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Concerns about Moose Hill 40B issue

March 11, 2014

For many months, I have been a close observer of Barberry Homes’ proposed Moose Hill Road 40B project, and I would like to offer some of my own views on the situation.

There are two issues that I see at play here.

First, Susanne Murphy, the chairwoman of the Walpole Zoning Board of Appeals, should certainly recuse herself from any discussion related to the project (as of yesterday, she apparently has indeed recused herself.)

It was revealed last month that Murphy is a cousin of David Carter, the president of Barberry.

By law, she is required to disclose this relationship only to her appointing authority, the Board of Selectmen, in writing, which she did on January 9. She is still permitted to vote on any matters related to the application.

But even though Murphy made the necessary disclosure to Selectmen, she never mentioned the relationship during the ZBA’s January 22 hearing on Barberry’s application. She failed to be transparent about her conflict.

Murphy has said she believes she can be impartial on her cousin’s project. Even if this is so, she should be transparent about it at any and all hearings related to the application, or recuse herself totally.

Murphy, having faced ethics complaints before from her family’s involvement with the long-controversial Walpole Park South, is very familiar with state ethics laws and should have understood that failure to disclose a familial relationship, or to recuse herself, blatantly suggests impropriety on her part.

In fact, just moments before discussion of the Moose Hill project at last week’s ZBA meeting, Murphy did recuse herself from a separate matter related to a property that her brother, Donnell Murphy, owns on Route 1 – yet she refused to do the same minutes later when her cousin’s application came up.

When confronted by residents last week, who demanded to know why she hadn’t publicly disclosed the relationship and why she wasn’t recusing herself, Murphy stated that she rarely speaks to her cousin and hasn’t “seen him in years.”

She also said she had not known, until last week, what specific position Carter held at Barberry, only knowing that he was an employee of the company.

That’s not an excuse for not doing her due diligence. There is a difference between being in a leadership position at Barberry (and having a direct stake in the company’s projects) and simply being a low-level employee. It would have been very easy for Murphy to determine what his role is – his position as president, since he took over in 1997, is well-documented on the internet, and in the state’s corporate database.

It should be noted that Carter seems to have a substantial interest in this project, as he has attended a few town meetings in Walpole related to the project in the past year, though he has never appeared before the ZBA.

Decisions of the ZBA require four of five members to vote in approval, but under state law, associate members of the ZBA are allowed to vote in situations where another member is unable to participate due to a conflict of interest. That means that Murphy doesn’t really have a good reason why she should absolutely need to participate. The ZBA currently has one associate member, in addition to its regular five, who can take her place.

The second issue is that a low-level, part-time secretary was unfairly forced out of her job by the Town Administrator, over a mistake that she was not the only one who made. There are serious questions of checks and balances and accountability at Town Hall that need to be answered.

Former ZBA Secretary Evelyn Splaine lost her job because she didn’t schedule a ZBA hearing on Barberry’s application within 30 days as specified by law, from the time of the company’s initial application on Dec. 10, 2013. Splaine has taken responsibility for her failure and admitted that she probably should have known that the hearing had to be held within a strict state-mandated time frame.

ZBA meetings are scheduled at the pleasure of the voting members to ensure a quorum is present to legally conduct ZBA business. A secretary serves the ZBA, the position does not come with any real substantive power.

It is unfair for Splaine to take sole responsibility for this failure. There are others at higher pay grades who should be taking responsibility.

Town Administrator Michael Boynton and Murphy herself both oversaw Splaine’s work – and both should certainly bear a share of the responsibility.

Shortly after Barberry Homes filed their initial application with the ZBA, on Dec. 10, The Walpole Times interviewed Boynton and he referred to the ZBA hearing on Jan. 22.

As told to the Times, Boynton knew the application was filed on Dec. 10, and knew the hearing was not scheduled until Jan. 22. So, evidently, he himself did not know the ZBA regulations requiring a maximum of 30 days. He failed to raise a red flag.

As the Town Administrator who oversees the ZBA secretary, Boynton, like Splaine, certainly should have been familiar with these regulations.

This was not the first time that Boynton, Splaine, or Murphy have had to deal with a 40B application – town records indicate that the ZBA has dealt with more than five different applications for 40B comprehensive permits since 2000. Murphy has been on the ZBA since 2001, and chairman since 2007. Splaine became secretary in 2003, while Boynton started work in Walpole in 2001.

Our very well-paid Town Counsel, too, should have been watching this process closely and advising the Town Administrator, town staff, town boards, and the ZBA specifically, of the proper deadlines.

It should also be noted that four of five Selectmen have not even seemed to display much interest in the Moose Hill project. Only one Selectman – Cliff Snuffer – has been an attendee of town board meetings related to the project during the past year. There has been no discussion of it during Selectman meetings, except when Snuffer has brought it up. Do Selectmen even care about this project?

It seems that a number of people at Town Hall – including but not limited to Town Counsel, the Town Administrator, the ZBA Chair, ZBA members, Selectmen, and other various town staff – should have more closely monitored Barberry’s application than they apparently did. Since the ZBA secretary was the lowest on the totem pole, she was easiest to blame. Other town officials should demonstrate some leadership skills and take responsibility for their own lapse in oversight.

The town’s counterclaim to Barberry’s lawsuit, which seeks constructive approval from the state Housing Appeals Committee because of the failure to hold a hearing within 30 days, also in itself suggests that Splaine was unfairly removed. The town’s legal counsel and the ZBA both claim that Barberry never formally completed their application, thus meaning the 30-day time window never actually started. But if the town’s contention is that the 30-day window never began, why was the secretary fired for not posting the hearing within 30 days? The inconsistency does not give me a lot of confidence that the town has a strong legal case in defending itself against Barberry’s suit. It seems that the town filed the counter-suit against Barberry simply to cover for its own failure in oversight, giving the residents a false level of assurance that the town is not at fault.

Moose Hill residents also expressed legitimate frustration at last week’s ZBA meeting that the Counsel isn’t looking out for their interests.

Residents were not notified by Town Counsel that lawyers for the town and Barberry had already had a conference at the Housing Appeals Committee, which residents would have been allowed to attend as members of the public.

“We never had a chance to be there,” said Moose Hill Road resident Dante Ferrara. “We’re supposed to be on the same team here.”

It certainly seems that based on events, Town Hall is indeed not “on the same team” as the Moose Hill Road residents.

Disclosure: I have previously written that 40B projects are not the bogeyman that some see them as. While I stand by this position, it does not mean I support 40B projects, but rather that I do not necessarily oppose them simply for what they are. Above all, I am always in favor of good government, and the above incidents indicate that we are not getting good government.

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