William Depietri, the developer for Park Central, has filed a motion requesting sanctions from the Planning Board. The motion is based on Planning’s withdrawn appeal of the Park Central decision by the Zoning Board of Appeals.
The recent legal action prompted another request for selectmen to allow the Planning Board to hire special counsel. The response again seems to be “no”. But Planning does appear to be receiving advice from Town Counsel.
Past requests by the Planning Board and petitioning residents to allow special counsel were denied by selectmen*. The requests were based on belief that Town Counsel was constrained in advice he could give to Planning in its case against the ZBA, also advised by Town Counsel.
Last Tuesday, BOS Chair Brian Shea informed the public that he had followed through on a related promise. He, Town Adminstrator Mark Purple, Town Counsel Aldo Cipriano, and two members of the Planning Board met to discuss Planning’s purported need for special counsel.
Selectmen still weren’t approving the request. Shea described it as “an evolving situation that may result in further meetings and/or actions.”
Shea’s December 6th update occurred after the motion for sanctions was submitted to the Planning Board and Cipriano. (A memo to parties was dated November 28th.) He did not state what date the sit down took place. But I’ve learned that the parties did discuss it later that evening.
Shea wrote yesterday:
We have been aware of the matter, and the Town has taken action to address it. Strategy associated with this matter was a subject of our Executive Session at our last meeting; Town Counsel and representatives from the Planning Board were in attendance. BOS and Planning Board both concur with the strategy proposed by Town Counsel. As we are in the process of implementing legal strategy discussed at an Executive Session, it is not appropriate for our Board to place this matter on our agenda for discussion. We will continue to follow this through the legal system, and will continue to work with Town Counsel and the Planning Board.
Shea’s statement was a swift response to a renewed request by Marnie Hoolihan, one of the petition organizers. She had written just that morning to members of the Board of Selectmen*:
It has come to my attention that on November 28, 2016, Capital Group filed a motion in Worcester Superior Court to impose monetary sanctions on the individual members of the Planning Board regarding the filing and dismissal of the Park Central appeal.
In the last public meeting, you stated that if circumstances change, you would consider revisiting the decision regarding independent counsel for the planning board. I believe this constitutes a change in circumstance. I am requesting a public hearing (not an executive session) at your next BOS meeting to reconsider this need and the subsequent action filed by Capital Group. It was clear that the Planning Board had the interest of the town when filing an appeal and had to dismiss the appeal because they were not afforded appropriate counsel due to your denial of independent counsel 4 times.
This is a disturbing situation, particularly since anyone in town who would consider public service will now second guess that decision if they believe they will be responsible for financing their own legal protection.
The referred to motion by Depietri (the owner of Capital Group), states:
On November 3, 2016 the Chairman of the Planning Board, Donald C. Morris requested, verbally and by e-mail, that the Defendants assent to a voluntary dismissal of the Complaint pursuant to Mass. R. Civ. P. 41 (a)(l)(ii). A copy of the email and Stipulation of Dismissal with Prejudice dated November 1, 2016 are attached hereto as Exhibit C. On November 8, 2016 Depietri, through counsel, agreed to a stipulated dismissal subject to reimbursement of legal fees and costs in the amount of $4,645.50. A copy of counsel’s e-mail is attached hereto as Exhibit D. Chairman Morris did not respond to counsel’s email. On November 10, 2016 the Defendant Zoning Board, through Town Counsel, executed the November 1 Stipulation of Dismissal with Prejudice
Morris told the public in mid-November that the reason Planning dropped their suit was lack of legal counsel to advise them.
To see the filed motion and cover memo, click here.
*Selectmen involved in the decision of whether or not to allow special counsel, and who received Hoolihan’s email, are Brian Shea, Dan Kolenda and Paul Cimino. (The other two members are conflicted out.) Cimino has supported the Planning Board’s authority to hire counsel. Shea and Kolenda have ruled against it, agreeing with Cipriano that he should be the sole legal counsel for Town Boards. (Though there are exceptions for specialization, such as Labor Counsel.) They didn’t want counsel for the ZBA and Planning Boards pitted against each other.
Asking fellow town residents to please stay on top of this. It is even more clear now that the planning board needs council outside of what they are receiving from the town. BOS please take action.