Planning Board - Regular Meeting

In that case, we'll consider the meeting in order. Um, we have two questions essentially one property, two questions, requests for rehearing. This was a case on which I did not sit. How many people here did Andrew you sat on? Only one. Okay. of the people here. Has everyone had a chance to review both the history of the case and also the request for rehearing that was submitted in writing by the appellent? Yes.

Okay. So, we've all seen that. For the benefit of our vast television audience, we typically when we have requests for a rehearing, we do not take public testimony and we uh consider criteria that are slightly different than when we are considering requests for variance or special exception. In this case, we're looking for to be convinced that we have either made an error in procedure in law or that there is new information that is available now that was not available before that has been offered to us. And for those reasons, we may, if we so choose, rehear a case. So, if everyone has had a chance to review this material, I'll just go down the line here and find out how how people uh how people see it. Starting with you, Mark.

Um I don't particularly have a problem with it. With it with what? With the um rehearing request. In other words, you would grant Yes. where uh what errors of law or procedure or what new information the other way. Okay. Sorry. That you would deny. Yes. Okay. Sorry. [snorts] In which case you needn't come up with any errors in law, etc. Miss Perkins, how do you see any of the three criteria met?

Um no, I I didn't see in reviewing this that there were any errors made. Um, I reviewed some of the information they provided for the rehearing request and I I still didn't see a conflict with it. Okay. Here for the original, but I don't see a conflict of what was done in the original. Right. In other words, it none of those three criteria were met. Miss Vector Morgan, I do see a problem. Okay. With the setback one. Okay. Um the motion to grant the setback variance failed by a vote of two to one.

There was no correlating vote then to deny the variance. Um so that concerns me because you can't just deny something by having a failed motion to approve it. Plus there was no opportunity to present findings of fact which would support its denial. So I would grant the rehearing with regard to the setback variances only. Okay. Mr.

I've been thinking about this um because it's kind of an interesting issue um and I was the only one there who of the people here tonight and as the minutes say I voted in favor of the setback variance. It was two to one in favor and it was three to zero to deny. I think it was the No, sir. There was no vote to deny. No, no, no. I'm sorry. I'm sorry. I'm getting to Correct. Correct. There was no vote to deny. Right. Yeah. On the first one. Correct. It was It was two to one to grant and therefore that motion failed. There was no, as you said, there was no motion to deny on the first one. And then on the second one, which if I think was a density or maximum lot coverage issue, that was three to zero to deny. Correct.

So, front. Thank you. So, on the first one, I think my my concern is that if the rule is that if the general rule is that it has to be unanimous in either direction, then that essentially means a diminished board does not have the full capacity to issue a final ruling, right? Because it it in this exact scenario, right, there's three people on the board. You needed three affirmatives. You need three affirmative. So if so, so so if the people are divided, you can't issue a ruling. And if that was the general rule, you that is state law. It's state Well, the state law says you have to be unanimous to affirm. No, the state law says you have to have three votes,

right, to approve anything any motion. You have that there. Read that back because I don't I don't to approve organize. I don't think to approve. Right. You have to have three to approve. Right. Right. It says you have to have three to approve. But you didn't for the three member board. That's where Yeah. I so so I think so if if we're going to do three member boards see I if we give them if we're going to do three member boards then I think it's they're they can they consented to it because otherwise I think it's a bit of a heads we win tails we could try again and they did Nick Nick announced at the beginning of the meeting that was a three member board they would need three affirmatives to make a voting a ruling pass that was announced in the meeting

was it did he say to make a ruling pass or did he say to grant I I don't know how he worded it. I won't but Andrew, my concern is that you didn't take the other vote. Right. Right. Right. To deny. Is that what you're saying? Right. Right. Right. Right. Right. Right. And and that creates uh in your opinion a problem because there was no argument made to deny because there were no findings of fact made to support a decision to deny the variance. Got it. Okay. And that is something they raised. They didn't raise it exactly that way, but they did raise the question of what the f were the findings. In fact, they they thought that they were short of information. They raised that with regard to the other denial. Yes.

Correct. Right. Yeah. They Yeah. Right. I I understand that. But nevertheless, I think that it was Right. It was It would have been up to Mr. Monahan to make that motion because he was the only one in favor of a denial. Right. We move to grant. So, so, so, so Mr. It was, was it was it I recall that and that motion would have failed too. That motion would have failed too. So, the point being once the positions were stated,

the no motion was going to pass and therefore I think because the burden of proof is on the applicant, it fails. Now, as far as no findings of fact, I think that the record showed a I think all the positions were stated. I think Mr. Monahan, who was the one who the only one there who was supporting the denial in the set pack um stated his his positions and and whether you know and I think in that in that regard we followed the our pretty typical procedure. We had a pretty extensive deliberation. He stated his reasons for the denial. And so I think in the sense that, you know, we never we as the board never ourselves handwrite or or put to writing any fine facts. We simply verbally recount them and then they're put into the minutes. And I think we did follow that procedure in that regard. So that's that's my position.

So I have a question. Would it matter if we were if you said yes to rehearing one and not the other, would they still be able to accomplish their goal? Like if the objection was stated, the other one was denied flat out by all three. So would it make sense to rehear one really just to reiterate why it was denied or think if I were if they can't if they can't do the project they want to do without both is it worth them come back? Well I don't think they could do the project they want to do without both.

I think that the board clearly made an error and needs to rehear the first variance and I think we didn't the board didn't make an error on the other one. So because the process is set out the way it is, I think still have to rehear the one. Yeah. Even though it's probably [clears throat] going to get denied, right? Well, it may or may not. Even if it didn't, they still have to appeal to do the project. Suppose I understand better now. Suppose the chair had called for a motion to deny. And nothing happened. Where does that leave it? Probably in the same position you're in now. Yeah. or just no action taken be continued to a full board. Yeah. But but but then I think that

I don't want to be labor because I I I respect everyone's position and in my mind that that is is I think the community has an interest in finality on the rulings. I mean it wouldn't I I don't honestly know if the diminished board allowing it is in our rules that were required to do it or it's just a matter of convention. But if it's such that you could have that situation where we just can't decide, then I don't even think we should offer the diminished board because why offer a board that can't that can't complete the job? It's hard with the three person board. You have to have a unanimous vote. Yeah. Now, do we have to offer the three division board or could we say sorry, we're not going to hear any cases tonight because we we just don't have the people here.

We could have a rule of procedure that said we will not operate with a three person board. Okay. We could also, I suppose, have a rule that says if we're a hung jury, two to one that we automatically table or recess case. Yeah, we could my only concern and it's not these particular butters that I've you know, it could be anybody. I mean, I just think people come out, they spend a lot of time on both sides. We spend a lot of time. So I think in interest of everybody's resources that we should be we should be able to hear and decide a case at one

if we choose giving an opportunity to them to say okay you've heard our conversation about this before we vote do you want to table it for a full board or do you want to move forward oh I don't like that at all when we when we when we set up the the threeperson board we always or I always tell them tell them that it's not grounds for a rehearing that it was simply that it was three person board. We don't get into the fine point of a two to one vote. Okay. The assumption is that somebody I suppose theoretically could say

well if there were two other members of the board I might have had a better chance even though it was a three 0 vote. I'm not sure I by that line of thinking but because you'd still have three votes again yet, right? So in this case, and we don't often have a three member board. I can't remember another situation where we had a three member board. That would also happen with a four member board. It could with a two. And we've had plenty of four member boards. I I don't ever recall two, although there probably have been some. I just don't recall how it went that I guess I was caution to changing your procedures drastically as to right what we do with a three member board other than what we've already been doing. I I appreciate your concern.

I I did review the rules of procedure and it and the the wording can definitely be cleaned up because it it should specify a three member board versus a five member board because the rules are just say, you know, three affirmative, but that doesn't split the hair of a full board or a three member board. And as we're learning there there is that the two to one vote doesn't isn't the three. That's why three member board you have to have unanimous.

So do the rules say there was I think there was a reference earlier to state statute on this subject. Do the did the do I correctly understand the rules say there have to be three votes in the affirmative to grant a variance or a special exception or whatever else. And I believe that's what your rules of procedure say too. But it's again it's that it's so instead of looking at a rule of procedure change I think maybe some some language for when there is a three member board so that it is clear. Yeah. So that implies that two to one vote the motion fails. No action is taken. No action is taken. Correct.

Now is there anything that specifically addresses the no action being taken? Does that mean that they they're automatically denied? No. No action means that until the board can convene for five member board which would you would think would be the next meeting in that case which would have been need to grant a rehearing would we right it would continue it they're suggesting we should there I don't get the impression this staff feels we should

correct yeah when you go in this instance if the two to one and the board had said this is a no decision. So you would continue offer to the applicant as you can to go to offer to the to go to the next meeting to convene a full board. So we you're still kind of getting the same result. You know what I mean? If they chose to not move forward with a three member board, everybody would have showed here and they said no, we'll wait for a five member board. So then continue it to the next meeting. So it' be the same thing with a two to one vote. I don't mean to interrupt Stephanie. But what the statute says is the concurring vote of three members of the board shall be necessary to take any action on any matter

on any matter which the board is required to pass. So that would be to grant or to deny you need three votes. So so that's why the three member board you need unanimous decision. So we could argue that uh assumption of a denial in a two to one was an error procedure. Yes. Yes. And therefore justified a re Yes. But the other one was unanimous. Yeah. So that one doesn't. Okay. Uh I think we should take these cases separately for obvious reasons. So that's what we'll do. Uh let's start with 3.1 which was the one I believe that wound up with the two to one vote. Is that correct?

Yeah, let's be sure. That was uh setbacks. Yes. Okay. and it was setbacks that uh failed by one by a two to one margin. Would anyone care to make a motion concerning the request for rehearing either in favor or in opposition? I move that we grant the request for reharing. Is there a second? Second. It's been moved and seconded. Is there any discussion?

I'll just say one more thing. I think that I I respectfully disagree that the fact that it was two to one that it couldn't we couldn't have voted either way should require a rehearing for the reasons I said before because I think that would be um I think that would be procedurally uh at to have that general policy Oh, go ahead. We're not saying it requires rehearing. What should have happened is it should have been tabled and continued to the next month with a five member board.

Right. Right. Right. Right. Right. It doesn't require a rehearing. It requires that it that another hearing take place. Right. And I think for the reasons I said um but I'm willing to support the motion on the very narrow grounds that Laura said which in this case we should have formally made a motion to deny. Correct.

Even though even though it would have failed and I think I think at least I can't speak for Nick and Jim in my mind I kind of saw where it was going and thought well it's and and I also didn't think it was my role to make a motion that I didn't support. So, um, so I didn't and I didn't even think of that. But, you know, on that on that narrow ground, I'm I'm willing to support the motion right here, but not not for the broad principle. I think everyone else but me supported. Okay, we've had a motion. It's been seconded. We've had some discussion. Any other discussion? All those in favor, please say I.

I. All those opposed? The vote is unanimous. We will rehear case uh 3.1 which is 0326-2025. Um they're both listed as 0326. 0319. Sir 0319. Oh, I'm looking at the agenda here. Uh where is 0319 show? Oh, it shows up here. It it shows up it shows up in the text. It doesn't show up in the bullets. It's what what I read. Nine is the one we just granted, right? Yes.

Yeah. Okay. Okay. U so it is it was case 0319. That brings us down to case 0321. Correct. Uh so the way it's printed on the agenda is an error. The 0326 map and so forth. Is that correct? Um we have no let's see so the agenda 3.1 so ZBA 0319225 decision of September 3rd. So that was the setbacks. That's correct. I'm looking at the bullets with the links. Oh the 0330 there. I see you. Oh then 3.2 on the agenda because the reharing has a different number sir. Sorry that's what happened.

Ah okay. Oh okay. I'm sorry. Reharing has a new number. Yes, because it's another ZBA case. So, this is another Yes, I feel better. [laughter] Okay, so now we're looking at case 0321 and correct is do I hear a motion to either grant or not grant a reharing? I will make a motion to deny that request for rehearing on the basis that no new information has been provided and there has been no evidence that the board has made any error in fact or law. Is there a second? Second. It's moved and seconded. Any discussion? All in favor, please say I.

I. Anyone opposed? The vote is unanimous. The reharing is denied. It's possible in this case that the appellent might decide not to bother to reapply. Right. I don't have enough information on I know is a procedurally. I mean they could just say I think my recollection is that they could just [clears throat and cough] the setbacks would have would have been almost a complete barrier but that the it was either I think it's the frontage it would become able to scale their project a little it would become a new case it yes right there's substantial

differences in variance that they were applying for they could reapply okay all right or They could just drop the whole matter, right? Whichever one would. All right. Okay. So, that will leave with them. Is there any other business to come before us this evening? Thank you very much, everyone. Thank you. I do. I hear a motion to close the meeting. All in favor? I I