2022 Annual Town Meeting - Night Ten

Welcome to Night Ten of the 2022 Annual Town Meeting.  We just scratched the surface on the zoning articles at the last session, so we are in for some very interesting discussions.  We should be able to make real headway tonight.  There are eight articles between us and 38, and I hope we can get that far tonight.  We passed seven last session, maybe we can best that by one.

The Moderator called the session to order.  The Star Spangled Banner featured the dueling fifes of Cole and Owen M-Z.  The Moderator acknowledged the school tragedy in Texas, the second anniversary of the murder of George Floyd, and Memorial Day is Monday.  We observed a moment of silence to honor all of those remembrances.  The Moderator acknowledged feeling strongly about these things.  If you also feel strongly, know you are not alone.  Pursue change through the democratic process.  As we start on voting, we need to remember to treat each other with dignity and respect.

The Moderator introduced a change to voting portal.  When we are waiting for our voting wave to start, the text noting the delay would be highlighted in yellow so it would be easier to see.  This would only effect the appearance.  Members who have not been sworn in are to do so with the Town Clerk.  SBC Diggins moved that when we adjourn tonight, we do so to Wednesday, June 1.  There was a call for announcements.  TMM Wiener let people know the Jason Russell house is reopening this weekend for tours throughout the summer.  It is a great historic resource and and nice place to visit with family and guests.  TMM Foskett removed Article 3 from the table.  Alas, there were no new reports, so Article 3 was returned to the table.

We then resumed the discussion on Article 28, a proposal to enhance the character of new developments along the commercial corridors.  TMM Kaepplein asked for examples of what this bylaw would allow.  As an example, he asked whether 855 Mass. Ave, which has first floor glazing and is on the sidewalk, would meet the requirement, since all the windows are frosted over for privacy.  TMM Revilak, a member of the ARB, noted that it likely met the requirements for having an enhanced facade as provided by this article.  TMM Kaepplein asked how this was enhanced, as it is still a blank wall.  TMM Revilak noted that that situation would be different with a different tenancy, like a restaurant.  TMM Rosenthal noted that a large number of the buildings being replaced are being built without the facilities or accommodation for future restaurant uses.  Would this article have any effect in that regard?  TMM Revilak noted that there have been requests made during past hearings to provide the infrastructure.  However, this article is not about that; it is about facades and engagement, not uses.  TMM Rosenthal asked for clarification.  TMM Revilak noted this article would prevent a restaurant with a blank front wall, but it was not written to favor any particular type of business.  TMM Tosti motioned to terminate debate.  The motion passe 190-24 with two abstentions.  This brought forward the vote on the main motion, which passed 203-11 with three abstentions.

Article 29 was a proposal to require the planting of street trees on new developments.  Dir. Raitt requested that the pre-recorded video presentation be played.  The town has a tree bylaw for preserving trees on private property.  The tree warden plants 200-300 new street trees a year.  This article would require street trees as a part of new developments to increase the tree cover, reduce heat islands, and improve the environment.  The proposal includes standards for location, size, species, number of trees, and spacing.  TMM Bloom asked how we will make sure that the trees will be watered and maintained.  TMM Revilak responded that there is a requirement that the trees be maintained for three years, under the jurisdiction of the Director of Inspections in his role as Zoning Enforcement Officer.  TMM Bloom was looking for more detail.  Town Counsel noted that the Zoning Enforcement Officer would follow-up on violations, but the tree warden and members of the tree committee would be keeping an eye on these trees, as they do for other trees in town.  They would likely bring issues to the attention of Inspectional Services.  TMM Babiarz asked about interference with power lines leading to buildings.  TMM Revilak noted that the trees would be in the public right of way, not on private property.  Care would need to be taken to locate the trees appropriately.  TMM Babiarz asked how this would work with power lines; would we just end up with more forked trees like elsewhere in town?  The Moderator called on Dir. Rademacher from the DPW, but he was not in attendance.  The Town Manager indicated that there are specific species which would be selected for being planted under the power lines, to minimize the future problems.  TMM Culverhouse was very supportive, and she asked if there was anything in this article to protect existing mature trees.  TMM Revilak answered that existing trees would preclude the need to plant a new tree, but it doesn't add protections for existing trees.  Town Counsel agreed that this would not add protection, but public shade trees are currently protected under state law, requiring a public hearing before they can be removed.  TMM Melofchik had a technical issue, which the technical staff tried to address.  TMM Rosenthal raised a Point of Order to ask whether a member could participate by phone.  The Moderator noted they were actively trying to do that at this time.  TMM O'Day moved to terminate debate.  The Moderator held on accepting a second in hopes that TMM Melofchik's issue could be remedied to allow her to speak.  TMM Wagner raised a Point of Order to thank the Moderator for not terminating debate.  He encouraged allowing other people to speak while we waited.  

The Moderator called on TMM Stamps, a member of the Tree Committee, speaking for herself.  She was glad to see that the article references a nursery standard for maintenance which includes watering.  She outlined the tree protection afforded by Chapter 38 in state law.  She was glad that this will improve the tree canopy.  She also noted that the trees could be located on private property.  TMM Melofchik addressed the meeting by cell phone on speaker phone through someone else's connection.  The connection was difficult to hear in places, but she noted she has great faith in the Tree Warden and Tree Committee.  The thought there was a lack of coordination between the Tree Committee and the ARB.  TMM Stamps responded that the committee was concerned about watering, and she noted that there is a maintenance requirement which addresses that problem.  TMM Melofchik asked who could decide in the future whether the tree could be removed.  TMM Stamps noted that they would be public shade trees, protected under state law.  The Manager confirmed.  TMM Melofchik asked what this article is proposing that wasn't being done before.  Was it just encouraging the planting of trees?  TMM Revilak concurred that this is encouraging the planting of public shade trees in commercial and other districts.  This provision exists for the Industrial districts under last year's bylaw, and this would extend that requirement to other districts.  TMM Melofchik said she remained confused, but more trees are a good thing.  She thanked everyone for their patience with her connection.  The Moderator did the same.  TMM Jamieson raised a Point of Order to note that there was a large discussion after a motion to terminate debate, which is not allowed under the rules.  The Moderator noted that the motion was not debated, he just chose to ignore to motion by not accepting the second.  This was done to allow someone with technical difficulties to still speak.  He had been criticized for not doing so on other articles.  The vote to terminate debate passed 206-13 with three abstentions.  The vote on the main motion passed 220-6 with one abstention.

Article 30 was an article to encourage the development of more solar power installations.  Dir. Raitt asked that the video be shown.  Currently ground-mounted solar is only allowed in the industrial districts, and other districts have other requirements.  This Article is a part of the town's Net Zero Action Plan to reduce emission.  There would be requirements to provide solar systems on new development meeting specific requirements.  Projects under Environmental Design Review (EDR) would be required to provide a solar system equivalent to half of the area of the roof.  There were several additional regulations on access, placement, tree trimming, and development on adjacent parcels.  The Moderator noted that the real time translation is not working, and there is a link to another website where that can be found.  TMM Rudick is a new member, limiting his speaking to articles where he has expertise.  He works in solar development, and he thinks this is a tremendous change.  Solar is much better today than in recent years.  Wonderful if not long overdue.  He had one question, could a building meeting the requirement by being solar ready rather than installing the panels.  Why is a lower standard considered?  TMM Benson noted that this does require installation unless it is an older building which lacks structural capacity or solar orientation.  Installation is required, unless the property can be exempted under one of the listed conditions.  TMM Leone noted that his question had just been answered.  TMM Rosenthal thought this sounded like a great proposal, but there was something in the proposal which gave him pause.  If he has panels installed on his roof, could someone on an adjacent property build on their property and shade his panels?  TMM Benson noted this would not apply to his house, but it would apply to properties under the jurisdiction of the ARB.  In that case, he would be correct.  The bylaw does not limit the development rights on adjacent properties.  He does not anticipate it would be an issue.

TMM Rosenthal asked how this differs from rules in the residential district.  TMM Benson noted there is no general requirement to have solar panels on residences, only properties undergoing EDR.  TMM Rosenthal asked how these new rules would apply in residential neighborhoods.  The Moderator thought the question might be out of scope, but the warrant article didn't restrict the scope to specific districts.  TMM Benson noted this has nothing to do with residential districts.  TMM Friedman was a little confused about which buildings would fall under this bylaw.  She thought it was new projects, but there was mention of older buildings.  TMM Benson noted it could apply to an existing building that was undergoing extensive renovations or adding a floor or changing the use along one of the main business corridors.  TMM Melofchik called into Zoom, but the number wasn't working right away.  She asked what the ARB's plans were for working with the Historic District Commission (HDC), where she is a member.  Their rules do not allow solar on street facing roofs.  She thinks this needs to change.  TMM Benson noted that there is an exception when there is a certificate of appropriateness denying the installation of solar.  TMM Melofchik asked what the ARB's plans were to have the HDC change their rules.  TMM Benson thought that was a good conversation for the clean energy committee, but they have not been in discussions with the HDC.  TMM Miller doesn't have an issue expanding solar.  He is concerned about the pruning of trees.  Can the owner of an adjacent property be forced to trim their tree.  TMM Benson noted that the opposite was the case.  There would be no requirement to require trimming.  TMM Moore moved to terminate debate.  TMM Goodsell raised a Point of Order that that the Moderator had said he would be looking for people who don't speak often, but he just picked all frequent speakers.  The Moderator agreed to try and be more judicious.  The motion to terminate debate passed 194-24 with two abstentions.  The vote on the main motion passed 208-16 with two abstentions.  We took our break.

Article 32 was a request from the ZBA to amend the section of the zoning bylaw concerning rules and regulations for the board.  The Moderator asked TMM Klein, the Chair of the ZBA t introduce the article.  He requested that the video prepared by the ARB be presented.  The video explained how the ZBA's rules in the zoning bylaw were leftover from recodification when the ZBA didn't have rules and regulations.  They are no longer needed, and should be removed.  TMM Rosenthal introduced his substitute motion to remove most of the portions of the rules but retain the requirement for giving oaths to applicants and make recordings.  He had spoken with the Town Meeting member who had originally proposed requiring oaths and Town Counsel.  TMM Rosenthal felt these provisions were important to safeguard the town from appeals of comprehensive permit decisions at the Housing Appeals Committee (HAC).  The Moderator invited Town Counsel to speak, and he recalled having met with TMM Rosenthal.  He did recall thinking the provision requiring an oath of the applicant but not of residents might not pass muster during the AG's review.  TMM Bloom noted in Mr. Jamieson's notes on the article, he had indicated that there was a conflict with the law.  Town Counsel thought it might have related to the oaths being applied inequitably.  TMM Klein noted that the legal question was with Chapter 40A, Section 12 under state law which requires the ZBA to adopt their own rules and regulations.  It is not for Town Meeting to set the rules.  TMM Klein explained that the procedure the board follows in comprehensive permit hearings.  The Board has not been administering oaths, as doing so to the public could make residents hesitant to participate.  He also noted that all testimony by the applicant is vetted by peer review engineers working on behalf of the town.  TMM J_Worden  stated that unless the Select Board says "no" to these projects and insist that we meet safe harbor, comprehensive permit applications will continue.  He felt confident that the town has more than 1.5% of its developable land area used for affordable housing, one of the state's "safe harbor" provisions granting the town additional rights in deciding comprehensive permits.  If the Town is not going to be diligent, this provision is still necessary.  There is no reason we cannot have a parallel set of rules.  In his opinion 40B developers are not nice people (Call to civility by Moderator.)  TMM J_Worden noted that nice people come to town seeking to follow the established rules.  TMM Wagner moved to terminate debate.  The motion passed 183-34 with four abstentions.  The vote on TMM Rosenthal's substitute motion failed 54-162 with 6 abstentions.  The vote on the main motion passed 174-45 with six abstentions.

Article 33 proposed to tweak the definition of half story.  The definition relies on a fraction.  Under this article, the numerator remains the same.  The proposal clarified that the denominator is the gross floor area of the second floor.  The Moderator asked TMM Klein to present the article.  He requested that the video presentation prepared by the ARB be presented.  TMM Phelan had originally requested to take the article off the consent agenda.  She noted her questions had been answered by the video presentation and the comments from TMM Klein, so she was all set.  She being the last speaker on the list, the Moderator called the vote.  The motion passed 209-6 with five abstentions.

Article 34 proposed to amend the definition of porches and add porches to the list of elements which could be approved in a yard setback.  TMM Klein requested the playing of the ARB's video presentation.  TMM Leahy indicated she had inadvertently requested it be removed from the consent agenda, as she thought she was only seconding someone else's request.  TMM Slotnick noted that developers in East Arlington currently dismantle existing porches to extend the building farther forward.  The front porch has been enveloped within the house.  Can the owners then just add another porch?  TMM Klein noted that under Article 35, previously approved by this meeting, enclosing a porch will now require a special permit.  Adding another porch, since it will be within the front yard setback, would also require a special permit.  TMM Hanlon, a member of the ZBA, explained that the board sees many of these cases every year, and they are mostly brought forward by regular property owners looking for a porch.  These are uncontroversial, and are typically approved with conditions that require action by the board before any further changes can be made.  The Moderator reminded the meeting that this was mistakenly removed from the consent agenda.  There were no further speakers, so we proceeded to the vote, which passed 216-6 with one abstention.

Article 36 clarifies the interpretation of the section of the bylaws concerning large additions.  TMM Hanlon raised a Point of Order asking why we skipped 35.  The Moderator noted it was passed under the consent agenda.  This article clarifies the calculation of what qualifies as a large addition.  It was removed by TMM Band, who no longer wished to address the article.  After the presentation of the ARB's video, there were no speakers to the article, so we proceeded to the vote.  The motion passed 210-5 with four abstentions.

Article 37 souht to clarify who may make the determination of whether a structure is unsafe.  Dir. Raitt introduced the video presentation.  TMM Mozina had requested to remove the article from the consent agenda.  She felt this change was redundant, as Chapter 143, Section 6 in state law already requires that the determination be made buy the Director of Inspections.  She was concerned this change was redundant, and a source of confusion.  TMM Klein reiterated the request wass to add the language here, because this was where contractors looked in the bylaw.  There was an unfortunate incident where a developer demolished a house without permission saying it was unsafe.  This left an undevelopable lot without a house and a very frightened homeowner.  While this was resolved, the ZBA would prefer to avoid any possibility of this in the future.  TMM Mozina asked to provide an amendment from the floor to indicate that this provision was in harmony whith state law.  The Moderator felt it was too complicated, and since it was not submitted 48 hours ahead, he would not allow it.  TMM Nathan said she didn't fully understand, but thought the previous speaker was correct that this could be misinterpreted.  She asked how unsafe conditions are identified, and how is the department notified?  Dir. Ciampa noted this usually comes up during construction.  The department is notified by the contractor, and it is reviewed by the department, in conjunction with a structural engineer if required.  TMM Nathan asked how often this happens.  Dir. Ciampa noted there has only been one or two cases in the past couple of years that required the demolition of a structure.  

The time was now 10:55pm.  TMM Foskett raised a Point of Order to ask if we could table this article until after the conclusion of Article 38.  The Moderator asked if he was making a motion, and TMM Foskett did so.  The motion was seconded.  TMM Schlichtman raised a Point of Order, asking whether a motion could be raised during a Point of Order.  The Moderator said "no," then realized he had just done that for TMM Foskett.  TMM Fosket noted that the Moderator had invited him to make the motion.  The Moderator thought that since we were already in this predicament, he would allow the motion to table the article to proceed.  When the Moderator asked for all who objected to raise hands, the number of hands was greater than 1/3 of the members present, so the motion failed to get the required vote of 2/3.  The Moderator then called for a motion to adjourn, which was made by TMM Foskett and seconded.  The Moderator called for notices of reconsideration.  TMM Jamieson then Raised a Point of Order and objected to all the actions over the past few minutes.  If we had just finished the discussion without these maneuvers, we could have voted on 37 tonight.  We are running behind, and we need to get things done.  He requested that we not adjourn and continue with the debate.  TMM J_Worden raised a Point of Order to ask whether it would be appropriate to move to postone to a date certain, which would do the same thing as tabling the article, but only require a majority vote.  The Moderator noted he had just indicated he would not accept motions through a Point of Order   TMM Weber raised a Point of Order and asked what Article 37 has to do with Article 38.  Why are we considering postponing?  The Moderator agreed that things have sort-of come off the rails.  It all started with allowing a motion to table from a Point of Order.  He was now going to have a formal vote on whether to adjourn, since we were past 11:00.  That vote passed 112-70 with two abstentions.  The Moderator wished us all a good night and closed the meeting.

In all the craziness, notices for reconsideration were not taken.

>> This was a really odd night.  I was trying to keep up with my notes while also introducing articles and addressing Town Meeting.  That was a hard juggling act, and my notes on Articles 32-37 lack some subtlety as a result.

>> I'm glad we passed Article 28.  This will give the ARB some leverage with hopefully getting better concessions from developers of commercial projects.

>> The action during the debate on Article 29 to not act on a motion to terminate debate is really ripe for abuse.  I would have been fine if we had just held until the speaker who was called before the motion to terminate debate resolved her issues.  However, the Moderator reopened the speaker queue, which effectively negated the motion.  I am confident it was not done maliciously here, but you could imagine a scenario where there is a call to terminate debate, no seconds are allowed, and the Moderator decides who gets to have the last speaking position before the motion is allowed to be seconded.  I like trees, so I liked 29.

>> Article 30 was a good article, and I thought the debate was interesting.  I am glad it passed.

>>Article 32 was the first of six articles put forward to the ARB by the ZBA working through the Zoning Bylaw Working Group.  The purpose of the article was to give the ZBA the autonomy it is granted under state law when it comes to drafting its own rules and regulations.  I understood the intent of the proposed substitute motion, but since those provision were already in the board's rules and regulations, it was hard to see the insistance of putting some of the provisions back into the zoning bylaw as anything other than saying the ZBA cannot be trusted to manage its own business.  I was glad that the substitute motion was defeated and the main motion passed.

>> Articles 33-36 were intended to codify current interpretations of how to apply the zoning bylaw.  I was glad that they were approved by comfortable margians.

>> Article 38 was also supposed to be simple, but I thought TMM Mozina raised a very interesting point.  I will admit that the section of code she mentionned had never come up in our discussions.  I don't thinnk we necessarily need to reference the state statute in the local code, but I do agree that if we are trying to remove redundancy, maybe the original text of the bylaw should remain.  However, since we won't be back until next Wednesday, there is plenty of time to submit an amendment. 

>> I'm not sure that I have the right words to explain the last 10-15 minutes of the meeting.  Unless there was someone coming up quickly in the speaker queue to try and terminate debate, I think the discussion would have continued for a little while.  I don't understand the necessity to make sure Article 38 comes up immediately at the start of the next session.  Perhaps the motion to table or continue will be refiled at the start of the next session.  As TMM Jamieson said, we're spending more time getting out of the discussion than it would take to have the discussion.  Let this be the appetizer for the discussion on 38.