Sunday, January 17, 2010

Temple Shalom “Tucker Village” Milestone

After many months of meetings and public testimony, the Planning Board has voted its support for a zoning overlay article that will be considered by Town Meeting at a February Special Town Meeting. Last week, the Warrant Committee voted a favorable recommendation for Town Meeting consideration.

The planned unit development would permit the construction of two commercial buildings on the Temple Shalom site, along with a new Temple. The Temple has requested this overlay as a last chance to maintain a functioning house of worship for Milton’s Jewish community. An eroding financial situation and a Temple too large and inefficient to be maintained have lead to this point.

The sale of the land for the proposed development would provide funds to build a new, smaller Temple, as well as annual revenue in the range of $100,000. The Temple has relied on Bingo for additional revenue, but this is no longer a viable source of funds as participation is declining, and running the weekly games places a heavy time commitment on the membership.

The coming debate on Town Meeting Floor will feature two themes : the Tucker Village proposal itself, and the question of whether Milton will even consider commercial development outside of the existing two small areas currently zoned for that use. Let’s consider the proposal itself.

To begin with, I support the article submitted and supported by the Planning Board and Warrant Committee. It is carefully crafted and can produce a very desirable outcome for all stakeholders: the Temple and its membership, the neighbors, and the Town. The continued presence of the Temple, which just celebrated its 65th anniversary, must move anyone concerned with Milton’s heritage and the town’s commitment to diversity. The Campbell School is highly regarded and provides an important service to Milton residents. The proposed pharmacy and grocery offer services to an area of town where none exist today. The modest, but not insignificant tax revenue sends a message to those residents struggling to remain in a community with ever rising taxes that we hear their concerns, and that when we can, when it otherwise makes sense, we will add this type of effort to all the others we must undertake to deal with our financial situation.

Since the very beginnings of this process, the opponents have offered the usual litany of reasons for opposing it. Litter, crime, safety, lowered property values, and traffic- accompanied by the usual bogeymen- “BIG BOX RETAIL” and “NATIONAL CHAIN STORE”. I find most of these arguments exaggerated or flatly contradicted by the existing facts. Certainly there is no big box retail proposed for this site, and the last I checked most of us patronize a national chain for our medications. While there was the oxycontin phase of pharmacy robberies, retail establishments like banks, convenience stores and service stations have long shown up in FBI statistics as the top retail robbery locations. Have there been a rash of robberies at the CVS in East Milton?

The most salient issues in the run up to Town Meeting are: (1) Home values, (2) Transparency, (3) Spot Zoning, and (4) Traffic.

Home Values

The abutters to the site are concerned that the development will negatively affect the values of their homes. This is understandable. But the assertion of negative impact has been repeated with a certitude leading someone to believe that all small, well designed commercial developments have a negative affect. That is not the case at all. Earlier in the process the developer presented an analysis of property values in the immediate neighborhood surrounding the Fruit Center. It showed no impact following the construction of that 33,000 sq. foot retail complex.

Small developments offering services to the surrounding area can also have no impact on home values, and at times can increase home values. While some may prefer to not live near a commercial site, others do not mind, provided it is properly designed, sited, and buffered. As long as there are sufficient numbers of people who desire proximity to some basic services, there will be willing buyers for property.

The Planning Board has included in the Overlay Article language requiring an assessment of impact on home values for the immediate abutters, with the further requirement of mitigation before proceeding. This should protect the property owners concerned and home values ought not be a stumbling block for Town Meeting Members.


The opponents’ attorney, Andrew Upton, has championed this attack. If you ask what it means, there is only one way to define it for you. It means the Temple could be lying about their need for this development, as currently outlined, and that unless they completely open their books for inspection we should not pass the overlay. The Planning Board properly ignored this argument. Contrary to Attorney Upton’s assertion, the Planning Board was not concerned with the Temple’s finances, but with carrying out its responsibility when a property owner places a lot, a sizeable lot, in play. The property owner informed the Board that they were either going to win approval for a development or sell the property. At that point the Planning Board had to assess the proposal as well as keeping in mind possible scenarios if the property were sold.

But how will Town Meeting members respond to this line of argument? It will surely be made by Mr. Upton.

When construction began on Temple Shalom 65 years ago there was no major benefactor as other Temple’s in the area enjoyed. The construction costs were raised by mostly small donations from the Jewish community. Therefore the Temple was constructed in stages, as the money was raised.

Today a few hundred Milton residents call Temple Shalom their religious home. Like all Temples, Temple Shalom is an autonomous financial entity. Its revenues come primarily from annual membership fees. Nationally the household membership fee for a Jewish house of worship is three or more times the average annual household offering made by Christian denominations. Jewish congregations tend to be much smaller, requiring greater contributions from all. In recent years the Temple has made additional assessments on membership to keep afloat while it has developed a survival plan.

The Temple is run by a Board of Directors, numbering between 20-30 people. Elected annually, these individuals have complete access to and knowledge of Temple finances. To place any credence in the implication of Attorney Upton’s “transparency” claim, these directors would be committing a fraud on Town Committees, the Town as a whole, and even their own membership. Is this where we want to go at Town Meeting, essentially accusing a large number of our fellow residents, respected members of a Jewish Temple, of deliberately misleading us? I hope this is an argument that will be rejected by Town Meeting as unworthy of consideration in deliberations that will touch one way or another on the continued presence of Temple Shalom in Milton.

Spot Zoning

Selectman John Shields has characterized the zoning proposal as spot zoning. By this I assume he means illegal spot zoning. A common definition describes the term as a “singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot.” Looking at how the courts have interpreted this language one finds that neither different treatment nor economic benefit to the lot owner describe the complete legal test for spot zoning.

In Massachusetts, courts employ a balancing test weighing the public benefits of the zoning against any negative effects on neighbors. A challenge to a Town Meeting passed zoning change would have to be filed in the courts by someone with standing – say abutters. Mark Bobrowski writing in “Handbook of Massachusetts Land Use and Planning Law…” notes:

“Where spot zoning is alleged, the challenger has the burden of proof. ‘To sustain that burden they must prove facts which compel a conclusion that the question of whether the amendment falls within the enabling statue is not even fairly debatable’. The court has characterized this burden as ‘heavy’.

Bylaw changes must be submitted to the Attorney General for endorsement. Often in these circumstances, opponents of the bylaws communicate to the AG concerns about spot zoning. One can find standard language employed in the published Endorsements in these instances.

“We point out that we received a number of opposition letters suggesting, among other things, that the proposed zoning by-law constitutes “spot zoning” as that term is understood in state law. “Spot zoning” has been described as being “the singling out of a particular parcel of land for special zoning treatment where such land is indistinguishable from surrounding land that has been held to be invalid as spot zoning.” Spot zoning is usually concerned with situations in which an economic benefit is specially conferred on a particular landowner. See, e.g., Atherton v. Selectmen of Bourne, 337 Mass. 250 (1958)

It must first be noted that an economic benefit to the owner of land resulting from the rezoning of the land from one district to another is alone insufficient to compel the legal conclusion that the amendment is “spot” zoning. It is rather the concomitant absence of traditional planning and zoning considerations that would compromise the legitimacy of town meeting’s action in rezoning the parcel. In other words, to arrive at the legal conclusion that town meeting “spot zoned” a parcel, we must first find that the traditional zoning factors were absent.

The courts have held that “the challenger bears a heavy burden of demonstrating that there is no zoning purpose to the amendment in the face of the presumption of validity that the amendment enjoys.” Beal v. Building Comm’r of Springfield, 353 Mass. 640 (1968); Smith v. Board of Appeals of Salem, 313 Mass. 622 (1943) (where there is room for reasonable doubt, judgment of local authorities must prevail). “

Finally, Massachusetts General Law specifically provides for just the type of Planned Unit Development the zoning article contains in Chapter 40A:Section 9.

“Planned unit development” means a mixed use development on a plot of land containing a minimum of the lesser of sixty thousand square feet or five times the minimum lot size of the zoning district, but of such larger size as an ordinance or by-law may specify, in which a mixture of residential, open space, commercial, industrial or other uses and a variety of building types are determined to be sufficiently advantageous to render it appropriate to grant special permission to depart from the normal requirements of the district to the extent authorized by the ordinance or by-law. Such open space, if any, may be situated to promote and protect maximum solar access within the development.”

Town Meeting Members should feel confident that a serious deliberation of this article will not result in a finding of spot zoning, which in any event could only be decided by the courts


Concerns about traffic generated even by a small commercial development always need to be taken seriously. This is one of the factors that can have an effect on home values. Progress in assessing traffic impacts has been made. A Traffic Impact Assessment has been prepared by the respected traffic consultants Vanasse & Associates. It can be found on the Planning Board page of the town’s website.

The Vanasse study finds the current Blue Hill Avenue totals for traffic volume during peak weekday evening hour and midday Saturday hour (the time of the greatest traffic volumes) and the projected increase in these volumes as follows.

Current Vehicles Per Hour -----------------------------With Project Vehicles Per Hour
Weekday evening-----988----------------------------------------------------------1150
Saturday midday-----740-----------------------------------------------------------880

Those estimates translate to an additional 2.7 and 2.3 trips per minute during the peak hour of use.

There is a great deal more in the study. I encourage people to spend some time reading it. We also need to see the peer review study, funded by the developer and using a consultant selected by the Planning Board, for confirmation of the methodology and results; and we need to assess the full benefits of any mitigation efforts, especially with respect to cut through traffic. This peer review study will be completed before Town Meeting.

The Vanasse study can be found here: