MWDN: Southborough board creates subcommittee to go over controversial bylaw

by susan on March 19, 2013

There are a lot of changes proposed in the new draft of the town’s zoning code, which will come before voters next October, but the change that has proved most controversial is the one referred to as Open Space Residential Development (OSRD).

According to the state’s Smart Growth website, OSRD is “an approach to residential development that promotes open space preservation based on environmental and social priorities. It features partnership in development design between municipal officials and developers that provides innovative flexible incentives for highest marketability, mixed housing types and land uses, and minimal disturbance to the natural terrain.”

Both Southborough’s Open Space Preservation Commission and Conservation Commission have opposed the town’s proposed OSRD implementation, saying it skews to heavily in the favor of developers.

At their meeting last night the Planning Board, which is charged with shepherding the new zoning bylaw to town meeting next fall, voted to create a subcommittee to look at the new OSRD provisions and attempt to find middle ground.

Reports the Metrowest Daily News:

After holding a discussion in private for roughly 20 minutes before opening the meeting, the Planning Board Monday elected to create a subcommittee to deal with a controversial open space bylaw.

The subcommittee meetings – which may or may not be posted – will be held in the interest of reaching a compromise with critics of the proposal, members said.

“I would like to see if we can make one last stand or opportunity to see if we can make something work,” said member Dana Cunningham, who proposed creating the subcommittee at the beginning of the meeting.

You can read more – including some interesting observations about whether the board’s private discussion was in accordance with open meeting law –  in this article by the MWDN.

1 Joyce March 19, 2013 at 8:21 PM

This doesn’t pass the smell test. A town subcommittee whose meetings might not be posted? Why would that be a good idea?

2 Pat Q. March 20, 2013 at 7:12 AM

Who will choose this subcommittee?

3 Tim Martel March 20, 2013 at 8:47 AM

Its just 2 members of the Planning Board that will meet offline with various stakeholders to try to work out a compromise. They will then report their findings to the Planning Board during an official meeting. Because the subcommittee is less than a quorom, this procedure is perfectly legal.

4 Tim Martel March 22, 2013 at 9:56 AM

This statement is invalid, and so I retract it. My apologies.

5 Resident March 20, 2013 at 10:20 AM

If the ZAC had just included the Open Space Preservation Committee in their process, perhaps even allowing a member of the committee to serve on the ZAC, from the beginning, this would not be an issue. Unfortunately, they thought they could bully them out of the process and not suffer any consequences. It is disgraceful. I am glad to see that the members of the OSPC stood their ground and might finally be heard. I, for one, will not vote in favor of the proposed bylaw until the issues with both the OSPC and the Com Comm are resolved.

6 Mark Ford March 20, 2013 at 2:05 PM

I’d add that a close read of Sam Stiver’s concerns are in order–you may not agree with all of them, but I find them compelling.

7 Check the facts March 21, 2013 at 12:31 AM

According to the Attorney General a subcommittee is obliged to abide by open meeting law just as any other committee, board or commission. Any time a quorum of a subcommittee meets, (in this case the 2 members) they have to post the meeting and abide by all other aspects of Open Meeting Law – take minutes, the public has the right to attend all of their meetings, not deliberate outside of posted meetings etc. The fact this subcommittee of the Planning Board doesn’t include a quorum of the Planning Board is irrelevant and doesn’t make the subcommittee exempt from open meeting law.
Seems the Planning Board was trying to get around the public’s right to witness their review of the Open Space Commission’s input on the OSRD, but miscalculated based on their lack of understanding of Open Meeting Law which they are bound to adhere to.

8 Tim Martel March 22, 2013 at 9:53 AM

I sincerely thank you for this information.

I have spent some time reviewing 30A(18-25) and the AG’s opinion. I believe your interpretation is correct, and that the Planning Board’s new subcommittee must comply with open meeting requirements. This subcommittee is seemingly a public body based on the manner of its creation and purpose.

Just for clarity:
1) a meeting is a “deliberation by a public body”
2) a “deliberation” is “an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction”
3) a “public body” in regards to a subcommittee “shall include any multiple-member body created to advise or make recommendations to a public body”

But this is not to say that 2 members of a 5-member board cannot informally pick up the phone and talk to each other about any business within the board’s jurisdiction…or informally meet in private.

9 Check the Facts March 22, 2013 at 10:53 PM

Just to be clear
The 2 members of the Planning Board that have been appointed to this subcommittee may not talk to each other other informally about any of the issues the subcommittee will be reviewing even though it’s also business of the Planning Board because they are a quorum of the subcommittee.
Before they were appointed to the subcommittee, as two members of the Planning Board they could discuss the OSRD with each other but now they can’t.
Another tactic not allowed is a phone/email/conversation tree, where one member talks to another about business of a 5-member board (which is allowable unless they’re a quorum of a subcommittee).But then one of those two calls a third member of the 5-member board and discusses the same issue. Although at no time is a quorum present for the discussions, the Attorney General views that as a deliberation and a violation of Open Meeting Law.
In addition to reading the vast amount of information on the AG’s website, anyone unsure of the requirements of Open Meeting Law may call the Attorney General’s Office and they will answer your questions. 617-963-2540
The Attorney General’s latest Open Meeting Law Guide:
http://www.mass.gov/ago/docs/government/oml/oml-guide.pdf
Division of Open Government Office of the Attorney General
More info:
One Ashburton Place Boston, MA 02108
Tel: 617-963-2540
http://www.mass.gov/ago/openmeeting OpenMeeting@state.ma.us

10 John Butler March 22, 2013 at 6:33 AM

There is a related issue that people should be aware of. In a few areas the current zoning bylaw is not consistent with recent court decisions and leaves the town vulnerable to legal actions.

Fixing this legal problem is not a giant change. It fits on two pages. On the other hand the draft of the Planning Board zoning re-write runs to over 100 pages, and makes major changes throughout our zoning law. That may be fine, if voters want it.

However, I, Frederica Gillespie, Sam Stivers and others, believe that voters at the October Special Town Meeting should not feel an obligation to vote for major changes to our zoning simply because the current bylaw has some legal issues that can easily be fixed. Therefore, we are taking steps to ensure that an alternative Warrant article containing the simple legal correction will be available to voters at the October meeting.

We do not intend this to be prejudicial to the Planning Board proposal. If voters want the changes proposed by the Planning Board, whenever their proposal is in final form, that is fine. But, in our view, no Town Meeting voter should be told “If you don’t vote to support this re-write, you leave the Town in an illegal position.”

We are hoping that either the Planning Board or the Board of Selectmen will see the wisdom of giving voters a choice in this situation, and include in the October Meeting Warrant the brief, legal-fix article we have drafted. We have sent them the draft Warrant article with this objective. If they do not act to place this article on the Warrant, you may see us at the Transfer Station collecting signatures to give voters a fallback position, should they want it.

11 Matthew March 22, 2013 at 8:52 AM

NICE! This “fallback” position should have been the first one proposed. Let’s get our ass covered before anything else. To give us just the one option was irresponsible.

12 Just Curious March 22, 2013 at 5:57 PM

John,

Would it be possible at this late date to get this other option before the April town meeting? Perhaps that would eliminate the need for an October town meeting and save ethe town the $10,000 cost for the town meeting.

13 John Butler March 22, 2013 at 7:07 PM

Just Curious,
Funny you should ask. We did submit the article with the required signatures to the Board of Selectmen in February for the April Town Meeting. At the date on which we submitted it, the warrant was already “closed”, which is normal for that date. That means that the Board of Selectmen were under no obligation to choose to reopen the Warrant so as to add the article, although they had the authority to do so. The date of submission did provide sufficient time for the rest of the legally mandated process to run its course, had the Planning Board wanted to get it onto the April Town Meeting. The Board of Selectmen chose not to reopen the warrant, and we didn’t try to make a case to them of there being an “emergency” that required reopening.

The Board of Selectmen suggested that we take the article to the Planning Board as a next step. We did do that, in writing, and requested a meeting with the Planning Board. They have chosen not to reply, although there were statements made by members, not votes, that they weren’t interested in this. Currently it is before them once again, and we have requested that they sponsor it as an additional option for Town Meeting. Again there has been no reply, other than informal statements that they are not interested in seeing the voters have this option.

Of course the October Town Meeting is principally to see if the Town wants to change its zoning bylaw to whatever the Planning Board finally chooses to offer. So, that October Special Town Meeting would happen anyway, even if this had been on the April Meeting. Our purpose is merely to allow the voters to dispose of the legal issue easily, as soon as convenient, and not to feel under pressure to adopt a large set of changes to the Town if they don’t want those changes.

14 Just Curious March 24, 2013 at 12:16 AM

John,

Thank you for the explanation. Its too bad the Selectmen did not re-open the warrant.

15 southsider March 24, 2013 at 11:08 AM

I, for one, think there may be wisdom in submitting the “fallback” option in front of the April TM. If it passes and over the next few months it becomes clear that the more comprehensive plan is likely to fail in October, the Planning Board could opt to withdraw their request for that special TM. The town would save some money and effort and the Planning Board could avoid some embarrassment.

16 John Butler March 24, 2013 at 12:17 PM

Southsider,
At this point, it is too late by any measure to get it on the April Meeting. We jumped on it when we thought of the idea, drafted it, got the necessary signatures and submitted it. As noted above, when it was submitted, if all the various boards had wanted it to be actionable at the April Town Meeting, it could have happened. But, we couldn’t honestly tell the Board of Selectmen that it qualified as an “emergency” requiring reopening of the warrant and, even if they had done so, the Planning Board, pretty clearly would have not chosen to act on it in time to get it on the April Town Meeting. They’ve declined to even put the topic on their agenda. So, after it left our hands it stopped.
However there is plenty of time to put it on the October 7 meeting which has been scheduled for the Planning Board’s proposal. We have given a detailed schedule to both the Board of Selectmen and the Planning Board to meet that. We hope one of those Boards acts to put it on, or we will be collecting signatures again. Besides saving us time standing at the Transfer Station collecting signatures, there are advantages to the Town, in the form of early legal review, for the BOS or Planning Board to sponsor it. We’ll see. Everyone is aware.

17 southsider March 25, 2013 at 9:32 AM

Thanks for the reply. It is so easy to see the possibility of a poorly attended but contentious Special TM in October that ends embarrassingly.

18 John Butler March 25, 2013 at 6:31 PM

I hear you, but I hope that meeting is not poorly attended. Citizens who don’t attend could find that the Town is becoming very different from their expectations if they don’t attend. There is potentially a lot at stake in that Town Meeting.

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