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HomeMy WebLinkAbout2000-05-23 Board of Selectmen Minutes Board of Selectmen Meeting May 23, 2000 The meeting convened at 7:35 p.m. in the Selectmen's Meeting Room, 16 Lowell Street, Reading, Massachusetts. Present were Chairman Sally Hoyt, Vice Chairman Matthew Nestor, Selectman Camille Anthony (Selectman George Hines entered the meeting at 7:46 p.m.) Town Manager Peter Hechenbleikner, Assistant Town Manager Russell Dean, Town Counsel H Theodore Cohen, Finance Director Beth Klepeis, Board of Appeals Chairman Christopher Vaccaro, Board of Appeals Members John Coote, Michael Larkin, and the following list of interested parties: Deborah and Charlie Capobianco, Frank Touserkani, H. J. Lobdell, Mimi Acebido, Fred Doherty, Susan and Tim O'Connor, Donna and Glen Milley, Valerie Sachetta, Barbara and Robert Apse, Fred Comeau, Joanne and Stephen Peters, Eleanor and William Howland, Joseph, Marc and Susan Russell, Ruth, Laurie, Torn and David Crispo, Richard and Edwin Frederick, Michael and Alice Langone, Fred Hanifan, Alan Leland, Kate Murphy, Robert Murphy, John Bigley, Mark Delaney. Discussion/Action Items Follow-Up George Street Comprehensive Permit - Town Counsel Ted Cohen mentioned he had spoken to Housing & Community Development and the Housing Appeals Committee, as well as Don Schmidt from DHCD, one of the most knowledgeable people on zoning in the State. It was reported that in Schmidt's opinion the Board of Selectmen cannot appeal a ZBA decision on a comprehensive permit. Town Counsel explained the rationale and stated that there was no case law on the matter. Vice Chairman Matthew Nestor asked about the Board of Appeals. If the Selectmen have delegated their authority through an appointed Board of Appeals, then how does the Board maintain control or oversight over other boards? What makes the Board of Appeals different? Town Counsel stated that the ZBA is not controlled by the Selectmen. Statute sets up the ZBA and they have their own statutory authority. Under Chapter 40A, there is not an explicit statutory authority for the Board of Selectmen. Vice Chairman Matthew Nestor asked if the ZBA has the decision, why does the Board of Selectmen hear these cases? Selectman Camille Anthony stated it was because of the LIP application. The Town Manager clarified the direction from the Selectmen that the ZBA was invited to the meeting but not required to attend. Town Counsel reiterated for Selectman George Hines why the Board of Selectmen has no basis for appeal of the comprehensive permit. Selectman George Hines stated that there have been board versus board cases—is this specific to the ZBA? Town Counsel stated that it is true, there have been board versus board cases but not on a comprehensive permit. There have been cases on special permits and variances but it is unique to the ZBA their authority on a comprehensive permit. Board of Selectmen Meeting—May 23, 2000—Page 2 Selectman Camille Anthony stated that the process is designed to not have other boards have input into the process. Town Counsel stated that the intent was to have a streamlining of low to moderate income housing. Housing appeal persons usually get what they want. Selectman Camille Anthony asked the Board of Appeals Members who were present how they look at comprehensive permits and how they are granted. Board of Appeals Chairman Christopher Vaccaro stated that they are only allowed to look at a narrow scope under the comprehensive permit law. Selectman George Hines stated that the Selectmen had expressed their concerns to the ZBA but there seemed to be more concern about affordable housing. Christopher Vaccaro stated that there was a letter in the file from the Fire Chief about access saying it wasn't a concern. Selectman George Hines asked again about affordable housing. Christopher Vaccaro mentioned we have less than 10% in the community. Selectman George Hines stated so do others in Massachusetts. Selectman Camille Anthony stated that she was surprised to hear that Summit Village was the model. The Town Manager stated that the goal of tonight was to decide what the Board of Selectmen were going to do about the development. Selectman George Hines asked if the ZBA could reconsider the issuance of a comprehensive permit. Town Counsel stated that he didn't believe so unless the applicant asked for a reconsideration. Selectman Camille Anthony asked if the Selectmen could legally join a suit if it were brought by the neighbors? Vice Chairman Matthew Nestor stated that he had a problem with the wording of the decision on the deficit in affordable housing. Mark Delaney of 15 George Street asked to speak. He stated he had two issues: Ted Cohen's memorandum to the Selectmen, and the issue of the ZBA's authority in the matter. He also stated that he had spoken to the Housing Appeals Committee Chairman, and that any person aggrieved by Chapter 40B, Section 21 can appeal. The ZBA has the latitude to structure the ZBA appeal. Town Counsel restated that he doesn't believe the Selectmen have standing but a court could rule otherwise. Mark Delaney stated that the Selectmen have not approved the plan so they conflict with the Housing Appeals Committee. He doesn't know how the ZBA can reach that conclusion in two hours, and stated that the Planning Board had sued the ZBA in Chelmsford. The ZBA also shall Board of Selectmen Meeting—May 23 2000—Page 3 adopt rules for comprehensive permits and file them with the Town Clerk — the ZBA doesn't have these rules. He also stated that he believes the only recourse is to file a lawsuit and he does not believe there is standing--that injury will have to be shown. Christopher Vaccaro stated that all the materials sent to the ZBA were reviewed and it was a split decision. He also stated that he thought it was a fair decision, and will let the decision speak for itself. Selectman George Hines asked if it was routine for the ZBA to issue a decision the same night of a hearing? Christopher Vaccaro stated that they only delay if information is missing. Selectman George Hines asked if this was rushed? Christopher Vaccaro stated that it was not rushed. Selectman Camille Anthony asked about the ZBA having rules for comprehensive permits? Having no process is scary. Board of Appeals Member John Coote stated that the ZBA was operating under the rules established by the State in the absence of having their own rules. Vice Chairman Matthew Nestor asked what the potential drawbacks are if the Selectmen join an appeal. Ted Cohen stated Town Counsel would have to represent the aggrieved Board. The Selectmen would have to consider their own counsel. There was a case in Reading in the 1950's when the Planing Board sued the Zoning Board of Appeals regarding a special permit. It's a very well known case. Board of Appeals Member Michael Larkin asked if the comprehensive permit is denied in the first place, what percentage of the permits are overturned by the Housing Appeals Committee? Town Counsel stated that it is likely the Housing Appeals Committee will overturn a denial unless there are economic grounds. Deborah Capobianco of 20 George Street read a letter stating the ZBA had a comprehensive permit before it last week from the Housing Authority that was denied. She talked about the conditions and the statement that they find the voting of the ZBA is erratic. There are more issues on the George Street project. Mike Larkin mentioned that comprehensive permits are going to be a reality for Reading. There is another application pending on Grove Street. Alan Leland of 14 Heather Drive asked the Selectmen to ask Town Counsel to look into whether Mike Larkin was in conflict voting on the issue, and then to overturn it if there was. Vice Chairman Matthew Nestor stated that there are methods to deal with conflict issues that are not the Selectmen's. It is unfortunately partially a money decision for the Town. There are no legal funds to sue the ZBA. Maybe we could join in a suit. The Board may entertain a motion to dismiss. Board of Selectmen Meeting—MU 23, 2000—Page 4 Selelctman Camille Anthony asked when the actions would need to be taken? Vice Chairman Matthew Nestor stated by June 5th, he was told. The contract with Town Counsel is going to change on June 30th. He has no problem suing another board but we don't have the funds. Kate Murphy of 59 Heather Drive asked if the neighbors hired an attorney, could the Board act? In response to an inquiry about an ethics issue, Vice Chairman Matthew Nestor stated that the Selectmen aren't an investigative body — if the Ethics Commission had an issue then we would review it.. A neighbor stated that he thought it was unfair to the neighborhood for the Town not to ante up dollars. Vice Chairman Matthew Nestor stated that it is a money issue. A Superior Court judge is going to look at the big picture and indicate was the process okay? A balancing test needs to be applied to whether the case could be fought. Selectman George Hines stated that given Mark Delaney's presentation, it might be worth getting a secondary counsel's opinion on the matter. Selectman Camille Anthony agreed with Selectman George Hines. The cost element is an issue. She is concerned about using State standards. The community needs to have rules — it's a credibility issue. Chairman Sally Hoyt stated that before we expend funds, we should wait for the neighbors to consult with the Ethics Commission. The Town Manager stated that he sees two issues. There is one ZBA member with a possible conflict, and there are vehicles to deal with it. Secondly, will the Board join in on an appeal? Practically it can't be done before June 5th --we need to have a decision tonight. Vice Chairman Matthew Nestor stated that we have 12 days for an outside opinion on standing. Is there a sense from the neighbors that they will appeal? Several neighbors stated yes -- it's already in the works. Selectman George Hines asked if it was worth getting outside counsel? Vice Chairman Matthew Nestor sees it snowballing. What's the cost, soup to nuts, of going forward? Town Counsel stated that he believes there wouldn't be standing. Maybe a conversation would have led the Board of Appeals to do different things. Selectman George Hines thinks he's hearing two different things. Vice Chairman Matthew Nestor thinks the Board should direct the Town Manager to meet with the neighbors and find out who they have hired. Visit the money issue then. The Selectmen could join in the short term. - The Town Manager showed concern that if suit is to be filed, we're moving ahead on the issue. Board of Selectmen Meeting—May 23 2000—Page 5 Selectman Camille Anthony asked Vice Chairman Matthew Nestor to participate in the meeting with the Town Manager and neighbors, and he stated that he would. Selectman George Hines asked if they needed a motion. He blames the ZBA. The Town Manager stated that no motion is necessary. There is a vehicle for reconsideration. Nestor moved that the Board of Selectmen request the dissenting member of the ZBA write about their objections. On motion by Anthony seconded by Hines, the Board of Selectmen voted to approve the agreement between the Town of Reading and the Reading Rifle & Revolver Club. The motion was approved by a vote of 4-0-0. On motion by Anthony seconded by Hines, the Board of Selectmen voted to approve the sale of Bond Anticipation Notes in the amount of $800,000. These funds will be for the Streetscape project and Design Funds. The motion was approved by a vote of 4-0-0. The Town Manager gave an update on the legal services review process. There have been good meetings. The group set up a meeting with Ted Cohen for review of a possible contract extension to allow him to continue to serve as Town Counsel. The committee is looking at hiring an in-house attorney. Selectman George Hines stated that he wants the exploration to include the need for legal services versus how subcontracted work would be handled. The Town Manager mentioned that we continue to make progress on review of the revenue initiatives that were reviewed with the Board of Selectmen. He wanted to make the Board aware that Wellesley or Newton had passed a Bylaw charging $200.00 for a street opening, and this was challenged successfully in court. As a reminder on Memorial Day activities, Vice Chairman Matthew Nestor cannot make it. There was a question of whether Selectman George Hines could substitute. The Town Manager will check on this. On motion by Hines seconded by Nestor, the Board of Selectmen vote to go into Executive Session at 9:00 p.m. for the purpose of strategy with respect to purchase or sale of real estate — Reading Business Park, litigation—Fraen Corporation and approval of minutes not to come back into Open Session. On a roll call vote, all four members present voted in the affirmative and the motion was carried. Respectfully submitted, 09/2 x Secret ry �