Welcome to our very own version of March Madness, the Miyares and Harrington LLPnewsletter! Let’s hope that your bracket is still more-or-less intact by the time you settle in for a quick glance at the latest in municipal law.
 
Our firm is pleased to announce that Ivria Glass Fried has been named counsel. Ivria will continue to provide her expertise in a truly breathtaking gamut of municipal law areas.
 
On March 7, Ivria and Ray Miyares led a workshop sponsored by the Berkshire Regional Planning Commission, entitled “Short-Term Rentals: From Airbnb to Zoning.” A copy of their presentation hand-out is available here.

This month's newsletter features:
  • General vs. Zoning Ordinance or Bylaw – How to Choose?

  • Improper Filing with Supervisor of Public Records Is No Defense to an Open Meeting Law Complaint

  • Charging Fees for Discretionary Segregation and Redaction of Documents

  • Rapid Fire Updates – Check out the new Department of Revenue’s 2019-1 Bulletin Regarding Short Term Rentals, Marijuana Revenues, and PEG funds

  • Trivia!
General vs. Zoning Ordinance or Bylaw – How to Choose?
Every municipality has, at one time or another, faced the problem of deciding whether to adopt a particular requirement as a general ordinance or bylaw, rather than as a zoning requirement. Zoning ordinances and bylaws are more difficult to adopt because they require a 2/3 vote, and they also generally do not apply to pre-existing uses and structures. So Cities and Towns often prefer, if they can, to use general ordinances and bylaws instead.
 
The proliferation of marijuana ordinances and bylaws in recent years has provided no shortage of examples, and the Land Court was presented with one in Valley Green Grow, Inc. v. Town of Charlton. The Town had amended its Zoning Bylaw in 2018 to allow adult marijuana uses in certain districts by special permit. Citizens unhappy with that vote submitted a petition for the fall Special Town Meeting to rescind the Zoning Bylaw change and to adopt a General Bylaw to ban adult use marijuana establishments throughout the Town. The rescission of the Zoning Bylaw failed to receive the required 2/3 majority to pass, but the General Bylaw prohibiting all adult use marijuana required only a majority vote, and passed.
 
In approving the General Bylaw, the Attorney General’s Municipal Law Unit stated that it was beyond its review authority to disapprove a bylaw merely because it is in conflict with other Town bylaws. A challenge to the General Bylaw thus followed in Land Court. As framed by the Court, the question presented in that case whether the General Bylaw was actually in the nature of a zoning bylaw and therefore invalid for failure to follow the process set forth in M.G.L. c.40A, §5 for the adoption of zoning changes.
 
The Court noted the general rule that not all regulation of land use must be embodied in zoning ordinances or bylaws. For example, most communities have earth removal regulations as part of their general bylaws or ordinances. So how to determine whether a matter should be regulated by a general or zoning bylaw?
 
 The Court relied on precedent to answer that question by posing another question: How has the municipality regulated the matter in the past? “A general bylaw may only regulate a subject if there is no history in the municipality of the subject being treated under zoning.”
 
If a municipality chooses, in the first instance, to regulate adult use marijuana establishments under a general bylaw, it may do so. But once it has regulated them by zoning, it can change the regulation only by amending its zoning bylaw. Since Charlton had, just a few months earlier, chosen to regulate adult use marijuana through its Zoning Bylaw, its effort to ban adult use marijuana through adoption of a General Bylaw was invalid.
Improper Filing with Supervisor of Public Records Is No Defense to an Untimely Open Meeting Law Complaint
As municipal boards and committees are increasingly aware, Open Meeting Law complaints must be filed with the public body within 30 days of the alleged violation. M.G.L.c.30A, §23(b); 940 CMR 29.05(1). If the alleged violation could not have been known at the time it occurred, then the complaint must be filed with the public body within 30 days of the date on which the alleged violation could reasonably have been discovered. 940 CMR 29.05(3). In a recent decision, the Attorney General held that an alleged violation relating to executive session minutes was not reasonably discoverable until the complainant received a response to a Public Records appeal from the Supervisor of Public Records.
 
In OML Determination 2019-1 (available here), an individual filed a public records request for the Shirley Board of Selectmen’s executive session minutes. The Town Clerk responded that “many of these executive session minutes have not been completed and/or approved by the Board of Selectmen or redacted.” The Town never submitted a subsequent response.
 
The requester then appealed to the Supervisor of Public Records, asserting that the Board failed to comply with the Public Records Law. The Supervisor closed the appeal, however, declining “to provide a determination as to the status of the executive session minutes” and referred the complainant to the Attorney General’s office.
 
Matters related to the sufficiency of an executive session or whether executive session minutes are ripe for release fall squarely within the scope of the Open Meeting Law and, therefore, must be appealed to the Attorney General. In response to the appeal that was subsequently filed, the Board argued that the complaint was untimely because it was filed 58 days after the Board’s alleged failure to respond to the request. The Attorney General disagreed, however, holding that the violation was not reasonably discoverable until the Supervisor of Public Records responded to the Public Records Law complaint.
 
This decision not only takes the burden away from the complainant to understand what law is applicable in a given situation, but also greatly extends the time to challenge a public body’s action as it pertains to executive session minutes.
Charging Fees for Discretionary Segregation and Redaction of Documents
The Public Records Law permits a Record Access Officer to assess reasonable fees for the production of a record. However, the requestor may “not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the supervisor of records….” M.G.L. c.66, §10(d)(ii).
 
The Supervisor of Records in the Secretary of State’s Office is interpreting the phrase “required by law” to mean that the right to assess fees applies only to a non-discretionary segregation or redaction. Thus, unless the request implicates Exemption (a) of the Public Records Law, which permits the withholding of records specifically or by necessary implication exempted from disclosure by statute, her approval is required to assess fees. In her interpretation, Exemption (a) is the only one that is not discretionary.
 
Practically speaking, this means that, if a School Department wants to charge to redact information protected under the Federal Education Records Protection Act (FERPA), it may do so. But, if a DPW wants to charge to redact records under the privacy exemption, it would need the Supervisor’s blessing.

Rapid Fire Updates: Check out the New Department of Revenue's 2019-1 Bulletin (available here) Regarding Short-Term Rentals, Marijuana Revenues, and PEG Funds
Estimated short term rentals and marijuana related revenues
 
Since marijuana and short-term rental revenue streams are new to municipal finance, and there is no historical information available to help with estimating future revenue, the Department will require written documentation for any estimated marijuana and short-term rental revenue.

Public, Educational, and Governmental Access Cable Related Fund
 
The Department is not extending the deadline to comply with PEG Access account requirements. The Department will give communities until the close of Fiscal Year 2019 to consider the available accounting options and take all necessary actions to implement it. All unobligated funds in accounts treated otherwise at the end of fiscal year 2019 will be closed to the General Fund as part of the June 30, 2019 free cash certification.

Trivia!
 
Question: According to the 2010 U.S. census, which Massachusetts municipality is the most Irish town in the United States?
 
Last issue's question: What percentage of Massachusetts land is forested?
 
                     a) 62%
                     b) 48%
                     c) 77%
 
Answer: The answer is a. Fun fact: More of the state is now forested than was the case in the mid-19th century.
 
Winner: Congratulations to Wayne Davis, Town Moderator in the Town of Carlisle.


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