Re: [HUAB] The not-pretty answer to why the electronic billboard proposal for 88-94 Lincoln Street, Brighton is back on the agenda after being rejected a few months ago
Eva Webster
It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
--There have been questions raised here and elsewhere as to why the issue of a zoning variance for an electronic billboard at 88-94 Lincoln Street, Brighton, is back on the agenda at the zoning Board of Appeal for December 19th, when it was rejected only a few months ago. Well, here’s the story:
The request for a variance was denied at a hearing on May 23, 2017 – after considerable community opposition was presented. The resurfacing of this variance request was surprising because, under the Boston Zoning Code, an application that is denied is not supposed to be able to come up for a hearing again for a year – unless the denial was, in essence, specifically “without prejudice” (or unless there are changes to the application, and in this case there are no changes). It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
In my opinion, what happened here – if the Board were to stick with its so-called “decision” -- violated the Open Meeting Law. You can’t have, under the Open Meeting Law, a public hearing where a decision is made in the public view, and then a written decision reflecting an entirely different result. So, I filed a formal written complaint under the Open Meeting Law last week asking that the matter be taken off the agenda. (If you’re interested in the details, it’s attached).
By the way, what often happens after Board of Appeal hearings is that the lawyer for the applicant prepares a draft written decision and then submits it to be signed by the Board. (This is sometimes done for regular court decisions, too, in Massachusetts courts, because it’s considered a timesaver ). In the Board’s case, this process is viewed as a timesaver for the Board and the applicant. The draft written decision submitted by the applicant’s lawyer is supposed to, of course, be consistent with what occurred at the hearing. In this case, the draft decision was submitted by the applicant’s lawyer, and it was not consistent with what happened at the hearing.
BOTTOM LINE: let’s see what happens. The lawyer for the applicant – who, by the way, used to be the staff lawyer for the Board of Appeal -- has been notified about my Open Meeting Law challenge pointing out that the written “decision” doesn’t match what was actually done at the hearing. The applicant may decide to withdraw the application and pull out of the hearing to avoid the controversy. If not, the Board of Appeal will be forced to address the issue one way or the other at the hearing on December 19th.
BY THE WAY: Even if the applicant for the electronic billboard at 88-94 Lincoln pulls out of the hearing on December 19th, the hearing for the 64 Lincoln Street billboard will still go forward and that is an important agenda item, too. We should send a message that Brighton does not welcome the visual pollution of billboards, and insist that the principles of the zoning code be enforced.
Joanne D’Alcomo
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Mike D
On Friday, December 15, 2017 at 3:45:27 PM UTC-5, Eva Webster wrote:
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Joanne D'Alcomo
Contrary to what has been stated in the email below, there was no “mischaracterization” by me of what occurred at the Board of Appeal hearing on May 23, 2017 concerning the variance request for an electronic billboard at 88-94 Lincoln. My description is entirely accurate. The suggestion in the email below that the words “WITH PREJUDICE” would have to be uttered at a Board of Appeal hearing in order for a denial to have the legal effect of being “WITH PREJUDICE” and that such a vote would have to be “unanimous" are simply incorrect.
In fact, the template for the “minutes” of the Board of Appeal reflect the fact that a denial is “WITH PREJUDICE.” Let me explain. Attached are minutes of the May 23, 2017 hearing on the variance application for 88-94 Lincoln Street . Page two of the minutes show the template used by the Board of Appeal for minutes. As you can see, there are only two options for a vote denying an application: (a) a simple denial on a line that says “DENIED” and (b) another line that says “DENIED WITHOUT PREJUDICE.” There is no line for “DENIED WITH PREJUDICE” because, legally, a denial at the Board has the effect of being a denial “WITH PREJUDICE.”
Not to bore you with the details, but for anyone who's interested I'm happy to provide a little more information about the legal framework to aid in understanding this procedural issue at the Board of Appeal. The background is that it takes a favorable vote of five members of the Board of Appeal for a variance request (or other type of appeal to the Board) to be successful. This requirement is in Section 7 of the Boston Zoning Enabling Act, which is the law that set up the Board of Appeal. If a variance request fails to get the necessary five favorable votes, the variance request is in effect “denied.”
Another provision relating to the Board of Appeal is also important in understanding this procedure. Article 5, Section 3 of the Zoning Code provides that if the Board of Appeal makes an “adverse decision” -- and, of course, a denial or failure to get the necessary five favorable votes is an "adverse decision" -- the applicant can’t come back to the Board of Appeal FOR ONE YEAR unless five members of the Board of Appeal “concur” that the applicant may do so. That’s where the issue of a denial “without prejudice” vote comes into play and becomes significant. If five members of the Board decide that the "adverse decision" is specifically “without prejudice,” that’s another way -- in the Board's view -- of the Board saying that the "adverse decision" shouldn't "prejudice" the applicant and thus shows that the applicant has the concurring vote of five members to come back sooner. (The word "prejudice" here means, as a practical matter, "harm" the applicant in any way procedurally. If the decision is "without prejudice," it's as if the decision never happened.)
So, because of the requirements of this one-year limitation in the Zoning Code, a “WITHOUT PREJUDICE” vote must be a specifically articulated vote. (Or, five members of the Board could vote favorably on a separate procedural motion to “waive” the requirements of Article 5, Section 3 for the applicant and that would let the applicant come back sooner).
In the case of the variance request for the proposed electronic billboard at 88-94 Lincoln St, the applicant failed to get five favorable votes at the hearing on May 23, 2017. As a result, the variance was "denied" as shown in the attached official minutes. There was no mention at the hearing of the decision being "without prejudice," and no vote on making the denial "without prejudice." Consequently, the minutes correctly reflected that the variance request was "denied," NOT "denied without prejudice." The twist came when the attorney for the applicant submitted a draft written decision sometime after the hearing. That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
Hope this helps in understanding.
Joanne D'Alcomo
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Eva Webster
Contrary to what has been stated in the email below, there was no “mischaracterization” by me of what occurred at the Board of Appeal hearing on May 23, 2017 concerning the variance request for an electronic billboard at 88-94 Lincoln. My description is entirely accurate. The suggestion in the email below that the words “WITH PREJUDICE” would have to be uttered at a Board of Appeal hearing in order for a denial to have the legal effect of being “WITH PREJUDICE” and that such a vote would have to be “unanimous" are simply incorrect.
In fact, the template for the “minutes” of the Board of Appeal reflect the fact that a denial is “WITH PREJUDICE.” Let me explain. Attached are minutes of the May 23, 2017 hearing on the variance application for 88-94 Lincoln Street (I had an incorrect page 1 in my attachment sent earlier). Page two of the minutes show the template used by the Board of Appeal for minutes. As you can see, there are only two options for a vote denying an application: (a) a simple denial on a line that says “DENIED” and (b) another line that says “DENIED WITHOUT PREJUDICE.” There is no line for “DENIED WITH PREJUDICE” because, legally, a denial at the Board has the effect of being a denial “WITH PREJUDICE.”
Not to bore you with the details, but for anyone who's interested I'm happy to provide a little more information about the legal framework to aid in understanding this procedural issue at the Board of Appeal. The background is that it takes a favorable vote of five members of the Board of Appeal for a variance request (or other type of appeal to the Board) to be successful. This requirement is in Section 7 of the Boston Zoning Enabling Act, which is the law that set up the Board of Appeal. If a variance request fails to get the necessary five favorable votes, the variance request is in effect “denied.”
Another provision relating to the Board of Appeal is also important in understanding this procedure. Article 5, Section 3 of the Zoning Code provides that if the Board of Appeal makes an “adverse decision” -- and, of course, a denial or failure to get the necessary five favorable votes is an "adverse decision" -- the applicant can’t come back to the Board of Appeal FOR ONE YEAR unless five members of the Board of Appeal “concur” that the applicant may do so. That’s where the issue of a denial “without prejudice” vote comes into play and becomes significant. If five members of the Board decide that the "adverse decision" is specifically “without prejudice,” that’s another way -- in the Board's view -- of the Board saying that the "adverse decision" shouldn't "prejudice" the applicant and thus shows that the applicant has the concurring vote of five members to come back sooner. (The word "prejudice" here means, as a practical matter, "harm" the applicant in any way procedurally. If the decision is "without prejudice," it's as if the decision never happened.)
So, because of the requirements of this one-year limitation in the Zoning Code, a “WITHOUT PREJUDICE” vote must be a specifically articulated vote. (Or, five members of the Board could vote favorably on a separate procedural motion to “waive” the requirements of Article 5, Section 3 for the applicant and that would let the applicant come back sooner).
In the case of the variance request for the proposed electronic billboard at 88-94 Lincoln St, the applicant failed to get five favorable votes at the hearing on May 23, 2017. As a result, the variance was "denied" as shown in the attached official minutes. There was no mention at the hearing of the decision being "without prejudice," and no vote on making the denial "without prejudice." Consequently, the minutes correctly reflected that the variance request was "denied," NOT "denied without prejudice." The twist came when the attorney for the applicant submitted a draft written decision sometime after the hearing. That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
Hope this helps in understanding.
Joanne D'Alcomo
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AngelaT
Thanks Joanne for such clear explanation and lesson about the voting process and what it means when the decision is made by the Board of Appeal.
That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
What can we do about this one? I went to the Board of Appeal hearing once and never want to be there again. Most of the case, the rich people win no matter what. Money does make a big difference on this Board of Appeal hearing process. For the working class people, we will need to take the whole working day off in order to be there to the particular hearing or case; and I won’t want to do it again.
Best,
Angela
From: allstonbr...@googlegroups.com [mailto:allstonbr...@googlegroups.com]
On Behalf Of Joanne D'Alcomo
Sent: Friday, December 15, 2017 9:14 PM
To: allstonbr...@googlegroups.com
Subject: Re: [AB2006] Re: [HUAB] The not-pretty answer to why the electronic billboard proposal for 88-94 Lincoln Street, Brighton is back on the agenda after being rejected a few months ago
Contrary to what has been stated in the email below, there was no “mischaracterization” by me of what occurred at the Board of Appeal hearing on May 23, 2017 concerning the variance request for an electronic billboard at 88-94 Lincoln. My description is entirely accurate. The suggestion in the email below that the words “WITH PREJUDICE” would have to be uttered at a Board of Appeal hearing in order for a denial to have the legal effect of being “WITH PREJUDICE” and that such a vote would have to be “unanimous" are simply incorrect.
In fact, the template for the “minutes” of the Board of Appeal reflect the fact that a denial is “WITH PREJUDICE.” Let me explain. Attached are minutes of the May 23, 2017 hearing on the variance application for 88-94 Lincoln Street . Page two of the minutes show the template used by the Board of Appeal for minutes. As you can see, there are only two options for a vote denying an application: (a) a simple denial on a line that says “DENIED” and (b) another line that says “DENIED WITHOUT PREJUDICE.” There is no line for “DENIED WITH PREJUDICE” because, legally, a denial at the Board has the effect of being a denial “WITH PREJUDICE.”
Not to bore you with the details, but for anyone who's interested I'm happy to provide a little more information about the legal framework to aid in understanding this procedural issue at the Board of Appeal. The background is that it takes a favorable vote of five members of the Board of Appeal for a variance request (or other type of appeal to the Board) to be successful. This requirement is in Section 7 of the Boston Zoning Enabling Act, which is the law that set up the Board of Appeal. If a variance request fails to get the necessary five favorable votes, the variance request is in effect “denied.”
Another provision relating to the Board of Appeal is also important in understanding this procedure. Article 5, Section 3 of the Zoning Code provides that if the Board of Appeal makes an “adverse decision” -- and, of course, a denial or failure to get the necessary five favorable votes is an "adverse decision" -- the applicant can’t come back to the Board of Appeal FOR ONE YEAR unless five members of the Board of Appeal “concur” that the applicant may do so. That’s where the issue of a denial “without prejudice” vote comes into play and becomes significant. If five members of the Board decide that the "adverse decision" is specifically “without prejudice,” that’s another way -- in the Board's view -- of the Board saying that the "adverse decision" shouldn't "prejudice" the applicant and thus shows that the applicant has the concurring vote of five members to come back sooner. (The word "prejudice" here means, as a practical matter, "harm" the applicant in any way procedurally. If the decision is "without prejudice," it's as if the decision never happened.)
So, because of the requirements of this one-year limitation in the Zoning Code, a “WITHOUT PREJUDICE” vote must be a specifically articulated vote. (Or, five members of the Board could vote favorably on a separate procedural motion to “waive” the requirements of Article 5, Section 3 for the applicant and that would let the applicant come back sooner).
In the case of the variance request for the proposed electronic billboard at 88-94 Lincoln St, the applicant failed to get five favorable votes at the hearing on May 23, 2017. As a result, the variance was "denied" as shown in the attached official minutes. There was no mention at the hearing of the decision being "without prejudice," and no vote on making the denial "without prejudice." Consequently, the minutes correctly reflected that the variance request was "denied," NOT "denied without prejudice." The twist came when the attorney for the applicant submitted a draft written decision sometime after the hearing. That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
Hope this helps in understanding.
Joanne D'Alcomo
On Fri, Dec 15, 2017 at 3:45 PM, Eva Webster <evawe...@comcast.net> wrote:
On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-o...@googlegroups.com on behalf of dal...@comcast.net> wrote:
It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
I’m afraid this is an incorrect characterization of what happened in the ZBA hearing regarding the 88-94 Lincoln St. billboard (the first sentence above implies that the ZBA ruled “with prejudice”).
I was in that hearing on May 23, and I have no recollection of the ZBA turning that billboard down with prejudice (those words were not spoken). Also, the vote was not unanimous — and only a unanimous rejection would likely indicate a rejection with prejudice (I assume).
To make sure, I listened to the relevant part of the recording from that hearing (it’s on youtube - https://www.youtube.com/watch?v=A3-M8OtVXC8&t=83s — advance the time bar to 23:00). Again, I could hear nothing that indicates that this was a rejection “with prejudice”. The strength of the opposition in the hearing is no proof that the ZBA’s vote intended the decision to be “with prejudice”.
To think of it, throughout the years, I have never heard the ZBA Chairperson or other ZBA members clearly state in any hearing if their vote is with or without prejudice (although I think they should do that). It appears that this is something that the ZBA, in conjunction with the Mayor’s Office, is deciding behind the scenes.
What’s interesting is that in the May 23 hearing, the Mayor’s Office representative (Allston-Brighton Liaison) spoke in support of that billboard (while the BPDA representative was wishy-washy). Obviously, the Mayor’s Office does what the Mayor wants.
There is no reason to believe that the Mayor would suddenly change his position on this billboard just because the ZBA had a non-unanimous vote rejecting it (with, or without prejudice, it doesn’t matter — because there are tricks to overcome “with prejudice” decisions — as happened with 89 Brighton Ave., a development that was turned down “with prejudice”, but came back one year later with very minimal changes, and it was approved — although it is now being appealed in court).
Projects generally don’t come back to the ZBA unless the proponents have a reason to believe they will prevail on second try. Also, ZBA agendas are crowded, and it’s hard to secure a hearing when you already had a hearing and lost. So I have a strong gut feeling that this billboard is supported on the high level in City Hall — which is why it has resurfaced only 7 months after it was rejected.
Allston-Brighton does not need billboards, period. If the ZBA votes in favor of it nevertheless, the abutters will have an option to appeal to court, but that is financially burdensome — so it would be best if the community prevailed in the hearing on Dec. 19. The Mayor is key to that.
On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-o...@googlegroups.com on behalf of dal...@comcast.net> wrote:
There have been questions raised here and elsewhere as to why the issue of a zoning variance for an electronic billboard at 88-94 Lincoln Street, Brighton, is back on the agenda at the zoning Board of Appeal for December 19th, when it was rejected only a few months ago. Well, here’s the story:
The request for a variance was denied at a hearing on May 23, 2017 – after considerable community opposition was presented. The resurfacing of this variance request was surprising because, under the Boston Zoning Code, an application that is denied is not supposed to be able to come up for a hearing again for a year – unless the denial was, in essence, specifically “without prejudice” (or unless there are changes to the application, and in this case there are no changes). It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
In my opinion, what happened here – if the Board were to stick with its so-called “decision” -- violated the Open Meeting Law. You can’t have, under the Open Meeting Law, a public hearing where a decision is made in the public view, and then a written decision reflecting an entirely different result. So, I filed a formal written complaint under the Open Meeting Law last week asking that the matter be taken off the agenda. (If you’re interested in the details, it’s attached).
By the way, what often happens after Board of Appeal hearings is that the lawyer for the applicant prepares a draft written decision and then submits it to be signed by the Board. (This is sometimes done for regular court decisions, too, in Massachusetts courts, because it’s considered a timesaver ). In the Board’s case, this process is viewed as a timesaver for the Board and the applicant. The draft written decision submitted by the applicant’s lawyer is supposed to, of course, be consistent with what occurred at the hearing. In this case, the draft decision was submitted by the applicant’s lawyer, and it was not consistent with what happened at the hearing.
BOTTOM LINE: let’s see what happens. The lawyer for the applicant – who, by the way, used to be the staff lawyer for the Board of Appeal -- has been notified about my Open Meeting Law challenge pointing out that the written “decision” doesn’t match what was actually done at the hearing. The applicant may decide to withdraw the application and pull out of the hearing to avoid the controversy. If not, the Board of Appeal will be forced to address the issue one way or the other at the hearing on December 19th.
BY THE WAY: Even if the applicant for the electronic billboard at 88-94 Lincoln pulls out of the hearing on December 19th, the hearing for the 64 Lincoln Street billboard will still go forward and that is an important agenda item, too. We should send a message that Brighton does not welcome the visual pollution of billboards, and insist that the principles of the zoning code be enforced.
Joanne D’Alcomo
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Joanne D'Alcomo
If I didn’t make it clear before, let me make it clear now: I HAVE brought the issue to the attention of the Board of Appeal. That was the whole point of the formal Open Meeting Law complaint! I first brought the issue to the attention of the Board lawyer on November 29. I then followed up with an informal Open Meeting Law complaint filed with the Board. Then, I filed the formal Complaint with the Board’s lawyer last week. (One is required to file the Open Meeting Law complaint directly with the entity that one believes has violated the Open Meeting Law unless one proceeds directly to court by filing a lawsuit ). In fact, I met with the lawyer for the Board of Appeal Friday afternoon about the issue. As I said in my email yesterday morning, either the lawyer for the applicant will decide to withdraw the application from the agenda for Tuesday’s hearing, or the Board itself will have to address the issue at the hearing .
As for your questions:
1. If the Board of Appeal were to go forward with this application on Tuesday and grant the variance, the ability to challenge to the decision would not be limited to abutters. If it were determined that the Open Meeting Law was violated –and anyone can bring a challenge under the Open Meeting Law, not just abutters – one of the remedies could be to invalidate the decision.
2. If a variance application is denied, and the application for a variance is CHANGED in a way that the Board (and, if challenged, the Court) deems a change that makes the application different from what was previously decided adversely, the applicant does NOT have to wait a year. The one-year limitation prohibits the applicant from submitting the SAME application sooner than one year. (In this case, there is no dispute that 88-94 Lincoln has submitted the same application).
3. How many times can a variance application go back to the Board of Appeal after it is denied? As I read it: every year, in perpetuity. I see nothing in the Zoning Enabling Act or the Zoning Code that prohibits an applicant who submits a variance application that is denied from coming back to the Board year after year.
Joanne D’Alcomo
Thanks for the explanation. You are right, and I was mistaken in the message I sent at 3:45 pm.It was only after I saw the documents that Mike forwarded around 7:30 pm (which you had seen earlier, and I had not), it became clear to me that when the ZBA denies an application, it is automatically denied “with prejudice” (very weak “prejudice” that goes away after a year), and they don’t even have to utter those words.So I agree — the official decision dated October 31st, which states the application was denied “without prejudice”, does not reflect the reality of the May 23 hearing. Either something fishy happened, or Matthew Fitzgerald, the City attorney who handles ZBA matters, made an error when he accepted the erroneous draft decision that was penned by the proponent’s lawyer.According to what transpired in the May 23 hearing, the upcoming hearing shouldn’t be taking place at this time. The earliest this application can come back for a ZBA vote would have to be in the last week of May 2018 (and the proposal would have to be materially different, right?) — assuming the ZBA acknowledges the error in the decision that was signed on October 31.Shouldn’t someone (perhaps Councilor Ciommo) bring that error to the ZBA’s attention, and ask that the case be taken off their December 19th agenda? On the other hand, if the application gets heard and the ZBA votes in favor — wouldn’t it make it relatively easy for abutters to have it struck down in court?Also, I’m curious — how many times can an application for zoning variances come back to the ZBA after it was denied? Since a regular “denial” is only in effect for a year, because after that, the project can be slightly changed and come back, and it can be “denied” again — when is something finally dead for good?
On 12/15/17, 9:09 PM, "Joanne D'Alcomo" <homeowners-union-of-allston-brig...@googlegroups.com on behalf of dal...@comcast.net> wrote:
Contrary to what has been stated in the email below, there was no “mischaracterization” by me of what occurred at the Board of Appeal hearing on May 23, 2017 concerning the variance request for an electronic billboard at 88-94 Lincoln. My description is entirely accurate. The suggestion in the email below that the words “WITH PREJUDICE” would have to be uttered at a Board of Appeal hearing in order for a denial to have the legal effect of being “WITH PREJUDICE” and that such a vote would have to be “unanimous" are simply incorrect.
In fact, the template for the “minutes” of the Board of Appeal reflect the fact that a denial is “WITH PREJUDICE.” Let me explain. Attached are minutes of the May 23, 2017 hearing on the variance application for 88-94 Lincoln Street (I had an incorrect page 1 in my attachment sent earlier). Page two of the minutes show the template used by the Board of Appeal for minutes. As you can see, there are only two options for a vote denying an application: (a) a simple denial on a line that says “DENIED” and (b) another line that says “DENIED WITHOUT PREJUDICE.” There is no line for “DENIED WITH PREJUDICE” because, legally, a denial at the Board has the effect of being a denial “WITH PREJUDICE.”
Not to bore you with the details, but for anyone who's interested I'm happy to provide a little more information about the legal framework to aid in understanding this procedural issue at the Board of Appeal. The background is that it takes a favorable vote of five members of the Board of Appeal for a variance request (or other type of appeal to the Board) to be successful. This requirement is in Section 7 of the Boston Zoning Enabling Act, which is the law that set up the Board of Appeal. If a variance request fails to get the necessary five favorable votes, the variance request is in effect “denied.”
Another provision relating to the Board of Appeal is also important in understanding this procedure. Article 5, Section 3 of the Zoning Code provides that if the Board of Appeal makes an “adverse decision” -- and, of course, a denial or failure to get the necessary five favorable votes is an "adverse decision" -- the applicant can’t come back to the Board of Appeal FOR ONE YEAR unless five members of the Board of Appeal “concur” that the applicant may do so. That’s where the issue of a denial “without prejudice” vote comes into play and becomes significant. If five members of the Board decide that the "adverse decision" is specifically “without prejudice,” that’s another way -- in the Board's view -- of the Board saying that the "adverse decision" shouldn't "prejudice" the applicant and thus shows that the applicant has the concurring vote of five members to come back sooner. (The word "prejudice" here means, as a practical matter, "harm" the applicant in any way procedurally. If the decision is "without prejudice," it's as if the decision never happened.)
So, because of the requirements of this one-year limitation in the Zoning Code, a “WITHOUT PREJUDICE” vote must be a specifically articulated vote. (Or, five members of the Board could vote favorably on a separate procedural motion to “waive” the requirements of Article 5, Section 3 for the applicant and that would let the applicant come back sooner).
In the case of the variance request for the proposed electronic billboard at 88-94 Lincoln St, the applicant failed to get five favorable votes at the hearing on May 23, 2017. As a result, the variance was "denied" as shown in the attached official minutes. There was no mention at the hearing of the decision being "without prejudice," and no vote on making the denial "without prejudice." Consequently, the minutes correctly reflected that the variance request was "denied," NOT "denied without prejudice." The twist came when the attorney for the applicant submitted a draft written decision sometime after the hearing. That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
Hope this helps in understanding.
Joanne D'Alcomo
Begin forwarded message:
From: Eva Webster <evawe...@comcast.net>
Date: December 15, 2017 at 3:45:22 PM EST
To: Homeowners Union of Allston-Brighton <homeowners-union-of-allston-brig...@googlegroups.com>, <cleveland-circle-community@googlegroups.com>
Cc: AllstonBrighton2006 <allstonbrighton2006@googlegroups.com>
Subject: [AB2006] Re: [HUAB] The not-pretty answer to why the electronic billboard proposal for 88-94 Lincoln Street, Brighton is back on the agenda after being rejected a few months ago
On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-of-allston-brig...@googlegroups.com on behalf of dal...@comcast.net> wrote:It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
I’m afraid this is an incorrect characterization of what happened in the ZBA hearing regarding the 88-94 Lincoln St. billboard (the first sentence above implies that the ZBA ruled “with prejudice”).I was in that hearing on May 23, and I have no recollection of the ZBA turning that billboard down with prejudice (those words were not spoken). Also, the vote was not unanimous — and only a unanimous rejection would likely indicate a rejection with prejudice (I assume).To make sure, I listened to the relevant part of the recording from that hearing (it’s on youtube - https://www.youtube.com/watch?v=A3-M8OtVXC8&t=83s — advance the time bar to 23:00). Again, I could hear nothing that indicates that this was a rejection “with prejudice”. The strength of the opposition in the hearing is no proof that the ZBA’s vote intended the decision to be “with prejudice”.To think of it, throughout the years, I have never heard the ZBA Chairperson or other ZBA members clearly state in any hearing if their vote is with or without prejudice (although I think they should do that). It appears that this is something that the ZBA, in conjunction with the Mayor’s Office, is deciding behind the scenes.What’s interesting is that in the May 23 hearing, the Mayor’s Office representative (Allston-Brighton Liaison) spoke in support of that billboard (while the BPDA representative was wishy-washy). Obviously, the Mayor’s Office does what the Mayor wants.There is no reason to believe that the Mayor would suddenly change his position on this billboard just because the ZBA had a non-unanimous vote rejecting it (with, or without prejudice, it doesn’t matter — because there are tricks to overcome “with prejudice” decisions — as happened with 89 Brighton Ave., a development that was turned down “with prejudice”, but came back one year later with very minimal changes, and it was approved — although it is now being appealed in court).Projects generally don’t come back to the ZBA unless the proponents have a reason to believe they will prevail on second try. Also, ZBA agendas are crowded, and it’s hard to secure a hearing when you already had a hearing and lost. So I have a strong gut feeling that this billboard is supported on the high level in City Hall — which is why it has resurfaced only 7 months after it was rejected.Allston-Brighton does not need billboards, period. If the ZBA votes in favor of it nevertheless, the abutters will have an option to appeal to court, but that is financially burdensome — so it would be best if the community prevailed in the hearing on Dec. 19. The Mayor is key to that.On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-of-allston-brig...@googlegroups.com on behalf of dal...@comcast.net> wrote:
There have been questions raised here and elsewhere as to why the issue of a zoning variance for an electronic billboard at 88-94 Lincoln Street, Brighton, is back on the agenda at the zoning Board of Appeal for December 19th, when it was rejected only a few months ago. Well, here’s the story:
The request for a variance was denied at a hearing on May 23, 2017 – after considerable community opposition was presented. The resurfacing of this variance request was surprising because, under the Boston Zoning Code, an application that is denied is not supposed to be able to come up for a hearing again for a year – unless the denial was, in essence, specifically “without prejudice” (or unless there are changes to the application, and in this case there are no changes). It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
In my opinion, what happened here – if the Board were to stick with its so-called “decision” -- violated the Open Meeting Law. You can’t have, under the Open Meeting Law, a public hearing where a decision is made in the public view, and then a written decision reflecting an entirely different result. So, I filed a formal written complaint under the Open Meeting Law last week asking that the matter be taken off the agenda. (If you’re interested in the details, it’s attached).
By the way, what often happens after Board of Appeal hearings is that the lawyer for the applicant prepares a draft written decision and then submits it to be signed by the Board. (This is sometimes done for regular court decisions, too, in Massachusetts courts, because it’s considered a timesaver ). In the Board’s case, this process is viewed as a timesaver for the Board and the applicant. The draft written decision submitted by the applicant’s lawyer is supposed to, of course, be consistent with what occurred at the hearing. In this case, the draft decision was submitted by the applicant’s lawyer, and it was not consistent with what happened at the hearing.
BOTTOM LINE: let’s see what happens. The lawyer for the applicant – who, by the way, used to be the staff lawyer for the Board of Appeal -- has been notified about my Open Meeting Law challenge pointing out that the written “decision” doesn’t match what was actually done at the hearing. The applicant may decide to withdraw the application and pull out of the hearing to avoid the controversy. If not, the Board of Appeal will be forced to address the issue one way or the other at the hearing on December 19th.
BY THE WAY: Even if the applicant for the electronic billboard at 88-94 Lincoln pulls out of the hearing on December 19th, the hearing for the 64 Lincoln Street billboard will still go forward and that is an important agenda item, too. We should send a message that Brighton does not welcome the visual pollution of billboards, and insist that the principles of the zoning code be enforced.
Joanne D’Alcomo
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Joanne D'Alcomo
Thanks Joanne for such clear explanation and lesson about the voting process and what it means when the decision is made by the Board of Appeal.
That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
What can we do about this one? I went to the Board of Appeal hearing once and never want to be there again. Most of the case, the rich people win no matter what. Money does make a big difference on this Board of Appeal hearing process. For the working class people, we will need to take the whole working day off in order to be there to the particular hearing or case; and I won’t want to do it again.
Best,
Angela
From: allstonbrighton2006@googlegroups.com [mailto:allstonbrighton2006@googlegroups.com] On Behalf Of Joanne D'Alcomo
Sent: Friday, December 15, 2017 9:14 PM
To: allstonbrighton2006@googlegroups.com
Subject: Re: [AB2006] Re: [HUAB] The not-pretty answer to why the electronic billboard proposal for 88-94 Lincoln Street, Brighton is back on the agenda after being rejected a few months ago
Contrary to what has been stated in the email below, there was no “mischaracterization” by me of what occurred at the Board of Appeal hearing on May 23, 2017 concerning the variance request for an electronic billboard at 88-94 Lincoln. My description is entirely accurate. The suggestion in the email below that the words “WITH PREJUDICE” would have to be uttered at a Board of Appeal hearing in order for a denial to have the legal effect of being “WITH PREJUDICE” and that such a vote would have to be “unanimous" are simply incorrect.
In fact, the template for the “minutes” of the Board of Appeal reflect the fact that a denial is “WITH PREJUDICE.” Let me explain. Attached are minutes of the May 23, 2017 hearing on the variance application for 88-94 Lincoln Street . Page two of the minutes show the template used by the Board of Appeal for minutes. As you can see, there are only two options for a vote denying an application: (a) a simple denial on a line that says “DENIED” and (b) another line that says “DENIED WITHOUT PREJUDICE.” There is no line for “DENIED WITH PREJUDICE” because, legally, a denial at the Board has the effect of being a denial “WITH PREJUDICE.”
Not to bore you with the details, but for anyone who's interested I'm happy to provide a little more information about the legal framework to aid in understanding this procedural issue at the Board of Appeal. The background is that it takes a favorable vote of five members of the Board of Appeal for a variance request (or other type of appeal to the Board) to be successful. This requirement is in Section 7 of the Boston Zoning Enabling Act, which is the law that set up the Board of Appeal. If a variance request fails to get the necessary five favorable votes, the variance request is in effect “denied.”
Another provision relating to the Board of Appeal is also important in understanding this procedure. Article 5, Section 3 of the Zoning Code provides that if the Board of Appeal makes an “adverse decision” -- and, of course, a denial or failure to get the necessary five favorable votes is an "adverse decision" -- the applicant can’t come back to the Board of Appeal FOR ONE YEAR unless five members of the Board of Appeal “concur” that the applicant may do so. That’s where the issue of a denial “without prejudice” vote comes into play and becomes significant. If five members of the Board decide that the "adverse decision" is specifically “without prejudice,” that’s another way -- in the Board's view -- of the Board saying that the "adverse decision" shouldn't "prejudice" the applicant and thus shows that the applicant has the concurring vote of five members to come back sooner. (The word "prejudice" here means, as a practical matter, "harm" the applicant in any way procedurally. If the decision is "without prejudice," it's as if the decision never happened.)
So, because of the requirements of this one-year limitation in the Zoning Code, a “WITHOUT PREJUDICE” vote must be a specifically articulated vote. (Or, five members of the Board could vote favorably on a separate procedural motion to “waive” the requirements of Article 5, Section 3 for the applicant and that would let the applicant come back sooner).
In the case of the variance request for the proposed electronic billboard at 88-94 Lincoln St, the applicant failed to get five favorable votes at the hearing on May 23, 2017. As a result, the variance was "denied" as shown in the attached official minutes. There was no mention at the hearing of the decision being "without prejudice," and no vote on making the denial "without prejudice." Consequently, the minutes correctly reflected that the variance request was "denied," NOT "denied without prejudice." The twist came when the attorney for the applicant submitted a draft written decision sometime after the hearing. That draft written decision showed a different result -- a denial "without prejudice." (The decision was not signed until October 31, 2017). That written decision is, in my opinion, invalid, because no public vote was taken making the denial "without prejudice." (In fact, no private vote was taken making it "without prejudice" either!)
Hope this helps in understanding.
Joanne D'Alcomo
On Fri, Dec 15, 2017 at 3:45 PM, Eva Webster <evawe...@comcast.net> wrote:
On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-of-allston-brig...@googlegroups.com on behalf of dal...@comcast.net> wrote:
It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
I’m afraid this is an incorrect characterization of what happened in the ZBA hearing regarding the 88-94 Lincoln St. billboard (the first sentence above implies that the ZBA ruled “with prejudice”).
I was in that hearing on May 23, and I have no recollection of the ZBA turning that billboard down with prejudice (those words were not spoken). Also, the vote was not unanimous — and only a unanimous rejection would likely indicate a rejection with prejudice (I assume).
To make sure, I listened to the relevant part of the recording from that hearing (it’s on youtube - https://www.youtube.com/watch?v=A3-M8OtVXC8&t=83s — advance the time bar to 23:00). Again, I could hear nothing that indicates that this was a rejection “with prejudice”. The strength of the opposition in the hearing is no proof that the ZBA’s vote intended the decision to be “with prejudice”.
To think of it, throughout the years, I have never heard the ZBA Chairperson or other ZBA members clearly state in any hearing if their vote is with or without prejudice (although I think they should do that). It appears that this is something that the ZBA, in conjunction with the Mayor’s Office, is deciding behind the scenes.
What’s interesting is that in the May 23 hearing, the Mayor’s Office representative (Allston-Brighton Liaison) spoke in support of that billboard (while the BPDA representative was wishy-washy). Obviously, the Mayor’s Office does what the Mayor wants.
There is no reason to believe that the Mayor would suddenly change his position on this billboard just because the ZBA had a non-unanimous vote rejecting it (with, or without prejudice, it doesn’t matter — because there are tricks to overcome “with prejudice” decisions — as happened with 89 Brighton Ave., a development that was turned down “with prejudice”, but came back one year later with very minimal changes, and it was approved — although it is now being appealed in court).
Projects generally don’t come back to the ZBA unless the proponents have a reason to believe they will prevail on second try. Also, ZBA agendas are crowded, and it’s hard to secure a hearing when you already had a hearing and lost. So I have a strong gut feeling that this billboard is supported on the high level in City Hall — which is why it has resurfaced only 7 months after it was rejected.
Allston-Brighton does not need billboards, period. If the ZBA votes in favor of it nevertheless, the abutters will have an option to appeal to court, but that is financially burdensome — so it would be best if the community prevailed in the hearing on Dec. 19. The Mayor is key to that.
On 12/15/17, 7:27 AM, "Joanne D'Alcomo" <homeowners-union-of-allston-brig...@googlegroups.com on behalf of dal...@comcast.net> wrote:
There have been questions raised here and elsewhere as to why the issue of a zoning variance for an electronic billboard at 88-94 Lincoln Street, Brighton, is back on the agenda at the zoning Board of Appeal for December 19th, when it was rejected only a few months ago. Well, here’s the story:
The request for a variance was denied at a hearing on May 23, 2017 – after considerable community opposition was presented. The resurfacing of this variance request was surprising because, under the Boston Zoning Code, an application that is denied is not supposed to be able to come up for a hearing again for a year – unless the denial was, in essence, specifically “without prejudice” (or unless there are changes to the application, and in this case there are no changes). It turns out that although the video of the meeting and the minutes of the meeting demonstrate that the decision was not made “without prejudice,” the final written decision – curiously -- says it WAS made “without prejudice.” That written decision—which conflicts with the reality of the hearing -- cleared the way for the item to be put on the agenda again this month, only seven months later.
In my opinion, what happened here – if the Board were to stick with its so-called “decision” -- violated the Open Meeting Law. You can’t have, under the Open Meeting Law, a public hearing where a decision is made in the public view, and then a written decision reflecting an entirely different result. So, I filed a formal written complaint under the Open Meeting Law last week asking that the matter be taken off the agenda. (If you’re interested in the details, it’s attached).
By the way, what often happens after Board of Appeal hearings is that the lawyer for the applicant prepares a draft written decision and then submits it to be signed by the Board. (This is sometimes done for regular court decisions, too, in Massachusetts courts, because it’s considered a timesaver ). In the Board’s case, this process is viewed as a timesaver for the Board and the applicant. The draft written decision submitted by the applicant’s lawyer is supposed to, of course, be consistent with what occurred at the hearing. In this case, the draft decision was submitted by the applicant’s lawyer, and it was not consistent with what happened at the hearing.
BOTTOM LINE: let’s see what happens. The lawyer for the applicant – who, by the way, used to be the staff lawyer for the Board of Appeal -- has been notified about my Open Meeting Law challenge pointing out that the written “decision” doesn’t match what was actually done at the hearing. The applicant may decide to withdraw the application and pull out of the hearing to avoid the controversy. If not, the Board of Appeal will be forced to address the issue one way or the other at the hearing on December 19th.
BY THE WAY: Even if the applicant for the electronic billboard at 88-94 Lincoln pulls out of the hearing on December 19th, the hearing for the 64 Lincoln Street billboard will still go forward and that is an important agenda item, too. We should send a message that Brighton does not welcome the visual pollution of billboards, and insist that the principles of the zoning code be enforced.
Joanne D’Alcomo
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Fred Hapgood
Eva Webster
"So, rather than be discouraged by the Board of Appeal proceedings now, I am encouraged, because I value the fact that we -- as a community -- have some legal protections in the Board of Appeal process. I think we should use the protections that we have and vigorously oppose at the Board any variances that are against the community's interest. I hope that gives you renewed interest in the Board of Appeal process!”
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