Before spending more than $100,000 on engineering, and drafting detailed plans, the applicant approached the Board with a Special Permit application for site plan approval only (thereafter “application”).
CannaMountain LLC announced its intention to file its application with an email dated September 12, 2023, to the Board which reads:
Gentlemen.. please put us on agenda to apply for a Special Permit and site plan approval for our licensed cannabis facility at your meeting tomorrow 12 September 2023.
We look forward to working with the town on this project.
CannaMountain LLC thereafter filed its application on September 26, 2023 with the town clerk. Applications are required to be filed with the town clerk; see bylaws chapter 8.2.4 (a), and MGL, c.40A, s.9, par.12.
All the needed actions were done to hold the public hearing.
According to the open meeting law, the agenda for the public hearing had to be posted as usual.
Less than two hours before the town clerk went home, also as usual, she had no agenda to post. It is not the responsibility of the town clerk to ensure the posting of agendas for the Board, it is the responsible of the chair, William Robertson which did not answer the town clerk’s phone calls.
The town clerk finally called me. I typed an agenda and wanted to email it to the town clerk ... the email posted on the website did not work, the email came back! I called the town clerk and she gave me another email address. On the phone with her, she told me that her computer froze! I had to print the agenda and drive to the town hall and hand deliver the document!! Thanks Bill! (It was not the first time.)
The chair, William Robertson, intended to continue the public hearing at the end of the hearing. He was advised by a Board member at that time that a continuation of the hearing mandates a written, and by the Board and applicant signed agreement which needs to be filed with the town clerk; see bylaws chapter 8.2.4 (d) and (f), referencing MGL, c.40A, s.9, par.12.
Robertson, ignorant about the legal requirement, and not open to edification had no concern and stated during the meeting of January 9, 2024, that a verbal agreement was sufficient, that the public hearing was not closed, and that it would still be open, at 49 minutes: 17 Seconds (timestamp to easy find the spot in the video, thereafter in the form 49:17.)
The requirement of a written, signed, and filed with the town clerk agreement is not verbatim part of the bylaws but by reference included; see bylaws chapter 8.2.4 (d) and (f), referencing MGL, c.40A, s.9, par.12, which provides in part:
“The required time limits for a public hearing and said action, may be extended by written agreement between the petitioner and the Special Permit granting authority. A copy of such agreement shall be filed in the office of the city or town clerk.”According to Robertson, the public hearing was continued in his opinion to this day. This was his opinion even after he voted to approve CannaMountain’s application, and even after he signed by remote participation the written decision authored by me; at 49:17. (Robertson was participating remotely through GoToMeeting.com. Kyle Merolla, the secretary of the Board, would sign on Robertson’s behalf in situations like this.)
According to the law, the public hearing closed at the end of the hearing on October 24, 2023, as stated in the decision. The Board thereafter had 90 days to take a vote to prevent a so called “constructive approval” due to inaction by the Board, see bylaws chapter 8.2.4 (e) and (f), referencing MGL, c.40A, s.9 par. 14, which provides in part:
“Failure by the Special Permit granting authority to take final action within said ninety days or extended time, if applicable, shall be deemed to be a grant of the Special Permit.”
Out of experience, I was certain that Robertson could not come up with a written decision even if his life would depend on it ... he did not even know that a written decision was a legal requirement after a vote was taken by the Board. So I did it for him (as so many times before).
I wrote the required decision in case the Board would actually take a vote as planned and announced in the agenda. This time the chair wrote the agenda and I had nothing to do with it. It was actually a good oportunity to get something done as Robertson was not going to be present.
However, a remotely participating Robertson, bewildered first about the written decision did not want to have anything to do with it, stating that the Board would not have asked for the document. He questioned the necessity of such a written document but after the Board took a vote, he finally agreed to sign it in absentia by the secretary, Kyle Merolla, at 1:18:00.
“The Special Permit granting authority shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and setting forth clearly the reason for its decision and of its official actions, copies of all of which shall be filed within fourteen days in the office of the city or town clerk and shall be deemed a public record, and notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, to the parties in interest designated in section eleven, and to every person present at the hearing who requested that notice be sent to him and stated the address to which such notice was to be sent.”The decision I wrote is in the spirit of paragraph 14 and would stand any challenge in court. I filed it with the town clerk, as required, and did so the very next day.
To my knowledge nobody requested a copy of the decision as required in order to get one. Even if somebody would have required a copy and the Board would have failed to follow proper procedures, it would not have any legal consequences for the Board. First of all, nobody filed an appeal during the next twenty days, and even if somebody would have filed a timely appeal, such an appeal would fail as I will explain later.
Back to the decision I authored. Realizing that the chairman of the Board, William or Bill Robertson, would not be able to create such a document, I wrote it. The decision was written anticipating that everybody would vote in favor. I obviously had to keep it under wraps to avoid being accused of influencing the outcome of the vote, or at least being presumpiuous. The fact that I did not present the decision before the vote was taken becomes clear as I provoked the other members by claiming I presented the decision before the Board voted. I was sure that some member of the Board would set the record straight. Sure enough, member Robert Parron set the record straight during the meeting of January 9, 2024, at 6:06.
As I wrote the decision just hours before the meeting of December 12, 2023, and did not even have the time to read it again before I printed the three page document, I failed to notice that the numbering of the paragraphs was not in the right sequence; it went like 1, 2, 3, 4 ,5, 6, 5, 6, 7, 8, 9, instead of 1, 2, 3, 4 ,5, 6, 7, 8, 9, 10, and 11. Also, despite the fact that the decision included the sentences, “The subject of applicant's submission for a Special Permit pursuant Massachusetts General Law (MGL) chapter 40A, s.9, is the approval of a compiled Site Plan Schematic showing the proposed building location,” and, “ The Planning Board’s approval of the applicant’s Special Permit application at this time is only the approval of the Site Plan Schematic,” member Robert Parron requested to change, “Roll call vote on the Applicant’s Special Permit application :” on page 3 to, “Roll call vote on the Applicant’s Special Permit application for applicant’s site plan approval only:”
Member and secretary of the Board, Kyle Merolla, suggested to hand correct the decision so that everybody’s concerns were addressed before everybody signed it. The hand corrected version was thereafter signed by all members before I rushed home to corrected the document and print the corrected version. I then rushed back to the town hall with the corrected version. All members were still at the town hall to signed the corrected version.
Even so Kyle Merolla texted images of the hand corrected version to William Robertson, Robertson insinuated during the meeting of January 9, 2024, 2024, that the corrected version was not a true representation of the hand corrected version, at 18:03 and again at 18:54.
Lack of understanding of bylaws and MGL somehow seem to prevent Robertson to believe that the decision granting CannaMountain’s Special Permit application for a Site Plan would allow CannaMountain LLC to build the facility without any further steps in the permitting process. However, the written decision states clearly, Special Permit and Site Plan approval only in the clearest terms.
During the meeting of January 9, 2024,at 6:20, Robertson the chairman stated, “we approved the site plan and then the document was produced, and it was very unclear about what the base of the document was and what the purpose of the document was ...”
The Board did not request a written decision, the law requires it, bylaw chapter 8.2.6 (a) 1, and MGL, c.40A, s.11. But the chair, who should be writing the decision, unfortunately, is ignorant about the requirements of the bylaws and MGL and is clueless!
At the meeting of January 9, 2024, at 49:35, Robertson stated that he requested the town clerk not to certify the decision ignoring the law and coerce her to violate the bylaw chapter 8.2.4 (f) and MGL, c.40A, s.9, referencing MGL, c.40A, s.11, par. 7. Such certification is a legal requirement. Without certification, the grant or approval of the site plan does not take effect, paragraph 7 provides in part:
A Special Permit, or any extension, modification or renewal thereof, shall not take effect until a copy of the decision bearing the certification of the city or town clerk that 20 days have elapsed after the decision has been filed in the office of the city or town clerk and either that no appeal has been filed or the appeal has been filed within such time, or if it is a Special Permit which has been approved by reason of the failure of the permit granting authority or Special Permit granting authority to act thereon within the time prescribed, a copy of the application for the Special Permit-accompanied by the certification of the city or town clerk stating the fact that the permit granting authority or Special Permit granting authority failed to act within the time prescribed, and whether or not an appeal has been filed within that time, and that the grant of the application resulting from the failure to act has become final, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title.The reader may noticed that MGL always and only refers to “Special Permit” and never to “Site Plan.” MGL does not recognize Site Plan approval and does not provide a mechanism for the permitting process of a Site Plan approval. This conundrum is well known and there is even a thesis written on the subject which I shared with all other members of the Board, including Bill.
“Site Plan Approval criteria shall be the same as the criteria for Special Permit Approval, specified in Section 8.0.8 of the Zoning By-laws of the Town of Holland.”To approve a Site Plan without utilizing the Special Permit mechanism or process is impossible or outside the law. (Do you get it William, or Bill? Did you ever even glance at the bylaws? MGL? You are so much work !!)
Applicants like CannaMountain LLC have rights, and the Board has an obligations to serve the public - not just talk about it - and do so with integrity. Above it all, it is an imperative to treat everybody the same by strict following the bylaws and MGL.
No board is able to please everybody along the permitting process; this makes it even the more important to strictly and impartial follow the laws.
Bill, I think you remember me saying, I’m not here on this Board to look for new friends or out of the need to “belong;” I’m here to ensure that applicants who are entitled to a benefit will get it, and applicants with applications outside the law will not get their way, regardless whether they are popular in Town or not. If I make friends doing this, I would like that!
“Any person aggrieved by a decision of the board of appeals or any Special Permit granting authority ... may appeal to the land court department, the superior court department in which the land concerned is situated or, if the land is situated in Hampden county, either to said land court or, superior court department ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.”
NOTE: During the meetings, I stated several times that a site plan review outside the Special Permit procedure would not need a public hearing unlike a Special Permit site plan review; and William Robertson, as usual, disagreed. Holland's bylaws actually provide for a site plan review outside the Special Permit procedure, it is called, "administrative site plan review," see bylaws chapter 8.1.
UPDATE: For the reader still in doubt and hard to convince (as William Robertson, the chair of the Board,) I found an article on the internet written by a scholar, Mark A Kablack, who did write the follwoing about site plan review as part of a Special Permit, "the concept [of site plan review] is an awkward one ..." and "[w]hen a site plan is subsumed within a special permit process, typically referred to as a 'site plan/special permit,' the site plan review is conducted in accordance with the standards of special permit review."
I added emphasis ... there you have it Bill. Now you can waste some taxpayer's money by getting an opinion by town counsel (who is not the brightest candle on the Christmas tree anyway and most-likely does not get it right to begin with... , but more about this in a separate piece,) or even worst, make the applicant pay for your ignorance ... To read the article written by scholar Mark A Kablack with the title, "The Snags of Site Plan Review," click here!
By the time we met for the meeting of January 9, 2024, the appeals period had already ran its course.
The meeting of January 9, 2024, is an embarrassment to the Board by any standard, best described as a “shitshow.” Associate member Sean O’Brien shared his discuss about the meeting with me. He shortly therafter resigned.
As earlier hinted, the Board’s failure to notify abutters or members which requested to be notified does not invalidate the Board’s decision.
During the meeting of January 9, 2024, at 58:00, Howard Fife claimed that the Board was obligated by law to send a copy of the decision to abutters and everybody who was at the public hearing. Fife may be right as to the obligation to notifying abutters, I was not in charge to do that and have no knowledge whether this happened.
But even if Howard Fife would be right, it does not matter. First of all, he failed to appeal the approval. And even if he would have appealed, his appeal would be dismissed by the higher courts.
Here is what the Supreme Judicial Court of the Commonwealth held in Cappuccio v. Zoning Board of Appeals of Spencer, 398 Mass. 304 (1986), the plaintiff contended that the board’s failure to mail notice of the decision constituted a defect under MGL, c.40A, s.17, and entitled him to a 90-day appeal period, instead of the applicable 20-day time limit for appeals. The Court however held that the 90-day appeal period in s.17 only applies to defects associated with the public hearing required by s.11 and not with defects pertaining to the decision, see Id., at 311. See also Massachusetts Bread Co. v. Brice, 13 Mass. App. Ct. 1053, 1054 (1992). Consequently, parties entitled to notice of the decision find themselves in a “catch-22” situation: Failure of the board to provide notice may certainly prejudice rights, but the party has only 20 days from the filing of the decision to appeal under MGL, c.40A, s.17.
If the party learns of the decision too late to comply with s.17, the party's appel will be dismissed. The only defect which extends the 20 day period to appeal under s.17 is an appeal claiming that the notice of the public hearing was in some way defective.
The Cappuccio court holds that to avoid this result, parties have a “responsibility to inquire periodically of the town clerk whether the board’s decision has been filed”, (Cappucio, at 313,) since the time when the decision is “due” can be computed by reference to s.9, s.11, and s.17 of the Zoning Act, c.40A.
In the situation at hand, Frei filed the decision he authored on December 13, 2023 with the town clerk. January 2, 2024, was therefore the last day an appeal could be filed, unless the public hearing notice requirement is defective.
To listen to the public hearing
For the meeting of December 12, 2023 the meeting when the Board took the vote, click here!
And for the meeting of January 9, 2024, (Robertson’s shitshow), click here!
Since my attempts edifying William Robertson are a lost cause, I will no longer do so. Instead, I will inform involved interested individuals here, on the Holland Blog; I'm sure you heard it before, you can lead a horse to the water, but ...
There is so much going in the wrong direction at the town hall that it is time to re-activate this blog ... there will be more soon!
January 22, 2024, Peter Frei