(5/1/07)  The Select Board met Monday, April 23rd.  Gerry Weiss, Anne Awad, Alisa Brewer, Hwei-Ling Greeney and Rob Kusner were present, as was Town Manager Larry Shaffer.

Public Comment

No one spoke during this time.

Announcements

Mr. Weiss announced that a budget orientation meeting aimed at new Town Meeting members would be held Tuesday, April 24th from 7:00 p.m. to 9:00 p.m. in the Town Room at Town Hall.  He also announced an informational meeting about the override and the three-year plan to be held Thursday, April 26th from 7:00 p.m. to 8:30 p.m. at the Middle School auditorium.  He also announced a joint meeting of the Select Board and the School Committee to elect a new School Committee member, to be held Friday, April 27th at 5:45 p.m. in the Town Room at Town Hall. 

Ms. Greeney said she wanted to clarify that the meeting about the override is being organized by private citizens, not the Select Board.  She then described the “No More Overrides” sign stealing incident, and expressed her condemnation of it.  She asked people to respect freedom of speech and the democratic process, regardless of their stand on the issue.     

Special Municipal Employee Status – 250th Anniversary Committee

Barry Roberts expressed the desire of the 250th Anniversary Committee to have its Special Municipal Employee status renewed.  He said members of subcommittees who have expertise in event planning expressed unwillingness to continue their service without that status. 

Ms. Greeney asked him to express to people with concerns about serving that their worries were unfounded.  Mr. Roberts disagreed, saying that the concerns are well-founded.  Mr. Weiss said that members of the committee, such as Mr. Roberts, might need to bring business before other Town boards and committees, and couldn't do so without the SME designation.  Mr. Kusner stressed the need for vigilance in observing Conflict of Interest laws. 

Mr. Roberts said that there are vacancies on the committee, and that some individuals had expressed interest in applying, and he asked the Select Board to make those appointments once they receive the Citizen Activity Forms.

The vote to approve SME for the 250th Anniversary Committee was unanimous.

Special Municipal Employee Status – Conservation Commission

Otto Stein said the Conservation Commission had voted all in favor with one abstention to seek SME status renewal.  He said the Commission relies heavily on individuals with technical expertise, and didn't want to lose them.  Mr. Weiss said that the discussion might lead people to believe that SME is what allows people with expertise to serve on committees, but he said such people can already serve, explaining that SME allows them to serve safely.  Mr. Kusner repeated his concerns about Conflict of Interest laws, and how complex the issues are, and how conflicts aren't always direct and that utmost scrutiny is required.  Mr. Stein said that that begins with the body appointing the members to the boards and committees.

The vote the approve SME for the Conservation Commission was unanimous.

Special Municipal Employee Status – School Committee

Andy Churchill said the School Committee is seeking renewal of its SME status because of the desire for the widest spectrum of people to serve without worrying about compromising their livelihoods.  Mr. Weiss noted Mr. Kusner's Conflict of Interest law concerns and said those still apply, even with SME status.  Mr. Kusner reiterated his concerns from the last meeting about granting SME to board members from other towns when they renewed the Regional School Committee's status, and asked if there were similar issues now, with Pelham sharing resources at the elementary school level.  Mr. Churchill said that that was not applicable to this request.  

The vote to grant SME to the School Committee was unanimous.

Committee Appointments

Mr. Kusner said there had been a glitch regarding e-mail and the on-line Citizen Activity Form process, and he encouraged people to familiarize themselves with the on-line form.  He recommended Mary Wentworth for appointment to the Comprehensive Planning Committee, and said that she had been active in the last planning process in the 1970s.  The vote to approve her appointment was unanimous.

Mr. Kusner recommended Fran VanTreese for appointment to the Public Transportation Committee. He mentioned that he had also wanted to recommend her appointment to the Norwottuck Rail Trail Committee.  The vote to approve her appointment to the Public Transportation Committee was unanimous.

Article 34 – Petition – Resident Aliens

Vladimir Morales spoke to his petition article seeking allowance for resident aliens to vote in local elections.  He said he has pursued this since 1996, and that he is seeking to refile such legislation again in Boston. He said the request is Constitutional and can be done, and said it is unfortunate that he hasn't been able to persuade Amherst's State Representative or State Senator to call for cloture.  He said he is changing the motion for this article to ask our representatives of the courts to seek and support legislation about resident alien voting status.  He said that allowing resident alien voting is needed now more than ever, saying it seeks relief for those who pay taxes and could be drafted or have their sons or daughters killed in war.   He said support for this shows that Amherst cares. 

Jim Oldham, co-sponsor of the article, said that Amherst has approved this in the past, and that it is not the only town to do so.  He said other cities and towns have sought this also, and that such voting rights are common in other countries.  He said that the concept is not new or exotic, and that enabling residents to vote and preventing taxation without representation was a basic belief of the country's founding fathers and mothers.  He said he is struck by the huge number of people in town who can't participate in voting because they are resident aliens, and cited his own neighborhood experience as an example.

Mr. Morales sad that he and others are creating the Amherst Voters Rights Campaign and will be filing paperwork to establish themselves as a 501c4 organization, allowing them to conduct political voter education and to participate in debates.  He said that organization will be aimed at a broader audience than just resident aliens, and said it would be another way to spread the word, something he said he is committed to pursuing for his whole life.  He asked for the Select Board's support as a body and as individuals. 

Ms. Greeney asked if this action were to pass in the State Legislature if it would only affect Amherst, and asked if this had been approved for other cities and towns in Massachusetts.  Mr. Morales confirmed that it would only be for Amherst, but said that there has been some movement in Boston to try to institute resident alien voting State-wide.  He said that no other communities have yet been successful yet in getting this approved, though others have sought it.

The vote to recommend this article was unanimous.

Ms. Greeney said that she supported it because people are impacted by decisions such as increasing user fees and fines and closing the pools, and are not having a voice in those decisions.  She said Amherst is proud of its community diversity, and said that she would want to be part of any opportunity to support that.  Mr. Morales said that the article isn't just a “feel good” action, but rather, is the right thing to do.   

Article 6 – Petition – Cell Phone

Mr. Morales was also the petitioner of this article, which encourages the State to ban hand-held cell-phone use while driving.  He said it was based on a resolution put forth in Northampton.  He said that he and his wife had been in a fender-bender with a driver who was talking on a cell phone, and that he considers it to be dangerous behavior. He said that a State Rep from Springfield may be filing legislation on this issue, and said that if it gets to the floor of the legislature, he will seek the support of the Select Board, the School Committee, the Board of Health, and the Chief of Police.  He said Mothers Against Drunk Driving of Worcester has already indicated that it would support it if the bill advances.  He spoke of other states that have passed such cell phone bans. 

Mr. Weiss sought confirmation that the article was only asking to ban hand-held use, not hands-free use, and Mr. Morales verified that.  Ms. Brewer said she supported the article and suggested that at Town Meeting it be made clear that this can only be done State-wide, and that Amherst can't create a local ban.  Ms. Greeney suggested as a friendly amendment that language be included to recommend to Governor Patrick other entities that might be helpful to him in getting such legislation passed.  Mr. Kusner said the Moderator might consider that to be outside the scope of the article, and went on to talk about how any kind of inattention and distraction while driving is dangerous, not just cell phone use.

The vote to recommend the article was unanimous.

The Board decided put off discussion of which members would speak to each article at Town Meeting until next week. 

Article 8 – Zoning Bylaw – Farmstand Amendment

Jonathan Tucker, Amherst's Planning Director, spoke about Articles 8, 9 and 10.  He said that public hearings had begun regarding Articles 8 and 9 and would continue on May 2nd, and said the public hearing on Article 10 would begin on that date. 

Mr. Tucker said that Article 8 was created to bring local zoning regulations back in line with those of the State, which had changed, regarding criteria for regulating different classes of farmstands.  He said that farmstands are protected from local prohibition and excessive regulation.  He said there are two classes of farmstand:  Class 1 is a protected class and involves a higher percentage of local produce, and Class 2 has a lower threshold of land size and lower local produce percentage requirement.  He said Class 2 farmstands are allowed, but require a Special Permit in order to prevent farm-themed stores in residential areas. 

Mr. Weiss asked if the were issues being raised regarding Article 8.  Mr. Tucker said the two categories are confusing, dealing with in-season produce and produce that involves processing and lacks a particular season, and that that sort of distinction required seeking an expert opinion to understand.  He said that it is possible that the Planning Board would move to revise the article by including introductory phrases to better explain the changes.  He said that the threshold for seasonal produce for Class 2 stands might also be lowered to 15%.

Article 9 –Zoning Bylaw – Accessory Farmstands

Regarding Article 9, Mr. Tucker said it was designed to create regulations where none currently exist.  He said it is meant to formalize farmstands where there is not actually farmland, just large lots.  He said farm stands would need to be accessory rather than primary uses of the property, and that they would require Site Plan Review.  He said the intent is to both to encourage growth and sale of local produce, and to protect the community due to the traffic, lights and other elements of commercial activity.   He said they are still working on the language and the determination of what level of farmstand activity would require Site Plan Review, differentiating a larger-scale effort from selling excess zucchinis out of a wheel barrow at the end of the driveway.  He said it was possible that they will seek to have the article referred back and brought to Fall Town Meeting instead.

Ms. Awad said that was her concern – ensuring that such zucchini sales wouldn't become illegal.  Mr. Tucker said there are three levels of farmstands: principal uses; accessory uses, which he said would involve some sort of a physical structure; and that which is akin to a lemonade stand, a level he said was not a zoning interest.

Ms. Greeney said she wasn't familiar with the difference between Site Plan Review ad the Special Permit process, and asked for that to be explained.  Mr. Tucker said there are four ways to regulate, which he defined as “Yes,” where a use is by right, and requires following general rules of the bylaw, but doesn't need a permit; “No,” which means a use can't take place under any circumstances; “Special Permit,” which he called discretionary, saying it can be granted when a desired use is somewhat unexpected, but the impacts are known and strict conditions are met; and “Site Plan Review,” which he said can be required when the use is by right, but allows the Planning Board to look at the site and impose conditions which must be followed.

Mr. Tucker explained that the difference between Class 1 and Class 2 farmstands is that the former meets the thresholds under State law and require Site Plan Review, while the latter has lower thresholds and is not a protected use but can be done in many zoning districts by Special Permit.  

Mr. Kusner said he thought it would be helpful to illustrate the distinctions between Class 1 and 2 clearly for Town Meeting.  Mr. Weiss asked if there were any sticking points with Article 9.  Mr. Tucker said the language for determining the threshold that distinguishes between lemonade stands and actual farmstands still needed to be worked out and may require referring the article back to committee to be reworked for the fall.

Article 10 – Zoning Bylaw – Flood Prone Conservancy Amendments

Mr. Tucker said this originated with the Flood Prone Conservancy Task Force (FPCTF.)  He said that the former Town Counsel had identified a problem with how Amherst regulated land uses in the Flood Prone Conservancy districts, and that the only uses allowed by right were those that the Town had to allow by right – those that were protected by State and Federal law.  He said that was considered a potential legal problem if someone wanted to challenge a decision on that basis.  He said the FPCTF looked at the use chart and tried to identify an appropriate use that could be changed from Special Permit to the by-right status of Site Plan Review.  He said they chose the use of surface water impoundment, flood retention ponds and other surface water storage uses.  He said one reason they chose this was that there are a long list of State and some Federal environmental and safety regulations that had to be met before addressing local permitting questions.  He said that if someone wanted to build a dam on a local tributary and they could clear all those hurdles, the Town wouldn't need the ability to say no because Site Plan Review would provide strict management and regulatory power.  He said that the new amendment language says that an applicant would have to abide by and be current and active with all the regulations, and if they lapse, the local permit would lapse.  He said given these strictures, it was felt to be safe to go from Special Permit to Site Plan Review for this use, and that would solve the legal concern.  

Mr. Kusner said that one of the reasons he became involved with the Flood Plain Conservancy Task Force was to protect this important zone from such a technicality.  He said the necessity of the proposed amendment hinged on whether the current bylaw was actually in legal jeopardy.  He said that people had asked him if this change was really necessary and so he wanted to know if Town Counsel had given an opinion on that.

Mr. Weiss said that he had asked Gary Brackett about that at the motion review meeting, and that he hadn't read or studied it yet, but on the face of it, was in agreement with the former Town Counsel that it needed to be amended.

Ms. Awad asked to be reassured that zoning bylaws are reviewed by Town Counsel, and Mr. Weiss agreed, saying that would be useful for Town Meeting to have a statement from Town Counsel.  Mr. Kusner agreed and suggested a brief written statement describing the perceived vulnerability in the bylaw without the amendment and how the proposed amendment seeks to shore that up.  Mr. Shaffer agreed.

Mr. Weiss said the Select Board would need to wait to take a position on these three articles until after the Planning Board and Conservation Commission had the chance to deal with them.  There was discussion about information sheets and the need to make those available to Town Meeting members earlier than the night they would be expected to deal with the related article.  Mr. Weiss said the consensus at the motion review meeting was that the article should be postponed if the information sheets only became available on the night of consideration.

Open Meeting Law

Mr. Weiss said that the Select Board has had the understanding that two of its members could meet and have substantive discussions without violating the State's Open Meeting Law.  He said that a decision by Assistant District Attorney Cynthia Pepyne had called that into question.  He said he asked Town Counsel for an opinion, and Town Counsel said that two members could have a substantive discussion if they did not constitute a quorum and if the discussion was not a deliberation.  Mr. Weiss said that Town Counsel said there is nothing in the Open Meeting Law that defines what violates its spirit, and said that they should be careful to avoid serial communications, and to not extend the substantive discussion among two members to a third.  

Ms. Greeney said that two e-mails among the Board in recent days had caused concern, and wondered if Town Counsel had clarified what could be circulated that way.  She said one e-mail pertained to calling a Special Town Meeting and getting that on the agenda, and the other was about information that had been missing from a Citizen Activity Form.  She said she thought such discussions could have happened at the meeting, and asked for clarification as to whether those e-mails were considered acceptable.

Mr. Weiss said he thought those were both “housekeeping” issues, and that such things are allowed.  Ms. Greeney said that there was no reason such discussions couldn't happen in the open meeting, and suggested that would be the best option.

Ms. Brewer said she didn't think everything should wait for the meeting because that would delay some issues to the following week unnecessarily.  She said the OML is complex, and it was not practical to get opinions on individual portions of it in a piecemeal fashion.  She said that the fact that the Assistant District Attorney and the Town Counsel interpreted the law differently was instructive, and she cautioned that it might be enforced based on different interpretations, and suggested that Board members err on the side of caution by only having substantive discussions at the open meeting.

Ms. Greeney said that they were all conscientious and not intending to violate the law, and suggested that when responding to an e-mail that had been sent to the whole group, members ought to reply only to the sender, not to everyone.  Mr. Weiss said that when in doubt, assume it's a violation.  Mr. Kusner said he had interpreted the e-mails as mere housekeeping, and assumed that the responses had been directed to him rather than the whole group.

Consent Calendar

The Consent Calendar consisted of two special liquor licenses and the vote to approve was unanimous.

Article 35 – Petition – Public Accountability for WFCR

Jeff Lee said that this petition was brought in an effort to restore public accountability to WFCR.  He talked about recent cuts to programs that had appealed to diverse segments of the population, and how they had been replaced with classical music, jazz and nationally-syndicated news and talk programs.  He emphasized that WFCR is public radio, and that it is supported by Federal taxes through the Corporation for Public Broadcasting and by State taxes through the UMass, and through local taxes because of the services the station's studio receives from the Town.  He said that the cancelled Valley Folk program had featured many local musicians and an extensive calendar, and that without the calendar it is more difficult for people to know about local performances.  He said the article requests that the Select Board communicate through the Town Manager to the University that more public accountability is needed, specifically in the form of a community advisory board.  He said that such boards are common at privately-owned radio stations.  He said it was in the best interests of the community for there to be a committee to which local people could apply and attend meetings, and for minutes of meetings to be made public.  He said he wanted the recent program cuts to be revisited by the proposed advisory board, and that he wanted the will of Town Meeting to be communicated to various public officials specified in the article. 

Paul Kaplan said he is a local musician and music teacher.  He said that this community supports folk music and folk dance and that it has been hard for the venues featuring the music and dance to make people aware of their activities without the weekly announcements by the Valley Folk program's host, and that those venues are suffering because of the change.  He cited local instrument businesses that have wide renown, and said that it is scandalous to have no folk music on local airwaves.

Paul Gorman said he had worked in public radio a long time at station WBAI, and understood the dynamics of seeking support.  He said he would like to have a conversation rather than a confrontation with WFCR.  He said the Select Board and Town Meeting aren't in the business of running radio stations, but do have a role in encouraging the vitality of civic and cultural life in the community.  He said that the only local voices on WFCR were those who introduce music and local news reporters, while everything else is nationally syndicated programming, making the station sound like it could be anywhere in the country without a local distinction.  He said that 65% of WFCR's money comes from listeners, so it makes sense for the station to have a conversation with the community through the proposed advisory board.

Mr. Weiss said he had spoken with Richard Malawista from WFCR, and that Mr. Malawista said the station had not yet discussed the article and wasn't prepared to take a position on it.  Mr. Weiss said that was why no one from WFCR was at this meeting.

Mr. Kusner said that the station's listening area is very large, and includes Vermont and Connecticut as well as much of Massachusetts, and asked how Amherst's voice would help among all those communities.  Mr. Lee acknowledged that it would be difficult to make a representative board, but said that Maine Public Radio was a good model for doing so.  Mr. Gorman said it could be done through a collaborative process with goodwill and creativity and the Select Board's support would confirm the importance of the conversation.

Mr. Weiss asked if the petitioners had apprised the station of their proposal for a community advisory board.  Mr. Lee said no, but that they had communicated their dissatisfaction about the program cuts, and had sought a meeting with the UMass Vice Provost who oversees the station, but had not heard back about that yet.  Mr. Weiss said that the stations' Manager, Martin Miller, was on vacation. 

Ms. Greeney said that she encouraged the petitioners to talk with Mr. Miller about the article and see if they could work something out together, rather than having a “showdown” at Town Meeting.  Mr. Lee said they had tried that and will continue to do so.  He said that the Select Board had the moral authority as stewards of the community to encourage support of the petition's goals.  Mr. Weiss said he also supported the petitioners pursuing the issue directly with the station, and said it would become adversarial otherwise at Town Meeting.  He said that one or two Select Board members might be willing to help.  Ms. Greeney said that Mr. Miller was a friend of hers, and that she agrees that the Select Board should encourage civic and cultural vitality.  Mr. Lee said that someone else had asked Mr. Miller about creating an advisory board and that he had said that the WFCR foundation filled that role, but Mr. Lee said that didn't meet the criteria his group was seeking for such a board.

Mr. Kusner said that he has experience with the Society of Friends and considers conflict to be positive, and supports thoughtful consideration of a concern brought to a public forum.  He asked that Ms. Greeney not participate on behalf of the Select Board, saying he thought her friendship with Mr. Miller was a conflict of interest.  He recommended that the article be supported and suggested that discussions with the station move forward at the same time, and he moved to support the article.

Mr. Weiss again encouraged the group to pursue this with WFCR before Town Meeting, and they said they would.  Mr. Shaffer said that in general he would advise the Select Board to be the solution of last resort for such concerns, and that the petitioners should deal directly with the other party first, rather than using the Select Board as a hammer or wedge against them, particularly if other options have not been exhausted.  Mr. Gorman said he would like the Select Board to encourage the process.  Mr. Kusner said that the article is duly warranted, and that as such, the Select Board would have to decide whether to support it, not support it or take no position.  He said that the issues raised are important to Amherst as the station's host community.  Ms. Brewer said she could not support the article at this point in the process and agreed with Mr. Weiss' and Mr. Shaffer's points about the petitioners engaging the station directly first.

Mr. Weiss said he was disturbed by the recent program cuts and the lack of local community involvement in the station, and that he supported the petitioners' efforts but couldn't support the article at this meeting.  Ms. Awad said she had no problem supporting it tonight, and that it shouldn't represent a conflict with the station, but was merely advisory to them.  She said that the Board could support it now and a dialogue could be pursued between the petitioners and the station.  Mr. Weiss said that part of the article asked that the station restore the programs that were cut, and Ms. Awad said that it was a request not a directive, and was similar to other things that Town Meeting requests be restored but lacks the authority to require such to happen.  Ms. Greeney said that she respects and supports the group's efforts, but also could not support the article tonight, and suggested that they return in a couple of weeks and report on discussions with the station.  Mr. Kusner said he was prepared to withdraw his motion to support the article tonight, but wanted to make clear that he supports the intent.

Mr. Shaffer said he would be happy to meet with the petitioners and take their concerns to WFCR to try to “create a soft landing” before the issue goes to Town Meeting.  Mr. Kusner said it will come to Town Meeting because the article has been accepted. 

Mr. Weiss said the Board would be in touch with the petitioners, and no further action was taken on the article.

Article 37 – Acceptance of Chapter 39 – Board Member's Absence

David Ziomek, the Town's Conservation Director, spoke to the article, saying the sponsor was unavailable.  He said that some boards and committees go through long public hearing processes on issues, and that members of those boards and committees occasionally have to miss meetings. He said this article was meant to allow them to participate in votes and outcomes.  He said that the Conservation Commission had been surprised to find that it was credited as the article's sponsor, and that they had expected help from other bodies, but that the Board of Health, the Historical Commission and others had not been aware of the article or and hadn't had the opportunity to consider it.  He said the Planning Board and Conservation Commission would be taking it up soon.

A long discussion followed, and included talk of how this would provide the same allowance for participating after an absence as State law does, and use the same language as State law, and how other boards including the Select Board needed to consider this issue thoroughly, and how this article wasn't vetted sufficiently before being brought forth.  Ultimately, the Select Board voted unanimously to dismiss the article. 

Article 32 – Petition – Abolish Redevelopment Authority

Vince O'Connor spoke to his petition article seeking to abolish the Redevelopment Authority.  He said it has been inactive for 10-12 years and “moribund” for the last 3-4 years.  He said members had been elected by write-in vote, and that this body had broad powers and yet members were not receiving the necessary public scrutiny.  He said he wasn't determined to abolish the Redevelopment Authority, but that because of their inactivity they should step forward to justify their continued existence, and to explain who they are and what they do. 

Mr. Weiss said that asking them to explain themselves is one thing, but that Town Meeting didn't have the authority to abolish it, and he cited language that allows the body to dissolve itself by a majority vote.  He said he had requested the opinion of Town Counsel about the issue just shortly before the meeting began.  Mr. O'Connor said he thought that was one method for their dissolution, but that there were probably others.  Ms. Awad said that if the group is so inactive, it is unlikely to take the action of meeting in order to dissolve itself.  She pointed out that the Finance Committee report had a significant clerical error, with information from a previous meeting's warrant in place of this article's information.  Mr. Shaffer said that a corrected replacement page would be supplied.  Mr. O'Connor repeated his assertions that there must be other methods of disbanding the group and that the group should explain itself to the public.

Mr. Shaffer said it wasn't certain whether the continued existence of the Redevelopment Authority was good or bad for the Town, and that that required more research.  He said the group and its authority might “lend itself to some very useful adaptations going forward,” and might have utility to the Town in other areas.  Ms. Awad said she approves of Mr. O'Connor going forward with the article, and said she thinks the group is only focused on the Boltwood Garage and couldn't work in other areas.  Mr. Kusner said he hopes that in his and Ms. Greeney's review of the committee list that they might find that the Redevelopment Authority's functions are superseded by those of other bodies, including the Select Board.  He said that avoiding that duplication is “good government.”

Ms. Greeney said she had been at a Town Commercial Relations Committee (TCRC) meeting, and that Mr. Tucker had said that the Redevelopment Authority is in charge of approving signs in the Boltwood Garage area, and that by not meeting, they were not fulfilling their duty and ugly signs were not being refurbished.  Mr. Tucker clarified that, saying that the Redevelopment Authority owns several signs in that area that have not been maintained, and that the signs were to be conveyed to the Town, but that never happened because the committee did not meet.  He said there are now 4 members of the five-seat committee, and that they plan to meet and are awaiting opinion from Town Counsel.  Mr. O'Connor spoke to the sign issue being an area of possible simultaneous jurisdictions with the Planning Board and Design Review Board.

Ms. Brewer said that the discussion was complicated by the misprinted information in the Finance Committee report, and said that talk of write-in candidates and perceived conflicts of interest were muddying the waters of the discussion.  She said that the key issues were what the purpose and constraints are of the Redevelopment Authority, and what additional benefit it might have for the Town, and she said Town Counsel's determination was needed on these issues.  She said it was good that the issue had been brought forward.

Ms. Greeney suggested that the Select Board await Town Counsel's determination.

Article 33 – Petition – Energy Conservation/Dark Sky

Mr. O'Connor was the petitioner of this article as well.  He said his promotion of dark sky issues for Amherst began with a letter to the Planning Board several years ago asking that they incorporate some elements of a relevant zoning bylaw from Flagstaff, Arizona, which he said was home to some famous observatories.  He noted that the Amherst College observatory is used by LSSE and Amherst College.  He said he wanted to make this a general bylaw subject to the Town's regular policing powers rather than a zoning bylaw, because he said the general bylaw would make it applicable to all, rather than grandfathering in all those whose lighting issue existed prior to such a zoning bylaw.  He said when the motion is made, it will not include non-commercial lighting uses.  He said the goal of the proposed bylaw is to reduce light pollution and energy waste.  He said that if it goes forward, residential regulation could be considered later, and said that 75-watt lights outside of homes were not the source of most offense and waste; big signs and parking lots were the main concern.  He said it was unnecessary for parking lots to remain lit in locations where all activity has ended for the night. 

Mr. Weiss asked if Mr. O'Connor had spoken to the Town Commercial Relations Committee (TCRC) about the proposal.  Mr. O'Connor said he had not, and reiterated his point about the general bylaw leveling the playing field for all businesses, not just those that came later. 

Mr. Weiss said that lighting in parking lots of multi-unit residential structures was a safety issue.  Mr. O'Connor agreed and said that lighting where people continued to come and go was appropriate, but should be shielded to prevent the light from shining upward.  He said that much local lighting is 20 to 30 years old and said there is new technology available to shield light, and that it uses less energy and decreases light pollution.  Ms. Awad said the she understood the shielding concept but wasn't sure everyone would, and suggested that Mr. O'Connor explain it in simple terms and perhaps with a graphical representation at Town Meeting.  Mr. O'Connor agreed, and said that both words and images were needed.  Mr. Kusner said that UMass is a major source of light pollution and may not be subject to such a Town regulation.  Mr. O'Connor agreed, but said that the Town could lead by example and seek to persuade UMass to comply.  Mr. Kusner asked if other institutions would be subject to the regulation, and Mr. O'Connor said he thought so because it would be a general bylaw, from which he said churches and others were not exempt.  Mr. Weiss disagreed, and said that churches would not be included, and Mr. O'Connor said that the bylaw might be modified by future Town Meetings to include the colleges and others if possible and necessary.

Mr. Ziomek suggested that Mr. O'Connor coordinate with the Energy Task Force in anticipation of Town Meeting wanting to know its opinion.  Mr. Ziomek said the task force had read the article but were looking at it more as a dark sky issue than an energy conservation issue. 

Ms. Greeney said that the TCRC had considered the article but had not come to a decision about it, and encouraged Mr. O'Connor to meet with them.  She said she was concerned about the costs to businesses of retrofitting lights to be in compliance and to do so within the proposed deadline.  She suggested that given the ZBA's responsibilities, it might be easier to make the proposal a zoning bylaw rather than a general bylaw.  She also mentioned that she wasn't sure if it would cover UMass and the colleges, and wanted to know what areas of town are violating the proposal now. 

Mr. O'Connor said that some of the apartment complexes had lighting that dates back to the 1960s and 70s, and that such lights illuminate more area than necessary. He said that that could be fixed through retrofitting, and that the cost to do so would soon be recouped by the resulting energy savings.  He said he would be amenable to a different timeline, and had tried for a start date to coincide with a new school year.

Mr. Tucker thanked Mr. O'Connor for his initial letter to the Planning Board on this topic, and said they had been working on it since then as time and priorities allowed.  He said that other communities in Massachusetts had adopted policies like this, but said that energy conservation and dark sky issues sometimes conflict with each other.  He said he wished Mr. O'Connor had come to the Planning Board before putting the article on the warrant.  He said the article had “good bones,” but that it needed some additions, because there were issues it didn't address, such as architectural lighting and lighting intensity.  He praised it as a good starting point, but said there were many issues and complexities that need to be considered, and said he looked forward to other groups looking at it.  He said the article might be premature with the proposed language.

Mr. O'Connor reiterated his points about the proposing a general bylaw rather than a zoning bylaw in order to have a level playing field for all, and said he would be happy to hear more suggestions regarding language and other changes.  He said that when articles get referred back for additional study, they never come back to Town Meeting.  He said the proposal is a good idea, and that Town Counsel's legal opinion is needed.  He said there is an obligation for the Town to reduce its energy usage and an obligation to not have commercial residential and commercial business activity intrude on neighbors, and he said the proposed bylaw would do both.

Ms. Awad said she appreciated having the article on the warrant even if it isn't ultimately supported, because it allows for meaningful discussion of an important discussion.  She said she thought proposing it as a general bylaw was fine, and that if the Planning Board wanted to pursue a zoning bylaw regarding lighting, they could do so.  Mr. Kusner agreed, and said that as a general bylaw, it could be amended with a simple majority vote, and could evolve over time.  He said that changing the deadline date would likely be allowable and considered to be within the scope of the article. 

Ms. Greeney said she was concerned that retrofitting might be too onerous for businesses and wanted to have the TCRC report to the Select Board with their opinion on whether the costs and the timeline were reasonable.  She said she wanted to know what body would be responsible for enforcement and assessing penalties, and whether they would be able to handle that work.  She said that if the law can't be enforced, it is a “paper tiger.” 

After further discussion of the various committees who ought to be consulted for opinions on the article, it was decided that the Select Board would wait for that additional information before making a recommendation on this article.

Article 12 – Bylaw Amendment – Public Shade Trees

Alan Snow of the Public Shade Tree Committee said the article seeks to create a bylaw to strengthen the Town's shade trees and maintain good tree count.

Ms. Awad asked the definition of “DBH” in the article.  Mr. Snow said it means “diameter at breast height,” which he said is a standard measurement at 4.5 feet above ground level, and that “caliper” refers to the diameter at one foot above ground level.

Ms. Brewer asked how this proposal differs from the current situation and why it is needed.  Mr. Snow said that Chapter 87 of the Massachusetts general laws gives the Tree Warden power over trees in the public way, but that it is vague on the subject of recovering losses in the Town's tree canopy.  He said that when the Tree Warden says a tree can be removed from the public way, it is requested that others be planted elsewhere to make up for it.  That is currently done in good faith, he said, and this proposal would make it easier to get those request fulfilled. He said it would apply to citizens who receive permission to remove healthy shade trees from public right of ways.  He said that if the tree to be removed were a 10-inch tree, the person would need to replace it with five 2-inch caliper trees, of a type and at a location to be determined by the Tree Warden, at no cost to the Town. 

Mr. Weiss asked if this meant a homeowner would be required to pay for trees and their planting in another part of town, and that was confirmed.  Ms. Awad said she liked the intent of the proposal but was concerned about the cost to homeowners who might have no choice but to remove a tree, such as if it were clogging a sewer pipe.  She said that it could be very expensive, and asked how rigidly such a law might be applied, particularly when the tree to be removed was also a problem for the Town, and if waivers might be granted in such circumstances.  Mr. Snow said that Chapter 87 grants the Tree Warden discretion in such matters, and that he assumed this proposal would allow discretion as well.  Ms. Awad said that dealing with nuisance trees affecting Town property could be a significant expense to moderate income households, and said she hoped there could be compromise and mediation.  Mr. Snow said that Chapter 87 is designed to allow for that, and said this is a good way to help the Town to get more trees without spending any money, because he said much of the Town's tree canopy is being lost. 

Mr. Kusner suggested that there should be emphasis on protection and reforestation in general, not just on street trees.  Mr. Snow said there is encouragement of more plantings in setbacks, not just public right-of-ways.  He said that Chapter 87 is intended to protect trees as well, and talked about proposed tree removal being reviewed by the Tree Warden, the Public Shade Tree Committee and a public hearing process. Mr. Kusner said protection should occur before that point, and that people should be encouraged to keep trees healthy and discouraged from removing them.  Mr. Snow said the Town does a good job with this, and does so with limited resources.

Mr. Weiss asked if the proposal would apply to the Town as well.  Mr. Snow said that trees removed due to water and sewer line work were replaced by water and sewer enterprise fund fees.  He said it wouldn't cover tax-funded trees that were part of general beautification of the streetscape.

The Select Board members cited a number of their own tree and tree removal situations, seeking Mr. Snow's interpretation. 

Mr. Snow emphasized the importance of having the Select Board and the Town consider the local canopy cover and its role in cooling, absorbing pollution and carbon dioxide, and absorbing storm water.  He said it should be treated like any other element of the Town's infrastructure.

Mr. Weiss asked if there was any specific data about loss to the canopy cover.  Mr. Snow said that in 2005, the town removed 100 trees and eight were replaced.

Ms. Awad asked if the 100 removals were at the request of homeowners and private institutions.  Mr. Snow said only a half dozen or so were, and said that while the number of trees affected is small, the bylaw would still have a big impact on adding new trees.  Ms. Greeney asked if with the bylaw, 100 trees would be planted to replace 100 trees that were removed.   Mr. Snow said it wouldn't apply to trees that were removed because they were deemed a hazard.  Ms. Greeney suggested that it should apply to either.  Mr. Snow said the Town had no budget to plant trees.

The Select Board's vote to recommend this article was 4 in favor, 1 opposed, with Ms. Awad casting the opposition vote.

Article 13 – Name Change – Solid Waste Committee

Pat Church of the Solid Waste Committee said that Article 13 was a housekeeping article, seeking to change that committee's name to the Recycling and Refuse Management Committee.  She said that because Town Meeting had created the committee, that body needed to approve such a change.  She said that once the landfill became a transfer station, the committee's work changed, and that this new name more accurately reflected its duties.  She said the committee had chronic vacancies, and that by emphasizing the positive aspects of the committee's work, the name change might also encourage more people to get involved.  She cited promoting food composting in the schools and downtown recycling containers as among the committee's current projects.

The vote to recommend the article was unanimous.

Mr. Weiss then called for a short break.

Article 14 – Sister City – Nyeri, Kenya

Ms. Awad said that she has spoken to the Select Board previously about her proposal to establish a Sister City relationship with Nyeri, Kenya, and that she will present the idea to Town Meeting and hope it is supported.  She said it would not cost the Town any money or resources.

The vote to recommend this article was unanimous.

Special Town Meeting

Mr. Weiss said there were three items for a Special Town Meeting warrant, and that the Select Board needed to set a date for that meeting.  He suggested May 16th.  There was discussion about the warrant for this meeting comprising the Olympia Drive land article and two articles from the Conservation Commission, and brief mention of a separate petition for an additional Special Town Meeting. 

The Select Board voted unanimously to establish a Special Town Meeting for 7:30 p.m. on May 16th.  It was determined that they would sign the warrant for this meeting on April 30th.

Ms. Brewer asked about the Conservation Commission articles.  Mr. Weiss said that they involved the purchase of Scott Nielsen's property on South East Street and the property known as Haskins View.

Discussion of Select Board position on override and 3-year plan

Mr. Weiss said he felt compelled to have the Select Board take a position on the proposed override and three-year plan.  Mr. Kusner said that many members of the Board had already spoken and written about their personal views on the issue, and that the question would soon be put to the voters.  He said he didn't feel they should tell voters how to vote, or second-guess them.  Mr. Weiss said they wouldn't be telling anyone how to vote, but that the Select Board needs to offer an opinion.  Mr. Kusner questioned whether it was possible for the full Board to speak in a single voice such that the views of each member would be expressed, and said that if they were to vote and the results were three to two one way or the other, that wouldn't be much of a message to the public.

Ms. Brewer said she understood what Mr. Kusner saying, but said that if they could that for the relatively less-important warrant articles, they ought to be able to do so for the override question.  She said that taking a position also provided accountability, and that they had a responsibility to the community to regarding how to address the Town's financial situation.

Ms. Greeney said that she agreed that taking a public stand was important, regardless of the outcome of the vote, and that making their personal sentiments better known to the public would assist people with their own discussions, considerations and voting decisions.   

Mr. Kusner reiterated his concerns about a vote on the proposed plan not reflecting the nuances of opinion, but said that he would be happy to take a position on the ballot question itself, which is specifically about the override but doesn't reference the three-year plan.  Mr. Weiss said they could vote separately on their support for the override and support for the three-year plan, allowing members to vote in favor of one but not the other if they so wished.

After some discussion around parsing specific words of the motion, the Select Board voted to recommend that the voters of the Town support the override question on May 1st, with 4 in favor and one opposed, and Ms. Awad cast the opposing vote.

Discussion turned to the three-year plan.  Mr. Weiss said he felt that they could support the concept of the plan and the concept of its spending caps, without necessarily supporting the specifics.  Mr. Kusner reiterated his concern expressed at previous meetings regarding the sudden increase in the tax rate and how he thinks it would be better to make that change more gradually by not taxing to the full levy limit in the first year.  He also reiterated his concerns for the proposed plan and how it could affect contract negotiations and his reticence for a blanket endorsement of pursuing economic development, because of his concerns about sprawl and sustainability issues. 

Ms. Awad said she thought some elements of the plan were good, such as the spending caps, though she felt the proposed levels were too high.  She said she thought the plan side-stepped the dilemma of not having enough revenues to cover expenses, and said that overrides couldn't be used to replace money that should be coming to us from the State and Federal levels.  She said she isn't opposed to the idea of an override in general but said she would like to see a more stringent approach, and would like to see Town Meeting more involved in the process.  She said that forecasts are grim at the end of the three-year plan, and she said that fixed costs such as those of the collective bargaining agreements weren't addressed, and she said that people need to feel the pain of some cuts.  She said the plan wasn't comprehensive enough to address the overall budget issues.

Mr. Weiss said he agreed that the caps were too high, and said such details could be recalibrated next year once there is more information, and reiterated his point from previous meetings about not collecting the full amount if unexpected extra revenues were received.  He said that he did however endorse the concept of the plan. 

Ms. Greeney said that the Town struggles every year with its budget, and resorts to short-term fixes.  She said she thinks the Town has gotten smarter, and that she was excited by the multi-year budget approach, preferring it over a one-year override or continued use of reserves, and she thanked the Finance Committee and Finance Director for their work on the multi-year plan.  She said she was concerned about all the “ifs” involved, which she cited as more State aid, a meals tax, and public safety payments from UMass and the colleges, and said she felt they were overly-optimistic.  She reiterated the concerns she has expressed at past meetings regarding the projected shortfall at the end of the third year of the plan and her preference for lowering the spending caps to 4.5%.  She said the override should be rejected, and that it didn't address the structural deficit and she said it reflected the same mistakes made by the Town over the last six years.  She said she wouldn't vote for the override and said she wanted a multi-year plan that would be realistic and stable.

At this point, the other members pointed out that Ms. Greeney had just voted to support the override, and she said she thought she was voting to support further discussion of the topic.  After some consideration on how best to proceed, it was agreed that they would simply change the previous vote results to be 3 in favor of supporting the override, and 2 opposed, with both Ms. Awad and Ms. Greeney voting to oppose.

Ms. Brewer said that the Town would not receive unexpected money the way it had a couple of years ago, and said the meals tax would not be implemented this fiscal year.   She said the different boards understood that if revenues did not meet expectations, the spending caps would decrease.  She said that with regard to feeling the pain, the schools and other departments in Town have already been feeling the pain and a 1% budget will make that worse.  She said if the Select Board doesn't agree as a body to support the three-year plan, it will send the message that this override would be another one-year fix.  She said this plan is the only one on the table, and there isn't a proposed plan with different caps and different details.  She said this is the general outline of a three-year plan and is the only one with any hope of being followed through on currently.  She said many have said that they would support an override if they believed there was long-term planning associated with it.  She said the best way for the Select Board to kill the override is to refuse to have anything to do with the plan, which she said would send the message that they aren't interested in long-term planning.   She said that would mean the body was not taking proactive steps to move forward.

Mr. Kusner said he completely disagreed with that statement.  He said there was fair amount of common ground in the three-year plan and Ms. Greeney's 5-year plan, and he said there were a multitude of multi-year plans.  He said that saying there was one plan being considered was a straw argument, such that only one plan could be considered because only one plan is written down.  He said he didn't object to multi-year planning, but objected to the notion of “the plan,” and the sense that its details prevented changes or recalibration.  He said it was disingenuous to characterize it as long-term planning versus doing nothing, and referred again to contract negotiations and said that the situation will look different in a few months, and that the numbers will change.  He said his objection was to the definite article “the,” and said it didn't show leadership to be locked in to one particular track.

Mr. Weiss said he didn't think that ‘support' was something etched in stone.  He reiterated his point about support for the concept of the plan, and the commitment to not exceed certain spending limits.  He said we might be able to eke by in year 4 with 5.5% increases, and then we can see if we can be more careful to try and avoid a deficit at the end of four years.  He said this year we have to make that promise to not spend more than the caps, and said he couldn't understand why saying that was a problem.

Mr. Kusner said he was concerned both with the overall spending plan and with the rapid increase in the tax rate the first year, and said he wasn't comfortable recommending that to the public.  He said he wanted more details of how the caps were determined and said that while he is a progressive and thinks a lot more money is needed to do the things the public sector should be doing, he would like the opportunity to re-work the plan, perhaps to cover more years.  He said that the Town was in this “ridiculous situation” because of a law passed 25 years ago.

Mr. Weiss noted that they had all made statements regarding their feelings about the plan, and said he wasn't sure what good a vote would do.  Ms. Brewer asked how they might respond when people ask if the Select Board is looking at long-range planning, as opposed to a one-year plan.  Mr. Weiss said they all are in favor of multi-year planning.

Street Closing – Community Fair

The Select Board voted unanimously to approve a request from the Rotary Club for street and parking lot closings and relaxed parking enforcement during the community fair in early May.

Committee Charge – Traffic Calming Task Force Group

Ms. Greeney suggested putting this off until next week, because the proposed charge was blank.  Mr. Kusner asked to report on the committee's status instead.  He said that he and Ms. Greeney had met with the Town Manager and the DPW Superintendent, and concerned residents about traffic calming in the Lincoln Avenue neighborhood.  He said some of the previously proposed ideas for dealing with that situation “were not met with favor.”  He said they were pursuing temporary rubber speed bumps called “traffic cushions” or “traffic pillows,” which could be bolted to the road, and that they could compare the speed and volume of traffic before and after.  Mr. Shaffer said he asked the DPW Superintendent to map out where the traffic pillows would be located, and to then run that plan by the Public Works and Public Transportation Committees, and said he would then bring the recommendations to the Select Board.  Ms. Greeney said that the traffic pillows received the blessing of the Fire Chief because they are not problematic for the fire engines. 

Revote – Redesignation of Polling Location

Due to an error in the previous voting on the matter, the Select Board again voted to designate Room 168 at the UMass Campus Center as a polling location for Precincts 3A, 4A, 9A and 10A.  The vote was unanimous.

Arbor Day Proclamation

The Select Board voted unanimously to proclaim April 27th, 2007 as Arbor Day. 

Ms. Greeney said that Mr. Ziomek invited the public to a tree planting downtown on that Friday at 10:00 a.m. in front of the Douglass Funeral Home.  Ms. Awad recommended holding next year's tree planting on Saturday or Sunday in order to engage more school children, and all agreed.

Minutes of April 9th meeting

There was discussion of various errors in the minutes, and it was decided they should be corrected and brought back to the April 30th meeting.

The meeting adjourned at 10:52 p.m.  The next meeting will be at 6:15 p.m. on April 30th.

-- Stephanie O'Keeffe