Yesterday, I posted a passionate letter to the editor stating that Town officials “gutted” the Town Code “without public knowledge”.
[Editor’s Note: Earlier, I had to take the letter down, since I am unable to verify that the writer posted as a resident under a real name.* But, as promised, I’m following up on the contents of the letter.]
The message focused on changes that were suddenly made to Zoning Board of Appeals rules in the Town Code. No specific accusations of wrongdoing are made. But the letter includes phrases “Sound Crazy?” and “Sounds Outrageous?”, which seemed to imply wrongdoing. The letter also shed light on reasoning behind a recent Open Meeting Law Complaint against the Board of Selectmen.
It shouldn’t be a surprise to readers that both accusations connect to the highly-controversial Park Central development.
I’ll get into the accusations below. But first, I followed up with Town officials to get their side of the story.
- Town Clerk Jim Hegarty responded that he is neutral on the Park Central suit and just following through on his job duties as he perceived them.
- Town Counsel has issued a statement that there was no OML violation.
- And Town Administrator Mark Purple said he had been unaware of a Citizen Petition effort that some may have believed was motivation for the alleged violation.
But none of that means anything if you don’t know what the allegations are. So, here are the basics. . .
Court arguments in resident’s appeal of the ZBA’s decision on Park Central have called into dispute ZBA quorum rules under Town Code. And they called attention to the fact that the Town Code hadn’t been properly updated to reflect filed rule changes. To stop the Town from revising the Code around quorum, residents began working on a Citizen’s Petition Warrant Article.
On March 6th, the BOS re-opened and closed the Warrant. Later, an Open Meeting Law Complaint was filed that no public notice was given of that action. On March 20th, resident Karen Shimkus commented on the complaint, telling selectmen that residents had been looking for a window to add that Article.
This week, the Town Code was updated with the current ZBA rules. Learning of the change, “Roxanne Perro” submitted a letter to the editor calling on residents to react to the “Urgent Public Awareness Matter”. The writer asked readers to contact selectmen and to sign the Citizen’s Petition, now seeking to open a Special Town Meeting on the ZBA quorum rules within the Annual Town meeting.
Now, here are more details. . .
Town Code edits
In residents’ appeal of the ZBA’s Park Central decision, one of their arguments has apparently been that deciding members didn’t have a quorum. At the time that three ZBA members were hearing and deciding on the Park Central development, the publicly posted Town Code stated:
Five members of the board shall be present at every hearing. Four members may hold a hearing and act on any matter before the board, provided that the interested parties assent thereto before the hearing opens.
Both Shimkus and “Perro” have referred to the code as permanent. The letter claims that the Town has argued that newer rules (which were silent on quorum) superseded that language. At the outset of the section on the ZBA, the Town Code defined:
The following rules and regulations are adopted by the Zoning Board of Appeals under the authority of, and in compliance with, MGL c. 40A, § 12. . .
These rules and regulations may be amended at any time by the Zoning Board of Appeals. Any such amendments shall be filed with the Town Clerk in the same manner in which these rules and regulations were so filed. Such amendments shall take effect upon being filed with the Town Clerk.
According to Hegarty, rules underneath that should have been updated/replaced when new rules were filed with the Town Clerk’s office in 2007, 2011, and 2017. He explained that after learning of the oversight, he signed an affidavit and sought to rectify the issue by having the code updated. He objected to implications that he was acting underhanded:
I take no side in the ongoing litigation re Park Central. Heck, I spent more than an hour last week helping a person with preparations for the Citizens Petition for a Special Town Meeting that they will be seeking signatures on Saturday which was mentioned in the blog post. I have spent dozens of hours helping residents who oppose the Park Central project with their public record requests.
(You can read his lengthier response here.)
I will leave it to others to debate what version of the rules, especially regarding quorum, was legitimate during the Park Central hearings. (ZBA Chair Andrew Dennington responded with his take via his affadavit.)**
But I will opine that it seems the newly updated code reflects the changes that were adopted legally and with public notice in 2017. I think the main issue is that some residents (me included) didn’t understand that when the ZBA adopted new rules they would completely replace the language in the Town Code.
That is what residents who are asking for signatures on a Citizen’s Petition apparently hope to change at Town Meeting – at least in terms of quorum. (I don’t have a copy of the language being used in the petition. If someone wants to share those in the comments, that would be great!)
Open Meeting Law Complaint
There were actually multiple OML Complaints filed in March.*** But I’m focusing on the one that links back to the Town Code issues. Notably, the Complaint was filed by the same attorney representing Shimkus and others in their pending Park Central appeal in Worcester Superior Court.
The March 6th agenda didn’t specify that the Warrant would be open but did include “Discussion of April 9, 2018 Town Meeting warrant articles and Board recommendations”. It also included notice that selectmen would be signing the Warrant that night.
The Warrant was re-opened and closed that night following a discussion on the posted item “Article 31 — Bylaw: motion to reconsider a vote”. In the discussion, selectmen decided that voters should be given a second option on how to handle the issue, adding another Article for removing the ability to reconsider a vote.
Attorney Donald J. O’Neil filed a complaint alleging that the agenda didn’t give public notice that they were Opening the Warrant on March 6th. His complaint requests:
I want the BOS to determine that there was a violation in the following areas:
– Failure to issue public notice in advance of re-opening the Town Warrant and Re-closing the Town Warrant; Other residents/taxpayers were waiting for the Warrant to re-open; this is not a vehicle expressly for Town Counsel and/or the BOS members themselves to institute their own changes.
Requested action: Re-open Town Warrant with proper notice to the public.
Town Counsel has issued a formal response countering that notice was given. Counsel Aldo Cipriano argued that the agenda language covered the actions taken by the board and served as proper notice. You can read his response here.
I followed up with Town Manager Mark Purple to find out if he was aware on March 6th that residents were seeking to add an Article to the Warrant. Purple responded that he first learned of it when Shimkus made her public comments.
*I am not claiming Roxanne Perro isn’t an existing resident. I’m clarifying that I haven’t been able to verify her existence. Since it isn’t kosher to use a psuedonym for a Letter to the Editor, I’ve taken down the content of the letter until I can verify her existence.
**[Editor’s Note: Perro’s letter claimed that in a ZBA meeting on October 1, 2014, the Chair’s stopping of a Park Central meeting for having only 3 members shows that they were still going by the old quorum rule. But at that time, then-ZBA Chair Leo Bartolini actually specified that they had a quorum, he just wasn’t going to proceed on the 40B with only 3 members.]
***Another form alleging two violations was filed by David Parry. His relates to lack of agenda notice and minutes covering a discussion around bringing a Town Manager Warrant Article to Town Meeting. (That isn’t happening.) I’m waiting on the Town’s response before writing about that. In the meantime, you can read his complaints here.
Updated (3/30/18 5:12 pm): ZBA Chair Andrew Dennington was mentioned in the Perro letter. He responded by providing his affadavit.
Updated (3/31/18 9:09 am): When I deleted the “Perro” letter, that also removed relevant links around the Town Code. These are the versions that were submitted as “Before” the changes that were made this week: page 1 and page 2. Click here to review the version that I found through the Town’s website this week after the updates were made.