2002-TOWN MEETING RECORDS - Laserfiche WebLink

Home Browse Search

Kelli-Lawrence, Esquire October 29, 2002 DA vis MA Lm cy Page 5 DAGOSTIN E PC. ,a torpedo a specific development'). Because the town failed to provide any planning or even a minimal justification for the Amendment, it should not be approved. Section 174-25.1(3) of the Amendment Is Void for Vagueness Section 174-25.1(3) states, "Unless prohibited by topographic, wetland or traffic safety conditions which, in the opinion of the Planning Board, it is not feasible to overcome any driveway access to the site shall be located where the side line of the property intersects such roadway in order to facilitate shared driveway access with existing or future development on the adjacent property". This important language, which provides the only directive on how access is to be provided to properties in C-3 Districts, is completely unclear and without guidance. See Commonwealth v. Jaffe, 398 Mass. 50, 54 (1986) (regulation is invalid where it is so vague that "persons of common intelligence must necessarily guess at its meaning and differ as to its application"); Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 356, 363-64 (1973) (vagueness permits untrammeled discretion and arbitrary and capricious decisions, and any doubt in interpretation must be resolved against the municipality). Because the vagueness of this Section permits several different interpretations, making it impossible to discern how it affects property interests of landowners in C-3 Districts, it should be disapproved as facially invalid. Also, this provision for shared access seems to contemplate uncompensated access easements. This provision contemplates one access point serving multiple lots. Such an arrangement would often require an easement for the benefit of a lot owner using an access point not located on land owned by that entity. The proposed by-laws do not and cannot provide the Town with the power to compel the grant of such easements. As such, this provision is facially invalid. The Procedures Used to Adopt the Amendment Ignored Requirements of the Zoning Act Section 5 of the Zoning Act requires that the Planning Board provide a report with its recommendations to the Town Meeting prior to its vote on an amendment to a bylaw. See G.L. c.40A, § 5. Here, the Planning Board provided no reasons why the Town Meeting should vote in favor of the Amendment. It simply voted unanimously in favor of the adoption of the Amendment. As such, the Amendment should be invalidated for failure to follow proper procedures for the adoption of a change to a bylaw. The Invalid Provisions of the Amendment Are Not Severable To the extent your office is considering whether or not it should only partially invalidate Article 22, no provision in Article 22 of the Warrant or the Amendment permits the severance of any portion of the Amendment. Therefore, you must turn to general principles of statutory