Special Town Meeting

Monday, October 25, 2004 at 6:00 p.m.

Meeting Called to Order. Town Clerk Doug Johnstone convened the meeting at 6:00 p.m. on Monday, October 25, 2004 due to the absence due to illness of Town Moderator Elizabeth Steele-Jeffers.

Election of Temporary Moderator. The Town Clerk entertained nominations for election of a Temporary Moderator. Mr. Bez nominated Mary-Jo Avellar and Mr. Silva nominated Christopher Snow as Temporary Moderator. Mary-Jo Avellar elected by majority vote and so sworn by Town Clerk Doug Johnstone.

Preliminary Motions.

(1) Board of Selectmen Chair Cheryl Andrews moved that the Town vote to waive the reading of the warrant.

Motion Passed.

(2) Cheryl Andrews moved that the Town vote to grant permission to speak at the October 25, 2004 Special Town Meeting to the following persons who are not registered voters of the Town of Provincetown:

Dennis Anderson, Cape End Manor CEO;

Edward Boxer, PHS Principal;

Dennis Clark, Recreation Director;

Patricia Fitzpatrick, Tourism Director ;

Elizabeth Hartsgrove, Licensing Agent;

Alexandra Heilala, Town Accountant;

Michelle Jarusiewicz, Acting Assistant Town Manager;

Maxine Notaro, Permit Coordinator;

Patricia Pajaron, Health Inspector;

Wayne Perry and Mark White, engineers, Environmental Partners Group;

Jane Raasch, Health Agent;

Albert Robinson, Deputy Water Superintendent;

Jonathan Silverstein, Esq., and other attorneys of the firm of Kopelman & Paige, P.C., Town Counsel

Anthony Teso, Principal, Veterans Memorial Elementary School;

Eileen Thomas, Cape End Manor Administrator;

Dr. Colette Trailor, Superintendent of Schools.

Motion Passed.

(3) Cheryl Andrews moved that on all matters to come before the October 25, 2004 Special Town Meeting, requiring a two-thirds vote by statute, that a count need not be taken unless the vote so declared is immediately questioned by seven or more registered voters.

Motion Passed.

John Nelson moved that Articles 12, 13, and 14 of the Special Town Meeting of October 25, 2004, be moved up in the meeting to a position following Article 3. Mr Guadiano moved that the ordering go before the meeting for a vote.

Motion Does Not Pass.

CAPE END MANOR CARE CAMPUS

Article 1. Cape End Manor Care Campus Land Exchange – Initial Authorizations. To see if the Town will vote to transfer from the School Committee for school purposes and/or municipal parking purposes to the Board of Selectmen for the purpose of conveyance, and authorize the Board of Selectmen to convey the fee ownership interest in a portion of the property located at 12 Winslow Street identified on Assessors Map as 07-4-070 known as Grace Hall Parking Lot and described in a deed recorded with the Barnstable County Registry of Deeds in Book 1405, Page 374, said parcel being approximately shown on the sketch plan entitled “Plan of St. Peter’s Church and Alternate Proposal for Grace Hall Parking Lot Swap” dated July 30, 2004, which plan is on file in the office of the Town Clerk, on such terms and conditions, including the reservation of a utility easement, and for such consideration, which may be in consideration for the exchange of the land hereinafter described, as the Board of Selectmen deem to be in the best interests of the Town; and further authorize the Board of Selectmen to reserve or enter into a ten-year lease, with option to renew for an additional ten years, permitting the Town to use and operate said parcel for municipal parking purposes; and further authorize the Board of Selectmen to acquire, in consideration for the parcel the Town is to convey, a portion of the two parcels of land that, together, are known as the St. Peter’s Cemetery, identified on Assessors Map as 08-2-027 and 08-2-024, having an address of 124 Alden Street and 116 Alden Street, respectively, the portion to be acquired being approximately shown on the sketch plan entitled “Plan of Cape End Manor and Portion of St. Peter’s Cemetery” dated August 4, 2004, which plan is on file in the office of the Town Clerk, for the purpose of conveyance, subject to a restriction that said land shall be used for medical care purposes, which may include a nursing home and an assisted living facility; and further to vote pursuant to Section 3 of Chapter 157 of the Acts of 2000 to authorize the water and sewer board to permit increases in sewer system flow to serve such public service uses at that location; or take any other action relative thereto.

[Requested by the Town Manager, Board of Selectmen, and Cape End Manor Board of Directors]

BOARD OF SELECTMEN RECOMMENDS: 4-0-1

FINANCE COMMITTEE RECOMMENDS: 5-0-1

CAPE END MANOR BOARD OF DIRECTORS RECOMMENDS: 5-0-0

SCHOOL COMMITTEE RECOMMENDS: 5-0-0

PLANNING BOARD RECOMMENDS: 5-0-0

COUNCIL ON AGING RECOMMENDS: 4-0-1

(Disposition of Land - 2/3’s vote required)

Michele Couture moved that the Town vote to approve Article 1 as printed in the warrant.

Motion Passed (2/3's vote declared).

Article 2. Transfer 0.09 Acres of 100 Alden Street to the School Committee for playground purposes. To see if the Town will vote to transfer from the Board of Selectmen for playground purposes to the School Committee for playground purposes a portion of the property located at 100 Alden Street, identified on Assessors Map as 08-2-26, being part of the playground known as Manuel V. Motta Athletic Field, the portion to be transferred being .09 acres at the northwest corner of said Motta Field as shown on a plan entitled “Plan of Motta Field Showing Provenance of Various Components,” dated February 23, 2004; and further to vote to instruct its representative in the General Court to file a home rule petition for a special act to read as follows:

SECTION 1. Notwithstanding the provisions of Chapter 270 of the Acts of 1953 or any other general or special law to the contrary and Article 97 of the Amendments to the Massachusetts Constitution, the town of Provincetown is hereby authorized to transfer from the board of selectmen for playground purposes to the school committee for playground purposes a .09-acre portion of Manuel V. Motta Athletic Field as shown on a plan entitled, “Plan of Motta Field Showing Provenance of Various Components," dated February 23, 2004, which plan is on file with the Town Clerk's office and hereby incorporated by reference.

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

The General Court may only make clerical or editorial changes of form to the bill, unless the Board of Selectmen approves amendments to the bill before enactment by the general court. The Board of Selectmen is hereby authorized to approve amendments which shall be within the scope of the general public objectives of this petition; or to take any other action relative thereto.

[Requested by the Board of Selectmen, Cape End Manor Board of Directors, and Town Manager]

BOARD OF SELECTMEN RECOMMENDS: 4-0-1

FINANCE COMMITTEE RECOMMENDS: 5-0-1

CAPE END MANOR BOARD OF DIRECTORS RECOMMENDS: 5-0-0

SCHOOL COMMITTEE RECOMMENDS: 5-0-0

PLANNING BOARD RECOMMENDS: 4-0-0

COUNCIL ON AGING RECOMMENDS: 4-0-1

(Disposition of Land - 2/3’s vote required)

Richard Olson moved that the Town vote to approve Article 2 as printed in the warrant.

Motion Passed (2/3's vote declared).

Article 3. Zoning Amendment: Health Care Overlay District Rezoning. To see if the Town will vote to amend the Provincetown Zoning By-laws and Zoning Map as follows:

I. by renaming the “Highway Corridor Overlay District” (HCOD) in §2110, §2350 through §2356, and §6200 as the “Health Care Overlay District” (HCOD);

II. by adding the following paragraph to §2352, District Boundaries, and making the appropriate change to the Zoning Map: “The boundaries of the HCOD shall be expanded to include those properties shown on a map, entitled "Health Care Overlay District, Provincetown, MA," dated February 4, 2004, which map is on file with the Town Clerk's office and hereby incorporated by reference into the Zoning By-laws. The properties shown on said map are bounded on southeast by the southern edge of Collyer Street from Alden to Winslow Streets, along the southwest by Winslow Street to Jerome Smith Road, along the northwest by Jerome Smith Road from Winslow to Alden Street, and on the northeast by Alden Street from Jerome Smith to Collier Street;”

III. by amending §2353(b) to delete the word "Nonprofit" from the allowed uses set forth therein;

IV. by adding, deleting or substituting the following to the Dimensional Regulations in Section 2354:

Minimum lot area: delete “5 acres” and substitute “2 acres”

Minimum frontage: delete “on Route 6”

add Maximum Number of Stories: three stories

add Maximum Height: 44 feet;

V. bV. y amending §2356 to : delete the words "Nonprofit" and “not for profit” from the definitions set forth therein; replace the citation to "G.L. c.190, § 3" in the definition of "Assisted Living Facility" with "G.L. c.19D, § 3"; replace the citation to "42 U.S.S. 3601" in the definition of "Independent Living Units for Senior Citizens" with "42 U.S.C. 3601"; delete the word “moved” in the definition of “Outpatient Rehab Facility;

VI. by amending §6200.5 to delete the word “non-profit.”~~Amend HCOD to allow MISSION DRIVEN – and not just non-profit~~

The original copy of this zoning by-law change is on file for public inspection in the Town Clerk’s Office; or to take any other action relative thereto.

[Requested by the Town Manager, Board of Selectmen, and Cape End Manor Board of Directors]

BOARD OF SELECTMEN RECOMMENDS: 4-0-1

PLANNING BOARD RECOMMENDS: 5-0-0

FINANCE COMMITTEE RECOMMENDS: 5-0-1

CAPE END MANOR BOARD OF DIRECTORS RECOMMENDS: 5-0-0

SCHOOL COMMITTEE RECOMMENDS: 5-0-0

COUNCIL ON AGING RECOMMENDS: 4-0-1

(Zoning Amendment - 2/3’s vote required)

Sarah Peake moved that the Town vote to approve Article 3 as printed in the warrant, with an amendment in Subsection V to read as follows:

V. by amending Section 2356 to delete the words "Nonprofit" and "not for profit" from the definitions of nursing home, convalescent home, assisted living facility and independent living units for senior citizens set forth therein.

Motion Passed (2/3's vote declared).

SEWER SYSTEM

Article 4. Accept MGL C.83,§§16A-16F – Sewer Bills. To see if the Town will accept General Laws Chapter 83, Sections 16A through 16F, inclusive, so that such by acceptance and recording thereof at the Barnstable County Registry of Deeds, the Town shall have a lien upon real estate to secure the payment of sewer use charges if they remain unpaid past their due date, and owners aggrieved by sewer use charges shall have the right to seek abatements from the Provincetown Water and Sewer Board and to appeal denial of abatements to the Massachusetts Appellate Tax Board; or to take any other action relative thereto.

[Requested by the Town Manager, the Board of Selectmen, and the Water & Sewer Board]

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

FINANCE COMMITTEE RECOMMENDS: 6-0-0

WATER & SEWER BOARD RECOMMENDS: 3-0-0

COUNCIL ON AGING RECOMMENDS: 5-0-0

Cheryl Andrews moved that the Town vote to approve Article 4 as printed in the warrant.

Motion Passed.

Article 5. Public Service Use Sewer Hook-up for Provincetown Art Association & Museum property. To see if the Town will vote, pursuant to Section 3 of Chapter 157 of the Acts of 2000, to designate the Provincetown Art Association and Museum property at 460 Commercial Street, shown as Assessors Map 12-4-046, as a public service use thereunder, and to authorize the water and sewer board to permit a sewer connection for a Title 5 design flow of 710 gallons per day to serve such public service use at that location; or take any other action relative thereto.

[Requested by Christine McCarthy and others]

BOARD OF SELECTMEN RECOMMENDS: 3-2-0

WATER & SEWER BOARD DOES NOT RECOMMEND: 3-0-0

BOARD OF HEALTH DOES NOT RECOMMEND: 4-0-1

COUNCIL ON AGING RECOMMENDS: 4-0-1

FINANCE COMMITTEE HAS NO RECOMMENDATION

Christine McCarthy moved that the Town vote to approve Article 5 as printed in the warrant.

Motion Passed. (For 139; Against 121)

FINANCIAL MATTERS

Article 6. Community Preservation Budget for FY 2005. To see if the Town will vote to hear and act on the report of the Community Preservation Committee on the Fiscal Year 2005 Community Preservation Budget, to appropriate or reserve from FY 2005 Community Preservation Fund annual revenues the following amounts totaling $265,731, as recommended by the Community Preservation Committee, with each item considered a separate appropriation:

Appropriations:

$25,000 for community housing development assistance;

Reserves:

$26,573 for Open Space;

$26,573 for Historic Resources;

$187,585 for Community Housing,

or to take any other action relative thereto.

[Requested by the Community Preservation Committee]

COMMUNITY PRESERVATION COMMITTEE RECOMMENDS: 7-0-0

FINANCE COMMITTEE RECOMMENDS: 6-0-0

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

CONSERVATION COMMISSION RECOMMENDS: 5-0-0

PLANNING BOARD RECOMMENDS: 5-0-0

COUNCIL ON AGING DOES NOT RECOMMEND: 5-0-0

David Nicolau moved that the Town vote to approve Article 6 as printed in the warrant.

Motion Passed.

Article 7. School Energy Rebate. To see if the Town will vote to transfer from the Reserve for Appropriation Account the sum of $75,000, which represents the energy rebate received from the Cape Light Compact, for the purpose of making electrical improvements to the Provincetown High School; or to take any other action relative thereto.

[Requested by the School Committee]

SCHOOL COMMITTEE RECOMMENDS: 5-0-0

FINANCE COMMITTEE RESERVES RECOMMENDATION

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

Burton Wolfman moved to indefinitely postpone Article 7.

Motion to Indefinitely Postpone passed.

Article 8. FY 2005 Tourism Fund Appropriation. To see if the Town will vote to amend its vote under Article 38 of the April 7, 2004 Annual Town Meeting to read as follows: “to transfer from the Tourism Fund the sum of ~~$438,000~~ $385,130 and to transfer $52,870 from the 910 Retirement/Benefits/Insurance budget established under Article 2 of the April 7, 2004 Annual Town Meeting, for a total of $438,000, to be expended under the direction of the Board of Selectmen and the Visitor Services Board to fund the following expenditures which market, beautify or enhance tourism in Provincetown pursuant to Chapter 178 of the Acts of 1996: 1. $81,500 for coordination/support of the Visitor Service Board and the Tourism Department; and costs related thereto; 2. $140,000 for marketing, and costs related thereto; 3. $110,000 for promotional events, and costs related thereto; 4. $87,092 for municipal projects, and costs related thereto; and 5. $18,408 to reduce the Fiscal Year 2005 property tax levy to offset regional transit authority charges for the summer shuttle; or to take any other action relative thereto.

[Requested by the Town Manager and the Board of Selectmen]

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

FINANCE COMMITTEE RECOMMENDS: 6-0-0

Cheryl Andrews moved that the Town vote to approve Article 8 as printed in the warrant.

Motion Passed.

Article 9. Return to Semi-Annual Property Tax Bills. To see if the Town will vote to return to the practice of sending tax bills on a semi-annual basis in place of the current practice of sending tax bills on a quarterly basis; or to take any other action relative thereto.

[Requested by Peter Bez and others]

FINANCE COMMITTEE RECOMMENDS: 7-0-0

BOARD OF SELECTMEN RECOMMENDS: 4-0-0

COUNCIL ON AGING RECOMMENDS: 5-0-0

Peter Bez moved that the Town vote to return to the practice of sending tax bills on a semi-annual basis in place of the current practice of sending tax bills on a quarterly basis.

Motion Passed.

CAPE COD NATIONAL SEASHORE

Article 10. Cape Cod National Seashore Wildlife and Recreation Park. To see if the Town will vote as follows: Whereas the Cape Cod National Seashore currently allows recreational hunting despite the fact that the principal mission of the park service is to allow plants and wildlife to coexist without human interference, and whereas recreational hunting programs have no values to protect or enhance other recreational activities such as fishing, ORV use, biking, swimming, etc., and whereas there is no need to allow hunting on the CCNS ecosystem. Management does not require it nor does human heath or safety; therefore, to see if the Town will vote to ask the Cape Cod National Seashore not to allow recreational hunting within its boundaries, and to maintain all other recreational and traditional activities agreed upon with the enactment of the Cape Cod National Seashore in 1961, and to request that the National Park Service declare the Cape Cod National Seashore a wildlife and recreational park.

[Requested by Peter Souza and others]

BOARD OF SELECTMEN DOES NOT RECOMMEND: 4-1-0

CONSERVATION COMMISSION DOES NOT RECOMMEND: 4-0-1

FINANCE COMMITTEE HAS NO RECOMMENDATION

Peter Souza moved that the Town vote to approve Article 10 as printed in the warrant.

Motion Does Not Pass.

BY-LAW AMENDMENTS

Article 11. General By-law Amendment: Non-Criminal Disposition of Pier Corporation Regulations. To see if the Town will vote to amend the Provincetown General By-laws by amending §2-3-1-1 to read as follows:

2-3-1-1. Any rule or regulation of the Provincetown Public Pier Corporation duly enacted as of ~~April 7, 2004~~ October 25, 2004 shall be deemed a by-law of the Town. Violation of such rules or regulations may be enforced by any available means in law or equity, including but not limited to non-criminal disposition pursuant to G.L. c.40, §21D, and Sections 2-3-1 through 2-3-3 of the General By-laws. For the purposes of this by-law, the following officials shall be enforcing persons: the Harbormaster and his designees and any police officer of the Town of Provincetown.

And further by amending Section 2-1, Schedule A, as follows:

2-3-2-1 Violations of the Provincetown Public Pier Corporation Regulations in Effect on ~~April 7, 2004~~ October 25, 2004 (attached as Appendix 1 to Schedule A): 1^st offense, $100.00; 2^nd offense, $200.00; 3^rd and subsequent offenses, $300.00

or to take any other action relative thereto.

[Requested by the Provincetown Public Pier Corporation]

PIER CORPORATION BOARD OF DIRECTORS RECOMMENDS: 5-0-0

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

FINANCE COMMITTEE HAS NO RECOMMENDATION

Rex McKinsey moved that the Town vote to approve Article 11 as printed in the warrant.

Motion Passed.

ADULT ENTERTAINMENT ZONING

Article 12. Zoning Amendment: Adult Entertainment: To see if the Town will vote to amend the Zoning By-laws as follows: By adding the following sentence at the end of both footnote 17 to Section 2440(B9) in the table of Permitted Principal Uses and footnote 3 to Section 2450(G15) in the table of Permitted Accessory Uses:

"Furthermore, all adult entertainment uses must take place entirely indoors and in such manner as not to be observable from any abutting property, sidewalk or public way."

Or to take any other action relative thereto.

[Requested by the Board of Selectmen]

PLANNING BOARD RECOMMENDS AS AMENDED: 3-1-0

BOARD OF SELECTMEN RECOMMENDS: 5-0-0

COUNCIL ON AGING RECOMMENDS: 5-0-0

(Zoning Amendment – 2/3’s vote required)

Richard Olson moved that the Town vote to approve Article 12 as printed in the warrant, with an amendment to the sentence to be added at the end of both footnote 17 to Section 2440(B9) in the table of Permitted Principal Uses and footnote 3 to Section 2450(G15) in the table of Permitted Accessory Uses, as follows:

“Furthermore, all adult entertainment uses with establishments which display live nudity for its patrons must take place entirely indoors and in such manner as not to be observable from any abutting property, sidewalk or public way.”

Motion Passed by 2/3's vote. (For 176 Against 58)

Article 13. Zoning Amendment: Adult Entertainment: To see if the Town will vote to amend the Zoning By-laws as follows:

1. By amending the Adult Entertainment by-law, as passed at the April 2004, Annual Town Meeting as Article 19, making the following changes to Section 2440(B9) in the table of Permitted Principal Uses, which shall provide as follows:

		Res1	Res2	Res3 ResB	TCC	GC	S	M
B9	Adult Entertainment¹
	a. Establishment which displays live nudity for its patrons	No	No	No	~~Yes~~ No	~~Yes~~ No	No	No
	b. Other adult entertainment	No	No	No	Yes	~~Yes~~ No	No	No

[1][1] All adult entertainment uses must be located at least 300 feet from any library, school or playground. Said setbacks are to be measured from the nearest points on the property lines of the lots hosting the proposed adult entertainment use and the use triggering the setback requirement.

And 2. By amending Section 2450(G15) in the table of Permitted Accessory Uses, which shall provide as follows:

		Res1	Res2	Res3 ResB	TCC	GC	S	M
G15	Adult Entertainment²
	a. Establishment which displays live nudity for its patrons	~~Yes~~ No	~~Yes~~ No	~~Yes~~ No	~~Yes~~ No³	~~Yes~~ No	~~Yes~~ No	~~Yes~~ No
	b. Other adult entertainment	No	No	No	Yes	~~Yes~~ No	No	No

²Accessory adult entertainment uses are permitted, as indicated in the above table, where the adult entertainment use is accessory to a non-residential use that is either a permitted use or a legally preexisting nonconforming use. All such adult entertainment uses must be located at least 300 feet from any library, school or playground. Said setbacks are to be measured from the nearest points on the property lines of the lots hosting the proposed adult entertainment use and the use triggering the setback requirement.

³ Unless approval is granted by the Board of Selectmen after a public hearing is held before said Board, in which case the Board of Selectmen may grant approval on an event-by-event basis. Such approval shall be granted only for a particular performance for the range of dates of that performance, and shall never extend beyond the end of the calendar year. A blanket approval for all performances of different revues involving live nudity, or of different stage acts involving live nudity, to be held in the same location or different locations, or under the same sponsorship or under different sponsorships, may not be granted. In addition to being limited to accessory uses in the Town Center Commercial District, displays of live nudity must be held indoors, and may not be visible by any member of the public from the outdoors, and may not be visible by any member of the public from any other property.

Or to take any other action relative thereto.

[Requested by Terese Nelson and others]

PLANNING BOARD DOES NOT RECOMMEND 4-0-0

BOARD OF SELECTMEN DOES NOT RECOMMEND: 5-0-0

(Zoning Amendment – 2/3’s vote required)

Terese Nelson moved that the Town vote to approve Article 13 as printed in the warrant.

Alix Ritchie moved to indefinitely postpone Article 13.

Motion to Indefinitely Postpone Article 13 Passed.

Article 14. Zoning Amendment: Adult Entertainment: To see if the Town will vote to amend the Zoning By-laws as follows:

		Res1	Res2	Res3 ResB	TCC	GC	S	M
B9	Adult Entertainment¹
	a. Establishment which displays live nudity for its patrons	No	No	No	Yes	~~Yes~~ No	No	No
	b. Other adult entertainment	No	No	No	Yes	~~Yes~~ No	No	No

And 2. By amending Section 2450(G15) in the table of Permitted Accessory Uses, which shall provide as follows:

		Res1	Res2	Res3 ResB	TCC	GC	S	M
G15	Adult Entertainment²
	a. Establishment which displays live nudity for its patrons	~~Yes~~ No	~~Yes~~ No	~~Yes~~ No³	Yes	~~Yes~~ No	~~Yes~~ No	~~Yes~~ No
	b. Other adult entertainment	No	No	No	Yes	~~Yes~~ No	No	No

³ Except “Yes” in Res3 when the principal use is a theater, in which case, such theaters may display live nudity for their patrons as a permitted accessory use, as long as the displays of live nudity are indoors and not visible by any member of the public from any other property.

Or to take any other action relative thereto.

[Requested by Terese Nelson and others]

PLANNING BOARD DOES NOT RECOMMEND: 4-0-0

BOARD OF SELECTMEN DOES NOT RECOMMEND: 5-0-0

(Zoning Amendment – 2/3’s vote required)

Terese Nelson moved that the Town vote to approve Article 14 as printed in the warrant.

Motion Does Not Pass.

Michele Couture moved to dissolve Special Town Meeting.

Motion Passed.

Special Town Meeting dissolved at 9:15 p.m. on Monday, October 25, 2004.