By Chea Waters Evans, News Editor
Over 1,000 pages of emails from the Charlotte Zoning Board of Adjustment (ZBA) included a building permit from 1976, a zoning fee schedule from 1989, and several emails in which a zoning board member referred to his colleagues on the board as the “Z Boys.” What those emails and documents didn’t contain was a discussion among ZBA members outlining a change in policy and procedure for future applicants. What they did contain were conversations that took place in advance of a warned application hearing and written statements that contradict their publicly voiced policy.
Emails and documents were obtained via two public records requests by The Charlotte News on Oct. 26 and Oct. 28. No member of the ZBA responded to repeated requests for comment or clarification over the past two weeks, with the exception of Vice Chair Stuart Bennett. On Nov. 2, Bennett wrote in an email, “As I have said before, it’s best practice for ZBA members, like a judge or jury, not to comment.”
On Oct. 26, The Charlotte News requested emails and documents from the ZBA relating to a conditional use application by Carrie Spear and Court Street Associates. The application was submitted to and approved by Zoning Administrator Daniel Morgan, who holds the sole authority in town to approve such applications. He warned and set a hearing for the ZBA’s Oct. 14 meeting.
Spear and her project manager, Dan Goltzman, were prepared at that meeting to present their application for the addition of a deli and upstairs apartment at Spear’s property, Spear’s Store, which is on the corner of Charlotte Hinesburg Road and Spear Street in East Charlotte.
ZBA Chair Frank Tenney recused himself from the hearing based on his personal relationship to Spear as neighbors and the fact this his brother owns Tenney’s Snack Bar and a bottle redemption center next door to Spear’s Store. Bennett led that portion of the Oct. 14 meeting in his place.
At the start of the Spear’s application discussion, Bennett said that the board had decided “internally” that Spear’s application was incomplete and that they had decided upon a “new way” of processing and evaluating applications before they came to the board. He ultimately made a motion that passed 3-1 to deny the application on the grounds that the application is incomplete.
Spear and Goltzman never got to present a word, despite repeatedly suggesting that should the ZBA hear their presentation, many questions on the application could be answered.
The ZBA does not have authority to decide whether or not an application is complete; that decision falls to the zoning administrator, in this case, Morgan.
Town Attorney David Rugh of Stitzel Page & Fletcher responded to The News’ public records request on behalf of Town Administrator Dean Bloch, who is the town records custodian. He redacted most of the emails, citing Vermont law protecting “records of, or internal materials prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.”
From Monday, Sept. 28, to Wednesday, Sept. 30, as well as on Oct. 12, a series of emails, most of which were redacted by Rugh, were written among Morgan, Bloch and all members of the ZBA, including Tenney, who had not yet recused himself from the matter. The subjects of these emails, sent during those periods by Bennett to Morgan, Town Planner Larry Lewack, Tenney and ZBA members Lane Morrison, Matt Zucker and Jonathan Fisher, were titled “Spear Application” and “Spear Store Application.” One email subject read “Re: FW: Re: Re: Spear Store Application,” which indicates that the email had been forwarded and responded to multiple times.
Rugh wrote in an email to The News, “To be clear, in the emails provided to you from September 28th and 29th, the ZBA was discussing and deliberating regarding a decision on the completeness of the Spear Store application and its details, not general policy on processing applications.”
Rugh also wrote, “The deliberations of a public body acting in a quasi-judicial capacity like the Charlotte ZBA, which are often called deliberative sessions, are exempt from the notice and warning requirements of the Open Meeting Law…As a result, emails that are records of the ZBA’s deliberations do not constitute meetings.”
“A Guide to Open Meetings,” published by the Vermont Secretary of State’s office, identified deliberative sessions as such: “A public body may meet without notice or public attendance when it deliberates on its written decision as part of a quasi-judicial proceeding. A quasi-judicial proceeding is a case in which the legal rights of a party are adjudicated, conducted so that all parties may present evidence and cross-examine witnesses and resulting in an appealable written decision.”
In this case, the ZBA had not yet met regarding the application; The Charlotte News appealed the redaction of those emails based on the fact that, if the board had not written a decision or met on the matter, the written materials relating to the application are not yet excluded from public record as part of a quasi-judiciary proceeding. Rugh responded on Nov. 9 with three emails that were previously redacted.
The ZBA’s Rules of Procedure and Ethics, which is posted on the Town of Charlotte website, in section XII, states, “Ex parte communication is prohibited…At each hearing, the Chair shall request that members disclose any ex parte communications. Board members who have received written ex parte communications shall place in the record copies of all written communications received as well as all written responses to those communications. Members shall prepare a memorandum stating the substance of all oral communications received, all responses made and the identity of each person making the ex parte communication, which shall become a part of the record of the proceedings.”
During the Oct. 14 Zoning Board of Adjustment meeting, no member of the ZBA disclosed that emails had been exchanged regarding the application prior to the hearing, nor that the application had been discussed with the zoning administrator, town administrator and town planner.
The Charlotte News also filed a public records request on Oct. 28 for emails and communications relating to the “internal” discussions resulting in policy change that Bennett referenced during the Oct. 14 ZBA meeting. On Monday of this week, Nov. 11, 882 pages of emails and documents concerning this topic were shared. At press time they were still in the process of review, though some notable exchanges stood out.
One email chain of note contradicts what Bennett said during the meeting but also supports his statement that there was frustration among the board members. The emails do not, however, show a conversation that changes the way the board reviews applications, though Bennett said they had discussed and made decisions regarding that process.
Verbal and written exchanges amongst the board need to be legally warned; the “Guide to Open Meetings” says that the laws are in place to, in part, “Discuss all business and take all actions in open meeting, unless an exception in statute applies,” and “Allow members of the public to attend and participate in meetings.”
On Aug. 25 at 1:39 p.m., 30-year ZBA member Jonathan Fisher wrote to the board regarding an application that was on the next agenda, “I think there is a high degree of frustration with incomplete applications.”
At 1:56 p.m., Bennett replied to all, “I think it’s a mistake for the ZBA to change the schedule out of frustration—hold the hearing and see what’s presented and act accordingly.”
Weeks later, during the Oct. 14 meeting, Bennett said that the board had decided not to hold hearings on applications they had deemed incomplete. There was no policy discussion during a meeting or futher written communication that the board agreed as a group to do so.
On July 7, an email from Bennett to the board reads, “Moving on, I think we should insist on complete applications. Table 5.1 lists the requirements. [SENTENCE REDACTED.] Daniel can decide if certain parts of the application can be dispensed with, if for example elevations/rights of way etc. are not relevant. I am going to be a stickler about this. Otherwise, we are hamstrung on approving things ‘as presented’.”
There are no other disclosed discussions or exchanges regarding the policy change in question; when the board collectively decided they were changing the way they look at applications it was not during a public meeting nor was it during an email exchange.
The Charlotte News last week also filed a complaint with the town for violating Vermont Open Meeting Law; the law states that minutes of public meetings should be posted within five days on a town or board’s website; the coronavirus pandemic caused the Vermont Secretary of State’s office to extend that period to 10 days.
On Wednesday, Nov. 4, minutes from one meeting in January 2020 were posted on the Town of Charlotte website by the ZBA. There were no minutes posted for meetings that took place Feb. 26, April 29, May 27, July 22, Aug. 12, Aug. 27, Sept. 9, Sept. 23 or Oct. 14.
By Tuesday, Nov. 10, all meeting minutes were posted on the town web site.
Editor’s note: Zoning Board of Adjustment member Matt Zucker is married to Claudia Marshall, who is the publisher of The Charlotte News.