Zoning Board Of Appeals: Public? What Public?

For those of you following the Murphy Lane “barn conversion”, we left off on Friday with William Moore saying in an email that he would check into whether the public would be allowed to address the Zoning Board of Appeals at its workshop on this issue on Monday, February 8.

Having not heard from him, I arrived early for the workshop.  As it happened I ran into him in the hall.  He explained to me that because the agenda had gone out late, the board would not be hearing from Steve Shaw, the building inspector.  Instead, Susan Barden, the city planner would be giving the board an update on the application.

I presume that Mr. Shaw would have been reporting on his stop work order for 39 Murphy Lane.  Why he would not be reporting but Ms. Barden would be because the agenda was sent out late is a mystery I did not have time to explore.

I was too polite to ask Mr. Moore why he had not emailed me to advise me that the agenda had been changed and that the public would not be allowed to address the board.

As it was still ten minutes before the meeting was to begin when I entered the meeting room, I engaged the Board in a conversation about a number of issues that were of concern.

These concerns had to do with the lack of fairness and balance provided to the public by the land use boards in general and the ZBA in particular.  I will be writing soon about my experience at last Thursday’s Unified Development Ordinance (UDO) workshop.  One of the most interesting things about the workshop was the number of times that people expressed frustration and even anger over how the land use boards deal with the public.  Even members of the planning staff expressed cautious sympathy over the issue.

So I expressed to the members of the ZBA the effect on the public of attending meetings and being relegated to sitting in the gallery while the applicant and his or her attorney and other staff sat at the table with the Board.  Aside from the fact that the public sits behind a wooden rail, the participants at the table sit elevated above the gallery.  I was not prepared for Board member Susan Steer’s response.  Her explanation involved the convenience of having the applicant sitting with them.  She noted that it was rare to have the public even at the meetings opposing applications for waivers.  She also shared that this was the way the Board had always carried out business.  What impressed me most though was her tone.  There was not the slightest acknowledgement that this might be a valid issue nor any sign of empathy for what it might be like to sit out in the gallery when a project seems to threaten your home or neighborhood and you have come to oppose it.

I then brought up the rule that the public was only allowed two minutes each to address the ZBA while the applicant was afforded unlimited time for their presentation.    I noted the incident at which Chairman William Moore had attempted to limit the attorney representing the neighbors of Moore Hall to two minutes during that controversy.  Ms. Steer replied that in spite of Mr. Moore’s initial ruling the attorney was allowed to finish his remarks.  Keith Kaplan went even further.  He asserted that the public was always provided ample opportunity to address the Board.  Unlike, Ms. Steer, he had no recollection of Mr. Moore attempting to limit the attorney.  I attempted to direct the discussion to the need to find some way for a spokesperson for a group in opposition to select someone to do a full presentation to the Board.  I noted the need for some sort of procedures.  I was truly not prepared for Ms. Steer’s dismissal of this issue.  The only person on the Board who appeared to acknowledge that there was a real issue that needed to be addressed was James Helicke.  It was clear that trying to argue the issue further would be counterproductive.

Shorty after, it appears that the workshop began.  I say “appears” as explained below.  I waited until the meeting was available on line to complete this post.  I wanted to be as accurate and fair as possible about what occurred.  The difference between the experience of sitting in the gallery area and listening to the meeting on line is instructive.  The volume of the speaker system was quite low so sitting in the meeting one could hear very little in contrast to the video.

The video begins with Susan Barden, the city planner in mid sentence saying, “so we’ll have that for you next time.”  Video Of Meeting

For people sitting in the gallery, it was impossible to tell when the meeting actually began or even that it had begun.  As noted the video begins with Ms. Barden in mid-sentence.  It does not show what happened prior.

Mr. Moore never actually convened the session.  Instead there is some low level chatter as the members take their seats.  Ms. Barden approaches the table engaging in the general chatter as she hands out ipads.  In hindsight, there was probably relevant information on the ipads about the meeting which was unavailable to the public who had come to observe.  This went on for a few minutes and then Ms. Barden seated herself before them.  The public could catch fragments of the discussion referencing some change in some plans.  If the speaker system was working it was set extremely low.  At one point you could hear Ms. Barden reference a set of plans in front of the Board members.  There was never any effort to inform the public what the plans were about. 39 Murphy Lane was never referenced (even in the video it is never referenced).  People sat patiently waiting for the meeting to begin.

Subsequently, Ms. Barden gets up and city attorney Tony Izzo then takes the chair and he could be heard fairly clearly as he projects quite well.  He was advising the Board about a legal opinion that appeared to be relevant to the variance being sought by Chairman Moore.  I then noticed that chairman Moore had removed himself from the room.  This discussion was not listed as part of the “workshop” on the posted public agenda.  No explanation was offered as to why it was added.  The board probably knew why but felt no need to inform the public.

Mr. Moore then returned and called the meeting to order.  A number of neighbors of the Murphy Lane project had come out in the snow to listen to the workshop.  There was an exchange of looks between them.  One of them offered that it appeared that the workshop was over.  We all got up to leave.

As it turns out, Mr. Moore’s application for a variance was the first thing on the agenda and he went out into the hall while it was being discussed.  Both the neighbors and Mr. Moore ended up in the hall together.  I asked what happened with Ms. Barden’s report. I did not point out to him that he never bothered to share with the Board or the public that Mr. Shaw had originally been supposed to speak regarding the stop work order and that Ms. Barden would be speaking instead.  He replied that she gave her report.  One of the neighbors, in a courteous tone, told him that none of us heard her report.  He did not bother to reply.

I find a number of things interesting about this.

Not only did Mr. Moore not tell the audience that the meeting had been changed and that Ms. Barden would be giving a report rather than Steven Shaw, as far as I can tell, he never said anything to the board.  I would hazard a guess that he emailed them about the change prior to the meeting or it was communicated in some other way.  The idea that the public should be advised of the change probably never crossed his mind.  The idea that for clarity he might have formally recognized Ms. Barden and asked her to report probably never crossed his mind.  The idea that the report should be done in a way that was accessible to the public probably never crossed his mind.  In fact, the idea that the public might be interested and might deserve to be updated on the project probably never crossed the mind of anyone on the Board.

What is indisputable is that the neighbors who had come to this meeting had no idea what transpired up there nor was it possible for them to even ask what had happened.

What I learned that night was how much I had underestimated the marginal role the public plays in the eyes of the members of this Board (with the exception of Mr. Helicke).   For these people the universe is made up of the sophisticated applicants who come before them often with attorneys and architects along with the Zoning Board members themselves.   The public is a kind of noise that can occasionally become quite loud but that is ancillary to the process.

I will humbly admit to the readers of this blog that I truly underestimated just how pervasive and deep this problem is.  Mr. Moore, who is not an evil man, is truly representative of this mentality.  The fact that Mayor Yepsen appointed him for another seven years is just another indication of the problem.


4 thoughts on “Zoning Board Of Appeals: Public? What Public?”

  1. This board is operating like a private club not a public board which in a democracy should be responsive to the public and open and transparent.


  2. John,

    The City Charter at 13.4 requires every City “…agency, board, commission and other entity…” to “…conduct its business in accordance with the provisions of the Open Meetings Law.”

    This applies to all meetings, including “workshop” sessions of the ZBA and PB. While such sessions are more informal and no action is ever taken. The meetings are designed and intended to gain an understanding of applications on the agenda, seek clarification, ask questions of applicants and their representatives, perhaps point out concerns or request additional information.

    These are “open meetings” subject to the Open Meetings Law and, therefore, all discussions, presentations, revised plans presented, etc. must be subject to review by the public in attendance. A meeting can not truly be “open” if speakers cannot be heard or materials viewed.

    Decisions of the ZBA are to be influenced by “testimony” relevant to the variance criteria codified in State Law. Thus, all sides must have access to the same set of facts and the same information. To deny or make difficult access to all information creates a potential disadvantage to one side or the other.

    This is why ex parte discussions should also be avoided no matter where they may take place and why any such discussions should be entered in the public record at the earliest opportunity.

    And while workshops are informal, I seem to recall that as a member of the City Planning Board we invited the public to draw near the table so the discussion could be heard and invited them to examine any documents presented during the workshop. They were made to feel welcome and part of the process.

    I would be surprised and concerned if that practice is no longer in vogue.

    It may be time to develop rules for the conduct of workshop sessions.


  3. this blog is not a legal forum for announcements or statements like the newspaper is. Besides the accuracy is not checked and is hearsay sometimes and misinformation by omission …leaving facts or comments out that can make or break one’s opinion. Public figures should be quoted in entirety on city website with only uncut video.


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