Amendments to Right to Farm bylaw from Attorney General
Warrant Article #1 Case # 4483 (Right to Farm)
Letter from the Office of the Attorney General
The Commonwealth of Massachusetts
Office of the Attorney General
October 22, 2007
Barbara Swann, Town Clerk
Monterey, MA 01245
RE:
Monterey Special Town Meeting of September 7, 2007 -Case # 4483 Warrant Article # 1 (General)
Dear Ms. Swann:
Article 1 - I return with the approval of this Office the amendments to the town by-laws adopted under this Article on the warrant for the Monterey special town meeting that convened on September 7, 2007, except as provided below.
The amendments adopted under Article 1 add to the town's general by-laws a new Right to Farm By-law. Section 2 of the proposed by-law would have defined the term "Farming" in pertinent part as follows:
"Farming" shall encompass activities including, but not limited to, the following:
- Construction and use of farm structures and facilities for the storage of animal wastes, farm equipment, pesticides, fertilizers, agricultural products and livestock, for the processing of animal wastes and agricultural products, for the sale of agricultural products, and for the use of farm labor, as permitted by local and state building codes and regulations; including construction and maintenance of fences.
(Emphasis added.)
We disapprove and delete the above underlined text as inconsistent with the provisions of the State Building Code. [Disapproval # 1 of 2) Beginning with Chapter 802 of the Acts of 1972, as amended by Chapter 541 of the Acts of 1974, the Legislature eliminated local building codes, intending thereby to create a state-wide "comprehensive" state building code applicable uniformly throughout all the communities of the Commonwealth. Today, any town seeking to enforce regulations more restrictive than those currently imposed under the State Building Code must request that the State Board of Regulations and Standards adopt such regulation.
G.L. c. 143, § 98. The Board will grant such a request only upon a finding, after conducting a public hearing, "that more restrictive standards are reasonably necessary because of special conditions prevailing within such city or town and that such standards conform with accepted national and local engineering and fire prevention practices, with public safety, and with the general purposes of a statewide building code. .. ". Id.
As stated above, towns in the Commonwealth are precluded from having local "building codes." Thus, it is inconsistent with state law for the proposed by-law to refer to "local" building codes. Therefore, we disapprove and delete the above underlined text from the definition of "farming."
We next call the town's attention to Section 4, which pertains to the effective date of the proposed by-law and would have provided as follows:
This by-law becomes effective upon filing with the Massachusetts Attorney General. (Emphasis added.)
We disapprove and delete Section 4 as inconsistent with G.L. 40, § 32. [Disapproval # 2 of 2) Section 32 provides in pertinent part:
Before a by-law or an amendment thereto takes effect it shall also be published in a town bulletin or pamphlet, copies of which shall be posted in at least five public places in the town; and if the town is divided into precincts, copies shall be posted in one or more public places in each precinct of the town; or instead of such publishing in a town bulletin or pamphlet and such posting, copies thereof may be published at least twice at least one week apart in a newspaper of general circulation in the town.
The effective date of a by-law is governed by Section 32. A by-law takes effect once it is approved by our Office and posted and published by the town clerk in accordance with Section 32. Town of Concord v. Attorney General, 336 Mass. 17, 20-21 (1957). The by-law amendments adopted under Article 1 will not take effect until all of these requirements have been satisfied. Thus, it is inconsistent with state law for the proposed by-law to provide that its provisions take effect upon approval by the Attorney General. Therefore, we disapprove and delete Section 4.
Note: Under G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the town has first satisfied the posting/publishing requirements of this section. 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.
If the Attorney General has disapproved and deleted one or more portions of any by-law or by-law amendment submitted for approval, only those portions approved are to be posted and published pursuant to G.L. c. 40, § 32. We ask that you forward to us a copy of the final text of the by-law or by-law amendments reflecting any such deletion. It will be sufficient to send us a copy of the text posted and published by the Town Clerk pursuant to this statute.
Nothing in the Attorney General's approval authorizes an exemption from any applicable state law or regulation governing the subject of the by-law submitted for approval.
Very truly yours,
Martha Coakley
Attorney General
By: Kelli E. Gunagan, Assistant Attorney General By-law Coordinator, Municipal Law Unit