Frustrated by the state Attorney General’s office having to turn down new zoning bylaws in commonwealth communities because of minor technicalities, the state Legislature is looking into a bill that some in the real estate industry say would bring common sense and logic into the process.

In a recent hearing before the Joint Committee on Local Affairs at the State House, politicians and real estate officials debated the merits of House bill 5217, legislation that would allow the Attorney General’s office to overlook defects in the procedure of adopting or amending zoning bylaws in towns. The committee voted unanimously in favor of the bill, though they acknowledged that some details in the proposal need to be looked at before the bill goes before the full House and Senate.

Proponents of the measure say, if enacted, it would eliminate the frequency with which towns often must approve a bylaw a second time because of technicalities, a process that can take several months and eat into town budgets.

However, others are questioning whether the bill would have a “slippery slope” effect, gradually allowing towns to change zoning with less public notice. That, they say, could affect property owners’ rights.

“The posting of zoning changes can sometimes be tricky,” said Rep. John H. Stasik, D-Framingham, the author of the bill and a member of the Local Affairs Committee. He said in addition to posting the notice publicly, legal advertisements must be run in a newspaper at least 14 days before action on the matter is scheduled to be taken.

Sometimes, he continued, because of errors made either by the town or the newspaper, exactly 14 days’ official notice isn’t always given. However, because of publicity surrounding the issue and announcements made at town meetings and on public access television, the community is often already well aware of the upcoming zoning change.

“The technical glitches can literally nullify a zoning bylaw that a community has been working on for two years,” Stasik said. “They do all this work and send it to the AG’s office [for final approval] only to have them turn it down.”

Assistant Attorney General Robert W. Ritchie testified at the hearing that he is forced to turn down communities’ requests for zoning bylaw changes on a weekly basis because of the aforementioned technicalities.

“I just had one [case] with a town in Worcester County that wanted to put together an open space plan. The amount of attention given to the issue by the local community was tremendous. The town really wanted it,” he said. But the change was not approved because the town did not follow the proper posting procedure.

“It’s extremely frustrating for me to see hard work like that was done by the town, only to have to turn them down,” Ritchie said. The process creates more paperwork for the town because it has to go through the approval process again, and eventually creates more work in the attorney general’s office, he said.

“We could probably recapture 90 or 95 percent of the bills that we disapprove on relatively minor grounds,” he said. He estimated his office received about 3,200 requests for approval from towns each year, and three or four each week are turned down because of technicalities.

‘Awful Waste’
Specifically, the proposed legislation states that if the AG’s office finds a defect in a procedure relative to changing a zoning bylaw, instead of turning it down it can notify the town clerk of the problem. The town, in turn must post a notice in town hall for 14 days and publish it in a newspaper stating that anyone who claims the defect was misleading or prejudicial can file a claim with the town clerk within 21 days with reasons supporting the claim. If no claims are filed, the AG’s office may overlook the defect. If a claim is filed, the defect cannot be overlooked.

“I think the fact that even one complaint dismantles the woodwork demonstrates the severity of this law,” said Rep. Marie J. Parente, D-Milford, co-chair of the Local Affairs Committee.

“This is an important piece of legislation,” said Edwin J. Shanahan, CEO of the Greater Boston Real Estate Board. “If the town is trying to do something relative to zoning, and they basically have to go through the whole process all over again because of a technicality, that’s just lunacy, frankly.”

“We’re trying to take a common-sense approach to what are technically defaults that don’t really mean anything,” said David Wluka, a past GBREB president who serves on the Massachusetts Association of Realtors Government Affairs Committee and worked with the Chapter 40A subcommittee at the State House that addressed the issue.

“It seemed to be an awful waste of time and energy to have to hold another town meeting if something was thrown out on a technicality. If the process was off by just a small margin, and no one was harmed, why can’t they continue?” he said.

Shanahan said the bill could help increase the housing supply if towns allowing housing to be built on land requiring a variance were not delayed by zoning changes that are rejected. He said the threat of towns changing zoning quickly to thwart development by using the new legislation was almost nonexistent because of the appeals process.

“There’s no threat of abuse,” he said. “Claims of abuse are a tempest in a teapot. We’re talking about correcting minor mistakes. That’s why they put erasers on pencils.”

Benjamin Fierro III, counsel for the Home Builders Association of Massachusetts, said anytime there is a change in legislation affecting an individual’s property rights, it must be examined carefully. Though he said HBAM has not yet taken an official position regarding the bill, there were some points he said should be addressed.

“By and large the issue of defect notice cuts both ways; it can affect the developer or the town. But what if the town makes an error in the second notice? How is that resolved?”

Members of the committee also questioned why someone appealing the zoning change needed to produce reasons why they felt the defect was prejudicial when it wasn’t their fault an error had been committed in the first place.

Stasik said he would meet with officials to work on changing some of the language of the bill to address the concerns expressed at the hearing.

“We’re not dealing with a new procedure here,” observed committee member Rep. Mary Jeanette Murray, R-Cohasset. “These zoning laws have been on the books for a number of years. If communities are not familiar with the law by now, maybe more education is appropriate. We’re dealing with notices of change that affect people’s property rights.”