May 19, 2008 Select Board Meeting

Monday, May 19, 2008, 6:15 p.m. Music/Language Room at the Middle School

Present:  Select Board members Gerry Weiss, Anne Awad, Alisa Brewer, Diana Stein and Stephanie O’Keeffe; Assistant Town Manager John Musante, Town Manager Larry Shaffer


Mr. Weiss announced that the Memorial Day Parade would be held Monday, May 26th and would start at 9:30 a.m. at Spring Street on the Common, and proceed up North Pleasant Street to the War Memorial pool. 

Public Comment

Denise Barberet asked about the status of posting Select Board meeting minutes.  Mr. Weiss said that the Select Board is working on that and hopes to be caught up and have a new system in place by the end of June.  Ms. Brewer noted that the unapproved draft minutes are always available in the Select Board office.

Article 26 – Sunderland Road Rezoning (6:20)

Mr. Weiss noted that this issue had already been discussed by the Select Board, that the vote had been deferred until more information was available, and that property owner Kenneth Bergstrom was present now to address the proposed rezoning.  He also noted that representatives from Sunderland were in attendance.  He noted that the Planning Board and other parties had been heard from in the original discussion, and that in the meantime, the Agricultural Commission and Conservation Commission had sent letters expressing their opposition to the rezoning, and that the Board of Selectmen in Sunderland had sent letters expressing concern about the process and the proposal.

Mr. Bergstrom responded to questions from Select Board members.  Questions and points were raised regarding:

Sewer viability issues:  Mr. Bergstrom said that he would not be allowed to develop anything for which the sewer needs could not be met, and that as such, that issue shouldn’t be a consideration in the rezoning question.

Use of the ponds:  Mr. Bergstrom said they remain in active aquaculture use, and that he intends for that to continue.

Use of the Bioshelters facility:  Mr. Bergstrom said he can already remove the existing structure and use the property for house lots without any zoning change, and hence, opposing the change in an effort to maintain that structure for a possible future use similar to Bioshelters would be misguided.  Regarding past issues with the people who ran Bioshelters, he said that his perspective on their tenancy and details of their business relationship with him differed from that which they have represented.  He acknowledged the current state of the property as an eyesore, and said that it has been slow and expensive to remove the equipment and materials left by the Bioshelters venture.

Viability of site for a new aquaculture venture:  Mr. Bergstrom said he has marketed the site for sale on eBay and through colleagues in the aquaculture community, and that he has not found an interested buyer at the price he is seeking.

The site being inconsistent with the Village Center concept:  Mr. Bergstrom said that the Village Center zoning was proposed by the Planning Department as best matching the uses he envisions for the site.  Planning Director Jonathan Tucker concurred, and said that the abutting zoning in Sunderland and the general development of that area is a mix of residential and commercial uses.  Mr. Tucker said there was no intent to establish a Village Center, but to respond to current nearby zoning and development.

Spot Zoning:  Mr. Tucker and Mr. Shaffer said that they had corresponded with Town Counsel who expressed confidence that the proposed rezoning would not be considered “spot zoning” because the area in question is large, because the proposed zoning occurs within a context of nearby zoning and development, and because it would result in public benefit, not just benefit to the property owner. 

Mr. Bergstrom said that the proposed zoning to allow a mix of office and residential uses would make it easier for him to develop the property, and would yield more tax benefit for the Town, as compared to the single family homes and duplexes current zoning would allow.

Mr. Shaffer said that he had met with the Bergstroms and looked at the site.  He said that there was a better likelihood for improving the property if another appropriate use for it were found, rather than waiting to find an investor who would seek to redevelop it as an aquaculture facility.  He said that the current site represents economic and functional obsolescence for the Bergstroms.

Dana Roscoe, Chair of the Sunderland Planning Board, said that he had communicated with Amherst’s Planning Department last fall and made them aware that he and others from Sunderland would want to be included in discussions on this matter, but were not contacted again when this issue came up again over the winter and spring.  He said that a notice had been received regarding the public hearing on the matter, but that that piece of mail was not opened until a Sunderland Planning Board meeting held after the hearing date had passed.  He and Thomas Fydenkevez, member of the Sunderland Board of Selectmen, said that the process of considering this zoning proposal had not been adequately inclusive and that its potential impacts on Sunderland were not considered. 

Mr. Weiss said that he found compelling  both the potential to increase the tax base and to find a better use for the land, but was concerned about the process and would be in favor of referring the article back to the Planning Board so that “substantive” conversations with Sunderland could occur.

Ms. Stein said she would vote against the proposal because of concerns raised by the Agricultural Commission; because the proposed zoning was inconsistent with the Master Plan; because the area is already heavily trafficked and she would not prefer to see additional development there; and because of water and septic concerns and the site’s proximity to a conservation area. 

Ms. Brewer said that while she regrets the lack of engagement with Sunderland, the property owner’s interests and that the potential economic gain for the Town was not affected by that process, and said she thought that referral would lead to more discussion and involvement, but not a different outcome.  She expressed concern that the Agricultural Commission had not contacted the property owner before formulating its opinion.  She said she was surprised to find herself in support of the proposal. 

Ms. Awad said she was not in favor of referral, and thought the issue should be dealt with now.  She said she would not support the article due to concern about septic issues and how those issues might affect agriculture in that area, and said she was in agreement with the Agricultural Commission’s assessment, which she said was based on protecting the interests of farming. 

Mr. Bergstrom responded to concerns about septic saying that the fish farm business created far more waste product than would a residential community; that there are ways to process waste on site; and that if the Town were to allow connection to the Town sewer, that would be at his expense, not the Town’s.  He said that under his proposal, the area available for agricultural use would not be decreased.

I said I had been initially skeptical, believing the proposal to benefit only the property owner and not the town, but that in reading the various materials I had changed my mind.  I said that I found the preservation of farmland argument to not be relevant, because the choice is not between leaving the land vacant versus rezoning it, but rather, a choice between the development that might occur there under the current versus the proposed zoning.  Regarding the Village Center concept, I said that that was a nomenclature problem, because the area is definitely not a Village Center and doesn’t fit any of the Village Center characteristics as far as being pedestrian friendly, etc., but that Village Center zoning is not about how to create a Village Center, but rather, about the kinds of uses that would be acceptable in a Village Center, and that the point of the proposal is that those uses would be acceptable here as well.   I said that looking at the list of uses under current zoning and proposed rezoning, several uses would actually become more restrictive, and all that would become less restrictive would change from being “prohibited” to being “allowed by Special Permit,” which is the beginning of a whole new process of public hearings and more for addressing concerns of abutters, sewer issues, traffic, and so forth.  When comparing the proposed uses to the uses allowed under Sunderland’s abutting zoning, I said that Sunderland’s were all equal (also requiring a Special Permit) or less restrictive (allowed by right.)  I said that the alternative development would be individual houses with individual driveways on to the busy Route 116, which would seem more dangerous than the single-driveway concept that is part of the mixed-use plan Mr. Bergstrom is seeking.  I said that consideration of all those elements led me to support the proposal. 

Mr. Tucker apologized for not realizing and following up on Sunderland’s request for involvement, and said that although all legal notification requirements had been met, he regrets the process had not been more inclusive.  He said that given that an earlier conceptual plan had indicated a maximum of 8 residential units to be developed with the rezoning, that had not seemed to represent a meaningful potential impact on Sunderland.  Per my point about the individual driveways, he said that the wetlands on the property would probably require a single shared driveway among any houses built there. He said that the more significant impact of single-family house development on the land is that lots with frontage would be carved out, and the lot lines would extend through the ponds, dividing up their ownership, and making it less likely that agreements could be formed to allow agricultural use of the ponds.  He said that a more flexible, clustered development of the property would keep all the ponds under a single ownership, increasing the likelihood of leasing them for fish farming or growing aquatic plants, and better protecting future agricultural uses of the ponds.

Mr. Weiss said that my assessment of the use comparisons seemed correct.  Mr. Roscoe said that it was not correct that apartment complexes were allowed in Sunderland’s C1 zone, and that any development of more than 8 residential units was prohibited there.  Mr. Tucker said that the use category for apartments does not specify the number of units, and that the chart compared the ability to create multi-family, multi-unit buildings and said that in both communities that is by Special Permit. 

The vote to recommend Article 26 failed in a vote of 2 in favor, 3 opposed, and Ms. Brewer and I voted in favor. 

Article 8 – Budget Amendments  (7:26)

Finance Director John Musante presented the motion to be made under Article 8, transferring unspent FY08 funds totaling $254,000 from the General Government, Planning-Conservation-Inspections and Community Services budgets to the Public Safety and Public Works budgets, to cover shortfalls in both.  He explained the various conditions contributing to the unspent funds (leaving positions vacant, transferring parts of two salaries to grants,) and shortfalls (police overtime, fuel costs, fire vehicle maintenance, winter plowing and sanding.)

Mr. Shaffer said that given the $18 million General Fund budget, to have so few overages was impressive and a testament to Town workers.  He said he was proud of this result.

The Select Board voted unanimously to recommend Article 8. 

Article 17, Motion C – Portable Classrooms

Mr. Musante said that the bids being received for the portable classrooms for Marks Meadow Elementary Schools were more favorable than had been expected, reducing the anticipated costs of the project to $300,000 from $400,000, thus decreasing the amount to be borrowed by $100,000. 

The Select Board voted unanimously to recommend Article 17, Motion C.

Article 35 – Petition Requesting $25,000 for Amherst 250th Celebration  (7:35)

Barry Roberts, Chair of Amherst’s 250th Anniversary Celebration Committee, presented the budget that committee has created to project the income and expenses associated with the year-long celebration in 2009.  He spoke about the fundraising plans, including major sponsorships, and said that the group is looking at a total budget of $101,500, reduced from original projections of close to $150,000.  He requested that up to $25,000 of that come from the Town.  He said that some planned projects will only cost money, while others will be targeted to raise money, and said that all money raised will go into a general celebration fund.  He spoke about the general fundraising challenges in the current economic climate, and of the committee not wanting to infringe on annual events that seek funds from local businesses and individuals, and of Hadley’s commitment to provide some funds for its 350th celebration, also occurring in 2009.  He said that if fundraising success exceeds projections, less of the Town’s appropriation would be used, and the unspent amount would be returned to the Town.   He said that if an amount in excess of $25,000 is unspent, the additional money might be used for a scholarship or similar purpose. 

Mr. Shaffer said that he will work with the committee to make the celebration as efficient as possible.  Ms. Brewer, the Select Board liaison to the committee, spoke of how carefully that committee had worked to arrive at its budget figures, being mindful of the economic climate, as Mr. Roberts had mentioned.

Mr. Weiss said he was troubled about approving this kind of appropriation from reserves in the wake of rejecting increased money for police officers, LSSE fee subsidies, library hours and more.  I said that I agreed with Mr. Weiss’ sentiments, and that I considered this to be akin to a wedding or other special occasion that a family budget might face, and that for such special occasions, you might put the expenses on your credit card or seek a loan.  I said it would be unfortunate if rejecting this appropriation were to compromise a celebration that only happens once.

The vote to recommend Article 35 was unanimous.

Article 34 – Amend Town Government Act – Criteria for Town Property Use

Mr. Roberts said that he would move to dismiss Article 34.  The Select Board voted unanimously to support dismissal.

Article 33 – Petition for LEED Standards

As we were packing up to end the meeting and go to Town Meeting, which had already begun, Mr. Weiss said we needed to either not take a position on Article 33, which we had initially discussed last week and received a revised motion on earlier in the day, or we would need to make a procedural motion to postpone the article if it were to come up at Town Meeting this night.  Ms. Brewer noted that this was on our May 21st agenda, but that the petitioner could not be present then, and that the article might come up sooner.  Ms. Stein, Ms. Awad, Ms. Brewer and Mr. Weiss all indicated a willingness to vote on the article, citing the revised language as being just a recommendation to the Planning Board.  I said that I wasn’t satisfied that the new language addressed my concerns about exploring the idea of creating environmental standards for construction, versus requesting a specific outcome.  Several people said that it was just advisory and could not compel action by the Planning Board, and that Town Counsel concurred with that assessment. 

The vote to recommend Article 33 was unanimous.

The meeting adjourned at 7:47.  The next Select Board meeting will be held at 6:15 p.m. on May 21st, in the music/language room at the Middle School.


O'Reilly said:

Comment on Select Board Member Awad who is moving to South Hadley.

neil said:
“We are confident that we are doing the right thing.”

Ms. Awad and Mr. Hubley’s self-confidence has not been questioned. What has been questioned is their willingness to deal openly with their intention to move to South Hadley and retain public office in Amherst town government.

The fundamental issue is whether moving their primary residence to South Hadley and selling their Amherst property undermines the authority of their voter registration in Amherst. Their voter registration in Amherst is a legal requirement to run for and to keep elected office in town government. It is notable their May 23 Amherst Bulletin letter does not address this specific and fundamental requirement in any way: You cannot find a reference to “voter registration” in their letter. Nor can you find any specific declaration of intention to live in Amherst or South Hadley. Instead the letter serves up reassurances – reassurances by Awad and Hubley, reassurances by the town manager and reassuring hearsay by town counsel. This is a question of some importance. If the town is going to rely on the legal opinion of town counsel, then let’s see it in writing.

The declaration of homestead on their new South Hadley home, and the residence requirement stated on their South Hadley mortgage - that the South Hadley property be their primary residence - are two facts in evidence of their intention to relocate. A third fact in evidence is putting their Amherst condo up for sale. Three pieces of evidence point to an intention to relocate and yet Awad and Hubley maintain a steadfast refusal to discuss their intentions, citing it a personal matter.

Normally, it is a personal matter but if you are a public official who must be a town resident to hold town office then it is no longer strictly a personal matter. The longer Ms. Awad and Mr. Hubley treat it as a personal matter and not as a matter of interest to the people they represent, the longer residents and the paper will continue raise the question. Ms. Awad and Mr. Hubley will continue to object to the way they been treated but the questions won’t stop until they offer clear answers to direct questions.

“We reluctantly respond to the negative press directed at us over the last several weeks” […]

“The public should consider carefully the meaning of such attacks on people who serve the town they love. Anyone reading such matter in a newspaper should consider carefully what might be the truth of the matter.”

“Other town officials have resigned their positions or left town without being excoriated in the press. Such misleading representation, such violation of privacy, is discouraging to many who might otherwise consider running for office.

“In this the paper has contributed to the highly divisive political atmosphere that characterizes our town.”

Even after all the questions have been raised, and Ms. Awad and Mr. Hubley’s decide it is time to respond with their May 23 letter, they offer nothing more than an indirect and ambiguous assertion about their intentions:

“Our decisions about moving to South Hadley will be guided by our commitment to the community of Amherst.”

Pardon me, but could they be any more indirect and opaque about their intention? Residents want to know if they intend to relocate to South Hadley and keep public office in Amherst. Next question: If that is their intention, then do residents have the right to ask them to step down when they live in South Hadley and their Amherst condo is sold? The answer is yes or no. Let’s have it.

Richard Morse said:

Here is how the volunteer aspect of elected service in Amherst generates, perhaps understandably, a sense of entitlement.

Anne Awad and Robie Hubley have put in hours upon hours of time as elected officials in this town. They trudged off to meeting after meeting while the rest of us were home with our families, our TVs, and our adult beverages. They have been paid next to nothing to do so.

Therefore, at this point, in their minds, they owe us nothing.

Richard Morse
Precinct 7 Town Meeting Member

Robert Phillips said:

Except that many of us doing the questioning are members who have gone to the meetings and not sat at home watching TV. Ms. Awad should know by this time with her previous experience at keeping things from the public, that it is better to be forthcoming and open from day one, instead of appearing to be hiding something yet again.



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