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Home My WebLink About2016 ATM AG BYLAW Approval Town of Lexington Town Clerk's Office Nathalie L. Rice, Town Clerk Tel: (781) 698-4558 Fax: (781) 861-2754 TOWN BULLETIN RE: Office of the Attorney General Approval of General and Zoning Bylaw Amendments of the 2016 Annual Town Meeting, of March 21, 2016 In accordance with Ch. 40 §32 of the Massachusetts General Laws, the amendments for the Annual Town Meeting of March 21, 2016 were posted in a public place in each precinct of the Town for public inspection. The Attorney General decision itself was posted in each Precinct location within the Town and at the Cary Memorial Library. Maps and documents pertaining to Zoning Articles were available to 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 By- law and Map were available at the Planning Department Office in the Town Office Building, 1625 Massachusetts Avenue. Nathalie L. Rice Town Clerk 1625 MASSACHUSETTS AVENUE•LEXINGTON,MASSACHUSETTS 02420 (t\ THE COMMONWEALTH OF MASSACHUSETTS ii'° ' OFFICE OF THE ATTORNEY GENERAL � • /f j,•7 f _ ; i;, CENTRAL MASSACHUSETTS DIVISION 1- V- 10 MECHANIC STREET, SUITE 301 MAURAEAI,EY WORCESTER, MA 01608 -7600 ATTORNEY GENERAL (SOS}792991f (548}795-199 t fax www.mass.gov/ago September 8, 2016 Nathalie L. Rice, Town Clerk Town of Lexington . . 1625 Massachusetts Avenue Lexington, MA 02420 • Re: Lexington Annual Town Meeting of March 21,2016 -- Case#8047 Warrant Articles#36,37,38,39,40,41,43, and 44 (Zoning) Warrant Articles#29,30, and 31 (General) Dear Ms. Rice: Articles 30, 31, 36, 37, 38, 39, 40141, 43, and 44 - We approve Articles 30, 31, 36, 37, 38, 39, 40, 41, 43, and 44, and the map pertaining to Article 38, adopted at the Lexington March 21, 2016, Annual. We will return the approved map to you by regular mail. Our comments on Article 41 are provided below. Article 29 - We approve Article 29, except as provided below. Article 29 adds to the Town's general by-laws a new Chapter 78, "Neighborhood Conservation District." The new Chapter 78 allows for the creation of Neighborhood Conservation Districts ("NCD") in the Town. If an area in Town is designated as an NCD then construction, demolition, and alterations to structures in the NCD is prohibited unless the NCD Commission issues a certificate of compatibility, a certificate of non-applicability, or a certificate of hardship. Chapter 78, Section 9 pertains to enforcement of the by-law and provides in pertinent part as follows: (b) Anyone found in violation may be fined not more than $500 for each day such violation continues, each day constituting a separate offense. We disapprove and delete the above quoted text in Chapter 78, Section 9, as indicated in italics and underline above because it is inconsistent with G.L. c. 40, § 21, which limits the maximum penalty for by-law violations to $300. [Disapproval # 1 of 1] General Laws Chapter 40, Section 21, provides in pertinent part: Towns may, for the purposes hereinafter named, make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits. They may, except as herein provided, affix penalties for breaches thereof not exceeding three' hundred; dollars for each offense,which shall enure to the town or to such uses as it may direct. (Emphasis added.) ;. General Laws Chapter 40, Section 21, recognizes the power of towns to impose penalties for violations of by-laws. However, the maximum penalty allowed under Section 21 is$300 and any penalty imposed greater than $300 would be inconsistent with Section 21. Therefore, we disapprove and delete the above-quoted text in Chapter 78, Section 9 that would allow a fine of $500. The Town may wish to amend its by-laws at a future town meeting to provide for a fine that is consistent with G.L. c. 4Q, § 21. Article 41 - Article 41 adds a new Subsection 4.4, "Residential Gross Floor Area," to Section 4.0 of the Town's zoning by-laws. Subsection 4.4 provides the maximum allowable residential gross floor area for "all buildings on a lot containing a one-family or two-family dwelling." In addition, Subsection 4.4 authorizes the Town's Special Permit Granting Authority to grant a special permit allowing a building to exceed the maximum gross floor area. During our review of Article 41 we received a letter urging our disapproval of the Article on the basis that: (1) the public meetings notices did not adequately inform people of the proposed by-law amendments; (2) no informational materials were provided to residents on the proposed amendments; (3) inaccurate information was given at Town Meeting; (4) the proposed amendments increase the value of certain properties and decrease the value of other properties; and (5) the proposed amendments unfairly impact the elderly population in the Town. As provided in more detail below, we have determined that the asserted deficiencies cited in the opposition letter do not provide grounds for us to disapprove Article 41. Pursuant to G.L. c. 40, § 32, the Attorney General has a "limited power of disapproval," and "[i]t is fundamental that every presumption is to be made in favor of the validity of municipal by-laws." Amherst v. Attorney General, 398 Mass. 793, 795-96 (1986). The Attorney General does not review the policy arguments for or against the enactment. Id. at 798- 99 ("Neither we nor the Attorney General may comment on the wisdom of the town's by- law.") Rather, in order to disapprove a by-law, the Attorney General must cite an inconsistency between the by-law and the state Constitution or laws (emphasis added). Id. at 796. "As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid." Bloom v. Worcester, 363 Mass 136, 154 (1973) (emphasis added). "The legislative intent to preclude local action must be clear." Id. at 155. Massachusetts has the "strongest type of home rule and municipal action is presumed to be valid." Connors v. City of Boston, 430 Mass. 31, 35 (1999) (internal quotations and citations omitted). The Attorney General also does not review by-laws for consistency with local law. See G.L. c. 40, § 32. 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 2 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). In determining whether a by-law is inconsistent with the Constitution and laws of the Commonwealth, the Attorney General has available to her the materials which the Town Clerk is required to submit pursuant to G.L. c. 40, § 32: . . a certified copy of such by-law with a request for its approval, a statement clearly explaining the proposed by-law, including maps and plans if necessary, and adequate proof that all of the procedural requirements for the adoption of such by-law have been complied with. General Laws Chapter 40, Section 32, contains no provision for the Attorney General to review the minutes from the Town Meeting, or an audio or video recording of the Town Meeting, or any motions which were not voted upon at Town Meeting. The Attorney General's review under G.L. c. 40, § 32, is limited to the text "of the proposed by-law . . . and adequate proof that all of the procedural requirements for the adoption of such by-law have been complied with," We generally interpret the phrase "procedural requirements" in G.L. c. 40, § 32, to refer primarily if not exclusively to those established by statute as basic conditions essential to the validity of Town Meeting action, rather than all possible procedural requirements (such as rules of order) that might govern the conduct of Town Meeting itself. General Laws Chapter 40, Section 32, does not confer upon the Attorney General the plenary power to determine all issues relevant to whether the legislative process by which the Amendment was adopted violated the laws and Constitution of the Commonwealth. In order to determine whether the Town Meeting was conducted in a way which violates the laws and Constitution of the Commonwealth, it would be necessary to review materials and decide potentially disputed issues of fact in a manner that goes beyond the limited review process of the Attorney General envisioned by G.L. c. 40, § 32. For the reasons cited above, we cannot conclude that Article 41 is inconsistent with state law. Therefore, we approve it. 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 bey-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they iyere voted by Town Meeting, unless a later effective date is prescribed • in the by-law. • 3 Very truly yours, MAURA HEALEY ATTORNEY GENERAL fah; ce, cdiccr�rc�r, by: Kelli E. Gunagan, Assistant Attorney General Municipal Law Unit Office of the Attorney General Ten Mechanic Street, Suite 301 Worcester, MA 01608 508-792-7600 cc: Town Counsel William L. Lahey 4