ZBA Admits Violation of Open Meeting Law

Among the items that came up at last week’s meeting of the Zoning Board of Appeals (ZBA) was a letter from two entities that were involved in a decision by the ZBA at its February meeting in which the entities alleged that the ZBA had violated the state’s Open Meeting Law.

That item on the agenda for last week’s meeting was as follows:

“Open Meeting Law Complaint from Durant Performance Coatings, Inc. and Burbank Realty, LLC regarding the Zoning Board of Appeals meeting of February 16, 2022.”

Under the Open Meeting Law, a party aggrieved by an Open Meeting Law violation may inform the public body of a violation and request that the public body board take remedial action.

The statute reads in pertinent part, “At least 30 days prior to the filing of a complaint with the attorney general, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed within 30 days of the date of the alleged violation.”

At issue was a decision by the board on a matter that had been brought up by Durant, but which was dismissed by the ZBA. However, the ZBA allegedly violated the Open Meeting Law when the members met in private and made a formal decision on the matter, which subsequently was read by Tucker at the February meeting.

The specifics of the issue, as reported by the Revere Journal in our news story last month, were as follows:

“#A-22-01: Durant Performance Coatings, Inc., 112 Railroad Street, Revere, appealing the decision of the Building Inspector and/or the Site Plan Review Committee on November 16, 2021 to approve the site plan application submitted in relation to 44 Railroad Street.

“The applicant’s attorney asked for a continuance, as had been done at the meeting in January. He informed the board that a traffic study presently being conducted will eventually go before the Site Plan Review Committee, which could make the matter moot.

“An attorney opposing the application also appeared and stated that the appeal does not fall within the board’s jurisdiction.

“The board voted against granting a further continuance.

“Chairman Tucker then said, ‘The members and I discussed this,’ and he proceeded to read from a lengthy statement, which had been drawn up before the public meeting, in which the ZBA  essentially concluded that the matter does not fall within the purview of the board’s authority.

“The board then unanimously voted to dismiss the appeal and place it on file.”

Under the Open Meeting Law, all discussions and votes by a public body must be held in an open session, other than for specifically-enumerated exceptions that allow a public body to conduct an Executive Session.

However, none of those exceptions were applicable to the matter here and Tucker’s statement, “The members and I discussed this,” in a non-public setting prior to the public meeting clearly evidenced a violation of the statute.

The ZBA also handled another matter on its February agenda in similar fashion.

The Journal’s news story for that agenda item was as follows:

“#A-22-02: Cristina Napoli and Marcus Santos, 174 Endicott Avenue, appealing the decision of the Building Inspector to deny the applicants‚Äô request for enforcement of the Zoning Ordinances of the City of Revere with respect to the property located at 172 Endicott Avenue and owned by Thomas LaBrecque concerning the unauthorized expansion of a deck to less than one (1) foot within the required side yard setback of ten (10) feet. The applicants‚Äô request that the Zoning Board of Appeals reverse the decision of the Building Inspector to delay or withhold the enforcement of the Revere Zoning Ordinances and that Mr. LaBrecque be ordered to remove the deck encroachment into the side set back to the extent it exceeds what was existing previously at the property located at 172 Endicott Avenue.

“The attorney for the appellant asked for a continuance.

“However, the board denied the request for a continuance and once again Tucker read a statement which he began, ‘As discussed with the members earlier.’

“The board then voted to uphold the decision of the Building Inspector, essentially dismissing the appeal.” However, the applicants in this matter did not file an Open Meeting Law complaint with the ZBA