Friday, November 16, 2007

Perpetual motions

Every now and then a meeting is so grueling that I curse this whole blog thing. This was one of those meetings.

Things started well enough – the quorum was announced at 7:40 and the meeting began about a minute later. The Moderator said that he would be recusing himself for Article 15 – Spring Street – (because much of the land in question is owned by his employer, Amherst College) and that Jim Pistrang is willing to serve, should we elect him. As if we would get to Article 15 last night.

The Moderator and Eva Schiffer offered high praise of outgoing Senior Planner for the Town, Niels la Cour, who has taken a planning position at UMass. Eva talked about his decade-long work on the Comprehensive Plan process and his creation of the Town’s tremendous Geographic Information System (GIS,) as well as his overall enthusiasm, patience and expertise. Town Meeting applauded.

Larry Shaffer also congratulated Niels and wished him well. Then he spoke about the zoning articles, and the on-going discussions about Special Permit versus Site Plan Review. He then asked the Moderator and Town Meeting to let Allan Blair, head of the Western Mass Economic Development Council, speak about how those two options are viewed by the outside world.

Because Mr. Blair is not a member of Town Meeting or a registered voter in Amherst, he can only speak with majority consent of the body. In my experience, the vote to approve such a speaker is a mere formality. Not so this time – there were more than a few loud Nos. I was ashamed of us.

Mr. Blair said that he has been working on economic development issues for 25 years in Hampshire, Hampden and Franklin counties, and has observed that communities that have been successful in diversifying their tax base are those which have expedited their permitting to provide developers and interested businesses with “certainty” about the process. He said that uncertainty of time and effort required to go through the process, and the uncertainty of the final outcome – whether meeting all the criteria will actually lead to an approved permit – causes companies to avoid such communities if they can. He said that certainty of process and timeline is an encouragement and uncertainty is a discouragement, and that Site Plan Review represents certainty because it means the use is by right after all conditions are met.

Mr. Blair spoke only briefly, but it was not brief enough for some. One member interrupted with a point of order to ask if he was being timed. When Mr. Blair was done, another member called it “outrageous” that he had been allowed to speak and that an opposing view was not being presented.

Town Meeting keeps finding new ways to discourage and depress me.

So I can’t take full credit (blame?) for this, because it may have been in the works anyway, but I had suggested to Mr. Shaffer that he get Mr. Blair or someone with such expertise to address Town Meeting to provide an external professional perspective. Why? Because many have noticed that various e-mails, discussions and TM objections have questioned what evidence there is that Special Permit is considered a deterrent and that businesses are really not settling in Amherst because of it. So who might credibly provide that kind of evidence? The Planning Department, which is inexplicably seen as an enemy saboteur by some? Individual TM members offering anecdotal examples? The Planning Board? Oh wait, it’s their recommendation that is being doubted anyway.

If you really want information and perspective, then why would you not welcome the input of an expert external third-party? Why would you regard with disdain professional expertise intended to inform your understanding of the situation? Do you prefer to get your medical advice from random strangers because it is more “democratic” than the “propaganda” offered by a doctor?

And most of all, why would you ask the question “where’s the evidence?” if you didn’t want to know the answer? Here’s a guy who is providing just such an answer, and some in Town Meeting are engaging in the equivalent of putting their hands over their ears and bleating “la la la la la la la – can’t hear you!”

I am constantly baffled by the minutiae which some in TM feel the need to “understand” while being content to not understand – willfully misunderstand? – the larger concepts.

Which is the perfect segue back to the warrant.

Article 11 was about clarifying and regulating the uses that would be allowed in the Research and Development overlay district we created last week with Article 10. It was divided into three motions. (Read the Planning Board Report here.) Motion A was to establish that those R&D uses allowed in the Limited Business district by Special Permit be allowed in the R&D overlay district by Site Plan Review. Planning Board Chair Aaron Hayden prefaced his explanation of this by saying that good rules that are easy to follow protect the town better than vague rules. He also emphasized the Site Plan Review is a rigorous process that doesn’t “give away the shop,” saying that there are 34 rules governing the Planning Board’s approval of a Site Plan Review, and that their vote requires a supermajority with a minimum of 5. He said that the ZBA has 18 rules governing approval of a Special Permit, and that their vote must be unanimous among all three members.

The Select Board and Finance Committee both had unanimous support for the motion. Someone asked about the Board of Health’s involvement in creating the article and their willingness to be involved in its regulation, and Mr. Shaffer provided assurance of both. The ZBA supported the motion. One person spoke against it. Gerry Weiss gave it strong support, saying that Special Permit sends the message that we don’t want that use in our town but we’re willing to consider it; and said banks are reluctant to finance projects requiring Special Permit approval, contributing to Amherst’s reputation for being unfriendly to business.

The question was called; it passed, and the vote on Motion A passed with a declared 2/3 voice vote.

Motion B was to make more intense manufacturing require a Special Permit instead of a Site Plan Review in the only two districts where it is allowed - Professional Research Park and Light Industrial. The motion was changed from the original permit provision in the warrant, which called for one of the rare Planning Board SPs, to instead call for a ZBA SP. That change was due to a compromise reached at a meeting the night before between those two boards. The Select Board and Finance Committee had both supported the original SP designation and assumed that their members would support this change also, though no formal votes had been taken on it. ZBA supported it. There was a question or two, the fixing of a typo, and a small process objection, and then the vote to approve Motion B was overwhelmingly in support, with a few scattered Nos.

Motion C was to add language to the Zoning Bylaw aligning the Town definitions of toxic and hazardous substance with those of the State. With little discussion, it passed unanimously.

Yes – unanimously. Even the usual token Nos acceded to clarifying the definitions of toxic substances. How about that.

Article 12. Ugh. This is where the wheels fell off.

This article (PB report here) was about regulating uses that are secondary to a primary R&D use. It is in three sections: the first proposes changes to the current regulation, and the second two propose new language to be more specific about what is and isn’t allowed and where. In a nutshell, the article sought to allow approval of secondary uses to occur under the same process and permitting authority by which the primary use was permitted. If your use and location required a ZBA Special Permit for the primary use, then that is to whom you would go to seek a permit for a secondary use, and likewise, if Site Plan Review was the primary use authorization, so too it would be for the accessory use. Doesn’t sound too complicated, and the Select Board and Finance Committee both supported it unanimously.

But the ZBA sought to amend it to make all accessory uses require Special Permits, which as I understood it, essentially guts the Planning Board’s proposed change to that section, but accepts the proposed new sections.

Then a ZBA member sought to divide the article, separating out the second of three sections of proposed new language – the long, detailed part – so that sections one and three would be voted on separately from section 2. For those following along at home with your warrant – how sad! – the section of concern was 5.071.

This led to nearly two hours of questions from people who didn’t understand, restatements by people who did, and attempted clarifications by those who sometimes did and sometimes didn’t.

There were legal questions, procedural questions, regulatory questions, and plentiful questions on the differences between principal and accessory uses. Most perplexing of all, there were two separate motions to refer this back to the Planning Board. Why would this be referred back? Because not all the Town Meeting members could wrap their minds around the intricacies of the article.

Could that be because they aren’t on the Planning Board? Because they aren’t fluent in the complex details and confusing language of the zoning bylaw? Because they have no idea how different uses are currently governed and what the proposed changes mean?

Referring the article back to the Planning Board wasn’t going to solve any of those issues. They already understand it – that’s what they’re for. We have a Planning Board and a Planning Department so that we don’t all have to be individual experts on the Zoning Bylaw. It saves a lot of hassle. Or at least, it should.

There is an unfortunate arrogance to the notion that “If I as an ordinary citizen can’t understand this, it must be bad, or must need to be fixed.” There are roughly 250 Town Meeting members. We are variously abled and variously interested. We need to understand the concept of what we are being asked to vote on, and to exercise our individual wisdom accordingly. But we need to recognize that we might not understand every minute detail, and that every one of those details does not need to suit our personal fancy. And we have to have some trust in the process that brought the articles to us.

If we don’t trust the process or we don’t like the outcome it produced, there is no need to pick the article apart or stall it in procedural gridlock. Just vote against it.

Simple. Straightforward. And democratic.

Eventually, there was a tally vote on the motion to refer Article 12 back to the Planning Board. It failed with 56 Yes votes and 107 No votes. I voted No.

After more noodling around, we eventually voted on the ZBA’s amendment. It was defeated in a voice vote. I voted No.

After still more noodling around, we voted on parts one and three of the main article. That required 2/3 majority and passed on a standing vote of 121 to 33. I voted Yes.

Then more noodling on the second section, which had been divided out. That too was sought to be referred back to the Planning Board. That failed in a voice vote. I voted No.

We quickly voted on the original motion for that second section, and that passed in a declared 2/3 majority voice vote. I voted Yes.

In the frenzy of trying to finally get out of there – was it 10:20? I forgot to write it down – the body was offered the opportunity to adjourn until November 28th, but I’m not sure people understood that’s what was happening, and that in order to do so we would have to first reject the motion to adjourn to Monday the 19th. We approved that first motion so now we meet again Monday. It doesn’t make much difference to me. I would like to get this over with sooner rather than later, but I also think a lot of people will probably already be away for Thanksgiving on Monday, so I was leaning toward the 28th.

So the bad news is that it took us an entire evening to parse out two articles. The good news is they both passed. Beats the heck out getting through them quickly but having them fail.


Richard Morse said...

I agree that last night had dispiriting aspects to it, but there were two very encouraging highlights.

1) The outcomes of the votes, and most of them weren't close.

2) The clear voice of Mr. Weiss in taking a strong position in support.

Carol said...

Great synopsis, Stephanie! You must have had writer's cramp by the end of it all.

Rich, I agree on both counts.

And by the way - we should all take knitting lessons frm Rob Spence - that man can knit!!!

Chris Hoffmann said...

Wow. Positive comments from Mr Morse. There's hope for us yet!

And I also agree his two points.

Debate on article 15 is guaranteed to be time-consuming, but I hope not nearly so confusing as last night.

Larry Orloff said...

"Most perplexing of all, there were two separate motions to refer this back to the Planning Board. Why would this be referred back? Because not all the Town Meeting members could wrap their minds around the intricacies of the article."

I think a basis for the referral motions was that the ZBA wasn't sufficiently involved in the creation of this article. If there had been consensus between these two boards, the language of the article would have been more transparent. Anne Awad spoke eloquently to this point.

Jonathan O'Keeffe said...

Larry, I agree with your point about the importance of cooperation between the two boards. I think the ZBA has every right to participate in the drafting of these articles, and to express their opinions on them.

However, I don't agree with the sentiment expressed by some that the ZBA was somehow excluded from the process. These articles were drafted and analyzed in a very public process, with significant input at every stage from the public and from other town boards. The ZBA is welcome to express their input through this process, either as a board or as individuals. Given the ample opportunities for input at every stage, what troubles me is the last-minute nature of the objections, and in particular, the on-the-floor amendments to these already-complex articles.

Going forward, I hope that the ZBA can become engaged earlier in the process for future zoning articles. I think that the Planning Board will welcome this input, and this will help us achieve the type of consensus that you're seeking.

LarryK4 said...

The difference to a developer between getting a majority or even two-thirds of the Planning Board approval vs. the unanimous decision of the ZBA is like playing Russian roulette: One six shooter has three empty chambers and the other has five.... which would YOU prefer?

robert said...

Dear readers,

I agree in principle with Jonathan OKeeffe's point about the problems with "on-the-floor" amendments to complex zoning articles. But he tells only part of the story.

Part of what's missing from his account is this: The core of the differences between the PB and the ZBA were not "last-minute" but in fact had emerged back in July, at the very fist meeting of the PB's zoning subcommittee. For whatever reason, the PB didn't adequately appreciate them until recently.

Nevertheless, a lesson can be learned from the way Article 11 was handled: The ZBA and the PB reached consensus on a motion under Article 11 when they met together with Gerry Weiss and me the night before Town Meeting; the result was a new motion by the PB which led to the near unanimous adoption of the various amendments to the zoning bylaw under Article 11.

The other missing part of the story is that the PB and ZBA also discussed Article 12 this Wednesday night, but were unable to reach consensus before
coming to Town Meeting. Jonathan was one of the PB members opposed to the change the ZBA sought; several folks (including Jonathan Tucker) made a good argument (at that meeting, and again on the floor of Town Meeting) for why the
ZBA version had flaws.

Nevertheless, the PB version of Article 12 *also* had serious flaws. When this emerged on the floor of Town Meeting, a reasonable move was made by Jim Smith: Refer the article back to the PB to repair those flaws (and possibly reach a consensus with the ZBA on how to deal more with carefully accessory uses). And even though the Select Board had unanimously supported the PB version of Article 12 originally, three of us were concerned enough about enacting flawed zoning regulations to vote to refer. Unfortunately Town Meeting was not so careful....

While I think we can live with the version that ultimately passed, it still has serious problems. The PB should review it carefully with the ZBA between now and the spring, and consider bringing back an amendment for the 2008 Annual
Town Meeting which would clarify the "grey" or "sloppy" areas which remain.

Rob Kusner
Select Board Vice-Honcho

Post Scriptum: The failure of the PB and its staff to catch the error which Jim Oldham and I brought to the Moderator (and which Jonathan Tucker acknowledged was "a serious oversight") should give us all pause. This leads me to repeat a remark I have made in this forum before: Because of the 2/3 margin needed to change a zoning bylaw, IT IS BETTER TO REFER BACK A FLAWED ZONING ARTICLE THAN TO ADOPT ONE - in fact, all it takes is the calling of a "special" STM (or the patience of waiting at most 6 months till the next "regular" TM) to get it right. I believe all Town Meeting members are thoughful and reasonable enough to agree with this general proposition. I also believe that Jonathan in particular could make a positive contribution here: Please help correct the flaws which may have been introduced with the adoption of Article 12 by bringing the ZBA and PB together ASAP to consder and propose any clarifiying amendments to that part of the zoning bylaw for the next TM.

Abbie said...

What exactly remains in Article 12, which passed by a large margine, that Mr. Kusner believes has serious flaws? Please outline them to the TM members who "were not very careful". Please, step up to the plate. Or is it possible that TM members were careful and they saw through the subterfuge and obfuscation presented by opponents of economic viability for the town of Amherst. To further delay reasonable changes in zoning is to delay generating new sources of revenue that our town desperately needs.

Jonathan O'Keeffe said...

Rob, you need to present at least a bit of evidence to support your assertion that the article is "seriously flawed". The Planning Board does not believe the article is "seriously flawed". I can say that on behalf of the board, and not just in my own voice, because the board voted unanimously to support this article. The Select Board too (with your assenting vote) supported this article unanimously.

The ZBA disagreed with this article, and offered an amendment that would have removed most of what the Planning Board was trying to accomplish in the article. They're entitled to disagree, and they're entitled to try to amend the article. But the fact of their disagreement does not constitute proof that the article is "flawed". It just means that they don't agree that this is how we should regulate these accessory uses.

Your analogy between the way that Articles 11 and 12 were handled is tenuous. On Article 11, the ZBA supported the core premise of the article, and disagreed about a minor technical detail (who should be issuing the Special Permit). The Planning Board had no problem with making the minor technical change they requested, and we voted unanimously to do so.

The situation with Article 12 was completely different. One of the central points of the article was to allow accessory uses under an amendment to the permit for the principal use. The ZBA didn't agree, and wanted this changed. Essentially, the ZBA opposed the article, and the Planning Board supported it. There was no reasonable way to bridge this gap by tinkering with the language of the article, which is why the Planning Board decided to take no action and to bring the original article to Town Meeting for Town Meeting to decide.

robert said...

Dear readers,

Abbie may have forgotton that I spoke on behalf of Article 12 (as well as Artiicles 10 and 11), and I also helped to clarify a couple of points for members of Town Meeting; thus I assume her innuendi about "obfuscation and subterfuge" were directed elsewhere. Nevertheless - and especially with zoning - we must remember that "the devil is in the details"! Town Meeting deserves the opportunty to get these details right, as I think we did with Articles 10 and 11. But I also believe we all observed that there is considerable disagreement about how the details of Article 12 may be understood by members the ZBA or the PB or their staff in the Planning Department.

It's impossible for me to pinpoint each and every disagreement the ZBA and PB (and staff) may have on this, but to take an example, if one asks folks from these groups to explain the implications of the last sentence of section 5.070, there surely will be a divergence of opinion. (Recall that part of that sentence was deleted by a motion on the floor; the implications of that deletion were not vetted by Town Counsel, who also missed the fact that part of that sentence which remained in the PB motion was inconsistent with the other changes proposed by the PB.) There are also questions which the ZBA raised about the various subsections under 5.071, in particular 5.0714, which still need to be addressed.

As I wrote earlier, I think we can live with these grey areas for now, and I am satisfied with where Town Meeting wound up on Article 12, despite the many stumbles along they way. But (as I also wrote) I believe the PB and ZBA should get together and figure out what these sections really do mean, whether the language there reflects that, and if not, then agree to fix whatever remains to be fixed.

That's it - thanks for listening,

Rob Kusner

P.S. As I was editing this I saw that Jonathan has weighed in. Let me comment further (and with any luck, no more): My first reference to "serious flaws" referred to mistake in the last sentence of Section 5.070 in the PB version, which may have been repaired by the amendment on the floor. Admittedly that was a "detail" (see above for more on that) and whatever "serious problems" which remain may also be "details" - but the ZBA and PB
should get together and work those out.

Anonymous said...

While I am far from being a law expert, it is my understanding that “rights” as in the last phrase stricken from Article 12 (“by right”) are provided by our legislative laws. Although folks like to think that they have “rights” to all sorts of things, only those that are provided by our laws are “rights”. For example, the failed Equal Rights Amendment, (ERA) would have provided greater civil rights “by law” to broad swaths of our society. That said, I think that the language in Article 12 would have been appropriate as it was originally presented to TM, since those “rights” were circumscribed by the zoning laws as indicated in the article. It was suggested in TM that the phrase “by right” meant that they could do whatever they wanted. But the only rights we have are those that are provided by laws. If I am wrong, perhaps one of our lawyer-types could educate me on the proper definition of “rights”. Nonetheless, the change that was made to Article 12 was minimal.

I am still waiting for Mr. Kusner to explain the flaws in Article 12 that was so overwhelmingly supported by us careless TM members.

Marcy said...

A couple meetings ago, when the merits of a CPA article seeking approval for the purchase of conservation land (land that had not previously been on the priority list for purchase until it was slated for development) was questioned, Rob Kusner took the floor to implore meeting members to "trust the experts" on this one. By experts, he meant the Conservation Director, the Conservation Commission and the state agency that had approved a grant that would help underwrite the purchase. Town Meeting took that leap of faith and approved the article with an overwhelming majority. When zoning articles come before us, however, especially ones attempting to fuel economic development, suddenly the "experts" are not worth trusting. Not the Planning Director; not the Planning Board; not the Town Manager, who was universally lauded during the hiring process for his prior experience and success in the area of economic development; not Allan Blair, a representative from The Western Massachusetts Economic Development Counsel; and, apparently, from the nature of the arguments related to the risk of flooding near The South East Street parcels that will soon be up for consideration, not our Town Engineer or Public Works Department either. Suddenly, instead of being implored to “trust the experts”, we are being chastised for being not “so careful”. What’s the reason behind the disparity here? Is it as simple an equation as Conservation=Good and Development=Bad? Or is there genuine concern about doing away with important safeguards in the community? If the latter is true, then I want to remind us of the fact that there is much more in this community than site lines and wildlife corridors that we need to be concerned about safeguarding. Our schools, our public safety, and our town services have all been suffering some serious erosion, and will continue to do so if we don’t take action on multiple fronts to address the causes and effects of our structural deficit. The zoning articles before us represent some modest, well thought out changes to the ways in which we regulate development in a few areas in town that have been very specifically targeted as being appropriate for certain kinds of development. The purpose of the articles is to increase opportunity for desperately needed revenue. Let’s not be “so careful” that we let that opportunity pass us by. The devil can only be in the details if we allow it to. Lets pass these measures and move on.

Richard Morse said...

There's a fundamental question buried in the back-and-forth here: just why do we have a Planning Board AND a Zoning Board of Appeals, that is, two separate boards?

My unstudied sense is that we have two boards because they have distinct and separate powers in Amherst. And, if I'm right about that, that separation of powers was breached in the ZBA membership's insistence on addressing these articles as a board, rather than as individual TM members or residents of the Town.

The other fundamental question buried in this discussion: just what is "consensus" in Amherst? To be practical about it, at some time in an extended debate, one person's consensus is another person's surrender. And at what point should some elusive notion of consensus give way to the need to come to a decision? In short, at what point do we have to say, "oh the hell with it, let's vote on this."

It should come as no surprise to anyone that I have a jaundiced eye at this point about criticisms of the public hearing process on these articles. Criticisms of process come in Amherst as sure as night follows day.

It's a little bit like the boy who cries wolf. Calls to refer articles back to boards come with almost every controversial issue in Amherst, and they seem to be coming from the Obstructionist Playbook in town.

That still leaves Town Meeting members like me stuck with the unenviable task of sorting out which complaints about process are legitimate and which are not. I would point out that we have a Planning Board with an almost entirely new membership from the one that existed, let's say, five years ago. I think that there's some significance in that.

So when Mr. Kusner says that "for whatever reason, PB didn't appreciate" the differences with ZBA "until recently", I am very skeptical about claims that the current PB membership was not listening. There's a time for listening, and a time for deciding, unless, of course, deciding is exactly the thing that you wish to avoid.