WILMINGTON, MA — Based on information provided at Monday night’s Board of Selectmen’s Meeting, here are some of the latest developments in the effort to construct a detox facility at 362 Middlesex Avenue.
The Board of Appeals has an important meeting tonight (Wednesday) at 7pm in the Town Hall Auditorium on this matter.
#1) At tonight’s meeting, the Board of Appeals will review and possibly vote on the draft written decision that was made at its January 16 meeting to deny the special permit request of the applicants.
“Town Counsel Jonathan Silverstein has prepared a decision that is intended to reflect both the vote that was taken and the basis for the decision to deny the special permit,” Town Manager Jeff Hull told Selectmen. “If the decision is finalized at that meeting, it must then be filed with the Town Clerk.”
#2) If a majority of Board of Appeals members were to disapprove the draft for some reason, the vote denying the special permit would NOT change.
“This is NOT an opportunity to change the substance of the decision,” said Town Counsel Mark Rich in response to a question raised by Selectman Mike McCoy. “The Zoning Board of Appeals must come to an agreement on how that decision will be translated. They’ll be discussing the language of the report that goes to the Town Clerk. This is NOT an opportunity to reconsider the vote that denied the special permit… The intent is to have a defensible decision for the Town Clerk as that’s going to be the matter of any appeal… That it accurately and appropriately reflects the comments and positions of the [board members] and how they voted.”
#3) Also at tonight’s meeting, the Board of Appeals will discuss the process to follow for consideration of a request from the applicant for a reasonable accommodation.
“The Board will consider, with the advice of [Town Counsel] Jonathan Silverstein, whether or not to conduct the meeting as a public hearing and will receive counsel’s opinion as to whether the decision to grant a reasonable accommodation requires a simple majority or a ‘supermajority,’ added Hull.
#4) Town Counsel Jonathan Silverstein has communicated with Town Manager Hull that he intends on recommending to the Board of Appeals that (1) the board DOES conduct a public hearing and (2) the decision to grant the reasonable accommodation would require a SUPERMAJORITY (i.e., 4-1 or 5-0), NOT a simple majority. KP Law believes the governance of the town would still apply in this case.
#5) The Board of Appeals will NOT actually consider whether or not to grant the reasonable accommodation at tonight’s meeting, and it may be awhile before it does so.
“The Board’s next scheduled meeting on March 13, 2019 apparently has a full agenda, which may mean that the reasonable accommodations matter is scheduled for a later date,” cautioned Hull.
#6) The Concerned Citizens of Wilmington recently provided the Zoning Board of Appeals and Board of Selectmen with a letter arguing that the federal American with Disabilities Act may not be invoked to supersede local zoning bylaws. A ruling from the Sixth Circuit Court (Get Back Up, Inc. vs. City of Detroit & City of Detroit Board of Appeals) was provided as support.
The letter also argued that the residents of Wilmington have already made “reasonable accommodations” to those suffering from substance abuse by amending the zoning bylaw to allow for the construction of future detox facilities in industrial zoned areas that are “remote, quiet, and more conducive to those individuals undergoing the torments of withdrawal.”
Prior to summarizing the letter for the Board of Selectmen, Town Manager Jeff Hull took an opportunity to clear up any implication that Town Counsel Jonathan Silverstein hadn’t been evaluating the case.
“[Attorney Silverstein] has looked at a number of different cases. He’s a specialist in land use law. I think it needs to be made very clear to the public that he is on top of this. He has many years of experience in land use law,” stressed Hull.
A letter from Silverstein was read into the record at the end of Monday’s meeting, which, in part, reemphasized Hull’s assurances that Town Counsel has been handling the case appropriately.
#7) Resident Suzanne Sullivan criticized the Board of Selectmen for, in her opinion, failing to protect and defend the bylaws of the town. She read a section of the Wilmington Board of Appeals’ rules and regulation:
“The discussion about this accommodation, in our minds, is illegal,” continued Sullivan. “There is no basis for them to be coming to the Board of Appeals and this town is setting up a process that is counter to the bylaws of the town. And this isn’t only town bylaws, it’s the state statute… Are we going to have to sit here and listen to this ‘fake process’ coming forward?… I’ve yet to hear how under what law they can come forward with an accommodation petition after they just got a denial on a special permit from the Zoning Board of Appeals. I still don’t have that answer…. This is not allowed. It was voted down. Plain and simple. Deal with it. They have a recourse — it’s called land court.”
#8) Resident Rob Fasulo urged the Board of Selectmen to reconsider its decision not to enter into Executive Session to discuss Board of Appeals Chair Dan Veerman and any perceived “liability issues” he causes the town in this matter.
“There’s been a lot of talk about the Facebook post [in which he used the term “junkie”], began Fasulo. “I don’t remember hearing any talk of any other comments. I happened to be going back through the WCTV tapes. During the carnival debate, [right before] the 26-minute on the January 13 meeting video, [Veerman] is on record again using that questionable word. So now we have a long-term pattern of this usage. The concern over that is he really can only vote one way without getting the town into some trouble. If he votes no when this accommodation comes up, there will surely be an appeal on that fact alone.”
“I’m not saying he’s a bad guy, but this situation needs to be looked at,” continued Fasulo. “Can he make a vote one way or the other without causing liability to the town? You guys need to do your job and at least have the discussion… Please reconsider the vote and go into Executive Session to discuss.”
#9) Later in the evening, Selectman Mike McCoy requested that the Board of Selectmen, at an upcoming meeting, again consider entering Executive Session to discuss Board of Appeals Chair Dan Veerman. While no formal vote took place after McCoy made the motion, Selectman Chair Kevin Caira agreed to put it on the agenda for a future meeting. McCoy noted he planed on raising this issue even before Fasulo suggested it.
At the February 11 meeting, the Board of Selectmen were stalemated 2-2 on whether or not to enter Executive Session, with Selectmen McCoy & Bendel voting in favor and Selectmen Caira and Loud voting against, with Selectman Eaton abstaining. As a result, the motion failed due to the lack of a majority. With Selectman Loud having resigned from the board, the math, and possibly outcome, of the next vote may be different.
#10) Selectman Mike McCoy also made a request that, by the next Selectmen’s Meeting, he be provided with examples of other instances where the Wilmington Board of Appeals took a vote at one meeting and then took a vote on the original vote’s decision at a following meeting. He claimed it had never happened before. Town Counsel Mark Rich said it was not uncommon, but did not specify if he was speaking generally or Wilmington-specific.
“In all my 30 years, I don’t think this has ever happened. I think when [the Board of Appeals] takes a vote, they deny it, and it automatically goes to the Town Clerk’s Office,” claimed McCoy. “Can anyone please tell me if there’s ever been a case, on file, similar to what we’re doing now for 362 Middlesex Ave, where there actually going to take a vote on a decision?”
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