(Editor’s Note: The author of this article, Robert Ritchie, is an attorney with considerable experience serving the public, most recently as General Counsel, Massachusetts Department of Agricultural Resources and formerly as Massachusetts Assistant Attorney General, Director of Municipal Law. This article originally appeared online at the website of the Massachusetts Municipal Lawyers Association and is reprinted here with permission from the author. Any errors in misprinting should be assumed to be ours. Thank you for contacting us with any errors. The image accompanying this version of the article did not appear in the original.)
Drafting town bylaws and city ordinances is a challenge for local leaders across the state. The Municipal Law Unit of the attorney general’s office reviews hundreds of proposed town bylaws and city ordinances each year. This article attempts to provide some guidance to help local leaders avoid some of the pitfalls that can lead to disapproval of their local laws.
The structural elements of a good law applicable to general and special acts of the Legislature are no less applicable to local ordinances and bylaws, rules and regulations of government entities, and other applications of the written word. The points raised here, for the most part, are equally applicable to city ordinances and town bylaws. This article speaks in terms of town bylaws, town meeting, and town counsel with the understanding that the concepts addressed are transferable to local legislation in cities as well.
Once you have determined that a change to your local laws is the appropriate way to address a particular need, it is advisable to consider the following points before sitting down to write a by-law:
Purpose: What is the proposed bylaw intended to accomplish? Discuss the purposes with those who have proposed the bylaw, and examine the manner in which the bylaw is likely to be applied.
Models: Have other similar bylaws been adopted in other communities? Determine if any other bylaws might serve as a useful model. Locate other sources for models or samples of local laws intended to achieve the same purposes. No such model or sample is likely to fit perfectly without alterations that take into account the unique circumstances of your community. Tailoring should always be done in consultation with town counsel.
Experts: Are there known experts in the field that may be contacted for guidance on how best to achieve the legislative objectives?
Legal considerations: Are there constitutional and/or statutory constraints within which you must proceed in drafting the text of the bylaw? Reduce these issues to writing, even if only for your own benefit. Once you have gathered the facts, researched the law, and created an outline, you are ready to write the first draft. An outline will help you get to the gist of the bylaw, though some find it helpful to begin by writing a rough text of the act as a means of capturing their thoughts on the matter.
When preparing the first draft, be sure to address the following:
Scope: Consider whether the focus and scope of the proposed bylaw is sufficiently inclusive of other classes and situations for which a bylaw of broader scope would be more appropriate. Don’t let a bylaw suffer from too narrow an application when the matter it sets out to address is broader than the single situation that led to the proposed amendment.
Clarity: Have a non-lawyer—preferably someone who would be affected by the bylaw—read the draft version. Also run it by someone with talent in writing, grammar and spelling. Incorporate their feedback into revisions, particularly if the readers identify areas that need clarification.
Counsel: Discuss the proposed bylaw with town counsel for consistency with state and federal law, and to determine whether review and approval of the proposed amendment by state or federal agencies is required before it can become effective.
Nuts and Bolts
The following are some components of a well-written bylaw. Adherence to this structure will improve the bylaw’s chances for approval at town meeting.
Preamble: A bylaw’s “preamble” is often much longer than necessary, sometimes to the point that it adds ambiguity to otherwise straightforward text. If possible, avoid statements of intent, which are rarely necessary and should never be used to compensate for imprecise or careless drafting. Avoid the use of “whereas.”
Summary: Prepare a concise summary of the proposed amendment with an explanatory statement of what it is intended to accomplish and how it will be applied. This will be useful when the proposed amendment is being deliberated by town meeting or city council.
Anticipate objections: Anticipate what the bylaw’s opponents might think of the amendment. To the extent possible, try to address these issues in the draft.
Congruence with existing code: Organize the elements of the bylaw logically and in harmony with the organization of the town’s other bylaws. Adopt a consistent structure to the bylaw amendment so that it fits in with other parts of the municipal code, including numbering, formatting, positioning, and captioning.
The structure of a bylaw should address the following:
Definitions: Make sure that all terms used in the proposed amendment are either as defined elsewhere in the municipal code and used consistently with such definition, or are added in the definition section of the proposed amendment. The better approach might be to add any new technical term to the existing definitions section of the code. Never state a substantive provision of the bylaw in the form of a definition. Use the same words to mean the same thing throughout the code.
Applicability: Be clear and precise about the class of persons or entities for whom the proposed amendment creates rights and privileges or imposes duties and responsibilities.
Exclusions and exemptions: Specify any exclusions or exemptions to the applicability.
Administration: Specify which local government officer or agency is to administer and enforce the provisions of the bylaw. Include (or refer to) the powers and duties of the enforcement officer or agency, as well as any restrictions thereon.
Sanctions and remedies: Specify the penalties for violation of the bylaw and whether non-criminal disposition will be available. Specify who shall have standing to apply for enforcement of the bylaw and what remedies are available to one seeking enforcement. Where appropriate, include a mechanism for administrative review.
Severability clause: Consider whether it is desirable to include a severability provision—that is, whether, if the attorney general or a court should later determine that any provision of the bylaw is illegal or unconstitutional, the remaining provisions would continue to be in effect. Give this issue careful thought, since the loss of some provisions could defeat the whole intent of the bylaw.
Effective date: State the effective date of the bylaw or ordinance if it is to be later than provided by general law. Town bylaws ordinarily take effect only after the town meeting votes favorably on the bylaw, the attorney general approves the bylaw as provided in state law (M.G.L. Ch. 40, Sect. 32), and thereafter the town clerk publishes it as required by state law. There is a difference, however, between the effective date of a general bylaw and the effective date of a zoning bylaw. The general bylaw takes effect when the foregoing three requirements have been met, while the zoning bylaw takes effect as of the date it was adopted by town meeting.
Some Writing Tips
A bylaw that is written with precision and legal accuracy, but cannot be easily understood by those to whom it applies, will result in confusion, unintentional violations and unfairness. Good bylaw drafting is governed by the same principles that govern any form of effective written communication.
Be clear, concise, and readable: Do not abandon the use of words and expressions that serve you well in other written communications. Here are some guidelines for writing good bylaws:
Plain English: To the extent possible, use plain English. Minimize the use of technical (or undefined) terms and use words that are understandable to the general public. Avoid unnecessary and vague words.
Present tense: Use the present tense, third person singular. Don’t say, “The building commission shall be the enforcement officer.” Rather, say, “The building commission is the enforcement officer.”
Avoid the plural: If either the singular or plural can be used, use the singular. Don’t say, “Applicants must notify all abutters.” Rather, say, “The applicant must notify all abutters.”
Short sentences: Avoid sentences of more than twenty-five words, or with multiple subordinate clauses. Use short and direct sentences to express ideas positively.
Nominalization: Avoid making nouns out of verbs wherever possible. For example, say, “The administrator shall consider the application,” rather than, “The administrator shall give consideration to the application.”
Avoid pronouns: If you must use a pronoun, make sure the antecedent is clear. Don’t use the third person plural (they) as a singular gender-neutral pronoun; instead, repeat the noun. You rarely have to worry about gender-neutrality if you don’t use pronouns.
Adjectives and modifiers: Avoid misplaced or unnecessary modifiers. Place modifiers so there is no doubt about what they modify.
Active voice: The passive voice lacks a clear actor. When a bylaw imposes a duty or prohibition, the reader needs to know exactly to whom the duty or prohibition applies. For example, don’t say, “Rules shall be adopted.” Rather, say, “The Planning Board shall adopt rules.”
Redundancy: Avoid redundancies (e.g., “unless and until,” “cease and desist”). Perhaps the worst of these is “authorize and direct,” an expression that combines a word that grants discretion (authorize) with one that is mandatory (direct).
Consistency: Once you have introduced a term into the text, avoid the use of synonyms. Laws can and should be a bit boring, not great literature. Shall vs. may: Remember that the word “shall” is used exclusively to impose a duty to act. (E.g., “The town manager shall submit a proposed budget to the finance committee on November 1 of each year.”) Don’t use “shall” to indicate the future tense, to impose a duty not to act, to impose a limitation, or to declare a legal result rather than to give a command. Correspondingly, the word “may” should be used exclusively to grant discretion or authority to a particular actor. Where you wish to prohibit an action, the words “shall not” are misleading; the appropriate term is “may not.” The words “shall not” mean that a person does not have a duty to engage in the described action, while the words “may not” serve to deny the actor power or authority to engage in the action. Don’t say, “No person shall.” Rather, say, “A person may not.”
Punctuation: The use of a comma where not needed, or the absence of a comma where needed, can substantially alter the meaning of a sentence. Avoid large blocks of text, which readers may scan without comprehension and lose track of where the proposed amendment fits into the overall architecture of the code. Always use a comma after every word or phrase in a series, including the one before the “and” or “or.” Consider the use of an outline format and “white space” to help the reader.
Sectioning: Divide discrete thoughts into sections and subsections. Each time an act is required or prohibited, it should have its own section or subsection.
Acronyms: Avoid initials and acronyms whenever possible.