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HomeMy Public PortalAbout2022 03 08 Public Meeting Packet Town of Brewster 2198 Main Street Brewster, MA 02631-1898 Phone: (508) 896-3701 Fax: (508) 896-8089 MEMORANDUM TO: Select Board FROM: Peter Lombardi, Town Administrator RE: Citizens Petitions on Punkhorn Hunting Restrictions DATE: February 11, 2022 At the Spring 2022 Annual Town Meeting, Brewster voters approved a citizens petition seeking to ban hunting on Town property in the Punkhorn. Prior to that deliberation and vote, Town counsel opined that such a ban could be binding in nature based on their interpretation of the statute and relevant case law. Town officials worked with the petitioner to draft the petition to be binding, not advisory in nature. After the warrant closed, Town counsel raised concerns about the form of the petition as submitted. Just before Town Meeting, town counsel provided proposed language to make a motion on the floor to amend the petition which would have made wholesale changes to the petition as included in the warrant book. This motion was not brought to the petitioners attention given the late hour in which it was received and concerns about causing confusion at Town Meeting. After approval by Town Meeting, the article was submitted by the Town Clerk to the MA Attorney General for their review. In August, they sought an extension of their review period and, in October, they ultimately issued their approval of the article as not being inconsistent with relevant state law. Following this state review and approval, town counsel opined that the article was not in the appropriate form to be codified as a Town bylaw. Accordingly, the vote last May was advisory. When the petitioner was informed of these developments, they were understandably frustrated and disappointed. I then worked with Town counsel to draft a new petition in proper form, which is what is now under consideration. At the same time, another resident expressed interest in submitting a separate citizens petition seeking to allow hunting in the Punkhorn with certain restrictions. Both petitions will be included on the May 2022 warrant. Office of: Select Board Town Administrator THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL CENTRAL MASSACHUSETTS DIVISION 10 MECHANIC STREET, SUITE 301 WORCESTER, MA 01608 (508) 792-7600 (508) 795-1991 fax www.mass.gov/ago October 17, 2021 Colette M. Williams, Town Clerk Town of Brewster 2198 Main Street Brewster, MA 02631 Re: Brewster Annual Town Meeting of May 15, 2021 -- Case # 10110 Warrant Articles # 23 and 25 (General) Dear Ms. Williams: Article 25 - Under Article 25 the Town voted to prohibit the discharge of firearms and hunting on certain town-owned land. We approve Article 25 because it is consistent with G.L. c. 131, § 59 that prohibits hunting on “any land owned or leased by the commonwealth or any political subdivision thereof” unless “the authorities or persons having the control and charge of such reservations, parks, commons or other lands” specifically authorizes hunting on such land during the applicable open season. G.L. c. 131, § 59. In this decision, we summarize the by-law amendment adopted under Article 25 and the Attorney General’s standard of review of town by-laws, and then explain why, based on our standard of review, we approve Article 25. 1 I. Summary of Article 25 Under Article 25 the Town voted, in relevant part, as follows: To see if the Town will vote to prohibit in the Punkhorn Parklands (see map and FY2021 Punkhorn Parklands Parcels, number 1-108, below): the discharge of firearms or hunting. No person shall discharge any gun, including paint ball guns, fowling piece, pistol, or firearm or release an arrow from a bow or hunt or trap or poison in the area of town-owned parcels in southwest Brewster, typically referred to as the Punkhorn. This petition will not affect municipal use as outlined in the “Wildland Fire Protection and Preparedness Plan for the Punkhorn 1 In a decision issued August 6, 2021, we approved Article 23 and by agreement with Town Counsel extended our deadline for review of Article 25 for an additional 60-days until October 17, 2021. 2 Parklands” or the Town’s use of sharp shooters for hire to control nuisance or injured wildlife [ ]. 2 II. Attorney General’s Standard of Review Pursuant to G.L. c. 40, § 32, the Attorney General has a “limited power of disapproval,” and “[i]t is fundamental that every presumption is to be made in favor of the validity of municipal by-laws.” Amherst v. Attorney General, 398 Mass. 793, 795-96 (1986). The Attorney General does not review the policy arguments for or against the enactment. Id. at 798-99 (“Neither we nor the Attorney General may comment on the wisdom of the town’s by-law.”) Rather, in order to disapprove a by-law (or any portion thereof), the Attorney General must cite an inconsistency between the by-law and the Constitution or laws of the Commonwealth. Id. at 796. “As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid.” Bloom v. Worcester, 363 Mass. 136, 154 (1973) (emphasis added). In order for a court (or this Office) to find that a town is preempted from regulating an activity, “[t]he legislative intent to preclude local action must be clear.” Bloom, 363 Mass. at 155. This legislative intent can be either express or implied. “In other words, local action is precluded either where the Legislature has made an explicit indication of its intention in this respect, or the purpose of State legislation would be frustrated [by a local enactment] so as to warrant an inference that the Legislature intended to preempt the field.” St. George Greek Orthodox Cathedral v. Springfield, 462 Mass. 120, 126 (2012) (internal quotations and citation omitted). The “comprehensive nature” of a statute can indicate the “the Legislature intended to preempt local entities from enacting legislation in [an] area” covered by the statute. Boston Gas Co. v. Somerville, 420 Mass. 702, 704 (1995). III. The Town May Regulate the Discharge of Firearms Within Its Borders. Because Article 25 relates to both the discharge of firearms and hunting it is important to distinguish between the two. As further explained below, the activity of hunting is comprehensively regulated throughout the Commonwealth and thus municipalities are preempted from imposing restrictions on hunting that differ from Chapter 131 and other applicable statutes. However, the Town is allowed to regulate the discharge of firearms within its borders. See Brown v. Carlisle, 336 Mass. 147, 150-151 (1957) (upholding a firearm discharge by-law because “[t]he enumeration of [Chapter 131 and other] statutes demonstrates that the State has not excluded the type of legislation here undertaken by the defendant town…We are not confronted with an attempt to regulate hunting….”) (emphasis supplied); See also Amherst, 2 Neither the “Wildland Fire Protection and Preparedness Plan for the Punkhorn Parklands,” nor any Town policies or regulations regarding “the Town’s use of sharp shooters for hire to control nuisance or injured wildlife” have been filed with this Office and we have no jurisdiction to review or opine on this Plan or policies. Therefore, in issuing this decision on our review of the Town’s by-law, we take no position on the legality of the Plan or any such policies or regulations. 3 398 Mass. at 797-798 (rejecting argument that Amherst’s firearm discharge by-law is preempted by Chapter 131 because “the Amherst by-law in no way frustrates those sections” of Chapter 131 which “concern the safe use of certain firearms.”). On this basis, we approve the text in Article 25 that prohibits the discharge of firearms. IV. Towns Cannot Regulate Hunting Except as Provided in Chapter 131 In contrast to the discharge of firearms, the activity of hunting is comprehensively regulated by General Laws Chapter 131 and related statutes and regulations that preempt the field. Chapter 131 imposes “carefully guarded conditions by which one may hunt in the Commonwealth safely, provisions by which one is licensed, and provisions designed to preserve and maintain the wildlife and natural resources of the Commonwealth.” Amherst, 398 Mass. at 797. Chapter 131 grants the Director of the Department of Fish and Game/Division of Fisheries and Wildlife (DFW Director) wide-ranging authority over hunting in the Commonwealth (see generally G.L. c. 131, § 4, and 321 CMR 3.01 et seq.), and further grants the DFW authority to adopt comprehensive regulations governing hunting, which are embodied in 321 CMR 3.00 et seq. Pursuant to G.L. c. 131, § 5, “Except as provided in rules and regulations made under authority of this section, and except as otherwise provided in [Chapter 131], a person shall not fish, hunt, …”. Chapter 131 does not expressly preempt local regulation of hunting. However, the broad scope of Chapter 131, and the extensive powers granted to the DFW Director to regulate hunting, indicate a legislative intent that Chapter 131 occupies the field of hunting regulation. Towns are thus preempted from local regulation of hunting except as expressly provided in Chapter 131. See Boston Edison Co. v. Town of Bedford, 444 Mass. 775 (2005) (town by-law imposing fines for failure to remove utility poles preempted by the comprehensive, uniform state regulation of utilities in G.L. c. 164); Wendell v. Attorney General, 394 Mass. 518 (1985) (town by-law regulating the use of pesticides in town frustrates the statutory purpose of centralized regulation of pesticide use). Because of the Legislature’s comprehensive grant of authority to the DFW to be the exclusive, state-wide regulator of hunting in the Commonwealth, towns are preempted from imposing by-law requirements which are inconsistent with G.L. c. 131 and related statutes and regulations. Thus, towns may only impose their local hunting requirements in those two categories expressly provided in Chapter 131: municipally owned lands (see G.L. c. 131, § 59); and Great Ponds not exceeding 500 acres in size (see G.L. c. 131, § 45). V. Article 25 Is Consistent with General Laws Chapter 131, § 59 that Prohibits Hunting on Town-Owned Land Unless the Town Allows It. We approve Article 25 because it is consistent with the statutory prohibition of hunting on town-owned land without town authorization. General Laws Chapter 131, Section 59 provides that a person shall not hunt on “any land owned or leased by the commonwealth or any political subdivision thereof” except that the persons having control and charge of such lands may “permit 4 the hunting, within said boundaries during the applicable open season of any birds or mammals.” Specifically, Section 59 provides as follows (with emphasis added): A person shall not hunt, or in any manner molest or destroy, any bird or mammal within the boundaries of any reservation, park or common, or any land owned or leased by the commonwealth or any political subdivision thereof, or any land held in trust for public use; except that the authorities or persons having the control and charge of such reservations, parks, commons or other lands, may, with such limitations as they deem advisable, permit the hunting, within said boundaries during the applicable open season of any birds or mammals. The authorities or persons having the control and charge of such reservations, parks, commons or land owned or leased or held for public use, the director of law enforcement, his deputy directors of enforcement, chiefs of enforcement, deputy chiefs of enforcement, environmental police officers, deputy environmental police officers, wardens and members of the state police in areas over which they have jurisdiction and all officers qualified to serve criminal process shall enforce this section. This section shall not apply to state forests acquired under section thirty or section thirty- three of chapter one hundred and thirty-two or any other provision of law, or to state parks and reservations under the control of the division of forests and parks of the department of environmental management. Nothing in this section shall be deemed to prohibit any agency of the commonwealth or any political subdivision of the commonwealth from permitting the hunting, during the applicable open season, in any area owned or leased by it, of any bird or mammal, or from entering into agreements with the director for the establishment of wildlife management areas. Chapter 131 authorizes towns to determine whether to allow hunting on town-owned property. Because the parcels listed in Article 25 are town-owned, we approve Article 25 as consistent with Chapter 131. VI. Article 25 Must be Applied Consistent with General Laws Chapter 131, § 45 that Requires Great Ponds to Be Accessible for Hunting. General Laws Chapter 131, Section 45 requires that a Great Pond “shall be public for the purpose of hunting or boating thereon.” Further, G.L. c. 131, § 45 provides that “[a]ll persons shall be allowed reasonable means of access to such ponds for the purposes aforesaid,” which includes hunting. Specifically, G.L. c. 131, § 45, provides in relevant part as follows: Except as otherwise provided in this section and elsewhere in this chapter, every great pond not actively being used as a source of water supply of any town, water supply or fire district or public institution, and not subject to the provisions of section one hundred and sixty of chapter one hundred and eleven, shall be public for the purpose of hunting or boating thereon and shall, notwithstanding the provisions of any special law relating to fisheries in any particular place, be open to all inhabitants of the commonwealth for fishing purposes; provided that any city or town in which the whole or any portion of any great pond not exceeding five hundred acres in extent is situated may, as to so much thereof, as is located within its boundaries, make and enforce rules and regulations relative to hunting, fishing and boating thereon….Any such rules or regulations shall, to the extent that they authorize hunting or fishing or, both, be subject to the approval of the director, and to the extent that they authorize any other use thereof, be subject to the 5 approval of the commissioner of environmental protection or to the extent that they impose restrictions upon the speed limit, a limitation on engine horsepower, a prohibition of the use of internal combustion engines, a ban on water skiing and other high speed uses, and a limitation of such uses to certain areas and certain times, be subject to the approval of the director of law enforcement. All persons shall be allowed reasonable means of access to such ponds for the purposes aforesaid. General Laws Chapter 131, Section 45 defines a “Great Pond” as: “a natural pond the area of which is twenty acres or more.” According to the Massachusetts Department of Environmental Protection, there are several Great Ponds located in Brewster. See https://www.mass.gov/doc/massachusetts-great-ponds-list/download. Moreover, it appears that some of these Great Ponds are located in or near the Punkhorns, including Seymour Pond, Upper Mill Pond and Walkers Pond. See Northern Punkhorn Trail Map available on the Town’s website (https://brewster-ma.gov/files/Punkhorn_North_Section_Trail_Map.pdf).3 While it does not appear that any of these Great Ponds are part of the 108 parcels identified by map and parcel number in Article 25, the Town must ensure that Article 25 is applied consistent with G.L. c. 131, § 45. Thus, the Town cannot apply Article 25’s hunting prohibition to any Great Pond located in the Punkhorns.4 Further, because it appears that certain of the listed parcels may abut Great Ponds, the Town cannot apply the by-law in such a way as to impede access to Great Ponds for the statutorily protected activities of hunting, fishing, and boating, as established by G.L. c. 131, § 45. The Town should consult with Town Counsel with any questions on this issue. VII. Conclusion Because the by-law adopted under Article 25 is consistent with G.L. c. 131, § 59, we approve it. However, the Town is not authorized to prohibit hunting on Great Ponds and the by- law cannot apply to any Great Ponds in the Town, except as specifically outlined in G.L. c. 131, § 45. 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 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 approved by the Town Meeting, unless a later effective date is prescribed in the by-law. 3 See also DEP Great Pond Information as follows: (1) Walkers Pond: https://www.mass.gov/doc/walkers- pond/download (2) Seymour Pond: https://www.mass.gov/doc/dfwseymopdf/download; and (3) Upper Mill Pond: https://www.mass.gov/doc/dfwwalkupdf/download . 4 We note that G.L. c. 131, § 45 grants to certain categories of cities and town the right to make rules and regulations regarding hunting on great ponds not exceeding five hundred acres, but it requires that such rules and regulations be approved by the Director. See Pearson v. Plymouth, 44 Mass. App. Ct. 741, 744 (1998) (“All such [great pond] rules and regulations are subject to the approvals of various State administrative agencies having special competence and responsibility in the particular subject, e.g., …rules and regulations authorizing hun ting and fishing are subject to the approval of the director of fisheries and wildlife.”) 6 Very truly yours, MAURA HEALEY ATTORNEY GENERAL Margaret J. Hurley by: Margaret J. Hurley, Assistant Attorney General Chief, Central Massachusetts Division Director, Municipal Law Unit Ten Mechanic Street, Suite 301 Worcester, MA 01608 (508) 792-7600 x 4402 cc: Town Counsel Jonathan Silverstein Dear Conservation Commission Boardmembers, 2/22/22 We have been meeting with landscapers about clearing the path for our fence, taking out the trees specified in our proposal, and removal of the English ivy. I am writing to request permission to use light machinery to do the work. We have met with several landscapers, and so far they have all advised us that the best way to cut the 3-foot path for our fence is with a machine, and that the scale of the ivy removal project is too big to be done by hand. The entire portion of our property that falls within the 100-foot buffer zone is overtaken by ivy. Our contractor would like to use a Bobcat S66 with a 3-foot wide scoop. Of course, we will install a barrier of hay/wattling or silt fencing to control erosion, as required. With regard to the erosion barrier, the property line is hard to access in some places due to brush/thorns as well as a large pine tree that fell right on the line during the nor’easter last Fall. It will require some cutting just to clear the way for the barrier. Can we begin this minor work before our in-person meeting in order to get the erosion barrier in place? Or should we meet first, and then install the barrier? Lastly, I just want to mention that we are committed to doing this project properly, without causing any harm to the wetland behind our house. We are fortunate to be able to look out over it from our backyard and enjoy the wildlife that comes with it. As a Brewster native, handling this project with proper respect for the conservation land is a priority for me. Thank you, Jesse Blatz 30 Bog Pond Road, Brewster, MA 02631 Bobcat S66 3-foot scoop This is a fallen tree that we need to remove to make way for the erosion barrier. The pink flag marks the fence line.