 Having been reached, I want to welcome everyone to this public meeting of the Amherst Zoning Board of Appeals. Pursuant to Governor Baker's March 12, 2020 order, suspending certain provisions of the open meeting law, general law is Chapter 30A, Section 18, and the governor's March 15, 2020 order, imposing strict limitations on a number of people that may gather in one place. This public hearing of the town of Amherst Zoning Board of Appeals is being conducted via remote participation. No in-person attendance of members of the public will be permitted, but the public can listen to the proceedings by clicking on the link in the town's webpage. In accordance with provisions of Massachusetts General Laws, Chapter 40A, Article 10, special permit granting authority of the Amherst Zoning Bylaw, this public meeting has been duly advertised and noticed thereof, has been posted and mailed to all parties at interest. My name is Steve Judge as chair of the Amherst Zoning Board of Appeals. I call this meeting to order. I'd like to take a roll call. Board members, as your name are called, please unmute yourself, answer affirmatively, and then place yourself back on mute. Joan O'Mearl? She is here. Maybe she has, hold on a second. Joan, can you hear her? I cannot. Joan? Yeah, I'm here. There we go. Keith Langsdale? I'm here. Tammy Park? Here. Dylan Maxfield? Here. Sharon Waldman? Here. Peter Berrick? Here. Bob Greeny? I saw Bob. I think, I know, there he is. There we see you. Bob's here. Yeah, I can't unmute. There we, we got you. And Kate Meadow. Are you hearing me now? Yep, we're hearing you now. OK. Is Craig Meadow here? Unless this phone number from the attendees is his. Give me a second. Let me look up. What's this number? 8, 8. Oh, I think this is him, actually. 866. OK. Craig, you're, I'm, I'm going to, let's see here. Allowed to talk. Craig, are you, are you there? I am here. All right. We've got everybody in attendance. Great. The zoning board of appeals is a quasi-judicial body that operates under the authority of Chapter 48 of the General Laws of the Commonwealth for the purpose of promoting the health, safety, convenience, and general welfare of the inhabitants of the town of Amherst. One of the most important elements of the Amherst Zoning By-law is Section 10.38. Specific findings from this section must be made for all our decisions. There are copies of Section 10.38 available for the public use. All hearings and meetings are open to the public and are recorded by town staff. Tonight, we are conducting a public meeting to consider ZBA's rules and regulations. In a public meeting, the board deliberates on a matter and is not generally an opportunity for public comment. Any public comment will be at the chair's discretion. Tonight, we have the following agenda. Consideration of the rules and regulations of the Board of Appeals, the Zoning Board of Appeals. And after the rules and regulations, the board will entertain public comment on any matter, not on tonight's agenda. Tonight, sitting for tonight's agenda are our regular board members who have already introduced themselves and answered the roll call. Marine Pollock of the town staff, Christine Brestop, David Watkasevitz, I think I pronounced that right. Waske. Please say it again. Waskevitz. And we also have with us tonight, Jonathan Witton of KP Law who's working with us on reviewing our rules and regulations. Before we begin the meeting, I just wanted to say I've reviewed the rules and regs and my initial impression was just to make some technical changes to incorporate the change from town meeting form of government to council. But after discussing these rules and regs with staff and with John Witton, I think we should have at minimum separate sections for each type of action we take, special permit, various variances and comprehensive permits. They all have different deadlines. They have different requirements. It would make sense and would help the clarity for them to have each have a separate section of the bylaws. And I also think there's merit to layering out more specific procedures and requirements for comprehensive permits. There are two fundamental benefits in doing so I think. The first is it provides the board and the applicant developer with a clear recitation of the process and requirements of the comprehensive permit process. I think that clarity would benefit everybody involved in a comprehensive permit. And secondly, I think the public will be better served and more informed of the process and of the proposal and of the process the board will use and how they can be involved in consideration of a comprehensive permit. So if the board decides to consider more essential changes to the rules and regulations then you have already received via email from staff. I would work with the town staff and our outside council to have a draft to try to have a draft to you next week so that you could changes could be considered at next week's ZBA meeting. Before I ask John to discuss some of the changes he would suggest we consider. I wanna ask staff if they have any additional comments or if any board members has a question or a comment on our rules and regulations. Yeah, this is Keith. I have a few things that I had questions about but they skipped through the whole thing. So do you want me to ask all those now or are we gonna go through it and address each section and we go through it? I think it would be really helpful if you would elicit your comments now, Keith. I think that would be beneficial. And if some of those are technical, just moving to five and three members, I think we've got those, but other ones please go through it as serially right now. Okay, under quorum, it states four members, associate members shall constitute the panel for all public hearings or public meetings. Now, I understand that a quorum is the four of the five, but at the top, under section one, members and officers, the zoning board of appeals that it consists of five regular and four associate members, all residents, blah, blah, blah. So under quorum, it says that four members shall constitute the panel for all public hearings or public meetings. That seems to me a little confusing because we've said five and now we're saying four will constitute the panel. We're talking about four members being the quorum of the panel, but what we need to say is that there are five members will constitute the panel, right? I don't know. I think what it's saying is that the panel and John or staff please help. I think what it's saying is that the panel can act with a quorum of four members that it would constitute a panel for actions. I think it's confusing. I don't think it says that because what it says is four members shall constitute the panel for all public hearings or public meetings. So I think it could be stated more clearly by saying four members will constitute a quorum allowing an attitude by a quorum. I think it says three members. Yeah, I see, yeah, yeah. Mr. Chairman, this is one of I think a good example of why the board should consider segregating these three different permit processes that you do as well as review appeals to the building commissioner. A quorum of the board is actually three, not four. A special permit requires four affirmative votes. A variance requires four affirmative votes, but the board can conduct business with a quorum and a quorum of a five member body is three. Now that means if there are only three members present and I'm a special permit or variance applicant, I'm gonna ask you for an extension of time, but you would be constituted as a quorum and you could grant me that extension of time. So this is a really important point. The quorum is different than the necessary quantum of votes needed to pass a special permit or variance. And it's also relevant because a comprehensive permit only requires a majority vote of the board and the board is five, a majority would be three. So depending on what my application is, is gonna determine what the quantum of vote I need, but in all cases, a quorum of the board of appeals will be three, not four. So you couldn't approve certain, there's some actions you cannot take with three, but you can meet as a board and there are actions you can take with just a simple majority, which is a quorum. Exactly, and for example, the most important one would be to request a continuation of time or to do other business that would be non adjudicative. You know, there might be a million reasons why three members of the board would wanna take action, might be a staff issue, it might be hiring a consultant. There are a lot of reasons why the board could continue as three. You wouldn't be able to vote on my special permit or my variance, but you could still commence to do business. So it's an important issue and I think easily fixed, but that would be kind of one of the procedural things, Steve, that you and I, Mr. Chairman, that you and I talked about, which is to kind of clarify what is required for each of the different roles you all play depending on what night of the month you're hearing my application. So Steve, one of my questions then I guess is we were told that when we went from a three-member board to a five-member board, it would take at least four members to approve a special zoning request, but... And that's correct. Yeah, that's correct. But how you're talking about a quorum being three, which I understand, so what powers does that quorum have? So sometimes really critical power. So let's say that the board is running out of time on rendering a decision for a variance or a special permit. You're at the 155th day on a special permit. You're on the 100th day for a variance, but there's a snowstorm and only three members show up. That is sufficient to accept an extension from the applicant. So you can conduct business as the Amherst Board of Appeals just with three members. You cannot find the fourth vote to grant me the special permit or to grant me the variance, but you can still conduct essential business. So it is really important, especially when we have winters that we have or people get sick or they're on vacation. So if you have quorum problems, which a lot of boards do from time to time, the three members can still take action, but not render an adjudicative decision, special permit or variance. So a quorum of a five-member body is three. The requisite number of votes for a special permit is four and the requisite number of votes for a variance is four pursuant to the statute. So you do, you may end up being a quorum of three that is going to take an essential action. Not at all uncommon. Can you take public testimony with three? No, no, and this is important. Yeah, that's the key. Yeah, so you wanna be very careful of that. So you could meet for the sole purpose of granting my extension of time so that I can get a full fair hearing because if there's only three members there and you've run out of the clock, now the applicant is in big trouble and the board's in big trouble because the board can't vote to deny and the board can't vote to approve. So both parties are gonna want an extension of time. Excuse me, if later on in the rules and regulations, it talks about if that the board does not meet the time, then time in which they need to make the decision, then it goes to an automatic acceptance of the application. So if you end up three member board at that end of time, the applicant doesn't have to ask for an extension. The applicant should just say, okay, then I get what I want. So the constructive approval approach when an applicant takes that, it'll be the last time he or she or it will ever be favorably reviewed by the board of appeals. So a good applicant is never gonna play that card or they're gonna play it very carefully. And if that were to ever happen and the board was up against that, that's where my advice would be to call us. We will call the applicant or call their counsel because it's not a dirty trick, but it's an unfair trick to play. So most applicants will play ball because they'll understand that there's a snowstorm or someone is sick. I recommend that that come out of your regulations. That's inherently punitive. You don't wanna be punishing yourself. Take out the constructive language from your regs. It's a statutory requirement and there's a lot of case law on it. You don't need to have that punitive aspect in the regs. If I'm on my last day and there isn't four members for my special permit, if I don't give the board an extension, then I cannot foresee favorable treatment or even equitable treatment down the line. And that is just a good rule of thumb that most applicants and developers are aware of. You play the constructive approval card only when the board just blows it. The board just ignores the requirements. When it's a crisis or there's a storm or someone sick, that kind of bad faith approach doesn't work well. It's a small community in Massachusetts and everybody knows what everybody else is doing. So it won't happen and if it does happen, it'll be an outlier. I will come to the board and I'll say, ladies and gentlemen of the board, I really need to grant you an extension of time so you can have a full compliment, four members, five members of the board. I'm not too worried about that. It's a fair question, but I'm not worried about it and I really don't think you should have that piece in the regs as well. Okay, well, it's good to know in terms of sitting on the board, if that happens, that we need to come to you and say, help us, you know. Yeah, you never want to lose on the constructive approval. The neighborhood goes nuts. I mean, because it almost looks like the board has abdicated any responsibility. It's really the worst possible outcome. Tammy, did you have a question? I do. I would appreciate it if you can point to the sections that you're talking about as we go along because I'm not as familiar with them as you are and so I'm struggling by going page to page to figure out exactly what you're talking about and so I see where we are talking about the three-member quorum is in section three and then it looks like the extension is 2.10 but I just wanna make sure that we're all on the same page when we're discussing these, if you don't mind. No, that's a good point. Yeah, thank you. Keith, do you have some other questions? No, yeah. Under voting, I'm running down. What section is that? Oh, uh... 2.8? Section two, yeah. 2.0. It's just a little technical stuff. I mean, at the end of the red, the provisions, the regulations, I'll be available, board members, blah, blah, blah, there's a number eight. I don't understand why that's there, it doesn't... It's deleted, it's a deletion. Where is this, 2.8? Okay, and then nine and nine... 2.9, 2.9? Yeah, same one, said 2.9. We can't reopen the hearing that night. Is that what is being said here? Emotion and vote by the board to reconsider during a duly constituted public meeting, that's one, and two, advertising and notifying of butters in accordance with the chapter four, section 11. Chapter 40. So if the public hearing is closed, we can't reopen it that night. We can only vote to reconsider and then it has to go through, what, another two-week cycle before we can reopen the public hearing? Yes, once the hearing is closed, the public is being told there'll be no new testimony. So the public is being informed, you don't have to show up anymore. I mean, I'm saying that cynically to just to prove it. If the board wants to accept new testimony, it has to re-advertise for a proper public hearing. So, and that is the two-week, 14 days in advance of the public hearing. Okay, and then again, just a type of graphical thing. At the end of nine, there's a one, and I don't know why that's there. I mean, the 2.10, 2.10? Yeah, right above it is a one. I am not really sure what you're pointing at, but it might be that it's a deletion. Does it have a strike-through? No. I don't know where... The other one that I talked about, eight, that doesn't have a strike-through. Yeah, but the text does. The text... Mine does not match what Keith is saying. I don't have a strike-through, I don't have a one. So Keith, if you look at my screen, so 2.8, this... This will obviously, John Whitton's going to review this. So I guess I think your comments are, it may be moved if it's about the track changes, but the 2.8, this paragraph right here is deleted. So I think it's part of that. And then I, again, I don't really know what you're talking about for the 2.... Okay, well, I'm looking at what I got from you. Which is this? It doesn't look like this, because there aren't any strike-outs in the copy that I have. There's only the red. Okay, only the red. Yeah, I don't know. This is what I emailed you, Keith. And then I also emailed you the clean copy. Did everyone else get this version? I don't have that. The version that I got looks like what Keith is describing. Yeah. I don't know. Do we want to have Keith share his screen so you can see what he sees? Yeah. Yeah. Because this is, well, this is what I thought I had emailed everyone. So... Copy I got. All right, well, I'm going to stop sharing then. All right, well... Maureen, I got to also make a clean copy and a straight-through copy. Mind you, we're both attached to mine. Oh, okay. So yeah, so my question is, did all the members get a copy that had the track changes? I do not have that, but I'm looking through my emails to see if I... It might be one of those scenarios that once you open, so the file is called... It's like rules and regs. And at the end of the file name, it says track changes. And so I think if you're not familiar with Microsoft Word, you would need to go to one of the ribbons at the top and then go to the tab where it says review and then click show markups. So maybe that was an error on my part of not specifying that. And I'm working... Yeah, I'm trying to find that myself. So if you go to the top... So hold on a second. So let me share my screen. Yeah, but what I'm trying to find is, what was the date that these came out on? Maybe that would help us all. That you sent us these, the data... I sent it like a couple of days ago, I believe. It was Tuesday morning. Tuesday morning, okay. All right. And there was one clean copy and then one that said track changes on it? Yeah, we got those two copies, the clean copy and the track changes. But our track changes copy doesn't include the crossed out deletions. It just includes markers in the right hand margin indicating where you made changes. And then in the body of the text, we see the new text. Okay. But we don't see what you're taking out unless we go back and look at the clean copy. Got it. And so if everyone can take a look at up here where my mouse is, where it says review. If you click there and go, here it says, I think it says show, what would you do? You would click all markup and that should show the additions and deletions or suggestions that, yeah. Does that work for people? I'm still on Maureen's screen. I can't do anything with mine. Go up to the top of your screen and where it says- No, okay. Now I'm back on mine. Okay. Okay. Then the other thing that I have is under section two, application requirements. Under initial application. It says each application shall be submitted with one full-size hard copy set of all plans and materials. Additionally, each application shall be accompanied by one digital version of all plans and information. My question is this, at least in the past, everything I've gotten digitally has been incredibly hard to read because it's so small, you can't read the dimensions and a lot of other things. And there have been times when I had to wait until we got to the hearing itself to see finally the large plan to be able to distinguish what the plans are enumerating. If now we're going to be dealing online most of the time for a while, is there a way to make sure that this digital version is readable? That's a good question, Keith. So in my time here, especially in the last year, you were on the board up until last year and you've taken a break through the last year. So since then, we have required that, if the hard copy is legible and you can read easily on 11 by 17, that's acceptable. And for the most part, it is fine and I haven't heard any complaints over the last year. But for the scenarios that 11 by 17 or a letter size piece of paper just doesn't cut it, then of course we would require that the applicant provide full scale, 24 by 36 pieces of a plan set. So it's a case by case basis. My question though is about digital, the digital version of the plans, not the hard copy. I never had a hard, we never had a problem with the hard copy, but a lot of times we didn't get that until we got to the meeting itself, the hearing. Do other people have issues with digital copies of the existing members that have been on the board? Chris? I just wanted to note that there is usually an option to make something bigger, usually at the top of the screen when you're looking at that image of the electronic copy. First of all, it's best to download it. When Maureen sends you whatever she sends you and you click on an image, you have to download it first and then you can manipulate it. Once you've downloaded it, you can usually click on a plus sign that will make whatever portion of it bigger. And then there's usually a mechanism for moving it around. And I understand that it's awkward, but it is possible to blow it up so that you can look at it more closely. Okay, that's it for me. Thank you. No, I'm calling. Oh, I don't know where Joan is. I can sort of hear her talk, but... Maureen? Yeah, are you the phone number? I am, I got booted off. Oh, okay. That's all right. Well, this works fine too. I'm not playing. All right, so does any other... I'm gonna put Joan on mute for a second. I guess maybe it wasn't Joan. Does anyone have any comments or questions from reviewing the rules and regs? So I guess Steve, I don't know where Steve is. Steve here? Steve? Maureen? No, I'm looking for Steve. Oh, there's Steve. Oh, it looks like he got booted off and he's coming back. He doesn't have his microphone. He only has his video. Oh, is that it? All righty. Steve. Oh, oh yeah, that's right. Steve, you don't have a microphone, but you can call in. Oh, technology. I'm back, I'm sorry. No, that's okay. I lost all audio there for a second and I don't know why. Well, so we do have a member of the public. Steve, do you wanna see if any members of the public have comments? Well, I think we should have discussion with the board first and the presentation. And then we'll have discussion from the public at the end of that, but I think we should have the discussion from the board and our consultant before we go to the public comments. And I'm sorry I miss, Keith, had you finished with your points? I did, Steve, thank you. Okay, yep, and was there anybody else that had comments or suggestions? All right, then I think we should go to John to talk about some of the changes that he suggests in the process. And then I can talk a little bit about the process that we use over the next couple of days to make sure that we get this to you before the next meeting. So you can go through it and we'll make sure that we understand how to make, that the track changes version all work. So thank you, Mr. Chairman. So board members, your role in life as ZBA members really focuses on four things. You issue special permits, you issue variances, you deal with appeals of the building commissioner's decision and you issue comprehensive permits. So those four tasks are dramatically different in terms of timelines, in terms of burdens of proof, in terms of the applicable law. So one suggestion is to have the regulations reflect kind of those four different categories. They already do that. I think now that we were talking essentially about the comprehensive permit process, but my thought was, and I'm happy to do a draft this weekend for the board's review, my thought was to have the headings, special permit, comprehensive permit, building permit or building decision appeals and variances have them as segregated categories, have the plan requirements or the filing requirements be very similar because they will be for many cases the same in terms of what the board is looking for. But of course you're not gonna require the same plan filings for an appeal of a building commissioner's decision as you would a special permit or a comprehensive permit. So I think the regs could be streamlined procedurally. There's no, that's not critical of the regs as they are now. I just think you might be a good opportunity to kind of take a step back and reconfigure them procedurally. I think substantively the comprehensive permit regs would benefit from a little bit more. And I've spoken to Maureen, I've spoken to the chair and totally respect the fact that Amherst has had a pretty good experience with comprehensive permits, more so than a lot of cities and towns in the Commonwealth. So the regs that I had drafted for other communities that I had sent are probably over the top too aggressive or more aggressive than Amherst needs, especially because Amherst is consistent with local needs. But I do recommend two aspects of comprehensive permit regs for the board to consider. One is to have a requirement for the submission of a pro forma put into the regs. And then the other substantive piece is to provide guidance for the board in the regs as to what to do when you get waiver requests or requests for waivers from a whole host of local regulations. And we talked a little bit about both topics when we all met a few weeks ago. I think the regs would benefit from that. Your comprehensive permit regs are waivable. The board of appeals could choose to waive any or all aspects of it depending on the application or you could hold firm. But I think the pro forma would benefit the board, it'll benefit the applicant, it'll benefit the public because the pro forma provides the board with at least a roadmap as to how many conditions can you impose before you've killed the project. And I'm saying that from the applicant's perspective. It'll be helpful for the public because the public will be able to understand why you're not pushing for more or why you are pushing for more. On the waiver requests, my experience with waivers in the comprehensive permit world is I think relevant here, which is very few members of the public who haven't dealt with comprehensive permits can understand, cause it's not logical why they've gone to town meeting for the past 50 years. And now the board of appeals is giving away all provisions of the zoning bylaw. It's counterintuitive. These aren't variances. So why are you granting all these waivers? I think the regs should reflect the board's power to grant waivers when the waivers needed to keep the project from becoming uneconomic or grant a waiver when it's in the best interest of the town to do so, because of your comprehensive plan, your open space plan, or any other publicly developed document that you wanna link them to. So those are my two macro recommendations for the comprehensive permit rules and regs. The examples that I've sent to the board go much further than that. They're much more aggressive. And you can always decide to add more pieces later on. This is not a static document, nor should it be. Many boards update their regs many times a year. So I think for the first cut, my recommendation would be those two additions to your comprehensive permit regs. I'm happy to keep going, Mr. Chairman, but those are kind of the big recommendations. That makes sense. What's the impression of the, I mean, I think that makes sense to tell you the truth. I think we ought to at least do that. And John said that he would work on that over the weekend, get something to me into the staff and then we could then review and then send out to the board members as early as possible next week. So you have some time to consider it. I don't wanna drop it on you at the last minute just before the meeting. And even if you still haven't had enough time, we can wait another week to take care of to deal with it. But I think we can turn this around fairly quickly and get something to you and give you time to look at it and not feel rushed in your consideration. But I think your approach makes sense and we'll try to get something out, but I'd like to hear from other people as well whether board members have a concern or support the approach either way or if the staff has a concern. I'm curious about something that you just said regarding the fact that we have had in Amherst good experiences as far as the CBA is concerned. I'd like an example of what a bad experience is. What the possibilities might be. So there are a lot of bad experiences with the conference of permit law in cities and towns across the Commonwealth because of the waiver issue. So the picture of the scenario, it's a developed neighborhood of 20,000 square foot single family homes and an applicant is proposing a six story 200 unit development on a couple of acres of land. The public perception is how is that possible given the fact that the homes around us are single family, World War II homes on 20,000 square foot lots. So there are a lot of bad experiences from the public's perception because this is in defiance of zoning. So the knowledge of the conference of permit law is in short supply across the Commonwealth. And I think a lot of neighborhoods and a lot of individuals don't understand how it could be that they had to comply with minimum lot size but this developer does not. It kind of escalates from there. How many, what's the percentage of below market rate units? Well, it's only 25%. So the developer gets a density bonus but three quarters of those units are market rate selling were in Weston or in Lincoln they're selling for a million dollars in change. So there are a lot of bad experiences I think because board members and the public are used to kind of normative procedures. We're the only state in the nation that develops affordable housing through the conference of permit type approach. So it's likely to cause a lot of objections to what happened to zoning. You know, I've been the town meeting member for all these years. I thought zoning can only be changed by town meeting. So that's what I meant by bad experience. I think the devil's in the details. If you have an applicant who's willing to negotiate with the town then it's probably a better experience. If you have an applicant who's not willing to negotiate take it or leave it, then it's gonna be a bad experience and there's a lot of those. And I've been involved in a lot of those. A lot of litigation from the conference of permit law because developers shoot for the moon and the Board of Appeals sometimes gets overwhelmed and the neighborhood doesn't understand how that happened. So that's part of the argument I think for strong regs or at least broad regulations to protect the Board against an applicant who's not willing to negotiate with the town. Let me just say this. The conference of permit process is a negotiable development because all zoning is potentially cast aside. So that kind of says it all. That means you're gonna have good applicants and you're gonna have bad applicants. You're gonna have good experiences and bad experiences. And the way to kind of settle the difference is to have some normative foundation and that to me are good rules and regulations. The thing is though Amherst is above that because you have met the consistent with local need requirement. So you get to choose now on every conference of permit what conditions you want to impose because the developer is not gonna have an appeal to the Housing Appeals Committee. By staying at that 10% and above you are inoculated against an appeal from a developer who's not happy with your decision. So you should always have good experiences because you're not under the gun of an appeal to the Housing Appeals Committee. I think regulations will help you guide a developer because those regs are gonna provide the blueprint for where Amherst wants to go with the low market rate house. Any other question? Christine. Okay, so I have a question about the pro forma. We did not require a pro forma from Beacon. The ZBA did not require a pro forma. The pro forma only came into play when Beacon applied for the tax incentive that we have here in Amherst. So I guess my question is, is that common to require a pro forma? And the other half of that is how honest does the developer need to be in sharing information and how open does the developer need to be? Is it possible that we could get a pro forma with redactions that would make it not very informative? Yeah, great questions, Christine. So the pro forma is the line in the sand that will instruct the Board of Appeals how many conditions you can impose before the project is rendered on economic. So an honest pro forma where the developer puts forward his or her true costs and true profit because that's all a pro forma is, is a ledger costs and profit or costs and income rather in the bottom line is profit. A true pro forma will provide the Board with that kind of guidance. So let's say just as an argument, let's say I come in with an ED unit, comprehensive permit, the Board and its wisdom based on staff comments and the Board's experience thinks ED is too much for this particular parcel. And the Board is trying to negotiate with me to a lower density. And I say, no, I need 80 units. Well, the Board member's logical pushback's gonna be, well, what do you mean you need 80? Can you demonstrate that you need 80 to keep the project from being un-economic? The only honest way of doing that is through a pro forma. How honest are they? Well, one of the draft or suggested regs that I had forwarded does require a signature, pains and penalties of perjury. And that is really not at all uncommon. When I make an application to a municipality, the Board gets to rely on my assertions. And even if I don't put it under the pains and penalties of perjury, but if I'm not honest on the pro forma, then it's gonna be very hard for the Board to know what kind of conditions to impose or the breadth of the conditions. I think because of the way the statutory scheme works, I think the pro forma is really critical. And so, Kristin, your question is how common it is in a municipality that is not consistent with local needs, it's very common because it's the only way the Board will know how much negotiation there is. For a community like Amherst that has met the 10% target, it's still relevant because you don't wanna bankrupt me. I mean, you have total control over me. You can deny me or approve my project with two units and I have nothing I can do about it. But if you're supportive of my project, you wanna push back, but you don't wanna put me into bankruptcy, you need to know what that pro forma is. So, we know we can vet a pro forma because there are members of the Board and the public and staff who know what construction costs are per square foot. We know what the land costs are because there's a purchase and sale or an option agreement. So, it's really very hard to perjure myself on a pro forma. The pro forma is a snapshot in time. Numbers, of course, just changed the past eight weeks, but putting that kind of issue aside, no, they're reliable and really, really important. They're a guide map or a roadmap and a guidance document for the Board. All right, any other thoughts, comments, questions from Board members? Christine, go ahead. Oh, unmute yourself. Okay, so the second question is, what form would the section on waivers be? What format would it be? Would it describe the kinds of waivers that can be requested and what the criteria might be for granting the waivers or how would you format the section on waivers? Yeah, I think you answered it in the second part, Christine, which is, I think the waiver section has to be inclusive of the Board of Appeals has the authority to grant waivers from all local rules and regulations, with the three exceptions we talked about a couple weeks ago, Title V, the State Building Code and the Wetlands Protection Act, but the Board is looking for justification for the basis for these waivers. And there are two ways of framing that. One is an economic justification. If you don't give me the waiver, the project will be uneconomic and I'm gonna not be successful. The other is a health and safety waiver. I need this waiver because it makes sense to have a dead end road longer than your subdivision regulations. I need this waiver to not build a sidewalk on both sides of the street because there's a steep vertical curve or steep vertical cut. So that's my sense, Christine, on the waivers there's an economic justification and then there's a planning justification and the Board in its wisdom may choose one over the other or may require both, but I just think it should be or the more should consider kind of having that as part of your rex. Good point. Okay. One more, go ahead, Christine. Sorry for dominating the conversation, but I wondered my feeling about trying to get these changes to the rules and rex done sooner rather than later was because we had the application that we know is coming and I wondered do the rules and rex have to be in place before we receive the application in order for them to be enforced or can the rules and rex sort of come along at the same time and the Board can rely on those rules and rex? Yeah, another great question. As a general rule, the rex have to be in place before the filing of the application with the town or city clerk. So yeah, my advice would be if the Board wanted to make changes that it feels are important for now, you should adopt those before, if you can, you can't control this sometimes, but you should adopt those changes before you get an application for a new special permit and new variants and new comprehensive permit. Yeah, you want the rex filed with the clerk to be effective. They're effective upon vote, then the next morning file them with the town clerk, then they are effective against everything that follows thereafter. If the application proceeds the adoption of new regs, the application will be pursuant to the old regs. So we're likely to get an application next week. Before next Thursday. Don't know. Well, I think we, it would, well, that's a bit disconcerting because I think there's some technical changes, technical conforming changes that should be done prior to that. And those are disconforming to the town council form of government that should be done before any comprehensive permit is received, permit application is received. And I would hope that the developer would wait for us to put the, to finish our regulations. And, but I, you know, we haven't had a, we have not had a conversation with the developer to do that. I think that would be smart or show good faith, but they're free to do whatever they're going to do. If this is helpful, the board could vote. I'm not suggesting this just as an option. The board could vote tonight to make changes to the regs that you feel are so critical that they need to be made. And they would become effective. I could work with Maureen tomorrow and they could be effective upon the filing of the new regs with the clerk tomorrow. If you felt pressure, I'm not recommending that because I think it's worthy for the board to have a conversation and for the public to weigh in. But if you felt pressure, there's something that's so categorically wrong you wanted to fix before next Thursday, you have convened this meeting, it's properly advertised and you're having this colloquy right now. You could do that. Well, I think we should do what's required by the change in governance. That should, we could do that. That's been shared with the board. We discussed it. I think we all, that's, those are really kind of conforming changes. I think those must be done. I don't feel that there is, I don't feel comfortable in going further than that, separating each new sections for every type of action we can take. Those kinds of things I think need to be shared with the board before we act. But I think we all know exactly what the conforming changes would be. And I would, at the end of this discussion, I'm gonna seek a motion that we make those changes, instruct you and staff to work those through and file them as quickly as possible, sharing them with us before you do, right? But that you've done as quickly as possible. And then we still proceed to work towards more comprehensive changes in the hope that there isn't an application file before Thursday and we try to, and we get the new regulations on Thursday. That's how I would like to proceed then, given that we may have an application before next Thursday. David? Yeah, I was having another thought. Goes back to earlier when we were talking about quorum. Maybe with that in mind, maybe get that hammered out tonight so it's clear if there's any language you wanna change. But you already have, it's a five-member board that's stated at the beginning under section one. But under quorum, just lay out the different types of cases that you handle and the quorum needed for each. And that would at least cover you for now. And then if you wanna change that when you do the breakout, you can put it in that place. But I think having quorum be such a focal title there, it makes it easy to find and it can easily spell out each one. Good suggestion. So then as we work through, I think that's a good suggestion. John, you got that and I'll stay in the morning, okay? So as I work through the rules and regulations, I think we have to do just this change town council, and I'm select board of town council, the place where we have to put four instead of three because we're now a five-member board and I think those kinds of conforming changes is all things that we have been shared with the board members. I think the quorum that you talked about, David, makes sense just to identify the different quorms for each of the different actions and what the power of the quorum can do, what it can be done. And I think those would keep have ready by probably by Friday afternoon and could file them on Monday morning. Yes, Christine. Well, the one other thing I would add is the mullin' rule section chapter 39, section 23D to allow a member of the board who was unable to attend a particular hearing date to read the material and catch up and then be eligible to vote. That also seems pretty straightforward necessary for you moving forward with this expected permit application. Now does the town council have to approve that for us or can we do that, take that action on our own? The town council has already approved it for the zoning board of appeals. So now- Okay, so we should take that. Put it in your resume. All right, that's good. Okay, I think we have a sense, unless there's any other discussion, I think we have a sense or a consensus here on how we should act in the short term and what we do coming up. So I will entertain a motion that we move to amend the rules and regulations as we just discussed, including the mullin' rule. And I'm looking for a motion and a second. Is there a motion? So moved. Is there a second? Sharon? I can. Keith, you got it? Do you want to get any members of the public to weigh in before you vote on that or? I don't know if you- No, you know, I think not at the end of this. I think we should discuss this and move on this. All those in favor, say aye. Any discussion on the motion? Excuse me, any discussion on the motion? All those in favor, say aye. Aye. Opposed? Motion passed. All right. I'm sorry, may I just say something? I think that these Zoom meetings require a roll call. Oh, they do. Good catch. And I also think that only regular members can vote on this motion. I think the, it says under current rules and regulations, regular members shall also adopt and or amend rules and regulations. And then it goes on to state that other issues, all people, all members can vote. So on this one, we just have the five members voting on this, the five regular members. So a roll call would be Joan, Ms. O'Mara. You're on mute, is that am I? She needs to be unmuted. Yeah, Joan, unmute, there you go. I am unmuted, is that right? Now you are, and are you an aye? Yes, aye. Mr. Landfiel? Aye. Ms. Parks? Aye. Mr. Maxfield? Aye. Mr. Judge, aye. Five in favor? Motion is passed. The next is to discuss if we should proceed with changes. And before we do that, you said there were a couple of comments from the public. There's one member of the public present. One member of the public. All right, keep this to three minutes. And it was all on this topic. I don't know if they have comments. This is a public hearing. Yeah, I know. Well, it's a public meeting, right? No, it's a public hearing. This is... Okay. Then public should be heard. Yeah. Hilda, do you have any comments? If so, you should press the button to raise your hand. Oh, she does. Okay. Hilda, I'm gonna allow you to talk. Yes. My hand is not raised. I just did it now when you asked me and my hand does not raise. Oh, okay. All right. I'm just covering this for the newspaper, but I don't have a question. Oh, okay. Well, it was great to hear your voice. All right. I'm gonna hear my comments. You'll read about it in the book. Okay. All right. Thanks. All right. The next order of business is to authorize, I mean, unless there's objections, staff will work with John Whitten and I to try to come up with changes as we discussed and provide those to all of you prior to next week's meeting in time for us to consider the rules and regulations in concert with our meeting, our hearing and meeting next week on next Thursday. Unless there's any objections, I think that's how we'll proceed. Great. Any other comments? Christine. I have a question for John Whitten, which is you did not close the public hearing when you voted. So could you, having taken that vote, continue the public hearing to next Thursday so then you wouldn't need to re-advertise? Yes, yes. I think that's a great suggestion. And again, the board can make additional additions for next Thursday. I will have my draft to the chair and to Maureen over the weekend. Maureen, I'll have it to you on Monday if that works for you. Sure. And then the board will, you'll be kind of teed up to file with the town clerk on Tuesday for these more technical things that we just talked about. And then I'll also have proposed revisions, substantive revisions that we've talked about as well. So the board's vote for tonight was to file those minor changes for Tuesday morning. And then there'll be a second round of recommended changes that the board hadn't reviewed. We've talked about, but the board hasn't seen and you can deliberate on those when you meet on Thursday. Sure. So just to repeat, you will email me the draft of the minor changes tomorrow or by Monday? If it would be helpful to you, I can get them to you tomorrow if you were gonna file tomorrow. If you're not gonna file tomorrow, then I'd rather take the weekend. But that's up to you, Maureen. I'll do whatever you would prefer. It's up to Chris. How do you... I think it would be better to do it tomorrow. Yeah, I would too. Okay, then I'll, you know, if you gave me till about one o'clock, would that work? That's perfect. Okay. And just note that Monday is a holiday. Right, right. Yeah. Okay. I have a question. Yes. Since, as I think Christine just pointed out, that we didn't close the meeting, the hearing, would it be possible if Mr. Whitten gets the substantive changes to Maureen by, well, as soon as possible, do we have to wait until Thursday to then vote on them? Yeah, we, you guys, if you want, if people are agreeable, we could schedule, we could continue this to Tuesday, Wednesday, Tuesday or Wednesday. We don't need to have any previously announced meeting. We can have it. Yeah, because you're continuing the hearing. So as long as you make that motion to continue it. You just need to post the meeting. Just watch out for the 48 hours. Oh, yeah. So today's Thursday. So the earliest would be, I think, Tuesday? Well, you don't, It would be, No, Wednesday. I'm going to say Wednesday. Yeah. I think you might as well just wait till Thursday. Yeah. Yeah. All we get is a day. And I think you may want to spend, I don't want to rush people on the changes. Okay. So, but, and Bob, you had a point you wanted to make. So, I'm not the only new person here. And so maybe this question, maybe other people would feel it may be helpful. I would like to hear from staff or Steve or anyone who wants to comment what, and maybe this was said in the beginning too, but what are we, what are the major things that we're trying to do? I know one is that we're trying to get the document to reflect the fact that we no longer have town meeting, we have a town council. I know that Steve had mentioned about separating out each function into its own separate section for clarity, but while also getting, well, there's two things just to give you my own kind of new member of impression. A little bit surprised to hear that the ZBA has so much latitude at granting waivers. Coming in, I didn't think it was, had just like wave all these things. So I don't know if I'm misinformed about that, but it might be good to comment on that. And the other thing that I'm most interested in, in reviewing the document is what do we see as being our vulnerabilities? I'm kind of hearing like we feel vulnerable and the thing about the 10% affordable housing came up, I know a little bit about that. And Amherst isn't in that category of vulnerability, but according to the comments I'm hearing from John, makes me feel like we do have vulnerabilities that we need to protect ourselves. And so this is hard for a new person. So when I review this, I'm gonna depend a lot on a town staff and like Chris who's been here a long time and has a lot of experience and good sense of the town. A lot of my judgment will have to be guided by town staff, I think. So could somebody comment to those? You know, I think part of the, well, John, I'm gonna ask you or Chris to talk, but I think part of it is the waivers is unique to the comprehensive permit process. But John, go ahead. So the town is vulnerable only when it loses the safe harbor. So having the 10% subsidized housing inventory status is not permanent. When the new census comes out, your numbers are likely to go down because the 2020 census you've added over the past 10 years, units to the denominator. When you add units to the denominator, it changes the percentage of affordability unless you're equally adding the units to the numerator. So cities and towns that were at safe harbor may be below safe harbor when the census comes out. That does not look like it's gonna happen to Amherst but it's not exactly clear. So it's never a permanent status. Amherst is never permanently protected. So you wanna have your regs in place for both the possibility of falling below 10% as well as being able to work with an applicant to support the kind of affordable housing that Amherst wants, whether it's family housing or elderly housing or whatever Amherst's most specific needs are. So that's the basis for the regulations because you cannot say no to an applicant from applying. You can say no to an applicant after you go through the public hearing process. You wanna have regulations on the books that allow you to make informed decisions. I mean, one of the things about 40B is if you are at 10% now, you need to maintain the 10%. So you're under constant pressure. I'm not saying this is a negative or a positive thing, it just is a fact. Cities and towns are under constant pressure to maintain safe harbor. And the way to maintain safe harbor is to continually approve projects that count on your subsidized housing inventory. And of course, that's what Amherst has done successfully for so many years. So it's a bit of a bit of gamesmanship in the sense that you gotta continue to maintain that number. You never wanna fall below. Once you've kind of tasted the holy grail of being consistent with local needs, you don't wanna lose it. So having regs to support the projects that you wanna endorse are really, really valuable. So you're vulnerable only in the sense that the statute does not allow cities and towns to sleep on their laurels. You gotta keep producing. And this is a way to produce in a manner that's consistent with your planning agenda, in terms of where, how many, what type, who should be providing them? Is it the municipalities, is it the private sector, is it a nonprofit? So it really gives you a lot more leverage. So that's why I'm a big proponent for strong kind of broad local rules and regulations, especially in the condition that Amherst is in, which is you've achieved the holy grail, you're there, and now you wanna maintain it and protect it. Sir, I don't have the comment. I don't have that answer to your question. Really excellent question. I get it tomorrow. I had a quick question that I wanted to ask here. You said it's on the census, when that comes back that we'll know whether or not we maintained or lost our safe harbor. Assuming we, either way, however that goes, let's say we lose it, is it only 2030, the next census that we could get that back, so it would be gone for 10 years? This is the problem. It's not quite that black and white. If you lose it, you can bring it, get it back again through the board remembers the workshop that we did. When you get a comprehensive permit application, you'll have a chance to say, no, we've got it back again. So you won't have to wait till 2030, but the official census is where the denominator gets locked in, so it's really important. And that's why I say, based on the growth that Amherst has experienced since 2010, in a lot of other cities and towns, we're gonna see a lot of communities that have lost it, that had it, that lost it. They gotta now get it again, and you're gonna have to invoke it each and every time you get an application. Good question. Ms. Bressa. Chris? Yeah, so we do have some good news. Nate Malloy in the planning department did a study, I think it was about a year or two ago where he projected out to the future, given the developments that we knew were coming along, and he felt that we would be safe for several years into the future. We do have units being produced. We had 20% of the units at Beacon, at North Square. They would compensate for others who didn't include affordable units. So we had 26 units up there instead of what might have been 10%, which would have been 13 units. We've also gained units on University Drive, and we're gaining more with the Aspen Heights development on Northampton Road. So we're in the planning department, we're always thinking about this, but we feel reasonably comfortable that we'll be okay for the next few years. Great. Mr. Meadows, you had a question? It's simply the same thing. Can we get some statistics as to what those numbers are now? I appreciate that he feels that we'll be good for the next few years, but could we possibly get those so that we have a stronger idea of what those numbers are? Yes. Mr. Greeny, I think you had a follow-up question? Yeah. You're muted. Let me direct it at you, Steve. You've been on the board for a while, and Tammy and Joan. What do you see other than this affordable housing 10% issue, what other goals do you have in revising the regs that we, when we look at the document, should be looking for? Just to have like an outline, what are the important areas that we should be looking at? One of the things is readability is part of what I would choose to try to get. I remember when I first read, when I first joined, I tried to, I read these rules and regulations, trying to understand the role of the board, what its powers were, what the procedures were required, and I was confused. And I didn't know all the difference between the variances and the special permits and the comprehensive permit and the appeals to the building inspectors or building commissioners rulings. I didn't, and I didn't understand all that. So I think they're well-written, but I think they're not clear to an uninitiated person. They certainly were clear to me, and I've learned a lot in reading them. So number one, clarity. And I think you can get more clarity if you separate these intersections by function for one thing. I also think you can get more clarity if you lay out exactly what is required from developers and applicants. And especially in the comprehensive permit, there is a lot that can be, that we should require because we do have this extraordinary ability to weigh so much of the town's rules and regulations, so much of the law and regulation in town in granting this, that we ought to be very precise. And everybody ought to know, we ought to know and the developer and the public ought to know exactly what is required of the developer in bringing something to the ZBA for approval. I think that's very helpful. I think specifically laying out the pro forma for comprehensive permits makes a ton of sense. We don't normally get into that with unspecial permits or another kinds of efforts, but we do, we will want it here because that's part of, you know, these are not, the nature of the developer is not the same as the commercial developer we have in a lot of cases. So I think that this, the pro forma would be really important to have and I think that'd be a good change to make. And lastly, I think that by doing all this, it does help the public know exactly what we're doing, gives us greater credibility. If we have rules, process, clear process and procedures, we follow those, those process and procedures, provide for public comment and they provide for public input and they provide for us a basis for our deliberation. And I think those are all good. And that's what I would hope to achieve generally, you know, from a 30,000 foot standpoint. It looks like Hilda has raised her hand. Hilda? I knew about Wavles with 40B, but other than that, I had never heard of special permits being allowed to waive the zoning bylaw. In fact, I always thought that, you know, it's supposed to make something more non-conforming than it already is, unless you can invoke 9.2 and satisfy those requirements. So I'm just curious, if the zoning board can't give waivers except in a 40B, how can the planning board give waivers to zoning requirements when they give a planning board special permit? And since town meeting has been working on that issue of trying to get developers to put in affordable housing, but they pull, you know, if they get a special permit from the planning board, they're supposed to put in affordable housing, but they've been finding all kinds of loopholes around it. I'm just curious how there can be some kind of consistency in granting special permits between the two boards. Do you understand what I'm trying to say? That we never, as by eight years on the board, I never gave a waiver except on a 40B. And then along comes one East Pleasant Street and other buildings and those waivers for everything. Yeah, I don't know the answer to that. All right, you name it. And they're regular developments and they got around the requirement for affordable housing. So I'm just sort of curious how this works out politically. Well, I think, I bet Ms. Bresta has an answer for the difference in the powers of the two boards. We're really gonna focus on what we can do as the ZBA, but for point of information, can you answer Ms. Greenbaum's question? Excuse me, it's 11.28. They both have to satisfy, right? 11.38, I mean. 10.38. 10.38. 10.38, I'm sorry, that's the wrong section, sorry. It depends on the type of waiver that you're requesting. I know. There is in table three of section six of the zoning bylaw, is the dimensional requirements. As Ms. Greenbaum knows, there is a footnote A that allows the permanent authority to grant a special permit for waivers or modifications of certain dimensional requirements. And that does require a special permit from that particular board and what they're supposed to do is look at the dimensions and yeah, the dimensions of the surrounding neighborhood and try to match those to the best of their ability when they're considering whether to grant a special permit or not. So it is something that's written into our bylaw. The planning board doesn't just grant waivers kind of willy-nilly unless they're actually written into the bylaw as being something that they're allowed to do. Okay, interesting question, but not right on point to the things we have to deal with in this meeting. So I'd like to move on to any other comments or questions before we continue the meeting until next Thursday. Okay, I think we're all clear on what the next steps are. We'll have a draft from an outside council. We'll get that draft and first for the immediate changes tomorrow and we'll follow those as quickly as possible. Those are really non-controversial. The bigger changes, the more substantive changes we'll try to have on Tuesday. We'll take a look at them, make sure that that's something that I'm comfortable and the staff is comfortable in distributing and we'll distribute it to the rest of the members as soon as possible. All right, well, that concludes this part of the meeting. We'll move it to, we'll continue it to next. We have a motion. We have a, yes, to move it. Do we have a motion to continue the meeting until Thursday? So moved. Is there a second? Second. All in favor say aye. Aye. Aye. Any opposed? Motion passes. May I count that as a roll call vote? Oh, we have to do that. I'm sorry, you're right. This is Zoom rules and more ways than one. All right. And again, I think we're gonna, this would be the regular members. So board member O'Meara. I'm here, can you hear me? Yes. Yep. Mr. Langsdale. Aye. Ms. Parks. Aye. Mr. Maxfield. Aye. Mr. Judge votes aye. All right. We also have the public comment period that happens after, at the end of every meeting and hearing on matters that are not before the board tonight. So we have the opportunity for the public to make a comment at that. Are there any public comments? All right. Meetings continued until next Thursday. Thank you all. Go ahead, Christine. Say what time? One, six. Until six o'clock. Six p.m. Six p.m. Next Thursday. Do we need to do that? Go ahead. I was gonna say, I guess you guys should, unfortunately need to do another motion to adjourn. We adjourn, oh yeah, I guess we have to do that too. Even though we're continuing this, we have to adjourn it. Yeah. Emotion to adjourn. Is there a second? Second. All right. Roll call vote is required. Commissioner O'Mara, a board member, O'Mara. Aye. Member Langsdale. Aye. Member Parks. Aye. Member Maxfield. Aye. And the chairman will vote aye. Motion passes. All right. Thank you. See you all on Thursday of next week. Thank you all. Thank you. Thank you, everyone. Thank you. Bye. Bye-bye.