Select Board Apologizes To ZBA, But Rejects Independent Counsel For Surfside Crossing

JohnCarl McGrady •

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The site plan for Surfside Crossing's 156 condominium units.

The Select Board and the Zoning Board of Appeals (ZBA) held a joint meeting Tuesday amidst backlash against the Select Board for its controversial decision to drop the town’s lawsuit against the proposed Surfside Crossing development. Several members of the ZBA expressed frustration with the Select Board, which did not consult them or inform them of the decision to drop the lawsuit before the decision became public.

“I wish there was more cooperation,” said ZBA Vice Chair Lisa Botticelli. “I just think we should have been part of the discussion.”

Select Board Vice Chair Dawn Hill Holdgate, along with other members of the Select Board, apologized to the members of the ZBA, who had been listed as the Town’s plaintiff in the lawsuit.

“I’d just like to apologize to you for the process,” she said. “I think that we as a board could have done more to support you all along.” She said that the ZBA should have been more involved and should have been notified sooner.

However, Holdgate was clear that nothing the ZBA could have said would have changed her vote. “Ultimately, it would not have changed the decision,” she said.

Select Board member Brooke Mohr, who was among the majority in the split 3-2 vote to drop the appeal, said she did so to secure negotiating power for the town, which she felt had previously been lacking. “The appeal in my eyes, as I understood it, did not give us any negotiation ability,” she said.

Tuesday’s joint meeting was highlighted by debate over whether the ZBA should be granted a special independent counsel - separate from the attorney advising the Select Board - on matters related to Surfside Crossing. The members of the ZBA were divided on that question, while the Select Board was unified in its opposition. Botticelli and ZBA alternate Jim Mondani outlined the case for a special counsel, going back and forth with Select Board members on the issue.

“I feel the need for the opinion of a special counsel,” Mondani said. “This has caused a lot of conflict within our board…I think there is some concern that we should be the ones to make this call…I think we need to know that what was done procedurally was correct.”

Holdgate responded that the Town Charter gave the Select Board clear authority to drop the lawsuit. “I’m not sure it's a necessity to ask some independent counsel what the town charter says,” Holdgate replied. “I personally am not seeing the case for independent counsel.”

Members of the Select Board emphasized the qualifications and expertise of Town Counsel George Pucci, but some ZBA members worried that he was facing a conflict of interest in the Surfside Crossing matters.

“I think it’s difficult for a town attorney to advise two boards that have split,” Mondani said, referencing a moment in the ZBA’s recent meeting on the decision to drop the lawsuit in which Pucci declined to share details about the decision due to attorney-client privilege.

Pucci disagreed, as did all Select Board members present, noting that while the ZBA and the Select Board may be at odds on whether the lawsuit should have been dropped, that decision had already been made. They argued that going forward, there should be no conflict unless the ZBA wants to attempt to re-open litigation against the development, which Botticelli confirmed was not their intention. While the ZBA can return to the Select Board and request a special counsel again if they believe Pucci is failing to advise them effectively, the meeting adjourned with the Select Board determining not to offer the ZBA special counsel at this time.

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