10/04/2005 WATERWAYS COMMISSION Minutes

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r� y AG ci"tes reasons for bylaw d'isapprova Robert Ritchie adopted by a town meet- Receipts would be used t "Tree Preservation Zone,, I.ng was disapproved be- plant trees throughout the within which certain tree he vat majority of cause the published no- town at locations deter- Preservation requirements general and zoning tiee description ("to coir- mined by the planning apply. bylaws submitted to the sider introducing new board. This bylaw was found to Municipal Law [knit of the zoning di tr'ict l fell short The fee was found to be establish a "floating zone!* attorney general's office of the statutory standard. inconsistent with state which is impossible to de- for review reflect great In another instance, a law because the Fees were pict on the town's zoning care and attention to the bylaw was disapproved set without any considera- map as required by state well-being of citizens of because a planning tion to the actual harm lav ( . `ar.L. Ch. 40A, Sec. the town and are p- board's first notice was being mitigated in any ). The bylaw was also proved. A number of bar- found to be 13 days prior given instance, and with- found to be in violation of laves, however, are disal - to the date of the hearing; out linking the plantingChapter-40A, Section , proved or warrant cau- the board made the rnis- with the location of the which forbids setting tionary comment by the take of counting the date wireless facility. apart a zontng district attorney general. of the hearing as one of In the 1984 case m r- that may be changed From time to time, The the 14 days required by son College v. City of other than by adoption of Beacon will publish sum- statute. Boston, the court stab- a formal zoning amend- maries of local legislative In a related matter, n- lished standards for deter- ment pursuant to Chapter efforts that faded, merely other town's bylaw was ruining whether a munfci- 40A. as a way to illustrate disapproved because its pal assessment is a le iti- Adult entertainment; some of the common published notice occurred mate regulatory or user In prescribing zones f problem areas, This effort in weeks that were not fee, which towns may within which adult enter- reflects the commitment of "successive," as required charge an individual p- tainment businesses may the attorney general's of- by state lave. plic nt, or a tax, which a be located, one town was i fic to collaborate with Dog fund: One town town may not charge found to have acted in- Waal government in f sh- that was authorized o without general or special consistently with state law ening goad local laver.• adopt regulations relating lcgislation so authorizing. when it established mini- The following are several to dogs after accepting the A "fee," said the court, mum buffer distances be- recent rulings; provisions of Chapter 140, is paid in exchange for a tween the proposed adult Non-crindual disposi- Section 147A, cstablfsh d particularized benefit by business and "recreational tion: A proposed bylaw by bylaw a! "dog fund" for the fee-payer; i "volun- use in other areas in was found to be inconsis- departmental receipts. The t r " in the sense that it which large numbers of teat with state law because bylaw was not disap- can be avoided by forgo- minors regularly t.ravcl or it contained a provision for proved, but the town was ing the service; and does congregate." Apart from non-crtnWzd disposition of warned that all receipts not produce revenue sig- the imponderable migra- violations, but provided for deposited in the dog fund niflcantly and consistently tory habits of the young, fines of"up to $x" for each would be deemed part of in excess of the cost of this language was consid- violattion. State law( i. .L, the town's general fund the service. ered to be so Prague and Ch. 40, sec. 21D) permit (M. .L. Ch. 44, See. By purporting to autho- Imprecise that it would be non-cftmh l disposition which may thereafter be rite dt burscrnent from impossible to tell at any only with fines that are of disbursed only if appropria. the fund directly, the given time when it did or "s ecifte amounts" and ated by town meeting or if bylaw was held to violate did not apply or where floes not pent a range of town meeting establishes state law ( i. .L. Ch. 44, the buffer boundary is at fines. the fund annually as a Sac. ), which requires any given time. The Notice of bylaw revolving fund pursuant that receipts become part boundaries of the zone amendment or hearing; to Chapter 44, Section -___..-._.. of the general fund and would thus be alteredFor zoning bylaw amend- 53E-1 . can be di burr cd only if other than in accordance ments, state law (M. .L. Mitigation foes: As part and as appropriated by with the exclusive zoning Ch. 40A, Sec. ) requires of a► general telecommuni- town meeting. bylaw amendment process that the planning board cations bylaw, a town es- Floating zones: One set forth in state law publish in two successive t blished a "mitigation town amended its zoning (M. r.L. Ch. 40A, Sec. . weeks a notice that in- fee" to offset "the adverse bylaws to provide that Robert Ritchie is director ludes "the subject matter impacts ... upon the nat- durtng development of a of the Muni �pW Law Unit sufficient for id nt.ifica- ural, scenic and ae thctic parcel of-land the parcel q .f the tto prat' tion." One recent bylaw environment of the town." shall become part of a office. TheDeaon May 1998 Page