This is a memo that was dropped off at Town Hall yesterday.
CODDER 02806
AND
THE SAGA OF STRATEGY 5-8
(“Strongly Negotiate New Comprehensive Permits”)
OR
SOLVING THE MYSTERY OF “STEP- UPS”
1. On April 18th, 25th, and May 2, 2012 Legal Notices were published in the Barrington Times announcing Public Hearings to be held by the Planning Board on on May 1, 2012, and Town Council on May 7, 2012. The legal notices were for the purpose of “discussing and approving revisions to the Housing and Neighborhoods Element of Appendix IV of the Town’s Comprehensive Plan, regarding the aggressively negotiating comprehensive permits affordable housing strategy”.
2. In a memorandum dated May 2, 2012 The Town Planner advised the Town Manager of changes proposed for the language of Strategy 5-8 of the Barrington Comprehensive Community Plan (BCCP) (Letter attached). The most notable of these changes was the following: “Comprehensive permit proposals that provide 50% or more LMIH”( Low and Moderate Income Housing) “will be assessed for density increases of ‘one step’ in the zoning district. The exact density bonus will depend on the specific proposal”. This means, essentially, that in an R25 zoned area (2 residences per acre) such as the Sowams Nursery, density bonuses of “one step” could permit the greater density of an R10 zone thereby allowing 4 units per acre.
Another point of great interest in the Town Planner’s May 2, 2012 memorandum is the notation concerning he town Planner’s ultimately successful resistance to including in established bullet “principles” the “availability of …wastewater capacity”. The principle ended up stating only the availability of “water and sewer infrastructure’.
3. On May 7, 2012, the date established for the Town Council meeting on the BCCP Amendment, the Town’s agenda included at item #18 “Approve amendments to Comprehensive Community Plan”. However, the Town Council President stated at the outset that the meeting could not be held because of a “posting error”. As a result the meeting was rescheduled for May 14, 2012.
4. On May 14, 2012 the Town Council reconvened its postponed meeting. The Town Agenda contained 28 items for discussion including item #18 “Amendments to Comprehensive Permit Strategy in Comprehensive Community Plan”. The minutes of the meeting show that the amendment to Strategy 5-8 “described in Phil Hervey’s” (the Town Planner) “memorandum of May 2, 2012” passed unanimously”. (a video of the meeting is available online at the Town website, Town Council meeting videos, at timeline 1:26:29. It is erroneously contained in the 6/4/12 citation).
5. In a letter dated April 10, 2013 CODDER 02806 submitted a lawful “request for documents” to the Town of Barrington and obtained a copy of all Amendments to the BCCP for the years 2011 and 2012. We could find no official source that recites the language contained in Mr. Hervey’s memorandum of May 2, 2012. There was, however, a footnote to an unrelated Amendment in Appendix IV (Amended May, 2012) to Strategy 5-8 reading as follows: “Text of Strategy 5-8 Revised per amendments adopted by the Town Council, May 14, 2012.” The amendment of May 14, 2012 can only apply to the Town Planner’s memorandum. (See site http://www.barrington.ri.gov/complan.php).
Conclusions:
1. R.I. General Laws at Section 45-22.2-5 requires that “each municipality shall ensure that its zoning ordinance and map are consistent with its comprehensive plan”. That did not happen with Strategy 5-8. The passage by the Town Council of Strategy 5-8 constituted a constructive amendment to the zoning laws without public notice of such change as required by Article X of Barrington’s Zoning law (see also this attachment)
2. The purported Amendment to Strategy 5-8 is in direct opposition to Barrington Zoning Law at Article III Section 185-6 (G) which defines an R25 zone as a district that “contains areas of the community which are partially or fully developed at an approximate density of two dwelling units per acre, and areas which are planned for future development at this density.” The passage by the Town Council of Strategy 5-8 constituted a constructive amendment to the zoning laws without public notice of such change as required by Article X of Barrington’s Zoning law.
3. The purported Amendment to Strategy 5-8 is also in direct opposition to Article IV (B) of the Zoning Law which prohibits “Multifamily dwelling” in an R25 zone. “Multifamily dwelling” is defined in Article II of the Zoning Law as “A building consisting of three or more separate dwelling units and/or townhouses, row houses, apartments and/or condominiums. The passage by the Town Council of Strategy 5-8 constituted a constructive amendment to the zoning laws without public notice of such change as required by Article X of Barrington’s Zoning law.
4. The language of Strategy 5-8 is permissive and discretionary in its applicability since permit proposals must be:
(a) “assessed” for “one step” increases, and
(b) the “exact density bonus will depend on the specific proposal”.
5. The Town Planner’s Memorandum dated May 2, 2012 appears to be the only official version of an amendment to Strategy 5-8 containing language regarding “step ups”. And it appears that there is no published Amendment to Strategy 5-8 concerning “step ups”.
6. The Town Planner’s Memorandum dated May 2, 2012 successfully resisting any reference to “wastewater capacity” flags this as an item deserving of careful study by the Planning Board. Wastewater capacity is of paramount importance to all neighboring communities.
7. Since the town of Barrington is virtually “built out” (BCCP, pg.5 “overview”) and the Hampden Meadows area is a densely populated community consisting almost exclusively of R10 and R25 privately owned, detached, single family residences, and in light of the fact that the Town of Barrington has had representation on the Board of the East Bay Community Development Corporation (EBCDC) going back as far as 2002, we cannot help but conclude that the amorphous 5-8 Amendment was designed specifically for use concerning the East Bay Community Development Corporation’s plan for the Sowams Nursery, and, if so, such action might well constitute constructive “spot zoning” by amending the BCCP rather than rezone the real target area - Sowams Nursery.
8. The Town Council meeting of May 14, 2012 was not properly publicly noticed in the Barrington Times (as it was for the May 7, 2012 meeting). The Barrington Times has been the accepted vehicle for legal public notices concerning all amendments to the BCCP. Any actions taken by the Town Council on May 14, 2012 should be nullified.
9. The Language of the legal notices published in the BarringTimes on April 18 and 25 2012 and May 2, 2012, for the Public Hearings on May 1 and May 7, 2012 do not meet the standard established in State law which requires a notice “specifying the nature of the business to be discussed” (Chapter 42-46-6 (b). (The word “specify” is defined in the Random House Dictionary of the English Language as “State in detail, give a specific character to).” The language used in the Barrington Times was that hearings would be held ‘with the purpose of discussing and approving revisions to the Housing and Neighborhoods Element and Appendix IV of the town’s Comprehensive Plan, regarding the aggressively negotiating comprehensive permits affordable housing strategy”
10. The language also runs afoul of the RI. Comprehensive Planning and Land Use Act Section 45-22.2-8(3)(c)(1)(iii) requiring public notice in a newspaper which shall “Contain a statement of the proposed amendments to the comprehensive plan that may be printed once in its entirety, or summarized and describe the matter under consideration”.
When Towns undertake notification to the public of matters that affect them directly State laws require clarity and transparency of content. No community member could reasonably have foreseen or understood what the intent behind the cryptic and generalized notices provided by the Town involved. On the contrary, the published notices suggest a get-tough attitude toward contractors with whom the Town will “aggressively negotiate”. The Amendment to Strategy 5-8 passed by the Town Council on May 14, 2012 should be nullified for lack of proper notice.
11. The public notice concerning the May 1, 2012 meeting of the Planning Board was published in the Barrington Times on May 2, 2012 – a day after the meeting took place. Therefore no proper notice was given for this meeting in accordance with the provisions of Section 45-22.2-8(c)(1): “Prior to the adoption of, or amendment to, a comprehensive plan, notice shall be given of the public hearing by publication of notice in a newspaper of general circulation within the city or town at least once each week for three (3) successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held, at which hearing opportunity shall be given to all persons interested to be heard.
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