HANSON – The town needs to seat another member to the Zoning Board of Appeals soon, or Hanson is going to have a real problem, Select Board members have been cautioned.
Town Planner Anthony DeFreias has submitted a letter to the Select Board regarding the Zoning Board of Appeals membership, dated the same day as their last meeting on Tuesday, Aug. 27.
“As you are aware, the ZBA is currently comprised of two members,” he wrote. “I wish to being to the board’s attention the following [citing the relevant passage of Mass. General Law, Ch. 40A]: the Board of Appeals shall consist of between three and five members,” Select Board Chair Laura FitzGerald-Kemmett read from the letter.
“I’ll bottom-line this,” she said. “For certain hearings, we need to have three members, and we don’t. It may … impede and disadvantage the town in rendering an opinion about somebody who may be applying to the Board of Appeals.”
She noted then item had not been included on the agenda because “I could not have anticipated it,” she said.
The third member may be a member of the Select Board, DeFreias has advised the Board.
Select Board member Ed Heal, the board’s liaison to the ZBA, asked if it would work for him to step forward to help in the short run.
“I will volunteer, so long as we press for a long-term solution,” he said. “I don’t want to be [a permanent member] right now.”
Member Joe Weeks said that, even if the board appointed someone on that board to keep operations going, he would advise against it.
“I think that, if anybody here wanted to be a member of the ZBA, as either a full member or an alternate member, you go through thorough the process and actually apply and get appointed,” he said. “That’s how we do it for all of these things, other than that, they would be a liaison that would also be a voting member.”
A full ZBA has three permanent members and two associate members, Town Administrator Lisa Green said.
“That is true,” FitzGerald-Kemmett said, responding to Weeks’ comment. “This is an extraordinarily different situation.”
Matt Provencher, a town attorney happened to be attending the meeting, so FitzGerald-Kemmett asked him for an opinion on the matter. He said he has been in touch with the town administrator about the issue.
For certain appeals to go a ZBA, Chapter 48 requires a three-member board must make three types of decisions – granting special permits, issuance of a variance or overturning a decision about the building inspector or commissioner,” Provencher said. Typically, any decisions made by three-person board to vote on building to cast a unanimous vote.
There are different vote quantums for boards with different numbers of members, he explained. Decisions would therefore need to total two-thirds or a super majority of votes – or a unanimous vote by a three-person board.
Legal snag
“The upshot would be that, even if you had a board that has a quorum of two out of three – a majority, and less capable of acting on some business before it – it cannot provide the relief that people are seeking, because they’re seeking a special permit or a variance or to overturn a decision by the building inspector or commissioner,” he said. “The difficulty for the town is that then puts these people in a position where they would need to take an appeal, which would incur costs.”
Even if a board under three members makes a unanimous vote of the members present, or all the members on a smaller board, it would still be a denial because they can’t meet the legal criteria for a legal vote.
Associate members can vote, but are not considered a full voting member unless all full members are present.
“To be clear, it’s not a full new member that they’re looking for?”
Select Board member Ed Heal asked if there was a person in mind to be tapped to fill the position.
“We do not have anybody,” FitzGerald-Kemmett said. “We really need a third member, or we’re going to have a problem.”
Any votes requiring recusal of a voting member would also mean a proper vote wouldn’t be possible.
“A very expensive vacancy,” Weeks said.
FitzGerald-Kemmett asked if Green had any names of potential volunteers available to be appointed and might be interested in serving now.
“The people that applied were people that were already on the board once before,” Green said.
FitzGerald-Kemmett said she was referring to the people who had come forward about membership during the recent ZBA investigation.
“No one has come forward,” Green said.
“Can we pump up the volume?” FitzGerald-Kemmett asked.
“At the end of the day, what stopped people before was all the attention that [the ZBA] was getting,” Weeks said. “I don’t think it’s been getting that level of attention in a long time.”
FitzGerald-Kemmett agreed that was true.
She said she knows of three past members who have said they would step forward.
In other business, Green announced that the town is working with a company called Box Modular, looking at a modular building planned to expand part of the Senior Center to accommodate for the supportive day program, funded by a grant from the Executive Office of Elder Affairs.
“We’re looking for a turn-key building that has plumbing, restroom facilities – everything that we need, so that we don’t have to procure and do everything piecemeal,” Green said. “That process is moving along as quickly as we can.”
The building inspector, town planner and a representative from the modular company have looked at the space where it will be located and Senior Center Director Mary Collins is picking out color schemes for the actual building color, Green said.
“It’s coming together rather quickly,” she said. “It’s still on schedule.” She also has discussed the funding for the project with the town accountant and explained it looks to be a reimbursable type of grant.