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November 9 1971 Board of Selectmen Town of Lexington Lexington Massachusetts 02173 Re Advisory Committee Report - Article 75 Gentlemen Enclosed herewith please find the report of the Advisory Committee established to study and make recom- mendations to the Board on the content of Article 75 of the 1971 Annual Town Meeting Warrant In revising Article XXIV, Section 6 there was a majority vote to alter the By-Law by adding public buildings under the control of said section and to clarify the person or persons responsible for giving permission and that said permission must be in writing In revising Article XXIV, Section 25 it was a majority vote to change the By-Law by describing in paragraph (a) the purposes of the Battle Green, (b) to prohibit certain activities on the Battle Green, and (c) to clarify what is allowed and how permission is to be granted and by whom Also enclosed is a minority report on the proposed change of Article XXIV Section 25, with an explanation The committee would like to schedule a meeting with your Board on November 227 1971, to answer any questions you may have in regards to our report and at which time if you desire we will be discharged as a committee Very truly yours Richard A Michelson Chairman RAM/a lm Enclosures V ARTICLE XXIV PUBLIC WAYS AND PLACES 4 TRAFFIC REGULATIONS ton 6 No person shall obstruct the free, open and con- enient use by the public for travel of any sidewalk street c_Ab is parking lot, public place or public building, in cc'apying the same with goods , wares, merchandise or oth- r _hattels or by using the same as a place of resort, amusement rreati.on or business, witnout the written permission o the _r-ctmen or Town Manager I I Ii ARTICLE XXIV PROTECTION OF THE BATTLE GREEN action 25 (a) The Battle Green shall be open to the public `or purposes of rest, contemplation, conversation, historical cycursion, memorial performance, public meeting or other m:milar activity as provided for herein (b) No person shall engage in any game sport or Picnic on the Battle Green (c) No person shall engage or take part in ani -na-rnorial performance, public meeting, or other similar acti" t Dn the Battle Green without the written permission of the Town Manager or Board of Selectmen granted after receipt of a writt_n pplication in such form as the Town Manager shall prescribe (d) No person shall climb upon, deface mutilate or otherwise injure any tree shrubbery, monument, boulder fence seat or structure on the Battle Green, or there behave or conduct % _mself otherwise than in a quiet and orderly manner in keeping th a respectful regard and reverence for the memory of the atriotic service and sacrifice there so nobly rendered Vi MINORITY REPORT This minority report deals only with Article XXIV, section 25 . I would recommend that the Board of Selectmen propose the adoption of a new section 25 along the lines set forth in the draft appended hereto. This draft contains four paragraphs parallel to those in the draft recommended by the majority of the advisory committee. For purposes of { comparing the two drafts, material in the minority draft which differs from or adds to the majority ' s draft has been underlined. I shall briefly discuss each paragraph, calling attention to the issues on which there is difference of view between the majority and the minority. (a) The Battle Green should be freely open for all kinds of quiet, unobtrusive activity; and should be avail- able for meetings and performances subject to a permit pro- cedure I believe there is no substantive disagreement on this point . (b) I believe that use of the Green for rest, contem- plation, and historical visitation should be accorded prior- ity over use for such activities as games and picnics - but 1 that there is no need to bar activities of the latter sort as long as they do not in fact interfere with other people ' s more passive use and enjoyment of the Green. The majority believes that the Green is simply an inappropriate site for playing and picnicking. This is a disagreement about policy, reflecting different value judgments . (c) The disagreement here may pertain more to form and procedure than to substantive policy. I believe, however, that careful attention to matters of form and procedure is warranted where First Amendment rights of expression and assembly are involved Especially is this so because , in my opinion, failure to adopt appropriate formal and procedural safeguards will leave the by-law vulnerable to constitutional attack. My reasons for so believing are set forth at pp 1-6 of a legal memorandum I submitted to the advisory committee, a copy of which has been furnished to the Town Manager My draft would expand on the majority' s draft by adding three elements (i) A listing of five kinds of problems which may justify denial of permission to hold a public meeting The intent is to make this list exclusive - to say that a permit may be denied only where denial can reasonably be thought necessary to avoid one of listed types of problems I believe it is the proper province of the Town Meeting, as our legislative body, to provide this kind of articulate policy guidance for administrative officials . (ii) A requirement that criteria for judging whether one of the listed objections exists shall be applied consistently to all applicants The objections are stated in rather loose terms (e .g. , "protection of public health") , leaving an appro- priate amount of discretion to administrative officials Discretion is not unduly encumbered by a requirement that it be exercised - perhaps by developing and articulating more precise stand- ards or rules - in a consistent manner over a span of time It is not the minority draft ' s intention to forbid general changes in administrative stand- ards, rules or practices such as experience may dictate from time to time I (iii) A requirement that refusals be accom- panied by explanations I believe this is essen- tial to preserve citizen confidence in the exer- t cise of administrative duties which will almost certainly prove delicate or controversial on occa- sion. An applicant should be told clearly what the objection is to his request, so that he can try to overcome it (by persuasion, by providing more informa- tion, or by changing his plans) and so that he can reassure himself that he is not being treated arbitrarily, or less favorably than someone else without a good reason. I (d) There is no difference of substance here I recommend using the word "peaceful" instead of "quiet" because a flat requirement of "quiet" behavior seems hard to square with the qualified allowance of public meetings contained in both the majority and minority drafts Re. .ectfullys/ubmitted, ‘ ' 7! J �'V��l "V" /v\a Fr=nk I. Michelman APPENDIX TO MINORITY REPORT (a) The Battle Green shall be open to the public for purposes of rest, contemplation, conversation, quiet relaxation, and historical excursion, and shall be open as hereinafter provided for memorial performances , public meetings, and other similar activities. (b) No person shall engage in any game, sport or picnic on the Battle Green which substantially interferes with the use of the Battle Green by others for purposes of rest, conversation, contemplation, quiet relaxation, or historical excursion. (c) No person shall engage or take part in any memorial performance, public meeting, or other similar activity on the Battle Green without the written permission of the Town Manager or Board of Selectmen granted after receipt of a written application in such form (including reasonable identifi- cation of the applicant) as the Town Manager shall prescribe Permission may be refused only if refusal is reasonably deemed necessary under criteria consistently applied to all applicants for the protection of public health the safety of persons or property, the prevention of excessively protracted or frequent noise, disturbance or congestion, or their occurrence at unsuitable hours , the protection of the Green against physical deterioration from exces- sively intense or concentrated use ; or the avoidance of conflict with pre- viously scheduled activity. The reason or reasons for any refusal of per- mission shall be explained to the applicant. (d) No person shall climb upon, deface, mutilate, or otherwise injure any tree, shrubbery, monument, boulder, fence, seat or structure on the Battle Green, or there behave or conduct himself otherwise than in a peaceful and orderly manner in keeping with a respectful regard and reverence for the memory of the patriotic service and sacrifice there so nobly rendered