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Home My WebLink About2004 ATM AG BYLAW Approval -= _- OFFICE OF 1350 N4AIN S'rR1:,I r 11PRcNw::n,-0It:LD,MASSAC,,U SE"'TTS 01103-1629 "°HON[As F }IDeat.. Y (4t3)+"3`t-124O °a avaa a� a a.ame a. www"a o.seale,mat.LIS September 7, 2004 Donna M. Hooper, Town Clerk 1625 Massachusetts Avenue ' Lexington, MA 02420 ICE, Lexington Annual Town Meeting of Marelt 29, 2004— Case## 3042 Warrant Articles #34 and 39 (General) m° t Warrant Articles #4, 5, 8, 9, 110, 12, and 13 (Zoning) Dear Ms. Hooper:. Articles 4, 5, 8, 10, 12, 13,34, and 39 - I return with the approval of this Office the amendments to the town by-laws adopted under these Articles on the warrant for the Lexington annual town meeting that convened on March 29, 2004, and the maps pertaining to Articles 4, 5, 10, and 13, Article 9 - I return with no action by this Office the amendments adopted under this Article and the neap pertaining to it. The vote under Article 9 pertains to a Preliminary Site Development and Use flan approved by town meeting at the 1986 Annual Town Meeting. The vote under Article 9 provides as follows: That the existing Prelitnittary Site Developnretit and Use Plan approved at the 1986 Aninial.Torun Meeting, Article 47, a copy of which is oil file with the Town Clerk and the Planning Board, be aineiided to permit expansion of the existing facilities at Brookhaven, located at 1010-1012 Walthain Street,to allow for additiotr living units, health care facilities and srtpport service space, as showtr oir the Preliminary Site Developinetit and Use flan dated December 30,2003 oo file with the Planning Board, pursuant to Article V111, Section 135-42D(3)and other applicable provisions of the Code of the Towvir of Lexingtoir, Zoning By-law, The vote under article 9 was a vote to amend an existing Preliminary Site Development. and Use Plan that was previously approved by a vote of town meeting. Nowhere in the vote does it say that the town's zoning lay-laws are being amended. We conclude that the vote to approve the Preliminary Site Development and Use Plan was not a vote by town meeting to amend its E':11dSFRS"wiiITCHIFiMP6IWOCS1TOWNSU EXINGTN 93042A.APP,%>ppd zoning by-laws, but was rather a non-legislative vote of town meeting to approve a land use plan. Thus, the vote under Article 9 is not subject to review and approval by the Attorney General. Article 34 - The amendments adopted under Article 12 make a number of changes to Chapter 120 of the town's general by-laws, "Trees." One such change deletes Subsection(C) (2), of Section 120-8, "Protected Trees," and replaces it with new text. As amended, Subsection (C)provides as follows (new text in bold): C. Mitigation. A protected tree shall not be removed unless at least one of the following provisions is satisfied: (1)Replanting of trees: such replanting shall be on the basis of 1/2 inch of caliper of new trees(s) for each inch of DBH of tree(s)removed, and each replanted tree must have a rninimuin caliper of three inches. The replanting shall occur not later than 12 nnonths after connpletiotn of the constructioin work, either on applicant's land or on land abutting applicant's land with express approval of the owner of such abutting land; (2) Contribution into the Selectmen's Tree Gift Account: such contribution shall be $50 per DBH inch Protected Tree or Toner►Tree removed not already mitigated p`" as per Subsection rC(1), or gym. (Emphasis added.) ` o Another change adds a new Section 120-14, "F"unds"to Chapter 120. The ncw'Sectiow- 1.20-14 provides as follows: Collection of voluntary contributions under this by-law shall be deposited into the Sclectmen's Tree Gift Account. The Tree Warden with input fronn the Tree Cotnrnittec will request use of these funds for tree planting,transplanting, and other tree related needs. The request to expend these funds will be approved by the Board of Selectnnen. In approving the text of Section 120-8 (C) (2) and 120-14, we call the town's attention to G,L, c. 44, § 53, and 53A. Section 53 provides that"[a]ll moneys received by a city, town or district officer or department, except as otherwise provided by special acts and except fees provided for by statute, shall be paid by such officers or department upon their receipt into the city, town or district treasury," While we find no facial inconsistency between state laws and the mere imposition and collection of the fee prescribed in the proposed by-law,it is our opinion that the funds collected become part of the town's general fiend unless placed in a Rind established by the Legislature by general law o•special act. In the absence of any general or special law to the contrary, fees of the sort contemplated here would,pursuant to G.L. c. 44, § 53, must be deposited with the Town Treasurer and made part of the town's general fund, thus are not available to the Town for the purpose for which they F:I USERS1RITCHIE\W P61\DO CS\TO`avNS 11.GXING'I'N1#3042A.APP.Nvpd 2 were assessed unless in accordance with an appropriation made by Town Meeting. Illustrative of such legislative authority is G.L, e. 44, § 53A. Section 53A pertains to the acceptance and expenditure of gifts and grants. Funds received by the town as true gift s of gants would qualify for treatment under G.L. c, 44, § 53A,tinder which fiends given as a gift to a town department for a particular purpose may be segregated into a separate fund and may thereafter be spent without appropriation for the purpose of the gift. Interest would remain with the fund if the donor so provides. However, it strains credulity to construe the mitigation payments made tinder Section 120-8 (C) as "gifts" or"grants" in the sense intended by Section 53A. Perhaps a liberal reading of Section 120-8 (C) (2) would be that the replanting is mandatory, but may be waived if a "gift" is made to the board of selectmen under Section 53A, then the expenditure would be governed by the terms of the gift. We suggest that the town discuss this issue in more detail with town counsel, Note: Under G.L.c. 40, § 32, neither general nor zoning by-laws take effect until the town leas first satisfied tile posting/publishing requirements of this section. Once this statutory daty is fulfilled,(1) general by-laws and anicitdinents take effect on the date that these posting and publishing requirements are satisfied unless a later effective (late is prescribed in the by-law, and (2) KgRing by-laws and anieudinents are deemed to have taken effect from the (late they were voted by Town Meeting, unless a later effective (late is prescribed in the by-law. If tile Attorney General leas disapproved and deleted one or more portions of any by-law or by-law amendment submittal for approval,only those RgiAtions approved are to be posted and published pursuant to G.L. c. 40, §32. We ask that you forward to us a copy of the final text of the by-law or by-law aniendinents reflecting ally such deletion. It will be sufficient to send us a copy ()f the text posted and published by the Town Clerk pursuant to this statute. Very truly yours, THOMAS F. REILLY ATTORNEY GENERAL I,"A k, by: Kelli E. Guna gan, Assistant'iAttorney General By-law Coordinator, Municipal Law Unit 1350 Main Street, 4" Floor Springfield, MA 011034629 (413) 784-1240, x 117 enc. """ PC: C Town Counsel 0 FAUSEMRI SCE IEMP6 I WOCS\TOWNS\LEX 1NGTM#3042A,APP.wpd 3 J",