I have updates on two lawsuits that had been filed against the Town: 20 Residents vs. Southborough’s ZBA & Park Central and 3 residents vs. the Select Board.
When I last wrote about the the Town and developer losing the Park Central case, the appeal period was still open. Since then, the window closed without action by the developer. And some previously redacted minutes have been posted. Scroll down for those details.
First, I have a big update on the other case.
Barron et al v Kolenda et al
Last spring, I covered that three residents lost a civil case against the Select Board. The residents subsequently filed an appeal. This week, the case was selected for review by the Mass Supreme Judicial Court.
The initial suit was filed in 2020 against former Selectman Dan Kolenda and the Board. The action stemmed from Kolenda’s treatment of Louise Barron at a December 2018 meeting. Angered by statements she was making about the board he cut off her public comment.
The lawsuit included claims about abusive comments and improper handling of minutes. But the main argument that appears to have caught the SJC’s special attention was that the board’s public comment policy is unconstitutional.
Kolenda had used the policy to justify cutting off Barron’s angry comments to the board. The policy includes:
All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.
The suit included a request for a Declaratory Judgement by the Court that the board’s comment policy for public meetings is unconstitutional.
Superior Court Judge Shannon Frison found against the plaintiffs in the case. She did make a declaration about the comment policy, but fell short of the plaintiff’s request.
The Board may not prohibit speech under paragraph 3 of the Board’s “Public Participation at Public Meetings” policy based solely on the viewpoint or message of a speaker or the Board’s desire to avoid criticism.
However, she found the board’s prohibition against “rude, personal, or slanderous remarks” was constitutional as long as it is used to:
maintain order and decorum or to prevent disruptions of the Board’s meeting.
Barron’s attorney, Ginny Kremer, appealed on two grounds. The first related to the “inferences” made by the court about Barron’s and Kolenda’s interaction that were allegedly contradicted by the facts.
The judge’s findings referred to Kolenda stopping Barron’s comments in reaction to her calling him “a Hitler”. Kremer pointed out that ignored the established fact that Barron was responding to Kolenda’s threat to cut off her comment if she continued to “slander town officials”, when she was talking about the Open Meeting Violations the Town had been found guilty of.
The second grounds were that the judge erred in finding the public comment section of Select Board’s meetings weren’t considered a “public forum”.
On Friday, the SJC had the case transferred to them (as case number SJC-13284). On May 16th the docket announced that Justices were soliciting amicus briefs:
In a case involving a facial challenge to the constitutionality of a policy adopted by Southborough board of selectmen entitled “Public Participation at Public Meetings,” which provides, inter alia, that “[a]ll remarks must be respectful and courteous, free of rude, personal or slanderous remarks,” whether the public comment segment of the board’s meeting is a traditional, designated or limited public forum; whether the board’s “Public Participation at Public Meetings” policy is a constitutional, permissible prohibition on speech.
Amicus briefs are also referred to as “friend of the court” briefs. My understanding is it is a way for the court to receive outside legal arguments that may influence their thinking on an issue from parties not directly involved in the case but who may care about the issues and precedent a case may set. (Often filings are made by advocacy organizations.)
Park Central – no appeal
The last I covered the overturning of the ZBA’s approval of permits for Park Central, the Town had chosen not to appeal the case. At that time, the developer still had a window to file intent to appeal. That passed weeks ago and nothing was filed.
Two weeks ago, the Town posted unredacted minutes from three related Conservation Commission meetings in Executive Session. The minutes themselves don’t seem to include any big secrets. They were just legal updates between the Commission and Town Counsel on the developer’s lawsuits filed against them. (You can read more about that here.)
Ben Smith, Conservation’s Vice Chair, had recommended revisiting the minutes. He noted that residents ask members about the case. They had been prevented from speaking about matters that were still covered by the Executive Sessions. Releasing the minutes would free them up to talk openly.
Conservation Agent Melissa Danza followed up with Town Counsel to confirm that they no longer had the need to keep them under wraps. At their April 28th meeting, the Commission voted to release them.
No related Executive Session minutes have been posted by the Zoning Board of Appeals yet. The ZBA is meeting tonight for the first time since the court ordered the board’s permit be vacated. The agenda doesn’t mention Park Central but includes the following item:
Discussion of possibility of executive session with Town Counsel, Jay Talerman
In fall of 2018, the ZBA was scheduled to meet twice in Executive Session to discuss an unspecified legal case – on 11/19/16 and 12/14/16. The minutes for the first meeting have not yet been posted, but a memo notes that they are approved. The second meeting was scheduled for prior to an open session. The minutes for the open meeting don’t clarify whether or not an earlier Executive Session was actually held.
*Worth noting, the minutes from December 2016 referred to pending dismissal of a land case involving “Ms. Braccio”. For those wondering, yes the plaintiff was current Select Board member Lisa Braccio. That case was resolved prior to her joining the Board in May 2017.