Town Meeting voters on ZBA: Affirm Quorum at 4, leave questions to Attorney General; allow board to write rules; remove inter-agency appeals (Updated)

About: One of the votes on zoning bylaw changes that was too close to call from the stage last night. Counting votes on Articles and motions took up a chunk of time at last night’s Special Town Meeting. (photo by Beth Melo)

Last night, a large contingent of the voters at Town Meeting appeared to be there specifically to curb the powers of Southborough’s Zoning Board of Appeals. In the end, they supported 2 of 3 Articles towards that end. (One of them with the backing of the ZBA.) But, with each requiring a 2/3 approval, one failed to pass. And one of the Articles passed may not pass muster with the Attorney General’s office as written.

Discussion, debate and vote counting on Articles 1-3 took over 2 hours. Here are my highlights.

Article 1 focused on cementing the ZBA’s quorum as 4, no matter what project. (Though, specifically to avoid another 40B project being decided on by 3 members as Park Central was.) There was some debate over the legality and practicality of the quorum. Special Counsel for the Town and ZBA members argued that because of state law allowing a quorum of 3 on 40B projects, the Town couldn’t legally enforce a quorum of 4.

ZBA member Michael Robbins and Chair Andrew Dennington argued that in future 40B hearings the quorum of 4 could lead to a constructive approval. They outlined a scenario in which some members resign and others recuse themselves. Dennington posed that if Park Central hearings had taken place under a quorum of 4, it might have been constructively approved.*

The Chair argued that voters shouldn’t just pass the Article “because it feels good”. If they are unhappy with the way the Park Central hearings were chaired**, they should elect selectmen who appoint ZBA members that reflect their values.

But much of the debate last night focused on language in the Article related to conflict of interest. The Article brings back a version of the rules approved by the ZBA in 1974 with a few updates.

Cribbing straight from those rules, the Article dictates:

No member shall hear or decide an appeal in which he or she is directly or indirectly interested in a personal or financial sense.

Special Counsel for the Town opined that the language can not be legally enforced for two reasons. According to Attorney Jay Talerman, the bylaw can’t direct a ZBA member not to sit. Though, if members do act despite having a conflict of interest, they do it at their own peril. The second “illegal” inclusion was use of “personal” interest:

In a small town, where everyone knows everyone, the term personal interest simply is undefined.

Article organizer Marnie Hoolahan and some supporters argued that the bylaw will have to be approved by the Attorney General’s office. If there are any issues with legality of language, they will be handled by the AG. Asked why she wouldn’t just amend the Article to remove the “personal” reference, Hoolahan responded that one reason was to avoid slowing down the vote.

But that wasn’t avoided when Desiree Aselbekian moved to amend the Article to take out the entire sentence (including “financial” interest). The motion had enough support to call for a counting of the votes. In the end, the motion to strip the sentence failed (94-127). The version supported by Hoolahan (through her own, earlier amendment) passed by a clear over 2/3 vote.

Article 2 was originally written by Chris Perkins to avoid the ZBA being able to overturn Article 1 by rewriting their rules. Voters were asssured that since Article 1 (if supported by the AG) would be a bylaw, that can’t happen. Perkins still pitched his Article as a way of ensuring that residents had more than just a voice on any changes to rules of the board. He wanted them to have a vote. 

Residents and officials debated the merits of bringing one out of many appointed boards’ rules to Town Meeting. Some argued that the ZBA is powerful enough to be an exception. Some were concerned with making rules too burdensome for the board or overloading an already too long Town Meeting. In the end, the Article failed by 8 votes (140-81, with 2/3 required).

Article 3 brought back Article 32 from Annual Town Meeting. 

This time around, the Article was co-presented by Planning’s Meme Luttrell and Selectwoman Lisa Braccio. Planning Chair Don Morris explained that at only 2 votes shy of passing, late in the second evening of ATM, the board felt it was worth bringing back. The board had 6 points in favor of the Article – including eliminating having a board of lesser experience on Site Plan second guessing their decision and avoiding a repeat of the issue that the Planning Board faced when they couldn’t get Counsel to represent their board because Town Counsel was representing the ZBA.

The tone of the room was different than during last month’s debate.

There was a surprising endorsement by the ZBA, though Dennington quipped it was “at the risk of jeopardizing” the Article. In April, Dennington was the only member to publicly support the article. At the time, he acknowledge that the board hadn’t voted in consensus. (And at an earlier public meeting, other members had voiced opposition, thought they didn’t speak at Town Meeting.) And Betsy Rosenbloom, who opposed the Article at ATM after raising concerns about the legal language, urged voters to support it last night. She explained that she had researched the issue between meetings.

Only one resident vocally opposed the Article last night, Sam Stivers. Other speakers who opposed it in April were either absent or silent last night.

Stivers again pitched that he supported giving residents one “last shot” at getting satisfaction via a local board without hiring a lawyer. Morris rebutted that no other boards, like the Board of Health and Conservation Commission, are required to give residents a “last shot” via another Town board before higher appeals are filed. 

No count was required on the clear over 2/3 vote for Article 3.

*Worth noting – Dennington explained that Park Central hearings began with 6 people sitting on the matter. Two moved out of town and therefore resigned, and another recused himself. He didn’t explain why other members of the board didn’t join the proceedings as members were replaced. And he didn’t state that they couldn’t be replaced in future cases where there is a quorum issue. This afternoon, he followed up on this post to explain:

Responding to your question (the asterisk comment) – as to why other members of the board [i.e. newly appointed members] did not join the hearing as members were replaced — This is because of the so-called “Mullin Rule.” Board members can only miss one public hearing on a particular matter. That effectively prohibits substituting in new members mid-stream. See Mullin v. Planning Bd of Brewster, 17 Mass App Ct 139 (1983) and MGL c. 39, s 23D.

**Dennington wasn’t the ZBA Chair for most of the Park Central process and didn’t sit on the original decisions for the 40B project. He did chair the related appeals that came back to the ZBA and sat on the 40A project. Avoiding a repeat of the conflict that arose from the appeals was one of the reasons he supported (and even helped write) Article 3.

Updated (5/23/18 3:31 pm): Andrew Dennington reached out about my astricked comments above to explain the first and correct the second. (I initially had written that he hadn’t sat on the 40A project.)

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