[MassHistPres] Mullin Rule applicability

Mon Mar 16 11:54:40 EDT 2009

The term, "Mullin Rule", is now widely used and understood to refer to
MGL 39, Sec. 23D, which was adopted to allow communities to respond to
the limitations created by the decision under Mullin v. Planning Board
of Brewster.  So, "adopting the Mullin Rule" may, in the absence of
other information, constitute an incomplete review of the history of
this legislation, but it is accurate.   Lawyers are permitted to shake
their heads, but the rest of us know what we're talking about.  Mostly.

Jonathan Tucker

Planning Director

Town Hall, 4 Boltwood Ave.

Amherst, MA  01002

(413) 259-3040

(413) 259-2410 [fax]

tuckerj at amherstma.gov   

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dennis De Witt
Sent: Sunday, March 15, 2009 5:01 PM
To: MHC MHC listserve
Subject: Re: [MassHistPres] Mullin Rule applicability

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 <mailto:TuckerJ at amherstma.gov> 

	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.edu <mailto:masshistpres at cs.umb.edu> ullin 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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