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Town counsel flags legal concern with Article 72; moderator to append home-rule option
Summary
Town counsel told the moderator that Article 72's proposed increase to a two-thirds vote for certain Historic District Commission actions may conflict with the commission's enabling legislation; the moderator said she will allow language enabling a home rule petition to be appended so the attorney general can rule.
Town counsel raised concerns about the legal basis for Article 72, which would change the voting requirement to two-thirds for certain Historic District Commission (HDC) matters, and the moderator said she will include language in the motion that would permit a home rule petition if the attorney general determines a bylaw is inadequate.
John Georgio, the town's counsel, told the conference he initially reviewed Article 72 as a bylaw amendment but later concluded the article has implications for the HDC's enabling legislation. "There is nothing in the enabling legislation of the HDC that provides for anything other than a simple majority vote," he said, adding that a bylaw could be construed as inconsistent with the special act that created the HDC.
The moderator explained the practical approach: the motion may include language authorizing a home rule petition if the attorney general finds the bylaw insufficient. "If the attorney general says you can't do this without a home rule petition, then we've included language that would allow a home rule petition to be filed," she said.
Town counsel cautioned that attorney general approval is "necessary to effectuate the bylaw, but it's not dispositive of any underlying legal issues," noting that approval would not preclude a future legal challenge in court.
A participant asked whether the bylaw, if approved by the attorney general, would be "fine". Georgio answered that an AG approval is not dispositive and that subsequent legal challenges could still occur.
The moderator and counsel concluded there is no short-term way to resolve the legal question before Monday other than to include the home-rule language or to accept the risk of later challenge.
