Gary Ayrassian

City Planner

AttleboroCity Hall

…..

Re: Opinion #___ 2004

Dear Gary:

I am writing in response to your inquiry about procedures available to the planning board in situations where a developer offers to donate money to the City for sidewalk construction outside of a proposed subdivision.

BACKGROUND

  1. Section 7.8 of the Planning Board Regulations requires developers to construct sidewalks on both sides of a proposed roadway
  1. You can envision a situation in the future where a developer asks for a waiver of the sidewalk requirement and proposes to make a donation to the City for sidewalk construction in another section of the City where sidewalks would be more beneficial.

ISSUES

Does the planning board have authority to grant a waiver of sidewalks in situations where a developer offers to make a donation to the City for constructions of sidewalks elsewhere?

What are the financial requirements for holding and spending a gift for sidewalk construction?

DISCUSSION

The planning board has authority under M.G.L. c. 41, § 81 R to waive strict compliance with its regulations where it determines that the waiver would be in the public interest and not inconsistent with the intent and purposes of the subdivision control law. The planning board enjoys broad discretion in addressing waiver requests. Musto v. Planning Bd. Of Medfield 54 Mass. App. Ct. 831 (2002). Consequently, the Attleboro planning board would be well within its authority in granting a sidewalk waiver provided it finds that the waiver would serve the public interest and would not defeat the purposes of the subdivision control law.

As for a payment from the developer, I find no authority which allows the board to compel payment of money from a developer in exchange for a waiver. On the other hand, where the developer initiates the proposal of a financial gift to the City, the planning board may take the gift into account in deciding whether a sidewalk waiver would serve the public interest. If the planning board determines that a sidewalk waiver is appropriate, it may accept a voluntary gift from a developer for a sidewalk construction in other parts of the City under M.G.L. c. 44, § 53A which states in relevant part:

An officer or department of any city … may accept grants or gifts of funds from … a private corporation, or an individual … and in the case of any … grant or gift may expend such funds for the purposes of such grant or gift in cities … with the approval of the mayor and city council... Notwithstanding the provisions of section fifty-three, any amounts so received by an officer or department of a city, … shall be deposited with the treasurer of such city… and held as a separate account and may be expended as aforesaid by such officer or department receiving the grant or gift without further appropriation…

Thus if a planning board were to accept a financial gift for sidewalk construction, the funds should be held by the treasurer in a separate gift account. The money could not be spent for any purpose other than sidewalk construction and the mayor and council would have to approve any expenditure of money in the gift account.

CONCLUSION

A planning board may accept a voluntary gift from a developer to be used for sidewalk construction in a part of the City outside of a proposed subdivision. The planning board may consider the gift in deciding whether a sidewalk waiver would serve the public interest. The planning board, however, may not compel such a gift. Similarly, even when a developer offers to make such a gift the planning board is not obligated to grant a sidewalk waiver. In the event that such a gift is accepted by the planning board, it should be held in a gift account by the treasurer for sidewalk construction. Any expenditure from the account requires approval of the mayor and city council.

I hope that you find this information useful. Please contact me if I may be of any further assistance.

Sincerely,

Robert S. Mangiaratti

City Solicitor

Cc: Mayor

City Council

Treasurer

Auditor