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<br /> Explaining zoning res. general bylaws
<br /> By Robert Ritchie and towns to protect the police powers of the tricts, but requiring that
<br /> health, safety and general town? such use be "in accordance
<br /> over can I tell if a pro- welfare of their present and 5. Would adoption of the with.the provisions of" the
<br /> posed bylaw mend- future inhabitants." article as a general general bylaw amendment
<br /> ment is, or must be Not even ordinance or bylaw circumvent the - just voted by town meeting
<br /> adopted as, an amendment bylaw that purports to pro- sorted protections con- regulating"selecting bar-
<br /> to the towns "zoning" b - tect health, safety and gen- tained in Chapter 40Ps. vesting" and "clear cutting.
<br /> laws rather than to the eral welfare but that also thereby defeating the Ironically, (A) was flaw-
<br /> "general" bylaw's? affects, in some way, the purpose of Chapter 0A? lessly adopted as a zoning
<br /> Town planning boards use of land, buildings and The fact that the word bylaw amendment, and the
<br /> and town meeting mem- structures, will be deemed "zoning" contains the word existing zoning bylaw relat-
<br /> hers must face this ques- Kzoning."The Supreme du- "zone" is a clue. Zoning has ing to forest harvesting was
<br /> tion every time proposed died Court has ruled, for traditionally operated by successfully deleted. nfor-
<br /> local laws affect the use of example, that a bylaw reg- ming the tovm up into tunately, (B) was disap-
<br /> land.nd. The application of elating the alteration of distrtets, or"zones," and by proved by the attorney gen-
<br /> the so-called "duck test" in wetlands may be enacted allowing or prohibiting vari- eral's office because of the
<br /> the zoning context forces as a general bylaw (Loveq- ou.s uses within each. By vague and ambiguous
<br /> the underlying question: uist v. Conservation Corn- di triet, thea, the zoning manner in which it was ex-
<br /> "W hat is `zoning?,w if the mission of Dennis, 379 bylaw would address such pressed. The disapproval
<br /> proposal is zoning" in na- Mass. 7 (19791). issues as congestion, corn- letter noted that "reciprocal
<br /> ture, then the more st�rin- The General Laws some- munity services, and corn- reference in these two
<br /> gent procedures required tines relieve cities and patibility of uses. amendments and their in-
<br /> for valid adoption sct forth towns from having to follow But if a►bylaw narrowly terdependence for mcaning
<br /> In the state's Zoning Act Chapter oA'procedures in targets a more particular and application are our
<br /> (M.G.L. Ch. 40A) will gov- matters that would other- local problem without re- first indications that the
<br /> ern the process. wise clearly be zoning in Bard to districts, thea even bylaw amendments are bi-
<br /> Zoning bylaws, unlike nature. For example, Chap- if the bylaw indirectly of furcated parts of what
<br /> general bylaws, require a ter 40, Section 21(17). au- fects the use of land it may should have beery collet-
<br /> public hearing of-the plan- thorizes towns to enact yet be found to be an a ver- #rely amendments-to the
<br /> ning board on the pro- earth remote bylaws ci a of the town's general town's zoning bylaws;"
<br /> posed zoning change, strict under their general powers. legislative Bowers.
<br /> Moreover, the repeal of
<br /> compliance with the notice Decisions must be made Recently the attorney zoning bylaw and the
<br /> requirements for that hear- on a case-by-case basis. general's office disapproved adoption of a general bylaw
<br /> ing, and a two-thirds mai The courts have provided an amendment to a town's purporting to regulate the
<br /> jority vote of town meeting. more guidance than the general bylaws that pur- same subject offers the an-
<br /> More important, if a bylaw Legislature by suggesting ported to restrict the use of_ surer to Question 3 above.
<br /> adapted by town meeting is that these decisions tarn land for "selective harvest- The disapproval of the
<br /> zoning in nature but was on the answers to the fol- ing of forest products on bylaw amendment also
<br /> adopted under the more le- lowing basic questions: more than four acres of noted that, even if the
<br /> nient provisions governing 1. Do existing general laws land in any 12-month e- amendment had been
<br /> the adoption of general by- (other than zoning) ex- riod," and "for clear cutting properly adopted as a zon-
<br /> laws, thea the amendment pre sly allow the town to on more than two acnes of tng bylaw amendment, it
<br /> Is fatally flawed for not regulate in the subject land." At the sante town would have to be dis p-
<br /> having complied with o - area? meeting, in two other spa- proved because Section
<br /> ing Act procedures, and 2. Have similar bylaws rate articles, meeting mem- of the Zoning Act strictly
<br /> will face disapproval by the been adopted in the past brs ( amended the exfst- limits the Ment to'which
<br /> attorney general's Mee. b municipalities a zon- Ing zoning bylaw by delet- local_zoo g.laves can rc-
<br /> Section 1 of the Zoning Ing bylaws? tng provisions governing strict agricultural rises.
<br /> Act provides limited uid- 3. Inas the town previously "harvesting or logging of The attorney general wrote:
<br /> ance by defining"zoning"' adopted a bylaw on a four or more acres in any "We feel that for the fore-
<br /> s: "ordinances and by- similar, or related, topic 12-month period" without a going reasons the amend-
<br /> laws, adopted by cities and as a zoning or general permit from the board of ments are to be deemed
<br /> towns to regulate the use bylaw? selectmen, and (B) at- zoning in character- and in
<br /> f of land, buildings and 4. is the nature and effect tempted to amend its zon- direct coact with the limi-
<br /> structures to the full extent of the bylaw an exercise ing bylaws by adding"for- Cations imposed by G.L.
<br /> of the independent con ti- of the zoning power est harvestinjr as a use ,,
<br /> we of cities rather than the general permitted in all zoning dis- BYLAWS, aonffn +d on 1
<br /> tutional powers
<br /> Page 12 TheBeacon February 1999
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