Rezoning, 2008 and 2009

[Tom]

The planning board will hold a public hearing at 7:15 p.m. Thursday, Feb. 14, on a full zoning rewrite it is to submit to a special Town Meeting March 10.

The rewrite does not eliminate provisions in the existing bylaw for what selectmen term noxious uses and want removed, including tank farms and coal elevators. The rewrite, which the planning board sees as the first of two articles to be taken up March 10, also keeps the existing bylaw's provision that any lawful use can be approved in the industrial zone through a special permit.

In a letter to selectmen today, Feb. 12, the planning repeated its contention that the March Town Meeting should vote first on its full, largely non-substantive rewrite of the zoning bylaw, and then on a second article that would eliminate the noxious uses from what had just been voted. Selectmen, the town administrator, the finance committee, some Town Meeting representatives and Town Counsel have raised objections to the planning board's two-article approach, calling instead for a single combined article.

In a letter last week based on the unanimous vote of his board Jan. 31, FinCom Chairman Thomas Jalkut told the planning board that if it does not come up with a combined article, the finance committee will recommend that Town Meeting produce one of its own that eliminates the objectionable uses. To not have the opportunity to vote on a combined article would amount to "a shameful waste of everyone's time," Jalkut wrote.

At a selectmen's meeting last month, Town Meeting Rep. Clifford Snuffer said members would not vote for a first article that did not eliminate noxious uses because there would be no guarantee a second article making those changes would pass. A zoning change requires a two-thirds majority.

[Tom]

Selectmen said this week they hope a public hearing Feb. 14 will produce a resolution in a standoff over the planning board's intention to ask a March 10 special Town Meeting to first adopt a full, largely non-substantive rewrite of the zoning bylaw, and then in a second vote to amend the new bylaw to eliminate noxious uses.

The second article could also seek to eliminate a current provision that allows any lawful use to be approved by special permit -- one that could be sought for a power plant. (As of Tuesday, the planning board had not submitted final versions of its articles.)

As noted by Town Administrator Michael Boynton at Tuesday night's selectmen meeting, there is a concern among some that if Town Meeting adopts the rewrite, the second vote -- to eliminate the noxious uses -- could find that the needed two-thirds majority disappears. Selectmen chairman Al DeNapoli responded that theory was "a little too conspiratorial for me."

As noted by planning board vice chairman Nancy Mackenzie at the Tuesday selectmen's meeting, there is a concern among developers about elimination of the "any lawful use" provision. If a business was to leave a building where it is operating under such a special permit, the space could remain vacant -- a new tenant would likely be restricted to uses specifically allowed under the bylaw. The problem owners and builders see is that minus the "any lawful use" provision, the current bylaw and the planning board's proposed Article 1 rewrite would be too short on their allowable uses lists. In a second phase of its rezoning work, the planning board is to spell out a full list of allowed uses, but it could be a year before those changes are ready.

Eliminating the "any lawful use" provision well before a new use table is approved undermines the long and expensive planning board rezoning effort, Mackenzie said. Developers don't trust that there will be a new use table in a year and worry they'll end up with empty buildings, she said. "Nobody has any trust."

Earlier in the meeting, DeNapoli expressed reluctance to add a third article to the March 10 Town Meeting -- one prepared by Boynton at the request of the board that would eliminate the noxious uses (coal elevator, tank farm, sawmill) if the planning board's first article (and thus its second article) do not pass. Noting that his board and he had already placed a similar fall-back article on the spring Town Meeting warrant, DeNapoli said not much time would be lost by deferring to the planning board now. He also cautioned that amid current confusion, adding an Article 3 for March could make it harder for Article 1 to pass. Town Meeting representatives eager to get to the third article could skip over the first article, he explained. But after hearing his board members say they want the third article on the March 10 warrant, DeNapoli was part of the unanimous vote to place it there. "Maybe shame on me for not giving my fellow Town Meeting members enough credit," he said.

After voting 11-0 against the planning board's two-article approach Jan. 31, the finance committee informed the planning board that if it doesn't combine the rewrite and elimination of the noxious provisions into a single article, the FinCom will do it itself. Under the Town Charter, the FinCom and not the planning board gets to make the main motion at Town Meeting.

Then, as Boynton noted, the planning board voted 3-1 the same day as the FinCom letter (Feb. 7) to withdraw its articles. Asked if the planning board might resubmit, Mackenzie said that depends on getting support from selectmen -- support, she said, that the FinCom is not providing.

Selectmen voted unanimously Tuesday night to support what's in Articles 1 and 2, but sidestepped whether the content should be combined into a single article. As asked in a planning board letter earlier in the day, selectmen agreed to postpone closing the March 10 warrant Tuesday night. Instead selectmen will meet at 7 p.m. Wednesday, Feb. 20, the last day possible, determining which if any articles will go to Town Meeting.

-- Tom Glynn

The Feb. 12 planning board letter with the Feb. 7 FinCom letter attached. (pdf file) A Dec. 28 planning board letter

[Tom]

On Wednesday, selectmen will close the warrant for a special Town Meeting March 10 at which the big question will be whether to repeal a provision of the zoning bylaw that allows "any lawful use" by special permit in the industrial zone.

Planning board members noted at their hearing on the rezoning articles last week that the effort to repeal the "any lawful" wording has been spurred by a proposal for a power plant for which a special permit could be sought under that provision.

Planning board Chairman Jack Conroy pointed out at the Thursday hearing that elimination of the "any lawful" language from the town bylaw would not be enough to block the plant. Competitive Power Ventures could bypass the town process by going to the state for approval. "Like 40B, " he said.

Conroy also noted that building owners and developers are concerned about potential vacancies if the "any lawful" provision is removed now. Enactment of a thorough, up-to-date table of permitted uses that would in part offset elimination of "any lawful use" appears a year or more away.

Contrary to the what has been requested by other town officials and urged by citizens at the public hearing, the planning board reaffirmed its decision to submit two articles to the March 10 Town Meeting -- the first to clean up the existing bylaw; the second to eliminate "any lawful use" and three "noxious" provisions: coal elevators, sawmills and tank farms. Planning board members say they want to keep the clean-up article separate to keep it free of the controversy and confusion that could derail a combined article.

But the two-article approach has proven controversial as well -- Town Meeting Rep. Clifford Snuffer said at a recent selectmen's meeting that the first planning board article faces defeat because TM members would not vote to maintain noxious uses in the face of a possibility the second planning board article would be voted down. Thursday night, Bill Hamilton, a former selectman, called unsuccessfully for a combined article to give Town Meeting members an opportunity to discuss the "any lawful" and "noxious" uses. The planning board's second article is an amendment of its first -- if the first article is defeated, the second is meaningless and the "any lawful" and "noxious" uses would remain in the bylaw.

Calling it a fail-safe measure, selectmen last week voted to add a third article to the warrant that would eliminate the "any lawful" and "noxious" provisions from the bylaw now if Town Meeting rejects the planning board's approach.

While the selectmen have referred to their measure as Article 3, it does not necessarily have to follow the two planning board submissions. One possibility is for the selectmen's article to come first -- a sequence that might address concerns of those who want a combined article and those who do not.

[Tom]

Selectmen closed the three-article warrant Wednesday night for the March 10 Town Meeting on rezoning.

The first article will be the planning board's full "clean-up" of the existing bylaw, leaving in language that allows "noxious" industry and "any lawful use" in the industrial zone by special permit.

The second article, also from the planning board, consists of four amendments to the new version of the bylaw. The amendments would eliminate the noxious uses -- coal elevators, tank farms and sawmills -- and delete the "any lawful use" language. If the first article did not pass, the second article could not be considered.

In case both planning board two-article approach fails, selectmen have added a third, which would eliminate noxious and "any lawful" uses from the existing bylaw.

Regarding a May Town Meeting article, Town Administrator Michael Boynton advised selectmen that companies interested in providing fire-detection systems for Bird and Johnson middle schools are asking as much as $1 million, far above the $350,000 the town estimated. Unless there's a change in those prices, the May Town Meeting might be asked to use the town funds to repair the Bird roof instead, Boynton said. The detectors are viewed by town officials primarily as a way to add protection for the buildings when school is not in session; staff would give the alarm when the buildings are occupied.

[Tom]

'Any lawful use' survives

Town Meeting has rejected an article submitted by a reluctant planning board that would have eliminated a bylaw provision allowing the zoning board of appeals to issue a special permit for any lawful use to locate in the industrial, manufacturing or highway business zones.

In voice, standing and finally a rare rollcall vote Tuesday night (March 10), the article was backed by a majority of Town Meeting members, but fell short of the two-thirds majority needed to change the zoning bylaw.

The defeated Article 2 was an add-on urged by power plant opponents, selectmen and Town Administrator Michael Boynton to a special Town Meeting that the planning board originally intended to act solely on its non-substantive rewrite of the bylaw. The rewrite, Article 1, passed early Tuesday night on a unanimous voice vote.

A prelude to substantive changes to be proposed by the planning board months from now, the rewrite approved in Article 1 retains for now the “any lawful use” provision as well as three “noxious” uses the defeated Article 2 would have removed.* In an opening voice vote, most members said no to the unanimous recommendation of the finance committee that Articles 1 and 2 be brought to the floor simultaneously.

The long debate on Article 2 centered on whether leaving “any lawful use” in the bylaw would attract undesirable businesses like a proposed 580-megawatt power plant -- or whether the article was a “knee-jerk” reaction to the power plant that would not head off that proposal but would discourage desirable businesses from considering Walpole.

Opponents of Article 2 argued that without the “any lawful” provision, the specified uses allowed in the bylaw are too limited. Employed in the industry, member Don Rolph said that an attractive biotechnology enterprise along the lines of* Siemens on Coney Street would not be allowed in town if Article 2 were to pass.
But Tom Bowen, a member of the FinCom that voted unanimously in favor of Article 2 and a developer himself, said that desirable companies would be turned off by the “any lawful” provision. An attractive company doesn't want to build only to find that an unattractive use moves in next door, he said.

Supporters of Article 2 maintained that the “any lawful” provision has acted as a magnet, attracting one undesirable proposal after another – a propane tank farm, a regional trash transfer station…

The underlying issue is the power plant proposal, Ron Mariani told Town Meeting. Competitive Power Ventures "is fighting like crazy to get their power plant in, we have to fight to keep it out," the former selectman said. Bob Connolly, chairman of the town’s capital budget committee, noted millions in unmet capital requests, but agreed with Mariani’s assessment.

Member Sue Maguire noted that none of the undesirable proposals cited by Article 2 supporters became reality – an indication that the bylaw works. But speakers in favor of eliminating the “any lawful” provision countered that those proposals failed because citizens put in enormous time and effort to defeat them.

Gerald Blair, a former 17-year member and chairman of the zoning board, pointed out that to issue a special permit, the ZBA must find that the proposal is in keeping with the bylaw's overall intent. Both the previous and newly approved versions of the bylaw state: “No building or premises shall be erected, altered or used for any use that will be injurious, dangerous, obnoxious, or offensive to people in the general vicinity by reason of the emission of odor, fumes, dust, smoke, vibration, noise, heat, glare or other nuisances observable at the lot lines or the immediate neighborhood.” During his tenure, the “any lawful” permits issued were for “benign” uses, he said.

Ed Forsberg of the planning board cited the same language as providing protection while the next phase of the zoning work is readied – the preparation of a new, thorough table of allowed uses. Eliminating the “any lawful” provision before a new table is in place, he said, “might be somewhat premature.” There was no firm answer from the planning board on when it will be ready to submit a new use table; Town Meeting members noted it took a year and the help of a consultant to do the non-substantive rewrite.

Before the meeting began, selectmen met to vote their recommendations. On Article 2, Michael Caron and Chris Timson voted to recommend approval; Chairman Al DeNapoli voted against Article 2. (Cathy Winston recuses herself because she works for S.M. Lorusso. David Sullivan was absent due to illness.)

Although the planning board’s vote last month was unanimous for Article 2, its members who are also Town Meeting representatives split in the vote Tuesday night. The school committee had no say as a committee; its members who also serve on Town Meeting voted against Article 2. The economic development committee also opposed the article. The FinCom unanimously supported Article 2 because, Chairman Tom Jalkut explained, it was recommended by the planning board and the "any lawful" provision is used by only one other community that the consultant knows of -- Athol.

On the roll call, requested by supporters of Article 2, the vote was 74 in favor, 50 against. To pass, the article needed 83 votes.

-- Tom Glynn

[Tom]

Selectmen and the planning board are seeking one community member each to serve on a 15-member committee that will work toward a new table of permitted uses in time for the October Town Meeting.

The new table is to be a list of all the types of businesses the town welcomes. It is to replace a less thorough table that allows unspecified lawful uses through a special permit. Despite some strong opposition, Town Meeting decided March 10 to keep the "any lawful" provision in place for now.

Most of the other members will come from elected or appointed town boards. The chairman and vice chairman will be members of the planning board, which is to sponsor the new table at Town Meeting.

There will also be one at-large representative each for downtown and East Walpole, the two areas with overlay zoning districts designed to encourage business. The planning board's March 20 formulation would have had the East Walpole Civic Association designate the member from there.

Tuesday night, Selectman Cathy Winston said she had a problem with a "semi-social" group naming the East Walpole representative. Town Administrator Michael Boynton asked if East Walpole were to have a representative, why then shouldn't North, South and West.

After hearing planning board members explain that the two at-large members are on the roster because of the overlay districts, selectmen voted that the East Walpole and downtown representatives were to be chosen from among the two business communities rather than being named by the East Walpole association and the Chamber of Commerce.

The committee is to begin its sessions in mid-April. The consultants who worked on the zoning rewrite approved by Town Meeting March 10 may help the committee learn what's worked in other communities, planning board chairman Jack Conroy said, provided an agreement can be reached on price.

The final phase of the zoning revision, yet to be scheduled, will consider district boundaries and overlays.

[Tom]

A committee working on the next set of revisions in the ongoing zoning rewrite voted 9-2 Tuesday, Aug. 12, to recommend that the October Town Meeting should be asked to eliminate the "any lawful use" provision.

The vote came just a few hours before the closing of the Town Meeting warrant, which already contained a placeholder article in anticipation that the committee would be recommending a complete re-do of the zoning bylaw's table of permitted uses. But under Tuesday's vote, the only change being recommended for the fall is the elimination of the "any lawful use" provision that allows a project not otherwise covered by the table to be approved by special permit.

Opponents of a proposed power plant tried unsuccessfully to eliminate the provision at a special Town Meeting in March, maintaining it has been a magnet for undesirable uses, most notably the plant. Developers argued that without creation of a more thorough use table, elimination of the "any lawful" provision could discourage desirable enterprises from locating in Walpole. The repeal article received support of the majority of Town Meeting, but fell short of the two-thirds majority required for a zoning change.

Two weeks ago after learning the committee's full recommendations will not be ready for the fall, selectmen extended the panel with an eye toward next spring's Town Meeting. But Selectman Vice Chairman Cliff Snuffer, elected in June with support of power plant opponents, made it clear to rewrite committee members that he anticipated a recommendation for an October repeal of the "any lawful" provision.

The rewrite committee recommends that selectmen be the ones to sponsor the October article. Selectmen are to vote at their next meeting, Aug. 26, after town counsel reviews the language of the article proposed by the rewrite committee.

At their meeting Tuesday night, selectmen voted 4-1 to formally appoint Susan Maguire and Beth Pelick to the 15-member rewrite committee. Maguire has been the representative of the East Walpole business community, and Pelick of downtown, filling two slots specified in the committee structure. Snuffer noted, however, that the two had never been voted onto the committee by selectmen.

Tuesday night, Snuffer voted against their appointment, stating that one of them had attended only one of the six committee meetings, the other only one-and-a-half.

[Tom]

The proposed zoning use table employs a system developed by the federal government to classify businesses for statistical analysis.

If Town Meeting approves, Walpole would become one of the few and perhaps the only community in Massachusetts to base zoning on the North American Industry Classification System (NAICS.)

The system uses a code ranging from a single digit for the broadest category to a six-numeral entry for a very specific type of business. The use of NAICS is more frequent in states recently embarked on zoning than in the Northeast, where tangles of bylaws go back to the 1920s, a consultant for Walpole's zoning rewrite committee told a public forum Feb. 10.

Because it is so specific and unambiguous, according to the committee, the NAICS would would lessen the chances of a court challenge to a town decision.

"It would make my job easier," building commissioner Jack Mee told the forum. "The clearer the definition, the easier the enforcement." The current table, he said, is as "gray as gray can be," with language that can be read more than one way -- an invitation to disagreements and wasted time.

But such specificity could create difficulty for companies already in town or interested in coming if they have thoughts about modifying their lines some day, business proponent John Hasenjaeger told the forum. A difference in the last digit of a six-digit code means the expansion could not be allowed unless Town Meeting amended the bylaw. (With some restrictions, the current table allows businesses to apply for activities similar to those specifically allowed in the bylaw.)

The proposed use table works this way: If, say, only the first three numbers of an NAICS code appear, a business with a code that begins with that sequence is allowed.

Here's a link to a Census Bureau page that allows searches for specific NAICS codes. (Walpole's table would remain pegged to the 2007 version of the NAICS even after that document is updated in 2012.)

Consultant Nathan Kelly of the Horsley Witten Group told the forum that he believes Massachusetts communities haven't moved to the NAICS because of the time and effort required to convert old tables. He noted Walpole's rewrite committee has been meeting, often twice a week, since May.

Based on remarks at the forum, the committee is not about to leap into what had been discussed as the next and final phase of the rewrite: a review of the zoning map and dimensional requirements.

Biotechnology
A proposed zoning table would allow biotech facilities up to and including biosafety level 2.

Allowance of level 2 prompted the only debate on a specific use at a public forum Feb. 10 as the table moves toward action by the May Town Meeting.

Under federal regulations, biosafety level 2 covers a range of pathogens that generally are not lethal or not spread through the air. They include common diseases readily treated and for which vaccines are available.

But the level 2 list includes other more worrisome diseases. The resident who raised the issue singled out MRSA, an antibiotic-resistant staff infection. (Here's Wikepedia on biosafety levels, with a link to MRSA.) MRSA is not something you want in your community, the resident told the zoning rewrite committee, urging that the provision for level 2 be deleted.

Ed Forsberg of the committee and the committee's consultant responded that level 2 requires specially trained personnel and closed-off areas. Such facilities are found in several Boston area universities. Betty Nashawaty, a planning board member, said every Walpole doctor's office is, in a way, a level 2 facility.

With the elimination of the "any lawful use" provision from the current table by the October Town Meeting, it could be difficult or impossible for a biotech company to open a facility in Walpole. Selectmen and other town officials have been vigorously pursuing biotech for years as one of the few businesses that offer a shot at significant tax revenue that could win community approval.

Forsberg said the committee will go over the draft of the table one last time Feb. 17 before sending it on to the planning board, which will hold a public hearing as part of the pre-Town Meeting reviews.

Another potential controversy foreseen by some won't arise. A trash transfer station, regional or otherwise, is not allowed under the proposed use table, consultant Nathan Kelly of the Horsley Witten Group said in response to a question at the forum.

In response to a question from planning board member John Murtagh, Kelly acknowledged that the table does not impose upper limits on buildings in the category that allows structures of 50,000 square feet or more. But to build a structure that big would require a special permit under the proposed table, giving the town the ability to say no, he said. Under current zoning, a structure that big could be built in some circumstances as a matter of right. The proposed change increases protection for the town, he said.

The proposed revisions, Kelly said, keep intact the following wording of the existing zoning bylaw: "No building or premises shall be erected, altered, or used for any use that will be injurious, dangerous, obnoxious, or offensive to people in the general vicinity by reason of the emission of odor, fumes, dust, smoke, vibration, noise, heat, glare, or other nuisances observable at the lot lines or the immediate neighborhood."