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Home My WebLink About1971-12-29-BAC-rpt.pdf Mr Richard Michelson 54 Asbury Street Lexington, Mass 02173 Dear Dick After examining the redraft of the proposed Battle, Green by-law I. have as expected roncluded '\that the redraft does not resolve any of the differences of view set forth in my previously filed Minority Report and that I should adhere to that Report I have taken this as an occasion to reexamine the draft of a proposed by-law attached to my earlier report and have prepared a new draft which T believe adheres to the principles of the earlier one while incorporating some changes for purposes of clarifying simplifying and shortening it I would be most appreciative if you would transmit a copy of this letter and my new draft to the Board of Selectmen when you make the final submission on behalf of the Advisory Committee Many thanks Sincerely Fr nk I Michelman December 29 1p71 Copy to Board Members 1 ,yr. Pr' Ait 1/ Se-tion "15 The Battle ('-Seen (a\ Subject to the provisions of this section and of Section 1 of Article XXV of these By-Laws, the Battle Green shall he freely and continuously open for the lawful use enjoyment, and inspiration of all Portions of the Battle Green may, by order of the Board of Selectmen be temporarily withdrawn from public access for necessary repair or maintenance (h) Any person or persons desiring to use the Battle Green for any public meeting performance or other organized activity, which will fully occupy the Green or to the any portion thereof over .a period of time shall first Board of i make written application/in such form (including reasonable Selectmen identification of the applicant or applicants) as the ' Board may prescribe The Board shall grant permission as requested unless refusal i,s reasonably deemed necessary for thetprotection of public health or safety or the safety of persons or property; the prevention of excessive or protracted noise at unsuitable hours) the protection of the Green against physical deterioration from excessively intense or concentrated use) or the avoidance of conflict with previously scheduled activity The reason or reasons for any refusal of permission shall he stated in the public record (c) 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 peace=ful and orderly manner in keeping with a respectful regard and reverence for the memory of the patriotic service and sacrifice there so nobly rendered ( 1 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 tour 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 IV p (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 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 : won 7 SWOP C (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. (iii) A requirement that refusals be accom- panied by explanations I believe this is essen- tial to preserve citizen confidence in the exer- 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 `l (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 .ectfully submitted, fil f? 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, end shall be oven as hereinafter provided for memorial performances , public meetings, and other similar activities. t (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 .,I 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 unsuita hours , the protection of the Green against physical deterioration from excess 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 Bat 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