Charter Commission Meeting
Wednesday, May 4, 2016
Attending: Josh Krintzman (Chair), Rhanna Kidwell (Vice-Chair), Chris Steele, Karen Manning, Anne Larner, Brooke Lipsitt, Howard Haywood, Jane Frantz, Bryan Barash
Guests: Ed Tarallo, Sr., Candace Havens, George Mansfield, Ted Hess-Mahan, Marc Laredo
Topic: Article VII: Planning
Phil Herr: works in planning for whole career (practicing and teaching): doing terrific job; 1. Section 7-3a in current charter has provision about comprehensive plan—city’s actions should be in line with comprehensive plan, but if city does something against it, it is the same as if amended the comprehensive plan. This deserves examination. 2. Who should be the special granting authority? Question is really who gets to change that. Isn’t a choice that the commission can make—only city council can do that.
Discussion on Article VII (Planning):
Several key points:
Research and info from Collins Center—unusual/very rare for a charter to have an article focused on planning. Not a single one in peer communities. Dealing with it because of history. 7-1 and 7-3 have been superceded by state law. Commission has received many comments about special permit granting authority. None assign responsibility in charter itself. Info might affect charter transition and follow-up—issues might not end up in the charter.
Marc Laredo: Chair of Land Use Committee; was on School Committee;
Ted Hess-Mahan: City Council since 2003; currently Chair of Zoning and Planning, was Chair of Land Use for 4 years, attorney,
Candace Havens: worked in planning since 1977; certified planner since 1990—public and private; came to Newton in 1993—Chief Planner for Newton in 2007, Planning Director, worked in planning until 2014.
George Mansfield: important to work together even when people disagree; professional planner—practiced and taught in Rhode Island, Washington, DC and MA. Currently Director of Planning in Carlisle. Was chair of Land Use Committee prior to Ted.
Ed Tarallo: lives in Waltham; professional planner since 1972. Planning Director in Malden for 20 years; 5 years at MAPC, Planning Director in Woburn 2002-2014. Served on Waltham City Council—worked on zoning and rules committee and was chair, was President of Council.
Planning: looking into the future—comprehensive plan; then zoning ordinance to implement policy; then planning framework
- Describe process for frameworks: how to make more transparent and predictable, in line with values of the city:
ML: City Council operates within a framework—Comprehensive Plan and zoning code; code allows by right or by special permit; special permit designed to be a check on some types of projects—large projects or ones that might impinge on neighbors—not automatically allowed. When applies for special permit, City Council can attach conditions. Thinks special permitting process is critically important—can’t have just rigid rules, yes-or-no rules; have instances with non-conforming because structures built before zoning rules; special permit process is inherently political and belongs in an elected body of officials—elect a lot of people already, so adding an elected body could be overly cumbersome. Important that we elect members who make the decisions. Appointed body doesn’t do as well at listening and balancing legitimate needs of developers and those affected by development. Fears concentration of power if appoint a planning board—reflection of a Mayor’s values. Cumbersome at times; process can be streamlined—has been working with planning staff to improve internal processes and make process more user friendly; appreciates the importance of public input—don’t want to lose that; elected body is well-suited to do that. Elected body could appoint a group to do this. Urge CC to leave the process in the hands of elected officials.
THM: Elected body is wrong place for special permit granting authority. Charter Commission can’t do anything about it. Part of MGL—goes to legislative body to determine where the decisions are made. City Council, in it’s role, judges the merits of the special permit application, etc. ZBA or Planning Board has special permit granting authority—elected in many other communities. Candace instituted design review teams—get feedback on proposals—give up front idea of what issues would be and to give a chance to go work on it. Vetting process helped streamlined the system. Problem is not the process—problem is the zoning and that is where the City Council has problems delegating. Temptation to micromanage—expensive for people with even very small projects. Zoning reform is a way forward. Do regulate a lot of stuff—keep major projects, which should have a political aspect to them. Then the council can serve in a quasi-judicial role. Ward councilors are no more parochial than at-large councilors.
CH: Agree with process as described; things done to make system work as well as possible, given the structure; having lots of perspective/public input is a strength of the process; Couple of problems: with elections every couple of years—the composition of the committees change. Land Use Committee has a steep learning curve—not a criticism, but takes time to get up to speed. Quasi-judicial role—hard for some members of City Council to switch hats—role is usually to advocate for constituents and help them with problems; having to sit back, not pre-judge a project, can be hard for some people. That politicizes the process.
GM: process become more complex, but also a lot better—has changed a lot in 12 years; criticism that has built up over the year is based on long-term memory and experience. Details on special permit granting authority cannot be in the charter. Who conducts that process can be in the charter—establish a planning board—works this way in Walpole. Current structure set in 1970s—CC can make recommendations to City Council.
ET: special permit granting authority doesn’t belong in the charter; way state law is enacted since 1970s—certainly belongs in the zoning ordinance. Zoning ordinance is done by the City Council not in quasi-judicial role, but as an elected body in a community. Special permit is in a quasi-judicial role. When 1975 changes in state law occurred—allowed authority to by ZBA, Planning Board, City Council and/or Zoning Administrator. Special permits are sometimes split between several of these bodies. In towns, planning boards are elected. In cities, they are appointed by the Mayor. Only elected body that usually handed special permit is City council. They do have a role—represent constituents even in a quasi-judicial manner. Smaller items that can be handled by other agencies—dealt with other communities through ZBA or Planning Board. Most variances won’t stand challenge in court—that’s why quasi-judicial role is important. Need judgement in decisions. Could have permits in multiple venues; those with major impact belong with elected officials. Entities have different authorities and powers—they have different expertise that may help decide where place the decisions.
- Article in charter now about comprehensive plan. In other states, state regulation that require the formation of a comprehensive plan; zoning is aligned with plan. What is panel’s thoughts on the concepts on how the comprehensive plan can be enshrined in the charter so that values can become a more constructive tool?
ML: comprehensive plan is always a good idea. Seen is repeatedly cited by colleagues or members of planning department to support whatever it is they are speaking about. Not convinced that needs to be enshrined in the charter or how that would happen. In part drive by executive, part by legislature; would opt to take it out rather than put it in. Doesn’t do much in the charter. Should be a vision for the City required to be updated periodically; zoning code does need to be updated periodically.
THM: Absolutely belongs in the charter. State law requires a master plan—we call comprehensive plan. Responsibility given to an elected body—planning board. Excellent document—should be changed more frequently. Important to have a master plan as well—uses beyond guiding zoning. Would strengthen section in charter to include a report every year to City Council by Planning Department as to what has been done with zoning to move the comprehensive plan forward. Comprehensive plan should have teeth in it. Adopted in 2007—is in serious need of updating.
CH: fortunate to have reference in charter. Also have something about adopting land use regulations—could benefit from strengthening the relationship between the two. Clear understanding of what the goals are and how they are executed—good planning sense. Keep updating every year.
GM: useful and central to have charter provisions to establish the comprehensive plan and its functions. Tweaking needs to be done: some things aren’t generally observed—maybe not be there or start observing them: role of Planning and Development Board should put in writing that it is compliance with comprehensive plan. Doesn’t realize that changes affect comprehensive plan. Language used is outdated—urban renewal; slums, etc. Should reflect language of current comprehensive plan—preservation; diversity; sustainability.
ET: Unique that have Article 7 in charter. Likes it—important in community to recognize what is important about the planning process and how a comprehensive plan could be adopted; establishes a section of charter that takes a lot more work to change than an ordinance. Section 3 is weakest. Difficult to indicate how something is implemented, but important to do it and have it.
- Questions from commissioners:
Howard: Fact that no other city or town has this in their charter—in favor of comprehensive plan. Not sure that city complies with it. Meetings on it—same 30 people showed up. No one is accountable as to whether follows the comprehensive plan. Does it belong there? If so, needs to be accountable. Some language is very specific to issues of the times.
THM: Yes, even though part is obsolete. Comprehensive plan is useful when updated from time to time; obligation by Planning Department to report to City Council. Need to do more to follow the charter.
GM: Agree with Ted. If not using, take it out. Important to have it in the charter. Problem is that there is no penalty for violating it.
ML: Listened to fellow panelists, is persuaded that it is a good idea to have some reference to comprehensive plan in charter. What is there is not well-written. If goes to put in at all, should be broad based—hesitant to put in reporting requirements since it’s too detailed. What do with plan depends on staff and elected officials—in charter is getting too much in weeds.
AT: need to establish a framework of what want city to do—not how to do it. Should say who prepared Comprehensive Plan.
Josh: Is there a way to have staff be more responsive through the charter or a different way?
ML: As a City Council, benefit from City Clerk’s office. Really do not have other people who work for them. Planning Department has worked cooperatively—due to people in charge and personalities involved. If trying to balance power more, certainly would enable City Council to have more of its own staff—more benefical to have independent legal advice at times than planning advice. Having two planning departments might be a poor use of city resources—frankly an exercise in good faith by all. Maybe Director of Planning be a joint appointment between executive and legislative? Need to think more about it.
GM: In other communities where George has experience, working for an elected body—the special permit granting body. City Council can’t do here. Planning decisions have to be based in policy—responsibility of legislative body. Administration is responsibility of executive body. Planning staff is responsible to executive in Newton—difficult to crack, but useful to consider how to balance that better.
THM: wouldn’t go looking for problems. City Council relies upon professional advice, but serve in a quasi-judicial branch. Could consider a city-manager/city council form of government that would change this. Do get a chance to approve the new planning director—don’t reject often, but does happen. Way it works now is fairly well. Have gone against the advice of both the planning and law departments. Doesn’t see this as a problem.
ET: felt that was able to bridge the gap in his experience—ability to work with all the people. Idea of putting this into a charter doesn’t make sense. Indicate that the planning department gives a report to special permit granting authority—not through the charter, but through the ordinance. Staff has to provide the professional expertise. Key is that the elected officials are making the policy—not the staff people. State law provision allows for planning board to hire outside consultants with special expertise to use in certain instances when don’t have that type of staff on board.
CH: have a clear chain of command; mayor nominates, council approves; duties of planning director is to provide advice and support to council. There is a balance and good responsiveness—in ordinance.
Bryan: Agree that some outdated practices or provisions. Better to remove or fix them?
ML: better off being more general; concept of comprehensive plan is good—need to provide more detail and flesh it out. Not necessarily substitute other words—keep broad principles and concepts that can stand the test of time.
THM: agree, but need accountability on comprehensive plan. Maybe not a written report, but acknowledgement that council is policy-making body.
GM: Look in detail at Chapter 22 in city ordinances—much in there that doesn’t need to be duplicated. Might find things in there general enough to add to the city charter. Article 7 doesn’t have to be that comprehensive but does need to be clear and strong.
Howard: Not unreasonable to ask for a formal or informal report to ask where are in regards to comprehensive plan. Otherwise keeps rolling over—same issues keep coming up over and over. Are we serious about a plan? If so, then someone has to be accountable.
Brooke: Although have a comprehensive plan, it is largely ignored except when occasionally a request for a special permit comes in with reference to it. Anyone feel that in addition to comprehensive plan, put in charter that a master plan be developed?
ET: State law takes care of that—can add it to the city charter, but don’t need to. Takes a long time in government to do things, but need to keep eye on goals—master plan does that. Has to stay up with the times—implementation is what makes the success of the plan.
THM: strategic plan; Mayor has created one. Our lack of provision of requiring it doesn’t give us much incentive. If in the charter, gives us incentive.
GM: Need community involvement—can write it all down but won’t be implemented unless have person who can advocate and community calls for it. Maybe Collins Center knows how this is done elsewhere.
ML: community engagement—huge proponent of idea that public involved in process. Looking at audience here tonight—see 20 people, some are elected officials. Discussions about future of city government—while want to encourage community engagement, recognize getting only a very small subset of public. This has to weigh in to the decisions you make.
Lisle Baker: land use benefits from knowledge of City Councilors—often have neighborhood impacts that Planning Department might not be aware of; special permit process has been helpful and useful. Hesitant about enshrining comprehensive plan in city charter. Important that if add something, want flexibility to do what you need to do. Shouldn’t constitutionalize everything that goes on in city by putting it in the charter. Already is statement in ordinance that Planning Director already advises the City Council. Charter should really just have the framework—don’t want to put too much structure in there. Legislative remedies that don’t require constitutional remedy—even regarding public input. Most public comment times are empty—thinks its because most people think are working OK.
Kathleen Hobson: housing advocate, have 3 comments:
- like that planning department and comp plan required in charter; without them could become victim of short-term decision making.
- Require planning department report to City Council and Mayor on progress with respect to long-term goals.
- Some guidance as to who should make special permit decisions and land use
- Land use decision should not be political—should do what we can to depoliticize them and make them more rational.
Nathanial Wicken: support keeping comprehensive plan in the charter. Look at mandating updating it. As written now, doesn’t have to be updated. Need to be a living document to benefit the city—need some mandated review process.
Lynn Weissberg: concur with Kathleen Hobson. One of the assumptions that lead to the opinions expressed tonight—special permit decisions are inherently political. Then other opinion is that they shouldn’t be political decisions. Question then is to look at that: if the decision to be made is to apply rules—that is not a political decision. That is taking the law and applying it to a set of facts.
ML: this is quite different than a judicial proceeding. A judge is asked to find the facts. Here special permits are discretionary—quasi-judicial—supposed to ask within standards, but then exercise discretion and judgement. That is what is political (not necessarily bad, but involved balancing interests and trying to craft an appropriate resolution.) The councilors are accountable to the voters. Agree with ET—major projects in particular have a political element to it—not just a matter of applying fact and law.
THM: Political is the wrong word—are policy matters. Not averse to electing body who decides.
CH: possible remedy: value in depoliticizing process. Fresh eye on projects that isn’t all technical—separate some projects out for an expert group. Major projects should go to a legislative body.
GM: depends on what you mean by political: public policy decisions.
ET: it’s not black and white—multiple interpretations. Professional planner looks straight at what it there; elected official looks at the decision of whether the facts presented by the professional deserves the discretion for a special permit.
Lisle Baker: quasi-judicial also means legislative; one of values of having a large board is that need 16 affirmative votes to give a permit. Difficult challenge to draw line between major and minor projects—can turn into something more significant than you think.
Karen Manning: remind everyone that Article 7 review on May 25th. Will continue to reach out to councilors in other communities.
Josh: next Charter Commission meeting next Wednesday, 7 p.m.