At the October 15, 2007 Planning Board meeting, Margaret A. Sharra and Kenneth A. Cole decided to reconsider the decision to deny Robert Vandykes application ..
" Fifth order of business: Old and new business. M. Sharra passes out copies of the second draft of proposed zoning changes, an important superior court decision and other information.
M. Sharra and the board discuss the superior court decision on Land Use boards reconsidering decisions. The board interprets reconsideration as reconsidering not just the decision but how the decision was determined. M. Sharra asks the board if they would like to reconsider Mr. Vandyke’s PRD. She explains that what reconsideration does is open the hearing process to continue discussion on the application. Reconsideration does not necessarily mean the decision will be changed but rather to obtain more evidence to make a more informed decision.
K. Cole moves to reconsider the decision of the board, of 9-17-07, on the application of RVD’s PRD located on Rt.10. J. Amman seconds. The board discusses again the understanding of reconsideration and allowing for the board to hear more evidence to be able to make a clear, informed decision. D. Beaman yes, J. Amman yes, K. Cole yes, M. Sharra yes, K. Berthiaume yes, J. Marsh no. Motion passes. "
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3 comments:
I truly don't understand why the board felt the need to revisit just this one denial and not let the process go through the course of appeal .. I'm sure the denial would have stood up in court, as it was based on town bylaws and land use rules; not prejudice or anything that could be construed as unfair.
Read the 10/15/07 Planning Board minutes as to how they came to this decision.
From what I understand, Mr. van Dyke did file an appeal with the court and according to law...
" If a certiorari lawsuit ( an appeal of the board's decision ) is filed in court", the board must submit the complete transcript of the proceedings or certified sworn copies of the record to the court"
" When a board's decision is pending before the court, the court has exclusive jurisdiction over the dispute and neither the administrator nor the board may reevaluate their decision until the court relinquishes that jurisdiction. To allow otherwise would encourage conflicting and competing decisions of courts and administrative agencies"
According to the descriptions of the law above, it would seem that Margaret Sharra overstepped her authority by bringing up the matter of reconsideration and the board, by reopening this proposal has broken the law. It looks to me that the board acted of it's own motion and volition and decided to reconsider and rehear Mr Van Dyke's application, with a push from Margaret Sharra. I don't think attorney Barton Mayer ( town's council )would have advised them to do this.
Documents obtained from the court clearly show Mr. Van Dyke filed his appeal on October 15th and received a hearing date of January 4th, 2008. The Planning Board met later that night and it's decision to overturn the denial, according to law, was out of their hands and should not have been done, the court would have exclusive jurisdiction over the dispute, not the board.
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