4189

							              ENDORSEMENT OF THE ATTORNEY GENERAL
      The following by-law(s) or by-law amendment(s) have been submitted to the
Attorney General on the date indicated below along with the Town’s request for approval
pursuant to the General Laws Chapter 40, Section 32.

 TOWN                                           NANTUCKET
 CASE #                                         4189

 TOWN MEETING                                   Annual Town Meeting of 04/03/06

 PACKET RECEIVED                                02/26/07

 DATE REVIEW PERIOD EXPIRES                     05/27/07
    * By-laws (90 days)
 FINAL ACTION TAKEN                             03/27/07



  Article     Article              Subject of Article                  Endorsement of the
   ID #        Type                                                     Attorney General


 51          General        Sewer District Map Changes -           Approved in Part 03/27/07
                            Text

 53          General        Town Sewer District Map                Approved 03/27/07
                            Change - Somerset Avenue

 56          General        Town Sewer District Map                Approved 03/27/07
                            Change - Monomoy Creek
                            Road
 51          Map                                                   Approved 03/27/07

 53          Map                                                   Approved 03/27/07

 56          Map                                                   Approved 03/27/07


Case Comment

      A proposed general by-law places certain listed properties within the town’s sewer
      district. Two of the properties included within Town Meeting’s vote were not included in
      the warrant article. This is inconsistent with G.L. c. 39, § 10, which requires the warrant
      article to list with substantial certainty the subjects to be acted upon at the meeting. Since
       the two properties were not listed on the warrant article, the Attorney General
       disapproves that portion of the by-law as outside the scope of the warrant article.


                                              March 27, 2007


Catherine Flanagan Stover, Town Clerk
16 Broad Street
Nantucket, MA 02554

RE:    Nantucket Annual Town Meeting of April 3, 2006 — Case # 4189
       Warrant Articles # 51, 53, and 56 (General)

Dear Ms. Stover:

       Articles 53 and 56 - I return with the approval of this Office the amendments to the
town by-laws adopted under these Articles on the warrant for the Nantucket Annual town
meeting that convened on April 3, 2006, and the maps pertaining to Articles 53 and 56.
       Article 51 - I return with the approval of this Office the amendments to the town by-
laws adopted under this Article and the map pertaining to it, except as provided below.

        The warrant article for Article 51 sought to add certain listed properties to the town’s
Sewer District. The vote under Article 51 was a vote to amend the general by-laws Section 41.3,
“Sewer Districts” by adding the new text. As amended, Section 41.3 provides in pertinent part
as follows [new text in bold]:

       A. Town Sewer District: an area outlined in blue on a map entitled “Comprehensive
       Wastewater Management Plan, (Proposed) TOWN SEWER DISTRICT,” . . . dated
       March 2004, or as shown in an additional area outlined in blue on a supplemental map
       entitled Article 51, 2006 Annual Town Meeting Additional to the Town Sewer District
       dated as of March 7, 2006, Nantucket, Massachusetts” . . . .

       B. Siasconset Sewer District: an area outlined in blue on a map entitled: Comprehensive
       Wastewater Management Plan, (Proposed) SIASCONSET SEWER DISTRICT,” . . .
       dated March, 2004 (on file in the office of the Board of Selectmen), or as shown in an
       additional area outlined in blue on a supplemental map entitled “Article 51, 2006
       Annual Town Meeting Additions to the Siasconset Sewer District dated as of March
       7, 2006, Nantucket, Massachusetts,” . . . .

(Emphasis added.)

         The warrant article for Article 51 sought to place certain listed properties in the town’s
sewer districts. The vote under Article 51 was a vote to amend the text of Section 41.3, “Sewer
Districts” by referencing the maps adopted under Article 51 of the 2006 Annual Town Meeting.
It is not clear from the vote under Article 51 whether all or some of the properties listed in the
Warrant Article were placed in the town’s sewer districts. Moreover, it is unclear whether the
vote under Article 51 places additional properties that were not listed in the Warrant Article in
the town’s sewer districts. Because the vote under the Article as proposed by the Finance
Committee was not framed in terms of the article and because the vote did not specify the lots
being included within in blue on a map entitled “Article 51, 2006 Annual Town Meeting
Additional to the Town Sewer District dated as of March 7, 2006, Nantucket, Massachusetts” or
as shown in an additional area outlined in blue on a supplemental map entitled “Article 51, 2006
Annual Town Meeting Additions to the Siasconset Sewer District dated as of March 7, 2006,
Nantucket, Massachusetts,” we were unable to conclude from the materials submitted to us
whether the lots affected by the amendments area limited - as they must be - to just those lots
identified in the text of Warrant Article 51. However, the town provided us with an annotated
version of the sewer maps with the specific parcels identified and those parcels match the parcels
listed in Warrant Article 51. The parcels matched the properties listed in the Warrant Article 51,
except in two instances. Town Meeting voted to place properties identified as Map 54, Parcels
285 and 287. However land identified as Map 54, Parcels 285 and 287 were not listed in the
warrant article. We disapprove and delete from the vote under Article 51 the placing of land
identified as Map 54, Parcels 285 and 287 as being outside the “scope” of the warrant article and
thus inconsistent with G.L. c. 39,
§ 10. [Disapproval # 1 of 1]

        General Laws, Chapter 39, Section 10, requires that town meetings be called pursuant to
a warrant that includes, among other things, the subjects to be acted upon at the meeting. This
requirement allows voters to be notified of the nature of the matters to which town meeting is
authorized to deal. Burlington v. Dunn, 318 Mass. 216, 219 (1945). Section 10 is complied with
if the warrant indicates “with substantial certainty the nature of the business to be acted on.”
Tuckerman v. Moynihan, 82 Mass. 562, 565, (1933), quoting, Coffin v. Lawrence, 143 Mass.
110, 112 (1886) “The articles . . . are the mere abstracts which are to be laid before the
inhabitants for their action.” Tuckerman, 82 Mass. at 565. Matters incidental to and connected
with such propositions are proper for their consideration and action. Matters of which they have
substantial and intelligent notice may properly be dealt with under the warrant articles. Id. at
565. Thus, Section 10 precludes action on any subject that is not included in the warrant.

         Nowhere in Warrant Article 51 was there any mention of placing the land identified on
Map 54, Parcels 285 and 287. By including more land to be placed into the town’s sewer
districts the vote under Article 51 impermissibly expands the scope of Warrant Article 51. In
short, the town meeting warrant did not adequately “warn” the citizens of the land to be placed in
the town’s sewer districts. For these reasons, we disapprove and delete that portion of the vote
under Article 51 that purports to place the land identified on Map 54, Parcels 285 and 287. We
point out that substantively, the placing of such property in the town’s sewer districts not be
inconsistent with state law. If the town were to adopt such changes under the appropriate
warrant article at a future town meeting, the town could anticipate our approval.

        Lastly, in approving the amendments adopted under Articles 53 and 56 and partially
approving the amendments adopted under Article 51, we remind the town of the requirements of
G.L. c. 40, § 32. Section 32 pertains to the by-law review process. Specifically, Section 32
provides in pertinent part as follows:

       Except to the extent that a zoning by-law may take effect as provided in section five of
       chapter forty A, before a by-law takes effect it shall be approved by the attorney general
       or ninety days shall have elapsed without action by the attorney general after the clerk of
       the town in which a by-law has been adopted has submitted to the attorney general a
       certified copy of such by-law with a request for its approval, a statement clearly
       explaining the proposed by-law, including maps and plans if necessary, and adequate
       proof that all of the procedural requirements for the adoption of such by-law have been
       complied with. Such request and proof shall be submitted by the town clerk within thirty
       days after final adjournment of the town meeting at which such by-law was adopted. If
       the town clerk fails to so submit such request and proof within such thirty days, the
       selectmen, within fifteen days thereafter, may submit a certified copy of such by-law with
       a request for its approval, a statement explaining the proposed by-law, including maps
       and plans, if necessary, and adequate proof that all procedural requirements for the
       adoption of such by-law has been complied with. . . . Before a by-law or an amendment
       thereto takes effect it shall also be published in a town bulletin or pamphlet, copies of
       which shall be posted in at least five public places in the town; and if the town is divided
       into precincts, copies shall be posted in one or more public places in each precinct of the
       town; or instead of such publishing in a town bulletin or pamphlet and such posting,
       copies thereof may be published at least twice at least one week apart in a newspaper of
       general circulation in the town.

(Emphasis added.)

        General Laws Chapter 40, Section 32, requires the town clerk to submit proposed by-law
amendments to the Attorney General for review and approval thirty days after the final
adjournment of town meeting. The amendments voted under Articles 51, 53, and 56 were
adopted at the April 6, 2006, Annual Town Meeting but not received by our Office until
February 26, 2007. The failure to submit proposed by-law amendments to the Attorney General
in accordance with G.L. c. 40, § 32, affects the effective date of the by-laws. Therefore, as you
are aware, the by-laws adopted under Articles 51, 53, and 56 have not taken effect and will not
take effect until the posting and publication requirements set out in Section 32 have been
satisfied. We suggest that you discuss this issue in more detail with your town counsel.

Note: Under G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the town has
      first satisfied the posting/publishing requirements of this section. Once this statutory duty
      is fulfilled, (1) general by-laws and amendments take effect on the date that these posting
      and publishing requirements are satisfied unless a later effective date is prescribed in the
      by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the
      date they were voted by Town Meeting, unless a later effective date is prescribed in the by-
      law.

       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.

       Nothing in the Attorney General’s approval authorizes an exemption from any applicable
       state law or regulation governing the subject of the by-law submitted for approval.
               Very truly yours,

               MARTHA COAKLEY
               ATTORNEY GENERAL


               by: Kelli E. Gunagan, 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