What is the legality of Formula Business Bylaws?
Legal commentators and courts generally agree that Formula Business Bylaws (FBB) are constitutionally permissible if they are related to legitimate planning concerns, and courts have held that preserving uniqueness is a legitimate planning concern.
Of the dozens of Formula Business Bylaws that have been enacted nationwide since the 1980s, only three have met legal challenges to our knowledge, the most recent one in Wellfleet, MA. Of these three, one was upheld and two (including Wellfleet’s) were overturned.
In 2015, the Massachusetts land court ruled that Wellfleet’s Formula Business Bylaw was invalid – a decision even FBB proponents agree with, given the specifics of the case. Wellfleet’s bylaw was poorly written and – through its Zoning Board’s own admission – had been improperly applied (a point that was included in the Wellfleet judge’s decision).
The 2015 ruling invalidated Wellfleet’s FBB, but it did not invalidate Formula Business Bylaws as a whole. Since the 2015 court decision, Central Square has enacted an FBB in 2017 that was approved by the Attorney General, and two other FBBs were re-approved by the Attorney General in October and November of 2018 (Provincetown and Eastham).
Spurred by the Wellfleet court case, citizens engaged a legal firm to determine whether the Wellfleet court decision had any impact on the existing West Concord FBB or the proposed warrant article for Concord Center that the Town of Concord should be aware of. The resulting legal opinion letter of 2/27/19, which was submitted to the Planning Board, identifies a number of key, legally critical differences between the Wellfleet and Concord FBBs, based on which it concludes that Concord’s existing and proposed Formula Business Bylaws are on solid legal ground in light of the Wellfleet court decision.