Town of Brookline

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EXPLANATIONS
FOR SPECIAL TOWN MEETING
WARRANT ARTICLES
NOVEMBER 15TH, 2005

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ARTICLE 1

This article is inserted in the Warrant for every Town Meeting in case there are any unpaid bills from a prior fiscal year that are deemed to be legal obligations of the Town. Per Massachusetts General Law, unpaid bills from a prior fiscal year can only be paid from current year appropriations with the specific approval of Town Meeting.

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ARTICLE 2

This article is inserted in the Warrant for any Town Meeting when there are unsettled labor contracts. Town Meeting must approve the funding for any collective bargaining agreements.

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ARTICLE 3

This article is inserted in the Warrant for any Town Meeting when budget amendments for the current fiscal year are required. For the current fiscal year (FY2006), the warrant article is necessary to appropriate additional local aid and re-allocate surplus debt service.

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ARTICLE 4

Pension Obligation Bonds (POB’s) provide an alternative to the contributions to finance the unfunded liability of the pension system. Bond proceeds in the amount of the actuary's estimate of the unfunded liability are deposited with the retirement system. The amortization of the unfunded liability as determined by the actuary is replaced by debt service payments on the bonds. This is an extremely complex issue that requires careful analysis. Opinions about POB’s are mixed, so it is critical that everyone involved with this decision familiarize themselves with the many aspects involved in POB’s. Any decision made in this regard, either to act, or not to act, will affect the Town for years to come.

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ARTICLE 5

A direct outcome of the Town’s Zoning Administration and Enforcement project, this article would clarify the process for applying for a special permit. Many of the procedures outlined are already part of existing process, but are not part of the zoning by-law. This article puts in writing procedures that already exist for special permit applications. This article also outlines the role of the new Zoning Administrator in this overall process.

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ARTICLE 6

A direct outcome of the Town’s Zoning Administration and Enforcement project, this article will increase public knowledge of and participation in the zoning review process. It adds additional parties to the list of Town Meeting members and neighborhood associations that will be notified of a pending zoning application. It adds the Town Meeting members of adjoining precincts to the notification list. Currently, these Town Meeting members from adjoining districts are only notified if the property under review is within 200 feet of their district. This article also requires that additional neighborhood associations be informed of any public meetings held by the Planning Board.

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ARTICLE 7

A direct outcome of the Town’s Zoning Administration and Enforcement project, this article increases the requirements of a Major Impact Project as defined in the Zoning By-law. It requires that a public meeting be held on any such project by the applicant, working with the Planning & Community Development Department.

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ARTICLE 8

A direct outcome of the Town’s Zoning Administration and Enforcement project, this article would increase public involvement in the Design Advisory Teams (DAT’s) created under the Zoning Bylaw to review major projects. The article adds neighborhood representatives to the list of persons who should participate in any DAT. While the practice recently has been to have neighborhood representatives on these DAT’s, this article would require their participation.

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ARTICLE 9

A direct outcome of the Town’s Zoning Administration and Enforcement project, this article, this article would improve the process of enforcing decisions of the Board of Appeals. This article outlines the role of the new Zoning Administrator in the process of enforcement as well as clarifying the role and responsibilities of the Building Commissioner in this process.
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ARTICLE 10

A direct outcome of the Brookline Comprehensive Plan adopted in January, this Article uses the enabling legislation adopted by Town Meeting last year to create an Interim Planning Overlay District (IPOD) for Coolidge Corner. The Comprehensive Plan recommended that the Town develop a “district plan” for Coolidge Corner that would look at issues of land use, transportation, housing, commercial development, open space, and neighborhood character. As part of this process, the Comprehensive Plan recommended that Town Meeting adopt an IPOD to provide temporary zoning controls to manage and guide development while that plan is developed. This proposed Coolidge Corner IPOD would limit residential development in M and G zoning districts near Coolidge Corner to 2 units by right and up to 5 units by special permit. It would also require the Planning Board to adopt interim design guidelines that would apply to all applications for special permits in the district, whether commercial or residential.

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ARTICLE 11

The current language was found to be insufficiently clear to accomplish its intended goals. The need for the above clarification was raised during a recent case in which the developer proposed incorporating an existing building within a new project. Because of the level of rehab work anticipated in the existing building – resulting in a decrease in the number of units – it could be argued that the “alteration, expansion, reconstruction or change of existing residential…. space” by that developer would result in an increase in the number of units within the existing building envelope, it was important to clarify the original intention of the language.

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ARTICLE 12

This amendment will also overlay existing FAR regulations with a public review process to promote uniformity among home sizes in a residential neighborhood. As described in the 2005-2015 Comprehensive Plan, this zoning amendment is consistent with key aspects whereas affected neighbors are invited to critically review development plans and provide feedback to appropriate town officials. The central goal is balancing new development in a way that best protects existing neighborhood character.

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ARTICLE 13

The Moderator’s Committee on Wireless Communications has been meeting since fall Town Meeting, 2004, to evaluate how adequate wireless telecommunication services can be provided to South Brookline with minimal visual impacts. The Committee is supporting a Distributed Antenna System (DAS), which has been used in other communities, such as Nantucket, that are trying to avoid the negative impacts of large towers. A DAS system consists of small boxes and whip antennas placed on utility poles. Related mechanical equipment can be located at a distance from the poles and are connected by underground cables.

In order to facilitate this system, a zoning by-law amendment is being proposed by the Planning and Community Development Department, which would require the same review and approvals for public utility poles that currently is required for wireless facilities on Town-owned property. These requirements include review and approval by the Board of Selectmen, after an advisory report from the Planning Board and a public hearing.

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ARTICLE 14

The Moderator’s Committee on Wireless Communications has been meeting since fall Town Meeting, 2004, to evaluate how adequate wireless telecommunication services can be provided to South Brookline with minimal visual impacts. The Committee is supporting a Distributed Antenna System (DAS), which has been used in other communities, such as Nantucket, that are trying to avoid the negative impacts of large towers. A DAS system consists of small boxes and whip antennas placed on utility poles. Related mechanical equipment can be located at a distance from the poles and are connected by underground cables.

Directly related to Article 13, this article would authorize the Board of Selectmen to enter into lease agreements for Town-owned property. The use of Town-owned property is necessary so that the DAS provider can mount the equipment (on utility poles) and locate a base station for the DAS system (Municipal Service Center). Per Massachusetts General Laws, Town Meeting approval is required for any long-term lease of Town-owned property.

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ARTICLE 15

This article was developed to respond to an interest in preserving green space in Brookline through the zoning process, and to discourage removal of vegetation from sites that are planned for redevelopment. The article amends three sections of the Zoning By-law to clarify that public shade trees need to be protected; to require that developers refrain from clearing their properties prior to receiving a special permit for their redevelopment; and to provide a method of enforcement should a developer clear their site before receiving zoning approvals for redevelopment of their property.

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ARTICLE 16

The American system of government is one of checks and balances. This creates a natural tension between the executive and legislative branches; the legislative branch appropriates money and passes laws while the executive enforces the laws and spends the appropriated money. The genius of this system has been proven many times over the centuries at all levels of government. This is how the Brookline system operates; Town Meeting is the legislative branch and the Board of Selectmen heads up the executive branch. The general rule is that the Selectmen cannot spend any money without a specific appropriation from Town Meeting. Through its power to appropriate and oversee, Town Meeting exerts influence and control over the executive branch.

There are some exceptions to this general rule in Brookline. For example, Town Meeting makes a general appropriation to the Reserve Fund but leaves it to the Advisory Committee to determine exactly how to spend it. This was done in recognition that there will be emergencies and other unanticipated events where a quick decision on spending needs to be made. Since Town Meeting meets, generally, twice a year, it is structurally difficult to respond to emergencies. In effect, the Advisory Committee, as a standing committee of Town Meeting appointed by the Moderator, is serving as a proxy for Town Meeting and provides legislative oversight. Another example is the Liability/Catastrophe Fund, which also needs an Advisory Committee vote.

The Affordable Housing Trust Fund (AHTF) exists without any legislative oversight as to how the money is spent. It is funded by a combination of developer "contributions" pursuant to the inclusionary zoning by-law plus Town contributions when free cash is above a certain amount. The Town contributions are subject to a Town Meeting vote. (Town Meeting also voted a one-time infusion of cash last year when the fund received the net proceeds of the sale of a house the Town seized in a tax foreclosure.) The fund is then managed by the Board Selectmen pursuant to recommendations from the Housing Advisory Board (HAB). The HAB is appointed by the Selectmen. The fund was set up this way to allow the town to respond quickly and flexibly as housing opportunities arise. However, the lack of legislative oversight is an anomaly that violates the American rule of checks and balances and which needs to be fixed.

The challenge we face is how to achieve the legislative oversight necessary to correct this structural anomaly while maintaining the valid design concept which permits the Town to respond quickly and flexibly as housing opportunities arise. We believe the answer is to require that all commitments to housing projects by the AHTF be subject to a vote of the Advisory Committee. The Advisory Committee can be convened quickly and since the Moderator appoints it, could independently review projects on a de novo basis. In the best of all worlds, we would have preferred a Town Meeting vote for every commitment of AHTF funds but we recognize that this would be contrary to the purpose of the Fund. We therefore believe that the requirement for an Advisory Committee vote is a good compromise and will restore the natural checks and balances inherent in the American form of government.

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ARTICLE 17

Prior to 1937, Brookline’s street signs were made of wood. In the spring of that year, cast aluminum signs were introduced to replace the wooden ones. It was felt that these signs would last longer. They have, until the DPW started replacing them several years ago. They are slowly disappearing. In this year of the town’s tricentennial, it would be nice to save something that contributes to the historical character of the town. It would also save time, labour, and money by not replacing signs that do not need to be replaced.

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ARTICLE 18

The Town of Brookline has adopted the policy to prevent excessive sound which may jeopardize the health and welfare or safety of its citizens or degrade the quality of life. The Town has also recognized that people have a right and should be ensured an environment free from excessive sound that may jeopardize their health or welfare or safety or degrade the quality of life.

Currently there is an exemption for non-electrical instruments. There is not regulation of the noise level on non-electrical instruments. By deleting this exemption, all musical instruments, both electrical and non-electrical will be regulated so that their playing at the level of noise pollution will not effect the quality of life of neighbors and the people of Brookline.

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ARTICLE 19
WHEREAS, the debate portion of Town Meeting shall be conducted in accordance with the handbook of parliamentary law, “Town Meeting Time” published by the Massachusetts Moderators Association; and
WHEREAS the constitutional authority for representative town meetings provides that the members are elected to “meet, deliberate, act and vote,” (Town Meeting Time, p. 103); and
WHEREAS, at Brookline Town Meeting, the process of deliberation categorized as “debate,” is a discussion and consideration by a group of Town Meeting Members and Town Residents of the reasons for and against a measure; and

WHEREAS, a public debate within a democratic system provides for proponents and opponents the equal opportunity to be heard; and

WHEREAS, a motion to close debate can be called before all scheduled speakers have spoken; and

WHEREAS, in accordance with the constitutional authority granted representative town meetings, it is the Moderator’s duty to provide for the democratic process of debate at Town Meeting; and

WHEREAS, it is the Moderator’s duty to recognize both proponents and opponents on an issue to insure that both sides of a question are heard;

THEREFORE, the petitioner, in an effort to insure a full and impartial deliberation of warrant articles, offers amendment, Section 2.1.9 (a) to Section 2.1.9 of the Town By-laws.
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ARTICLE 20

Currently, the Brookline electorate lacks sufficient information regarding their representatives’ positions on the issues. This lack is a consequence of the voting methods, such as the “show of hands” or “standing head count” methods most commonly used at Town Meeting. To increase information, provide accessibility and to facilitate informed choices at the polls, voting at Town Meeting should be taken by roll call, recorded by the Town Clerk and subsequently posted as a permanent record for public dissemination on the Town’s website.

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ARTICLE 21

To increase public access to government affairs.

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ARTICLE 22

In public opinion polls a majority of Americans view the invasion and occupation of Iraq as unwarranted, a mistake, or "not worth it"; Furthermore, in recent polls ~70 percent of Iraq's Shiites and ~80 percent of Iraq's Sunnis favor “near-term U.S. Withdrawal. This is the same view of the Massachusetts Congressional Delegation which favors U.S withdrawal from Iraq.

In addition, the war in Iraq was launched amidst false claims that Iraq had Weapons of Mass Destruction, which posed an imminent threat to U.S. security, and was falsely tied to the 9/11 attacks, is costing well over one billion dollars per week, has undermined America's moral and diplomatic standing in the world, and has led to widespread suffering, Furthermore, in going to war, the President did not meet the conditions imposed by Congress, failing to show why diplomatic and/or peaceful means could not protect the national security of the United States.

Moreover, the invasion of Iraq has resulted in serious and potentially long-lasting adverse consequences for the United States, such as increasing the climate for terrorism, has removed critical funds from needed domestic programs, and has contributed adversely to long term US debt. Furthermore, the invasion and occupation of Iraq has undermined the chances for a just and durable peace in Iraq and the Middle East.

There are things which can be done to promote withdrawal on a local or statewide scale. The United States Constitution provides that Congress shall have the power to "provide for calling forth the Militia to execute the Laws of the Union, to suppress insurrections and repel Invasions," which are criteria that have not been met by the war in Iraq, and the Massachusetts Constitution provides that no armies shall be maintained without the consent of the State Legislature. Local Governments can make an enormous difference in pressure for withdrawal if the members of the local legislatures are willing to take a stand.

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ARTICLE 23

The need for detailed requirements for BSL2 reflects the potential for unexpected appearance of Level 3 or Level 4 agents, known to occur in BSL2 labs. Some Level 2 agents have also been identified as lethal. The regulations must incorporate the flexibility to adopt to more stringent requirements to adapt the program to changing conditions over time, including the recognition that the unexpected may occur and that areas where residential and commercial use are mixed may have special requirements.

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ARTICLE 24

For the following reasons, the proponents of the attached warrant article believe that the Town should establish a committee representative of a broad range of Town interests that is knowledgeable about Town affairs and finances to engage in a thorough and objective study of the potential financial and other consequences of adopting the CPA in Brookline:
• There are significant state funds available to the Town if it adopts the CPA. Although Brookine property owners have contributed approximately $2,000,000 to the state CPA trust fund through registry of deeds filing fees, the Town currently receives none of those funds back from the state. It would be fiscally irresponsible for the Town to forego this significant revenue source without having a clear understanding of the amount of state funds that would be available to the Town and without thoroughly and objectively analyzing the potential financial and other consequences of adopting the CPA.
• As identified in the Town’s Comprehensive Plan, there are significant community preservation needs in Brookline. The CPA presents an option for financing needed neighborhood protection projects, and the Town should consequently evaluate whether it is an option that makes sense for the Town.
• A number of capital projects the Town intends to fund from existing tax and other revenues are eligible for funding under the CPA. The Town should consequently determine which planned projects would be eligible for CPA funding and the extent to which the use of CPA funds for such projects could “free-up” other Town revenues for Town or school operating budget needs or otherwise impact Town and school finances.
• There are many options available to the Town for implementing and administering the CPA. The Town should consequently have a clear understanding of the potential revenues and impacts on taxpayers under the various options and of the different means for administering the use of the funds.

Since the Town last considered a proposal to adopt the CPA in 2002, a lot has changed. One hundred cities and towns have adopted the CPA, there have been 4 years of experience with the CPA in other communities, the state matching money has remained constant and the CPA has been amended to expand the scope of projects that are eligible for CPA funding. The Town should consequently evaluate the CPA in light of the experience in other communities and these other developments.

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ARTICLE 25

Chapter 59, Section 5, Clause 5B of Massachusetts General Laws allows for municipalities to increase the property tax exemption for the real and personal estate belonging to or held in trust for the benefit of incorporated organizations of veterans of war from $200,000 to $700,000.

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ARTICLE 26

Ironically, while as of two days ago 1,870 American soldiers, and many more Iraqis, have recently died ostensibly to spread “democracy” to the Mid-East, and while Brookline celebrates the 300th anniversary of its cherished independence and “town” status, including its Town Meeting government, transportation matters here are immune from our legislative control. The Home Rule Bill of 1974, when adopted by Town Meeting in 1973, offered no explanation why this department is the apparently sole exception to policy-making by the people’s elected legislature. The 1973 Combined Report explanations by the Selectmen and Advisory Committee described merely a major reorganization of the former Department and “Traffic Advisory Board,” occasioned by the departure of a department head; and they made no mention of excluding Town Meeting from any authority. Indeed the Selectmen stated:

“The Town as a body politic is severely limited in its ability to formulate and implement [transportation] policy at a time of rapidly increasing citizen interest and concern with the impact of the automobile on the quality of life in Brookline. ... While many traffic issues are technical ones to be dealt with by a professional, many others involve priority ordering and convenience balancing which the citizens themselves should influence. ...[T]he establishment of a citizen Transportation Board with continuing responsibility and authority should markedly improve communication between the department and residents of the community.”

Events in the last decade have been inconsistent with the foregoing axiomatic statement; and have shown that the less-than-intentional grant of unique autonomy -- actually “autocracy” -- on transportation matters was not only ill-considered but also ill-advised. In 2000 a similar warrant article was passed by Town Meeting, but defeated at the statehouse because of opposition by the selectmen, who stated, in the 2000 Combined Report, in support of the status quo, that, inter alia:

1. Town Meeting... does not have the capacity nor the time to adequately hear the debate on issues that tend to be executive or administrative in nature ...., [c]omplex issues ... . 2. ... Since the Selectmen are elected at large, we are responsible for reviewing the effect of decisions on the Town as a whole and are accountable to the electorate every three years. The system works and should not be changed. 3. The resolution of decisions by the Transportation Board would be severely delayed, creating continued animosity within neighborhoods. Furthermore, the delay could impact budgeting cycles dependent on the nature of the decision. 4. ... Significant issues that impact our residential and commercial areas and affect our citizens’ daily lives are guided jointly by the Board of Selectmen and the Transportation Board... 5. Lastly, this type of petition establishes a precedent to question and undermine the hard work of all of our Boards and Commissions. ...

In response, petitioners offer one word: DEMOCRACY; or three words, SEPARATION OF POWERS. While both may sometimes be messy, at least the result is always the People’s decision. Brookline’s cherished Town Meeting decides many very “complex” policy issues, from zoning to noise control to biosafety level 2 use to living wage by-laws to dogs-in-parks, ad infinitum, seemingly for every other aspect of local “policy.” Yet, for some still-mysterious reason, transportation policy is deemed uniquely beyond the capacity of our TMM’s -- sort of like the Best and Brightest “experts” who engineered the Vietnam War.

This warrant article is a “moderate” attempt -- on a very limited basis and with procedural hurdles (30 signatures, and only after going through the full and tortuous earlier process, 2/3 vote) -- to give Town Meeting a say on issues deemed “either a general policy issue or a serious safety issue.” The Advisory Committee said in 2000,

“the Transportation Board reported that over the last six years only two decisions had been appealed to the Board of Selectmen ... . The Board argued that this lack of appeals demonstrated that the existing system was working well and that another layer of appeal to Town Meeting was unnecessary and potentially cumbersome. Several persons, on and off the Board, argued that the system would quickly break down if Transportation Board decisions were routinely appealed to Town Meeting.”

If anything, the record of two appeals from 1994-2000, and now apparently three in 11 years, seems to conclusively disprove any likelihood of decisions “routinely appealed to Town Meeting.”

The petitioners emphasize our sense of an overwhelming consensus -- which we share -- to retain the OVERNIGHT BAN, widely-viewed as important to our quality of life; and this article should not be viewed as any threat to that. The prospect of a 2/3 vote to overturn that -- or even of enough people to go through the monumentally tortuous earlier process and then gather 30 signatures for a warrant article -- seems less than negligible. Ironically, however, if we had a future Transportation Board that wanted to repeal the overnight ban, it could simply do so -- with no say from or by Town Meeting.

Petitioners share zealous confidence in town meeting government, republican (small “r”) democracy at its best; and that it will not run amuck with a stream of ill-advised 2/3 votes. The occasion of our 300th anniversary is a good time to end our 31-year experiment with “regulation without representation,” an idea whose time never thoughtfully came, and now should go.

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ARTICLE 27

There has been much media coverage of the mammoth investment of time and energy by both officials and citizens on this issue over the last four years. The petitioners now regretfully return to Town Meeting because of the recent retreat of the selectmen in deciding the recent citizens’ Appeal, when a majority of them endorsed (1) a very limited (especially geographically) “pilot program” and (2) a retention of the “petition” process to obtain resident permits. The pilot program is now widely viewed as ill-advised and staff-intensive, and is based on a fundamentally flawed -- and unique in the state -- “default rule” of universal 2-hour-plus illegality for residents, only overridden by a cumbersome petition process. One recent member of the Transportation Board, a vehement proponent of the current default rule, has admitted that it’s “probably true [that] Brookline is the only place in the country with such a rule.”

Now, that member of the Transportation Board has resigned, believing, ironically as do Petitioners, that “[t]he trial will not answer ... the relevant ... questions”; and no doubt also because of the DPW staff estimates of well over 2,900 staff hours (plus many but indeterminate Police Dept. hours) to conduct the pilot program.

As stated, too optimistically, in a Brookline TAB editorial, “Keep it simple,” June 16, 2005:

“It looks as though some relief is in store for residents who want to park in town during the day without the constant threat of being slapped with a parking ticket. It's about time, and ... [a] simple and efficient permit system makes the most sense. We agree with Selectman Gil Hoy and Rosenthal, who balked at a plan to require residents seeking daytime parking permits to gather signatures from a majority of neighbors on their streets. A petition process is tedious, they said. Instead, Hoy suggested that residents who don't want permit parking be the ones who generate petitions to be excluded from the program. Meanwhile, he advocated for townwide permit parking, except in commercial areas and near T stops. We hope the board backs Hoy's suggestions and votes in this necessary relief. Because it's likely any change will be instituted in the form of a pilot program, there's room for tweaking down the line.”

The Whereas (#1) language as to “the primary purpose of the 2-hour parking rule and residential permit program” is from a Transportation Board summary of a Dec. 17, 2003 meeting; see also a similar statement in a Sept. 12, 2002 memorandum to the Board from the Assistant Director.

Last fall, based upon that language and then the supportive comments from all five selectmen, the petitioners acceded to our TM Resolution being watered down for consensus, and then passed on a voice vote. Apparently Town Meeting needs to speak with greater clarity and forcefulness. The selectmen have flouted a four-year outpouring of uniform and public opposition to resident ticketing; and all those outspoken people and leaders have now been outvoted by an alleged secret list - a secret number of secret individuals who in a secret manner communicated a secret message. Since the Town’s legislature currently has no authority to make parking policy -- which is the subject of another, companion warrant article -- this Resolution is limited to being only hortatory.

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ARTICLE 28

Until the recent Supreme Court decision, Kelo v. New London CT, cities and towns could seize private property through the power of eminent domain only for a public use such as new highways or public buildings, or to remedy some public threat or harm from the existing uses.

The New London decision now empowers municipal officials to take private homes and businesses from one group of owners and turn the properties over to other private owners using “economic development” as an expanded concept of “public use” for justifying such takings under the U.S. Constitution. The Court defines “economic development” in terms of increased local taxes and more jobs being created from the seized properties after they have been transferred to the new owners chose by local public officials.

This warrant article is in the form of a Town Meeting resolution. After citing the essence of the New London decision and its prospective adverse impact on Massachusetts home and small business owners, the resolution then states that Town meeting supports a policy to prohibit eminent domain takings for the primary purpose of economic development. The resolution then asks Brookline’s four state representatives and our state senator to support legislation that would prohibit such takings throughout the Commonwealth.

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ARTICLE 29

The petitioner wishes the town as a political entity to support the position supported by the majority of citizens of Brookline, that the United States should exit from Iraq as soon as possible. These resolutions all facilitate exiting from Iraq by forcing the Federal Executive to formulate an explicit exit plan, to support Massachusetts withholding National Guard troops from Iraq, and to make public documents about the Iraq War

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ARTICLE 30

The construction of a BSL4 Biocontainment Facility in the most densely populated section of Boston 2 miles from the Brookline border is an evident public safety risk to this community. The petitioner therefore asks the Town to support State Legislation to regulate such facilities and the Boston City Ordinance to ban BSL4 work in the City so as to minimize the risk to Brookline.