Municiple Law FAQs

How is Land Use Regulated in Massachusetts?

home_slider_02  Municipal  Law 101 home slider 02Laws:

  • STATE
    • Subdivision Control Act
    • Zoning Act
    • Wetlands Protection Act & Regulations
    • State Environmental Code – Title V
    • Environmental Policy Act (MEPA)
    • Coastal Zone Management
    • State Building Code
  • LOCAL
    • Zoning Bylaw
    • Wetlands Protection Bylaw & Local Wetlands Regs.
    • Planning Bd. Rules & Regs.
    • Board of Health Regs.


Regulatory Scheme
:

  • Massachusetts employs state law, with local supplementation of that law (the most important local law being a municipality’s zoning bylaw).
  • Most permitting issues will be handled at the municipality level, with rights of appeal to state agencies and/or the courts.
  • Local applications are made to (and applications to multiple boards are often required):
    • Planning Board – subdivisions of property, site plan review, special permits
    • Zoning Board of Appeals – variances, special permits
    • Conservation Commission – permits to work w/in 100 feet of wetlands or water bodies & 200 feet of rivers
    • Board of Health – septic system permits, food establishment licensing
    • Sewer Commission – sewer connection permit
    • Water Commission – water connection permit
    • Dept. of Public Works – roadway issues
    • Building Inspector – building and occupancy permits
    • Board of Selectmen – liquor & common victualler licenses; other licenses
  • Possible State permitting needed:
    • Highways – curb cut permit
    • EOEA/MEPA Unit – ENF/MEPA review
    • Coastal Zone Management – coastal project review
    • DTE – communications towers
    • ABCC – liquor licenses
    • DPU – utility facility siting
  • Appeals:
    • Planning Board decisions – to ZBA or Court
    • ZBA decisions – to Court
    • Bldg. Inspector/Zoning Enforcement Officer decisions – to ZBA
    • Conservation Commission decisions – to DEP and/or Court
    • Board of Health decisions – to DEP and/or Court
    • Board of Selectmen liquor license decisions – to ABCC
    • State Agency Decisions – agency’s adjudicatory review process, then Court

 

How is Municipal Government Organized in Massachusetts?

  • Massachusetts municipal law allows for various forms of municipal government. County government is weak or non-existent compared to other states, but counties form the framework for our judicial organizational structure. All municipalities are either incorporated as cities or as towns. Villages do not exist as distinct legal entitles, but are historic and geographic areas within a municipality. Within the definition of “town” are various structural options. Some larger “towns” in the South Shore region have recently become cities legally, but maintain use of the word “Town” in their name. Regional government structures are not overly common, and are usually limited to school districts and utility authorities.
  • In my geographic area of practice, for permitting issues, I usually deal with town governments following this basic form:
    • Board of Selectmen – Elected executive officers of the town, handling some licensing issues and controlling the purse strings over town departments and litigation.
    • Other Boards – Towns generally have a number of standing and ad hoc boards to perform a variety of administrative, permitting and advisory tasks. Some are created by and enforce state law (such as planning, zoning, conservation and health). Boards such as these enforce and administer laws, bylaws and permits, and thus have substantive power. Most of these other boards are appointed; some are separately elected.
    • Towns also employ a large number of professional staff and employees to perform the functions of government. The Bldg. Inspector/Zoning Enforcement Officer, Health Agent, Conservation Agent and Planning Board/ZBA consultants are key people in land use development permitting.
    • Administration – Most towns now have a day-to-day professional administrator to assist the Selectmen in running the town. Whether categorized as a town manager or town administrator, the key is the various powers devolved onto this person by town bylaw. Unless a large-scale project is involved, these officials tend not to involve themselves in land use projects and leave those matters to the boards and their consultants.
    • School Departments & School Committees operate separate from the rest of town government. The chief administrator of the department is the Superintendent, and the department is overseen by an elected School Committee.
    • In towns where Town Meeting is still employed, Town Meeting is the legislative body of the town. All towns hold an annual town meeting, usually in the spring, and can call other special town meetings under certain rules. Special town meetings are now becoming routine in some towns in the fall. Town Meeting is required to approve appropriations, approve the budget and tax rate, and approve bylaw changes. It also can deal with a number of policy issues. Town meetings can be either: Open – any registered voter may attend and vote; Representative – voters elect representatives from districts; anyone can go to town meeting and speak but only the reps. cast the votes. Matters brought before Town Meeting are set forth on the Warrant, and each individual item is called an Article. Selectmen have control over the content and order of the warrant. However, the Selectmen cannot remove or alter citizen petition articles. Citizens can put articles on the warrant via petition: for the annual meeting, 10 citizens, for a special meeting, 100 citizens.
  • Proposition 2 1/2:
  • Proposition 2 1/2 was a statewide citizens initiative passed in 1980 that limited how much property taxes, the primary source of municipal funding, could rise from year to year. The law, however, allows towns to go beyond the 2 1/2% limit, in other words “override” the limit, upon certain conditions.
  • General override – An override to approve the town’s budget in a given year that does not fit within the 2 1/2 limits. This type of override permanently raises the levy limit by the amount of the override, meaning that the next year, the 2 1/2% is figured on the amount of taxes raised the previous year including the override amount.
  • Debt Exclusion override – An one-time override that allows a project to be funded by debt to be taken on even though servicing that debt will put the town over the 2 1/2 limit each year. It has the effect of excluding the debt service from the town’s levy limit calculation.
  • Capital Exclusion override – A single year, one-time override to pay for a capital item; an alternative to paying for the item via debt.
  • Overrides must first be approved by Town Meeting, then the matter must also go to the ballot box, where a majority must approve it.

 

Municipal Lawyer