I would agree with one point raised several times from the crowd. What was the developer doing seated at the table?
And if the Board of Health meeting was pretty tame, last night's pre-town meeting was a down right love fest. Keeping the meeting to that of one where town meeting members are allowed to ask questions is in my mind the way to go. Some may disagree.
Based on what transpired last night, it would seem town meeting should be a one day session. A great many articles which could have been subject to lengthy debate are being withdrawn or passed over, so we are told.
The turbine moratorium article for the special apparently is going forward.
I am not opposed to a moratorium. Truly I am not. But in my mind the article would not be valid if passed. some seem to disagree with that, which is fine. But this is being treated as a zoning article, and from what I have heard will require a 2/3 vote.
If it fails will it be subject to the statutory moratorium of 2 years before it can be acted upon unless it receives a favorable vote from the planning board. My friend The Code may be able to help us out with this.
If the article would be subject to the two year further action rule, would the town then only be able to act on a future moratorium within that period solely to the extent that is recommended by the planning board?
I guess what I am asking is could an proposed action within the two years be amended on the floor, or would the only have the option to vote yes or no on the PB recommended action within the two years?
Maybe that this type of article would not be held to that rule in any event. Not sure to be honest.
You never know what article is going to pose an issue and debate at town meeting, so while it seems we can guess those that will, there are others that will pop up.
I am a bit pressed for time this morning. There were several other things that I wanted to address, including yesterday's update and an interesting side story about last night's meeting. If my schedule opens up this afternoon maybe I will get to those bits.
One thing that did surprise me about last night was the attendance. I would describe it as typical for such a meeting. I thought it would be larger. The plus, only one precinct was unable to muster a quorum.
Well I guess I was also surprised by the lack of questions. I hope it is a positive sign that those in attendance are aware of the issues and have done their homework.
My first thought John is that 200 registered voters can petition a STM warrant article, but cannot “cease or suspend” an applicant who has an application accepted before a board or permitting agency, which is either completed or in process. I have seen developers strategically time applications in any limited manner, to begin grandfathering rights. So I don’t see how the article has the ability to be retroactive. I don’t see how the article could compel employees to take action. I don’t see how the article can direct the planning board to take certain actions.
ReplyDeleteThe article makes no claim to specific existing zoning language to be suspended and the article did not follow the path of a zoning amendment as in MGL ch 40A, so I don’t see how a two year reapplication restriction for failed zoning amendments would apply to this article. The article does not pass muster for zoning and so cannot be held to such a restriction. I could imagine a challenge on the floor as to voting requirements of two-thirds as well.
The language is specific as to term, one year, which is important. But I don’t understand how it accomplishes that. I really don’t pretend to know what is permissible in these cases, because similar moratorium articles are being successfully passed in other communities. I just don’t know how the Attorney General ruled in each instance. Wind Wise, being a national organization, has practical knowledge in this area and I would presume they helped craft it.
In my opinion the best that could come from this article is to frame it through floor amendment to become a sense of the meeting vote. A mere majority vote would be necessary. Either way the planning board is already on record to proposing amendments to the wind energy facilities bylaw. Until someone opens a public hearing with modifications, the present language is in full effect.
I agree with you, i.e. I don't see how this article could be retroactive. There are extremely limited instances where any by-law, statute or even judicial ruling can be applied retroactively, and this would not be one of them.
ReplyDeleteAgain I state I am not opposed to a moratorium. Let's just get it done right.
I am not trying to cause an argument with what I am going to say next, but am looking for opinions. Based upon what I have read, the fact that there is no claim to specific existing zoning language to be suspended would not defeat so to speak the interpretation that it was in fact a zoning article.
It certainly speaks to prohibiting a presently "permitted use". It clearly identifies the intent, being a one year moratorium. It seems to deal with matters within the preview of zoning. It would appear to meet the "duck" standard.
If the 2/3 vote standard is challenged, I can see some unhappy people no matter what the outcome. On that one, the decision I believe is in the hands of the moderator, not town meeting. Certainly there could be a legal challenge of the moderator's decision, but for town meeting, I am pretty sure that one rests ultimately in the moderator for the purpose of the vote.
I don't know who crafted the language, but it does not seem they took into account applicable Massachusetts law. In the end, if passed, the A.G. will ultimately rule on it.
As to it being amended to be framed as a sense of the meeting vote, I would concur that might be the wisest course. As I stated in a previous post, that would be my suggestion. I am not sure if such a amendment might be allowable, I would think it could and should be allowed, especially sense it would then be framed as an opinion of the body present and voting, and would be non-binding in the sense it does not have legal effect and is clear to the amended intent.
I would sincerely be interested in the names of the Massachusetts communities in which the similar articles with binding moratoriums have been passed. Might provide some insight for me. I have attempted to find them but have only come up with the Shellburne Falls vote a few days ago.
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DeleteThe comment was deleted due to the use of copyright material without reference to the source. I appreciate the comments and information from The Code, however, verbatim reproduction without proper attribution is in my mind a violation of the copyright laws. The post did reference moratoria in Cohassett, Framingham, Shellborne Falls, Falmouth, Acton and Spencer.
DeleteUse of copyrighted material is allowed under limited circumstances under the "fair use" doctrine. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” Taken from the US. Copyright Office website http://www.copyright.gov/fls/fl102.html
As I said before the copyright laws apply to blogs and the internet. Please provide the appropriate cite or reference when you are using someone else's copyrighted material.