Attorney for petition group says Auburn is violating public process

Jul. 30—AUBURN — As the City Council looks ahead to votes that could potentially repeal and replace controversial zoning in the Court Street residential area, an attorney for the petition group says the city is making a "deliberate end-run around the citizens' referendum process."

The City Council on Monday is taking up a final reading of the new T-4.2B zoning, created in response to initial concerns for the T-4.2 form-based code the city approved, which allows for a broad mix of residential and commercial uses. The council is also scheduled to vote to repeal the T-4.2 zone in the Court Street residential area, which was the subject of the citizens' petition.

In a statement issued Thursday, Preti Flaherty attorney Kristen Collins, representing the "Citizens for Sensible Growth" petition group, said if the city moves ahead with its current plan to replace the T-4.2 zoning with a similar zoning type, the city would be violating its own charter and the rights of the 2,400 voters who signed the petition.

"When the charter provides that a referendum petition may be terminated by the council's repeal of the ordinance in question, it is referencing a true, substantive repeal that addresses the intent of the petition," Collins states. "The council's proposed action will nullify the properly circulated and submitted petition, without these voters having been given their rights under the state constitution, state statutes, and the City Charter, to have the ordinance in question repealed, or their petition brought to a vote."

During a first reading on July 18, members of the petition group argued that the alternative T-4.2B zoning was created with limited public engagement to "undermine" a potential referendum.

The City Charter states that after a petition is certified, the City Council has 30 days to either repeal the zoning or set a date for a citywide referendum.

The statement from Collins also claims that the council's proposal to implement T-4.2B zoning violates state zoning laws, "which provide that 'the public shall be given an adequate opportunity to be heard in the preparation of a zoning ordinance.'"

"This proposal was conceived by the council and sent to the Planning Board only to check a box; there was no opportunity for directed notice to those affected ... or for thoughtful review and discussion by the board best equipped to do so," she said.

Prior to the initial vote, Councilor Dana Staples made a motion to postpone and hold a series of monthly neighborhood meetings. It failed 4-3.

When reached late Friday, Mayor Jason Levesque said it would be premature to comment on the legal opinion, but Levesque has argued in the past that the changes reflected in T-4.2B are substantial. The zoning would make several uses permitted only by special exception, and would eliminate uses like marijuana businesses, drive-thru businesses or restaurants or other retail operations over a certain size.

When the City Council first attempted to amend the T-4.2 zoning, the city's legal counsel said the changes being considered would have amounted to a substantial change, which required the city to pursue the new T-4.2B zoning.

That opinion, from Michael Malloy, came prior to the petition effort.