, Gloucester, MA

October 3, 2012

Rules put clamps on Fort input

Solicitor cites permit laws in blocking open ward talks

By Steven Fletcher
Staff Writer

---- — After Beauport Gloucester LLC worked through its plans for a hotel on the Birdseye property two weeks ago, Ward 2 Councilor Melissa Cox said Tuesday she had planned on holding a meeting with residents to learn what questions they had about the company’s special permit proposal.

Last week, she says, she found out she couldn’t do that. Cox was told that any such meeting would violate state law that blocks a member of a permit-granting authority to take testimony outside of the permitting process.

Because the council has quasi-judicial power in the special permit process – and because the council’s handling of the initial overlay proposal drew a lawsuit challenging the process — City Councilor Bruce Tobey says the council is adhering as tightly as possible to state zoning, public records and open meeting law this time.

But Cox said the suddenly strict adherence to a rule that has yet to be enforced locally is a little frustrating.

“(It) seems backward as I can’t hold a meeting until we had information (the plans) and the information didn’t come out until after the process started,” Cox said in an e-mail.

And Councilor Sefatia Romeo-Theken, noting this is the first time in her six terms on the council that a councilor couldn’t hold a ward meeting on an active permit request, said she’s concerned the move will only further stifle public input.

“I’m appalled that, in all these years no one brought to our attention we were doing things wrong,” she said, noting that councilors held ward meetings when the Gloucester Crossing special permit and the permit for the Hampton Inn project on Essex Avenue were in the works.

When the council approved Beauport’s proposal for a hotel overlay district on that property, the Port Community Alliance – a group of Fort neighborhood residents and businesses — filed suit, alleging spot zoning and failure to follow the correct approval procedure. Because of that, Tobey said, the council’s being extremely cautious.

Cox said she could have held a meeting about the project when the council took up the overlay district. But, neighbors couldn’t ask questions about plans they didn’t have, she added. Beauport Gloucester didn’t provide plans until the special permit process started.

Romeo-Theken, meanwhile, said she doesn’t understand why this came up now, and why the city hasn’t made an issue of it before. She added that the rule doesn’t make sense either, adding that she said she doesn’t understand how councilors are supposed to hear their constituents if they can’t meet with them.

Romeo-Theken said she has asked the state Attorney General’s office to look into how councilors handle public meetings while a special permit is under consideration. She said she believes councilors can attend public meetings, and hold them, so long as they’re merely “listening posts.”

In an e-mail she sent to Cox, City Solicitor Suzanne Egan said a ward meeting held by a member of the special permit granting authority could be considered “ex-parte” communication — essentially when a member of a judicial body hears from one side without the other being aware of it.

“(Holding a meeting) is something that is done before a permit application is submitted,” Egan stated. “The main issue is that you are a member of the special permit granting authority so it could be considered an “ex-parte” communication.”

Egan couldn’t be reached Tuesday for comment on this story.

The Port Community Alliance, a non-profit advocate for the city’s working harbor said its members are perplexed by the apparently sudden rush to limit councilors communication with constituents, according to a statement from spokeswoman Rona Tyndall.

Tyndall noted that full participation was allowed during decisions on Gloucester Crossing and two previous overlay district proposals.

“If our elected officials will not meet with us they cannot represent us,” Tyndall said. “In which case, they should either step down or be removed from office.

Tobey said any deliberation or taking input should go through proper channels, the public hearing, or written responses to the city clerk’s office. He added that Planning and Development, the council subcommittee he chairs, will hold a listening post-like session toward the end of their review.

The ward meetings aren’t the only things the council’s being careful about. The council will hold a workshop on Oct. 26 on electronic communication, and Tobey filed an order asking the council to review that in September. For the moment, he said, councilors can only respond to inquires on their city e-mail addresses, so there is an archived record.

The rules probably weren’t enforced to this extent before, he said. But, there hasn’t been as dogged a case of litigation, either, her added. The council was also sued regarding the Essex Avenue Hampton Inn special permit.

Councilors, he added, need to be careful even talking about the special permit process outside of the authorized channels. For a special permit, he said, the council is effectively a panel of nine judges. He said he’s told people asking to talk with him about it to send an e-mail so it goes down in the public record.

“I did not invent legal constraints with how things have to be done,” Tobey said, “but, given the litigious nature (of some parties) we have to double down and make sure there are no slip-ups.

“If that has the unfortunate effect of limiting people’s chances to communicate,” he said, “they have to take advantage of the ways they can.”

Steven Fletcher may be contacted at 1-978-283-7000 x3455, or Follow him on Twitter at @stevengdt.