Leyden Special Town Meeting of November 5 by L136wS97

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									Leyden Special Town Meeting of November 5, 2002 — Case # 2368

Case Comment

       A proposed by-law that allowed the height of the town hall and any church to be
       increased by the addition or extension of a cupola or spire to a level that is visually
       consistent with town halls and meetinghouses in New England, without allowing other
       buildings or structures to be so extended, is disapproved and deleted because it is
       inconsistent with the uniformity provisions of G.L. c. 40A, § 4. The text provides
       preferential treatment to property solely on the basis of ownership – owned by the town
       or by a religious organization – rather than on the physical or neighborhood
       characteristics of the property. The difference in treatment turns not on traditional zoning
       considerations but solely on the identity of the property's owner.


                                         April 17, 2003

Robert E. Hardesty, Town Clerk
16 West Leyden Road
Leyden, MA 01337

RE:    Leyden Special Town Meeting of November 5, 2002 — Case # 2368
       Warrant Article # 4 (Zoning)

Dear Mr. Hardesty:

       Article 4 - I return with the approval of this Office the amendments to the town by-laws
adopted under this Article on the warrant for the Leyden town meeting that convened on
November 5, 2002.

        On March 6, 2003, the Attorney General elected to proceed under the provisions of
Chapter 299 of the Acts of 2000 (which amends G.L. c. 40, § 32) by giving notice of defects in
the procedure of adopting the by-law amendments voted under the above article. You have
certified that the notice was posted and published in accordance with the provisions of Chapter
299, and that no claims were filed with the Office of the Town Clerk within 21 days of
publication. For this reason, the Attorney General is authorized by Chapter 299 to waive the
defect in the amendments submitted to him for approval under G.L. c. 40, § 32.

         The amendments adopted under Article 4 add a new Personal Wireless Service Facilities
by-law to the town’s zoning by-laws. Section 03.3 pertains to dimensional requirements for
facilities. Specifically, Subsection 03.3.2 pertains to the height of building-mounted facilities
and provides as follows:
       Building-mounted personal wireless service facilities shall not project more than ten feet
       above the height of an existing building nor project more than ten feet above the height
       limit of the zoning district within which the facility is located. Personal wireless service
       facilities may locate on a building that is legally non-conforming with respect to height,
       provided that the facilities do not project above the existing building height, unless a
       purpose-built concealment is designated to increase the height of the structure in an
       architecturally appropriate fashion, in which case the structure height may be extended by
       up to ten feet, expect that, upon approval of the Special Permit Granting Authority, the
       height of the Town Hall or any church may be increased by the addition or extension of a
       cupola and spire to such level as is visually consistent with town halls and meetinghouses
       in New England setting.

(Emphasis added.)

        We disapprove and delete the above underlined text from Subsection 03.3.2 as
inconsistent with the uniformity provision of G.L. c. 40A, § 4. [Disapproval # 1 of 1] The first
sentence of Section 4 states: “Any zoning ordinance or by-law which divides cities and towns
into districts shall be uniform within the district for each class or kind of structures or uses
permitted.” The above underlined text allows the height of the town hall and any church to be
increased by the addition or extension of a cupola or spire to a level that is visually consistent
with town halls and meetinghouses in New England, while other buildings or structures cannot
be increased by a cupola or spire to such a level that is visually consistent with town halls and
meetinghouses in New England. Thus, the above underlined text provides preferential treatment
to property solely on the basis of ownership – owned by the town or by a religious organization –
rather than on the physical or neighborhood characteristics of the property. One of two
otherwise identical parcels located in the same underlying district would thus be deprived of the
clear benefits of preferential treatment on the sole basis of the identity of its owner rather than on
the basis of some unifying physical characteristic that justifies providing the preferential
treatment to another parcel. In the case of telecommunication towers, for example, factors such
as elevation, proximity to residential uses and structures, and distribution patterns suitable for
cell signal coverage, might appropriately provide the key that would earn a parcel preferential
treatment or that would exclude a parcel from such treatment. This difference in treatment turns
not on traditional zoning considerations but solely on the identity of the property’s owner. We
deem this to be a violation of the uniformity principle articulated in G.L. c. 40A, § 4. See SCIT,
Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984). For this reason, we
disapprove and delete the above underlined text from Subsection 03.3.2.

        We remind the town that our disapproval of the above-underlined text in Section 03.3.2
in no way infringes upon the protections accorded to religious uses under G.L. c. 40A, § 3. See
Martin v. The Corporation of the Presiding Bishop of the Church of Jesus Chris of Latter-Day
Saints, 434 Mass. 141 (2001).

      We also call your attention to Section 03.3.3., which pertains to the height of structure
mounted facilities and provides as follows:

       Existing structures (see definition), including existing structures that are legally
       non-conforming with respect to height, may at the discretion of the Planning
       Board, be extended up to 20 feet in height by the installation of antennas and
       structure mounts on the structure, provided that the extension is compatible with
       the structure and its surroundings, including, but not limited to, residential, scenic,
       and Historic District assets.

(Emphasis added.)

        In approving Section 03.3.3, we point out that there is no definition for “existing
structure” in the proposed personal wireless communications by-law nor in the definition section
of the town’s zoning by-laws. Thus, it is unclear what the town is referring to when its provides
“see definition.” The town may wish to insert a definition for “existing structure” or delete the
above-underlined text from Section 03.3.3 at a future town meeting.

Note: General Laws Chapter 40, Section 32, requires that both general and zoning by-laws and
      by-law amendments, once approved by the Attorney General, must be posted and published
      by the Town Clerk before they may be deemed to take effect. Once this statutory duty is
      fulfilled, unless a later effective date is prescribed in the bylaw, (1) general by-laws and
      amendments take effect on the date that these posting and publishing requirements are
      satisfied, and (2) zoning by-laws and amendments are deemed to take effect back on the
      date they are voted by Town Meeting.

       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.

                                                  Very truly yours,

                                                  THOMAS F. REILLY
                                                  ATTORNEY GENERAL


                                                  by: Kelli E. Lawrence, Assistant Attorney General
                                                  By-law Coordinator, Municipal Law Unit
                                                  1350 Main Street, 4th Floor
                                                  Springfield, MA 01103-1629
                                                  (413) 784-1240, x 117


enc.
pc:

Town Counsel


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