New gas utility bylaw passes muster with AG

By Chris Maza

LONGMEADOW – The Attorney General Maura Healy’s Office recently approved most of a zoning bylaw change aimed at creating restrictions for natural gas facilities in town.

The bylaw change was approved by voters at the May 14 Town Meeting by a 2/3 majority vote. While the Attorney General supported the majority of the bylaw, fining guidelines were not upheld and subsequently deleted. Under the bylaw approved by voters, the town would have been able to fine violators up to $1,000 per day for each day a violation continues. However, that portion of the bylaw was found to be out of compliance with the state’s guidelines.

“… we approve the majority of the natural gas utilities bylaw adopted under Article 42 because it presents no clear conflict with state law or the constitution,” a letter signed by Healy and prepared by Assistant Attorney General Kelli Gunagan, reads. “However, we disapprove and delete the portion of the bylaw that purports to impose a $1,000 fine for violations because this text conflicts with the statutorily permitted fine amounts for by-law violations in [Massachusetts General Law chapter 40, section 32].”

Under that section, fines are limited to $300 for each offense.

“For this reason, we disapprove and delete the above-quoted text in bold and underline from Section I that would have allowed for a $1,000 fine,” the letter states.

The Attorney General’s Office also identified other areas of concern in the bylaw, but noted the Attorney General has a “limited power of disapproval” and disapprovals must be related to “inconsistencies between the bylaw and the state Constitution or laws.”

Specifically, the Attorney General saw potential pitfalls with Section C of the bylaw. That section requires a comprehensive health impact assessment with recommendations to mitigate health risks in a “designated perimeter” of the proposed facility as well as baseline testing of background noise on “any site which may have a high impact on noise” in order to obtain a special permit from the Planning Board.

“Although we approve Article XV based upon our limited standard of review of town bylaws, the bylaw may be susceptible to a court challenge on the ground that it is impermissibly vague,” the letter states. “The town may wish to amend the by-law at a future Town Meeting to insert definitions for these phrases in order to avoid a vagueness challenge.”

The Attorney General also issued a warning related to Section G of the bylaw, which states the Planning Board may consider whether first responders – namely police and fire personnel – have proper training and equipment to respond to an emergency at the facility.

“We recognize the town’s legitimate concerns about the ability of first responders to respond to emergencies at a facility. However, the Town is prohibited from imposing fees or costs for fire suppression services on a special permit applicant,” the letter states, citing precedent-setting laws that determined municipalities have no authority to recover expenses incurred while fighting a fire and that imposing fees for fire protection for owners of certain buildings was unlawful. “Thus, in considering whether first responders have the requisite training and equipment to respond to emergencies at a facility, the Town may not require the applicant to pay for necessary fire protection training, personnel or equipment.”

The Attorney General’s Office also disapproved Article 38 of the May 14 Town Meeting warrant, which amended the town’s General Bylaws to update functions and duties of the Historic District Commission. According to the Attorney General, the town failed to comply with the requirements of Massachusetts General Law chapter 40C, section 3 for amendments to a historic district bylaw.

“Namely, the Town did not submit the amendment to the historic district commission for its review and recommendation,” the letter states. “Because the town did not follow the procedures … for amending an existing historic district by-law, we must disapprove and delete Article 38.”