The Planning Board filed a motion to withdraw their appeal against the Zoning Board of Appeal’s decision on Park Central. Chair Don Morris told selectmen they made the decision because they didn’t have independent legal counsel to guide them:
there’s only so far you can go in the court system without one, and we felt we had gone as far as we could. . .
They had hoped to be able to get approval for counsel after filing the appeal. When that didn’t happen, they filed their withdrawal on November 10th.
A petition asking selectmen to approve hiring of independent counsel for Planning was submitted to selectmen on November 7th. But it appears Planning didn’t learn of the initiative until after they voted to drop their case.
Two selectmen viewed the withdrawal as making the petition request moot. But the petition organizer and the Planning Board chair disagreed.
Petitioner Marnie Hoolihan said she represented the more than 300 people who signed the petition. She pointed out that is a higher number than usually attend Town Meeting.
She told selectmen that Planning still needs counsel and residents want them to have it. The developer has filed an appeal to the ZBA of the Planning Board’s rejection of the project site plan. She believes that Planning needs legal advice for that hearing.
Morris reiterated the point. He said it is difficult for the board to handle the moving parts of the project with no ability to get answers on even the simplest questions:
It’s so simple. For all matters, all the other boards in town have an attorney that they can go to, questions large and small. Planning Board does not have that, questions large or small, simple, complex. We don’t have it for any matters related to Park Central, the largest project in the history of the town.
Board of Selectman Chair Brian Shea and Dan Kolenda continued to oppose the idea. They argued that the Planning Board should be getting its advice from Town Counsel for the ZBA hearing. If Town Counsel is unable to provide advice, then Planning should come back with a new request.
To that end, Shea offered to facilitate a meeting with himself, Town Counsel Aldo Cipriano, two Planning Board members, and the Town Administrator to see if they can get some answers and “help move this along in some manner.” Morris said he was willing, but believed “it’s way beyond that point”.
Selectman Paul Cimino continued to support Planning’s request. He called selectman’s authority on the question a technicality.
Kolenda worried what would happen if counsel for the Planning Board disagreed with Town Counsel. He saw it as leading to “fighting amongst ourselves”. He wondered couldn’t they use consultants instead of counsel for advice.
Morris responded that they hired a non-attorney consultant. The consultant told them several times that they needed to ask an attorney.
Kolenda pushed to follow Shea’s plan of a meeting between representatives of selectmen, Planning and Town Counsel. Resident Thomas Gittins said he was concerned about them taking a matter brought by citizen petition behind closed doors.
Gittins said that governments all over the country have two lawyers who have different opinions. And he argued that many times at meetings questions come up that get put off because Cipriano isn’t present.
David Ekberg accused selectmen of leaving the Planning Board “hanging out to dry”. Commenting as a resident who has attended Town Meetings for 40 years and served on commitee, he said:
this is just the latest example of Town Counsel being outgunned by slick lawyers for mendacious developers who find this town an easy mark.
He followed that not providing adequate counsel to all Town boards is a dereliction of selectmen’s fiduciary responsibility.
Selectmen didn’t respond. Instead, Shea moved on to the next agenda item.
Earlier in the discussion, Sam Stivers told selectmen he is pursuing a Citizen’s Petition Article to avoid similar issues in the future. If passed, the article would change the code to allow elected boards to use their budget to hire counsel if Town Counsel is conflicted out. Kolenda later claimed that it selectmen’s authority over hiring counsel is also part of state law.