Throughout the Northland Development process, a number of Councilors have referred to their “quasi-judicial role” regarding Special Permits. For those unsure what that meant, this recent Opinion piece in the Boston Globe written by a member of the Newton Law Department makes it crystal clear.Specifically of concern is this statement…
“As you all know, City Councilors serve broadly in a legislative/political role but also act in a quasi-judicial manner when deciding special permit/site plan approval petitions. When acting as the special permit granting authority and reviewing proposed projects, the City Council is acting in a judicial role and NOT VOTING ON BEHALF OF THEIR CONSTITUENTS.”
HOW IS THAT EVEN POSSIBLE??!?
If you have ever attended a Land Use Committee meeting and listen to each Councilor speak to certain issues and topics related to development, the eye (and ear) test confirms that each are leaning towards one side or another. Even the (2) New(ton) PACs recently created, are grouping one set of Councilors vs another based on where each are perceived to lean regarding Development.
The City Council are first and foremost elected officials, at the most intimate and accessible level of government. Asking them to be 100% impartial is a difficult, if not impossible and UNFAIR – to all parties involved – the Councilors and their constituents. The process is ripe for change, to something more realistic and attainable.
The Special Permit granting authority does not have to reside with the City Council and in most jurisdictions it doesn’t. That said, I believe that wherever that authority resides (elected or appointed board) the granting authority must operate in a “quasi judicial” fashion – i.e. they can’t have made up their minds before hearing the facts of the individual case.
So Matt, are you proposing, changing the charter to give another entity special permit authority? Because that’s the legal remedy.
As for conflict of interests, has Brenda Noel recused herself from special permit decisions regarding Mark Development and Washington Street re-zoning? Mark Development has been a corporate sponsor of the non-profit where she is executive director. I hope they continue to support this non-profit, because they do great work, but I would hope that this connection would at least be disclosed and rules for recusal followed. I believe she has recused herself on issues related to Village Bank, another corporate sponsor of her employer, but I haven’t seen anything regarding issues related to Mark Development.
https://static1.squarespace.com/static/5a43c5babff200ad56bf09a4/t/5d0a9d5102b6f90001f8fe96/1560976740171/Fall+2018+Newsline+FINAl_V3.pdf
Great point, Sarah. Smart of you to check not just the direct campaign contributions but also contributions that, through other avenues, influence independence.
So, Brenda Noel: What’s your explanation for why you (properly) recuse on any Village Bank matters because the sponsor your workplace company but don’t stand aside on the deliberations and votes on all of Mark Development’s (many) projects?
Under state law, the city council has the authority to determine what body has special permit granting authority– a city charter can’t specify who has SPGA.
@Rhanna Kidwell – It’s great to have a charter geek on call. Thanks for the clarification.
Hi Folks-
I can promise you that any question related to what I can and can’t involve myself in as a councilor has always (as referenced by @Sarah re: Village Bank) and will always be vetted with the city’s legal counsel. That won’t change when the Mark Development or any other organizations’ proposals come before the council. I would hope and believe all councilors would comport themselves in this way.
For anyone interested, there was an entire session of the charter commission that was devoted to the planning article. Quite a bit of that conversation revolved around the special permit granting authority, who should hold it, and whether the charter was the proper place to define the authority. I’m just about to jump on a plane, but I will try to post a link to the audio from the hearing when I land.
This is nothing new. Under state law, the Special Permit Granting Authority (SPGA) is a quasi-judicial function performed by a public body. Thus, whether it is the members of the Planning Board, the Zoning Board of Appeals, or the City Council that have been delegated the SPGA, they must maintain impartiality during the public hearings and reserve judgment until the working session. It is analogous to a juror who declares that the defendant is guilty before the trial has been held. That juror would almost certainly be challenged and excused from the jury. For the same reasons, an applicant could successfully appeal the denial of a special permit based on comments made by members of the public body before the public hearing has been closed.
I agree that there is an inherent conflict of interest for any popularly elected Councilor, and particularly for Ward Councilors, who are concerned about getting re-elected based on how they vote on a particular special permit. But that can be changed. In Massachusetts, unlike many other states, judges are appointed rather than elected. This eliminates conflicts of interest based on the anticipated response of voters to decisions or judgments made by a judge. For similar reasons, that is why I have long advocated for delegating the SPGA to an appointed body, such as the Planning Board or Zoning Board of Appeals, which is free from such conflicts and can be appointed on the basis of relevant expertise and/or experience, rather than popularity with voters. The members of the public body still may not comment on the merits of a particular special permit application until the public hearing is closed. And, as Rhanna Kidwell notes above, under the state zoning law, the SPGA may be delegated to another public body by the City Council, subject to approval of the Mayor, without amending the City Charter.
With respect to conflict of interest laws, a Councilor may vote on a particular matter even if s/he has a competing financial interest, provided s/he files a written disclosure with the City Clerk attesting that s/he will not be influenced by such interest in casting her/his vote, and has not officially participated in the matter,and/or has not been involved in the matter within the past year, under her/his official responsibility in their other job. The Law Department may then advise a Councilor whether there is a possible violation of the Conflict of Interest laws if they were to vote on that matter. Sad to say, in my fourteen years on the Board of Aldermen/City Council, eight of which I was a member of the Land Use Committee and four years as Chair of the committee, not every Alderman/Councilor recognized a possible conflict of interest, much less disclosed it and/or sought legal guidance. Councilor Noel is to be commended for following the proper procedure.
One final thought. When John Hilliard, a reporter for the Boston Globe, interviewed me on background for his article on this topic, I gave him my opinion that, although a Councilor may not comment on a special permit application until the public hearing is closed because the SPGA is a quasi-judicial role, that does not mean s/he may not comment on the underlying zoning, which is a legislative matter.* In other words, if a special permit applicant is seeking an amendment to the zoning ordinance, whether the amendment involves rezoning a particular parcel(s) or a textual amendment, a Councilor may comment on whether s/he thinks the amendment is appropriate under the circumstances. The example I gave him was an amendment that would allow a special permit for a ten-story building in a zoning district that currently limits buildings to three stories, whether by right or by special permit.
*Just my (somewhat) informed legal opinion. City Councilors should seek legal guidance from the Law Department before commenting on a zoning amendment that is connected to a special permit application.
Thanks, Ted, for the excellent exposition.
Just to add, in theory, a special permit is a determination that a proposal meets zoning criteria. It’s not supposed to be an opportunity for the particular body making that determination to decide what they independently think is appropriate. That’s what is meant by quasi-judicial. In fact, given the state law, it is, as Ted notes, incongruent that an elected board would be trusted to do that quasi-judicial function. It would be better to have an independent body
In practice, within the quasi-judicial function, there’s a tremendous amount of latitude. And, as we saw with the negotiations between the LFIA and Lenny Gentile on one side and Mark Development on the other, councilors extract concessions in exchange for their
votequasi-judicial determination that the project strictly meets the criteria for a special permit under the terms of the zoning provision.As promised, anyone wishing to listen to the Charter Commission’s panel of outside experts discuss this topic In May of 2016 may listen here: http://www.newtonma.gov/civicax/filebank/documents/75309