Update on Article to amend zoning appeal process: Potential revision; ongoing debate

by beth on April 5, 2018

Going into Town Meeting there is usually at least one Article that will clearly spur debate. Article 32 is one of those, and it’s time for an update.

The Article is proposed to amend the appeal process for Planning Board actions related to Site Plan Review. It would strike the option of appealing actions to the Zoning Board of Appeals. Instead, appeals would be assumed to go directly to the Land Court. You can now expect an amendment to be proposed on the floor to clarify that.

[Editor’s Note: Don’t confuse this with recent uproar over amending code defining the ZBA’s rules and quorum. This has nothing to do with the Town’s recent “code update” or the related Citizen’s Petition Article – which may be at a separate potential Special Town Meeting this spring.**]

As I previously wrote, Article 32 was recommended by Town Counsel, based on comments by a judge during an appeal of the ZBA’s decision to overturn a Planning Board decision.

Since I last covered it there has been a lot more public debate – at the Planning Board, Board of Selectmen, the Zoning Board of Appeals and the Advisory Committee. The sides taken are pretty consistent:

  • Proponents – Current process causes intra-board conflicts between the ZBA and Planning. The appeals of a decision made by the Town’s expert board on site plans shouldn’t be brought to a Town board with less expertise. Supporting their case is the judge’s comments about the unusual process not seen in other Towns.
  • Opponents – Current code allows residents to appeal something they deem unfair without hiring costly attorneys and waiting over a year for the case to be heard. They don’t want to take that option away.

Some that have publicly expressed concerns about the potential impact on residents include officials that are often at odds with each other on controversial issues – Advisory’s Sam Stivers (a former ZBA Chair), ZBA’s Leo Bartolini, and BOS Chair Dan Kolenda.*

Planning’s Phil Jenks initially shared their concerns. But after hearing arguments at their public hearing, he ultimately voted with the rest of his board to support the Article.

The ZBA failed to come to a consensus on the Article and opted to encourage members to speak as individuals if they choose. Member Craig Nicholson argued that the change would give Planning too much authority:

Its a high barrier of entry for anybody that just doesn’t agree with what the Planning Board did and it’s a lot authority. I mean if you know the only way that somebody can question your decision is to hire a lawyer and sue the Town that they live in, there’s not really a check and balance to what they are doing that is reasonable for everybody in Town.

Town Counsel Aldo Cipriano has publicly stated that he is only aware of the intra-board appeal option being used twice. In the Park Central case, the appeal was filed by the developer of a large housing complex, represented by an attorney. And the case has continued on to court after residents appealed the ZBA overturning Planning’s denial. (That’s the case in which the judge commented.)

Even in the other case which was brought by residents, the abutters of Fay School playing fields hired legal representation. No one could point to an instance where a little guy had a small grievance with Planning and brought it to the ZBA without legal costs.

ZBA Chair Andrew Dennington has publicly championed the Article (with a proposed change). He has argued that the current process creates awkward situations for the Town. One example was Town Counsel representing the ZBA in the case that spurred the change. He said that Planning may feel that Counsel should be defending Planning’s side in the matter.

If the code was changed, in future appeals Town Counsel’s role would be more straight forward with only one board (Planning) involved.

The original Article seeks to strike the Town Code’s section defining the appeal process, leaving it to be defined under Mass General Law. In a draft submitted to the Planning Board, Dennington proposed the section instead be revised as follows:

Any person aggrieved by the action of the Planning Board on a site plan approval application may appeal said action to the Zoning Board of Appeals as provided in Article VI hereof a court of competent jurisdiction in accordance with Mass. Gen. Laws c.40A § 17.

His document explains that he wants to avoid legal arguments that the code’s silence on the process may still allow for the appeal to the ZBA under the bylaws. (An example was by appealing the action of the Building Inspector on a related permit.)

The ZBA Chair tried to sway fellow members at their March 28th meeting. Dennington argued that in the rare case that a Site Plan is denied, it would be controversial and lead to a serious legal question. He questioned if the ZBA was the right authority to answer that question.

He also questioned their role in the much more common situation – Site Plan approval with conditions. He said it leaves the ZBA wondering whether it should be looking at if Planning acted improperly or if it should be reopening the full Site Plan Review, which is under their appeal authority. And he questioned the rationale for the ZBA to readdress the minutia of Site Plan decisions made by Planning.

Nicholson suggested that perhaps the code should be amended to clarify that the ZBA’s role is only to review the procedure that Planning went through, not re-conduct a Site Plan Review. Bartolini proposed an alternate Article amendment, which would remove the appeal to the ZBA but require the Town to pay the attorney fees for residents that appeal to court.

Dennington responded that he didn’t believe there was time left to make and vet new amendments.

The Advisory Board was also split, but (in keeping with their role) took a position. In fact, they took a position twice.

Prior to the positions being printed on the Warrant, the Advisory Committee voted in opposition. Advisory Chair Adrian Peters was one of two abstentions, saying they needed more information.

Subsequently, he encouraged members to watch the Planning Board’s hearing on the Article. On Monday, he called for reconsideration of the vote, pointing out that four members hadn’t voted (since two were absent). After more discussion and comments, including disagreement over whether the vote should have been reconsidered, the board voted in favor. But the final vote was actually well split – 5 in favor and 4 opposed.

*Kolenda didn’t take an official position on the Article when he raised his concerns. During Monday night’s Advisory meeting, Selectman Brian Shea commented in support of the Article but indicated that his board had yet to vote. I haven’t gotten word yet if an official position was taken later that night.

**Updated (4/8/18 2:03 pm): Residents behind the Citizen’s Petition Article who thought a Special Town Meeting would be compelled were notified that if they want the meeting they will need to submit a new petition with different wording. To learn more about that, click here to see the related Letter to the Editor.

1 David Parry April 6, 2018 at 11:20 AM

I support approval of this artucle.

The existing language has caused intra-board conflicts between the ZBA and Planning Board.

It also causes a dilemma as to which Board the Town Counsel is supposed to represent in any appeal.

It makes no sense to allow a detailed decision, made by the Town’s expert board on site plans, to be overturned by another Town board having less expertise.

Importantly, legally, the judge’s comments , made in one of the Park Central cases, made clear that the current town appeal process is highly unusual and would be better removed.

Finally, it is noteworthy that the ZBA’s new and thoughtful Chair, Andrew Dennington, an attorney, is in favor of the article, which removes his board’s involvement.

So let’s get this article approved.

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