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Ayer selectman kills quorum, refuses rush to sign Vicksburg Square warrant

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AYER – In a bold move, Ayer selectman Pauline Conley pushed away from the board room table Wednesday night, killing the minimum 3-member quorum requirement for the selectmen to conduct business. There was one item on the agenda- whether or not to sign MassDevelopment’s warrant and request for a March 28 tri-town “Super Town Meeting.”

The sole warrant article to be put to voters in Ayer, Harvard and Shirley is whether to rezone the vacant Vicksburg Square on Devens to allow construction of a 246-unit, mainly affordable housing apartment complex.

On Monday, the Shirley Board of Selectmen signed off on the warrant. On Tuesday, the Harvard selectmen delayed signing the warrant and renewed a call for more information on the proposal pitched by MassDevelopment’s chosen project developer, Trinity Financial of Boston.

Conley not only opposes the project, but she expressed resentment for receiving the 26-page draft warrant article, associated maps and the draft Memorandum of Agreement between Trinity and MassDevelopment at 4 p.m. that afternoon.

“I haven’t read it. I’ve only been out of work an hour and five minutes,” said Conley. To sign without reading the warrant first would be a “disservice to the town of Ayer,” she said.

Conley queried why she received the warrant that day when Shirley and Harvard selectmen had the warrant language on Monday and Tuesday, respectively.

Finally, Conley said from a “procedural perspective we have not conducted a proper public hearing on this issue.” Conley challenged that the March 1 public “hearing” was not conducted in accordance with town practice in that no notice was read aloud, the board never formally convened, and no minutes were taken at the meeting.

Conley said she specifically asked selectman Chairman Gary Luca, “Are we convening at this table?” Conley recalled Luca answered “no,’ so I got up and walked away from the table.”

Conley said the meeting closed with Luca stating simply “thank you for coming” instead of there being a vote of any board to close the public “hearing.” Unlike common practice, there was no copies available for the public to review the draft zoning that evening “nor have we had the opportunity to present this warrant to our residents for input.”

“To prevent a [warrant] vote, I’ll excuse myself from the meeting,” Conley warned.

Only Conley, Luca and Ayer selectman Frank Maxant were present.

Maxant said that while he was “adamantly opposed to this proposal,” he felt the vote was important since its “purpose is to send something to Town Meeting for voters to study and vote on.”

On the March 1 public hearing, “if it’s faulty, it’s our fault,” said Maxant.

Maxant typically reads aloud hearing notices. Maxant said he asked Luca that night if the notice should be read aloud but was told, “No, don’t bother doing that.’ So I didn’t If there was a defect, it was created by this board.”

Maxant said he had “respect” for Conley’s position to seek to “cross all the t’s and dot all the i’s.”

But Maxant said, “If I were to vote now I’d vote yes” to sending the ultimate question to the voters.

“To go get up and leave? As far as I’m concerned, it’s a cop out,” said Luca to Conley. “You’re here to make a decision instead of saying ‘I don’t want to play and I’m going home.”

“I think it’s unfair to characterize it that way,” said Maxant. “Ms. Conley has a very specific point.”

In response to a Nashoba Publishing article that discussed the public hearing debate, MassDevelopment asked Luca and Ayer Town Administrator Robert Pontbriand to clarify if the appropriate hearing process took place. Pontbriand asked town counsel Kopelman and Paige whether the selectmen could sign the warrant “if certain aspects of the public hearing were not exactly followed.”

Attorney Mark Reich responded Wednesday afternoon, explaining that the Devens governance legislation (Chapter 498 of the Acts of 1993) detail how zoning is changed within the Devens Regional Enterprise Zone but “does not, however, specify the procedure for the public hearings.”

As long as proper legal notice was published and posted, and citizens were “provided the opportunity to speak, the hearings constitute proper public hearings for the purposes of the Act.” The lack of meeting minutes, where the selectmen were seated in the room and the lack of formal votes of the selectmen to open and close the hearing were “minor ministerial matters and would not impact the adequacy and sufficiency of the hearings, in my opinion,” wrote Reich.

Former Ayer Conservation Commission member and candidate for the Ayer Planning Board David Bodurtha said the March 1 ‘hearing’ was “confusing.”

“To me it was a public ‘meeting,” said Bodurtha. “The conduct of the meeting is not anything I’ve ever seen for a public hearing. I still don’t know who published the public meeting notice. Who was at the bottom? Was it the Ayer board of Selectmen?”

“We published it,” said MassDevelopment Land Entitlement Director Edmund Starzec.

“We’ would be MassDevelopment,” clarified Conley.

“So why was the chair of the Ayer Board of Selectman [Luca] moderating and not MassDevelopment?” asked Bodurtha. “Why wasn’t it posted for the Board of Selectmen?”

Maxant warned that he’d soon leave to hop the commuter rail to Fitchburg for an MBTA public hearing on proposed cuts to services and proposed fee hikes on commuter rail service. If Maxant were to leave, that, too, would have killed the quorum.

“Why not our board at the table as a group? I’m not saying it was a requirement,” said Bodurtha. “But I’m not sure why my town government in Ayer chose not to do it as a group It caused confusion.”

Luca said the Board of Selectmen will debate the apartment proposal at its next meeting on Tuesday March 13. It’s not yet clear if the board will take a vote to clarify its collective position on the warrant article.

Bodurtha asked Starzec why MassDevelopment didn’t lead the hearing. “I wasn’t invited to the table,” answered Starzec. Luca noted that Starzec did field some audience questions at the hearing.

Bodurtha also agreed he’d “like to read the warrant before my town government puts it all in motion. I’ve never seen what the warrant is. This is an important issue to people in town.”

“I’m not prepared to do this tonight, and it has nothing to do with how I fall on the issue,” said Conley. “I received it this afternoon at 4:12 by email. I didn’t get out of work until 5. I came down here at 5:30 to pick it up. It’s 26 pages. I wouldn’t sign any document I haven’t read.”

Conley said there was no rush if Harvard selectmen hadn’t signed the warrant either. To sign without prior review would be “a disservice to the townspeople who rely on us to make these decisions.”

Starzec said the hearing did collect public comment. Emailed comments from Harvard selectman Marie Sobalvarro were woven into the final Memorandum of Agreement, Starzec said. “Now today you’re seeing the [final] legal language for the first time, I agree.”

“Do we want to vote on this or not,” said Luca. “Frank has to leave.”

“I’m not voting. I will remove myself from the meeting,” said Conley. “We can convene at another time.” Conley left the selectmen’s table and sat in the rear row of the audience.

“We can’t adjourn because we don’t have a quorum,” said Luca. “So I guess the meeting’s over.”

Luca assured Starzec, “We’ll schedule another meeting.” Selectmen Carolyn McCreary and Jim Fay were not present. Both have openly supported the proposal.

“Eventually we’ll run into printing logistics,” rued Starzec, who said the warrant must be mailed at least 14 days before Super Town Meeting, meaning they must be in mailboxes on March 14.

Harvard is meeting again on the morning of March 13 to consider voting on the warrant.

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