COMMUNITY PRESERVATION COMMITTEE
MINUTES
January 13, 2015
A regular meeting of the Community Preservation Committee (CPC) was held on Tuesday, January 13, 2015 at 6:00 pm at 120 Washington Street, Salem, MA. Present were Chair Helen Sides, Bart Hoskins, Ed Moriarty, Mickey Northcutt and Tim Shea. Also present was Jane Guy of the City of Salem Department of Planning & Community Development.
Arriving later in the meeting was Joanne McCrea.
Public Comment
There was no public comment.
Review of Public Comments Received and Discuss/Vote Final Community Preservation Plan
Ms. Guy stated that she received no public comments on the draft Plan. She provided copies of the finalized Plan.
Mr. Shea made a motion to approve the FY15 Community Preservation Plan and FY14 Annual Report as finalized. Mr. Northcutt seconded the motion; all were in favor and the motion so carried.
Set Deadline for Submission of Step 1 Eligibility Applications (2/6/15 proposed)
Ms. Guy recommended a deadline of February 6, 2015 for Step 1 applications so that the CPC can review them at their February 10, 2015 meeting. Applicants can still submit applications at any time, but the deadline is needed to assure consideration for this funding round.
Mr. Hoskins made a motion to set the Step 1 Eligibility Application deadline of 2/6/15 for consideration during the current funding round. Mr. Northcutt seconded the motion; all were in favor and the motion so carried.
Discussion on General Site Visit Policy
Ms. Guy stated that the CPC has received an invite to tour the House of Seven Gables campus so that members can “gain a deeper understanding of its historic significance and preservation challenges”. She stated that it certainly makes sense for members to be familiar with the sites they are voting on for funding, but stated that before she responds to the Gables, she would like the CPC to discuss a policy for site visits – i.e. when invited, when a CPC members requests one, only after receipt of Step 1 applications, only after receipt of Step 2 applications, etc.
Mr. Northcutt asked how other boards handle site visits and if they do it at the meeting time.
Ms. Sides stated that it is done separate from a regular meeting, but with no deliberation at the site. She noted that all boards do site visits and that it is extremely helpful.
Mr. Hoskins stated that the Conservation Commission will sometimes arrange a time with a developer or owner representatives, but will often just leave it to the commissioners to visit on their own.
Ms. McCrea joined the meeting at this time.
Mr. Hoskins stated that he did not think there needed to be an iron-clad rule that everyone go at same time.
Ms. Sides stated that she felt a site visit is all part of the CPC’s role to be open minded and gather information. She stated that she did not feel it was prejudicial to collect that.
Mr. Shea agreed and stated that he was not sure of a need for a policy, and noted that he wanted a little flexibility.
Ms. Sides stated that site visits never end up being everyone, but that those who attend report back, so it is valuable.
Mr. Moriarty stated that he felt a site visit raises a serious legal issue, by what the proposed, potential, alleged future applicant has indicated in this particular proposal that we are overlooking in our zealousness to perform our statutory and ordinance objectives. He stated his opinion is that it it is imprudent and bad policy and possibly illegal to agree to a tour from a prospective applicant before an application has even been filed. He stated that this is not how it is done and felt there should be a policy as when a site visit is done. He stated that in this instance, there is an applicant who has been denied previously and has expressed interest in reapplying, but has not yet filed an application. He felt the CPC should not make itselves available to any prospective, potential, alleged
applicant in advance of an application. He felt a site visit in advance of an application is violative, if not the letter of the open meeting law, certainly the spirit of the open meeting law, which is to have open, transparent discussion in public about the application, the issues, the concerns and the vote of the board. He stated that he did not think it was a bad idea to have a policy and agreed that a site visit is part and parcel of the process. He stated that every zoning application in his experience had at least one member agree to be at the site at a particular point in time and then report back to the committee. He stated that it guarantees everyone due process.
Ms. Sides stated that she could see what Mr. Moriarty was saying. She stated that it would need to be known by the public that it was taking place.
Ms. Guy stated that it is not required by the Open Meeting Law to notify the public about a site visit, as long as a meeting is not being continued to a site visit to deliberate. She stated that she felt the CPC should have site visits when they are called for, but that she did not disagree with Mr. Moriarty about the timing of the visit and that she did not disagree with Mr. Shea, that she also did not think that everyone needs to be committed to going. She stated that the CPC’s policy could be that there will only be site visits once a pre-application is received.
Ms. Sides stated that that makes sense.
Mr. Northcutt stated that he would like to clarify, that if the CPC is going to do site visits, they are at our discretion. He stated that he does not want to get into a situation where one applicant says that, since the CPC went to one site, they must go to their site. He stated that if they are required to do a site visit for every application, it is a whole different level of time commitment and coordination. He stated that he would not want to do that unless they are all done at one time, but would not want to schedule several site visits.
Ms. McCrea stated that the Historical Commission does site visits, but not until an application is received.
Mr. Northcutt stated that he felt the CPC could electively do a site visit, such as Winter Island. He noted that the CPC did a Housing Authority tour last year. He stated that the CPC is then more familiar with the work and added that he did not think it was prejudicial.
Mr. Hoskins stated that he did not understand the harm, noting that the Conservation Commission went to the Footprint site before they applied. He stated that they knew it was coming and knew they would have to have some familiarity with. They went there for convenience at a mutually agreeable time. He stated that it is understood that there is no deliberations, but is just to ask questions and gather information. He stated that the policy should be that it is at the CPC’s discretion and noted that the potential conflicts are covered by the Conflict of Interest law. He felt that he did not see the harm in going to a place as they see fit.
Mr. Moriarty stated that this is in response to a specific request, not the CPC saying they want to go there. He stated that he had no problem with the CPC initiating it. He stated that is in response to a request from a previous applicant that was previously denied and has indicated that they will be an applicant again, but would like to bring the CPC down there to explain why this will be a good application.
Ms. Sides stated that she did not hear it that way at all.
Mr. Northcutt stated that his view on the 7 Gables is that there are multiple buildings, but that he did not honestly know one building from other. He stated that this is an opportunity to go there, walk the site and get a sense of how the site is laid out and what they own, which he felt was not a bad thing. He believed that last year they were denied for a tertiary building, which was not directly related to the overall mission or of public value.
Mr. Hoskins stated that his recollection was that it was a building with no public access and wouldn’t really see the benefit of, except that out of 8 billion historic buildings in Salem, one of them would have a better streetscape view. He stated that it was an improvement that makes the streetscape incrementally better versus those where the public is tripping through it every day in large numbers, such as Winter Island, where the public benefit is broad. He stated that did not have a problem restricting site visits to when there is at least pre-application, if that makes people more comfortable, but did not see a reason to restrict ourselves, since there is already an Open Meeting Law.
Ms. McCrea stated that she did not have a problem either, but since we have a lawyer bringing it up, she would tend to agree with him. She felt the CPC should not go down until there is an application, because there could be a perception by others with regard to the Gables.
Mr. Northcutt stated that he would prefer that we don’t restrict ourselves. He noted that he is also lawyer and that he did not have a problem with it as long as the CPC is in compliance with the Open Meeting Law at the site visit and not conduct business.
Mr. Shea was concerned about possibly being restricted from going to certain sites as a citizen because he is on this committee.
Ms. Sides stated that the 7 Gables is looking for some way to get some funding one of the millions of things they need to get done and information on what might be eligible. She saw it as an open invitation and not a way to influence the CPC.
Mr. Moriarty stated that he viewed the CPC members as judges for each application and then read a passage in a book about Lyndon Johnson and the definition of good judge, which says that a good judge listens patiently, considers soberly, weighs wisely and judges impartially. He stated that it doesn’t have to do with whether you are comfortable or not with the applicant, the applicant’s intentions or the applicant’s needs. He stated that it has to do with the process and noted that this is what due process and the Open Meeting Law is all about. He stated that he personally called open meeting law officer of the day of the Assistant Attorney General and inquired whether this particular sub-provision had ever been utilized to authorize a site visit to an applicant who would be a future applicant; the
answer was no. He did not believe the intention of the open meeting law is to allow site visits on something that might happen in the future. He stated that it has to be something that is before the board; otherwise you open yourself up to issues favoritism and partiality. He stated if things aren’t followed in appropriate order, it is not being a good steward of the tax funds raised. He stated that he was in favor of site visits, but did not feel they were appropriate of prospective applicant.
Mr. Shea stated that he did not disagree on waiting to do site visits. He stated that he did not want the CPC members being prevented from visiting sites just in a normal course of living. He stated that he did not want to be told he is in violation of something that the CPC creates if he wants to go to 7 gables and check out their other buildings on his own at some point. He also stated that he did not really understand the issue of being biased or impartial when there are representatives of all these other boards sitting on the CPC, who represent groups that bring their particular interests. He stated that if you follow that train of thought about impartiality and the Open Meeting Law, it would bring up the same question in his mind.
Ms. Guy stated that the CPC has the ability to gather information in any way it chooses, and if members feel going at this time to the 7 Gables is helpful, she felt they have the ability to do that. She stated that the question is if they need to go now and said if they do not or if there is an appearance of a conflict, they could wait until after there is an application. She stated that she did not have a problem if they want to do a site visit and that she checked with the City Solicitor, who did not have a problem with it as long as they don’t deliberate. She stated that she also saw Mr. Moriarty’s point, questioning the need to do it now, since there is no application and there is still time. If the 7 Gables submits an application on February 6th, the CPC will meet on the
10th and can decide if it wants to set up a site visit prior to the funding application. She stated she did not have a problem pushing a site visit off until after the pre-application, but noted that the CPC could also have a site visit if they really feel a need to go now.
Mr. Hoskins noted that the 7 Gables could send a blizzard of pre-applications. If that happens, he stated that he may suggest tabling their pre-applications until the CPC has a site visit, to understand better. Mr. Hoskins stated that to answer Mr. Shea’s concern, he can goes to places all the time, but does not identify himself as being on EPA business. He stated that Conflict of Interest laws take care a lot of what is raised.
Ms. Sides stated that she did not mind waiting until the application is received and understood that point. It would also clarify for them that they we would not be providing lots of input, but would only be for them to show us around.
Ms. Guy stated that it might work against them, should the CPC see something that doesn’t look as bad as the application might make it out to be. She stated that she did not feel a need for a written policy, but wanted to bring it up for discussion since the CPC has a request before them.
Ms. McCrea stated that she did not feel strongly about it.
Mr. Northcutt stated that he did not care don’t care when the CPC goes to the 7 Gables, but did not want to put a policy in place that is more restrictive than the open meeting law and feels it would be unnecessarily cumbersome.
Mr. Moriarty was in agreement.
Mr. Northcutt stated that he does not feel comfortable with him or Mr. Moriarty giving the CPC legal advice and felt we should ask the City Solicitor.
Mr. Moriarty stated that wanted to say for the record that he understood the City Solicitor’s position and disagreed with that position. He stated that if the CPC were to vote otherwise, he is prepared to go to the next step and file a complaint with the Open Meeting Law person at the Attorney General’s office, so it is not the end of the issue.
Mr. Shea stated that he is fine with waiting on a site visit, since it sounds like the 7 Gables is looking to pick our brains.
Ms. Guy stated that they have me to ask what might be eligible and what might not.
Mr. Hoskins stated that he is fine with accepting an invitation after a pre-application is received.
No one was in disagreement.
Ms. Guy will send a response to the 7 Gables saying that the CPC will consider a site visit if and when an application is received.
Mr. Northcutt summarized that the CPC will have no policy on site visits, but in the case of 7 Gables, there will be no site visit until they apply.
Mr. Moriarty stated that the response to the 7 Gables is that the CPC would be happy to respond to an invitation if and when the CPC receives an application. He agreed that it is not a policy, but a timed answer.
Other Business
There were no Determinations of Eligibility Applications to review.
Ms. Guy distributed copies of the monthly budget report.
Mr. Moriarty inquired about the Footprint Power agreement which is alleged to provide a substantial amount of money for the CPA. He asked about the total figure, when it would be available and how allocated (i.e. annually, quarterly).
Ms. Guy stated that she had a copy of the draft agreement. She knows that the money will not be available this funding round.
Approval of Minutes
Mr. Moriarty made a motion to approve the minutes of December 9, 2014. Mr. Northcutt seconded the motion; all were in favor and the motion so carried.
Next Meeting Date
Ms. Guy stated that the next meeting date is scheduled for Tuesday, February 10, 2015.
There being no further business, Mr. Northcutt made a motion to adjourn. Ms. McCrea seconded the motion; all were in favor, and the motion so carried.
Respectfully submitted,
Jane A. Guy
Administrator
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