[MassHistPres] Mullin Rule applicability

[Dennis De Witt]

I have the impression that a town does not "adopt the Mullin Rule" but  
rather is accepts MGL 39 Section 23D which effectively neutralizes  
Mullin.
An atty. who sits on Brookline's ZBA sent me the following comment re  
Mullin:
The Mullin rule arises from the Appeals Court decision of Mullin v.  
Planning
Board of Brewster, 17 Mass. App. 139 (1983) which held that a planning  
board
decision on a subdivision plan is an adjudicatory proceeding. The  
members of
the board who vote on the plan must have attended the hearings on the  
plans.
The Mullin case involved, at most, two hearings on a proposed  
subdivision plan.
At least two Massachusetts Trial Court judges have refused to apply  
the Mullin
rule in an overly stringent fashion when there are a series of public  
meetings.
These judges have ruled, in essence, that if a planning board member  
misses a
meeting when non-substantive issues were discussed, it makes little  
difference.
Furthermore, if a planning board member misses a meeting where there  
may have
been substantive discussion and presentation but that substantive  
material was
undoubtedly reiterated at a later meeting which the planning board  
member did
attend, the Mullin rule should not apply. See Truman v. Travers, 11  
LCR8 (Mass.
Land Court) (Jan. 8, 2003) (Kilburn, J.) and Xarras v. Snyder, 1998 WL  
1184169
(Mass. Superior Court) (June 17, 1998) (Fremont-Smith, J.).

  For whatever reason, thus far Brookline has not accepted MGL 39  
Section 23D.  (This is the first I was aware of it.)

Dennis De Witt


On Mar 14, 2009, at 10:09 PM, Gretchen Schuler wrote:

> Our town adopted the Mullin Rule for most boards three years ago for  
> ZBA, Health, ConComm and Planning Board.  The HDC was not included  
> at the time - town counsel attended an HDC meeting recently and  
> recommended that HDC be included in Mullin Rule so an article has  
> been presented for Town Meeting to extend Mullin Rule to HDC.  I
>
> Comments in warrant for "Accept Law Allowing Historic District  
> Commission Members to Miss One Session of Adjudicatory Hearings" are  
> as follows:
>
> This article allows the Historic District Commission members to miss  
> one session of adjudicatory hearings and still vote on the matter.   
> A similar article was approved by the November 2006 Special Town  
> Meeting to accept this law for the Board of Appeals, Board of  
> Health, Conservation Commission and Planning Board.  At that time  
> the Historic District Commission did not ask to be included in the  
> article.
>
> As background, adjudicatory hearings, held by local boards, are  
> those concerning land use questions, jobs, licenses and permits.  
> Citizens must have proper notice, have the right to be heard, to be  
> accompanied by an attorney, and the decisions of local boards can be  
> appealed to state agencies and / or to the courts.  In August 2006  
> the State modified Chapter 39 adding Section 23D stating that a  
> “member would not be disqualified from voting on a matter solely due  
> to that member’s absence from no more than a single session of the  
> hearing at which testimony or other evidence is received.  Before  
> such vote, the member shall certify in writing that he has examined  
> all evidence received at the missed session, which evidence shall  
> include an audio or video recording of the missed session or  
> transcript thereof.  The written certification shall be part of the  
> record of the hearing.  Nothing in this section shall change,  
> replace, negate or otherwise supersede the applicable quorum  
> requirements.”  Prior to that date, the rule was that a board member  
> cannot vote on a matter before the board if the member missed any  
> sessions of the hearing concerning the matter.
>
> Hope that is helpful.
>
> Gretchen Schuler
> Wayland HDC
> ----- Original Message -----
> From: Tucker, Jonathan
> To: masshistpres at cs.umb.edu
> Sent: Friday, March 13, 2009 4:32 PM
> Subject: [MassHistPres] Mullin Rule applicability
>
> For those among you who have adopted the  
> Mmasshistpres at cs.umb.eduullin Rule, who were the local “boards,  
> committees or commissions holding adjudicatory hearings” to which it  
> applied--i.e., what’s the range?  We’re contemplating this for our  
> spring Town Meeting, and are trying to get a handle on just who  
> among our many numerous boards/committees who hold public hearings  
> are actually holding adjudicatory hearings vs. other any other  
> kind.  We’re pretty sure about the core of zoning/subdivision/ 
> wetland bodies and about our Select Board, but would this apply to  
> school committees, personnel boards, boards of public works?  Where  
> will it all end?  [Must be Friday.]
>
> Jonathan Tucker
> Planning Director
> Town Hall, 4 Boltwood Ave.
> Amherst, MA  01002
> (413) 259-3040
> (413) 259-2410 [fax]
> tuckerj at amherstma.gov
>
>
>
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