Q: When town meeting "accepts" the provisions of a "local option" statute, must that town meeting's vote to accept the statute be submitted to the Attorney General for approval?
A: No. Approval of the Attorney General is required only when town by-laws are adopted or amended. Votes to accept local option statutes are not by-law amendments. Thus, votes taken by town meeting to accept statutes do not require the approval of the Attorney General.
Q: When is it necessary to submit a zoning map to the Attorney General's Office for approval?
A: The zoning map, or relevant portion thereof, must be submitted to our Office for review and approval whenever there are changes to district boundaries, either through the creation of a new district, including an overlay district, or changes to the boundaries of an existing district. M.G.L. c. 40A, § 4, requires that all district boundaries must be shown on a zoning map. Section 4 also provides that the zoning map is part of the town's zoning by-laws. Since a zoning map showing district boundary lines is a part of the zoning by-laws of the town, any change in the map must be accomplished by town meeting via a zoning by-law amendment. M.G.L. c. 40A, §§ 4 and 5. This means that amendments to the zoning map of the town showing district boundary changes must be submitted to our Office for review and approval.
Q: How can I obtain a copy of previous approvals by the Attorney General?
A: You can obtain copies of our approval letters from the town clerk's office. You can also access copies of many of our letters from . You may contact the Municipal Law Unit directly at (508) 792-7600.
Planning Board Hearing Questions
Q: Is the 14-day notice requirement for the planning board hearing on a proposed zoning amendment satisfied where the first notice was posted and published on the 14th day prior to the date of the hearing?
A: Yes. M.G.L. c. 40A, Section 5, requires that the first of the two notices required for the hearing be "not less than 14 days" before the date of the hearing. Planning Boards get in trouble when they attempt to count the date on which the first notice was posted and published, and the date of the hearing. Thus, a first notice on Wednesday, May 1 is OK for a hearing on Wednesday, the 15th, but not for a hearing on Tuesday, the 14th.
Q: Can the planning board hearing relative to a proposed zoning by-law amendment be held the same night as town meeting?
A: Yes, provided the notice requirements for the hearing prescribed by M.G.L. c. 40A, § 5, have been satisfied. Before town meeting may vote to amend the zoning by-laws, the planning board must hold a hearing on the proposed amendment and issue its report with recommendations to town meeting. If the planning board fails to issue its report with recommendations to town meeting, town meeting may not act on a warrant article proposing an amendment unless at least 21 days have passed from the date of the planning board's hearing.
Q: Will zoning by-laws be disapproved for failure to comply with M.G.L. c. 40A, § 5, if the notice of the planning board hearing was not mailed to the Department of Housing and Community Development, the Regional Planning Agency, the planning boards of abutting towns, or nonresident property owners who have filed requests for such noitces with the town clerks?
A: Not necessarily. The town is allowed to submit waivers obtained from a party that was not notified of the hearing as required by M.G.L. c. 40A, § 5. If the town has failed to mail a copy of the notices to the parties listed in M.G.L. c. 40A, § 5, the town may request waivers signed by such parties. Copies of the waivers should be mailed to our Office as soon as they are received. The Attorney General has the option of placing the packet on "Hold" until such waivers are received or of disapproving the packet.
Questions from Town Clerks
Q: Must personnel by-laws and amendments thereto be submitted to the Attorney General for review pursuant to M.G.L. c. 40, § 32?
A: Generally not. Personnel by-laws adopted pursuant to M.G.L. c. 41, §§ 108A and 108C, are not subject to review by the Attorney General. M.G.L. c. 41, § 108A pertains to plans classifying positions, plans establishing minimum and maximum salaries to be paid to employees, and plans establishing step-rate increases based on length of service. M.G.L. c. 41, § 108C, pertains to the consolidation of all of a town's by-laws pertaining to the administration of its personnel. If a by-law falls within one of the categories listed in these sections, it does not need to be submitted to our office; however, if a by-law does not fall within these sections it must be submitted to our Office for review. For example, a by-law creating a personnel board would not fall within either of these two provisions, and must be submitted to the Attorney General for review.
Q: Is there a time limit in which the town clerk must post or publish by-law amendments after they have been approved and returned by the Attorney General's Office?
A: No. The effective date of by-laws is governed by M.G.L. c. 40, § 32 (additionally M.G.L. c. 40A, § 5, for zoning by-law amendments). Once a by-law is approved by our Office, the by-law does not take effect until it has been posted and published in accordance with Section 32. Although state law does not expressly limit the time in which the town clerk must satisfy these requirements, postponing the posting or publishing of the by-law will affect the date on which the by-law may be implemented. Moreover, confusion can result if the posting and publishing is not accomplished prior to further amendment of the by-laws at the next town meeting. Every effort should be made to fulfill the posting and publishing requirements as soon as possible after approval by this Office.
Q: In By-Law Submittal Form 7, Item 1 asks for "the date on which the proposed zoning by-law amendments were submitted to the Board of Selectmen." Item 2 asks for "the date on which the Board of Selectmen submitted the proposed zoning by-law amendments to the Planning Board" to hold a public hearing on the proposed amendments. What must the clerk enter on these items if these two events did not occur?
A: Write "not submitted" for Items 1 and 2. M.G.L. c. 40A, s. 5, provides that a zoning by-laws amendment may be initiated by submitting the proposed amendment to the board of selectmen. Section 5 also provides that the board of selectmen shall, within 14 days of receipt of the proposed amendment, submit it to the planning board for discussion at a public hearing. Although M.G.L. c. 40A, s. 5 , provides this mechanism, the Attorney General's Office recognizes that many zoning by-law changes are initiated directly by the planning board or are given directly to the planning board by the proponent of the change. In many towns the town meeting warrant is not signed by the board of selectmen until after the planning board holds it hearing, and in some cases the warrant article itself reflects revisions to the original proposal resulting from that hearing. We deem this portion of M.G.L. c. 40A, s. 5 , to be directory only and not jurisdictional, and absence of this information in Items 1 and 2 is not necessarily fatal.
Q: What must the clerk post and publish when the Attorney General has elected to proceed under Chapter 299 of the Acts of 2000 to waive minor defects in the notice of the planning board hearing?
A: The town clerk must post the entire Form 299A (this form is three pages in length). Chapter 299 of the Acts of 2000amends M.G.L. c. 40, § 32, and allows the Attorney General to waive defects in the form and content of the planning board hearing notice. When the Attorney General elects to proceed under this Chapter, the Attorney General will send to the town two signed copies of Form 299A -- one copy is to be kept by the town clerk, and one copy is to be returned to the Attorney General's Office. After complying with the terms of the notice, the town clerk must return one completed Form 299A on which the Town Clerk's Certification has been completed and signed.