City Council

HEARING BEFORE THE CITY COUNCIL, June 7, 2004 Hearing opened at 9:00 P.M. with Councillor Marchand, Chair of the Legal Affairs Committee presiding. Hearing continued from May 17, 2004. All members were present. Attorney Cutler from Kopelman & Paige was also present. The following PETITION was the subject of the hearing. 114-04 Joseph Gentili, Capobianco & Gentili, PC on behalf of Ten Registered Voters: Amend Article I, entitled “General Regulations”, Section 22-4 of the Zoning Ordinances by deleting the definition of the term “Mixed Use Development Project (MUDP”) and replacing it with a new definition; amend Article II, entitled “Use Regulations- Industrial Districts” by deleting Section 22-24.2.5.1 in its entirety, and renumbering section 24.2.5.2 as a new section 24.2.5.1; amend Article II, Section 22-23.4 entitled “Commercial Districts”, by deleting it in its entirety; also amend Section 22-26, “Table of Uses, Mixed Use Development Project” by deleting the words “On Sites over 20 acres”. Councillor Marchand said that at the last meeting of the Planning Board there was not a quorum so they could not make a recommendation on this petition. He said they would be continuing their public hearing until after the Planning Board hearing. William Taylor, 104 Highland Avenue asked if the public would have a chance to speak at the next public hearing. Councillor Marchand said they would. HEARING BEFORE THE CITY COUNCIL, June 7, 2004, continued Arthur DiGeronimo Jr., 294 Hill Street said that the City Council should concentrate on the use definitions. He said that if you eliminate Special Permits on sites over twenty acres, industrial landowners are not aggrieved because they can always petition the City Council for rezoning. Mr. DiGeronimo said that for some reason, in 2003 the definitions changed without a study. . He said he thinks it is a little bit duplicitous on the Mayors part to suggest another. He said all we ask is that we go back to the 2001 definitions. Woody Haas spoke in favor of this petition and said that mixed-use is a speed pass for development. Barry Tuttle, 50 Old Willard Road said he supported this petition and agreed with everything that Jay DiGeronimo said. John Gravelle, 51 Parkdale Avenue spoke in support. He said that he is absolutely positive that the citizens of Leominster are opposed to mixed-use and are not in favor of this type of growth. Joyce Brodkin, 55 Cloverleaf Road spoke in favor. She said that this is an opportunity for the City Council to make a difference and do something right. Alan Bernstein, 68 Scenic Drive said that mixed use should not be allowed in neighborhoods where there is no infrastructure to support it. Kathy Morrell, 50 Old Willard Road said she is for development but not for this type of development. She said that Leominster needs industry not more retail or restaurants. Ms. Morrell said that this large retail development near residential properties will only lower the value of their properties. Bernie McCaffrey, 100 Ridgewood Drive spoke in support. He said that it is clear that in 2001 the intent of the City Council for mixed-use development was to bring industry into undeveloped areas in the city. He said that what we got was retail and restaurants. Karen Allaway, 85 Ridgewood Drive spoke in favor and asked who is going to pay for a new study that the Mayor is asking for. Sarah Sabatini, 41 Parkdale Avenue spoke in support. She said that her neighbors and herself are considering selling their homes. She said she will be at every meeting so she stays aware of the situation and can relay the information to her friends and neighbors. P.J. Foster, 30 Vista Ave spoke in support and said she agrees with everything Ms. Sabatini said. She said that she will be part of a root group that is forming to oppose all the growth that is taking place. No one spoke in opposition. Councillor Dombrowski asked how we are doing on getting a history on this zoning. Councillor Marchand said that he got that information from the Planning Department and he is making it available for review in the City Clerks office. Councillor Nickel asked Attorney Cutler if we were change the zoning ordinance would the use still be grandfathered in for three years. Attorney Cutler said that when she told him that would happen on the last zoning change, that was on an ANR plan which falls under state law. She said that it is very fact specific and she does not like to give the recipe out on how to protect oneself from zoning. Attorney Cutler said that state law provides several mechanisms to grandfather existing uses or uses that have begun because they have received a special permit or a building permit before the change in zoning was advertised. Councillor Rowland asked how we would protect ourselves on the legal front if we eliminate mixed-use over twenty? Attorney Cutler said that the state legislature has protected many landowners from zoning changes and has provided much mechanism for them to do so. She said she cannot give us a fool-proof way of preventing that. Attorney Cutler said that generally speaking when a special permit is granted and on appeal it is not yet issued. She said there is still a major legal issue and it is possible that the permit could be held retroactively. Councillor Dombrowski said he is looking at this on two levels, the first being the traffic, congestion and public safety issues. He said the next level is what is the best long-term ordinance for the city. Councillor Robert Salvatelli asked if the voters could pass this zoning by referendum as they are doing in California? Attorney Cutler said we do not have zoning by referendum in Massachusetts. She said there is a small provision where there can be a referendum on a zoning amendment that is passed but not on a Special Permit decision. Councillor Robert Salvatelli asked if Councillor Rosa’s petition passed, could there be a citizens referendum? Attorney Cutler said if the Council were to adopt an amendment to the ordinances that changes the permit granting authority to the City Council there is a provision that says “that in a city or town with a council with fewer than twenty-five members if there is filed with the clerk, prior to final action, a written protest against such change stating the reasons why, duly signed by twenty percent or more of the area of the land proposed to be included in the change or the area of the land immediately adjacent extending 300 feet therefrom, no such change of an ordinance should be adopted except for a three fourths vote of said council” HEARING BEFORE THE CITY COUNCIL, June 7, 2004, continued Attorney Cutler said that once you vote it cannot be undone but prior to the vote it can require a three fourths vote rather than a two thirds vote. Councillor Robert Salvatelli said that it would mean that it would require seven votes rather than six. Councillor Rosa asked Attorney Cutler to take a look at Section 8-2 and 8-3 of the City Council relative to citizen’s referendum and let them know if this would apply to a vote taken by the Council. Attorney Cutler said she would look into whether or not this city ordinance would supersede state law and would get back to the Council with her findings. Councillor Rosa said that mixed use should be taken away from all remaining industrial land. He said that he does not think it was the intention of the City Council to allow mixed use on all industrial land. Councillor Freda said that as she recalls, when the 2003 zoning amendment was presented to the City Council, they were told that it was just a housekeeping issue. AT 10:02 P.M. HEARING CONTINUED TO A DATE TO BE ANNOUNCED. Ann B. Mahan, City Clerk and Clerk of the City Council