Special Joint Meeting WAC-NAC Guns in Newton

DRAFT

Newtonville Area Council Meeting Minutes

Thursday, May 6, 2021 7:00 PM

Meeting Location: Online via Zoom

JOINT SPECIAL MEETING OF THE NEWTONVILLE AREA COUNCIL WITH THE WABAN AREA COUNCIL

• NAC members: Peter Bruce (President), Kartikey Trivedi (Vice President), Dana D’Agostino (Treasurer), Carolyn Gabbay (Secretary), Jessica Aker Archer and Susan Reisler
• WAC members: Chris Pitts (President), Rena Getz (Vice President), Sallee Lipshutz
• City Councilors:  Marc Laredo
• Members of the public: Approximately 50 people 

Chris Pitts explained the meeting’s objectives as follows:

1. Councilor Marc Laredo to “unpack” the gun shop zoning issue.
2. A representative of the lawyers who wrote the recent open letter to the City Council concerning the gun shop issue (i.e., Attorney David Bunis) to talk about that letter and discuss possible options.
3. Help people prepare for the upcoming Public Hearing scheduled for Monday, May 10, 2021. 

He added that this meeting is not to be confused with the public hearing and that this meeting will just explain the issue that is before the City Council, not to address the morality of weapons or the Second Amendment.

Councilor Laredo explained that he would provide an overview of how we got to where we are, what is going forward in the City Council and some possible alternatives.  He added that, because this matter is pending before the Council, his comments will be factual and he would reserve his personal views for the City Council’s meeting. His comments highlighted the following:

• The situation is unusual in that legal advice is being received and, there is contemplation of possible litigation, legal strategy should not be discussed here or at a public hearing.
• Apparently, in January an individual filed an application with the Chief of the Newton Police Department (NPD) seeking to open a gun shop. That application underwent review by NPD.
• Mayor Fuller has put out a statement about when she learned about this application.
• This was not something City Council knew about and it was not in the bailiwick of the City Council at the start.
•  The applicant started to work repairing/renovating the physical property in preparation for opening the shop near Garden Remedies.
• The public started to learn about the proposed Washington Street gun shop in early/mid-April and that started a public outcry, resulting in many emails and communications. 
• It is important to differentiate between the current gun shop application and zoning. 
  
  • It is his (Laredo’s) understanding that a zoning building permit has not been issued at present. 
  • He emphasized that he would not opine about what happens to this particular application. 
• When this matter came to light, it became apparent that Newton ordinances do not include any zoning for gun shops. Wellesley has also discovered their ordinances do not have provisions regarding gun shop.  
• There have been gun shops in Newton in the past.
• All City Councilors and the Mayor have docketed an item that was deliberately written broadly so that it can be modified, changed and narrowed as appropriate. 
• There was an initial meeting of the Zoning and Planning committee (ZAP) and ZAP is now in the process of trying to craft zoning language to regulate the location of gun shops. 
• Constitutional law issues that may limit the ability to regulate gun stores.  The City Council is being advised on the issues and the City’s Law Department is reaching out to many outside resources because this is not their usual activity (i.e., complex Constitutional and appellate law issues).  
• There will be a public hearing on Monday night. 
  
  • His personal view on public hearings is that speakers are most effective if they keep remarks short and to the point and, if possible, say something a bit different from others, rather than just being repetitive.
• Judging from the sentiment of the City Council, there is a huge, if not unanimous, desire to regulate gun shops.  However, the hard issue is to what degree can we regulate gun shops and should the determining factor be how close they are to various uses. 
• Attorney David Bunis will talk about the letter that was written by a group of Newton residents who are lawyers.  That group has a certain view of what we can/cannot regulate, which is the issue with which the City Council will have to grapple.  The broader the regulation, the more likely a legal challenge.  The City Council will need to be guided by the Law Department which, hopefully, will be guided by experts, to craft an ordinance that has broad language and will withstand legal challenge.  Key questions for resident input at the public hearing include:
  
  • Do residents think the time, money and resources are justified for having the City Council take a very aggressive position? 
  • What are the downsides of not prevailing in a legal challenge?

Chris Pitts explained that Joe Kennedy, who had been scheduled to speak, was attending a vigil for a colleague who had been killed and he read the statement that Mr. Kennedy sent.   

David Bunis introduced himself as a 25-year Newton resident whose 3 children attended Newton Public Schools.  He said that he has practiced law for 35+ years and argued many litigation cases, including constitutional cases.  Signed a letter to the Mayor and City Council along with what he described as an “all-star cast of Newton lawyers” who he said are standing by to help Newton on this issue.  The points he made included:

• Most people see a gun shop as a safety threat.  Newton should do what it thinks is the “right thing” and not fear the gun lobby.
• While a ban would probably fail a legal challenge, there is a way to keep the community safe and withstand legal challenge (because there is no legal right to open a gun shop in a specific area) with a “surgical” “smart ordinance” that can be drafted with help from the Giffords Center and their model law examples, using the playbook that has been successfully by other communities:
  
  • setting buffer zones to sensitive uses
  • regulating things like hours of operation, ammunition and firearms storage, signs
  • requiring mandatory disclosures and CORI checks, etc.
• Like the Gifford Center, the Brady Center has a strong team standing by to help, and there are also many Newton lawyers prepared to help pro bono as well.
• Residents should attend the public hearing and speak out.

Councilor Laredo added that it will be important for the City Council to hear at the public hearing whether residents endorse devoting funds and resources to the effort.

Carolyn Gabbay expressed concern about the current, conservative majority of the Supreme Court and the potential for setting bad gun regulation precedent.  Mr. Bunis noted that modeling tactics on a playbook used by the anti-abortion activists (i.e., not banning abortions, but making them very difficult) would be helpful by challenging conservative Justices to be consistent in their ruling.

Chris Pitts noted that Newton’s school are a community strong point and that having a gun shop in town would add to the existing anxiety occasioned by already necessary active shooter drills. He also noted the need for buffering schools adequately if gun shops must be zoned.

Tom Elkind identified himself as a former litigator. Noting that he never guaranteed a “win” in any case, he supported gun laws that restrict the ability of people to obtain guns and that, while not an expert, he tried to think about the arguments the other side might make in a legal challenge.  Exchanging the word “abortion” for gun store should provide comfort about regulating gun shops strongly. Because of the expense of a case going to the Supreme Court, he would like to see the big law [RG1] formally agree up front to provide pro bono representation.

Chris Pitts suggested that options could include a ban or limiting permissible locations.

Noting his need to be circumspect about questions that might come before him on the City Council, in general, Councilor Laredo asserted, Newton regulates other businesses in many respects (such as operating hours, distances and buffers, etc.).  He endorsed the idea of getting up front commitments from law firms for pro bono representation.

Kartikey Trivedi noted that zoning for reduced visibility of any gun shop might help.  He noted that in his experience as Deputy Chief Operating Officer of MassHealth (Massachusetts’ Medicaid program), he has seen that sometimes regulations can be drafted in a manner that allow an activity legally but that, as a practical matter, become remote possibilities. Here, that would mean zoning locations in which it would be difficult for an applicant to find a place to rent/buy to open a gun shop, thereby limiting our losses if we must zone for a gun shop. He also noted the large expenditure for the Webster Woods initiative and associated litigation with Boston College and the comparative importance of that versus this issue (i.e., a question of prioritization).

Councilor Laredo commented that the legal issue involved in the Webster Woods litigation is limited (i.e., the fair market value of the land taken by eminent domain) whereas the issues in litigation over a ban or gun shop zoning would be more far-reaching, but might be more likely to attract pro bono assistance.

Sallee Lipshutz, noting that there had been gun shops in Newton in the past, expressed her view gun shops need not be feared and that a ban would result in expensive litigation (especially if the case went up to the Supreme Court) and make Newton an unwelcome focus protests on both sides of the issue. She noted that the Massachusetts chapter of a gun owners association has picked up on the issue in Newton.  She also commented on the NRA’s economic capacity to support litigation. She expressed her support for regulation to achieve safety, as in other communities such as Framingham, Waltham and Dedham.

Chris Pitts expressed his view that he would not fear litigation given the importance of the issue and that availability of guns iincreases the probability of gun violence.   He noted that Councilor Laredo and others have suggested strenuous regulation that limits guns shop.

On behalf of Peter Harrington (who could not attend) Peter Bruce expressed the view that adding retail gun stores to manufacturing zones is not consistent with their purpose; that there is an overbalance of suggested locations on Newton’s north side; that the draft ordinance appears to be a reasonable attempt to control gun shops; that there are constitutional issues to consider; that he supports an approach that will survive legal challenge; and that an overwhelming majority of residents will support regulation but not a ban.

In addition to thanking the letter writers for weighing in, Rena Getz asked whether it is possible to limit the number of stores and limit their proximity to one another.

David Bunis explained that in the Alameda case one gun shop existed and the zoning ordinance used buffers that made it nearly impossible for a 2^nd shop to open.  He also noted that the availability of a nearby gun shops could factor into whether an ordinance imposes an undue burden on gun owners.  His query to ATF’s website disclosed that there are non-shop gun dealers within 1 or 2 miles of Newton, as well as other shops in Dedham, Framingham and Waltham.  He explained that the ATF website includes a sortable list of applications and granted licenses to sell firearms, listing name, address and telephone number.

Sallee Lipshutz noted that individuals can be private sale gun dealers without maintaining a shop, that Massachusetts has rational regulations and that, while she is not a gun advocate, she recognized that opinions differ. She also noted that the Supreme Court’s conservative makeup argues against a ban.

Jessica Aker Archer commented that, with available geographic information, the City’s department can map buffer boundaries for schools, domestic violence shelters, parks, etc., and create a map that will provide a good visualization.

Sallee Lipshutz suggested that, to avoid favoring one part of Newton, it might be good to allow one gun store on the north side and one on the south side. David Bunis expressed reservations saying that such an approach would look too much like a ban and suggested “smart” regulations would be better.  Councilor Laredo added that the City Council needs to draft criteria, that he did not know if Newton could impose a specific limit on the number of gun shops.  He also noted that state law is what compels Newton to allow 8 marijuana shops and that, although there is no constitutional right involved with marijuana, there is one related to guns.

Chris Pitts noted that availability would not be cut off given availability in other communities, but expressed that he did not want Newton to experience a backfire (pun intended) from limiting too vigorously

Jane Frantz suggested significant restrictions around “sensitive areas” could be imposed as discussed at the April 26 ZAP meeting.  She endorsed adding walking routes to school to the list of sensitive areas. If it would pass[RG2] [PB3]  muster.  David Bunis suggested asking the Brady and Gifford Centers about this interesting idea.

Carolyn Gabbay asked about how to provide buffers around domestic violence safe house locations which, by their nature must remain secret. 

Turning to the upcoming public hearing, Chris Pitts suggested that the public comment there on how far residents are willing to go and how strictly they want to regulate gun stores.

Physician John Mortdes noted that he would support repeal of the Second Amendment, but he did not support a quixotic effort to go beyond what has worked in other communities, namely reasonable regulation.He added that it is not hard to find where to buy a gun via Google.

Councilor Laredo urged all to communicate their views at the upcoming public hearing, noting that opinion matters a great deal to the City Councilors.He also thanks David Bunis and his group for the helpful work they have been doing.

Chris Pitts noted that both the NAC and WAC will have their regular meetings next week.He adjourned the meeting at 8:30 pm.

Respectfully submitted,

Dinah Bodkin, WACN Secretary

and

Carolyn Jacoby Gabbay, NAC Secretary