Connect the Dots.
By Jim Conley • Jun 14th, 2007 • Email This Post to a Friend •
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There’s an interesting development concerning ZBA member Lawrence Kaplan (the central figure in the Brawl at Town Hall).
In an e-mail posted on the Town Meeting Member Association’s Web site, a resident is alleging that Kaplan conducted himself in a fashion similar to that he directed at Ruthann Sneider and Arthur Conquest on May 24th.
Note the case that the resident was attempting to speak on: 71-81 Spooner Road. In this case, the developer (corporate client of former Brookline Selectmen’s Chair Robert Allen) had subdivided the lot; and the resident was attempting to discuss the violations of the Zoning By-law that he believed had occurred in doing so.
Says the resident: “I had the distinct impression that Mr. Kaplan had made up his mind on the Spooner Road issue well in advance of the hearing, and was conducting himself more like an advocate than as an impartial judge.”
So how does a guy like Kaplan, with two shouting matches notched on his belt, remain on a board that is charged with protecting the public interest, but Preservation Commission Vice-Chair Dennis Dewitt is “demoted” (at the hands of Mensch Allen) due to specious public complaints [see report].
Do I really have to connect the dots for you?
Jim Conley is publisher of On Brookline.
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The ZBA serves as a quasi-judicial body. This means that the ZBA must consider all of the evidence presented at a hearing before deliberating its decision in compliance with the open meeting law. ZBA members should take care to avoid making statements before the evidence is closed that might inappropriately suggest its inclination. It must be kept in mind that in Brookline the ZBA consists of three (3) members (regulars/alternates) and a unanimous decision is required to grant a special permit and/or variance. If a member of the ZBA speaks up before the evidence is closed taking a slant on the matter, that may have an impact on one or both of the other members of the panel. The situation is not the same as that of a judge sitting without a jury (although such a judge must also take care not to prejudge before the evidence is closed) because there are three (3) members.
After the evidence is closed, the panel members are to deliberate in open session to decide the matter. Under Chapter 40A, the ZBA panel is required to file its written decision; the panel need not actually prepare the written decision in the presence of the public, but the panel’s deliberations should include addressing the findings required under Chapter 40A to be contained in the written decision. That is why is it important to record the ZBA panel’s proceedings, to make sure the decision made in open session is supported and evidenced in its written decision. If the written decision includes matters not in evidence and not deliberated in open session, then an appeal by an aggrieved party may challenge the decision. If the written decision is prepared in draft form by Town Counsel’s office, that might suggest the need for someone from that office to be present during the entire ZBA hearing in order to know what to put in the draft. Query whether in practice Town Counsel’s office reviews the matter with the ZBA panel’s chair and/or members in other than in open session in preparing the decision in final form for filing with the Town Clerk? Might such reviews go beyond the ZBA panel’s deliberations in open session? Unfortunately Chapter 40A does not provide an answer. Keep in mind that until fairly recently draft decisions were often prepared by the attorney for the developer proponent and offered to the ZBA panel for its consideration.