THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
CENTRAL MASSACHUSETTS DIVISION
10 MECHANIC STREET, SUITE 301
WORCESTER, MA 01608
(508) 792-7600
(508) 795-1991 fax
www.mass.gov/ago
May 15, 2013
Michael Palmer, Town Clerk
Town of Falmouth
59 Town Hall Square
Falmouth, MA 02540
RE:
Falmouth Annual Town Meeting of November 13, 2012 - Case # 6565
Warrant Article # 4 (Zoning)
Warrant Article # 7 (General) 1
Dear Mr. Palmer:
Article 7 – The Legislature has recently made clear that the regulation of plant nutrient
(including nitrogen) applications is primarily a matter for the Department of Agricultural
Resources, and not a city or town (with some exceptions not applicable here and explained
below). See Chapter 262 of the Acts of 2012. For this reason, we must disapprove and delete
Falmouth’s proposed by-law to regulate nitrogen applications, adopted under Article 7, because
the proposed by-law conflicts with this legislation.
We emphasize that our disapproval of Article 7 in no way implies any position on the
policy views that led to the passage of Falmouth’s by-law amendment.2 The Attorney General’s
limited standard of review requires her to approve or disapprove by-laws based solely on their
consistency with state and federal law, not on any policy views she may have on the subject
matter or wisdom of the by-law. Amherst v. Attorney General, 398 Mass. 793, 795-96, 798-99
1
We remind the Town that we have previously approved the charter amendments adopted under Articles 8-22, and
the zoning by-law amendments adopted under Article 4, on the warrant for the annual town meeting which
convened on November 13, 2012. (See Decision issued on December 18, 2012 in Case # 6564 and Decision issued
March 25, 2013 on Case # 6565).
2
We acknowledge the May 14, 2013 letter from the Ocean River Institute in support of the by-law, and the 12,389
concerned individuals who signed on to the letter. This letter has assisted us to understand the important policy
issues which likely motivated Falmouth to adopt the by-law. Although the goal of controlling nitrogen run-off to
prevent fish kills appears laudable, this objective must be pursued in accordance with state law governing the
subject, as explained in this decision.
1
(1986). “In assessing the inconsistency of local enactments with the General Laws, ‘[t]he
legislative intent to preclude local action must be clear.’ ” St. George Greek Orthodox Cathedral
of Western Mass., Inc. v. Fire Department of Springfield, 462 Mass. 120, 125-126 (2012)
(quoting Bloom v. Worcester, 363 Mass. 136, 154 (1973)). This intent can be either express or
inferred. Local legislative action “is precluded either where the Legislature has made an explicit
indication of its intention in this respect, or the purpose of State legislation would be frustrated
[by a local enactment] so as to warrant an inference that the Legislature intended to preempt the
field.” Id. at 126 (internal citations and quotations omitted).
This decision briefly describes the by-law amendments and Chapter 262, and then
explains why, governed as we are by the Attorney General’s limited standard of review of town
by-laws under G.L. c. 40, § 32, we must nevertheless disapprove the by-law amendments
adopted under Article 7 because they conflict with Chapter 262.
I.
Description of the By-law.
The amendments adopted under Article 7 propose to add a new section 237-1, “Nitrogen
Control Bylaw” to the Town’s general by-laws. The proposed by-law is intended to regulate “the
outdoor application of nitrogen in order to reduce the overall amount of excess nitrogen entering
the town’s Resource Area as defined in the Wetlands Protection Bylaw (Chapter 235; Section 2)
and regulations.” (¶ 1, “Purpose.”). The by-law applies to and regulates “all applications of
nitrogen through fertilizer within the Town of Falmouth.”
The by-law prohibits the application of nitrogen between October 16 and April 14
“unless specifically designated by the Town Department of Natural Resources or the Board of
Selectmen.” The by-law also prohibits the application of nitrogen to any impervious surfaces
(parking lots, driveways, etc.). The by-law further prohibits the application of nitrogen directly
before or during a “heavy rain event,” and prohibits the application of nitrogen within 100 feet of
Resource Areas as defined in Falmouth’s Wetlands Regulations FWR 10.02 (1) (a-d). The
“enforcement authority” is designated as the Director of Natural Resources or his designee.
The application of nitrogen for the following activities is exempted from the by-law’s
prohibitions: agriculture and horticulture uses; golf courses (with some exceptions); indoor and
outdoor gardening; establishment of new vegetation in the first growing season or repairing of
turf after substantial damage; and yard waste compost that is primarily organic in nature and
applied to improve the physical condition of soil.
II.
Summary of Chapter 262.
Chapter 262 of the Acts of 2012 (“Chapter 262”), signed into law by the Governor on
August 29, 2012, amends various sections of Chapter 128, “Agriculture.” Chapter 262 amends
Section 2, “Certain Powers and Duties Defined,” to make clear the grant of authority to the
Commonwealth’s Department of Agricultural Resources (“Department”) to enforce and regulate
the application of plant nutrients (including nitrogen), as follows:
k. Maintain authority to regulate and enforce the registration and application of
plant nutrients put on or in soil to improve the quality or quantity of plant growth,
2
including, but not limited to, fertilizer, manure and micronutrients in the
commonwealth.
The department shall promulgate regulations that specify when plant nutrients
may be applied and locations in which plant nutrients shall not be applied. Subject to
appropriation, the department may also develop regulations regarding the use of plant
nutrients designed to mitigate significant risks to human health and the environment.
The department may limit the scope of those regulations regionally as appropriate. The
department shall work in conjunction with the University of Massachusetts Amherst
Extension to ensure any regulations of the department relative to plant nutrients are
consistent with the program’s published information, educational materials and other
public outreach programs relative to nutrient management and fertilizer guidelines.3
Chapter 262 also authorizes the Department to establish penalties for violations of the
regulations, and establishes an appeal process.
Section 8 of Chapter 262 of the Acts of 2012 includes a “grandfather clause” ensuring the
continued enforceability of nutrient-management and fertilizer guideline by-laws adopted prior
to July 31, 2012, strongly indicating that all such town by-laws adopted on or after July 31, 2012
are not enforceable:
Section 8. Notwithstanding subsection (k) of section 2 of chapter 128 of the
General Laws, any rule, regulation, ordinance or by-law relative to nutrient
management and fertilizer guidelines: (i) of a city or town in existence prior to July 31,
2012, shall remain enforceable by that city or town….4
Moreover, the phrase “[n]otwithstanding subsection (k) of section 2 of chapter 128 of
3
Chapter 262 directs DAR to issue regulations by January 1, 2014. No regulations have been published as of the
date of this decision.
4
Section 8 of Chapter 262 also provides (with emphasis added) that a “rule, regulation, ordinance or by-law relative
to nutrient management and fertilizer guidelines: . . . (ii) specific to sewerage sludge of a city or town in existence
prior to January 1, 2013, shall remain enforceable by that city or town.” But that exception is not applicable here.
In addition, Section 9 of Chapter 262 allows for certain “rule[s], regulation[s], ordinance[s] or by-law[s] relative
to nutrient management and fertilizer guidelines” to remain enforceable without regard to the date of their adoption
(although the context makes clear that section 9 was meant to apply to future enactments) . However, Section 9
applies only to those provisions adopted pursuant to Chapter 561 of the Acts of 1973 (“An Act Establishing the
Nantucket Planning And Economic Development Commission”); Chapter 831 of the Acts of 1977 (“An Act Further
Regulating the Protection of the Land And Waters Of The Island Of Martha's Vineyard”); Chapter 716 of the Acts
of 1989 (“An Act Establishing The Cape Cod Commission”); or “in accordance with a regional water resources
management plan under Chapter 312 of the Acts of 2008.” Further, such provisions must not be less restrictive than
the regulations adopted by the Department under Section 1 of Chapter 262 (i.e., G.L. c. 128, § 2(k)), and must be
drafted “in conjunction with the University of Massachusetts Amherst Extension.” Falmouth’s proposed by-law
does not qualify under any of these exemptions, and is thus not enforceable. And the fact that Section 9 allows for
future regulation by specified other entities (in shorthand terms, regional entities) “notwithstanding” G.L. c. 128, §
2(k), and thus as an exception to its general rule, further buttresses the conclusion that G.L. c. 128, § 2(k)’s general
rule precludes such future regulation by other entities, such as municipalities.
3
the general laws” indicates that this provision is an exception to the general rule stated in
G.L. c. 128, § 2(k). “[A]n exception from the coverage of a statute is ordinarily to be
construed narrowly so as to prevent the purposes of the statute from being rendered
ineffective.” Martin v. Rent Control Bd. of Cambridge, 19 Mass. App. Ct. 745, 747 (1985).
The purpose and general rule of G.L. c. 128, § 2(k), is that the Department (not cities and
towns) shall “[m]aintain authority to regulate and enforce the registration and application of
plant nutrients . . . .” If that general rule were not intended to deprive towns of authority to
adopt by-laws relative to nutrient management and fertilizer guidelines, then the Legislature
would have had no need to enact a grandfather provision—an exception to G.L. c. 128, §
2(k) -- specifically preserving the enforceability of any such by-laws in existence prior to
July 31, 2012 (before the enactment of G.L. c. 128, § 2(k)). Put slightly differently, if
section 2(k) left room for further town regulation of such matters, then section 8’s
grandfather clause would essentially be superfluous—a result contrary to the basic principle
that a “statute must be construed so that no part is inoperative or superfluous.” Reading CoOp. Bank v. Suffolk Construction Co., 464 Mass. 543, 552 (2013). “In sum, the
‘notwithstanding’ clause takes on meaning only when we assume that the new Act has made
some change in the law to which the ‘notwithstanding’ statement is noting a specific
exception.” Attorney General v. Commissioner of Ins., 450 Mass. 311, 320-21 (2008)
(quoting Shomberg v. United States, 348 U.S. 540, 546 (1955)).
The legislative history of Chapter 262, which is available in summary form at
http://www.malegislature.gov/Bills/187/House/H4306/History, confirms that, on and after July
31, 2012, municipalities were not intended to have authority to regulate the application of plant
nutrients (except in limited circumstances not applicable here – see note 3 infra). The legislation
began as 2011 House Bill No. 3270, see http://www.malegislature.gov/Bills/187/House/H3270,
which proposed to amend G.L. c. 128 by inserting a new Section 65A, including the following
text:
Any municipality may enact more stringent standards for the application of
fertilizer for lawn or non-agricultural turf than set forth in this section; provided,
however, that the municipality that enacts such standards after January 1, 2013 must
demonstrate to the [Department of Agricultural Resources] prior to enactment that
additional or more stringent standards are necessary to address water quality conditions.
Importantly, this text was deleted from the next version of the legislation, 2011 House
Bill No. 4306. (See http://www.malegislature.gov/Bills/187/House/H4306). The Legislature thus
specifically rejected the proposal to allow municipalities to adopt their own standards (including
by-laws such as this one) for the application of fertilizer. The final version adopted by the
Legislature, Chapter 262 of the Acts of 2012, demonstrates an intent to allow regulation only by
the Department, and specified other Commissions and entities (see Section 9 of Chapter 262), at
no less than the regional level, and only if consistent with UMass Amherst Extension standards.5
5
We have been informed that some legislators are of the view that Chapter 262 was intended to leave room for bylaws such as Falmouth’s. However, “[t]he statements of a legislator made after the statute was enacted are not
relevant in determining legislative intent.” Green v. Wyman-Gordon Co., 422 Mass. 551, 557 n.7 (1996); see
Administrative Justice of Housing Court Dept. v. Commissioner of Admin., 391 Mass. 198, 205 (1984) (“Evidence
4
as to statements attributed to individual legislators as to their motives or mixtures of motives in considering
legislation are not an appropriate source from which to discover the intent of the legislation.”).
5
III.
The Proposed By-law Conflicts With Chapter 262 of the Acts of 2012.
Because Falmouth’s proposed by-law purports to “regulate any and all applications of
nitrogen through fertilizer within the Town of Falmouth” (Section 2), and because it was not
adopted until November 13, 2012 (long after the July 31, 2012 cut-off date selected by the
Legislature), it is not enforceable based upon the clear implication of the language of Section 8
of Chapter 262, together with the language of G.L. c. 128, § 2(k), as enacted by Section 1 of
Chapter 262. Because the by-law conflicts with state law, the Attorney General must disapprove
it.
In the course of our review of Article 7 we have confirmed that the Department, too-based on the same statutory language and legislative history discussed above--interprets Chapter
262 of the Acts of 2012 as intended to preempt the field such that, on and after July 31, 2012, the
application of plant nutrients (including fertilizer) to soil would be regulated by the Department
at the state level (except in the limited circumstances outlined in Sections 8 and 9 of Chapter
262).6 Further, Chapter 262 requires the Department to work in conjunction with the UMass
Amherst Extension to ensure that the Department regulations are consistent with the UMass
program, and Section 9 of Chapter 262 imposes this same requirement on the specified entities
(not including municipalities) that are allowed to engage in future regulation, so long as such
regulation is “not less restrictive than regulations adopted by the [D]epartment[.]”7 To allow one
town to impose its own local regulations, without this coordination with the UMass Amherst
Extension program and without any requirement that such regulations be at least as restrictive as
Department regulations, would frustrate the purpose of Chapter 262 to conduct such regulation at
the state or regional level, in accordance with UMass Amherst Extension standards and a
statewide “floor” set by the Department. On this basis we must disapprove and delete the
amendments adopted under Article 7.
6
The Department’s view is not, of course, dispositive, but, based as it is on the language and history of Chapter 262,
it is nevertheless helpful. During the course of our review of Article 7 we received a communication from the
Falmouth Water Quality Management Committee asserting that, sometime prior to the signing of the town meeting
warrant on September 17, 2012, the Department, through its previous General Counsel, took the position that a town
by-law on this topic would not be preempted by Chapter 262. Such a prior opinion expressed on an apparently
informal basis during the by-law drafting process, and without any accompanying analysis that has been furnished to
us, is not part of the materials upon which the Attorney General must base her decision. The Attorney General’s
review of a by-law is based primarily if not exclusively on analysis of state and federal law together with the
materials that G.L. c. 40, § 32, requires a town to submit: “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.” Moreover,
G.L. c. 40, § 32 requires the Attorney General to make her own determination whether a proposed by-law is
consistent with state and federal law. In making this determination the Attorney General cannot be bound by
opinions or conclusions reportedly expressed by others.
7
We express no view about whether the Town’s proposed Article 7 is at least as restrictive as Department
regulations. Indeed, we could not do, as the Department has not yet issued such regulations and, under Section 10 of
Chapter 262, is not required to do so before January 1, 2014. The very fact that there is currently no way to make
this determination, which the Legislature plainly viewed as important to future regulation, is an additional indication
that the Legislature did not intend to allow further municipal regulation after the adoption of Chapter 262.
6
We recognize that, in adopting the proposed by-law, the Town was motivated by the
legitimate and understandable goal of “protect[ing] and improv[ing] the water quality of
Falmouth’s valuable estuaries.” (Section 1 of the proposed by-law). However, where the
Legislature has made a specific determination to vest this regulatory authority with the
Department, rather than cities and towns, the Town may not validly adopt (and we may not
approve) a by-law which conflicts with this legislative determination. St. George, 462 Mass. at
126 (local legislative action “is precluded . . . where . . . the purpose of State legislation would be
frustrated [by a local enactment] so as to warrant an inference that the Legislature intended to
preempt the field.”). The Town may wish to communicate with the Department during the
Department’s regulation-drafting process so that the Department is aware of any issues unique to
Falmouth. The Town may also wish to communicate its concerns to the Cape Cod Commission
as we are informed that the Commission is also in the process of drafting regulations as
authorized by Section 9 of Chapter 262.
Article 4 – We remind the Town that, in a decision issued March 25, 2013 we approved
the amendments adopted under Article 4.
Note: Pursuant to G.L. c. 40, § 32, neither general nor zoning by-laws take effect unless the Town
has first satisfied the posting/publishing requirements of that statute. Once this statutory
duty is fulfilled, (1) general by-laws and amendments take effect on the date 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 approved by the Town Meeting, unless a later effective date is prescribed in
the by-law.
Very truly yours,
MARTHA COAKLEY
ATTORNEY GENERAL
Margaret J. Hurley
by: Margaret J. Hurley, Assistant Attorney General
Chief, Central Massachusetts Division
Director, Municipal Law Unit
Ten Mechanic Street, Suite 301
Worcester, MA 01608
(508) 792-7600 x 4402
cc: Town Counsel Frank K. Duffy, Jr. (via electronic mail)
7