Opinion: Town Council Should Re-do Recent Vote To Refer Three Zoning Amendments

On Monday night (6/28), Town Council referred three major zoning changes to the Planning Board for formal public hearings. As this referral is one of the final steps required by state law before Town Council can vote on a zoning bylaw amendment, the referral came as a surprise to most everyone – the Planning Board members and the public trying to follow the zoning process labyrinth.  

I am asking that the Council take a re-vote on this referral and allow time for the Planning Board to do its analysis. Why? Because new information is available, and that is sufficient cause for a re-vote. The Council decision was based on misleading information that somehow the Planning Board had vetted or taken a position on these three  articles.  The new information is that the Planning Board had not vetted these articles.  Planning Staff conveyed to Council a sense that the Planning Board generally consented or had reached resolution with all three articles, when that position had never been formulated publicly!  The Board had seen presentations of the texts but had not discussed any of the proposals in depth, until 6/16 when they discussed only one of three – the Mixed-Use building definition.  No time remained in the 6/16 meeting to discuss the Apartment definition or the Parking amendment.  Board feedback usually comes at the end of a thorough process that involves working with the Planning Staff on data gathering and analysis, raising questions, preparing 3D representations of buildout, redrafting language, and hearing public input.  The in-depth discussions had not occurred.  The Planning Board was never informed by the Planning Staff, in writing or in public, that the three zoning articles would be forwarded and presented as “ready for a Council referral vote”, whether the Board concluded its work or not!  

Are the new Council processes going to be applied inconsistently? Will it be clear what process will be applied in which situation? 

As an observer of zoning, and attender of the 6/16 Board meeting, I heard a discussion solely on the mixed-use definition that left several important questions still unresolved, and the article described as “not ready for referral” by one member. The Board had not discussed the apartment definition and had not ever discussed in depth the parking amendment – which would no doubt get a lot of attention. I understood that the Board had not voted that any amendment was ready to send to the Town Council, and that they had not taken any vote or position on any hearing schedule. It would have been impossible, watching the 6/16 meeting, for any member of the public to have anticipated that the three zoning amendments would show up for a referral vote on the Town Council agenda on 6/28.  I left that meeting expecting a follow-up meeting scheduled in which the remaining two articles could be discussed; perhaps they would even conclude that the articles were ready to go to Council for referral, perhaps not.  

I happened to listen in on the Council meeting of 6/28. What a shock to discover that the Planning Staff and Town Manager had deemed these zoning amendments ready for Council without waiting for Planning Board input!  And at the 6/28 Council meeting, they would characterize the Planning Board as generally going along with these amendments and this next step! I call this a Process Foul – for the Public and for the Planning Board and  I am asking for a Council re-vote and time for the Planning Board to do its work.

What Went On At The 6/28 Council Meeting?
At Monday’s (6/28) Town Council meeting, Councilors Cathy Schoen, Darcy Du Mont, and Dorothy Pam repeatedly raised concerns that the Planning Board had not had time to do detailed work on the three zoning amendments which involved changes to mixed-use building and apartment definitions, and parking requirements. In response to their concerns, Councilor Mandi Jo Hanneke declared: 

“It is my understanding the Planning Board, as well as the CRC said this can go to the Council, it’s ready for a hearing but the Planning Board wanted to see it one more time and felt it was okay to see it referred for hearing….My point is that the Planning Board is ok with that timeline and has approved this timeline, including a referral now that starts the clock….”  

Planning Director Christine Brestrup then said that this was not quite the case.  
“The Planning Board has not actually said this is ready to go to Town Council, the Planning Board has reviewed this (mixed-use) and one member (later identified as Doug Marshall) felt this was not ready to go, and (Building Commissioner)Rob Morra and I met with him last Tuesday and we believe we have resolved all of his issues. I don’t remember any other member of the Planning board saying this wasn’t ready to go with the possible exception of Janet McGowan who hasn’t been able to attend all the meetings lately.” 

Morra agreed with Brestrup and said the current drafts addressed the comments by the Planning Board. 

Councilor Alisa Brewer stated that it was important to her that the Planning Board have time to do its work and that it not be pressured. Brestup said that the Planning Board was not being pressured. Council President Lynn Griesemer said that the three zoning items were on the Town Council’s January list of zoning bylaw changes they had asked the Planning Board and Planning Department to review, so “this is not a surprise”. [Please note the correction to this statement below]. “We have sent an entire list of zoning laws and asked which of these are ready,” Griesemer said and had asked for “targeted dates for hearing.” Griesmer added they were even going to add two to three more zoning amendments on Monday night.

[Note – the mixed-use building and parking amendments were not part of the 1/4/2021 Council’s 12 zoning changes sent to the Planning Board and CRC. Of the three zoning amendments discussed here, only updating the apartment bylaw was on their list.  The Planning Department should be credited with developing a strong Inclusionary Zoning bylaw, not on the 1/4/2021 list, which did follow a predictable and inclusive process: it was presented to the Planning Board for analysis and discussion and was reviewed and approved by that Board before it was presented to Town Council.  Council then referred it back to the Planning Board for the state-mandated Public Hearing, which was scheduled with the Planning Board’s knowledge. The Planning Board recommended it for approval and the Town Council is now preparing to vote on it.  At no point was the Planning Board out of the loop on that amendment, or on the Accessory Dwelling Units article now in the work.] 

Proceeding on the abovementioned misinformation, the Town Councilors discussed each zoning amendment and then voted 9-4 to refer the three zoning amendments to the Planning Board for the mandated public hearing, the step required before the Town Council could vote to adopt them.

So, What Had The Planning Board Talked About?  
Back at their 6/16 meeting, the Planning Board had continued its discussion on the mixed-use bylaw, spending an hour discussing a new draft by the Planning Department. Marshall opened the discussion by saying: “I’m a little surprised that the Community Resources Committee thinks these are ready for Town Council” and went on to raise over 10 discussion points on the substance and language of the mixed-use bylaw draft. Janet McGowan agreed that the mixed-use bylaw was not ready, commenting: “I agree with Doug that this is not ready for Town Council.  I also think the other two (amendments) are not ready at all.”  The Planning Board and Planning Department spent an hour discussing Marshall’s issues without resolution.  Discussion mostly centered on why the Planning staff had increased the amount of residential space on the ground floor from 40% up to 60% since the intent in a mixed-use building is to provide opportunity for commercial activity — and whether it should be limited to 40%, as recommended to Town Meeting by the Planning Department and Planning Board in 2016.  This issue was not resolved by the Board. Other issues considered were if apartment residents could enter mixed use buildings from the street, locations of bike parking, whether to require public open space in front of buildings or a setback from the sidewalk, whether requiring benches and plantings could interfere with retail window shopping and sales, among other issues. Discussion went long, and any potential issues or discussion points by other Planning Board members were not aired due to lack of time.   

At around 10 p.m.,Brestrup suggested stopping the discussion of the mixed-use bylaw.  “It’s getting late and there are so many unresolved issues.  The Planning Department can take what you’ve said tonight and go back and work on these things and bring back something more…” She suggested that the Planning Board not discuss the apartment and parking bylaw amendments that night and at her suggestion, the Planning Board agreed to add another July meeting (7/14) to talk about all three zoning amendments.  There was NO notice to the Board that the three articles would be placed on the Council agenda for 6/28, nor was there any written notification to Board members following that meeting.

What Does The Public Take Away From This?
What the public listening to these proceedings sees is inconsistencies in zoning proceeding through the new process.  What it expects is that the process will be consistent.

Here is what we see:

1. Sometimes, like the Inclusionary Zoning by-law, Staff recommends an article and a thorough Planning Board process ensues before the Public Hearing is held.
2. Sometimes, as in the apartment and parking articles, Planning Staff decides when something is ready for council referral.
3. Sometimes, as with the mixed-use building definition, the Board partially gets to discuss and vet, but the Staff just forwards it to the council.
4. Sometimes, as in the Rezoning of the “CVS Parking Lot parcel”, a Councilor can bring a proposal forward and it can be directed straight to the Planning Board for Public Hearing without any time for a pre-discussion, analysis or any data collection.
5. Sometimes, citizens can propose zoning which also can be directed immediately to the Planning Board for Public Hearing.  

[Note – There is a flow diagram illustrating the Zoning Bylaw Amendment Process from May 6, 2020 that the Planning Board and the CRC agreed to last year.  This Flow Chart and agreement process exists, but is well-hidden on the town website]

The new process largely reflects the old process of bringing zoning to a vote – with an added layer of involvement by the Town Council’s Community Resources Committee.  Under the Flow Chart, the Planning Department first comes to the Town Council to hear about potential goals and revisions.  After that, the Town Council can refer “the development of prioritized revisions to the Planning Board and CRC” which it did on January 4.  Then the work begins “on a collaborative process that includes information and feedback on language and outcomes” with the Planning Board, and with CRC on visions and outcomes.  Only after a strong bylaw amendment is drafted, is it sent back to the Town Council for referral; it comes to the Planning Board for the State-mandated Public Hearing, and a recommendation up/down from the Planning Board to the Council. The CRC holds the Town Council’s State-mandated public hearing.  The CRC and Planning Board have agreed to hold these hearings jointly. 

What Reactions Came From The Planning Board When Staff Forwarded Amendments To The Council?
At the Planning Board’s 6/30 meeting, McGowan asked Brestrup why the Planning Department had not informed the Planning Board that the Town Manager and Department were sending the three zoning bylaw amendments to the Council. She pointed out that the Planning Board had not seen the amendments and had not been asked or even notified about the 7/21 public hearing date.  The Planning Board had not even discussed the new parking amendment. There was no reason to rush the public hearing since the Planning Board has 65 days to hold it after receiving the Town Council referral.  

What’s Coming Nnext?
On Wednesday, 7/7 at 7pm, the Planning Board – with no prior discussion or analysis – is holding the mandated Public Hearing on proposed rezoning of the town-owned portions of the “CVS parking lot”. The proposal is to change the zoning district from lower density General Resident (R-G) zoning district, where three-floor buildings with 35% building coverage and 85% lot coverage are allowed, to high density General Business (B-G) where five-floor buildings with 70% building coverage and 95% lot coverage are allowed.  The Planning Board has never discussed this zoning change and only received copies of it after one Planning Board member asked the Planning Staff for the information. 

Zoning was created with a public process, to ensure public health, safety, and general well-being. After hearing Hanneke chide citizens that they should participate more, be on more committees, or listen in on more meetings, I will only say – given the variations I see on zoning practices alone, the Council needs to re-vote referral of zoning amendments and subsequently enforce consistent public processes so one can stay involved and follow the bouncing ball!

Pam Rooney is a former Planning Board member and chair; former planner at UMass and a  registered Landscape Architect.