 |
CHILMARK PLANNING BOARD
APPROVED Meeting Minutes
Monday, October 22, 2012 @ 4:30 PM
Present: Janet Weidner, Chair, Catherine Thompson, Daniel Greenbaum, John O. Flender, Andrew Fischer, Rich Osnoss, Jennifer Christy, Administrative Assistant
Not Present: Mitch Posin
Public: Andy Goldman, Thomas Bena(with camera), Jessica Roddy, Joan Malkin, Mark London, Remy Tumin, Warren Doty, Miles Jaffe, Sergio Modigliani, Lenny Jason, Doug Hoehn, Ken Iscol
Meeting was called to order by Chairman Janet Weidner at 4:32 p.m.
- Chair Weidner alerted all to the filming of the meeting.
Residential Bylaw Discussion & Visit from Town Counsel:
- Chair Weidner gave overview of progress to date and summarized the documents developed by the committee.
- Counsel summarized his approach in developing a legal opinion on the main question, “What can be done to limit the size of houses?”
- Research through a wide variety of sources and documents
- Consultations with: AG, Town Counsels in Wellfleet & Barnstable, Attorney Martin Healy (Spooner Road case), Cape Cod Commission, Town Counsel listserv informal poll
- The State Statute, MGL Section 40A, §3
- “no zoning ordinance or bylaw shall regulate or restrict the interior area of a single family residential unit.”
- “Provided however that such structures may be subject to reasonable regulations concerning the bulk and height of structures in determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.”
- 81 Spooner Road, Brookline, MA Case-FAR (Floor Area Ratio)
- Resulted in a cap of house sizes to a mathematical computation.
- First time the State Supreme Court directly dealt with anything that asked could there be regulations that restricted house size.
- The court essentially determined that house size may be limited as long as the regulating is done in an “indirect” and “incidental” way.
- The court determined that the language in 40A was ambiguous and difficult to interpret. It reached the conclusion that a floor area requirement which limited house size incidentally and indirectly was legal. As long as the regulation does not set minimum or maximum house sizes, then it is legal.
- Land Court, 2008: White vs Armour, Weston, MA Case (Zoning Bylaw)
- 6000 sq. ft. cap with site plan approval, sets a level that triggers a process rather than an absolute size limit.
- Land court upheld the Weston bylaw because the effects on the size of the residence was incidental.
- Counsel stated that a limit to house size accompanied by special permit review for houses over the limit will withstand legal challenge provided the limits to begin with are reasonable.
- Counsel stated he did not believe an absolute cap would survive a legal challenge.
Counsel reviewed his broad experience in arguing cases related to this issue.
Counsel gave “practical suggestions”:
- Notice requirements: (State Statute (48, section 11) The PB cannot impose notice requirements that are greater than the state statute.
- Entity to deal with the special permit review: special permit granting authority is defined by statute (40, section 1-A). They may be BOS, ZBA, PB, Zoning Administrators. The statute states which ones may be permit granting authorities.
- Counsel further stated & suggested:
- Would like the end result to be an effective law, but also one that survives legal challenge.
- Suggested a review of incorporating the house size regulation into the existing District Critical Planning Concerns (DCPCs). This may strengthen the regulations in the event of a court challenge. A court challenge, if the challenge involves projects within a DCPC, would be fought by the town and the MV Commission.
- The Martha’s Vineyard Commission (MVC) has greater powers to limit than towns do and the town would have an enhanced legal standing if the regulations were under a DCPC.
- Counsel stated the importance of making sure these bylaws would withstand a legal challenge, noting the Board is not involved in a “pure planning exercise” but is intent on making sure this bylaw “works”.
- Counsel reiterated that a cap with special permit review would, most likely, be upheld if the criteria for the special permit are objective enough. He stated the special permit would be able to be denied, but he noted the town should be prepared for a legal challenge if a special permit is denied. Counsel reiterated that his intent is to advise the Board on a way to proceed that would withstand a legal challenge.
- Counsel responded to questions and comments from the Board and the public.
- In response to a question from Mr. Osnoss, Counsel noted the need for a strong Purposes section in the bylaw which states why the town is making these requirements. He further noted if the bylaw is included within the DCPCs then there already is a strong Purposes section written. Counsel advised defining the relevant neighborhoods. Mr. Osnoss noted a strong Purposes section would tie the bylaw to the Chilmark Master Plan.
- Counsel described, briefly, the result of the challenge of the 3 acre zoning (Johnson vs. Edgartown) in Edgartown. The Land Court, in their reasoning to uphold the zoning, noted the fragility of the ponds and that the Legislature has recognized the MV Commission’s role in protecting that resource.
- Ms. Thompson inquired about a way to mathematically arrive at a house size that would represent the average, mean or median in Chilmark. Counsel responded that it would be difficult to do this in Chilmark and the numbers should be based on precedent in Chilmark rather than a straight FAR calculation, such as is used in Brookline. Counsel stated the need to make the bylaw “as reasonable and specific as possible.”
- Ms. Thompson further asked Counsel about his thoughts on Menemsha as a DCPC. Counsel stated he felt Menemsha was a good candidate for becoming a DCPC due to its small and irregular lot sizes and its defined area.
- Mr. Jaffe inquired about Counsel’s advisement to Aquinnah and their town-wide DCPC. Counsel declined to address his work with Aquinnah.
- Mr. Modigliani asked for clarification of Counsel’s suggestion to create an objective set of criteria and suggested that this approach would exclude the use of the more subjective, broad Development Guidelines. Counsel stated the inclusion of planning goals & objectives was of critical importance and that these goals & objectives should be placed in the Purposes section of the proposed bylaw and throughout the bylaw. Counsel further clarified that “to the extent that you can be as objective as possible, you should try to be.”
- Mr. Modigliani inquired whether Counsel was familiar with Neighborhood Conservation Districts (NCDs). Counsel was not familiar.
- Mr. Modigiliani suggested that a FAR approach for the proposed Residential Bylaw, that rises linearly, is the appropriate way to go. He further suggested that by not using this approach, the town increases the pressure to subdivide. Chair Weidner clarified Mr. Modigliani’s statement and inquired whether he meant “why is the Board searching for an upper limit, let the limit find itself by virtue of a linear extension.” Mr. Modigliani stated that was indeed what he was saying and further stated that the FAR-based approach, rising linearly, does address larger lots, a perceived point of concern of the Board’s.
- Ms. Malkin inquired of Counsel whether the Board could approach the limits of house size in a non-linear way: setting one FAR percentage up to a certain acreage and then changing to a smaller FAR for increasing lot size. Counsel stated that this would have a great chance of withstanding legal challenge if there is a rational basis for why it is being done.
- Ms. Malkin inquired of Counsel whether a site plan review committee would be able to legally impose conditions or would they also be able to deny a project. Counsel stated that if the plan review committee was not able to condition the project to make it meet zoning, then it could deny the project.
- Counsel noted again the advantage of applying the proposed Residential Bylaw to the existing DCPCs: added support/strength during legal challenge. Chair Weidner noted a Residential bylaw applied just to DCPCs may be more palatable to voters since the regulations would be added to areas which are already regulated.
- Ms. Malkin inquired about a bylaw that dealt with lot area coverage as a limitation. Counsel reiterated his opinion that if the bylaw stated a rational basis for the limitations on the lots through lot area coverage then it may likely withstand legal challenge. Ms. Malkin further inquired whether Counsel would feel comfortable with a bylaw which limited built structures through lot area coverage AND imposed an upper absolute limit. Counsel was unsure this proposal would be protected from legal challenge and stated that it would seem to limit interior house size purposefully rather than indirectly and incidentally.
- Counsel noted it seemed the Board was leaning towards review/special permit rather than site review and described the first task in the consideration of a special permit: the impact on the neighborhood. Mr. Osnoss stated his opinion that the public might be more amenable to a Residential Bylaw that involved review with special permit as a way to limit house size rather than percentages of lot size or some other formula. Ms. Malkin described the idea of a size trigger up to a certain acreage and a review process after that trigger size and further noted the neighborhood characteristics would therefore be part of the determination of whether to grant the special permit or not. Counsel noted the importance, in special permit-granting, of determining whether the project has a “detrimental” effect on the neighborhood.
- Mr. Modigliani observed that the task of defining the neighborhoods in Chilmark may be hard to do since the areas were not established in a consistent way in the past. He also clarified that FAR (Floor Area Ratio) does not apply to footprint size but rather to the sum of the interior areas of the structure. He further noted that another calculation, lot coverage, is separate and different from FAR. Lot coverage, Mr. Modigliani explained, is further sometimes broken down into permeable area and semi-permeable area.
- Selectmen Doty noted the great amount of work and consideration the Planning Board and subcommittee has done so far and he complimented the Planning Board and subcommittee. Mr. Doty further observed the Planning Board is considering not just a Residential Bylaw which will pass at town meeting, but one that will also withstand a legal challenge. Mr. Doty noted the bylaw will be challenged and it is important to build a bylaw that will stand up to that challenge. Mr. Doty noted the great job the Planning Board has done over the years to limit subdivision. He further advised the Board to leave issues of subdivision and density “off the table” for now and to concentrate on house size. Counsel followed up by stating a bylaw that established a town-wide DCPC, such as the one in Barnstable, was challenged by the Homeowners Association.
- Mr. Bena inquired of Counsel under what circumstances a bylaw would be considered unreasonable and who would determine its reasonability. Counsel responded it would be determined in Land Court or Superior Court or even Federal Court in some circumstances.
- In response to Ms. Malkin’s question re the Purposes section, Counsel responded that the Board does not have to provide a lengthy Purposes section but rather one that shows this bylaw was “planned and that it bears a relationship to something” and supporting documents may be referenced rather than included word for word.
- Chair Weidner thanked Mr. Rappaport for his time.
Peg Regan: Update on ‘Complete Streets’:
- Updated the Board on the Ordinance of Complete Streets, Walk to School Day (26 kids from Chilmark School participated with staff and faculty and many parents).
- Ms. Regan emphasized the importance of establishing a safe route to school.
- Ms. Regan noted her collaboration with the MV Commission and detailed what the Complete Streets grant will provide: signs, stencils on streets, cones, etc…
- Ms. Regan would like the towns to be consistent in the materials they use to encourage safe routes.
- Ms. Regan noted her work with gym teacher Channon Capra regarding a Chilmark School Walkability Audit. This is a one mile radius study of the school access routes.
- Ms. Regan emphasized her intention to assist with “traffic calming” initiatives and noted the need to create more sharrows on the roads to show bikers share the road.
- Chair Weidner mentioned how timely Ms. Regan’s visit is due to concerns in town regarding parking and access.
- Ms. Regan directed people to send requests to her for small items such as cones, reflective vests, etc…at reganpeg@mac.com.
- Ms. Thompson inquired about the possibility of installing the digital signs which show how fast a vehicle is going. Ms. Regan encouraged the town to investigate these types of signs.
- Mr. Fischer inquired whether Ms. Regan was familiar with MAP 21 and Ms. Regan stated she was familiar with the federal initiative to reduce the amount of car speed and traffic. Mr. Fischer noted the greater amount of money for municipalities through MAP 21.
- Ms. Regan stated there is funding for 2012 and 2013.
Leonard Bell Form A Application: Doug Hoehn
- Mr. Hoehn was not present at the time of discussion. Board discussed the possibilities.
- Board decided to take no action.
Minutes:
- The minutes from October 9 were reviewed and approved unanimously as written.
- Next Meeting: Monday, November 5, 2012, 4:30 PM
With no more business to discuss, Chair Weidner adjourned the meeting at 6:48 pm.
Minutes respectfully submitted by Jennifer Christy, Administrative Assistant.
| |
