NEW OPEN MEETING LAW COMMENTS

You may be aware that the state has adopted a new Open Meetings Law that went into effect on July 1, 2010. Among the major changes in the new law are the following: (1) agendas (or items the Chairman reasonably believes will be discussed) must be included in the posting of a meeting whereas previously only the date, time and place was required; (2) such notices must still be posted 48 hours in advance, but now Saturdays are excluded from that time period (Sundays had already been excluded); (3) the notices of all such meetings in a town must be accessible by the public on a 24 hour, 7 day basis; and (4) meeting minutes must now include a list of all documents and other exhibits discussed at the meeting and these must be available for the public view in the future.

There are also some clarifications and definitions. I think the new rules are a good step forward in assuring openness and accountability in government.

My primary problem with the new rules relates to its treatment of technology. The rules remain rooted in centuries-old technology. The basis of it remains posting notices at Town Hall and publishing notices in the newspaper. These may have been effective when people made frequent trips to the town square and when reading a daily newspaper was a common component of life, but in era of sprawling suburbs, plummeting newspaper circulation and an Internet economy, these methods no longer reach most people.

I am not advocating for abandoning these practices, but I do suggest that inadvertently missing a deadline for these should not be a fatal flaw in the process if it can be demonstrated that other means of communication have been used advantageously. In an era in which there are now more households with a cell phone and no land line than there are with a land line and no cell phone, I would be willing to bet that more people could be reached via the Internet than through Town Hall postings and newspaper ads.

While the new law expands the use of technology slightly, its primary focus seems to be to restrict use of technology rather than to embrace it a means of EXPANDING access to government. For example, the guidelines clarify that email can be used for administrative matters (scheduling meetings, distributing information, etc.) but not for substantive discussion. This is a good thing as far as it goes. Private emails should not be used to discuss public business.

However, why not use technology in an open manner to allow greater and easier participation? That is, a public forum could be established that would be viewable by the public in which members of a public body could ask questions or make comments that could be responded to by other members, the applicant or other Town officials. As long as those participating are identified and the forum is viewable by the public, why not allow it?

In the case of public hearings, why not let members of the public participate in the forum? Applicants could post the details of their project including plans, reports, etc. Comments and reports by consultants and Town officials could also be posted. Members of the public body as well as members of the public would have easy access to all information about the project. A requirement would be that all persons participating must be identified and registered with, at a minimum, name, residential address and email address (and, as applicable, whether they are a member of the public body, the applicant’s team, a town official, abutter, etc.). Any comments so posted would become part of the public record of the hearing. This would allow residents to participate who are not able to attend the physical hearing due to illness, mobility issues or scheduling conflicts. In addition, such a system could facilitate and streamline the physical hearing.

The new law does provide for remote participation by public body members. However, this provision is not yet in effect as the Attorney General’s office is seeking public comment as a first step to establishing rules about this practice. One example of how this could be utilized is the case of a public hearing that has been closed and a board is deliberating a decision. If a member is out of town on the day of the vote, but can certify that he or she has reviewed a copy of the draft decision, why not allow that member to participate remotely via phone, video conference, or Internet. When most Boards meet only once or twice per month, it could avoid unnecessary delays.

In summary, the new Open Meeting Law is good step forward in assuring transparency and openness in government. However, the job is not finished and more needs to be done to bring government into the 21^st Century.

BP OIL DISASTER

While not directly relevant to Sherborn, as a former resident of New Orleans, I am very interested in this issue. In graduate school, I was heavily involved in studying impacts of offshore oil and gas production. The title of my master's thesis was "The Fiscal Impacts of Outer Continental Oil and Gas Production on State and Local Governments in Lafourche Parish, LA." I also worked on a couple of other studies of the industry as a graduate research assistant.

The most interesting project I was involved with was commissioned by the Conservation Foundation (since merged with the World Wildlife Fund) through a contract with the Fish and Wildlife Service of the U.S. Department of Interior. I co-authored the report with a professor. The report is called "Environmental Planning for Offshore Oil and Gas, VolumeV: Regional Status Reports. Part 3:Gulf Coast Region." As the name implies, this was a national report on offshore oil and gas and we covered the Gulf Coast, which, of course, is the site of almost all offshore oil and gas activity. The President of the Conservation Foundation at the time was William Reilly, who later served as EPA Administrator and was just appointed by President Obama as Co-Chair of the commission investigating the BP disaster.

Among other things, the report covered some of the challenges involved in deepwater drilling, which was then in its infancy. In discussing technologies involving accident response, the report cites four main problems as  "reestablishing control over wells that have blown out, containing and cleaning up oil on water, salvaging marine life and birds, and cleaning up beaches." Not that these are not obvious issues! The report also discusses the impacts of offshore oils and gas activity on living things and the socioeconomic impacts.

GREEN COMMUNITIES ACT

In 2008, the Massachusetts Legislature adopted the Green Communities Act. This act provides funding for designated communities to implement alternative and renewable energy projects. The funding comes from the Regional Greenhouse Gas Initiative (RGGI, pronounced "reggie"). A system has been established by which companies can buy credits for their greenhouse gas emissions at an annual auction. The proceeds of those auctions are then used to fund local energy projects.

In order to become designated as a Green Community, a town must meet five criteria. These include the following:

1. Provide for the as-of-right siting of renewable or alternative energy generating facilities, renewable or alternative energy research and development (R&D) facilities, or renewable or alternative energy manufacturing facilities in designated locations.

2. Adopt an expedited application and permitting process under which these energy facilities may be sited within the municipality and which shall not exceed 1 year from the date of initial application to the date of final approval.

3. Establish an energy use baseline inventory for municipal buildings, vehicles, street and traffic lighting, and put in place a comprehensive program designed to reduce this baseline by 20 percent within 5 years of initial participation in the program.

4. Purchase only fuel-efficient vehicles for municipal use whenever such vehicles are commercially available and practicable.

5. Require all new residential construction over 3,000 square feet and all new commercial and industrial real estate construction to minimize, to the extent feasible, the life-cycle cost of the facility by utilizing energy efficiency, water conservation and other renewable or alternative energy technologies.

In my opinion, we could achieve 4 out of 5 of these relatively easily. Since we do not have any industrial zoning districts in which energy manufacturing or R&D facilities could locate, we would have to achieve #1 by allowing energy generating facilities by right. We could do this by allowing solar facilities within or adjacent to our electrical transmission lines. Solar panels (even one sized for commercial quantities of electricity) are relatively benign.

Similarly, we could achieve #2 by adopting an expedited permitting process ensuring that a permit would be granted (actually "decided," it could still be denied) within a year. Rarely do any permitting processes take more than a few months now so this would be very easy to comply with.

#4 is also easy. Heavy duty vehicles and police vehicles are exempt. The policy only applies to administrative vehicles. However, we would need to commit to energy-efficient police vehicles when they become commercially available.

#5 may be a little controversial. It would require adoption of the currently-optional "stretch code" component of the State Building Code. It simply requires more energy efficiency in new houses and other buildings. This increases up-front costs but saves money in the future since the building would use less energy. As energy prices increase, the payback period decreases.

The one I see as the most difficult is #3. First, it requires that we establish a baseline for total municipal energy use (including schools, town buildings, town vehicles and streetlights) and then commit to reduce this usage by 20% within 5 years. There is a free software program provided by the state to help with the inventory and the utility companies can provide usage information. However, some effort is needed to document square footage, number of employees using the space, etc. to complete this task.

Once a community earns the "Green Community" designation, it becomes eligible for the grants mentioned above that can be used to build alternative energy facilities in Town (and help meet the 20% reduction). Therefore, it is similar to the Community Preservation Act in one respect because the early adopters get to maximize the financial benefits. However, the primary benefits are simply the cost savings that result from reduced energy use as well as the reduction in greenhouse gas emissions.

TOWN MEETING RESULTS AND COMMENTS

The two Planning Board zoning articles failed to gain the required two-thirds majority at Town Meeting. The article to allow  accessory apartments for rent-paying nonrelatives was favored by an 86-70 vote. The 55% majority was 19 votes short of 66.6%. The vote in favor of creating an adaptive use special permit for properties on North Main Street across from the Business General district was 85-57, or 60%. It fell 10 votes short of the two-thirds super-majority required.

Neither of these articles were critical to the future of Sherborn. They both would have resulted in small changes. However, in the view of the Planning Board and the Advisory Committee, they would have facilitated incremental but positive improvements in the quality of life of Sherborn residents. As happens throughout Massachusetts, a minority is able to block progress because of the requirement for a two-thirds vote to change zoning.

This raises the question of whether the two-thirds requirement is appropriate. Apparently, in Connecticut, Planning Boards have the authority to change zoning on their own. While nobody is suggesting such a change in Massachusetts, there has been a debate about changing the two-thirds vote requirement. One suggestion is to allow each town to decide on its own whether zoning changes should be by simple majority or two-thirds with the proviso that reducing the requirement to a simple majority would require a two-thirds vote. I doubt that the minority with power to block changes would be willing to cede that authority in very many towns (if any).

I am not entirely opposed to the two-thirds requirement but I have considered variations that could be beneficial. One thought I have is to allow towns to set the requirement at anywhere between a simple majority and a two-thirds vote. In other words, a town could set the requirement at 55%, 60% or 53.7% if they so choose. Of course, how that would be set remains an issue. Requiring a two-thirds vote for the change would likely render it moot since few, if any towns would be able to make the change.

Another thought I have had would provide more authority to the Planning Board, but stop well short of the authority in Connecticut. That is, a zoning change endorsed by the Planning Board would require a simple majority while one that is opposed by the Planning Board would still require a super-majority. A variation with  checks and balances might be that in addition to the Planning Board, the article would need to be supported by the Advisory Committee, Warrant Committee, Finance Committee (or whatever a town calls its body that makes recommendations on warrant articles) in order to qualify for the simple majority vote.

My final comment reverts back to the specific Planning Board articles defeated at this year's Town Meeting. As stated above, the two articles that failed were not the foundation for a successful future for Sherborn nor the seeds of destruction for the Town. They were both minor in scope.Well-meaning residents can have honest disagreements about their value to the Town and there are good and legitimate arguments on both sides. However, it is disheartening to hear residents knowingly make arguments opposed to the articles that have no basis in fact. It is a well-known tactic to defeat an article by inventing unintended consequences, phantom conflicts with existing rules or other such measures in order to raise doubt and the prospect of scary problems in the future if the article were to pass.

REPORT ON ZONING ARTICLES

The Planning Board report on the zoning articles to be considered at the Annual Town Meeting on April 27 is now posted on its web site: http://sherbornma.org/Pages/SherbornMA_Planning/index.

The Planning Board voted 4-1 in support of Article 11 to amend the existing accessory apartment bylaw by deleting the provision prohibiting the collection of rent and prohibiting anyone but blood relatives and domestic help from occupying the units. The article also increases the maximum size of an accessory apartment from 800 to 1200 square feet (but retains the maximum limit of 30% of the size of the principle dwelling unit; this means only houses of 4000 square feet or more will be able to accommodate a 1200 square foot apartment.). As is the case now, accessory apartments would only be allowed by special permit from the Zoning Board of Appeals after notification of abutters and a public hearing. All requirements of the Zoning Bylaw as well as regulations of the Board of Health, Conservation Commission and any other Town rules and regulations would still need to be complied with.

The Planning Board also voted voted 4-1 to recommend Article 12 to create an Adaptive Use Special Permit that would provide a means of allowing very limited commercial use of two properties that are directly across the street from (but not in) the Business General district. The uses would be limited to professional offices or retail uses such as antique shops or arts and crafts shops. Also, at least one residence would be required to remain on the property and the architectural and historical integrity of the buildings would be required to be maintained.This also would be by special permit after abutter notification and a public hearing by the Planning Board.

Finally, the Planning Board voted unanimously in favor of Article 15, which essentially replaces the references to the FEMA flood maps to new ones which go into effect on June 4, 2010. This is a necessary step to ensure that Sherborn retains its eligibility under the National Flood Insurance Program.

ADVISORY COMMITTEE ACTIONS

On Saturday, March 27, Advisory Committee spent a long difficult day reviewing the omnibus budget, capital budget and other warrant articles. Their day began at 8:30 AM and extended to almost 5 PM, with just very few short breaks. They are in the very unenviable position of having to allocate scarce dollars among many worthy projects and issues that exceed the resources available. Many Town officials who volunteer their time also gave up their Saturday to advocate for their causes. The work was not finished and there are many more articles that need to be heard and voted on. Advisory Committee's hearing will continue Monday evening at 7:00 PM.

Of course, my primary interest is centered on the articles sponsored by the Planning Board. Only one of the Planning Board articles was heard on Saturday. It was Article 12, pertaining to creating an Adaptive Use special permit for 2 properties that sit directly across the street from the Business G district. The article is discussed more fully in a post below, but it essentially would allow very limited business uses in these buildings with strong controls on any changes to the building and site.

A principle of zoning is that a road should be a spine and not a boundary between districts. This article creates a compromise in that concept by allowing SOME limited business use without expanding the Business G district and with strong Town control. The Advisory Committee voted 6-1 in support of this article.

There are three other Planning Board articles to be heard, two of which are zoning related. The most significant would amend the Town's current bylaw providing for accessory apartments. Again, this article is discussed in more detail in a post below, but in summary the article would remove the current prohibition on receiving rent for accessory apartments, allowing non-relatives to occupy the units, and it would allow the maximum size of a unit to increase from 800 to 1200 square feet.

The second zoning article pertains to the Flood Plain District (and tonight should be an appropriate setting in which to discuss this!). It is actually a housekeeping article. The bylaw currently refers to the FEMA flood maps. New Flood rate maps have been produced and will become effective on June 4, 2010. FEMA has asked that our bylaw specifically refer to these new maps. They also ask that we add in a statement that the bylaws applies to land in the flood zones whether or not they are within a "Regulatory Floodway." Since we don't distinguish between land within or not within a Regulatory Floodway anyway, this really has no effect, but it shows our willingness to cooperate with FEMA.

A question has been raised about whether we should adopt this now since the maps will not be official until June 4. Since we are not even likely to get Attorney General approval by approval by June 4 and our updated Zoning Bylaw will not be printed by June 4, I think it is better to risk a slight bit of confusion for a few weeks rather than have that confusion for nearly a year.

Planning Board also has an article to amend Chapter 16 of the General Bylaw. That Chapter pertains to enforcement and fines. The article was prepared in conjunction with previous Town Counsel and current Town Counsel suggests some additional changes. Therefore, the Planning Board decided at its meeting of March 24 to withdraw this article and to come back next year with a new article that incorporates the new Town Counsel changes in a single article rather than to do it piecemeal.

SHERBORN BUS SERVICE

In case you are not aware, Sherborn now has bus service from the Town Center to the West Natick commuter rail station. The service is provided by the Metrowest Regional Transit Authority (MWRTA). The service is provided at no cost to the Town because it is funded by shifting the Town's mandatory assessment for the MBTA to the MWRTA instead.

At present there is only a single run in the morning and a single run in the evening. It is hoped that service will expand as ridership increases. The morning run leaves from the Sherborn Inn (where there is FREE PARKING) at 7:23 AM in order to arrive in time for the 7:46 train from West Natick. The returning bus leaves the West Natick station after arrival of the outgoing 5:35 PM train from South Station that arrives at West Natick at 6:26. The bus arrives at the Sherborn Inn at approximately 6:50 PM.

The Adult fare for the bus is $1.50 each way, and a 10-ride pass can be purchased for $11.00. The fare for students is $1.00 (10-ride pass for $9.00), and for those 65 older it is $.75 (10-ride pass for $7.00). Those with a Medicare card, or an MBTA or MWRTA transportation access card that identifies the holder as qualifying for the disabled fare pay the same as seniors and blind persons with a Commission for the Blind card ride for free.

With limited parking (and at a cost of $4.00 per day!), the bus provides a more convenient and lower cost means of getting to the train station.

If you have questions about the service or need additional information, you may call the MWRTA at 508-935-2222 or 888-996-9782.