By MICHAEL KITCH, LACONIA DAILY SUN
SANDWICH— Town officials are pondering whether to appeal a decision by Justice Charles Temple of Carroll County Superior Court ruling that both the Board of Selectmen and Zoning Board of Adjustment repeatedly violated the Right-to-Know law and ordering the town to pay more than $200,000 in legal fees and court costs.
The case began in June 2014 when Boone and Margaret Porter returned to their home on Squam Lake to find construction underway on the lot next door owned by William and Elizabeth Aulet. Porter, a former member of both the Planning Board and the Zoning Board of Adjustment, believed the abutting lot was not buildable and appealed the issuance of the building permit to the Board of Selectmen and the Zoning Board of Adjustment. When both boards refused to hear his appeals, Porter asked them both to reconsider their decisions.
Two days before the Zoning Board of Adjustment was scheduled to hear his request, Porter found a draft of the board's decision denying the request on the front seat of his car and later found an email indicating that the draft had been circulated to all members of the board. The decision was drafted by town counsel Walter Mitchell at the request of the Ben Shambaugh, chairman of the Zoning Board of Adjustment, "for consideration." Porter later discovered that a second draft decision denying his request to reconsider had been circulated to members of the board. Both drafts included findings of fact that were not part of the board's original decisions. The Zoning Board of Adjustment denied Porter's request to reconsider its refusal to hear his appeal.
In October 2014, Porter filed two Right-to-Know requests seeking the disclosure of all documents, communications, emails and information bearing on the case, which were not fully honored until February 2015.
The court found that the Zoning Board of Adjustment violated the law by circulating emails bearing on Porter's appeals among its members, which constituted a meeting that was not properly noticed as the law requires.
Likewise, the court ruled that the Zoning Board of Adjustment's circulation of the draft decisions to deny Porter's request for reconsideration represented "communications outside a meeting used to circumvent the spirit and purpose of the law. Justice Temple wrote that "the draft denials served to notify ZBA members how Shambaugh (the chairman) planned to vote" and "also solicited their respective supporting votes."
The court found that the Board of Selectmen also violated the law by discussing Porter's appeal privately. The minutes of the meeting of July 7, 2014, make no mention of a substantive discussion of the case among the selectmen. However, the minutes of the meeting two weeks later record that the board "was not inclined to hold a public hearing to discuss the Porter's arguments concerning the Aulet's construction." Justice Temple concluded that "logic requires a determination that at least some substantive discussion — if not a final decision — had occurred between public meetings." The finding, he noted, was confirmed by a transcript of the second at which one selectmen was recorded to say "We've talked about it. I've talked with other people around town about it."
Finally, the court held that town officials violated the Right-to-Know law by withholding documentation and material specified by Porter's Right-to-know requests as well as failing to fulfill his request in a timely manner.
Apart from awarding Porter fees and costs, the court invalidated the decision of both the Board of Selectmen and the Zoning Board of Adjustment and ordered the Zoning Board of Adjustment to address Porter's appeal at a properly notice public meeting. And members of both boards were ordered to attend a two-hour workshop and a full day of remedial training on the Right-to-Know law.