PEABODY — Councilor-at-Large Anne Manning-Martin has filed an Open Meeting Law complaint with the Office of the Attorney General.
The complaint alleges that the Zoning Board of Appeals (ZBA) violated state law by deliberating outside of public meetings.
“The lack of citizens’ physical appearances and voices participating in local government during the pandemic has created an atmosphere rife with problems for public oversight,” Manning-Martin stated in the complaint. “Deliberations and decisions are not to be cavalierly made out of public view as if this is now the new norm. Such relaxed standards come with the risk of abuse, which is dangerous and causes our residents not to trust us.”
The complaint states that at the Oct. 17 ZBA meeting, which was held at the Wiggin Auditorium and concerned the 40-42 Endicott St. application for a comprehensive permit, ZBA member Barry Osborne told board Chair Fran Gallugi that the ZBA had deliberated safe harbor status after consulting with various city departments.
“Osborne admitted that we were informed by the city (of the deadline for filing a safe harbor request) and we could not file,” the complaint said.
The complaint states that “all these deliberations occurred privately, off-line and out of public view.”
“Safe harbor” is a set of conditions under which a ZBA’s decision to deny a comprehensive permit will qualify as consistent with local needs and not be overturned by the Housing Appeals Committee. For example, if the statutory minimum for affordable housing has been met, a ZBA can deny a comprehensive permit for a Chapter 40B project under safe harbor.
Manning-Martin alleges a second violation occurred on Nov. 1 during a public meeting concerning the 128 Newbury St. 40B project.
The complaint states that the ZBA violated the Open Meeting Law at the direction of Gallugi through ZBA Secretary Daniel Sencabaugh, “on behalf of the entire ZBA by presenting and voting unanimously on a prepared motion to assert safe harbor on another project, 128 Newbury St., without any discussion, clearly indicating deliberation occurred prior to the meeting offline and not in public.”
During the hearing, which lasted approximately six minutes, Attorney John Keilty spoke on behalf of the developer, Trammell Crow Company.
He said the developer had been working with the Cardigan Road neighbors and had more community meetings scheduled. He said the developer was “happy to accommodate any scheduling requests the ZBA might have,” and acknowledged that the ZBA “has worked hard on a couple of other 40Bs” and was “hopeful our project will go considerably more smoothly.” He also said “he wanted to open up a discussion on scheduling,” the complaint said.
That discussion never took place.
Instead, without any input from the public or other ZBA members, Sencebaugh read a prepared motion, which asked the board to assert safe harbor. Without any discussion on the motion, the ZBA voted unanimously to approve it.
The complaint also cited other questionable actions on the part of the ZBA. During a May 3 public hearing on Endicott Street, “numerous members of the public had accessed the meeting and had raised their hands to speak as required via remote access.” According to Manning-Martin’s complaint, they were not acknowledged.
“The public wished to request that the ZBA assert safe harbor status to stop this massive development as the ZBA had 15 days to do so,” the complaint states.
At the continuation of the hearing on May 17, a letter from Mayor Edward A. Bettencourt Jr. and another letter from Manning-Martin and Jarrod Hockman had requested “the ZBA deliberate assertion of a safe harbor claim.”
The letters were accepted but Gallugi referred to these requests simply as correspondences, with no reference of their content, as to do so would violate the Open Meeting Law, the complaint said.
“Rather than adjust the agenda to timely discuss it in public or simply deliberate in public without adjusting the agenda, both of which would have been proper under the law, Chair Gallugi instead hid the contents of the documents from the public and, in doing so, missed the safe harbor deadline,” the complaint said.
“In doing so, the ZBA admittedly deliberated about safe harbor, privately deciding to allow the deadline to lapse — a clear violation of the Open Meeting Law — while claiming cover under the chair’s perverted version of the same.”
At a June 14 meeting, Gallugi refused to read the letters aloud and “told the public that if they wish to read them … they should contact the ZBA municipal clerk and request a copy.
“This act is further proof that the issue of safe harbor assertion for the Endicott Street development was intentionally buried from the public, never to see the light of day,” Manning-Martin said in the complaint.
The complaint seeks to compel “the ZBA to hold open public meetings on the issue of safe harbor for both 40B projects (Endicott Street, 128 Newbury St.).
“This will seek to balance the public’s interest in witnessing the deliberations of public officials. This should also act as a reset on the time restraints set by opening the public hearing on asserting safe harbor.”
The complaint also seeks city compliance with an Oct. 18 public-records request, which would require the city to produce all documents, agenda, dates and history of meetings and other communications pertaining to the ZBA’s deliberations on safe harbor.
The complaint also seeks to compel the ZBA to publicly post its meeting minutes, which it claims have not been posted on the ZBA website since January of 2019.
On Monday, Gallugi said she could not comment as the matter had been referred to the ZBA’s legal counsel.