Letter: Distraught over conduct at Town Meeting

by beth on May 30, 2018

[Ed note: My Southborough accepts signed letters to the editor submitted by Southborough residents. Letters may be emailed to mysouthborough@gmail.com.]

To the Editor:

This past Tuesday (5/22), I attended my first town meeting, in Southborough, MA. There was a motion to change the quorum requirements on the ZBA from a majority to a super majority, needing four of the five members present at all meetings to conduct business. Southborough is a small town and these appointed positions are not full-time careers, the members who serve have other commitments, such as jobs, family, friends, etc. However, there are some members of Southborough who may not realize this and believe that a super majority will work. However, this being said, the motion passed.

Regardless of the motion, how you voted, or political beliefs, I was extremely distraught at how some of the individuals at the meeting handled the issue and the meeting as a whole. I was against the motion from the start, and believe some very intelligent individuals who were also against the motion expressed some very strong insight on the issue as to why having a super majority is impractical. Nevertheless, it was the actions of those who were for the amendment that caught me off guard. Cursing was heard from the crowd when they felt something was not going their way. In addition, when one member on the ZBA shared his thoughts on the issue, he was shamed by the opposition, and was shouted at with phrases such as “wrap it up”, “time’s up” and “enough”. However, the Moderator, who did a great job tonight, reiterated to the crowd that there is no time limit and it is his job to cut someone off if they are redundant, which the ZBA member was not. The lack of respect displayed from grown adults was embarrassing. I am 21 years old and served as my fraternity’s Treasurer at the University of Alabama. I attended many Chapter meetings that followed “Robert’s Rules”. The behavior at the Southborough Special Town Meeting tonight would have made my Fraternity Chapter Meeting look extremely sane, as we conducted ourselves in a calm, rational manner and always with mutual respect.

I would like to take this opportunity to also say how grateful I am to the Board of Selectman for serving the town, the Moderator, Town Administrator, and many more for their public service. I encourage members of Southborough to come out to these meetings even when you may think there are much more enjoyable things to do. People should exercise their right to vote on town topics, even when the issue may appear as minimal as it may have seemed tonight.

James Kolenda

[Editor’s Note: Although I didn’t see the letter until this morning, it was originally submitted on Friday night. (Thus the reference to “this past Tuesday”.) James Kolenda is the son of Board of Selectman Chair Dan Kolenda. ]

{ 8 comments… read them below or add one }

1 my town sb southborough May 30, 2018 at 6:16 PM

On May 22nd, the citizens got the Special Town Meeting that the Town was required to provide due to the successful petitions.

However, who is controlling and influencing the information flow? The political opponent who does not want the citizens to have this meeting and was actually obstructionist: Certain members of town government.

The Special Town Meeting was called by the citizenry of Southborough. Article 1 to maintain the ZBA quorum was a resounding success passed by the residents, keeping the language that was part of the publicly published code for decades.

Special Counsel to the Town was allowed to speak putting forth his argument. However, when requested by a voter to hear from the Sponsor’s attorney, so the residents could understand both sides of the argument and get a second legal opinion, the voter was rudely shut down by the Moderator.

The Town Moderator did not allow the Sponsor’s attorney (who spent a good part of a decade working in the Attorney General’s Office) to give opposing arguments. In spite of the Moderator’s hampering of opposing opinion, the voters feel that it is their right to hear both sides of an argument in order to make an informed decision.

That said, the Sponsor’s attorney wrote an excellent legal opinion that was self-evident in its opposing good logic and case law, thoroughly refuting the “illegal” claims by the town’s special counsel. The voters saw through it all, and Article 1 was a huge success.

That said, there is lingering frustration over some (not all, some are great and get it) individuals in town government who continue to defy the spirit of Open Meeting Law, and stifle public participation and comment, slandering them continuously as unruly citizens. This is simply wrong and will not be tolerated. Some members of this local government want the public deaf, dumb, and blind, while they themselves allegedly act in violation of state law. They know who they are.

Think on this public and stay tuned: There is one BOS member who allegedly is in current violation of Massachusetts General Law. If found in violation, this individual will be asked to resign.

There was frustration shown by patient voters who listened to the same individuals three and four times, while others went unheard, including the Sponsor’s legal expert. This was unbalanced and the intention was to sway the public against the position of Article 1, which is best for the Town. It did not work.

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2 Louise Barron May 30, 2018 at 11:07 PM

Couldn’t disagree more with young Kolenda. At the Special Town Meeting, the moderator blatantly disallowed, refused, the Article One’s sponsor’s attorney, from speaking on behalf of the Article, even when a voter requested to hear the attorney’s opinion. The big question is, why didn’t we hear the arguments in favor of Article One from the attorney. This is not democracy in action. We must hear opposing sides of arguments.We heard from the Special Counsel, why in his opinion, this article should be rejected. As voters, the moderator has a responsibility to present the other side. The phrases you quote, Mr. Kolenda, are standard phrases, we as citizens hear at certain board meetings, when residents wish to speak and are told they can’t speak.

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3 Lucy May 31, 2018 at 1:00 PM

Sorry Dan or James but I think you have to understand context of meetings and why we are where we are to begin with. The ZBA dug this whole along with the BOS including members of your family to blatantly disregard the good of the public and the processes in which to approve a development that puts at risk a majority of the north side of Southboro’s safety. There isn’t enough regulation we could possibly put in place to keep these so called leaders in place. The presenter had 5 minutes to speak the opposition spoke for at least 5 minutes and then Dennington got up and pleaded how 40B was the issue even though we are talking about 40B oh and a 40A. Dennington would have pleaded until the cows come home. By the way the cows don’t come home. Thank goodness somebody asked for time on this because the moderator-a former Selectmen that was also part of the problem would’ve let him go on until everyone needed to leave. So if you don’t like the process or your fathers long hours it’s a pretty simple solution to not take part in it . I think many of the folks that actually pay attention to what is happening on the BOS level would be happy about it. Why is it that Article 1 passed overwhelmingly, Advisory supported unanimously but every BOS member except Lisa opposed it! I have an idea of why and that is their relationships to the Builders and Developers of this town. It’s a problem and we don’t want the gov’t to turn Sobo into Framingham and James you shouldn’t either unless you plan on living and bringing your children up elsewhere cause it will bring this town down over special interests money.

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4 Publius May 31, 2018 at 5:55 PM

The tone of some of these meetings are such that one must ask why serve? why put up with this for little or no pay? Mr. Kolenda made valid observations. and why take votes that are contrary to the plain letter of state law. to open the town up to legal costs?

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5 YY May 31, 2018 at 6:41 PM

The only thing I agree with is I didn’t like/wished it was handled in a better way was the shouting but the moderator handled that.

It was already mentioned that the only thing that required a simple majority vote according MGL is 40B meaning appeals, variances, and special permits (the vast majority of what ZBA does) all requires super majority votes. I still don’t know where or what statute requires the quorum to be at least the number of votes required but that does make sense. While on this, I have seen ZBA meetings with more than 4 members many times so law can’t be at most/exactly the number of votes required.

As far as I know 40B does not state the quorum requirement and only states the vote requirement (MGL c. 40B s. 21) :

“The board of appeals shall render a decision, based upon a majority vote of said board, within forty days after the termination of the public hearing and, if favorable to the applicant, shall forthwith issue a comprehensive permit or approval.”

That would imply quorum of at least 3 but does not explicitly forbid 4 or 5.

Actually opponents’ use of “constructive approval” is a good reason why I believe state legislature/courts/AG would allow quorum of 4 to stand (if ZBA lacks quorum then application is “constructively approved” so quorum can’t be used to deny 40B anyway). Another reason is having a quorum 4 actually favors the applicant. Why? Suppose if 3 out of the 5 member board was in favor of project (i.e. 2 opposed) but only 3 members hold meeting, the odds of only the 3 supporting the project shows up (assuming all else being equal, for this math exercise) is 1 out of 10 (10%) as opposed forcing 4 members to show up, you have 2 out of 5 or 40% chance. My math on probability is rusty so feel free to double-check me on that. Anyhow, the main point is a quorum of 4 is in no way making it harder for the applicant to get approval so it should be legal but we’ll find out from AG soon enough now article is approved in STM.

Now why should town residents want a quorum of 4? My thinking is simple as having more eyes on any project to try and cover all view points through robust debate. I believe the “constructive approval” of 40B comprehensive permit is more a scare tactic than anything else. I mean, special permits also have “constructive approval” (MGL c. 40A s. 9) so ZBA is used needing a quorum of 4 “all the time” (practically speaking) and dealing with “constructive approval”. There is some merit about length of the last 40B (Park Central) and possibility of needing to restart but to me the possibility of a small delay due to quorum issue for a process that long seem acceptable and take away for me is maybe you want other members to stay informed of project just in case of such need so a quick reboot can be done if needed. I know elected boards can invoke “rule of necessity” if conflict of interest cause problems meeting quorum requirement so I assume appointed boards have similar process (maybe something along the line of reporting to BOS, the appointing body of ZBA, and getting their blessing or have them appoint someone else even if only the particular project).

The other thing I have heard from some members of BOS and other opponents is that this was rushed, well… they (BOS) had their chance. Try reading this:

http://www.mysouthborough.com/2018/04/09/residents-collecting-signatures-to-clearly-compel-special-town-meeting/

If there was serious, honest, and open dialog and fair and serious consideration then I believe BOS should had acted in a different and more constructive way. I just don’t buy the whole rushed argument when BOS forced the petitioners to recollect signatures to compel BOS to hold a special Town Meeting (I didn’t know at the time but I would think BOS knew/should had known they are then required by law to act within 45 days).

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6 Lucy June 1, 2018 at 12:02 PM

Let’s see how it plays out in court. There’s a saying that I’m not sure is appropriate for the blog. Every attorney has an opinion and that opinion can be spun in any direction. Let’s not forget how we got here and the absurdity of the ZBA and BOS in the process. They want to make the citizens out to be the bad guy in order to try to shift the focus off of themselves. It’s quite disgusting!

The town counsel allowed for and coached the zba to grant an empty use variance for Park Central to be granted. Empty meaning there was no verbiage in it. They closed the public meeting and came back at the next meeting with verbiage that was a so called agreement with neighbors, but wrapped 20 or so waivers and other language around it and didn’t allow anyone to comment on it.

This was all privy to the BOS at the time. A comprehensive permit was then copied from Madison Place was rushed through before David Eagle left town. Again blame shifted to neighbors when they questioned the documentation prior to approval because none of the mentioned addendum were provided to the public. A resident questioned all of this with about 15 minutes to read it and was pushed aside and even told to leave. As he was leaving was yelled at by Bartolini to have the cops accompany. It was a joke and became fodder for the media to make it look like again the citizens were in the wrong and the ZBA just doing their job. BOS members were seen in back rooms not only with ZBA but also with Dipietri himself.

There was never a site plan review for Park Central. Planning Board denied it and with our archaic rules it was sent back to ZBA and they approved it. They were suppose to have at least done a site plan review but instead just approved. Disgusting!

If you noticed the during STM the other night it was very scripted and prepared before hand. When Desiree enters and has an addendum ready to go the BOS knows it’s not going their way. Dennington pleading after Special Counsel. It is all coordinated in the back room folks just like Park Central was and continues to be. It’s sad that we live in such a beautiful place that our government has been setup by the likes of Dipietri and Brendon Homes for their benefit. We will suffer the consequences of making these guys rich by a scripted town government. Thank goodness we have citizens that are paying attention and it’s sad that our government is acting as though they are criminals, but really just amazing that they take the time to research with a fine tooth comb. I’d be concerned if I was part of Park Central and allowed this to happen the way it did. There absolutely should be consequences that need to be faced.

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7 Karen Muggeridge June 1, 2018 at 5:03 PM

Mr Kolenda, While this STM was the first TM I have missed in our over twenty years living in town, I did watch it in its entirety the following day. I agree with your observations. What you saw is not limited to this STM though. I have also seen high fives given at the Board of Selectmen table when a controversial article had passed, decorum is missing within some committees, the content of comments at meetings by the public is often not constructive and the tone is disrespectful. There are times I find comments on this blog to be not only wrong but rude. Example, recreation should not be subjected to the comments made about it here. I am sorry your first town meeting left you distraught. All this said, we have reason to be optimistic. We do have a form of government where we do have a say and a voice. We have the option to participate and to change things if we chose.The point made of why would anyone get involved with things the way they are is valid but perhaps that will help to change the negative ways of others. Often some of the best ideas come when there are differences of opinion and points of view and when people need to come to a consensus. Hopefully that will be used for positive outcomes with more cooperation in the future. I write this as an individual, and not in my capacity as a member of Advisory.

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8 Matthew Brownell June 2, 2018 at 9:58 AM

Suggestion for the young James Kolenda, the ZBA, 4 of the 5 Selectmen, and Town Counsel . . .

Don’t pee down our backs, and tell us it’s raining out.

The voter initiative and passage of a Warrant 1 to reaffirm a quorum of 4 for the Southborough ZBA is a fundamentally a bed of our Town Government’s own making. And candidly, I am absolutely appalled that 4 of 5 Selectmen did not support the Quorum requirement, let alone allow a former Attorney General for the Commonwealth and noted expert on quorum requirements **SPEAK** at the Special Town Meeting.

This is not a coincidence, freak occurrence, or oversight. The entire opposition to Warrant 1/Quorum of 4 was a carefully scripted, predictable charade designed to silence and marginalize Warrant 1 proponents.

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