‘Clear as mud’: State law change leaves officials baffled ahead of Notos zoning vote
A new state law changing the voting requirements for the passage of zoning-related articles at Town Meeting has officials scratching their heads as two Town Meetings containing controversial zoning proposals approach.
Previously, all zoning changes needed to be approved by two-thirds of Town Meeting attendees. Now, zoning changes that include measures like allowing certain mixed-use developments, increased housing density or allowing “in-law” apartments can be approved by a simple majority vote.
The law does not specify who has the power to determine what vote threshold is needed to pass a particular zoning change.
State guidance suggests that towns’ Planning Boards identify which measures need two-thirds approval and which measures only need approval by a simple majority to pass — a responsibility Planning Board members did not seem to relish.
Interpreting the law is harder than one might think: Planning Board Richard Swenson said the guidance was “clear as mud.”
The Hospitality, Recreation, and Entertainment District that will be up for votes at the April 10 Special Town Meeting could qualify for approval by a simple majority vote. The proposal, which allows for mixed-use development and multi-family dwellings, would need to be located in a so-called “eligible location” to be approved by a simple majority.
State law defines eligible locations as those that are either near public transit or near existing “areas of concentrated development” like a town center.
Planning Board member Mike King asked whether the town could get input from the state about whether or not the GATRA bus counted as access to public transit — a factor he thought would determine whether or not the district was an “eligible location.”
Selectman Alan Slavin chimed in later to explain that GATRA is a full regional transit authority.
“This is kind of big and I’d want to make sure that we have all our ducks in a row before we make a recommendation one way or another. And if we can get an opinion from [the state department of] Housing and Development at no cost to us then that just solidifies our position before we make a recommendation,” said King. The Planning Board voted to ask whether GATRA qualified as a “transportation hub.”
Town Planner Ken Buckland said that the state had sent some detailed guidance to help Planning Boards make this determination.
Town Moderator Claire Smith joined the meeting to chime in on the issue.
Smith said her understanding was that the Planning Board needed to make the decision about the vote threshold and include that in their report to Town Meeting.
“I don’t get to decide,” Smith said. “That’s my understanding, and I’ve spent the last two weeks trying to research this and figure it out. [...] You’re the body that makes the decision.”
At Town Meeting, Smith will share the Planning Board’s decision and explanation with voters.
However, Smith said, state guidance about the implementation of the new law keeps changing.
“Based on what Claire just said, that makes it even more important that we get that opinion, because I certainly would not want to propose a vote one way or the other and have it not be accurate and then have it put on the floor [at Town Meeting],” King said. “Heaven forbid that a life-changing vote takes place in this town based on something we put forth that we didn’t have all the facts on. I certainly wouldn’t want to be a part of that.”
Planning Board member Richard Swenson said that the law’s lack of clarity about who makes a decision about the vote threshold gave the town the opportunity to thoughtfully create its own process for doing so.
On April 5, the Planning Board will hold a public hearing related to the district proposal. The board held a hearing about the proposal in the past, but since then, about 30 changes have been made to the proposed bylaw, necessitating another hearing.
At the March 23 Board of Selectmen’s meeting, Selectman Peter Teitelbaum said the board’s decision about the vote threshold would be announced at the April 5 meeting.
The simple majority rule might also apply to the proposed rezoning of Wareham Village, which will be up for votes at the Spring Town Meeting currently scheduled for April 26.