The articles, sponsored by the board, are being proposed by the Pier, Access and Shoreline Study (PASS) Committee, the group created at the 2002 Town Meeting to study these issues.
The first article aims to create a Waterfront Scenic Area Overlay District, which consists of six areas in town where abutting waterfront land is viewed from a public road, along which there is an open and unobstructed view of the ocean, harbor, bay or estuary.
The second article proposes a set of amendments to the zoning bylaw to address new pier construction and repair, including those within the scenic areas. Portions of this article include specific criteria for suitability of residential piers, reconstruction of a pre-existing pier and shared piers.
In October, members of the PASS committee presented what they viewed as a single article to planning board members for their feedback. Bill TenHoor, chairman of the committee, said that after conversations with Town Counsel Robert Troy, the committee was advised to split the article into the two parts.
Many of the planning board’s concerns at Monday’s public hearings concerned the language used in the two articles, or rather the lack of language used.
Planning Board Chairman Peter Donahue expressed his concern that the restrictions in the proposed bylaws only affected piers and inquired what the town would do if a homeowner wanted to construct a brick wall in one of the scenic areas.
PASS committee member Peter Roveto said that piers were the only structures addressed because that was the charge given to the committee.
Donahue then asked if the group took into consideration recommendations by the board given in October to address adherence to state and federal regulations in their criteria for piers. Additionally, he asked committee members why, in some sections of the proposed amendments to the zoning bylaw, the term “pier” is mentioned, but it is not specified whether this means a private or public structure.
TenHoor said he believed previous recommendations were addressed and Roveto added that the language regarding piers is strictly for private, residential piers and that when the article was split, some of that implication may have been lost.
Given that the proposed changes to the bylaw are for private piers, Donahue expressed his concern that language in the bylaw, specifically a part which says the width of the pier shall not exceed four feet, violates the Americans with Disabilities Act (ADA).
“This is not a building code, but civil rights legislation,” said Donahue. “If I’m a private resident and want to build my pier to the appropriate standards, this [language] prohibits me from doing so ñ it prohibits building something handicapped accessible. So I’m enacting a bylaw in direct conflictÖ[and creating] a civil rights violation.”
A majority of the board agreed with Donahue and worried about the probability of the town being sued as a result of these amendments to the bylaw being passed as they are currently written.
Donahue suggested that Troy take another look at the language included in the second article and give his opinion on a next step before the board recommends any approval at March’s Town Meeting.
J.R. Kent of Bayside Marine pointed out that language in the section of the bylaw amendments that discuss those piers within the Waterfront Scenic Area are restricted to a width of three and half feet, which Donahue pointed out was a violation of state building codes.
“We cannot enact a bylaw that conflicts with state regulations,” said Donahue. “These are the same questions I asked you a few months ago and I still see conflicts with ADA and state building codes.”
Planning Director Christine Stickney said that Troy will at some point have to give his opinion on what to do regarding the proposed articles and on whether any edits create substantial changes from the initial articles, which may put them in jeopardy for March.
The board voted unanimously to continue the public hearings on both articles ñ because they do apply to one another ñ to March 1 at 7:45 p.m.
Upon a recommendation by Kent, members of the PASS committee agreed to make residents who live in the proposed Waterfront Scenic Areas aware of the continuation so they could express their opinion on changes that directly impact them.
Presiding over both hearings were Donahue, George Wadsworth, Aboud Al-Zaim, Robert Wilson and Robert Kimball.
In other business at Monday’s meeting, the planning board:
*Unanimously approved recommendation of two articles regarding affordable housing. One of the articles seeks to amend the section of the bylaw that deals with inclusionary housing to insert and/or amend language on issues such as maximum incomes and selling prices, restrictions on resale and fees in lieu of affordable housing units. Donahue said that this article puts back in inclusionary housing requirements anticipated in the bylaw as presented by CPZBIC last year. An amendment at last year’s Town Meeting eliminated the pay out option for builders and another reason this language was omitted by town voters was that there was no place for collected fees to go. The second article recommended by the board seeks to authorize the Board of Selectmen to submit a petition to the state’s General Court to create an “affordable housing trust fund” for these fees. If passed, the article would grant the selectmen this right to petition, but the actual creation of the fund would require another Town Meeting vote.