Former Commissioner Questions Process Used in Combining Planning and Zoning

A former planning commission member recently questioned the procedure used by Canton officials to combine its Planning and Zoning Commissions. A town attorney, on the other hand, has deemed it valid.  

Bruce Mortimer, speaking at the Board of Selectmen meeting last week, said he believes selectmen erred in abolishing the existing commissions and creating a combined one by ordinance.

Mortimer, a Planning Commissioner who was not appointed to the new board, contends the town charter and state statute make it clear the town meeting is the authority to create a combined commission.  

"By doing so, I'm concerned we have created a potential risk to the town," Mortimer said, adding that it could result in challenges — "best case — disruption to the process; worst case it could embroil the town in legal action and ultimately void the decisions, the officials decisions, of that commission." 

Mortimer cited several sections of the town’s charter, including section 10.02, section E, clearly puts the responsibility of new agencies to the town meeting.

In part, that section states, “any permanent Agency created by action of a Town Meeting may be abolished or changed upon the affirmative vote of a Town Meeting.”

At the meeting last week, Chief Administrative Officer Robert Skinner spoke to some of the language and said the potential action was reviewed by the town attorney prior to the selectman’s vote.

"It was approved by the town attorney prior to moving forward," Skinner said. 

This week Town attorney Richard P. Roberts, of Halloran and Sage, also released an opinion on the matter.

Roberts contends that the while the sections states the town meeting may do so, section 10.03 allows such agencies to be modified or eliminated by ordinance. Section 2.03 of the charter allows both "the town meeting and the Board of Selectmen" to enact ordinances, he said. 

Mortimer said the use of the word "may" in section 10.02 could be interpreted as meaning action was not required and has said historical use weighs heavy and the town meeting the town meeting has been the history avenue for such action. 

Mortimer also cited town charter section 6.03  which discuss the board’s powers with temporary agencies and in part states, "The Board of Selectmen shall not have policy-making powers relating to land use boards and commissions . . . " 

"Collapsing the two commissions into one, was a fundamental change to the town’s process and policy for land use commissions and land use decision making," Mortimer said.  

Mortimer said language in section 6.05 and state statute Chapter 124, Sec. 8-4a. of the state statues, further support his position.  

Roberts, however, contends that the combining of the commissions does not appear an attempt to control the authority over land use matters and leaves intact all processes related to zoning and planning. He also state the language does not "restrict the Board of Selectmen's ability to modify or combine existing commissions." 

He also argues the charter's "provision on the creation of new permanent agencies is intended to restrict the ability of the Board of Selectmen to increase the size and scope of town government by establishing additional regulatory bodies that did not previously exist and the associated financial effects and future obligations, which does not result from the combining of two existing agencies in a single agency." 

Letters from Mortimer and the town attorney can be seen at http://www.scribd.com/collections/4390195/Canton-Planning-and-Zoning-Com

Those interested can read the town charter here, the section of the state statue's here and the ordinance. 

Mortimer's comments can be heard in this recording of the meeting. (Please note the first minute of the meeting is muffled but does not affect this portion, which is near the beginning).