Town officials respond to recent accusations (Updated)

by beth on March 30, 2018

Yesterday, I posted a passionate letter to the editor stating that Town officials “gutted” the Town Code “without public knowledge”.

[Editor’s Note: Earlier, I had to take the letter down, since I am unable to verify that the writer posted as a resident under a real name.* But, as promised, I’m following up on the contents of the letter.]

The message focused on changes that were suddenly made to Zoning Board of Appeals rules in the Town Code. No specific accusations of wrongdoing are made. But the letter includes phrases “Sound Crazy?” and “Sounds Outrageous?”, which seemed to imply wrongdoing. The letter also shed light on reasoning behind a recent Open Meeting Law Complaint against the Board of Selectmen.

It shouldn’t be a surprise to readers that both accusations connect to the highly-controversial Park Central development.

I’ll get into the accusations below. But first, I followed up with Town officials to get their side of the story.

  • Town Clerk Jim Hegarty responded that he is neutral on the Park Central suit and just following through on his job duties as he perceived them.
  • Town Counsel has issued a statement that there was no OML violation.
  • And Town Administrator Mark Purple said he had been unaware of a Citizen Petition effort that some may have believed was motivation for the alleged violation.

But none of that means anything if you don’t know what the allegations are. So, here are the basics. . .

Court arguments in resident’s appeal of the ZBA’s decision on Park Central have called into dispute ZBA quorum rules under Town Code. And they called attention to the fact that the Town Code hadn’t been properly updated to reflect filed rule changes. To stop the Town from revising the Code around quorum, residents began working on a Citizen’s Petition Warrant Article.

On March 6th, the BOS re-opened and closed the Warrant. Later, an Open Meeting Law Complaint was filed that no public notice was given of that action. On March 20th, resident Karen Shimkus commented on the complaint, telling selectmen that residents had been looking for a window to add that Article.

This week, the Town Code was updated with the current ZBA rules. Learning of the change, “Roxanne Perro” submitted a letter to the editor calling on residents to react to the “Urgent Public Awareness Matter”. The writer asked readers to contact selectmen and to sign the Citizen’s Petition, now seeking to open a Special Town Meeting on the ZBA quorum rules within the Annual Town meeting.

Now, here are more details. . .

Town Code edits

In residents’ appeal of the ZBA’s Park Central decision, one of their arguments has apparently been that deciding members didn’t have a quorum. At the time that three ZBA members were hearing and deciding on the Park Central development, the publicly posted Town Code stated:

Five members of the board shall be present at every hearing. Four members may hold a hearing and act on any matter before the board, provided that the interested parties assent thereto before the hearing opens.

Both Shimkus and “Perro” have referred to the code as permanent. The letter claims that the Town has argued that newer rules (which were silent on quorum) superseded that language. At the outset of the section on the ZBA, the Town Code defined:

The following rules and regulations are adopted by the Zoning Board of Appeals under the authority of, and in compliance with, MGL c. 40A, § 12. . .

These rules and regulations may be amended at any time by the Zoning Board of Appeals. Any such amendments shall be filed with the Town Clerk in the same manner in which these rules and regulations were so filed. Such amendments shall take effect upon being filed with the Town Clerk.

According to Hegarty, rules underneath that should have been updated/replaced when new rules were filed with the Town Clerk’s office in 2007, 2011, and 2017. He explained that after learning of the oversight, he signed an affidavit and sought to rectify the issue by having the code updated. He objected to implications that he was acting underhanded:

I take no side in the ongoing litigation re Park Central. Heck, I spent more than an hour last week helping a person with preparations for the Citizens Petition for a Special Town Meeting that they will be seeking signatures on Saturday which was mentioned in the blog post. I have spent dozens of hours helping residents who oppose the Park Central project with their public record requests.

(You can read his lengthier response here.)

Hegarty sent me the updated rules submitted in 2007, 2011, and 2017. (He also sent his affidavit and the minutes and agenda around the 2017 changes that show public notice was given.)

I will leave it to others to debate what version of the rules, especially regarding quorum, was legitimate during the Park Central hearings. (ZBA Chair Andrew Dennington responded with his take via his affadavit.)**

But I will opine that it seems the newly updated code reflects the changes that were adopted legally and with public notice in 2017. I think the main issue is that some residents (me included) didn’t understand that when the ZBA adopted new rules they would completely replace the language in the Town Code.

That is what residents who are asking for signatures on a Citizen’s Petition apparently hope to change at Town Meeting – at least in terms of quorum. (I don’t have a copy of the language being used in the petition. If someone wants to share those in the comments, that would be great!)

Open Meeting Law Complaint

There were actually multiple OML Complaints filed in March.*** But I’m focusing on the one that links back to the Town Code issues. Notably, the Complaint was filed by the same attorney representing Shimkus and others in their pending Park Central appeal in Worcester Superior Court.

The March 6th agenda didn’t specify that the Warrant would be open but did include “Discussion of April 9, 2018 Town Meeting warrant articles and Board recommendations”. It also included notice that selectmen would be signing the Warrant that night.

The Warrant was re-opened and closed that night following a discussion on the posted item “Article 31 — Bylaw: motion to reconsider a vote”. In the discussion, selectmen decided that voters should be given a second option on how to handle the issue, adding another Article for removing the ability to reconsider a vote.

Attorney Donald J. O’Neil filed a complaint alleging that the agenda didn’t give public notice that they were Opening the Warrant on March 6th. His complaint requests:

I want the BOS to determine that there was a violation in the following areas:

– Failure to issue public notice in advance of re-opening the Town Warrant and Re-closing the Town Warrant; Other residents/taxpayers were waiting for the Warrant to re-open; this is not a vehicle expressly for Town Counsel and/or the BOS members themselves to institute their own changes.

Requested action: Re-open Town Warrant with proper notice to the public.

Town Counsel has issued a formal response countering that notice was given. Counsel Aldo Cipriano argued that the agenda language covered the actions taken by the board and served as proper notice. You can read his response here.

I followed up with Town Manager Mark Purple to find out if he was aware on March 6th that residents were seeking to add an Article to the Warrant. Purple responded that he first learned of it when Shimkus made her public comments.

*I am not claiming Roxanne Perro isn’t an existing resident. I’m clarifying that I haven’t been able to verify her existence. Since it isn’t kosher to use a psuedonym for a Letter to the Editor, I’ve taken down the content of the letter until I can verify her existence.

**[Editor’s Note: Perro’s letter claimed that in a ZBA meeting on October 1, 2014, the Chair’s stopping of a Park Central meeting for having only 3 members shows that they were still going by the old quorum rule. But at that time, then-ZBA Chair Leo Bartolini actually specified that they had a quorum, he just wasn’t going to proceed on the 40B with only 3 members.]

***Another form alleging two violations was filed by David Parry. His relates to lack of agenda notice and minutes covering a discussion around bringing a Town Manager Warrant Article to Town Meeting. (That isn’t happening.) I’m waiting on the Town’s response before writing about that. In the meantime, you can read his complaints here.

Updated (3/30/18 5:12 pm): ZBA Chair Andrew Dennington was mentioned in the Perro letter. He responded by providing his affadavit.

Updated (3/31/18 9:09 am): When I deleted the “Perro” letter, that also removed relevant links around the Town Code. These are the versions that were submitted as “Before” the changes that were made this week: page 1 and page 2. Click here to review the version that I found through the Town’s website this week after the updates were made.

{ 24 comments… read them below or add one }

1 Lucy March 30, 2018 at 4:02 PM

Did anybody else see this in the code? The ZBA meeting to make changes isn’t even enough. They need Town Meeting to change code. This is BS of the highest degree. These guys are crooks. Funny it also still states that a use variance is good for one year…

This chapter and any amendments thereto shall take effect as provided by law upon adoption by a Town Meeting, provided that it is subsequently approved by the Attorney General and published or 90 days elapse without action by the Attorney General.

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2 Concerned Voter March 30, 2018 at 6:51 PM

Seemed to me that the Letter to the Editor was not accusatory in any way, nor was it charged. It was a simple disclosure of big changes to the published Code.

It’s focus is where the focus should be, i.e. the Code was changed and the public was and is unaware of it. It seems that the BOS was unaware of it?

Not sure why the above follow up draws so many false conclusions and links where there are none. This follow up article is ridiculous in the conclusions and connections it tries to make — plus it is a distraction from the real point: These changes were not discussed in an Open Meeting(?) — and if the quorum requirement is changing, wouldn’t the change in the count be mentioned or discussed somewhere? At least now the voters are aware that the Code was changed.

There doesn’t seem to be a conspiracy or sinister links between the Open Meeting Law Violations and the potential for a Citizen Petition, as suggested above. That seems a bit of spin from the Town’s side of the equation. The OML Violations were in the BOS package from one of the last few meetings, therefore the public was made aware by those forms that there are questions outstanding on whether or not the warrant can be opened and closed without notice to the public — and apparently the state will decide that question.

The statement in this follow up article above “To stop the Town from revising the Code around quorum, residents began working on a Citizen’s Petition Warrant Article” is a conclusion, spin. Where on earth did that come from? No one is stopping the Town from doing anything. The Town Counsel and ZBA did what it did. How would the public have ever known that they are interpreting the published public Code as void? That’s the real question and should be the focus of your article — the substance of the matter — public awareness and transparency in government. Where is the transparency to the public?

The timing of the change of the Code (this past Monday) does seem strange.

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3 beth March 31, 2018 at 8:41 AM

The statement in this follow up article above “To stop the Town from revising the Code around quorum, residents began working on a Citizen’s Petition Warrant Article” is a conclusion, spin. Where on earth did that come from?

Where that came from was the specific statement from Karen Shimkus at the March 20th BOS meeting. She said they were seeking to reaffirm that the quorum was permanent in nature. And she referred to efforts to change that, calling them puzzling, and said the petition article would remedy that.

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4 Concerned Voter March 31, 2018 at 9:47 AM

Beth,
The Town (town counsel and Dennington) made their changes first, starting back in January per the clerk. No one is stopping or stopped the Town from doing anything. You are making conclusions and links where there are none. Also, the voters don’t need to be told what to think via town spin: it’s quite simple. Do a side-by-side comparison of the old version versus the new version — the reader can decide if the code was substantially changed.

Just because the public starts to find out and wants to make a warrant — that has nothing to do with the Town’s own substantial changes of the Code starting back in January. The main point of substance is this: the Code was changed and it seems that the public at large did not know it happened. Where was the public disclosure or discussion of the change in the quorum number? Show us that on tape, please.

The real key point is this: three or four? for a quorum. Does the Town Citizenry want to three people making huge, critical-impact decisions on behalf of the town. It is highly doubtful the number would be three, when the public published code has stated FOUR — right up until Monday.

Last important question: WHO on the BOS knew that the public published Code was changed on Monday 3-26-18.

Thanks!

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5 beth March 31, 2018 at 8:49 AM

I would also like to clarify that I wasn’t trying to imply conspiracy or sinister links between the citizen’s petition and OML complaint. I think it’s clear that the reason residents were upset by what they saw as an OML complaint is that they were looking for an opportunity to add their Article to the Warrant. Because they didn’t take what was on the agenda as being an opportunity, they felt they were robbed of that right.

I presented their side and the responding side. I’m not taking sides as to who is right and wrong there.

You seem to be reading something into my post that isn’t there.

But I do think that it’s wrong to say that the letter wasn’t accusatory in anyway. It asked readers if they find what happened crazy or are outraged by what happened. It didn’t accuse anyone of breaking the law, but it did imply that there was some kind of wrongdoing by Town officials.

I think that after reading my post, some readers will still side with the letter writer. I’m not trying to tell people whose side to be on. I’m just trying to present the context and both sides of the argument. And I’m sharing the facts as I see them.

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6 Concerned Voter March 31, 2018 at 9:55 AM

Sorry, but disagree thoroughly for reasons stated above.

It is crazy, i.e. very odd to be unable to cite any public meeting or discussion or disclosure of a change in the quorum. Beth, when and where did that open public meeting disclosure or discussion take place??

If a huge change like that is taking place, it must be disclosed and discussed in a public meeting. It seems to me that if the required number is going from x to y, then IT GETS DISCUSSED PUBLICLY AND DISCLOSED that it is going from x to y.

Who on the BOS knew that the Code was changed on Monday 3-26-18 prior to it happening?

Thanks again, Beth

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7 Concerned Voter March 30, 2018 at 7:16 PM

Just noticing another reader’s comments:

Let’s be very clear that the ZBA does not have the authority to change their own quorum requirements. MGL chapter 40 section 12 has clear language specifying that the ZBA cannot publish its rules of operation in conflict with the Town’s Zoning bylaws.

“The board of appeals shall adopt rules, NOT INCONSISTENT WITH THE
PROVISIONS OF THE ZONING ORDINANCE/BY-LAW for the conduct of its
business and for purposes of this chapter and shall file a copy of said
rules with the city or town clerk.” (MGL c. 40A, § 12).

This is STATE LAW — and the above seems to be spot on. As for the references above to the “permanent” nature of the Code, that reference is directly from Mr.Dennington’s affidavit and exhibits.

Thanks Beth!

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8 YY March 30, 2018 at 11:34 PM

Sounds like what we are talking about here is ZBA’s rules and regulations which they have the authority to change (so long as it does not conflict with MGL c. 40A, Town Bylaws, etc).

My main issue is I believe I was given the impression the last revision (2017) was amending the existing rules and regulations and not complete rewrite: https://www.southboroughtown.com/sites/southboroughma/files/uploads/proposed_amendments_to_zba_rules_regulations.pdf

Even after reading what Mr. Dennington’s affidavit (seems to match Mr. Hegarty’s account on revision), I still don’t agree what is the base document for 2017 revision. What is the 2007 revision amending? What we have is not the final mocked up version but just the changes to some base document. Likewise the 2011 change just replace section II (about chairman) and leaves everything else unchanged.

I believe Mr. Hegarty is just doing his job here.

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9 Maria Cutts March 31, 2018 at 1:46 PM

To Concerned Voter:
It does not seem fair that you are criticizing Beth over and over here without revealing your name. If you want citizens to believe your extensive references and data, then it would be good to know how you are so knowledgeable. Do you work for the town? Are you one of the presenters of the Citizen Petition? Are you a lawyer?

But MORE IMPORTANTLY, I do not think you should be slandering Beth without presenting yourself. You will probably take umbrage with the word “slander” but in my opinion she presented the situation fairly as a response to an Editorial letter and after contacting the Town committee members and employees for their responses, and affidavits are referenced. I did not read a bias in her article.

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10 Concerned Voter March 31, 2018 at 6:49 PM

Any and all responses are not criticisms. These are simple points of fact, observations and opinions based on trying to keep up along with everyone else.

Any citizen / taxpayer can stay knowledgeable by simply attending and watching meetings, reading agendas and minutes and conversing with fellow neighbors and friends. That opportunity is available to all.

Civilized voters can agree to disagree. Disagreement is not slander — and you are way, way out of bounds. I do not agree with your take or opinions at all. If you are so curious as to what is going on, and want to educate yourself, start by viewing tapes and reading the various minutes and public records — as many, many citizens have done.

The main point here is one of lack of public disclosure on a MAJOR CODE CHANGE — Who knew this happened? Who on the BOS knew this happened? Start by asking your public officials.

Also, the content of the message, like most others right in this column, is the desired focus on important matters affecting the future of this town — not the messenger.

What is really disconcerting is people like yourself not focusing on the key and major points of substance (questions of Open Meeting Law violations, major changes to the code without public meeting discussion).

Have you looked at the old versus new versions of the code as posted by Beth? Hopefully Beth will re-post those public records — and thanks to her for doing so.

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11 Marnie Hoolahan March 31, 2018 at 3:18 PM

I for one and am just trying to figure out what is going on in my town. I am like many residents who want to be kept up to date and understand how and why decisions get made in town. I saw the letter to the editor as an education. Because of that being posted, I spent time reviewing the code that was presented in the letter with the new code and yes I saw changes, significant changes.

I was a very strong voice against the Park Central process. I, like many others, spent 4 hours watching (since no public comment was allowed) 3 men allowed multiple changes to a document, none of them ever actually reading/proofing the changes that many of us witnessed and signing. This, after several years of misappropriation of power- waiving conservation laws, minimizing planning board authority and doing what they could to make one developer’s poor choice in land purchase a potential profit win at the town’s safety expense. I NEVER, EVER, EVER want to see this misappropriation of power again. I do not think it is okay that a ZBA can simply decide that they don’t want to keep the 4 person quorum and voila, they vote on that and it happens. I am not a lawyer, I have no idea what can and cannot be done legally but I do know that as a voter, I am entitled to transparency.

Transparency is what is missing. Ethics will always be questioned when things are done that appear underhanded. I agree that I think the Town clerk is simply doing his job. I question our town counsel, select members of the BOS and our ZBA. These types of decisions should be made public and communicated in a way that we can comprehend and understand.

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12 Lucy March 31, 2018 at 3:28 PM

Make no mistake this is Dennington and Cipriano kicking for the developer. They should both be held accountable and removed. Enough is enough and if Kolenda doesn’t see this as an issue maybe he should reconsider his honest, transparent mantra cause it’s simply not true. He plays the veteran and honest cars to get elected amongst the masses that have no idea his positions in these situations. He knew there is no way he didn’t.

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13 David Parry March 31, 2018 at 8:20 PM

In the interest of providing facts (rather than opinion), let me offer the following. I am not taking sides here, I am not a party to any law suit. I do not live near Park Central. I am just offering information in an attempt to get clarity.

The issues seem to be: (1) the authority of the ZBA to alter its rules of procedure, and (2) the procedures the ZBA must follow relative to a quorum and vote, and (3) the actual procedure followed in the Park Central case.

Based on the State Zoning Act, Chapter 40A, the ZBA is authorized to alter its rules, but those rules must always comply with the State Zoning Act. It appears that the ZBA did alter its rules, and those changes have recently been codified by the Town Clerk, who has been careful to NOT take sides.

The changes the ZBA made to the Code have deleted former language relating to a quorum. However, the requirements for quorum and voting are specified in the State Zoning Act, as noted below. The following are all direct quotes:

——————————-

SECTION 12: Boards of appeal, membership, rules.

Quote, paragraph 1.

“The board of appeals shall adopt rules, not inconsistent with the provisions of the zoning ordinance or by-law for the conduct of its business and for purposes of this chapter and shall file a copy of said rules with the city or town clerk. …..”

SECTION 15: Appeals to permit granting authority; notice; time; boards of appeal hearings; procedure

Quote, Paragraph 5, with emphasis added by capitalization:

“THE CONCURRING VOTE of all members of the board of appeals consisting of three members, and a concurring vote OF FOUR MEMBERS OF A BOARD CONSISTING OF FIVE MEMBERS, SHALL BE NECESSARY to reverse any order or decision of any administrative official under this chapter or TO EFFECT ANY VARIANCE IN THE APPLICATION OF ANY ORDINANCE OR BY-LAW.”

(end of quotes)

————————————

Southborough has a 5 member ZBA. The State Act requires 4 affirmative votes. However, the ZBA voted on Park Central with only 3 members present, and all 3 voted in favor: Bartolini, Depranos and Eagle. That raises the questions of whether a vote of 3 was legal, or not. I do not know the history and I am not claiming it was improper. There may be a legitimate reason.

Please will someone who knows the facts, why only 3 members voted, provide these facts.

Thank you.

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14 Lucy April 1, 2018 at 10:15 AM

Here’s a fact that you can’t not post-the video has Dennington saying the only change is the term length of the Chair. That is not the only change that is reflected.

Funny that Craig removed himself recently for Southville Rd but didn’t in this video. What’s the conflict that developed in the last year?

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15 beth April 1, 2018 at 3:14 PM

It seems that the ZBA took the position that the quorum went to weigh under previous changes. I do find that point debatable and have all the links in the post to let people make their own call on that.

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16 Concerned Voter April 1, 2018 at 6:33 PM

Mr. Andrew Dennington and others, including Mr. Craig Nicholson, need to explain themselves as to what this conversation on tape means. Below is a link to a conversation on the amendment, which does not mention quorum at all. (Also, please Mr. Nicholson does need to explain his recent recusal.)
Southborough ZBA Meeting February 15, 2017:

https://www.youtube.com/watch?v=MLYsUVmeQq8

See 14.40 minute mark approx. for discussion:

Mr. Dennington: “These are our rules and regulations subject to that one amendment. . .” Also some question on 2007 previous rules to which Mr. Dennington replies: “They were never filed. . .” “And I am not sure what they are. . .”

Can the draft / base documents please be posted publicly? Thank you.

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17 beth April 2, 2018 at 7:43 AM

I’m confused by your post. I think you are asking me to post information that I already did.

On Saturday morning, I updated the post with:

When I deleted the “Perro” letter, that also removed relevant links around the Town Code. These are the versions that were submitted as “Before” the changes that were made this week: page 1 and page 2. Click here to review the version that I found through the Town’s website this week after the updates were made.

And the story already included linked documents that Jim Hegarty had submitted re the ZBA’s filed rules updates in 2007, 2011, and 2017.

Did you just not see that those links are there, or are you asking for something else?

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18 Concerned Voter April 2, 2018 at 11:29 AM

Thanks — that was a generalized plea to the town or anyone who has the public records relating to the 2007 meeting where those changes would have taken place. However, if you can help post these that would be very much appreciated by the citizens and may help shed some further light.

The posting the minutes to that meeting would be helpful, as well as the redlined copies of the changes being made — all public documents.

Thanks Beth!

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19 Lucy April 2, 2018 at 7:49 AM

249-3 is in the before and not the after. This was never discussed in the tape and as stated above did not go through town meeting (it’s in the regs) and was not discussed in February. The change in the length of term is a farce for them to do what they just did it had nothing to do with term length.

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20 southsider April 3, 2018 at 1:11 PM

Wow! My head’s spinning after reading all of this.
One thing seems very clear: only some politicians seem in favor of continuing the Park Central development. I don’t think I read anything from a local resident in favor.
One would think that some of the elected officials would jump onto a bandwagon that would gather them so much local support.

And on another note, in this guy’s opinion, there’s no way Jim Hegarty would purposely do anything underhanded. He’s spent much of his tenure improving past processes and identifying new ways to make our town a better place to live.

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21 my town sb southborough April 3, 2018 at 4:16 PM

It’s this simple: PAST, PRESENT, OR FUTURE — DO THE VOTERS WANT THREE OR FOUR PERSONS ON THE ZBA MAKING THESE CRITICAL DECISIONS AFFECTING THE FUTURE OF THE TOWN?? Especially on large complex projects??

THAT’S WHAT’S ON THE TABLE. THAT IS THE REAL QUESTION.

For goodness sake, too much power in the hands of too few people is DANGEROUS AND BAD GOVERNMENT.

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22 Lucy April 4, 2018 at 9:00 PM

What’s worse is these are appointed officials. Majority of the board are real estate developers and attorneys along with Bartolini that has a construction background and very limited education. It makes you think of the angle the Bos Members that appointed them were taking. If we don’t wake up and stop this we will be Framingham or Westboro. Schools will eventually go down hill, traffic will get worse if it’s possible and home values will decline and our govt will not be able to sustain the ludicrous tax amounts with little to no services.

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23 Villager April 5, 2018 at 7:12 PM

^^ What Lucy Just Said ^^

It defies logic.

So I find my considering 3 explanations for the behaviors we see.

These ‘officials’ are possibly:
1. A new order of Negligentia
2. Committed ‘new construction fetishists’
3. Incentivized ‘some how’ to make Park Central happen

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24 Concerned Voter April 5, 2018 at 7:24 PM

Still confused over the alleged apparent conflicts all over the place. Can someone on Advisory Committee please examine this and Advisory Committee advise the citizenry?

How is it that the ZBA (including Mr. Dennington who just submitted an affidavit on the quorum matter and played a prominent role in changing the Town Code with Town Counsel as described above, with no public discussion on quorum) is right now currently being sued by the developer — and the ZBA is represented by town counsel in that appeal(?).

Simultaneously, the ZBA (represented by Town Counsel ?!) is aligned with the developer on other appeals, sitting with the developer’s attorney in court and joining the developer’s motions.

Advisory Committee: is this some kind of inherent conflict of interest? This is so confusing! — and the taxpayers are paying for town counsel to represent a ZBA that has melted down to now two persons living in town (one moved out of town the day after the approval). Please someone needs to explain this to the taxpayers, as the public is paying for all of these appeals — full transparency and public discussion needed please.

Thank you.

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