(11/5/07)  The Select Board met at 6:30 p.m. on Monday, October 22nd at Town Hall.  Gerry Weiss, Hwei-Ling Greeney, Rob Kusner, Anne Awad and Alisa Brewer were present, as was Town Manager Larry Shaffer. 

Announcements and Agenda Review

Mr. Weiss noted that the Iran petition presented to the Select Board at the October 15th meeting didn’t make it on to this meeting’s agenda and would be considered at another time.

Mr. Weiss announced upcoming Town Meeting Coordinating Committee events:  the October 25th Warrant Review Meeting at the Middle School; the October 27th Bus Tour of warrant sites, leaving from the Middle School parking lot; and the November 1st Zoning Orientation in the Town Room of Town Hall. 

Mr. Kusner said he would like to address the situation of prorating water bills to more accurately reflect the date on which rate changes take effect, reiterating his point from an earlier meeting that doing so would require only a simple change to one line of software code.  He said that large-scale water users in the town have more accurate bills due to more frequent meter readings, and said the issue was a matter of equity and transparency.

Mr. Shaffer said that Mr. Kusner’s suggestion had been looked into, and that it turned out to not be a simple change to one line of code, and that prorating wasn’t supportable by the current system, and that he would discuss it further with Mr. Kusner.

Public Comment (6:38)

A man who lives near the Amherst College athletic fields praised the recent work done there by the College, and expressed concern that the landscaping and other improvements would be ruined by parked cars.  He had sent a letter to the Select Board requesting “No Parking” signs, and that letter had been forwarded to the Department of Public Works.  Mr. Shaffer did not know the current status of the request.  Ms. Greeney said she had invited the man to come to the Select Board meeting because she wasn’t aware that the letter he sent was being dealt with, and was concerned it had been overlooked.

Proclamation for Puerto Rican Day (6:47)

Vladimir Morales requested that the Select Board declare November 1st “Puerto Rican Day,” and allow the raising of the Puerto Rican flag, flying it until November 20th.  The vote in support was unanimous.

Pledge of Liquor License (6:54)

Chick Delano requested that the Select Board approve the pledge of his liquor license to Easthampton Savings Bank against a construction loan.  The vote in support was unanimous.

Recommendations on Warrant Articles – Article 1 (7:00)

Article 1 on the Fall Town Meeting Warrant is to hear the reports of boards and committees that are not available in written form.  Without discussion, the vote to recommend Article 1 was unanimous.

Recommendations on Warrant Articles – Article 2

Article 2 is to transfer funds to pay unpaid bills from the previous fiscal year.  There was discussion about how no such unpaid bills exist or are expected, and how to best proceed with the recommendation.  Finance Director John Musante recommended that the Select Board vote to recommend dismissal of the article, and said that if any unpaid bills materialize, the recommendation can be reconsidered.  The vote to recommend dismissal of Article 2 was unanimous. 

Special Liquor License

The Select Board voted unanimously to approve a special liquor license for an event to be held at Amherst College. 

Town Manager’s Report (7:06)

Mr. Shaffer gave an update on the Health Claims Trust Fund.  He said that the insurance committee, which includes representatives from the Schools and the Town as well as a consultant, was “guardedly optimistic” about its near-term prospects, and believed that the current rates will adequately address the fund’s deficit and future needs.

On the subject of the Plum Brook soccer fields, Mr. Shaffer said that the irrigation system was fully installed and operational, and that the fields had been seeded, and that the weather had been cooperating.  He said he could see a visible difference in the grass growth over the course of a week, and that he was hopeful the fields would be available for soccer next fall.

Ms. Awad asked if the health insurance committee had done a formal evaluation of the State’s Group Insurance Commission (GIC) program.  Mr. Shaffer said different options were considered and that a proposal had been received from an insurance contractor.  Mr. Shaffer said that he believes the Town needs to be prepared to choose the GIC option someday and that “impact bargaining” was needed to achieve the flexibility to do that.  He said that it would be necessary to have sufficient money in the Health Claims Trust Fund to cover costs while transitioning to a new insurance system.  He said that the committee was well-aware of the GIC and that there was general but not unanimous agreement that the Town would eventually move toward that, but not now.  He emphasized the need to build that flexibility into the Collective Bargaining Agreement (CBA), and to strengthen the Health Claims Trust Fund to prepare it for a transition to a fully-insured system from the current self-insured system. 

Ms. Brewer asked about a timeline for such a move, given the bargaining negotiations required and various deadlines.  Mr. Shaffer said there was no timeline and there couldn’t be one until the flexibility to move to different system was achieved in the CBA.  He said that the Town’s self-insured rates are still lower than GIC rates for a comparable program, but said that would not last forever.  Ms. Brewer noted that this is a subject on many people’s minds, and that he should be prepared to explain all the consideration and evaluation being undertaken in that regard.  She also noted that discussions with the union on the issue can take place at any time, and need not wait for a new contract cycle.

There was some discussion about how much health insurance rates had increased in Amherst as compared to other places.  Mr. Shaffer said that different programs have different coverage details and Amherst’s have “high quality benefits” for which the Town’s rates are lower than those available for similar benefit options.

There was discussion about Hadley encouraging Town employees to migrate to their spouses’ insurance plans by splitting the Town’s resulting cost savings with them.  Mr. Shaffer said there had been much discussion about this and that actuarial costs show such encouragement to be counterproductive because typically the healthiest people with the lowest rate of claims make that change, so their payments into the system are lost, while those with high-claims rates remain. Ms. Brewer said that this is another area about which people will want information.

Recommendations on Warrant Articles – Article 3 – Budget Amendments (7:24)

Article 3 is about amendments to the FY08 budget.  Mr. Musante had addressed these two parts at a previous meeting – one for an assessment to the Hampshire County lock-up facility, which the Select Board unanimously recommended; and the other for an appropriation to the Health Claims Trust Fund, for which the amount had needed to be finalized before the Select Board could vote on it.  He said the amount was now set and that an appropriation of $562,207 to the Health Claims Trust Fund was needed to bring it to an adequate level to cover claims that had been incurred but not yet reported.  He said the fund is on a three-year schedule to reach an amount equal to 10% of annual claims, and that this amount puts the fund where it needs to be at this point in that three-year goal.  He said current premium rates has the Fund on track to meet that level at the end of the fiscal year, but that the State’s Department of Revenue (DoR) requires that that level be reached before the tax rate is set.  He explained that this would be an advance from free cash and that continuation of a premium surcharge of less than 5% that had been scheduled to end this fall was expected to repay the advance before the end of the fiscal year. 

The vote to recommend the appropriation to the Health Claims Trust Fund was unanimous.

Recommendations on Warrant Articles – 15 – Spring Street Rezoning (7:29)

Jonathan Shefftz, Vice Chair of the Planning Board, presented this to the Select Board, because of Planning Board Chair Aaron Hayden’s conflict of interest regarding the property, due to his employment with Amherst College.

Mr. Shefftz described the article as extending the General Business district to include part of Spring Street, and changing the approval mechanism for hotels, motels and inns from Special Permit to Site Plan Review.  He said that the changes were initiated by the Town Manager and that Amherst College has future plans to expand the Lord Jeffery Inn to increase the number of rooms and create multi-room suites.  Mr. Shefftz talked about another property on Spring Street that would be affected by the zoning change:  26 Spring Street, which the Masonic Lodge (behind it, on Main Street) bought when it lost its parking with the creation of the new Police Station.  He said that the only valuable use of that property to the Masons under current zoning is to demolish it and create a parking lot.  He said that the new zoning provides other options.   He said that the Planning Board voted unanimously on motion A – extending the General Business district; and 6-1 on motion B – altering the permit requirement for hotels, motels and inns.

Mr. Weiss noted that the Masonic Lodge was able to put in a smaller parking lot than the Masons had planned.  He asked about the change from Special Permit to Site Plan Review for hotels, motels and inns.

Mr. Shefftz said that such a use was currently not allowed “by right”’ in the General Business district, and could only be done by Special Permit.  He said that there was much testimony at the Public Hearings about it being difficult to get financing for a project that requires a Special Permit, and that it made it more difficult to buy land, create design plans, get partners and put together a proposal if the end result could be a full rejection.  He said that Site Plan Review gives reassurance that once conditions are met and the Planning Board is satisfied, the project has a good chance of coming to fruition.  Mr. Weiss noted that that would be good information to include in the report to Town Meeting.

Mr. Shefftz said the Planning Board had heard concerns from the public about the loss of control over a project, and references to the current hotel situation in Northampton, but that the Planning Board didn’t find those arguments convincing.  He said that making a hotel a by-right use would not mean that a 20-story Marriott could come in, because it would still need to be approved by the Planning Board and conform to all the other requirements in the Zoning Bylaw.  He said that protection would remain and said it was hard to come up with examples that might occur counter to general sensibilities by using Site Plan Review.  He said that the change makes it more likely that lodging might be created in the General Business district with this change, because it would be by-right, rather than not allowed except by Special Permit. 

Mr. Weiss noted that another issue is that Special Permit approval requires a unanimous vote by the Zoning Board of Appeals (ZBA,) compared to Site Plan Review (SPR) requiring a majority vote by the Planning Board.  [Note:  SPR requires a supermajority vote – 2/3 of the Planning Board, with a minimum of 5.] 

Hilda Greenbaum said she was speaking as an individual not as a representative of the ZBA.  She said she trusted Amherst College to do good projects and cited the new Bank of America ATM building on the corner of Triangle and East Pleasant as a negative example of the Planning Board’s Site Plan Review process, saying it wouldn’t have been allowed by the ZBA.  She said ZBA rarely rejects a Special Permit application, that it has the ability to negotiate, and that it is easy to get three people to agree.  She said that State law had changed in the early 1990s to let Planning Boards have Special Permit power and she said she believes it is a conflict of interest to have one body write and enforce legislation, and said that ZBA should enforce the Planning Board’s rules.  She said the Planning Board is appointed and not accountable to anyone.

Mr. Shefftz spoke about the level of detail the Planning Board deals with in considering Site Plan Reviews, and said that body doesn’t necessarily have final say, because lawsuits can and do challenge its decisions, and Town Meeting has to approve zoning changes.

Mr. Kusner said that the issue is one of discretion, and that a Special Permit application can result in either a “yes” or a “no,” while SPR can only result in a “yes” with conditions. 

There was additional discussion about the merits of Special Permit versus Site Plan Review.  Mr. Shefftz spoke of the many criteria in the Zoning Bylaw that govern SPR decisions.  Ms. Awad spoke of being uncomfortable taking power from the ZBA and giving it to the Planning Board.  Mr. Shefftz said the change for Special Permit to SPR wasn’t about giving powers on the Planning Board but rather that it represented confidence that the Planning Board could guide future lodging establishments appropriately.  Ms. Awad said the ZBA works to achieve consensus and shouldn’t be viewed as a barrier to development.   Mr. Shefftz said that the impetus for the change is not about how the ZBA functions, but rather that the Special Permit process deters the private sector from pursuing business development in town at all because it makes it difficult to secure financing for a potential project. He said he had not verified that, but that the Planning Board had found the point compelling.

Planning Director Jonathan Tucker emphasized that point, saying that in public hearings on this and other articles, the Planning Board was told that because the Special Permit process is discretionary, banks don’t want to lend the money and businesses are encouraged to go to Hadley instead.  He emphasized that it has nothing to do with the conduct or the permit approval rates of the ZBA and said that many projects just don’t get started due to the Special Permit requirement.  He praised the ZBA process as “exemplary,” and said that Special Permit and Site Plan Review are misunderstood.  He said that the requirements for both are nearly identical, with notification of abutters and the holding of public hearings.  He said that SPR is more exacting than Special Permit because it is based on detailed criteria rather than judgment. 

Mr. Tucker said that Planning Boards are not conflicted under State law, and that they are charged with writing zoning law and being the permitting authority as an “intentional continuum,” while the ZBA is intended to be for appeals of Planning Board decisions.  He said that Amherst is unique in that the bulk of its zoning dates to 1974 and was created in response to all the apartment complexes being built to handle growth at UMass, and that much of what other communities would allow by right, Amherst wanted the ability to reject. 

Per Ms. Awad’s concerns about the hotels situation, he said that Amherst’s dimensional limitations don’t allow for buildings higher than 50 feet or 4 stories, and that inns are confined to building that are at least 75 years old, so new structures can’t be built for that purpose. 

There was additional discussion about the Lord Jeff being non-conforming in its zoning district and how the proposed changes might affect its plans, and what the boundaries are of the General Business district for which hotels, motels and inns are proposed to be allowed by right.  Mr. Kusner talked about the different lot coverage allowances involved in the proposed change of Spring Street from General Residence to General Business.

Irv Rhodes said that the question about SPR versus Special Permit was one of perception.  He said that everyone wants what is best for the Town and that the Select Board’s leadership on such issues is important.  He said that positioning the change as one where one board is grabbing power away from another clouds the question for Town Meeting and prevents people from focusing on the merits of the issue.  He said the processes for SPR and Special Permit are nearly identical, but that Special Permit is perceived as a barrier to obtaining financing, and said that that barrier should be removed.  He said that the Select Board should support the change to Site Plan review and to do so with unanimity, so that the perception of Amherst being unfriendly to business could be put to rest.

Mr. Kusner said he agreed with Mr. Rhodes’ sentiment about perception and symbolism being important, but said he had concerns about part B.  He then moved to recommend motion A of Article 15 (expanding the General Business district.)  The vote in support was unanimous.

Ms. Greeney moved to approve motion B of Article 15 (allowing hotels motels and inns in the General Business district by Site Plan Review, instead of Special Permit.)  

Mr. Weiss spoke in support, saying he felt that the potential upsides outweighed the potential downsides and that the change represented only small risk.  He said he didn’t want to get into questions of one board being better than the other, saying that the Planning Board is acceptable to the Town Manager, who appoints it, and that the ZBA is acceptable to the Select Board, which appoints it, and that both have accountability to their appointing bodies.  He said the motion represents a positive step for the town.

Ms. Greeney said she supported it as well, and spoke of the need to find resources to augment residential property taxes in order to pay for schools and Town services.  She said that if Special Permit is perceived to be an obstacle to borrowing money, that needs to be changed.  She said she was confident in the abilities of both boards, and that they would work together to safeguard the town.  She said that the proposed change has “obvious upside” and that she didn’t see any downside, and that she supports it “100%.”

Mr. Weiss noted that there are four pages of Zoning Bylaw requirements to deal with under Site Plan Review.  He said that downtown vitality is crucial to the well-being of the Town, and said that lodging is key to that vitality, and that it is an area where the downtown is currently weak.  He said that despite being “bombarded daily with Hadley malls,” Amherst’s downtown is thriving and he wants to keep it so.

Mr. Kusner said he had no concerns about a turf battle between ZBA and the Planning Board, but that his concern was one of property rights.  He said he was concerned about approvals through Site Plan Review becoming cause for litigation, and said he wanted to discuss that with the Town Counsel.  He said that it is not that he doesn’t support the change but rather that he could not support the motion that night.

The vote on motion B was 3 in favor, 2 opposed, with Mr. Kusner and Ms. Awad voting to oppose.

Mr. Shaffer said he wants to give the Select Board every opportunity to vote yes on both motions because he believes they are critical to downtown, and said that if Mr. Kusner or others send him questions for Town Counsel, he will see that they are answered promptly.

Ms. Awad said that the Select Board’s unanimous vote on motion A and split vote on B didn’t bode well for Town Meeting.  

Ms. Awad said she was confused that the two motions were part of the same article and that they were being dealt with before the completion of the Master Plan.  Mr. Shaffer said that it was important to pass both motions to show the Town’s intention for this business zone and to help Amherst College with the Lord Jeff project, the success of which he said would determine the success of the area.  Mr. Kusner said that part A would do what Mr. Shaffer expressed and that part B neither helps nor hinders that. Ms. Brewer said she hoped any discussion with Town Counsel would happen immediately and said it was unfortunate to characterize something as “controversial” just because there were questions about it which hadn’t yet been answered.

Recommendations on Warrant Articles – Articles 10 and 11 – University Drive (8:42)

Aaron Hayden, Planning Board chair, explained that Article 10 establishes an overlay district on the west side of University Drive which would allow research and development uses there by right by SPR, instead of the Special Permit required in other areas.  He said this was the ideal location for such activity as it is near the University and relatively distant from residential areas. 

Mr. Tucker described the surrounding area and its zoning.  He said that State law requires uniformity within a zoning district, but that overlays can be created to put new rules on existing regulations where geographically appropriate.  He said most overlays are created to protect critical resources.  He said that much of the article’s language is to allow the overlay district to occur, while the rest places it on the map. 

Ms. Greenbaum said that research and development uses were better governed by the ZBA’s Special Permit because of concerns about what kind substances might be used and what kinds of odors or other negative issues might result.  She said they should be considered on a case-by-case basis to determine if they are appropriate rather than providing by-right approval. 

Mr. Hayden said that Article 11 includes provisions common to all its aspects about outdoor storage having to be screened from public view, and prohibiting noise, fumes, vibrations, dust or odors from crossing the lot line, or else the use would have to cease. Mr. Tucker said that the Board of Health is revising its biosafety regulations in tandem with this, and said that in most communities, the Board of Health has primary regulatory authority over such research and development. Mr. Shaffer said the Board of Health has been part of the process with this article on several issues and that they are seeking outside assistance with their review of recombinant DNA issues to ensure that they meet current standard practices.  Mr. Shaffer said there has been much consultation between the Board of Health and the Planning Department to make sure both are “synchronized” and working together.  Mr. Kusner said the role of the Board of Health and its regulations would be important to understand and explain to Town Meeting.  Ms. Awad said she hoped the Select Board would support these articles tonight and that the Board of Health information could wait for Town Meeting. 

Mr. Tucker summarized article 11 and its three parts.  He said that it amends the regulations for the three research and development use categories.  He said that the first part deals with research and industrial uses in light manufacturing, in recognition of the new overlay district of Article 10 and the specifics of what would and wouldn’t be allowed there and how it would be regulated.  He said the second part makes the most extreme manufacturing uses require Special Permit rather than Site Plan Review.  He said that the third part adds definitions of what would be considered toxic and hazardous, referencing current State law.

The Select Board voted unanimously to recommend parts A and B of Article 10 and parts A, B and C of Article 11.    

Recommendations on Warrant Articles – Article 8 – Community Preservation Act funds for Town Hall (9:22)

Community Preservation Act Committee (CPAC) Chair Peter Jessop said that the Historical Commission had voted 4-1 to recommend the funding for the Town Hall restoration project for CPAC funding.  He said there was much deliberation on the subject with Town staff, the Historical Commission, CPAC and the Select Board, as well as Town Counsel.  He said that CPAC ultimately voted 5-3 to recommend appropriating $100,000 from the CPAC fund balance, and $295,000 to be amortized over ten years and borrowed against future CPA revenues.    

Mr. Weiss said that the Select Board had previously voted 4-1 to request full funding of the project, but that the full amount couldn’t be covered because some spending had already occurred.  Mr. Jessop said that money already spent was not eligible to be covered by CPAC funds.

Mr. Jessop said that using the $100,000 from the CPAC fund balance keeps the rest of the allocation for historic preservation in balance with the allocations for the other areas funded by CPAC.

Mr. Kusner expressed appreciation to Mr. Jessop, Mr. Weiss and Mr. Shaffer for the agreement that was worked out, and said that this was closer to where he had wanted the funding to be when he opposed the full-funding request.  He had questions about some vagueness in the article, and Mr. Jessop and Mr. Shaffer said those would be clarified in the wording and the presentation to Town Meeting. 

Mr. Weiss said the $165,000 or so that had already been spent and wasn’t eligible for CPAC money amounted to a compromise between full and substantial funding of the project.  He said that the funding of this project was partially made possible by the half-percent increase approved for the CPA property tax surcharge, and that it was among the reasons he had supported that increase.  He said he had foreseen that historic preservation “wasn’t just cute little projects,” but also “necessary” ones.

There was more discussion about the relative merits of funding the Town Hall project this way.  A vote on the article was postponed to the next meeting, when a more specific motion was expected.

Committee Appointments (9:46)

Ms. Awad recommended that Denise Barberet be appointed to the Hampshire Regional Emergency Planning Committee as a representative of the Planning Board.  The vote to approve the appointment was unanimous.  [Note: This committee name had been erroneously recorded as "Hampshire Regional Planning Commission" and was corrected on 11/9.]

Ms. Awad recommended that Jon Nelms be appointed to the Committee on Homelessness.  The vote to approve the appointment was unanimous.

Approval of Minutes

With some discussion, the Select Board approved the amended minutes of the August 27th, September 10th, September 17th and September 24th meetings in a vote of 4 in favor, 1 abstention, with Ms. Brewer abstaining, because she had not finished reading the minutes.

The meeting adjourned at 9:56.  The Select Board’s next meeting was scheduled for 6:30 p.m. on October 29th at Town Hall.

-- Stephanie O’Keeffe