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Thursday, April 19, 2012

What is, What shouldn't be, What won't

So I took Wednesday off from blogging.  I was up bright and early, started pounding away at the keyboard, read what I wrote and hit delete.  Sometimes when I hit that brick wall I too get stubborn and just want to plow through it.  It doesn't do me any good, and when I am done, the wall is still there.  So after yesterday's attempt, I thought it best just to give it a rest.

It is a new day, so let's try a new direction.

Seems things are quieting down a bit in town.  More like the calm before the storm I think, but a good respite nonetheless.  Something tells me that by this time next week we will probably be going at full steam once again.

I was, actually am, tempted to go on another rant about the tourism rent issue.  But why bother.

If Town Meeting members want to vote to spend money for rent so a not for profit can dictate what can happen to a building the town owns and pays for, so be it.  We have a tourism director and a historical commission on record thinking the move to the Academy Building will be a good fit.

Might be good enough except we also have a historical society, a group that its not a town organization, is totally private except for the fact it has been receiving a free ride from the town for years, i.e. decades. 

I will tell you what, ever single nonprofit group in this town that is charge anything should request a hearing before the board of selectmen demanding the same exact treatment given to the historical society. You won't get it, but at least then they will have to explain why this group gets its freebies.

I for one cannot wait to hear the rational from the majority of the board defending its position on this and other issues. The reality is it does not seem the majority can get a grasp on the fact that a can of worms has been opened here, and it just isn't going to get kicked aside, not this time. 

So as to not go on a rant I won't address that particular topic this morning.

The best part of this whole thing is it is abundantly clear that every two weeks after the Monday night meetings there will be no shortage of material to write about. 

Heck, can you imagine the material if some of the articles at town meeting do pass? Too bad the ethics committee couldn't have retroactive application, I needed two hands to count up the infractions. It was getting to the point I was afraid I might have to take off a shoe to keep an accurate count.

Big hearing before the Board of Health next week on Tuesday. Suppose to be discussing the protocol for complaint procedures when the turbines start spinning. It is an important issue, one that is sure to result in some controversy.

Now on to the article that wasn't. The Planning Board had submitted an article for placement on the Special Town Meeting Warrant to amend the current zoning as relates to wind turbine setback and heights, specifically to reduce to the maximum height of the turbine and increase the set backs.

Seems the article was submitted to town counsel for review, and the opinion was the article if included on the warrant would not meet the legal requirements (note: I am providing a summary of what transpired, I am neither agreeing or disagreeing with the opinion as to the validity of the argument). Based on that opinion the selectmen decided not to include the article. The planning board disagrees with the opinion and feels the article and the process needed for the article to be acted upon was proper, and any defect could be taken care of through a amendment to the language.

If you go to the Neighborhood News website you can find links to the various letters, e-mails, etc. posted as to why the proposed by-law was not put on by the selectmen, and why the planning board wanted it on. There is also a letter from the planning board chair in the April 19 additions as to why he feels the selectmen and town counsel are wrong. 

Read the info for yourself, and also the applicable law which is G.L. c. 40A, Sec. 5.

This one might merit further review and another piece, but by the time I have the time to do a proper review we will probably be done with Town Meeting. 

If I am reading Section 5 right, what is suppose to be submitted to the selectmen is "a proposed zoning ordinance or by-law".  The selectmen then have 14 days to send "such zoning ordinance or by-law" to the planning board.

The planning board then holds a hearing on the proposal and then submits a report to town meeting.

I will be honest in stating I really haven't checked out past practice relative to zoning adoption procedure.  It really isn't relevant to this particular issue though.  The fact we may or may not have done it wrong in the past doesn't allow us to ignore the requirements presently.  

The way I am reading the law, the letters, the notices, etc. seems to indicate the crux of the matter is whether the "proposal" meets the requirements of the law for a "proposal".  The law seems pretty clear that notices and hearing are suppose to be sufficient to identify "a proposed zoning ordinance or by-law".

Is a notice for a hearing the purpose of which "will be to  receive information and public comment
on the following 1) To amend Fairhaven Zoning By-Law Section 198-29.5 Wind Energy Facilities D. Design Standards (8) and (9)." sufficient?  Note: quoted text taken from legal ad in the 3/22/2012 Neighborhood News.

The answer depends on whether legal notice of a proposal is: notice you intend to do something, i.e. I want to amend the provision; or, notice of exactly what it is you intend to do, i.e. I want to amend the provision from "x" to "y".

Again, past practice is not relevant here, what is is the adequacy of a "challenged" notice.  

I close with the following:  

I absolutely agree that the current code provision needs to be amended.  I truly do.  

I also agree that the proposed article language would have been sufficient for a placer holder on the warrant.  But using language sufficient to get a place on the warrant and using language legally sufficient to meet the notice requirements of c. 40A, Section 5 are not one in the same.

1 comment:

  1. NOTE: As indicated the comment below is from "Code of Fairhaven" . I appear to be having a problem with comments posting directly (have run into this glitch with another commentator before). In any event I have cut and pasted the entire comment from the delivery e-mail. you may have to cut and paste the web address into your browser for the link he provides.

    Code of Fairhaven has left a new comment on your post "What is, What shouldn't be, What won't":

    There is a 14 day requirement for hearing notices in newspapers. The Planning Board advertises for two successive weeks (14 days) in the Neighborhood News, which has the highest readership in Fairhaven of any newspaper. No error was maid on this requirement and none was claimed.

    The 14 day requirement for the Selectmen to submit to the Planning Board is not required in a town when the zoning amendment is initiated by a Planning Board. The Selectmen should not use the 14 days as a defect, because none occurred! Town Counsel never claimed this was a defect in process as well, as they complied with this.

    The following is from:
    http://www.mass.gov/ago/government-resources/municipal-law/municipal-law-faqs.html#planning

    Q: In By-Law Submittal Form 7, Item 1 asks for "the date on which the proposed zoning by-law amendments were submitted to the Board of Selectmen." Item 2 asks for "the date on which the Board of Selectmen submitted the proposed zoning by-law amendments to the Planning Board" to hold a public hearing on the proposed amendments. What must the clerk enter on these items if these two events did not occur?
    A: Write "not submitted" for Items 1 and 2. M.G.L. c. 40A, s. 5, provides that a zoning by-laws amendment may be initiated by submitting the proposed amendment to the board of selectmen. Section 5 also provides that the board of selectmen shall, within 14 days of receipt of the proposed amendment, submit it to the planning board for discussion at a public hearing. Although M.G.L. c. 40A, s. 5 , provides this mechanism, the Attorney General's Office recognizes that many zoning by-law changes are initiated directly by the planning board or are given directly to the planning board by the proponent of the change. In many towns the town meeting warrant is not signed by the board of selectmen until after the planning board holds it hearing, and in some cases the warrant article itself reflects revisions to the original proposal resulting from that hearing. We deem this portion of M.G.L. c. 40A, s. 5 , to be directory only and not jurisdictional, and absence of this information in Items 1 and 2 is not necessarily fatal.

    John as to your main point in question, about what is required to be included in the advertisement, they are not required to submit the entire text language in the newspaper. A prior case in point would be the amending of Fairhaven Sign Code, which came out of committee at 19 pages. You will never see all the language in the advertisement. This is the current allowed interpretation as practiced state wide. You can easily arrive at the same conclusion by asking any planning agency in Massachusetts. Of course, any agency could be ultra secure and pay for advertising of 19 pages of text code, but the Planning Board would not be able to afford it. Thankfully, it is not a requirement!

    They are compliant because the subject matter of the proposed amendment is referenced only to give notice. The complete text and maps relative to the proposed amendments are available for inspection during regular business hours at the following place Fairhaven Town Hall.

    Posted by Code of Fairhaven to Fairhaven, The South Coast and More at Thursday, April 19, 2012

    ReplyDelete

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