Selectboard members were considering the removal of a DRB member as early as January 24, when Wilmington Town Manager Scott Murphy sent an email toVermont League of Cities and Towns senior staff attorney Garrett Baxter, asking what the process was for removing an appointed member of the DRB. Murphy’s email, on behalf of the selectboard, asked what types of behavior or actions qualified as “just cause” for removal proceedings. The email also asked “If other members of the DRB resigned in protest, what alternatives would the selectboard have for continuation of the review process? Could they appoint planning commission members to the DRB or establish a zoning board of appeals, or take over the DRB function themselves?” Baxter replied that the standard for just cause is one of “reasonableness,” and that the DRB member had to have “performed a substantial shortcoming detrimental to the employer’s interests, which the law and a sound public opinion recognize as a good cause for dismissal.”
While some members of the selectboard claimed not to know about the email or its intent, selectboard chair Jim Burke said that the information was not gathered with a specific DRB member in mind, but was information the board needed to know at the time. The town is currently involved in a lawsuit filed by former zoning administrator Alice Herrick, who resigned in mid-March, effective April 1, and Burke said the board needed to cover all its bases. “It (the email) was about what process we might have to go through if we came upon a problem where we would have to remove a DRB member. We were being sued by Alice and decided maybe we needed to see the big picture, what are our powers, and what are the laws and regulations. Sometimes we just want to cover all corners. We were doing our homework.”
While he would not single out a member of the DRB in reference to the email, Burke explained that the selectboard became concerned with actions they believe led to Herrick’s lawsuit, including those of DRB chair Nicki Steel. Steel filed a public record request in February 2013 for copies of all letters or memoranda received by the planning commission regarding the operation of the zoning department, decisions of the DRB, or actions of the zoning administrator. Steel said that she wanted to view letters of recommendation the planning commission solicited during their reappointment recommendation process in January 2013. The planning commission recommended the selectboard not reappoint Herrick, and Steel felt it was important for Herrick to see this correspondence.
“I made my request looking for the letters,” said Steel. “I showed her (Herrick) them because they were public record and about her and there was nothing illegal about that. They (the selectboard) knew I wasn’t happy with the way she had been treated either.”
This record request appeared to cause concern for the selectboard, which, through Murphy, asked Steel to meet with them in executive session in April 2013. In an April 5, 2013, email, Murphy asked Steel to meet with the board in executive session to discuss “any issues and or concerns,” as well as “recent events concerning your public records request,” and “issues and concerns with a public official.”
Because Steel believed the selectboard’s reasons for the meeting did not constitute an executive session under state statute, she declined, saying she didn’t want to participate in an executive session if it wasn’t legal. In an email on April 11, 2013, Steel said she would be willing to meet with the selectboard, but would need more information on the topics.
“If it (the meeting) is about my performance on the DRB I would also like some indication as to the specific areas to be discussed,” wrote Steel. “Unless there is something regarding my work on the DRB a lot more serious than I know about, I would see no reason to have an executive session.” As well, Steel wrote in another email: “I would not be willing to meet in executive session unless I felt it was legal. The only reason that might apply would be an evaluation. If the selectboard wanted to evaluate me I would need to know why and be given some specifics as to the topics.” This email did not elicit a response from Murphy, and the selectboard never met with Steel in a public session.
According to selectboard member Jake White, the failure to meet with Steel was one of many communication failures between the two boards and created negativity at future meetings. “We wanted an executive session meeting with her to discuss things with us, and she wouldn’t agree to it,” said White. “It was going to be a fact-finding meeting about the DRB and selectboard working together and if we had that meeting I think things would have been ironed out, and not snowballed into what it is now.”
In September 2013, Herrick requested all documents related to her reappointment, and filed her lawsuit three months later, claiming she was not provided with all the records she requested.
Burke said the selectboard was concerned with how closely Herrick worked with the DRB, and following two public records requests and a lawsuit, the board needed to educate itself on their options. “When Alice was named acting zoning administrator, that town official (whom Burke confirmed was Steel) took out a public records request,” said Burke. “Alice requested the same documents after we reappointed her full time, and in December, when Alice decided to sue the town, then the question went to Garret Baxter. If you see the twine or yarn unraveling you need to know how to stop it,” said Burke. “We needed to start to understand what to do as a board as this started unraveling. As a selectboard we needed to know all the boundaries, and we need to know in order to protect the interests of the town.”
Burke also said that any action where the board asks Murphy to obtain legal advice is done in executive session, which is why the public was not informed.
Appointment and resignations
The selectboard would not need to remove any members of the DRB, however. During reappointment interviews with then DRB vice chair Andy Schindel in late March, Schindel told Burke and selectboard member Tom Fitzgerald he had no interest in an alternate position on the DRB and would not accept one if offered. During that same time period, Steel informed Burke and another member of the selectboard that she and the rest of the DRB were considering resigning if Schindel was not reappointed to a full-time position, citing a lack of support from the selectboard for their board and its experienced members. With knowledge that the DRB members might resign, the selectboard voted four to one to reappoint Schindel as an alternate, and have all expressed their hope that Schindel would reconsider the offered position once appointed. Fitzgerald was the only dissenting vote.
Selectboard vice chair Diane Chapman said the selectboard had concerns about Schindel leaving town three months every year, and the effect it had on the ability of the DRB to hold meetings. In the time Schindel was gone in 2014, from January to April, the DRB was only forced to postpone one meeting in mid-February because Steel was also out of town.
“We had no intention of watching the complete DRB resign,” said Burke. “All we wanted Andy to do is take a step back and help rebuild the DRB from the alternate position, and he would have still been able to sit on decisions while giving room to start on a rebuilding process.”
As he had warned, Schindel did not accept the appointment as an alternate, and Steel, Sherry Brisssette and Sheila Osler all resigned from the DRB within five days.
Communication continues crumbling
Communication between the selectboard and the DRB had been strained since Steel rebuffed the selectboard’s requests for meeting in an executive session in April 2013, but following the board’s passing of an amended zoning bylaw in November, communication became tougher. Members of the DRB were publicly critical of the way in which the bylaw was passed, including at a public meeting in which Steel and Schindel were vocal about the imperfections of the document. Steel and Schindel took issue with section labeling and spelling errors, as well as more substantial issues such as the lack of building height requirements, the different standards between permitted and conditional use, and setbacks.
The board ultimately decided to pass the bylaw as an “imperfect document” and made the planning commission responsible for making substantial changes, which would require a public meeting to approve. But some members of the public, including Steel, were not satisfied with the lack of selectboard discussion about change and input. Email correspondence shows an inquiry to Murphy and town attorney Bob Fisher by Steel as to the legality of the town’s decision to allow “unsubstantial changes” to be made without a public hearing. On January 8, Steel, along with former selectboard chair Tom Consolino, once again voiced displeasure over the board’s decision to pass the zoning bylaw without discussion.
Burke, who chaired the January 8 meeting, said that he allowed Steel and Consolino to say anything they wanted and “tire themselves out,” because the selectboard made a statutorily compliant decision, and they would stand by it. “I allowed them a back-and-forth because we had nothing to hide,” said Burke. “We followed the rules and passed an article. Whether it was to their liking or not? Too bad. We made the decision to pass on an imperfect document, but it’s being reworked and amended right now.”
Last attempt at talking
The reappointment of Schindel, and the mass exodus of the DRB that followed, came at a time when the planning commission, selectboard, and DRB had just scheduled a meeting to sit down as a group and discuss how they could communicate better and work together cohesively. DRB members initiated the meeting by sending a letter to the selectboard on March 4, asking that the three town boards/committees, the zoning administrator, and the town manager hold a joint meeting to bring about better communication and understanding. Other topics the DRB suggested were discussions on when changes to the zoning document will occur and on the reappointment process and how its delays affected the DRB and other boards and committees. With the recent resignations, those members of the DRB who signed the letter will not be at the meeting, scheduled for April 23.
The meeting is still on schedule, however the DRB will most likely need to reorganize before the meeting, as they are down to one new full-time member, Peter Wallace, and two alternates in Meg Streeter and Paul Toonan. The selectboard is also actively searching for a new zoning administrator, but in the meantime, selectboard vice chair Diane Chapman has taken the position in a temporary role.
Burke explained that it was with regret that the selectboard accepted the resignations of the DRB members, but it was also a crucial time in that the DRB would need to be rebuilt.
“There is a new dawn here,” said Burke. “We need to do our due diligence to make sure the DRB process is best suited for the town. We are the selectboard, we are Wilmington, and we will get through it as a town.”
As for Steel, she says it was not an easy decision to resign after 22 years of serving on the DRB. “I’m saddened and frustrated,” said Steel. “It feels as though there are issues that are coloring the selectboard’s opinion of the DRB and its members, and I don’t know what they are. I’ve never heard them criticize the work we do, and it’s discouraging because we all volunteer and do tough jobs for this town, and we can’t work together.”
In the eyes of White, communication failures proved to be destructive.
“I feel, and the selectboard in its entirety feels, the DRB does excellent work, they are intelligent people, and I don’t think there was ever a concern about the quality of work they were doing. We were happy with the things they did. It was the communication line that was the problem. We’re still holding the meeting in April to address that.”
DRB dates of interest
WILMINGTON: The follwing is a timeline of events pertinent to the DRB issues:
January 15, 2013: Planning commission recommends not reappointing Alice Herrick after gathering letters from members of the community who went through the zoning process
January 23, 2013: Herrick is unanimously appointed acting zoning administrator by the selectboard rather than to a full-time position, after considering the recommendations of the planning commission.
February 8, 2013: Development Review Board chair Nicki Steel files public records request for information regarding the reappointment of Herrick
April 5, 2013: Selectboard requests executive session with Steel to talk about the records request and “personnel issues.” Steel refuses, citing the legality of the proposed executive session
July 3, 2013: Herrick reappointed full-time zoning administrator
September 13, 2013: Public records request made by Herrick to town manager Scott Murphy for all documents and records since September 1, 2011, regarding “the operation of the town of Wilmington zoning office, or Tropical Storm Irene, or any actions of the zoning administrator.”
November 20, 2013: Selectboard passes amended zoning bylaw and definitions after a public meeting. The board fielded concerns from members of the development review board, and decides to pass the document without making changes to items they deemed as having “substantial” and “unsubstantial” issues.
December 13, 2013: Herrick sues town, claiming that she was denied access to documents following her public record request.
December 4, 2013: Frank Sprague resigns from DRB citing lack of time available to complete the job.
January 8, 2014: Steel asks if any discussion would be held by the selectboard regarding the suggested changes at the November hearing.
January 10, 2014: In an email to Murphy, Steel questions the legality of the selectboard’s changes to the zoning ordinance.
January 22, 2014: Gil Oxley decided not to seek reappointment to the DRB after six years of service
January 24, 2014: Murphy sends email to Garret Baxter at Vermont League of City and Towns asking what the procedure would be for removing a DRB member.
March 19, 2014: Peter Wallace is appointed as a member of the DRB.
March 24, 2014: Schindel, interviewed by phone by Jim Burke and selectboard member Tom Fitzgerald, says he will not accept an alternate position
April 2, 2014: Schindel reappointed as an alternate member of the DRB, rejects offer. Meg Streeter appointed as an alternate.
April 3, 2014: Steel informs the selectboard she is resigning as chair.
April 7 2014: Sherry Brissette and Sheila Osler resign from DRB.