The Shameless and the Shameful.
By Jim Conley • Aug 2nd, 2007 • Email This Post to a Friend •
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Archie raises a good point in the comments below on the subject of the Brookline ZBA’s decision on One Somerset Road. It’s hard to see the decision as much more than a general transcript of the proceedings conducted by the Board, including those of May 24th. And with that, there is no indication that residents disrupted the meeting, as was reportedly alleged by ZBA member Lawrence Kaplan.
The disruption was cause for the dispatch of several police officers and an attempt by the Brookline Police to bring charges against one resident.
Still, Brookline’s Office of Official Obfuscation (Town Counsel Jennifer Dopazo) refuses to release the police reports in this matter. Why? Do they show what people allege regarding Kaplan? We’ll get the reports, hopefully sooner rather than later (progress is being made despite Dopazo’s stonewalling).
With this, as well as campaign finance documents, correspondence with the law firm representing the St. Aidan’s developer and internal communications on the Farmer’s market debacle, the question lingers as to why Brookline Town Government wants to keep the public in the dark. And why we pay Dopazo nearly $150 thousand per annum to keep us there.
Shame on them for the former. Shame on us for the latter.
Jim Conley is publisher of On Brookline.
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The penultimate (my favorite word) sentence of Section 15 of Chapter 40A provides in part: “The board shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and setting forth clearly the reason for its decision and of its official actions, capies of all of which shall be filed within fourteen days in the office of the city or town clerk and shall be a public record ….”
I haven’t checked the annotations recently regarding the requirements of the contents of the decision of the ZBA, as viewed by the Supreme Judicial Court and the Appeals Court. But the decision in One Somerst does seem to be a detailed record. The attorney for the appealing party will surely compare the decision to the transcript of the hearing/rehearing to confirm whether the former is indeed a “detailed record.”
My experience over the years with the ZBA and its decisions suggests a sea change in the detailing of the record of the ZBA’s proceedings in comparison to the bad old days when the attorney for the prevailing party (often a former Brookline Selectman) would draft the decision for the convenience of the busy ZBA members. Perhaps the role of Town Counsel in attending and drafting ZBA decisions may better comply with Section 15’s requirement for a “detailed record.”
I shall have further comments after checking some of the appellate cases on the requirements for ZBA decisions.
A curious aspect of the hearing was the fact that Mr. Nickerson was not present to support his letter from which the developer had appealed. Why wasn’t he present? Who, if anyone, present was respresenting him? Polly Selkoe was presumably there for the Planning Board and the Planning Department. While Frank Hitchcock was present he did not seem to be representing Commissioner Nickerson and his letter; while Hitchcock is from the Building Department, he (or another Building Department representative) usually is present at ZBA hearings in an advisory role to comment upon building and zoning laws. Town Counsel’s presence may need further inquiry. For example, had Town Counsel or another attorney in her office had any involvement up to that point with Commissioner Nickerson’s letter that was the subject or the appeal? If so, the decision does not seem to disclose this. Perhaps Town Counsel’s presence was to assist the ZBA members (all of whom, by the way, are attorneys practicing law in zoning/real estate matters), including for the purpose of drafting their decision.
Next, it would seem important to examine Town Counsel’s role from the time the hearing closed to the time of the rehearing. What was Town Counsel’s involvement with Commissioner’s Nickerson’s request for a rehearing before the decision on the hearing had been prepared/filed? What contacts did Town Counsel have in the interim with ZBA members, Commissioner Nickerson, the developer and his attorney, or other Town officials? Might such contacts have conflicted with the open meeting law? How many hats was Town Counsel wearing in this interim and what steps were taken to avoid conflicts, or appearances thereof?
It would seem that some politics was involved in the interim period. Perhaps discovery in the course of the developer’s appeal may yet shine its light thereon.