Planning Board drops appeal due to lack of legal counsel; Selectmen continue to deny request

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.

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louise barron
5 years ago

It is to the detriment of the town when the Selectmen refuse to look for the legal help we need in terms of dealing with various aspects of this enormous development. We need independent counsel to guide us in a different direction. Like going to another doctor for a second opinion. I urge the selectmen to look at the whole picture for OUR town, listen to our Planning Board Chair Mr. Morris and for whatever reason you refuse to do the right thing, we will end up paying dearly for your error in judgement.

Michael Weishan
5 years ago

Amen to that, Mrs. Barron. I am very late in the game in thanking Mr. Barron, Mr. Stivers and Ms Gillespie for their citizen’s petition overturning the Use Variance. If you know these individuals, you realize that you cannot imagine three more divergent thinkers politically, yet these three citizens came together regardless of differences to forward a piece of legislation crucial to our Town. Bravi, and thank you.

So perhaps it is time to reunite this coalition again. We need to support all our Town Boards and commissions with whatever legal advice they need!

M
5 years ago

Mr Kolenda: ” leading to fighting amongst ourselves”??? Really? You don’t see that we are already doing that? And you are part of the reason why.

M
5 years ago

Can someone tell us, is the Planning Board allowed to accept legal counsel that is pro bono? Are we required to have the BOS or anyone else approve the counsel if it is free or paid for by a citizens’s group? Other option, can we call a Special Town Meeting (albeit reluctantly) to approve a separate counsel for Planning Board?

Al Hamilton
5 years ago
Reply to  M

M

Under our bylaws, the BOS is the board that sues and settles suits :

Section 36-1 The Board of Selectmen shall have full authority as agent of the Town to prosecute and defend all suits in which the Town is a party. It may settle, at its discretion, any legal and valid claim or suit against the Town which does not require the payment of more than $300. Any settlement requiring a payment greater than $300, except when authorized by law, shall be made only when authorized by vote of a Town Meeting.

I and not defending the current town defense of the ZBA but it is important to note that Town Counsel, whatever you think of him, does not act independently. He operates under the instruction of the Town Admin & the BOS. If you are unhappy with his actions your proper recourse is to either appeal to the BOS or to use the blunt instruments available to Town Meeting, a change in by-laws or budgets.

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