© The Stoneham Independent

STONEHAM, MA - A Duxbury attorney this week advised the Board of Selectmen against lodging an Open Meeting Law complaint in regards to a state housing board's hearing on the Commons at Weiss Farm project last fall.

As promised by town officials last week, Chapter 40B specialist Jonathan Witten appeared at Tuesday night's Board of Selectmen hearing to discuss the Housing Appeals Committee's (HAC) conduct last November, when it opened proceedings in Town Hall regarding the controversial 264-unit apartment complex proposed for Weiss Farm.

Witten was invited to the gathering after Citation Avenue's Jon Eaton, who contends the HAC conducting the hearing without a quorum of the five-member board, implored the Board of Selectmen last month to file an Open Meeting Law complaint with Attorney General Maura Healey's office.

According to Witten, he completely agrees with Eaton's assessment that an injustice was committed during the Town Hall proceedings, when just a sole member of the HAC, Chairman Shelagh Ellman-Pearl, presided over the legal appeal.

However, while Witten agreed the town had grounds to challenge that arrangement, which he described as customary for initial HAC evidentiary hearings, he believed the legal objections should be filed in Superior Court after a final decision is rendered by the state officials.

To best position the town for that court challenge, the legal consultant recommended the town wait until the HAC issues its final decision regarding the case, because that's when the town can claim it was "injured" by the board's action.

"I think it's premature to file an independent complaint, because there's no decision," he said. "At this point, there's no injury, because there's no decision. So I don't believe the town raising this issue is right as of yet."

"Raising it as an Open Meeting Law violation, I suspect the town would have no traction," the attorney added. "[The HAC's position] is that you can hold an evidentiary hearing without triggering the Open Meeting Law, and that is probably true."

The HAC hearing was the result of a leal appeal filed by Johh M. Corcoran & Company, which is challenging the Zoning Board of Appeals (ZBA) decision in April of 2016 to limit the size of the proposed Franklin Street redevelopment to 124-units.

Corcoran claims the ZBA overstepped its authority under the provisions of Chapter 40B, a state law that grants developers significant relief from zoning bylaws within communities that have not designated at least 10 percent of its housing stock as "affordable".

In late January, Eaton, a staunch opponent of the development plans, approached the Board of Selectmen and urged them to protest the manner in which the hearing was conducted, as in his view, the state's Open Meeting Law had clearly been violated in having just one HAC member present.

This week, speaking before Witten addressed the board, the Citation Avenue resident described the proceedings as clearly biased in the developer's favor, a situation he believed would be far less likely to transpire had more HAC members been in attendance.

"The chair clearly took the side of the developer and prejudiced the case against Stoneham from the get-go. There was only one committee member there taking evidence and making rulings all by herself," he recalled. "The Housing Appeals Committee has been abusing its power for years by having one member…play God."

In response to that commentary, the Chapter 40B attorney agreed the HAC's routine conduct during evidentiary proceedings is an abuse of power that restricts municipalities' chances of getting a fair and impartial hearing.

Specifically, Witten, who at the HAC hearing last November objected to the absence of the other board members, contends the practice severely restricts the ability of other board members to interpret the responses of testimony and cross-examination.

He also questioned whether HAC members are fulfilling obligations to read the entire administrative record prior to voting on appeals cases, as those transcripts and legal exhibits often number thousands of pages.

However, Witten claimed state law exempts boards like the HAC from Open Meeting Law provisions, when the government body and others like it are partaking in administrative proceedures, such as an evidentiary hearing.

"That's what the HAC is really hiding behind," he said. "Anybody who has watched this process unfold knows it's unfair. Over the past 30 years, we've fought and lost this battle repeatedly. But that doesn't mean the Town of Stoneham shouldn't fight it."

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