By MARK SARDELLA
WAKEFIELD — A zoning amendment to limit the height of any building in the Assisted Living Overlay District to 30 feet cannot be adopted at the Nov. 17 Regular Town Meeting after the Planning Board last night declined to schedule a special meeting in order to hold the required public hearing.
Under state law, a zoning amendment cannot be adopted by Town Meeting until after a public hearing and a recommendation of the Planning Board. The Planning Board has 65 days to schedule a public hearing.
Shelter Development currently has a petition before the Zoning Board of Appeals to construct a 137-unit Brightview Senior Living facility in the Assisted Living Overlay District, which includes properties currently owned by the Fraen Corporation at 338 Main St. as well as 11, 15, 17 and 19 Crescent St. According to plans submitted by Shelter, portions of the proposed facility would reach a height of 60 feet.
Town Planner Paul Reavis told Planning Board members last night that due to the posting and notice requirements for a public hearing, the earliest that a hearing could be scheduled would be Nov. 17 – the same night as Town Meeting. Board members felt that even holding a public hearing a few hours before Town Meeting would not allow for sufficient time to hear and give due consideration to all testimony and make a recommendation. Public hearings are often continued over multiple sessions.
Planning Board Chairman Matthew Lowry noted that the fact that the petition was submitted so late was the reason for the tight timeline.
On Oct. 7, 2014, a citizens’ petition with 10 signatures was filed by attorney Alan Grenier that would amend the Assisted Living Overlay District portion of the Zoning Bylaw so that “no such Special Permit or any other permit may be issued which would provide for a maximum height of a building of more than 30 feet.”
Under state law, the Board of Selectmen must refer the proposed zoning amendment to the Planning Board for a public hearing. The selectmen did so at their next scheduled meeting on Oct. 15. They also placed the proposed amendment on the Nov. 17 Regular Town Meeting Warrant.
The Planning Board’s next meeting was last night, where they considered their options for scheduling a public hearing at their next regularly scheduled meeting on Nov. 25 (after Town Meeting) or trying to schedule a special meeting beforehand.
Town Planner Paul Reavis reminded the board of the legal requirements for giving notice of the public hearing. Notice must be published in a newspaper of general circulation once in each of two successive weeks. The first publication cannot be less than 14 days before the day of the hearing. Reavis said that logistically the soonest that he could get the legal notice in the newspaper would be next Monday, Nov. 3, which would mean that the earliest that the public hearing could be held would be 14 days later on Monday, Nov. 17, the same day as Town Meeting.
Paul Semenza chaired this portion of the meeting after Matthew Lowry recused himself as he is a member of the Unitarian Universalist Church, a direct abutter of the proposed senior living complex. Semenza asked the proponents about the intended effect of the proposed bylaw change.
Attorney Alan Grenier of Topsfield identified himself as representing the 10 voters who filed the petition for the zoning change. He approached the board along with Patrick Bruno of Mackenzie Lane.
Grenier explained the Town Meeting article that included the zoning amendment would give citizens an opportunity to vote on whether or not they wanted a building of the height proposed by Shelter in the Assisted Living Overlay District.
Brian McGrail, the attorney for Shelter, objected to Grenier’s statement, pointing out that the only matter before the board was setting a date for the public hearing, not the merits of an application currently before the Board of Appeals.
McGrail further argued that it might not be appropriate for the Planning Board to schedule a special public hearing to consider a bylaw amendment specifically aimed at one project currently going into its third hearing before the Board of Appeals. He maintained that the petition could have been filed much earlier to meet with the normal filing and notice requirements.
Board member Christopher Fowlie said that the board was being put in the uncomfortable situation of being “forced” to schedule a special meeting.
Grenier claimed that the group that he represents did not request that the zoning amendment appear on the Nov. 17 Town Meeting. “The Board of Selectmen did that of their own volition,” Grenier asserted.
Planning Board member William Spaulding said that he would prefer to have the public hearing at the board’s next regularly scheduled meeting of Nov. 25.
Semenza said it was not fair to expect the board to hold the public hearing on the same night as Town Meeting and have only a couple of hours to take testimony and make a recommendation on the same night.
Spaulding made a motion to schedule the public hearing for Tuesday, Nov. 25. The vote was 3-0 in favor of the motion, with Spaulding, Fowlie and Semenza voting in favor. Member William Damore abstained and Lowry had recused himself.
Absent a public hearing and a Planning Board recommendation beforehand, Town Meeting legally cannot vote to adopt the proposed zoning amendment.