Development review board reconsiders reconsideration process, decides it didn’t violate open meeting rules

In some ways local government is like ultimate Frisbee: The players — or board members — call their own fouls in most instances.

Usually, the board decides if it is out of bounds.

On Thursday afternoon, Feb. 17, the Charlotte Development Review Board held a special meeting to decide if it had strayed into open meeting regulations.

In the end, the board members reached a consensus of “no harm, no foul.”

The meeting was called to respond to multiple letters of complaint and allegations that at meetings at the end of January and beginning of February the board had committed open meeting violations in discussing reconsideration of decisions about an outdoor education site for Vermont Common School at 2369 Spear Street and about a nine-lot subdivision on just over 124 acres at 125 Lake Road.

Complaints were primarily made because chair Lane Morrison restricted discussions about whether to open the applications to reconsideration hearings to just members of the board.

He said the board had talked with a town attorney and been told it was appropriate for the board to discuss reconsideration hearings for these projects without public input, but if a reconsideration hearing is approved, people will have the opportunity to talk then.

The board decided not to move the Vermont Commons School project to reconsideration but to hold a reconsideration hearing on several of the stipulations the planning commission attached to its approval of the Patricia O’Donnell and Jim Donovan application for a subdivision on Lake Road.

The actual reconsideration will take place at a later meeting and public comments will allowed.

At one point in a Feb. 9 development review board meeting, Morrison threatened to use a gavel to silence audience members who were interrupting the board’s discussion.

Last Tuesday, Feb. 15, Morrison resigned from the development review board. His resignation letter said his resignation was effective immediately.

He added that the switch from a zoning board to the development review board has added lots of work to the volunteer position.

“I felt fully supported by the office staff but realize this assignment is not a good fit for me,” he said. There was no mention in his resignation letter of the previous week’s meeting nor the subsequent brouhaha.

On Thursday afternoon, board member Charles Russell served as interim chair at a special meeting called for the development review board to consider whether it had violated open meeting law.

Russell said board members had tried hard at earlier meetings to make sure their conversation stayed focused on the reconsideration process.

Initially, the board discussed two allegations for open meeting violations from Sarah Thompson of Charlotte who wrote that the board committed a violation when it discussed the reconsideration process and the discussion wasn’t on the agenda.

Although several times they might have strayed into discussing the application itself, Russell said, those discussions got stopped pretty quickly: “We were very conscious of that.”

He said they tried to keep the conversation focused on how the decision process should work and keep out of specifics of the applications

Board member JD Herlihy said he didn’t view having a general discussion about the proper process for holding a reconsideration as a violation of open meeting law.

If not adding it to the agenda was a violation, it was “definitely inadvertent,” he said.

Town planner Larry Lewack pointed out that every meeting begins with a call to board members for last minute changes to the agenda and how important it is that they take advantage of this opportunity.

Both Thompson and planning commission member Bill Stuono said open meeting law was violated when members of the public were not allowed to speak about agenda items.

Russell said two attorneys had told the board it was appropriate for just the board to discuss whether or not to open an application up for reconsideration.

The board cannot hear new evidence or testimony after a preliminary application has been approved, as these projects have been, unless it has been reopened for a reconsideration hearing, Herlihy said.

Selectboard member Frank Tenney said, although a lot of time is often taken up with personal conversations at meetings and this needs to be curbed, he felt the board could have “humored” the public and allowed discussion from the audience.

Tenney and Stuono both asserted that allowing O’Donnell and Donovan’s letter that requested a reconsideration was in fact taking comments from that side of the issue and comments from the other side should have been allowed.

Lewack disagreed: ”There was no testimony taken from the applicants concerning the reconsideration — period.”

The applicant’s letter was not testimony, Russell said, and if he had called it testimony during the discussions, he had misspoken.

“It was not a violation of open meeting law because it was a deliberate deliberation,” Russell said, adding the board is not required in this instance to warn the public about such a session or warn that public comments will not be admitted.

“This was a very troubling meeting. There were so many things that went wrong at this meeting,” Asquith said. “Some of it inadvertent, some of it otherwise.”

The March 9 meeting about the O’Donnell and Donovan application was such a troubled meeting that it led to the board chair stepping down, she said.

Asquith said Morrison gave her incorrect information about the meeting that led her to unnecessarily recuse herself. She said she was told by Morrison she should not even view the meeting via Zoom.

Asquith said the development review board should redo the meeting and reopen the decision about reconsideration of the O’Donnell and Donovan stipulations at another meeting.

Morrison said he recommended Asquith recuse herself because of a letter she wrote opposing the O’Donnell and Donovan application.

She said she would not recuse herself from another meeting on this issue.

Eventually, Herlihy seemed to capture the opinion of the board when he said he believed board members did not violate open meeting law, but that communication from the board about reconsideration requests should be more clearly communicated and clearly indicated in the agenda.

Lewack said as town planner part of his responsibility is to make sure that agendas are clear and if public comment is not going to be allowed at meetings that should also be clear. He admitted that he might have contributed to the confusion and apologized.

“If I contributed to that confusion in any way, my sincere apologies. That was not my intention and that’s kind of how it worked out. I will never forget that,” Lewack said.

There was no formal vote taken, but the board, with the exception of Asquith, appeared to agree it had not violated open meeting law on Feb. 2 or Feb. 9, but it could have done a better job of complying and clearer in communicating.

Just prior to adjournment, Lewack said the development review board has scheduled a special meeting at 7 p.m. this coming Wednesday, March 2, specifically to go over the board’s rules and why public comments are included or excluded from some meetings. A town attorney will be there, too.