Planning Board Accused of Violating Open Meeting Law In Day School Case

Photo: Members of the Belmont Planning Board in June.

The town of Belmont has received a formal complaint from a resident who alleges the town’s Planning Board violated the state’s Open Meeting Law during the design and site plan review of a new building and roadway proposed by the Belmont Day School.

Tim Duncan, who lives across Concord Avenue from a proposed road leading into the private school, filed the complaint with the Town’s Clerk alleging the Board employed small “working groups” to supersede critical discussion that he believed should have been held during the public hearing process.

“[W]e need to make sure the rights of citizens to open, fair and transparent government are protected and respected,” said Duncan, an attorney who filed the complaint on Friday, Aug. 11, three days before what was expected to be the Aug. 14 meeting which the Planning Board was prepared to make its final ruling on the Day School’s proposal.

“The Planning Board’s actions were intentional,” he stated in his complaint to the state, saying residents and groups “with separate and equal interests” were “completely excluded” from participating in the three working groups between the Planning Board and the Day School. 

While he has taken his complaint to the town, Duncan is threatening to file with the Massachusetts Attorney General if the Planning Board does not “do the right thing and go back as necessary to address the problems and issues created by the working group meetings.”

If the Planning Board decides without having “properly” addressed the issues, Duncan will ask the state to annul the board’s decision as provided by the Open Meeting Laws.” 

The result: “That would likely mean that the entire site plan review process begin anew if the school still wanted to pursue its plan. It would also likely leave the parties in limbo until the Attorney General’s office makes its decision –  which could take some time,” he said.

The board has 14 business days to respond to the substance of the complaint.

In April, the private K-8 school brought to the town plans to build a 25,000 sq.-ft. Gymnasium and classroom space dubbed “The Barn” and a driveway/road running from Concord Avenue to the school, traveling adjacent to the town’s Highland Meadow Cemetery.

“It’s every bit as essential on the local level as it is in Washington and no person or organization should be able [to] maneuver or dance around the rules,” said Duncan, who has lived at 699 Concord Ave. for the past seven years.

Decision on Aug. 31

The Aug. 14  Planning Board continued the meeting to Thursday, Aug. 31 at 7 p.m. at the Beech Street Center.

“I felt it was prudent under consultation with [Town Counsel] George Hall and [Senior Town Planner] Jeffrey [Wheeler] to continue the substantive Belmont Day School meeting until we address the open meeting complaint,” said acting Planning Board Chair Barbara Fiacco at an abbreviated meeting Monday at the Beech Street Center.

Fiacco said the board would respond to the claim at the beginning of the Aug. 31 meeting before moving to the public meeting.

The complaint comes as the Planning Board was wrapping up its four-month long review of the project which many abutters and neighbors are highly critical, focusing their objection on the roadway which will create a second entry to the school. Complaints include safety concerns and gridlock worries caused by the one-way driveway, while supporters and those who own burial plots in the cemetery 

A staple of many governmental boards and committees in Belmont, a working group is a small appointed ad hoc group made up of a representative of the town body and the applicant to study a particular question. In most cases, the issue is quite specific; working groups in the Day School application focused on the landscape between the roadway and the cemetery and the construction and upkeep of the road. Once completed, the issue is brought back before the entire board for discussion.

Work Group: Efficient or In The Dark

In past conversations, representatives from town governing boards told the Belmontonian working groups allows subject-matter experts to “get into the weeds” on issues. In the landscaping working group, the board’s Karl Haglund who has a masters degree in landscape architecture from the Harvard Graduate School of Design met with the Day School’s landscape designer to discuss in detail what is needed to create a natural barrier that would satisfy the demands of the board.

While the working group allows for an efficient resolution to sometimes small issues between the two parties, the question of openness has been brought up in the past. In most cases, the working group is made up of only one or two governmental officials, which is less than a quorum which is the minimum number of members that must be present at any of meeting to make the proceedings of that meeting valid.

Also, while working groups are open to the public, many are not included in the public meeting calendar.

In Duncan’s view, the working groups created to discuss Day School issues violated the state’s Open Meeting Law (MGL 30A) because there were no public notice or any official minutes and, Duncan alleges, “the group meetings were not open to the public except for specific individuals who were invited … by the Applicant.”

“What I found most disturbing and problematic about the use of the working groups was that the time and locations of the meetings were not disclosed, and the public and other town officials were forbidden to attend these meetings, while Belmont Day School was apparently welcome to secretly  invite whomever they pleased,” he wrote to the Belmontonian.

In his complaint, Duncan said the closed nature of the proceedings allowed the board member in the working groups to “strongly influence the [Planning Board] in its thinking and direction” which defeats the idea of the group making the decision.

Also, Duncan also notes that quorum requirements were not met in any of the working group deliberations. He pointed to the AG’s Open Meeting Law Guide which he alleges views all working groups as “a separate Public Body” that must adhere to state law which requires open meetings and quorums. 

‘There are a very small number of very limited exceptions to the requirement that all meetings be open to the public and procedures that must be followed before a public body can close the door on citizens and I don’t see any indication that these were met or even considered,” said Duncan.

In Duncan’s view, the Day School proposal which impacts not only neighbors and abutters but also a town asset, the new cemetery, “[t]he Planning Board can’t and doesn’t have the resources to perform their designated role while also advocating and negotiating on behalf of the town on these matters.”

“It’s essential that the town designate other officials to work with town counsel and negotiate the matters separately with Belmont Day School, provide information to the Planning Board to inform the board’s decisions and take action as necessary to protect the town’s and residents’ interests,” he said.

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