Special Town Meeting Update: Public waits for Town to release legal opinion on zoning Articles; ZBA Chair asks residents not to pile on

by beth on May 15, 2018

A week from tonight, voters will decide on three proposed amendments to the Town Code/Zoning bylaw related to the Zoning Board of Appeals. (For more a reminder of those Article specifics, click here.)

Based on discussions at a hearing last night, tonight’s Board of Selectmen meeting might have a big impact on how some votes are cast and whether any of the Citizen Petition Articles are amended.

The legality and impact of two of the zoning Articles was questioned at the Public Hearing in front of the Planning Board. Planning members voiced soft opinions, holding off on votes until more information is available. The key piece missing was legal advice from Special Counsel.

Selectmen received the legal opinion on May 1st. But that information is privileged unless the board votes to release it. Their vote is expected to take place tonight.* Unfortunately, counsel won’t be available tonight to answer any questions. That will apparently have to wait until the night of Town Meeting.

Article 1 organizer Marnie Hoolihan said it was regrettable that the opinion (which was requested by Article organizers) wasn’t available in time for the public hearing. Selectman Brian Shea blamed it on the rush related to notice and hearings for Special Town Meeting. Echoing an earlier statement from ZBA Chair Andrew Dennington, he opined that it would be better to collaborate for an Annual Town Meeting Article. In that instance, he said public hearings and discussions would probably take place over months in advance. 

Planning Chair Don Morris warned Hoolihan that if Counsel found a Citizen Petition Article (or parts of it) problematic, he didn’t expect the Town would explain to petitioners how it can be fixed. Hoolihan rebutted that if the “problematic” article is approved by voters, that is what will written into Town Code. She reasoned that was why everyone (including Town boards) should work together to come up with a bylaw that works. But she said that she would have an attorney in her “back pocket” if needed.

Speaking individually, Dennington has publicly favored one of the three Articles heard last night (Article 3), and voiced partial support of having a 4-person quorum – the subject of Article 1. But he objected to the general movement behind the petition Articles:

It as very much targeted at [the ZBA], to treat us as a pariah board which should be treated as if we’re on probation, that we need the approval of Town Meeting to change a filing fee

Dennington told the public he understood public frustration with his board. But he voiced that some of that was unavoidable since the board is charged with approving 40B projects in an affluent residential community.

And he believed that the fact that the Town’s Clerk office didn’t act promptly on his February 2017 request led to the impression that he changed Town Code in the middle of the night, in midst of litigation. He sought to clear up what he saw as a misunderstanding that prompted the Articles. 

Dennington believes the “source of confusion” is the fact that the Town Code doesn’t entirely consist of the Town’s legislation. The Town Enactments are under Division I. Other Divisions are a compilation of “miscellaneous junk”.

Until this spring, the old section on the ZBA rules listed ones that appear to have been adopted by the ZBA in 1974 (not voted on by Town Meeting). He pointed out that the ZBA had voted to replace those in 2007 with a version that made no reference to quorum. Those rules were subsequently replaced in 2011 and again in 2017. Prior to the 2017 changes, he posted plenty of public notice that they planned to work on and revise ZBA rules. 

Dennington said that in February 2017, he wrote a letter to the Town Clerk pointing out that the ZBA rules listed in the Town Code were outdated. He asked for them to be taken down and replaced with the current version. That didn’t happen until the issue was raised again this year.

In contrast, Hoolihan viewed the old 1974 rules in the code as the version that the Town had been following in the many years since. The purpose of Article 1 is to reinstitute the 4 person quorum from those rules. And if there were issues with language that was antiquated, she asked that the Town collaborate to fix that.

Dennington told the public that he didn’t personally have a problem with a 4 person quorum. But he later specified a potential issue with writing it into Town Code.

He pointed out that the Park Central issue happened after two people left the board and then another recused himself due to connection with an abutter. Given 40B timing requirements, he wondered aloud about the risk for constructive approval of a if the board had similar situation in the future. Planning Member Jesse Stein replied that he trusted Selectmen would find someone to fill a seat if a situation like that arose.

In general, Planning seemed supportive of the quorum requirement. The reaction was more mixed to Article 2, discussed in the preceding hearing. That would change the bylaw to require Town Meeting to approve changes to ZBA rules and regs. Article 2 is organizer Chris Perkins said he wanted to support Article 1. He worried that if Town Meeting voted to approve a quorum for the ZBA, the board would turnaround and write new rules to change that.

Planning members understood residents concerns behind the proposal. But some members like Phil Jenks, Andrew Mills, and Morris were worried about the precedent and the impact on Town Meeting and boards if voters are debating the minutia of board rules. Stein pointed out that ZBA is appointed, unlike the elected Planning Board, and has a lot of power. So, he was leaning in support of it.

Dennington asked residents to give the ZBA more respect and not just “a total piling on”. He said the composition of the board has changed over the past couple of years. And he called on people worried about the board to show up at tonight’s selectmen meeting when the new vacancy will be discussed.**

A shorter hearing was held on Planning sponsored Article 3, readdressing failed Article 32 from Annual Town Meeting. That article would bypass the ZBA for any appeals to Planning Board Site Plan Review.

Member Meme Lutrell said she would help make the presentation at Town Meeting to help clear up confusion on the Article. Like the other two, Planning held off on voting their positions. The hearings were continued to the meeting they plan to hold next week before Town Meeting opens. 

*Selectman Brian Shea and Planning Chair Don Morris indicated the BOS would vote tonight. The BOS agenda doesn’t specify that vote or any discussions/votes related to specific Articles. But it does list Pre-Town Meeting to run through the Special Town Meeting Warrant. Normally, that’s more logistical in nature. But selectmen had agreed to invite in Article organizers to answer questions prior to Town Meeting. So, I’m assuming this will be more than a standard run through of the motions and required votes.

**Selectmen will be officially accepting Leo Bartolini’s resignation tonight. They are also scheduled to discuss the slate of appointments and re-appointments on Town boards for 2019. In addition to the vacancy, there are two seats set to expire in June, alternates Debbie DeMuria and Michael Robbins. But I don’t expect them to vote in anyone to the ZBA tonight. It’s more likely that they will discuss reaching out to get applicants for the ZBA and other seats.

Updated (5/15/18 4:00 pm): In quoting of Andrew Dennington, I accidentally included my own abbreviation of Town Meeting ™ from my notes.

1 my town sb southborough May 16, 2018 at 1:16 PM

OK, Mr. Dennington. If you were so concerned about changes that should have been made long ago to Chapter 249 of the Town Code, WHY DIDN’T YOU BRING A WARRANT ARTICLE TO THE ANNUAL TOWN MEETING FLOOR TO AMEND THE CODE TO REMOVE CHAPTER 249?

The fact of the matter is the TOWN has relied on the publicly published code for decades.

Your conduct on the quorum issue is appearing to go far beyond the role of disinterested ZBA chair. This is concerning.

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