John Flick wrote, “If the Council desires to seek a change in use of these Parcels, then the Law Department recommends that the Council reconsider its referral of the zoning petition to the Planning Board and commence with a PLPA change in use analysis. This will allow the Council to determine the likelihood that a change in use may be approved, and the potential cost to the City of obtaining a change in use. Without this knowledge, any consideration of a change in zoning is simply an academic exercise.”
In consideration of the City Solicitor’s opinion, and after further conversations with him, Councilor Dana Heath will be moving to withdraw the matter at the City Council meeting of Tuesday, September 5, 2023. Dana Heath confirmed to Gardner Magazine at 5pm on September 1, 2023 that he will move to withdraw the petition to change the zoning of the Route 140 parcels. He also stated that he will continue with proposed changes to add to the number of allowed marijuana establishments and to add Sports Betting to the Zoning Table of Uses.
Complete Packets for upcoming Tuesday, September 5, 2023 City Council meetings:
Informal re District Improvement Financing
Regular including various requests and the City Solicitor findings on the parcels as well.
Zoning Change Request Likely to be Withdrawn at Tuesday City Council Meeting – Parcels are “Open Space” – UPDATE – Confirmed.
City Solicitor John Flick wrote, “The evidence in favor of Article 97 protection of the Parcels is unequivocal.”
While the analysis is lengthy and may appear complicated, the conclusions drawn by City Solicitor John Flick regarding the 2 parcels in question are very clear: Read complete opinion in pdf format, CLICK HERE.
| John Flick on re 140 Zoning Petition |
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| Involves Parcels M47-22-4 and M47-24-1 – both likely protected under Article 97 – Acreage largely untouched for 100 years and identified as conservation land in City’s Open Space plan for 40+ years. Original intent when reviewing 1937 City Council minutes shows intent to keep as protected. (specifically to protect the city’s drinking water) |
| Change of zoning classification itself from residential to commercial does not constitute a change in use protected by Article 97 |
| Change of use would apply if Gardner decided to sell, lease, or license the land or develop it for public purposes which results in a change of use from one to another. |
| Article 97 protection is premised on the doctrine of “Prior Public Use” – in this case, as “protected open space.” |
| How land is used can only be changed by action in the Massachusetts Legislature and it’s a complicated process involving a 2/3 vote of City Council and a 2/3 vote of both the Massachusetts Senate and House of Representatives. Includes a requirement to first identify other parcels and /or value which could instead be dedicated to Article 97 uses. |
| Public Lands Protection Act Analysis should be conducted before any zoning change is considered. |
Our reasoning: If for some reason the request were not withdrawn at Tuesday Council meeting, the Planning Board will offer a recommendation at its meeting of September 19, 2023 after hearing from Dana Heath. As it voted to “Not Recommend” the last time around without the knowledge the parcels are protected, it would be expected that a unanimous vote to “Not Recommend” could be anticipated. Then the City Council would have to explain the lack of a withdrawal at an upcoming Public Hearing at which a significant number of people could be anticipated.
Deja Vu: At the Planning Board Meeting of March 22, 2023 and to his credit, Director Trevor Beauregard stated, “that whole area is in the watershed. Just so everybody understands….” Upon being challenged by the Mayor in the meeting who presented a conflicting state map, Mr. Beauregard continued, “Maybe we have different definitions of watershed, but, we have a watershed plan that shows that whole area as watershed.” As it turns out, Mr. Beauregard was correct 6 months ago. Conversation occurs about 23 minutes into this meeting, CLICK HERE