Chatham Select Board Dismisses Complaint Against ZBA Chair

CHATHAM – By a unanimous vote, the select board dismissed a complaint filed against zoning board of appeals chair David Nixon.

The complaint, filed by community housing partnership chair and affordable housing trust board member Karolyn McClelland, alleged that Nixon showed pre-judgment and personal animus toward developer Pennrose during a hearing on the company’s proposed 42-unit affordable housing project on Meetinghouse Road. At their Oct. 13 meeting, select board members said Nixon did not violate state laws, the town’s committee handbook procedures or infringe on the developer’s due process rights.

“As I saw it, Mr. Nixon was voicing his opinion on policy and circumstances as he perceived them,” said board member Dean Nicastro.

Nixon’s comments about the Pennrose project were "provocative," said chair Jeffrey Dykens, “and at times frankly out of context with the deliberations,” but did not rise to a level requiring disciplinary action.

“Mr. Nixon misstated facts and seemed to be more interested, in my mind, in histrionics rather than an objective assessment of the application and pursuit of reasonable, logical avenues for solutions to the issues being raised,” Dykens said. Nonetheless, he agreed that Nixon’s comments did not rise to the level requiring disciplinary action or administrative sanctions.

McClelland’s complaint centered around comments Nixon made while the ZBA was deliberating on the comprehensive permit application filed by Pennrose for the Meetinghouse Road project on Aug. 20. The board denied the permit by a 3-2 vote; Pennrose has appealed the decision to the Massachusetts Housing Appeals Committee. 

McClelland charged in her Sept. 13 complaint that Nixon was predisposed against Pennrose and relied on “dramatic, highly emotional narratives” rather than an objective review of the proposal. Many of his objections relied on hypotheticals involving the dispute between the board and Pennrose regarding construction of a sidewalk along Meetinghouse Road. Pennrose’s refusal to incorporate a sidewalk was the chief reason Nixon and two other ZBA members cited in voting against the proposal.

“I'm not surprised by the [select board] decision as it is a political one,” McClelland said in an email. “The pending legal appeals and judicial review will eventually resolve this issue.”

In a memo cited by select board members, Town Counsel Jay Talerman wrote that he attended all of the ZBA hearings on the Pennrose project. While Nixon was “sharply critical” of the proposal from the start, “often for reasons that may be construed as beyond the scope of a hearing under [Chapter] 40B,” Talerman wrote that “at no point did Mr. Nixon impede either applicant's ability to present evidence in support of its application or the other ZBA members’ ability to freely deliberate on the matter.”

He cited court cases that found that board members are “not expected to be free from preconceptions grounded in the policies of the law they administer or from the knowledge of conditions in the community to which that law applies.” Given the legal precedents, “there can be no doubt that Mr. Nixon approached the application in question with a certain pre-disposition to disfavor same,” Talerman wrote. “However, at no point were the applicant’s due process rights adversely affected, in my opinion.” He concluded that despite Nixon’s comments, “it is my opinion that the applicant received a full and fair hearing."

Board member Cory Metters added that sanctioning Nixon could also infringe on his First Amendment rights “to some degree.”

Nixon has a “longstanding history serving this community,” noted board member Stuart Smith. Board member Randi Potash served with Nixon for a number of years on the zoning board and noted that he has been a member since 1999. She said he showed a similar predisposition toward Pennrose’s Main Street comprehensive permit project, which the ZBA approved but Nixon voted against. While Nixon participated in the Meetinghouse Road hearings, he turned the chair over to Virginia Fenwick because he did not think it appropriate to run the meetings “when he’s already shown his cards,” Potash said.

The board voted that no violation of the law or the town’s committee handbook had occurred and dismissed the complaint.