Loading...
HomeMy Public PortalAbout2018-07-16 Minutes BYOBag w Attachs-Feltner-Donato_201807260939526453 Watertown Town Council Administration Building 149 Main Street Watertown, MA 02472 Phone: 617-972-6470 Rules and Ordinances Committee Monday,July 16, 2018 at 6:00 PM Richard E. Mastrangelo Council Chamber, 2nd Floor RE: Bring Your Own Baa Ordinance Present. Councillors Anthony Donato, chair; Kenneth Woodland,vice chair; Lisa Feltner, secretary. Also present. Councillors Caroline Bays,Tony Palomba,Vincent Piccirilli,and residents Paul Gregory, Charlo Maurer,Narendra Mukherjee, Eileen Ryan,and David Stokes (see attached sign-in sheet). Chair Donato called the meeting to order at 6:00 p.m.to continue discussing potential updates to Watertown's Bring Your Own Bag Ordinance.The conversation included follow-up from concerns presented on May 21, 2018 with Watertown ReThink Plastic community group and others. ReThink Plastic asked us to consider: 1. Imposing a fee for the purchase of a check-out bag,regardless of the material or thickness of the bag,given research that suggests customers are more likely to use their own bag when fees are incurred; 2. What kind of bag could be used at checkout that would reasonably be determined to be truly reusable. Conversations with staff confirmed that use of plastic bags at CVS and Russo's were the most concerning even though their bags are technically in compliance,because they are not in the spirit of our goal to eliminate the use of plastic bags as much as possible.The Town had learned of other retailers who were not in compliance but those received notices and are since cooperating. DCDP suggested we focus on the 4.0 mils thickness exception. Chair Donato provided a memorandum from the Attorney General's Office (see attached),which has jurisdiction over Town ordinances, and the memo states that requiring businesses to charge fees for checkout bags is inconsistent with laws governing civil relationships.Although Watertown is a city,not town,form of government we want to avoid potential conflict with state and federal laws. It was noted that a"plastic bag ban"bill is moving forward in the Legislature but we don't want to delay improving our ordinance in the meantime. The Committee agreed that Watertown must leave it to the retailer whether or not they want to charge customers or offer a rebate,etc. for a checkout bag. It was also suggested that the Town needed to have a conversation with CVS since they don't give out plastic checkout bags in other communities. Russo's has expressed a desire for an ordinance they can point to for complaining customers.All parties want a common understanding about the goal to reduce plastic. 1 Eileen Ryan suggested ReThink Plastic would be willing to work with our health and/or zoning departments to help develop signage for retailers for publicizing the BYOB ordinance and the importance of cleaning reusable checkout bags.The committee agreed this was important to the goal of reducing plastic bag pollution,and voted to add relevant lanauaLye to 115.03 Reauirements - - - 44. We also agreed that given the complexity on types of plastics,reasonable expectations for enforcement,and defining reusable checkout bags,we would adopt more specific language as recommended by the Sierra Club (see attached worksheet),in addition to changing the 4.0 mils thickness exception. Woodland made a motion to: Eliminate"(6) Plastic bags four mil or more thick."under 115.02 DEFINITIONS: Single-Use Plastic Bag,in conjunction with an updated definition of"Reusable Bag", as discussed (see below). Seconded by Donato,Voted in favor 3-0. 'Reusable bag"shall mean a sewn bag with stitched handles that is specifically designed for multiple reuse and that(1) is machine washable or is made of a material that can be cleaned or disinfected, and, (2) is either(a)made of natural fibers(such as cotton or linen);or(b)made of durable, non-toxic plastic other than polyethylene or polyvinyl chloride that is generally considered a food-grade material that is more than 5.0 mils thick. ACTION ITEM: Motion by Woodland, Seconded by Donato,Voted in favor 3-0,that The Committee recommends the Town Council adopt the proposed changes to Watertown Bring Your Own Bag Ordinance,as outlined (see attached). Motion by Woodland to adjourn at 7:22 p.m.seconded by Feltner, 3-0 voted in favor. Respectfully submitted, Lisa Feltner Town Council Report Date:August 14, 2018 Accepted: Amended: Attached: Sign-in Sheet, Recommended Changes Worksheet, Proposed Revised BYOB Ordinance, Atty. General Memo Lanesborough Case 48579. 2 K Watertown Town Council Administration Building 149 Main Street Watertown, MA 02472 ELECTED Phone: 617-972-6470 OFFICIALS: COMMITTEE ON RULES AND ORDINANCES Mark S. Sideris, MONDAY,JULY 16, 2018, 6:00 P.M. Council President TOWN COUNCIL CHAMBERS Vincent J. Piccirilli,Jr., ADMINISTRATION BUILDING Vice President& District C Councilor SIGN IN SHEET Caroline Bays Pjame Address Councilor At Large Z aV� Slal4eJ W haw-re,4C.e 5'f Michael F. Dattoli, -� 16 wl i%xy St- 2� Councilor At Large Anthony J. Donato, rl' M Y?C Councilor At Large VQ-V- n Anthony Palomba, Councilor At LargeP9 Angeline B. Kounelis, ro I rue � s District A Councilor Lisa J. Feltner, — District B Councilor Kenneth M. Woodland, District D Councilor II _ t l I Updated Julv 2018: Worksheet for Changes to Current Plastic-Bag Ordinance from ReThink Plastic, Watertown Given that the purpose of the Plastic-bag ordinance is to reduce the distribution of single-use checkout bags by retail establishments and increase the use of reusable bags by consumers...... The purpose of the current plastic bag ordinance was to eliminate pollution caused by single-use plastic bags given out by retailers to consumers.The goal was to shift consumers to bringing their own multiuse bags with them when they shop...... 1. Refine the definition of what kind of bag may be purchased at checkout, based on the material used in the bags. Suggested new definition of specific plastic bags that may not be given to customers or sold to customers: Thin film Plastic Checkout Bags shall mean those bags, typically with handles, constructed of high density polyethylene (HDPL), low density polyethylene (LDPE), linear low-density polyethylene (LLDPE), polyvinyl chloride (PVC), or polypropylene (other than woven and non-woven polypropylene fabric if said film is equal to or less than 4.0 mils in thickness. Updated definition for reusable checkout bags: "Reusable Checkout bag"shall mean a sewn bag with stitched handles that is specifically designed for multiple reuse and that(1)can carry 25 pounds over a distance of 300 feet; (2) is machine washable or is made of a material that can be cleaned or disinfected more than 125 times,and, (2)is either(a)made of natural fibers (such as cotton or linen);or(b)made of durable, non-toxic plastic other than polyethylene or polyvinyl chloride that is generally considered a food-grade material that is more than 5.0 mils thick. July 16, 2018 the Town Council Rules and Ordinances Committee: * Voted to adopt suggested italicized yellow-highlighted language, to replace 115.02 Definitions REUSABLE BAG. This language provides more specifics for Watertown's goal in reducing commercial use of single-use plastic bags than the current ordinance. *Also under 115.02 Definitions, SINGLE-USE PLASTIC BAG,the following was deleted: (6) Plastic bags four mil or more thick. *Agreed that more signage should be developed for retailers to support the ordinance and encourage the cleaning of reusable checkout bags.Add relevant language to 115.03 Requirements (2). THE COMMONWEALTH OF MASSACHUSETTS �f OFFICE OF THE ATTORNEY GENERAL CENTRAL MASSACHUSETTS DIVISION 10 MECHANIC STREET, SUITE 301 AURA liB LEY WORCESTER, MA 01608 AT-TORNEY GENERAT, (508)792-7600 991 (508)795-1991 fax www.mass.gov/ago November 6, 2017 Ruth Knysh, Town Clerk Town of Lanesborough 83 North Main Street, P.O. Box 1492 Lanesborough, MA 01237 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.' [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 ' 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) Anv retail establishment that provides a recvclable 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 anv 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 recvclable paper bags or both, at the establishment's option,to anv 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). 2 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.' a 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 3 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. Attornev 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). 4 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 21. 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 1/2, 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 s 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). 5 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 2017-01 B, "Authorization of Departmental Revolving Funds and Model By-law/Ordinance:" htti)://www.mass.Rov/dor/docs/dls/t)ublibull/2017/2017-Olb.Ddf and an"Overview of Statutory Treatment of Municipal Revenues:" httr)://www.mass.2ov/dor/docs/dls/trainin2/overview.Ddf 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." 6 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 '/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: httD://www.mass.2ov/dor/docs/dls/])ubl/i2r/2016/i2rl6-102.1)df. 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, htti)://www.mass.2ov/dor/docs/dls/publibull/2017/i-boa-2017-05b.i)df. 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, 7 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: htti)://www.mass.2ov/dor/docs/dls/traininv-/revolvin2fundchartschool.])df 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 8 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 8 1 U 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 9 zsfl Watertown Town Council Administration Building 149 Main Street Watertown, MA 02472 Phone: 617-972-6470 �08 co ORDINANCE # 0-2018- ELECTED OFFICIALS: Mark S.Sideris, Council President BRING YOUR OWN BAG ORDINANCE Vincent J.Piccirilli,Jr., Vice President Whereas, the commercial use of plastic bags has been determined to have a Caroline Bays,Councilor At Large sign h p significant impact upon the environment; and Anthony J.Donato, Whereas, the long-term elimination and short-term reduction of Councilor At Large environmentally dangerous petrochemical and natural gas products, and a return to Susan G.Falkoff, environmentally sustain able materials that are rapidly renewable and Councilor At Large biodegradable is desired; and Anthony Palomba, Councilor At Large Whereas, the Town seeks to protect and preserve the environment through Angeline B.Kounelis, the reduction in commercial use of plastic bags. District A Councilor NOW THEREFORE BE IT ORDAINED by the Town Council of the City Lisa J.Feltner, Known as the Town of Watertown that Title IX of the Watertown Code of Ordinances, District B Councilor Business Regulations, is hereby amended by the insertion of new Chapter 115 as Kenneth M.Woodland, follows: District D Councilor Chapter 115: SINGLE-USE PLASTIC BAG REDUCTION ORDINANCE §115.01 Intent and Pumose The purpose of this Section is to reduce the commercial use of single-use plastic bags in Watertown. The Town Council hereby finds that the reduction in the use of single-use plastic bags by commercial entities is a public purpose that protects the land and marine environment, advances solid waste reduction, and protects waterways. Further, single-use plastic bags clog storm drainage systems, create a burden to solid waste collection and recycling, and require the use of millions of barrels of crude oil nationally for their manufacture. This Ordinance seeks to reduce the number of single-use plastic bags that are being used,discarded and littered,and to promote the use of reusable checkout bags by retail stores located in Watertown. The Town Council notes that several neighboring communities and the State of Massachusetts have enacted or are considering enacting similar measures. Furthermore,at the time of enactment of this Ordinance,the Council is aware that 20 million Americans live in communities where bag bans are in place, including the entire states of Hawaii and California, along with several major countries including India, China and Italy. §115.02 Definitions The following words shall,unless the context clearly requires otherwise,have the following meanings: (a) 'Department" means the enforcing town department from time to time as designated by the Town Manager. (b) 'Director" means the head of that department. (c) "Single-use plastic bag" means a plastic bag made of plastic, including but not limited to bags made of high-density polyethylene, low-density polyethylene, "biodegradable," "compostable" or "oxo-biodegradable" materials, that are intended for the purpose of transporting food or merchandise out of a Retail Establishment. For the purposes of this Ordinance, Single-use plastic bags shall not include: (i)bags,whether plastic or not,in which loose or bulk candy,produce or products are placed by a consumer to deliver such items to the point of sale or check-out area of a Retail Establishment; (ii)bags used to segregate food or merchandise that could damage or contaminate other food or merchandise when placed together in a point-of-sale bag; (iii) laundry or dry-cleaner bags; (iv) bags holding prescription medication dispensed from a pharmacy; or (v)newspaper bags. (vi)plastic bags n mil o more th v (d) "Recyclable Paper Bag" means a paper bag that is 100 percent recyclable and contains at least 40% post-consumer recycled content, and displays the words "Recyclable" and "made from 40% post-consumer recycled content" in a visible manner on the outside of the bag. (e) "Reusable Bag" means a sewn baa with stitched handles that is svecifically designed for multiple reuse and that(1) is machine washable or is made of a material that can be cleaned or disinfected; and, (2) is either(a) made of natural fibers (such as cotton or linen); or(b) made of durable, non-toxic plastic other than volvethvlene or volvvinvl chloride that is Generally considered a food-grade material that is more than 5.0 mils thick. aJ&a-%with han or multpp?e ose and; W ast ' it tN&,rx,,,,a. (f) 'Retail Establishment" means any commercial enterprise selling goods, articles, food or personal services to the public, including but not limited to markets, restaurants, bars, take-out food purveyors, merchandise retailers, florists and galleries. 2 (g) "Degradable plastic bags" mean plastic bags that are comprised of a material that is capable of being rapidly decomposed by bacteria or other living organisms (biodegradable), light (photodegradable) under marine conditions (marine-degradable) as defined by ASTM or ISO standards. §115.03 Requirements (I)-Upon adoption of this OrdinanceRo/ginning July 1, 2017, no Single-use plastic bag shall be distributed, either with or without charge, to a customer at any Retail Establishment located in the Town,except for degradable plastic bags as noted in(2)below. (2)Retail Establishments may provide or sell to customers Recyclable Paper Bags, Degradable Plastic Bags, or Reusable Bags. D"1r blie Unformation publicizing the Bring Your Own Bag Ordinance and advising customers to wash Reusable Bags to prevent food-borne illness must be prominently displayed or communicated at the point of provision or sale. (3) Public information advising customers on the proper care and maintenance of reusable bags shall be available through the Public Health Department. (4) The Department shall have the authority to promulgate regulations to accomplish any of the provisions of this Section. §115.04 Exemption (1) The Director may exempt a Retail Establishment from the requirements of this Section for a period of up to six(6) months,upon a finding by the Director that the requirements of this Section would cause undue hardship to the Retail Establishment. An "undue hardship" shall only be found in circumstances where the Retail Establishment requires additional time in order to draw down an existing inventory of single-use plastic bags or paper bags which do not meet the definition of recyclable paper bags. Any Retail Establishment receiving an exemption shall file with the Director monthly reports on inventory reduction and remaining stocks. (2) Any Retail Establishment may apply for an exemption to the Director using forms provided by the Department, and shall allow the Director, or his or her designee, access to all information supporting its application. (3)The Director may approve the exemption request,in whole or in part,with or without conditions §115.05 Enforcement Town employees from time to time as designated by the Town Manager are empowered and authorized to enforce this ordinance. This Ordinance may be enforced through any lawful means in law or in equity, including, but not limited to, non-criminal disposition pursuant to G.L. c. 40, §21D the Town's Ordinances. If non-criminal disposition is 3 elected, then any Retail Establishment which violates any provision of this Ordinance shall be subject to the following penalties: First Offense: $100 fine Second Offense: $200 fine Third and Subsequent Offenses: $300 fine each Each day or portion thereof shall constitute a separate offense. If more than one, each condition violated shall constitute a separate offense. §115.06 Severabilitv If any portion of this Section is declared to be invalid, the remainder shall continue to be in full force and effect. Council Member I hereby certify that at a regular meeting of the Town Council for which a quorum was present, the above Ordinance was adopted by a roll call vote of for, against, and 1 present on 92018. Marilyn W. Pronovost, Council Clerk Mark S. Sideris, Council President 4