July 31 2017

Selectmen Deny Funds for Planning Board Lawsuit Against ZBA

By: Rich Hosford

A proposed appeal of a Zoning Board of Appeals and Building Inspector decision regarding an installation at the future EMD Millipore building will not have funds provided by the town, at least not funds approved by the Board of Selectmen.

At its latest meeting the board voted 3-0-0 against providing funds to pay counsel for a Planning Board suit in Massachusetts Land Court. Under Mass General Law the board and Town Meeting are the two entities in town that can approve funds for legal counsel.

The ZBA decision in question is the approval of a 75-foot tall LED Wall with a 16-foot electric sign that was approved for the Millipore business on the Summit Campus at 400-600 Wheeler Road. The smaller sign will say something like, “Welcome to MilliporeSigma” and the larger sign may change its presentation daily or weekly.

On May 2 the ZBA unanimously approved the LED Wall that was listed by the Building Inspector as an “Art Work” rather than a sign. During that meeting some members expressed about the application and whether the wall violated the town’s General Bylaw that prohibits electric signs but ultimately ended up approving it.

Members of the Planning Board disagreed with the decision and on June 1 voted 7-0 to appeal the decision of the ZBA. They argued that the “Art Work” was a sign, with moving images displayed on an LED panel. They also had issues with a separate sign that had changeable LED letters by pointing to Burlington General Law that says “flashing and computerized signs or prohibited.”

On July 17 the Board of Selectmen took up the issue of funding the lawsuit filed by the Planning Board. The three members present, Chairman Chris Hartling, Jim Tigges and Mike Runyan, relied heavily on backup material written by Town Counselor Brandon Moss of Murphy, Hesse Toomey & Lehane. In that document Moss pointed to a previous lawsuit filed by the Planning Board and the Advisory Land Use Committee against a ZBA decision regarding stovetop ovens in the Residence Inn by Marriott being built in the district.

Moss said that in that case the Land Court ruled that either the Board of Selectmen or Town Meeting would need to approve funds for legal counsel. Further, he said the Land Court determined Planning Board, Land Use Committee and Town Meeting did not have “legal standing” in that case and that the Planning Board would likely not have standing in the Millipore case either.

Planning Board Chairman John Kelly argued against this point. He pointed to an opinion written by attorney Jonathan Silverstein of KP Law that was written in February concerning the issue of standing in these types of cases. In that opinion Silverstein cited cases where boards like the Planning Board would have the right to bring a case of this nature.

However, the Board of Selectmen elected not to supply the funds for legal counsel. They said during the meeting that based on Moss’s opinion they did not feel it was a prudent use of town funds for one board to sue another in Land Court.

“I would much rather see our different departments, who may have a difference of opinion, iron these things out here rather than in land court,” Runyan said. “I Don’t care if we have to lock ourselves up in a room for hours. These are coming fast and furious and I’m not in favor of providing counsel, particularly because selectmen don’t have standing in this matter.”

“I don’t feel like we should be doing this work in a courtroom on billable time,” Hartling said. “It’s not a prudent way to spend money and is not a situation I’m comfortable with supporting.”

It is possible that the Planning Board could pursue funds from Town Meeting though the issue of standing might still be a problem. The Planning Board also had an executive session during its July 20 meeting on the premise of ongoing negotiations so it could come to an agreement with Millipore itself outside of court. No details from that executive session have been released as of this time.



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