Last night, Attorney William Pezzoni argued that the Town was subverting due process. Although the Zoning Board of Appeals disagreed with his charges, they may have set precedent changing Town procedures for future variance applications. And there is concern about a potential loophole for developers.
Pezzoni’s complaint stemmed from the rejection of an application for a Use Variance to install a digital billboard. Building Commissioner Mark Robidoux refused to accept the paperwork. He explained that the applicant needs a report from the Planning Department before applying to the ZBA.
According to Pezzoni, bylaws say the ZBA is unable to “act” on the application until they receive Planning’s report. Bylaws don’t specify rejecting the application. The key difference is that acceptance of an application “starts the clock” on the approval process. He believed he should have been able to schedule a hearing with the Planning Board after the application began.
Pezzoni began his hearing in front of the ZBA with accusations of improper collusion and the trampling of his client’s rights. The first charge was lobbied against new Chair Andrew Dennington and Planning Board Chair Don Morris. The second at the entire Planning Board.
The attorney’s anger was over discussion at the Planning Board’s meeting on Monday. Morris told fellow board members that he had discussed the appeal with Dennington and had a great conversation. The board then deliberated on what to include in a letter to the ZBA.
In the end, Planning’s letter went beyond simple support of the Building Inspector’s decision. They argued against allowance of the billboard based on documents they reviewed of the plan. The documents weren’t submitted to them by the applicant. The board accessed them as public documents that had been submitted to the Building Department/ZBA.
Last night, Dennington rejected Pezzoni’s request that he recuse himself. (That followed the Chair’s urging for former Chair Leo Bartolini to recuse himself.)*
Dennington defended that he contacted Morris after seeing the matter on Planning’s agenda. He wanted to find out what they were doing. He maintained that he had an open mind on the issue. Later, Morris angrily refuted the charges. He pointed out that Pezzoni had no idea what was discussed on the call.
He then responded to Pezzoni’s assertion that they were wrong to form an opinion on the project without allowing a presentation. Morris claimed the board was confused about what the process would be at the ZBA hearing. If the ZBA determined they should vote on the application, Planning wanted them to have their report. The Chair said they were willing to rescind the letter so that the applicant could make a proper presentation.
After internal discussion and questions, ZBA members came to agree with Pezzoni on the process. But they worried about precedent setting and possible repercussions.
Planning Board Member Meme Luttrell worried that supporting the appeal was setting precedent. And she believed there could be a loophole for applicants. If the ZBA can’t act until they receive a report from Planning, does that mean they can’t reject it? And if the applicant doesn’t go before the Planning Board in time for them to report before the approval deadline, does that trigger constructive approval?
Dennington, an attorney, rebutted that they were more vulnerable under current process. A court could rule that the clock should have already been ticking on an incorrectly rejected application – and therefore the project is constructively approved. But, he believed that the board has the right to continue hearings, or to reject the application if the applicant won’t cooperate.
Before voting, the board questioned Pezzoni on his desire to start the clock on the original application date. Pezzoni assured that he would grant an extension on the approval period.
After clarifying that no Town officials acted improperly, the Zoning Board of Appeals voted to accept the application. (That doesn’t mean the variance was approved. Just the right for the petitioner to apply for one.)
*Bartolini is an abutter to the business seeking the variance. Bartolini reluctantly agreed to recuse himself. He argued that given the question was on process, not the Use Variance, he didn’t need to recuse for last night’s hearing. But Dennington urged that he do it for appearance of conflict and to promote transparency. Pezzoni tried to convince Dennington to keep Bartolini on the board. Then he turned on Dennington, pushing for his recusal.