August 13, 2023

The Accessory Dwelling Unit zoning ordinance amendment was to be the big topic at Tuesday’s Lowell City Council meeting, but that turned out not to be the case. The City Solicitor apparently notified Councilors by email before the meeting that the amendments to the ordinance adopted by Councilors two weeks ago were a substantial enough change to the version of the ordinance that had been advertised for a public hearing to require an entirely new advertisement and public hearing to be held on the amended proposal. I say “apparently notified” because from comments by Councilors and the Solicitor during the meeting, this legal opinion was distributed to Councilors by email earlier in the day. Consequently, the notice was not included in the “meeting packet” that went online on Friday.

My memory is that this legal opinion was contrary to what the Solicitor on duty at the earlier meeting and the City Clerk had said two weeks ago. They both had indicated that Councilors could adopt any amendments they wished and then the ordinance, as amended, would be voted on right away and if it won a majority of votes, it would become law. Notwithstanding this apparent reversal, Councilors seemed to accept it without comment or question. Whether that was because Councilors agreed with the ruling or because they were taken by surprise by it was unclear.

Separate from that Councilor Corey Robinson moved that the ADU issue be continued to a special meeting of the City Council with the ADU issue the sole item on that meeting’s agenda. His reasoning was that at the prior meeting, only a few Councilors had the opportunity to offer amendments before the 10pm deadline was reached, so he expected the ADU issue to take up a substantial amount of time available at this meeting which would likely cause everything else on the agenda to not be reached for the second consecutive meeting. Councilor John Drinkwater argued against doing this, saying that making amendments from the floor during a regular meeting was the proper way for a City Ordinance to be created. However, a majority of Councilors opted for a special meeting on ADUs with Councilor Robinson’s motion passing by an 8 to 3 margin. (Councilors Gitschier, Lahey, Mercier, Nuon, Robinson, Rourke, Scott and Mayor Chau supporting the separate meeting and Councilors Drinkwater, Jenness, and Yem opposing it).

Councilors were unable to expeditiously select a date for the special meeting, so they asked the City Manager to poll Councilors afterwards and come up with a mutually agreeable date. It’s likely that meeting will be sometime in September.

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Last week I wrote about the MBTA Communities Law which requires cities and towns serviced by the MBTA (including commuter rail) to amend their zoning ordinances to allow for more multifamily housing in the vicinity of the MBTA service. This law seems targeted at towns that have avoided their share of multifamily housing rather than cities like Lowell that already have a balance of single and multifamily units.

An editorial in Thursday’s Boston Globe echoed this, writing:

For the better part of a century, Massachusetts towns have used their zoning authority to stifle the creation of multifamily housing, either banning it outright or making it unreasonably difficult to build – with the predictable consequence that over time, poorer people who are more likely to rent have been excluded from those communities and not enough housing has been built in general.

While Lowell could use more housing of all types, I don’t believe the zoning amendments flowing from the MBTA Communities Act that will be considered by the Council will be much of a departure from what the city has been doing anyway. I read the proposed ordinance and it seemed quite technical. The Council did refer the proposal to a public hearing at the August 22, 2023, Council meeting. It will be interesting to hear a more detailed explanation of the proposal at that time. In any case, it’s unlikely that this zoning change will become ADU 2.0.

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A pair of votes altering previous votes on allocations of Community Preservation Act funds generated some discussion. In both cases, Community Teamwork (CTI) had been awarded Community Preservation Act funds for two separate affordable housing projects. For different reasons, the projects that were awarded the money proved problematic, so CTI asked to shift the money to two other projects.

Councilor Erik Gitschier raised a procedural concern about amending an award that was made for one project, to fund an entirely different project, even if it was the same applicant. He raised a question of fairness to other applicants who may have been unsuccessful in the first round, suggesting that they should also have a chance at this money.

The question raised was never really answered and, in the end, Councilors voted in favor of the alternate CTI projects.

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A motion by Councilor Kim Scott asking for “the legal requirements for succession when filling a vacant elected office” caught my attention. Scott explained that with some District Councilors running unopposed, she was curious how their seat would be filled should they leave office before the end of the term. On a motion by Councilor Robinson, this matter was referred to the Council’s Elections Subcommittee.

Before the Council moved on to the next motion, however, Councilor Wayne Jenness spoke up, saying he wanted those who would be looking at this to be aware that there was a bill now pending in the State Legislature that would address this scenario. He cited House Bill 3721 which was jointly filed by State Representatives Vanna Howard and Rodney Elliott. The bill states as follows:

An Act amending Chapter 230 of the Acts of 1954.

SECTION 1. Following the last sentence of Chapter 230 of the Acts of 1954, that the following sentence be added: "In the event that no such candidate exists, the vacancy shall be filled by a joint session of the city council and the school committee through a public application process."

SECTION 2. This act shall take effect upon its passage.

Chapter 230 of the Acts of 1954 states:

In any city having a Plan E form of city charter and having plurality voting as provided in chapter six hundred sixty-one of the acts of nineteen hundred and forty-nine, as amended, a vacancy in any elective body therein shall be filled forthwith for the unexpired term by the remaining members of the body concerned, who shall choose whichever of the defeated candidates who are eligible and willing to serve, and who received the highest number of votes for membership in the body in which the vacancy occurs at the last regular municipal election at which members of said body were elected.

When all nine Councilors and all six School Committee members were elected at large (i.e., citywide), it seemed reasonable to have the tenth-place finisher on the Council or the seventh-place finisher on the School Committee fill the vacancy. After all, that person had distinguished themselves from among all the other unsuccessful candidates by coming within a handful of votes (in many cases) of winning a seat outright. However, that same dynamic does not necessarily exist in an elect one-out-of-two race which is, by definition, what happens now in a District Council or School Committee election. What if the second-place finisher is a fringe candidate who received only a handful of votes? Should a vacancy occur, that person would automatically fill it. Put another way, in a district race, if a candidate wins by a margin of 90% to 10% and then has to leave the office, putting the candidate who 90% of those participating in the election voted against does not seem to fulfill the will of the people. There should be a better way of filling vacancies in single-seat offices.

As for the Howard/Elliott Amendment whereby a vacancy in a district in which there was no runner up candidate would be filled by the majority vote at a joint meeting of the City Council and the School Committee, that’s how vacancies of Lowell seats on the Greater Lowell Vocational School Committee have been filled, and it seems to have worked pretty well there so it seems like an apt solution for Council and School Committee vacancies as well.   

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Councilor Rita Mercier had a motion requesting the City Manager “start the process sooner to alleviate the flooding on the Windward Street area of the city, as it is expanding to more homes.”

When the motion was called, here’s what Councilor Mercier said by way of introduction: “The reason I made this motion is because, I don’t know what it is, but we’re having more rain than usual this year, and with more rain comes more flooding . . .”

I think “what it is” is global warming and I’m not sure the city is doing enough to prepare for its consequences, but we’ll leave that for another day.