Town Meeting - May 25th, 2022

Night ten of town meeting, held via remote participation. Materials were available from https://www.arlingtonma.gov/town-governance/town-meeting/2022-town-meeting-warrant.

Introductions

(Greg Christiana, Town Moderator) Mr. Christiana would like to begin the meeting with a moment of silence, to acknowledge the tragedy in Texas, and the two-year anniversary of George Floyd's murder.

(Laura Wiener) Ms. Wiener would like to make an announcement. The Jason Russell house is re-opening for tours this weekend. Masks are required.

There were no committee reports submitted tonight.

Article 28 - Enhanced Business Districts

We began discussion of Article 28 on Monday evening. The article proposes a set of standards for ground-floor commercial development.

(Note: I'm answering questions on behalf of the Arlington Redevelopment Board, so my notes may be less detailed than usual.)

(Mark Kaepplein) Mr. Kaepplein would like to get an example of what kind of construction would be compliant with these bylaws. He notes there was a mixed-used building constructed near the high school a few years ago, and asks if that would be compliant.

(Steve Revilak, ARB) Mr. Revilak says he hasn't thought of whether that particular building would be compliant. He offers to read through the standards and try to apply them.

(Mark Kaepplein) Mr. Kaepplein says that's not necessary. He notes the ground floor commercial space contains a pre-school, and all of the windows are frosted. If the tenants blocks out the windows, how will this help.

(Steve Revilak) Mr. Revilak says the goal is to have a certain level of transparency on the ground floor. However, there are instances where the privacy of occupants should take precedence (such as a pre-school). In such cases, he doesn't believe that shading the windows is an issue. What the article will prevent is a blank wall on the first floor.

(Mark Rosenthal) Mr. Rosenthal asks if this will help Arlington attract more restaurants.

(Steve Revilak) Mr. Revilak says the main motion was drafted without any particular businesses in mind. It would apply to restaurants, and to other types of businesses as well. It's not restaurant-specific.

(Al Tosti) Mr. Tosti motions to terminate debate.

Motion to terminate passes, 190--24--2.

Article passes, 203--11--3.

Article 29 - Street Trees

Article 29 proposes a change to the zoning bylaw, which would add street tree planting standards to projects that are reviewed by the Arlington Redevelopment Board.

(Rachel Zsembery, ARB Chair, via recorded video) Ms. Zsembery says that Arlington has bylaws related to tree preservation, and that the tree warden plans 200--300 trees annually. This article sets standards for tree size, placement, and maintenance. It would apply to new construction and redevelopment. It sets the location, spacing, size, and species for new shade trees.

(Note: I'm answering questions for this article too, and recalling the dialog to the best of my ability.)

(Nancy Bloom) Ms. Bloom asks how this article will be enforced.

(Steve Revilak, ARB) Mr. Revilak says the article is proposing a change to the Zoning Bylaw. The zoning bylaw delegates enforcement to the town's building inspector, so that's who would be charged with enforcement.

(Doug Heim, Town Counsel) Mr. Heim says the zoning enforcement officer is specified in the bylaws, but he expects enforcement to be a joint effort between the Redevelopment Board, the Tree Warden, and the Tree Committee. He says there are people in town looking our for our street trees.

(Josephine Babiarz) Ms. Babiarz asks about electric and gas lines, which can be buried underground.

(Steve Revilak) Mr. Revilak believes that dig safe rules would apply for excavation done to plant a tree -- call before you dig.

(Josephine Babiarz) Ms. Babiarz asks about trees and conflicts with overhead power lines.

(Adam Chapdelaine) Mr. Chapdelaine understands that the best practice is to choose tree species that can co-exist with the power lines.

(Lynette Culverhouse) Ms. Culverhouse is supportive. She asks if there are any provisions for protecting these trees.

(Doug Heim) Mr. Heim says there's no additional protection under this article, but there are state laws that protect mature shade trees.

(Beth Melofchik) (Ms. Melofchik isn't producing any audio.)

(Mark Rosenthal, Point of Order) Mr. Rosenthal asks if there's a way Ms. Melofchik can dial in to ask her question.

(Brendan O'Day) Mr. O'Day moves the question.

(Greg Christiana) Mr. Christiana says he'll give Ms. Melofchik a chance to dial in before taking a second to Mr. O'Day's motion.

(Carl Wagner, Point of Order) Mr. Wagner thinks the moderator made a wise decision by not terminating debate. He notes that Ms. Melofchik had similar problems during an earlier night.

(Susan Stamps, Tree Committee) Ms. Stamps says that the tree committee reviewed the article and feels fine about it. The applicant will be responsible for watering and maintenance for three years. Under Chapter 87 of the state laws, existing street trees can't be removed or damaged without a tree hearing. She's happy about the idea of a public private partnership in this area. She notes the article permits trees to be near, rather than in the public way.

(Beth Melofchik) (Ms. Melofchik was able to dial into tech support, who have put her on speakerphone). Ms. Melofchik says there are a lot of unknowns in this article, which confuses her. She wasn't able to listen to Ms. Stamps earlier comments. She says the ARB seems to be carving out some responsibility for trees, and that's very confusing to her.

(Susan Stamps) Ms. Stamps says the tree committee followed up with the ARB regarding this article, particularly about the requirement for 36 months of maintenance. She sees this as helping the town.

(Beth Melofchik) Ms. Melofchik asks who adjudicates these trees, and who decides if they can be cut down.

(Susan Stamps) Ms. Stamps believe they'd be considered as public shade trees.

(Adam Chapdelaine) Mr. Chapdelaine says that any public shade tree is covered by the state's shade tree laws.

(Beth Melofchik) Ms. Melofchik asks what this article does, that hasn't been done already. She asks if the ARB is supporting the planting of trees.

(Steve Revilak) Mr. Revilak says the ARB is supporting the planting of trees.

(Gordon Jamieson, Point of Order) Mr. Jamieson says we just had a long discussion after a motion to terminate debate, and that motion is not debatable.

Motion to terminate passes, 206--13--3.

Article passes, 220--6--1.

Article 30 - Solar Energy Systems

(Rachel Zsembery, via recorded video) Ms. Zsembery says that Arlington has modified solar regulations several times since 2010. This article follows guidelines laid out in the Net Zero Action Plan, which calls for every building in town to have net zero emissions by 2050. Watertown and Medford have similar regulations for solar energy systems. This article provides definitions related to solar, requires solar installations on 50% of building roof area and 90% of garage roof area, and applies to projects subject to environmental design review. She says there are circumstances where the ARB can waive these requirements, and that this is a step toward enacting the Net Zero Action Plan.

(Ben Rudick) Mr. Rudick says he's a new town meeting member, and he's been trying to limit his speaking to areas where he has professional expertise. He's worked on over 200 megawatts of utility scale solar. Mr. Rudick says this is a tremendous article, and that photo-voltaic panels have been come more viable and less expensive in recent years. This is wonderful, if not long overdue. He has a question regarding an applicants ability to meet the requirements. He also asks why the article requires solar ready rooftops, rather than the installation of solar systems.

(Eugene Benson, ARB) Mr. Benson says the article does require the installation of solar systems, unless the building has no solar exposure, or it's an old building whose roof can't handle the load. It actually requires solar.

(Mark Rosenthal) Mr. Rosenthal says this sounds like a wonderful idea. He's concerned about a provision that would allow adjacent building owners to build to the maximum height allowed by zoning, even if someone already has solar panels installed.

(Eugene Benson) Mr. Benson says this only affects projects under environmental design review. It doesn't stop an adjacent building owner from building up, or an adjacent property owner from planting trees. Most of the buildings in areas under ARB jurisdiction can't go higher than three or four stories, so he doesn't believe that panels are likely to be shadowed by later development.

(Mark Rosenthal) Mr. Rosenthal asks how these requirements are different than the ones for residential areas.

(Eugene Benson) Mr. Benson says there are no solar requirements for residential districts.

(Mark Rosenthal) Mr. Rosenthal asks about an adjacent property owner's right to cast shadows on another property.

(Greg Christiana) Mr. Christiana says that doesn't seem to be in scope.

(Eugene Benson) Mr. Benson says this only applies to projects that go through environmental design review, which are mostly likely to be located in the business districts. It doesn't affect properties in the residential districts.

(Beth Ann Friedman) Ms. Friedman asks which buildings this would apply to, and when it would apply to older buildings.

(Eugene Benson) With respect to old buildings, Mr. Benson says it would apply to gut renovations, significant reconstruction, or adding a new story. It wouldn't apply to changes in use, or when the existing roof structure was unable to support a solar installation.

(Beth Melofchik) Ms. Melofchik would like to know the ARB's plans for historic districts. The Historic Districts Commission has rules that prohibit solar in some cases.

(Eugene Benson) Mr. Benson says there is an exemption for cases where the Historic Districts Commission has denied a request to install solar.

(Beth Melofchik) Ms. Melofchik asks what the ARB's plan is to work with the Historic Districts Commission, to evolve their protocols to allow more solar.

(Eugene Benson) Mr. Benson thinks that would be a good discussion to have with the Clean Energy Future Committee.

(Nathan Miller) Mr. Miller has no issues with solar panels. He's concerned that someone with solar panels could force a neighboring property owner to trim their trees.

(Eugene Benson) Mr. Benson says the article says the opposite. Someone with solar panels would not be able to require a neighboring property owner to trim their trees.

(Christoper Moore) Mr. Moore moves the question.

(Ian Goodsell, Point of Order) Mr. Goodsell reminds the moderator of his earlier statement about calling on people who haven't spoken much.

Motion to terminate debate passes, 192--24--4.

Vote on the article passes, 208--16--2.

Article 32 - Zoning Board of Appeals Rules and Regulations

The Zoning Board of Appeals (ZBA) is the only town board whose regulations are partially codified in bylaws. Article 32 proposes to strike that section of the zoning bylaw, so the ZBA can independently maintain its own rules and regulations.

(Rachel Zsembery, via recorded video) Ms. Zsembery recalls the 2018 zoning bylaw recodification where one of the goals was to move administrative procedures out of the bylaws and into board rules and regulations. The Arlington Redevelopment Board (ARB) did this, but part of the ZBA's regulations are still in the bylaw. Ms. Zsembery notes that the ZBA is the only town board whose regulations are codified into law.

(Mark Rosenthal) Mr. Rosenthal has filed a substitute motion that would keep the administrative procedures for 40B hearings in the bylaw. Mr. Rosenthal acknowledges the ARB has said that the purpose of this article is to align the ZBA with other boards, however, the ZBA is the only board that might have to defend itself in front of the Housing Appeals Committee. He says that 40B allows developers to ignore local bylaws if the town doesn't have a certain amount of affordable housing. Mr. Rosenthal says his amendment requires developers to testify under oath, and requires the proceedings to be recorded. He says that other towns have experienced cases where developers say one thing to the ZBA and another thing to the Housing Appeals Committee.

(Doug Heim) Mr. Heim doesn't understand the rationale for the oath. An oath implies that there is some sort of penalty for perjury or lying; he doesn't see that since the Housing Appeals Committee handles administrative appeals. Mr. Heim says that Chapter 40B generally trumps Chapter 40A. To the extent that there are inconsistencies, the Housing Appeals Committee is likely to apply 40B. Mr. Heim says that boards can't impose things in 40B proceedings that aren't required under 40A. He sees this as an uneven administration of oaths.

(Nancy Bloom) Ms. Bloom is concerned that the current zoning bylaw and Mr. Rosenthal's amendment might not be in compliance with state law.

(Doug Heim) Mr. Heim says the question is whether a board can require oaths under 40B, which are not required under 40A. The attorney general approved the existing text of our bylaw, and text that is unchanged will not be reviewed.

(Christian Klein, ZBA Chair) Mr. Klein says that the ZBA adopted comprehensive permit regulations during the 2018 zoning recodification, and 40A regulations afterwards. The board now has regulations for both 40A and 40B. He put this article forward since the Zoning Bylaw regulations are no longer required, as the ZBA has adopted rules and regulations.

Mr. Klein feels that section 3.2.3(A) is in opposition to the board's ability to adopt rules and regulations, as specified in Chapter 40A Section 12. Regarding 40B, that's a complex and lengthy process. Last year, the ZBA met more than the Select Board, due to two 40B comprehensive permits. The board did not administer oaths during these proceedings because they believed that oaths would stifle public comment. Any testimony from a 40B applicant comes from engineer, and the ZBA has engineers to review it. There's no information that comes before the ZBA which is not reviewed. Out of the two 40B cases, one was not appealed to the Housing Appeals Committee. The second case appealed, but then withdrew. Mr. Klein requests that town meeting give the ZBA the ability to maintain their own rules and regulations.

(John Worden) Mr. Worden says that at this stage, the town is okay with respect to 40B, as long as the Select Board does the right thing as says "no". He believes that Arlington has met the 1.5% land use requirement, and it's important to have these regulations in the bylaw. Mr. Worden says it's okay to have things in the bylaw, as well as board rules and regulations. He says that 40B developers aren't nice people.

(Greg Christiana) Mr. Christiana requests that Mr. Worden not cast aspersions on entire classes of people.

(John Worden) Mr. Worden believes that nice people follow the rules and 40B developers don't.

(Carl Wagner) Mr. Wagner moves the question.

Motion to terminate debate passes, 183--34--4.

Rosenthal substitute motion fails, 54--182--6.

Article asses, 174--45--6.

Article 33 - Definition of Half Story

Article 33 proposes a clarification to the Zoning Bylaw's definition of half-story.

(Rachel Zsembery, via video) Ms. Zsembery says this zoning bylaw's definition of half-story was updated multiple times between 2018 and 2021. The goal is to improve the clarity of the definition, specifically that the floor area requirements for a half-story are calculated relative to the finished floor area of the story below.

(Christian Klein) Mr. Klein says the definition change was brought forward because there have been cases of confusion over what goes into the denominator of the half-story calculation. This change clarifies that the denominator is the area of the floor below the half story.

(Michelle Phelan) Ms. Phelan removed this article from the consent agenda. She's since had her questions answered.

Article passes, 209--6--5.

Article 34 - Porches

Article 34 proposes to change the Zoning Bylaw by adding porches to the section that addresses projection into minimum yards.

(Rachel Zsembery, via video) Ms. Zsembery says that the ZBA frequently sees requests from homeowners who want to construct porches. This article clarifies that porches are subject to the provisions for projections into minimum yards. This change is intended to provide clarity, and is not a change in substance.

(Christian Klein) Mr. Klein says the ZBA gets many applications for porches. For the purpose of interpreting the bylaw, Inspectional Services has treated them as enclosed entrances. Porches are so common that we felt it was necessary to explicitly add them to this section of the bylaw. Mr. Klein notes that this article is related to Article 35, which requires a special permit to enclose a porch.

(Larry Slotnick) Mr. Slotnick says that when developers purchase two-family homes in east Arlington, they often dismantle the front porches and bring the face of the building forward, so that what used to be a porch becomes interior space. They're super luxurious developments, and there's no porch any more. He asks whether the new condo owners can petition to add a porch.

(Christian Klein) Mr. Klein says that porches were allowed to be enclosed, if they had a roof. Article 35 added a special permit requirement to enclose the porch. They'd need a special permit in order to add a porch.

(Pat Hanlon, ZBA vice-chair) Mr. Hanlon says the ZBA gets a lot of cases where the owner wants to add a porch in their front yard. Most of these are homeowners, rather than developers. They're looking to create a place to sit. There's almost never any opposition to these applications; they're generally uncontroversial. Mr. Hanlon says the ZBA typically imposes conditions that porches not be enclosed, and that the porch doesn't redefine the foundation wall. The language of the current bylaw is subject to question. Mr. Hanlon would like the bylaw to be clear about what it authorizes. Reading the text should justify what happens in practice.

Article passes, 216--6--1.

Article 36 - Large Additions

Article 38 proposes to change the Zoning Bylaw's section on large additions, to clarify when the provision is triggered.

(Pat Hanlon, Point of Order) Mr. Hanlon asks if Article 35 was passed via the consent agenda.

(Greg Christiana) Mr. Christiana says yes.

(Rachel Zsembery, via recorded video) Ms. Zsembery says this article's purpose is to improve clarity of the calculation that determines when an addition qualifies as a large addition. It's not a substantive change.

(Christian Klein) Mr. Klein notes that our zoning bylaw says that a large addition is 750 square feet, or more than 50% of the gross floor area. This article clarifies that the lesser of those two thresholds constitutes a large addition. The bylaw has always been interpreted such that additions to floor area within the existing foundation aren't counted. We're proposing to add that interpretation for clarity.

Article passes, 210--5--4.

Article 37 - Unsafe Structures

Article 37 proposes a change to the Zoning Bylaw's provisions for unsafe structures, by giving the building inspectors the sole authority to declare a structure unsafe.

(Rachel Zsembery, via video) Ms. Zsembery says this article was put forward by the Zoning Board of Appeals and Zoning Bylaw Working Group. This article specifies who can declare that a structure is unsafe; the Director of Inspectional Services or their designee must make that declaration.

(Engellushe Mozina) Ms. Mozina said the sent a follow up question to Mr. Klein but didn't hear back from him. She thinks this article creates an unnecessary duplication of Section 3 and would like clarification on why this is needed.

(Christian Klein) Mr. Klein apologizes for not getting back to Ms. Mozina. He says that when builders review the bylaw, they typically don't read the entire thing. This article was motivated by a case where a contractor was told to leave two walls up when rebuilding a house, but demolished them because he felt they were unsafe. This created a bad situation because he'd demolished a house on an unbuildable lot, and the homeowner was left without a home.

(Engellushe Mozina) Ms. Mozina says she'd like to see an amendment that refers back to a section in state law.

(Doug Heim) Mr. Heim says we can't override state laws in our own bylaws.

(Greg Christiana) Mr. Christiana says he's not inclined to take a substantive motion to amend from the floor.

(Christian Klein) Mr. Klein asks if Ms. Mozina was referring to 40A Section 3. He just checked that section of state law and the word "unsafe" does not appear.

(Engellushe Mozina) Ms. Mozina says she was referring to Section 3 of the Zoning Bylaw, rather than Section 3 of 40A.

(Christian Klein) Mr. Klein things that 40A section 6 is more relevant. He thinks this article reiterates, but doesn't contradict that section.

(Engellushe Mozina) Ms. Mozina thinks the article is duplicative.

(Michelle Nathan) Ms. Nathan says she doesn't completely understand the other speaker, but understands how duplication can create exceptions. She asks when Inspectional Services would inspect such a building.

(Mike Ciampa, Inspectional Services Director) Mr. Ciampa says that inspections to determine if a structure is unsafe are generally conducted during construction, when the contractor notices something and brings it to inspectional services. Inspectional Services investigates such cases, and may bring in a structural engineer to do so. He says it's not a short process.

(Michelle Nathan) Ms. Nathan asks how often this happens.

(Mike Ciampa) Mr. Ciampa says it doesn't happen very often. He's only seen one or two cases where the building had to come down.

(Charlie Foskett, Point of Order) Mr. Foskett makes a motion to lay article 37 on the table until town meeting finishes with article 38.

(Paul Schlictman, Point of Order) Mr. Schlictman asks if it's legal to make a motion from a point of order.

(Greg Christiana) Mr. Christiana conducts a straw poll, to get a sense of how town meeting would feel about a vote. The straw poll fails.

Now there's a motion to adjourn for the evening.

(Gordon Jamieson) Mr. Jamieson objects to the procedure the moderator is using.

(Greg Christiana) Mr. Christiana would like to take a formal vote on adjournment.

(Janice Weber, Point of Order) Ms. Weber doesn't understand the reasoning behind Mr. Foskett's motion to postpone. She doesn't see any connection between Article 37 and Article 38.

Motion to adjourn passes, 112--70--2.

Town Meeting will not convene on Memorial Day, so we'll resume proceedings on Wednesday of next week.