.  Id.  The Advisory Committee directs that courts be “sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts…” Id.  And, a party’s efforts need not be perfect.  Id.

No sanctions or other remedial measures unless information is lost.  Critical to whether remedial measures are permitted under the amended Rule is that the information at issue be lost; if it can be “restored or replaced through additional discovery,” Rule 37(e) does not permit remedial action.  Fed. R. Civ. P. 37(e).  The Advisory Committee reasons that “[b]ecause electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.”  Advisory Committee Notes.  Moreover, “efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information…. [S]ubstantial measures should not be employed to restore or replace information that is marginally relevant or duplicative.”  Id.

Measures “no greater than necessary” on finding of prejudice.  Assuming the above prerequisites are met, a court may order certain proportional remedial measures under subsection (e)(1) of the amended Rule only “upon finding prejudice to another party from loss of information.”  Fed. R. Civ. P. 37(e)(1).  The measures must also be “no greater than necessary to cure the prejudice.” Id. How to assess prejudice is left to the discretion of the courts; the Rule does not address which party has the burden.  Advisory Committee Notes.

Upon finding prejudice, courts may impose remedial measures that are proportional to the prejudice.  Id.  The Advisory Committee identifies these less severe, but serious measures, as “forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies.”  Id.

Specified and severe measures only upon finding “intent to deprive.”  Under the amended Rule, the most severe sanctions, such as adverse inference jury instructions, dismissal of claims, and entry of a default judgment, are now reserved for a “finding that the party acted with the intent to deprive another party of the information’s use in the litigation.”  Fed. R. Civ. P. 37(e)(2).  The Advisory Committee counsels the importance of a finding an “intent to deprive” in order to address and deter such failures.  Advisory Committee Notes.  Mere negligence — or even gross negligence — is no longer sufficient.

While the Rule sets forth four severe sanctions that may be imposed under the Rule upon a finding of intent, proportionality again directs the analysis.  Likewise, the Advisory Committee cautions that “[t]he remedy should fit the wrong, and the severe measures authorized … should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.” Id.

Elizabeth Bresnahan is a litigation associate in the Boston office of Morgan, Lewis & Bockius LLP.


Proportionality Emphasized In Amendments To The Federal Rules Of Civil Procedure

foster_mannyby Immanuel R. Foster

Heads Up

Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015.  The amendments modify Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84.  The amendments seek to increase the efficiency and speediness of litigation while slowing the rising costs of discovery.  Toward the latter goal, certain of the revisions establish an express guiding principle to limit the scope of discovery:  proportionality.

The application of the proportionality requirement likely will have an immediate and lasting influence on how parties conduct discovery in federal courts and how the courts referee discovery disputes.  Specifically, amended Rule 26(b)(1), which governs the scope of discovery, permits discovery into relevant, non-privileged information “proportional to the needs of the case.”  (Emphasis added.)  Old Rule 26(b)(1) permitted discovery into relevant, non-privileged information “reasonably calculated to lead to the discovery of admissible evidence,” a phrase that was often misconstrued and which is now removed.  Old Rule 26(b)(1) also permitted such discovery into sources of additional discovery, “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”  Thus, the new rule:  (i) establishes “proportionality” as a limiting principle (ii) potentially limits “discovery about discovery” and, consequently, (iii) will, it is hoped, add a needed control to the rising costs of discovery.

Proportionality Is The New Standard

The amended rule removes “reasonably calculated” – an ambiguous phrase that sometimes allowed for expansive discovery – and focuses on “proportional.”  And the amended rule specifies the considerations for determining whether discovery is proportional, including “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”  Parties now must consider these factors when making or responding to discovery requests.

To be sure, proportionality is not a wholly new concept in federal practice.  For example, before the 2015 amendments, proportionality was implied by Rule 26(b)(2)(C)(iii), which required courts to limit discovery where “the burden or expense of the proposed discovery” would “outweigh[] its likely benefit,” and Rule 26(g) required a party seeking discovery to certify that the discovery was “not . . . unduly burdensome or expensive,” in light of the circumstances of the litigation.  But while parties seeking protective orders pursuant to Rule 26(c) would frequently call the court’s attention to these proportionality considerations, opposing parties would often invoke “reasonably calculated,” which the Advisory Committee Notes on the new rule state “were used by some, incorrectly, to define the scope of discovery.”  The amendments change that.  The Committee Notes also state that “[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery,” empowering courts to enforce tighter limits on disproportionate discovery.

Proportionality May Restrict Discovery About Discovery

The amendment to Rule 26 deletes language that permitted discovery into information about “the existence, description, nature, custody, condition, and location of any documents . . . and location of persons who know of any discoverable matter.”  However, the Committee Notes suggest that this change is more style than substance.  It states that the long list of examples is so “deeply entrenched” that to include it would only maintain unnecessary “clutter” in an already lengthy rule, and that “[t]he discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case.”

Still, the revision suggests limitations to the scope of this discovery to the extent that it would be at cross purposes with proportionality.  For example, in a recent case, a magistrate judge ruling on a motion for a protective order applied Rule 26(b)(1) and limited a proposed Rule 30(b)(6) deposition topic, noting that “[w]hile Plaintiffs have articulated credible reasons for seeking this information nationwide, its production is not proportional to the needs of the case.”  Cooper v. Charter Commc’ns, Inc., No. 3:12-cv-10530-MGM, 2016 WL 128099, at *2 (D. Mass. Jan. 12, 2016).  One of the credible reasons that Plaintiffs had advanced was that they were entitled to test Defendant’s assertion that they lacked certain relevant records for Massachusetts by inquiring about “how [Defendant] is able to track service losses in other states.”  Pl.’s Opp’n To Charter’s Mot. at 7, Cooper, ECF No. 187.  Thus, although the discovery request might have been permitted under the old rule, it was deemed not proportional under the new rule, and therefore exceeded the scope of discovery now permitted.

Proportionality Considerations Will Likely Contain The Costs Of Discovery

Proportionality figures to slow the ballooning costs of litigation caused by technological advances.  Specifically, widespread use and adoption of electronically stored information (ESI), often over many platforms, has made once-mundane discovery requests exponentially more burdensome.  In the past, responding to a discovery request might have meant collecting the data from a few computers from a few custodians, and each of those computers might have stored only a few gigabytes of data.  Now, discovery sometimes requires searching and reviewing terabytes of data harvested from local computers, from networks, and from the cloud – all of which must be reviewed for relevance and privilege.  This discovery can be similarly onerous for discovery recipients who must review and analyze large productions to determine how the information fits into or modifies their theory of the case or how the information might necessitate additional discovery.

The Committee Notes express the hope that parties and the courts will continue to embrace sophisticated ways to reduce the costs of producing ESI.  For example, to the extent that a discovery request could call for a click-by-click review through thousands or millions of documents, courts should permit parties to use reasonably-tailored search terms to narrow the scope of review.  Proportionality may now require it.  Limiting the scope of e-discovery would certainly make discovery less expensive.  Moreover, as discussed above, if courts become more reluctant to permit discovery into potential sources of additional discovery, that would further contain costs.

Conclusion

At the very least, the amended Rule 26(b)(1) will require parties and federal courts to weigh the proportionality factors and determine, for example, whether the importance of certain discovery in resolving an issue is proportional to the burden or expense of providing that discovery.  The Committee Notes suggest that parties should use Rule 26(f) and other scheduling and pretrial conferences to gain a “full appreciation of the factors that bear on proportionality” to inform their discovery requests and responses.  In discovery motion practice, parties will no longer prevail by arguing that a discovery request is reasonably calculated to lead to admissible evidence; now they must demonstrate that the request is proportional.

Immanuel R. Foster is a litigation associate at Skadden, Arps, Slate, Meagher and Flom LLP, and a member of the Boston Bar Association.


Zoning for Medical Marijuana: Approaches & Considerations

mchugh_jamesstempeck_justinby Lisa L. Mead and Adam J. Costa

Heads Up 

On November 6, 2012, Massachusetts voters overwhelmingly approved a ballot initiative legalizing the use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition.  Effective January 1, 2013, the “Act for the Humanitarian Medical Use of Marijuana” presents a number of issues for cities and towns concerning the exercise of their zoning powers.  The Act established a process whereby medical marijuana treatment centers, defined as not-for-profit entities that acquire, cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana or products containing marijuana for medical use, may apply to the Department of Public Health (DPH) for registration.  The Act provides for the registration of up to 35 medical marijuana treatment centers initially, with at least one but not more than five centers per county.

Although no reference is made in the Act to municipal zoning control or its applicability to medical marijuana treatment facilities, the DPH regulations promulgated thereunder in mid-2013, see 105 CMR 725.000, address zoning for these facilities, referred to as registered marijuana dispensaries (RMDs):  “The Department does not mandate any involvement by municipalities or local boards of health in the regulation of RMDs, qualifying patients with hardship cultivation requirements or any other aspects of marijuana for medical use.  However, nothing in 105 CMR 725.000 shall be construed so as to prohibit lawful local oversight and regulation. . . that does not conflict or interfere with the operation of 105 CMR 725.000.”  105 CMR 725.600.  Accordingly, per the Home Rule Amendment, Mass. Const., amend. LXXXIX, Massachusetts cities and towns may in their discretion adopt zoning ordinances and bylaws relative to the siting, development, and operation of medical marijuana treatment centers, as long as their provisions are not at odds with the Act or the DPH regulations.

To Zone or Not to Zone

A municipality is under no obligation to zone for RMDs, and many cities and towns either have yet to adopt such zoning or have elected not to do so.  The DPH regulations mandate a buffer zone around certain facilities for children.  Absent a more stringent local requirement, “a RMD shall not be sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate.  The 500 foot distance. . . is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.”  Municipalities may establish their own buffer zones from these or other facilities, provided they are mindful that, collectively, these zones may not effectively prohibit RMDs city- or town-wide.

The Office of the Attorney General has opined that an outright ban on medical marijuana treatment centers in a municipality frustrates the purposes of the Act and, consequently, is invalid.  “The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.”  Letter from the Att’y Gen. to the Town of Wakefield, Mar. 13, 2013, available at http://www.mlu.ago.state.ma.us/.

The Attorney General’s Office has also rejected bylaws prohibiting home cultivation as an accessory use, restricting home cultivation to a particular area of the community, imposing buffer zones around home cultivation sites, and requiring a special permit for home cultivation.  Home cultivation of medical marijuana is authorized by the Act and the DPH regulations for qualifying patients whose access to a RMD is limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a medical marijuana treatment center within a reasonable distance from the patient’s residence.

For municipalities that choose to zone for medical marijuana by adopting reasonable regulations, the choice is between incorporating RMDs into the zoning already in effect and establishing an overlay district within which RMDs may be sited.

Incorporation into Existing Zoning

Using a more traditional approach to zoning, a municipality may amend its existing zoning ordinance or bylaw to identify and define RMDs and to specify the zoning district or districts where they are permitted.  In doing so, it subjects a RMD to the same dimensional and density requirements and performance standards applicable to other uses in the same district.  Dimensional and density requirements might include area, frontage, and setback constraints, among others. Performance standards might regulate noise, traffic, or other aspects of a use for compatibility with its surroundings.  If a city or town so chooses, it may zone cultivation and processing operations separately from retail facilities.  Although both qualify as RMDs per the DPH regulations, these uses need not be co-located.

A city or town may elect to allow RMDs only by special permit, in some or all of the zoning districts in which they are an available use.  The Attorney General has cautioned municipalities, however, that an ordinance or bylaw must provide adequate standards to guide a board in deciding whether to grant or deny the special permit.  It may not be enough for a municipality to rely on the general requirement of the Zoning Act, at G.L. c. 40A, § 9, that the use be “in harmony with the general purpose and intent of the ordinance or by-law,” nor are a municipality’s special permit criteria for other uses always appropriate for application to RMDs.  Municipalities have been advised “to list specific criteria for. . . consider[ation] when reviewing [an] application.”  Letter from the Att’y Gen. to the Town of Westborough, July 11, 2013, available at http://www.mlu.ago.state.ma.us/.

In its regulation of medical marijuana treatment centers, a municipality must also be cautious not to run afoul of the zoning exemption available to agricultural uses, under G.L. c. 40A, § 3.  To the extent that an RMD’s operations qualify as commercial agriculture thereunder, a municipality cannot require a special permit for, or unreasonably regulate or prohibit, the use.

Creation of an Overlay District

An alternative to incorporating RMDs into an existing zoning ordinance or bylaw is to create an overlay district for medical marijuana treatment centers.  An overlay zone is a district superimposed on one or more established zoning districts which may apply supplemental restrictions on uses in these districts or permit uses otherwise disallowed.  By adopting an overlay district, a municipality gains greater control over where RMDs may be sited.  The limits of acceptable locations need not coincide with the boundaries of the municipality’s existing zoning districts, but may be determined by the city or town in its discretion upon consideration of existing and anticipated land uses and the compatibility of RMDs with these uses.  A municipality may incorporate dimensional requirements and performance standards specific to the overlay district, and may even pair these regulations with buffer zones surrounding schools, daycare centers, or other uses potentially impacted by a RMD.  A special permit may be required for the development and operation of a RMD within the overlay district; or the municipality may choose to permit these facilities as-of-right or subject only to site plan review.

Host Community Agreements

Several Massachusetts municipalities have opted to negotiate host community agreements with potential RMDs to eliminate or mitigate any possible adverse effects of RMDs.  Neither the Act nor the DPH regulations prohibit these agreements.  And while a municipality may not require a RMD to enter into a host community agreement, such an agreement may expedite a RMD’s receipt of a letter of support or non-opposition from the municipality, now a requirement of the DPH licensing process as updated in mid-2015.  A municipality might otherwise choose to issue its letter of support or non-opposition only upon a RMD’s completion of the permitting process, once the city or town is satisfied that the project has been adequately vetted.

Among the most common subjects of host community agreements are financial compensation due the municipality, taxes, and charitable contributions.  Financial assistance to a city or town may help offset community impacts, fund public health and safety initiatives, or otherwise aid the municipality.  The payment of real estate taxes or the making of payments in-lieu-of taxes is also worthy of negotiation; otherwise, because RMDs are required by the Act to be not-for-profit entities, they may qualify as tax-exempt.  Entering into a tax agreement helps to alleviate any questions about the payment of taxes to the municipality.  Finally, a number of Massachusetts municipalities have negotiated charitable contributions by RMDs in exchange for the community’s support of, or non-opposition to, the development of a medical marijuana treatment center.

In summary, Massachusetts cities and towns have a choice about whether to zone for medical marijuana treatment centers and, if they do, of how to approach the rezoning process.  Some municipalities have utilized traditional zoning practices, allowing RMDs in one or more existing zoning districts and often requiring a special permit.  Other municipalities have developed overlay districts, within which RMDs may be sited subject to dimensional requirements, performance standards, and other regulations specific to the use.  Regardless of which approach is chosen, a municipality would be wise to explore negotiation of a host community agreement with a potential RMD and avail itself of the financial incentives that may be offered in exchange for the municipality’s cooperation with the application process.

Lisa L. Mead and Adam J. Costa are partners at Blatman, Bobrowski, Mead & Talerman, LLC. They concentrate their practice in the areas of general municipal, land use and environmental law, representing both municipal and private clients throughout Massachusetts.