WELLFLEET — Chair Ryan Curley has presented his colleagues on the select board with a handful of proposed zoning bylaw amendments that he hopes to put before voters at next spring’s annual town meeting. Three proposals related to protection of trees sparked debate at the board’s Oct. 4 meeting and were put on hold for further revisions.
It is unusual for a select board to take on this function. Normally, it is the planning board that proposes zoning bylaw changes. But Curley initiated two zoning changes related to housing that were overwhelmingly approved at last month’s special town meeting — over the objections of planning board chair Gerry Parent.
The first of Curley’s new proposals would amend the bylaw regulating the cutting of timber in the National Seashore Park District. The proposed changes were aimed at putting a stop to the kind of wholesale tree removal that was done last year by Kevin Sexton on Lecount Hollow Road.
Among the changes was a clarification of the definition of “timber” in the bylaw and the addition of a few more restrictions.
Curley proposed defining timber as “woody plants,” which drew immediate criticism from Vice Chair Michael DeVasto, who argued that the phrase was too open to interpretation. “I think there has to be some diameter to that,” DeVasto said. “Butterfly bushes are woody plants. There are plenty of shrubs that could be considered woody plants. Why can’t we just say ‘trees’?”
Board members then turned to their phones to find a better definition for timber. The USDA Forestry Service defined it, like Curley, as “a woody plant.”
Member Barbara Carboni said the board should take a serious look at other possible definitions rather than “just taking a stab at it now.”
Carboni added, “I’d rather not do this on the fly.” The other board members agreed and put off a decision until a better definition could be found.
Curley had crafted a proposed landscape and tree preservation bylaw based on a nonbinding resolution submitted as a citizens’ petition and enthusiastically supported at the last annual town meeting in June. His bylaw would apply to the preservation of trees with diameters of at least 7.5 inches on both public and private properties. If trees of this size at a construction site could not be relocated on the property, the owners would pay into an environmental betterment fund.
“I think a lot of Wellfleet residents are going to have objections,” said board member Kathleen Bacon. “I’m a tenant on a property where just about every tree was removed. That’s how they wanted it to look. What are you going to say to those people?”
Board member John Wolf said he has cut scrub pine over the years and may want to cut more so he has a place to store a boat. “I shouldn’t need a permit to do that,” he said.
Town Administrator Rich Waldo, who was formerly the public works director in Provincetown, said that town had adopted Chapter 87 of the Mass. General Laws, which protects public shade trees. Provincetown expanded it to include trees on town-owned land.
“That’s what it was restricted to, and that alone caused numerous complaints” that took up far too much staff time, Waldo said. He urged the board to limit the bylaw to the adoption of the Chapter 87. “It could be with the understanding that, in the future, it could be amended to include private property,” he said.
Curley believed his board had to develop a bylaw because of the nonbinding town meeting resolution. DeVasto, who had made the motion on the resolution at town meeting, disagreed.
“It passed after we made the amendment to drop everything after ‘a town vote to authorize the select board to cause to be prepared for consideration at town meeting a tree preservation bylaw,’ ” DeVasto said. “Everything after that was deleted.”
The select board took no action on the bylaw proposal, agreeing instead to review the videotape of the town meeting.
Curley’s proposed article on “locally notable trees” would require a special permit to remove a tree with a diameter of 38 inches or more or to trim it to a point that threatens the tree’s health. It would again apply to trees on both public and private property. Waldo advised caution.
“Everyone wants to protect the canopy, but I think that, as proposed, it’s not going to pass town meeting because you’re getting into personal property,” Waldo said. The board was also unsure about the bylaw’s effect on trimming done by utility companies like Eversource. The board again decided to postpone a vote.
The select board unanimously approved some changes to a bylaw that currently prohibits chain or “formula” restaurants in town. In 2011, town meeting approved bylaws that prohibited both formula businesses and formula restaurants. Cumberland Farms challenged the formula business bylaw as discriminatory, and a state Land Court judge invalidated the section of the town’s bylaw prohibiting formula businesses in 2015.
Because the town’s restaurant bylaw has a similar prohibition, it probably wouldn’t survive a court challenge either. The town counsel has provided some suggestions for refining it, which Curley incorporated into his proposal.
The words “formula restaurant” were removed. Since restaurants in all districts are required to get special permits, the zoning board of appeals would decide whether the benefits of granting the special permit outweighed the negative effects.
Curley pointed out that the zoning board could impose specific design standards. The board unanimously voted to send the bylaw proposal to the planning board for a public hearing.
The new bylaw, if approved at town meeting, would apply to all food establishments as well as commercial developments involving more than 4,000 square feet.
A final bylaw proposal, hiking the current fine for a zoning violation from $50 per offense per day to $300 per offense per day and thus putting the town in line with the state, was approved by the board with DeVasto casting the sole vote in opposition. That one will also go to the planning board for a public hearing.
The planning board can recommend changes to the select board’s proposals, but it is then up to the select board to decide on what changes are made. The public can also weigh in during hearings.