HomeMy Public PortalAbout2018-07-16 - Exhibit B - AG Memo - LanesboroughMAURA HEALEY
ATTORNEY GENERAL
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
CENTRAL MASSACHUSETTS DIVISION
10 MECHANIC STREET, SUITE 301
WORCESTER, MA 01608
November 6, 2017
Ruth Knysh, Town Clerk
Town of Lanesborough
83 North Main Street, P.O. Box 1492
Lanesborough, MA 01237
(508) 792-7600
(508) 795-1991 fax
www.mass.gov/ago
Re: Lanesborough Annual Town Meeting of June 13, 2017 -- Case # 8579
Warrant Article # 17 (Zoning)
Warrant Articles # 7, 18, 20, and 21 (General)
Dear Ms. Knysh:
Articles 7, 17, 18, and 20 - We approve Articles 7, 17, 18, and 20 from the
Lanesborough June 13, 2017, Annual Town Meeting. Our comments on Articles 7 and 17 are
provided below.
Article 21- Except for by-law text that requires retail establishments to charge a fee for
certain bags, and related text that exempts certain benefit recipients from the fee, we approve
Article 21 that regulates the use of plastic bags.1 [See Pages 4 and 5 for Disapprovals # 1 and
2]
As more fully explained below, the disapproved text requires retail establishments to
charge a set fee for certain bags provided to customers and requires retailers to exempt certain
benefit recipients from that fee. See Sections 3 (d), (e) and (f) and Section 5 (a)). This text
conflicts with Section 7 (5) of the Home Rule Amendment, Mass. Const. amend. art. 2., which
prohibits municipalities from enacting "private or civil law governing civil relationships except
as an incident to an exercise of an independent municipal power." The requirement in Section 5
(a) that retail establishments treat benefit recipients differently from other customers also
conflicts with state and federal regulations that require equal treatment for benefit recipients.2
1 In a decision issue October 26, 2015, to the Town of Williamstown, the Municipal Law Unit
disapproved the same text from Article 41, "Reduction of Single Use Bags."
2 Because we disapprove and delete the fee requirement, the exemption for benefit recipients is arguably
moot, but we explain the conflict with state and federal regulations because it is an independent basis for
the disapproval of Section 5 (a).
I. Summary of Article 21.
Article 21, prohibits retail establishments in the Town from providing customers with
single -use plastic bags (as defined in the by-law). (Section 3 (a)). If a retail establishment
provides bags to customers, those bags must be recyclable paper bags, reusable carryout bags,
compostable plastic bags, or marine degradable plastic bags, all as defined in the by-law.
(Section 3 (b)).
The by-law requires retail establishments to charge a fee for certain bags3 they provide to
customers, as follows (emphasis supplied):
3 (d) Any retail establishment that provides a recyclable paper bag, a compostable
plastic bag, or a marine degradable plastic bag, with the exception of produce bags
and product bags, to a customer must charge the customer 10 cents ($0.10) for each
bag provided, except as otherwise provided in Section 5 of this chapter.
3 (e) No retail establishment shall rebate or otherwise reimburse a customer any
portion of the 10 -cent ($0.10) charge required in Subsection (d), except as otherwise
provided in Section 5 of this chapter.
3 (f) All monies collected by a retail establishment under this chapter will be
retained by that retail establishment.
The by-law also requires retail establishments to exempt recipients of certain benefit
programs from the fee requirement, as follows (emphasis supplied):
5(a) All retail establishments must provide at the point of sale, free of charge, either
reusable bags or recyclable paper bags or both, at the establishment's option, to any
customer participating either in the Special Supplemental Food Program for
Women, Infants, and Children (WIC) pursuant to M.G.L. c. 111, or in the
Supplemental Nutrition Assistance (SNAP) Program pursuant to M.G.L. c. 18.
We disapprove and delete the text in bold and underlined above in Sections 3 (d -f) and 5
(a) for the reasons detailed below.
II. Attorney General's Standard of Review.
Pursuant to G.L. c. 40, § 32, the Attorney General has a limited power of disapproval
with every "presumption made in favor of the validity of municipal by-laws." Amherst v.
Attorney General, 398 Mass. 793, 796 (1986). In order to disapprove any portion of a proposed
by-law, the Attorney General must cite an inconsistency between the by-law adopted by the
Town and the Constitution or laws of the Commonwealth. Id. We emphasize that our decision
in no way implies any agreement or disagreement with the policy views that led to the passage of
the by-law. The Attorney General's limited standard of review requires her to approve or
3 The by-law provides that "[a] retail establishment may provide or sell reusable carryout bags to its
customers or to any person." See Section 4 (a).
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disapprove by-laws based solely on their consistency with state and federal law, not on any
policy views she may have on the subject matter or wisdom of the by-law. Id. at 795-96, 798-99.
III. Home Rule Amendment Limitations on Town By-laws.
Section 7(5) of the Home Rule Amendment, Mass. Const. amend. art. 2, prohibits
municipalities from enacting "private or civil law governing civil relationships except as an
incident to an exercise of an independent municipal power." The Supreme Judicial Court first
interpreted the meaning of this clause in Marshal House, Inc. v. Rent Review and Grievance
Board of Brookline, 357 Mass. 709 (1970), in which the Court held that a by-law enacting a form
of "rent control" was an impermissible private or civil law governing a civil relationship. The
Court admitted that "[a]mbiguity exists . . . concerning the meaning of . . . § 7(5)." Id. at 713.
Nonetheless, the Court concluded that "[t]he term `private or civil law governing civil
relationships' is broad enough to include law controlling ordinary and usual relationships
between landlords and tenants." Id. at 716. The Court noted that the by-law "affords . . . the
power in effect to remake, in important respects, the parties' contract creating a tenancy." Id. by
"restricting[ing] the rent which may be charged to the tenant" the proposed by-law "directly
intervenes in the continuing landlord -tenant relationship." Id. at 715. Since the municipal board,
operating pursuant to the challenged by-law, could "remake, in important respects, the parties'
contract" and thereby alter a "continuing . . . relationship," the by-law was a private or civil law
governing a civil relationship.
Three years later, in Bloom v. City of Worcester, 363 Mass. 136 (1973), the Court held
that the creation of a municipal human rights commission was not an enactment of private or
civil law governing a civil relationship. The Court distinguished its case from Marshal House as
follows: "No new rights or obligations between persons are created by the ordinance; no existing
rights or obligations between persons are modified or abolished." Id. at 146. "At most . . . the
ordinance and activities undertaken pursuant to it can encourage a person by moral suasion to do
what the [state] law governing his civil relationships already requires him to do." Id. at 147.
Together, Marshal House and Bloom suggest certain distinguishing features of private or
civil laws governing civil relationships. An enactment that "remake[s], in important respects,"
an agreement governing a "continuing . . . relationship," and which impacts its enforcement
through means "predominantly civil in character," is likely a private or civil law governing a
civil relationship. See Marshal House, 357 Mass. at 716-17. Put differently, "[d]oes the by-law
so directly affect the [retailer -customer] relationship, otherwise than 'as an incident to an
exercise of independent municipal power,' as to come within § 7 (5)?" Id. at 717. In contrast,
an enactment in which "[n]o new rights or obligations between persons are created [and] no
existing rights or obligations between persons are modified or abolished," Bloom, 363 Mass. at
146 (emphasis added), is likely not a private or civil law governing a civil relationship.4
4 This conception of private or civil law is consistent with that offered by other legal authorities. "Private
law consists of the substantive law which establishes legal rights and duties between and among private
entities, law that takes effect in lawsuits brought by one private entity against another." Gary T. Schwartz,
The Logic of Home Rule and the Private Law Exception, 20 UCLA L. Rev. 671, 688 (1973). Examples
include "contracts, property, and torts." Id. at 687. "[A] municipality is considered to have enacted
private law when an ordinance significantly affects private legal relationships . . . ." Note, Municipal
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Here, the proposed by-law text requires retail establishments to charge a fee if they
provide certain types of bags to their customers, prohibits retailers from reimbursing customers
for this fee, requires retailers to retain the money collected from the bag fee, and requires
retailers to exempt certain benefits recipients from the bag fee. (Sections 3 (d), (e) and (f) and
Section 5 (a)). Unlike the ordinance considered in Bloom, under the proposed by-law "existing
rights or obligations between persons are modified or abolished." Bloom, 363 Mass. at 146.
These requirements "directly affect" the manner in which a retail establishment sells (or
provides) products to its customers. Marshal House, 357 Mass. at 717. When a town by-law
purports to dictate to a retailer what products it must (or must not) charge its customers for, and
how much a retailer must charge for the product, the by-law fundamentally alters the retailer -
customer relationship. Therefore, the proposed by-law is an enactment of private or civil law
governing civil relationships in contravention of the Home Rule Amendment.
Still, "[a]n ordinance which governs a civil relationship may be valid despite the
proscription of § 7(5) if it is `incident to an exercise of an independent municipal power.'
Bannerman v. City of Fall River, 391 Mass. 328, 332 (1984) (quoting Mass. Const. amend. art.
2, § 7(5)). However, "[f]urtherance of the general public welfare is insufficient justification for
an ordinance which otherwise violates § 7(5)." Id. Rather, the impact on civil relationships must
be incident to the exercise of "some independent, individual component of the municipal police
power." Marshal House, 357 Mass. at 718. We can identify no independent, individual
component of municipal authority exercised by the proposed by-law text, to which the intended
regulation of civil relationships would be incidental. Cf. id. ("We perceive no component of the
general municipal police power, other than the regulation of rents itself, to which such regulation
fairly could be said to be incidental."). The proposed text therefore constitutes an invalid private
or civil law governing civil relationships.
The apparent intent of the required charge for bags is to encourage customers to bring
their own bags to use at retail establishments. This environmental goal is an important legislative
policy. However, the Attorney General's review of bylaws pursuant to G.L. c. 40, § 32, is limited
to the bylaw's consistency with state substantive and procedural law, rather than a consideration
of the policy arguments for or against the enactment. Amherst v. Attorney General, 398 Mass.
793, 798-799 (1986) ("Neither we nor the Attorney General may comment on the wisdom of the
town's by-law."). The Town must leave it to the retail establishment to determine whether or not
it will charge a fee for the bags it provides to its customers. Because Sections 3 (d), (e) and (f)
and Section 5(a) in Article 21 conflicts with state substantive law, they are disapproved and
deleted. [Disapproval # 1 of 21.
IV. Section 5 (a) Conflicts with Federal and State Law.
The requirement in Section 5 (a) exempting certain benefit recipients from the bag fee
also conflicts with state and federal law governing the SNAP program and the WIC program.
Federal regulations at 7 CFR § 278.2 govern these benefit programs and supersede any state or
local regulations that are in conflict:
Home Rule Power: Impact on Private Legal Relationships, 56 Iowa L. Rev. 631, 631 (1971).
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7 CFR § 278.2 (b) Equal treatment for coupon customers. Coupons shall be accepted for
eligible foods at the same prices and on the same terms and conditions applicable to cash
purchases of the same foods at the same store except that tax shall not be charged on
eligible foods purchased with coupons. However, nothing in this part may be construed
as authorizing FNS to specify the prices at which retail food stores may sell food.
However, public or private nonprofit homeless meal providers may only request
voluntary use of food stamps from homeless food stamp recipients and may not request
such household using food stamps to pay more than the average cost of the food
purchased by the public or private nonprofit homeless meal provider contained in a meal
served to the patrons of the meal service. For purposes of this section, "average cost" is
determined by averaging food costs over a period of up to one calendar month. Voluntary
payments by food stamp recipients in excess of such costs may be accepted by the meal
providers. The value of donated foods from any source shall not be considered in
determining the amount to be requested from food stamp recipients. All indirect costs,
such as those incurred in the acquisition, storage, or preparation of the foods used in
meals shall also be excluded. In addition, if others have the option of eating free or
making a monetary donation, food stamp recipients must be provided the same option of
eating free or making a donation in money or food stamps. No retail food store may
single out coupon users for special treatment in any way. (Emphasis supplied)
According to the U.S.D.A. and the Department of Transitional Assistance, the
requirement in Section 5 (a) that retail establishments provide certain bags to these benefit
recipients conflicts with 7 CFR §278.2 by treating such benefit recipients differently from other
customers. On this additional basis we disapprove and delete Section 5 (a) from the by-law text.5
6 [Disapproval #2 of 2].
Article 7 - Article 7 amends the Town's general by-laws by adding a new Chapter 27,
"Revolving Funds." General Laws Chapter 44, Section 53E '/z, requires revolving funds to be
established by by-law. Section 53 E 1/2 authorizes municipalities to establish revolving funds for
"any fees, charges or other receipts from the departmental programs or activities supported by
the revolving fund," to be accounted for separately from other monies in the town, and
authorizes expenditures from such fund without further appropriation, subject to the provisions
of Section 53 E 1/2. According to the Department of Revenue/Division of Local Services
(DOR/DLS), the purpose of a departmental revolving fund is to enable the department to
5 According to the U.S.D.A. and the Department of Transitional Assistance, in order to allow for special
treatment of such customers, including exempting those customers from a bag fee, the Town would need
to request a waiver of 7 CFR § 278.2. The Town should consult with Town Counsel regarding this
waiver requirement.
6 The disapproval of the fee exemption for benefit recipients in Section 5 (a) also arguably invalidates the
fee requirement itself (Sections 3 (d), (e), and (f)). It is not clear that Town Meeting would have adopted
the fee requirement without the exemption for benefit recipients, and the exemption is crucial to the
operation of the by-law. See Showtime Entertainment LLC v. Ammendolia, 885 F.Supp.2d 479, 490
(D.Mass. 2012) (use of the word "may" in special permit authority text invalidates entire special permit
requirement).
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separately account for money received from a specific program or activity and to make
expenditures from that separate account for that specific program or activity.
However, according to DOR/DLS, not all receipts may lawfully be deposited in a
revolving fund. For example, property taxes, motor vehicle taxes, or revenues from general
municipal activities, rather than those of a particular department, are not properly categorized as
"fees, charges or other receipts from the departmental programs or activities supported by the
revolving fund." See G.L. c 44, § 53 and 53E 1/2. In addition, receipts reserved by law (for
example betterment payments under G.L. c. 44, § 53J), or receipts authorized by law for
expenditure for a particular purpose (for example, local acceptance of G.L. c. 44B, Community
Preservation Act), are expressly prohibited from being included in a revolving fund under the
statute.
The DOR/DLS has published several informational guidelines to provide information
regarding municipal revenues and special funds. In particular, DOR/DLS has published Bulletin
2017-01B, "Authorization of Departmental Revolving Funds and Model By-law/Ordinance:"
http://www.mass.gov/dor/docs/d1s/publ/bull/2017/2017-01b.pdf
and an "Overview of Statutory Treatment of Municipal Revenues:"
http://www.mass.gov/dor/docs/d1s/training/overview.pdf
We approve the by-law created under Article 7. However, the Town should consult
closely with Town Counsel to ensure that receipts designated for each revolving fund are not
already reserved under other funds or statutes, and are properly included in the designated
revolving fund. In addition, the Town should consult closely with Town Counsel to ensure that
any deposits into a revolving fund are properly from "fees, charges or other receipts" associated
with a specific departmental program or activity and that the funds are expended in connection
with that specific program or activity, not for the general use of the department.
Further, G.L. c. 44, § 53E 1/2, requires the establishment of any revolving fund to be
"made not later than the beginning of the fiscal year in which the fund shall begin." The Town
established these revolving funds by by-law at a vote of Town Meeting on June 13, 2017,
apparently with the intention that these funds be used during Fiscal Year 2018 (beginning July 1,
2017). According to DOR/DLS, all receipts collected during Fiscal Year 2018 can be credited to
the revolving funds created under Article 7. The Town should consult with Town Counsel
and/or DOR/DLS with any questions on this issue.
Our comments on specific revolving funds established under Article 7 are provided
below.
1. LACTV Cable Commission Revolving Fund.
Article 7 creates a LACTV Cable Commission Revolving Fund. The by-law states that
the revenue source for the cable fund is "franchise fees."
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General Laws Chapter 44, Section 53E %2, prohibits the establishment of a revolving fund
for receipts of "a cable television access service or facility." According to DOR/DLS, monies
received and spent for cable television public, educational and governmental (PEG) access
facilities and operations may be deposited in either an Enterprise Fund (G.L. c. 44, § 53F 1/2) or a
Receipts Reserve Fund (G.L. c. 44, § 55F 3/4), which are local acceptance statutes. If neither
option is accepted, the monies belong to the general fund. The DOR/DLS Informational
Guideline Release (IGR) 2016-102 on this topic can be found here:
http://www.mass.gov/dor/docs/d1s/publ/igr/2016/igr16-102.pdf.
The DOR/DLS has extended the deadline for municipalities to comply with one of these
options (or alternatively to credit the receipts to the general fund), until June 30, 2018. See page
3, http://www.mass.gov/dor/docs/dls/publ/bull/2017/i-boa-2017-05b.pdf. The Town should
consult with Town Counsel and DOR/DLS to ensure that cable receipts are accounted for
properly.
2. Lanesborough Agricultural Commission and Lanesborough Tree and Forest
Revolving Funds.
Article 7 also creates the Lanesborough Agricultural Commission and Lanesborough
Tree and Forest revolving funds. The revenue source for these revolving funds are "donations."
However, it is unclear whether the "donations" referred to are actually "fees" for programs and
services, or if the donations are true "gifts." General Laws Chapter 44, Section 53A, pertains to
the acceptance and expenditure of grants and gifts, and requires:
An officer or department of any...town, or of any regional school or other district,
may accept grants or gifts of funds from the federal government and from a charitable
foundation, a private corporation, or an individual, or from the commonwealth, a
county or municipality or an agency thereof, and in the case of any grant or gift given
for educational purposes may expend said funds for the purposes of such grant or gift
with the approval of the school committee, and in the case of any other grant or gift
may expend such funds for the purposes of such grant or gift...in towns with the
approval of the board of selectmen...
Further, Section 53A provides that "[n]otwithstanding the provisions of section fifty-
three, any amounts so received by an officer or department of a city, town or district shall be
deposited with the treasurer of such city, town or district and held as a separate account and may
be expended as aforesaid by such officer or department receiving the grant or gift without further
appropriation." The Town should consult with Town Counsel to ensure that any donations
deposited in the Lanesborough Agricultural Commission and Lanesborough Tree and Forest
Revolving Funds revolving fund comply with the requirements of G.L. c. 44, § 53A and § 53E
1/2.
3. Special Education Services Revolving Fund.
Article 7 creates a Special Education Services revolving fund that includes fees received
from the Town of New Ashford for special education programs. General Laws Chapter 44,
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Section 53E 1/2, provides that the following receipts may not be used as a revenue source for a
revolving fund: "receipts reserved by law or as authorized by law for expenditure for a particular
purpose."
According to DOR/DLS, many fees, charges or other receipts pertaining to schools are
not properly deposited into a departmental revolving fund because these school related fees have
previously been designated by the Legislature for other specific funds. DOR/DLS has published
a chart pertaining to specific school revolving funds to assist municipalities in determining where
certain school related fees must, or may by local option, be deposited:
http://www.mass. gov/dor/docs/dls/training/revolvingfundchartschool.pdf
The Town should work closely with Town Counsel and DOR/DLS to review the Special
Education Services revolving fund to determine whether such fees are properly accounted for in
a departmental revolving fund under G.L. c. 44, § 53E %2, or whether these school fees need to be
accounted for in a separate school specific revolving fund, as detailed in the DOR/DLS link
provided above.
Article 17 - Article 17 amends the Town's zoning by-laws by adding a new subsection
N, "Solar Photovoltaic Installations," to Section VIII, "Special Provisions." The new by-law
allows large-scale ground -mounted solar photovoltaic installations (as defined in the by-law) by
special permit all of the Town's zoning districts. The new by-law allows small scale solar
photovoltaic installations (as defined in the by-law) by right in all of the Town's zoning districts.
General Laws Chapter 40A, Section 3, protects solar energy systems and the building of
structures that facilitate the collection of solar energy, and provides in pertinent part as follows:
No zoning ordinance or bylaw shall prohibit or unreasonably regulate the installation
of solar energy systems or the building of structures that facilitate the collection of
solar energy, except where necessary to protect the public health, safety or welfare.
There are no court decisions to guide the Town or this Office in determining what
qualifies as an unreasonable regulation of solar uses in contravention of G.L. c. 40A, § 3.
However, the Town should be mindful of this requirement when applying the new by-law and
consult closely with Town Counsel during the process.
In light of the above, we offer the following comments on the new subsection N.
Subsection N (5) (G) requires a surety, either through an escrow account, bond, or
otherwise, for large scale solar photovoltaic installations. General Laws Chapter 44, Section 53,
would require that performance security funds of the sort contemplated here must be deposited
with the Town Treasurer and made part of the Town's general fund (and subject to future
appropriation), unless the Legislature has expressly made other provisions that are applicable to
such receipt.
The State adopted Chapter 218 of the Acts of 2016, "An Act Modernizing Municipal
Finance and Government," which took effect on November 7, 2016, unless otherwise noted in
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the Act that, among other amendments, inserted a new Section 53G 1/2, which provides as
follows:
Notwithstanding section 53, in a...town that provides by by-law...rule, regulation or
contract for the deposit of cash, bonds, negotiable securities, sureties or other financial
guarantees to secure the performance of any obligation by an applicant as a condition of a
license, permit or other approval or authorization, the monies or other security received
may be deposited in a special account. Such by-law...rule or regulation shall specify: (1)
the type of financial guarantees required; (2) the treatment of investment earnings, if any;
(3) the performance required and standards for determining satisfactory completion or
default; (4) the procedures the applicant must follow to obtain a return of the monies or
other security; (5) the use of monies in the account upon default; and (6) any other
conditions or rules as the...town determines are reasonable to ensure compliance with the
obligations. Any such account shall be established by the municipal treasurer in the
municipal treasury and shall be kept separate and apart from other monies. Monies in the
special account may be expended by the authorized board, commission, department or
officer, without further appropriation, to complete the work or perform the obligations, as
provided in the by-law...rule or regulation. This section shall not apply to deposits or
other financial surety received under section 81U of chapter 41 or other general or special
law.
In order for the Town to deposit proceeds from a cash performance guarantee into a
special account, the Town would have to comply with the requirements of G.L. c. 44, § 53G 1/2.
In the absence of compliance with G.L. c. 44, § 53G %2, bond proceeds must be deposited with
the Town Treasurer and made part of the Town's general fund, pursuant to G.L. c. 44, § 53. The
Town should consult with Town Counsel on the proper application of this Subsection N (5) (G).
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 by-law, and (2) zoning by-laws and amendments are deemed to have taken effect
from the date they were voted by Town Meeting, unless a later effective date is prescribed
in the by-law.
Very truly yours,
MAURA HEALEY
ATTORNEY GENERAL
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 Jeffrey T. Blake
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