I was going to deal with a specific article on the T.M. warrant today. All ready have the piece written. Reading the paper this morning, I decide to do something else, still related to Town Meeting though.
At the polls and at a town meeting voters and members took action on several matters which deal with topics to be addressed by Fairhaven Town Meeting members.
Dartmouth voters just passed a new recall provision. If some in Fairhaven think our present provision is tough, the voters in Dartmouth have just passed a provision setting a pretty high standard.
In Fairhaven, all you need is 50 signatures to get the process started. Once you file those signatures then you you out an collect signatures from 20% of the registered voters. Dartmouth's new provision, according to the S-T requires you to start with 2000 signatures (if I am doing the math right, roughly 9% of the voters).
The same provisions in Fairhaven would require approximately 970 signatures to start the process. I still think the provisions in the Fairhaven procedure to trigger the actual recall election are in need of some tweaking. The twenty percent in 14 days is a bit too high in my opinion.
I still have an issue with recall elections. If you have a provision it shouldn't be impossible, but neither should it be easy. The real easy part in Fairhaven right now is any 50 people can get the ball rolling. Get 50 signatures and you can trigger the time lines and process. After seeing what Dartmouth just did, and thinking about it, any real change to our own provision should include raising the number of signatures to get the process started.
Just off the top of my head, I would think 5% might me a good trigger. As I stated in previous posts, perhaps extending the number of days from 14 to 30 in which to then get the 20% number might be a bit more appropriate.
If you are going to have a recall provision, I just don't think a recall should be easy. Elected officials should not be subject to witch hunts because of unpopular decisions made, and that applies to the ones I voted for and didn't vote for.
In Falmouth, at its annual spring town meeting, two competing articles were one the warrant dealing with the Falmouth wind turbines. The first was to shut them down. The second was to leave them up but proceed with mitigation strategies.
It is important to note that it appears neither of the two articles in Falmouth were binding. A very important note.
The problem in Falmouth. Both articles passed. Because they were both nonbinding articles they are both valid votes. Where that leads Falmouth is any one's guess.
In Fairhaven, Tow Meeting will address an article seeking to terminate the present lease, which has been ruled as something beyond the powers of Town Meeting to do by Town Counsel, and from my personal research it is in fact so. A vote to adopt does nothing unless two of three selectmen then decide to breach the lease. As in my mind only two of the selectmen can actually vote on the matter, I don't see it happening.
Make no mistake about it, if that in fact does happens, I sincerely hope they also then have a game plan on how to deal with the financial aspects of that decision.
The other article will be on the special town meeting warrant. The same seeks to impose a moratorium on any additional industrial turbines. Again, in the opinion of Town Counsel, the article would not be binding, as the standards to impose such a moratorium have not been met. It could be done, just can't be because the proper procedures under the law have not been complied with.
This one provides an interesting dilemma. I am proceeding from memory here so if something is wrong let me know, and I am sure someone will if that is the case.
Assume the petitioner proceeds with the article nonetheless. It is in essence a zoning article. It would, I believe, require a two thirds vote. If it passes and Town Counsel's opinion is correct, it has no affect. If it fails, would the provision under the law which prohibits a defeated zoning article from being revisited for two years apply? I know there is a potential "escape clause" from the two year ban. But it is just a thought based on what ramifications could be.
Anyway, might be a way to have your cake and at least eat half of it at this point. I need to look at the language a bit more, and if I think that way is possible, I will share it.
Citizen petitioned articles calling for moratoriums are being voted successfully all over the commonwealth the last few years. Not much mention of zoning. The parties behind them seem to have a handle on what is permissible. We have pretty tall standards in this community, though.
ReplyDeleteJohn have you been practicing for this particular article? All those against? So voted.
Wayne, I am not sure about your questions? Is this an attempt at sarcasm?
ReplyDeleteI for one would not be opposed to such a moratorium. Don't see anything above that says I am against it. I discuss Town Counsel's opinion and some potential scenarios.
I stated I will be, and still intend to offer what might be a way to salvage this article in part and then hopefully those who need to do what has to be done to put in place such a moratorium, should that be the decision, get it done right.
Of course, everyone is free to follow there own opinions and strategy.
The issue on the article is whether as written it would be binding. My understanding is the primary reason it wouldn't is the procedure for implementation is defective.
One who deals with zoning should be aware that the word zoning does not have to be anywhere in an article for it to be a zoning article.
There is also a big difference between "calling for" a moratorium and attempting to implement one by enactment.
Town Meeting can pass the article as written. If it does, and if in fact Town Counsel's opinion is correct, it accomplishes nothing. What do the people want? A statement of preference or something that is binding?
If the article is passed as is, my personal opinion is its effect would be nothing more than a recommendation. One that could do more to encourage anyone with any serious thought of putting up another turbine to rush into action, than top prevent it.
I heard tell there are 88 locations in town that could be potentially used to cite turbines. I don't have enough information to question the possibility, but one has to question the probability.
Nonetheless, I am still not opposed to a moratorium. Personally, I would prefer to see it done right is all. Whether that can happen depends on those who will have to handle the matter.
The below "quoted text" comes from an SJC case upholding a town's article for a building moratorium. If you think the proposed article and procedure followed for our article meets the technical and legal requirements, go for it.
"In Moratorium District #1, no new building or part thereof shall be constructed for use as an apartment house or for apartments or for any use in an Industrial District in Moratorium District #1 for a period of two years from the date of approval of this section by the Massachusetts Attorney General's office, or September 1, 1975, whichever date is the longer period of time. Whereas the Town of Arlington is in the process of updating its Comprehensive Plan, it is desired to protect certain parts of the Town from ill-advised development pending the final adoption of a revised Comprehensive Plan and a moratorium on the issuance of building permits for the construction of apartment houses in a Moratorium District in excess of two families is hereby in effect for a period of time described above." From COLLURA vs. TOWN OF ARLINGTON, 367 Mass. 881 (1975). Find at http://masscases.com/cases/sjc/367/367mass881.html
Read the case. Read the proposed article and then by all means please provide us with your opinion as to why Town Counsel's opinion is wrong.
Yes, sorry John. The last sentence only was meant as sarcastic humor. If we again have to endure an appointed moderator, requiring your assistance at every turn on very important articles, possibly with future legal challenge as to process, then the sarcasm will surely follow, but not from me. Thank you for assisting the situation, but I cannot believe you would be expected to do it again.
ReplyDeleteThere are simply 88 lots plus many more unknown parcels. Nobody can say how many properties would meet the standards of the bylaw. Certainly less.
Since the public does not see the STM articles when you do, the language may not be clear to your readers. I cannot match briefs with you. I only believe that this type of moratorium article is found elsewhere, so I would have to think the groups bringing them, if coordinated, already know the view of the current AG office.
It may just be a “sense of the town meeting” that would stand unless challenged. I would think it would be amended. I surely do not have an answer or an opinion at this point. I wonder though; who is entitled to bring an opposing legal argument if town meeting can act on a warrant article, which would then require a decision of an appointed moderator as to procedure and then approval by review authorities after a vote? What were the voting standards in the other communities?
Your citation mentions “pending a revised Comprehensive Plan” that I wish Fairhaven could make a similar claim in the future.