When Not to Whisper:BBAC Cited for Open Meeting Law Violation

March 31, 2017
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By Beth Treffeisen

The Attorney General’s Office concluded that the Committee members of the Back Bay Architectural Commission (BBAC) improperly deliberated during the Violations Subcommittee hearing on September 26, by talking in hushed voices among themselves for more than three minutes about a contentious situation on Hereford Street.

The Open Meeting Law requires that meetings of a public body (during which all deliberations takes place) be open and accessible to the public. Access must include the opportunity to be physically present as well as to see and hear what the members of the public body are discussing.

The Attorney General’s Office concluded that the Committee’s discussion about the proposed plan to fix the outstanding violation, including its questions posed to staff, is a matter clearly within its jurisdiction on which the public had a right to observe and hear its discussion.

Since a portion of the Committee’s deliberation was entirely inaudible to the public, the Attorney General’s Office concluded that the Committee violated the Open Meeting Law.

After the Attorney General’s office spoke to three Commissioners who participated in the September 26 hearing, including Commissioner Jerome Cooper-King, the Violations Committee Chair Iphigenia Demetriades and the Commission Chair Kathleen Connor, they learned that this hearing was unusual due to the amount of spirited participation from the public.

Committee members said due to the contentious feelings with the public during the meeting, the Committee felt a need to quietly discuss the solution to the violations without any interruption.

Although this does not excuse the Committee’s improper conduct, the Attorney’s General Office concluded that the Committee’s actions were the result of a misunderstanding of the law’s requirements, rather than an intentional violation of law.

The Attorney General’s Office ordered the Committee’s immediate and future compliance with the law’s requirement and cautioned that similar future violations could be considered evidence of intent to violate the law.

In addition, the Attorney General’s Office ordered the Committee to include a sufficient summary of this improper discussion in its September 26 minutes.

The Violations Subcommittee is a three-member public body, so two members constitute a quorum. This Committee is charged with reviewing and resolving violations of the BBAC’s enabling statute.

On September 14, the Violations Subcommittee held a hearing concerning the purported violations at the properties located at 45 – 53 Hereford Street in the Back Bay. This hearing was held an hour prior to a regularly scheduled Commission meting.

At the end of the hearing, the Violations Subcommittee requested that the property owner return to the Committee with a proposed plan for temporary landscaping to resolve the outstanding violations.

This controversy has been going on for more than 20 years and has led to some serious concerns from community members and the adjacent abutters to the buildings.

Some of the violations included resolving the unapproved fire balconies, unapproved HVAC equipment, unapproved painting of masonry and the paving over of the rear parking lot (that was once home to a garden) that will be resolved when a three-story commercial rear addition is added to what is currently residential row houses. The addition was approved at a BBAC meeting this past December.

Due to the heightened public interest of this particular matter, the Violations Subcommittee held a special hearing on September 26 in order to allow public participation. Because committee members felt that the September 14 hearing had been contentious, the committee provided security at the September 26 hearing.

The meeting’s contentious nature soon followed suit of the last. At one point, after several warnings, Ms. Demetriades recessed the meeting for the purpose of having Attorney Neal Glick, who was representing the owner of the abutting building, Sam Perry, to be temporarily removed from the meeting.

During the hearing the Violations Subcommittee discussed the newly proposed landscaping plan submitted by the property owner to resolve the prior violations.

Both Ms. Connor and Ms. Demetriades were satisfied that the proposed plan resolved the violations, while Mr. Cooper-King expressed dissatisfaction. He wanted the property owner to commit to a “more permanent plan.”

Then, about one hour and 25 minutes into the hearing, the committee members began to speak in hushed voices to one another.

At the start of the hushed discussion, Shirley Kressel a resident of the Back Bay, interjected and cautioned the Committee from deliberating outside of the public’s audible range, but the Committee nonetheless continued the discussion for about three minutes.

Ms. Connor responded that the committee was “not really deliberating,” but rather asking questions of each other and Joseph Cornish, the Commission’s director of Design Review.

Following this discussion, the committee voted to delegate the task of ultimately resolving the violations with the property owner to Commission staff, stipulating the final landscaping plan must be completed by November 30.

Before receiving this decision from the Attorney General’s Office, members of the Commission voluntarily attended an Open Meeting Law training at Boston City Hall and continue to work with legal counsel to guarantee current and future compliance with the law according to Lauren Zingarelli the director of communications and community engagement in the Department of Environment, Energy, and Open Space.

“The Commission reaffirms that it did not intentionally violate the Open Meeting Law and agrees with the Division’s finding to that effect,” Zingarelli said in statement.

She continued, “Pursuant to the decision, the Commission has begun to summarize the inaudible portion of the meeting and will include the contents of that conversation in an updated version of the September 26, 2016 minutes.”

Perry, the owner the adjacent building that is home to the restaurant Sonsie at 327 Newbury St., who filed the complaint with the Attorney General’s Office, was surprised to find out that some members of the Commission have not received open meeting law training prior to serving.

“I served on the Chestnut Hill Historic District since 1993,” said Perry. “Every time a new member joined it was required to take an Open Meeting Law refreshment course. It was a bloody pain in the neck…but it is very stringent.”

 

Perry added that although the Attorney General’s Office asks that the Commission summarize what was talked about during those three minutes there is no way of really knowing what was said, pointing out that the tape didn’t pick it up.

Glick said that in his opinion under Connor and the recent Mayor’s appointees, the Commission has hung out an “open for business” sign for developers.

“They still delight in torturing homeowners who might want to paint their door or cut down a tree, but they do not even bother to pay lip service to their historic mission when it comes to commercial properties and the commercial portions of the District,” wrote Glick in e-mail.

He continued, “This ‘process’ was a case in point. They ignored the Open Meeting Law. They ignored community input. They reversed prior decisions on the same project, with no reference to their own Guidelines.”

Glick said that this was a perfect example of an ‘outcome-determined’ process. He said that members of the community had strict time limits to talk (about three minutes), while unlimited time was allowed for the developers.

“And just look at the result,” wrote Glick. “Instead of serious violations leading to corrective action, the BBAC comes up with – wait for it – flower boxes.”

The final decision was to place flower boxes along the back of the properties on Hereford St. Consequently, according to Perry, the flower boxes that sit on top of the pavement have now re-directed the water flow when it rains, causing Sonsie to flood once again.

In the past, the restaurant flooded when the rear parking lot was paved over sometime in 2006 and ceased when the BBAC issued a Remedial Order in October of 2014 to remove all illegal asphalt paving and restore it back to its former landscape. 

Kressel agrees with Attorney Glick and believes that under this Mayor, developers have full reign without regard to the impact on residents or on historic fabric that is valuable legacy.

“Neighborhoods across the City should be warned that their fate will be determined by developers, however unlawful and rapacious their proposals may be,” wrote Kressel in e-mail. “The community voice and the laws on the books mean nothing.”

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