The Twilight Zone.
By Jim Conley • Mar 1st, 2007 • Email This Post to a Friend •
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A system of cronyism depends on putting the right stooges in the right places. And when it comes to Brookline’s Zoning Board of Appeals, nothing could be closer to the truth.
Imagine if you will a place where a motion to deny an enforcement action on an alleged zoning by-law violation is made by an appeals board member - Brookline’s Enid Starr - who also happens to be mother to a law partner of the attorney representing the developer against whom the charges have been made. (see previous post)
That’s what happened at tonight’s ZBA meeting on the Longyear development at Fisher Hill (listen to Starr’s motion here). While the three member panel found that abutters to the project are an “aggrieved” party, they then denied the abutter’s motion to yank the building permit (on allegations that construction is too large for the site).
Why? Because the plans submitted by the developer’s architects and engineers have been stamped with their official seal. “And the seal is sacrosanct,” says ZBA member Bailey Silbert.
Funny story. I once had a survey done by a well known engineering firm and they placed my property line in my neighbor’s foyer. Those plans had the engineer’s seal on them. I guess that was sacrilegious.
I’ll have more on tonight’s atrocities. In the meantime, you have to feel sorry for Enid Starr. What a schmuck for a son she must have. You know, putting her in a position to be called a stooge and all.
Update: I write above that there are allegations that the construction at Longyear is too big for the site. In fact, neighbors to the project presented evidence in the form of drawings and plans from a well-respected architectural firm to prove the point. And those architects also put their seal on the submission to the Board. Maybe that seal is smaller than that of other firms, hence making less of an impression on the Board.
Update (2): I think it’s probably time to try and get an opinion from Massachusetts’ various ethics and professional conduct groups as to whether the blanket waiver to disclose conflicts given to Starr by the Brookline Selectmen is appropriate. At last night’s meeting, Starr made no mention of the relationship to her son’s partnership with developer’s lawyer Jeffrey Allen as she moved to deny a motion with Allen representing the other side.
In their advisory to public officials (like Starr), the Massachusetts Ethics Commission says: “Unless you make a proper, public disclosure — including all the relevant facts — you may not take any action that could create an appearance of impropriety, or could cause an impartial observer to believe your official actions are tainted with bias or favoritism.”
Hey, I’m impartial and that liitle bit of advice makes me think Starr and the Selectmen have got some ’splainin to do.
Jim Conley is publisher of On Brookline.
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I understand that ZBA member Bailey Silbert is an architect. I wonder if his profession has a code of ethics that might address “Oh yeah, my seal is bigger than yours.”
What if the plans of the developer’s architects (blessed with Silbert’s seal of approval) are actually in error. Might that be a matter for the Board of Registration of Architects to address? In a sense professionals, such as attorneys and architects, should serve as gatekeepers to ensure the integrity of zoning. Otherwise, the foxes would be protecting the chicken coops.
Sicce there was no opportunity for the public to ask questions, I was unable to ask: “How does an architect determine the criteria for the seal? Does the architect himself get all the local zoning laws and the definitions of, oh, let’s say, ‘habitable space’ and then affix the seal?”
Or, does the developer send his lawyer to determine the interpretation of a term say, “habitable space”, maybe even issue a letter to the architects, and THEN the architects decide what they include in their calculations for “habitable space”?
In sum: Do architects predicate their seal affixing on the work of other professionals, such the developer’s lawyers?
If so, then those seals ought not to be sacrosanct, and surely should be challengable, since the error factor would increase exponentially.
Does anyone know the answer to my question?
Addendum: Has the architect ever publicly, on the record at the ZBA, been questioned as to the criteria he/she used to determine “habitable space?”
Since the topic was so significant in the ZBA decision-making, it would have been helpful to know their thinking at the time of seal-affixing.
And, secondly, do architects, at their most earnest best, never make mistakes? Do they EVER affix a seal that turns out to have been, however sincerely, the product of error?
Just asking.
As I recall, the ZBA is empowered to have testimony before it be under oath. Might such result in better testing what has a seal on it?
This was obviously a public meeting and not a public hearing, so the ZBA basically deliberated on testimony and evidence presented to it at public hearings and made a decision, all in public. Next comes the written decision. I trust that someone on behalf of the objecting Fisher Hill abutters had a tape or video recorder to record the discussion among the ZBA panel members to compare with the written decision to be filed.
I don’t know if this was a “first” for the ZBA panel, but it seems that its members gave consideration to the requirements of the Open Meeting Law. But was it clear to observers that the ZBA panel members had not discussed the matter in private earlier, either by telephone, in person, by electronic means, or otherwise? Or would observers say that the discussion was spontaneous or that this performance was pre-scripted by the ZBA panel members?
Compare this with the “normal” ZBA public hearing where after the evidence is closed the ZBA panel promptly discusses the matter and makes an oral decision, usual short and sweet, without too many details concerning the reasons for the decision. Then the written decision is filed and some observers in comparing its contents with the “oral” decision may note that many of the reasons set forth in the written decision were not mentioned in the discussion surrounding the oral decision.
So perhaps the ZBA is becoming more conscious of complying with procedural matters under the zoning bylaw, Chapter 40A and the Open Meeting Law. This can be quite time consuming for two busy attorneys and an architect voluntering their services to uphold the integrity of zoning in our Town.
Cop out, Cronyism, Cover your butt - maybe a 4th ‘C’ also.
The ZBA hearing and decision on Longyear last night seemingly ignored all the evidence presented to it by an expert witness, LeMessurier Consultants which calculated Longyear at 190,100 square feer and not the 174,573 gsf allowed - a possible overbuilding of 15,500 sf.
The discussion ignored the careful analysis of this same issue performed by the Planning Depts Bob Duffy and staff in April 2005 - which also clearly showed overbuilding. Where was the Planning Dept last night on this issue ?
The discussion ignored the now finished basements in Bldg A - 3000 sf which the Town’s Assessor says exists and for whcih it charges those owners.
If dicsussions of this magnitude of discrepancy do not warrant an investigation by the ZBA, what possibly might ?
The only discussion was that the developer’s architects’ analysis was effectively G-d’s word and could not be questioned - even thought the architects’ analyses all contained words and phrases like ‘assuming the following interpretations…will be acceptable’…’the phrase …is intended also to include’ (which it really doesn’t)
‘the interpretation…is subjective.’
And interestingly, all the letters have almost exactly the same wording - as if they had been written by a third party and given to each to submit.
Each of these analyses overdeducted space from the total. And there was no discussion last night as to how a major building can shrink in size - the existing mansion - how it could be 29,101 gsf for 100 years, and now after NEW additions to the building of 1,413 sf, the mansion is magically only 28,001 sf and not 30,544 sf. (In fact this building contains 31,702 sf of finished space.)
Let’s play devil’s advocate here - (although in this case, the job certainly seems taken already). Even if we were to allow the Bldg A basements as unfinished and not include them AND even if we allow the egresses to not be included (in spite of the fact that in 2004/5 Robert Duffy and Dave Turner had told us it was included), the Longyear development is still significantly over its allowed FAR:
190,101 sf per Lemessurier analysis and ‘new’ drawings
(3,822) Bldg A finished bsts
………………
186,279 sf
(5,671) Total finished ’stairwells, elev, vestibules’ in bsts & garages
………………
180,608 sf
(174,583) Max GFA per Special Permit 1996
……………..
6,025 sf STILL OVER ALLOWED GFA
If such rampart disregard for the truth is happening throughout Brookline on all developments, we are all sorely diminshed by this decision. If the ‘process’ can allow this to happen unimpeded, we are all losers. If the Town administration is so apparently pro-developer and anti-the little guy as seen in Longyear, Parcel B2, etc. etc, we are all in a serious situation.
I don’t know….maybe there should be an investigation of this whole process by a Moderator’s Town Meeting committee.
Gill Fishman
CoPresident Fisher Hill Assn
While Mr. FIshman didn’t exactly answer my questions in so many words, he did.
Architects thus appear to rely on other professionals’ input, do not conduct rigorous tests and measurements entirely on their own, and thus are vulnerable others’ mistaken (ntentional or unintenional) data, and thus any conclusions they might draw.
As they say in law “fruit of the poisonous tree” is inadmissable. And as they say in academics. conclusions are no better than the facts on which they are based. Hence, why I asked the questions, supra.
So, sadly too late for Fisher Hill abutters, at least some of us have learned a whole new chain of challenges to a questionable project when one comes to our neighborhoods. Small comfort to Fisher Hill folks, but I am grateful nonetheless.
No mention was made in our blog today about the ZBA statement that it had no right to access private property.
Maybe so. But every few years an assessor asks me to let him in so he might evaluate the internal condition of my home, for assessment purposes. I’ve always welcomed them in.
Didn’t the ZBA at least ASK for a ZBA representative capable of measuring to enter have access to Longyear’s sacrosanct inner-sanctum? Were they turned down? That in itself would speak volumes.
I’m just wondering how something, so clearly questionable, at least to detached, reasonable and legally arms-length observers, could have gotten this far, and ended in such failure.
Perhaps it’s a hollow victory to the abutters that at least they were recognized as having standing as aggrieved parties.
It certainly is hollow if this is the end of it. But I’m wondering, if, on the difficult assumption that they have the deep pockets and stamina for a Land Court appeal, how hollow that finding would be, since only those with “standing” can have their cases heard.
At best, this is an onerous, daunting up-hill slog, but perhaps a Land Court can do what so many were unable to achieve at the local level.
Unreasonable or Irresponsible ?
In a court of law, when there’s reasonable doubt, the accused is not guilty. In Brookline’s ZBA process, the ‘accused’ developers are never guilty even when there is more than reasonable doubt, as in this case when there is strong compelling evidence from both an independent 3rd party expert ‘witness’ and the Town’s OWN analysis in April 2005 that the developer’s certified numbers were just simply wrong and severely understated.
Given that evidence - and the significance of such a huge gap in gsf numbers - the ZBA could have- should have - requested, indeed demanded, an unbiased independent analysis of the situation. Any normal judicial body would have done that, any body of reasonable people would have done that.
It is a sad case of affairs when the people we elect or appoint and on whom we depend to protect us seek only to protect themselves - or worse yet their potential clients, friends or relatives.
When will we as citizens of Brookline stop accepting this behavior ? When will we all take a stand against this ? When will we demand that our public officials live up to the standards we expect of them ?
.
There’s an empty seat on the Board of Selectmen. Run Gill run!