THE BARKING DOG HAS BEEN SILENCED...BUT IT HAD QUITE A BITE!
As you probably know, the Barking Dog proposal is now history. The matter was closed when the Planning Board issued a second denial based upon the site plan review and no appeal was filed to the last PB decision. To many people, this is a victory and I agree, for the most part.
The process of denial was both a politically charged and legally challenging event, i.e., the primary casualty being the taxpayer who now foots the bill for all of the litigation. In the end, the Town did the right thing and I thank the Planning Board for their painstaking hard work which finally brought this to conclusion.
The point of this posting, however, is not just the Barking Dog, but also to talk a bit about legal fees. No other line item in the budget is challenged more for appropriateness and justification, yet the public is often kept in the dark.
The Board of Selectmen is allowed by law to go into a closed “Executive Session” under MGL Chapter 39, Section 23B to “discuss strategy with respect to litigation.” I hope the need to be in Executive Session here is obvious, as open session hands a distinct advantage to the opposing party.
Therefore we, The Board of Selectmen, are making choices (usually as a response) that ultimately generate legal fees. The members of the Board are always very concerned about running costs of litigation and have to make a choice based on the ultimate benefit to the Town. Sometimes we are in a “no choice” situation when the litigation is based on an action of another Board or Committee such as is the case of the Barking Dog. (By the way, this case cost the Town over $34,000 in legal fees to conclude.) The point is that legal fees are a tough pill to swallow and I am painfully aware of that. We must however look at the so called big picture, toward the future and make choices that are best for the Town because in almost every legal case, precedence will be set.
So let’s go back to the Barking Dog. Now that that matter is closed, it’s a bit easier to speak about it. What went wrong? In a recent discussion at a BOS meeting, our Board members admit that this issue did not attract their attention when it first was presented before the ZBA. That is true of a lot of people. Throughout this controversy, many people with whom I spoke could not imagine that the ZBA would permit such a radical change to this residentially zoned property, to simply bypass the intent of Town zoning bylaws…I wonder how, in view of the fact that the property was already mired into another disputed issue (the placement of a cell tower in the area).
When the matter got to the Planning Board, they apparently had a very different view, considered these two factors, and began the task of straightening things out. As I said, this process cost the Town at least $34,000. Worth it? Yes. Avoidable? YES.
A more open government with checks and balances helps in this situation. The ZBA can sometimes move ahead drawing little public attention. Notifications do meet the minimum criteria, but input may be limited to a single hearing process not covered by any media. Can’t we do better than this? Zoning changes are so important that they require a 2/3 majority vote of Town Meeting.
There is something wrong with an “under the radar circumventing approach” to all of this. At the very least, the ZBA rules need to be changed to reflect the gravity of zoning change precedent. Another is the makeup of the ZBA. It may be nice to have knowledgeable people on that Board, but we need to be very careful when the work they do runs close to conflicts of interest or decisions that could have a financial impact on their business activities. There is one member of the ZBA whose job relates to zoning every day. However that person’s work is done somewhere else, in another community. the point is that the person who works out of town has no conflict of interest and this is ideal. Otherwise great caution through complete recusal and full disclosure should be the rule. "Any doubt then you're out."
We also need public awareness and participation. I became focused on this matter when I got a phone call from a constituent expressing concern. Voters need to stay tuned in and I thank them for that in this case. Keep it up, your efforts helped make the boards aware of the negative impacts of this proposal. Public involvement is a positive thing.
I know that if the Town was my company and a Barking Dog type-of-thing happened, heads would roll. It is not my company and I have no such power, but we do need to work to reform some things, open things up and hold people accountable. We cannot afford another Barking Dog.
posted by Alex McCurdy at
9:57 AM
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