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| Several members of the public were not allowed to speak at the March 1 public hearing for this proposed development at 10 Sunnyside Ave. |
As demonstrated by its March 1, 2021 meeting, the board is simply not allowing enough time on its agenda for its Special Permit hearings. Two Special Permit hearings were scheduled for the first 45 minutes of the meeting, when an hour was not even sufficient for the first hearing. This should have come as no surprise to the ARB, as first one was a significant, new proposal.
The solution proposed by the chair to those members of the public who were denied the right to speak during the hearing—to offer comments during “Open Forum” later in the meeting or to provide written comments—is no solution at all. Public hearings are held to provide the public the right to be heard, and the testimony of the public is to be on the record during the hearing process.
The ARB chair does not get to pick and choose who can present testimony during the hearing. Under Massachusetts law, all members of the public have the right to be heard during a zoning hearing. Among those members of the public denied a chance to speak on March 1 were representatives of the Disability Commission, who should have the opportunity to weigh in on all projects in the planning stages in order to accommodate their needs.
The ARB and staff that support it clearly don’t understand the intended role of the public in public hearings. This is true not only in their willingness to conduct hearings as if they are proforma presentations by developers with predetermined outcomes, but also with their willingness to engage in ex parte communications with developers that come before them for special permits. (An ex parte communication occurs when one or more members of the board meets or speaks privately with a party to the special permit outside of the public hearing.)
It is widely acknowledged that ex parte communications with those appearing before planning boards like the ARB are inappropriate even if not explicitly prohibited by law. Yet unlike other towns which ban the practice, the ARB actually defends it, and has refused to address it in its rules and regulations.
One attorney on the ARB has even made the astounding claim that private communications between a developer seeking a special permit and members of the ARB are not ex parte because the applicant (developer) is the party to the special permit—as if there were no other parties, such as abutters who might want to hear those conversations as part of the public hearing.
As currently managed by town staff, the ARB increasingly puts the interests of developers over the public interests. This is reflected not only in the board's attempts to minimize public input but in its disregard of the requirements of Arlington’s Zoning Bylaw.
The ARB is supposed to be giving enhanced review to the Special Permits it acts on—through a process called Environmental Design Review (EDR). Instead, based on a politically motivated and legally untenable memo prepared by Town Counsel last year, it is using EDR to reduce the basic protections written into the zoning bylaw, such as the requirements for open space.
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| Where's the Open Space? 887 Mass Ave |
If the ARB is going to disregard the public process and use EDR to weaken Arlington’s zoning bylaw in direct contradiction of the purposes for which EDR was established in the first place, it raises the question whether the ARB should even be in the business of granting Special Permits. It is too late to put that question to Town Meeting this year. But maybe next year, it will be appropriate.
Chris Loreti
Former Arlington Redevelopment Board Member and Precinct 7 Town Meeting Member
