Town of Halifax, Vermont
March 11, 2008
Call to Order
The meeting was called to order at 7:05 PM. Board members in attendance were Chair Christina Moore, Craig Stone, Frank Maltese, William Pusey (arrived after approval of minutes), Norman Fajans, and Howard Alboum. Margo Avakian and Planning Commission Secretary Phyllis Evanuk were also in attendance.
Approval of Minutes
The question of approval of minutes (when not in attendance at the meeting) was raised. If someone was not at the meeting, how can they approve the minutes?
Mrs. Moore advised that she had looked through the rules and found nothing prohibiting or endorsing this. If they were to keep postponing approval until a quorum of members who participated in the meeting, the minutes might never be approved. She advised that if members who were present at the meeting find no errors or omissions, then the members who were not present should be able to accept them as an accurate record of the meeting.
Mr. Stone moved to accept the minutes of the February 12, 2008 meeting as written.
Mr. Maltese seconded the motion.
The motion carried 5-0.
Mrs. Moore advised that approval of the minutes of the January 8th meeting had deferred to this meeting and she called for a motion.
Mr. Fajans moved to accept the minutes of the January 8, 2008 meeting as written.
Mr. Stone seconded the motion.
The motion carried 5-0.
Mr. Maltese advised that he had some mail that he would like to review as he was not sure whether it should be handled by the Planning Commission or the ZBA.
The first was a re-sent letter regarding the appeal of the Honora Winery permit. The first letter and notice was sent in January, but appellants were directed by the Environmental Court to send it again.
It was the general feeling that neither the Planning Commission nor ZBA would have further involvement in this particular proceeding.
Mr. Fajans advised that the only situation in which they might need to become involved is if the Environmental Court remanded the case back to the ZBA for reconsideration.
Mr. Maltese announced that he had a notice from Windham Regional Commission regarding informational/training sessions. Any member wanting a copy can make one.
Mrs. Moore advised that the Planning Commission had received copies of amendments to zoning and town plans from Wilmington and Brattleboro.
Mr. Stone announced an interactive TV training that was sponsored by VLCT.
Review of Rules of Procedure and Ethics Manual
During previous meetings the members had reviewed and amended items on the first ten pages of the document (Rules of Procedure and Ethics Manual) from the Vermont Land Use Education & Training Collaborative dated May 2005.
In review, Mrs. Moore advised that at the last meeting they had reconsidered the use of alternate members. State statute [24 VSA §4461(a)] states, “For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of the members of the panel, and any action of the panel shall be taken by the concurrence of a majority of the panel.”
Because of this requirement, the ZBA being a 9-member board needs to have 5 members concurring in their vote in order to take any action.
Mr. Alboum advised that “the reason a 9-member board was originally formed was to be able to give a diversity of opinions and options to the town representation of various thought. The reduction back to a 7-person board,”
Mrs. Moore advised that they did not promote a 7-member board. That is not their decision. If the Selectboard chooses to keep a 9-member board, then they would need to appoint additional people if they choose to have alternates.
Mr. Alboum questioned having a letter sent to the Selectboard regarding this without a clear vote of the commission members. Members quickly reviewed the minutes of the previous meeting and it was determined that in fact the matter was voted on.
Mr. Alboum advised that he still had concerns, he is not necessarily opposed to having alternates. However, in a town this small, with the selection pool being so narrow, unless the alternates are several, and somebody picks the alternate from a hat, there could be problems.
It was explained that the alternates would be appointed as a voting member by the ZBA Chair in rotation. This eliminates the possibility of choosing an alternate according to the way they might vote on the application being heard.
Mrs. Moore advised the procedure they have been using for review of the Rules of Procedure document is to review each section, make comments and/or suggestions for changes, and if none, then move on to the next section. She advised that they had left off on page 11.
Regarding recusal, Mr. Alboum asked if a member recused, could that member remain with the Board, or would they have to leave.
The consensus was that the member should leave the board, and sit in the audience. That person would still have rights as a citizen, to be heard, but would not be a representative of the Board for that hearing.
Mr. Maltese inquired if they should review Rule I and Rule II before continuing. It was decided that the decision of which Rule to use would be made later, after reviewing the whole document.
Mr. Maltese advised that he felt adoption of this document is going to make things so complicated that it would be intimidating to new members.
Mr. Alboum advised he had no problem with the document, but rather with the impetus for it. For many years they operated without it, and fairly successfully, including dealing with attorneys. He did not recall having needed such a document.
Mr. Maltese advised that after going through the difficulties of previous boards, it’s nice just going through this. Before, when a new member joined the board there was nothing to refer to or guide them as to procedures and rules.
Mrs. Moore noted that the law exists, whether we knew it or not, the laws that this thing is structured on exist, and we are obliged to comply. So this at least puts them together and if you read them, you have a clue where the boundaries are.
After a short comment period regarding the advantages of having a Rules and Ethics Policy, the members proceeded to page 14 (labeled as “the real treat” by Mrs. Moore). This section of the document states the definite rules under Rule I, which are specific and easier to understand and refer to.
A discussion of Conflict of Interest and reasons for recusal ensued. The general feeling was that this can be a difficult situation in a small town. Two examples were given to illustrate possible conflict. 1) Mr. Fajans purchases sawdust on a regular basis, and occasionally wood, from Mr. Stone. Mr. Stone’s uncle submits a permit application that requires board approval. Is there sufficient reason (direct or indirect financial interest) for Mr. Fajans to recuse? 2) Mr. Maltese’s wife crafts and markets bags for Honora Winery. Is there sufficient reason (direct or indirect financial interest) for Mr. Maltese to recuse?
Mrs. Moore advised that in her opinion (speaking as a citizen, not in her position as chair) in the first example, there was not a direct connection between Mr. Fajans and the applicant (uncle) to require a recusal. In the second example, she felt that the impression of indirect financial interest, whether real or perceived, would be enough to suggest recusal.
Mr. Pusey asked what would happen if you make your livelihood dealing with the residents on a regular basis. He supposed one would need to leave the Board.
Mr. Fajans advised that this is a good reason to have alternates. He further advised that hopefully there would be enough of a cross-section that the alternates would not need to recuse on the same grounds or for the same projects.
Review continued through Section V: Alternate Members and minor changes were noted.
Mr. Alboum raised the question of the Chair as a voting member, advising that the way it has been, the Chair only votes when there is a tie. He advised that the Chair should be required to vote or abstain but that it can’t be both ways, in other words the chair can’t abstain, and then when the vote is tied, vote to break the tie.
Mrs. Moore advised they had discussed this at a previous meeting and the language on page 3 under The Role of the Chair addresses this. It states: “The chair of a small board, such as a local zoning board, has the right to vote, the right to make and second motions, and the right to question participants, just as any other member of the board”.
Mr. Alboum requested further discussion of the role of the chair and Mrs. Moore advised it would be an agenda item for the next meeting.
Review of the document ended after Section V.
Mr. Maltese moved to adjourn the meeting.
Mr. Fajans seconded the motion.
The motion carried unanimously.
The meeting was adjourned at 8:30 PM.
Phyllis H. Evanuk