(August 20, 2004) The Board of Selectmen’s growing lack of confidence in the Zoning Board of Appeals came to a head recently with selectmen directing the Town Administrator to investigate whether the selectmen could take over the duties of the ZBA.

This followed a selectmen-initiated request that each ZBA member resign and re-apply, which hadn’t happened as of the writing of this column. The Board of Selectmen serves as the appointing authority for ZBA members; they have the power to appoint new members, and with existing members to re-appoint or not as a term expires. If they also possess the authority to terminate an appointment at any time, we will probably see hearings conducted and some ZBA members removed.

Or, if Town Counsel rules that the Selectmen have the authority to in effect temporarily “replace” the ZBA, the selectmen could bypass the hearing process and just take over the board.

I doubt that a selectmen takeover would be ruled as legal. At the least, it’s a questionable practice even if it is allowed by law. And even if our Town Counsel says it’s acceptable, it is a dangerous precedent and the selectmen should not do it. If there are individuals on the ZBA who have lost the confidence of the selectmen, it is those individuals – not the entire board – who should be dealt with.

I agree with the selectmen that the stakes are high where 40B housing is concerned. Where we differ, however, is how to resolve the potential dilemma.

I believe that the selectmen are attempting to act in good faith on this. Mark Beaton is well-suited to the role of chairman; he is courteous to the audience, works to keep people on point and doesn’t “play to the camera.” Joe Kelleher and Paul Gallagher have proven to be solid additions to the board; and it seems that for the most part this five some can agree to disagree without getting personal.

Regardless, an attempt to take over another board is a troubling course of action for any appointing authority to undertake. More than 20 years ago, another Kingston Board of Selectmen sought to take over the duties of the Water Commissioners. There was something akin to open warfare between the two boards; there were resignations, and the move by selectmen to take over the duties of Water Commissioners was rejected by voters. New commissioners were elected; and, several decades later, most would agree that the Water Commission came through that troublesome period unscathed. The board today enjoys the confidence of the community and has provided strong leadership and good service over the years.

Voters generally don’t like any one board to be too powerful. They did not want the Selectmen to be Water Commissioners two decades ago, and I don’t believe that in 2004 they want the Selectmen to be reviewing zoning variance applications. In a town this size, the selectmen already have enough to do.

I can understand the frustration that fueled the request, even if I do not agree with the proposed remedy. The ZBA presided over a hearing that sought to appeal a planning board decision against L. Knife – which they apparently had no legal authority to conduct. Coupled with some widely publicized infighting, a “Will the real chairman please stand up” session and some issues of lack of preparedness for a housing hearing, it’s clear that the board does not enjoy the confidence of their appointing authority. The ZBA is a key and powerful board, one that will play a critical role in the 40B saga. Certainly the community needs a board that is knowledgeable, focused and intent on exercising good, law-based, unbiased judgment on behalf of the citizens. However, I’m not convinced that this talent doesn’t already exist in large part with the individuals who comprise the board.

If there are individual ZBA members who are not pulling their weight, then selectmen should hold hearings for these individuals and take the appropriate action. That said, removal of any official should not be done lightly. It should only occur in the event of gross incompetence, dishonesty or perhaps attendance issues.

From a historical perspective, this isn’t the first time that a Kingston ZBA has come under fire. People who have lived here a while may recall the celebrated “Perseverance” case that came before the ZBA somewhere around 1980. The store today known as Dempsey’s that sits beside Persy’s Place Restaurant on Route 3A, was originally known as The Perseverance.

This original country store was developed by Newt and Anne Heston who encountered considerable community resistance when seeking a variance to build at that location. Ultimately, their venture proved to be a real credit to the town, but were it not for a ZBA mix-up, the store might never have been built. That ZBA missed the deadline for acting upon the variance request, and failure to respond within so many days of the hearing (I think it was either 45 or 60 days) was an automatic victory for the applicant. When the ZBA dropped the ball on that deadline they did take some heat for it – but there were no moves to unseat them. Luckily, because the Hestons ran a first-class operation, the sting of that board’s error was lessened considerably.

The ZBA has a new member, John Haas, who, although I don’t know him personally, seems very qualified for the position he has filled. Let me add, for the record, that I believe Janet Butler would also make an excellent permanent member. The ZBA may need a shake-up. But it doesn’t need to be totally dismantled.

The selectmen are feeling the heat and have tough choices in front of them. They can either “let go” and allow the ZBA to succeed or fail on its own; or, if they truly believe that their intervention is needed and all other courses of corrective action have been exhausted, they should take steps to remove the individual or individuals they deem unfit for service. However, it’s a stretch to believe that this includes all the members of the board. Even if Town Counsel says it’s legal for the Selectmen to take over the Appeals Board, they shouldn’t follow that course of action but rather go the “hearing” route. However this plays out, let’s hope that the remedy will ultimately be good for the town and cause a minimum of hard feelings among those who volunteer their time in service to our community.

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