Oh Boy Letters!

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Published in the Salem News, 11/7/24

MBTA zoning is anti-democratic overreach by state.

To the Editor,
There's no fight over affordable housing in Hamilton; we are on schedule with our Affordable Housing Inventory and Housing Production Plan. There are NO affordable housing components attached to this MBTA 3A Act; - publishing that there is, tells me that you have no understanding of what you are writing about.
This 3A Act is not "straightforward" -  housing will be market rate by right, if a town votes for it. Please show some respect to your customers, a dignified people with intelligence. Telling readers that there is no mechanism to force towns to build is a red herring; it is insulting as we know developers are waiting in the wings for those tax incentives to build, build, build. Once those 3A Districts are identified, they are under strict State control in perpetuity.
Towns are voting "no" on the MBTA 3A Act because housing and development lobbyists wrote the guidelines, but the Legislature did not read it. There were no public hearings, no mark-ups, none of it was transparent. There was no regular order, no due diligence, and no transparency, the opposite of what democracy demands.
This overreach is a radical anti-democratic move to strip Town voters of their rights to elect their own local leaders who will work on their behalf. People expect their votes to count; disenfranchising voters and attempting to strip away our checks and balances, bylaws, rules, processes, statutes, and procedures is illiberal and dangerous.

Darcy Dale,
Hamilton 

Editor’s Note: Darcy Dale is also an elected member of the Hamilton Planning

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Dear Wenham Select and Planning Board Members,

I applaud your decision to delay the 3A Town Meeting vote until after the SJC decision is made. I have read Sec. Augustus’ letter to the Select Board in response to the Select Board’s letter explaining the cancellation of the Nov. 16 Special Town Meeting vote on 3A.

In his letter, amongst the threats he makes of withholding our own money from us, he also asks the Wenham Planning Board to continue the process of holding public hearings and submitting a pre-adoption review application.

I would like to share with you several letters that were sent to our surrounding MBTA communities by EOHLC in response to their pre-adoption review applications. It is very disconcerting to me that in each case EOHLC has told these communities that their 3A district plans, created and submitted with the help of state consulting agencies, will not be approved as currently drafted, and even if the EOHLC desired changes are made, approval may still not be granted.

Let me begin with Winthrop. Winthrop's Town Council, which is enthusiastically, majority pro-3A, has drafted a 3A district for compliance with the assistance of a state approved consultant and which exceeds the required acreage. Even so, EOHLC has cautioned that Winthrop’s wording isn’t concise or stringent enough to meet compliance.  I have attended many Select Board and Planning Board meetings and have heard both boards say that we will not lose local zoning control. However, reading these letters really shows me that EOHLC’s decisions will supersede local control, including caps on the number of occupants per dwelling unit and even state environmental laws. We have specifically asked about these issues at town board meetings and have been told time and again that local Wenham zoning would prevail. Reading these letters, that certainly does not seem to be the case.

I have attached EOHLC letters to nine different MBTA 3A communities, and I am sure if I had the time to keep searching, I would find many more. I have no doubt that if Wenham were to go ahead and file a pre-adoption review application, Wenham would receive its own version. 

I urge each of you to take a very close look at EOHLC’s responses. I hope you will take the time to read each letter and see the extent of EOHLC control.  I hate to think what will happen to Wenham if our town boards continue to submit to EOHLC to the point where we lose local control of our zoning forever. 

Sincerely,

Marjorie Gajeski

Porter Street, Wenham, MA

EOHLC-Winthrop-Pre-adoption-Review-Feedback-Letter

Shrewsbury Pre-adoption Review Feedback 20241010_signed (1).pdf

north_reading_pre-adoption_feedback_2-23-24_signed (1).pdf

belmont_pre-adoption_review_feedback_20241011_signed (1).pdf

Danvers-3A-Pre-adoption-feedback-1-4-2024 (1).pdf

Sterling-Pre-adoption-feedback-11-27-23_Final (1).pdf

Manchester EOHLC Pre-adoption Review 10-1-24 (1).pdf

eohlc_letter_re_mbta_communities_-_duxbury_request_for_12_month_extension (2).pdf

Needham Pre-adoption Review Feedback 07252024 (1).pdf

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Resident Letter/Email:

The following email below is written by a Wenham resident sent to the Wenham Select Board to be publicly reviewed by the Board Wednesday September 11, 2024.

To: Michelle McGovern 

Subject: FW: Wenham - follow Hamilton"s example - Reject 3A Thursday, September 5, 2024 3:59:55 PM 

Date: Thursday, September 5, 2024 3:59:55 PM 

From: Deirdre Pierotti <DPierotti@wenhamma.gov>
Sent: Tuesday, September 3, 2024 8:44 AM
To: Steve Poulos <SPoulos@wenhamma.gov>; Joseph Pessimato <JPessimato@wenhamma.gov>; Margaret Hoffman <MHoffman@wenhamma.gov>
Subject: Fw: Wenham - follow Hamilton's example - Reject 3A 

From: angus.west@comcast.net <angus.west@comcast.net>
Sent: Friday, August 30, 2024 9:38 AM
To: Karen Anger <kanger@wenhamma.gov>; Gary Cheeseman <GCheeseman@wenhamma.gov>; Peter Clay <PClay@wenhamma.gov>; Deirdre Pierotti <DPierotti@wenhamma.gov>; Ben Tymann <Ben Tymann>; Benjamin Tymann <BTymann@wenhamma.gov>
Cc: 'Elizabeth C. West' <elizabeth.west@comcast.net>
Subject: FW: Wenham - follow Hamilton's example - Reject 3A 

To: Wenham Planning Board: 

We as well as a rapidly growing number of our neighbors in Wenham (and Hamilton) are greatly troubled by the proposed 3A high density rezoning now before the towns. We will vote against it, and encourage you to do the same. 

We do not think this proposal adequately assesses the harms/costs of this high density zoning to our towns, nor properly weighs them against the relatively limited threats/costs the state has made to try to force it upon the towns. 

Like Milton, it is time for Wenham to stand up for local control. The state SJC will rule soon on Milton’s appeal; and Wenham should not act before the case is decided. Several concerned local citizens have filed amicus briefs in that proceeding. You should, too. 

The covert midnight passage of the second major zoning imposition by the state on Aug. 1st – the so-called “Accessory Dwelling Unit” rule (applicable for towns with 1 acre or more minimum zoning ) -- shows how quickly the camel’s nose of state zoning overrides has come into our locally controlled tent. 

In the state’s misguided effort to increase housing supply, they risk destroying the rural character of outlying towns such as Hamilton and Wenham. They also impose more unfunded mandates, especially if we were required to build additional schools, roads, public safety and sewage systems to support the large population surge. With our already sky high tax rates, this will drive them higher still. 

We will vote against 3A and strongly encourage you to do the same. Represent your fellow citizens in Wenham, not the developers! 

Angus West
Wenham 

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Hamilton resident sent to the Hamilton Select and Planning Board. It is an excellent summary of why Hamilton must support Milton as it is being sued by our MA Atty. General. The good people of Milton, MA are being sued by the State because they voted. They voted. The Hamilton Select Board will meet 8/5, 7pm @the Library. Please come on and all to show our support for Milton. MILTON, YOU DO NOT STAND ALONE! Beth Herr, Hamilton, we thank you! Excellent job!

Ms. Herr's email below:

From: Beth Herr <bethduris@gmail.com>
Sent: Thursday, August 1, 2024 2:33 PM

Subject: External Email Warning Request to Elect Board regarding the Amicus brief for Hamilton
To: Caroline Beaulieu <c.beaulieu@hamiltonma.gov>; Thomas Myers <tmyers@hamiltonma.gov>; Bill Olson <bolson@hamiltonma.gov>; Bill Wilson <bwilson@hamiltonma.gov>; Rosie Kennedy <rkennedy@hamiltonma.gov>
Cc: Joe Domelowicz <jdomelowicz@hamiltonma.gov>; John McGrath <jmcgrath@hamiltonma.gov>; Marnie Crouch <mcrouch@hamiltonma.gov>; Emil Dahlquist <edahlquist@hamiltonma.gov>; Jonathan Poore <jpoore@hamiltonma.gov>; William Wheaton <wwheaton@hamiltonma.gov>; Darcyll Dale <ddale@hamiltonma.gov>; Pat Norton <pnorton@hamiltonma.gov>; Patrick Reffett <preffett@hamiltonma.gov>; Jeff Austin <jaustin@hamiltonma.gov>

I am interested in knowing the status of Hamilton’s amicus brief on the town plans to file on behalf of Milton. I know the deadline is quickly approaching. I acknowledge this is a long email and I appreciate you taking time to read it and consider the points that I share. The issues below are some of the areas of concern that I would like us to consider addressing in the town's amicus brief.

In early 2023, I went to a meeting where the MAPC did a presentation and shared the history and implementation of 3A. Since then I have been following this issue very closely.

I do believe our town has a responsibility to its current residents over future residents. It just makes sense. Current residents are what create and maintain the town. They pay taxes. They volunteer. They are the community. Putting the needs of future residents before the needs of those already in town is absurd. It is like on an airplane. In the event of an emergency, put your oxygen mask on first before helping someone else. We must have a strong town to be able to provide a good, healthy community for future residents.

My biggest concern that has arisen in all of this is the state suing Milton voters FOR THEIR VOTE. The lawsuit may not be worded that way but when you boil it down that is what is happening. Voting is a basic right. Being sued over our vote, threatens the stability of our state. This is incredibly disturbing. This is a complete overstepping of the government.

Equally as disturbing is how a fourth category of grant money appeared in this law. A couple months ago, I asked our state representative repeatedly how this fourth category of grant money was added to the statute. Originally, there were only 3 grants mentioned in the law. I have not received an answer to that question at this time. This is a deeply troubling issue, if this statute did not go back through the appropriate legislative process to amend the statute. These first two issues are bigger than 3A. These are foundational issues to the rights of our citizens and the future functioning of our state.

Now onto 3A, Let us remember that our state legislators clearly choose to use the word guidelines (which does not carry the force of law) instead of regulations. Our own town Planning Board has heard John Whitten, town legal consultant, share those very words in the past year. If legislators want to give the EOHLC regulatory authority then this statute should go through the proper legislative process to change it. I am also concerned that the guidelines in some cases do NOT comply with the statute. The statute says these zones must be within .5 mile of the train station. There is NO provision in the statute to have zones outside of that .5 mile radius. In the guidelines, there is an interpretation that some zones may be outside of that .5 mile zone. This inconsistency combined with the ability for the EOHLC to change the guidelines at any time makes complying with guidelines very difficult. The guidelines have already changed many times as they look to implement 3A.

My understanding is the letters of compliance that some communities have received have a caveat that even though the city/town is currently in compliance that can change at any time. This seems, if we agree to comply that we could have to continue to jump through additional hoops to stay in compliance. It sounds exhausting.

For example, what is keeping the EOHLC from requiring the town to address sewer issues. You may think that they won't do that but my understanding is this is what happened with 40R. Originally, sewage issues were the responsibility of the developer. Then that changed to being the town's responsibility. This is a material change in circumstances, if true. This is concerning because this change was made after the 40R zoning was approved. People vote for these zoning changes but they don't realize the interpretation or guidelines can then change in a material way which could cost a city or town millions a year. Would people have voted for the zoning change if they knew the responsibility of sewage was the city's/ town's responsibility? Probably not. So is the zoning vote valid if there is a material change in the interpretation and application of guidelines?

If this is precedent, it is deeply concerning for any town considering the approval of 3A. This would mean voters are voting on changes to zoning but underlying changes (by virtue of guidelines being changed) could happen without a new vote. It would be more appropriate for the voters to vote to give the state, in this case, the authority to do whatever they want because once that door is opened and zoning is changed that is in essence what the voters are agreeing to. Let's be honest with the voters up front. It feels reminiscent of taxation without representation. There is no representation once the zoning changes.

As I said, we hear with 3A it is only zoning and the developer will have to deal with the issues like sewage. We are a town of septic systems and if the town had to be responsible to put in sewers in part or all of the town this could cause undue burden on current residents.

Zoning changes have traditionally been by a 2/3 majority because zoning changes can materially alter a town. The simple majority adopted in this statute is concerning. To repeal this same zoning would require a 2/3 majority. That does seem unfair. The percentage vote to approve or repeal should be the same percentage.

I believe 3A conflicts with Home Rule which is why the state is asking us to hand over our zoning authority afforded us under Home Rule. I believe our town should maintain the rights over our zoning. In talking to those in Gloucester, the Harbor Overlay District can NOT be changed without state approval first. I believe it is important to maintain control over our local zoning as afforded us through Home Rule.

I am wondering how the recent overturning of the Chevron doctrine by the U.S Supreme Court would affect the powers of organizations like the EOHLC. I believe the legislators need to bring clarity to this statute. The guidelines seem arbitrary and capricious. I would argue that the EOHLC is legislating with their guidelines. This is evidenced by the AG suing over noncompliance with the guidelines (not regulations).

Then we have this question. Could 3A be an unfunded mandate? YES. It's like dominoes so many things are triggered once a town agrees to 3A zoning. In Hamilton, our yearly budget is around $35 million. With unlimited occupants and unlimited bedrooms, I think it is reasonable and conservative to assume one child per unit. This would add about $15 million in new educational costs EVERY year. We would need another new school on top of what is already being considered to educate all these new students. I already mentioned possibly needing sewage which could cost millions too. Then, there's water. The regional water that some want us to tie into has crumbling infrastructure. So that would tie our town into helping to carry the costs of improving that infrastructure. And as a friend said to me, all the other towns around us will also be subject to increased population so why do we think joining a regionalized water program will help. We will all be competing for the same limited resources (soon to be more limited). And again by regionalizing we give up local control. I have not seen a situation where giving up local control has benefited our town, including but not limited to financially.

All this amounts to a substantial shift for our town. Being required to adopt 3A could cost our town millions in initial and yearly ongoing costs. This ill-conceived law that allows unlimited bedrooms and unlimited occupants gives cities and towns no ability to plan for the town. These variables are too uncertain. Given that MA is a right to shelter state, it is not unthinkable that we could be inundated with people in these units. This is an undue strain on cities and towns as well as the state. As it stands now, there is no ability for a town like Hamilton to be able to do proper risk assessment. Then if the guidelines are allowed to continue to change and move, it only makes risk assessment more difficult, if not impossible. One day the town could be in compliance and the next day they are not. This is deeply concerning. The town would be giving up their authority over that zoning. Once we vote for it, they can do whatever they want without coming back to the voters. We would essentially be giving away your control for a limited upside and an UNLIMITED downside. I believe it is forced taxation and an unfunded mandate. As we know historically Hamilton has received very little grant money ($28,000/one time). No business person would take the deal that is being offered to our town, $28,000 one time versus $15 million (more or less... could be a lot more) a year in new expenses, just for educational costs alone. The state is losing money which means less grant money will be available. Would you take this deal for your own household? I don't think so. This could bankrupt our town. I do not believe I am not overstating this.

I would welcome dialogue with any of you on this issue if you have questions, thoughts, etc.

Thank you for your time and consideration. I am very grateful for each of you and your service to our town.

Beth Herr

Hamilton