By Beth David, Editor
The Fairhaven Planning Board held a hearing on the proposed 40R Smart Growth Overlay District (SGOD) bylaw on 8/7/24. The application has been sent to the state. Town Meeting has to approve the measure by a simple majority vote, even though it is a bylaw, a change in the adoption rules that the state has passed to encourage the passage of 40R districts in municipalities. Other incentives include financial payments to adopt the bylaw and financial incentives based on the number of residential units created.
The 40R would allow for denser development in the district, and would allow for mixed use. The vision is to have commercial properties on the ground floor and residences above, although individual develpers would have the flexibility to have all residential or all commercial, or any mix they want.
Fairhaven’s proposed district would result in up to 1700 new residential units when the district is fully built out: 1,400 in the plazas district, and 300 in the waterfront district. In the plazas districts, the density would be 20 units per acre to 35 units per acre. In the waterfront district it would be 35 units per acre to 50 units per acre.
The district would create the zoning as “by-right” which means a developer only needs a building permit and has to build to the standards in the 40R bylaw.
Vice Chair, Patrick Carr, ran the public hearing part of the meeting. He and PB member Ruy DaSilva participated in the discussion, but said they would not vote on the bylaw because they both own property in the waterfront district that was added back in after the working group decided not to include it.
Attorney Adam Costa of Mead, Talerman and Costa, gave an overview of the process so far, saying it started about two years ago with former town planner Paul Foley. Mr. Costa and his firm would assist in preparing the application to go to the state. Dobson and Flinker have been the consultants working on the design standards for the district.
Mr. Costa said he had just heard from the state that the application is complete and so they are proceeding with a more comprehensive review of the application.
“So the wheels are in motion,” he said.
At the same time, the PB needs to go through the public hearing process to send the bylaw to Town Meeting, which is scheduled for November 19.
Dillon Sussman of Dobson & Flinker said now is the time to make sure the bylaw is what the board and town had in mind. The public hearing, he said, is to get input from the board and the public, to make sure the zoning meets the needs and vision of the town.
Mr. Costa said they will make revisions as the board wants.
“This is your community, not ours,” he said. “This is your town, this is your zoning.”
Each board member had questions and several members of the public also spoke. Most were skeptical of the concept, but some were supportive.
The reason for putting the waterfront district back in was largely put at the feet of a mysterious and unknown developer who allegedly wanted to build a 40B project. A 40B includes 25% low income housing, and developers can bypass local zoning to build them if the town does not have at least 10% affordable housing. Fairhaven needs 224 units to meet that threshold.
Town officials said former Town Planner Paul DiGiuseppe, who replaced Mr. Foley, put the waterfront back in to ward off the 40B. However, during the course of the hearing Mr. Costa said that a developer could still put a 40B in the overlay district, or in any other part of town.
Two people said it was obvious that the property in question was the former Park Motors property. And several people asked why the developer’s identity was being withheld. Mr. Carr said it was public information because emails were involved, so people could ask for it from the Town Clerk’s office. But he would not provide the name.
Mr. Sussman said he was not sure if the information was given to him in confidence, so he did not want to say.
The Neighb News had asked for the name of the developer back in July, but Planning Board Chairperson Cathy Melanson refused to provide it, writing: “The information on the developer is not public at this time. The developer had conversations with Paul D. and Angie. Paul made the discussion [sic] to add it back to benefit the town.”
Peter Perry, who was a member of the working group, said the goal of the 40R was to make walkable neighborhoods. He said younger people want to be able to live, work, and shop in their neighborhood. He said the reason for the high buildings was to provide views of the marsh areas. The highest buildings, six stories, would be in the plaza areas, not the waterfront.
He said the idea is to create a place like Newport and other places that people travel to and walk around.
John Hinds spoke in favor of the waterfront district being included, saying that the current condition of Middle Street is not something you take your visiting friends to see. But it could be.
It is prime real estate he said, and people should not focus on low income housing there. And developing the area will bring in more tax money.
Randall Villeneuve said Fairhaven is a “quaint little town,” and building a “monstrosity” on the waterfront will take the quaintness from it.
Mr. Carr asked why he said “monstrosity.” He said people should drive to Mashpee Commons and envision that on the waterfront.
Mr. Villeneuve said he envisioned buildings going across and blocking the waterfront from everyone.
Mr. Carr said words like “monstrosity” convolute the whole discussion.
He said the planning board will not allow “your quaint town to disappear.”
Michelle Costen noted that Mashpee Commons increased traffic a lot. She noted that it is not for middle class people, the shops are too expensive.
Mr. Carr said the Cape has different demographics than Fairhaven.
Mr. DaSilva said the 40R is a good idea. Growth is always going to happen, he said. A lot of people are being priced out of their homes, and now people have to pay a $100 trash fee.
Ms. Costen noted that the waterfront is not for affordable housing.
The question of a possible ethics violation because of Mr. Carr and Mr. DaSilva discussing and deliberating also came up. Mr. Carr and Mr. DaSilva both said they can take part in the discussions, but they cannot vote. They did not however, provide any proof of guidance from the Ethics Commission confirming that assertion. After the meeting, when pressed by the Neighb News, both Mr. Carr and Mr. DaSilva said they would check with the Ethics Commission, admitting that they had not checked with the agency before the meeting.
The board did not vote on the bylaw. They continued the hearing to Sept. 4.
The town has set up a web page for residents to ask questions about the 40R district, at https://www.fairhaven-ma.gov/home/news/questions-about-40r-were-here-help
In other business, the board also received three Open Meeting Law complaints from Wayne Hayward, all for the 6/25/24 meeting.
One recounts PB member Patrick Carr reading from his phone and referring to an Ethics Commission correspondence, but not entering the documents into the record. Mr. Carr then leads the charge to censure two members not in attendance. In the complaint, Mr. Hayward says the public and parties involved could not have contemplated the deliberations based on the agenda. He also alleges that the actions were intentional, premeditated. He asks that the board pay a $1,000 penalty, that the censure be reversed and nullified, and that Mr. Carr’s legal opinion procedure and the State Ethics Commission document be provided as part of the meeting minutes.
In another complaint, Mr. Hayward said the board discussed his family and the Fleurent family in a negative and accusing tone. He said he had no idea and was not invited to the meeting. He also said his emails to other town departments were deliberately mis-characterized and introduced in a planning board meeting.
“The specific June 25, 2024 agenda item which refers to me, is still unknown to me,” writes Mr. Hayward in his complaint. “I do not hold elected office. Mr. Carr seemed to possess and refer to my private emails as suspicious and unethical. My email was being used as evidence of some undisclosed violation, yet I was unable to responde in real time to correct the record, as there was no agenda item about me. There are no suspicious or unethical emails provided and this improper discussion is intentional abuse with little regard to Open Meeting Law requirements.”
Mr. Hayward asks that a penalty of $1,000 be imposed for repeat, intentional violations.
In the third complaint, about the same meeting, Mr. Hayward writes that the PB meeting was “inundated with members’ repeatedly whispering during the live-televised meeting.”
He writes that both PB member Sharon Simmons and chairperson Cathy Melanson whispered to each other and covered their mouths.
“Interrupted, intentional whispering over twenty minutes, seemingly over strategy of what was to come,” wrote Mr. Hayward. “This spawned other Planning Board members to openly begin side-bar deliberations of their own as they whispered messages to the majority. Whispering and side-bar deliberations seem to have become entrenched with the board, as if this is normal and accepted protocol during meetings.”
He asks that a $200 penalty be imposed and that members attend Open Meeting Law trainings.
The board voted to have Ms. Melanson work with Town Counsel to draft responses to the complaints.
The meeting is available on demand at fairhaventv.com
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Click here to download the 08-15-24 issue: 08-15-24 ChangeOfCmd
Click here to download the Planning Board OML Complaints by Wayne Hayward: PB_OML_Hayward
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