SELECTMEN NOTEBOOK: Selectmen Call For Special Town Meeting On December 16; Detox Issue Will Come To A Head

WILMINGTON, MA – On October 30, 2017, a petition article was submitted to the Town Clerk which seeks to direct the Selectmen to call a special town meeting for the purpose of considering a change to the Wilmington Zoning Bylaw to address substance abuse detox facilities.  The Town Clerk certified that the proponents of the petition obtained in excess of the required 200 signatures from registered voters.

As a consequence, the Selectmen have 45 days from receipt of the petition (December 21) to call a special town meeting.

At last night’s Board of Selectmen Meeting, Selectmen voted to (1) open the special town meeting immediately, (2) close the special town meeting warrant on Wednesday, November 8 at 4:30pm (close of business), and (3) hold the special town meeting on Saturday, December 16 at 10:30am in the Wilmington High School Auditorium. If the High School’s Auditorium is unavailable, the meeting will be held in the Middle School’s Auditorium.

The board originally agreed to hold a special town meeting on Tuesday, December 12 at 7pm in the Middle School’s Auditorium, but after some residents expressed concern about holding the meeting on a weeknight, and in a smaller auditorium than the high school’s, Selectmen changed course.

Follow The Transparent Process

Here are some key dates to watch:

  • Selectmen open the Special Town Meeting on November 6
  • Selectmen close the Special Town Meeting on November 8
  • Warrant finalized to provide to Selectmen on November 9
  • Selectmen sign Special Town Meeting warrant and provide copy to the Finance Committee on November 13
  • Selectmen to submit zoning article to the Planning Board for review by November 20
  • Selectmen have meeting posted in each precinct by November 21
  • A constable will endorse warrant and transmit original to the Town Clerk by November 21
  • Planning Board will publish notice of its Public Hearing twice on November 15 and November 22
  • Finance Committee will publish notice of its Public Hearing on November 22
  • Planning Board and Finance Committee will hold its Public Hearing on November 30 (This is where residents can make their views known.)
  • Planning Board and Finance Committee will get its recommendations to the Town Clerk
  • Deadline for new voters to register for Special Town Meeting is December 1
  • The town will hold a Special Town Meeting prep meeting or conference call with key officials (e.g., Town Clerk, Town Moderator) during the week of December 4
  • The Special Town Meeting will be held on Saturday, December 16 at 10:30am in the WHS Auditorium

Surprise! Town Counsel Says Article Will Likely Be Struck Down By State Attorney General

The Board of Selectmen previously asked Town Counsel John Foskett’s legal opinion on the petitioned article. On Monday night, Town Manager Jeff Hull read Town Counsel’s opinion on the petitioned article into the record.

Selected highlights include:

“After review of the article and of the Attorney General’s June 12, 2017 letter refusing to approve a zoning bylaw enacted by the Town of Millbury, it is our opinion that the petitioned article, if adopted by 2/3 vote at Town Meeting, is virtually certain to be disapproved.”

“The Massachusetts Zoning Act, G.L. c.40, sec. 3 provides that a municipality may not enact a zoning bylaw which ‘discriminate(s) against a disabled person.’ The Attorney General noted that persons suffering from drug addiction are ‘disabled persons’ within the meaning of the law.”

“The Attorney General ruled that ‘by signaling out substance abuse treatment providers for additional land use restrictions not imposed on similar uses in [the] Town the byl-law facially discriminates against disabled persons in violation of G.L. c. 40A, sec. 3.”

“The Attorney General’s ruling was based on Massachusetts Law. Although the disapproval was therefore not based on the federal ADA and FHA statues, the Attorney General did point out that the Millbury bylaw may well violate those provisions, as well. The same applies to the petition article… Even if such a bylaw is adopted, its enforcement would likely be barred by a federal court if challenged.”

Selectman Mike McCoy was not happy with the opinion.

“The Town Counsel has basically assassinated everything about this article,” exclaimed McCoy. “Town Counsel is making a prediction about what the Attorney General will do. Let voters do their job and say what we want for our town. Then let the lawyers get to work.”

“Our article is very different from Millbury’s article. The Millbury decision doesn’t apply to our article,” said McCoy.

“I don’t proclaim to have esquire at the end of my name, but I understand how municipal government works,” he added. “Town Counsel has to protect our town.  When residents vote, he may not like what you for vote for, but he has to honor it and fight for it on our behalf. It’s not for him to come and assassinate this thing immediately… He has bias and we may need to hire a special town counsel [to defend this article if it passes].”

Town Manager Jeff Hull disagreed with McCoy’s assessment.

“The Town Counsel’s role is not to convince the Attorney General to accept whatever is adopted by Town Meeting. That’s simply not the case and has never been the case,” said Hull. “At Town Meeting, when voters enact a zoning bylaw change, the change is sent to the Attorney General by the Town Clerk. It’s left to the Attorney General’s staff to make the judgment if it’s legally compliant with their guidelines. There’s no lobbying on behalf of the town or town counsel.”

“Town Counsel’s role is to provide legal advice,” continued Hull. “The fact that he’s suggesting, based on a past case, that it’s highly likely that this bylaw, if passed, will be deemed discriminatory, is not an opinion based on personal preference. He’s simply saying that based on the law he reviewed in looking at the Millbury case, it’s highly unlikely this will be sustained by the Attorney General’s Office.”

McCoy questioned why the board didn’t receive an opinion of the Town Counsel’s zoning lawyer, instead of the town’s general counsel.

“Town Counsel is noting the underlying principal that Millbury treated a protected class as separately and distinctive from other people seeking treatment,” explained Hull.  “The same premise can be said of this article – people who are going tor cancer treatment, autism, any number of medical maladies, currently – under our zoning – those treatment facilities can be in R10, R20, R60, and general business, but the proposal here is to carve out one category of individuals seeking medical treatment and [exclude] their facilities from those areas of town. That’s the problem that potentially arises.” 

Surprise! Mike McCoy Introduces 2nd Article For Special Town Meeting Warrant

Selectman Mike McCoy, a lead petitioner of the initial article, introduced a second article he asked Selectmen to consider for the Special Town Meeting.

The article reads:

To see if the town will vote to amend section 3.4 of the Wilmington Zoning Bylaws and associated Table 1 principal use regulations as follows, or take any other action related thereto.

Amend Section 3.4.6 under ‘Classification of Governmental, Institutional and Public Services Uses’ (Zoning Bylaw at Page 13, Section 3.4.6) to insert at end of the existing text of 3.4.6 “Hospital and Nursing Homes” before the period punctuation mark the words “including any Detox Facility as defined as the use of any land, building or structures for the purpose of providing detoxification and treatment of alcoholism, drug addiction or substance abuse services.

Also amend Table 1 Principal Use Regulations, (Zoning Bylaw at page 10, Bylaw under “Classification of Governmental, institutional and Public Services Uses”) by amending the line of text for 3.4.6. “Hospital and Nursing Homes” to state as follows: ‘3.4.6, R-10, No, R-20, No- R-60, No, O55-No, N/M-No, NB-No, GB-No, CB-No, GI- SP, HI-SP, LI/O-No, Site Plan Review-R, GWPD’

In other words, hospitals and nursing homes – which would encompass detox centers – can only be located in General Industrial zones or Highway Industrial zones, with a special permit.  McCoy noted existing hospitals and nursing homes in town would be grandfathered.

“This article is a winner,” said McCoy. “There’s no discrimination against detox if we treat everything under one roof.  Now Lahey Clinic or Winchester Hospital could move to an industrial zone [if they choose]… and provide detox. This would be a big time, huge win for the community.”

“This is a better article than the other article he’s already submitted,” said Selectman Ed Loud. “This would have the muster to get past the Attorney General… Based on my experience on the Board of Appeals, this is a better article than the one that was submitted earlier today.”

Selectmen voted, 3-2, against adding the proposed article to the special town meeting warrant.  McCoy and Loud were in favor, while Greg Bendel, Kevin Caira, and Mike Champoux voted in opposition.  Selectmen had just received the proposed article minutes before McCoy asked for a vote.

“I’ve seen this for two minutes. We don’t typically engage in planning based on a 2-minute review,” said Town Manager Jeff Hull.

Town Planning Director Valerie Gingrich declined to offer an opinion as she hadn’t had a chance to see the proposal in writing.

“I get the spirit of where you’re going here, and you might be on the right track, but I can’t wrap my brain around it and am not prepared to support at this juncture,” said Selectman Mike Champoux.

“I’m prepared to vote no since I just got this,” said Selectman Kevin Ciara. “I’m having a difficult time when I’m reading with what you’re describing here verbally…I wish we got it earlier.”

McCoy said he’ll get the article on the warrant by collecting the necessary 100 signatures before Wednesday’s 4:30pm deadline.

“I’ll be outside of Market Basket before the milkman and breadman on Tuesday morning [to gather signatures],” said McCoy, who got a jump start after the meeting when at least 25 attendees signed his petition.

Surprise! Selectmen Add 3 Warrant Articles Regarding Banning The Sale Of Recreational Marijuana  

Selectmen unanimously agreed to add three articles to the Special Town Meeting warrant revolving around the issue of selling and manufacturing recreational marijuana.  The town wants to look at the issue further and develop a greater level of clarity on how the state is going to roll it out

The first article would modify the town’s current zoning bylaw to restrict the sale of marijuana products by eliminating the opportunity to sell them in any zone.

The second article would modify the inhabitants bylaw to essentially do the same thing.

The third article, serving as a “back up,” would extend the moratorium on recreational marijuana sales in town from June 30, 2018 to December 31, 2018.

“Since the state’s regulations haven’t been established yet, I believe the best course of action is to prohibit it,” Hull explained at a recent Selectmen’s Meeting. “In the interim, when regulations are established and we understand how they work and what the implications of them are and see them in other communities, if the desire in the future is to then dial back and allow on a limited basis, then perhaps it could happen. I’m advocating for the more cautious approach.”

Why not wait until the Annual Town Meeting in the spring?  “If the moratorium is authorized at the Special Town Meeting, it’s more likely that the Attorney General will accept it,” said Town Manager Jeff Hull.  “It’s less clear what the Attorney General would do once the Cannabis Control Commission establishes its regulations in March or April, before our Annual Town Meeting.”

Other Notes

Selectman Mike McCoy made a full disclosure, contacted the State Ethics Commission, and filed the necessary paperwork that allows him to participate in the process as a Selectmen, even though he was a lead petitioner.

McCoy pointed out that Town Manager Jeff Hull amended his projections for a cost of a Special Town Meeting.  Hull initially quoted a figure of $7,500-$8,000 at a prior meeting, but was using a figure for Annual Town Meeting.  The revised figure was $1,775 for a weeknight meeting.  Now that the meeting is moved to a weekend, time-and-a-half will need to be paid to staff, so that number will rise, but it still won’t approach the initial cost estimate.

Based on a conversation with the Secretary of State’s Election Commission, McCoy believed the 45-day clock to call a Special Town Meeting should have started on November 1, when the petition was delivered to the Town Manager, not on November 6 at the meeting. The point ended up being moot because date selected for the Special Town Meeting fit in both timelines.  Hull responded the the AG’s Office usually defers to local Town Counsel’s opinion on a matter like that.

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