Brookline’s ZBA: “And Then There Were Three.”
By Arshag A. Mazmanian
The Zoning Act, Chapter 40A, Section 12, provides for the membership of a board of appeals:
“Section 12. Zoning ordinances or by-laws shall provide for a zoning board of appeals, according to the provisions of this section, unless otherwise provided by charter. The mayor subject to confirmation of the city council, or board of selectmen shall appoint members of the board of appeals within three months of the adoption of the ordinance or by-law. Pending appointment of the members of the board of appeals, the city council or board of selectmen shall act as the board of appeals. Any board of appeals established hereunder shall consist of three or five members who, unless otherwise provided by charter, shall be appointed by the mayor, subject to the confirmation by the city council, or by the selectmen, for terms of such length and so arranged that the term of one member shall expire each year. Each zoning board of appeals shall elect annually a chairman from its own number and a clerk, and may, subject to appropriation, employ experts and clerical and other assistants. Any member may be removed for cause by the appointing authority upon written charges and after a public hearing. Vacancies shall be filled for unexpired terms in the same manner as in the case of original appointments. Zoning ordinances or by-laws may provide for the appointments in like manner of associate members of the board of appeals; and if provision for associate members has been made the chairman of the board may designate any such associate member to sit on the board in case of absence, inability to act or conflict of interest on the part of any member thereof, or in the event of a vacancy on the board until said vacancy is filled in the manner provided in this section.”
Brookline provides for three (3) ZBA members and five (5) alternates, to be appointed by the Board of Selectmen (BOS) for staggered three-year terms.
Until the recent resignations of five (5) members and alternates, seven of the eight (8) members and alternates were attorneys, the remaining an architect. With the resignations the remaining three (3), one (1) member and two (2) alternates, are all attorneys.
The BOS must now fill those vacant slots (unless the BOS wishes to take over the ZBA’s functions) for two (2) members and three (3) alternates. To what extent should the BOS appoint attorneys? Why not greater diversity, and not just professionals?
ZBA members and alternates, once appointed, do not serve at the will or pleasure of the BOS. The ZBA serves in a quasi-judicial capacity, dealing with property interests. The three (3) year terms permit for independence in applying Chapter 40A, the zoning bylaw and other applicable laws to matters that come before the ZBA. That is their oath, not an oath of allegiance to the BOS or any individual Selectman. After all, the membership on the BOS may change because of staggered elections of Selectmen.
Do Brookline voters and residents and property owners know what criteria the Selectmen use in appointing – or reappointing – ZBA members and alternates? Is consideration given to matters of municipal political ideologies – growth, preservation, strict construction, flexibility, and the like? Selectmen are well aware that for the ZBA to grant a special permit or variance, the vote has to be unanimous. Perhaps this may account for the appointment – and – reappointment of so many attorneys to the ZBA, including several with law practices that include representation of developers/property owners before boards of appeal in other cities and towns. By the way, when was the last time a ZBA decision in Brookline was not unanimous?
The BOS might consider some diversity in the membership of the ZBA. To be considered, one must apply. A review of the applications over the past 10 years might be quite revealing in understanding the Selectmen’s choices for appointment and reappointment over that time period. Possibly the public records law may proscribe such a review. But without the benefit of such information, suspicions may arise as to why so many attorneys have been serving on the ZBA. Perhaps this is attributable to the fact that many of the Selectmen are attorneys. In fact, it was only a few short years ago that all five (5) Selectmen were attorneys. Currently the number of Selectmen-attorneys is reduced to three (3). Perhaps the other two (2) may better appreciate diversity.
In the meantime, we shall have to await the BOS.
