Category Archives: Regulations

laws and regulations

Shipping channels: Navy collides with commerce

Recent collisions in the western Pacific between ships of the U.S. Navy and commercial ships highlight a continuing hazard for U.S. military: unsound practices when navigating ocean shipping corridors. During the first eight months of 2017, two DDG guided-missile destroyers from the Seventh Fleet and one of its CG guided-missile cruisers collided with commercial ships.

Both DDG destroyers were badly damaged, and 17 Navy sailors aboard them died. The much larger commercial ships with which they collided suffered no injuries to crew and were able to continue operations at sea. Commercial shippers tend to employ locally experienced captains or pilots to navigate congested shipping corridors.

The U.S. employs Navy personnel mainly trained to navigate open ocean. It is at a disadvantage around busy shipping corridors. To compensate, rules require multiple personnel on duty for navigation and require ship captains on duty during known hazards. On the day of the second major collision in 2017, Chief of Naval Operations Adm. John Richardson ordered an emergency “stand down” and a comprehensive review of operating safety for the entire Seventh Fleet.

Information available to the public during the third week in August shows differing circumstances for the two major collisions. The later one, between the USS McCain and the Alnic MC commercial oil tanker, occurred within a narrow, internationally recognized shipping channel at the east end of the Singapore Strait. The earlier one, between the USS Fitzgerald and the ACX Crystal container ship, occurred in coastal waters of Japan, regulated as open seas.

USS Fitzgerald collision: The USS Fitzgerald collision occurred about 10 miles southeast of Shimoda, Japan. Located near the mouth of Sagami Bay, that sea zone is crossed by around 400 large merchant ships a day, according to the Coast Guard of Japan. Like USS Fitzgerald and ACX Crystal, many of them are headed toward or away from the port of Yokohama, just south of Tokyo.

The zone does not have regulated shipping channels, yet the Tokyo Islands of the Izu chain–Oshima, Toshima, Nijima and Kozushima–form a corridor narrowing to about 15 miles in width when approaching Sagami Bay from the south. That is narrower than most of the famously hazardous Malacca Strait between Malaysia and Sumatra.

The USS Fitzgerald was sailing generally southwest, close to the center of the corridor between the Izu Peninsula and the Tokyo Islands, when it was speared on the starboard side by the ACX Crystal container ship, sailing generally northeast through the corridor. A more cautious course for the USS Fitzgerald could have taken it a few miles closer to Shimoda and the Izu Peninsula, among most of the ship traffic heading generally southwest, although possibly at a slower speed.

Crediting the MarineTraffic service, the New York Times published a tracking video showing the path of the ACX Crystal around the time of collision with the USS Fitzgerald. That was assembled from transmissions via shipboard Automatic Identification System transponders, received through the MarineTraffic network. The Times tracking video does not show the other ships in the area. The Times stated there were no transmissions available from the USS Fitzgerald.

The Times video showed the ACX Crystal making a sudden change in direction and halting, then going on but soon returning to the site of the sudden change, then continuing toward Yokohama. Spearing the starboard side of the USS Fitzgerald suggests that Fitzgerald failed to yield according to international conventions of maritime navigation. The U.S. Navy refused comment until it finishes an investigation.

USS McCain collision: The USS McCain collision occurred about 9 miles east of Tanjung Penyusup–at the southeast extreme of the Malaysia mainland–shortly after entering the shipping channel for the Singapore Strait. Some news reports confused the Singapore Strait with the adjacent, much longer Malacca Strait. According to the local association of ship pilots, the Singapore Strait is traversed by about 150 large merchant ships a day.

Both the USS McCain and the Alnic MC were headed generally southwest, toward Singapore. The strait, which narrows to less then four miles, has an internationally recognized shipping channel that is monitored by Malaysia, Singapore and Indonesia. It is the chief ocean bottleneck for shipping between east Asia and India, the Persian Gulf, east Africa, the Middle East and Europe, via the Suez Canal.

The course of the USS McCain, at the time it was speared on the port side by the Alnic MC oil tanker, remains unclear. Both ships should have been headed in nearly the same direction, generally southwest, after entering the east end of the shipping channel.

Crediting the MarineTraffic service, the London Daily Mail published a tracking video showing the path of the Alnic MC around the time of collision with the USS McCain. That was assembled from transmissions via shipboard Automatic Identification System transponders, received through the MarineTraffic network. The Daily Mail tracking video shows many other commercial ships in the area, but it does not show any military ships, including the USS McCain and a Malaysian Navy ship some news reports said was nearby.

At 00:48 into the video (21:19:40 GMT), several ships are sailing southwest at about 9 to 12 knots on the north side of the channel. Others are sailing in the opposite direction on the south side. In a cluster of three, Team Oslo leads Alnic MC, followed by Guang Zhou Wang, just entering the east end of the shipping channel. Alnic MC posts a speed of about 9-1/2 knots.

At 00:51 into the video (21:24:50 GMT), Alnic MC has suddenly veered south and lowered its speed. It is inside the shipping channel, toward the center and about a mile past the entrance. It comes almost to a halt and continues to turn. Guang Zhou Wang and other ships pass. After turning a total of about 225 degrees, Alnic MC moves northward, crossing and leaving the shipping channel.

Alnic MC then completes a full turn of 360 degrees and proceeds southwest–outside the shipping channel on the north side. BBC and other news media reported that the collision took place at 21:24 GMT, coinciding with Alnic MC veering southward. For Alnic MC to spear USS McCain on its port side, the Navy ship looks to have maneuvered in some rogue manner within the shipping channel, not in the usual southwest flow toward Singapore at 9 to 12 knots. Again, the U.S. Navy refused comment until it finishes an investigation.

Troubled organization: The Seventh Fleet appears to have been a troubled organization for years. As of August, 2017, 28 of its officers had been charged with official corruption in the “Fat Leonard” contracting scandal. Nineteen admitted accepting bribes and favors in return for supplying advance notice of fleet movements and ignoring issues with contracts. Dozens more investigations are said to be underway.

The Seventh Fleet has been reported with more severe morale problems than the other Navy fleets, some say because of shorter breaks between deployments at sea. However, it is the only “forward deployed” fleet, with its home base in a foreign country. Seventh Fleet staff face years-long tours of duty with their immediate families imbedded in a foreign culture whose language and customs are difficult to learn. Staffing shortages have been reported in some high-demand specialties, including sonar operators.

In 2016 the commander of Yokosuka Naval Base, the home of the Seventh Fleet in Japan, was dismissed for failing to maintain standards. Two days after the major collision with a commercial ship in August, 2017, the commander of the Seventh Fleet was dismissed. New prosecutions for corruption and sharp questions about navigation errors in the recent collisions may make recovery of confidence slow and difficult.

– Craig Bolon, Brookline, MA, August 23, 2017


Ken Moritsugu, Associated Press, Navy dismisses Seventh Fleet commander after warship accidents, ABC News, August 23, 2017

Katy Daigle, Associated Press, Four accidents, two deadly, raise questions about Navy operations, Washington Post, August 22, 2017

Maya Salam, Previous collisions involving U.S. Navy vessels, New York Times, August 21, 2017

Anna Fifield and Dan Lamothe, Chief of Naval Operations orders fleetwide investigation following latest collision at sea, Washington Post, August 21, 2017

Lolita C. Baldor, Annabelle Liang and Stephen Wright, Associated Press, U.S. Navy chief orders probe into Pacific fleet and a pause in operations after recent spate of collisions, London Daily Mail, August 21, 2017

Tracking video: collision off Singapore, London Daily Mail crediting MarineTraffic, August 21, 2017

Jaspreet Kaur, Assistant chief of staff of Seventh Fleet of U,S, Navy pleads guilty in ‘Fat Leonard’ bribery case, San Diego Military News, August 18, 2018

Tyler Hlavac, Navy officials look at giving Seventh Fleet a higher manning priority, Stars and Stripes, July 26, 2017

Scott Shane, Maritime mystery: why a U.S. destroyer failed to dodge a cargo ship, New York Times, June 23, 2017

Ford Fessenden and Derek Watkins, The path of the container ship that struck a U.S. Navy destroyer, New York Times, June 19, 2017

Elizabeth Shim, U.S. guided-missile cruiser collides with South Korean boat, United Press, May 9, 2017

Maritime traffic in southeast Asia, MarineTraffic (London), 2017

Automatic Identification System, U.S. Department of Homeland Security, 2017

Craig Whitlock, The man who seduced the Seventh Fleet, Washington Post, May 27, 2016

Hope Hodge Seck, Commander of largest U.S. Navy base in Asia fired after investigation, Military News, April 20, 2016

Navigation Safety Guidance for Tokyo Area, Coast Guard of Japan, 2014 (in English)

London high-rise fire: tragedy of the commoners

A catastrophic fire June 14, 2017, at Grenfell Tower, a London high-rise public housing building–killing at least 80 occupants–has developed into a tragedy of the commoners. It is not being visited on British elites. In its aftermath, officials of the current, Tory government spared no effort–to offload blame. Suspicions pointed at building materials that quickly spread flames up the outside of the building.

Philip Hammond, the famously arrogant Chancellor of the Exchequer, tried to claim that materials used in a recent renovation of Grenfell Tower had been banned under the British building code. He was promptly refuted by reporter David D. Kirkpatrick, writing in the New York Times.

The officials patched together a national emergency action, ordering managers of public housing that had used similar building materials to submit samples for so-called “fire safety” testing–but not managers of private housing. Without waiting for results or advice, the Camden council, in north London, ordered evacuations of five high-rise public housing buildings that had been renovated using such materials.

A testing mystery: Building contractors and materials manufacturers had stated that their practices met standards of the British building code, which include standards for fire resistance. A few days after the catastrophe, however, Tory officials said some samples of materials they received had failed “fire safety” testing–tending to offload blame. At ten days after the catastrophe, the officials disclosed that all 60 samples from public housing tested to date had failed. How could that be?

Nothing from mainstream British news sites explored the obvious conflict. One story in the Guardian said recent tests “lack transparency,” but it stopped there. Absent gross fraud, the “fire safety” tests hastily arranged by officials of the Tory government somehow had to differ from tests claimed to have been performed by manufacturers and builders under the British building code.

The current building code allows two approaches. Individual materials can be tested for “fire spread,” using British Standard BS 476 procedures and regulations. Otherwise, a large sample of an assembled “cladding system” can be tested using British Standard BS 8414 procedures and classified under British Research Establishment BRE 135 regulations.

Manufacturers usually test for “fire spread” using BS 476, or a European equivalent, and builders usually seek materials so tested. The alternative via BS 8414 and BRE 135, or European equivalents, is much more costly to test. Moreover, that approach would limit application to a specific “cladding system” design and to its choices for multiple materials and fastenings.

Potentially flammable materials used on the exterior of Grenfell Tower were Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. Both those materials burned in the catastrophe, but most news reports ignored the rigid polyisocyanurate foam insulation and focused only on the rainshield. It consists of a solid polyethylene core and two thin aluminum outer layers.

If Reynobond PE rainshield gets hot–only around 300 F–highly flammable polyethylene in the core will melt. Liquid might leak from an edge and ignite, or an entire metal layer might release, exposing polyethylene to fire. However, BS 476 test procedures do not create such conditions. They subject a patch in the middle of a rainshield panel to a small flame for a minute. The outer metal layer does not burn, and the brief heating does not melt the whole core and release the metal, so such a panel of rainshield material passes that test.

Mystery resolved: At some time on Monday, July 3, according to automatic logging by other sites, British Research Establishment (BRE) staff, who had been performing emergency “fire safety” testing for Tory government officials, added notes to one of their Web pages describing what they were doing. BRE staff admitted they had used rogue “screening tests” to measure “gross heat of combustion” of materials, not a standard test–such as International Standards Organization ISO 1716–and not a test for “fire spread” or for “combustibility.”

According to the BRE statement, “procedures set out in the [ISO] standard [for heat of combustion] have not been followed.” BRE staff did not test for “combustibility” either, as Tory officials have repeatedly claimed–that is, whether a material will catch fire, under some specified condition. Instead, BRE staff have been scraping out core fragments from samples of rainshield material and then measuring how much heat will be produced when the fragments are forced to burn in an artificial environment of pure oxygen.

Now it is clear why tests according to the British building code might pass but tests recently reported by Tory officials might fail. They are different tests. Rogue tests being carried out by the BRE staff do not measure whether materials will catch fire under controlled conditions. Instead they measure how much heat is produced when core fragments scraped from the materials are forced to burn.

The rogue tests, of course, have not been systematically validated against actual risks of building fires. Such a process would involve extended experiments, analysis, documentation and review. If compared, for example, against longstanding, carefully developed BS 8414 procedures and BRE 135 regulations, rogue tests might either overestimate or underestimate fire hazards from practical situations.

Other options: Little noticed by the public, some building materials apparently similar to those used at Grenfell Tower have passed the rogue test ordered by Tory government officials and conducted by BRE staff. The headline for an article on the BBC News site did not help, saying, “Three hospitals fail fire safety.” The text, however, claimed that “cladding at 11 sites passed the checks, while the other 19 sites which flagged up potential fire safety issues have been told they do not need to take further action.”

The Tory government still has not ordered testing of private housing or commercial buildings, but Health Secretary Jeremy Hunt started a national emergency action to test hospital buildings. When reported by BBC News, 30 had passed the rogue test or been exempted, and only three had failed. Apparently British hospital renovations were more cautious in some ways than those performed by public housing authorities.

Three main grades of metal-clad rainshield materials have been marketed in Europe for about 25 years. They are often designated “PE” (polyethylene core), “FR” (fire-retardant core) and “A2″ (limited combustibility core)–the last one a classification from the European Normative EN 13501 fire-resistance standard.

The Alucobond company of Switzerland introduced an “A2″ product in the early 1990s. Like most other such products, its core is nonflammable mineral wool plus a few percent by weight of polymer binder. At very high temperatures the polymer will char, but flames will not spread far. This type of product is more expensive and more difficult to install than other composite rainshield products. The distribution of results obtained by BRE staff suggest that “A2″ products may pass their rogue test, while “PE” and “FR” products may fail.

Lessons learned and unlearned: Some building renovation managers apparently took more cautious approaches than others. However, the Tory government’s attempt to shift blame for the Grenfell Tower catastrophe onto project designers and managers and onto materials manufacturers amounts to a scam.

The core of the problem has been grossly inadequate building code regulations–allowing an irresponsible alternative to carefully developed fire resistance standards. That is compounded by lack of fire suppression measures, particularly requiring fire sprinklers in high-rise buildings.

The British government had ample, local warning about the potential for a catastrophe. In 2009, the Lakanal House fire in Camberwell, similar in many respects, killed three women and three children. Nothing of much significance was ever done to prevent another such disaster.

The current, Tory government nominated Sir Ken Knight, who compiled a report on the Lakanal fire, to head a panel that is to examine “safety actions” in the aftermath of the Grenfell Tower catastrophe. Sir Ken Knight had advised against regulations requiring fire sprinklers in high-rise buildings.

Former Tory housing minister Gavin Barwell told the House of Commons in October, 2016, that the British Building Regulations for fire safety would be reviewed in response to the Lakanal House disaster, but he did nothing. His punishment, after being defeated for re-election, has been to serve as chief of staff to the prime minister, Theresa May.

– Craig Bolon, Brookline, MA, July 6, 2017


Three hospitals fail fire safety checks, BBC News (UK), July 4, 2017

Grenfell Tower fire: ACM cladding testing, British Research Establishment (BRE), July 3, 2017

Richard Hartley-Parkinson, Man overseeing Grenfell disaster previously advised against fitting sprinklers, London Metro, June 28, 2017

Robert Booth, Tower cladding tests after Grenfell fire lack transparency, say experts, Manchester Guardian (UK), June 26, 2017

Sylvia Hui, Associated Press, All samples from high-rise towers in UK fail fire safety tests, Chicago Tribune, June 25, 2017

Caroline Mortimer, Grenfell response: number of tower blocks failing fire tests rises to 60, London Independent, June 25, 2017

Shehab Khan, ‘Hundreds’ died in Grenfell Tower fire, says shadow Home Secretary Diane Abbott, London Independent, June 24, 2017

David D. Kirkpatrick, Danny Hakim and James Glanz, Why Grenfell Tower burned: regulators put cost before safety, New York Times, June 24, 2017

Danica Kirka, Associated Press, London council evacuates residents amid fire safety concerns, WTOP (Washington, DC), June 23, 2017

Lucy Pasha-Robinson, Tens of thousands of people could be living in lethal tower blocks, tests reveal, London Independent, June 22, 2017

Jack Simpson, Fire experts slam ‘outdated’ Building Regulations following Grenfell, Construction News (UK), June 21, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Robert Booth, Ian Sample, David Pegg and Holly Watt, Experts warned government against cladding material used on Grenfell, Manchester Guardian (UK), June 15, 2017

Gregory Katz and Danica Kirka, Associated Press, Death toll rises to 12 in London apartment building inferno, WTOP (Washington, DC), June 14, 2017

ISO 1716:2010, Determination of the gross heat of combustion, International Standards Organization (Geneva, Switzerland), 2017

Resistance to fire: EN 13501, the European standard, Odenwald Faserplattenwerk (Amorbach, Germany), 2017

EN 13501-1: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

BS 476-7: Fire test to building material, Ecosafene Safety and Testing World (Xiamen, China), 2017

Prashant Thakkar, 1992 market introduction of Alucobond A2, Glazing Shopee (Vadodara, India), 2017

Sara Colwell, Illustrated guide to British fire safety testing and standards, British Research Establishment (BRE), 2014

Fire safety: Approved Document B, The Building Regulations 2010, [British] National Archives (effective April, 2007, as amended through 2013)

Craig Bolon, High-rise fire in London: needless catastrophe, Brookline Beacon, June 21, 2017

High-rise fire in London: needless catastrophe

Around 1 am local time Wednesday morning, June 14, a kitchen fire began in a London high-rise public housing building. It was reported promptly to 999, London emergency services. The Grenfell Tower structure in west London–built mainly with precast concrete, steel and glass–should easily have resisted a kitchen fire long enough for the London Fire Brigade to arrive and extinguish it, but instead the fire spread.

Fire escaped through a window on a lower floor of the building, ignited newly installed, flammable materials on the exterior and quickly spread upwards. By the time the London Fire Brigade arrived, only a few minutes after the emergency call, the fire had already climbed well up the building of 24 floors, and it was also spreading sideways.

London high-rise fire, June 14, 2017, about 2 am

GrenfellTowerFireLondon20170614
Source: London emergency services

Desperate efforts: The London Fire Brigade was able to extinguish the kitchen fire, but its efforts against the massive fire on the outside of the high-rise building proved futile. By the time water flowed from aerial pumpers, the fire had spread onto two or more sides of Grenfell Tower and had reached the upper floors. As shown in photos, water streams rose only about halfway up one side of the building and a third of the way up a second. Apparently the London Fire Brigade could not access other sides when it mattered most.

The intense fire warped or melted new, thin aluminum window frames, and window panes fell out, allowing the fire inside. The building never had sprinklers. Contents of nearly all dwellings above the eighth floor and some below eventually ignited, further spreading fire from window to window. Interior fires became mostly air-limited and very smoky. Photos show interior fires burning at least 12 hours, until there were no more dwelling contents left to burn.

Inside Grenfell Tower, survivors say chaos reigned. In some areas, fire alarms did not sound or could not be heard. Emergency lighting was dim. Residents had been warned to stay inside dwellings in case of fire, but many ran through smoky corridors and down the single, narrow stairway, colliding with firefighters rushing upward. Most Grenfell Tower residents survived, but many who followed instructions became trapped.

While the lowest floors of Grenfell Tower suffered water damage, photos show at least three-quarters of the building incinerated. Five days after the fire began, London police stated that at least 79 people had perished. News reports speculated that final numbers could be much higher. Parts of the structure had been found unstable, so that dogs had been sent in to search for remains.

Causes of the catastrophe: The Grenfell Tower fire of 2017 did not compare to property damage from the Great London Fire of 1666, but the death toll may have been higher. The British prime minister has ordered a public inquiry directed by a judge. While that is likely to take at least months, contributing factors are already known.

It was clear from the outset that materials installed in a recent renovation of Grenfell Tower spread fire outside the building. High-rise structures were traditionally built with fireproof materials: typically concrete, steel, brick and glass. The renovation clad the building in a thick layer of insulation and a thin layer of rainshield. Both the added layers contained flammable materials, and both apparently burned.

Early news reports mentioned several different materials used in renovating Grenfell Tower, including highly flammable polystyrene and polyurethane. Discovery of specifications narrowed the list to Celotex RS5000 insulation, 6 inches thick, and Reynobond PE rainshield, 1/8 inch thick–both manufactured in Europe. The Celotex product is rigid polyisocyanurate foam, fire resistant but not fireproof. The Reynobond PE product has a solid polyethylene core, easily melted and readily flammable.

For a short time, Philip Hammond, the famously arrogant Chancellor of the Exchequer since July, 2016, muddied waters with a claim that Grenfell Tower renovation materials were banned under British building codes. If so, that might shift liability away from the UK government and toward renovation contractors. Writing in the New York Times, reporter David D. Kirkpatrick soon showed Hammond misinformed or lying.

In recent years, flammable materials have been allowed on the exteriors of high-rise buildings in several places, including France, Britain, Dubai, Singapore, South Korea and Victoria, Australia. That has resulted in a series of so-called “cladding fires” on the outsides of high-rise buildings. Until the Grenfell Tower catastrophe, the most widely publicized of those fires occurred in Dubai.

The worst of at least five recent high-rise cladding fires in Dubai heavily damaged the Address hotel on New Year’s Eve, 2015, the Sulafa tower on July 20, 2016, and the ironically named Torch Tower on April 2, 2017. The disasters resulted in several injuries but no deaths. In response, Dubai reportedly tightened building requirements, with some previously installed building materials needing to be replaced.

Avoiding another catastrophe: A cladding fire in Melbourne, Australia on November 25, 2014, showed how multiple fire-safety measures can avoid catastrophes. Lacrosse Docklands is a 23-story apartment building similar to Grenfell Tower. The exterior had been clad with similar flammable materials. A cigarette left in a plastic dish on a balcony ignited the dish and the wood table under it, starting a fire.

The burning wood table ignited an adjacent area of rainshield material, starting the cladding fire. The rainshield on this building was known by the trade name Alucobest. Like the Reynobond PE product, the standard Alucobest product has a readily flammable solid polyethylene core. As with the Grenfell Tower fire, the Lacrosse Docklands fire warped and melted aluminum window frames, and window panes fell out, allowing the fire to enter dwellings.

That is where similarities end and differences begin. Unlike Grenfell Tower, the insulation behind the rainshield at Lacrosse Docklands in Melbourne was non-combustible, not merely fire resistant: glass wool instead of polyisocyanurate foam. That probably slowed the speed of fire spreading, and it fed less fuel to the fire. The design of Lacrosse Docklands features bays of dwellings separated by protruding fins. The fire in Melbourne rose rapidly up one bay but did not jump to adjacent bays.

Unlike Grenfell Tower in London, Lacrosse Docklands in Melbourne had sprinklers–likely the most important difference. They worked as intended and kept fire from spreading inside dwellings, even though fire had been able to enter through damaged and open windows. The intensity of the fire did not increase through igniting dwelling contents, and fire did not spread inside the Melbourne building.

Unlike the London Fire Brigade performance, water flows from aerial pumpers in Melbourne reached to the top of the Lacrosse Docklands building and extinguished the cladding fire. There was substantial property damage in Melbourne, but there were no deaths or major injuries. Multiple safety measures combined to prevent a disaster from becoming a catastrophe.

– Craig Bolon, Brookline, MA, June 21, 2017


A visual guide to what happened at Grenfell Tower, BBC News, June 20, 2017

Danica Kirka and Frank Griffiths, Associated Press, 79 now believed to have died in London high-rise fire, ABC News, June 19, 2017

David D. Kirkpatrick, UK officials said cladding on tower burned in London was banned, but it wasn’t, New York Times, June 19, 2017

Justin Pritchrd, Associated Press, Insulating skin on high-rises has fueled fires before London, ABC News, June 18, 2017

Tom Peck, Grenfell Tower cladding is banned in UK, Philip Hammond says, London Independent, June 17, 2017

Danica Kirka, Associated Press, Anger erupts over possible flaws at burned London tower, WTOP (Washington, DC), June 16, 2017

Aaron Morby, Twenty London high-rises with Grenfell cladding system, Construction Enquirer (UK), June 16, 2017

Tom Bergin, Maker of panels at London tower cautioned on high-rise fire risk, Reuters (UK), June 16, 2017

Hayley Dixon, Sarah Knapton, Steven Swinford, Leon Watson and Danny Boyle, Grief gives way to anger as Grenfell Tower residents demand answers over string of failures, London Telegraph, June 15, 2017

Dan Bilefsky, London fire death toll rises to 17, New York Times, June 15, 2017

Hannah Lucinda Smith, The Grenfell Tower blaze was a disaster waiting to happen, The Spectator (UK), June 15, 2017

Benedict Brook and Rose Brennan, Melbourne skyscraper fire, caused by cladding, may have been a warning for London, News Corp Australia, June 15, 2017

Calla Wahlquist, Cladding in London high-rise fire also blamed for 2014 Melbourne blaze, Manchester Guardian (UK), June 15, 2017

Henry Bodkin, Fire safety expert had warned government advisors ‘entirely avoidable’ deaths would occur at structures like Grenfell Tower, London Telegraph, June 14, 2017

Jon Gambrell, Fire hits Dubai high-rise complex near world’s tallest tower, Associated Press, April 2, 2017

Unattributed, AFP, Dubai toughens fire rules after tower blazes, Business Times, January 22, 2017

Unattributed, Dubai fire: blaze engulfs more than 30 floors of Sulafa Tower, BBC News, July 20, 2016

Lacrosse Docklands fire: post-incident analysis report, Metropolitan Fire and Emergency Services Board, Victoria, Australia, April 27, 2015 (5 MB)

Andrew Moseman, Huge fire engulfs Dubai skyscraper full of apartments, Popular Mechanics, February 20, 2015

Renewables: inherit the wind

Some are furious at the cockroach President for blowing off the Paris climate treaty, but many expected that, since it had been one of the few stable goals of his lurching campaign. There is little the cockroach can actually do. Under the treaty’s terms, it remains in effect until at least the fall of 2020, and thus it is sure to become a strong factor in the next campaign. If the cockroach tries to run again, he looks likely to lose.

Some political corruption from pandering by the cockroach President will be thwarted by economics. In many places, coal power is no longer cost-competitive, and in some places wind power does not need new subsidies to thrive. The five leading wind-power states–Iowa, South Dakota, Kansas, Oklahoma and North Dakota–all voted for the cockroach, but they are not aligned with his hostile views on renewable energy. Many people in those states now earn their livings from it, while few there are sustained by the coal-power industry.

Growth of renewables: The growth of renewables in the U.S. energy supply is a trend decades long. It began with hydroelectric power heavily funded by the federal government during the 1930s. The next surge was wood-fired power from the late 1970s through the early 1980s. Despite later being labeled “carbon neutral,” that has fallen out of favor. Toxic emissions are difficult and costly to control. Outputs have been gradually dropping over the past 30 years.

Renewables in the U.S. energy supply

UsRenewableEnergy
Source: U.S. Energy Information Administration

There are now four major U.S. renewable energy sources: hydro, biofuel, wood and wind–in declining current amounts. As of 2016, each one contributed about 2.0 to 2.5 quadrillion Btu per year. Sources still gaining are biofuel–taking off around 2002–and wind–climbing around 2007. Led by ethanol, biofuel is mostly used for transportation. The other renewable sources are mostly or entirely used to generate electricity.

Two other substantial renewable sources are solar power and waste burning, both around 0.5 quadrillion Btu per year. Solar began to climb around 2013 and is still in early stages of growth. Waste burning has seen little growth since the 1980s. It spreads toxic pollutants–worse than wood. Renewable sources now provide over a tenth of U.S. total energy use: for 2016 about 10.2 out of 97.4 quadrillion Btu.

Although prevailing customs do not count nuclear power among the renewables, it emits hardly any greenhouse gases. For 2016, the U.S. reported 8.4 quadrillion Btu. It is in decline, with older plants closing and new plants rarely opening. When combined with renewable sources, the United States is now getting about 19 percent of total energy consumption from sources that emit little or no greenhouse gases.

Sustainable progress: The dominant influences on renewable energy are now state regulations and local initiatives, not federal programs. They will provide sustainable progress despite the cockroach President, although federal programs could improve outcomes. The most important among the state regulations are renewable energy portfolios for electricity, now enforced in 29 states and the District of Columbia.

Renewable energy portfolios by states

RenewablePortfolioStates
Source: U.S. Energy Information Administration

Laggard states are in the Deep South and the Mountain West, plus the coal-mining states Kentucky and West Virginia. Standards vary widely. Those in Hawaii and Connecticut are among the most demanding, requiring 30 and 27 percent renewable energy in 2020. Stronger states limit qualifying sources to new wind, solar and geothermal plants. Other states accept hydropower, nuclear power and waste burning. Pennsylvania accepts burning so-called “waste coal.” Ohio accepts burning so-called “clean coal.”

Governors of several states recently announced they had formed a new organization called U.S. Climate Alliance, intended to promote and organize renewable energy standards. The Regional Greenhouse Gas Initiative–organized in 2003 by New England states, New York, New Jersey and Delaware, and more recently joined by Maryland and Virginia–has provided a durable model for effective state coordination.

Worldwide energy use trends

WorldEnergySources
Source: U.S. Energy Information Administration

Despite struggles, the United States continues to maintain a strong record in energy sourcing. As compared with 19 percent of U.S. total energy from sources that emit little or no greenhouse gases, for 1990 through 2012–the latest comprehensive data–worldwide performance remained stuck at 15 to 16 percent. Progress with renewables has been swamped by growth in coal burning by countries of southeast Asia, led by China.

– Craig Bolon, Brookline, MA, June 3, 2017


Matt Viser, Kerry says Trump’s decision was ‘a day of craven ignorance’, Boston Globe, June 2, 2017

Jeremy Bloom, Trump will pull U.S. out of Paris Agreement–in 4 years, Clean Technica (Honolulu, HI), June 2, 2017

David Abel, Massachusetts joins other states to fulfill U.S. pledges on carbon, Boston Globe, June 2, 2017

John Flesher, Associated Press, States and cities pledge action on climate without Trump, WTOP (Washington, DC), June 1, 2017

Valerie Volcovici and Jeff Mason, Trump says U.S. to withdraw from Paris climate accord, Reuters (UK), June 1, 2017

Associated Press (Berlin), As Europe talks tough on climate, data show emissions rose, WTOP (Washington, DC), June 1, 2017

Emma Gilchrist, Trump won’t stop the renewable energy revolution, Clean Technica (Honolulu, HI), March 31, 2017

Monthly Energy Review, U.S. Energy Information Administration, May, 2017 (20 MB)

State renewable portfolio standards and goals, National Conference of State Legislatures, 2017

Program Design, Regional Greenhouse Gas Initiative, 2017

David Abel, Suit faults Massachusetts record in cutting emissions, Boston Globe, January 3, 2016

International energy outlook, U.S. Energy Information Administration, 2016

Renewable portfolio standards, U.S. National Renewable Energy Laboratory, 2015

Matthew L. Wald, Power plants try burning wood with coal to cut carbon emissions, November 3, 2013

Craig Bolon, Surfing a vortex: energy and climate, Brookline Beacon, February 12, 2017

Craig Bolon, Third-generation nuclear power: uncertain progress, Brookline Beacon, September 6, 2016

Craig Bolon, New gas pipelines spurned: no subsidies from electricity rates, Brookline Beacon, August 17, 2016

Craig Bolon, Greenhouse gases: passing the buck, Brookline Beacon, January 11, 2016

Craig Bolon, Losing steam: U.S. nuclear power-plants, Brookline Beacon, September 19, 2015

Craig Bolon, Renewable energy: New England experience, Brookline Beacon, August 15, 2015

Craig Bolon, U.S. energy for 2014: a year of gradual progress, Brookline Beacon, March 10, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Craig Bolon, Some “green energy” reminds us of leprechauns, Brookline Beacon, April 8, 2014

Power-plant toxics: no longer a political trinket

By appointing Scott Pruitt, former Oklahoma attorney general, as administrator of the U.S. Environmental Protection Agency, the cockroach President signaled another warp in the long struggle against emissions from U.S. power-plants. During his former service, Pruitt garnered large political contributions from managers in poultry industries, who wanted to scuttle rules for waste disposal at chicken farms. Pandering to their causes against public interests, Pruitt became Chief Chicken Shit of the Southwest.

If the cockroach were to fall to a heart attack tomorrow, the environment could become even more threatened. Vice President Pence was a promoter of Pruitt. Writing in the Huffington Post, John Halstead described Pence as an environmental racist. While Indiana governor, Pence responded quickly to lead found in the water supply for Greentown, a community that is 97 percent white. He ignored problems in East Chicago, where a majority-black neighborhood suffers from the worst soil concentration of lead ever reported in the U.S.

Industrial waste: At an auto-industry event on March 15, 2017, the cockroach promised, “My administration will work tirelessly to eliminate…industry-killing regulations.” The context was fuel efficiency. The cockroach promoted lower efficiency: that is, more fuel waste, more emissions and a retreat from U.S. energy independence. Some applause came from locals but not from the Detroit Free Press, whose business reporter said the push would undermine “innovation we need to see more of in the Michigan economy.”

On March 28, the cockroach President staged a fantasy act with coal miners in the Oval Office, signing Executive Order 19, an unhinged and antisocial maneuver. It directs that federal “agencies immediately review…regulations that potentially burden…use of domestically produced energy…[where] ‘burden’ means significant costs [for]…utilization…of energy resources.” Climate issues got nearly all the media attention then, but regulations on toxic power-plant emissions also loomed as likely targets.

Pruitt was Oklahoma’s supervising counsel for White Stallion Energy v. EPA, the DC Appeals Court case on toxic power-plant emissions that led to Michigan v. EPA, decided in 2015 by the Supreme Court. That proved to be the last attack on the public interest from clever, antisocial former Justice Scalia, who had managed to bend the ear of Justice Kennedy. Against precedent, Scalia’s opinion said the EPA had to consider costs when regulating toxic power-plant emissions.

According to Coral Davenport, writing in the New York Times, “Pruitt, [then] attorney general of Oklahoma…sued the EPA at least 14 times [in only six years], often in concert with the nation’s largest fossil-fuel companies, to block major environmental regulations.” Fortunately for the environment, he was rarely as successful as he was in Michigan v. EPA, and fortunately that case will have little direct impact.

Contrasts: Residents of the Boston area for more than 50 years will likely remember days when smoke darkened the sky. Before the 1960s there were few air quality rules. Power-plants, factories, offices and homes belched smoke from coal, oil and wastes. “Efficient” cars meant ones getting more than about 12 miles to the gallon. Cities, towns, institutions and businesses burned trash in open incinerators.

Smoke-blackened Washington Street, Boston, 1915

SmokeBlackenedWashingtonStreet1915
Source: Boston Public Library Archives

In November, 2013, a survey of large U.S. cities found that “Boston tops the list as the city with the cleanest air and boasts the lowest Air Quality Index score possible. Boston’s accessible public transportation system…the Air Pollution Control Commission…[and] annual precipitation…are good indicators that Bostonians are breathing easy.” Quite a change from the grimy Boston environment between about 50 and 150 years earlier.

Progress and mischief: Before 1970, most efforts to reduce air pollution were state initiatives. The federal 1970 Clean Air Act amendments [Public Law 88-206] became a watershed, aiming at uniform requirements that states would refine and enforce rather than initiate. The 1970 law authorized national “air quality” standards and regional “performance” standards for pollution emitters.

Coal has long been the most harmful fuel. In recent years, activists became concerned that it produces the most carbon dioxide. However, there are longstanding concerns over emissions of sulfur dioxide, mercury, arsenic and particles of toxic metals from burning coal. The U.S. EPA moved extremely slowly to regulate sulfur dioxide, finally spurred by 1990 Clear Air Act amendments [Public Law 91-604] requiring actions to combat acid rain. Until the Obama era, the agency failed to restrict other toxic components of coal smoke.

The Walker Bush administration tried to gut regulation of power-plant emissions through its proposed Clean Air Mercury Rule and Delisting Rule. The music stopped when the DC Appeals Court denounced those two shabby attempts in its decision for New Jersey v. EPA. [517 F.3d 574, 2008] A dramatic sequence of seven federal court rulings overturned much of the environmental mischief oozing from the Walker Bush administration.

*** New York v. Environmental Protection Agency (2005) vacated the New Source Review Rule.
*** New York v. Environmental Protection Agency (2006) vacated the Equipment Replacement Provision Rule.
*** Massachusetts v. Environmental Protection Agency (2007) vacated the refusal to regulate carbon dioxide.
*** Environmental Defense, v. Duke Energy (2007) affirmed the Prevention of Significant Deterioration Rule.
*** New Jersey v. Environmental Protection Agency (2008) vacated the Clean Air Mercury Rule.
*** North Carolina v. Environmental Protection Agency (2008) vacated the Clean Air Interstate Rule.
*** Sierra Club v. Environmental Protection Agency (2008) vacated 2006 Clean Air Act emission limits.

Obama-era progress: The Obama administrations issued two major air-quality regulations: the Mercury and Air Toxics Standards (MATS) in 2011 and the Clean Power Plan in 2015. When reporting about lawsuits attacking them, news media sometimes failed to distinguish the two regulations clearly. MATS is directed toward the toxic pollutants that have been longstanding concerns of the U.S. EPA. The Clean Power Plan is a climate initiative, intended to regulate carbon dioxide and other greenhouse-gas emissions.

The cockroach President was able to suspend the Clean Power Plan, but the great majority of fossil-fueled power is now produced by plants that comply with MATS. The U.S. Energy Information Administration reported that as of April, 2016, nearly all coal-fired plants had installed equipment. According to Paul Ciampoli, writing in Power Plant Daily, plants representing about 2 GW out of about 276 GW total–less than a percent of industry capacity–were still operating on MATS waivers. The cockroach mashed by feet on the ground.

Good news for the U.S. is that economics blocked obscene politics. When power-plant emissions are filtered enough to bring down ordinary chemical pollution, costs of coal-fired power rise too high for new plants and are shuttering many old ones. Brayton Point in Somerset, MA–once among the filthiest in New England–was outfitted with pollution controls. Recently it has operated less than a quarter of the time, and it is scheduled to close permanently in May, 2017–no longer competitive.

Power from natural gas-fired plants, not government policy, has been the main agent evicting coal-fired power. In plains areas of the Middle West and in giant river valleys of the Pacific Northwest, wind turbines also provide advantages along with very low emissions. There, where winds tend to be stronger and steadier than in other places and where installation costs tend to be lower, one major form of renewable energy no longer needs new subsidies to prosper. Again, the cockroach mashed by feet on the ground.

– Craig Bolon, Brookline, MA, May 16, 2017


Juliet Eilperin and Brady Dennis, Court freezes Clean Power Plan lawsuit, signaling likely end to Obama’s signature climate policy, Washington Post, April 28, 2017

Sonal Patel, Trump’s EPA signals changes for power-plant mercury rule, Power Magazine, April 20, 2017

Jonathan Mattise, Associated Press, Federal utility CEO: coal plants not reopening under Trump, WTOP (Washington, DC), April 18, 2017

Michael Biesecker and Sam Hananel, Associated Press, EPA seeks to derail cleanup of coal power-plant pollution, WTOP (Washington, DC), April 18, 2017

Eric Lipton, Ben Protess and Andrew W. Lehren, With Trump appointees, a raft of potential conflicts and no transparency, New York Times, April 15, 2017

Coral Davenport, Coal is on the way out at electric utilities, no matter what Trump says, New York Times, April 5, 2017

Emily Hammond, President Trump’s executive order on “energy independence,” Vox Media (Washington, DC), March 29, 2017

On promoting energy independence and economic growth, Executive order 19, White House, March 28, 2017

Matthew Daly and Jill Colvin, Associated Press, Trump takes aim at Obama’s efforts to curb global warming, Boston Globe, March 27, 2017

Jill Colvin, Associated Press, Trump announces challenge to Obama-era fuel standards, Boston Globe, March 15, 2017

John Gallagher, Why Trump’s rollback of tailpipe emissions rules is a bad idea, Detroit Free Press, March 15, 2017

John Flesher, Matthew Daly and Catherine Lucey, Associated Press, Climate and other programs get deep cuts in EPA budget proposal, WTOP (Washington, DC), March 3, 2017

Coral Davenport, EPA workers try to block Pruitt in show of defiance, New York Times, February 16, 2017

Valerie Volcovici and Timothy Gardner, Scott Pruitt, EPA designee, expresses doubts on climate, defends oil industry funding, Reuters (UK), January 18, 2017

Alex Formuzis, EPA pick Pruitt stymied cleanup of scenic river fouled by factory chicken-farm waste, Environmental Working Group (Washington, DC), January 14, 2017

John Halstead, Mike Pence’s environmental racism, Huffington Post (Washington, DC), January 14, 2017

Eric Lipton and Coral Davenport, Scott Pruitt, Trump’s EPA pick, backed industry donors over regulators, New York Times, January 14, 2017

Inside the Clean Air Act, US Legal (Jackson, MS), 2017

Edward Wong, Trump calls climate change a Chinese hoax, New York Times, November 19, 2016

Ryan H. Wiser and Mark Bolinger, Wind technologies market report, Lawrence Berkeley Laboratory, August, 2016

EIA electricity generator data show power industry response to EPA mercury limits, U.S. Energy Information Administration, July 7, 2016

U.S. Environmental Protection Agency, Consideration of cost in the “appropriate and necessary” finding for the Mercury and Air Toxics Standards for power plants, 81 FR 24420-24452, April 25, 2016

Keith Goldberg, High court won’t halt EPA mercury rule, Law360 (New York, NY), March 3, 2016

Laura Barron-Lopez, Supreme Court stays Obama’s carbon emissions plan, Huffington Post, February 9, 2016

Elena Craft, Graham McCahan and Mandy Warner, Mercury and Air Toxics Standards, Environmental Defense Fund (New York, NY), 2016

Rachel Cleetus, Steve Clemmer, Jeff Deyette, Brenda Ekwurzel, Julie McNamara, Jeremy Richardson and John Rogers, The Clean Power Plan: a climate game-changer, Union of Concerned Scientists, 2016

Michael B. Gerrard, Supreme Court ruling on mercury shows little deference to EPA, New York Law Journal 254(49), September 10, 2015

Michigan v. EPA, case no. 2014-46, U.S. Supreme Court, 576 U.S. (2015) June 29, 2015

Samuel Worth, Why EPA should have prohibited cost considerations in White Stallion, Boston College Environmental Affairs Law Review 42(2):593-606, April 10, 2015

White Stallion Energy v. Environmental Protection Agency, case no. 2012-1100, U.S. Court of Appeals for the DC Circuit, 748 F.3d 1222, April 15, 2014

Erin Ailworth, Owner reaffirms 2017 closing of Brayton Point plant, Boston Globe, January 27, 2014

Tracey Jones, Ten cities with the best air quality, CreditDonkey (Pasadena, CA), 2013

Nicholas Morales, New Jersey v. Environmental Protection Agency, Harvard Environmental Law Review 33(1):263-282, 2009

New Jersey v. Environmental Protection Agency, case no. 2005-1097, U.S. Court of Appeals for the DC Circuit, 517 F.3d 574, February 8, 2008

George A. Gonzales, The Politics of Air Pollution, State University of New York Press, 2005

James J. MacKenzie. Boston’s sufferance of sulfur dioxide, Science 172(3985):792-793, 1971

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Craig Bolon, Fall town meeting: pipe dreams, Brookline Beacon, December 4, 2014

Craig Bolon, Coal-fired and oil-fired electricity in New England, Energy and Environment, October 17, 2013

Craig Bolon, Tangle of air pollution regulations affecting energy, Energy and Environment, 2008

Bermuda explosion: medical racketeering

On February 14 of this year, Bermuda filed a lawsuit in the Federal District Court for Massachusetts, seeking damages and legal costs from the Lahey medical organization of Burlington, MA. Bermuda claims that Lahey, aided by Dr. Ewart Brown, former prime minister of Bermuda, cost the country millions of dollars by engaging in a “pattern of racketeering activity.”

Bermuda v. Lahey is likely to prove complex. It seeks to apply the federal Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970 to a civil dispute. Congress aimed RICO at “organized crime.” RICO helped reduce the New England Mob from subverters of mainstream business through violence and threats to exploiters of some peep shows and massage parlors. However, little known to most people, RICO also includes a section authorizing civil lawsuits.

When a “pattern of racketeering activity” by an “interstate enterprise” has been proven in court, triple damages plus legal costs can be awarded in a civil RICO lawsuit. As an early example, civil RICO was used successfully against anti-abortion activists who harassed and trashed a Philadelphia clinic during 1984, resulting in awards of about $45,000 for damages and $90,000 for legal costs.

Bermuda’s claims: According to the recent lawsuit, Lahey “accept[ed] fees for medically unnecessary…services…using those fees to pay Brown increasing bribes…to promote its interests in Bermuda.” [Bermuda v. Lahey complaint, paragraph 121] The “actions have caused [Bermuda] to…increase the rate at which it pays for certain health benefits, and to pay for overseas services in the United States….” [Bermuda v. Lahey, paragraph 132]

That is the essence of Bermuda’s arguments that it is owed damages under the RICO Act, in 18 USC 96.1962(a). Bermuda has also made claims under RICO Sections 1962(b), 1962(c) and 1962(d), using similar arguments. Its complaint says that fraud continued over more than ten years, that fraud cost Bermuda millions of dollars and that “bribes” and “kickbacks” were key elements in the “racketeering activity.”

“Lahey and Brown concocted a scheme built upon bribery and greed and carried out with complete disregard for Brown’s position of public trust or for the physiological and psychological impact on patients–who were subjected to excessive, medically unnecessary and frankly dangerous scans so that Brown and Lahey could obtain greater reimbursements….” [Bermuda v. Lahey, paragraph 3]

“Between 2006 and 2016, Bermudian public healthcare insurers paid Lahey over $40 million for services…To induce patient referrals for diagnostic scanning at the Brown clinics, Brown…offered and paid kickbacks, which he dubbed and disguised as ‘commissions.’…” [Bermuda v. Lahey, paragraph 92]

Dr. Brown is a bystander to Bermuda v. Lahey, not a defendant. If damages and legal costs were awarded under the lawsuit as filed, Lahey would have to pay. However, Dr. Brown’s activities would be key elements in showing a “pattern of racketeering activity” by an “interstate enterprise.”

A key issue for Bermuda will be proving that Lahey knew services in which it participated were “medically unnecessary.” If they were medically necessary or if Lahey did not know otherwise, then Lahey would not likely be seen as a party to fraud. According to the complaint in the lawsuit, patients were often referred to the Brown clinics in Bermuda, who would perform scans and send images to Lahey in the U.S. for interpretation. In such a sequence, Lahey acted as a third-party provider.

Conflicts: According to Bermuda’s complaint, “By 2001, Brown…was…serving as Bermuda’s minster of transport. At this time, [Lahey] entered into the first of many consulting agreements…whereby Lahey agreed to pay Brown and [his company Bermuda Healthcare Services] substantial sums of money in exchange [for] their promotion of Lahey’s interests on the island. [Bermuda v. Lahey, paragraph 28]

The complaint continues, saying “agreements called for Lahey’s payment of ‘consulting fees’ to Brown…in exchange, Brown…would ‘promote healthcare opportunities (for Lahey) in Bermuda and elsewhere in the West Indies.’…Brown’s use and exploitation of his role as a government minister to promote Lahey’s interests in Bermuda [was] a clear conflict of interest….” [Bermuda v. Lahey, paragraph 31]

According to the complaint, what looks to have been a problem developed into a threat: “Increasing the rate of Lahey’s payments was important to Brown because he was reliant on the payments to fund his clinics, which had to operate at capacity each month for him to stay…solvent.” [Bermuda v. Lahey, paragraph 38]

Bermuda’s complaint says Lahey had helped Brown make arrangements to buy a CT scanner for his clinics and later buy an MRI scanner–very costly and risky moves for an individual physician. In addition to paying off debt for equipment, he was also paying Lahey directly for interpreting scans, rather than their trying to bill Bermuda’s national health program, and he tended to fall behind on payments.

Bermuda’s complaint continues by saying that “Brown routinely used his role as premier…to ensure that Lahey got the access for which it paid him…on February 5, 2007, [the chief operating officer at Lahey] mailed Brown to thank him ‘for offering Lahey the opportunity to meet with your minister of health…to participate in the development of a future urgent care center’…Brown responded, ‘You didn’t know you were in the in-crowd? (Smile)’.” [Bermuda v. Lahey, paragraph 50]

As of 2007, an outside survey found that Bermuda did not require a government certificate of need to operate CT and MRI scanners. Its national health-care program did not require preauthorizations for scans. In Massachusetts, certificates of need for scanners began in 1976, and most health-care insurance plans required preauthorizations for scans in the 1980s. In its complaint, Bermuda notes that Dr. Ewart Brown successfully opposed a preauthorization requirement proposed in 2013. [Bermuda v. Lahey, paragraph 99]

Prospects: Clearly set out in Bermuda’s complaint initiating the recent lawsuit are issues that might have been obvious to Lahey executives: conflicts of interest between Dr. Brown’s efforts in Bermuda for Lahey and Dr. Brown’s duties in government, plus financial pressures created by Dr. Brown’s debt payments for medical equipment and Dr. Brown’s payments for medical services provided by Lahey.

Bermuda’s complaint has benefited from unexplained disclosures, such as messages cited between Dr. Brown and an executive at Lahey. However, Bermuda probably has more to learn about Lahey’s activities. Unless the case is dismissed on preliminary motions, it will enter discovery, providing Bermuda with opportunities to obtain information.

Bermuda’s complaint says that “no one was better positioned than Lahey, which read all scans conducted at the Brown clinics, to detect medically unnecessary scans.” [Bermuda v. Lahey, paragraph 81] However, Lahey did not necessarily know what medical indications had prompted scans, since it was reportedly Dr. Brown’s clinics that performed them. Whether scans were or were not “medically necessary” and how much Lahey knew about that are issues likely to develop at a trial.

Bermuda has accused Lahey of paying Dr. Brown for favors and accused Dr. Brown of paying other physicians to refer patients to his clinics. It will surely try to obtain documents and testimony strengthening those claims. If successful in the efforts, Bermuda might be able to prove at a federal trial what it now alleges–that the cooperation between Lahey and Dr. Brown comprised a “fraudulent enterprise,” subject to sanctions under the RICO Act. [Bermuda v. Lahey, paragraph 70]

– Craig Bolon, Brookline, MA, April 15, 2017


Complaint, Bermuda v. Lahey, case 1:17-cv-10242, U.S. District Court for Massachusetts, February 14, 2017

Priyanka Dayal McCluskey, Lahey fights back against Bermuda bribery allegations, Boston Globe, April 14, 2017

Unattributed, Brown braced for chance of arrest, Royal Gazette (Bermuda), February 24, 2017

Shelley Murphy and Priyanka Dayal McCluskey, Former Bermuda premier defends his ties to Lahey, Boston Globe, February 22, 2017

Shelley Murphy and Danny McDonald, Bermuda’s ex-premier calls claims Lahey bribed him a litany of lies, Boston Globe, February 16, 2017

Sam Strangeways, Lawsuit slams Brown and Lahey, Royal Gazette (Bermuda), February 16, 2017

Janelle Lawrence, Bermuda files lawsuit accusing a U.S. hospital group of costly, unnecessary medical-imaging tests, Bloomberg News, February 15, 2017

Mark Arsenault, Former Bermuda leader with ties to Lahey was educated in US, Boston Globe, February 15, 2017

Jo Anne Pool, Northeast Women’s Center v. McMonagle: a message to poltical activists, Akron Law Review 23(2):251-267, 2015

John J. Hamill, Brian H. Rowe, Kaija K. Hupila and Emily Burke Buckley, A guide to civil RICO litigation, Jenner & Block, 2014

Bermuda Hospitals Board: Estate Master Plan review, Johns Hopkins, 2007

Reopen the Senate: practice democracy

From the daily news

“U.S. Senators prepared for a potentially rancorous day Tuesday, even by recent standards of partisan rancor, as Democratic leaders threatened to change filibuster rules to stop Republicans from blocking White House nominees for Administration appointments.

“Several votes were scheduled to test whether Republicans will allow simple-majority confirmations of a handful of long-stalled nominations. Some Senators expressed hopes for a breakthrough early Tuesday after none was reached during a rare, three-hour private ‘caucus’ of nearly all Senators Monday night.”

Associated Press reporter Charles Babington was summarizing events during the summer of 2013 that had led to what looked then like a radical proposal.

“If neither side retreats, potential consequences would last for years. A rules change that Majority Leader Harry Reid (D, NV) proposes is limited. It would end the ability of 41 Senators to block action on White House nominations other than judges. The out-of-power party still could use filibusters to block legislation and judicial nominees. Some critics say Reid’s plan would prompt Republicans to retaliate by doing even more to reduce the minority party’s rights when they regain control of the Senate–as early as 2014 elections.”

The struggle four years ago led to the first major write-down of the Senate’s so-called “filibuster” customs–really a gross misnomer. The outcome allowed the Obama administration to confirm key appointments over objections of Senate Republicans. Those included Gina McCarthy to head the Environmental Protection Agency and Richard Cordray to head the Consumer Financial Protection Bureau.

As Prof. Sarah Binder recounted in Congressional testimony published by the Brookings Institution, the so-called “filibuster” was not a founding tradition of the U.S. Senate. It is an invention: a legacy of the infamous Aaron Burr, who assassinated Alexander Hamilton, first Secretary of the Treasury, in 1804.

The original, founding Senate members adopted Rule 8 in April, 1789, under which any debate could be curtailed by a motion for the previous question, requiring a majority vote of those present. Mr. Burr urged on the Senate a custom of unlimited debate in his March, 1805, farewell speech as Vice President. The Senate warmed to his unctuous sense of self-importance and removed Rule 8 the following year.

The term “filibuster” was a borrowing. In the middle of the nineteenth century, it meant a rogue military operation or piracy. There was no actual attempt at seizing the Senate floor for unlimited debate until March, 1841, over an issue of replacing the Senate printers.

For the following 76 years the filibuster, although rarely practiced, was an absolute barrier to Senate action. Then Senate Rule 22, the cloture rule, was adopted in 1917, most recently modified in 1975–reducing the vote count from 67 to 60. Although curbed by the 2013 changes, the supermajority threshold of cloture has left the Senate paralyzed on significant issues.

What goes around comes around. There is never an ideal opportunity for major change. If Republicans abolish or choke off Senate filibusters this year, events are likely to favor future Senate Democrats. Historical precedents suggest small chances for the cockroach President to win a second term. He is at least as much disliked as former Pres. Polk (1845-1849) became.

The 2020 elections may install a Democrat as President and return Democrats as the Senate majority. If that were to happen, the gridlock of 2011 through 2013 could return. It was only partly relieved by the change that former Sen. Reid sponsored. The original Rule 8 should be revived.

– Craig Bolon, Brookline, MA, March 31, 2017


Mary Clare Jalonick and Erica Werner, Associated Press, Democratic opposition to Trump court pick grows, Schumer warns Republicans, WTOP (Washington, DC), March 31, 2017

Charles Babington, Associated Press, As filibuster talks flag, Senate faces showdown, New York Times, July 16, 2013

Jonathan Weisman, The Senate’s long slide to gridlock, New York Times, November 25, 2012

Sarah Binder, The history of the filibuster, Brookings Institution, 2010

Craig Bolon, Circuses: cheaper than bread, Brookline Beacon, February 21, 2017

Elections in 2016: trends from Massachusetts cities and towns

In 2016 general elections, Massachusetts voters extended a record of support for progressive causes and candidates. Voters strongly supported Clinton and Kaine for President and Vice President, and they returned a delegation of mostly progressive Democrats to Congress. On four statewide ballot questions, voters opposed another slot-machine casino, opposed lifting limits on charter schools, favored protective measures for farm animals and annulled former state laws against marijuana use and sale.

Votes for President and Vice President: Hillary Clinton and Tim Kaine won majorities in 257 Massachusetts cities and towns, losing in 94 of them. Populations in the cities and towns that Clinton won ranged up to 618 thousand (Boston), averaging 22 thousand. Populations in the cities and towns that she lost ranged up to 41 thousand (Westfield), averaging 10 thousand. Opposition came mostly from small towns. The ten communities with the strongest opposition were Blandford, Chester, Douglas, East Brookfield, Granville, Holland, North Brookfield, Russell, Southwick and Tolland–all with populations of less than 10 thousand.

Clinton support for President in Massachusetts

clintonsupportquintiles2016
Source: Secretary of the Commonwealth, preliminary

Source: American Community Survey, U.S. Census Bureau

Contrary to speculation that higher-income communities were more likely to support Clinton and Kaine, the votes of Massachusetts communities did not show a clear trend of that type. Instead, communities with larger populations voted more strongly for Clinton and Kaine. When Massachusetts communities were divided into quintiles according to support for Clinton, with quintile 1 the strongest support, there was a clear, uniform trend of increasing support with increasing community population.

Votes on charter schools: Sponsors of Question 2, trying to abolish limits on charter schools, spent $24 million. At around $20 for every vote they attracted, it was by far the most costly campaign ever on a ballot question. They won majorities in only 15 of the 351 Massachusetts cities and towns.

Under current laws and regulations, up to 120 charter schools are allowed statewide. Six cities have reached their local limits: Boston, Holyoke, Lawrence, Lowell, Springfield and Worchester. As of November, 2016, 88 charter schools had been designated in Massachusetts, located in 36 communities–one school in each of the following communities except as noted:

Adams, Boston (27), Cambridge (3), Chelsea (2), Chicopee, Devens, Easthampton, Everett, Fall River (3), Fitchburg, Foxborough, Framingham, Franklin, Greenfield, Hadley, Harwich, Haverhill, Holyoke (2), Hyannis (2), Lawrence (8), Lowell (3), Lynn, Marblehead, Marlborough, New Bedford (3), Newburyport, Norwell, Plymouth (2), Salem, Saugus, Somerville (2), South Hadley, Springfield (6), Tyngsboro, West Tisbury and Worcester (2).

No Massachusetts community that has a charter school supported Question 2. No city in the state and no town with a population over 28 thousand supported Question 2. Instead, high household incomes correlated with support for Question 2. When Massachusetts communities were divided into quintiles according to support for Question 2, with quintile 1 the strongest support, there was a clear, uniform trend of increasing support with increasing household income.

Support for Question 2 in Massachusetts

question2supportquintiles2016
Source: Secretary of the Commonwealth, preliminary

Source: American Community Survey, U.S. Census Bureau

The ten communities voting the strongest support for Question 2 were Aquinnah (on Martha’s Vineyard), Chilmark, Dover, Gosnold, Lincoln, Manchester-by-the-Sea, Nantucket, Sherborn, Wellesley and Weston. They include four of the six highest-income Massachusetts towns: Sherborn, Wellesley, Carlisle, Sudbury, Dover and Weston. None of the Massachusetts communities that supported Question 2 has a charter school.

Meanings of trends: Measured trends of support for Clinton and for Question 2 run cross-current to some popular political lore. In a graphical analysis, New York Times writers speculated that lower-income voters turned against Clinton, while higher-income voters did the reverse. Results from Massachusetts communities show no clear trend connected with incomes but instead show a trend involving sizes of the communities where voters live. The more urbanized voters tended to support Clinton.

In contrast, results for Question 2 from Massachusetts communities do show a clear trend connected with household incomes. Sponsors of Question 2 and their apologists claimed that the charter schools are hugely popular with low-income households. If that were true, then there might have been a trend linking stronger support for Question 2 with lower household incomes. However, the actual trend from Massachusetts communities went in the opposite direction.

Promotions for Question 2 appeared to have sophisticated authors, but perhaps the sponsors of Question 2 fooled themselves about the appeal of their products. Bystanders in communities hosting charter schools are much more numerous than participants–a factor that sponsors of Question 2 might not have weighed accurately.

– Craig Bolon, Brookline, MA, December 22, 2016


Massachusetts 2016 election results by cities and towns, plus demographics, Brookline Beacon, December, 2016

Massachusetts elections statistics, Secretary of the Commonwealth, December, 2016

American Community Survey, U.S Census Bureau, 2009-2013 ACS 5-year data release

Names and locations of charter schools, Massachusetts Charter Public School Association, December, 2016

Robert Weintraub, Massachusetts should vote No on more charter schools, BU Today (Boston, MA), October 17, 2016

Michael Altman, Charter schools: an issue of civil rights, WGBH (Boston, MA), October 25, 2016

Paul Crookston, Massachusetts charter school measure backed by Republicans, National Review, October 27, 2016

Editorial, Vote Yes on Question 2, Boston Globe, October 29, 2016

Jim Hand, White House says Obama neutral on charter schools ballot question, Attleboro (MA) Sun Chronicle, October 31, 2016

Editorial, Vote Yes on Question 2, Harvard Crimson (Cambridge, MA), November 3, 2016

Katharine Q. Seelye and Jess Bidgood, Charter schools are the big issue on Massachusetts ballot, New York Times, November 6, 2016

Felicia Gans, Donors spent big on Massachusetts ballot questions, Lowell (MA) Sun, November 7, 2016

K.K. Rebecca Lai, Alicia Parlapiano, Julia Preston and Karen Yourish, How Trump won the election according to exit polls, New York Times, November 8, 2016

Phil Demers, Fiercest Question 2 opponents often from communities with existing charter schools, Springfield (MA) Republican, November 13, 2016

Joan Vennochi, With Question 2 defeat, voters ignored the elites, Boston Globe, November 14, 2016

Samantha Winslow, Massachusetts teachers defeat charter school expansion, In These Times, November 14, 2016

Frank Phillips, Moody’s calls charter school rejection credit positive, Boston Globe, November 16, 2016

Lisa Guisbond, People power trounces big, dark money, as charter expansion suffers decisive defeat, Network for Public Eduction (Kew Gardens, NY), November 21, 2016

Dan French and Diana Lebeaux, Question 2 was defeated: now what?, Center for Collaborative Education (Boston, MA), November 21, 2016

Third-generation nuclear power: uncertain progress

The AP-1000 nuclear power-plant design from the U.S. Westinghouse division of Toshiba in Japan may become the major and perhaps sole survivor of competition in “third generation” nuclear. Eight units are currently under construction in the United States and China. The European Pressurized Reactor (EPR) from Areva of France has four units under construction in Finland, France and China. However, it is currently on life-support, owing to design and testing scandals and to major manufacturing defects.

“Third generation” nuclear from Rosatom in Russia, Kepco in South Korea and Hitachi in Japan gained little traction outside countries of origin. No plants are under construction, and no financing has been announced for deals reported with governments in Egypt, Abu Dhabi, Poland and India. A former barrier to manufacturing–as of 2009 only one plant, located in Japan, able to produce critical components–has been overcome by large, new steel forging facilities in several countries, including China, Korea, India and the United States.

There are other claimants to “third generation” technology–not credited by international business. In Japan, Hitachi completed four ABWR units in the 1990s. All remain idle in the aftermath of the March, 2011, nuclear catastrophe at the Fukushima Dai-ichi plant. Using French technology, China General Nuclear Power Group (CGN) in Guangdong province developed the CPR-1000 design. Like the Hitachi ABWR, it produces a slightly improved “second generation” nuclear power-plant. More recently, possibly using technology from the AP-1000, CGN announced another cheapened design called ACC1000 at first and more recently 华龙一 Hualong One, couched in Chlingish, or HPR-1000. A prototype has been announced for the Fuqing plant in Fujian province, which currently has two CPR-1000 units.

Schedules and costs: There are currently four AP-1000 nuclear units under construction in the United States, using the Rev. 19 design–providing aircraft impact resistance–approved in 2011 by the U.S. Nuclear Regulatory Commission. There are four units under construction in China using the Rev. 15 design, documented in 2006 by the U.S. but lacking aircraft impact resistance. A nationalized company in China licensed the Rev. 15 design and announced plans to build 10 or more additional units. Rev. 19 of the AP-1000 received “interim” approval by the UK in 2011. Currently, UK officials remain conflicted about whether to build EPR units. The Office for Nuclear Regulation has registered slow movement toward final AP-1000 approval.

An AP-1000 unit in Sanmen, China looks likely to become the first “third generation” nuclear unit to operate. Chinese industry got a head start by adopting the Rev. 15 design, rejected for U.S. plants. However, all AP-1000 projects world-wide are around three years behind schedule. The worst delays were caused by test failures of coolant pumps built by Curtis-Wright of Cheswick, PA. Those were controversial elements, based on technology developed for U.S. nuclear-powered submarines. Each AP-1000 unit has four of the pumps, using an innovative, sealed design unproven in industrial applications. After delivery delays of up to about two years, revised pumps have been installed at four of the eight AP-1000 units currently under construction. The revised pump designs are apparently not part of the Rev. 15 technology licensed to Chinese industry.

Fully burdened costs of AP-1000 units in the U.S. were recently reported more than $7 a watt, nearly a factor of two cost overrun. Full cost of the EPR unit at Flamanville, France is also reported at over $7 a watt–and still growing. Both European EPR projects are around ten years behind schedule, with cost overruns at least a factor of three. Schedules for the two EPR units in Taishan, China leaped ahead of the two in Europe, under a less demanding regime of regulation. However, schedules for all EPR projects are now in question from recent threats of catastrophic failure, owing to major manufacturing defects that remain under review in Europe.

Safety concerns: Safety concerns are always relative. Fatalities in automobile crashes per miles of vehicle travel probably peaked in the United States during 1900 through 1920, years before the U.S. government compiled records. Since 24.1 deaths per 100 million vehicle-miles for 1921, official tallies fell almost continuously to a low of 1.08 for 2014. For decades, however, the lures of automobile travel distracted U.S. attention from the dangers, while enthusiasm surged.

Lures of nuclear power in China and several other countries will more likely be weighed against hazards of alternatives rather than against hazards of nuclear power-plants. Hazards in those countries are dominated by large-scale burning of coal. Chinese steel, smelting and cement plants have been expanding rapidly, most of them burning coal. Over the past ten years, China added more than 800 coal-fired power units averaging 600 MW capacity. Academic research published in the summer of 2015 attributed more than a million and a half deaths per year in China to air pollution.

– Craig Bolon, Brookline, MA, September 6, 2016


First two AP1000s move closer to commissioning in China, World Nuclear News (UK), May 26, 2016

Scott Judy, U.S. contractor shake-up stirs nuclear project’s acceleration, Engineering News Record (Troy, MI), March 31, 2016

‘Hualong One’ joint venture officially launched by China, World Nuclear News (UK), March 17, 2016

Heavy manufacturing of power plants, World Nuclear Association (UK), 2016

Fatality analysis reporting system, U.S. National Highway Safety Administration, 2016

Jim Green, EPR fiasco unraveling in France and the UK, Nuclear Monitor (WISE International, Amsterdam), October 15, 2015

Rod Adams, Reactor coolant pumps for AP-1000 still a problem, Atomic Insights (Crystal City, VA), August 29, 2015

Dan Levin, Study links polluted air in China to 1.6 million deaths a year, New York Times, August 14, 2015

As U.S. shutters coal plants, China and Japan are building them, Institute for Energy Research (Washington, DC), April 23, 2015

UK assessment of AP-1000 design advances, World Nuclear News (UK), March 12, 2015

Robert Ladefian, The world’s largest canned motor pump, Nuclear Engineering International (UK), January 1, 2013

AP-1000 overview (Westinghouse), International Atomic Energy Agency (Vienna), 2011

Sven Baumgarten, Bernhard Brecht, Uwe Bruhns and Pete Fehring, Reactor coolant pump type RUV for Westinghouse reactor AP-1000, American Nuclear Society, Paper 10339, Proceedings of the International Congress on Advances in Nuclear Power Plants, June 13-17, 2010

Stephen V. Mladineo and Charles D. Ferguson, On the Westinghouse AP-1000 sale to China and its possible military implications, Nonproliferation Policy Education Center (Arlington, VA), March 29, 2008

Craig Bolon, Nuclear power-plants at risk from hidden defects, Brookline Beacon, September 3, 2016

Labor rights for U.S. domestic workers

Labor standards–wages, hours, benefits and age limits–were a thin patchwork in the U.S. until the Fair Labor Standards Act (FLSA) of 1938. The Franklin Roosevelt administration considered FLSA its most significant social legislation after the Social Security Act of 1935. In its initial form, FLSA provided a 25-cent-an-hour minimum wage, a 44-hour straight-time work week, time-and-a-half pay for overtime and a minimum working age of 16. However, there were exceptions and exclusions.

The Roosevelt administration was opposed by an unreconstructed Supreme Court, losing the issues in a 1935 case [Schechter Poultry] and losing in its “court packing” efforts of 1937. To resolve Constitutional issues, FLSA focused on occupations related to interstate commerce–notably manufacturing–generally omitting coverage for agriculture, construction and many services: transportation, retail trade, government, health care, education, publishing, machinery repair and domestic work.

The 1938 law also excluded coverage for union shops, as endorsed by both AFL and CIO out of fears that a wage floor might presage a wage ceiling. It survived two Supreme Court challenges in 1941. [Darby and Opp Cotton] By then, former Pres. Roosevelt was serving a third term and had appointed a majority of the Court: Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas and Frank Murphy.

Strengthening standards: Since World War II, labor standards have gradually been strengthened through four main channels:
• FLSA regulations, expanding coverage and increasing requirements
• FLSA amendments, removing and modifying exceptions and exclusions
• state and local standards, expanding coverage and increasing requirements
• interpretations, policies and lawsuits sometimes expanding coverage

Trends in federal minimum wage

FederalMinimumHourlyWage1938to2016
Source: U.S. Department of Labor, 2016

There have been three notable eras in federal minimum wage. The Franklin Roosevelt through the Lyndon Johnson administrations substantially increased the wage level, starting around $4 an hour and growing to around $10 an hour–in 2016 dollars–during 1938 through 1968. The Nixon through the Reagan administrations substantially shrank the wage level, from around $10 to around $6, during 1968 through 1988. The Herbert Bush through the Obama administrations maintained a stagnant wage level between about $6 and $8, during 1988 through 2016.

Labor standards in retail trade made progress through state initiatives–notably in setting minimum wages. Every state now has laws that benefit some workers outside the initial FSLA focus. Even in the “at will,” “right to work,” wage-and-hours-free state of Mississippi, employers can’t fire a worker because of jury service, if a worker provides “reasonable notice.” As of the start of 2016, more than half the states had a statewide minimum wage higher than the federal standard: 29 states plus the District of Columbia.

Currently the District is highest at $11.50 an hour, while California and Massachusetts are next at $10.00–to be compared with the $7.25 federal standard since July, 2009. Alabama, Louisiana, Mississippi, South Carolina and Tennessee have no state minimum wage. Georgia and Wyoming wage levels are below the federal minimum. The Deep South was the region most hostile to FLSA in the 1930s and remains the region most hostile to labor today.

Coverage struggles: Since early years of labor standards, starting with the first laws enacted in 1912 by Massachusetts, many groups of workers did not benefit. The U.S. Fair Labor Standards Act, in both initial and current forms, begins by stating a focus on “industries engaged in commerce or in the production of goods for commerce.” [P.L. 75-718, Sec. 2(a) and 29 USC 202(a)] “Commerce” under FLSA has been limited, both initially and now, to mean “trade…among the several States….” [P.L. 75-718, Sec. 3(b) and 29 USC 203(b)]

FLSA allows states and cities to enact stronger requirements. During the Truman and Eisenhower administrations, some states and cities began to close gaps in wage and hour coverage left in 1938. So far, no labor scholar has published an inventory of those initiatives, but sectors often involved appear to be retail trade, construction and transportation.

At the same time, business interests began to promote anti-union, “right to work” laws, authorized under the 1947 federal Taft-Hartley Act. The earliest of them, predating the act, was an amendment to the Arkansas constitution. Statewide laws are currently found in 25 states that are generally hostile to labor.

“Right to work” states

RightToWorkStated2016
Source: AFL-CIO, 2016

The Kennedy and Lyndon Johnson administrations began to expand FLSA coverage beyond narrow views of interstate commerce dating from the Great Depression and earlier. FLSA amendments enacted in 1961 included employees of retail trade firms with at least $1 million in annual revenue. Amendments enacted in 1966 included employees of schools, nursing homes, construction firms, commercial laundries and large farms.

Domestic workers: Sustaining work performed inside and near homes–care for children, the elderly, sick and disabled, cleaning, cooking, pet and plant care, laundry and other household services–had not been a focus of federal and state standards, in contrast with work performed away from homes. Domestic work currently remains at the far reaches of labor standards in most states.

A pioneering effort in Massachusetts–coordinated by Melnea Cass, the legendary Boston activist for civil rights and housing–resulted in the first state labor standards law covering most domestic workers. Chapter 760 of the Acts of 1970 provided coverage under the state’s wage and hours law: minimum wage, maximum weekly straight-time hours, overtime pay and contributions to Social Security and Medicare. For workers employed more than 16 hours per week, the 1970 law required workers compensation and unemployment insurance. These were all standards that had applied to most other jobs in Massachusetts.

FLSA amendments enacted in 1974 set federal standards for some domestic workers but specifically excluded workers providing “companionship services for individuals who…are unable to care for themselves.” It also excluded all live-in workers from overtime pay benefits. [29 USC 213] Intermittent and varying work hours and direct employment by householders have proven to be areas of difficulty. Some observers estimate that two-thirds or more of U.S. employers subject to FLSA fail to comply fully with the law.

In 2013, the Obama administration revised regulations to extend FLSA coverage to all domestic workers employed by agencies, regardless of duties, effective at the start of 2015. However, some workers without specialized training may not be eligible for overtime pay, and workers directly employed by householders remained excluded from coverage. These and other gaps are slowly being addressed by state laws specific to domestic workers.

As of August, 2016, seven states had enacted some form of enhanced labor standards for domestic workers, and in six states those had come into effect. The first new law was in New York, enacted in 2010, followed by Hawaii and California in 2013, Massachusetts in 2014, Oregon and Connecticut in 2015 and Illinois in 2016. None of these states have enacted anti-union, right to work laws. While provisions of the recent laws about domestic workers vary greatly, most take into account special situations of live-in workers.

Connecticut has the weakest of the new laws, providing only a guard against harassment. Massachusetts and Hawaii probably have the strongest. Only Massachusetts requires sick leave and parenting leave. Only Hawaii requires disability and health care insurance. Most states require time-and-a-half overtime pay, workers compensation insurance and unemployment insurance. Massachusetts had already required those benefits, since 1970. Most new laws require at least a day per week off-duty and some amount of paid personal leave. Some of the new requirements are stronger than those of federal labor laws and regulations.

Information and compliance: Elusive elements affecting standards for domestic work remain information and compliance. That generally takes organization. NAACP chapters were involved during pioneering efforts in Massachusetts, in the 1970s. More recently, National Domestic Workers Alliance, first located in New York City but now in Chicago, was organized in 2007 from experience with Domestic Workers United, founded in 2000 in New York City. Massachusetts Coalition for Domestic Workers was founded in 2010 and is located in Boston.

During the last few years, the domestic worker organizations and their academic partners have surveyed many domestic workers and employers in several U.S. cities. They provide unique information about work experiences and direct employment by householders. So far, however, most publications do not measure a shadow economy of unreported wages and undocumented workers that are sometimes mentioned in general media but rarely surveyed. A UCLA survey of about 500 direct employer households reported 14 percent paying “out of pocket.”

As anyone who has run an above-ground small business knows, complying accurately with labor law is complex. So far, no state has set up a clearing house to provide simple and centralized access to required record-keeping, reporting and payments. Large payroll services–PayChex and ADP–do not provide all the services needed to comply with state laws and are tedious to use. Concierge services, mostly available from accounting firms, can be very costly. The domestic worker organizations have not seen these issues as parts of their missions. A barrier their reports rarely acknowledge is that there is no method to report wages or to pay Social Security and Medicare contributions for undocumented workers.

– Craig Bolon, Brookline, MA, August 25, 2016


Enhanced state labor standards for domestic workers, Brookline Beacon, as of August, 2016

Massachusetts Coalition for Domestic Workers (founded 2010), 197 Friend St., Boston, MA, 617-603-1540

National Domestic Workers Alliance (founded 2007), Chicago, IL, 872-216-3684

Saba Waheed, Lucero Herrera, Reyna Orellana, Blake Valenta and Tia Koonse, Profile, practices and needs of California’s domestic work employers, UCLA Labor Center, May, 2016

Minimum wage laws in the states, Wage and Hour Division, U.S. Department of Labor, 2016

Natalicia Tracy, Tim Sieber and Susan Moir, Invisible no more: domestic workers organizing in Massachusetts and beyond, ScholarWorks, University of Massachusetts Boston, October, 2014

Benjamin Collins, Right to work laws: legislative background and empirical research, Congressional Research Service, January 6, 2014

Minimum wage, overtime protections extended to direct care workers by Labor Department, U.S. Department of Labor, December 17, 2013

Rachel Homer, What’s happening with domestic workers’ rights?, On Labor (Cambridge, MA), November 6, 2013

Gerald Mayer, Benjamin Collins and David H. Bradley, The Fair Labor Standards Act: an overview, Congressional Research Service, June 4, 2013

Karen Michael, Labor law: the Supreme Court and the Fair Labor Standards Act, Richmond (VA) Times-Dispatch, April 28, 2013

Nik Theodore, Beth Gutelius and Linda Burnham, Home truths: domestic workers in California, National Domestic Workers Alliance (New York, NY), 2013

Linda Burnham and Nik Theodore, Home economics: the invisible and unregulated world of domestic work, National Domestic Workers Alliance (New York, NY), 2012

History of changes to the minimum wage law, Wage and Hour Division, U.S. Department of Labor, 2007

Howard D. Samuel, Troubled passage: the labor movement and the Fair Labor Standards Act, U.S. Bureau of Labor Statistics, Monthly Labor Review 123(12):32-37, 2000

Dora L. Costa, Hours of work and the Fair Labor Standards Act: a study of retail and wholesale trade, 1938-1950, National Bureau of Economic Research, Industrial and Labor Relations Review 53(4):648-664, 2000

Jonathan Grossman, Fair Labor Standards Act of 1938: maximum struggle for a minimum wage, U.S. Department of Labor, 1978

Peyton Elder, The 1974 amendments to the federal minimum wage law, U.S. Bureau of Labor Statistics, Monthly Labor Review 97(7):33-37, 1974

Leon H. Wallace, The Fair Labor Standards Act, Indiana Law Journal 22(2):113-149, 1947

Opp Cotton Mills, Inc. v. Administrator, U.S. Supreme Court, 312 U.S. 126, 1941

United States v. Darby, U.S. Supreme Court, 312 U.S. 100, 1941

U.S. Fair Labor Standards Act, in original form as Public Law 75-718, 1938

Schechter Poultry Corp. v. United States, U.S. Supreme Court, 295 U.S. 495, 1935

New gas pipelines spurned: no subsidies from electricity rates

If operators of interstate natural gas pipelines succeed in getting permits for expansions in Massachusetts, they will have to raise their own funds to install new lines. On Wednesday, August 17, the Supreme Judicial Court ruled out schemes that would have subsidized new gas pipelines from Massachusetts electricity bills.

Utility companies Eversource and National Grid had proposed to acquire interests in new gas pipelines and load costs upfront onto electricity rates. The Baker administration and its Energy secretary, Matthew Beaton, had supported the schemes–similar in effect to construction-work-in-progress tariffs used to force electricity customers in Georgia and South Carolina to pay for new nuclear power-plants while they are being built.

Corrupt schemes: Attorney General Maura Healey and state Sen. Stanley Rosenberg (D, Amherst), the senate president, opposed the corrupt schemes. They were joined by the Conservation Law Foundation in responding to a lawsuit filed by interests in natural gas import terminals. Imports of liquefied natural gas, while more expensive than domestic pipeline gas, have helped to reduce and prevent wintertime price spikes. As documented in 2015 by Analysis Group of Boston, that approach costs less overall than installing new interstate gas pipelines.

In what looks to be his last opinion, Justice Robert Cordy wrote for a unanimous court, finding that the Baker administration’s regulation, allowing pipeline construction tariffs, was “invalid in light of the statutory language and purpose” of the Electricity Restructuring Act. [Chapter 164 of the Acts of 1997] Specifically, Justice Cordy wrote, the Baker administration’s regulation “would undermine the main objectives of the act and re-expose ratepayers to the types of financial risks from which the legislature sought to protect them.”

It was a conclusive decision, putting paid to the corrupt schemes engineered by the pipeline companies and to the corrupt regulations adopted by their Republican sweethearts in state government.

– Craig Bolon, Brookline, MA, August 17, 2016


ENGIE Gas & LNG LLC v. Department of Public Utilities, Massachusetts Supreme Judicial Court, Case Nos. SJC-12051 and SJC-12052, August 17, 2016

Jon Chesto, SJC rejects Baker’s plan to impose fee for gas pipelines, Boston Globe, August 17, 2016

Naureen Malik, The U.S. has more gas than it needs and Boston’s importing, Bloomberg News, April 13, 2016

Craig Bolon, Will New England revive nuclear power?, Brookline Beacon, August 10, 2016

Craig Bolon, Little need for new gas pipelines, Brookline Beacon, July 20, 2016

Little need for new gas pipelines

A year ago, companies based in the Southwest were planning about 3.0 billion cubic feet per day (Bcf/d) in new natural gas pipeline capacity entering New England, nearly doubling current capacity of about 3.6 BCf/d. Why would that happen? New England is at most a slowly growing energy market. Since the region was already well advanced in switching from coal-fired and oil-fired to gas-fired electricity generation, there were no huge, likely new customers. It was clear that pipeline companies had other motives.

Although pipeline companies would not admit it, most industry observers read those motives as sending U.S. natural gas into international markets through Canada. For such purposes, New England is not a market but a transportation route. The region does not need to accept environmental hazards in order to boost pipeline company profits milked from the region by using it as a pathway to foreign trade.

Gas giant collapses: Since then, new information appeared, and pipeline momentum stalled. Last November, Maura Healey, the state’s attorney general, released a report prepared by Analysis Group of Boston (AGB), examining needs for new gas pipeline capacity to provide reliable electricity. In its 70-page report, AGB showed that adaptation of the current electricity network can meet needs for at least the next fifteen years, without new gas pipelines.

New England was not well outfitted for cold winters of 2013 and 2014, when natural gas supplies were stressed, causing spikes in electricity prices. Advance preparation–stockpiling fuels and equipping plants to burn either gas or oil–began to help the next year. In the winter of 2016, milder weather and better preparation led to no electricity price spike.

Monthly electricity prices, Jan. 2010 thru June 2016

IsoNeMonthlyHubDayAhead2010to2016
Source: ISO New England data, July, 2016

The region’s average wholesale electricity price for the utility year ended March 31 was 2.8 cents per kWh. Wholesale electricity prices this year stand comparable to other regions that organize competitive generation markets. Retail prices remain higher in New England than in most of the U.S., but that is mainly because of aging distribution networks, incurring high maintenance costs. Despite claims from pipeline promoters, given good management of current gas supplies, New England has little to gain and much to lose from new pipelines.

This spring, the proposed Northeast Direct pipeline was cancelled by financial parent Kinder Morgan of Houston, TX. It was the largest and most disruptive of the New England projects, threatening undisturbed lands and state forests across northwestern Massachusetts and southern New Hampshire. Although Kinder Morgan cited “market” factors, it no could longer depend on political pressures stimulated by electricity price spikes.

Next largest projects: Access Northeast, sponsored by Spectra Energy of Houston, is the next largest project. Unlike Kinder Morgan’s proposed line, most of Spectra’s proposal was sited along rights of way for the Algonquin pipeline, opened in 1953, which Spectra now operates. However, Access Northeast also includes large branches that would plow through new territories.

Spectra Access Northeast, eastern Connecticut through Massachusetts

SpectraAccessNortheastCTRIMA2016
Source: U.S. Federal Energy Regulatory Commission, July, 2016

The largest new branches are proposed in central and eastern Massachusetts, running from the Algonquin main line in Medway to West Boylston, just north of Worcester, and from Medway to Canton, where that new branch is to rejoin and reinforce the southern part of the main line, heading toward Weymouth. The branches through new territories, about 50 miles in all, are generating much more opposition than the rest of the project, about 75 miles that are nearly all sited on current Algonquin rights of way.

Opponents of Spectra have more complex targets than opponents of Kinder Morgan. There are now three Spectra projects in New England. Algonquin Incremental Market has been in construction since 2015, aimed at increasing capacity along the Algonquin main line between southern New York and eastern Massachusetts. Its most controversial feature has been a high pressure, 3-1/2 ft diameter pipe under the Hudson River, passing a few hundred feet from the Indian Point nuclear power plant in Buchanan, NY.

International exports: Atlantic Bridge is the most revealing and speculative Spectra project. It would increase compressor power all along the Algonquin line and add a new compressor in Weymouth. That one would be used to reverse gas flow on the HubLine, opened in 2003 across Massachusetts Bay between Weymouth and Beverly Harbors. There are no proven markets in New England to be served. Instead, like the recently cancelled Kinder Morgan project, Atlantic Bridge would aid international export of U.S. natural gas through Canada.

So far, Spectra has shuffled along plans for its three large, mutually reinforcing projects in defiance of law. The combined new capacity from the three large Spectra projects is more than the capacity that was planned from the cancelled Kinder Morgan project. A 1976 Supreme Court opinion held that “when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.”

Ms. Healey, the attorney general, is currently defending the state against a pipeline company lawsuit for a small project, extending a branch line into northwestern Connecticut across a state forest. So far, however, while she raised the issue of concurrent projects in comments sent to the U.S. Federal Energy Regulatory Commission, she has not launched a court challenge against the Spectra projects–all seeking separate reviews instead of joint review as elements of a single, larger project.

– Craig Bolon, Brookline, MA, July 20, 2016


Jon Chesto, Kinder Morgan shelves $3 billion pipeline project, Boston Globe, April 20, 2016

Mild weather, ample natural gas supply curb Northeast winter power and natural gas prices, U.S. Energy Information Administration, April 5, 2016

Sam Thielman, Planned gas pipeline alongside Indian Point nuclear plant stirs meltdown fears, Manchester Guardian (UK), April 4, 2016

Clarence Fanto, Massachusetts attorney general picks up fight against natural gas pipeline that would serve Connecticut, New Haven (CT) Register, March 21, 2016

Wholesale power prices decrease across the country in 2015, U.S. Energy Information Administration, January 11, 2016

Paul J. Hibbard and Craig P. Aubuchon, Power system reliability in New England, Analysis Group (Boston, MA), November 18, 2015 (1 MB)

Paul L. Joskow, Natural gas: from shortages to abundance in the U.S., American Economic Review, 103(3):338-343, 2013

Bruce Estrella, HubLine impact assessment, mitigation and restoration, Massachusetts Office of Energy and Environmental Affairs, 2009

Craig Bolon, New England gas pipelines: attorney general weighs in, Brookline Beacon, November 1, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

Fairer elections and more diverse officeholders

Some supposedly “American” innovations in democracy actually began in Australia, led by Tasmania. Perhaps the most surprising of them might be the official and anonymous ballot–first used there in 1856–inaccurately called the “secret ballot.” After experiments in Louisville, KY, and other cities, in 1888 Massachusetts became the first U.S. state to require government printed, anonymous ballots based on the Australian model. Washington and Lincoln had been elected using open, privately printed ballots, as was New York City’s infamous Tweed gang.

A more rarely used Australian innovation aims at fair representation, intended to make it more feasible for minorities of all sorts to become officeholders. Tasmania has used one such approach since 1907: ranked voting. Candidates are ranked on ballots, and votes are distributed according to the rankings. In Massachusetts, the City of Cambridge adopted a version of this approach, starting in 1941, and still uses it.

Ranked and weighted voting: Tallying elections using ranked voting is always complex, and it always involves some arbitrary shortcuts for distributing votes according to rankings. No state has adopted it. Cambridge used to need about a week for a tally until 2001, when the city bought a computerized system–also adopted by Burlington, VT. Australia continues with slow, manual tallies. A week after its 2016 elections for parliament, the winning party was known, but the numbers of members for the parties remained in doubt.

It has been shown that unbiased translation from voter rankings to candidate selections poses a factorially complex problem, far beyond foreseeable computing power for voting populations of most communities. Weighted voting provides a far less complex approach to fair representation, in which voters weight rather than rank their support for candidates. Modern forms of it are innovations from the United States, not Australia.

CumulativeBallotExample

The simplest fair-voting plan equips each voter with multiple votes to be allocated among the candidates for an office. Such an approach can be compatible with electronic, scanned and plain-paper ballots and can yield an almost instant election result. Adding normalized weights that were assigned to candidates by voters avoids the arbitrariness and huge complexity of trying to interpret rankings. Weighted or “cumulative” voting is used in business settings, but no U.S. states and only a few communities–such as Port Chester, NY–have adopted it. However, the Electoral College that chooses Presidents has provided a longstanding example, since 1824.

Official cliques and transformative change: Local governments in most communities often fall into control of official cliques, but those may wax and wane over time as powerbrokers come and go. Election reforms can help communities resist cliques, increase diversity and improve open government. One can expect resistance to such reforms from members of cliques.

New England towns with representative town meetings typically have annual elections for groups of officeholders who hold staggered terms, with only a subset of a group elected at a time. Such a custom promotes formation and persistence of official cliques; they need focus on only a small number of candidates in any one year. It harbors minefields for independent candidates and newcomers.

A potentially transformative change to a New England town would truncate current terms of offices and change to elections every few years, with all members of groups of officeholders elected at the same time, as typically occurs in cities. Coupled with change to weighted or “cumulative” voting, minorities of many sorts would see improved opportunities to counter cliques and to elect some officeholders.

– Craig Bolon, Brookline, MA, July 10, 2016


Kristen Gelineau, Associated Press, Australian leader claims election win, but questions remain, ABC News, July 10, 2016

Stephen St. Vincent, Could ranked choice voting stop Donald Trump?, Philadelphia (PA) Citizen, March 10, 2016

Ranked choice voting and instant runoff, FairVote (Takoma Park, MD), 2015

Cumulative voting, U.S. Securities and Exchange Commission, 2014

Jill Lepore, How we used to vote, New Yorker, 2008

Peter Brent, The Australian ballot, Canberra Times, 2005

Andrew Gelman, Jonathan N. Katz and Joseph Bafumi, Standard voting power indexes do not work: an empirical analysis, British Journal of Political Science 34:657–674, 2004

David Goode, The advent of proportional representation in Cambridge, Cambridge (MA) Civic Journal, 1998

Douglas J. Amy, A brief history of proportional representation in the United States, Mount Holyoke College, 1997

Lani Guinier, The case for cumulative voting, WBAI Net (New York, NY), 1994

John J. Bartholdi, III, and James B. Orlin, Single transferable vote resists strategic voting, Working Paper No. 3221-90-MS, Sloan School of Management, Massachusetts Institute of Technology, 1990

Electoral Reform with the Massachusetts Ballot Reform Act and New York (Saxton) Bill, Economic Tracts 24, Society for Political Education (New York, NY), 1889

Trash metering: cheaper by the barrel

A regular meeting of the Board of Selectmen started at 6:15 pm in the sixth-floor meeting room at Town Hall. The main business of the evening finally began an hour and a quarter later: a public hearing on trash metering, repeatedly postponed for more than a year.

Melvin Kleckner, the town administrator, seemed to suggest he had played some role in the plans, saying his administration was “still early in the process.” While that might be, Andrew Pappastergion, the public works commissioner, had described the elements at a public meeting two years earlier: standard-sized trash carts replacing a wobbly approach that charges every participating household the same fee for unlimited refuse collection and disposal.

The gist of the new plan is that households can sign up for trash carts of different sizes and pay annual fees for weekly collection and disposal. They can also buy standard plastic bags, as many as they need, for either regular or overflow refuse collection. Bags are more costly to handle, so proposed fees per pound of refuse put out in bags are higher than fees for using standard trash carts. Mr. Pappastergion did not give a starting date for trash metering, saying it was still at least a year away.

The most recent twists on the plan were on display at the hearing: four sizes of standard trash carts with capacities rated at 18, 35, 65 and 95 gallons–all to be supplied by the town. Starting about five years ago, Brookline has been supplying bright blue plastic carts for recycling. They were originally all 65-gallon capacity. More recently, 35-gallon and 95-gallon capacity has been available on request. The 18-gallon cart is a new member of the line. It has about the same girth as the 35-gallon cart but is not as tall.

Refuse service fees, cheaper by the barrel: According to Mr. Pappastergion, several other communities in eastern Massachusets now operate refuse and recycling collections in similar ways. However, the rubber meets the road in pricing. The fees now proposed make refuse services much cheaper by the barrel, rather than by the bag.

type refuse, lb fee–weeks annual lb annual fee fee per lb
big bag 25 $3–1 1300 $156 $0.120
18-gal 24 $130–52 1248 $130 $0.105
35-gal 48 $180–52 2496 $180 $0.072
65-gal 87 $260–52 4524 $260 $0.057
95-gal 125 $340–52 6500 $340 $0.052

Proposed fees are also much higher for the smaller trash carts: about twice as much per pound for the 18-gallon carts as compared with the 95-gallon carts. Mr. Pappastergion did not provide the comparisons that the Beacon shows, above, and he did not offer any explanation of pricing. Multifamily buildings with space for the larger carts will pay much less for refuse services than buildings that lack enough space. A typical 3-family building would pay less yet get a bigger service quantity by using 65-gallon rather than 35-gallon trash carts:

size number carts annual fee annual lb
35-gal 3 $540 7488
65-gal 2 $520 9048

Public comments: Sean Lynn-Jones, a Precinct 1 town meeting member who chairs the Advisory Committee, urged that Brookline “maintain flexibility” and consider individual circumstances. Kenneth Goldstein, who stepped off the Board of Selectmen a year ago, recounted his experience using a single, 35-gallon trash cart for his family of four. They get along with it, he said, “It works.”

Nomi Burstein of Garrison Road told a different story. Space in her neighborhood is very limited, she said, not enough even for current recycling carts: “Last year we stopped recycling during the winter.” Susan Granoff of Vernon Street, a Precinct 7 town meeting member, agreed. “Lack of storage space,” she said, “is a big problem.” Anne McNulty of Claflin Road said her street is “littered with blue.” Brookline recycling carts are being kept in front of buildings for lack of space to store them elsewhere.

Ms. McNulty’s neighbor Harry Friedman, a Precinct 12 town meeting member, said Claflin Road neighbors will hold an exhibit on their street next Sunday afternoon, May 22, showing how difficult a situation the town-supplied carts are creating for their urban environment. Mr. Friedman sponsored Article 17 at the annual town meeting that starts Tuesday, May 24. It proposes a resolution seeking an “exception system” where use of trash carts would be “impractical.”

– Beacon staff, Brookline, MA, May 18, 2016


Warrant report for the 2016 annual town meeting, Town of Brookline, MA, May 10, 2016

Department of Public Works, Hybrid pay-as-you-throw (trash metering) proposal, Town of Brookline, MA, May 17, 2016

Public Works: question time and complaints, Brookline Beacon, May 15, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Greenhouse gases: passing the buck

For several years, the General Court and the Patrick administration made an intramural sport out of passing the buck over greenhouse-gas emission limits: extremely ambitious goals set for dates long after terms of the legislators, bureaucrats and governor had expired. The fit is finally hitting the Shan over one episode, the so-called Global Warming Solutions Act (GWSA) of 2008.

Our Children’s Trust, an Oregon-based nonprofit, organized a challenge on behalf of four Massachusetts high-school students, claiming that the state Department of Environmental Protection had failed to satisfy a GWSA requirement. In August, 2014, lawyers from the Boston firm of Sugarman, Rogers, Barshak & Cohen filed suit, joined by the Conservation Law Foundation in Boston and by the Energy Consumers Alliance of New England. [Kane v. Massachusetts]

Bad law makes hard cases: The terms of state legislation have made the Kane case an uphill struggle. The GWSA provision at issue requires: “The [Department of Environmental Protection] shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions [sic].” [Massachusetts General Laws C. 21N, S. 3(d), as enacted by Acts and Resolves of 2008, C. 298, S. 6]

What plaintiffs in the Kane case clearly want is some form of overall state limit on Massachusetts greenhouse gas emissions, declining year-by-year. For better or worse, that was not required by GWSA. Instead, the state was directed to establish declining goals for some sources, and it did more than that. Its defense to the lawsuit cited three state regulations with declining, mandatory limits, adopted after GWSA.

In 2012, the state updated regulations for the Ultra-low-emission Vehicle Program. [310 CMR 7.40(2)(a)] In 2013, it amended regulations for the CO2 Budget Trading Program. [310 CMR 7.70(5)] In 2014, it issued new regulations for sulfur hexafluoride emissions from gas-insulated switchgear. [310 CMR 7.72] Each of those had declining, mandatory limits–not just goals–for years from 2015 through 2020.

Judge Robert Gordon of Suffolk Superior Court made swift work of the original case. He wrote, “The regulatory initiatives implemented by DEP may or may not prove effective…it will not be because the Department flouted the statutory directives…It is not…for this Court to rewrite the statute that the plaintiffs wish the General Court had enacted…the Massachusetts Department of Environmental Protection has substantially satisfied the requirements of Mass. G.L. C. 20N, S. 3(d).”

Newspapers make mischief: In their typical, hackneyed “he said…she said” style, newspapers have spun a straightforward decision into a moral crisis. Writing in the Boston Globe, David Abel quoted lawyers who argued for the plaintiffs in the Kane case, saying, “…the state has failed to take sufficient action to comply with the state’s 2008 Global Warming Solutions Act.”

The Supreme Judicial Court allowed the case an expedited appeal, soliciting briefs from “friends of the court” and hearing arguments on Friday, January 8. However, even an activist court would need to perform gymnastics to find that the Massachusetts Department of Environmental Protection did less than GWSA asked. So far, newspapers and lawyers let off the hook the legislators who drafted a poorly planned and badly written law.

– Craig Bolon, Brookline, MA, January 11, 2016


An act establishing the Global Warming Solutions Act, Massachusetts Acts and Resolves of 2008, Chapter 298

Complaint, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, filed August 11, 2014

Judgment, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, issued March 23, 2015

Reducing sulfur hexafluoride emissions from gas-insulated switchgear, Massachusetts regulation 310 CMR 7.72, April 25, 2014

CO2 budget trading program, CO2 allowance allocations, Massachusetts regulation 310 CMR 7.70(5), revised December 6, 2013

Ultra-low-emission vehicle program, Emissions requirements and prohibitions, Massachusetts regulation 310 CMR 7.40(2)(a), most recently revised January 1, 2016

David Abel, Suit faults Massachusetts record in cutting emissions, Boston Globe, January 3, 2016

Diversity Commission: police and fire department report

A regular meeting of the Diversity, Inclusion and Community Relations Commission on Wednesday, December 16, started at 6:30 pm in the Denny Room at the Brookline Health Center. The agenda, mostly a series of reports from working committees, gave little hint of fireworks to be set off.

Consultant report: A consultant engaged by the Board of Selectmen has submitted a report on workforce diversity and related issues in Brookline’s police and fire departments, and the report has been distributed to the commissioners. Under agenda item 9, Bernard Greene, a member of the Board of Selectmen who regularly attends commission meetings, was to lead a discussion.

A major impetus to the report has been the dispute involving a Brookline firefighter who has been on extended leave, following a racially charged incident starting with an alleged insult by a supervisor. That was also an influence for organizing the commission.

Town management and members of the Board of Selectmen opted to abolish the former Human Relations Commission and set up a new group that would be excluded from most issues involving town workers. After a long series of reviews, they accomplished the goal under Article 10 at the annual town meeting of 2014.

Complaints: The commission’s review of the police and fire report was punctuated by comments from the public–notably from two police officers. According to them, the department has been afflicted with racial tensions. Unlike the departments of forty and fifty years ago, today’s Brookline Police Department includes several minority and women officers, although senior leadership are white men.

One officer, who was recorded on video later distributed to the public, said he had worked in the Police Department “for about three years now, and as a black man I don’t feel safe working in this town. I’ve had racial comments said to me from the supervisor, from fellow patrolmen–and I just don’t feel safe here.”

Another officer, also recorded on video later distributed to the public, said, “I’ve been a police officer in Brookline for [over 16 years]. On December 4, I was in a marked cruiser in uniform and pulled up to a member of the Brookline Police command staff to speak with him. What he said to me when I rolled the window down was basically, ‘Pull your car up on the sidewalk or on the corner, go up on the sidewalk and do some ni***r jumping jacks for me, and I’ll put in a good word for you.’”

The Brookline Police Department has attracted sharp criticism from both residents and visitors to the town, receiving a poor Internet rating. Brief excerpts from recent comments indicate some typical complaints:

From a visitor: “I know someone who was arrested for an unpaid speeding ticket…In the squad car, he overheard two officers making inappropriate racial & linguistic comments about people who had immigrated to the US.”

From a resident: “The cops are racist, I’ve been followed plenty of times, stared at like I’m committing a crime, and harassed. I love being followed while I drive down the street to my house by a cop car so they can check and see if I’m driving a stolen car….”

From a visitor: “The Brookline Police function primarily as an extortion racket. They are claiming that I have an unpaid parking ticket from *ten years* ago, and my license has now expired because I couldn’t renew it. Trying to pay this ticket has been a Kafkaesque nightmare….”

Commission duties: The Diversity, Inclusion and Community Relations Commission looks to have plenty of work ahead. Although left without a major role in labor issues of the town’s workforce, it has responsibilities to investigate and report discrimination and bias incidents in Brookline. According to Article 3.14 of the general bylaws of Brookline, revised as of June 2, 2014:

3.14.1 …The Purpose of the Commission and the goal of the Town shall be to strive for a community characterized by the values of inclusion…justice in a community requires, at a minimum, monitoring and enforcing civil rights laws as they apply to all persons who come in contact with the Town…regardless of their race, color, ethnicity, gender, sexual orientation, gender identity or expression, disability, age, religion, creed, ancestry, national origin, military or veteran status, genetic information, marital status, receipt of public benefits (including housing subsidies), or family status…herein, “Brookline Protected Classes”….

3.14.3(A)(viii)(3) …the Commission…shall have the following responsibilities:…Receive complaints, according to procedures developed by the Commission and as approved by the [Board of Selectmen], and initiate preliminary review of the facts, without drawing any legal conclusions, from any person who comes in contact with the Town, concerning allegations of discrimination or bias against a member of a Brookline Protected Class. The Commission shall also have the authority, in its discretion, to…Present any results of preliminary review of the alleged facts to the Town Administrator and/or the Board of Selectmen, in an appropriate case, for action….

– Beacon staff, Brookline, MA, December 20, 2015


Diversity, Inclusion and Community Relations Commission, Agenda for December 16, 2015

Brooks Ames, Brookline Justice League filed class action lawsuit to put an end to racial subordination in Brookline, plus other posts, Twitter, December 2-20, 2015

General bylaws, Town of Brookline, MA, as of May 26, 2015

Civil rights lawsuit: town and individuals accused, Brookline Beacon, December 14, 2015

Board of Selectmen: firefighter Gerald Alston, Jr., speaking, Brookline Beacon, December 6, 2014

Annual town meeting: human relations, regulations and zoning, Brookline Beacon, May 31, 2014

Human Relations Youth Resources Commission: Coping with changes, Brookline Beacon, April 24, 2014

Board of Selectmen: marijuana dispensary license

A regular meeting of the Board of Selectmen on Tuesday, December 8, started at 6:00 pm in the sixth-floor meeting room at Town Hall. The early start left ample time for a final hearing on the registered medical marijuana dispensary being proposed at 160 Washington St. in Brookline Village–the intersection with Boylston St. (Route 9).

Minutes: Neil Wishinsky, the board’s chair, announced that minutes of closed sessions that were held this year on January 20, May 12, June 9 and September 8 will be released. They all concerned “real property,” a lawful topic for a closed session. The session on January 20 was described as reviewing a “lease agreement.” The ones on June 9 and September 8 were held jointly with the School Committee.

The four sets of minutes were not online as of December 12 but are available on request. Under the state’s open meeting law and regulations, the board must release minutes of closed sessions when the matters are finished and the reasons for confidentiality no longer apply. In practice, the board has reviewed and released minutes of closed sessions only on request. There are hundreds of closed meetings with unreleased minutes.

Marijuana dispensary: A long review of a registered dispensary for medical marijuana is nearing an end. Voters approved medical marijuana in the fall of 2012. A town meeting authorized zoning and local licensing in the fall of 2013. The next year, New England Treatment Access (NETA) filed for a zoning permit, reviewed by the Zoning Board of Appeals, and a local license, reviewed by the Board of Selectmen.

After exploring a potential site near the corner of Beacon St. and Summit Ave., NETA negotiated an agreement for the currently proposed site in Brookline Village. In December, 2014, the town’s Licensing Review Committee began a series of five public meetings and one public hearing. The Zoning Board of Appeals held a hearing April 23 of this year and granted a zoning permit.

The NETA proposal to use the former Brookline Savings Bank building at 160 Washington St. attracted strong neighborhood protest. Opponents filed an article for the fall town meeting last year, seeking zoning changes that would have struck out the former Savings Bank building as a potential site. They lost 60-146, in an electronically recorded vote.

The Licensing Review Committee developed a fairly stringent set of recommended license conditions, completed last April. On April 25, the Board of Selectmen adopted general regulations for registered marijuana dispensaries, based on those committee recommendations.

Until May, the committee was headed by Betsy DeWitt and Kenneth Goldstein, former members of the Board of Selectmen. They did not run for new terms and were replaced by Nancy Heller and Bernard Greene. The Licensing Review Committee’s findings are advisory; the Board of Selectmen is not obliged to follow them.

Headwinds: Signs of dissent emerged last month. As a regular meeting Tuesday, November 3, the Board of Selectmen was to discuss “the process for reviewing the application” from NETA for a local license. As minutes of the meeting show, the discussion soon veered from process into substance. Mr. Wishinsky suggested that any license be for a “trial period.” Board member Ben Franco questioned sales of edible products containing marijuana.

Nancy Daly, now in her tenth year on the board, called for monitoring “excessive prescriptions.” She did not say how that might be achieved but did propose several added conditions on a license for the proposed medical marijuana dispensary. They included:
• No walk-in business, service by appointment only
• A maximum number of appointments per hour
• On-site dispensing limited to 20 percent of state limits
• Home deliveries for balances of sales above local limits
• Hours of operation 10 am to 7 pm except noon to 5 pm Sunday

So far, the board is not known to have proposed similar limits on local businesses that sell other medical products. Although medical marijuana has not been identified as a significant cause of death in the United States, most pharmacies stock prescription drugs involved in a long, horrible trend of U.S. drug deaths.

U.S. drug deaths, 1999 through 2014

CdcDrugDeathDate1999to2014
Source: U.S. Centers for Disease Control and Prevention

Contrary to many, uninformed news reports, rapidly rising deaths from drug use are not a recent trend. Data from the federal government that span 15 years show major growth in drug deaths of U.S. residents over that entire period. Prescription drugs–not black-market drugs–caused an average of about two-thirds of those drug deaths. Currently, the U.S. rate of drug deaths exceeds the U.S. rate of deaths from motor vehicles. Prescription drugs are responsible for about 60 percent of current U.S. drug deaths.

Public hearing: The board’s public hearing on a local license continued for over two hours but produced little that had not previously emerged from several related hearings held this year and last year. Those occurred at the Licensing Review Committee, the Advisory Committee on Public Health, the Planning Board, the Zoning Board of Appeals, the Zoning Bylaw Committee and the Advisory Committee and its subcommittees.

Following its November 3 meeting, the Board of Selectmen released an unsigned document titled “Proposed conditions for a registered marijuana dispensary license (2015-11-20 Draft)”. Footnotes tell who on the board proposed some of the conditions but give no explanations. At the hearing, Amanda Rossitano, who has been named manager of NETA’s Brookline dispensary, objected.

The NETA dispensary now operating in Northampton, Ms. Rossitano contended, has had no problems that might justify added license restrictions. She objected to proposals for business by appointment only, for an on-site sales limit lower than the state limit and for home delivery requirements applied to larger sales.

Mr. Wishinsky, the board’s chair, asked for a police report. Mark Morgan, a deputy superintendent, responded: “No traffic or police issues experienced in Salem, Brockton or Northampton”–three of the four communities with dispensaries now operating. The board spent substantial time questioning pharmaceutical properties and testing of products, although it lacks jurisdiction in those areas.

Frank Smizik, state representative for Precincts 2-4 and 6-13, testified in support of a local license. “NETA is a competent company,” he said. “Amanda Rossitano helped lead my office for several years.” Mr. Smizik stated he “does not support additional purchase limits” as license conditions.

Several other Brookline residents and former residents supported a license for NETA, with some objecting to added license restrictions. They included Anne Braudy of Linden Ct., Richard Brauley of Pond Ave., Fred Levitan of Beacon St., Linda Olson Pehlke of Browne St., Ronna Benjamin of Newton, Dr. Peter Moyer of Walnut St., Dr. Jordan Tishler of Loveland Rd. and Dr. Mark Eisenberg of Monmouth St.

Brookline opponents included Gordon Bennett of Davis Ave., Andrew Olins of Walnut St., George Vien of Davis Ave. and Dr. Elizabeth Childs of Walnut St. Some supported added restrictions, and all opposed the proposed site on Washington St. However, Dr. Cornelia “Kea” van der Ziel of Wolcott Rd. said the location is “as good a site as we can get in the town” and pointed out that “home delivery is not an option for some people.” The Board of Selectmen will review the hearing and reach a decision at a later meeting.

– Beacon staff, Brookline, MA, December 12, 2015


Causes of drug deaths, U.S. Centers for Disease Control and Prevention, February, 2015

Tracey Michienzi, Draft conditions from Licensing Review Committee, April 8, 2015

Regulations, registered marijuana dispensary, Town of Brookline, MA, April 24, 2015

Minutes, Board of Selectmen, Town of Brookline, MA, November 3, 2015

Unsigned, Draft conditions, from current Board of Selectmen, November 20, 2015

Zoning Board of Appeals: zoning permit for a registered marijuana dispensary, Brookline Beacon, April 25, 2015

Licensing Review Committee: registered marijuana dispensary, Brookline Beacon, January 29, 2015

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries, Brookline Beacon, November 18, 2014

2014 fall town meeting: electronic voting, Brookline Beacon, November 27, 2014

Craig Bolon, Medical marijuana in Brookline: will there be a site?, Brookline, Beacon, December 7, 2014

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

New England gas pipelines: attorney general weighs in

In New England, there are now six natural gas pipeline projects active, in review or announced. They would increase total pipeline capacity into the region by about 75 percent. There is no foreseeable market in the region for that amount of new gas. Instead, pipeline companies appear to be speculating on exporting U.S. natural gas through New England into international markets. However, they want New England utility customers to pay for their pipelines, and they have been working to sign up utility companies as business partners.

Northern route: The biggest project remains Northeast Direct, proposed by the Tennessee Gas division of Kinder Morgan, headquartered in Houston, TX. It is intended to connect between a major pipeline hub in Schoharie County, NY, just south of the Adirondacks, and a major hub in Dracut, MA. Most of it was originally routed across northern Massachusetts, carrying hydrofractured shale gas from eastern Pennsylvania into east central New England, with a design capacity of 2.2 billion cubic feet per day (Bcf/d).

The original Tennessee Gas proposal would have increased total gas pipeline capacity into New England by more than half, passing through conservation lands and close to many homes. It has been in state reviews and is in “pre-filing” status at the Federal Energy Regulatory Commission (FERC). It sparked intense protests in Massachusetts, with hundreds of residents turning out at each of several public hearings.

Tennessee Gas recently scaled back capacity to 1.3 Bcf/d, after rerouting much of the line through southern New Hampshire. The “pre-filing” comment period ended October 16. That day, Maura Healey–elected last year as Massachusetts attorney general–sent “scoping comments” to FERC about the Tennessee Gas proposal. The comments recommended measures to organize federal reviews:

• Rather than analyze isolated projects, FERC should prepare an Environmental Impact Statement (EIS) that forecasts regional needs for new natural gas pipeline capacity in New England and considers the combined impacts of all six current pipeline projects.

• The EIS should review potential impacts on both the region’s environment and the global environment. In particular, it should consider protected conservation lands, global warming and human health and safety.

Arguments: The attorney general clearly saw that piecemeal reviews were likely to lead to excess pipeline capacity, costs and environmental risks. However, in order to prevail, the attorney general needs to prepare for federal lawsuits, challenging a hidebound federal agency, and will need to break a logjam of legal barriers.

The attorney general cited Kleppe v. Sierra Club. [427 U.S. 390, 1976] In that case, early in the development of Powder River Basin coal in the Mountain West, the Supreme Court found that a regional review of proposals for coal mines was not required under federal law, but its opinion said regional reviews would be necessary in other circumstances.

The 1976 opinion held, “…when several proposals…that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.” The Kleppe case has rarely been useful. Its range of conditions is so narrow that few practical circumstances qualify. As typically happens, New England gas pipeline projects that the attorney general cited are not now “pending concurrently before an agency.” Instead, they are at different stages:

Spectra, Algonquin Incremental Markets 0.342 Bcf/d under construction
Tennessee Gas, Connecticut Expansion 0.072 Bcf/d final FERC review
Tennessee Gas, Northeast Energy Direct 1.3 Bcf/d FERC pre-filing
Spectra, Atlantic Bridge 0.13 Bcf/d FERC pre-filing
Spectra, Access Northeast to 1.0 Bcf/d open season ended
Portland Natural Gas, Continent to Coast to 0.13 Bcf/d open season ended

As tallied by the attorney general, the projects total up to 2.974 billion cubic feet per day (Bcf/d) of new gas pipeline capacity, compared with 3.951 Bcf/d of current gas pipeline capacity.

The attorney general also cited some marginal cases and statutes: Massachusetts v. Environmental Protection Agency [549 U.S. 497], decided by the U.S. Supreme Court in 2007, and the Massachusetts Endangered Species Act and Global Warming Solutions Act. [St. 1990, C. 408, and St. 2008, C. 298] The Supreme Court case required new regulations from the U.S. Environmental Protection Agency for greenhouse gas emissions but said nothing about FERC projects. State laws might apply to state reviews of pipeline projects, but they do not govern FERC.

Regulations: Potentially stronger arguments from the attorney general are based on federal regulations implementing the National Environmental Policy Act of 1970. Under rules for scope of review [40 CFR 1508.25], federal agencies must consider “cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts,” as well as “similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences.”

Gas pipeline projects in New England certainly “have similarities.” They are all “reasonably foreseeable,” and they look likely to have “cumulatively significant impacts.” Beyond those strong suits, environmental objections from the attorney general might be overstated. They cite provisions of “guidance” documents, construing them as “requirements.” Section IV.B, third paragraph, asks for compliance with a draft document, “2014 CEQ Climate Impact Guidance,” which is also mentioned in Section IV.D of the comments.

Need versus greed: The attorney general’s comments said FERC is brushing off analyzing needs for more gas pipeline capacity as part of an environmental review. “FERC has indicated that this inquiry will not be part of the EIS.” [Detailed comments, first paragraph] Moving proactively, the attorney general arranged a professional review of those issues, described as follows:

“The Attorney General’s Office will soon release a study it commissioned…that examines the extent of New England’s need for additional energy supplies to ensure electric system reliability through the year 2030 and analyzes alternative solutions to meeting any such need, including costs to ratepayers and effects on greenhouse gas emissions.” [Introduction and summary of comments, sixth paragraph]

When first announced in early July, the study by Analysis Group of Boston was to be “completed by October, 2015.” Since then, its release has been postponed at least twice and was most recently promised for some time in November. It is to consider, in particular, the ocean import terminals for liquefied natural gas (LNG) now serving New England, specifically: “whether [needed] gas can by supplied by LNG or additional pipeline capacity is needed.”

New England is served by four ocean import terminals for LNG, with total capacity about 3.2 Bcf/d. However, because of high prices in overseas markets, during 2011 through 2014 only the Distrigas terminal in Everett, adjacent to Boston Harbor, received deliveries. The operator, GDF Suez, had long-term contracts at favorable prices. This past winter, price spikes in New England gas and electricity appear to have been trimmed by reactivation of the Northeast Gateway terminal off Gloucester.

Nearly doubling gas pipeline capacity into New England, as originally proposed, never made financial sense, if it were intended to meet needs of New England. The motive behind the giant proposals from the pipeline companies always looked like speculation on shipping hydrofractured shale gas coming from the Appalachians, particularly Pennsylvania, into Canada.

From Canada, the pipeline companies would export gas as LNG, coupling U.S. natural gas into international markets and expecting to raise prices. There are now permits for two Canadian terminals to export a total of about 1.5 BCf/d. From the viewpoints of the pipeline companies, New England has become a shipping route.

– Craig Bolon, Brookline, MA, November 1, 2015


Attorney General Healey calls on FERC to weigh gas needs and pending projects as part of review of Kinder Morgan pipeline, Office of the Massachusetts Attorney General, October 19, 2015

Scoping comments for the Northeast Energy Direct project, Office of the Massachusetts Attorney General, October 16, 2015 (edited for internal consistency)

Office to lead regional gas capacity study, Office of the Massachusetts Attorney General, July 6, 2015

Tux Turkel, Deliveries of liquefied natural gas, Portland (ME) Press Herald, February 1, 2015

Mary Serreze, Gas pipeline foes form three-state coalition, Springfield (MA) Republican, January 30, 2015

Joe Mahoney, Pipeline plan crosses archaeological site, sparks feud with FERC, Oneonta (NY) Daily Star, September 21, 2015

Alvin L. Alm, National Environmental Policy Act: past, present and future, U.S. Environmental Protection Agency, 1988

Scope of environmental review, Federal Regulations 40 CFR 1508.25, Cornell University Law School, 2015

Craig Bolon, New England gas pipelines: need versus greed, Brookline Beacon, August 29, 2015

Education news: Advisory thinks, Chester blinks

The large, first-floor south meeting room at Town Hall, home to the Advisory Committee during town meeting seasons, witnessed another episode in the long-running struggles over regimented testing in public schools, starting at 7:30 pm Tuesday, October 20.

Earlier that day, Mitchell Chester, the state’s current education commissioner, had set off a policy bomb. It blew up a campaign to replace the testing used in Massachusetts public schools for the past 18 years–a campaign that had been led by Dr. Chester himself.

Tarnished icons: The mystique of regimented testing has been burnished and tarnished so often that it was surprising to hear a usually sophisticated Advisory Committee weave around the topics. However, it has been about fifteen years since a town meeting campaign that most recently introduced them into Brookline politics. Only a few current Advisory members have been involved long enough to remember.

Although precursors can be found in ancient China, medieval Europe and mid-nineteenth century Massachusetts, regimented testing is largely a twentieth-century phenomenon. A quantitative approach helped give standard tests a claim to objectivity, shrouding heavy cultural bias. The tests reward informally acquired language skills and penalize lack of those skills, tending to make them tests of home and community backgrounds.

When anyone thought to look, a secret emerged: test scores strongly tracking home and community incomes. Trends were discovered with IQ tests in the 1920s, Iowa tests in the 1930s and SAT tests in the 1940s. The more recent tests do likewise, including state-sponsored regimes. Scores from the early years of the Massachusetts MCAS tests showed strong associations with community incomes.

MCAS test scores versus community incomes

BostonMetroMcasPlotAbs01
Source: Significance of test-based ratings, EPAA, 2001

Dumping PARCC: Dr. Chester, of the state education department, has been serving as national board chair of Partnership for Assessment of Readiness for College and Careers (PARCC). Despite a glorified title, PARCC is a commercial test series produced by a division of Pearson PLC, a London-based publishing company. Its cachet has been fully computerized test administration and scoring.

Many observers have described the superficially clever construction of PARCC tests, seemingly designed to confuse and mislead. To people familiar with The Times of London or The Nation magazine, they suggest the prompts for British-style crossword puzzles.

In the United States, supposed merits of PARCC were quickly unmasked. As one experienced teacher put it, “Test manufacturers…tell us…their tests require critical thinking. They are lying. They prove [it with] relentless emphasis on test security.” Pearson will not allow teachers to see the questions that students were asked. If their tricks were to become known, they might easily be foiled.

In his day job as education commissioner, Dr. Chester had been in deep and obvious conflict of interest with his night job as chair of the PARCC board. When finally dumping PARCC on October 20, he arrived late to the party at a national trend. Over two-thirds of the state-level jurisdictions that tried PARCC have dumped it. Even by the obtuse standards of educational testing, PARCC was flagged as a loser.

Dr. Chester’s loyalists sententiously claim “there was no ultimatum given [by] Peyser and Baker”–meaning the new governor and his education secretary. Such pre-emptive denials tend to say the opposite. Politicians may not be great at higher math, but they can count.

Thinking about testing: At the fall town meeting scheduled for November 17, Article 16 seeks support for H. 340, pending in the General Court. Filed by Rep. Marjorie Decker of Cambridge, it would forbid, for three years, the use of “MCAS or another standardized test” as a “condition for high school graduation.” That is what many call “high-stakes uses” of test scores. Rep. Frank Smizik, who represents Brookline Precincts 2-4 and 6-13, is a cosponsor of H. 340 and also a co-petitioner for Article 16.

At Advisory Committee on October 20, Brookline resident Lisa Guisbond spoke for Article 16. She is executive director of Citizens for Public Schools, a Boston-based nonprofit founded to support progressive, public education. “With high-stakes uses of test scores,” she said, “the teaching focus is narrowed to the subjects tested…you lose access to a broad curriculum.”

In Brookline schools, that probably tends to happen with students who are identified as at risk of not graduating because they have trouble with one or more of the tests. Many of those students benefit from programs that try to strengthen their abilities in the areas tested. Inevitably, however, teaching to the test crowds out other areas of knowledge, as well as aspects of a topic that are not going to be tested.

Committee member Amy Hummel sounded eager to “put a moratorium on it.” Since 1993, she said, when a law authorizing MCAS was passed, “there are so many things that are different…MCAS is one vegetable in the pot…In my family, it’s converse to learning.” Few other committee members seemed to have such clear perspectives on regimented testing.

Some committee members tried to extrapolate from personal experience but found it difficult. Committee member Janet Gelbart remembered “studying for (New York state) Regents Exams…taking courses to learn how to take exams” but said her daughter was graduated from Brookline High School “long before MCAS.”

Many committee members seemed to discount educational experiences with testing regimes and instead resort to their hunches about policy. Committee member Fred Levitan said he failed “to see how stopping testing allows people to study it.” Clifford Brown saw “no reason to stop the use of testing.” Lee Selwyn said he couldn’t understand “shutting it down for three years.”

Advisory Committee members seemed confused when voting on the topics. When Sean Lynn-Jones first counted votes on a motion to approve Article 16, he found 9 in favor and 9 opposed, but some committee members said they did not understand what was proposed. After more explanation, a recount found 9 in favor, 10 opposed and 2 abstaining–putting the committee on record as narrowly opposing Article 16.

– Beacon staff, Brookline, MA, October 21, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Michael Jonas, Chester abandons PARCC, Commonwealth Magazine, October 20, 2015

Andy Hargreaves, Mary Bridget Burns and Shanee Wangia, The success of schools in Massachusetts cannot be explained by testing, Diane Ravitch on Education, June 18, 2015

An act relative to a moratorium on high stakes testing and PARCC, H. 340, Massachusetts General Court, 2015

David A. Goslin: The Search for Ability, Russell Sage Foundation, 1963

Craig Bolon: School-based standard testing, Educational Policy Analysis Archives 8(23), 2000

Craig Bolon: Significance of test-based ratings for metropolitan Boston schools, Educational Policy Analysis Archives 9(42), 2001

Lisa Guisbond, Testing reform victories, the first wave, National Center for Fair and Open Testing, 2014

Forum: regimented testing in Brookline public schools, Brookline Beacon, October 27, 2014

Craig Bolon, Dr. Lupini moves to Brookline, Brookline Beacon, June 21, 2014

School Committee: Driscoll plans, policies, technology and testing, Brookline Beacon, May 27, 2014

School Committee: celebrations, programs, policies and test scores, Brookline Beacon, May 12, 2014

Advisory Committee: return of the leafblowers

On Thursday, October 8, the Advisory Committee got off to an uncertain start at 7:30 pm in the first-floor south meeting room at Town Hall. With Sean Lynn-Jones away, Carla Benka, the vice chair, led a session that focused mainly on leafblowers.

Beginning in 2000 with a petition article from Jerome Sadow, unsuccessful on first try, this is the fourth visit by leafblowers to town meeting. Article 10 for the fall town meeting, starting November 17, calls for a total ban on the machines–however powered and however used. Article 11 calls, on the other hand, for extensions to seasons of allowed use. Noise remains the most common complaint.

Sound and noise levels: Ordinary conversations typically involve sound levels around 60 decibels A-weighted (dBA), at a distance of 3 ft. Perceived loudness doubles with each 6 dBA increase. Federal noise exposure limits, intended to prevent hearing damage, have long been 85 dBA for an 8-hour workday. At that intensity, conversation is almost impossible. The noise would sound around 20 times louder than ordinary conversation.

Introduced in the 1970s, small leafblowers have long been loathed because of noise, although performance has gradually become more tolerable. Some of the earliest machines emitted literally earsplitting noise: as loud as 95 dBA, measured at a distance of 50 ft. Unprotected operators, who work much closer to machines, experienced up to 115 dBA, comparable to peak noise from a 737 jet on takeoff, measured about 200 ft from a runway.

Demographic shifts: As Brookline’s populations changed, more people tended to be working longer hours. They tended to have less free time and more surplus income. Rather than do their own lawn care and gardening, they turned increasingly to landscapers, who brought increasing amounts of power equipment, including leafblowers.

By the middle 1990s, Brookline had a noise bylaw limiting lawn and garden equipment to a maximum noise level of 80 dBA at a distance of 50 ft. Many leafblowers then in use were noisier than permitted, but there was little enforcement. In 2000, that situation prompted Mr. Sadow to propose limiting leafblower noise to 72 dBA. However, only a few leafblowers then available could meet such a standard.

Leafblower limits: After a long review by a moderator’s committee, the fall town meeting of 2001 voted to limit leafblower noise to 72 dBA for units manufactured in 2002 or later and to limit hours of operation: 8 am to 6 pm on weekdays and 9 am to 6 pm on weekends. The Police Department got more sound level meters, and enforcement became somewhat more attentive.

The slow phase-out of older, noisier leafblowers and the continued increases in use left many residents unsatisfied. At the fall town meeting of 2008, a package of revisions to Brookline’s noise control bylaw, introduced by the Board of Selectmen, lowered the maximum allowed noise level for leafblowers manufactured in 2009 and later to 67 dBA, measured at 50 ft. However, hours of permitted use were extended: 7 am to 7 pm weekdays and 8:30 am to 6 pm weekends and holidays. Those standards remain in effect today.

After seeking stronger measures from the 2008 fall town meeting and leaving empty-handed, Andrew Fischer, a Precinct 13 town meeting member, returned at the 2011 fall town meeting proposing restrictions specific to leafblowers in a new bylaw. It set seasons of allowed use: between March 15 and May 15 and between September 15 and December 15, allowing emergency uses out-of-season by town workers. It also set penalties: from a warning on a first offense to a $200 fine on a third or later offense.

For his efforts, Mr. Fischer was rewarded by opposition from all members of the Board of Selectmen and from all but one member of the Advisory Committee. They tried to shoo him away with a resolution, merely asking residents and contractors to be “considerate…sensitive…[and] reasonable.” Mr. Fischer argued that lapses from those fine sentiments had been at the heart of continuing problems with leafblowers. He won the day.

Another round of review: This fall, Richard Nangle, a Precinct 15 town meeting member, with other petitioners, is seeking a total ban on leafblower use in Brookline, under Article 10. At Advisory, Mr. Nangle argued that enforcement of Mr. Fisher’s leafblower law has not worked. Leafblowers continue in use out-of-season, landscapers sometimes claim they are “exempt” from laws and police are rarely able to catch violators. Only ten percent of complaints logged over three years resulted in citations.

Local landscapers led by Faith Michaels and Peter Gately, who are behind Article 11 seeking to extend the leafblower seasons, spent most of their efforts opposing Article 10. They claimed leafblowers have been key elements in making money as landscapers. Erin Gallentine, the director of Parks and Open Space, was equally emphatic, citing time and motion studies. Under Article 11, landscapers want to end the spring season on June 15, not May 15, and want to end the fall season on December 31, not December 15.

Leafblowers, they all said, do a better and more efficient job than rakes and brooms. However, Ms. Michaels and Ms. Gallentine were unable to explain why total clearance of leaves should be critical today, when 40 years ago and earlier–before leafblowers came to Brookline–it wasn’t. Somehow, previous generations had managed to live safely and happily despite some stray leaves.

After 20 minutes into a stem-winding report from the subcommittee on public safety, Janice Kahn, the chair, disclosed that it had no position on Article 10, seeking a ban–despite two sessions of public hearings. Charles “Chuck” Swartz, a Precinct 9 town meeting member, sought to send Article 10 to a committee, when it had already arrived at a committee: the Advisory Committee.

Subcommittee member David-Marc Goldstein described regulations in Cambridge and Arlington. Unlike Brookline, those communities limit numbers of leafblowers in simultaneous use, according to sizes of lots. It did not seem to occur to subcommittee members that anything between the status quo and a total ban might come within the scope of Article 10, and they did not propose such limits for Brookline.

Alan Balsam, the health director, undercut one argument against leafblowers: debris they blow into the air along with leaves. Dr. Balsam said the Advisory Council on Public Health had “found no compelling health threat.” Ms. Michaels dealt with another concern, worker exposure to noise. Units her company and others said they now use, rated for 65 dBA noise at 50 feet, expose workers to 83 dBA, below the federal limit for 8-hour industrial exposure.

Recommendations: Slogging through a total of six motions from Advisory Committee members, Ms. Benka organized recommendations. The committee opposed a leafblower ban under Article 10. That got only three votes. Under Article 11, the committee supported a minor change authorizing the public works commissioner to allow leafblower use in emergencies, but it opposed extending regular leafblower seasons.

– Beacon staff, Brookline, MA, October 11, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Records of town meetings since 2000, Town of Brookline, MA, 2015

Leaf blower information, Town of Brookline, MA, 2012

Leaf blower study group, Town of Lincoln, MA, 2015

Leaf blowing, Department of Public Works, City of Cambridge, MA, 2014

Craig Bolon, Recycling: from wartime campaigns to secular religions, Brookline Beacon, October 6, 2015

Hancock Village lawsuit: Brookline’s appeal dismissed

Brookline’s first lawsuit over a Chapter 40B housing development Hancock Village has lost, in what looks tantamount to a final outcome. Following a hearing on September 14, 2015, the Massachusetts Court of Appeals issued a speedy decision with a written memorandum, dated September 25. Earlier, adverse superior court rulings were upheld on both their major points: the effects of a 1946 agreement with the John Hancock Life Insurance Company and the effects of 2008 changes to state regulations for Chapter 40B developments.

Arguments and rulings: The Appeals Court wrote that the 1946 agreement had expired in 30 years, under state law. In finding that the agreement was not currently recognizable under Massachusetts law, its memorandum cited procedures that had been followed. Quoting from a recent case, the court said that a recognizable agreement would have to be “land use restrictions imposed as a condition to the discretionary grant of regulatory approval.” [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Instead of restrictions imposed during regulatory approval, the 1946 procedures had involved a voluntary agreement by the original developer, the John Hancock Company, offered as an inducement to allow apartment zoning. The Court of Appeals found those procedures similar to ones of a will or trust, saying that the agreement had therefore expired in 30 years.

The main issue in the original superior court case brought by Brookline had been a challenge to a “project eligibility letter” for the Chapter 40B development, issued by the Massachusetts Development Finance Agency. The town contended that the agency had not followed state regulations, saying that a lawsuit was its only recourse, since 2008 changes in state regulations had eliminated administrative remedies.

The Appeals Court disagreed–writing, without explanation, that it was “unpersuaded by the plaintiffs’ argument.” According to the memorandum, “The issuance of a project eligibility letter is a necessary precondition to consideration of a comprehensive permit application, but it is not final action on the permit.” The Appeals Court cited the case relied on by the superior court. [Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

Prospects: Like its ruling on the 1946 agreement, the Appeals Court’s ruling on the 2008 regulations turns on a balance of factors and could conceivably have gone the other way. However, both are plainly stated interpretations of state law, citing recent cases at the Appeals Court. A further appeal to the Supreme Judicial Court is surely possible but would look to be a steep, uphill struggle.

The recent ruling appears to collapse a case that the Board of Selectmen filed later in the Land Court, challenging the comprehensive permit granted by Brookline’s Zoning Board of Appeals. A key argument in that case invoked the 1946 agreement, which the Appeals Court ruled has lapsed.

Other arguments, concerning suitability of the development plan for the Hancock Village site, have typically been difficult to sustain in legal challenges against Chapter 40B projects. The Board of Appeals heard over a year of testimony, received major concessions from the Hancock Village developers and imposed over 60 conditions–reducing the scale of the project.

An alternative: Pursuing an alternate vision for Hancock Village, Regina Frawley, a Precinct 16 town meeting member, filed Article 18 for annual town meeting of May, 2015. It sought a study of acquiring the Hancock Village “buffers” for permanent recreation and open space. Those are unbuilt strips of land near Russett and Beverly Roads that had been set aside, separating Hancock Village from the nearby single-family houses, following 1940s agreements with the Town of Brookline.

So far, no such study has been published. To surprise of many in the community, the Board of Selectmen has failed to appoint an independent, objective study committee–as generally expected when the May, 2015, town meeting approved Article 18. Seeing the lack of progress, Ms. Frawley filed Article 15 for the upcoming November, 2015, town meeting. It seeks an independent, objective study committee to be appointed by the moderator of town meeting and by the Advisory Committee.

Ms. Frawley found the recent Appeals Court decision on the Web and distributed it to people who have been concerned about the proposed Hancock Village development. However, she has not become involved with the Hancock Village lawsuits. She continues to pursue her original vision: to provide Brookline’s southernmost neighborhoods with permanent recreation and open space that, so far, they have never enjoyed.

– Beacon staff, Brookline, MA, September 29, 2015


Memorandum and order, case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, September 25, 2015

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Appeals Court: Brookline v. MassDevelopment, Brookline Beacon, September 15, 2015

Craig Bolon, Court of Appeals: Brookline’s first lawsuit over Hancock Village, Brookline Beacon, September 12, 2015

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Craig Bolon, Board of Selectmen: poisoning the well, Brookline Beacon, July 2, 2015

Cable services: renewing Comcast in Brookline

On Wednesday, September 16, starting at 7 pm in Town Hall, members of the Board of Selectmen and its cable television committee conducted a public hearing on renewal of the Comcast license to operate in Brookline. What they heard was dominated by insiders, trying to extract more money for local programming efforts, now called Brookline Interactive, and for subsidies to low-income residents. Attendance was about 15 people.

Technology dreams: Boosters for Brookline Interactive seemed divided into two camps. One was looking mainly for better distribution of content, the other looking mainly for better technology to deliver it. Karen Katz of Pleasant St., president of Brookline Interactive, complained about “no delivery” of her organization’s content by Comcast, recently rebranded as Xfinity. Comcast does not display a schedule of Brookline Interactive programs. She wanted more Comcast money to support local programming efforts.

Albert Davis of James St., who described himself as a media producer, does productions at Brookline Interactive. He complained that Comcast “does not support an everyday medium”–meaning high-definition, wide-screen television–calling that “a huge mistake.” He wanted Comcast to “get involved” with Brookline Interactive, a “partnering opportunity.”

Kathy Bisbee of Gorham Ave., recently hired as Brookline Interactive director, mentioned “over the top” fees as a way to boost her organization’s take of Comcast revenue. Although she did not explain, that would be techno-speak for fee-based, Internet-distributed services such as Showtime, currently about $11 a month.

Limited incomes: At an opposite pole from Ms. Bisbee and Brookline Interactive technophiles was David Trietsch of Linden Pl., board chair of the Brookline Housing Authority. He complained that few public housing residents could afford any type of Internet service–and probably not $11 a month “over the top.” Recently, he said, RCN has offered “favorable terms” for service to the new Dummer St. project.

Frank Caro of Beacon St., a member of the cable television committee and a Precinct 10 town meeting member, spoke for retired residents. He said he found almost no “senior discounts” for telecommunication services in Brookline. He was “deeply disappointed” that Comcast offered only $2 a month off, only on “basic” service.

The sole Brookline residents to complain about the quality of Comcast services were Cathy Corman of Pleasant St. and her husband Mark Penzel. Their house had apparently been built after the neighborhood was wired and has no cable service. Comcast initially wanted over $20,000 to install a cable but then offered to do that for $2,300 if it could dig a trench beside a tree in a neighbor’s lawn.

High costs: What none of the earnest speakers mentioned but would surely be uppermost for a network operator are high costs of new technology. At an average cost per person estimated by Goldman Sachs, Comcast would need to invest around $30 million to replace its Brookline network. That looks unlikely for a business with annual revenue potential around $10 million: possibly a 10-year payback or worse.

Comcast is stuck with early 1980s cable technology: good for its day but well into old age. It was built for 1953 NTSC broadcast television, about 6 MHz per channel. HDTV in 1080p24 format–the newer “wide screen” broadcast standard since 1998–needs about three times the bandwidth, despite digital techniques. However, it can be fit into 6 MHz channels through digital compression, at loss of optical and temporal definition.

With its dated cable infrastructure, Comcast cannot achieve the level of services fiber-optic systems can provide, such as those installed by RCN and promised–some day–by FIOS technology from Verizon. However, by replacing its complex of signal-transmission electronics and requiring subscribers to install new set-top boxes and modems, Comcast could augment services.

Providing a degraded, 720i24 format of HDTV, while maintaining its repertoire of channels and continuing to use its 1980-era cables above and below the streets could be realistic. Even such a limited project might cost several million dollars to retrofit Comcast’s infrastructure in Brookline. The company would still retain a trouble-prone network of aging cables that has been irritating customers for years.

Silent voices: At the Wednesday hearing, no one spoke up for ordinary customers, surely the vast majority of those concerned about Comcast services in Brookline. The Board of Selectmen did not make any more than minimal, legally required efforts to publicize the hearing. Had they done so, the sixth-floor meeting room might have overflowed.

– Beacon staff, Brookline, MA, September 17, 2015


Mark Biegert, High-definition television bandwidth, Math Encounters (Maple Grove, MN), 2012

Karl Bode, Google fiber build estimate: $140 billion, DSL Reports (New York, NY), 2012

Heather Bellini, et al., Clash of the titans, Goldman Sachs Group, December 7, 2012

Craig Bolon, Broadband telecommunications: Brookline-based services, Brookline Beacon, August 22, 2015

Housing Authority: renovations, programs and project development, Brookline Beacon, August 11, 2014

Court of Appeals: Brookline’s first lawsuit over Hancock Village

Proposed development at Hancock Village in south Brookline has led to two lawsuits filed in state courts on behalf of the Town of Brookline. News reports so far don’t explain much about the differences between them. The first case, begun in 2013, challenges actions of a state agency. The second case, begun in 2015, challenges actions of the Brookline Zoning Board of Appeals. The first case is at the Massachusetts Court of Appeals in Boston on Monday, September 14 for a hearing on the merits.

Development plans: Between 2008 and 2011, executives at Chestnut Hill Realty (CHR) promoted plans for major development at Hancock Village, proposing up to 466 new housing units. Responses from nearby neighborhoods and Brookline government varied from concern to alarm. In November, 2011, Brookline enacted a neighborhood conservation law, making Hancock Village the first regulated district.

In 2012, CHR abandoned plans for conventional development under zoning, turning instead to Chapter 40B of the General Laws, Sections 20-23 and aiming to force through development in return for partly subsidized housing. To start such an approach, CHR needed sponsorship from a state agency. Rather than look to agencies mainly oriented to housing, CHR approached the Massachusetts Development Finance Agency (MDFA). Proposals were made through a CHR subsidiary called Residences of South Brookline, LLC.

In late 2012 and early 2013, MDFA reviewed a CHR proposal to add 271 housing units in 12 new buildings. This plan was similar to other CHR plans in its overall approach. There would be a high-rise structure over a rock outcrop, previously considered unbuildable: five stories of apartments above two stories of parking. There would also be 11 low-rise structures on unbuilt land near Russett and Beverly Roads that had been reserved as “buffers” following 1940s agreements with the Town of Brookline.

MDFA sought comments from Brookline and visited the site in December, 2012. In February, 2013, MDFA drafted a response, rejecting the CHR proposal because it was “not generally appropriate for the site.” The agency cited “complete elimination of the greenbelt buffer” and “massing of the…five-story building.” Possibly tipped off to impending rejection, CHR withdrew its proposal just before the response was to be sent.

The following June, CHR proposed to MDFA a revised project with 192 new housing units in 13 new buildings. Now, over the rock outcrop, there would be four stories of apartments above two stories of parking. Although the project still eliminated the greenbelt buffer and it still included a high-rise looming over the neighborhood, built over a rock outcrop, this time MDFA approved, sending a “project eligibility letter” in October, 2013.

Reversing its previously pending rejection, MDFA offered a sentence of justification. That said the project “is generally appropriate for the site taking into account factors such as proposed use, conceptual site plan and building massing, topography, environmental resources and integration into existing development patterns.”

Court of Appeals case: Within a few weeks, the Town of Brookline filed a case against MDFA in superior court, challenging validity of the project eligibility letter. As part of this first lawsuit over Hancock Village, the Town of Brookline also asserted rights under a 1946 agreement with the John Hancock Life Insurance Company, providing enduring restrictions on Hancock Village in return for the 1946 rezoning to allow construction of apartments.

In superior court, lawyers for CHR filed motions for summary judgment, arguing that claims by the Town of Brookline were inconsistent with prior cases and with state law. The circumstances are complex, but after a brief hearing on the motions, without considering circumstances in detail, Judge Patrick F. Brady of Norfolk Superior Court allowed the motions. Brookline appealed. On Monday, September 14, the circumstances will be reviewed in detail for the first time by a full panel at the Court of Appeals.

There are two main issues in the appeal:
(1) Did Judge Brady at Norfolk Superior Court make an error in dismissing claims by the Town of Brookline that the project eligibility letter was issued without adequate justification?
(2) Did Judge Brady make an error in dismissing Brookline claims about rights under a 1946 agreement with the John Hancock Life Insurance Company that led to rezoning Hancock Village for apartments?

Issue (2) might be of more interest to the second Brookline lawsuit–against the Zoning Board of Appeals, seeking to overturn the “comprehensive permit” the zoning appeals board granted this year. However, it was also cited in the first lawsuit–against MDFA. There it was opposed by CHR lawyers, through one of the summary judgment motions Judge Brady allowed–boosting the 1946 agreement into an early appellate orbit.

Project eligibility letter: Issue (1) arguments pressed by the Town of Brookline against MDFA claim the agency failed to follow state regulations. Under 760 CMR 56.04(4)(b), those require an agency reviewing a 40B project to consider whether a site is “generally appropriate for residential development” and whether a “conceptual project design is generally appropriate for the site.”

In both instances, state regulations require a “finding, with supporting reasoning, to be set forth in reasonable detail.” The Town of Brookline asserted that the agency merely recited, like cookbook exercises, the types of 760 CMR 56 findings it would need to make but did not explain them with “supporting reasoning” of any kind, much less with “reasonable detail.” [Plaintiff's initial brief, pp. 25-27]

The Town of Brookline asserted it has no useful remedy other than a lawsuit, because a change to state regulations in 2008–apparently made for the convenience of the state Housing Appeals Committee–relabeled agency findings for project eligibility letters “conclusive” and eliminated administrative reviews. [Plaintiff's initial brief, pp. 27-29]

For issue (1) MDFA owns the heavy lifting. Its response was bulked up with dozens of pages of regulations, case memoranda and official announcements. However, the gist of the defense came down to a bald assertion that a project eligibility letter is “merely an interim step” in project approval, quoting a Massachusetts case made obsolete by 2008 changes to state regulations. [Defendant's brief from MDFA, p. 1, quoting Town of Marion v. Massachusetts Housing Finance Authority, Court of Appeals, 2007]

The brief filed for MDFA danced around Brookline’s arguments about lack of justification for a project eligibility letter. It tried to treat a summary judgment allowed in superior court, after a brief hearing during a motion session, as though it were a settled matter of law. Instead, the purpose of an appeals case is to examine reasoning applied by a lower court. [Defendant's brief from MDFA, p. 7] [Standard of review, in Plaintiff's initial brief, p. 13]

For this case, there is little reasoning from a lower court to be examined. At Norfolk Superior Court, Judge Brady merely stated that he “remain[ed] of the view that [the Marion case] applies,” without explaining why it should–over arguments from the Town of Brookline that changes in state regulations made it obsolete. [Plaintiff's initial brief, pp. 23, 27-29 and 31-33]

The brief filed for MDFA also claimed that the state provides for a “post-permit review”–apparently meaning administrative procedures after a “comprehensive permit” has been granted. However, post-permit procedures do not include comments, and they focus on “cost examination.” There is no process for an appellant to challenge whether a site is “appropriate for residential development” or whether a “conceptual project design” is “appropriate for the site.” [Massachusetts regulations 760 CMR 56.04(7), final approval]

As the Town of Brookline observed, without a court review “of project eligibility, abutters [including the Town of Brookline] are left without any meaningful recourse.” They might have a further opportunity for administrative review only if the developer were dissatisfied with Brookline zoning appeals board actions and sought relief from the state Housing Appeals Committee. However, CHR representatives stated at a public hearing that they were satisfied with outcomes from the zoning appeals board. [Plaintiff's reply brief, p. 6]

The brief filed for CHR also opposed court review of a project eligibility letter, ignoring 2008 revisions to state regulations that closed off administrative appeals and claiming project eligibility is not a “final agency action.” CHR accused the Town of Brookline of trying to subvert purposes of Chapter 40B, Sections 20-23 with “lengthy and expensive delays occasioned by court battles.” [Defendant's brief from CHR, p. 19]

In response, the Town of Brookline quoted the court opinion in the same case CHR referenced, “…interest in…affordable housing must be balanced against…protection of health and safety…and preservation of open space.” [Plaintiff's reply brief, p. 8, quoting Standerwick v. Zoning Board of Appeals of Andover, Supreme Judicial Court, 2006]

Like MDFA, CHR did not respond to the Town of Brookline’s argument that “post-permit review” leaves no process for an appellant to challenge whether a site is “appropriate for residential development” and whether a “conceptual project design” is “appropriate for the site.” [Defendant's brief from CHR, pp. 23-25] [Massachusetts regulations 760 CMR 56.04(7), final approval]

Contract zoning restrictions: Issue (2) arguments pressed by the Town of Brookline against MDFA and CHR claim the proposed project would violate terms of a 1946 agreement with the Town of Brookline by the John Hancock Life Insurance Company. For this issue CHR owns the heavy lifting, since its financial interests are at stake.

At Norfolk Superior Court, MDFA and CHR claimed that any requirements from the 1946 agreement had been extinguished after 30 years by Chapter 184, Section 23 of the General Laws. However, that law governs recorded deed restrictions. Previous Massachusetts cases held that it does not limit public agreements, including ones sometimes called “contract zoning.” [Plaintiff's initial brief, pp. 3-4 and 14-19, quoting Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011]

The Appeals Court may regard the Killorin case as particularly relevant, since two of the three judges who heard that case have been assigned to the current Brookline case: Elspeth B. Cypher and Sydney Hanlon. The Town of Brookline asserts that it has a continuing interest in the 1946 agreement, that the proposed project would violate the agreement and that at Norfolk Superior Court Judge Brady conducted a “myopic review,” finding the Killorin decision applied only to a special zoning permit. [Plaintiff's initial brief, p. 21]

The brief filed for CHR did not respond forthrightly to arguments from the Town of Brookline. Instead, CHR asserted, “It is settled…restrictions which burden land such as those contained in the 1946 agreement can only be enforced for a period of 30 years.” However, whether or not that may be true is a main dispute in the current Appeals Court case. Wishing won’t make it so. [Defendant's brief from CHR, p. 28]

The CHR brief repeated arguments offered at Norfolk Superior Court, saying that the Killorin case “involved conditions imposed on a property by a special zoning permit.” However, the court’s summary of its decision shows it regarded special permits as examples, writing that the law at issue “did not apply to conditions or restrictions set by a government agency such as a local zoning board of appeals as part of the process of granting a special permit. [Defendant's brief from CHR, p. 28] [Killorin v. Zoning Board of Appeals of Andover, Court of Appeals, 2011, emphasis added]

CHR based its brief on selected quotations from court opinions, trying to argue that exceptions to the law limiting deed restrictions to 30 years applied only to special zoning permits or subdivision control, topics under which cases arose. A recent Appeals Court decision expressed a broader view, as the Town of Brookline argued in its response. [Plaintiff's reply brief, pp. 10-11]

The recent decision said, “The holding of Killorin does not turn on the identify of the local board or on the particular nature of the regulatory decision at issue.” It explained that “the key distinction was…the discretionary grant…under the police power”–that is, the general regulatory powers of a municipality. [Samuelson v. Planning Board of Orleans, Court of Appeals, 2014]

Analysis: In its fairly aggressive reaction to the project eligibility letter issued by MDFA, the Town of Brookline appears to be pursuing a strong remedy, seeking early intervention by a superior court rather than waiting for a “comprehensive permit” and then asking for intervention from the Land Court, as Brookline now has also done.

The main argument for early intervention by a superior court has been a claim that 2008 revisions of state regulations closed off avenues for administrative appeals. MDFA and CHR objected that no right to early intervention is provided by state law, but they did not address an equity argument that administrative remedies formerly available have been withdrawn.

In bidding to sustain a 1946 contract zoning agreement, the Town of Brookline is also treading on unusual territory. So far, no one has cited another such agreement by a Massachusetts town that was brought to a town meeting rather than negotiated through a planning board or zoning appeals board. The extensions from circumstances of prior cases may seem obvious, but they are hardly foregone conclusions.

– Craig Bolon, Brookline, MA, September 12, 2015


Docket for case number 2014-P-1817, Town of Brookline and others v. Massachusetts Development Finance Agency and others, Massachusetts Court of Appeals, filed November 14, 2014

Plaintiff’s initial brief, Case 2014-P-1817, Massachusetts Court of Appeals, January 12, 2015 (missing the preamble and table indexes)

Defendant’s brief from MDFA, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (11 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Defendant’s brief from CHR, Case 2014-P-1817, Massachusetts Court of Appeals, February 11, 2015 (10 MB, too large for the Brookline Beacon site, obtainable at Brookline Office of Town Counsel)

Plaintiff’s reply brief, Case 2014-P-1817, Massachusetts Court of Appeals, March 13, 2015 (4 MB)

Project eligibility letter, issued to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, October 8, 2013

Draft denial of project eligibility, addressed to Residences of South Brookline c/o Chestnut Hill Realty, Massachusetts Development Finance Agency, February 13, 2013 (obtained by Town of Brookline via discovery)

Comprehensive permits [under Chapter 40B], Massachusetts regulations 760 CMR 56, Executive Office of Housing and Economic Development, 2015 (current version)

Martha Samuelson and another v. Planning Board of Orleans and others, 86 Mass. App. Ct. 901, July 2, 2014

Eric H. Killorin and others v. Zoning Board of Appeals of Andover and another, 80 Mass.App.Ct. 665, October 14, 2011

Town of Marion v. Massachusetts Housing Finance Authority, 68 Mass. App. Ct. 208, February 12, 2007

Eileen Standerwick and others v. Zoning Board of Appeals of Andover and another, 447 Mass. 20, June 16, 2006

Land Court: Dueling boards, Selectmen v. Zoning Appeals, Brookline Beacon, September 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Town boards: special tokes for “special” folks

Members of town boards, commissions, committees and councils may become “special municipal employees” when they are not performing paid duties as regular municipal employees. Such a classification is not automatic in most cases but must be established by a vote of a board of selectmen in a Massachusetts town. Such a vote will apply to all who hold a specified type of position and not to particular individuals.

The “special” people: A “special” designation allows lawyers on a regulatory board to hear and decide cases that are presented by other lawyers in the firm where they work, as long as they did not participate in those particular cases. The “special” people can work and be paid in arrangements for town business as long as their duties for town boards or agencies do not involve the particular arrangements. Those remain dubious practices–more understandable in a small rural town with few lawyers, professionals and businesses than in an large urban town with many of each.

Members of a board of selectmen in a large town are not eligible for “special” designation, whether or not they are paid for serving. Others who receive pay for municipal work are generally not eligible unless they perform 800 or fewer hours of paid municipal work a year.

The Brookline Board of Selectmen is known to have awarded the “special” designation to members of the Zoning Board of Appeals and the Housing Advisory Board. Participation in various matters that could be viewed as conflicts of interest suggest that Planning Board, Transportation Board and Building Commission members might also enjoy “special” status.

A list of organizations with “special” status is supposed to be “on file” in the town clerk’s office. During former years that some have come to regard as flirting with corruption, members of many town boards, commissions, committees and councils are said to have been designated as “special.” However, no list of Brookline’s “special” designations could be found on the municipal Web site.

Training on the laws: At this year’s fall town meeting, scheduled for November 17, Article 8 seeks to require training about laws on conflicts of interest for town meeting members. Some will have already received training because they are also members of town boards, commissions, committees and councils or because they volunteered for it.

Section 3.20.1 of Brookline’s general bylaws–enacted under Article 18 at the May 23, 2006, annual town meeting–applies to members of town boards, commissions, committees and councils. It requires attending training sessions about laws on conflicts of interest and open meeting requirements, organized by the Office of Town Counsel in Brookline.

Article 8 at this fall’s town meeting would allow watching an online lecture about laws on conflicts of interest and requires no training on open meeting requirements. Practical experience has shown that training sessions organized by the Office of Town Counsel proved more effective than lectures, because of questions and answers reflecting specific, local situations.

A list of members of town boards, commissions, committees and councils who have received required training is supposed to be “on file” in the town clerk’s office. However, no such list could be found on the municipal Web site.

– Craig Bolon, Brookline, MA, September 10, 2015


Warrant for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Article explanations for November 17, 2015, special town meeting, Town of Brookline, MA, September 8, 2015

Special town employees, in Minutes, Brookline, MA, Board of Selectmen, June 2, 2009, see pp. 6-7

Special municipal employees, Massachusetts State Ethics Commission, 1992

General bylaws, Town of Brookline, MA, November 18, 2014 (3 MB)

Special municipal employee, defined in Massachusetts General Laws, Chapter 268A, Section 1, paragraph (n)

Craig Bolon, Open meetings in government: groping toward transparency, Brookline Beacon, August 10, 2014

Craig Bolon, Override Study Committee: Open Meeting Law problems, Brookline Beacon, August 7, 2014

Renewable energy: New England experience

Budding environmentalists in urban New England mostly have yet to meet counterparts in the mountain areas of Maine, New Hampshire and Vermont. They have related concerns, but they also have far different outlooks. Some urbanites are lathered up over renewable energy, although few have practical experience producing any. Many northerners have come to regard urban energy campaigns as attacks on their living environments.

Costs of energy: For several years, the U.S. Department of Energy has published annual estimates of levelized costs for electricity from new plants of different types. They are independent of state subsidies, and they break out federal subsidies, making it possible to compare full, social costs of electrical energy–whether they are paid by private or public funding. The 2015 U.S. national estimates for unsubsidized wholesale electricity costs from the major types of new generation include:

National electricity source per kWh CF
Land-based wind farms $0.074 36%
Natural gas, combined cycle $0.075 87%
Third-generation nuclear $0.095 90%
Solar photovoltaic farms $0.125 25%
Petroleum peaking plants $0.142 30%
Ocean-based wind farms $0.197 38%

For wind and solar, a critical element that varies with location is capacity factor, CF: the actual average output divided by the peak rated output. National assumptions proved optimistic for wind and solar in New England, where the typical long-term average capacity factors have been documented at about 24% for land-based wind farms (in Maine) and at about 13% for solar farms (by DC ratings). Keep in mind that retail electricity rates add transmission and distribution charges, averaging about $0.12 per kWh for New England residential customers last year.

Major New England sources: Since costs of wind and solar power are dominated by capital, national costs per kWh need adjustment for New England. The region currently benefits from average natural gas prices lower than national averages, and experience with wholesale gas-fired electricity prices across New England has been more favorable than U.S. averages. As adjusted, unsubsidized wholesale electricity costs for the major types of new generation sources in New England become:

New England electricity source per kWh
Natural gas, combined cycle $0.06
Land-based wind farms $0.11
Solar photovoltaic farms $0.24

The full, social cost of wholesale electricity from land-based wind farms in New England, including public subsidies, is about twice the cost of wholesale electricity from the combined-cycle, natural gas-fired plants that produce the largest share of the region’s power. So far, there has been no New England experience with ocean-based wind farms.

Alternatives have not yet proven successful. New England generates much more energy burning wood and waste than it gets from wind and solar, but pollution around wood and waste plants is causing health hazards. The region is unlikely to accept more environmental burdens from wood and waste. Attempts to extract energy from ocean waves and geothermal sources have stalled because of equipment failures and high costs.

When we do commit to spend money in New England for renewable energy in order to provide environmental benefits, for the amount we spend we get about twice the benefits buying energy from land-based wind farms as we get buying energy from solar farms. However, state and federal subsidies have distorted finances, as seen by nearly all the public, tending to promote socially unsound investments.

Obstacles: In Massachusetts, former Gov. Patrick began service in 2007 with enthusiasm for building wind farms. However, most projects were small. During his two terms, 36 wind projects opened, but their total average output is only about 27 MW–about one part in 230 of the state’s average 6,310 MW electricity draw in 2013. Protests gathered over dangers, health hazards and conservation issues. Massachusetts offers few wind turbine locations that are a mile or more from homes and worksites.

Former Gov. Patrick’s second term pulled away from wind and began promoting solar projects with major subsidies. A large but hidden subsidy involves so-called “net metering.” That allows many projects to send electricity into the grid and get full credit at retail prices. The effect is to exempt owners of those projects from paying a fair share of costs to maintain the distribution network. All the other customers wind up paying those costs for them.

Starting in 2011, the Shumlin administration in Vermont soon copied the Patrick administration. After an early courtship of wind power, it backed away and began promoting solar farms. Vermont was left with three fairly large wind projects–Sheffield, Lowell Mountain and Georgia Mountain. Despite a far smaller population, it hosts more installed wind capacity than Massachusetts.

The major wind-power state in New England has long been Maine. It hosts about 52 percent of the region’s installed capacity. However, current Gov. LePage opposes expansion, saying wind is too expensive. Now that he has replaced nearly all appointees of his predecessor, former Gov. Baldacci, disapprovals of wind projects have multiplied. Boston-based First Wind, once the state’s leading developer, gave up and sold out to TerraForm of Maryland.

Comparisons: Contrary to some impressions, New England made a late start and achieved only slow growth in wind generation of electricity. The region’s track record in solar electricity has been even later and slower. Each of the leading wind states–Texas, California and Iowa–vastly outperformed all the New England states combined.

Installed wind capacities of states

StateWindCapacity1999to2014
Source: U.S. Department of Energy

Scaled by measures of state size, discrepancies between high-achieving states and New England states remain large. Measured by state populations, the installed wind capacities in peak watts per person for 2014:
Iowa………. 1831
Texas………. 523
California….. 152
New England….. 58
Installed wind capacity in New England is also well behind the national average of 132 peak watts per person.

New England’s largest untapped source of land-based wind power is among the Longfellow Mountains–as known since 1959–in the far northwest of Maine. Aside from strong winds, key advantages and key limitations are the same: remoteness and very sparse population. There are no major transmission lines. Nearly all the infrastructure would have to be built from scratch. For wind power, that is very costly.

Transmission lines have to be scaled by peak loads they service. A line serving large wind farms, running at only 25 percent capacity factor, costs much more than a line carrying the same average load serving a large gas-fired generator, running at 75 percent capacity factor. So far, no company has been willing to propose a transmission network for the Longfellow Mountains, so of course no wind farms are being built there.

By national standards, New England wind and solar power are rounding errors, only about one part in 50 of the region’s electricity. However, because they are so small they can be carried at nearly negligible costs by current infrastructure: transmission lines and natural gas-fired and nuclear generators. Were they more successful, costs of integration into the power grid would become far more than are currently included in the levelized cost estimates from the U.S. Department of Energy.

Imagination: Every New England state now has a “renewable portfolio” law. For 2015, these require that 8 to 19 percent of electricity be obtained from “renewable” sources. Averaged by electricity use, they set a combined requirement for 2015 of 12 percent “renewable” electricity. So far, the New England laws amount to a political joke. For 2014, New England obtained only 2.1 percent of electricity from wind and solar sources. So-called “requirements” of New England laws are met only through creative relabeling, exceptions, excuses and outright scams.

Some enthusiasts and political operators continue to imagine that people can somehow increase the supply of renewable energy merely by adding to the demand. They promote a variety of top-heavy schemes, including arbitrary escalators on “renewable portfolios” and community power-purchase programs. They ignore markets, which do what they will with supplies and demands. Demand for wind and solar power in New England already outpaces supply by about 6 to 1. When people run up demand without increasing supply, prices rise. Adam Smith told about that.

– Craig Bolon, Brookline, MA, August 15, 2015


Levelized cost of new generation, U.S. Energy Information Administration, April, 2015

U.S. wind capacity factors, National Wind Watch, March, 2013

Winter 2014-2015 energy market assessment, U.S. Federal Energy Regulatory Commission, October, 2014

Installed wind capacity, U.S. Department of Energy, 2015

Jon Black, Photovoltaic energy forecast update, ISO New England, September, 2014

Marley Jay, Maine governor: wind power is too expensive, Portsmouth (ME) Herald, April 4, 2015

Jon Chesto, Here’s why First Wind’s backers decided to sell, Boston Business Journal, November 19, 2014

State renewable portfolio standards and goals, National Conference of State Legislatures, July, 2015

Donald Bryson and Jeff Glendening, States are unplugging their renewable-energy mandates, Wall Street Journal, July 10, 2015

John Herrick, Electricity supplier won’t buy Vermont renewable energy credits, Vermont Digger, May 19, 2014

Ivy Main, Dominion Power’s wind and solar facade, Washington Post, December 29, 2011

George Taylor and Thomas Tanton, Hidden costs of wind electricity, American Tradition Institute, 2012

Craig Bolon, Rhode Island: offshore wind-power, winning and losing, Brookline Beacon, July 26, 2015

Craig Bolon, New England energy: wobbly progress, Brookline Beacon, January 12, 2015

Board of Selectmen: new saloon and funding gap

A regular meeting of the Board of Selectmen on Tuesday, August 4, started at 5:40 pm in the sixth-floor meeting room at Town Hall. The board has gone into semi-hibernation and probably won’t meet again in August. This rambling, sometimes cornball board often pushes the biggest problems far out into the night; maybe observers might give up and sign off. The last agenda item on this particular night was a zinger.

$4 million funding gap: The town looks to be around $4 million short of money to rebuild Devotion School. To town administration, that was obviously stale news. The state had sent a funding letter on June 10. The Board of Selectmen did not put the matter on their agenda and let the public know about the problem until almost two months later.

Last May 26, town meeting voted $118.4 million for the project, told by the board and the Advisory Committee to expect $27.8 million in state aid. Six weeks later, the state came back with only $25.9 million. Adding to a $1.9 million problem, the public schools still have no place for kindergarten through fourth grade students during the project. Old Lincoln School will be full with fifth through eighth grade students.

At a morning meeting on August 4, according to board member Nancy Daly, Suffolk Construction of Boston, the general contractor, proposed to install temporary classrooms over the asphalt basketball courts behind the school along Stedman Street. That would cost another, unplanned and unfunded $1.8 million. Where can it all come from? Neil Wishinsky, the board’s chair, thought it could not come from the debt exclusion approved at the May 5 town election, saying voters had been “promised” some particular amount. He was mistaken.

Mr. Wishinsky apparently forgot that voters approved a project–not an amount of funds. According to state law, that is how debt exclusion questions have to be worded. Up to the times of the town election and town meeting, Brookline had only estimates of total costs and of state funding. It was in no position to make promises to anybody about amounts of funds.

The May town meeting was advised differently by the Board of Selectmen and the Advisory Committee. The board estimated debt exclusion would apply to $49.6 million in bond funding. [on page 8-25 of the warrant report] The committee estimated debt exclusion would apply to $44.6 million. [on page 8-69 if the warrant report] The town meeting endorsed neither estimate, and it appeared not to have authorized bond funding either.

Instead, the town meeting approved a project total of $118.4 million, by a vote recorded as 222-1. Prior to the vote, Edward “Sandy” Gadsby, the moderator, did not say the motion included bonding, although the margin was more than required by law for bonding. So far, no one knows how much of the approved total might come from current revenue, how much if any from bonding and how much of the latter via debt exclusion. What looks nearly certain is that the total funds approved won’t cover the total costs.

Irish saloon: In another roundabout of the evening, the board approved a large Irish saloon amid lower Beacon Street neighborhoods. Known elsewhere as Waxy O’Connor’s, the Brookline site is to be only a Waxy’s–without beer pitchers and self-serve beer taps. Brookline is getting management from Woburn, at least for a while. In Woburn, according to an online review last month, “The people at the bar were screaming, swearing and running in and out of smoking cigarettes.”

Waxy’s put on a better show than three weeks ago. Frank Spillane, the Foxborough lawyer representing the chain seeking to open at 1032 Beacon St., had reviewed Brookline regulations. Ashok Patel, the Woburn site manager, was slated to manage the Brookline site–no more questions about who the manager would be. Mr. Spillane and Mr. Patel had settled potential problems with some neighborhood representatives.

Board members still proved wary. Although they approved licenses for a restaurant, full liquor service, entertainment and outdoor seating, they limited closing hours to 1 am and attached conditions, including outdoor service to end at 10:30 pm with clean-up completed by 11 pm, limits on noise, deliveries and smoking, little or no paper on the patio and multiple security cameras. Restrictions are still lighter than some at Chipotle on Commonwealth Avenue, where no alcoholic beverages can be served outside. As board member Nancy Heller observed, the ban on pitchers did not extend to sangria or margaritas.

Personnel, contracts and finances: In a little over half an hour, the board reviewed and approved hiring for 25 vacant positions, and it approved six miscellaneous contracts ranging from $3,000 to $25,000. It is unclear why, in a community that employs an expensive town administrator with a staff of six, the Board of Selectmen would not delegate such matters, which it always approves.

David Geanakais, the chief procurement officer, presented a contract to lease space on the third floor at 62 Harvard St. for classroom space. The contract distributed by the board was abridged to leave out the amount and cost of the space. Members of the board did not seem to think that important to tell the public about, but afterward Mr. Geanakakis said the first-year cost would be $129,000.

Peter Ditto, the engineering director, won approval for two contracts with Susi and Sons of Dorchester for a total of $1.23 million, the main yearly contracts for street and sidewalk repairs. Susi was low bidder on the $0.95 million street repair contract but won the sidewalk contract only when another bidder failed to submit complete documents.

– Beacon staff, Brookline, MA, August 5, 2015


Annual town meeting, first session, Brookline Interactive Group, May 26, 2015 (video recording, vote on appropriation for Devotion School at about 01:40:10)

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Board of Selectmen: two boards, changing colors, Brookline Beacon, July 18, 2015

Board of Selectmen: water fees, snubbing the public, Brookline Beacon, June 24, 2015

Craig Bolon, How we voted, costs of business, Brookline Beacon, May 10, 2015

Board of Selectmen: two boards, changing colors

A regular meeting of the Board of Selectmen on Tuesday, July 14, started at 6:45 pm in the sixth-floor meeting room at Town Hall. The board has gone into semi-hibernation for the summer. However, the extra rest and vacations did not seem to help with what is striking some as crabby behavior, at least when dealing in public affairs. Like a chameleon, the board can seem to change colors when dealing with licenses, at least as seen by the general public, if not always as seen by the license applicants.

Discord: Nine Advisory Committee members gathered to witness a protest: vice chair Carla Benka, Janice S. Kahn, chair of the Public Safety subcommittee, Stanley Spiegel, chair of the Planning and Regulation subcommittee, Leonard Weiss, chair of the Administration and Finance subcommittee, Clifford M. Brown, Janet Gelbart, Fred Levitan, Neil R. Gordon and Steve Kanes.

Mr. Weiss spoke about lack of communication shortly before the annual town meeting this May. Not more than a day or two earlier, Andrew Pappastergion, the public works commissioner, had concluded negotiations starting in April for a new recycling collection and processing contract. He had settled a price about $200,000 per year above the budget the Advisory Committee published, which it was about to propose at the town meeting.

Since 1910, the Advisory Committee and its predecessor, the Warrant Committee, appointed by the moderator of town meeting, have served as Brookline’s finance committee. Under Section 16 of Chapter 39 of Massachusetts General Laws, the committee proposes budgets to annual town meetings. In between, it regulates use of the reserve fund. In Brookline, the same committee and its subcommittees also review, hold hearings on and make recommendations about all warrant articles for all town meetings.

Although Mel Kleckner, the town administrator, knew that the budget would go out of balance, he withheld information from the Advisory Committee and might have withheld it from the Board of Selectmen. As a result, the town meeting passed a budget with a major, structural deficit that likely could have been prevented. Mr. Kleckner admitted as much in a later exchange with Sean Lynn-Jones, chair of the Advisory Committee.

According to Mr. Weiss of the committee, that was a breach of trust. The committee, he said, “places great reliance on management representations…Some folks thought withholding information was a good idea…This experience has severely damaged my trust and respect in management.” Fallout included a hotly controversial reserve fund transfer, narrowly approved July 7, when another reserve fund request was denied.

Two members of the Board of Selectmen rushed to defend Mr. Kleckner, and none questioned him, even though all five current board members are Advisory graduates. Nancy Daly, the only board member not serving a first term in office, claimed, “This was not an attempt to hide information…A suggestion that we were trying to sweep something under the rug…was quite offensive.” She did not explain what that referred to.

Neil Wishinsky, chair of the board, made a long statement, concluding, “We try to act in good faith…use our best judgment…There was no bad faith.” In the message exchange, committee chair Lynn-Jones had asked Mr. Kleckner, “…did you consider letting the Advisory Committee know [in April]…budget recommendations might have to be revised?” Mr. Kleckner had responded, “Not at that time….”

Public affairs: Deborah Rivers of the Brookline GreenSpace Alliance described to the board proposed changes in the town’s “climate action plan.” However, from her descriptions alone, it was not clear what differed from the previous plan of December, 2012. An interactive form of the 2012 plan has vanished from the municipal Web site, but the conventional document for that plan remains available.

Comparing proposed actions in Appendix F from the 2012 plan with a new Appendix A of proposed changes showed a reduction in actions being considered. Gone, for example, was a 2012 proposal to “develop a program for replacement of…refrigerators, dishwashers, clothes washers” and a dozen other types of equipment. There are still no comparisons of costs with benefits, and there are no estimates for amounts of efforts involved.

Linda Hamlin and Steve Heikin from the Planning Board and Roger Blood from the Housing Advisory Board asked for authorization to file an application for a $15,000 state grant. Grant applications are routinely filed by town staff without authorization, and approval is sought only to accept grants. It was not clear why any such authorization was needed and why those members of other town boards had become involved.

Their presentation was mostly a replay from a recent meeting of the Housing Advisory Board. Without any explanation, however, the ante had gone up. Instead of less than $35,000–an amount intended to avoid public bidding requirements under state law–Ms. Hamlin, Mr. Heikin and Mr. Blood were now talking about a total of $50,000 or more–not saying why more money was needed or where a missing $35,000 or more might come from.

Although they used oblique language, the main strategy from Ms. Hamlin, Mr. Heikin and Mr. Blood was clearly to target Brookline neighborhoods for major development and to invite Chapter 40B developers whom they might prefer into Brookline to take over properties. Mr. Wishinsky, the board’s chair, seemed to catch on partly, saying such an approach would be “difficult”–involving “identifying specific sites” and “public processs.” However, he seemed to think the strategy involved zoning, when the intent of Chapter 40B is to override zoning, along with all other local permits.

Other board members were circumspect. Nancy Daly spoke about “a huge need in town for affordable senior housing.” Alison Steinfeld, the planning director, claimed Brookline could not focus on senior housing, apparently unaware such plans are authorized under federal law and had been recently announced for development at the Kehillath Israel site on Harvard St. With board member Bernard Greene not participating, the other four voted to approve filing a grant application.

Personnel, contracts and finances: Melissa Goff, the deputy town administrator, got approval to accept a $0.24 million state energy resources grant, intended to offset costs of energy-efficient lighting. Brookline is in the second year of street lighting improvements. In response to a question, Peter Ditto, the engineering director, said changes to street lighting are about 40 percent complete. The new grant, however, is to be used for other public facilities: the high school, the Tappan St. gym, the swimming pool and several parks.

Mr. Ditto got approval to accept $0.144 million in state funds for repairing winter storm damage to streets. He said all the work had been completed by June 30. At his request, the board also approved a $0.024 million contract with Superior Sealcoating of Andover for summer street maintenance.

Lisa Paradis, the recreation director, sought hiring approval for two lead teacher positions at the Soule Recreation Center. As board member Nancy Daly observed, there has been high turnover among the seven teaching jobs at the center. From participants, there have been some notes of morale issues. Responding to a question from board member Nancy Heller, Ms. Paradis said the average length of employment was 3 to 4 years. The board approved, with Mr. Wishinsky asking Ms. Paradis to “seek a diverse pool of candidates.”

Licenses and permits: After the board turned its attention to license applications, Mel Kleckner, the town administrator, left the hall. First up was Richard Nasr of Westwood, who operates the Ontrack Cafe there, seeking a food vendor license at 1633 Beacon St, to be called Square Deli. Such a license for prepared foods does not include restaurant seating or service.

Ms. Daly questioned the application for 2 am closing, calling that “pretty strange” for a sandwich and salad shop. However, as the application noted, the previous business at the site, a 7/11 market, had operated with 2 am closing hours. The board approved the new license with 2 am closing hours.

Adam Barnosky, a member of the law firm headed by Robert L. “Bobby” Allen, Jr., represented Peet’s, seeking approval for three outside tables and service for nine seats at 1154 Boylston St., formerly Starbuck’s. The board has become quite liberal about outside seating, even allowing it on some sidewalks. At this site, outdoor seating was planned on private space in a narrow strip adjacent to a sidewalk. The board approved, subject to another review of seating area dimensions by the Building Department.

A prime candidate for board attention this evening was a proposal for Waxy’s, a regional chain of restaurants with an Irish theme, to open at 1032 Beacon St. That had most recently been the site of a sometimes troubled Mission Cantina. Waxy’s submitted an ambitious proposal, asking for 122 indoor seats, 48 outdoor seats, up to 60 employees, full liquor service including a bar, 2 am closing hours all 7 days a week and recorded entertainment. It would become one of Brookline’s largest restaurants.

The chain was represented by Frank Spillane, a Foxborough lawyer. There turned out to be disconnects. The people named as managers on papers distributed for the license hearing were not actually expected to be the managers once the restaurant was open. The chain was still looking for someone. A main spokesperson at the hearing was a manager recently hired at another location who mumbled his name, although clearly it was not one of those names appearing on the license papers.

Members of the board had read a Brookline Police Department report calling attention to multiple problems at one of the chain’s current locations, in Foxborough. There had been a sale to a minor, drunken behavior by patrons and repeated license suspensions–at least one while that location was managed by one of the people named on license papers as a Brookline manager.

Lt. Hayes of the Brookline Police Department, who had investigated, recommended 1 am closing hours, security cameras and other license restrictions. Board members Nancy Daly and Ben Franco stated they would vote against the application as it stood. With Bernard Greene not participating, the application could not get a majority vote of approval. Mr. Wishinsky, the chair, called for public comment.

Steve Kanes of Carlton St., an Advisory Committee member, described widespread neighborhood concerns. They included noise, litter and smoking. A license, he said, should not allow outdoor entertainment. He mentioned late-night noise after closing, around the outdoor trash receptacle, asking for restrictions.

Joel Feingold of Beacon St., a next-door neighbor, said the former Mission Cantina had caused much more trouble for nearby residents than other business at the site: “a rude awakening” and “a difficult neighbor.” They ran until 2 am outdoors, he said, although licensed only until 11 pm. Outdoor litter and late-night noise had been chronic problems. He asked for no deliveries before 8 am if a license were granted.

James Franco of Amory St., a Precinct 1 town meeting member, asked for no outdoor service after 10 pm if a license were granted, intending that use of outdoor seating should end before 11 pm. Neil Gordon of Ivy St., also a Precinct 1 town meeting member, had similar concerns. Other neighbors recounted past problems and joined in asking for restrictions on any new license. The board was going nowhere with this application. Mr. Wishinsky announced the hearing would be continued to a future date.

Chickens: Brookline is not always so difficult for applicants. Illustrating the point, two evenings later the Zoning Board of Appeals considered an application at a location not far away, on Amory Street, asking for a permit to install a small chicken coop. There may not have been a similar application north of Route 9 during at least the past half century.

The applicants were the Gurock family, who opened the popular Magic Beans children’s store on Harvard St. in 2003, at the former site of Imaginarium. They now have five other locations in Massachusetts and Connecticut. The parents are seeking educational experiences for their children, said Sheri Gurock, describing measures the family plans to prevent odors and neighborhood disturbances (no roosters). Neighbors sent in letters of support, and there was no opposition. The board approved.

Located in the Cottage Farm historic district, the proposal also needed Preservation approval, which it had previously received. The district name was an 1850s invention of Amos Adams Lawrence (1814-1886), sponsor of the unusual development. It did not reflect any known historic farm that might also have raised chickens.

– Beacon staff, Brookline, MA, July 18, 2015


Memorandum from Melvin A. Kleckner, Town Administrator, to Sean Lynn-Jones, Chair, Advisory Committee, Town of Brookline, MA, July 13, 2015

Climate action plan, Town of Brookline, MA, December, 2012

Revisions to climate action plan, Town of Brookline, MA, July, 2015

Planning assistance toward housing (PATH), Massachusetts Department of Housing and Community Development, 2015

Kehillath Israel: renovation and Chapter 40B development, Brookline Beacon, July 9, 2015

Craig Bolon, Advisory Committee: reach for the reset button, Brookline Beacon, July 8, 2015

Housing Advisory Board: “smart growth,” $35,000 consultant, Brookline Beacon, June 25, 2015

Public Works: question time and complaints, Brookline Beacon, May 15, 2014

Kehillath Israel: renovation and Chapter 40B development

On Wednesday evening, July 8, representatives of the Kehillath Israel congregation announced at a public meeting held at the site that they were starting real estate development, in two parts. Part 1 renovates the synagogue building, dedicated in 1925, and adds about 10,000 square feet of support space on the north side. Part 2 builds an undisclosed amount of partly subsidized new housing, replacing the community center opened in 1948 and using Chapter 40B of the General Laws to override Brookline zoning.

Rabbi William Hamilton opened the meeting, saying the congregation was planning for a next century. The membership has shrunk from a peak of around 1,200 families in the 1950s to around 400 now. He introduced Joseph Geller, a landscape architect and developer, member of the congregation, Precinct 9 town meeting member and former member of the Board of Selectmen, who led most of the discussions.

Mr. Geller introduced Robert L. “Bobby” Allen, Jr., a local real estate lawyer, Precinct 16 town meeting member and former member of the Board of Selectmen with whom Mr. Geller served. Mr. Allen is representing the congregation’s legal interests in development plans. Asked about potential disruptions from pursuing development while nearby Devotion School is being rebuilt, Mr. Allen merely said it could be “a problem.”

According to Alison Steinfeld, Brookline’s director of community planning and development, about a year ago Mr. Allen met with members of the department for an initial discussion. Ms. Steinfeld said she did not know the amounts of housing Kehillath Israel might have in mind. Such a discussion, as well as such a meeting as happened July 8, are among steps in Brookline’s design review process for any development on Harvard St.

Location, location: Stories about a potential large housing development have circulated around nearby neighborhoods for many months, with a wide range of speculation about locations, amounts, sizes and heights. The presentation on July 8 settled only location: space now occupied by the community center, which representatives of the congregation called the “Epstein building.”

The current community center’s building outline is about 120 by 65 feet, plus a depth of about 30 feet for front entry and steps. If there were to be no further incursions past those perimeters, that could provide a gross area near 10,000 square feet per floor. A modern 4-story building, similar in overall height to the community center, might house around 40 medium-size apartments.

North Brookline neighborhoods have had two previous experiences with 40B developments. A private developer near the synagogue substantially scaled back initial plans and built a double wood-frame quadruplex at 107A through 113B Centre St. in the late 1990s, replacing a large house. Occupancy of these condominium units has proven fairly transient, with turnovers every several years.

After about seven years of disputes and negotiations, the development arm of the Roman Catholic Archdiocese of Boston scaled back initial plans for the former St. Aidan’s Church by about 60 percent and put up mostly modern, fireproof new construction around 2008. However, adaptive reuse, unprecedented for the Archdiocese, placed several apartments inside the historic church structure and preserved the large courtyard at the corner of Pleasant and Freeman Sts. and its huge copper beech tree.

Senior housing: Mr. Geller said Kehillath Israel was planning “senior housing”–favorable for a community in which escalating costs of public schools have been driving up budgets, leading to tax overrides passed this year and in 2008. While age-restricted housing is clearly a form of discrimination, under some conditions it is allowed by laws and regulations.

Massachusetts has had antidiscrimination housing laws for many years. They were partly subsumed by the federal Fair Housing Act, Title 8 of the Civil Rights Act of 1968 (PL 90-284). The original version of the law prohibited discrimination based on race, color, religion, sex or national origin in the sale and rental of dwellings. Other protected categories have been added.

Section 4 of Massachusetts General Laws Chapter 151B, “Unlawful Discrimination,” prohibits discrimination because of race, color, religious creed, national origin, sex, age, ancestry, veteran status, sexual orientation, marital status, children, handicap and receipt of public assistance or housing subsidy in the selling, renting or leasing of housing accommodations, commercial space or land intended for those uses. Fines are up to $50,000 per violation. Massachusetts regulations in 804 CMR 02 implement the law.

One of the few general exceptions in housing discrimination laws has allowed, after 1988, qualified “senior housing” developments, as modified under the federal Housing for Older Persons Act of 1995 (PL 104–76). Such a qualification requires 80 percent of dwellings to be occupied by at least one person who is 55 years of age or older. The federal qualification can be lost if that operating status is not maintained.

The Kehillath Israel congregation would almost surely be able to qualify a development as “senior housing.” Asked how the congregation might guarantee that “senior housing” will continue to qualify and operate that way, Mr. Geller said he expected there would be a continuing agreement with the Town of Brookline. By contrast, the management at Hancock Village in south Brookline has been moving away from “senior housing,” actively marketing to mostly foreign families with children. They are not planning “senior housing” as a part of their current Chapter 40B housing project in Brookline.

When a religious organization sponsors housing, some assume members and affiliates of the organization will become occupants or may be favored. Occupants of new housing at the Kehillath Israel site need not be Jewish or otherwise share some background that might tend to exclude people protected against discrimination. During controversy over redevelopment of the former St. Aidan’s Church, at least some former parishioners seemed convinced they would be favored to occupy new apartments there. Since that did not agree with housing laws and regulations, it did not happen.

– Beacon staff, Brookline, MA, July 9, 2015


Fair housing regulation, Massachusetts Office of Consumer Affairs and Business Regulation, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

2015 annual town meeting: how town meeting members voted

The 2015 annual town meeting held eleven electronically recorded votes, the same as the annual town meeting last year, even though this year’s town meeting considered only about half as many articles. As happened last year, there were discrepancies between votes reported by the town clerk, three days after the town meeting ended, and votes declared by the moderator when they were taken. This year there were no “straw” votes–supposedly just to get a count–and the biggest discrepancy was a difference of two votes–not enough to change any result.

Frank Caro, a Precinct 10 town meeting member, stepped out as captain of recorded votes. He would leap to a microphone and ask for a recorded vote. Edward “Sandy” Gadsby, the moderator, would call on supporters to stand, and he would count to see if there were at least 35. There always were. Soon Dr. Caro needed only to approach a microphone and didn’t have to say why. Perhaps because it needed less than two minutes, town meeting members took to the process.

With the table of recorded votes, two indices have been calculated for each town meeting member. One is an index of voting, measuring participation: 100% for voting Yes, No or Present at every opportunity, 0% for being absent or not voting at every opportunity. The other is an index of concurrence, measuring agreement with the town meeting results: 100% when voting Yes or No the same way as every result at town meeting, -100% when voting the opposite way as every result. Votes of Present (or Abstain), records of being absent and records of not voting were counted as neutral for an index of concurrence.

There were, in total, 266 records with no vote being cast by town meeting members who had checked in with tellers and taken out their assigned keypad transmitters. That was far more than the 75 vote records of Present (or Abstain). An average of 32 out of 248 town meeting members were absent at the two sessions–that is, they did not check in and take out their assigned keypad transmitters. There are no records of whether town meeting members stayed at the town meeting sessions after checking in.

The voting records designated as Precinct AL (at large) are those for the moderator, the town clerk, members of the Board of Selectmen and the single state representative who lives in Brookline. High indices of both voting and concurrence were recorded for Benjamin Franco and Nancy Heller, members of the Board of Selectmen, at 100% voting and 82% concurrence. Three town meeting members were recorded with both 100% voting and 100% concurrence: Virginia LaPlante of Precinct 6, Craig Bolon of Precinct 8 and Lee Cooke-Childs of Precinct 12.

– Craig Bolon, Brookline, MA, June 28, 2015


2015 annual town meeting: budgets, bylaws and resolutions, Brookline Beacon, May 30, 2015


Brookline 2015 annual town meeting, electronic votes as of May 31, 2015
Source: Town Clerk’s on-line records

No. Day Article Result Question voted
1 5/26 10 N Changes to Living Wage bylaw, motion to terminate debate
2 5/26 10 Y Changes to Living Wage bylaw, opposing changes to seasonal and temporary
3 5/26 10 Y Changes to Living Wage bylaw, main motion as amended
4 5/28 13 N New bylaw requiring tap water in restaurants, motion to refer
5 5/28 13 Y New bylaw requiring tap water in restaurants, main motion
6 5/28 14 N New bylaw for bottled water ban, motion to terminate debate
7 5/28 14 N New bylaw for bottled water ban, motion to refer
8 5/28 12 N Changes to snow shoveling bylaw, limit discretionary delay in enforcement
9 5/28 12 Y Changes to snow shoveling bylaw, fine on first violation rather than warning
10 5/28 18 N Resolution for study of eminent domain, motion to terminate debate
11 5/28 19 Y Resolution opposing Boston Olympics in 2024, main motion

Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
1 Cathleen Cavell N Y Y N Y N N Q Q Q Q 64% 64%
1 Jonathan Cutler N Y Y N N N Y Y Y Y Y 100% 27%
1 Elijah Ercolino N Q Y Y Q Y Y Y Y Q Q 64% -9%
1 James Franco Y N N Q Y Y N N Y Y N 91% -18%
1 Richard Garver Y Y N N N N Y P Y Y N 100% -18%
1 Neil Gordon N Y Y N Y Y N Y Y Y Y 100% 45%
1 Helen Herman N Y Y A A A A A A A A 27% 27%
1 Carol Hillman N Y N A A A A A A A A 27% 9%
1 Sean Lynn-Jones N Y Y N Y N N N Y N P 100% 91%
1 Alexandra Metral Y Y Q Y Y N N Y Y N N 91% 18%
1 Paul Moghtader Y N Y N Y Y N Y Y Y Q 91% 0%
1 Bettina Neuefeind Q Q Q N Y N N Y Y Q Q 55% 36%
1 Robert Schram Y Y Y N Y Y N N Y Y Y 100% 45%
1 Kate Silbaugh N Y N N Y N N Y Y Q Q 82% 45%
1 Robert Sloane Y Y Y N Y N N Y Y Y N 100% 27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
2 Judith Kidd Y Y N N Y Y N N Y P Q 91% 27%
2 Lisa Liss Y Y Q N Y Y N Y N Y Q 82% -9%
2 Rita McNally A A A A A A A A A A A 0% 0%
2 Adam Mitchell Y Y Y N N Y N Y Y Y N 100% -9%
2 Barbara O’Brien Y Y N Y N Y Y Y Y N N 100% -45%
2 Gwen Ossenfort Y Y Y N Y Y N Y Y Y N 100% 9%
2 Linda Pehlke A A A A A A A A A A A 0% 0%
2 Susan Roberts Y N Y Y Y Q Y N N Q N 82% -27%
2 Livia Schachter-Kahl Q Y Y Y Y Y Y Y Y Y Q 82% -9%
2 Diana Spiegel N Y Y Y N Y Y N N N Q 91% 0%
2 Stanley Spiegel A A A A A A A A A A A 0% 0%
2 Eunice White A A A A A A A A A A A 0% 0%
2 Bruce Wolff A A A Q Q Q Q Q Q Q Q 0% 0%
2 Ana Vera Wynne Y Y Y Y Y Q Y Y Y Y Y 91% 0%
2 Richard Wynne Y N Y A A A A A A A A 27% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
3 David Aronson Y N Y Y N Y Y N N Y N 100% -64%
3 Harry Bohrs N Y Y N Y Q Q N Q P P 73% 55%
3 Patricia Connors Q Y Y Q Y N N Y Y N Q 73% 55%
3 Mary Dewart Y Y Y N Y Y N Y Y N Y 100% 45%
3 Murray Dewart Y Y Y N Y Y N Y Y N P 100% 36%
3 Dennis Doughty N N Q Y N N Y N Y N N 91% 0%
3 Jane Gilman Y Y Y N Y N N Y Y N Y 100% 64%
3 Heather Hamilton Y Y Y Y Y Y Y Y Y P Y 100% 0%
3 Gary Jones Y Y Y Q Q Y Y N N Y Y 82% -9%
3 Laurence Koff Y N Y A A A A A A A A 27% -9%
3 Donald Leka Y Y Y N Y N N Y Y N Y 100% 64%
3 Kathleen Scanlon N Y Y Q Q N N Y Y N Y 82% 64%
3 Frank Steinfield N Y Y Y N Y N N Y N N 100% 27%
3 Rebecca Stone N N Y Y Y Y N Y Y P Y 100% 18%
3 Jean Stringham Y Y Y N Y Y N N N N Y 100% 45%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
4 Sarah Axelrod N Y Y Y Y N N N Y P N 100% 55%
4 Eric Berke N Y Y Y N Y Y Y Y Y N 100% -27%
4 Sarah Boehs N Y N N Y N N N Y Y Y 100% 64%
4 Alan Christ N Y N N Y Y N N Y P N 100% 36%
4 Ingrid Cooper N Y Y N Y N Y Y Y N N 100% 45%
4 Anne Covert N Y Y Y Y N N N N N Y 100% 64%
4 Frank Farlow N Y Y N Y N N Q Y N Y 91% 91%
4 Martha Farlow N Y Y N Y Y N Y Y N Y 100% 64%
4 Nadine Gerdts A A A N Y N N Q Y Y Q 55% 36%
4 John Mulhane Y Y Y Y N N Y N Y Y N 100% -9%
4 Mariah Nobrega N Y Y Y Y N Y N Y N Y 100% 64%
4 Joseph Robinson Y Q Q Y Y Y Q Y N Q Q 55% -36%
4 Marjorie Siegel Y Y Y Q Q Q Q Y Y N Y 64% 27%
4 Virginia Smith N Y Y A A A A A A A A 27% 27%
4 Robert Volk Y Y Y N Y Y Y N N Y N 100% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
5 Richard Allen N N Y Y N Y Y N Y Y Q 91% -18%
5 Robert Daves N Y Y N N Y Y N Y Y N 100% 9%
5 Dennis DeWitt A A A A A A A A A A A 0% 0%
5 Betsy Gross Y Y Y Y N Y Y Y Y Y Y 100% -27%
5 Michael Gunnuscio Y Y Y Q Q Y N Y Y Y N 82% -9%
5 Angela Hyatt Y N Y Y N Y Y N Y Y Y 100% -27%
5 David Knight Q Q Q A A A A A A A A 0% 0%
5 Hugh Mattison Y Y Y N Y Y N N Y N Y 100% 64%
5 Puja Mehta Q Q Q N Y N Y Q Q Q Q 36% 18%
5 Randolph Meiklejohn N Y Y N Y Y N N Y Y Y 100% 64%
5 Phyllis O’Leary Q Q Q N Y Y N Y N Q Q 55% 0%
5 Andrew Olins Y N Y N Y Y N N N Y Q 91% 0%
5 William Reyelt N Y Y N Y N N Y Y Y N 100% 45%
5 Claire Stampfer Y Y Y A A A A A A A A 27% 9%
5 Lenore von Krusenstiern P Y N Y N Y Y N Y Y Y 100% -18%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
6 Catherine Anderson N Y Y Q Q N Y Y Y N N 82% 27%
6 John Bassett N N N N Y Y N N N Y Y 100% 9%
6 Jocina Becker N Y Y Q Y Y Y N Q Y Y 82% 27%
6 Christopher Dempsey N N Y N Y Y N Y Y Y Y 100% 27%
6 Brian Hochleutner Y N Y Y Y N N N Y N N 100% 27%
6 Sytske Humphrey Y Y Y N N Y Y N Y N Y 100% 27%
6 Virginia LaPlante N Y Y N Y N N N Y N Y 100% 100%
6 Merelice N Y N N Y N N Y Y N Y 100% 64%
6 Clinton Richmond Y Y Y N N N N Q Q Y Y 82% 27%
6 Ian Roffman N Y Y N Y N Y Y Y N P 100% 55%
6 Daniel Saltzman N Y Y Q Y N Y Y Y N N 91% 36%
6 Kim Smith N Y Q N Y N N Y Y N Y 91% 73%
6 Ruthann Sneider N Y N N Y N N Q Y N Y 91% 73%
6 Robert Sperber N N N A A A A A A A A 27% -9%
6 Thomas Vitolo N Y N N Y N N Y Y N Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
7 Ellen Ball Y Y Y Q Q Y N Y Y Y N 82% -9%
7 Susan Cohen Y Y Y Y N Y Y N N N N 100% -27%
7 Keith Duclos Y Q Q N Y N Q Y Y N Y 73% 36%
7 Susan Ellis N Y Y N Y N N Y Y N Y 100% 82%
7 Ernest Frey N Y Y Y Y N Y N N N N 100% 27%
7 Phyllis Giller Y Y Y Q Q Y Y N N N N 82% -9%
7 Susan Granoff N Y Y Y Y Y Y N Y Y N 100% 9%
7 Mark Gray Y Y Y Y Y Y Y N Y N Y 100% 27%
7 Kelly Hardebeck Y N N Y Y Y Y Q Q Q Q 64% -45%
7 Jonathan Lewis Y Y Y A A A A A A A A 27% 9%
7 Jonathan Margolis A A A A A A A A A A A 0% 0%
7 Christopher Oates N Y Y Y N Y Y N Y N Y 100% 27%
7 Stacey Provost P P P P Q Y Y P P Y Y 91% -18%
7 Rita Shon-Baker Y Y Y Y N Y Y Y N Y Y 100% -45%
7 James Slayton Y Y Y N Y Y N N Y Y Q 91% 36%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
8 (vacancy) (vacancy) A A A A A A A A A A A 0% 0%
8 Lauren Bernard N Y Y Y P Y Y Y Y N Y 100% 18%
8 Craig Bolon N Y Y N Y N N N Y N Y 100% 100%
8 Abigail Cox N Y Y Y Y Q N Y Y P Y 91% 45%
8 Gina Crandell Q Q Q A A A A A A A A 0% 0%
8 Franklin Friedman Y N Y N Y Y N Y Y Y Q 91% 0%
8 David-Marc Goldstein P P Y Y N Y Y N N N Y 100% -9%
8 John Harris N Y Y Y Y Y Y P Y N Y 100% 36%
8 Anita Johnson N Q Y Y N Y Y P Y Y Y 91% -9%
8 Edward Loechler Y Y Y N Y N N N Y Y Y 100% 64%
8 Robert Miller Y Y Y N Y Y N Y Y P Q 91% 27%
8 Barbara Scotto N Y Y A A A A A A A A 27% 27%
8 Lisamarie Sears A A A Q Q N N N N Q Q 36% 18%
8 Sara Stock A A A A A A A A A A A 0% 0%
8 Maura Toomey Y Y Y N Y Y N Y Y Y Q 91% 18%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
9 Liza Brooks Y Q Q Y Y Y Y Y Y Y Q 73% -36%
9 Joseph Geller N N Y Q Q Y N N Q P Q 64% 18%
9 Paul Harris P Y N N Y Y N N Y P Y 100% 45%
9 Nathaniel Hinchey P Y Y N Y Y N N N Q Q 82% 36%
9 Barr Jozwicki A A A Y Y Y Y N N Y Y 73% -18%
9 Joyce Jozwicki Q Y Y Y Y Y Y Y Y Y Y 91% 0%
9 Pamela Katz Y Y Y N Y Y N Y Y Y Q 91% 18%
9 Julius Levine A A A A A A A A A A A 0% 0%
9 Stanley Rabinovitz A A A A A A A A A A A 0% 0%
9 Harriet Rosenstein Y Y Y N Y Y Y Y Q Q Q 73% 0%
9 Martin Rosenthal N Y Y N Y N N N N N Y 100% 82%
9 Charles Swartz N Y Y Y N N Y N N N N 100% 9%
9 Dwaign Tyndal A A A Q Q Y Q Q Q Q Q 9% -9%
9 Judith Vanderkay Y Y N N Y Y N N N Y Q 91% 0%
9 George White Y Y N Q Y Y Q Y Y Y Y 82% -9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
10 Clifford Ananian N Y N N Y N N N Y Y N 100% 45%
10 Carol Caro N Y Y Y N N Y Y Y N Y 100% 27%
10 Francis Caro N Y N Y N N Y N Y N Y 100% 27%
10 Sumner Chertok A A A A A A A A A A A 0% 0%
10 Jonathan Davis N Y Y Y N Y Y N N Y Y 100% -9%
10 Linda Davis A A A Q Q Y Y N N Y Y 55% -18%
10 Holly Deak Y Y Y N Y Y N Y Y Y Q 91% 18%
10 Stephan Gaehde Y Y Y N Y N N Y Y Y Y 100% 45%
10 Daniel La Y Y Y N Y Y N Y Y Y Q 91% 18%
10 Paul Lipson Y P Y Y Y Y N Y Y Y N 100% -18%
10 Sharon Sandalow A A A A A A A A A A A 0% 0%
10 Theodore Scholnick Y N Y Y Y Y N N P Y N 100% -18%
10 Stanley Shuman Q Q Q N Q Q Y Q N N Y 45% 9%
10 Alexandra Spingarn Q Q Q Y N Y Y N Y Y Q 64% -27%
10 Naomi Sweitzer Y Y Q N Y N N Y Y Y Y 91% 36%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
11 Carrie Benedon Y Y Y N Q Y N Y Y Y N 91% 0%
11 Joseph Ditkoff N Y Y N Y N N Y Y N N 100% 64%
11 Shira Fischer Y Y Y Y Y N N N Y N Y 100% 64%
11 Shanna Giora-Gorfajn N Y Y Y Y N N N Y N Y 100% 82%
11 Jennifer Goldsmith N Y Y Y Y Y N Q Q Q Q 64% 27%
11 Martha Gray N Y Q N Y N N Y Y N Y 91% 73%
11 Bobbie Knable N N P Y Y N Y N Y N N 100% 18%
11 David Lescohier Y Y Y N Y Y N Y Y Y Y 100% 27%
11 Kenneth Lewis Y N N Y N Y Y Y Y Y Y 100% -64%
11 David Lowe N Y Y N Y N N Y Y N Y 100% 82%
11 Rebecca Mautner Q Y Y Q Y N N N Y Y Y 82% 64%
11 Maryellen Moran Q Q Q A A A A A A A A 0% 0%
11 Carol Oldham Y Y Y N Y N N N Y N Y 100% 82%
11 Brian Sheehan N Y Y Y N N Y Y Y N N 100% 9%
11 Karen Wenc N N N Y N Y Y Y N N Y 100% -45%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
12 Michael Burstein Y Y Y N Y Y N N Y Y Y 100% 45%
12 Bruce Cohen Y P N A A A A A A A A 27% -18%
12 Lee Cooke-Childs N Y Y N Y N N N Y N Y 100% 100%
12 Chad Ellis Y N N N N Y Y N N Y Y 100% -45%
12 Harry Friedman Y N N N N Y Y N N Y Y 100% -45%
12 Jonathan Grand Y Y Y Y N Y Y N N Y Y 100% -27%
12 Stefanie Greenfield Y N N N Y N N Q Q Q Q 64% 9%
12 Casey Hatchett Q Q Y Q Q N Y N N Q Q 45% 9%
12 Amy Hummel P N N N N Y Y N N P Y 100% -27%
12 Jonathan Karon Y Y Y N Y Y Y N Y Y Y 100% 27%
12 David Klafter N Y N Q Q N N Y Y N Y 82% 45%
12 Mark Lowenstein N Y Y N Y Y N N Y Y N 100% 45%
12 Judy Meyers N N N N Y Y N N N P Y 100% 18%
12 William Slotnick N N N N Y N N N Y Y Y 100% 45%
12 Donald Weitzman N Y Y N Y N N N N Y Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
13 Joanna Baker N Y Y N Y N N Y Y N Y 100% 82%
13 Carla Benka Y N N N N Y Y N N N Y 100% -27%
13 Roger Blood A A A A A A A A A A A 0% 0%
13 Chris Chanyasulkit Y Y Y N Y N N N N N Y 100% 64%
13 John Doggett Y N Y N N Y Y N N Y N 100% -45%
13 Jonathan Fine Y N Y Y N Y Y N N P Y 100% -36%
13 Andrew Fischer N Y N N Y N N Y Y N Y 100% 64%
13 John Freeman Y N Q P Y Y Y N Y N Y 91% 9%
13 Francis Hoy A A A A A A A A A A A 0% 0%
13 Ruth Kaplan A A A A A A A A A A A 0% 0%
13 Werner Lohe Y Y Y N Y N N Y Y P Y 100% 55%
13 Paul Saner Y N N Q Q Q Q Y Y Y Y 64% -27%
13 Lee Selwyn Y N N Y N Y Y N N N Y 100% -45%
13 Barbara Senecal Y Q Q Y N Y Y N N Q Q 64% -45%
13 John VanScoyoc Y Y Y Q Q Y Y N N Y N 82% -27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
14 Robert Basile Y N Y Y N Y Y Q Q Q Q 64% -45%
14 Clifford Brown Y N Q Y P Y Y Q Q Q Q 55% -45%
14 Gill Fishman Q Q Q Y N Y Y Q Q Q Q 36% -36%
14 Paula Friedman Y N N Y N Y Y N N N Y 100% -45%
14 Kenneth Goldstein N P P N Y Y Y N N Y N 100% -9%
14 Jeffrey Kushner Y N N N N Y Q N Y Y Y 91% -18%
14 Fred Levitan A A A Y N Y Y N N Q Q 55% -36%
14 Roger Lipson Y Y Y N Y Y Q N N Y Y 91% 18%
14 Pamela Lodish N N N Y N Y Y Y Y N Y 100% -27%
14 Shaari Mittel Y N Y Y N Y Y N N Y Y 100% -45%
14 Kathleen O’Connell Y Y Y N Y Y N N Y Y Q 91% 36%
14 Benjamin Rich A A A A A A A A A A A 0% 0%
14 Lynda Roseman N P Y Y N Y Y N Y Y Y 100% 0%
14 Sharon Schoffmann Y Y Y N N Y Y Y Y Y Y 100% -9%
14 Jennifer Segel Y Y N Y Y Y N N Y Y Y 100% 9%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
15 Mariela Ames A A A Q N Q Q Q Q Q Q 9% -9%
15 Eileen Berger Y Q Q N Y Y N N N Q Q 64% 9%
15 Michael Berger A A A A A A A A A A A 0% 0%
15 Abby Coffin A A A A A A A A A A A 0% 0%
15 Jane Flanagan A A A Q Q Y Y Y Y Y Y 55% -18%
15 John Hall A A A A A A A A A A A 0% 0%
15 Benedicte Hallowell Q Q Q N N N Y Y Y Q Q 55% 0%
15 Janice Kahn Y Y Y Y N Q Y N N N Y 91% 0%
15 Ira Krepchin Y Y Y Y N Y Y N N N N 100% -27%
15 Robert Liao Y Y Y Y N Y Y N Y Y Y 100% -9%
15 Richard Nangle A A A Q Q Y Q Y Y Y Y 45% -9%
15 David Pearlman Y N Y N Y N Y N N N N 100% 9%
15 James Rourke A A A A A A A A A A A 0% 0%
15 Ab Sadeghi-Nejad Q Q Q Y Y Q N Q Q Q Q 27% 9%
15 Cornelia van der Ziel N Y N N Y N N N N N Y 100% 64%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
16 Saralynn Allaire Y N Y N Y Y N N Y N Y 100% 45%
16 Robert Allen N N Y Y N Y Y N Y Y Q 91% -18%
16 Beverly Basile Y N Y N Y Y Y N N P Q 91% -9%
16 John Basile Y N Q Y N Y Y Q Q Q Q 55% -55%
16 Stephen Chiumenti P P Y Y P Y Y N Y Y Y 100% 0%
16 Regina Frawley N Y Y Y N Y Y Q Q N Y 82% 9%
16 Thomas Gallitano N Y Y A A A A A A A A 27% 27%
16 Scott Gladstone N Y N Y P N Y N Y Y Y 100% 18%
16 Alisa Jonas N P N Q Q Q Q Q Q N N 45% 0%
16 Judith Leichtner P Y Y Y Y Y Y N P N Y 100% 27%
16 William Pu Y N N Y Q Y Y Y Y N Y 91% -36%
16 Joshua Safer Y Y Y N Y Y N N Y N N 100% 45%
16 Irene Scharf Y Y Y Q Q Q Q Q Q N Y 45% 27%
16 Arthur Sneider N Y Y Q Q Y N Q Q Q Q 45% 27%
16 Joyce Stavis-Zak Y Y Y N Y Y Y N Y N N 100% 27%
                               
Electronic recorded votes Y for “yes,” N for “no” A absent    
2015 annual town meeting P for “present” or “abstain” Q not voting Index Index
Pct. Given name Family name 1 2 3 4 5 6 7 8 9 10 11 Voting Concur
  Vote Result N Y Y N Y N N N Y N Y    
AL Nancy Daly N N Y N Y Y N N Y Y Y 100% 45%
AL Benjamin Franco N Y Y N Y Y N N Y N Y 100% 82%
AL Edward Gadsby P P P P P P P P P P P 100% 0%
AL Bernard Greene N Y Y P P N Y N Y N Y 100% 64%
AL Nancy Heller N Y Y N Y N N Y Y N Y 100% 82%
AL Frank Smizik Q Y Y Q Q Y N N Y Y N 73% 18%
AL Patrick Ward P P P P P P P P P P P 100% 0%
AL Neil Wishinsky Y Y Y Y Y Y Y N Y Y Y 100% 9%

Housing Advisory Board: “smart growth,” $35,000 consultant

A meeting of Brookline’s Housing Advisory Board on Wednesday, June 24, started at 7:30 pm in the first-floor south meeting room at Town Hall. All the current members except Kathy Spiegelman were on hand. Board members heard a presentation on Chapter 40R “smart growth” development and joined with Planning Board members in a continued review of Chapter 40B regulations, as asked at the town meeting in May. They are considering a consultant study estimated to cost $35,000.

Smart growth: Chapter 40R of Massachusetts General Laws and companion Chapter 40S are legacies from waning years of the Romney administration, trying to promote so-called “smart growth.” The catch-phrase mainly means development near public transit, reducing needs for automobiles. In the classic Massachusetts traditions, our hydra of state government grew a new tendril. It is currently headed by William E. “Bill” Reyelt, who is a Precinct 5 town meeting member in Brookline.

Mr. Reyelt illustrated his description of Chapter 40R to the housing board with computerized slides. The state is offering tiny incentives to communities that set up special “smart growth” zoning districts and approve housing development permits. They mainly amount to one-time payments of $1,000 to $3,000 per housing unit for each unit built beyond standard zoning.

Sergio Modigliani, a Planning Board member, observed that the cost of educating a student in Brookline schools averages around $18,000 a year. At that rate, state payments would be eaten up in at most a few months, while Brookline taxpayers would be exposed to uncompensated costs for at least a century. Maybe not so “smart.”

All Mr. Reyelt could offer was that Brookline might become “eligible” for partial compensation under a Chapter 40S program, but there is “no guarantee” of state funding. All the communities participating in Chapter 40R turned out to be smaller cities, far suburbs and rural towns. None are among the towns Brookline typically regards as peers, including Arlington, Belmont, Lexington and Winchester.

Chapter 40B regulations: As proposed by the Advisory Committee, last May’s annual town meeting referred a proposal to change Chapter 40B law and regulations to the Housing Advisory Board and the Planning Board, asking for a “plan for Brookline to work with other mature, built-out communities…to achieve a temporary ‘safe harbor’ status” from disruptive development, such as one proposed at Hancock Village. As the Advisory Committee wrote in its recommendation, that will take changes to state regulations.

Despite town meeting’s directions, the Housing Advisory Board looks to have taken off on a tangent. Instead of working on changing state regulations, members are considering a consultant study for a “housing production plan” to counter 40B development under current regulations.

Brookline already has such a plan, produced in 2005. Little of significance has changed since then. To satisfy current regulations, Brookline would have to develop more than 250 housing units a year that are subsidized to Chapter 40B levels. For the past 15 years, Brookline has averaged less than 10 such units a year.

Housing Advisory Board members estimated spending about $35,000 on a consultant study for a new housing production plan. However, they had not contacted any potential consultants. Instead, board member Karen Kepler, a lawyer, noted that a contract under $35,000 would be exempt from state public bidding requirements.

Virginia Bullock, one of the town’s housing project planners, said Brookline had a good chance of getting $15,000 from a new state grant called “planning assistance toward housing.” Board members speculated about how to wheedle money out of the Advisory Committee or how to bleed Housing Trust funds. Those are set aside to support subsidized housing units, not to stuff the pockets of consultants.

– Beacon staff, Brookline, MA, June 25, 2015


Matthew J. Lawlor, Chapter 40R: a good law made better finally starts showing results, Congress of the New Urbanism, October, 2006

Planning assistance toward housing (PATH), Massachusetts Department of Housing and Community Development, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Climate Action: planning a home invasion

At its meeting Monday, June 22, our sometimes torpid Climate Action Committee started a new, invasive approach that, if carried through, promises to impact every Brookline household, business and institution. The name of the game is “community choice aggregation.” What’s that?

Utility restructuring: During the mid-1990s, ambitious state administrations–mostly run by Republicans–began to promote deregulation, particularly for energy. They were apparently taking cues from the deregulation of airline fares during the Carter administration. The federal Public Utility Regulatory Policies Act of 1978 had proven mostly aspirational. State rather than federal government had most sway over utilities.

The United States has a cultural background of enthusiasms for apparently simple solutions to genuinely complex problems–for example, punitive public-school testing claimed as a solution to gaps in educational achievement, a poster child of the Reagan administration. That outlook has strongly influenced so-called “restructuring” of electric power and other utilities.

California conducted the first major experiment, starting in 1994 and descending into chaos in 2001, a year of blackouts and corruption–the Enron price manipulation crimes. Massachusetts started in 1996, during the troubled Cellucci administration. The following year, before the real Big Dig costs had been divulged to the public, the General Court was maneuvered into passing the Utility Restructuring Act of 1997.

Community choice aggregation: The main act of Massachusetts restructuring was to squeeze big electric companies, Boston Edison and New England Power, into selling their generating plants and focusing on local power distribution. A sleeper in the law was a provision for municipal cooperatives: not the traditional sort that own wires, transformers and meters–instead an offspring that engages in financial manipulation.

A widely advertised feature of the Restructuring Act allowed electricity customers to designate generating companies, from whom they would buy wholesale electricity carried to their locations and billed to them by distributing companies. A lengthy section of the act forbids distributing companies from switching customers’ generating companies. Only a voluntary action initiated by a customer can make a switch.

Another sleeper in the schizophrenic Restructuring Act, authorizing so-called “community choice aggregation,” stood those protections on their heads. For ten years, it remained little known and little used. By 2007, there were only five community choice aggregators–all but one a small town. Under the act, a town meeting can approve a program, and a board of selectmen can then contract with a distributing company.

A board of selectmen can also designate a combination of generating sources. Once that is done, local customers are automatically switched–without voluntary actions and without their permissions. They will get notices. They have a month to “opt out”–returning to generating sources of their own choosing. If they fail to act in a timely way, their suppliers are switched without permissions, in whatever way some board of selectmen chose, supposedly on their behalf.

Motives and side effects: For some communities, the main motive has been trying to lower the price of electricity, by combining purchasing and by bargaining for many customers. Success has been spotty at best. Stung by price reverses, in 2012 Ashland and Marlborough suspended their community choice aggregation (CCA), returning local customers either to “standard rate” plans or to generating companies they chose.

A 2013 report by researchers at Tufts University found that “savings reached through a CCA are modest and unpredictable.” In their conclusion, the researchers observe, “A purpose of [state] deregulation was to lower electricity rates through competition, but rates in deregulated states have increased more significantly than rates in regulated states.”

To long-term observers, that comes as no news. In 2006, David Cay Johnson had reported in the New York Times, “A decade after competition was introduced…the market has produced no [overall price] decline. Instead, more rate increase requests are pending now than ever before…Electric customers…are facing rude surprises….”

– Craig Bolon, Brookline, MA, June 23, 2015


Joshua Laufer, Betsy McDonald, Brenda Pike and Mengmeng Zhou, Community choice aggregation: municipal bulk buying of electricity in Massachusetts, Tufts University, May 6, 2013 (36 MB)

Joe O’Connell, Ashland halts electric power program, MetroWest Daily News (Framingham, MA), December 27, 2012

David Cay Johnson, Competitive era fails to shrink electric bills, New York Times, October 15, 2006

An act relative to restructuring the electric utility industry in the Commonwealth, regulating the provision of electricity and other services, and promoting enhanced consumer protections therein, Massachusetts General Court, Chapter 164 of the Acts of 1997

Board of Selectmen: Village Street Fair, trash metering

A regular meeting of the Board of Selectmen on Tuesday, June 9, started at 7:10 pm in the sixth-floor meeting room at Town Hall. The board had invited Andrew Pappastergion, the public works commissioner, to present plans for a trash metering system, replacing Brookline’s partly unstructured, fixed-fee approach to collecting solid waste from households and businesses.

Some board members had attended a “visioning” session conducted at Town Hall the previous evening for the Economic Development Advisory Committee. According to Neil Wishinsky, the chair, it focused on “medium-scale commercial parcels.” Board member Nancy Daly commented that “most projects would require rezoning.” Zoning changes take two-thirds votes at town meetings and have become difficult to achieve. Ms. Daly said there would need to be “neighborhood involvement and dialog.” So far there has been none of either.

Public affairs: Andy Martineau, an economic development planner, reported on the Brookline Village Street Fair, a new event to occur on Harvard St. from noon to 4 pm Sunday, June 14 (not June 15 as in the meeting agenda). Best known among similar events nearby may be the annual Allston Village Street Fair, usually held on a September Sunday. Mr. Martineau’s plans sounded somewhat more commercial, with about 40 merchants involved. Performances are planned by Vanessa Trien and the Jumping Monkeys, a favorite of young children, Ten Tumbao, Afro-Latin-Caribbean music, and the Muddy River Ramblers, bluegrass.

Richard Segan, from the Brookline Sister City Project, asked the board to approve a proclamation for Brookline Sister City Week, to be October 18-24. Cornelia “Kea” van der Ziel, a Precinct 15 town meeting member, and Peter Moyer, a Brookline resident, had visited Quezalguaque, Nicaragua, the third week in May. Drs. van der Ziel and Moyer described their visit and future plans. The board approved the proclamation.

The two Brookline physicians have mainly been concerned with atypical chronic kidney disease, a longstanding and severe problem in Quezalguaque–also common in Costa Rica and El Salvador. Unlike similar maladies in the United States, mainly found in older people, in Central America the disease strikes people as early as their twenties. Every year thousands die. Although environmental and occupational factors are suspected, no cause is known. Those working with the Sister City Project plan to extend epidemiological efforts, hoping to associate the disease with locations, occupations, water supplies, agricultural chemicals and other potential influences.

Trash metering: Andrew Pappastergion, Brookline’s commissioner of public works, presented the first detailed plans for trash metering. Programs known by that trademarked term–coined by WasteZero of Raleigh, NC, a contractor for Brookline–aim to improve on antiquated and simplistic “pay as you throw” efforts through automation, public education and convenience.

The City of Gloucester achieved a 30 percent reduction in waste disposal costs during the first full year of such a program, according to the Gloucester Times of March 7, 2010. However, Gloucester previously had a poor recycling record, while Brookline began curbside recycling in 1973 and has operated an increasingly advanced program since 1990.

Six Massachusetts towns with populations above 30,000 have some form of solid waste limit: Plymouth, Taunton, Amherst, Shrewsbury, Dartmouth and Natick. None of them are among the more urbanized and sophisticated towns Brookline typically regards as peer communities–including Arlington, Belmont, Lexington and Winchester. There is strong evidence that in urbanized and sophisticated communities public education has been more effective than trash metering at reducing solid waste. Although Brookline has a Solid Waste Advisory Committee, so far its members have been passive, performing no public outreach. Those are hurdles for Mr. Pappastergion’s plans.

Mr. Pappastergion presented a slide show to the board. It included a review of Massachusetts information organized by the Office of Energy and Environmental Affairs. State officials remain focused on antiquated and simplistic “pay as you throw” efforts, so far found mostly in smaller rural or suburban towns.

Mr. Pappastergion presented data unavailable to the public: recycling rates for communities using municipally supplied bins. The Massachusetts Department of Environmental Protection has collected recycling rate data since 1997, but after 2008 state officials stopped releasing them to the public. It appeared that no Massachusetts town with a population above 30,000 operates a program comparable to the one Mr. Pappastergion proposes.

Mr. Pappastergion proposes that Brookline supply to each of about 13,000 customers now using municipal refuse services a 35-gallon bin with wheels, similar in construction to the 64-gallon bins already supplied for recycling. Brookline would reduce the number of collection trucks from six to four and equip those trucks with automated bin-handlers like the ones now used for recycling bins.

Households would continue to pay the current $200 per year fee to have one 35-gallon refuse bin and one 64-gallon recycling bin collected each week. Extra refuse bags would be available at stores and town offices. They would have 30-gallon capacity and cost $2.00 each. For fees yet to be stated, Brookline would supply extra bins collected each week. Mr. Pappastergion estimated that 35-gallon bins would hold, on average, 40 lb of refuse, while 30-gallon bags would hold 25 lb.

Based on his estimates, Mr. Pappastergion might be proposing that Brookline violate state law by charging more than the cost of service for refuse bags. He estimated a cost of container and disposal at $1.15, as compared with a $2.00 fee. However, he did not include costs of collection and transfer. He provided no estimates for likely quantities of bags or extra bins.

In the proposed program, current practices for collecting bulky items, yard waste and metals would not change. Combining personnel, supplies, contractual services and capital equipment, Mr. Pappastergion estimated savings of about $0.1 million for fiscal 2017, the first full operating year, rising to about $0.4 million per year for fiscal 2022 and later years–including allowances for inflation.

Members of the board reacted with a diffuse scatter of comments. Mr. Wishinsky said the refuse bin on display looked “awful small” and asked about 48-gallon bins. Mr. Pappastergion said 35-gallon bins were important “to achieve goals of this program.” Board member Bernard Greene, in contrast, said he was “surprised at how large” the 35-gallon bin was. “We’d have room to rent out space.” Ms. Daly asked whether people would use compactors to overstuff the bins. Mr. Pappastergion doubted that would occur.

There were several questions about storage space and handling, to which Mr. Pappastergion responded by citing four years’ experience with the larger, single-stream recycling bins. The introduction of those elements led to increasing Brookline’s recycling rate from 30 to 37 percent, he said, but during the past two years progress has stalled. The department has yet to stimulate recycling through public outreach. It is not clear whether the department has the talent or the willingness to try.

Personnel, contracts and finances: Sara Slymon, the library director, won approval to hire three librarians, turning current interim positions into permanent ones, thanks in part to the tax override passed by voters in May. Mr. Greene and board member Ben Franco asked how the positions would be advertised. Ms. Slymon replied that union contracts restricted the library to internal posting unless a qualified candidate could not be found. She said all the current employees were well qualified for their positions.

Linda Golburgh, the assistant town clerk, asked for approval to hire an administrative assistant. The position is becoming vacant because of a retirement. It marks the third recent change in personnel at a small agency. Ms. Daly remembered that the current employee previously worked in the office of the Board of Selectmen. The board approved, with Mr. Wishinsky asking Ms. Golburgh to seek help from Lloyd Gellineau, the chief diversity officer, and Sandra DeBow, the human resources director, to insure a diverse candidate pool.

Peter Ditto, the engineering director, asked for approval of a $0.07 million increase in the contract to renovate Warren Field. The contractor is New England Landscape and Masonry (NELM) of Carver, MA. The board asked whether the project was staying within budget limits. Mr. Ditto said that it was and that the project was about to conclude. The board approved the change order.

Mr. Ditto also asked for approval of a $1.07 million contract with Newport Construction of Nashua, NH, to reconstruct Fisher Ave. It is this year’s largest street project. The other bidder, Mario Susi & Son of Dorchester, which is working on other Brookline projects, proposed a substantially higher price. The board approved the contract.

The board also approved several smaller financial transactions. Among them was accepting a $0.06 million state grant, using federal funds, to hire a transportation coordinator based at the Senior Center on Winchester St. Ruthann Dobek, director for the Council on Aging, described an innovative program aimed at helping older people adjust to living without automobiles. Board members asked how the program would operate in future years.

Frank Caro, a Precinct 10 town meeting member and a member of the Age-Friendly Cities Committee, responded that such a program had already begun with volunteers and would continue that way if necessary. However, Dr. Caro said, the program needed planning and coordination. Even a year of staffing, he contended, would move the program to better levels of service.

– Beacon staff, Brookline, MA, June 12, 2015


Celebrate Brookline Village, The Village Fair, 2015

Cause of CKD epidemic in Sister City remains a mystery, Brookline Sister City Project, 2010

Miguel Almaguer, Raúl Herrera and Carlos M. Orantes, Chronic kidney disease of unknown etiology in agricultural communities, MEDICC Review 16(2):9-15, Medical Education Cooperation with Cuba, 2014

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

Trash metering, WasteZero (Raleigh, NC), 2010

Solid Waste Advisory Committee: recycling and trash metering, Brookline Beacon, September 3, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Conflicts of interest: state treasurer and transportation board member

Conflicts of interest abound in government: duties to represent citizens, as opposed to private interests. Few political officeholders are immune. Locally and recently, we have seen Brookline residents involved.

Deborah Goldberg, a former chair of the Brookline Board of Selectmen who is now the Massachusetts state treasurer, recently disclosed a potential conflict involving her husband, Michael Winter, a J.P. Morgan executive. His firm was awarded contracts to market $100 million in state bonds. Mr. Winter, however, does not work in the company division responsible for government bond marketing.

In a local context, Christopher Dempsey of 43 Brington Rd., a Transportation Board member, has an apparent personal interest in a proposal submitted to his board by the Bicycle Advisory Committee, on which his father, John P. Dempsey of 43 Brington Rd., now serves. At an evening meeting on Monday, July 1, the elder Mr. Dempsey argued and voted in favor of a proposal to remove all parking from the east side of Babcock St., from Fire Station No. 5 at 49 Babcock St. to the town line at 1010 Commonwealth Ave., in order to install a lane marked exclusively for bicycle use.

That part of Babcock St. now has a total of 66 available parking spaces along a street with many apartment buildings that have no parking. The Bicycle Advisory Committee proposal is scheduled to be reviewed by the Transportation Board at a June 18 meeting. On Monday, June 8, town meeting members from Precinct 8 agreed with Andrew Pappastergion, the public works commissioner, that work on Babcock St. would be deferred until 2016, avoiding near-term confrontations on the issue.

– Craig Bolon, Brookline, MA, June 10, 2015


Matt Stout, Treasurer hubby’s firm got $100M in bonds, Boston Herald, June 10, 2015

Brookline Transportation Board, Agenda for June 18, 2015, See item 7

2015 annual town meeting: budgets, bylaws and resolutions

Unlike last year, Brookline’s 2015 annual town meeting rolled along at a brisk pace and needed only two sessions–Tuesday, May 26, and Thursday, May 28–both starting at 7 pm in the High School auditorium. The generally progressive tones of Brookline civic engagement remained clear, and some of the musical theatre of years past returned for an encore. This is the one-hundredth year for Brookline’s elected town meeting.

Budgets: Disputes over budgets that roiled the winter workups to town meeting had evaporated after voter approval of a major tax override at the Tuesday, May 5, town election. Edward “Sandy” Gadsby, the moderator of town meeting, mentioned “controversy” over a three-word amendment to one special appropriation. The Advisory Committee proposed two changes to the “override” financial plan as proposed by Mel Kleckner, the town administrator.

In the traditional presentation of an annual budget, Sean Lynn-Jones, newly elected as chair of the Advisory Committee last winter, called 2015 “an interesting year.” He noted that new revenues were going to be involved in maintaining a stable budget, singling out parking meter and refuse fees. Mr. Lynn-Jones said he expects “fiscal challenges…another general override in three to five years…possibly a ninth elementary school…high school [expansion] at over $100 million, not $35 million,” as most recently estimated.

In the traditional response from the Board of Selectmen, Neil Wishinshy, recently elected as the new chair, said strongly contested elections, like those this year, “make our town and democracy stronger.” He spoke of new efficiencies contributing to a stable budget, singling out trash metering, which has been mentioned at official meetings but so far not detailed. Mr. Wishinsky called on town meeting members to “put aside narrow self-interest,” saying, “We live in the real world.”

Staff for preservation planning will increase from 1.8 to 2.0 full-time-equivalent positions, a budget hike of $14,119. It is expected to provide a full-time position for preservationist Greer Hardwicke. The Public Works budget for pavement markings got $2,673 more, to cope with after-effects from a harsh winter. Those had been wrapped into Advisory Committee motions. A $264 million spending plan sailed through, mostly on voice votes.

A three-word amendment to a $100,000 special appropriation had been proposed by Craig Bolon, a Precinct 8 town meeting member who edits the Brookline Beacon. Offered on behalf of Brookline PAX, it asked that a study of Coolidge Corner parking be done “with neighborhood input.” Town meeting agreed in a unanimous voice vote.

Instead of parochial concerns with Public Works, this year’s town meeting focused more on the Police budget. Lynda Roseman, a Precinct 14 town meeting member, asked about progress coping with mental health issues. Daniel O’Leary, the police chief, compared last year–when three members of the force were involved–to this year, when two grant-funded programs are underway. By the end of the year, he said, about a quarter of the force will have completed 40 hours of training.

A large municipal solar-power array, in effect a budget item, was approved out-of-line under Articles 15 and 16. Brookline is contracting with Blue Wave Capital, a company endorsed by the Metropolitan Area Planning Council, which is to build and operate it, using part of the former landfill site near the waste transfer station off Newton St. Rated capacity is to be 1.4 MW, peak. Expected income is about $0.08 million per year.

Bylaw, Living Wage: Under Article 10, the Recreation Department proposed to gut much of the Living Wage bylaw enacted several years ago, by exempting from coverage several employee groups and by eliminating the Brookline minimum wage: a one-dollar premium over the state minimum. Patricia Connors, a Precinct 3 town meeting member who was the chief sponsor of the bylaw, had resisted the effort strongly.

Scott Gladstone, a Precinct 16 town meeting member, was entirely opposed to Article 10. “The bylaw is already a compromise,” he claimed. “Junior lifeguards,” whom it would remove from coverage, “are lifeguards…with the same Red Cross certifications as anybody else…What we’re trying to teach here…is work values…Should we teach them that they should not be demanding a living wage?”

Ms. Connors was supported by Brookline PAX. Co-chair Frank Farlow, a Precinct 4 town meeting member, stated, “PAX supports working people and fair wages.” Board member Andrew Fischer, a Precinct 13 town meeting member, called Article 10 “an assault on working people,” saying, “I wonder how many [town-funded] cars it would take to cover the wages of students with first-time jobs.”

Robert L. “Bobby” Allen, Jr., a Precinct 16 town meeting member and former member of the Board of Selectmen, tried to deflect those arguments. saying that when the now-disbanded Living Wage Committee proposed the bylaw, “We were way out front.” He favored some compromises being sponsored by the Advisory Committee. Pamela Lodish, a Precinct 14 town meeting member who lost this year when running for the Board of Selectmen, agreed with Mr. Allen. “If we pass the [Connors] amendment,” she said, “we’ll be hiring college students instead of high-school students.”

Ms. Connors was proposing to maintain the current bylaw’s definitions of seasonal and temporary employment. It was not certain whether Mr. Allen or Ms. Lodish understood, but Merelice, a Precinct 6 town meeting member, clearly did. The current bylaw’s approach is not supported by the HR module of Munis, recently adopted for maintaining employment records by the Human Resources (HR) office. According to Merelice, the attitude of HR is “an example of being concerned about the dirt when we hold the broom.” She contended, “We can certainly find the technology.”

Town meeting members sided strongly with Ms. Connors, Merelice and Brookline PAX. In an electronically recorded vote, the Connors amendment passed 141 to 48, with 10 abstentions. The amended main motion on Article 10 passed 144 to 42, with 5 abstentions. Although the Brookline minimum wage premium is maintained, so-called “junior” employees in the Recreation Department will no longer be covered by the Living Wage, reverting to the Brookline minimum wage–currently $10.00 versus $13.19 per hour. Recreation claims to be able to support more positions.

Bylaw, snow clearance from sidewalks: Town meeting grappled with the latest edition of a snow-clearance bylaw under Article 12. For about 30 years a bylaw initially proposed by Stanley Spiegel, a Precinct 2 town meeting member, has required property owners to clear adjacent sidewalks of snow. However, until a push last year from Frank Caro, a Precinct 10 town meeting member who filed a resolution article, and from the Age-Friendly Cities Committee, enforcement proved erratic.

During the 1970s and before, Brookline plowed most of the sidewalks, but after budget trims in the aftermath of Proposition 2-1/2 it cut back to only a few, including ones near schools. Article 12 was proposed by a Sidewalk Snow Removal Task Force, appointed in the summer of 2014 by the Board of Selectmen to strengthen the town’s law and its enforcement. The group–including staff from Public Works, Health, Building and Police–acknowledged that a complaint-driven approach had worked poorly.

Last winter, the four departments contributing to the task force divided Brookline’s streets into four sectors and began proactive enforcement during weekdays, with Police assuming most duties at other times. Despite the unusually harsh winter, enforcement generally improved, as described to town meeting by Nancy Daly, speaking for the Board of Selectmen. However, Martin Rosenthal, a Precinct 9 town meeting member, pointed out the lack of coordination in the current form of enforcement.

In its town-meeting article, the task force proposed to discontinue automatic warnings for first violations at residential properties, to raise fines and to institute a $250 fine for placing snow into a street–forbidden by Brookline’s general bylaws since the nineteenth century.

Compromises made as outcomes of several reviews had gutted most of the original proposal, leaving relatively weak enforcement, modest fines and no administrative appeals. Tommy Vitolo, a Precinct 6 town meeting member, offered two amendments intended to address some compromises. One would have limited a period of enforcement delay, at discretion of the public works commissioner, to no more than 30 hours after the end of a snowfall.

Amy Hummel of Precinct 12, speaking for the Advisory Committee, objected to an arbitrary time limit for the commissioner’s discretion. During the Blizzard of 1978, many streets remained impassible for several days, because Brookline then lacked much equipment capable of clearing them. That amendment was rejected through an electronically recorded vote, 78 to 108, with 6 abstentions.

Dr. Vitolo’s other amendment sought to restore the schedule of fines that the task force had proposed. Those called for a $50 fine on a first violation at a residential property, rather than an automatic warning, and a $100 fine for subsequent violations.

Dennis Doughty, a Precinct 3 town meeting member who served on the task force, supported the amendment on fines. He compared hazards of sidewalk snow with other hazards now sanctioned by $50 fines and no warnings, including putting refuse out for collection earlier than 4 pm the previous day. Town meeting members approved the amendment on fines through an electronically recorded vote, 135 to 52, with 5 abstentions.

Unfortunately, Dr. Vitolo’s amendment on fines for failure to clear sidewalk snow seems to leave the Brookline bylaws inconsistent. According to the main motion before town meeting, proposed by the Advisory committee on p. 5 of its supplemental report section and amended per Dr. Vitolo, the snow clearance bylaw was changed by town meeting to read, in part:

“The violation of any part of Section 7.7.3 [that is, the requirement to clear sidewalk snow at residential properties]…shall be noted with a $50 fine for the first violation and subject to a fine of $100.00 for the second and subsequent violations….”

However, according to the main motion, revised penalties are stated again in Article 10.3 of the bylaws, Table of Specific Penalties. What Dr. Vitolo’s amendment did was to revise penalties stated in the bylaw on snow clearance but not those stated in the Table of Specific Penalties. There will likely be no more snow before a fall town meeting, which might make the Brookline bylaws consistent.

Bylaws, tap water and bottled water: Articles 13 and 14, the two “water articles,” had been filed by Jane Gilman, a Precinct 3 town meeting member, Clinton Richmond, a Precinct 6 town meeting member, and several other petitioners. Both were “watered down” during reviews before the town meeting, yet significant parts of each survived and won approval.

Ms. Gilman and Mr. Richmond are co-chairs of the “green caucus” in town meeting, which counts over fifty town meeting members as participants and has been effective at marshaling votes for some recent, environmentally oriented initiatives. Brookline PAX, with a somewhat overlapping base of support, was recommending voting for motions offered by the Board of Selectmen in favor of parts of the two articles.

Article 13 sought a bylaw requiring Brookline restaurants to offer tap water. They already do, said Sytske Humphrey of Precinct 6, speaking for the Advisory Committee. She called the proposed bylaw “unnecessary and ineffective.” However, the petitioners had found some sinners. An Indian restaurant in Washington Square did not offer tap water on its take-out menu, and one pizza place did not seem to offer it at all.

Differing from the Advisory position, the Board of Selectmen saw little objection to such a law but added a phrase, “upon request,” and removed a sentence: “Establishments may charge for this service item.” That might give an impression, they wrote, that charging for water “was a requirement.”

Diana Spiegel, a Precinct 2 town meeting member, said the topic could be handled by conditions on restaurant licenses and moved to refer the article to the Board of Selectmen. In an electronically recorded vote, the referral motion failed 78 to 103, with 5 abstentions. The motion for a bylaw drafted by the Board of Selectmen passed 124 to 56, with 7 abstentions.

Article 14, seeking to ban sale and distribution of bottled water at town events and on town property, encountered stiffer headwinds at reviews before town meeting and quickly lost altitude. According to Mr. Richmond, the purpose was not banning water but banning the plastic bottles usually supplied. Hundreds of billions a year are sold. While they might be recycled, at least in part, they are mostly thrown away.

By town meeting, motions under the article had been trimmed back to a proposed ban on spending town funds to buy water in plastic bottles of one liter or less for use in offices. The Board of Selectmen proposed to refer the rest of the article to a study committee, to be appointed by the board. The Advisory Committee stuck with its original approach, recommending no action.

John Harris, a Precinct 8 town meeting member and a past participant in the “green caucus,” was not in line this time. The bylaw favored by the Board of Selectmen would have negligible impact, he claimed, and if widely emulated elsewhere, then companies selling bottled water would easily subvert it. Speaking for the Board of Selectmen, Nancy Daly disagreed, saying the debates over Article 14 had “succeeded at least in educating me.”

The Advisory Committee remained unmoved. Robert Liao of Precinct 15 recommended voting for the Harris motion to refer, consistent with the Advisory position. There will be “adverse unintended consequences” from a bylaw, he claimed, saying, “Reusable bottles require planning and changes in behavior.”

Robert Miller, a Precinct 8 town meeting member, asked whether the town was spending money on either bottled water or bottled soda. The answers were yes as to both, according to Mel Kleckner, the town administrator. Echoing a topic heard often during reviews, Jonathan Davis, a Precinct 10 town meeting member, asked whether vending machines on town property would be affected. Mr. Richmond conceded they would not be, since “the machines are put out to bid” and do not involve spending town funds.

Mr. Gadsby, the moderator, took a motion for the question–that is, a motion to terminate debate. Not enough town meeting members were ready to do that. On an electronically recorded vote the motion failed 129 to 71, with 2 abstentions. Such a motion takes a two-thirds margin but got only 65 percent.

Susan Helms Daley of Chatham Circle and her son Jackson, a fourth-grader at Lawrence School, told town meeting members about an alternative that is catching on. For the past few years, the school has had a “green team” and tried “to discourage use of bottled water.” Ms. Daley asserted, “Bottled water is the same as cigarettes.” Jackson Daley said after the school installed “water bottle refill stations”–a PTO project–”more people brought water bottles” to school. So far, he said, “We have saved 10,129 plastic bottles. How cool is that?”

After hearing similar opinions from a junior at Brookline High School, Mr. Gadsby again accepted a motion for the question. He declared it had passed, on a show of hands. The motion from Mr. Harris to refer all of Article 14 failed on an electronically recorded vote, 97 to 102, with 2 abstentions. The motion from the Board of Selectmen for a bylaw banning some uses of town funds passed by a substantial majority, on a show of hands.

Resolution, recreation land: Article 18 proposed a resolution seeking a study of acquiring land in the Putterham neighborhoods of south Brookline for park and recreation uses–specifically, so-called “buffer” areas of Hancock Village near Beverly and Russett Rds. Regina Frawley, a Precinct 16 town meeting member, and Hugh Mattison, a Precinct 5 town meeting member, prepared the article. Although not an abutter to Hancock Village, Ms. Frawley has lived nearby since 1968.

While it is possible that the current landowner, Chestnut Hill Realty, might agree to sell the land, a series of development plans, currently tapping powers under Chapter 40B of the General Laws, have left the company at loggerheads with the Board of Selectmen. A purchase-and-sale agreement now looks unlikely, so that Ms. Frawley suggested the land would probably have to be taken by eminent domain.

In the Putterham neighborhoods, Ms. Frawley showed, there is little public open space. She described the current open spaces and showed that the Hancock Village buffers look to be the largest undeveloped areas likely to be suitable. The only sizable public spaces now are around Baker School. They are laid out for specialized uses and are unavailable to the public during school days. For over 70 years, neighborhood residents have often used the buffer areas for recreation instead, as tolerated by a succession of landowners.

Moderator Gadsby immediately took comments from Rebecca Plaut Mautner, a Precinct 11 town meeting member, ahead of normal order and before hearing from the Advisory Committee and town boards. He did not explain the unusual conduct. Ms. Mautner operates RPM Consulting, according to the Web site of Citizens’ Housing and Planning Association in Boston–providing “affordable housing development services” in New England.

Ms. Mautner delivered a broadside against Article 18, saying it “will be perceived by the outside world as an effort to undermine creation of affordable housing…a message that Brookline will stop at nothing to prevent affordable housing.” That did not seem to resonate well, broached in the first town in Massachusetts to build public housing, where inclusionary zoning has been active for over 20 years.

Lee Selwyn of Precinct 13, speaking for the Advisory Committee, recalled that the proposed “Hancock Village project did not start out as 40B…there was no affordable housing in the original plan.” The owner, he said, is “using 40B as a means to pressure the town.” He said Article 18 proposed “a reasonable public use” of land, and he noted that a parcel adjacent to Hancock Village had been “taken by the state by eminent domain to prevent an inappropriate development.” The Hancock Woods area was taken as conservation land about 20 years ago.

Janice Kahn of Precinct 15, also an Advisory Committee member, supported the study. She said it could teach the town about using eminent domain. There has been no substantial taking since the Hall’s Pond and Amory Woods conservation projects in the 1970s. Given the ongoing disputes with Chestnut Hill Realty, the Board of Selectmen had declined to take a position on Article 18. Members had said they would abstain from voting on it.

Mr. Mattison of Precinct 5, a suppporter, said the buffer “space has served as informal recreation space.” Some 1940s correspondence with the town, he said, describes “how the commitment would be binding” to maintain it as open space. However, that was not part of an agreement presented to a 1946 town meeting, when the bulk of Hancock Village was rezoned to allow apartments.

Lauren Bernard, a Precinct 8 town meeting member, asked whether a “prescriptive easement” would be possible, given the long history of public use, and whether that would be “mutually exclusive with eminent domain.” Joslin Murphy, the town counsel, said easement issues were “not considered yet,” but easement and eminent domain would probably “be mutually exclusive.”

Even though the hour was getting late, at 10:30 pm, town meeting was willing to hear more arguments. A motion for the question failed on an electronically recorded vote, 88 to 78, with 17 abstentions. Julie Jette of Payson Rd. spoke. She said she had been “very surprised” when moving there “that really the only fully accessible playground is in West Roxbury.”

Crossing the rotary and the VFW Parkway with young children seemed too dangerous, Ms. Jette said, and she had never tried. However, she said, “yards are not a substitute for social and community opportunities. It’s time to create a true neighborhood park in south Brookline…Time is of the essence, given Chestnut Hill Realty development plans.” After a few other comments, town meeting approved Article 18 on a show of hands, looking like a ten-to-one majority at least.

Resolution, Boston Olympics: Article 19 proposed a resolution, objecting to plans for holding the Olympic Games in Boston during 2024. The plans never gained traction in Brookline, where many people see heavy costs and slender benefits. The Board of Selectmen had nevertheless postponed making a recommendation, reaching out to the pressure group pushing for the Olympics, but no one from that group responded.

At the town meeting, Martin Rosenthal, a Precinct 9 town meeting member, led off–speaking for Brookline PAX, of which he is co-chair. Unlike his fellow co-chair, Frank Farlow of Precinct 4, Mr. Rosenthal said he is a sports fan and “was excited at first.” However, he had realized “there might be some issues here…it was more for the benefit of non-Brookline people.” PAX opposes plans for 2024 Olympic Games in Boston.

Christopher Dempsey, a Precinct 6 town meeting member, was giving no quarter. He has co-founded a volunteer group, No Boston Olympics, and was on the warpath, armed with PowerPoint slides. The pressure group behind the Olympics plans, he said, is aiming to raid public funds. A long article published the previous day in the Boston Business Journal revealed much of that story to the public.

According to Business Journal staff, previously secret sections of the Olympics “bid book” said public money would be sought to “fund land acquisition and infrastructure costs.” The plans were also “relying on an expanded Boston Convention and Exhibition Center”–a deluxe Patrick administration venture that the Baker administration has canned.

Mr. Dempsey was having a field day, saying, “Boston 2024 is not going to fix the T…In London and Vancouver the Olympics Village financing was from public funds…Olympics budgets are guaranteed by taxpayers…The more you learn about 2024 Olympics, the less you like it.” Ben Franco spoke for the Board of Selectmen, simply stating that the board “urges favorable action” on Article 19.

Speaking for the Advisory Committee, Amy Hummel of Precinct 12 said that “the money and resources spent would benefit the Olympics shadow.” The current plans have “no real public accountability,” she contended, and “Brookline will be heavily impacted…The biggest concern [of the Advisory Committee] is the taxpayer guarantee…Lack of public process is unacceptable.”

Olympics boosters did have some friends. Charles “Chuck” Swartz, a Precinct 9 town meeting member, advised caution, saying, “Who knows what will happen in Boston? We don’t have to make this decision now.” Susan Granoff of Precinct 7, attending her first town meeting, said, “Let’s give Boston 2024 more time.” The Olympics, she contended, “would create thousands of jobs and bring billions of dollars…It’s private money being donated.”

Most town meeting members were not convinced by such claims. They approved the resolution in an electronically recorded vote, 111 to 46, with 7 abstentions. Katherine Seelye’s story in the New York Times on Saturday, May 30, may have deep-sixed the Olympics plans. She included the Business Journal disclosures and cited the Brookline town-meeting resolution.

Other actions: Under Article 9, town meeting voted no action on a proposal to make holders of state and federal offices living in Brookline automatic town meeting members. After encountering opposition, Ernest Frey, a Precinct 7 town meeting member, offered a “no action” motion on the article that he and other petitioners had submitted.

Article 17 proposed a resolution seeking changes to Sections 20-23 of Chapter 40B, the Comprehensive Permit Act of 1969 that was encouraged by the late Cardinal Cushing. Nancy Heller, the principal petitioner, now a member of the Board of Selectmen, had not seemed to recognize the complexity of the issues and soon agreed to refer the article to the Planning Board and Housing Advisory Board. That was the course taken by town meeting.

Under Article 11, town meeting voted to create a Crowninshield local historic district, on petition from the owners of about 85 percent of the houses on Crowninshield Rd., Adams St., Elba St. and Copley St. Speaking in favor were David King, chair of the Preservation Commission, Robert Miller, a Precinct 8 town meeting member, George White, a Precinct 9 town meeting member, John Sherman and Katherine Poverman, both residents of Adams St., Angela Hyatt of Precinct 5 for the Advisory Committee and Nancy Daly for the Board of Selectmen.

Dr. White recalled that the neighborhood had been home to well-known writers and artists. He mentioned novelist and short-story writer Edith Pearlman, an Elba St. resident for many years, and after a little prompting the novelist Saul Bellow, winner of a Nobel Prize in literature, who lived on Crowninshield Rd. in his later years. Only Clifford Ananian, a Precinct 10 town meeting member, took exception. He said preserving “single-family homes is a waste of a valuable resource,” although he lives in one of those homes. Despite the objection, the town meeting vote to create the district proved unanimous.

– Beacon staff, Brookline, MA, May 30, 2015


Katherine Q. Seelye, Details uncovered in Boston’s 2024 Olympic bid may put it in jeopardy, New York Times, May 30, 2015

BBJ staff, Boston 2024 report highlights need for public funding, expanded BCEC, Boston Business Journal, May 28, 2015

Matt Stout, Gov. Baker puts brakes on $1 billion convention center plan, Boston Herald, April 29, 2015

Warrant report with supplements, May 26, 2015, town meeting, Town of Brookline, MA

Age-Friendly Cities: health fair, outreach, snow and parks, Brookline Beacon, May 25, 2015

Board of Selectmen: police awards, paying for snow, Brookline Beacon, May 20, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Craig Bolon, How we voted, costs of business, Brookline Beacon, May 10, 2015

Craig Bolon, Field of dreams: a Coolidge Corner parking garage, Brookline Beacon, May 4, 2015

Board of Selectmen: landmarks, permits and town meeting controversy, Brookline Beacon, April 22, 2015

Board of Selectmen: farmers’ market, promotions, golf and town meeting, Brookline Beacon, April 29, 2015

Advisory Committee: budgets, bylaws and lectures, Brookline Beacon, April 14, 2015

Advisory subcommittee on human services: tap water and bottled water, Brookline Beacon, April 12, 2015

Advisory Committee: new park land for Putterham neighborhoods, Brookline Beacon, April 10, 2015

Advisory subcommittee on planning and regulation: new historic district, Brookline Beacon, March 31, 2015

Craig Bolon, Advisory Committee: in a generous mood, Brookline Beacon, March 19, 2015

Board of Selectmen: Hancock Village, budget reviews, Brookline Beacon, March 4, 2015

Solid Waste Advisory Committee: recycling and trash metering, Brookline Beacon, September 3, 2014

2014 annual town meeting recap: fine points, Brookline Beacon, June 7, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Age-Friendly Cities: health fair, outreach, snow and parks

A regular meeting of the Age-Friendly Cities Committee on Wednesday, May 20, started at 10:00 am in the fourth-floor conference room at Town Hall, with just over half the members on hand, joined by a few visitors. There have been three recent resignations, leaving seats open for new volunteers. The committee made Brookline the first New England community to become part of a U.N. World Health Organization network, in 2012.

Health fair: Nancy Daly, a member of the Board of Selectmen who co-chairs the committee with sociologist Frank Caro, reviewed the recent Senior Expo Health Fair, conducted at the Brookline Senior Center Thursday, May 14. Dennis Selkoe, a neurologist practicing at Brigham and Women’s Hospital, spoke about warning signs for Alzheimer’s disease. Dr. Selkoe is the husband of Polly Selkoe, Brookline’s assistant director for regulatory planning.

Ms. Daly characterized the Alzheimer’s talk as a “down-to-earth style,” describing how to recognize signs of memory problems. A presentation on nutrition had been harder to follow, she said, with several descriptions of laboratory studies using mice. Members of the Police Department and Fire Department, who came to discuss emergency responses, “got stuck in the back,” according to Ms. Daly.

Outreach: Henry Winkelman, a committee member, described the panel discussion he recently helped to produce as a Brookline Interactive Group video. It features Ms. Daly, Dr. Caro and committee member Matthew Weiss, describing the committee’s missions. As Mr. Weiss put it, early in the panel discussion, “Why would an older person want to live in a retirement community, when a person can live in Brookline?”

The 28-minute video is available to the public at any time of day on the Web, from Brookline Interactive. It mentions recent Brookline efforts focused on health, safety, housing and transportation. Nearly all the discussion concerns needs of older adults, but on sidewalk snow clearance Mr. Weiss remarked, “What older adults want is what everybody needs and [doesn't] necessarily ask for.”

Dr. Caro observed, “When people get older, they’re willing to take a look at some very basic things we tend to take for granted…When we’re younger, we’re athletic enough so that we can compensate for…bumps in the road.” Participants seemed to see practical challenges. However, Dr. Caro mentioned one effort to begin soon, a senior transportation program “in collaboration with Newton.”

This video did not touch on any of the environmental issues that have gathered force in town meeting over the past several years, although Dr. Caro, formerly a Precinct 8 town meeting member and now a Precinct 10 town meeting member, has contributed to some of them. According to Mr. Weiss, the next video in the series, expected in early summer, will focus on Brookline’s parks and its recreation services.

Snow, sidewalks, streets and parks: As indicated in the recent video, snow clearance from sidewalks continues as a perennial concern for the committee. Members discussed Article 12 pending for the annual town meeting that starts Tuesday, May 26. Recently, the Board of Selectmen has backed away from some enforcement provisions of the bylaw changes they proposed, but Tommy Vitolo, a young Precinct 6 town meeting member, has offered amendments to revive those changes.

The discussion veered toward other street and sidewalk issues. Dr. Caro spoke about “some sidewalks that need repairs” and about “hazardous intersections.” Another committee member was concerned about involving the Transportation Board, saying it was an “invitation to alienation…Citizens…think that it’s hopeless to get something done there.”

Toward the close of the meeting, Dr. Caro described an “initiative with parks…a brochure on age-friendly features,” mentioning the Minot Rose Garden, Hall’s Pond, Freeman Square, the Brookline Reservoir, the Olmsted bicycle path and the new Fisher Hill Park. Saralynn Allaire, a Precinct 16 town meeting member, spoke about an effort to make the Putterham Library garden “ADA-compliant,” meaning accessible to people who use wheelchairs.

– Beacon staff, Brookline, MA, May 25, 2015


Board of Selectmen: police awards, paying for snow, Brookline Beacon, May 20, 2015

Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Board of Selectmen: new 40B project, town meeting reviews, Brookline Beacon, March 30, 2015

Matthew Weiss, Frank Caro and Nancy Daly, Age-Friendly Cities Committee background and missions, Brookline Age-Friendly Cities Committee, April 23, 2015 (28-minute video)

Matthew Weiss, First annual progress report of Brookline Age-Friendly Cities initiative, Brookline Age-Friendly Cities Committee, February, 2014

Frank Caro, Nancy Daly and Ruthann Dobek, Narrative supporting Brookline’s application for participation in the World Health Organization’s Age-Friendly Cities Program, Brookline Age-Friendly Cities Committee, November, 2012 (1 MB)

Transportation: good intents, cloudy results and taxi rules

If you’re curious to see what suburban-oriented government looked like in the 1950s and before, visit the Transportation Board–where it can sometimes seem as though antique outlooks have been preserved in amber. Within the past week–at public meetings of two of the town’s many other boards, commissions, committees and councils–some members complained openly about unresponsive behavior. Complainers even included a member of the Board of Selectmen, which appoints members of the Transportation Board.

Launching a board: Oddly enough, the Transportation Board had been launched as a reform against arrogance, or so some people said at the time. Since the emergence of motor vehicles in the early twentieth century, Brookline struggled with regulation. Under Chapter 40, Section 22, of the General Laws, town meetings may enact bylaws and boards of selectmen may adopt “rules and orders” concerning traffic and parking.

The workload of regulating motor vehicles soon became too much for the Board of Selectmen in Brookline. During the 1920s, it delegated work to a Traffic Committee consisting of four department heads and the chairs of the Board of Selectmen and Planning Board. A surge in automobiles after World War II challenged that approach.

A 1968 town meeting scrapped the Traffic Committee and a later commission, seeking so-called “home rule” legislation to create a Department of Traffic and Parking, headed by a full-time director, and a volunteer Traffic Appeals Board. That approach also failed. A wave of neighborhood protests over traffic and parking grew stronger, fueled with accusations of arrogant behavior by the full-time “traffic czar.”

The fall town meeting of 1973 again petitioned for legislation: this time to create a Transportation Department–more recently the Transportation Division in the Department of Public Works–and a volunteer Transportation Board. So far, the arrangements under a 1974 law have held. Under that law, the Board of Selectmen acts as an appeals board, and appeals have been rare. One could be coming soon, though.

Building a peninsula: The intersection where Buckminster and Clinton Rds. join just west of the High School has often been seen as a safety issue. Drivers may careen through without seeming to look and sometimes without stopping at the single stop sign, found when coming into the intersection from Clinton Rd. Heading the other way, downhill on Clinton Rd., drivers can easily exceed the posted 30 mph speed limit.

One classic method to slow the speeds is a traffic island, making drivers dodge around. More modern, so-called “traffic calming” might use a raised intersection, “speed bumps” or “curb bulbs.” Apparently, none had looked to Brookline’s current engineers like the right approach. Instead, they had sold the Transportation Board a giant peninsula, blooming out the sidewalk from the northeast sides of Clinton and Buckminster Rds. at the junction. Daniel Martin, a Brookline engineer, called it a “curb extension”–clearly a highly extensible phrase.

Of course, any change to a residential street is also a change to someone’s home. The home nearest the giant peninsula is 79 Buckminster Rd. Its owners are not pleased, to say the least. From their viewpoint, the huge peninsula would leave their lot “landlocked” without street frontage. It might work technically only because they now have a garage beneath the back of the house, reached by a driveway shared with their neighbors at 3 Clinton Rd. Were they to install a conventional driveway, somehow it would have to invade the peninsula.

Good intents, cloudy results: As the rehearing on the peninsula plan Thursday, May 21, went on for more than an hour and a half, neighbors recalled street changes with bad side-effects. In a winter with heavy snow like the last one, parts of streets narrowed to calm traffic became dangerous or impassible. Judy Meyers, a Precinct 12 town meeting member who lives downhill at 75 Clinton Rd., said she was “very sympathetic” to the owners of 79 Buckminster. However, “Clinton Rd. has been a speedway…[and] I don’t love speed bumps.”

Compared with alternatives, the peninsula plan looks like costly efforts invested for cloudy results. Several years ago, similarly costly measures on Winchester St. slowed speeding only within around a hundred feet from obstacles. Unless something more is done, Ms. Meyers, who lives quite a bit farther than that from the intersection at issue, is not likely to see much improvement.

In the past, Transportation sometimes waxed less bureaucratic and became more effective. Instead of seeing roadblocks in its path–claiming you can’t do this and you can’t do that–it did the impossible anyway. In North Brookline, an alert observer can find 25 mph posted speed limits and intersections with stop signs on the wider street rather than the narrower one. Those were inexpensive, practical solutions to vexing problems.

On May 21, however, certifiable experts certified nothing more could be done, and the vote went 2 to 4 against reconsidering the peninsula plan. Only board members Ali Tali and Pamela Zelnick voted in favor. At other places and in other times, such events became subjects of land damage lawsuits, but Brookline offers a further course: administrative appeal.

If the owners of 79 Buckminster Rd. carry an appeal, they will be dealing with the Board of Selectmen. Its newly chosen chair, Neil Wishinsky, recently told another group, “My political thinking is to stay away from parking.” For much of the last 90 years, Mr. Wishinsky would have found kindred spirits on his board, but now such duties come with the job.

Taxi rules: After negotiations with taxi owners, Todd Kirrane, Brookline’s transportation administrator, brought in a substantially revised draft of new rules. The changes tend to lower the added costs to taxi companies but will also provide lower standards of service. A key point of dispute has been new requirements for vehicles with ramps for people who use wheelchairs.

The revised draft has vague and inconsistent language. In some places, it speaks of “ramped taxicabs,” saying they might also provide a “lift.” In others, it refers to “WAV taxicabs”–never defining that but apparently meaning “wheelchair-accessible vehicle.” It’s unclear whether a “ramped taxicab” will necessarily be a “WAV taxicab” or vice-versa. Possibly the regulations did not undergo legal reviews.

As first proposed, the rules required one “ramped taxicab” for every ten licensed vehicles. Operators objected to the extra costs, some saying they got no requests for such vehicles in as much as ten years and probably would never get any. Members of the Commission for the Disabled have called that a self-fulfilling prophecy, since word had gotten around that there were no such Brookline taxis.

Mr. Kirrane stated that Boston now has a standard of one “WAV taxicab” for every 18 licensed vehicles. In Brookline, the revised draft called for one “ramped taxicab” for every 25 licensed vehicles. Saralynn Allaire, a Precinct 16 town meeting member and a member of the Commission for the Disabled, asked how the rule would be implemented. Mr. Kirrane said the rule would come into effect July 1 of next year and would not apply to a company with fewer than 25 licensed vehicles.

The board reviewed a perennial controversy: a limit on the number of licensed taxis. At least two members of the board–Joshua Safer, the chair, and Ali Tali–seemed to favor what one called a “market system,” with no limit. The revised draft proposed a limit of two licensed taxis per 1,000 Brookline residents. Brookline’s population map, based on the 2010 federal census, shows 58,732 residents–indicating 117 taxi licenses.

Board member Christopher Dempsey criticized the limit, saying it was “picked out of the air” and that “a population metric is not a very effective one.” He offered no other approach. His motion to strike the metric failed on a 1-4-1 vote, with board member Scott Englander abstaining. The board adopted the revised taxi rules, effective July 1, by a unanimous vote. After the meeting, Joe Bethoney, owner of Bay State Taxi, Brookline’s largest company, confirmed that he planned to continue in business under the new rules.

– Craig Bolon, Brookline, MA, May 23, 2015


Complete Streets: seeking better sidewalks and bicycle paths, Brookline Beacon, May 12, 2015

Craig Bolon, Changing the rules: new taxi regulations, Brookline Beacon, April 6, 2015

Craig Bolon, Brookline government: public information and the committee forest, Brookline Beacon, August 1, 2014

David J. Barron, Gerald E. Frug and Rick T. Su, Dispelling the myth of home rule, Rappaport Institute (Cambridge, MA), 2003

Craig Bolon, Vehicle parking in Brookline, Brookline Town Meeting Members Association, 2000

Board of Selectmen: police awards, paying for snow

A regular meeting of the Board of Selectmen on Tuesday, May 19, started at 6:40 pm in the sixth-floor meeting room at Town Hall. Members of the police force came with families and friends for the annual presentation of awards. The board approved plans to cover large budget overruns for snow clearance from last winter.

Several board members had visited Public Works exhibits earlier in the day, at what has become the department’s annual “open house” mounted at the Municipal Service Center, 870 Hammond St. Among the more popular items was a giant “snow eater” machine that had marched around some of the most clogged streets last winter, tossing tall heaps of snow into dump trucks.

Police awards: Daniel O’Leary, the police chief, presented awards to several members of the force and introduced them to the board and the public. As he explained, those honored by Brookline had been nominated by fellow members of the department, following an approach Mr. O’Leary introduced several years ago.

Police Officer of the Year is David Wagner of the Detective Division. According to Mr. O’Leary, he has been a source of morale in the department–mentoring younger members of the force and taking on special patrol duties while maintaining the evidence archives as his main job. Detective Wagner and Sergeant Russell O’Neill received commendations for exceptional service, the fifth for each of them.

Andrew Lipson, recently promoted a deputy superintendent heading the Patrol Division, was awarded a medal of valor. According to the chief, while investigating a complaint he had been attacked by a suspect armed with a knife. He disabled the suspect with a shot from his service pistol–a rare instance of the use of arms in the Brookline department. The suspect was given first aid and was taken into custody. Mr. Lipson also received a commendation for another incident, his twentieth. According to the chief, that is the most received by a member of the force.

Mr. O’Leary introduced Julie McDonnell of the Detective Division. She had been honored on May 15 by the U.S. Attorney’s Office for Massachusetts. After starting an investigation in 2013, she broke a sex-trafficking racket based in the Boston area and in Rhode Island, freeing two juveniles who were being advertised for prostitution by a Boston street gang.

Personnel, contracts and finances: The board appointed Nathan Peck a member of the Building Commission and appointed David Pollack, Mary Ellen Dunn, Roberta Winitzer and Arden Reamer to the Devotion School Building Committee, filling vacancies. Mr. Pollack is a member of the School Committee and former member of the Building Commission. Ms. Dunn is the incoming Deputy Superintendent for Administration and Finance at Public Schools of Brookline. Ms. Winizer is a former member of the Board of Library Trustees.

Patrick Dober, director of the Brookline Housing Authority, asked for waivers of inspection fees. He said the authority expects to complete a new development at 86 Dummer St. by the end of the year. The authority wants to free up funds to support its service programs. The board agreed.

Stephen Cirillo, the town’s finance director, asked for approval of an agreement for payment in lieu of taxes (PILOT) for the Dummer St. project, which is partly owned by a private party. He said payments would start at about $0.012 million and rise to about $0.025 million in the second year. Mr. Cirillo also asked for approval of a PILOT agreement with Children’s Hospital for a house at 132 Carlton St., formerly owned by B.U., that is to become a family inn for patients. The board approved both agreements. Mr. Cirillo also got hiring approval to replace an office assistant who is retiring.

Melissa Goff, the deputy town administrator, presented a plan to pay large budget overruns for snow clearance from last winter. The board approved transfers totaling $0.34 million among Public Works accounts and requested a $1.4 million reserve fund transfer, approved by the Advisory Committee the same evening. Other funds are proposed under an article to be heard by the annual town meeting starting May 26.

Management and town meeting issues: The board had held open its position on Article 7, budget amendments, pending Ms. Goff’s reviews. They voted to recommend applying $1.1 million from overlay surplus against the snow removal deficit, leaving about $0.4 million to be made up. Ms. Goff anticipates that a grant from the Federal Emergency Management Agency will cover that difference.

For the fourth time, board members again considered a recommendation on the Article 9, filed by Ernest Frey, a Precinct 7 town meeting member, and other petitioners. It asked to make holders of state and federal offices living in Brookline automatic town meeting members. Mr. Frey has encountered widespread opposition and asked the board to join the opposition and recommend no action on his article. Board members agreed.

Board members also reconsidered a recommendation on Article 12, changes to the snow removal bylaw, which had been filed in their names. Again they backed away, supporting an Advisory Committee position that gutted most of the original proposal, leaving relatively weak enforcement, modest fines and no administrative appeals.

On Article 14, proposing bans on bottled water, petitioners Jane Gilman, a Precinct 3 town meeting member, and Clinton Richmond, a Precinct 6 town meeting member, asked for support of a bylaw much reduced in scope. Now it would ban only spending town funds on water in one liter or smaller plastic bottles for use in offices. The Board of Selectmen agreed to recommend that approach.

Licenses and permits: Owners of Trader Joe’s in Coolidge Corner got approval for a change in the alcoholic beverage manager, now to be Micah O’Malley. Three restaurants were allowed new outdoor seating: Giggling Rice at 1009A Beacon St., Starbucks at 473 Harvard St. and Sunny Boy at 1632 Beacon St. The Starbucks location and Lee’s Burger of 1331 Beacon St. were allowed increases in indoor seating.

A new restaurant license was approved for Steve Liu of Malden, to be called WOW Barbecue at 320 Washington St., across from Town Hall. Mr. Liu, originally from Beijing, has run a Malden restaurant under the same name since June, 2014, and runs a food truck under that name around Chinatown in Boston, B.U. and Northeastern. The best known dish is traditional Chinese lamb skewers with cumin.

At the hearing, Mr. Liu did not hire a lawyer but represented himself along with Yi Peng, to be an alternate manager. In an unusually generous grant, the board approved a full liquor license for a new restaurant, along with live entertainment and closing hours of midnight weekdays and 1 am weekends. There was resistance from board member Ben Franco, who said that the “history of late closings has led to some problems,” but in the end Mr. Liu’s applications won unanimous approvals.

– Beacon staff, Brookline, MA, May 20, 2015


Board of Selectmen: new members and leadership, Brookline Beacon, May 13, 2015

Town elections: tax override for schools passes, Brookline Beacon, May 5, 2015

Board of Selectmen: farmers’ market, promotions, golf and town meeting, Brookline Beacon, April 29, 2015

Craig Bolon, Public Works: snow removal, Brookline Beacon, March 9, 2015

Neighborhood Conservation District Commission: policies and process

The Neighborhood Conservation District Commission met Monday, April 27, in the fifth-floor meeting room at Town Hall, starting at 7:00 pm. The key item on the agenda was a draft of procedures and policies. Greer Hardwicke, a preservation planner who provides staff support, returned after an extended absence to warm welcomes.

With chair Paul Bell absent, commissioner Richard Garver, a Precinct 1 town meeting member, led the meeting. The small audience included Luis DiazGranados, whose property improvement on Perry St. has been the commission’s only full case so far. It took nearly a year to resolve, making Mr. DiazGranados interested in procedures that can simplify and shorten the work.

Public presence: Commissioners reviewed with Ms. Hardwicke descriptions of the commission’s functions on the municipal Web site. As a departmental mission, it is nearly invisible–buried three levels beneath the Planning Department’s main page: under Regulation, then under Preservation. As a commission of volunteers, the commission’s Web page can be found from its listing on the Boards and Commissions page.

In Brookline’s neighborhood conservation approach, each district has a section in Article 5.10 of Brookline’s general bylaws, found under 5.10.3.d “specific districts and guidelines.” Probably only a professional planner or a municipal lawyer could readily understand the complex structure.

There is no guidebook to advise citizens or neighborhoods about how to create or modify a district or how to work with an existing district and its requirements. As he recently did at a meeting of the Board of Selectmen, commissioner Dennis DeWitt suggested the commission develop a menu of options for districts, to make it easier for neighborhoods to create them.

There are currently two districts: Hancock Village, created at the fall, 2011, town meeting, and Greater Toxteth, created at the annual town meeting last year. The commission page on the municipal Web site currently links to a map for Greater Toxteth and to a narrative explaining that district’s background and its requirements for property improvements. There are no links to similar information for the Hancock Village district.

Procedures and policies: A committee has been working with Ms. Hardwicke and other staff of the Planning Department on procedures and policies. The property improvement case on Perry St. taught that neighborhood conservation cases are likely to involve zoning issues. Ms. Hardwicke described two new potential cases, at least one of which involves zoning issues.

Some confusion occurred over the draft procedures and policies, yet to be posted on the municipal Web site. It emerged that there have been multiple versions in circulation, and no one was sure which was the latest. Ms. Hardwicke is going to try to collect the ones developed during her absence and schedule a committee session to review them.

Part of the documentation of the Greater Toxteth district has yet to be completed, including pictures of existing houses and other structures. Ms. Hardwicke said warmer weather was rapidly bringing out leaves on trees and shrubs. She and district resident Larry Koff will try to complete the photography in the next few days–a race against spring!

– Beacon staff, Brookline, MA, April 28, 2015


Neighborhood Conservation District Commission, Town of Brookline, MA

Neighborhood conservation district study, Brookline Department of Planning and Community Development, September, 2005

Neighborhood Conservation District Bylaw, Town of Brookline, MA, 2014

Advisory Committee: in a generous mood, Brookline Beacon, Brookline Beacon, March 19, 2015

Zoning Board of Appeals: quests for parking and permits, Brookline Beacon, February 27, 2015

Craig Bolon, Hancock Village: development pressures, Brookline Beacon, February 22, 2015

Zoning Board of Appeals: zoning permit for a registered marijuana dispensary

Discounting pleas from around Brookline Village to protect the neighborhoods, a unanimous panel of the Zoning Board of Appeals granted a special permit to New England Treatment Access (NETA), now headed by Arnon Vered of Swampscott. It allows the firm to locate a registered dispensary of medical marijuana on the former site of the Brookline Savings Bank at 160 Washington St. in Brookline Village.

The former bank building enjoys a regal view of historic Village Square, the intersection of Boylston, Washington, High and Walnut Sts. and the former Morss Ave. Built in Beaux Arts style, it has an exterior of gray sandstone and rose marble. The 20-ft high interior features mahogany panels and columns and a glass dome. The bank vaults remain in working condition.

When the Brookline Savings Bank moved in 1922 from its former location at 366 Washington St.–across from the main library–to new headquarters at 160 Washington St., Village Square was the commercial heart of Brookline. Streets were striped with trolley tracks in five directions–up Brookline Ave. into Boston, along the former Worcester Turnpike, now Route 9 connecting Boston with Newton, and up Washington St. through Harvard Sq. of Brookline to Washington Sq. and Brighton and through Coolidge Corner to the Allston Depot of the Boston & Albany Rail Road.

The bank property, as shown in a 1927 atlas, was one lot of 6,509 sq ft, with a few parking spaces in the back–located near what was then the Brookline Branch of the Boston & Albany Rail Road, now the Riverside (D) branch of the MBTA Green Line. Its neighbors were a bustling variety of businesses and residences, as well as industry and culture: Boston Consolidated Gas, Holtzer Cabot Electric, Metropolitan Coal and Lyceum Hall. Now most of that context has been lost to redevelopment. The Colonnade Buildings a block up Washington St. can remind one of a former age.

The hearing began at 7 pm Thursday, April 23, in the sixth-floor meeting room at Town Hall. There were several business representatives and lawyers, plus an audience of around 40. From the outset, opponents of the permit appeared to outnumber supporters. The background had been an election, two town meetings and more than 20 local board and committee hearings and reviews. Other steps remain ahead for the dispensary to operate.

Business plans: NETA was represented by Franklin Stearns from K&L Gates in Boston and by Norton Arbelaez, a lawyer who works with registered dispensaries of medical marijuana. According to Rick Bryant of Stantec in Boston, who advises NETA on transportation issues, the company expects to distribute about 4,000 pounds of marijuana products a year from the Brookline location.

At a typical price of $300 an ounce, reported from states where similar dispensaries now operate, that could provide gross revenue around $20 million a year from a Brookline operation. Company representatives confirmed that the company plans to operate from 10 am to 7 pm every day of the week. That could result in more than $50,000 a day in Brookline-based transactions.

According to Mr. Bryant, estimates derived from a dispensary in Colorado indicate a peak of about 30 customer visits to the site per hour. The former Brookline Savings Bank site now includes an adjacent lot to the north, 3,154 sq ft under common ownership, where a building present in 1927 has been removed. That provides most of the land for 11 parking spaces that were diagrammed in NETA plans. Mr. Bryant predicted peak usage of eight parking spaces, but all those on site are to be reserved for customer use.

NETA also showed two spaces sized for handicapped parking on an adjacent lot to the west, at 19 Boylston St. That property houses a Boston Edison electric substation, owned by a subsidiary of Eversource. According to Mr. Stearns of K&L Gates, NETA will open a production facility in Franklin, MA, and another registered dispensary in Northampton. All deliveries are to depart from the Franklin site, not from Brookline or Northampton.

Amanda Rossitano, a former aide to Brookline state representative Frank Smizik who works for NETA, said the company will have about a dozen employees on site. Jim Segel, a former Brookline state representative now living in Needham, spoke on behalf of NETA, saying that the company “is going to be a leader in doing things right…a good neighbor and citizen. It will enhance the neighborhood.”

Questions: The Appeals panel for this hearing consisted of Jesse Geller, a lawyer who is the board’s chair, Christopher Hussey, an architect, and Avi Liss, a lawyer. Mr. Hussey led questions, asking about security plans. Mr. Arbelaez described procedures and facilities, including a “secure vestibule” for entry to the service facilities, with a security officer and a parking attendant on duty during business hours.

Mr. Liss asked about other potential Brookline locations. Mr. Stearns said several had been investigated, one near the intersection of Beacon St. and Summit Ave. Some property owners, he said, would not lease or sell, while circumstances at other locations proved less suitable. Mr. Hussey asked about apparently recent changes to parking plans. Mr. Stearns said NETA had responded to comments from the Planning Board.

Arguments: When Mr. Geller asked for comments in favor of the permit, other than people known as working with NETA only Deborah Costolloe from Stanton Rd. spoke. “Many people are in favor of this business in the Village,” she said. She contrasted the potential for traffic with the operations of Trader Joe’s in Coolidge Corner. Trader Joe’s does “vastly more business,” she said, while it has only “a small amount of parking.” The real issue for the opponents, said Ms. Costolloe, “is the nature of the business, not parking.”

Over 20 spoke in opposition, many living or working within several blocks of the bank site or representing them. Art Krieger, of Anderson and Krieger in Cambridge, spoke on behalf of nearby business owners–including Puppet Showplace, Inner Space, Groovy Baby Music and Little Children Schoolhouse. Citing general requirements for a special permit, he said the site was not an appropriate location, that the business would adversely affect neighborhoods and that it would create a nuisance.

Mr. Krieger tried to invoke default regulations for a dispensary that apply when a community does not create its own. Brookline, he said, does not set minimum distances from “places where children congregate,” comparable to state defaults. Mr. Liss of the Appeals panel disagreed. “I read it differently,” he said, “because there’s a local bylaw.” Brookline’s bylaw prohibits dispensary locations in the same building as a day-care facility.

Mr. Krieger called reliance on traffic data from a dispensary in Colorado “faith-based permitting.” Parking at the former bank site, he claimed, “will cause safety problems for vehicles and pedestrians…much more traffic throughout the day than the bank.” Issues of traffic and parking were to recur several times in comments from opponents, as predicted by Ms. Costolloe.

Historic site: Merrill Diamond, a former Brookline resident and a real estate developer, took a different direction. Mr. Diamond is well known for historic preservation and adaptive reuse. Among his local projects have been the Chestnut Hill Waterworks and Kendall Crescent–repurposing the historic Sewall School and Town Garage along Cypress, Franklin and Kendall Sts.

Mr. Diamond regretted reuse of the former Brookline Savings Bank site for a dispensary, saying he had tried to start a more creative project combining residential and retail spaces. His bid on the property was rejected, he said, because it did not commit to an early closing date. If the proposed dispensary doesn’t open, he said he will submit another bid.

Betsy Shure Gross of Edgehill Rd., a Precinct 5 town meeting member, had similar outlooks. She recalled the Brookline Village Citizens Revitalization Committee from the 1970s, when parts of the neighborhoods looked bleak. “I voted for medical marijuana,” said Ms. Gross, but what happened “is bait and switch.” She criticized siting a dispensary in a major historical property, saying it will have “adverse and negative impacts.”

Crime: Introducing himself as a member of the criminal justice faculty at Northeastern, Prof. Simon Singer of Davis Ave. allowed he could not prove that a dispensary would increase crime, but he said such a facility “is known to have an adverse effect on crime.” According to Prof. Singer, the Appeals panel should “err on the side of those who are against it.”

George Vien of Davis Ave., a former federal prosecutor, tried last fall to change Brookline’s zoning standards for registered dispensaries of medical marijuana, bringing a petition article to town meeting. He argued vigorously against what he called “violating the schoolyard statute,” distributing marijuana “within 1,000 yards of a playground, school or public housing project.” Town meeting was told the arguments were questionable and that any risks applied to dispensary operators, not to the town. It declined to change zoning standards.

At the permit hearing, Mr. Vien continued his arguments. He described himself as familiar with Brookline’s public housing, saying, “I grew up in public housing…went to old Lincoln School in Brookline Village…You are creating a secondary drug market right in the housing project.” He urged the Appeals panel to deny the permit: “Err on the side of at-risk kids.”

Traffic and parking: Gordon Bennett of Davis Ave., a close ally of Mr. Vien in last fall’s town-meeting effort, spoke about traffic impacts from the proposed dispensary. An estimated “two percent of the population will use medical marijuana,” he said, and “right now there are no other [registered dispensaries] in the state…there will be a much larger increase in traffic than predicted.”

Elizabeth Childs of Walnut St., a physician who was also an outspoken dispensary opponent last fall, referred to the state limit on purchases, saying “ten ounces of marijuana is an incredible amount of product, a lot of cash too…10 am to 7 pm seven days a week is completely inappropriate.” With entry to and exit from the bank site’s parking only “going west on Route 9…traffic will be going through our neighborhood.” She urged the Appeals panel to “protect the neighborhood…deny the permit.”

Angela Hyatt of Walnut St., an architect who is a Precinct 5 town meeting member and a member of the Advisory Committee, lives about a block from the former bank site. She criticized the plans, particularly plans for parking, as “inaccurate and misleading.” She noted that slope and driveway width do not meet zoning standards. However, parking at the site reflects usage and designs that pre-date Brookline’s zoning requirements, so that they are “grandfathered” unless basic use of the site changes–for example, from retail to residential.

Claire Stampfer of Sargent Crossway, another Precinct 5 town meeting member, also objected to traffic impacts, saying, “The use as a bank is totally different…fewer hours, no holidays and weekends…It is an intrusion into Brookline Village.” NETA. she said, “should sell only by delivery…not on site.”

Virginia LaPlante, a Precinct 6 town meeting member, had similar reactions, calling it a “fantasy talking about cars parking there…We were misled in town meeting. I voted for medical marijuana.” Ms. LaPlante said NETA “could have an office in 2 Brookline Place” (a planned 8-story office building). “I’m sure Children’s Hospital would welcome them there.” At a meeting last year, a NETA representative said Children’s Hospital had rejected the firm as a potential tenant. Hospital physicians announced a policy against prescribing medical marijuana.

Reaching a decision: After more than two hours of discussion, finding no one else wanting to speak, Mr. Geller closed the hearing. The Appeals panel began to weigh the arguments. Mr. Liss said potential security issues were not a matter of zoning but of management. They would need to be reviewed with an application for an operating license, to be heard by the Board of Selectmen. Annual operating reviews would be able to consider problems and revoke a license or add conditions.

Mr. Geller said that when enacting zoning allowing a dispensary, town meeting “passed judgment on the risk level.” Traffic hazards were being mitigated by an approved transportation demand management plan. The site is appropriate, he said, “secure, contained…isolated by surroundings…This building could be used for a better purpose, but that’s not a standard under the [zoning] bylaw.” The panel agreed and approved the permit.

– Beacon staff, Brookline, MA, April 25, 2015


Brookline Village walking tours: Washington Street at Route 9, High Street Hill Neighborhood Association, Brookline, MA, c. 2005

Atlas of the Town of Brookline, Massachusetts, G.W. Bromley & Co. (Philadelphia, PA), 1927 (71 MB)

Licensing Review Committee: registered marijuana dispensary, Brookline Beacon, January 29, 2015

Craig Bolon, Medical marijuana in Brookline: will there be a site?, Brookline Beacon, December 7, 2014

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries, Brookline Beacon, November 18, 2014

Advisory Committee: no new restrictions on marijuana dispensaries, Brookline Beacon, October 31, 2014

Zoning Bylaw Committee: no new restrictions on marijuana dispensaries, Brookline Beacon, October 28, 2014

Registered marijuana dispensary regulations, Town of Brookline, MA, 2014

Implementation of an Act for the Humanitarian Medical Use of Marijuana, 105 CMR 725, Massachusetts Department of Public Health, May 24, 2013

An Act for the Humanitarian Medical Use of Marijuana, St. 2012 C. 369, Massachusetts General Court, November, 2012 (enacted by voters through a ballot initiative)

Advisory subcommittee on human services: tap water and bottled water

The Advisory subcommittee on human services met at 5:30 pm Tuesday, April 7, in the third-floor employees’ room at Town Hall. The agenda was two articles for the spring town meeting intended to promote the use of tap water over bottled water, submitted by Jane Gilman and Clinton Richmond, town meeting members from Precincts 3 and 6. They have been active in the “green caucus” within Brookline town meeting and are currently co-chairs.

The hearings on these articles drew a large group for an Advisory subcommittee: six senior town staff and at least 15 town residents. All the subcommittee members were on hand: Sytske Humphrey of Precinct 6, the chair, Lea Cohen of Beacon St., not a town meeting member, David-Marc Goldstein of Precinct 8 and Robert Liao of Meadowbrook Rd., not a town meeting member.

Water service at restaurants: Article 13 for the 2015 annual town meeting, scheduled to start May 26, proposes to amend a Brookline bylaw by requiring tap water to be available to customers at restaurants located in the town. However, as the explanation for Article 13 says, “Tap water is already available….” Subcommittee members were puzzled why petitioners thought a bylaw change was needed.

Mr. Richmond mentioned a restaurant located in another community that offers only bottled water, but he could not cite any one in Brookline. Ms. Cohen asked how many Brookline businesses the petitioners had approached. “None,” said Ms. Gilman, adding that she did not “see a hardship.” Mr. Goldstein described the warrant article as “a solution looking for a non-existent problem.”

Alan Balsam, the public health director, called tap water service in Brookline restaurants “not much of a problem.” Owners of one restaurant, he said, “think they can charge for water.” Ms. Humphrey asked whether petitioners might be interested in substituting a resolution for the proposed bylaw change, in support of an “educational” effort to encourage use of tap water. Mr. Richmond said, “No.” Committee members were not persuaded of a need for a bylaw change and voted unanimously to recommend no action on Article 13.

Selling or distributing bottled water: Article 14 for the spring town meeting proposes a new bylaw making it illegal to “sell or distribute” bottled water at an “event” held on “town property,” including a street. If you were to take along a bottle of water to Brookline Day at Larz Anderson, for example, and you distributed some of it to friends, under this law you would apparently be liable for a fine of $50 to $100.

The proposed bylaw would also forbid spending town funds on bottled water, forbid vending machines located on town property from offering bottled water and forbid Brookline-licensed food trucks from selling bottled water. Exemptions would be allowed where the public health director finds them “necessary.” Dr. Balsam said, “The article is quite complicated.”

Petitioners defended their article, estimating waste generated in Brookline at around a million plastic bottles a year. Mr. Richmond ridiculed the brand Fiji Water, in particular–denouncing abuse of natural resources in “hauling water 8,000 miles” to Brookline. Although the water bottles, made of polyethylene terpthalate, can be recycled as Type 1 plastic, Mr. Richmond claimed less than 20 percent went into blue recycling bins. He may not have known that, because of low industrial materials prices, most or all of those have reportedly been burned in incinerators recently rather than recycled.

Potential problems: As an example of potential problems, Dr. Balsam brought up outdoor restaurant seating during warm weather. Some such seating is on privately owned property and would be exempt. Other seating is on town sidewalks and would be restricted. There may be no visible marks showing which is which. Dr. Balsam also warned about adverse consequences, including substitution of sugared beverages, which have been associated with increasing trends of obesity and diabetes.

Fred Russell, director of the Water Division in Public Works, said that while he supports use of public water rather than commercially bottled water, less than 20 percent of Brookline’s public park sites now have water fountains. David Geanakakis, the chief procurement officer, said it would not be difficult to exclude water from vending machines. Subcommittee member Lea Cohen asked whether the petitioners had approached Brookline agencies and businesses who would be affected. Ms. Gilman said, “No.”

John Harris, a Precinct 8 town meeting member, observed that bottled water sales now comprised about 15 percent of U.S. retail beverage sales. Saying he has been “working in special education for most of my career,” Mr. Harris claimed bottled water has helped students with learning disabilities, who he said tended to treat sugared beverages as “liquid candy.”

Donald Leka, a Precinct 3 town meeting member, said the growth in bottled water sales has been driven by aggressive advertising. He suggested an educational effort rather than a bylaw, to combat abuse of resources. Mr. Richmond had said he was “not a public health expert.” As he described it, the petitioners were putting forth ideas and would rely on town boards and staff to find and solve problems.

Ms. Humphrey, the subcommittee chair, read a letter from Mariah Nobrega, a Precinct 4 town meeting member, expressing concerns over conflicts with athletic events bringing teams from other communities to Brookline. She recommended referring Article 14 to a task force, in order to sort through problems and develop solutions, but Mr. Richmond and Ms. Gilman said they did not want a referral.

A troubled love affair: Recent town meetings eagerly endorsed some “green caucus” proposals. In this case, discussion found the subcommittee members concerned about the environmental issues advanced by the Article 14 petitioners but unconvinced that the proposed bylaw offered a workable solution. The subcommittee members voted unanimously to recommend no action on the article.

With back-to-back rejections from a subcommittee usually inclined to support its goals, the “green caucus” in town meeting looks to have tried “a bridge too far.” The strategy it used in previous efforts to ban plastic products may have reached a limit, with town boards and committees starting to expect proponents to do their homework and develop practical solutions, rather than simply write up ideas and look to others for the heavy lifting.

– Beacon staff, Brookline, MA, April 12, 2015


Advisory Committee, Town of Brookline, MA

Warrant for 2015 Annual Town Meeting, Town of Brookline, MA, March 17, 2015

Explanations of Articles, 2015 Annual Town Meeting, Town of Brookline, MA, March 17, 2015

Craig Bolon, Paper or plastic? The Devil’s work, Brookline Beacon, May 28, 2014

Cornelius Ryan, A Bridge Too Far, Simon & Schuster, 1974

Billy Baker, Brookline finds plastic bottle ban a thorny issue, Boston Globe, April 12, 2015. A grammatically and politically challenged Boston writer visits next door.

Changing the rules: new taxi regulations

At its meeting last March 19, the Brookline Transportation Board announced a draft of new taxi regulations. A public hearing about them has now been scheduled for 7:25 pm on Thursday, April 9, in the basement Denny Room at the Health Center, 11 Pierce St.

Medallions in retreat: Draft taxi regulations from March make no mention of permanent “medallion” licensing–as practiced in New York, Chicago, Boston and several other large cities. Apparently that has become a dead issue in Brookline.

At least nine years ago, Brookline began to investigate switching from its current, annually renewed taxi licenses to medallions, mainly in hope of a one-time windfall from selling medallions at high prices. After two studies, two town meetings and two “home rule” laws enacted by the General Court, the Transportation Board was planning to implement the change in July of last year.

The board’s plans were derailed at last year’s annual town meeting, as a consequence of an article filed by Precinct 8 town meeting member John Harris. Mr. Harris proposed that town meeting ask the General Court to rescind the authorizations it had enacted. His article was referred to a study committee. At the end of a long, contentious review, no action occurred, but the process may have produced the effect Mr. Harris was seeking.

Level fares but higher fees: The draft regulations leave the current fare structure unchanged. It is $1.50 for the first eighth mile or fraction plus $0.40 for each additional eighth mile and each minute of waiting time.

The draft regulations would lower the annual license fee from $300 to $200 per vehicle per year but add a $75 fee for each of two inspections per year–a net increase of $50 per year per taxi. The annual fee to renew a taxi driver license would rise from $25 to $50. The controversy over medallions brought out concerns that current license fees fail to cover Brookline’s costs of taxi regulation.

Stricter standards: The draft regulations propose stricter standards for vehicles and operations. Newly licensed vehicles would have to be no more than three years old. Currently they can be up to four years old. Instead of a maximum vehicle age of seven years, draft regulations require maximum operation of 300,000 miles.

Taxi vehicles with ramps for people who use wheelchairs would be required, starting in July of next year. Operators would have to provide one such vehicle for every ten taxis. As partial compensation, the $200-per-year license fees would be waived for those vehicles. Identified by “WAV” licenses, the vehicles would be required to meet capacity and safety standards.

Taxi meters would be required to be able to retain and print records of trips and to accept credit cards. Taxis would have to be equipped with EZpass transponders for use of the Turnpike, tunnels and bridges. Taxi drivers would required to attend driver training offered by Brookline’s police department and pass an exam. Taxi driver licenses would cease to be available to persons convicted of major offenses within the past seven years.

Relaxed standards: Taxi companies and drivers would be allowed to supply post office box addresses, provided they are at Brookline offices. It is not clear whether a private business providing mail collection or forwarding would qualify. Taxis would be allowed to operate via “e-hail” dispatch as well as telephone and street hail.

So far, neither the Transportation Board nor the Transportation Division in the Department of Public Works has distributed an explanation of the changes or of reasons for proposing them. A telephone call to Todd Kirrane, the transportation administrator, was not returned.

– Craig Bolon, Brookline, MA, April 6, 2015


Taxicab Regulations, Brookline Transportation Board, draft March 19, 2015

Taxicab Regulations, Brookline Transportation Board, effective July 25, 2013

Brookline taxis: long-term “medallion” licenses, Brookline Beacon, July 19, 2014

Annual town meeting: Brookline Place, taxi medallions and resolutions, Brookline Beacon, June 3, 2014

Board of Selectmen: new 40B project, town meeting reviews

A regular meeting of the Board of Selectmen on Tuesday, March 24, started at 6:55 pm in the sixth-floor meeting room at Town Hall. The board reviewed a partly subsidized housing development at 21 Crowninshield Rd., which proposes to use powers under Chapter 40B of Massachusetts General Laws to override the single-family zoning.

Contracts, personnel and finances: Peter Ditto, the engineering director, described a report and request for reimbursement under the 2014 state-funded road program, authorized through Chapter 90 of the General Laws. Brookline is eligible for about $1.24 million; the board approved. Daniel O’Leary, the police chief, got approval to accept a $0.01 million state grant for a youth program. Alan Balsam, the health director, got approval to accept a $0.01 million state grant for a low-income nutrition program, cooperating with the Brookline Food Pantry.

Mr. O’Leary also received approval to replace a traffic supervisor who is retiring. Dr. Balsam got approval to replace a program coordinator who is leaving to become assistant health director in Belmont. As to both, Ken Goldstein, the board’s chair, made his usual request to seek a diverse pool of candidates and consult with the personnel office and the diversity department.

New 40B project: The board considered a recent proposal to develop partly subsidized housing at 21 Crowinshield Rd. in North Brookline. A response to a Mass. Housing agency application had apparently been drafted by Maria Morelli, recently hired as a planner, who as a consultant had coordinated the town’s professional efforts reviewing the proposed 40B project at Hancock Village.

The developers are a local group calling themselves “21 Crown” and including Robert W. Basile, a Precinct 14 town meeting member. Last year they bought the single-family house at 21 Crowninshield Rd. and an adjacent, undeveloped lot to the north. Then they cut down almost all the trees and plantings that had grown over about a century, leaving the house isolated and exposing to Crowninshield Rd. residents a stark view of the back of the Arbour-HRI Hospital, on Babcock St.

House21CrowninshieldRoad

Source: Brookline Planning Dept.

Instead of fireproof construction, the “21 Crown” developers are proposing a “4-decker” wood-frame building divided into 20 apartments with an elevator. Two are called “three bedroom” and the rest “one bedroom” units, but all would be fairly small–around a thousand square feet. The design recalls a “suburban hamster cage” concept that was previously seen in Cambridgeport starting in the 1960s.

FourDeck21CrowninshieldRoad

Source: Brookline Planning Dept.

No representative for the developers appeared at this meeting of the Board of Selectmen. Ms. Morelli said comments from reviewers had called the proposal “inappropriate for the site.” Developers, she said, “tried to cast the context as Commonwealth Avenue business.” Mr. Basile owns nearby property along Commonwealth Avenue now housing Enterprise Rent-A-Car, Firestone and Sullivan Tire.

Kate Poverman, a neighbor on Adams St., called attention to the large “concentration of affordable housing in our area” but said, “We’ll work with the developer.” Barbara Scotto, a member of the School Committee who lives diagonally opposite the site, described hazards, saying, “Traffic is already backed up frequently at Pleasant and Adams.” The board approved the response to be sent to Mass. Housing, with several revisions.

Budget reviews: The board reviewed proposed budgets presented by Patrick J. Ward, the town clerk, for the town clerk’s office, by Mr. O’Leary for the Police Department and by Andrew Pappastergion, the public works commissioner, for the Department of Public Works. Mel Kleckner, the town administrator, has proposed defunding one patrolman position in the Police budget, currently vacant. Mr. O’Leary said the Police Department would continue to function without the position if necessary.

The board reviewed two warrant articles for the spring town meeting: 4. Close-out of special appropriations and 12. Snow bylaw amendments. There are currently no special appropriations eligible for close-out. The bylaw changes had been drafted on behalf of the Board of Selectmen. They raise fines for failure to clear snow from sidewalks, specify new violations and fines, and eliminate a requirement to notify on a first offense instead of citing and fining. The public works commissioner would have increased discretion.

– Beacon staff, Brookline, MA, March 30, 2015


Application letter for 21 Crowninshield Road 40B project, Brookline Department of Planning and Community Development, March, 2015

Response to 21 Crowninshield Road application, Brookline Board of Selectmen, April 1, 2015 (8 MB)

Warrant for 2015 Annual Town Meeting, Town of Brookline, MA, March 17, 2015

Explanations of Articles, 2015 Annual Town Meeting, Town of Brookline, MA, March 17, 2015

Zoning Board of Appeals: quests for parking and permits

The Zoning Board of Appeals held hearings on Thursday, February 26, for two complex property improvement cases involving off-street parking. Assigned to the hearings were board members Mark Zuroff, a lawyer serving as chair, Christopher Hussey, an architect, and Avi Liss, a lawyer.

Alley conflict: A proposed 4-car garage behind 1471 Beacon St. had wound through two Planning Board hearings and a previous Appeals hearing. The apartment building suffered a major fire a few years ago and has now been largely rebuilt. Previously it had only informal parking on an alley in the back. The developer, who is selling units as condominiums, wanted to create deeded parking in a small garage, adjacent to the alley.

He had originally proposed five spaces, but tight spacing and access led to criticism at Planning and Appeals, and he returned with a proposal for four spaces. Neighbors along Beacon St. seemed satisfied with the changes. Neighbors behind on Griggs Terrace–a private way–were definitely not happy, and they spoke in opposition.

The legal alley access is from the narrow, sloping Intervale Crosscut, connecting Beacon St. with Griggs Rd. about a tenth of a mile toward the west. Neighbors claimed the alley will often be blocked, and vehicles will trespass on drives connecting to Griggs Terrace.

Land adjacent to the row of apartments near 1471 Beacon forms a steep slope in back, descending around ten feet to about the elevation of Griggs Park. The terrain was created in late-nineteenth century as a part of historic Beacon St. apartment development. Dense vegetation, including large trees, has helped to control storm run-off and restrain the slope from erosion.

The developer proposed to excavate a wedge-shaped segment of the steep slope and install a concrete garage structure with thick supporting and retaining walls and a buried drywell to manage storm water. On top, he proposed to create a landscaped terrace, to compensate for removing trees. The floor of the garage was to be level with the alley.

The developer needed special permits for smaller setbacks than standard zoning and for design review of a structure along Beacon St. With four rather than five cars, the dimensions did not need a variance–usually much harder to justify. That such a complex and costly plan appeared practical indicates the high prices being paid for parking in urban areas of Brookline.

Neighbors said they had been alienated by the developer’s conduct during about three years of construction. The alley is a composite of small parcels, with mutual rights-of-way deeded to and used by many of the owners of adjacent property. During construction, they said, equipment and materials had been stationed in the alley, trespassing on their property and that of others and interfering with access.

Neighbors asked for an enforceable permit condition specifying that the alley would not be blocked again. After about an hour and a half of testimony and wrangling among board members, the Appeals panel voted to grant the permits needed for the garage, attaching several conditions, including provisions intended to help neighbors stop potential obstruction of the alley in the future.

Neighborhood conservation: Renovation and expansion of a house at 66 Perry St. has involved a wide range of issues, including parking. This has been the first Brookline property improvement proposed in a neighborhood conservation district, and the Appeals board is not the last stop on the line. By the time the case is finished, reviews will probably total almost a year.

After a six-year study, Brookline created its first neighborhood conservation district in the fall of 2011, for Hancock Village in south Brookline. So far, that has not generated any cases. In spring, 2014, another district was approved at town meeting, involving parts of Toxteth St., Perry St. and Aspinwall Ave. These districts are intended to extend property regulation beyond traditional zoning to help maintain neighborhood characteristics more complex than property uses and dimensions.

Boston enacted an “architectural conservation district” in 1975. Cambridge created its first “neighborhood conservation district” in 1984 and now has five districts. Other Massachusetts communities with similar regulation include North Andover, Amesbury, Lexington, Lincoln and Wellesley. There is no Massachusetts enabling law for this type of regulation. Each community using it has created its own ordinances or bylaws, justified under the general “police power” of cities and towns. Brookline’s approach creates a separate bylaw for each district.

Without an enabling law and an accumulation of case law, communities have to develop their own standards and procedures. One reason reviews of the proposed property improvements at 66 Perry St. have taken so long is that the boards involved have been working out the process–more or less on-the-fly. It looks likely to be a typical case in that both zoning and neighborhood conservation regulations apply.

The Planning Board and Zoning Board of Appeals, established in the 1920s, review the zoning issues, while a new Neighborhood Conservation District Commission reviews issues for which it is named. There is considerable potential for overlap; that occurred with 66 Perry St. So far, the commission held two hearings, the Planning Board two and Zoning Board of Appeals one.

First commission case: After the property owner had settled on a design, following commission review, the Planning Board urged changes. The owner made those changes in plans and went to the Appeals board, seeking special permits for setbacks smaller than standard zoning. The need for the permits had been driven partly by trying to keep expansions from intruding into the front yard, in order to satisfy Neighborhood Conservation.

The Appeals board voted to approve the special permits, but now the owner must return to the Neighborhood Conservation District Commission. The plans approved by Planning and Appeals differ from those previously approved by the commission. With luck, that will be the last stop. Thanks to a cooperative owner, this project looks likely to reach a successful outcome.

– Beacon staff, Brookline, MA, February 27, 2015


Neighborhood conservation district study, Brookline Department of Planning and Community Development, September, 2005

Hancock Village: development pressures

Chestnut Hill Realty, the owner and manager of Hancock Village in south Brookline and West Roxbury, has been pushing in recent years to build new, partly subsidized housing on currently unoccupied parts of the property that are located in Brookline–using powers under Chapter 40B of the General Laws to override Brookline zoning. It has not sought similar development on parts of the property in West Roxbury.

Since more than 10 percent of Boston’s housing units qualify as “affordable” under 40B standards, Chestnut Hill Realty cannot force a 40B development on West Roxbury. However, it would be less likely to want to, since the potential value of Brookline apartments is greater because of the draw of Brookline public schools. The company is also trying to raise the value of existing apartments with major renovations.

Potential evictions: From appearances, Chestnut Hill Realty might be trying to replace older residents at Hancock Village with younger ones. Several long-term residents have received lease-cancellation notices delivered by constables, and some are terrified of being evicted.

One of the notices from Chestnut Hill Realty said that “you occupy one of [the] original type apartments we will be renovating…this is to inform you that our office will not be renewing your lease at the end of the current term, and that it our intent to terminate your tenancy…you are required to vacate the apartment…on or before June 30….”

The company offered the tenants who stand at risk of being evicted “a $1000 relocation benefit” and “special rental pricing” if they “sign a new contract [by] April 30,” and it also offered them “special financial incentives…to move out earlier.”

Capturing value: The drift of Chestnut Hill Realty’s management is to capture value for the company from Brookline’s support of public schools. If the occupancy of the currently proposed 40B development were to mirror Brookline’s average, the development might add around 50 students in Brookline schools. However, Chestnut Hill Realty has been targeting rental marketing to foreigners with school-age children.

Neighborhood residents fear the 40B development might bring in 200 or more students. Because many of them might have little English proficiency, they could also be unusually costly to educate. During the Board of Appeals hearings over the proposed 40B development, Chestnut Hill Realty did back away from some components of its plans, including lofts in low-rise units, but the plans still include many apartments with 3 and 4 bedrooms.

Meeting responsibilities: A longstanding complaint from residents of south Brookline, echoed by members of the Board of Selectmen and other town boards, is that Chestnut Hill Realty has been trying to bypass responsibilities under an agreement between the John Hancock Mutual Life Insurance Company and the Town of Brookline, shortly before the 1946 annual town meeting, which enacted zoning to allow Hancock Village.

The agreement was a critical element in persuading Brookline to change its zoning. If is reproduced in full in the 1946 town meeting records. John Hancock Co. agreed that any development would be “high-grade garden village type,” that no buildings would be over 2-1/2 stories, that the land area occupied by buildings would not be over 20 percent of the total and that no more than 25 percent of the housing units would be “horizontally divided.” The company agreed that those restrictions would become binding on “successors and assigns,” of which Chestnut Hill Realty and subsidiaries are the most recent.

With support from abutters and neighbors, in November, 2013, the Town of Brookline filed a lawsuit in Norfolk Superior Court, seeking a declaration that the Mass. Development Finance Agency had failed to follow state laws and regulations in certifying eligibility of the proposed development and also seeking a declaration that the restrictions of the 1946 agreement apply to the project.

Overcoming objections: The defendants in the 2013 superior court suit, Mass. Development and Residences of South Brookline, objected that Brookline had failed to exhaust administrative remedies before seeking judicial review and that the 1946 agreement was a “deed restriction,” expiring after 30 years under Chapter 183, Section 23, of the General Laws.

Judge Patrick F. Brady of Norfolk Superior Court dismissed the 2013 lawsuit on both grounds in September, 2014. Although he provided only a bare outline of reasons, he relied on an obsolete case, Marion v. Massachusetts Housing Finance Agency, in evaluating administrative remedies, and he did not appear to consider two recent cases in evaluating the 1946 contract: Killorin v. Zoning Board of Appeals of Andover and Samuelson v. Planning Board of Orleans. (All cases before the Massachusetts Court of Appeals)

In November, 2014, Brookline and the neighborhood parties filed in the Court of Appeals, seeking to reverse the dismissal on both its grounds. [case 2014-P-1817] The neighborhood participants include Judith Leichtner, a Precinct 16 town meeting member, who has appeared at many government meetings and volunteered as a contact.

The Town of Brookline and neighborhood participants argue that in 2008, after the Marion decision in 2007, the state changed its regulations for Chapter 40B developments, providing no administrative review after a project is found eligible. They also argue that the Killorin and Samuelson cases establish that restrictions resulting from zoning actions are not deed restrictions and do not expire under Chapter 183 in 30 years.

Going forward: Briefs from both sides have been filed for the Court of Appeals case, as of February 12, 2015, and the case looks ready for motions and arguments. However, as of February 21 it had not appeared on a docket. If the Court of Appeals reverses the dismissal of the original case, that case will be reactivated in Norfolk Superior Court for arguments on its merits.

Meanwhile, as expected for many weeks, the Brookline Zoning Board of Appeals has granted a comprehensive permit for the proposed Hancock Village Chapter 40B development, filed with the town clerk February 20. At its most recent meeting, the Board of Selectmen suggested that they may challenge that permit, saying they will be considering it at their meeting on Tuesday, February 24. An executive session has been proposed for 5:30 pm on the agenda, about “litigation.”

Given the high potential values and costs involved, it is possible that the case may wind through more stages of review in court, no matter what the next outcome. If the 1946 agreement remains effective, then its land coverage restrictions are likely to be of much interest. Current zoning, enacted in 1962, allows a maximum floor-area ratio of 0.50 in the Hancock Village M-0.5 apartment zone and 0.35 in the S-7 “greenbelt” area near Russett and Beverly Rds.

The 1946 agreement’s restrictions–written before Brookline’s zoning bylaw regulated by floor-area ratio–may be equivalent to a maximum floor-area ratio lower than current Brookline zoning for Hancock Village. However, there appears to be no recent, systematic analysis of as-built dimensions in the Brookline parts of Hancock Village and no systematic comparison with the 1946 restrictions.

A so-called “density analysis” sent to Jesse Geller of the Zoning Board of Appeals in October last year by Alison Steinfeld, the director of planning and community development, uses an antiquated measure, “dwelling units per acre,” that does not accurately reflect town or neighborhood impacts and does not correspond either with current Brookline zoning or with restrictions contained in the 1946 agreement.

In a presentation to the Board of Appeals made in January, 2014, the Hancock Village developer claimed, “The current Floor Area Ratio (FAR) is only 0.29.” [p. 20 of 76] That document did not describe the basis for its claim. If the 1946 agreement is upheld, then no more development might be possible in the Brookline parts of Hancock Village.

– Craig Bolon, Brookline, MA, February 22, 2015


Comprehensive permit for The Residences of South Brookline, LLC, on the site of Hancock Village, Zoning Board of Appeals, Town of Brookline, MA, February 20, 2015 (4 MB)

Town of Brookline and others v. Mass. Development Financing Agency and others, Massachusetts Court of Appeals case 2014-P-1817, filed November 14, 2014

Samuelson v. Planning Board of Orleans, Massachusetts Court of Appeals case 2013-P-1418, 86 Mass. App. Ct. 901, decided July 2, 2014

Killorin v. Zoning Board of Appeals of Andover, Massachusetts Court of Appeals case 2010-P-1655, 80 Mass. App. Ct. 655, decided May 5, 2011

Town of Marion v. Massachusetts Housing Finance Agency, Massachusetts Court of Appeals case 2005-P-1848, 68 Mass. App. Ct. 208, decided February 12, 2007

Hancock Village 1946 Agreement, Article 23, Annual Town Meeting, March 19, 1946, from Brookline, MA, 1946 Annual Town Report, pp. 32-34

Hancock Village 40B project eligibility application, PreserveBrookline and South Brookline Neighborhood Association, August 28, 2013

Alison C. Steinfeld to Jesse Geller, Density analysis, Brookline Department of Planning and Community Development, October 20, 2014

Zoning Board of Appeals Presentation, The Residences of South Brookline, January 16, 2014

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, parking and traffic, Brookline Beacon, November 25, 2014

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Board of Selectmen: opposing Hancock Village 40B, defending METCO, Brookline Beacon, September 17, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B, Brookline Beacon, September 9, 2014

Zoning Board of Appeals: Chapter 40B project at Hancock Village, Brookline Beacon, June 20, 2014

Setting the record straight: claims related to the development of Hancock Village, PreserveBrookline, undated

Board of Selectmen: Hancock Village, financial plan

A regular meeting of the Board of Selectmen on Tuesday, February 17, started at 7:35 pm in the sixth-floor meeting room at Town Hall. The agenda focused on the town administrator’s financial plan for the fiscal year starting next July.

Hancock Village Chapter 40B project: In public comment, Judith Leichtner, a Precinct 16 town meeting member, questioned the board’s commitment to resisting a large, partly subsidized housing development proposed at Hancock Village in south Brookline by subsidiaries of Chestnut Hill Realty, the owner and manager.

It has been obvious for weeks that the Zoning Board of Appeals will the allow the development, with a decision expected to be recorded in days. “Will you be appealing this terrible ZBA decision?” asked Ms. Leichtner. “Will you be hiring outside counsel with experience litigating 40B? What action will you be pursuing to…protect historic property?”

Ken Goldstein, the board’s chair, said that the board “will be discussing [litigation] next week in executive session…we have time…we are aware of the deadline.” Left unsaid: for a Board of Selectmen to sue the Board of Appeals that it appointed would appear to put the community in conflict with itself–a house divided.

Contracts, personnel and finances: David Geanakakis, the chief procurement officer, received approval for a $0.38 million lease-purchase agreement with TD Bank. It will fund a set of DPW equipment anticipated in the current capital improvement plan. Stephen Cirillo, the finance director, got the board to certify expected operating life of at least 10 years for a new fire engine, a bonding issue.

Licenses and permits:Hui Di Chen of Melrose, formerly involved with Sakura restaurant in Winchester and the proposed new manager of Genki Ya restaurant at 398 Harvard St., spoke for applications to transfer licenses held by the current manager. Mr. Chen seemed unprepared for some of the board’s questions. He had not sought out training provided by the Police Department on managing alcoholic beverage sales under the Brookline regulations. The board opted to hold the applications and reconsider them at a later date. Board records contain several misspellings of names.

Haim Cohen of Brookline received a license for a restaurant he plans to open on the former site of Beauty Supply, at 326 Harvard St. To be called Pure Cold Press, it was described as a “juice and salad bar.” He has a major shortfall of parking under Brookline zoning and will also need approval from the Zoning Board of Appeals.

Financial plan: Mel Kleckner, the town administrator, presented a financial plan for the fiscal year starting next July, assisted by Sean Cronin, the outgoing deputy town administrator, and by his replacement in the position, Melissa Goff. The main outlines do not include revenue from a tax override of $7.665 million per year that the board proposed on February 10. However, Mr. Kleckner’s plan shows how municipal agencies would use a share of those funds, if voters approve the override.

Without funds from the proposed override, Mr. Kleckner had to propose substantial cutbacks in the municipal programs and agencies. Rental assistance from the Council on Aging would suffer a 25 percent cut, as would part-time Library assistants. Vacant positions in the Police Department and Fire Department would go unfilled. Park ranger, gardener and laborer positions in Public Works would be eliminated, reducing services. Several older vehicles would not be replaced. The Health Department would lose its day-care center inspectors and trim its contribution to Brookline Mental Health by 25 percent.

If voters approve the proposed tax override next May, these cuts would be restored, costing an estimated $0.682 million per year from the proposed $7.665 million per year in override funding. Left unsaid: Public Schools of Brookline has a more difficult problem to solve. If voters reject the proposed override, there will be $6.983 million per year less in funding that could support school programs and departments.

– Beacon staff, Brookline, MA, February 21, 2015


Brookline municipal agency and program reductions, FY2016, without tax override, February 17, 2015

Melvin Kleckner, Summary of Brookline FY2016 financial plan, Town of Brookline, MA, February 17, 2015

Financial Plan, FY2016, Town of Brookline, MA (15 MB)

Board of Selectmen: $7.665 million tax override, Brookline Beacon, February 12, 2015

Craig Bolon, Public schools: decoding a tax override, Brookline Beacon, January 7, 2015

Zoning Board of Appeals: Hancock Village 40B conditions, Brookline Beacon, January 6, 2015

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B, Brookline Beacon, September 9, 2014

Zoning Board of Appeals: Chapter 40B project at Hancock Village, Brookline Beacon, June 20, 2014

Judith Leichtner, Comments to Brookline Zoning Board of Appeals on proposed chapter 40B development at Hancock Village, September 8, 2014

Brock Parker, Developer gets green light to pursue a 40B project in Brookline, Boston Globe, October 24, 2013

Transportation Board: Brookline Place parking and permit moratorium

A regular meeting of the Transportation Board on Tuesday, January 20, started at 7:00 pm in the first-floor north meeting room at Town Hall, with all board members except Ali Tali present. The board reviewed plans for taxi stands and for parking on Pearl St. and River Rd, near the forthcoming Brookline Place redevelopment, and it affirmed town-wide restrictions on special parking permits.

At this fairly well attended meeting were Todd Kirrane, the transportation administrator, chair Linda Hamlin and member Mark Zarrillo of the Planning Board, chair Cynthia Snow and member John Dempsey of the Bicycle Advisory Committee, John Bassett, Antonia Bellavista, Edith Brickman and Arlene Mattison, members of the Brookline Place design advisory team, Capt. Michael Gropman of the Police Department, and several residents and business owners near the Brookline Place area.

Parking near Brookline Place: George Cole of Stantec Consulting presented parking proposals for the Brookline Place Redevelopment on behalf of Boston Children’s Hospital, the developer. He was assisted by Robert “Robbie” Burgess of Vanasse Hangen Brustlin of Watertown, transportation consultants, by Timothy “Tim” Talun of Elkus Manfredi Architects and by Brian Chou of Mikyoung Kim Design, landscape designers.

The project developers have proposed a parking reconfiguration that moves a taxi stand near the bend of Pearl St., opposite the Brookline Village Green Line stop, across the street and adjacent to the stop, leaving the part of the street that will be adjacent to a lawn unobstructed. To compensate for loss of spaces, they propose so-called “reverse angle parking” along part of Pearl St.–an unusual approach, backing in to park. They cited a few examples, the closest on Bow St. near Union Sq. in Somerville.

Some board members had not kept up with the development and were surprised at the proposal. Gustaaf Driessen asked, “We don’t get taxi space back as parking?” Yes, that’s right. However, Mr. Cole conceded, “The reaction to angle parking has not been wholly positive.” Mr. Burgess explained the “reverse angle parking” scheme, and board members asked whether Pearl St. would need to become one-way, like Bow St. in Somerville. The consensus seemed to be that Pearl St. should remain two-way.

The discussion veered into bicycle facilities. Some in the audience, including Ann Lusk of Hart St., called for a “cycle track” through the area–meaning a pair of fully separated bicycle paths. No cost was cited, but those can run more than a million dollars per roadway mile. Mr. Burgess said Pearl St. was not wide enough. One board member doubted the contribution to a transportation network, since Pearl St. is a loop that does not form part of a thoroughfare.

Capt. Gropman said the proposed plan for Pearl St. amounted to reducing on-street parking from 55 to 41 spaces and was likely to create problems. He asked about moving the taxi stand to Station St., on the other side of the MBTA stop. Mr. Kirrane objected that much of the demand for taxis would be coming from the new development. Ms. Hamlin said the Planning Board and its design advisory team favored the developer’s plan for the taxi stand, noting that the development’s new parking garage would offer short-term spaces to the public.

There was extended discussion about locations of stops for the three MBTA bus routes–Nos. 60, 65 and 66–that pass through the intersection of Route 9-Washington St. with Pearl St. Passengers of buses westbound on Route 9 have good access to the area from the bus stop just west of Pearl St. next to 10 Brookline Place, formerly Hearthstone Plaza. Passengers going the other direction encounter problems, especially for the No. 66 bus continuing onto Huntington Ave. The other two buses travel on Brookline Ave. There were no resolutions to the issues; the board took no votes.

River Road, bicycles and parking: Running about 40 minutes late, the board took up the topic of a bicycle path parallel to the Riverway Bridge across Route 9 at the Boston and Brookline border. Mr. Kirrane and Ms. Snow described the plan. It would connect paths in Riverway Park to the north, along the Muddy River, and in Olmsted Park to the south, toward Leverett Pond. Bicyclists must now cross at intersections with poor visibility and signage and with heavy traffic.

Board chair Joshua Safer noted that the plan was “rejiggering our priorities,” apparently meaning in favor of parkway bicycle paths instead of street-oriented bicycle lanes. Mr. Kirrane described a target of opportunity, saying that Erin Gallentine, Brookline’s director of parks and open space, “got a $1 million grant from DCR (the state Department of Conservation and Recreation) that includes the project this year, to construct it this summer.” Left unsaid: with a change from the Patrick to the Baker administration, the grant might be withdrawn if it were not promptly applied.

As submitted to DCR, the plan reconfigures some existing bicycle paths and some Riverway access ramps, adding colored bands marking bicycle crossings. A point of contention is that a bicycle path needs to be built along the southeast side of River Rd., where there is not enough space near the intersection with the Riverway access ramps. Mr. Kirrane said part of the River Road right-of-way was needed, removing up to ten parking spaces.

Neighbors and nearby business operators objected. Ms. Lusk of Hart St. was “bothered by the ‘fast track’ process, omitting public comment” and by “dangerous crossings across…ramps.” The owner of Brookline Foreign Motors said, “Our customers need the spaces.” Ashley Goodwin, the owner of Shambala Center on River Rd., said, “Parking is a struggle for all of us on that little island.”

Ms. Mattison of the Brookline Place design advisory team supported the plan, saying it was “reclaiming the area to the Emerald Necklace“–referring to a phrase from landscape architect Frederick Olmsted, Sr., for the 1,100-acre Boston park system bordering the Charles River and Muddy River. After extended discussion, the board voted to create a five-space no-parking zone on River Rd. to accommodate the proposed new bicycle path.

Parking permit moratorium: Revisiting special parking permits for School Department employees and programs, the Transportation Board affirmed a moratorium. Long-simmering controversies over the impacts on neighborhoods reignited after a recent application for about 50 new permits to be used near Temples Ohabei Shalom and Emeth by pre-kindergarten teachers, administrators and support staff.

The board voted to approve letters to be sent by the chair, Dr. Safer, to the chairs of the School Committee, Planning Board and Zoning Board of Appeals, advising them of Transportation Board policy. Permits now in effect will continue through the current school year.

– Beacon staff, Brookline, MA, February 1, 2015


Sustainable parking and permit moratorium, Brookline Transportation Board, January 30, 2015

Planning Board: Brookline Place redevelopment, Brookline Beacon, January 23, 2015

Pre-kindergarten: parking disputes, Brookline Beacon, December 31, 2014

Reverse angle parking on Bow St., City of Somerville, MA, 2012

Olmsted, Olmsted & Eliot, Map, Park System from Common to Franklin Park, City of Boston, MA, 1894

Planning Board: Brookline Place redevelopment

A weekly meeting of the Planning Board on Thursday, January 22, started at 7:30 pm in the northern first-floor meeting room at Town Hall. The agenda was a two-family conversion on Babcock St. and the board’s formal review of plans for Brookline Place redevelopment, being proposed by Children’s Hospital, the property owner. Lara Curtis Hayes, a senior planner in the Department of Planning and Community Development, and Polly Selkoe, the assistant director for regulatory planning, presented the cases.

Children’s Hospital was represented by Charles Weinstein, vice president for planning and development, by Sam Norod and Tim Talun of Elkus Manfredi Architects, by Mikyoung Kim of Mikyoung Kim Design, landscape architects, by Skye Levin of Howard/Stein-Hudson, traffic engineers, and by George Cole of Stantec Consulting. Developers for Brookline Place had held a series of six meetings over last summer and fall with a design advisory team appointed by the Planning Board, including board member Mark Zarillo and Linda Hamlin, the board’s chair.

Members of the public–only four–were outnumbered by developer representatives and Brookline staff, including Kara Brewton, the economic development director. Rather than indicating lack of interest, slim attendance more likely reflected satisfaction with the project and its designs, negotiated with public input and participation.

BrooklinePlaceAerialFromNw20141212

Source: Town of Brookline, MA, from Children’s Hospital

Building a plan: The rendering shown is an aerial perspective from around 2,000 feet above Town Hall on Washington St. showing the Brook House in the background and the existing 10 Brookline Place, formerly Hearthstone Plaza, to the right. The 2-story former Water Department near Brookline Ave.–now an early-education and day-care center–is hidden in this view by offices at 1 Brookline Place.

While the main outlines of the project had been explained to town meeting last May, when it approved zoning changes, the building shapes and appearances and the landscaping developed during extended reviews. Plans call for removing two low-rise structures now at 2 Brookline Place and the adjacent 4 Brookline Place, replacing them with an 8-story office tower, and adding a 6-story wing, toward Washington St., to the existing two wings of 6-story offices at 1 Brookline Place. A 3-story garage is to be replaced by a larger, 5-story garage.

Current plans most nearly reflect a “boulevard concept” presented last summer. They feature a lawn across Pearl St. from the MBTA Green Line stop and many other landscaping elements. At the most recent meeting of the Transportation Board, those board members generally seemed to favor leaving views of the lawn unobstructed from Brookline Village by moving a taxi stand across the street, beside the Green Line stop.

Planning a building: Planning Board members took note of public improvements to be funded by Children’s Hospital under a development agreement with Brookline. They include removal of a long-disused pedestrian overpass across Route 9, built about 40 years ago and closed up after it harbored muggings and vandalism. Funds are to be contributed for street reconfigurations and improvements, including a traffic signal at Brookline Ave. and Pearl St. and signal coordination for Route 9 and nearby streets.

Planning Board members seemed as interested as Transportation Board members had been in traffic issues, but they were not able to make much headway during a meeting filled with other concerns. Ms. Hamlin noted that so far there had been little involvement by Station St. business operators, on the other side of the MBTA stop. The Planning Board is to revisit those issues soon, perhaps at its next meeting.

Screening along the Pearl St. face of the new garage and on the face adjacent to the lawn attracted interest. Mr. Norod, the architect, said that designs were preliminary and might change. The “framing” along Pearl St. and the “staircase” pattern adjacent to the lawn, he said, are intended to be “visually interesting.” The paths across the property will be open to the public and will be maintained by the building owner. The ground floor of the 8-story tower will house restaurants and retail shops.

Not shown in the rendering are large signs proposed for the roof of the 8-story tower and in other places, advertising Children’s Hospital. They were on the agenda to be considered for special zoning permits. Other permits are needed for parking, setbacks and projecting signage and for design review of a major-impact development. Participation by the design advisory team was an element of design review. Jonathan Simpson, a Planning Board member, asked about shadow studies. Ms. Kim said some studies had been done, but she spoke only about shadows inside the Brookline Place property and showed no studies at the meeting.

According to Mr. Weinstein and Mr. Norod, Children’s plans to develop in stages: first removing the low-rise buildings at and near 2 Brookline Place, then putting up 3-level, outdoor automobile stackers there to house vehicles temporarily that now use the current garage. Afterward, the current garage is to be removed and the new one built, and finally the new 8-story office tower at 2 Brookline Place and 6-story wing at 1 Brookline Place will go up. The Planning Board recommended approval of permits to the Zoning Board of Appeals but is seeking conditions, including review by Planning of final designs.

– Beacon staff, Brookline, MA, January 23, 2015


Two Brookline Place / Children’s Hospital, Town of Brookline, MA, January, 2015

Planning Board: offices and parking at Brookline Place, Brookline Beacon, April 11, 2014

Brookline Place project: three concept plans, Brookline Beacon, September 16, 2014

Craig Bolon, Gateway East: an idea whose time has gone, Brookline Beacon, October 17, 2014

Pre-kindergarten: parking disputes

Brookline has provided pre-kindergarten classes in much the current forms since the school year starting in 2001, on a voluntary basis. Although administered by Public Schools of Brookline, those classes are mainly paid for by parents through tuitions. Enrollment grew in stages from school and fiscal years 2002 through 2006. During school and fiscal years 2007 through 2015, enrollment has remained in a range of 250 to 280 students aged about 3 and 4.

BrooklinePreSchoolCensus2001to2015

Source: Massachusetts Department of Education

Ordinary enrollment in Brookline public schools is far larger. The current total for kindergarten through third grade is 2,635, as reported to the state last October 1. On average, only about 20 percent of those students could have attended Brookline’s pre-kindergarten classes for two years. The Brookline Early Education Program (sometimes abbreviated as BEEP) publishes no reference information online about student populations, such as proportions of students attending for one year or for two years.

Sites and trends: Pre-kindergarten has operated at twelve sites in Brookline, of which seven are currently active. There were never more than ten sites active during any one year. Of the twelve, eight are Brookline’s elementary schools, two are other public buildings and two are synagogues. During the Walsh administration, in 2001, the current era of Brookline pre-kindergarten began at eight elementary schools.

Small student populations at each school made 2001-2002 operations inefficient and hard to manage. For the next year, classes were consolidated into four elementary schools. Subsequently, other sites were gradually opened or reopened. Rooms at Brookline High School and at the Lynch Recreation Center–the historic Winthrop School–began to be used in 2003 and continue in use today. By 2006-2007, pre-kindergarten grew to about its current number of students and operated from ten sites, including eight elementary schools.

Brookline pre-kindergarten census, October 1, by fiscal years and sites

Site 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Total 36 210 207 208 242 253 260 249 255 262 277 276 259 264
Baker 7 45 17 15 17 16 16 14 16 15 16 16 0 0
Devotion 2 0 0 0 16 16 16 16 14 16 17 0 0 0
Driscoll 9 60 34 38 32 41 37 37 40 39 42 37 35 16
Heath 4 0 15 16 18 14 15 15 17 16 17 30 32 31
Lawrence 2 0 0 14 33 29 31 30 29 16 15 0 0 0
Lincoln 5 53 38 32 31 31 33 33 33 31 31 18 0 0
Pierce 2 0 0 0 0 15 16 13 14 16 17 17 0 0
Runkle 5 52 22 20 16 17 16 16 14 13 13 15 16 14
High School 0 0 15 11 15 15 16 17 16 34 31 34 30 14
Lynch 0 0 66 62 64 59 64 58 62 66 78 68 66 63
Beacon 0 0 0 0 0 0 0 0 0 0 0 41 52 62
Putterham 0 0 0 0 0 0 0 0 0 0 0 0 28 64

Source: Massachusetts Department of Education

Responding to the need for school space, because of steadily growing student populations, starting in 2012 Public Schools of Brookline began to move pre-kindergarten classes out of elementary schools and into leased space–first at Temple Ohabei Shalom on Beacon St. (the “Beacon” site) and then in 2013 at Temple Emeth on Grove St. (the “Putterham” site). Pre-kindergarten classes no longer operate at Baker, Devotion, Lawrence, Lincoln and Pierce Schools.

Parking permits: At its December 22 meeting, the Transportation Board considered a request from Brookline Early Education Program for about 50 special parking permits to be used near Temples Ohabei Shalom and Emeth by pre-kindergarten teachers, administrators and support staff. Two-thirds of those were for the Putterham site, where BEEP administrators and support staff have been relocated. That proved controversial.

Led by precinct 16 town meeting member Regina Frawley, residents living near Putterham Circle (also called Ryan Circle) protested the heavy daytime concentration of parking around the site. It emerged that seven permits had already been issued by Todd Kirrane, Brookline’s transportation administrator, without public notice or board approval. There had been no notice to town meeting members and no neighborhood review meetings.

Despite widely touted commitments to public transportation and to so-called “transportation demand management,” neither the Transportation Board nor Public Schools of Brookline had prepared plans to reduce parking demand through uses of public transportation, ride-sharing or shuttle services. Residents near the Beacon St. and Kent St. intersection were also incensed. There is an MBTA Green Line stop adjacent to Temple Ohabei Shalom.

By a majority vote, Transportation Board members approved permits on what they called a “trial” basis, to be reviewed when the permits expire next July. Board members Scott Englander and Pamela Zelnick were opposed.

– Beacon staff, Brookline, MA, December 31, 2014


School enrollment: no room in the inn, Brookline Beacon, December 26, 2014

Brookline school census reports for fiscal years 1994 through 2015, Massachusetts Department of Education, 2014

Medical marijuana in Brookline: will there be a site?

Article 12 at the November town meeting sought to exclude more Brookline territory from becoming sites for medical marijuana dispensaries, but the town meeting rejected all motions under that article. Zoning continues unchanged from a plan voted in November, 2013, and no new studies were authorized. As required under state laws, Brookline has left a few areas of the town outside its exclusion zones, providing potentially eligible sites under local laws.

BrooklineExclusionZones

Source: Brookline Department of Planning and Community Development

On the map, Brookline’s eligible areas in general business zones are colored black. There is also an industrial zone, shown as hatched, near the waste transfer station off Newton St. The map prepared by the planning staff marks excluded areas, within 500 feet of both public and private schools. They are colored gray.

Since Brookline has met its obligations through zoning, state regulations do not apply. However, the federal government, acting through district attorneys, may step in. In some of the later discussions over Article 12, proponents claimed the federal government would impose 1,000-foot exclusion zones around parks, playgrounds and public housing sites. The map shows a circle as an example, with a radius equivalent to 1,000 feet.

The only mention of those arguments in town meeting documents was a brief statement from the Advisory Committee in the final warrant report. [Article 12, supplement 1, pp. 5-6] It drew no conclusions and cited no documentation, describing federal regulations as a business risk for dispensary operators.

New exclusion zones: If the federal government were to act as the Article 12 proponents appear to hope it will, 1,000-foot exclusion zones might block all eligible sites under current Brookline zoning:

1. The zone along Commonwealth Ave. near St. Paul St. might be blocked from Knyvet Square, the Egmont St. veterans housing and Trustman Apartments.

2. The Coolidge Corner zone along Beacon and Harvard Sts. might be blocked from the Devotion School and its playgrounds, the Beth Zion Hebrew school, Griggs Park and St. Mark’s Park.

3. The Brookline Village zone along Washington and Boylston Sts. might be blocked from the old Lincoln School, Lynch Recreation Center, Emerson Park, Boylston St. Playground, Juniper St. Playground and Walnut St. Apartments.

4. The zone along Boylston and Hammond Sts. might be blocked from the Soule Recreation Center, Brimmer and May School, Beaver Country Day School and Pine Manor College.

5. The industrial zone near the waste transfer station might be blocked from Skyline Park and the Lost Pond Reservation.

Federal exclusions: As noted in a recent Boston Globe article, federal powers in these matters are exercised by the U.S. Department of Justice, acting through district attorneys. On August 29, 2013, Deputy Attorney General James M. Cole issued a “guidance” memorandum to U.S. attorneys.

When there is a “tightly regulated market in which revenues are tracked,” wrote Mr. Cole, “state and local law enforcement and regulatory bodies” should govern. Where state laws authorized medical marijuana, “it was likely not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals or on their individual caregivers.”

“The primary question in all cases,” Mr. Cole stated, is to evaluate federal “enforcement priorities.” They aim at preventing:
• distribution of marijuana to minors
• revenue from the sale of marijuana from going to criminal enterprises….
• diversion of marijuana from states where it is legal…to other states
• state-authorized…activity from being used [to] cover…illegal activity
• violence and the use of firearms….
• drugged driving and…other adverse public health consequences….
• growing of marijuana on public lands….
• marijuana possession or use on federal property.

Contrary to impressions left by Article 12 proponents, the 2013 “guidance” memorandum does not cite or refer to a so-called “schoolyard statute” or any other specific federal law, and it does not recommend any type of exclusion zone. Instead, it says jurisdictions with “strong and effective regulatory and enforcement systems” may “affirmatively address…priorities.”

– Craig Bolon, Brookline, MA, December 7, 2014


Shelley Murphy, Kay Lazar and Andrew Ba Tran, U.S. asked to block cannabis clinics near Massachusetts schools, Boston Globe, November 21, 2014

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries, Brookline Beacon, November 18, 2014

Warrant report, November 18, 2014, town meeting, Town of Brookline, MA

James M. Cole, Memorandum for all United States attorneys, U.S. Department of Justice, August 29, 2013

Zoning Board of Appeals: ready to approve Hancock Village 40B

The Zoning Board of Appeals held a continued hearing on Monday, December 1, over a proposed Chapter 40B housing project at the site of Hancock Village, along Independence Drive in the Chestnut Hill section of south Brookline. Like most previous sessions, it took place in the sixth-floor meeting room at Town Hall, starting at 7 pm. At this session, the board did not invite or hear comments from the public.

Ready to approve: After negotiating about a ten percent reduction from a previously proposed amount of parking, the three regular Appeals board members–Jesse Geller, Christopher Hussey and Jonathan Book–indicated they were ready to approve the project. Alternate member Mark Zuroff continued to oppose it. Another session scheduled for 7 pm at Town Hall on Monday, December 8, could become the final one.

Developer Chestnut Hill Realty was represented by Marc Levin, by Steven Schwartz of Goulston & Storrs and by landscape architect Joseph Geller of Stantec Consulting in Boston, a former chair of the Board of Selectmen. Present to assist Appeals were Edith Netter of Waltham, Kathy Murphy of Krokidas & Bluestein and Maria Morelli, a Planning Department consultant.

Fire safety: Paul Ford, Brookline’s fire chief, again reviewed fire safety, repeating some of his previous concerns. He said Brookline could not provide “full first alarm” service to the project within eight minutes, as specified by national standards. At this session, he also focused on time needed to disengage equipment, in order to answer other calls. He said he still hoped to see a connection to VFW Parkway.

According to Mr. Ford, access to the proposed large building at an extension of Asheville Rd. is marginal but acceptable. However, without further changes, he said, it would still be difficult to disengage equipment from parts of the so-called “east side” of Hancock Village, between Independence Drive and VFW Parkway. Fire trucks would have to be backed out of blind locations near the proposed large building and some of the smaller new buildings. With access to VFW Parkway, Mr. Ford said, his concerns would be reduced.

The developer’s representatives agreed to improve access near an extension of Grassmere Rd. onto Thornton Rd., now interrupted by curbing. They will connect the roads, add a service gate and add a lane connecting with one of the new parking lots to the west of Russett Rd. Brookline firefighters will be able to open the service gate. They also committed to “work with the town” to obtain vehicle access to VFW Parkway west of Russett Rd.

According to Mr. Ford, commitments by the developer to install sprinklers in all the new buildings will help. Asked about safety in existing Hancock Village buildings, Daniel Bennett, the building commissioner, said Brookline could not require changes unless those buildings were directly involved in a major construction or renovation project. Simply being adjacent to a major development would not trigger reviews.

Parking: Board members Christopher Hussey and Jonathan Book continued to object to 323 new parking spaces, proposed at the previous session, as “excessive.” Mr. Hussey continued to favor an average of 1.5 new parking spaces per new apartment in the area to be accessed via Asheville Rd. He said that would reduce new parking by 21 spaces.

Mr. Book sought to apply the 1.5 ratio to the entire project. He said that would reduce new parking by 57 spaces. Speaking for the developer, Mr. Geller of Stantec objected that reducing on-site parking would impact nearby neighborhoods, saying, “Cars will find other places to go.” Mr. Levin continued to object that providing less new parking than anticipated new demand could compromise the project. He said board members did not seem to have considered about 25 spaces to be reserved for visitors and about 15 spaces for disability access.

Mr. Levin said parking appropriate in urban Brookline, with its Green Line rapid transit, did not suit the suburban areas around Hancock Village. Mr. Schwartz said the proposed amount of new parking was in line with Brookline’s zoning requirements. (It was actually somewhat less.) He recalled that a town meeting last year had considered reducing zoning standards for parking but rejected the proposal.

Negotiations ensued among Appeals board members and between them and the developer’s representatives. During the discussion, Mr. Hussey again voiced resistance to retaining any of the fourth floor of apartments in the proposed large building, but then he backed away, saying, “My brothers have squeezed me in.” Mr. Book continued to press for reduction of new parking by more than 21 spaces.

Making a deal: After about an hour and a half of discussion, Mr. Book proposed a further reduction of 10 more spaces, beyond the 21 sought by Mr. Hussey, with a condition that those spaces could be included in the project if the developer obtained full access to VFW Parkway. After a few minutes more discussion, the developer’s representatives agreed to that change.

Mr. Schwartz said Chestnut Hill Realty would return to the next session with a full plan for 12 new buildings with 161 apartments, 333 bedrooms and 292 new parking spaces. This session of the Appeals hearing gave no consideration to numbers of new residents or potential impacts on town services–particularly 200 or more added students atttending Brookline schools.

With a recently reported 824 students, the nearby Baker School now has the largest population of Brookline’s elementary schools and is well beyond rated capacity. Brookline has no plan to cope with 200 or more added students coming from Hancock Village. Among its few obvious options might be a major addition to Baker School or some use of the former Baldwin School or its ten unrestricted acres of grounds on Heath St. at Woodland Rd.

– Beacon staff, Brookline, MA, December 2, 2014


Zoning Board of Appeals: Hancock Village 40B, parking and traffic, Brookline Beacon, November 25, 2014

Zoning Board of Appeals: Hancock Village 40B, safety concerns, Brookline Beacon, November 13, 2014

Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

2014 fall town meeting: electronic voting

The 2014 fall town meeting held four electronic votes: two at the first session November 18 and two at the second and final session November 19. Problems previously cropped up at the 2014 annual town meeting in May and June. There were more discrepancies in records from the 2014 fall town meeting in November.

This time there were no attempts to use the voting system for “informal” counting. However, despite commitments to provide results the day following a session, no results were posted on Brookline’s municipal Web site until the afternoon of November 24, five days after the second and final session.

Comparisons of records: Electronic voting results were displayed at town meeting on a large projection screen. They were captured on video recordings of both the first session and second session by Brookline Interactive Group, along with declarations of results for official records by the moderator, Edward “Sandy” Gadsby. The video recordings are available to the public from the Web site of Brookline Interactive.

At the first session, Mr. Gadsby declared the vote on a referral motion proposed under Article 12: 65 yes and 138 no, agreeing with totals displayed to town meeting on the large projection screen. The totals from results posted on the municipal Web site were instead: 65 yes and 141 no.

At the first session, Mr. Gadsby declared the vote on a zoning change proposed under Article 12 (the main motion): 60 yes and 146 no, agreeing with totals displayed to town meeting on the large projection screen. The totals from results posted on the municipal Web site were instead: 60 yes and 147 no.

At the second session, Mr. Gadsby declared the vote on a resolution proposed under Article 15: 110 yes and 83 no, agreeing with totals displayed to town meeting on the large projection screen. The totals from results posted on the municipal Web site were instead: 111 yes and 83 no.

At the second session, Mr. Gadsby declared the vote on an alternative resolution proposed by the Advisory Committee under Article 19: 20 yes and 145 no. So far, records of this vote have not appeared on the municipal Web site at all.

Article and motion As it was Declared As it was Posted
  Yes No Yes No
Article 12, referral 65 138 65 141
Article 12, main vote 60 146 60 147
Article 15, resolution 110 83 111 83
Article 19, alternative 20 145 unknown unknown

Unreliable results: After practice with the current electronic voting system at four previous town meetings, at the 2014 fall town meeting Brookline again failed to achieve reliable results. Discrepancies are clear on each of the three electronic votes reported. Unexplained changes to records had apparently been made, after town meeting, in computer files purporting to represent town meeting results. Those might have been connected with unexplained delays of five and six days in posting records on the municipal Web site.

None of the discrepancies was large enough to affect an action at the recent town meeting. That may be luck. Close votes at past town meetings could have been clouded. At a town meeting in 1972, for example, the late Sumner Kaplan–a former chair of the Board of Selectmen, state representative and district judge–proposed to combine the police and fire departments into a public safety department. The controversial proposal failed on a tie vote. A single-vote discrepancy could have clouded that result.

If Brookline had a reliable electronic voting system, allowing town meeting members to change recorded positions after a vote has been declared would be a highly dubious practice. It opens an avenue through which town meeting results can become clouded after a town meeting is over, with potentials for protracted disputes or lawsuits over close votes. Brookline does not have a reliable electronic voting system. A week after the 2014 fall town meeting, one of the four electronic votes has not even been reported, and the results for the three reported votes disagree with the moderator’s declarations at town meeting.

Votes shown as “absent”: Of 744 individual votes tallied, 115 were “absent.” Some could be town meeting members who had checked in but did not cast votes. The average number of “absent” votes was about 7 per precinct. Absentees were most prevalent in Precinct 14, with 13 “absent” votes, and in Precinct 15, with 16 “absent” votes.

– Craig Bolon, Brookline, MA, November 27, 2014


Town of Brookline, November 18, 2014, electronic vote results, dated November 24, 2014

Brookline Interactive Group, 2014 fall town meeting, second session, November 19, 2014

Brookline Interactive Group, 2014 fall town meeting, first session, November 18, 2014

Fall town meeting: tobacco controls, resolution derby, Brookline Beacon, November 20, 2014

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries, Brookline Beacon, November 18, 2014

2014 annual town meeting: electronic voting issues, Brookline Beacon, June 17, 2014


Brookline 2014 fall town meeting, electronic votes posted as of November 24, 2014

Vote Day Article Question voted
1 11/18 12 Zoning for medical marijuana dispensaries, referral
2 11/18 12 Zoning for medical marijuana dispensaries, restrict eligible areas
3 11/19 15 Repeal of taxi medallions, adopt resolution instead

Y yes, N no, P present, A absent

Pct. Given name Family name Street address 1 2 3
01 Cathleen Cavell 27 Monmouth Ct A N Y
01 Ernest Cook 4 Euston St A A A
01 Jonathan Cutler 12 Churchill St A A A
01 Elijah Ercolino 2 Euston St N N Y
01 James Franco 126 Amory St N N N
01 Richard Garver 23 Monmouth Ct N N Y
01 Neil Gordon 87 Ivy St N N Y
01 Helen Herman 1126 Beacon St Y N Y
01 Carol Hillman 287 Kent St N N Y
01 Sean Lynn-Jones 53 Monmouth St Y N N
01 Alexandra Metral 42 Beech Rd Y Y Y
01 Paul Moghtader 16 Chilton St A A A
01 Bettina Neuefeind 20 Amory St Y Y N
01 Robert Schram 47 Monmouth St N N N
01 Katharine Silbaugh 68 Amory St Y Y N
02 Livia Kahl 200 Saint Paul St A Y A
02 Judith Kidd 76 Parkman St N N Y
02 Lisa Liss 74 Parkman St N N Y
02 Rita McNally 230 Saint Paul St N N A
02 Adam Mitchell 87 Browne St N N Y
02 Barbara O’Brien 81 Egmont St P A A
02 Gwen Ossenfort 87 Browne St N N N
02 Linda Pehlke 48 Browne St N N Y
02 Susan Roberts 69 Green St Y Y N
02 Diana Spiegel 39 Stetson St N N N
02 Stanley Spiegel 39 Stetson St N N N
02 Eunice White 135 Pleasant St N N Y
02 Bruce Wolff 50 Pleasant St N Y N
02 Ana Vera Wynne 60 Browne St Y Y Y
02 Richard Wynne 60 Browne St Y N Y
03 Harry Bohrs 97 Toxteth St N N N
03 Patricia Connors 80 Francis St N N Y
03 Mary Dewart 90 Toxteth St Y P Y
03 Murray Dewart 90 Toxteth St Y Y Y
03 Dennis Doughty 57 Perry St N N Y
03 Kathe Geist 551 Brookline Ave N Y Y
03 Jane Gilman 140A Sewall Ave Y Y Y
03 Heather Hamilton 75 Longwood Ave A A Y
03 Gary Jones 70 Francis St N N A
03 Laurence Koff 20 Harrison St Y N N
03 Donald Leka 140A Sewall Ave N N Y
03 Kathleen Scanlon 71 Francis St N Y N
03 Frank Steinfield 160 Aspiwall Ave N N N
03 Rebecca Stone 71 Toxteth St N N N
03 Jean Stringham 50 Longwood Ave Y Y Y
04 Sarah Axelrod 41 Bowker St N N Y
04 Eric Berke 77 Pond Ave Y N Y
04 Edith Brickman 33 Pond Ave N N A
04 Alan Christ 117 Kent St N N N
04 Ingrid Cooper 30 Brook St N N P
04 Anne Covert 33 Pond Ave N N N
04 Frank Farlow 8 Bowker St N N Y
04 Martha Farlow 8 Bowker St N N Y
04 Nadine Gerdts 56 Linden Pl Y Y Y
04 John Mulhane 45 Brook St N N N
04 Mariah Nobrega 33 Bowker St Y Y Y
04 Joseph Robinson 41 Brook St N N Y
04 Marjorie Siegel 59 Linden St Y Y P
04 Virginia Smith 12 Linden St N N Y
04 Robert Volk 45 Linden St N N Y
05 Richard Allen 158 Cypress St N Y N
05 Robert Daves 9 Upland Rd N N Y
05 Dennis DeWitt 94 Upland Rd N N Y
05 Michael Gunnuscio 302 Walnut St N N Y
05 Angela Hyatt 87 Walnut St Y Y Y
05 David Knight 5 Maple St Y Y N
05 Hugh Mattison 209 Pond Ave A N Y
05 Puja Mehta 50 Jamaica Rd Y N P
05 Randolph Meiklejohn 161 Cypress St Y Y A
05 Phyllis O’Leary 16 Jamaica Rd A A A
05 Andrew Olins 242 Walnut St Y Y A
05 William Reyelt 121 Chestnut St N N Y
05 Betsy Shure Gross 25 Edgehill Rd Y Y A
05 Claire Stampfer 50 Sargent Crossway Y Y Y
05 Lenore von Krusenstiern 302 Walnut St A A Y
06 Catherine Anderson 106 Davis Ave N N N
06 John Bassett 26 Searle Ave N N N
06 Jocina Becker 18 Elm St N N Y
06 Christopher Dempsey 43 Brington Rd N N Y
06 Brian Hochleutner 35 Elm St Y Y N
06 Sytske Humphrey 46 Gardner Rd N N N
06 Virginia LaPlante 58 Welland Rd N N Y
06 Merelice 22 White Pl Y Y Y
06 Ian Polumbaum 17 Blake Rd N N Y
06 Clinton Richmond 3 Greenough Cir N N Y
06 Ian Roffman 20 Searle Ave Y Y Y
06 Kim Smith 22 Brington Rd Y N Y
06 Ruthann Sneider 30 Perry St Y Y Y
06 Robert Sperber 21 Lowell Rd N N N
06 Thomas Vitolo 153 University Rd N N Y
07 Ellen Ball 441 Washington St A A A
07 Susan Cohen 23 Littell Rd Y Y Y
07 Susan Ellis 431 Washington St N N N
07 Ernest Frey 423 Washington St N N N
07 Phyllis Giller 69 Park St N N A
07 Elizabeth Goldstein 1501 Beacon St N N Y
07 Mark Gray 31 Harris St N N Y
07 Bernard Greene 25 Alton Ct N N N
07 Kelly Hardebeck 18 Littell Rd A A A
07 Jonathan Lewis 104 Harvard St N N A
07 Jonathan Margolis 49 Harvard Ave Y N Y
07 Christopher Oates 42 Saint Paul St N N Y
07 Sloan Sable 50 Harris St N N A
07 Rita Shon-Baker 10 Alton Ct Y Y Y
07 James Slayton 4 Auburn St N N N
08 Lauren Bernard 20 John St N Y A
08 Abigail Cox 18 Osborne Rd P N Y
08 Gina Crandell 117 Stedman St N N A
08 Franklin Friedman 71 Crowninshield Rd N N Y
08 David-Marc Goldstein 22 Osborne Rd N N Y
08 John Harris 41 Osborne Rd Y Y Y
08 Nancy Heller 40 Abbottsford Rd N N N
08 Anita Johnson 41 Osborne Rd N N Y
08 Edward Loechler 106 Beals St Y N Y
08 Jeanne Mansfield 43 Beals St N N Y
08 Robert Miller 19 Copley St N N Y
08 Barbara Scotto 26 Crowninshield Rd N N N
08 Lisamarie Sears 137 Fuller St N N N
08 Sara Stock 19 Abbottsford Rd A A A
08 Maura Toomey 102 Crowninshield Rd N N Y
09 Liza Brooks 36 Russell St N N A
09 Joseph Geller 221 Winchester St A A N
09 Paul Harris 111-B Centre St N P Y
09 Nathaniel Hinchey 19 Winchester St N N Y
09 Barr Jozwicki 183 Winchester St N N N
09 Joyce Jozwicki 183 Winchester St N N N
09 Pamela Katz 29 Columbia St N N Y
09 Julius Levine 40 Williams St A A A
09 Stanley Rabinovitz 117 Thorndike St Y N Y
09 Harriet Rosenstein 53 Centre St N N A
09 Martin Rosenthal 62 Columbia St N N Y
09 Charles Swartz 69 Centre St N N N
09 Dwaign Tyndal 60 Columbia St A A P
09 Judith Vanderkay 16 Columbia St N N Y
09 George White 143 Winchester St N N N
10 Carol Caro 1264 Beacon St N N Y
10 Francis Caro 1264 Beacon St N N Y
10 Sumner Chertok 80 Park St N N A
10 Jonathan Davis 125 Park St Y N Y
10 Linda Davis 125 Park St Y Y Y
10 Holly Deak 124 Park St N Y N
10 Stephan Gaehde 7 Griggs Ter A Y Y
10 Beth Jones 24 Griggs Rd A A A
10 David Micley 675 Washington St N N Y
10 Sharon Sandalow 1272 Beacon St N N N
10 Rachel Sandalow-Ash 1272 Beacon St A A A
10 Stanley Shuman 80 Park St N N N
10 Finn Skagestad 24 Griggs Ter A A Y
10 Alexandra Spingarn 40 Griggs Ter A A N
10 Naomi Sweitzer 14 Griggs Ter N N Y
11 Carrie Benedon 32 Summit Ave P P Y
11 Joseph Ditkoff 145 Mason Ter Y N Y
11 Shira Fischer 50 Summit Ave A A Y
11 Shanna Giora-Gorfajn 66 Winchester St Y N N
11 Jennifer Goldsmith 148 Jordan Rd Y Y N
11 Martha Gray 113 Summit Ave N N Y
11 Bobbie Knable 243 Mason Ter N N A
11 David Lescohier 50 Winchester St Y N N
11 Kenneth Lewis 232 Summit Ave Y N N
11 David Lowe 177 Mason Ter N N Y
11 Rebecca Mautner 12 York Ter Y Y A
11 Maryellen Moran 100 Winchester St N Y A
11 Carol Oldham 1496 Beacon St Y N Y
11 Brian Sheehan 296 Mason Ter Y Y Y
11 Karen Wenc 84 Summit Ave N N Y
12 Michael Burstein 50 Garrison Rd N N Y
12 Bruce Cohen 289 Tappan St N N Y
12 Lee Cooke-Childs 136 Rawson Rd N N Y
12 Chad Ellis 26 Chesham Rd Y Y Y
12 Harry Friedman 27 Claflin Rd Y Y Y
12 Jonathan Grand 120 Beaconsfield Rd N N N
12 Stefanie Greenfield 154 University Rd Y N N
12 Casey Hatchett 84 University Rd Y Y A
12 Amy Hummel 226 Clark Rd Y Y N
12 Jonathan Karon 124 Winthrop Rd A A A
12 David Klafter 63 Winthrop Rd N N Y
12 Mark Lowenstein 158 Winthrop Rd N N Y
12 Judy Meyers 75 Clinton Rd Y Y N
12 William Slotnick 118 Gardner Rd Y P A
12 Donald Weitzman 123 Buckminster Rd N N Y
13 Joanna Baker 1824 Beacon St Y N Y
13 Carla Benka 26 Circuit Rd N N N
13 Roger Blood 69 Cleveland Rd Y Y Y
13 Chris Chanyasulkit 16 Corey Rd A A P
13 John Doggett 8 Penniman Rd N N N
13 Jonathan Fine 57 Willow Cres N N Y
13 Andrew Fischer 21 Bartlett Cres N N Y
13 John Freeman 530 Clinton Rd N N Y
13 Francis Hoy 295 Reservoir Rd N N N
13 Ruth Kaplan 24 Spooner Rd A A A
13 Werner Lohe 25 Salisbury Rd N N Y
13 Paul Saner 462 Chestnut Hill Ave A A N
13 Lee Selwyn 285 Reservoir Rd N Y N
13 Barbara Senecal 345 Clinton Rd Y Y N
13 John VanScoyoc 307 Reservoir Rd N N N
14 Robert Basile 333 Heath St A A A
14 Clifford Brown 9 Hyslop Rd N N N
14 Linda Carlisle 233 Fisher Ave Y Y N
14 Gill Fishman 79 Holland Rd N Y A
14 Paula Friedman 170 Hyslop Rd N Y N
14 Deborah Goldberg 37 Hyslop Rd A A N
14 Georgia Johnson 80 Seaver St A A A
14 Fred Levitan 1731 Beacon St N N N
14 Roger Lipson 622 Chestnut Hill Ave A N N
14 Pamela Lodish 195 Fisher Ave N N N
14 Shaari Mittel 309 Buckminster Rd N N N
14 Kathleen O’Connell 59 Ackers Ave N N Y
14 Benjamin Rich 130 Buckminster Rd A A A
14 Lynda Roseman 49 Ackers Ave N N N
14 Sharon Schoffmann 6 Eliot St N N Y
15 Edwin Alexanderian 945 Hammond St A A A
15 Mariela Ames 25 Whitney St N Y A
15 Eileen Berger 112 Wolcott Rd Y Y Y
15 Michael Berger 112 Wolcott Rd N Y Y
15 Abby Coffin 255 Woodland Rd A A N
15 Jane Flanagan 854 Hammond St N N N
15 John Hall 85 Sears Rd A A A
15 Benedicte Hallowell 96 Sears Rd A A A
15 Janice Kahn 63 Craftsland Rd Y Y N
15 Ira Krepchin 63 Craftsland Rd N N N
15 Richard Nangle 854 Hammond St N Y A
15 David Pearlman 25 Goddard Cir N Y Y
15 James Rourke 679 Hammond St A A A
15 Ab Sadeghi-Nejad 125 Arlington Rd N N N
15 Cornelia van der Ziel 100 Wolcott Rd N N N
16 Saralynn Allaire 157 Bellingham Rd N Y Y
16 Robert Allen 296 Russett Rd N N N
16 Beverly Basile 902 W Roxbury Pkwy Y P A
16 John Basile 1040 W Roxdbury Pkwy A A A
16 Stephen Chiumenti 262 Russett Rd Y P N
16 Regina Frawley 366 Russett Rd N Y Y
16 Thomas Gallitano 146 Bonad Rd Y Y N
16 Scott Gladstone 383 Russett Rd N N N
16 Alisa Jonas 333 Russett Rd P Y Y
16 Judith Leichtner 121 Beverly Rd Y P N
16 William Pu 249 Beverly Rd N Y N
16 Joshua Safer 223 Bonad Rd Y Y N
16 Irene Scharf 250 Russett Rd N N A
16 Arthur Sneider 223 Beverly Rd N N N
16 Joyce Stavis-Zak 44 Intervale Rd Y N Y
AL Nancy Daly 161 Rawson Rd Y N N
AL Betsy DeWitt 94 Upland Rd N N N
AL Benjamin Franco 275 Cypress St N N Y
AL Edward Gadsby 60 Glen Rd P P P
AL Kenneth Goldstein 111 Holland Rd N N N
AL Hon. Frank Smizik 42 Russell St N N A
AL Patrick Ward 12 Edwin St P P P
AL Neil Wishinsky 20 Henry St N N N
             
      Yes 65 60 111
      No 141 147 83
      Present 6 9 7
      Absent 36 32 47

Fall town meeting: bylaw changes, no new limits on marijuana dispensaries

Brookline’s 2014 fall town meeting held its first session Tuesday, November 18, working through 12 of 20 articles. A second session looks likely to complete the agenda. It starts at 7:00 pm Wednesday, November 19, in the High School auditorium, reached via the side entrance at 91 Tappan St. A summary of actions at the November 18 session, by article number, follows:

  1. unpaid bills–none, no action
  2. collective bargaining–two contracts approved
  3. budget amendments–$0.04 million allocated
  4. Cleveland Circle sewer abandonment–approved
  5. Cleveland Circle sewer rights releases–approved
  6. Cleveland Circle authorizations–approved
  7. gender identity and expression–bylaw amendments approved
  8. disorderly conduct–bylaw amendments approved
  9. noise control–referral rejected–no action
10. commercial recycling–bylaw amendments approved
12. marijuana dispensary zoning–referral rejected–article defeated
14. naming for Hennessey Field–approved through a substitute article

The high point of the evening was rejection of all three motions on Article 12, after a long and vigorous debate about new limits on locations for medical marijuana dispensaries. Sponsors failed to get even one-third support for their zoning amendment, which needed two-thirds to pass. Because of the defeat, they will be unable to take the issue back to town meeting for two years.

Medical marijuana: Under Article 12, Gordon Bennett of Davis Ave. and other petitioners proposed more limits on locations of licensed dispensaries for medical marijuana–adding 500-foot exclusion zones around day-care centers and places where “children commonly congregate.” The Planning Department had analyzed the proposal and prepared a map for the effects of Article 12. [Supplement No. 1, pp. 8 ff.]

In November of last year, after voter approval the previous year of a state law to allow marijuana distribution for medical use, Brookline adopted zoning to allow state-regulated dispensaries in general business, office and industrial zones. They require a special permit from the Zoning Board of Appeals. The boundary of a site must be at least 500 feet from the boundary of any school property. A building proposed for a dispensary may not contain a day-care center.

Mainly because of the large number and wide dispersal of day-care centers, the Planning Department found no eligible location left in Brookline with Article 12. Currently there are four: along Commonwealth Ave. near Pleasant St., in the Coolidge Corner area on and near Beacon St., in Brookline Village near the intersection of Washington and Boylston Sts. and in the Chestnut Hill area near the intersection of Boylston and Hammond Sts.

Starting with the Zoning Bylaw Committee, six boards and committees reviewed Article 12, all coming out in opposition. Seeing that, some supporters of further limits, led by Precinct 11 town meeting member Jennifer Goldsmith, proposed to refer the article to a special committee to be appointed by the moderator, Edward “Sandy” Gadsby. That would have prevented defeat, keeping the issues in play for future actions.

Led by Precinct 5 town meeting member Angela Hyatt, other supporters of Article 12 moved to add to the referral motion a moratorium on dispensary licensing, for about six months. That was fairly clearly outside the scope of the article, which concerns itself only with zoning. However, Mr. Gadsby allowed it to be debated and voted on, saying only that it was of “doubtful legality.”

Arguments at town meeting largely repeated those at nine full-dress reviews held by boards and committees. One new element came from Mr. Bennett, who revealed that his mother had benefitted from treatment with medical marijuana during a long illness–supplied by “a friend.” Town meeting was not persuaded. After an hour and a half of debate, Ms. Hyatt’s amendment was defeated by a large majority in a show of hands. The referral motion went down by 65-138 and the main motion on the article by 60-146, both using electronically recorded votes.

Noise control: Under Article 9, former town meeting member Fred Lebow tried to weaken Brookline’s noise control bylaw. It was exactly the same article that was rejected at this year’s annual town meeting in a unanimous vote of No on a main motion–a very rare event. Nevertheless, the Board of Selectmen proposed to refer Article 9 to a new Noise Control Bylaw Committee. They had previously appointed Mr. Lebow to the Naming Committee, which he chaired this year.

Mr. Lebow, an acoustic engineer, has wanted to make life easier for fellow engineers by exempting them from night-time work–instead, estimating night-time noise by adjusting the amount of noise measured during the day. Mr. Lebow’s article would also have completely exempted any leafblower from noise regulation that is not handheld or carried in a backpack. It would have legitimized use of European noise meters, which are calibrated to different standards from the meters that are now authorized and in common use in the U.S. Previously, Mr. Lebow had disclosed that he owns a European meter.

Precinct 6 town meeting member Tommy Vitolo, whose air-strikes sank Mr. Lebow’s article last spring, returned to the fray: “The article still stinks.” A referral proposal, said Dr. Vitolo, “won’t solve a problem.” Real problems with noise control, he said, don’t need “tinkering with language…Are there sightings of landscapers thumbing through town bylaws? I doubt it.”

Precinct 13 town meeting member Andrew Fischer seemed equally incensed. Article 9, he said, was an attempt to narrow the meaning of “leafblowers,” exempting some from regulation. Precinct 3 town meeting member Jane Gilman objected to both the article and the motion to refer it, saying, “This article is not worthy of our time…It is simply going to delay other business.” The motion to refer failed by a big majority, on a show of hands. No other motion was offered, leaving “no action” as the disposition of Article 9.

Hennessey Fields: Under Article 14, the town meeting was asked to designate the playing fields at Cypress Playground as Hennessey Fields. Because of objections to a 10-year duration specified in Article 14, the Board of Selectmen proposed a substitute article in a synchronous special town meeting warrant, making the designation permanent.

Precinct 2 town meeting member Stanley Spiegel and Precinct 6 town meeting member Robert Sperber reviewed the contributions to Brookline by the late Thomas P. Hennessey, the only person to have chaired both the Board of Selectmen and the School Committee–serving between 1969 and 1995. He had been a star athlete at Brookline High School. Both his father and his mother had also served on the School Committee.

Betsy DeWitt of the Board of Selectmen recalled chairing the Advisory Committee in 1994–while Mr. Hennessey chaired the Board of Selectmen–and working with him to organize Brookline’s first tax override. He was particularly effective, she said, handling conflicts and building coalitions. The naming article from the synchronous town meeting was approved 208-1, with only Precinct 12 town meeting member Harry Friedman opposed.

Union contracts: Under Article 2, town meeting reviewed union contracts with police officers and emergency dispatchers. Those involved over two years of negotiations, making significant changes but providing salary adjustments generally comparable to the ones for other employees. According to Sandra DeBow, the human resources director, Brookline is replacing the former state “Quinn” program for education incentives with a program that recognizes a much wider range of achievements.

Daniel O’Leary, the police chief, described the long negotiations, exchanging a 5-percent “senior step” in pay after 20 years service in return for “changing management.” The unionized, civil-service jobs of police captains are being abolished, as the four current captains retire. They are being replaced by management positions called “deputy superintendents.” Town meeting approved, in unanimous votes.

Cleveland Circle: Under Articles 4, 5 and 6, town meeting approved legal abandonment of long unused sewer connections through the development site at the former Circle Cinema in Cleveland Circle, and it authorized the Board of Selectmen to enter into tax and development agreements–all by unanimous votes.

Kara Brewton, the town’s economic development director, mentioned a partnership for this project that had been announced in business journals Monday, November 17. National Development of Newton Lower Falls will work on senior housing, while Boston Development Group will pursue hotel, office and retail at Cleveland Circle. Only the latter are planned on the part of the development in Brookline.

Other business: Sponsor Alex Coleman of Tappan St. described the topics of Article 7, adding gender identity and gender expression to Brookline’s protected classes. Responding to a question from Precinct 6 town meeting member John Bassett, Dr. Coleman said gender identity means “one’s sense of who one is,” and gender expression means “how you show the world what your identity is.” Town meeting unanimously approved the bylaw changes.

Under Article 8, town meeting approved changes to Brookline’s disorderly conduct bylaw proposed by Mr. O’Leary, the police chief, and Patricia Correa, an associate town counsel. They say the changes are needed to comply with state and federal court rulings. Their revisions seem to expect any would-be offenders will be experts in Constitutional law, saying “disorderly” will “only relate to activities that involve no lawful exercise of a First Amendment right.”

Under Article 10, Precinct 4 town meeting member Alan Christ had convinced the Board of Selectmen and Advisory Committee to honor longstanding promises of commercial recycling. Mr. Christ came in next-to-last in the 2014 town election but got in for the year by caucus when another town meeting member resigned. Moving on swiftly, Mr. Christ salvaged his article from referral limbo. [Supplement No. 1, pp. 1 ff.]

In last-minute prestidigitation, the Board of Selectmen tweaked Mr. Christ’s proposal, providing a one-year delay, putting the onus on property owners rather than business operators and allowing “temporary waiver” of recycling “for cause”–whatever that might mean. Town meeting gave the amended article unanimous approval.

– Beacon staff, Brookline, MA, November 18, 2014


Warrant report, November 18, 2014, town meeting, Town of Brookline, MA

Board of Selectmen: interviews and warrant articles, Brookline Beacon, October 16, 2014

Zoning Bylaw Committee: no new restrictions on marijuana dispensaries, Brookline Beacon, October 28, 2014

Board of Selectmen: Muddy River project, school construction and warrant articles, Brookline Beacon, October 29, 2014

Advisory Committee: no new restrictions on marijuana dispensaries, Brookline Beacon, October 31, 2014

Zoning Board of Appeals: Hancock Village 40B, safety concerns

The Zoning Board of Appeals held a continued hearing on Wednesday, November 12, over a proposed Chapter 40B housing project at the site of Hancock Village, along Independence Drive in the Chestnut Hill section of south Brookline. Developer Chestnut Hill Realty was represented by Marc Levin and by Steven Schwartz of Goulston & Storrs. Present to assist Appeals were Edith Netter of Waltham, Kathy Murphy of Krokidas & Bluestein and Maria Morelli, a Planning Department consultant.

Key topics for this session were construction safety and fire safety, drawing a large audience of around 70, including several town officials and staff. At the most recent session on November 3, the developer jousted with the board over numbers of units in the project and visibility of the top floor of a large building proposed at an extension of Asheville Rd.

Plan changes: At this session, the developer was widely expected to present a best and final plan. What Mr. Levin described, however, were two minor changes to the previous configuration. A smaller building near Beverly Rd. was reduced to four rather than eight units, but three units were added to the fourth floor of the large building, which was reconfigured with sloping sides to give the impression of a hat-shaped roof from a distance.

The board did not seem much impressed by these changes. They leave the large building and 11 smaller buildings totalling 165 dwelling units, 338 bedrooms and 331 parking spaces. In discussions near the end of the meeting, members asked the developer to return with plans such that the large building’s fourth floor, if retained, is not visible from the property line across Asheville Rd. near Russett Rd. The next session is November 24.

Blasting: Brookline brought in a consultant on blasting, Andrew McKown of Beverly, a registered civil engineer. The plan for the large building places it over an outcrop of Roxbury puddingstone, of which the developer proposes to excavate up to about 20 feet by blasting. Mr. McKown said that could be carried out safely but made recommendations, including a review of plans, a 400-foot survey zone and crack-age monitoring for nearby structures. Mr. Levin said Chestnut Hill Realty would accept the recommendations.

Fire safety: Paul Ford, Brookline’s fire chief, reviewed fire safety concerns. He has already worked with the developer on roadway access for fire apparatus but remains concerned about the large building. Brookline does not have a ladder truck at a nearby station. The closest one, he said, is nearly four miles away. He said access from VFW Parkway, discussed at previous sessions, would be important for fire safety at the large building.

Robert Niso, a transportation consultant for the developer, would not commit to VFW Parkway access and claimed that the large building could be serviced by a ladder truck at a Boston station about a mile and a half away. Mr. Ford said the main issue was rapid response; Boston equipment would be called in only as backup. Brookline has not previously needed a ladder truck in the area because it currently has no tall buildings.

Opposition: The Appeals board opened the hearing to public comment, probably the last such opportunity, which went on for about an hour and a half. On September 16, the Board of Selectmen sent a letter opposing the project, and three of its members spoke up. Echoing the letter, board member Betsy DeWitt said, “The development is poorly conceived,” threatening the historic integrity of Hancock Village. Nancy Daly spoke to the need for fire access. Neil Wishinsky urged the Appeals board to challenge the developer’s assertions that reducing the large building to three floors of apartments would make the project infeasible.

James Batchelor, an architect who chairs the Preservation Commission, described development of Hancock Village in the 1940s. “It is historic,” he said. “The layout of the buildings and open space are carefully planned around the roadways. The current plan is turning that inside out.” Vehicles, he explained, “being fed in from the back…on small roads.” Emily England, a Bonad Rd. resident and president of Baker School PTO, agreed. “This is the worst year ever,” she said. “Cars are backed up ten and twenty on these little residential roads.”

Regulations: Precinct 16 town meeting members Stephen Chiumenti and William Pu reviewed the state’s comprehensive permit regulations for Chapter 40B projects, which were revised in 2008. They emphasized “local concerns” as decision criteria: “the need to protect the health or safety of the occupants of a proposed project or of the residents of the municipality, to protect the natural environment, to promote better site and building design in relation to the surroundings and municipal and regional planning, or to preserve open spaces.” [760 CMR 56.02]

A project application can be denied if the Appeals board shows that “local concerns” outweigh “housing need,” meaning “the regional need for low and moderate income housing considered with the number of low-income persons in the municipality affected.” [760 CMR 56.07] Mr. Chiumenti argued that Brookline has a relatively small number of such persons, most already living in publicly assisted housing. Mr. Pu argued that the developer is proposing to build on sites “needed to preserve open space…communal space in a natural setting.”

Jason Talerman of Blatman, Bobrowski & Mead represented several neighborhood residents at the Appeals session. “One area where towns have had success” in opposing 40B projects, he told the board, “is with respect to fire safety.” He urged the board to demand reductions in project scale and challenge resistance. “You can’t get there unless you ask for it,” he said. “You don’t get a second chance at it.”

Neighborhood concerns: Several neighbors of Hancock Village expressed concerns that blasting would damage gas or sewer pipes. William M. Varrell, III, of Asheville Rd., a structural engineer, described effects he had found during other construction projects. There are, he said, “utilities that go right through the parking lots,” but the project design “has ignored them.”

Alisa Jonas, a Precinct 16 town meeting member, seemed to express sentiments of the neighborhood, judging from the hearty applause. She told the board, “We feel that you are accommodating…an unworthy project…There is a beautiful green space…[It's] a breach of trust…I really would like you to think of us in the neighborhood…This is a ridiculous proposal!”

– Beacon staff, Brookline, MA, November 13, 2014


Zoning Board of Appeals: Hancock Village 40B, getting to Yes, Brookline Beacon, November 4, 2014

Comprehensive permit regulations, 760 CMR 56, Massachusetts Executive Office of Housing and Economic Development, 2008

Important neighborhood meeting, South Brookline Neighborhood Association, January 9, 2014

Advisory Committee: no new restrictions on marijuana dispensaries

The Advisory Committee met Thursday, October 30, starting at 7:00 pm in the first floor south meeting room at Town Hall–conducting the last major set of reviews for the season. Brookline’s fall town meeting starts at 7:00 pm Tuesday, November 18, in the High School auditorium, reached via the side entrance at 91 Tappan St.

On the agenda were Articles 12, 13 and 19–restricting locations for medical marijuana dispensaries, sending zoning appeals notices to town meeting members and opposing by resolution a natural gas pipeline. The last two no longer seemed controversial. For notices, the Planning Department has instituted changes that satisfied the petitioners, and no action is expected at town meeting. The resolution seems likely to pass.

The proposed zoning change for medical marijuana dispensaries previously got seven full-dress reviews by five boards and committees. All but the Advisory Subcommittee for Planning and Regulation recommended thumbs down. Nevertheless, the full Advisory Committee gave it an eighth review with 28 of the 30 committee members present, lasting over two hours. Only committee members Sumner Chertok and Pamela Lodish were not on hand. An audience of more than 30 listened, clearly divided between support and opposition.

Proponents: In November of last year, after voter approval the previous year of a state law to allow marijuana distribution for medical use, Brookline adopted zoning to allow state-regulated dispensaries in general business, office and industrial zones. They require a special permit from the Zoning Board of Appeals. The boundary of a site must be at least 500 feet from the boundary of any school property. A building proposed for a dispensary may not contain a day-care center. Section 4.12 of Brookline’s zoning bylaw contains several other general restrictions and some procedural requirements.

As at the other reviews, Gordon Bennett of Davis Ave. and the other petitioners for Article 12 argued that those restrictions are not enough. They claim a basis for their proposal in a regulation of the Massachusetts Department of Public Health, although it was clear to all that the state regulation does not apply to Brookline, because Brookline adopted its own regulations, as specifically allowed.

Opponents: Opponents have argued that tightening zoning restrictions for locations as the article proposes would leave no site available in Brookline. A map from the Planning Department agrees. A divided subcommittee proposed excluding dispensaries from sites within “100 feet from a day-care center or 500 feet from any playground or park that includes a play structure.” At the Thursday review, however, subcommittee member Kelly Hardebeck of Precinct 7 backed away, saying she no longer supported additional zoning restrictions and leaving a 2 to 3 majority of subcommittee opposing the article.

Review: The petitioners for Article 12 went through their now-familiar arguments, adding nothing new. Again, Dr. Elizabeth Childs of Walnut St., a physician, said she, along with other physicians belonging to the practice groups of the major Boston medical centers, would refuse to prescribe marijuana.

Dr. Bruce Cohen, a physician, described a review of Article 12 from the Advisory Council on Public Health, which he chairs. He said medical marijuana is now a variety of products, used in a variety of ways. Some do not contain trans-delta-9-tetrahydrocannabinol, the main compound producing euphoria. The council, he said, “found no public health benefit from changing the [zoning] regulations.”

Steven Kanes, a new Advisory Committee member this season, appeared troubled by the whole issue of medical marijuana. If federal law prohibits it, he asked, “should the town be passing a zoning law?” Committee chair Harry Bohrs reviewed development of the issue in the state and the town, saying, “Zoning legislation…is not the only thing. The [Board of] Selectmen have powers to promulgate regulations.”

Polly Selkoe, the assistant director of regulatory planning, said the board “can specify delivery conditions in a license.” In Newton, the City Council was said to be requiring amounts of more than an ounce to be delivered by courier rather than purchased over the counter.

Sean Lynn-Jones of Precinct 1, one of the subcommittee members opposing Article 12, objected to the drift of the arguments, saying, “We haven’t talked about the interests of patients…balancing benefits and costs.” The other boards reviewing the article, he said, “feel that Brookline has an interest in making medical marijuana available to patients.”

Several committee members described experiences of people whose ailments did not respond to conventional treatments but who obtained relief from some form of marijuana. A lawyer representing New England Treatment Access, seeking to open a dispensary at the former Brookline Bank site–located at the intersection of Boylston and Washington Sts.–said the firm will offer a comprehensive variety of medical marijuana products.

The committee voted on two motions: a slightly revised proposal from the petitioners for Article 12 and the proposal generated by the subcommittee. Both lost by large majorities. The only committee members supporting any further zoning restrictions were Angela Hyatt of Precinct 5, Amy Hummel of Precinct 12 and Lee Selwyn of Precinct 13. Mr. Kanes abstained. The fall town meeting will hear from at least five boards and committees, all now on record opposing Article 12.

– Beacon staff, Brookline, MA, October 31, 2014


Zoning Bylaw Committee: no new restrictions on marijuana dispensaries, Brookline Beacon, October 28, 2014

Board of Selectmen: Muddy River project, school construction and warrant articles, Brookline Beacon, October 29, 2014

An Act for the Humanitarian Medical Use of Marijuana, St. 2012 C. 369, Massachusetts General Court, November, 2012 (enacted by voters through a ballot initiative)

Implementation of an Act for the Humanitarian Medical Use of Marijuana, 105 CMR 725, Massachusetts Department of Public Health, May 24, 2013

Zoning bylaw, Town of Brookline, MA, June 2, 2014

Warrant for Special Town Meeting, November 18, 2014, Town of Brookline, MA

Warrant explanations, November 18, 2014, town meeting, Town of Brookline, MA


Editor’s note: price claims

A fantasy from the sponsors of Article 12 focused on arbitrage. Customers for medical marijuana, they claimed at several meetings, will buy it for $300 an ounce and sell it on the black market for $400 an ounce. No one challenged self-anointed “experts,” just as happened years ago with “Reefer Madness” promotions (1936) and a few decades of less charming successors.

Since medical marijuana has to be grown and processed under controls and incurs taxes and overhead, a sensible person would expect it to settle in at higher prices than street goods. Legalization of marijuana by the states of Washington and Colorado provides above-ground comparison markets. A recent price survey by Philip Ross documents some effects, published by International Business Times–an Internet news site based in New York City.

According to Mr. Ross, street marijuana sells in the U.S. at an average price of around $350 an ounce, but the price has fallen to about $240 in Washington and Colorado, where it competes with over-the-counter recreational and medical sales. Medical marijuana costs more there, he reports–around $300 an ounce. Where underground sales compete with above-ground markets, competition appears to have induced differential pricing.

According to Mr. Ross, most medical grades are less potent in euphoric effects than street goods, while they cost more. Contrary to the claims from Article 12 sponsors, evidence from this source shows little arbitrage potential in medical marijuana. Instead, the products look more likely to remain specialties of interest to people with ailments that do not respond to other treatments.


Philip Ross, Marijuana costs in the U.S., International Business Times, July, 2014

Board of Selectmen: Muddy River project, school construction and warrant articles

A regular meeting of the Board of Selectmen on Tuesday, October 28, started at 6:25 pm in the sixth-floor meeting room at Town Hall. In an earlier session, closed to the public, the board had agreed on a contract with the Teamsters local representing the police and fire dispatchers. There were two major reports about ongoing issues. There were public comments, reviews and recommendations for ten of the 20 articles coming before the town meeting that starts November 18. An ambitious agenda produced a session lasting nearly until midnight.

Announcements, contracts and interviews: The Health Department provides flu clinics this season on October 29, November 9 and December 4 at Baker and Devotion schools and at the Health Center. The first day for a winter farmers market in the Arcade Building at 318 Harvard St. is Sunday, November 2, starting at 2 pm.

On Wednesday, November 12, the Brookline Neighborhood Association and League of Women Voters host a forum for the November 18 town meeting. It begins at 7 pm in community television studios on the third floor at 46 Tappan St., the Unified Arts Building of Brookline High School. Topics are for Articles 8, 12, 13, 15 and 16: revising the disorderly conduct bylaw, restricting locations for medical marijuana dispensaries, sending zoning appeals notices to town meeting members and managing taxi medallions (that is, permanent licenses).

Joe Viola, the assistant director for community planning, got approval to extend the duration of a contract with Vanasse Hangen Brustlin of Watertown for design of a road improvement project for lower Washington St. Planning began about nine years ago as part of a so-called “Gateway East” effort. Erin Gallentine, director of parks and open space, got approval to add $0.015 million to a masonry repair project at the Old Burying Ground on Walnut St., using funds already appropriated.

The board interviewed candidates for appointments: one for Tree Planting, one for Economic Development and one for Diversity, Inclusion and Community Relations–created at this year’s annual town meeting to replace the former Human Relations/Youth Resources Commission. Twelve commissioners are authorized but none appointed yet, with some positions still awaiting applicants according to board member Nancy Daly. The board also decided to appoint a Noise Control Bylaw Committee, to be charged with proposing revisions to related town laws.

Projects, licenses and permits At the request of Ms. Gallentine and the Dukakis Recognition Committee, established in 2011 through a town meeting resolution, the board approved a plaque dedicating the Riverway Park to Brookline residents Michael and Kitty Dukakis, the former 3-term governor and his wife. It will be stationed near the Longwood stop on the D branch of the Green Line, where Mr. Dukakis often boards.

Hsiu-Lan Chang, who operates Fast Frame on Beacon St. in Washington Square, asked for permission to install a plaque on the Washington Sq. clock–a donation to the town about 20 years ago from Washington Sq. merchants–in honor of William T. Bonomi, a key supporter of efforts to install and maintain the clock. The board approved. A major maintenance effort is expected before year’s end by Electric Time of Medford, funded by area merchants.

The board reviewed and approved alternate managers for alcoholic beverage sales at two locations, temporary licenses for two events and a 10 am Sunday starting hour for alcoholic beverage sales at six locations. The last, according to board member Betsy DeWitt, is an obligation under a recent state law when a license-holder requests it.

Chen-Hui Chi of Chelmsford appeared to apply for a food vendor (take-out) license to continue operations for Hong Kong Cafe at 1391 Beacon St., which currently has a different owner. He was represented by a bilingual lawyer who translated the board’s questions to Chinese. The board wanted to make sure the applicant understood that the license did not authorize table service. Board members were satisfied and approved.

Managers of Herb Chambers appeared for continued review of an inflammables permit for the Audi dealership at 308 Boylston St. A review on August 29 had left several matters to be settled. As before, the organization was represented by Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen.

Mr. Allen told the board that the waste oil storage tank had been moved to a different location and would no longer be serviced via East Milton Rd., a previous source of neighborhood opposition. He said former underground tanks have been removed. KPA Environmental and Safety of Colorado is now overseeing environmental compliance. Mark Jefferson, deputy chief of the Fire Department, confirmed the progress but said the new tank installation was not finished. This time, despite some neighborhood objections, the board was satisfied that Herb Chambers was on track for a safe workplace and granted an annually renewed permit.

Representatives of the VFW and American Legion post on Washington St. appeared again, seeking a club license for alcoholic beverages. They were represented by Roger Lipson, a Brookline-based lawyer and Precinct 14 town meeting member. The post held such a license from 1977 through 2010 but let it lapse by mistake, when a manager became ill. About two years ago, Elmon Hendrickson, a Brookline resident, took over as post manager.

Mr. Hendrickson has been successful in building a clientele who use the post for events, including weddings and other celebrations, but this has caused friction with neighbors–evident at a previous hearing October 2 on the license application. This time, both Mr. Hendrickson and the board were more prepared. The board wanted some firm conditions on the license, to which Mr. Hendrickson agreed.

There will be police details for events with over 50 participants, and there will be four post members on hand for events: two for service and two for security. The club will not operate past 11 pm. Video cameras and sound meters have been installed and will be monitored during events. Doors near abutters will be used during events only for emergencies. The parking lot will be used only by caterers. With these and other conditions, the board approved a new club license for the post, to be reviewed annually.

Muddy River project: The board heard a report on the Muddy River Restoration Project from Thomas Brady, the conservation director, and Andrew Pappastergion, the public works director. The project began after a major storm in October, 1996, flooded the Kenmore Sq. transit station and many houses and buildings in Brookline and Boston. A disastrous 1958 decision by the Hynes administration in Boston to divert the river into relatively small culverts is now being reversed by excavation and by construction of large channels under Park Drive and Brookline Avenue crossings, near the former Sears now called Landmark Center.

As Mr. Brady and Mr. Pappastergion explained, the current effort will correct only one blockage to river flow, although it is probably the worst one. A century-long buildup of silt and invasive plants obstructs many other parts of the riverway, from Ward’s Pond through the Fenway area. They said the U.S. Army Corps of Engineers, manager of the current project, is now willing to extend the project–provided it receives a Presidential order and Congressional funding.

Board member Ben Franco said the Muddy River project was what got him involved in town government. Betsy Shure Gross, a Precinct 5 town meeting member, urged pressure on Congress for funding. “If we don’t maintain this river,” she said, “it will continue to be a significant threat.” The board agreed to participate in a campaign of letters from Boston, Brookline and several organizations. They will send a letter to the President.

School construction: The board entertained a long report from Planning Board member Sergio Modigliani on the need for school construction. Mr. Modigliani felt that the needs were overstated, and he brought along a spreadsheet report trying to show why. According to his report, for kindergarten through eighth grade, the Brookline schools have, by different criteria, between about 600 and 850 unfilled seats. Class sizes this year range from 17 to 26 (Baker seventh grade).

As has become well known, while school enrollments rose over the past several years, so did class sizes. William Lupini, the school superintendent, made similar points in a presentation to the board on October 7. However, Dr. Lupini’s view appears to be that maintaining high-quality schools is going to take more space, perhaps another elementary school plus some kind of high-school expansion.

Mr. Modigliani, an architect, sought to discourage the board from supporting that approach, claiming that the unfilled seats in elementary schools will make more space unnecessary for at least several more years. However, he could not explain how to make use of the capacity, which is scattered through all eight schools and across all nine elementary grades, except by ordering students to transfer abruptly from one school to another.

Board members seemed skeptical. Betsy DeWitt pointed out that several current classrooms have been squeezed into small spaces, labeled “suboptimal.” Mr. Modigliani agreed that was possible but said he had not been able to inspect any of them. Kenneth Goldstein, the board’s chair, challenged Mr. Modigliani’s approach, saying it would force schools to split siblings between schools.

Board member Nancy Daly recalled events of years ago, saying, “My son was in a first grade of 27 kids. He didn’t learn how to read. That’s what catapulted me into town politics.” Mr. Modigliani seemed to focus on counting noses. The value of a seat in a classroom, he claimed, was about $100,000, but it turned out that he meant only costs of construction. He did not seem to have given much attention to the effects of increasing class sizes on the quality of teaching and learning.

Warrant articles: The board voted to recommend no action on Article 1, unpaid bills, since there are none. For Article 2, collective bargaining, the board voted to recommend approval of the collective bargaining agreements reached with police officers earlier and with dispatchers the same evening. For Article 3, budget amendments, the board voted to recommend the Advisory Committee’s plan to use about 60 percent of an additional $0.04 million in state aid for the new diversity department, as proposed by Advisory member Stanley Spiegel and agreed to by the School Committee.

The board voted to recommend approval of Article 7, bylaw amendments prohibiting discrimination on the basis of gender identity or gender expression in employment, housing, public accommodations, credit, lending and public education. The board had worked through these topics last August 29 with the participation of citizen petitioners for the article.

As negotiated with the petitioner for Article 9, noise control bylaw amendments, the board voted to recommend referral to the Noise Control Bylaw Committee it will be appointing. For Article 10, commercial recycling, the board expressed support. However, board member Nancy Daly observed, “The business community is pretty unaware of this.” She asked petitioner Alan Christ, a Precinct 4 town meeting member, “Have you reached out to them?” Apparently unsatisfied with the answers, the board decided to wait for an analysis by the town administrator, Mel Kleckner, and did not vote a recommendation.

The board gave the petitioners for Article 12, restrictions on locating marijuana dispensaries, another big bite of the apple, after spending almost two hours on the topic at a previous meeting. Not much was new. The issues had been hashed over the previous evening, at a meeting of the Zoning Bylaw Committee. Once again, George Vien of Davis Ave. tried to scare board members with vague threats of federal prosecution.

Mr. Goldstein wasn’t buying any of that, saying, “I don’t think the federal government is going to hold the Board of Selectmen liable for voting no-action on a warrant article.” He then moved to recommend no action on Article 12. Board member Neil Wishinsky agreed, saying, “We can handle the concerns that people have through the licensing and appeals process.” The board voted unanimously to oppose Article 12.

For Article 13, zoning appeals notices to town meeting members, the board also voted to recommend no action, after the Planning Department instituted changes that satisfied the petitioners. For resolution articles 18 and 19, support for domestic workers and opposition to a gas pipeline, the board voted to recommend approval, with amendments proposed by the Advisory Committee.

– Beacon staff, Brookline, MA, October 29, 2014


Jana Kasperkevic, Medical marijuana in New York: barriers high for small businesses, Manchester Guardian (UK), October 29, 2014

Conservation Commission: will Muddy River flooding be controlled?, Brookline Beacon, July 16, 2014

Warrant for Special Town Meeting, November 18, 2014, Town of Brookline, MA

Warrant explanations, November 18, 2014, town meeting, Town of Brookline, MA

Zoning Bylaw Committee: no new restrictions on marijuana dispensaries

The Zoning Bylaw Committee met to review proposed new restrictions on marijuana dispensaries Monday, October 27, starting at 7:30 pm in the first floor south meeting room at Town Hall. Article 12 for the November 18 town meeting proposes to exclude these facilities within five hundred feet of day-care centers and places where “children commonly congregate.” The committee had held a public hearing on the article September 22.

Proponents: In November of last year, after voter approval the previous year of a state law to allow marijuana distribution for medical use, Brookline adopted zoning amendments to allow state-regulated dispensaries in general business, office and industrial zones. The use requires a special permit from the Zoning Board of Appeals, the property boundary must be at least 500 feet from the boundary of any school property and the building may not contain a day-care center. Section 4.12 of Brookline’s zoning bylaw contains several other general restrictions and some procedural requirements.

Gordon Bennett of Davis Ave. and the other petitioners for Article 12 argue that those restrictions are not enough. They claim a basis for the specifics of their proposal in a regulation of the Massachusetts Department of Public Health, presumably meaning 105 CMR 725, titled “Implementation of an Act for the Humanitarian Medical Use of Marijuana.”

At the committee’s hearing and at several other recent meetings, Mr. Bennett claimed Brookline should have followed regulations from the state’s public health department–adding exclusion zones around day-care centers and places where “children commonly congregate.” However, the petitioners for Article 12 quote selectively from state regulations.

Crumbling claims: The state regulation at issue, 105 CMR 725.110(A)(14), can be found in a section titled “Security Requirements.” It provides (in full):

“An RMD [registered marijuana dispensary] shall comply with all local requirements regarding siting, provided however that if no local requirements exist, an RMD shall not be sited within a radius of 50 feet [sic] of a school, daycare center or any facility in which children commonly congregate. The 500 foot distance [sic] under this section is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.”

The regulation is only a default. It applies “if no local requirements exist.” Last year, Brookline enacted its own local requirements in Section 4.12 of its zoning bylaw. The regulation does not apply to Brookline. Since it was the keystone of Mr. Bennett’s claims, they appear to crumble. He and the other petitioners for Article 12 are left with general arguments about “protecting children” but not with the hard-edged specifics such as a “radius of 50 feet” or a “500 foot distance.”

Opponents: The petitioners for Article 12 claimed that in Colorado half the prescriptions for medical marijuana had been written by a dozen physicians. One of the petitioners, Elizabeth Childs of Walnut St., showed how that might happen. Ironically, the statement from Dr. Childs, a physician, became an argument in opposition.

Dr. Childs said she, along with other physicians belonging to the practice groups of the major Boston medical centers, would refuse to prescribe marijuana. That is likely to leave a small number of independent physicians as sole resources for patients interested in treatment. As in Colorado, a small number of physicians is then likely to write a large fraction of prescriptions, because of rigid attitudes adopted by other physicians.

Eddie Benjamin of Brookline objected that petitioners for Article 12 wanted to ban marijuana dispensaries by leaving no place for one to locate. Maps prepared by the Planning Department confirmed that locations of parks, playgrounds and child-care facilities in Brookline were so numerous and widely dispersed that no part of a general business, office or industrial zone would remain as an eligible site.

New England Treatment Access (NETA), now headed by Arnon Vered of Swampscott, proposes to use the former Brookline Bank building at the intersection of Boylston and Washington Sts. Mr. Vered argued that it is one of the few suitable sites in Brookline: an isolated, single-use building in a general business zone, on a state highway with on-site parking, close to a transit stop on Station St.

According to Polly Selkoe, the assistant director of regulatory planning, the Brookline Bank location is an eligible site under current zoning, and NETA has filed a plot plan that freezes the zoning for its site. Under those conditions, even if town meeting were to pass Article 12 as submitted, NETA would be able to use the site as long as it began operations within three years from filing the plot plan.

Review: Committee members found claims advanced for Article 12 unconvincing. Linda Hamlin, who chairs the Planning Board, said there was “no evidence day cares are put in jeopardy.” Kenneth Goldstein, who chairs the committee and the Board of Selectmen, said, “Voters in Brookline have spoken clearly…The bank is about as good a location as we could find in this town.” The committee voted unanimously to oppose Article 12.

– Beacon staff, Brookline, MA, October 28, 2014


Marijuana dispensary zoning, currently allowed, Town of Brookline, October, 2014

Marijuana dispensary zoning, proposed Article 12, Town of Brookline, October, 2014

An Act for the Humanitarian Medical Use of Marijuana, St. 2012 C. 369, Massachusetts General Court, November, 2012 (enacted by voters through a ballot initiative)

Implementation of an Act for the Humanitarian Medical Use of Marijuana, 105 CMR 725, Massachusetts Department of Public Health, May 24, 2013

Zoning bylaw, Town of Brookline, MA, June 2, 2014

Warrant for Special Town Meeting, November 18, 2014, Town of Brookline, MA

Warrant explanations, November 18, 2014, town meeting, Town of Brookline, MA

Forum: regimented testing in Brookline public schools

On Saturday, October 25, the Brookline Educators Union (BEU) and Citizens for Public Schools (CPS) of Boston jointly sponsored a forum on regimented school testing, starting at 10 am in the Unified Arts Building at Brookline High. The forum featured live experiences with some of the PARCC tests proposed for use in Brookline schools. Participants included Brookline students, parents and teachers and Boston teachers. For this school year, after reviews and public comment, the Brookline School Committee decided against PARCC tests.

Resistance movements: Citizens for Public Schools, founded in 1982, is participating in some resistance movements against charter schools and regimented testing in public schools. Board member Alain Jehlen represented CPS at the Brookline forum. Earlier in the year, he helped organize a forum on charter schools at Madison Park High School in Boston and a forum on high-stakes testing in Northampton.

This year has been a watershed for resistance to regimented testing in public schools. A national movement has been organized by United Opt Out of Miami, FL, and it is starting to have effects. Over half the students recently refused testing at several schools in cities of New York, which has switched to PARCC tests.

Last year Minnesota repealed its testing program for high-school graduation. According to the FairTest organization in Cambridge, this year Alaska and South Carolina repealed their programs and awarded diplomas to students who would have graduated in previous years except for test scores. Indiana, South Carolina and Oklahoma repealed federally promoted Common Core standards and related testing. Rhode Island enacted a 3-year moratorium on test scores as a graduation requirement. CPS is calling for a similar moratorium in Massachusetts.

PARCC tests: At the recent Brookline forum, most participants investigated PARCC tests using computers in one of the teaching centers, led by Jessica Wender-Shubow, president of the Brookline Educators Union. They can also be investigated with practice tests on the Web.

Dr. Jehlen described regimented tests as a source of revenue for test publishers and equipment makers. PARCC is fundamentally computer-based. Many schools, he said, will “buy machines that will fit the test,” whether or not they are otherwise useful. However, he went on, “there’s been so much push-back that Massachusetts may stay with MCAS,” as Brookline chose to do this year.

Reactions: After the session with PARCC tests, Jennifer Rose-Wood, a BEU board member, led a discussion. According to several participants, the PARCC user interface was awkward for experienced users of both Windows and Macintosh computers. It does not follow familiar patterns of either operating system.

A Devotion parent who introduced herself as Hillary said the third-grade language test was “really hard.” She criticized an “infantile story” shown as a basis for questions and said if PARCC tests are used in Brookline schools, she wants to opt out.

A Brookline High student who introduced herself as Camille said she is currently taking calculus and tried the PARCC test for third-grade math. “It was hard,” she said. “The computations are adding and subtracting, but the way you have to get to it is not easy.”

Will, who teaches geometry at Brookline High, said the PARCC geometry test involved “chained problems, much harder than the SAT,” and the “level of language was pretty sophisticated.” Despite a background as a former textbook editor at Houghton-Mifflin, he found could not disentangle problems without using graph paper.

Eric, who teaches English at Brookline High, had similar reactions to the PARCC ninth-grade language test. The SAT questions, he said, “are of much higher quality.” He was “concerned with the resources being spent on these tests” and said, “We need fewer of them.”

The chair of the English department at Brookline High described the PARCC tenth-grade English test as “very difficult in terms of language…difficult to keep focus.” Her biggest concern, she said, was “asking students to write an essay about [language] style…To graduate high school you need to be able to describe style?”

A Brookline High senior who introduced himself as Khaled had tried the PARCC eleventh-grade English test and said he “failed miserably…The questions were just too close–compare and contrast two very similar themes.” By comparison, he said, “MCAS answers were very concise; PARCC answers were misleading.”

Fallout: Ms. Rose-Wood said that state testing was driving Brookline toward “test-centered education…training people to work in call centers.” More colleges are not requiring test scores, she said. “They’re realizing that high scores don’t mean the best students.”

Barbara Scotto, a School Committee member who formerly taught fifth and sixth grade at Driscoll, described how she had been confused by the PARCC user interface. “My goal is to get testing that is fair for the students, that doesn’t take up huge portions of time,” she said. “It concerns me that a state official is on the board of PARCC…that is hugely concerning.” She was obviously referring to Mitchell Chester, the commissioner of education, who chairs the PARCC board–an apparent conflict of responsibility.

– Beacon staff, Brookline, MA, October 27, 2014


Colleen Quinn, Education official says schools too focused on test preparation, Boston Globe, September 23, 2014

Lisa Guisbond, Testing reform victories, the first wave, National Center for Fair and Open Testing, 2014

Joe Nathan, Different standards may have increased Minnesota’s high school graduation rate, Morrison County (MN) Record, February 27, 2014

Caitlin Emma, Mary Fallin signs bill repealing the Common Core in Oklahoma, Politico, June 5, 2014

School Committee: celebrations, programs, policies and test scores, Brookline Beacon, May 12, 2014

School Committee: Driscoll plans, policies, technology and testing, Brookline Beacon, May 27, 2014

Craig Bolon, Dr. Lupini moves to Brookline, Brookline Beacon, June 21, 2014

Board of Selectmen: interviews and warrant articles

A regular meeting of the Board of Selectmen on Tuesday, October 14, started at 6:30 pm in the sixth-floor meeting room at Town Hall. There were no reports from departments or organizations. There were reviews, public hearings and recommendations for 10 of the 20 articles coming before the town meeting that starts November 18.

Announcements, contracts and interviews: The Health Department provides flu clinics this season on October 28 and 29, November 9 and December 4 at the Senior Center, Baker and Devotion schools, and the Health Center. Public Works and Planning administrators got approvals for a total of $0.05 million in contracts, the largest of them with Robicheau of Roslindale for work at Waldstein Park.

The board interviewed several candidates for appointments: two for Arts, one for Public Health Advisory, one for Naming and three for Diversity, Inclusion and Community Relations–created at this year’s annual town meeting to replace the former Human Relations/Youth Resources Commission and recently approved by the state’s attorney general. Twelve commissioners are authorized, none appointed yet.

Warrant article, disorderly conduct: Article 8 for the November 18 town meeting, submitted by Daniel O’Leary, the chief of police, seeks to revise Brookline’s bylaw on disorderly conduct. An earlier review September 30 left unanswered questions from members of the board. This time Mr. O’Leary was assisted by Patricia Correa, an associate town counsel, and by town meeting members long interested in the issues.

Ms. Correa had distributed a 6-page memorandum outlining state and federal court decisions from 1967 to the present that indicated revisions to town bylaws were needed. One clarification would remove the term “quiet enjoyment” but retain and define “disturbing the peace” in line with the decision in Commonwealth v. Orlando. [373 Mass 732, 1977]

Martin Rosenthal, a Precinct 9 town meeting member and former member of the Board of Selectmen, represented defendant David Orlando of Norfolk County in the 1977 case, which he lost at the state supreme court. The court found the statute being challenged constitutional, holding that it provided reasonable notice about forbidden conduct. The 1977 decision refers to “activities which…most people would find to be unreasonably disruptive and…did…infringe someone’s right to be undisturbed.”

Mr. Rosenthal recalled the circumstances of the 1977 case and recommended to the board that the proposed bylaw would be effective and defensible. He was supported by Nancy Heller, a Precinct 8 town meeting member who had raised issues during a 2013 town meeting debate over the bylaw. This time the board seemed satisfied that lingering issues had been addressed and voted unanimously to recommend Article 8.

Warrant article, noise control: The board heard from Fred Lebow, a former town meeting member, about Article 9, in which he proposes revisions to Brookline’s noise control bylaw. It is the same proposal that was rejected at this year’s annual town meeting in a unanimous vote of No on a main motion–a very rare event.

Mr. Lebow, an acoustic engineer, still wants to make life easier for fellow engineers by exempting them from night-time work–instead, estimating night-time noise by adjusting the amount of noise measured during the day. Mr. Lebow tried to convince the board about his approach by showing that the bylaw already uses a similar approach when measuring noise from “fixed equipment,” but it sounded like a tough sell.

Mr. Lebow’s article would completely exempt any leafblower from regulation that is not handheld or carried in a backpack. Board member Betsy DeWitt did not seem to favor weakening standards. She said, “My neighbors come to me with complaints: leafblowers used out-of-season…The torture moves around during the day…Two operating together is pretty painful.”

Mr. Lebow also wants to allow noise meters that are calibrated to European (IEC) standards rather than to U.S. (ANSI) standards. He claimed they are “the same,” but they are not. According to Pulsar Instruments, a dealer in precision sound equipment, “USA standards…are usually VERY different…[from] IEC standards and are often incompatible.” It came out that one of Mr. Lebow’s problems is that he happens to own a European meter.

For whatever reasons, Mr. Lebow’s proposals appear likely to weaken or undermine Brookline’s noise standards and make them difficult to apply accurately. Andrew Fischer, a Precinct 13 town meeting member, objected to the proposed changes, saying, “We don’t want loud leafblowers…We want effective noise enforcement…This pokes holes through the ability to enforce.”

Warrant article, commercial recycling: Alan Christ, a Precinct 4 town meeting member, came to argue for support of Article 10. It proposes that businesses in Brookline be required to recycle in the same ways as residences. Kenneth Goldstein, the board’s chair, objected that most businesses are tenants and that requirements should apply to property owners, saying, “You should be talking about the landlords.”

Mr. Christ did not seem to understand the distinction, but Andrew Pappastergion, the Public Works director, clearly did. Most commercial properties, he explained, are being served by private waste haulers, who do not provide recycling now. “We do offer it,” he said, “but we offer only one pickup per week.” He maintained that the issues were complicated. “DPW supports the intent of the article, [but]…just adding the word ‘commercial’ [to a Brookline bylaw] does not provide proper enforcement.”

Celinda Shannon, who became executive director of the Brookline Chamber of Commerce about a year ago, spoke in support of commercial recycling. However, she said she was “concerned with practical and financial issues.” Board member Betsy DeWitt recalled, at the time of the “plastic bag ban…[last year], discussions about implementation plans.” “That’s right,” responded Ms. Shannon.

Mr. Pappastergion said he was wary of trying to take on too many solid-waste issues in short order. As he put it, “We’re going to be requiring a very large culture-change in the community.” Last May 14, at the complaint session DPW holds before an annual town meeting, Mr. Pappastergion had announced a trash metering proposal, which he also described at a June 10 meeting of the Board of Selectmen.

Warrant article, Zoning Appeals notices: Bobbie Knable, a Precinct 11 town meeting member, spoke for Article 13, on Zoning Appeals notifications, which she and Ruthann Sneider, a Precinct 6 town meeting member, had filed. She recounted a case in her neighborhood when abutters could not learn of continuances for a case or learn about an applicant’s withdrawal. Her article would require notices sent to town meeting members,

Alison Steinfeld, the planning director, said some problems had already been addressed. If an Appeals panel now grants a continuance, it is to a “date certain” announced at the hearing where the continuance is granted. She said “minutes” of Appeals sessions were being made available online. When board member Betsy DeWitt looked up a recent case on the spot, using a portable computer, she found no such thing.

Ms. Steinfeld seemed to back away, saying there was “a summary of the prior night’s meeting on the Web site.” There are no minutes online now. The online records just say, in general, what type of development was being proposed–such as “basement expansion” or “house addition”–and whether an appeal was granted or denied.

The online records do not say who sat on an Appeals panel, who spoke at a hearing or what they said. They do not even describe special permit and variance requests–such as 3 feet less rear setback than required under Table 5.01 for an accessory structure in an S-7 zone. If conditions are imposed, they do not tell what the conditions are. Ms. Steinfeld promised improvements.

Warrant articles, naming and resolutions: The board voted to recommend no action on Article 14, naming part of Cypress Playground as Hennessey Fields, and instead to recommend an alternative filed for a “special-special” town meeting, also scheduled for November 18. The board voted to support Article 17, a resolution asking the town to select health-conscious LED lamps for its lighting programs. It had heard arguments at a public hearing October 7.

Stephen Vogel of Walnut St. spoke for Article 18, proposing a resolution in support of the rights of domestic workers. He previously described it at length to an Advisory subcommittee. Edward Loechler, a Precinct 8 town meeting member, and Carol Oldham, a Precinct 11 town meeting member, spoke for Article 19, proposing a resolution against natural gas pipelines and explorations in Massachusetts.

Article 19 has oddities. Natural gas, it claims, “is a non-renewable fossil fuel which generates significant carbon emissions.” The proponents cited no renewable fossil fuels nor any ordinary substance that does not produce carbon [dioxide] emissions when burned. They appeared unfamiliar with recent research showing the U.S. distribution of atmospheric methane spiking in the Southwest but very low in New England.

UsMethaneEmissionPhoto2006

Source: National Aeronautics and Space Administration

Board member Ben Franco seemed skeptical. Without natural gas, he asked, “Can renewable energy fill the gap?” Dr. Loechner maintained there was unused capacity in existing gas pipelines but did not distinguish between average and peak demands. Ms. Oldman mentioned transport of liquefied natural gas on ocean-going ships but did not explain that much energy has to be spent on liquefaction. The article sounded in need of study.

– Beacon staff, Brookline, MA, October 16, 2014


Warrant for Special Town Meeting, November 18, 2014, Town of Brookline, MA

Warrant explanations, November 18, 2014, town meeting, Town of Brookline, MA

Craig Bolon, Household workers: not just respect, Brookline Beacon, October 1, 2014

Craig Bolon, Recycling makes more progress without trash metering, Brookline Beacon, April 11, 2014

Eric Holthaus, Desert Southwest is burping methane, VNV Advisory (Slate), October 10, 2014

Economic Development Advisory: skeptical about proposals

Two proposals for commercial development drew some skepticism from the Economic Development Advisory Board on Monday, October 6. An audience of over 30 gathered in the first floor north meeting room at Town Hall, starting at 7 pm. Local business operator and real estate investor Raj Dhanda described the projects, each with its own set of architects and advisors.

Offices in Chestnut Hill: The more developed of the projects aims to place a four-story office building at 1180 Boylston, on the southeast corner where Hammond St. intersects Route 9. For many years, the site housed a large Exxon service station, now gone, diagonally opposite the Chestnut Hill Shopping Center. The proposed development would provide retail space on the first floor.

As described by Haril A. Pandya of CBT Architects, Boston, the structure would have about 36,000 sf of gross floor area for office space and 12,000 sf for retail space, with two levels of underground parking and around 50 spaces. Located on a plot of about 14,600 sf, that yields a floor area ratio of 3.3. For over 50 years, the parcel has been zoned G-1.0, general business with a maximum floor area ratio of 1.0.

Nearby commercial property is low-rise, mixed among a few older 3-decker houses. The proposed development would be far more dense. Brookline has only two types of zoning that could allow it: G-1.75(LSH), designed for the Marriott hotel site at 40 Webster St. in Coolidge Corner, and GMR-2.0, designed for the 2 Brookline Place site now under development by Children’s Hospital, near the intersection of Washington St. with Route 9. Economic Development Advisory was involved in both projects, whose planning and rezoning each took several years.

Unanswered questions: Board member Robert Sperber, who organized Economic Development Advisory over 20 years ago, asked for the projections of Brookline tax revenue from the development, always the board’s prime concern. Astoundingly, Mr. Dhanda and his advisors said they had none. “It would be a lot,” one claimed. Board members asked about the prospective retail and office tenants and about traffic and environmental studies. Again, there were no clear answers. As to financial potential, Mr. Dhanda simply said, “It’s good.”

Board members Kenneth Lewis and Donald Warner questioned plans to site vehicle access on the heavily congested Hammond St. side. Mr. Lewis called the parking ratio “extreme,” only about one space per 1,000 sf. The offices might house more than 300 people but provide parking for fewer than 50. Mr. Panya of CBT said the area was “well served” by public transportation. MBTA bus 60, between Kenmore Sq. and Newton, stops about twice an hour on average. A station for the D branch of the Green Line is about four blocks away, with about 100 parking spaces. Pedestrian facilities are spartan. It is a suburban location, dominated by cars.

A 10-story hotel at Coolidge Corner: Mr. Dhanda next proposed to build a 10-story hotel at 1299 Beacon St., currently occupied by his lamp store, Neena’s. To the east is the one-story Brookline post office. To the west is the 1986, three-story Center Place office building, with Trader Joe’s on the ground floor. The proposed development would be self-contained, providing no retail, office or public spaces and no landscaping.

As described by Harold F. Wheeler of Group One Partners, architects in South Boston, the structure would house about 160 hotel rooms, 60 parking spaces on two underground levels, a lobby, a food service, meeting rooms, a small swimming pool and an exercise room. The plot has less than 60 ft of Beacon St. frontage, making the proposed building narrow, stretching over a current, small parking lot to Sewall Ave. in back.

Neighboring commercial buildings all have one, two or three stories. The 1924 Pelham Hall, across Beacon Street, has eight stories, and the wider area within several blocks has other residential buildings up to 13 stories. A crude outline of a looming, narrow tower suggested window walls facing east and west, looking up and down Beacon St. The proposed building was described as 140,000 sf gross floor area for hotel uses, plus parking.

Located on a plot of about 18,600 sf, the proposed hotel space yields a floor area ratio of 7.5. Numbers do not seem to be a strong suit for Mr. Dhanda and his advisers, who claimed that the floor area ratio would be about 6. For many years, the parcel has been zoned G-1.75(CC), general business with a maximum floor area ratio of 1.75. Developers of large lots in the zone who support community facilities are eligible for up to a 15 percent bonus in floor area, but the lot at 1299 Beacon St. is too small to qualify.

Brookline has no current type of zoning that would allow the proposed development. Window walls on the sides of a building in a G zone sound unwise and might not be allowed. Properties in those zones can be built to the lot lines. In the future, one or more of Mr. Dhanda’s commercial neighbors might also build to the lot lines, wiping out window views.

More unanswered questions: Dr. Sperber again asked for the projections of Brookline tax revenue from the development, including local taxes on hotel rooms. All Mr. Dhanda offered was that Brookline would receive more than the current property taxes of about $60,000 a year. Several members of the board and the audience questioned traffic plans. Mr. Wheeler said parking would operate with valet service, using large elevators. He did not address frequent, heavy congestion on Sewall Ave.

As with Mr. Dhanda’s other proposal, there had been no traffic or environmental study. Board member Donald Warner said that while economics for a hotel were likely to be strong, “the key is making the numbers work. That [10-story] height isn’t going to happen.” David-Marc Goldstein, a Precinct 8 town meeting member, recalled that the height and density allowed for Coolidge Corner commercial properties had been reduced. To carry out the proposal, he said, “you would have to change the zoning in town meeting, which you won’t have the votes for.”

Variances: Unlike developers of Brookline Place and of hotels on Webster St. and at the former Red Cab site on Boylston St., Mr. Dhanda and his architects and advisors turned confrontational. Rather than negotiate and work cooperatively with Brookline on zoning, economics and environment, they said they planned to seek variances, under Chapter 40A of Massachusetts General Laws.

Variances can be approved by the Zoning Board of Appeals, but requirements are difficult to satisfy, and they have become increasingly rare. Instead, Brookline has developed an extensive system of special permits in its zoning, through which additional building height and density can be approved when developers agree to provide specific public benefits. Mr. Dhanda did not seem familiar with town’s approach to planning and development.

– Beacon staff, Brookline, MA, October 7, 2014


Zoning Bylaw, Town of Brookline, MA, June 2, 2014

Planning and Appeals boards: difficult zoning cases

The Zoning Board of Appeals met Thursday, October 2, and Tuesday, September 23, to consider two zoning cases that turned out difficult to resolve. The Planning Board had reviewed the cases September 18 and September 4. One appeal was allowed, and the other one was denied.

A two-family house in a single-family zone: Neighborhood residents protested a proposal to convert a single-family house at 227 Tappan St. to a two-family house. The house is in an SC-10 zone. That is mainly a single-family zone, but some such conversions are allowed, in the words of the zoning bylaw, “provided there is no external evidence of occupancy by more than one family.” [Section 4.07, Table of use regulations, use 2]

The SC type of zone was defined in 1962, during a major restructuring of Brookline zoning. It aimed to address some issues with maintaining large houses during an era of shrinking family sizes. The allowed conversions have been performed by rearranging interiors of large houses into two apartments, while maintaining a single front door and a single rear door. Mailboxes and doorbells have often been placed inside front vestibules.

Such a conversion might not be feasible with some houses. For example, there might not be enough space for a hallway or a stairwell wide enough to satisfy building codes. In such cases, conversion to a two-family is possible with a special permit from the Zoning Board of Appeals, when “external evidence of conversion is required to conform to other codes.” [Section 4.07, Table of use regulations, use 3]

The ordinary two-family houses that are allowed in T (two-family) zones are not allowed in SC (single-family and converted) zones. The zoning bylaw says, “No.” It does not allow them either “as of right” or with a special permit. [Section 4.07, Table of use regulations, use 4] The developer of 227 Tappan had applied for a special permit under use 3.

A house trying to eat a hill: At 227 Tappan, the developer proposed to attach a large new house onto the rear of an existing single-family house–thus creating an ordinary two-family house with two separate front and rear doors and a wide driveway, for separate parking. Section 4.07 of the zoning bylaw does not allow that in SC zones. That is use 4, for which the zoning bylaw says, “No.” The only available avenue for such a project would seem to be a zoning variance, under Chapter 40A of Massachusetts General Laws.

The lot at 227 Tappan extends up the steep south side of Addington Hill. Part of the hill was excavated and leveled when a row of six houses was built over 75 years ago. There is already a high retaining wall to keep the heavily forested part of the hill above the houses from eroding and collapsing. To add a large new house behind the current house, the developer needs to carve out more of the hill and build a still higher wall. Such an intrusion is part of what looks to have triggered strong neighborhood opposition.

Arguing for a right to build: Applicants in these cases were represented by Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen. He argued that the 227 Tappan St. developer could build what he wanted “as of right”–focusing attention on the floor area being proposed, which was indeed within zoning limits.

In his arguments, Mr. Allen largely ignored “external evidence of occupancy by more than one family.” Obviously there would be some. He presented no evidence that this was “required to conform to other codes,” when clearly it was not. The developer was not trying to fit two living spaces inside a structure built for one. Instead, he proposed to add a whole new structure onto the back of an existing one, thus transforming it into an ordinary two-family house. That is not allowed in an SC zone; the bylaw says, “No.”

The Planning Board, the Appeals board and the staffs of both the Planning and Building departments somehow let themselves be persuaded that Mr. Allen had a case–contrary to straightforward reading of the zoning bylaw. The Planning Board had objected for other reasons. According to board member Robert Cook, “It’s way too big.” Board chair Linda Hamlin said she didn’t “think it meets community standards.”

A group of about 30 neighbors opposing the project did not hire a lawyer to represent them, leaving them at a disadvantage. Like the Planning Board, they focused on the intrusions rather than on the zoning bylaw. The proposed house was too big, they said. The hillside would be threatened. Other houses might be flooded. The new driveway would be dangerous. After extended haggling among them, Appeals board members bought into Mr. Allen’s arguments, allowing a special permit and not considering whether the developer needed a variance.

Mending a fence: After a fence between two properties along Dudley St. was recently altered, neighbors on the other side objected. It was much too high, they said. A Brookline building inspector had checked it and agreed, measuring the maximum height as 8-1/2 feet. Brookline’s zoning limits fence height in side and rear yards to 7 feet–without a special permit because of noise, “detrimental impact” or safety.

The builders of the fence applied for a special permit, arguing “detrimental impact.” That didn’t clearly apply, because the only example offered in the bylaw is “when a property is bounded by active train tracks.” Representing the fence owners, Mr. Allen had not been able to convince the Planning Board, who accepted the building inspector’s measurement and did not find the conditions for a special permit.

Into swales: At the Appeals board, Mr. Allen explained that the applicants’ neighbors had removed a swath of vegetation between the properties, “eliminating privacy” of their patio and back yard. He said that the fence height was complicated by contours of the land, going over rises and into swales. On the applicant’s side, he said, the height was not more than 7 feet. He maintained that removal of vegetation on the neighbors’ side had lowered the grade there.

According to the applicants’ landscaper, attempts to grow a plant barrier failed because of dense shade. They then tried to temper “detrimental impact” from removing vegetation by adding height to an existing chain-link fence and weaving it with an artificial textile–a “shrub-like substance.” Close to the houses, fence height was 6 feet, he said. In other places, height was adjusted to maintain privacy of the applicants’ patio.

Natural grade: Responding to questions from board members, Mike Yanovitch, the chief building inspector, said fence height had to be measured from “natural grade.” The issue, he said, was the meaning of “natural grade.” Brookline’s zoning bylaw invokes “natural grade” in requirements for building heights, fence heights and underground structures but does not define the phrase. Mr. Yanovitch explained that the practice of the Building Department had been to measure fence heights from the low points of land on either side.

There are varying interpretations of “natural grade” in case law, but there is no reliable common definition. Attempts to interpret the phrase sometimes mention “undisturbed” elevation of land. In Brookline, however, as in most other places with extensive habitation and development, there is probably no substantial area of land unaltered by the hand of man, and there is no way to know elevations accurately before they were altered.

One of the neighbors who had complained to the Building Department spoke up, adamantly maintaining that the fence was too high. Measured from his side, he said, it rose to 10 feet. His landscaper told the board, “No vegetation was taken down that was healthy…we’re concerned about a 3-1/2-ft diameter sugar maple.”

The neighbor’s landscaper said he also had tried planting along the fence, in deep shade. “It’s hard, we’ve had plants die, we’ll keep doing it.” The extended fence, he said, “is not an amenity. It is not suitable, nor is it appropriate for this area; it’s a real intrusion…[a planted barrier] can’t be restored in short order.”

Appeals board members wrestled with the issues of measuring fence height. Mr Yanovitch said, “We’ve always taken the lowest unmodified grade,” but he conceded, “It’s almost a case-by-case basis.” They reviewed the general conditions for a special permit. Finally, board member Jonathan Book told the others, “I can make this very easy. It’s not an appropriate location”–one of the general conditions–”because it looms over the abutters’ yard.” The other board members accepted that argument, denying a special permit.

– Beacon staff, Brookline, MA, October 5, 2014

Board of Selectmen: bicycles, warrant articles, neighborhood issues

A regular meeting of the Board of Selectmen on Tuesday, September 30, started at 6:00 pm in the sixth-floor meeting room at Town Hall. There were no reports from departments or organizations, but the unusually busy meeting ran almost five hours. There were reviews and hearings for five of the 20 articles coming before the town meeting that starts November 18.

Announcements: This coming Sunday, October 5, the National Park Service is guiding a “Walk along the Emerald Necklace,” visiting sites of Brookline and Boston parks developed in the late 1800s by Brookline resident Frederick Olmsted, Sr. If interested, call 617-566-1689 ext 221. The Health Department provides flu clinics this season on October 28 and 29, November 9 and December 4 at the Senior Center, Baker and Devotion schools, and the Health Center.

Contracts and programs: Anthony Guigli, a building project administrator, got approval for $0.1 million for geotechnical analysis at Lawrence School, a $3.1 million project to add four classrooms. That is likely to be about a quarter of the contingency budget, although Mr. Guigli did not say. He said levels of contamination, mainly ash, proved low enough that most of the problem soil could be reused on-site.

Peter Ditto, the engineering director, got contract approval for the fifth major round of bicycle markings on Brookline streets, totaling $0.06 million. This round will install new markings on Cypress and School Sts. near Town Hall and replace or install markings along all of Beacon St. Mr. Ditto was not able to describe the standards that will govern the formats of these markings. In response to a question from board member Nancy Daly, he said Brookline was not planning any fully separated bicycle lanes, sometimes called “cycle tracks.”

Joe Viola, the assistant director for community planning, got approval to extend the current contract with the state transportation department for a bicycle sharing program known as Hubway. About 60 percent of $0.11 million in state funding has been spent, mostly on equipment and installation. The program operator is apparently still losing money. The board approved a 3-year sponsorship agreement with New Balance of Boston to brand bicycles stationed in Brookline, in return for $0.03 million to support program expansion to more locations.

Daniel O’Leary, the chief of police, got approval to accept three state and federal grants totaling $0.06 million. The smallest of them, $0.01 million for a program to combat underage drinking and drunk driving, started a long discussion that recalled public disturbances earlier this year–a topic revisited later in the evening, when the board heard a liquor license application for the American Legion and VFW post on Washington St.

Personnel and diversity: Candidates for the Conservation Commission and Commission on Women appeared for interviews. The Board approved three Climate Action appointments: Precinct 15 town meeting member Michael Berger of Wolcott Rd., Crystal Johnson of Harvard Ave. and Precinct 11 town meeting member David Lescohier of Winchester St.

Several hirings were approved to replace former employees at the library and in the Public Works Department. Kenneth Goldstein, the board’s chair, made his usual request to seek a diverse pool of candidates and consult with the personnel office.

In an item not on the original agenda, the board questioned Sandra DeBow, director of the Human Resources Office, and Lloyd Gellineau, human relations and human services director, about efforts to increase diversity of the work force. Ms. DeBow said that, when posting job openings, her office had begun to employ a variety of social media popular among minority groups. Dr. Gellineau described what he called a “blueprint” for outreach. The two said they expected to report survey results next summer.

Warrant articles: During review of Article 2 for the fall town meeting, about collective bargaining agreements, Ms. DeBow announced a long-awaited, multi-year agreement with police officers. She and Mr. O’Leary said the agreement would replace police captains with deputy superintendents who will be non-union and exempt from civil service. That will evidently reduce the department’s roster of sworn officers. Mr. O’Leary said the new agreement will couple educational requirements with senior ranks. The board supported the agreement.

Although the board had announced hearings on warrant articles, only three members of the public spoke, fairly briefly–all town meeting members. The board’s review of Articles 4, 5 and 6, related to development of the former Cleveland Circle Cinema site, turned up no controversy. However, the board questioned Mr. O’Leary at length over Article 8, which he had submitted, seeking to revise Brookline’s bylaw on disorderly behavior.

The disorderly behavior law is an inheritance from colonial times. The version enacted in 1922 and effective until a change last year said, “No person shall behave in a rude, disorderly, insolent or insulting manner, or…shall use any indecent, profane, insolent or insulting language…in any public way” or near any dwelling. Civil liberties challenges to such laws began to accumulate in the 1960s. Mr. O’Leary has been trying to reconcile the law with court rulings. A key problem is distinguishing between free speech and abusive speech.

Mr. Goldstein, a lawyer, recalled the citation about “shouting ‘Fire’ in a crowded theater” that paraphrases an historic opinion of former Justice Oliver Wendell Holmes, Jr., in 1919, holding that speaking in opposition to the draft during World War I was not constitutionally protected. While memorable, it addresses few of the disturbances to which police are called.

Town meeting member Rita McNally of Precinct 2 objected to proposed deletion of provisions against threats and offensive language in public places. Town meeting member Regina Frawley of Precinct 16 noted that abuse of women and of older people included intimidation–not covered by either the current or the proposed law. Mr. O’Leary argued that under case law, police need a witness. “Our word is not good enough,” he said. Members of the board turned wary. They decided to continue the hearing and ask town counsel to advise them.

Licenses and permits: Most common victualler (restaurant), alcoholic beverage service and package-store licenses turned up little controversy. However, a proposed restaurant called Society of Grownups at 1653 Beacon St. drew sharp questions. That was the site of B&D Deli from 1927 to 2005 and then, for short times, of Jimmy’s Italian and Starbucks. Board member Betsy DeWitt noted that Society was a subsidiary of Mass Mutual. She asked about the relationship between a restaurant and a financial services organization.

Nondini Naqui, the manager for Society, accompanied by a lawyer for Mass Mutual, said the purpose of Society was “financial literacy and education” for young adults; food service was ancillary. Ms. DeWitt said she was concerned about potential for deception and asked “how much of Mass Mutual’s services” will be sold at the location. Douglas Moran, the chief financial officer of Mass Mutual, responded, “We won’t sell financial products at that location.” He said Mass Mutual “will not try to hide the relationship.” The board approved a restaurant license for Society.

Neighborhood issues: An application to replace a lapsed liquor service license for the American Legion and VFW post on Washington St. was clouded by controversies. According to neighbors, last spring saw problems with noise from events at the post and apparently drunken participants nearby. Board member Nancy Daly recalled “inebriated people outside the hall.” About 15 interested residents came to the hearing.

John Tynan, post commander and a former Brookline fire lieutenant, spoke for the post, saying there had been a “disconcerting” delay of nine months since submitting an application. “We’re trying to get this place up and running.” Ms. DeWitt noted that under the club type of application pending, service can only be provided to club members.

The post manager, Elmon Hendrickson, a Brookline resident, responded, “Every time we have an event, we apply for a one-day license.” The club license is intended for the post’s routine operation to serve members and not for events. Problems noted by neighbors had occurred during events. Mr. Hendrickson said the post has installed surveillance cameras and begun monitoring events.

A neighbor on School St. described “concerns with noise in front of the building.” She said, “We need a direct number to the manager…a schedule of events. We don’t want to call the police.” Another neighbor said there had been “problems with commercial exploitation…two disturbances in last six months: loud music, screaming, marijuana, urinating in public, cigarette butts.”

Ms. Daly noted that Mr. O’Leary, the chief of police, advised “that you do call the police, let them work on this for you.” Mr. Goldstein said the post “may need police details for events.” He said there also needed to be “standards for the size of events.” The neighbor who described disturbances asked the board to limit club license operations to 11 pm Fridays and Saturdays and 10 pm other nights. The board decided to hold the application for further investigation.

An application for a permit to store flammables at the Audi dealership on Boylston St, recently taken over by Herb Chambers, also brought controversies. Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen, represented the dealership. He said it had a permit issued in 1948, which it proposed to replace with a conventional, annually renewed permit.

As at the review last month of the dealership’s transfer of ownership, neighbors raised concerns. A resident of East Milton Rd. objected to the dealership’s using it, when hauling used motor oil, for about the past year and said that some employees have been parking on the private way. Another neighbor, who said he had lived on East Milton Rd. for 60 years, made similar objections.

For Marcus Quigley, chair of the Conservation Commission, who lives nearby on Walnut St., fire protection was a major issue. He said used motor oil was being stored close to neighboring properties and asked for a setback of 20 feet to reduce hazards. Responding to a question from Mr. Goldstein, he said he did not know whether used motor oil was a worse hazard than fuel oil.

Mr. Allen contended that “other properties have similar licenses without big controversies.” However, the need to hire a hazardous waste handler indicates used motor oil is not a benign substance. Board members considered whether to require conditions on a flammables permit but concluded they did not have enough information. They decided to continue the hearing to a future date.

– Beacon staff, Brookline, MA, October 2, 2014

Household workers: not just respect

At a small meeting Monday evening, September 29, the personnel subcommittee of Advisory began investigating a proposed resolution filed as Article 18 for this fall’s town meeting. Present for the subcommittee were Nancy Heller of Precinct 8, the chair, Charles “Chuck” Swartz of Precinct 9, Sumner Chertok of Precinct 10 and Christine Westphal. Steve Vogel of the Boston Workmen’s Circle spoke to the subcommittee and an audience of three, supporting the resolution.

Mr. Vogel described the purpose of Article 18 as “educational,” seeking “respect and dignity” for household workers. However, the subcommittee focused on the last sentence of the proposed resolution, saying Brookline “will collaborate with worker-led committees.” Resolutions at town meetings often influence boards and agencies but do not pretend to commit them to particular actions. That takes a law, an appropriation or both.

Not just respect: As the subcommittee soon found, Mr. Vogel’s issues extend to much more than “respect and dignity.” He wants Brookline to help publicize a state law enacted last June. The Domestic Workers Bill of Rights law, Chapter 148 of the Acts of 2014, extends most of the state’s fair labor practices statutes to household workers. Fifty years ago, household help was fairly rare in urban Brookline, but now it is common throughout town. Many Brookline residents are likely to be surprised at complex new requirements.

People who employ individuals for household help, rather than contract with companies, are being regulated under labor and industries laws, specifically Chapters 149, 151, 151A and 151B of the General Laws. New Sections 190 and 191 have been added to Chapter 149 by the Domestic Workers Bill of Rights law. Most new requirements take effect April 1 next year, but ones related to unemployment insurance and discrimination took effect September 24.

There will no longer be an exemption from the prohibitions of discrimination or restrictions against summary discharge for workers employed less than 16 hours a week. Any individual worker, even someone employed just once for an hour or less, will have the same rights as a worker regularly employed full-time. People will now have to pay at least the minimum wage, keep careful track of hours and pay overtime rates–generally for Sunday or holiday work and for more than 40 hours a week.

Kid next door: One of the few exemptions remaining says unemployment insurance is not required for temporary services “in case of fire, storm, snow” and other emergencies. [General Laws Chapter 151A, Section 6A(5)] You can still pay the kid next door to shovel a sidewalk without setting up an unemployment insurance policy. However, you can no longer pay the kid so simply to mow your lawn. You will need, at least, to maintain records of wages and hours.

There are many more new requirements when employing individuals for household work. They become complex if the worker receives lodging, meals or other benefits. For example, live-in workers are entitled to 30 days written notice of termination without cause or two weeks severance pay–similar to employment-at-will in most other circumstances. After three months, household workers are entitled to written performance evaluations.

Doing business: Parental leave is now required for regular household employees. Many forms of discrimination become unlawful. Sexual harassment is explicitly included among them. A household employee has a right to file claims at the Massachusetts Commission Against Discrimination.

Massachusetts residents will now need to plan carefully before they employ individuals for almost any household task, including baby-sitting, dog-walking and lawn-mowing. In most respects, state laws and regulations are going to treat them in the same ways that they treat business employers.

Opportunities for workers to act as “independent contractors” were undermined by Section 1706 of the federal Tax Reform Act of 1986, secretly inserted by the late Sen. Moynihan of New York. As a practical matter, they may need to incorporate a business and work for that business. Householders should not try paying workers as independent contractors without checking whether they can satisfy requirements of state law and federal law.

– Craig Bolon, Brookline, MA, October 1, 2014


Beth Healy, Governor Patrick signs Domestic Workers Bill of Rights into law, Boston Globe, July 2, 2014

Warrant for Special Town Meeting, November 18, 2014, Town of Brookline, MA

Warrant explanations, November 18, 2014, town meeting, Town of Brookline, MA

Bicycle lanes: a Harvard Street minefield

Starting in the late 1990s, Brookline engineers added a few bicycle markings on streets. Most were small and inconspicuous, and they tended to ignore emerging standards being developed elsewhere. After federal standards were published in 2009 and for the past four years, more streets have been marked for bicycle traffic, helping alert motorists to substantial numbers of bicyclists on local streets, especially during warmer months.

Federal marking standards are not complicated. Lanes reserved for bicycles are marked with a standard bicycle symbol and an arrow for travel direction. Lanes shared with motor vehicles are marked with a bicycle symbol and a double chevron. There should be at least a symbol after each street intersection. Stripes for the edges of bicycle lanes are solid where motor vehicles should not usually cross and dashed where they may. They should become dashed at least 50 feet before potential crossings and should be omitted across street intersections.

The effectiveness of bicycle markings varies. Narrow and busy streets are problematic. The town’s adherence to federal marking standards has been erratic. The two-thirds of a mile of Harvard St. between Coolidge Corner and Allston is a messy example. Brookline changed parts of the traffic configuration there at least ten times over the past twenty years, At best, current bicycle markings look and feel like afterthoughts.

Survey: A survey of Harvard St. between Coolidge Corner and Allston, during late August and early September of 2014, found 70 departures from federal bicycle marking standards–more than one for every hundred feet of bicycle lane. A bicycle rider depending on consistent markings for safety will be misled more than once in almost every block.

Where on-street parking is allowed, national organizations recommend minimum bicycle lane widths of 5 feet, offset at least 8 feet from curbs. Measured lane widths were 4.4 to 6.5 feet, and measured offsets were 7.0 to 9.3 feet. In several places, lane markings tended to herd bicyclists toward parked cars.

Between Coolidge Corner and Allston, Harvard St. is mismarked for bicycle traffic at or near almost every intersection, driveway and bus stop. Lane stripes fail to warn that motor vehicles may be moving across a bicycle lane, a common source of fatal collisions. Symbols and arrows are missing. There are abrupt shifts between reserved bicycle lanes and shared lanes: six on the northbound side and three on the southbound side.

Hazards: Potentially lethal elements for Harvard St. bicyclists come from pacing bus and truck traffic at high speeds, from crowding bicycles close to parked cars and from shifting vehicle lanes left and right. An MBTA no. 66 bus comes rushing by about every ten minutes, often intruding into a third of a bicycle lane or more. Oversize trucks are less frequent but can be even more hazardous, since their drivers are less likely to be familiar with the street. Harvard St. has the town’s highest density of bicycle crashes.

Some of the most awkward and potentially hazardous markings are at the intersection with Stedman St., from the east beside Devotion School, and Williams St., from the west beside Kehillath Israel. Those cross streets are offset about 60 feet. Some years ago, the intersection was changed, adding a left-turn lane onto Williams St. for northbound motorists. A yellow, bulb-shaped traffic guide was painted to the north of the intersection.

When installing bicycle markings about a year ago, Brookline paid less attention to safety than it should have and did not adjust the lane patterns. Instead, it painted symbols for a shared northbound lane. Now, northbound motorists who dodge right and skirt the yellow bulb near Irving’s Toy and Card Shop will crowd bicyclists toward parked cars. The weaving intersection confuses both motorists and bicyclists. Motorists often ignore the street markings and barrel across the left-turn lane and the yellow bulb.

One way to make this intersection safer would be to make Williams St. No-Left-Turn for drivers heading north on Harvard St. Then the awkward left-turn lane and yellow bulb could be removed, and ordinary bicycle lanes could be provided on both sides. So far, the Bicycle Advisory Committee has been beating drums for more bicycle lanes but has sounded less concerned about their erratic markings and their everyday hazards–including ones just described.

– Craig Bolon, Brookline, MA, September 13, 2014


Harvard Street bicycle lane marking problems, September, 2014

Pavement markings for bicycle lanes on a two-way street, Figure 9C-6, Manual on Uniform Traffic Control Devices, U.S. Department of Transportation, 2009

Guide for the development of bicycle facilities, Fourth Edition, American Association of State Highway and Transportation Officials, 2012

Brookline Green Routes Bicycle Network, map, Bicycle Advisory Committee, 2014

Zoning Board of Appeals: architecture for Hancock Village Chapter 40B

The Zoning Appeals Board held a continued hearing on Monday, September 8, over a proposed Chapter 40B housing project at the site of Hancock Village, along Independence Drive in the Chestnut Hill section of south Brookline. It was most recently proposing nine 3-story structures tucked in behind houses along Russett and Beverly Rds. and a large building at the extension of Asheville Rd., with a total of 184 new units.

The Appeals Board has now had some experience with hostile 40B developments, notably on Centre and Marion Sts. Its favored approach of wearing out developers met with success, but that has now been foreclosed by state rules narrowing the scope of objections and setting time limits for actions. For those gifts, we can in part thank Werner Lohe, a Precinct 13 town meeting member who chairs the Massachusetts Housing Appeals Committee.

Regardless of rule changes, Brookline would have had tenuous prospects with such tactics now, because Chestnut Hill Realty, the owner of Hancock Village who is proposing the 40B project, has more resources than developers of previous projects and is unlikely to walk away just because the process takes a long time. Chestnut Hill was represented by Marc Levin and by landscape architect Joseph Geller of Stantec Consulting in Boston, who is a former chair of the Board of Selectmen.

Theodore Touloukian, a Boston architect, presented a review of proposed architecture. He described the nine low-rise buildings as a total of 44 units, 1-bedroom to 3 bedrooms, including 98 bedrooms and 22 lofts. The large building has 5 floors of apartments over 2 floors of parking, with 140 units and 223 bedrooms. A total of 369 new parking spaces is now proposed. Of the 184 total units, all are rental and 37 are to be subsidized for low-income and moderate-income residents.

Mr. Touloukian reported some success at improving landscaping and reducing the large building’s massing at its northern end but none at reducing the number of units or the height of buildings. Perimeter fencing is now to be 7 instead of 4 feet high to reduce headlight glare from night parking. He said he hoped to see further improvements: subdividing surface parking into smaller areas, preserving more trees, trimming the height of the large building to 4 stories at the northern end and using higher quality materials.

Mr. Levin and Mr. Geller of Stantec, speaking for Chestnut Hill, said they had gone as far with changes as practical. Any further change to the large building, they said, would substantially increase cost. Where new trees are being planted, they are willing to put in evergreens to improve year-round screening. They rejected most of Mr. Touloukian’s proposals for changes in architectural materials as too expensive.

Mr. Geller of Stantec exhibited 14 simulated walks around the project, showing Hancock Village buildings in some detail and surrounding houses in caricature. Views of the large building seemed particularly startling, revealing how the parking rises above grade at the south end, making the height seven stories there, and capturing the building’s massive presence as seen from the front or rear.

Several neighborhood residents and town meeting members commented. William M. Varrell, III, who lives at the corner of Asheville and Russett Rds., asked to scale back the large building, of which he probably has the closest view. “Make it smaller,” he said, “and see if it’s feasible.” Scott Gladstone, a Precinct 16 town meeting member and Russett Rd. resident, had a similar outlook. “Nibbling around the project doesn’t work,” he contended. “Make the project smaller.”

Judith Leichtner, a Precinct 16 town meeting member and Beverly Rd. resident, said none of the changes made since last January “substantially address the problems of the proposal. A five-story building is inappropriate for the site.” Her concerns about overcrowding Baker School were echoed by Abby Cox, a School Committee member and Precinct 8 town meeting member. Baker is already over capacity, Ms. Cox said, with about 800 students and “five sections for three grades.”

Alisa Jonas and Stephen Chiumenti, both Russett Road residents and Precinct 16 town meeting members, bore down on whether the proposed project was appropriate for the site. Before it went to the Board of Appeals, Mr. Chiumenti related, “Mass Development was prepared to reject…the original project,” similar is scope and size. He urged the board to “slash the size of this development, then consider financial feasibility.”

There was an interesting exchange between board members and their legal consultants for this review. Jesse Geller, the board’s chair and a lawyer, and Christopher Hussey, a board member and an architect, seemed to play a game of “After you, Alphonse.” Mr. Geller contended architectural elements were the main issues, while Mr. Hussey said, “I’m going to let the lawyers work [things] out.”

Edith Netter of Waltham, consulting on legal aspects of 40B development, seemed eager for board members to start weighing options, saying, “They’ve got to talk to one another.” Board member Mark Zuroff sounded more willing than the others to do so. “I think that the project is too dense,” he said. Board member Avi Liss advocated making the large building “less conspicuous” but did not say how that might happen.

– Beacon staff, Brookline, MA, September 9, 2014

Radio pollution: tangles and hazards in Brookline

Radio pollution is both an old and a new controversy here. The old controversy began in the early twentieth century, when AM broadcasting, as we know it now, took off after invention of the vacuum tube in 1906. Between the end of World War I and the end of World War II, it was the only commercially significant radio. There was then, of course, no television and no wireless communication serving the general population. A signature of a classic comics character, Dick Tracy, was the fantasy of a “two-way wrist radio.”

Golden-age service: The so-called “golden age of radio” starting about 1910 was tarnished by interference between stations using close frequencies. Like counterparts in the newspaper business, radio entrepreneurs treated broadcasting space at first as a free good, although it was not. Brookline once found that seemingly any number of news stands could occupy a corner. Any number of radio stations cannot. They may interfere, creating buzz and static. Government regulation started during World War I.

In 1922, a few AM stations were granted “clear channel” rights–prime use of a frequency at high power. WBZ of Boston at 1.03 MHz and WTIC of Hartford at 1.08 MHz are the only ones in New England. WTIC shares rights to its frequency. WBZ, however, broadcasts 24 hours every day at 50 kW from Brighton, with exclusive North American rights to appear at AM 1030. Initially broadcasting from Springfield, MA–the first commercially licensed U.S. radio station–WBZ can be tuned in nationwide, thousands of miles away.

Short-range services: At ultra-high frequencies (UHF) used during World War II for military radar and afterward for satellite, digital cellular and close-range services–around 1 GHz (1,000 MHz) and higher–earthbound transmission ranges are less than 100 miles, sometimes less than 100 feet. Signal energy is readily absorbed by soil, trees, buildings and body tissue. Signals do not travel far inside most buildings. That is why we cannot use GPS satellite location-finding indoors, except perhaps at a window.

At the low end of UHF, Verizon mounted its so-called “4G” cellular service on an LTE model, using carriers in 0.7 GHz bands–becoming popular across North America, Europe and Australia, plus large parts of South America and east and southeast Asia, including India and Japan. Because of lower frequencies, LTE is somewhat less attenuated by buildings than most UHF. However, lower frequencies also make LTE more vulnerable to crowding; there is less bandwidth to share among users.

During the past year, Verizon began expanding “4G” service using AWS spectrum, with carriers in 2.1 GHz bands. To sustain expansion, Verizon needs to increase the density and number of its cellular stations, while reducing power and limiting ranges. Those factors tend to make Verizon cellular services environmentally more friendly but more expensive. They also help to explain why Verizon is paying high-priced lawyers, trying to persuade Brookline to allow the company zoning variances for locating cellular base stations in residential areas.

Risks and benefits: Whether that is in the best interest of Brookline residents depends partly on how it might affect environmental risks. As we gradually learned from long controversies over nuclear power, there is probably no risk-free technology. Even spinning and weaving spread dust in the air that can cause lung disease and factory explosions. Risks from UHF radio became safety and health issues during the wartime 1940s, with the development of radar. Those concerns have continued.

UHF radio energy is more strongly absorbed by materials than lower frequency signals. An easily measured effect is heat. From the 1940s through the 1980s, heat was the main widely studied and well documented hazard. During the Reagan administration, a federal agency produced what has become the reference for nearly all current “environmental assessments” produced by or for industries. [Guy, et al., 1986] That was soon reflected in a so-called “consensus” standard, ANSI C95.1, updated but not basically changed since 1992.

During and before the early 1980s, most common household exposure to UHF radio came from occasional use of increasingly popular microwave ovens. There were few radar zones or microwave transmitters, no digital cell phones or base stations and no close-range emitters such as cordless telephones, WiFi, Bluetooth and “smart” meters and appliances. Few would deny economic benefits and conveniences of the more recent technologies. However, the commonplace uses and continuous exposures occurring today were not anticipated in research conducted before the mid-1980s.

Health and safety: It is unreasonable to expect that a 1986 evaluation of risks and hazards from UHF radio would reflect today’s environment. Nevertheless, that is what cellular service companies are encouraging. So-called “environmental assessments” rehash research before the mid-1980s, ignore about three decades of more recent discoveries and conceal shortcomings through technical jargon and numbers. Findings of “no significant impact” are all but guaranteed by lax standards based on obsolete research.

More recent research on health effects of UHF radio exposure–sometimes called “microwave exposure”–starting in the early 1990s, found associations with disturbances in humans, wildlife and laboratory animals. In 2011, documented risks of brain tumors persuaded a branch of the World Health Organization, a U.N. agency, to classify “radiofrequency electromagnetic fields” as a potential carcinogen. Other types of disturbances have involved biochemical, neurological, behavioral and developmental changes.

In 2012, an association of health researchers published a compendium of findings, calling for stronger standards. While other researchers criticized the effort as unfocused, it brought attention to neglected but potentially significant elements, including pulsed sources, common in telecommunications, and individual differences, with a few percent of the population who may be hypersensitive.

While industry groups commonly claim that allowed power levels are conservative by factors of 10 to 50, the association claims they are excessive by factors of 100 or more. Its findings are currently unassimilated. So far, no government-sponsored organization has sorted through the many reports, developed priorities, conducted well controlled research or performed regulatory analysis.

Investigation and regulation: Hazards from UHF radio exposure are not simple to investigate. Calibrated UHF survey meters with appropriate sensitivity cost around $20,000 or more. Some potential problems have been described as accumulating over long-term exposure, others as affecting a few percent of the population. Effective research may need large numbers of subjects and long durations. Mitigation measures have also received little attention so far, although UHF radio signals are readily blocked by even thin metal.

Zoning regulations, again at issue in Brookline, are not very flexible tools to address potential UHF radio hazards. However, a longstanding tradition in zoning, reacting to other uncertainties, has been to separate industrial activities from residential areas. That is currently the approach of Brookline’s zoning. As long as they do not prohibit telecommunication services, by leaving niches in which services can be located, zoning regulations are an obvious way we now have to reduce potential hazards that we cannot yet estimate well.

– Craig Bolon, Brookline, MA, September 7, 2014


Arthur W. Guy, et al., Biological Effects and Exposure Criteria for Radiofrequency Electromagnetic Fields, Report 86, [U.S.] National Council on Radiation Protection and Measurement, 1986

Barry Mishkind, WBZ and WBZA in Boston and Springfield, MA, Hammond Museum of Radio (Guelph, ON, Canada), 2004

Hammett and Edison, Statement re proposed base station site CA-SBR022, County of Santa Barbara, CA, 2007

Don Hayes, Petition Number 08-27 MetroPCS, Re 639 Granite St., Braintree, MA, Zoning Board of Appeals, 2008

Robert Baan, et al., Carcinogenicity of radiofrequency electromagnetic fields, Lancet Oncology 12(7):624-625, 2011

Where did our RF standards come from? Hammett and Edison, Consulting engineers (Sonoma, CA), 2012

David O. Carpenter and Cindy Sage, Eds., BioInitiative Report: A Rationale for Biologically-based Public Exposure Standards for Electromagnetic Radiation, BioInitiative Group (Santa Barbara, CA), 2012 (25 MB)

Kevin Fitchard, Verizon quietly unleashes its LTE monster, tripling 4G capacity in major cities, Gigaom Tech News, December 5, 2013

Planning Board: mending a fence and a ‘derelict’ house

A weekly meeting of the Planning Board on Thursday, September 4, started at 7:30 pm in the northern first-floor meeting room at Town Hall. Reviews of seven property improvement applications were scheduled, a heavy workload. Summer is the busiest season for property improvements, and the board had not met the previous week. The board elected Linda Hamlin as chair and Steven Heikin as clerk for the coming year. Ms. Hamlin, an architect, may be the first woman to chair the Brookline Planning Board.

Fence viewer’s call: A dispute over the height of a fence took more time than any other case. The fence at issue was recently built between two properties along Dudley St. The owners of the fence applied for a special permit allowing extra fence height, after their neighbor complained that the fence was over seven feet tall–the maximum allowed for the zone in a side yard, when less than 20 feet from a lot line.

The area’s terrain retains more of its natural variations than urban Brookline, with occasional rises and valleys. Before installing the fence, its owners sought to stabilize a slope with a retaining wall, along or near the lot line. At maximum, that raised their land elevation about three feet above their neighbor’s land. After they installed a fence six or seven feet high, from the neighbor’s land it looked nine or ten feet high.

Brookline specifies that height of a fence or wall is measured “above the natural grade,” and the building inspector who looked at the site took that literally, finding that the top of the new fence rose to more than seven feet above undisturbed land–too high. Special permits for extra fence height are allowed “to mitigate noise or other detrimental impact or provide greater safety,” but none of those circumstances seemed to apply.

Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen, represented the fence owners. The neighbor brought along a landscape designer who had worked on the property but no lawyer. As they often do, board members tried to mediate, seeking some avenue toward agreement. This time, they could not pull it off.

The neighbor offered to meet with the fence owners again, but the owners said that had been tried and didn’t work. Mr. Allen, who handles many such cases with generally calm demeanor, seemed to be exasperated over this one. He couldn’t take it “offline.” Faced with the impasse, the Planning Board briefly reviewed the zoning and sided with the neighbor, recommending the Board of Appeals deny a special permit for extra fence height.

Appeals Board cases: Polly Selkoe, assistant director for regulatory planning at the Planning Department, introduced Jay Rosa to the board. Mr. Rosa has taken a new Planning Department position as zoning coordinator. He will assume duties from the town clerk’s office, following and reporting cases at the Zoning Board of Appeals. Earlier in the evening, Mr. Rosa had attended his first two cases, including a controversial “garage triangle” on Walnut Place.

The Appeals panel visited the site that morning. While there, according to panel member Mark Zuroff, they saw two large trucks make their way past two cars parked in the Walnut Place triangle. Panel members said they did not believe the proposed garage entrance would become a nuisance or serious hazard. They allowed the Upland Road applicants on the case to modify their garage so as to enter it from Walnut Place rather than Upland Road.

A ‘derelict’ house: Another case that proved controversial proposed to alter a house on Beaconsfield Road with a rear addition and both front and rear dormers. The house, in a T-6 two family district, is now a two-family and would remain one. However, the 4131 square feet of gross floor area would be increased well beyond the 4593 square feet normally allowed. To get such an increase requires design review, giving the Planning Board considerable scope.

Members of the Planning Board were appalled to hear that much of the house had been ripped apart, leaving a shell. A nearby resident said the house, with “hardly any work going on since spring, looks like a derelict [and] is very dangerous.” Ms. Hamlin asked, “Is this the new thing: we tear it apart and then ask for permits?”

Mr. Allen, also representing the property owner in this case, was quick to observe that work so far was done under a building permit and had not added new space to the house. One board member thought that the house was in a National Historic Register district, inhibiting demolition, but the Beaconsfield Terrace district starts to the west, toward Beacon St. While Brookline’s zoning is fairly strict about disturbing landscaping before design review, it does not forbid demolishing walls and floors.

Board members turned to the proposed design. Mark Zarrillo, the outgoing chair, said “it looks too bulky.” Mr. Heikin said the design was “out of scale [and] out of character with the surroundings.” According to Ms. Hamlin, “The existing houses have an intimate scale.” The proposed front dormer, she said, “totally overwhelms that house…the scale is wrong…you’ve eliminated any detail that gave it any charm.” The board continued the case and will review it again after the owner and his architect revise their plans.

Zoning Board of Appeals: do cell phones deserve a zoning variance?

The Zoning Board of Appeals held a public hearing on Thursday, August 26, about a proposal from Verizon Wireless to install equipment for cellular telephone and data service on the roof of a Beacon St. apartment building, located between Coolidge Corner and Washington Square. Assigned to the hearing were the board’s chair Jesse Geller, a lawyer, joined by Mark Zuroff, a lawyer, and Christopher Hussey, an architect.

Zoning restrictions: Like many other communities, Brookline restricts cellular service equipment proposed for residential areas. Seeking an exception, Verizon was represented by Michael S. Giaimo, a lawyer from Robinson and Cole in Boston, and by Martin Lavin and George Evslik from the company’s technical staff. Also on hand were representatives from its contractors for this proposal: Daniel Hamm of Hudson Design in North Andover, a telecommunications engineer, and Eric Wainwright of Structure Consulting in Arlington, an installation manager.

Verizon’s representatives described a “coverage gap” along Beacon St. between Coolidge Corner and Washington Square. That and the nearby part of Washington St. are located in a valley between Corey Hill to the north and Addington Hill to the south. The two hills and some of the buildings block signals to and from existing Verizon equipment. The proposed installation, they said, would fill the “coverage gap.”

Section 4.09 of Brookline’s zoning bylaw regulates such installations, known in the bylaw as “wireless communications” and “wireless telecommunications” (WTc) antennas, facilities and equipment. As modified by town meeting in 2005 and 2010. this portion of the zoning bylaw currently reads, in part:

“[Section 4.09] 6. Use Regulations
“a. Wireless communications antennas and facilities shall not be located: (1) on any of the following structures: residences, public schools, hospitals, nursing homes or historical sites; (2) within 50 feet of any residence, nursing home or hospital; (3) within 50 feet of any historical site….”

Since Beacon St. in Brookline is listed on the National Register of Historic Places, at the proposed location WTc installations are apparently banned by all three subsections: on a residence, within 50 feet of a residence and within 50 feet of a historical site. The Building Department said a variance from Section 4.09.6.a would be needed. Much of the hearing was spent on whether circumstances justify a variance.

Searching for a site: The representatives of Verizon described searches for non-residential locations and said they had not found any suitable for the purpose. Potential locations were either on low-rise buildings, they said, or were too far away to help. Janice Kahn, a Precinct 15 town meeting member who has worked on WTc issues for many years, said Verizon should consider Brookline’s Fire Station 7, at 665 Washington St.

The Washington St. location Dr. Kahn pointed to is less than 300 ft from the location Verizon proposes to use. It is not subject to some of the restrictions for WTc equipment. Mr. Lavin of Verizon said the fire station had been investigated, but it has a steeply pitched roof with “no way to locate an antenna inside.” However, the fire station also has a hose-drying tower, about as tall as the building Verizon now proposes to use.

There are other alternatives. Dr. Kahn proposed distributed antenna systems, used in south Brookline to fill coverage gaps after many years of disputes over other approaches. Verizon representatives did not respond clearly to that proposal, suggesting that in high-density areas they were somehow impractical. Dr. Kahn objected, saying they are “ubiquitous in New York City [and] appropriate for commercial areas.”

Seeking a variance: Requirements for variances are not regulated by Brookline. Instead, they are specified by Chapter 40A of the Massachusetts General Laws, in Section 10. A key element is whether, for the property in question, the Zoning Board of Appeals can reasonably find that:

“owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or bylaw.”

One problem for Verizon is that, according to its representatives, the M-2.5 zoning district on middle Beacon St. generally suffers from weak cellular service, not just the property where it proposes to install equipment. Another is that Brookline’s bylaw says purposes of its regulations are to “encourage location of antennas on existing commercial buildings and structures rather than on residential ones….” [in Section 4.09.1]

Panel members seemed clear that Massachusetts and Brookline law did not justify a variance and sounded likely to deny one, but then they stepped back. Mr. Giaimo, Verizon’s lawyer at this hearing, said to the Appeals panel that under the Federal Telecommunications Act, “you have the authority to grant a variance.” He may have been trying to invoke controversial Section 332 of the 1996 act.

A federal case: Section 332 of the federal law says local authorities may not act “so as to prohibit the provision of personal wireless services.” That could be a red herring. In response to questions, Mr. Lavin of Verizon, supported by others, had affirmed that “there is some coverage, but it’s weak.” In other words, Brookline did not “prohibit the provision of personal wireless services.” Instead, Verizon wants to improve services but appears to resist added costs of such measures as outfitting Fire Station 7 or installing distributed antenna systems.

Panel members, apparently unfamiliar with the federal law, decided to continue the case in order to review it. They invited Mr. Giaimo to return at 7 pm on a fateful 13th anniversary this Thursday, September 11. More such cases look likely in the future, since the Brookline Housing Authority made an agreement with a company this summer to install WTc facilities at its buildings. Those are not on “town owned” property and will probably be regulated in the same ways as the apartment building now at issue on Beacon St.

– Beacon staff, Brookline, MA, August 30, 2014


Levin V. Czubaroff, Cell tower companies face a heavy burden of proof to succeed in a validity challenge to a zoning ordinance, Fox Rothschild (Philadelphia, PA), September, 2013

John C. Drake, Hang-up in Brookline’s cell antenna effort as neighbors object, Boston Globe, November 20, 2008

Bridget Samburg, Spotty reception slowing Brookline’s cell tower, Boston Globe, February 27, 2005

Board of Selectmen: anti-discrimination law, auto dealer transfer

A regular meeting of the Board of Selectmen on Tuesday, August 26, started at 5:00 pm in the sixth-floor meeting room at Town Hall. Board member Betsy DeWitt was in contact by telephone. There were no reports from departments or organizations.

Alex Coleman, a member of the Human Relations Commission, supported an article for the fall town meeting in November, from town counsel. It follows a resolution Dr. Coleman proposed as Article 31 at this year’s annual town meeting, affirming support for the prohibition of discrimination or harassment on the basis of gender identity or gender expression in employment, housing, public accommodations, credit, lending and public education.

When town meeting approved Article 31, it added an amendment proposed by the Advisory Committee and endorsed by the Board of Selectmen, asking Brookline’s legal staff to review the town’s bylaws and propose changes at the next town meeting to make them “consistent with [the] purpose” of the resolution. That is what the new article is intended to do. Several parts of town bylaws would change, adding “gender identity and gender expression” to categories of prohibited discrimination.

The new article is being proposed to town meeting by the Board of Selectmen. Chair Kenneth Goldstein asked Dr. Coleman if he and other petitioners for the previous article wanted to join as co-sponsors of the new one; they do. Dr. Coleman explained that addressing discrimination in public accommodations will be particularly helpful, because of gaps in state and federal anti-discrimination laws. The article will be filed by joint sponsors.

Audi of Brookline, at 308 Boylston St., is the town’s last remaining dealer in new automobiles, after departure or closure–over the past forty years–of former Cadillac, Ford, Buick, Oldsmobile, AMC/Jeep, Volvo, Saab and Volkswagen operations on Commonwealth Ave., Beacon St., Harvard St., Boylston St. and Hammond St. The Audi dealership was recently bought by the Herb Chambers company, which applied for transfer of a license to sell used vehicles at the site.

Boston’s and Brookline’s former automobile row on Commonwealth Ave., starting at the B.U. Bridge and proceeding west, is entirely gone. From about 1910 through 1990, most U.S. and major foreign automobiles could be found along both sides of this three-quarter mile of street. The only reminders now are Herb Chambers operations up Brighton Ave. and past the bend at Packard Corner on Commonwealth Ave.–selling and servicing over 30 makes.

The Herb Chambers company was represented by Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen, by Brad Gomes and Steve O’Neill, general managers for Herb Chambers, and by Antonio Bruno, designated manager of the Audi division in Brookline.

The board questioned Capt. Michael Gropman of the Brookline Police Department about incidents on Lawton St., involving vehicles connected with the nearby Herb Chambers operations, parked on the street and dropped off at night by tow trucks. After Brookline police intervened about six months ago, Capt. Gropman said, Herb Chambers managers stopped those problems, and apparently they have not recurred.

Problems have also been reported in the past on East Milton Rd., a short street off Cypress St. that ends at the back of the Brookline Audi property fronting on Boylston St. One resident of the street spoke about recent pickup and dropoff of materials via East Milton Rd. and about continuing use of the street by vehicles being repaired. There is something going on making lots of noise and fumes, he said, maybe work on wheels.

Mr. O’Neill of the Herb Chambers company said the work was wheel refinishing, done within company premises by a contractor who uses state-approved equipment. The neighborhood resident said the Brookline Health Department had found the operation lacked proper filters, allowing fumes to escape. Mr. O’Neill denied that there had been a citation. He also said a vendor comes by about every two weeks to pick up waste motor oil at the East Milton Rd. access, because an oil storage tank had recently been moved there during a renovation.

According to statements, car dealerships have operated at the site since the 1930s. There are many departures from current zoning, but they can continue as long as they are not worsened. Mr. Allen said that under Herb Chambers management there would be no expansions of uses and buildings. He said an “Audi image program will force beautifying the premises.” The board approved the license transfer, subject to several health and safety conditions, including all the current conditions.

– Beacon staff, Brookline, MA, August 29, 2014

Planning Board: a house trying to eat a hill

A weekly meeting of the Planning Board on Thursday, August 21, started at 7:30 pm in the northern first-floor meeting room at Town Hall. Reviews of five property improvement applications were scheduled. A proposal to convert a single-family house at 227 Tappan St. to a two-family house drew strong neighborhood opposition.

SC districts: Many properties near the peak and on the south and east sides of Addington Hill are in types of zoning called SC-7 and SC-10. SC zoning was introduced in the early 1960s, when Brookline made its first major revisions to zoning since 1922. Single-family houses in SC districts can be converted to two-family with special permits approved by the Zoning Board of Appeals.

The single-family property at 227 Tappan was bought by a developer this year, who applied for a conversion permit. Several such conversions have not aroused much controversy, because owners maintained the outlines of houses and added inconspicuous second entrances. In this case, however, the developer plans to add a large extension onto the rear of a two-story house, more than doubling the floor area.

House on a hill: Slopes along the south side of Addington Hill are among the steepest in Brookline. No cross street connects Tappan St. to Rawson Rd. uphill from it except Garrison Rd., in relatively flat territory near Beacon St. Several properties along the middle section of Tappan St., including the one at 227, have deep lots with steep, heavily forested slopes in back.

Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen, represented the developer–who also brought along an architect and a landscape designer. Comments from members of the Planning Board indicated they saw skilled and professional efforts to plan construction on the steep rear slopes, while largely maintaining current appearances from Tappan St.

It was just those factors that most alarmed neighbors. They presented a memorandum of objections, and several spoke out about their concerns. Construction plans call for a large excavation, probably scooping out several hundred cubic yards of Addington Hill and uprooting or disturbing mature trees. Big, deeply set retaining walls would be needed. The scale of land disturbance is rare except for major buildings and highways.

Objections: Next-door neighbors were upset about the potential for “shifting of the ground,” as one put it. “We’re going to end up with a cracked foundation,” he predicted. Drainage from Addington Hill onto Tappan St. has “a 50-foot head…[it] will flow onto adjacent properties” and may flood them. For those Tappan St. residents, it was “not a question of aesthetics but a serious structural problem.”

Other neighbors were concerned about a concentration of automobiles opposite the intersection of Tappan St. with Beaconsfield Rd. Based on parking designs, there can be five to seven instead of only one, they said. The neighbors said current driveways are hazards for children, especially during snow season, but the proposed one would be much worse. because of its location and the number of cars there.

Lee Cooke-Childs, a Precinct 12 town meeting member who lives on Rawson Rd., directly behind the Tappan St. property, objected to disturbing trees. It’s “a climax forest,” she said, asking whether “their excavation is going to threaten the roots of my trees.” Another resident, a few doors away on Tappan St., observed that “60 percent of the lot is flat…[yet] the plan will tunnel into the hill.”

Alex Coleman, a member of the Human Relations Commission who lives on the other side of of Tappan St., said neighbors were at work on a proposed zoning change for part of the SC-10 district. However, Dr. Coleman conceded such a change would come too late to prevent the development proposed for 227 Tappan St., if it were allowed by the Appeals board.

A skeptical board: After hearing from the neighborhood, Planning Board members began to express skepticism about the proposal. However, board member Steve Heikin said Brookline did not have much leverage over dimensions, since the plan observes Brookline limits for floor area and setbacks. He recalled a recent, large Toxteth St. development that needed no special permits, saying it had inspired a neighborhood conservation district enacted at the 2014 annual town meeting.

Board member Robert Cook was probably the most direct. “It’s way too big,” he said. Board member Linda Hamlin said she didn’t “think it meets community standards…asking for too much.” Board member Sergio Modigliani, an architect, said the plan was “a big reach, as much as possible inside that envelope.” Mark Zarrillo, the board’s chair and a landscape architect, summed up. “I can’t support this,” he said, “The project is too big.”

Faced with little or no support from Planning Board members, Mr. Allen looked for an alternative. “Maybe we could return on September 4,” he said, “Maybe we could come back with something like” what amounted to around a 20 percent smaller house. Mr. Zarrillo recommended the developer and his architect look into “extra height to avoid a larger footprint.”

The developer said he “would be willing to engage…if it was worthwhile.” Mr. Zarrillo responded, “You need to talk to the neighbors.” The developer said, “I’ve tried to have that conversation…only one person showed up.” Tentatively, the Planning Board scheduled another review for September 18 and continued the case without voting a recommendation.

– Beacon staff, Brookline, MA, August 22, 2014

Zoning Board of Appeals: trying to square a garage “triangle”

The Zoning Appeals Board held a hearing on Thursday, August 14, for the “triangle” zoning case on High Street Hill. Owners of a house on Upland Road, opposite Philbrick Square, applied to restructure a garage in back so as to use an entrance from Walnut Place, a narrow private way, instead of a long driveway from Upland Road. Assigned to the hearing were the board’s chair Jesse Geller, joined by Mark Zuroff and Avi Liss–all lawyers.

Issues: The case involves a proposed garage entrance on a “triangle” created by a flared-out curve of Walnut Place. The twelve owners of houses on Walnut Place oppose the plan, saying it would become a “blind driveway” and would be unreasonably hazardous. What might have been a quiet dispute turned into fireworks, with two of the town’s most experienced property lawyers representing Upland Road applicants for the plan and Walnut Place opponents of it.

A current side of the garage would not ordinarily be used for an entrance, according to Brookline’s zoning bylaw. The outside of the Walnut Place curve flares out along lot lines, one parallel to the side of the garage and perhaps a foot from it. A garage entrance has to be at least 20 feet from a “street.” [Table 5.01, note 1] A “street” means “a public or private way.” [Section 2.21] However, since the Building Department did not cite those issues when reviewing the plan, the Appeals panel was not going to consider them.

The Appeals panel also declined to review an objection from owners of Walnut Place houses that the Upland Road owners have no right of vehicle access to and from Walnut Place. Accepting advice from Brookline’s town counsel and from the Planning Board, Mr. Geller called that a “property dispute” to be settled among the parties or in a court of law.

In favor: Scott Gladstone, a Brookline-based lawyer and a Precinct 16 town meeting member, represented the Upland Road applicants for the garage plan. He said the current garage had been built about 1927, after Brookline enacted zoning but before it had today’s dimensional requirements. He then tried to embroider that bit of history with arguments over access to Walnut Place.

Mr. Gladstone claimed there was a deed “with all rights of access to Walnut Place,” Mr. Geller would have none of that, calling it a “floodgates” type of argument: “the camel’s nose under the tent.” Members of the Appeals panel said they had no jurisdiction over deed rights.

The applicants were going out of their way to preserve historic appearance of the garage, Mr. Gladsone said. It is located in one of Brookline’s historic districts, but the Preservation Commission has found extra effort not required, because the side of the garage is not visible from Walnut St. or any other public way. Mr. Gladstone argued the effort was a “counterbalancing amenity,” helping justify a special zoning permit.

Opposed: Jeffrey Allen, also a Brookline-based lawyer and a former chair of the Board of Selectmen, represented Walnut Place owners in opposition. He argued the garage plan called for a “structure” on the Walnut Place “triangle”–namely, a driveway. Part of Walnut Place, now shared property, he said, would become a driveway for “personal use” of the applicants.

In Mr. Allen’s version of the hazard arguments, “Kids will be playing in someone’s driveway [instead of in the 'triangle' as it has been] used by the neighborhood for 40 [or more] years…Walnut Place is narrow; two cars can’t pass…there hasn’t been any safety analysis.” Mr. Allen then invoked several sections of state law and of the Brookline zoning bylaw.

He made a complex claim that the plan would turn the back of the Upland Road property into a second “front yard,” where an “accessory structure” such as a garage is not allowed. Mr. Zuroff asked whether the “triangle” was part of Walnut Place. Mr. Allen replied that he had not “done the research.”

Other views: The Building Department may not have done it either. Michael Yanovitch, the chief building inspector, said that the plan did not call for any improvements on the “triangle,” so it had not been a consideration. The arguments about front yards were not relevant, he said, because the purpose of front yard requirements was to determine whether lots were buildable–not at issue in this case.

One of the Walnut Place owners spoke up, saying they cooperated in “landscaping along this road” and that the proposed garage access would involve “three-point turns [taking] all the ‘triangle’ and some of the way.” The plan, he said, treats Walnut Place owners “as second-class citizens…we’re entitled to equal protection.”

In rebuttal, Mr. Gladstone said there was no plan to alter the “triangle.” All its current uses could continue, he said, except perhaps “guest parking” that would block the proposed garage entrance. One reason for the plan was the difficulty of clearing snow on the current, 100-foot driveway. The applicants, he said, are “not the spring chickens they were.” One of them spoke from the audience, saying they would provide “another pair of hands” to help with Walnut Place in the future.

Reaching a decision: Concerning one of Mr. Allen’s issues, general requirements for a special permit in Section 9.05 of the zoning bylaw, Mr. Yanovitch said, “We don’t know.” Those matters involve judgment calls. The Zoning Board of Appeals functions as a local judicial body to make them. Members of the panel focused on two of the requirements:

• The use as developed will not adversely affect the neighborhood.
• There will be no nuisance or serious hazard to vehicles or pedestrians.

Panel members decided to continue the case. They plan to visit the site at 8 am on Thursday, September 4, then reconvene at 7 pm in Town Hall to discuss the issues and reach a decision.

– Beacon staff, Brookline, MA, August 15, 2014


Correction: Thanks to a reader for pointing out that Walnut Place owners were represented by Jeffrey Allen, not another well-known Mr. Allen who is also experienced with Brookline property cases.

Open meetings in government: groping toward transparency

Before the late 1950s, the Brookline, MA, Board of Selectmen would often meet behind closed doors during weekday afternoons, served refreshments on fine bone china and crystal. They were not an unusual board. In 1957, the Worcester Telegram reported on 27 communities in central Massachusetts and northern Connecticut, finding ten where all government meetings were closed to the public. [Harvard Law Review, 1962, p. 1199]

Open meeting traditions: Contrary to common impressions, open meetings of government bodies are relatively recent in the United States. Aside from New England town meetings, they are not longstanding traditions. Like the “voter rights” of referendum, initiative and recall, most come from twentieth-century reforms. Voter rights laws surged early in the century, while “open meeting” laws surged in mid-century.

Two Massachusetts laws, the Open Meeting Law and the Public Records Law, regulate public information from government organizations. Since the nineteenth century, newspapers had sought government meetings open to the press and the public, but the idea did not gain force until after World War II. Then, during the postwar era of the television and automobile, it engaged “modern thinking” of the day.

At the time, Massachusetts was not engulfed in strong controversy over corruption. At a mention of official corruption, people might have recalled a former mayor of Boston, James Michael Curley, by then out of office and in fading days. Scandals over MDC contracting, embezzlement at the Boston Common garage and bribery at the State House lay in the future. Strong controversies of the day involved the witch-hunt for Communists, the McCarthy scandal and rights to equal education–seen as a Southern issue, notably in Little Rock, AR.

Open meeting law continues to evolve. In Massachusetts, there have been several versions–the latest so far coming about 50 years after the original. Each law has been more complex. The Massachusetts laws applied to cities and towns in 1958, in 1978 and in 2009 amount to about two, five and eleven printed pages.

Original open meeting law: The Massachusetts Newspaper Information Service, an industry alliance, tried to get an open meeting law passed in 1957 but failed. The next year, two influential state senators, Silvio O. Conte, Republican of Pittsfield, and John E. Powers, Democrat of South Boston, took up the cause, sponsored a similar bill and got it through. [Legislative Research Council, 1959]

The original Massachusetts Open Meeting Law, enacted via Chapter 626 of the Acts of 1958, would be regarded as a weak law today. However, it was pathbreaking for its era. It provided separate requirements and sections of the General Laws for state, county and municipal arms of government. One key to getting the law passed can be found in a blanket exemption for the General Court–then and now hierarchical and secretive.

Massachusetts residents still have no rights to meeting notices, open meetings and meeting records from their state legislature. Those elements remain primary features of open meeting laws–now found in all states and the District of Columbia, although in widely varying forms. In 1958, the laws governing Massachusetts city, town and regional district organizations appeared in Chapter 39 of the General Laws, Sections 23A and 23B.

The original Massachusetts Open Meeting Law required only 24 hours notice of a meeting and counted all days of the week, including days when offices were closed and notices could not be read. It provided no penalty for violating the law, while Michigan now stipulates up to one year and Arkansas up to 30 days in jail. A citizen’s only recourse then was to pursue a lawsuit. The only remedies might be nullifications of particular actions and injunctions against future violations. Those were expensive remedies, rarely obtained.

The 1958 law required “accurate records” of meetings, but it did not say what information the records had to contain. Indeed, it did not define what a “meeting” meant, leaving a potential for boards to hold official meetings under the law but also to hold other, unofficial gatherings, not labeled as “meetings.” There was no provision to inform officials about the open meeting law, leaving ignorance of the law as a convenient excuse for violating it.

Nevertheless, in some respects the original Massachusetts Open Meeting Law proved potent and visionary. For example–unlike laws of many other states–advisory groups such as the Commission for the Disabled, the 2007 Override Study Committee and the Advisory Committee of town meeting have been subject to the law. Unlike Maryland’s law, for example, the 1958 Massachusetts law contained no catch-all exemptions, such as closed meetings “for compelling reasons.” [now repealed, Pupillo, pp. 1169, 1181] The 1958 law made “all meetings” subject to requirements. That was vague but potentially included informal meetings and official “events.”

Open meeting law changes: In the wake of corruption scandals–including favoritism in MDC contracting during the late 1950s, embezzlement at the Boston Common garage in the early 1960s and bribery at the State House in the 1960s and 1970s–among other measures, the General Court strengthened the Open Meeting Law. By 1978, many features of the current law were in place. The 1978 Open Meeting Law defined critical terms and narrowed the justifications for executive sessions.

A reform, by 1978, extended the required period of meeting notice to 48 hours, “including Saturdays but not Sundays and legal holidays.” Records of a meeting were required to include “the date, time, place, members present or absent and action taken”–although not topics discussed. New members of local boards were to be supplied with copies of the law. Members of the public were authorized to operate tape recorders. District attorneys were authorized to investigate complaints. Orders could be issued by judges invalidating actions taken at meetings violating the law and requiring future compliance.

The 1978 law excluded a “chance meeting or a social meeting” from coverage, provided “no final agreement is reached” on “official business.” That was eagerly sought by some of the more regressive boards. It opened a loophole at least as big as Maryland’s closed meetings “for compelling reasons.” Rogue boards could do all their reviews and wrangling at private “social” gatherings, merely formalizing actions in public.

Current open meeting law: The Open Meeting Law of 2009 provides several reforms. A notice for a meeting is now required to include an agenda, “topics that the chair reasonably anticipates will be discussed at the meeting.” A notice must be “visible to the public at all hours.” Members of the public are authorized to operate video as well as audio recorders and to “transmit [a] meeting through any medium.”

Minutes of a meeting must now include “a summary of the discussions on each subject.” Meeting records now include “documents and other exhibits.” Those could be charts, diagrams, drawings, sketches, renderings, maps, photographs, computer files, film-slide or computerized presentations, and video or sound recordings. Furthermore, “No vote taken at an open session shall be by secret ballot. Any vote taken at an executive session shall be recorded by roll call and entered into the minutes.”

The required notice period now excludes Saturdays. The loophole for “social” and other private meetings in the 1978 open meeting law is much narrowed. They are now exempt from requirements only when “members do not deliberate,” defined in the law to include “oral or written communication through any medium, including electronic mail, between or among a quorum of a public body.” Distribution of documents is allowed, without opinions, for discussion at future meetings.

Enforcement of the Open Meeting Law has shifted from district attorneys to the state attorney general, who is required to operate a “division of open government” and to prepare an annual report on enforcement. The attorney general is also authorized to “promulgate rules and regulations,” to “interpret the open meeting law,” to “issue written letter rulings or advisory opinions,” to “create and distribute educational materials” and to “provide training to public bodies.”

The 2009 Open Meeting Law requires a complaint to be pressed with the body alleged to have violated the law “at least 30 days prior to the filing of a complaint with the attorney general.” There was formerly no such restriction on filing a complaint with a district attorney. The attorney general may also act independently, upon “reasonable cause to believe that [someone] has violated the open meeting law.” In cases responding to complaints, the attorney general can “impose a civil penalty” up to $1,000 for “each intentional violation.”

The Office of the Attorney General issued initial regulations, effective in July, 2010, and updated regulations, effective in September, 2012. The open meeting regulations resolve some ambiguities in the law. For an agenda required in a meeting notice, they require that the “list of topics shall have sufficient specificity to reasonably advise the public of the issues to be discussed at the meeting.”

The regulations take account of electronic communication. They provide for electronic posting of notices and govern remote participation at meetings, requiring roll-call votes. For a meeting notice to be valid, they say, “The date and time that the notice is posted shall be conspicuously recorded thereon or therewith.” The regulations also detail procedures for filing and resolving complaints, for performing investigations that are initiated by the attorney general and for issuing advisory opinions.

Missing reforms: The Massachusetts Open Meeting Law remains hobbled by complex and weak enforcement. Members of boards, committees, commissions and councils can and do violate the law often and with impunity. In the rare event of a “civil penalty,” the city, town or district that houses the faulty organization is on the hook, not the people who actually violated the law.

Antonio Cabral, a New Bedford state representative who formerly co-chaired the Joint Committee on State Administration and Regulatory Oversight and who was a chief author of the 2009 Open Meeting Law, proposed a small but useful reform, starting in 2006. H.2786 for the 2013-2014 session would have authorized fines of up to $200 for people who violate the law–still far short of sanctions in Michigan and Arkansas.

People who attend public meetings will often be mystified by documents exchanged among members of boards, committees, commissions and councils. There remains no requirement for those to be disclosed to the public at or in advance of a meeting. The Brookline, MA, Board of Selectmen does so voluntarily, through “packets” available on paper at meetings and in electronic form on the municipal Web site. Missing requirements for draft minutes and a missing deadline for minutes to be available remain as barriers to public information.

– Craig Bolon, Brookline, MA, August 10, 2014


Open meeting statutes: the press fights for the “right to know,” Harvard Law Review 75(6):1199-1221, April, 1962 (unsigned)

Teresa Dale Pupillo, The changing weather forecast: government in the sunshine in the 1990s–an analysis of state sunshine laws, Washington University Law Review 71(4):1165-1187, 1993

Rebecca Fater, Legislation would overhaul state’s Open Meeting Law, Lowell (MA) Sun, March 14, 2006

Suzanne J. Piotrowski and Erin Borry, An analytic framework for open meetings and transparency, Public Administration and Management 15(1):138-176, 2010

Massachusetts Open Meeting Law of 1958, as applied to cities and towns, in General Laws Chapter 39, Sections 23A and 23B

Massachusetts Open Meeting Law of 1978, as applied to cities and towns, in General Laws Chapter 39, Sections 23A through 23C

Massachusetts Open Meeting Law of 2009, consolidated, in General Laws Chapter 30A, Sections 18 through 25

Massachusetts Office of the Attorney General, Open Meetings, 940 CMR 29 regulations, current

Massachusetts General Court, Fourth annual report of the Legislative Research Council and Legislative Research Bureau, Report 1599, January, 1959

Massachusetts General Court, Public officers of the Commonwealth of Massachusetts, 1957-1958

Override Study Committee: Open Meeting Law problems

Open Meeting Law: Meetings and meeting records of government organizations in Massachusetts are currently regulated by the Open Meeting Law of 2009 and by corresponding state regulations. [G.L.C. 30A, Secs. 18-25, and 940 CMR 29] They require every organization to hold all meetings in public–except for ten strict exceptions–and to prepare, keep and distribute accurate records of meetings.

Since 2008, Article 3.21 of the Brookline Bylaws has also regulated meetings of government organizations in the community, It requires posting meeting notices and records on Brookline’s municipal Web site and provides for distribution of information by e-mail.

State law requires a notice for a meeting to be posted 48 hours before the start of the meeting, “excluding Saturdays, Sundays and legal holidays.” [G.L.C. 30A, Sec. 20(b)] A notice must include an agenda: the “list of topics shall have sufficient specificity to reasonably advise the public of the issues to be discussed.” [940 CMR 29.03(b)]

Notices on the Web site cannot satisfy state regulations now, because they fail to provide for “the date and time that the notice is posted [to] be conspicuously recorded thereon.” [940 CMR 29.03(1)(b)] Notices at the town clerk’s office cannot satisfy state law, because they are not “conspicuously visible to the public at all hours.” [G.L.C. 30A, Sec. 20(c)] Brookline organizations post notices both on paper at the town clerk’s office, where they are time-stamped, and on the Web site, where they are visible at all hours.

State law also requires a government organization to “create and maintain accurate minutes of all meetings.” [G.L.C. 30A, Sec. 22(a)] In addition to minutes, state law provides that meeting records include “documents and other exhibits.” [G.L.C. 30A, Sec. 22(d)] Those could be charts, diagrams, drawings, sketches, renderings, maps, photographs, computer files, film-slide or computerized presentations, and video or sound recordings. Brookline’s bylaw requires records of meetings to be posted on the municipal Web site. [Sec. 3.21.4]

The Massachusetts Open Meeting Law requires all members of government organizations participating in meetings to certify receipt of copies of the law, the regulations and instructions from the attorney general. [G.L.C. 30A, Sec. 20(g)] It will not be easy to claim ignorance of the law. Violations are punishable by fines of up to “$1,000 for each intentional violation.” [G.L.C. 30A, Sec. 23(d)(4)] The attorney general can “nullify in whole or in part any action taken” in violation of state law or regulations. [G.L.C. 30A, Sec. 23(d)(3)]

Patterns in Brookline: Brookline boards, committees, commissions and councils have varied patterns of compliance with the laws and of making information available to the public. A few–including the Board of Selectmen–distribute both on paper and via the Web timely and detailed meeting notices, punctual and thorough minutes, and supporting documents including contracts and reports.

Other organizations provide the public with spotty or unusable information. For example, some PDF files distributed by the Planning Department are internally scrambled. They can be viewed but not searched. If one tries to mark and copy a segment for reference, when pasted into a document one gets gibberish. This will not happen by accident; Planning Department staff must configure documents to cause the behaviors. The practices are not currently forbidden by law, but they violate the spirit of so-called “open government” to which Brookline says it is committed.

Actions of the Override Study Committee: Actions of the Override Study Committee of 2013 illustrate some of the serious and typical problems. That committee was appointed on August 13, 2013, and voted its recommendations on July 30, 2014. It has yet to distribute a final report. The organization is neither at the best nor at the worst of Brookline’s Open Meeting Law compliance.

During the year from August, 2013 through July, 2014, the Override Study Committee formed nine subcommittees. The combined groups held a total of 174 meetings. Problems began early. As of August 1, 2014, minutes for two of the 12 meetings held in October, 2013, still could not be found on the Brookline municipal Web site. One group was diligent with minutes, but the others were not. Three posted minutes for only about 20 percent of their meetings.

Organization Meetings Minutes Percent
Override Study Committee 37 21 57%
Benefits subcommittee 4 4 100%
Capital subcommittee 20 4 20%
Demographic subcommittee 32 17 53%
Fiscal subcommittee 9 2 22%
Municipal subcommittee 18 11 61%
Populations subcommittee 17 3 18%
Revenue subcommittee 12 8 67%
School program task force 19 11 58%
Schools subcommittee 6 5 83%
All combined 174 86 49%

Overall, minutes for less than half the 174 total meetings had been posted by August 1. Compliance with Open Meeting Law requirements for minutes collapsed after April. As of August 1, minutes had been posted for only one of the 43 meetings held in May, June and July. Without spending hundreds of hours at meetings, the public had almost no way to know what the committee had been doing.

Year Month Meetings Minutes Percent
2014 Jul 16 0 0%
2014 Jun 15 1 7%
2014 May 12 0 0%
2014 Apr 14 9 64%
2014 Mar 18 13 72%
2014 Feb 11 8 73%
2014 Jan 28 15 54%
2013 Dec 24 12 50%
2013 Nov 22 16 73%
2013 Oct 12 10 83%
2013 Sep 2 2 100%
2013 Aug 0 0 N/A
Total 174 86 49%

The committee and its subcommittees have entertained exhibits of statistical spreadsheets, budget models and computerized presentations at their meetings. So far, despite the requirements of state Open Meeting Law and Brookline law, those have not been posted on the municipal Web site. The committee is currently trying to use information withheld from the public. Since the information was openly conveyed in public sessions, it does not qualify for any of the exceptions in the state Open Meeting Law.

A vote by the full committee taken July 29 did not use a roll call, although one member was connected by telephone–contrary to state regulations, which require roll call votes when any member is participating remotely. [940 CMR 29.10(7)(c)] No exception is obtained by calling something a “straw vote,” as one committee member tried to do. The motion failed on a tie vote, treated as disposative. If a vote matters, then it’s a vote.

The seven full committee meetings this July were described to the public only through opaque and generic notices, saying the committee might do any or many of various things it is authorized to do. Without inside information, the public had no reasonable notice that on July 30–unlike the other days–the committee would vote a recommendation on a permanent, general tax override.

State open meeting regulations require, on a meeting notice, that “topics must be sufficiently specific to reasonably inform the public.” [940 CMR 29.03(b)] They were not, yet insiders clearly knew. A quorum of the School Committee was present at that July 30 meeting but not the others.

– Craig Bolon, Brookline, MA, August 7, 2014


Attorney General of Massachusetts, Open Meeting Law Guide, August 1, 2013

Office of the Attorney General, Open meetings, Massachusetts Regulations 940 CMR 29

Article 3.21, Readily accessible electronic meeting notices, agendas and records, Brookline Bylaws

Bicycle markings: unsuccessful in B.U. neighborhoods

Writing in the Boston Globe of Saturday, August 2, Martine Powers reported that bicycle signs and painted street markings in B.U. neighborhoods have failed to prevent fatal crashes. She reviewed police reports for Commonwealth Ave. between the B.U. Bridge and Packard Corner, where Commonwealth Ave. bends and Brighton Ave. begins. Along most of this part of Commonwealth Ave., Brookline takes up on the inbound side of the street at the building doors, so the street is part of Brookline as well as Boston neighborhoods.

That segment of Commonwealth Ave. has elaborate bicycle markings, including signs, green-painted lanes and many safety warnings. A showcase for the late Menino administration, it may be the most developed example of a major, bicycle-oriented urban street in New England. However, it has no physical barriers between bicycles and motor vehicles, it has no traffic signals for bicycles and there is little enforcement of bicycle laws.

According to Ms. Powers, over the three years from 2010 through 2012, on just that 3/4 mile of Commonwealth Ave., 68 bicycle crashes were reported to Boston police–including a fatal incident in 2012. Ms. Powers does not seem to know much about the neighborhoods. If she did, she might have heard about one of our fellow bicyclists who was run over at the same location in nearly the same way forty years earlier–before there was a Paul Dudley White bicycle path and long before almost anyone in New England heard of bicycle markings. Although in the hospital for weeks, our friend survived.

A typically disjointed Boston administration is now about to reconstruct that stretch of Commonwealth Ave., according to the Globe. That part of the street was recently repaved, got new sidewalks and trees and is just fine, but the Walsh administration apparently has federal money burning a hole in its pocket and no better use for it. A pressure group called Boston Cyclists Union decided to campaign for physically separated bicycle lanes.

As Bill Smith of Brookline’s Engineering staff found out several years ago, when planning a Beacon St. reconstruction, even a more spacious street with a generous center median has only a finite amount of width in which to fit pedestrians, trolleys, trees, shrubs, motor vehicles, parking and bicycles. In the end, Mr. Smith did not design physically separated bicycle lanes for Beacon St.

Eventually Transportation staff added a few bicycle markings–more recently amended with green-painted lanes and signs. Some markings were in place a few years ago but failed to prevent a fatal incident on Beacon St., similar to the Boston incident of 2012, in which a bicyclist was run over by a truck making a turn.

The Commonwealth Ave. design is being rushed to beat a grant deadline. It’s easy to see the Walsh administration making an even bigger mess than the myopic Menino administration–in each of three major projects over about 20 years. Like Brookline on Beacon St., Boston is brushing off bicycle riders, recently suggesting special signals for them. Nearly all of today’s bicyclists on Commonwealth Ave. ignore the traffic signals they already have.

– Craig Bolon, Brookline, MA, August 3, 2014


Martine Powers, Bicycle advocates seek safety changes for Boston’s Commonwealth Avenue, Boston Globe, August 2, 2014

Bicycle facilities and the manual on uniform traffic control devices, U.S. Department of Transportation, 2014

Brookline government: public information and the committee forest

Brookline’s revised municipal Web site, appearing in June, displays pretty pictures and generally has more functional organization than the original site, which grew over several years. However, some former content has disappeared. On the Calendar page, for example, the entire archive of meetings earlier than June, 2014, has gone missing. Displays are empty. Previously, the archive went back to at least 2010.

Records of meetings: On the Agendas and Minutes page, content is spotty and can prove confusing. The page opens by showing all known meetings of all known organizations during the current year–usually an enormous display that would be hard to use. The key to using the page is a button labeled “Select a Category.” What the button actually does is display a checkbox-style list of known organizations.

The secret is to click on an item labeled “All Calendars” at the upper left–removing not only the checkmark on that item but checkmarks on all the others as well. Then one clicks on checkboxes for one or more organizations, to select them. Next, one clicks again on the button labeled “Select a Category.” The list of organizations goes away, exposing the selection of a year.

One can click on 2014, 2013, 2012 and “View More.” Clicking on “View More” brings up 2011 and 2010, which can be selected with a click. Finally, at the upper right of the list, one clicks on a button showing a circle with a short radial bar. Whatever that might suggest, it displays known meetings of selected organizations during a selected year.

Government organizations: As of August 1, there were 69 organizations in the Agendas and Minutes list. The site also has a Boards and Commissions page, listing 74 organizations as of August 1. Several in each list did not appear on the other list. Two of those organizations are the well known Board of Selectmen and School Committee, which have the major management duties. Others are appointed by those two, and still others are subcommittees. The Override Study Committee of 2013, for example, lists nine subcommittees, but the Override Study Committee of 2007 did not appear at all.

The Advisory Committee of Brookline’s representative town meeting, functioning for nearly a century, now has seven standing subcommittees and also forms temporary “ad hoc” subcommittees. None of those subcommittees appear in the Agendas and Minutes list. However, a display of Advisory Committee meetings includes some but clearly not all subcommittee meetings. They are particularly significant, because it is the Advisory subcommittees that usually hold public hearings. There is apparently no online access to minutes of many Advisory subcommittee meetings.

The Transportation Board has several subcommittees. Those active recently include at least Bicycle Advisory, Public Transportation, Traffic Calming and Taxi Medallion Conversion. Bicycle Advisory appears in the Agendas and Minutes list of organizations, but the others do not. A display of Transportation Board meetings includes some subcommittee meetings, including Bicycle Advisory. However, a display of Bicycle Advisory meetings is empty. There is apparently no online access to minutes of most Transportation subcommittee meetings.

The display of Transportation Board meetings also included one meeting of the moderator’s Committee on Taxi Medallions. However, that committee is freestanding. It is not a subcommittee of the Transportation Board. In addition to the Transportation subcommittee called Bicycle Advisory, there is a Bicycle Sharing Committee. It was appointed by the Board of Selectmen; no meetings are displayed for it.

There is a building committee for each major construction project. Those currently include the Runkle School, Heath School and Devotion School building committees. Members of older committees were Brookline employees and members of the Board of Selectmen and the School Committee. With the Heath and Devotion projects, they have also come to include members of other local government organizations and citizens at large. There are usually agendas and minutes for meetings. The Devotion committee appears to be the most diverse. Although still in early planning, it has already held more meetings than the Heath and Runkle committees combined.

The School Committee has currently organized itself into five standing subcommittees, with overlapping membership. Notices for both School Committee and subcommittee meetings have been appearing on the Calendar page of the municipal Web site, and agendas but not minutes appear on the Agendas and Minutes page. The school Web site displays minutes for full School Committee meetings, but none could be found for the more numerous subcommittee meetings.

The School Department has organized a council at each school. Their meetings were formerly announced on the Calendar page of the municipal Web site but have not been appearing on the revised Web site. No school councils appear in the Agendas and Minutes list of organizations. Notices and records for school councils were not found on the Web site maintained by Public Schools of Brookline, either. They are official groups that take positions on public issues. How they are satisfying responsibilities under the state Open Meeting Law remains unclear.

The Planning Board has appointed several design advisory teams. Some recently active ones focus on the Brookline Place and Cleveland Circle redevelopments, the hotel development at the former Red Cab site on Boylston St. and the Coolidge Corner commercial areas. None of them are shown in the Agendas and Minutes list of organizations or on the Boards and Commissions page. How they are satisfying responsibilities under the state Open Meeting Law remains unclear. One design advisory meeting was found under Planning Board meetings, but many others did not appear.

There are project committees for Brookline Place, Gateway East, Hancock Village, Olmsted Hill a/k/a Fisher Hill and “Waldo Street Area” in Coolidge Corner. Brookline’s municipal Web site has a page for each, listing members but not saying when the committee was set up, who appoints members and what they are supposed to do. Only Brookline Place and “Waldo Street Area” appear in the Agendas and Minutes list, so there is apparently no way to find agendas and minutes for the three others. Brookline Place has held 12 meetings in 2013 and 2014. “Waldo Street Area” has held 20 meetings in 2012 and early 2013. All have minutes.

Planning and project committees seem to overlap. There are apparently no Web pages for any of the design advisory teams, and Brookline’s municipal Web site does not appear to provide names or backgrounds of members. The standing Climate Action Committee (CAC) and Economic Development Advisory Board (EDAB) are different Each has its own page linked to the Planning Department’s pages. That might suggest they are Planning Board subcommittees. Instead, they are appointed by the Board of Selectmen.

CAC and EDAB make a study in contrasts. EDAB has been quite active and successful; it has a roster of 12 citizen members and gets staff support from Brookline’s economic development director in the Planning Department. CAC holds regular meetings and also gets Planning Department support, but overall it has been less active. It has three independent citizen members. The remaining 12 are designees of organizations. That is an approach much more often seen in state government, where it has tended to encourage lethargy.

Missing records: Many meeting records are missing. On a display of meetings, the “Download” buttons at the right produce empty windows. Clicking on the dates of meetings at the left is the way to display agendas. When an agenda is missing, one gets an otherwise empty window saying “No Agenda Available.” When minutes are available, toward the right there will be green icons showing checkmarks.

Minutes are missing for a large number of the meetings displayed. For example, no minutes were found for six Advisory Committee meetings from May 7 through July 7, 2014. No minutes were found for seven Planning Board meetings from June 18 through July 24, 2014. No minutes were found for any of the 16 meetings of the current Override Study Committee from May 7 through July 30, 2014. No minutes were found for any of the 23 meetings held by the Transportation Board and its subcommittees between January 1 and July 31, 2014.

Board of Selectmen: Records for the Board of Selectmen do not appear on the Agendas and Minutes page. There is a separate page just for them. On that page there are search tools not available for records of other boards, commissions and committees. The syntax of search text is not explained, but it appears similar to a Google search and does recognize a phrase enclosed by quotation marks.

In addition to agendas and minutes, records for the Board of Selectmen also include “packets”–displaying the contents of information made available to the public in packets of papers at meetings of the board. This is provided through a mix of original text pages and scanned image pages. The search tools look through only agendas and minutes; they will not find information in packets, even though it may be text.

Records for the Board of Selectmen appear fairly complete from September, 2011, through the present. However, they do not include a meeting held August 13, 2013, at which members of the current Override Study Committee were appointed. A paper notice for that meeting–obtained at the town clerk’s office–included a fairly full, normal meeting agenda, specifying appointment of those committee members.

The committee forest: If all the officially sanctioned organizations in Brookline’s local government could be listed, including subcommittees and temporary organizations during just the past few years, there might be around a hundred of them. News reports rarely mention most of them and almost never report their meetings or events–except for a few, particularly the Board of Selectmen, that have broad management duties.

Even the elected Library trustees and Housing Authority board get little attention, as do the Planning and Transportation boards. All four have substantial regulation and management duties. As a result, newcomers to Brookline are unlikely to know about the extensive, citizen-supervised government the town provides. Long-term residents are more likely to be aware of at least some of the organizations, but they too get sparse information about what the organizations are doing.

For those who use them, the municipal and school Web sites help to bridge some of the gaps. However, lack of current information from some organizations creates problems. In recent years, there have been occasional sentiments that the committee forest has grown too dense. Some committees may seem unengaged at times. However, there are also good examples–such as the Public Transportation Advisory Committee–showing renewed energy.

– Craig Bolon, Brookline, MA, August 1, 2014

Board of Selectmen: vacation, town meeting, personnel, contracts, licenses and trash metering

A biweekly meeting of the Board of Selectmen on Tuesday, July 22, started at 6:40 pm in the sixth-floor meeting room at Town Hall. There were no reports from departments or organizations.

Announcements: There will be no meetings of the Board of Selectmen Tuesday, July 29, or Tuesday, August 5. The next meeting scheduled is Tuesday, August 12, but that might be cancelled. Weekly meetings resume Tuesday, September 2.

A fall, 2014, town meeting is scheduled to begin Tuesday, November 18, at 7 pm in the High School auditorium. The warrant for the fall town meeting opens at the start of business Thursday, August 7, and closes at noon Thursday, September 4.

Town meeting articles require signatures of ten registered Brookline voters and must be submitted with written explanations, for the explanations to be published in the warrant report. Originals of articles with signatures are to be filed and time-stamped at the office of the Board of Selectmen, from which they will be forwarded to the town clerk to check signatures. Hearings on articles will be held by the Board of Selectmen, by subcommittees of the Advisory Committee and potentially by other town organizations.

Public comment: During the public comment period, Ernest Frey, a Precinct 7 town meeting member and a Human Relations commissioner, asked the board to appoint members to that commission, replacing ones who have resigned, so it can assemble a quorum for meetings. He sought an expedited process for current commissioners to join a new Diversity Commission that is expected to replace the Human Relations Commission in the fall. He asked Kenneth Goldstein, the board’s chair, when telling department heads to seek a “diverse pool of candidates” for new hires, also to say they should consult the human relations and human services administrator about practices to promote diversity.

The new commission will be set up when approval is received from the attorney general for actions of the 2014 annual town meeting. Neither Town Administrator Mel Kleckner nor any member of the board seemed to know that a letter from the attorney general, on file with the town clerk, says reviews will be completed September 28. Board member Nancy Daly observed that nine commissioners had been interviewed this year, and they might not need another interview. Current commissioners who want to join the new commission should indicate interest, she said, by filing the usual applications to join a board, commission or committee.

Personnel: The board interviewed Sara Slymon, recently hired as library director to replace Charles Flaherty. Ms. Slymon described a background of innovation but also said, “Our bread and butter is still books.” Asked about potential future projects, she declined to speculate. Over the past 25 years, Ms. Slymon has held ten positions in library services for durations of one to four years, most recently as library director in Randolph.

Paul Ford, the fire chief, got approval to hire for four vacant firefighter positions. Andrew Pappastergion, the public works director, got approval to hire another assistant engineer, in addition to one authorized June 24, because of a resignation. Mr. Goldstein omitted what had become his usual request to “seek a diverse pool of candidates.” Despite Mr. Frey’s plea, he said nothing on consulting the human relations and human services administrator about practices to promote diversity.

Contracts: Jennifer Gilbert, former town counsel and a special counsel for Cleveland Circle Cinema redevelopment, presented an amendment to Brookline’s agreement with First General Realty, the proposed developer. Copies were not supplied to the public in information packets distributed at board meetings but are supposed to be available later. Ms. Gilbert said First General needs a utility easement, expected to be sought at the fall, 2014, town meeting. The project will be described in a forthcoming Beacon article.

Mr. Ford, the fire chief, won approval to accept a federal grant of about $0.10 million to train staff as fire instructors. Once certified, they will train other staff of Brookline’s department in advanced techniques and may train staff from other communities. Brookline will have to come up with about $0.01 million in matching funds. Mr. Ford said he expects to find that within his department’s current budget.

Alison Steinfeld, the planning director, got approval to increase a contract with Beta Group of Norwood to review traffic and stormwater plans for a proposed Chapter 40B housing development at Hancock Village. Costs are being reimbursed by the developer.

Mr. Pappastergion, the public works director, got approval for a series of contract changes to complete the long-running sewer-separation project on lower Beacon St, between St. Mary’s St. and Pleasant St. Most costs of the $25 million project are being reimbursed by the state Water Resources Authority. However, about $0.1 million of ineligible costs was incurred because of failure to observe MWRA limits for engineering services. Mr. Pappastergion said he expects to cover those costs within his department’s current budget.

Erin Gallentine, director of parks and open space, got approval to reduce by about $0.06 million a contract with Quirk Construction of Georgetown to reconstruct Waldstein Playground, off Dean Rd. Town staff will do more of the project, including fencing, and it may take longer than planned to finish. Peter Ditto, director of engineering, got approval for an increase of about $0.01 million in a contract to repair the 55-year-old floor at Brookline’s transfer station. He said the original survey missed areas covered by refuse during the winter.

Ms. Gallentine also got approval for a contract with Touloukian & Touloukian of Boston, about $0.02 million to develop specifications to renovate doors and windows of the historic Fisher Hill Reservoir gatehouse. So far, the town has allocated $0.58 million for the project and has received a state grant of $0.04 million. Kenneth Goldstein, the chair, expressed reservation about the costly project, saying no use for the building has been identified, but he voted for the contract with the Touloukian firm.

Permits and licenses: A representative of Nstar sought permits for street work on Copley and Pleasant Streets to replace underground circuits. Mark Zarrillo of Copley St., chair of the Planning Board, asked the selectmen to delay the project so as to allow neighborhood review of plans. The area has a mix of underground and above-ground circuits, the latter recently upgraded from 4 to 14 kV. Mr. Zarrillo said that with the large amount of work in prospect, Nstar should be able to put all the circuits underground. The board agreed to a delay and will reconsider the project at a future meeting.

Michael Maynard asked for an exception to rules so that Coolidge Corner Theatre could serve more than one drink to a customer, including beer and wine. He said that a recent rule caused disruption in the theatre environment. According to Mr. Maynard, since the theatre started serving beer and wine four years ago, there have been only two incidents with “inebriated patrons,” both resolved without needing to call police. The board agreed that recent rules had been designed for a restaurant environment and allowed the exception.

Approval to transfer the common victualler (restaurant), liquor and entertainment licenses for Chef Chow’s at 230 Harvard St. was sought because of a change in management. Health, Building and Police reports were positive. There had been no citations for violations, and there was no opposition. The board approved. Colleen Suhanosky asked to add Sunday hours, 9 am to 4 pm, for Rifrullo Cafe at 149 Cypress St. There was no opposition, and the board approved.

David Iknaian sought a new common victualler license for Panelli’s Pizza, to be located at 415 Harvard St. Health, Building and Police reports were positive, and there was no opposition. The board approved, subject to conditions recommended by the Health Department.

Jenny Yu, a Winchester St. resident, sought new common victualler, wine and malt beverage, and entertainment licenses for Shanghai Jade, to be located at 1374 Beacon St. Health, Building and Police reports were positive, and there was no opposition. The board approved, subject to review of outside seating by the Department of Public Works.

Appointments: As often happens, the board slowed its pace when interviewing candidates for boards and committees: one for Climate Action and two for Solid Waste Advisory. Greg O’Brien, a recent law graduate, said he wants to work through Climate Action on solar power for condominiums and apartments. John Dempsey, chair of Solid Waste Advisory, said the town is currently “stuck” at about 9,000 tons of refuse a year, down from about 12,500 tons in 2007. Amie Lindenboim, also seeking reappointment to Solid Waste Advisory, said she agreed with Mr. Dempsey’s concerns.

Trash metering: On June 10, a plan to increase recycling through trash metering had been described to the board by Mr. Pappastergion, the public works director. He also described the plan at the annual public works “question time” on May 14. It involves town-issued 35-gallon refuse bins, one per household, collected under the current program of fees, plus added fees for extra refuse collection. At this meeting, board member Neil Wishinsky said changes needed to be publicized.

Mr. Dempsey said his committee’s role is “educational” and calls trash metering “pay as you throw.” The name as well as the concepts are hung over from rural and far suburban towns, where residents still take trash to town dumps and throw it into piles. That does not seem likely to educate or help Brookline, where public dumps closed and municipal refuse collection began more than a century ago.

– Beacon staff, Brookline, MA, July 23, 2014


Brookline Town Counsel, General guidelines to drafting warrant articles, August, 2006