M.G.L. Info.

It’s been a long week, I hope everyone is getting ready for the first day of the Vernal Equinox (March 20, 2014 at 12:57 p.m. EDT, The Old Farmer’s Almanac) and Opening Day at Fenway Park (April 4, 2014 at 2:05 p.m.). I have been under the weather, unfortunately, and have not posted as I wrote that I would. My apologies, though I am glad to see people are reading this. I have been tweeting LNG pipeline articles daily @FayeAlkiewicz.

If you recall from my Sat., Feb. 15 post, I shared four emails I sent out to government officials. I received two responses and updated them on Feb. 19th. This week, I received the other two government official responses to post. This post will only have one response with background information I have found.

Environmental and Energy Affairs (EEA) Secretary Richard K. Sullivan Jr. of the Commonwealth of Mass. read my plea of:

Dear Mr. Secretary,

Please do not accept Kinder Morgan Inc. subsidiary, Tennessee Gas Pipeline, to conduct a survey in Western Mass. I live in Montague and attended last week’s town select board meeting.  TGP requested to the town they conduct a land survey in Millers Falls. The representative never showed and the select board denied permission. I now understand that they approached the Turners Falls Water Dept. to survey one of our ponds instead.
I have already sent an email out to TFWD requesting they do not accept the survey. I write to you to also discover, deny and use your jurisdiction to stop TGP from coming into Mass. please.
We cannot afford to have a water contamination crisis as Charleston, W. Va. is currently enduring. For TGP to survey our beautiful land & waters, it will become destroyed. Matter of fact, it would become an atrocity. We only have one earth, no replacement, no “get out of jail free card” like the Hasbro game, “Monopoly,” has.
Next, it seems that there’s a problem in our government. I read the posted final 2014 budget that the Commonwealth’s implementation of Public Law 93-52, Federal Safe Drinking Water Act of 1974, is only a million and a half dollars while the Office of EEA has $4.8 million budgeted while DCR has $23.3 million and DEP has $36.9 million in revenue. Meanwhile, the commonwealth’s 12 sheriff offices to run efficiently will receive over 348 million dollars. (A mere 281.5 million dollar difference.)
Therefore, I implore you to further investigate how you can protect our waters, our land and ultimately the people of Mass. with a low-budget. TGP is bad for the commonwealth and I believe you have the power to stop them. Thank you for your time.
Sincerely,
Jim Crowley responded for Secretary Sullivan’s office on Feb. 24th with:          Your comments have been forwarded.The statement below is what is being provided to those members of the media who inquire…..

The EFSB participates actively in the FERC proceeding and would be an intervenor at FERC when (and if) a project reaches that stage. As an intervenor, the EFSB represents the interests of the Commonwealth and its residents in FERC’s review of a project to ensure that environmental impacts are minimized and the public’s interest is served.

The DPU has two areas of jurisdiction that sometimes come into play with interstate pipeline projects.

1.       The project may require an exemption from local zoning ordinances for above-ground structures and seek such an exemption from the DPU pursuant to the Department’s authority under G.. c.40A section 3.

2.       To study the project proposal and prepare a filing for FERC, a pipeline company may need to survey the potential route of a pipeline. Depending on whether landowners agree to voluntarily allow such surveys, a pipeline company may seek authorization from the DPU under G.L. c.164 sections, 72A, 75B and 75D to enter onto a parcel to make such surveys.

In addition, the distribution companies would come before the DPU for contract approval.  The DPU looks at whether the company needs the capacity, what the alternatives are (energy efficiency, LNG etc etc).

Crowley’s response with acronymns and M.G.L. 40A, sect. 3 concerns me greatly. I looked up EFSB means Energy Facilities Siting Board; FERC means Federal Energy Regulatory Commission; and DPU means Department of Public Utilities. The EFSB needs to be explained in a different post. FERC is another big discussion. The DPU has great news as of Feb. 26th. See my next post.
However the Mass.General Law 50A,, sect. 3 stated the following:

Section 3. No zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, including those facilities for the sale of produce, wine and dairy products, provided that either during the months of June, July, August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee, 25 per cent of such products for sale, based on either gross sales dollars or volume, have been produced by the owner or lessee of the land on which the facility is located, or at least 25 per cent of such products for sale, based on either gross annual sales or annual volume, have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale, based upon either gross annual sales or annual volume, have been produced in Massachusetts on land other than that on which the facility is located, used for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, whether by the owner or lessee of the land on which the facility is located or by another, except that all such activities may be limited to parcels of 5 acres or more or to parcels 2 acres or more if the sale of products produced from the agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture use on the parcel annually generates at least $1,000 per acre based on gross sales dollars in area not zoned for agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel. No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to the General Laws. For the purposes of this section, the term “agriculture” shall be as defined in section 1A of chapter 128, and the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises.

No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building nor shall any such ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. Lands or structures used, or to be used by a public service corporation may be exempted in particular respects from the operation of a zoning ordinance or by-law if, upon petition of the corporation, the department of telecommunications and cable or the department of public utilities shall, after notice given pursuant to section eleven and public hearing in the town or city, determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public; provided however, that if lands or structures used or to be used by a public service corporation are located in more than one municipality such lands or structures may be exempted in particular respects from the operation of any zoning ordinance or by-law if, upon petition of the corporation, the department of telecommunications and cable or the department of public utilities shall after notice to all affected communities and public hearing in one of said municipalities, determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public. For the purpose of this section, the petition of a public service corporation relating to siting of a communications or cable television facility shall be filed with the department of telecommunications and cable. All other petitions shall be filed with the department of public utilities….

I deleted eight paragraphs that came after the above as they didn’t pertain to this subject.
Please visit https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter40A/Section3 for the full definition of Sect.3.

M.G.L. 164, sections Crowley mentioned are written as:

Section 72A. The department may upon petition authorize an electric company to enter upon lands of any person or corporation for the purpose of making a survey preliminary to eminent domain proceedings. The department shall give notice of the authorization granted, by registered mail, to the landowners involved at least five days prior to any entry by such electric company. The company entering upon any such lands shall be subject to liability for any damages occasioned thereby, to be recovered under chapter seventy-nine.

Section 75B. Any person, partnership, corporation or any other legal entity, organized under the laws of the commonwealth which shall desire to construct and operate a natural gas pipeline situated wholly within the commonwealth may qualify to do business within the commonwealth as a natural gas pipeline company after hearing upon a petition filed with the department and after the department has determined that such facilities are necessary for the purpose alleged and will serve the public convenience and is consistent with the public interest. Any person, partnership, corporation or any other legal entity, organized under the laws of the commonwealth or of any other state or of the United States which holds a certificate of public convenience and necessity issued under the provisions of chapter 15B of the United States Code which may be cited as the federal “Natural Gas Act” authorizing it to construct a natural gas transmission line and appurtenant facilities within the commonwealth, shall be considered as a natural gas pipeline company within the meaning of this chapter upon filing with the department a certified copy of such certificate.

Section 75D. The provisions of section seventy-two A shall be applicable to natural gas pipe line companies.

Note, LinkedIn showed he has a Bachelor degree in Business Administration from Northeastern University and he’s been at The State House for almost nine years as External Relations Coordinator and Tort Claims Coordinator. His phone number is listed as 617-626-2400. Yet his phone number is for matters such as: Prop 2 1/2 overrides, Chapters 61A & 61B, Legal staff and Personal property taxation.

It is easy to comprehend what Prop 2 1/2, Legal staff and Personal property taxation means. However, I had to dig for chapters 61A and 61B. I found a 14-page pdf from the Dept. of Revenue/ Division of Local Services, Property Type Classification Codes, Revised March, 2012 that defined the two chapters. On page eight of that pdf it said:

CHAPTER 61, 61A, 61B PROPERTY

Forest, Agricultural/Horticultural and Recreational lands valued according to M.G.L. Chapters 61, 61A
61B are not specifically included in any of the four major classifications. The commercial property tax
rate, however, is the applicable rate for land under these chapters.

CODE 6
Forest Land
601…… All land designated under Chapter 61
602…… Christmas Trees

CODE 7
Agricultural/Horticultural
All land that has been designated under Chapter 61A.
(Land devoted to this use must be in excess of 5 acres and meet other requirements of the law.)

CODE 8
Recreational Land
All property that has been designated under Chapter 61B. (If an area has more than one use according to
the codes below, use the code which represents the primary use of the land).
801 ……Hiking – trails or paths
802 ……Camping – areas with sites for overnight camping
803 ……Nature Study – areas specifically for nature study or observation
804 ……Boating – areas for recreational boating and supporting land facilities
805 ……Golfing – areas of land arranged as a golf course
806 ……Horseback Riding – trails or areas
807 ……Hunting – areas for the hunting of wildlife
808 ……Fishing Areas
809 ……Alpine Skiing – areas for “downhill” skiing
810 ……Nordic Skiing – areas for “cross-country” skiing
811 ……Swimming Areas
812 ……Picnicking Areas
813 ……Public Non-Commercial Flying – areas for gliding or hand-gliding
814 ……Target Shooting – areas for target shooting such as archery, skeet or approved fire-arms
815 ……Productive Woodland – woodlots

Therefore, Crowley seems to be one of many that decides taxes for The Town of Montague’s parks, water and forests.

Also, I found M.G.L. 61A with 24 sections on mass.gov. Section 14 piqued my interest as it said: Section 14. Land taxed under this chapter shall not be sold for, or converted to, residential, industrial or commercial use while so taxed or within 1 year after that time unless the city or town in which the land is located has been notified of the intent to sell for, or to convert to, that other use. 

The discontinuance of forest certification shall not, in itself, for the purposes of this section, be considered a conversion. Specific use of land for a residence for the owner, the owner’s spouse or a parent, grandparent, child, grandchild, or brother or sister of the owner, or surviving husband or wife of any deceased such relative, or for living quarters for any persons actively employed full-time in the agricultural or horticultural use of such land, shall not be a conversion for the purposes of this section, and a certificate of the board of assessors, recorded with the registry of deeds, shall conclusively establish that particular use.

Any notice of intent to sell for other use shall be accompanied by a statement of intent to sell, a statement of proposed use of the land, the location and acreage of land as shown on a map drawn at the scale of the assessors map in the city or town in which the land is situated, and the name, address and telephone number of the landowner.

Any notice of intent to sell for other use shall be accompanied by a certified copy of an executed purchase and sale agreement specifying the purchase price and all terms and conditions of the proposed sale, which is limited to only the property classified under this chapter, and which shall be a bona fide offer as described below.

Any notice of intent to sell for other use shall also be accompanied by any additional agreements or a statement of any additional consideration for any contiguous land under the same ownership, and not classified under this chapter, but sold or to be sold contemporaneously with the proposed sale.

For the purposes of this chapter, a bona fide offer to purchase shall mean a good faith offer, not dependent upon potential changes to current zoning or conditions or contingencies relating to the potential for, or the potential extent of, subdivision of the property for residential use or the potential for, or the potential extent of development of the property for industrial or commercial use, made by a party unaffiliated with the landowner for a fixed consideration payable upon delivery of the deed.

Any notice of intent to convert to other use shall be accompanied by a statement of intent to convert, a statement of proposed use of the land, the location and acreage of land as shown on a map drawn at the scale of the assessors map in the city or town in which the land is situated, the name, address and telephone number of the landowner and the landowner’s attorney, if any.

The notice of intent to sell or convert shall be sent by the landowner by certified mail or hand delivered to the mayor and city council of a city, or board of selectmen of a town, and in the case of either a city or a town, to its board of assessors, to its planning board and conservation commission, if any, and to the state forester.

A notarized affidavit that the landowner has mailed or delivered a notice of intent to sell or convert shall be conclusive evidence that the landowner has mailed the notice in the manner and at the time specified. Each affidavit shall have attached to it a copy of the notice of intent to which it relates.

The notice of intent to sell or convert shall be considered to have been duly mailed if addressed to the mayor and city council or board of selectmen in care of the city or town clerk; to the planning board and conservation commission if addressed to them directly; to the state forester if addressed to the commissioner of the department of conservation and recreation; and to the assessors if addressed to them directly.

If the notice of intent to sell or convert does not contain all of the material described above, then the town or city, within 30 days after receipt, shall notify the landowner in writing that notice is insufficient and does not comply.

For a period of 120 days after the day following the latest date of deposit in the United States mail of any notice which complies with this section, the city or town shall have, in the case of intended sale, a first refusal option to meet a bona fide offer to purchase the land.

In the case of intended or determined conversion not involving sale, the municipality shall have an option to purchase the land at full and fair market value to be determined by an impartial appraisal performed by a certified appraiser hired at the expense of the municipality or its assignee, the original appraisal to be completed and delivered to the landowner within 30 days after the notice of conversion to the municipality. In the event that the landowner is dissatisfied with the original appraisal, the landowner may, at the landowner’s expense, contract for a second appraisal, to be completed within 60 days after the delivery of the notice to convert. If, after completion of the second appraisal, the parties cannot agree on a consideration, the parties will contract with a mutually acceptable appraiser for a third appraisal whose cost will be borne equally by both parties. The third appraisal shall be delivered to both parties within 90 days after the notice of conversion to the municipality and shall be the final determination of consideration. Upon agreement of a consideration, the city or town shall then have 120 days to exercise its option. During the appraisal process, the landowner may revoke the intent to convert at any time and with no recourse to either party.

The option may be exercised only after a public hearing followed by written notice signed by the mayor or board of selectmen, mailed to the landowner by certified mail at the address that is specified in the notice of intent. Notice of public hearing shall be given in accordance with section 23B of chapter 39.

The notice of exercise shall also be recorded at the registry of deeds and shall contain the name of the record owner of the land and description of the premises adequate for identification of them.

The notice to the landowner of the city or town’s election to exercise its option shall be accompanied by a proposed purchase and sale contract or other agreement between the city or town and the landowner which, if executed, shall be fulfilled within a period of not more than 90 days after the date the contract or agreement, endorsed by the landowner, is returned by certified mail to the mayor or board of selectmen, or upon expiration of any extended period that the landowner has agreed to in writing, whichever is later.

At the public hearing or a further public hearing, the city or town may assign its option to a nonprofit conservation organization or to the commonwealth or any of its political subdivisions under the terms and conditions that the mayor or board of selectmen may consider appropriate. Notice of public hearing shall be given in accordance with section 23B of chapter 39.

The assignment shall be for the purpose of maintaining no less than 70 per cent of the land in use as forest land as defined in section 1, as agricultural and horticultural land as defined in sections 1 and 2 of chapter 61A or as recreation land as defined in section 1 of chapter 61B, and in no case shall the assignee develop a greater proportion of the land than was proposed by the developer whose offer gave rise to the assignment. All land other than land that is to be developed shall then be bound by a permanent deed restriction that meets the requirements of chapter 184.

If the first refusal option has been assigned to a nonprofit conservation organization or to the commonwealth or any of its political subdivisions as provided in this section, the mayor or board of selectmen shall provide written notice of assignment to the landowner.

The notice of assignment shall state the name and address of the organization or agency of the commonwealth which will exercise the option in addition to the terms and conditions of the assignment. The notice of assignment shall be recorded with the registry of deeds.

Failure to record either the notice of exercise or the notice of assignment within the 120 day period shall be conclusive evidence that the city or town has not exercised its option.

If the option has been assigned to a nonprofit conservation organization or to the commonwealth or any of its political subdivisions, the option may be exercised by the assignee only by written notice to the landowner signed by the assignee, mailed to the landowner by certified mail at the address that is specified in the notice of intent. The notice of exercise shall also be recorded with the registry of deeds and shall contain the name of the record owner of the land and description of the premises adequate for identification of them.

The notice of exercise to the landowner shall be accompanied by a proposed purchase and sale contract or other agreement between the assignee and landowner which, if executed, shall be fulfilled within a period of not more than 90 days, or upon expiration of any extended period the landowner has agreed to in writing, from the date the contract or agreement, endorsed by the landowner, is returned by certified mail to the assignee.

During the 120 day period, the city or town or its assignees, shall have the right, at reasonable times and upon reasonable notice, to enter upon the land for the purpose of surveying and inspecting the land, including, but not limited to, soil testing for purposes of Title V and the taking of water samples.

The city or town or its assignee shall have all rights assigned to the buyer in the purchase and sale agreement contained in the notice of intent.

If the city or town elects not to exercise the option, and not to assign its right to exercise the option, the city or town shall send written notice of nonexercise, signed by the mayor or board of selectmen, to the landowner by certified mail at the address that is specified in the notice of intent. The notice of nonexercise shall contain the name of the owner of record of the land and description of the premises adequate for identification of them and shall be recorded with the registry of deeds.

No sale or conversion of the land shall be consummated until the option period has expired or the notice of nonexercise has been recorded with the registry of deeds, and no sale of the land shall be consummated if the terms of the sale differ in any material way from the terms of the purchase and sale agreement which accompanied the bona fide offer to purchase as described in the notice of intent to sell except as provided in this section.

This section shall not apply to a mortgage foreclosure sale, but the holder of a mortgage shall, at least 90 days before a foreclosure sale, send written notice of the time and place of the sale to the parties in the manner described in this section for notice of intent to sell or convert, and the giving of notice may be established by an affidavit as described in this section.

M.G.L. 61A, section 24 stated: If any clause, sentence, subdivision, paragraph, section or part of this act be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, subdivision, paragraph, section or part thereof directly involved in the controversy in which judgment shall have been rendered.

 Note, I found M.G.L. 61B to have only 18 sections and they seemed not to pertain to us. Please feel free to look any and all information I have written upon and give me feedback. Therefore, with an attorney and these findings, I am sure that the Town of Montague really needs to pay attention to the next couple of months in what NLS Group survey for Tennessee Gas Pipeline Co. is trying to get done. We do not want to be push-overs for them.

*Please accept my apologies for the larger font in some areas. I don’t know how to have it to stay in Times New Roman. Thank you. Please feel free to give feedback, comment or email me directly at falkiewicz@outlook.com.*

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