Q&A: How the leaf blower cacophony led to scheduling a special referendum for March 2022

What is Article 10?

Article 10 is one of 17 articles debated and voted on in Lexington’s Special Town Meeting, which concluded about two weeks ago. The original version of Article 10, inserted by the Select Board at the request of the Noise Advisory Committee, proposed reducing noise from landscape maintenance equipment by amending Chapter 80 of the Code of the Town of Lexington (Noise Control). 

The amendments included in the final motion that passed comprised defining two terms, ‘commercial landscaper’ and ‘landscape maintenance equipment,’ and also included four actions: 

1. Imposing separate time limits on the commercial, residential and town use of Landscape Maintenance Equipment. The commercial use of Landscape Maintenance Equipment would be limited to Monday – Friday, 7 a.m. to 6 p.m., and Saturdays, 9 a.m. to 5 p.m. The limits on residential use of Landscape Maintenance Equipment would be slightly less restrictive — Monday – Friday, 7 a.m. to 8 p.m., and Saturdays, Sundays and Legal Holidays, 9 a.m. to 5 p.m. Finally, the use of Landscape Maintenance Equipment by the Town or Town contractors on Town property would have a limit in between the residential and commercial limits: Monday – Friday from 7 a.m. to 8 p.m., as for residents, and Saturdays 9 a.m. to 5 p.m., as for commercial landscapers. The motion also specifies that these restrictions differ from the restrictions on landscape construction work.
2. Beginning May 31, 2022, one controversial type of landscaping equipment, gas-powered leaf blowers (GLBs), would be subject to seasonal restrictions applying to town, commercial and residential use alike: GLBs could only be used March 15-May 31, and Sept. 15-Dec., for spring and fall clean-ups respectively.
3. The most hotly debated stipulation of this article would phase out the use of gas-powered leaf blowers completely in a few years for commercial landscapers and residents alike. For commercial landscapers, the use of GLBs would be prohibited beginning March 15, 2025. For residents, the ban would go into effect one year later, on the same date in 2026. But, this ban does not apply to wheeled leaf blowers powered by four-stroke engines on properties larger than one acre.
4. Last, the proposed amendments upped fines for violations of the noise by-laws — adding specifications of a fine of “$100 for the second violation, and $200 for the third and each subsequent violation.”

What happened with Article 10 at Special Town Meeting?

Long story short, the article underwent several somewhat confusing nested amendments and was also subject to some unexpected corrections for consistency and clarity during the meeting, before passing with a substantial majority of votes. While amendments are a normal part of Special Town Meeting, such corrections are not. Additionally, the phase-out of GLBs was removed from the article less than 24 hours prior to the meeting at the advice of the Select Board, due to their concern about an addition clarifying the four-stroke engine exception making the already controversial phase-out too confusing to include in the motion. However, during the meeting — which was the fifth and final session of Special Town Meeting 2021, taking place Thursday, Nov. 18, a week before Thanksgiving — the amendments led to the reintroduction of the GLB phase-out into the article. The motion as explained and linked above passed with 84.9% of the vote (135 yes, 24 no, 10 abstentions). We reported on Special Town Meeting, including the various ins and out of that evening, in our Nov. 19 newsletter. 

If Article 10 was approved with a substantial majority of the votes, why isn’t that the end of the story?

Before being passed, Article 10 was intensely debated. Residents, landscapers and community members expressed a range of reasons both for supporting and opposing the article during debate. Some supporters of the article took issue primarily with the noise gas-powered leaf blowers make; others expressed the most concern with their detrimental environmental impacts; others still focused on the negative health impacts GLBs can have, especially on workers. Among opponents, multiple landscapers, and some residents, contended that transitioning to battery-powered leaf blowers would be prohibitively expensive, while leaving them with inferior equipment — multiple landscapers and Town Meeting Members estimated that it would cost as much as $20,000 to replace the full complement of their equipment. Some residents also argued that the environmental impacts of GLBs are far outweighed by other pollutants, e.g. vehicles, and that the restrictions — especially on residents who use GLBs only a few times a year — are disproportionate to the positive environmental impact their phase-out would create. Others expressed concern about the burden phasing out GLBs would impose on some more vulnerable populations, including seniors and disabled persons, who might be inconvenienced or even harmed by the necessity of a more physically intensive leaf removal method than using GLBs.

Following the STM vote approving the by-law, local landscaper Chris Stratford took advantage of a provision of Town code dating back to 1929 which can allow for the reversal of an approved Town Meeting vote by subjecting the article in question to a town-wide referendum. 

Under Section 8 of Chapter 215 of the Acts of 1929, a representative town meeting vote which took any of a number of specified actions, including adopting a new bylaw or amending an existing bylaw, is not “operative” until after five days — excluding Sundays and holidays, from the dissolution of that Town Meeting. Within those five days, if a petition is signed by no less than 3% of registered voters in town and filed with the Select Board requesting that a town-wide referendum be held about the article in question, the article becomes subject to the outcome of that referendum (with stipulations explained below). That is what happened to Article 10.

Since the Town Meeting vote took place the evening of Thursday, Nov. 18, town residents had until Wednesday, Nov. 24 to collect signatures from 3% of registered town voters — about 700 residents. Stratford circulated such a petition, and earned well over the number of signatures needed — ultimately, 1,130 signatures were certified.

So a petition was ratified calling for voters to reconsider Article 10, and now there’s going to be a referendum. What now? When will that referendum be held?

This same Section 8 stipulates that the Select Board must call a special meeting within 10 days after the petition is filed. But “call a special meeting” doesn’t mean “hold a special election”; it essentially means “schedule the referendum.”  In their meeting on Monday, Nov. 29 (which fell within the 10-day period specified), after considering several factors, the Select Board determined to have the vote coincide with the Town’s annual election on the first Monday of March 2022; they are scheduled to establish the annual town election’s date, along with Annual Town Meeting dates, at their Dec. 6 meeting, according to the posted agenda.

Why isn’t the referendum being held sooner?

Select Board members largely agreed that in an ideal world, this referendum would be held immediately; engagement on this topic is very high right now, and adding the vote to the town’s Annual Election risks overshadowing other issues in that election. But a couple of factors make it tricky to schedule this referendum any sooner. 

First, Lexington is in the midst of reprecincting, and is subject to the state’s timetable on this process — and the state is not scheduled to release new precinct information until mid-December. The state may also release new early voting rules before this date. To avoid confusion, the Select Board wants to wait until the new precincts are released to send out notice of the election; they are required by Massachusetts General Law 54:42c to send out notice 35 days prior to the vote, and cannot change the date of the vote once it is set without a court order. Thus, the earliest a vote could be scheduled would be mid or late January, which is just a month away from the Town’s annual election in March. 

Another concern about setting an election date in stone pre-March: It’s awfully difficult to predict when inclement weather will strike in New England winter.

Finally: Special Elections are expensive; it could cost the town as much as 70K, according to Select Board Member Mark Sandeen’s estimate Monday evening, to hold this referendum on its own, not coinciding with other elections — not to mention the added burden on town staff. The Town already anticipates holding one Special Election this spring regarding a debt exclusion which would primarily raise tax revenue to fund the construction of a new police station, if this project is approved during Annual Town Meeting this spring.

All factors considered, despite expressing some preference for holding the referendum sooner, the Select Board determined that waiting until March made the most sense.

What has to happen for the referendum to pass?

Come March, three things would have to hold for the referendum to overturn the specified provisions of Article 10. First, at least 20% of registered voters must participate in the election; second, 20% of registered voters must vote “no” to approving Article 10 as passed by STM (so in the referendum, a “yes” vote will support Article 10 as passed, and a “no” vote will be a vote against the STM version of Article 10). Finally, even if 20% or more of registered voters vote “no,” they must have a simple majority over those who vote yes.

How common are these kinds of referenda in Lexington?

While debt exclusion and budget override votes are more common kinds of special elections, special referenda of this kind are pretty rare in recent Lexington history — part of the reason the language specifying this process hasn’t been updated since 1929. The last time this kind of vote was held was in 2002, according to an election history record.