HANSON – The Board of Selectmen on Tuesday, Oct. 19 voted to investigate the members and alternates of the Zoning Board of Appeals.
Town Counsel Kate Feodoroff advised the board about legal considerations surrounding citizen’s petition, Article 34 approved at the Oct. 4 special Town Meeting, which requested Selectmen to consider the removal of all members of the ZBA, at the Select Board’s next regular meeting.
All ZBA members will be investigated by, at Feodoroff’s suggestion, an investigator with no ties to the town of Hanson. She is seeking proposals, to be presented to the board Tuesday, Nov. 2, with a cap on the potential cost.
“I’m not telling you what to do here,” she said, explaining that her job is to tell Selectmen what she would do if she were prosecuting any type of legal action.
Selectmen Chairman Matt Dyer sought clarification on Feodoroff’s core recommendation – that they conduct an investigation to gather relevant details and then go forward with a hearing if it is warranted. She concurred that that was her recommendation.
“Tonight, what we have to talk about is how to respond to that affirmative vote,” Feodoroff said. “Employees, and under [town by-laws], these are employees, are entitled to due process, so under your own bylaws you have to find just cause to remove any of your appointees.”
She said they are, in addition, entitled to notice and a hearing. That notice would take the form of a letter advising them of the reason for removal and justifications for it, so they may adequately prepare a defense if the so choose.
Dyer called for an outside investigator to look into the facts of the issue prior to a hearing.
“Over the past six weeks to two months, this is all I’ve been hearing,” Selectman Jim Hickey concurred. He said he had started looking into it and was ready to ask the Select Board to move ahead with a hearing on one of the ZBA members.
“I believe I have enough information, I have enough evidence that a member of the board is misrepresenting himself,” Hickey said. He didn’t rule out any other members, but said he felt he had enough evidence to convince him that one member needs to be removed.
“We don’t need to go after the entire board,” Hickey had said. “If the other two members decide they want to resign … then so be it.”
Selectman Joseph Weeks said he has somehow become the “figurehead” of the issue, but that while he is not there, there had been a reason why he always wants to vet the people who apply to sit on boards and to talk to specific people.
“I want to see what the investigation is,” he said about the ZBA. “Quite frankly, all of them need to be investigated because it took all of this to get to this point, when it didn’t have to.”
He said the ZBA has lost the confidence of the town.
Feodoroff also advised Selectmen about the implications of an investigation on a 40B project now before the ZBA as part of the permitting process.
“The other thing, that’s a little tricky about this article is that there is a current application pending before the [ZBA], which is relatively controversial,” she said of the 40B project proposed for Spring Street. “While I won’t speak to any particular project, as a general matter when you’re looking at these issues, what you look at is litigative risk.”
Feodoroff said that when there is a permit pending before any permitting authority, the risk of being sued hinges on whether or not there is evidence of a civil rights violation.
“In the land use context, that’s a very high bar to establish … absent racial animus or gender bias or some other kind of compelling circumstance,” she said. But, she noted, the town of Hopkinton was recently hit with a $1.5 million jury judgment for working to thwart development of a parcel of land.
“What that case stands for is, where there is more of a conspiracy-type theory, where multiple boards and public officials are working collaboratively against a particular type of development … that risk exists whenever there is an application pending before any body,” she said. “There’s also an obligation on the part of an appointing authority to make sure that they have the right people in the jobs and they are doing their jobs correctly and within the confines of law.”
That is why there is a hearing process to remove people from their jobs. Feodoroff said she prefers to conduct a complete investigation when there are complaints. Employment lawyers examine the facts of a case and supporting evidence.
She said the board may opt to investigate the board but that they should not interfere with a pending application and the rights owed to a landowner.
“There’s litigative risk in every decision that you, as a body, make,” Feodoroff said.
She also said 40B guidelines require a ZBA to process an application within 180 days and must render a written decision 40 days after that.
“Absent them taking those steps, you have what’s called constructive approval, and to me … that’s the worst result, because … this is almost a protected use,” she said. “There is a statutory presumption that this use should be installed in any town across the state because you need affordable housing.”
Conditions are a town’s best way to respond to a 40B proposal, Feodoroff advised.
“If the ZBA is removed, beware that the public hearing process would have to start from scratch,” she said, explaining that prior testimony at public hearings could not be used, otherwise the town could have a project with no conditions approved by the state.
Weeks asked what would happen if the ZBA members resigned on their own. Feodoroff said it would put the town in the same situation.
He then asked what would happen if two voting members resigned.
“You can’t rotate people,” Feodoroff said of the potential for moving alternate members into voting status. “You’d be in a pickle regardless.”
“The issue is we’re being held hostage by the conflation of two issues,” Weeks said – the process of removal for cause and the main question being asked.
“The issue I’ve had from Day One with this entire process, is we’ve found a way to mismanage this entire thing to make it seem like it’s about a project, when it’s about people,” Weeks said. “No one cares about the 40B project, we’re talking about the people.”
He said he appreciates the backdrop of the 40B project, it’s important for people to recognize the possible implications, but conflating the issues does not help solve the problem.
“We’re all municipal employees, so we have to look through that lens,” Selectman Laura FitzGerald-Kemmett said. “I really don’t think we have any choice but to investigate. We had not one person stand up at Town Meeting and say, ‘I object, this is ridiculous,’ … not one person stood up.”
She also noted that resident Kevin Cohen was able to gather enough signatures to get the article onto the warrant.
She said she also “highly doubts” that Hopkinton had a citizens’ petition at town meeting to remove a ZBA.
“A quick Google search reveals quite a bit that we were not necessarily aware of when we appointed these people,” FitzGerald-Kemmett said. “One of the things that I’m extremely concerned [about] is the lack of full and transparent disclosure by people who are applying for positions.”
She joined Weeks in calling for a more complete vetting process.
Selectman Kenny Mitchell disagreed with “going after the whole board,” preferring Hickey’s proposal to investigate one member. He also said he sees evidence that the 40B issue is involved because that Precinct 1 is the only one he has heard from.
Weeks disagreed, saying he has heard from residents from all over town and his call for an investigation does not necessarily mean removal.
Hickey asked if the ZBA would be the subject of a hearing together or separetely. Feodoroff said every ZBA member is entitled to an individual hearing.