Massachusetts Town Meeting Votes on Environmental Issues
Overview about the passage of bylaws, regulations, purchase of Land and other Articles at Town Meeting
The Buzzards Bay NEP often works with town officials and citizen groups on developing environmentally related bylaws, regulations, or articles related to the purchase of land or restoration of the environment. Over the years we have found a number of issues that frequently cause confusion, even among experienced town meeting members and elected and appointed town officials. One of these issues relates to whether an article requires a simple majority or super-majority (generally 2/3) vote. Another issue is whether an environmental bylaw is best developed as a general bylaw, or a zoning bylaw, or can just be accomplished by a regulation change with no town meeting vote. We have set up this page to explain the basics about passing laws at Town Meeting, changing regulations, the process of acquiring lands, and to direct citizens and municipal officials to the appropriate laws or definitive Commonwealth of Massachusetts information websites.
Basics about Town Meeting in Massachusetts
Under the Massachusetts Constitution (including the so-called “Home Rule” Amendment) and under Massachusetts General Laws, municipal government can be incorporated using several different models. All municipalities have an Executive Branch that is responsible for the administration and policies of government, and a Legislative Branch, which is responsible for the passage of laws and appropriating funds for operation of government. Municipalities incorporated as Cities in Massachusetts have a Mayor representing the Executive Branch, and a City Council representing the legislative branch. A municipality must have at least 12,000 persons to incorporate as a city, but it is uncommon for municipalities with populations less than 40,000 to do so. Most municipalities in Massachusetts with less than 50,000 persons have adopted the town form of government with a Board of Selectmen as the Executive Branch and Town Meeting as the Legislative Branch. A few municipalities in Massachusetts, mostly with populations between 15,000 to 50,000 persons, have adopted an intermediate form of government. For example, The town of Barnstable has a board of Selectmen, but instead of Town Meeting, has a 12 member Town Council. In the Buzzards Bay watershed, all municipalities are incorporated as towns, except for the City of New Bedford and the City of Fall River (which has only a portion of its land in the Buzzards Bay watershed).
Town meetings are generally held a minimum of twice a year: once in the spring and once in the fall. Generally the most important purpose of the Spring Town Meeting is to vote the budget for the next fiscal year, which for all municipalities in Massachusetts starts July 1st. The warrant Towns may adopt one of two forms of town meeting. Smaller towns typically have Open Town Meetings. In Open Town Meeting, any registered voter of that town can attend and vote on any matter before town meeting. Many larger towns have adopted representative town meeting. In representative town meeting, each voting precinct elects town meeting members to vote at town meeting.
Town Meeting Warrants and Articles
Each town meeting has an agenda called a Warrant. The warrant is composed of a number of Warrant Articles. An article is just an item that must be voted. It may be a new town law (called a Bylaw), a vote to spend or borrow money, a vote to take an action, or a vote to approve a ballot question for all residents to vote upon, or a vote merely to express an opinion or support a town policy. The Massachusetts Secretary of State has an excellent web page Citizen’s Guide to Town Meetings that explains many of the fundamental processes of town meeting.
Generally only the Board of Selectmen in towns will decide what may appear as ballot questions in town elections, or as warrant articles at town meeting. The exception to this rule is that many town charters allow for local petition initiatives to initiate warrant articles or ballot questions. Boards of Selectmen generally have to include these petition articles on the warrant, irrespective of whether they agree with them, or think they are not “legal.” Call your town clerk for more information.
Majority versus Super-majority Votes
All town meeting articles require only a simple majority (>50%) unless there is a specific State Law or Town Bylaw that requires a Super-Majority vote at town meeting. Most super majority laws specify a 2/3 vote, but there are some rare exceptions. Most Town Meeting warrant articles, including articles to spend money and adoption of general bylaws, require only simple majority votes.
The most common warrant articles that the Massachusetts General Laws require a 2/3 vote for passage are as follows:
- Zoning Bylaws (towns) or Zoning Ordinances (cities)
- Borrowing money (but not spending money) for any purposes (Chapter 44: Section 7.)
- Amendments to a town charter (Chapter 43B: Section 10.)
- Adoption or change of zoning ordinances or zoning by-laws;( Chapter 40A: Section 5.)
- Establishment of historic districts(Chapter 40C: Section 3.)
- Tax override procedures (Chapter 59: Section 21C.)
- Regional school districts purchasing land (Chapter 71: Section 16.)
- Establishment of agricultural incentive areas (Chapter 40L: Section 4.)
- Rescission of restrictions on Article 97 lands (For example to remove a conservation restriction or agriculture preservation restriction on town land. Interestingly it only requires a simple majority to approve a restriction.)
- Taking of Land or Easements by eminent domain (several Chapters)
These are rules of thumb, and some articles can be complicated by other factors. Town officials should always consult with Town Council or even the Attorney General’s Office or Secretary of the Commonwealth if there is any doubt about when a super majority is required.
Incidentally, a Board of Selectmen, which is the Board that must approve the printing of the Warrant, cannot arbitrarily decide that a 2/3 vote is required on an article if it is not required by law because they would be taking jurisdictional authority and powers from the legislative branch.
For a group of citizens to place an article on the warrant, you could either obtain 10 signatures to bring it before the Selectmen for a vote (a petition article), or obtain 100 signatures to bypass the Board of Selectmen (petition override), and automatically bring the article to town meeting.
Acquisition of Land
A town can acquire land for open space protection or other purposes by several mechanisms, some of which do not require a vote of town meeting. If a land acquisition goes to town meeting, it may require a 2/3 vote, or it may require a simple majority. The type of vote required depends on the process and the applicable laws. Only two boards can automatically buy or own land. These are the Board of Selectmen and Conservation Commission. Conservation Commissions own land solely for conservation purposes. Selectmen own land on behalf of the town, and these open space lands could be used for parks, schools, fire stations, playing fields, or other purposes as allowed by the laws and funds with which they were acquired. Municipalities may also have authorities (like a Housing authority) that can own land, and regional school districts can also own land (but municipal School Departments do not). Below are more details about the various types of land acquisitions common in communities.
Chapter 40 Section 8 (Conservation Commission) Acquisitions
Conservation Commissions have the most flexibility of any town board in acquiring and purchasing land. Land acquired under this law automatically becomes Conservation Land subject to Article 97 of the Constitution. However, to help ensure that that protection of these lands remains clear to future generations, it is important that the Conservation Commission record itself as the owner of the land (not the town, or the Board of Selectmen), and the deed should explicitly state the land was purchased pursuant to Massachusetts General Law Chapter 40 Section 8. We have seen errors in the recording of ownership of land, and these errors could result in land conflicts in the future in a community.
Land acquisition by Conservation Commissions under this section can be made through several mechanisms:
“Said commission may receive gifts, bequests or devises of personal property or interests in real property of the kinds mentioned below in the name of the city or town, subject to the approval of the city council in a city or of the selectmen in a town. It may purchase interests in such land with sums available to it. If insufficient funds are available or other reasons so require, a city council or a town meeting may raise or transfer funds so that the commission may acquire in the name of the city or town by option, purchase, lease or otherwise the fee in such land or water rights, conservation restrictions, easements or other contractual rights including conveyances on conditions or with limitations or reversions, as may be necessary to acquire, maintain, improve, protect, limit the future use of or otherwise conserve and properly utilize open spaces in land and water areas within its city or town, and it shall manage and control the same. For the purposes of this section a city or town may, upon the written request of the commission, take by eminent domain under chapter seventy-nine, the fee or any lesser interest in any land or waters located in such city or town, provided such taking has first been approved by a two-thirds vote of the city council or a two-thirds vote of an annual or special town meeting, which land and waters shall thereupon be under the jurisdiction and control of the commission. Upon a like vote, a city or town may expend monies in the fund, if any, established under the provisions of this section for the purpose of paying, in whole or in part, any damages for which such city or town may be liable by reason of any such taking”
- Conservation Commissions can directly purchase land using money in their Conservation Fund.
Conservation Commissions can do this without approval of the Board of Selectmen or Town Meeting. Land could be purchased for as little as $1 under this provision. If the Conservation Commission does not have enough funds, they can raise funds or request donations for a purchase. These funds should be placed in the Conservation Commission’s Conservation Fund.
- Accept Land Donations for Conservation purposes.
The acceptance of lands by the Conservation Commission however is subject to the approval of the Board of Selectmen (but not town meeting).
- Purchase lands through appropriation of town meeting
If Con Coms does not have sufficient funds in their Conservation Account, they can seek funds through town meeting. The appropriation of funds from another account, appropriation, or free cash requires a simple majority vote. However, if the town must borrow (float a bond) for the purchase, then a two-thirds vote is required.
- Have the Board of Selectmen purchase lands from a Selectmen’s account on behalf of the Conservation Commission.
Such expenditure would not require a town meeting vote. This is theoretically possible, but probably rarely occurs.
- Request Land be taken by eminent domain for Conservation Purposes.
Eminent domain takings always requires a 2/3 vote for town meeting. Eminent domain takings by Conservation Commissions are infrequent, but could occur if a fish way was not be properly maintained, or as part of a restoration project. Several years ago the Marion Conservation Commission took land for a bike path to implement their Open Space Plans. As with purchases, it is important that lands in these takings be recorded as owned by the Conservation Commission pursuant to this section of law. Most land takings approved at town meeting are requests by the Board of Selectmen for road projects or easement takings for utilities.
Board of Selectmen Land Acquisitions
The Board of Selectmen is one of the most important owners and acquirers of land in their community. Boards of Selectmen can negotiate with an owner to purchase land. If the purchase of land is out of a Board of Selectmen’s account, the Selectmen can make the purchase with a simple majority of town meeting vote. New appropriations for the purchase of land, or actions to transfer funds among accounts also require only a majority vote of town meeting. If the Selectmen acquire land by eminent domain taking (this includes the taking of easements), or if funds must be borrowed to purchase lands, then a 2/3 vote of town meeting is required. These are generalizations based on state law. In any given community, it is possible that local town bylaws or city ordinances could impose additional limitations on land acquisitions.
Environmental Laws: Zoning Bylaws versus General Bylaws versus Regulations.
Towns can better protect the environment amending existing or adopting new laws or regulations. Of course, better enforcement of existing laws and regulations should always be the first consideration, but if enforcement of existing laws do not achieve the environmental protection goals of a community, then new laws or regulations can be considered.
The easiest process to enact environmental protection measures is to amend existing local regulations. Many local bylaws and some state laws allow a town board to adopt regulations consistent with their authorizing law. These new or revised regulations do not require approval of town meeting. Instead only a majority vote of the board adopting them. For example, many local wetland bylaws authorize Conservation Commissions to adopt local regulations that help them implement the town bylaw. Such regulations are used for example to establish a buffer zone to wetlands under which the Commission has the authority to review projects, or to establish setback distances for construction. A Conservation Commission can amend or add to these regulations by simply have a public hearing, then voting for the regulation change. Boards of Health, under MGL 110, have sweeping authority to pass regulations to protect “public health and the environment.”. This is how smoking bans in restaurants and public places are put into place.
Town officials should first determine whether or not existing bylaws or regulation can be amended to achieve the town’s goals. In the case of bylaws, it is typically easier to persuade town meeting to amend an existing bylaw than to adopt a new bylaw. However, if amendments to existing bylaws result in a too complicated or contradictory bylaw, then the best strategy may be to present town meeting with a completely new bylaw. A town board should consult with town council about the feasibility of amending existing bylaws.
When developing a new local bylaw, it is possible to write it as a General Bylaw, or to write it as a Zoning Bylaw. A good example of this is the fact that local nitrogen management strategy bylaws could be written either way. Which type of bylaw is the best fit depends on many factors, but the choice of the bylaw type is often a political decision based on the level of local support for action. This is because a Zoning Bylaw requires a super-majority (2/3 vote) of town meeting, whereas General Bylaw requires a simple majority. But many other factors come into play besides the quantum of vote needed at town meeting, including who enforces the law, whether or not variances or grandfathering is desired, and whether or not the towns want blanket restrictions or restrictions on a permit-by-permit basis.
Below is a summary of characteristics of the two types of bylaw.
|Aspect||Zoning Bylaws||General Bylaws|
|Town Meeting Quantum||2/3||1/2|
|Applicability||Applies only to land uses and structures (i.e. related to building permits, subdivision of land, etc.)||Can control any activity (e.g. type of wastewater treatment)|
|MGL Authorization||MGL Chapter 40a Sec 5||MGL Chapter 43B sect. 13|
|Enforcement||Building Inspector unless specified||Must be specified|
|Variances||Provided by Zoning Board of appeals||Should be specified, and enacted by authorizing board|
|Appeal||Now Mostly to Land Court||Superior Court|
|Grandfathering||Yes, but expires 8 years after new law for unbuilt properties||None unless written into the law|
|Maps||Required for all Zoning and Overlay Districts||Can apply to geographic areas, but avoid the term “District”, best strategy for town wide requirements.|
|Strengths||sets absolutes as to what is unacceptable||Can cover anything.|
|Weaknesses||Does not apply to “as of right” development or ANRs (Approval not required)||Must rely on the permitting process where there are few absolutes and often impossible to deny.|