Planning Board seeking permission for legal advice on disagreement with ZBA (Updated)

The Planning Board has been vocal about its displeasure with the Zoning Board of Appeals. Now they are moving forward with plans to seek legal counsel on their position.

The board has been considering hiring outside counsel since January. Posted agendas indicate the board will finally make its request official at next week’s Board of Selectmen meeting.

Planning Members have repeatedly criticized the ZBA’s handling of a proposed Townhouse development, “Residences at Park Central”. They maintain, that the ZBA has been usurping their authority on the project.

The development is linked to a 40B project at the same site. The ZBA maintains that under the 40B project, they have authority to rule on details around the overall site which will share access roads. Zoning does admit that Planning has some authority. The disagreement is over where the lines are drawn.

Planning Member Phil Jenks and Chair Don Morris have claimed they aren’t making a fuss over stepped on toes. At publicly broadcast meetings, they explained for viewers that even if they wanted to hand authority over to the ZBA, they wouldn’t have the right. They argue that they are obligated to voters who elected them. And they remind that ZBA members are appointed.

Meanwhile, ZBA Chair Leo Bartolini, has defended that his board is working under the guidance of Town Counsel. 

In January, Planning members discussed getting a legal opinion on ZBA’s actions. Jenks pushed for use of outside counsel. He posited that asking Town Counsel’s opinion about ZBA actions based on advice he gave them would be inaproppriate. Morris said that they have their own budget, so should be allowed to use it for counsel. But he acknowledged that selectmen may have to give approval.

Since then, the topic reappeared on agendas with more discussion in favor of hiring counsel, but never seemed to move forward.

Grapevine gossip was that the Planning Board learned selectmen’s permission would be required. Agendas now posted for a joint meeting between selectmen, Planning and Zoning on independent counsel for the Planning Board appears to support that. (It’s scheduled for May 17 at 6:30 pm in the Town House Hearing Room.)

The most recent public argument between the ZBA and Planning Board was at a meeting in late March. At that time, over protests from Morris, the ZBA granted waivers related to the projects’ shared drive. He discussed his concerns over those waivers with fellow board members at their March 28th meeting.

From then through mid-April, Planning was busy preparing for Town Meeting. Discussion of retaining Independent Counsel resurfaced on the board’s April 25th agenda.

Updated (5/13/16 11:58 am): Since I originally wrote the story, the packet for the BOS Meeting was posted. I know have more information about what happened at the April 25th meeting.

In it, an email from Morris to BOS Chair John Rooney confirmed that a vote was made that night to ask selectmen to take action on their request.

It highlights that a request had been submitted to Selectmen in January, but subsequently deferred by Planning “in hopes that the process would improve regarding the Park Central projects.”

Morris explains why they are resubmitting the request:

We remain concerned about the process and feel that it is essential to be advised by an independent attorney. This is with full respect to Town Council and his role in advising the ZBA.

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