Braintree #2234 -- Town cautioned that its proposed parking by qfa20129

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									Braintree Special Town Meeting of May 6, 2002 — Case # 2234

Case Comment

       The town is cautioned that its proposed parking regulations by-law that requires
       provisions to be made for future off-street connections with adjacent properties cannot
       compel an exchange of reciprocal easements by the owners of adjacent lots. Such a
       construction would be inconsistent with Section 7 of the Home Rule Amendment,
       which prohibits towns from enacting private or civil law governing civil relationships
       except as incident to an exercise of independent municipal power.

                                                  October 30, 2002


Joseph F. Powers, Town Clerk
1 J.F.K. Memorial Drive
Braintree, MA 02184

RE:    Braintree Special Town Meeting of May 6, 2002 — Case # 2234
       Warrant Articles # 10, 12, 13, and 14 (Zoning)

Dear Mr. Powers:

       Articles 10, 12, 13, and 14 - I return with the approval of this Office the amendments to
the town by-laws adopted under these Articles on the warrant for the Braintree town meeting that
convened on May 6, 2002.

       Article 13 - The amendments adopted under Article 13 add a new Section 135-815,
which establishes off- street parking regulations for the Village Zoning District. The new
Section 135-815 provides as follows:

       1)        Parking Regulation

                 In addition to Site Plan Review guidelines for parking, the following criteria shall
                 be considered:

            a)   Parking areas shall be located to the side and rear of the structure. No parking
                 area shall be designed such that parking is within the required or authorized front
                 yard setback.

            b)   Parking areas of adjacent lots shall have reasonable and convenient off-street
                 vehicular connections. Where adjacent property has not been developed,
                 provisions shall be made for future off-street connections with adjacent
                 properties. Reserved strips of land to preclude such connections shall be
                 prohibited.
          c)   If a new use cannot meet minimum off-street parking requirements, then the
               SPGA may require, as part of a Special Permit, the payment of a fee by the
               applicant to allow the Town to provide such additional parking required off-street
               parking in lieu of the applicant providing required off-street parking.

          d)   If an existing use is changed in such a way that:

               (1) a change of use of all or any portion of a building or structure from a use of
               one parking class to a use of another parking class; or

               (2) an interior increase of floor area for which off-street parking must be
               provided and such required off street parking cannot be provided because of
               the non-availability of space in the zoning lot upon which such building or
               structure is located,

               then the SPGA may require, as part of a Special Permit, the payment of a fee by
               the applicant to allow the Town to provide such additional required off-street
               parking in lieu of the applicant providing required off-street parking.

          e)   The fee to be charged shall be an annual fee (to be determined by the Planning
               Board at a public hearing) per space for each parking space required. The fee
               shall be payable in accordance with the Planning Board’s administrative policies.

        In approving Section 135-815, we offer the following comments. The introductory
clause in Section 1 includes the phrase “shall be considered,” which suggests that what follows is
elective in character. In other words, the local board need only “consider” the criteria in
subsections (a) through (e). However, including the phrase “shall be” and “shall have” in
subsections (a) through (e) seems inconsistent with the elective character of the first part of
Section 1. Thus, it is unclear whether the criteria in Section 1 are mandatory or directory.

        Subsection 1 (b) pertains to off-street vehicular connections. In approving
subsection (1) (b), we caution the town that it cannot compel an exchange of reciprocal
easements by the owners of adjacent lots. Moreover, the last sentence of subsection 1 (b) cannot
be construed to restrict the alienation of property. Such a construction would be inconsistent
with Section 7 of the Home Rule Amendment, which prohibits towns from enacting private or
civil law governing civil relationships except as incident to an exercise of an independent
municipal power.

       In approving subsection (d), we construe the words “and such required off street parking
cannot be provided because of non-availability of space in the zoning lot upon which such
building or structure is located,” found in subsection (d) (2) as applying to both
subsection (d) (1) and to the preceding words in subsection (d) (2).

        Lastly, we call your attention to subsections (c) and (e), which pertain to fees to be
charged if the off-street parking requirements cannot be met. Subsections (c) and (e) do not
provide how much will be charged or how the money will be used. We presume that the town
will establish a fee base that does not result in an unlawful tax, and that the fees will be
calculated to be consistent with the town’s parking needs created by the property in question.
The town may wish to amend its by-law to address the issues and concerns raised in this letter.
We suggest that the town discuss these issues in more detail with town counsel.

                                             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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