Further Clarification on the 40B Project and the ZBA

Dear Mary,

Having just read your item on our conversation I would like to make a slight addition just so that no one is mislead about the strict legal possibilities as compared with past experience and probabilities.

You and I knew just what we were saying as we talked and I would like those persons not in that conversation with us to also be clear on this.

Past experience with significant projects, 40B (1 in Newburyport) and others is that they tend to take time involving multiple hearing dates. Both for continuances while the applicant sorts out external events that arise. And then multiple hearing dates for presentations pro and con plus questions by the Zoning Board of Appeals (ZBA) and often the referral of data to specialists supporting the ZBA’s analysis.

Also, because of the complexity that usually accompanies significant projects, the hearing date where volumes of substantive presentations are expected are usually assigned to meetings devoted to that single application.

That reflects past experience and probability, however, the legal reality, although remote for significant projects, is that at any scheduled hearing for a particular application the ZBA could receive presentations, public comment, ask questions, undertake deliberation and even a vote, if the ZBA so desired.

Legally public notice for these hearings, once the hearing has originally been opened, is the continuation date set by the ZBA at the currently scheduled hearing date. There are no further “published” legal notices as the law presumes that if you are interested you are there or at least are aware.

These are the legal possibilities, not the probabilities, but I don’t want anyone to misconstrue what “could” occur and somehow lose an opportunity to hear or be heard about a particular application.

The ZBA is not about “gotcha too bad,” it is about open public process, but there are some underlying legal rules under which the ZBA functions that need to be understood.

I’m sorry if this muddies the waters that had a moment of apparent clarity but I wouldn’t want anyone to become overly complacent relative to any proceeding where their possible interests are involved.

If there are other questions as to procedures or particular hearings the Newburyport Office of Planning and Development can help or refer.

The Low Street project that you mentioned has requested and received a number of continuances as they have dealt with external events. At the ZBA meeting of April 25 they requested a further 2-month continuance to permit them to proceed with certain meetings with various city entities.

The ZBA granted a 2-week continuance and requested that a representative appear at the meeting of May 10 (delayed from the 9th because of the special election) to provide further detail in support of the continuance request.


Ed Ramsdell, Newburyport

(Editor’s note: Ed Ramsdell is the chair of the Newburyport Zoning Board of Appeals.)