The URL can be used to link to this page

Home My WebLink About2012 ATM AG BYLAW Approval MEMORANDUM TO: Deborah N. Mauger, Chairman - Board of Selectmen FROM: Donna M. Hooper, Town Clerk DATE: September 14, 2012 RE: March 2012 Annual Town Meeting Office of the Attorney General By-Law Approval This office has received notice from the Attorney General, dated September 11, 2012 and received September 13, 2012, of approval of the amendments to the General Bylaws and Zoning By-Law voted at the 2012 Annual Town Meeting General Bylaw: Article 32 -Amend General Bylaw—Dog License Late Fee Zoning By-law: Article 44—Amend Zoning By-Law—Dana Home Property Land Rezoning (owner article) Article 45—Amend Zoning By-Law— Residential Use in the CB Zone Article 46—Amend Zoning By-Law—Home Occupations in CB Zone In accordance with Chapter 40, Section 32 of the Massachusetts General Laws, copies of Attorney General approval of the By-Law articles so noted are being published in a Town Bulletin. Amendments to the General Bylaws take effect on the date of posting. Zoning By- Law amendments are deemed to have taken effect from the date voted by Town Meeting. cc: Town Manager Deputy Town Manager Assistant Town Manager for Finance Town Counsel Planning Board Appeals, Board of Building Commissioner Police—Animal Control Moderator u5 MOq 1775 c x o Town of Lexington Q z y s zw Town Clerk's Office APRILIr 1 FXI NO'YON Donna M. Hooper, Town Clerk Tel: (781) 862-0500 x270 Fax: (781) 861-2754 TOWN BULLETIN RE: Office of the Attorney General Approval of General Bylaw and Zoning By-Law Amendments DATE: September 14, 2012 Notification has been received from the Office of the Attorney General regarding action taken on the approval of amendments to the General Bylaws and Zoning By-Law as voted at the 2012 Annual Town Meeting. General Bylaw: Article 32—Amend General Bylaws — Dog License Late Fee Zoning By-Law: Article 34 —Amend Zoning By-Law— Dana Home Property Land Rezoning (Owner Article) Article 35 —Amend Zoning By-Law— Residential Use in the CB Zone Article 36 —Amend Zoning By-Law- Home Occupations in CB Zone In accordance with Ch. 40 §32 of the Massachusetts General Laws, these amendments are hereby posted in a public place in each precinct of the Town for public inspection. Maps and documents pertaining to Zoning Articles may be viewed at the Planning Office and Town Clerk's Office. Claims of invalidity by reason of any defect in the procedure of adoption or amendment of Zoning Bylaws may only be made within ninety days of this posting. Copies of the Zoning Bylaw and Map may be examined and obtained at the Planning Department Office in the Town Office Building, 1625 Massachusetts Avenue. Attest: Donna M. Hooper Town Clerk 1625 MASSACHUSETTS AVENUE•LEXINGTON,MASSACHUSETTS 02420 M W IN. THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL CENTRAL MASSACHUSETTS DIVISION A FK c, .mow 10 MECHANIC STREET, SUITE 301 WORCESTER, MA 01608 MARTHA C;ca. xz. v .ArTORNFY C_sENERAz (508)792-7600 (508)795-1991 fax www.mass.gov/a,go September 11, 2012 Donna M. Hooper, Town Clerk Town of Lexington 1625 Massachusetts Ave. Lexington, MA 02420 RE: Lexington Annual Town Meeting of March 26, 2012 — Case# 6420 Warrant Articles # 34, 35 and 36 (Zoning) Warrant Articles # 32 (General) Dear Ms. Hooper: Articles 32, 34, 35 and 36 — We approve the amendments to the Lexington by-laws adopted under these Articles, and the map related to Article 34, on the warrant for the Annual Town Meeting that first convened on March 26, 2012. We will return the approved map to you by regular mail. Our comments on Article 34 are detailed below. Article 34 — The amendments adopted under Article 34 amended the Town's Zoning By- Law and Zoning Map by changing the district designation of two parcels, 2027 and 2013 Massachusetts Avenue, from the current RS One Family Dwelling District to a CD Planned Commercial District, subject to the Preliminary Site Development and Use Plan dated April 20, 2012. L Attorney General's Standard of Review; Town's Zoning Authority; and the "Uniformity Principle". During our review of the amendments adopted under Article 34 we have received various communications urging our disapproval of the amendments. We appreciate this input, and these communications have aided our review. Pursuant to G.L. c. 40, § 32, the Attorney General has a limited power of disapproval with every "presumption made in favor of the validity of municipal by-laws." Amherst v. Attorney General, 398 Mass. 793, 796 (1986). In order to disapprove any portion of a proposed by-law, the Attorney General must cite an inconsistency between the by- law adopted by the Town and the Constitution or laws of the Commonwealth. Amherst, 398 Mass. at 796. The Attorney General's limited standard of review requires her to approve or disapprove by-laws based solely on their consistency with state and federal law, not on any policy views she may have on the subject matter or wisdom of the by-law. Amherst, 398 Mass. at 795-96, 798-99. When reviewing zoning by-laws for consistency with the Constitution or laws of the Commonwealth, the Attorney General's standard of review is equivalent to that of a court. "[T]he proper focus of review of a zoning enactment is whether it violates State law or constitutional provisions, is arbitrary or unreasonable, or is substantially unrelated to the public health, safety or general welfare." Durand v. IDC Bellingham, LLC, 440 Mass. 45, 57 (2003). Because the adoption of a zoning by-law by the voters at Town Meeting is both the exercise of the Town's police power and a legislative act, the vote carries a"strong presumption of validity." Id. at 51. "If the reasonableness of a zoning bylaw is even `fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained."' Id. at 51 (quoting Crall v. City of Leominster, 362 Mass. 95, 101 (1972)). A zoning by-law must be approved unless "the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare." Johnson v. Town of Edgartown, 425 Mass. 117, 121 (1997). We are aware of the concern expressed by the opponents that the amendments adopted under Article 34 violate the "uniformity principle" reflected in G.L. c. 40A, § 4, alleging that the amendments single out two parcels for different treatment and fail to treat like properties in a uniform manner. General Laws Chapter 40A, Section 4, requires, "Any zoning ordinance or by- law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted." "The uniformity requirement is based upon principles of equal treatment. . . ." SLIT, Inc v. Planning Board of Braintree, 19 Mass. App. Ct. 101, 107 (1984). In evaluating whether different treatment violates the uniformity principle, "[p]rimary attention is . . . focused on the reasonableness of such classification." Williams, American Land Planning Law 32:1 (Rev. ed. 2003). "[A] classification as the means for attaining a permissible end is not to be declared invalid `if any state of facts reasonably can be conceived that would sustain it."' Caires v. Building Comm'r of Hingham, 323 Mass. 589, 596-97 (1949) (quoting Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357 (1916)). The Town can vote to treat certain parcels within the Town differently from other parcels so long as the Town does so for a legitimate zoning purpose. Spot zoning only exists when there is a "singling out of a particular parcel for different treatment from that of the surrounding area, producing, without rational planning objectives, zoning classifications that fail to treat like properties in a uniform manner." National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305, 312 (1990), citing Shapiro v. Cambridge, 340 Mass. 652, 659 (1960). Based upon the documents submitted to us by the Town Clerk pursuant to G.L. c. 40, § 32, we cannot conclude that the Town's vote lacks a legitimate planning purpose, or is "arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare." Johnson v. Town of Edgartown, 425 Mass. 117, 121 (1997). On the contrary, the documents submitted by the Town Clerk reflect that the Planning Board held several continued hearings over several evenings regarding the proposed amendments, and ultimately recommended approval of the rezoning with the following statements regarding a legitimate planning purpose: After careful review of the impacts expected from the project, the Board believes the benefits to the Town will substantially outweigh any negatives, particularly in light of incorporated mitigations... 2 The proposed project is an appropriate use of the site and should be a considerable asset to the community and its cultural and economic development. The proposal provides for the preservation and adaptive reuse of historical structures, one of the goals of the Town's Comprehensive plan. Because the reasonableness of the Town's vote is `fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained."' Durand v. IDC Bellingham, LLC, 440 Mass. 45, 51 (2003) (quoting Crall v. City of Leominster, 362 Mass. 95, 101 (1972)). Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the town has first satisfied the posting/publishing requirements of that statute. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date that these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were voted by Town Meeting, unless a later effective date is prescribed in the by-law. Very truly yours, MARTHA COAKLEY ATTORNEY GENERAL Margaret J. Hurley, Assistant Attorney General Chief, Central Massachusetts Division Director, Municipal Law Unit Ten Mechanic Street, Suite 301 Worcester, MA 01608 (508)792-7600, x 4402 cc: Town Counsel William L. Lahey and Kevin D. Batt(via electronic mail) 3 Very truly yours, MARTHA COAKLEY ATTORNEY GENERAL by: Margaret J. Hurley, Assistant Attorney General Chief, Central Massachusetts Division Director, Municipal Law Unit Ten Mechanic Street, Suite 301 Worcester, MA 01608 (508)792-7600 x 4402 4