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North Stonington man says Zoning Board of Appeals barred him from public meeting

North Stonington — A local landscaper involved in a zoning battle with the town has filed a complaint with the state Freedom of Information Commission alleging the Zoning Board of Appeals held an illegal executive session on Oct. 24 to discuss his case.

Shawn Michael Ward alleges in his complaint that the board and its attorney, Thomas Collier of Mystic, barred him and two other residents from entering the meeting room to listen to members vote to go into executive session, illegally took votes inside the closed session and then did not properly return to open session to vote and adjourn. In addition, he alleges Collier appealed a Superior Court decision in Ward’s favor to the state Appellate Court without board authorization.

Collier said that while the town does not agree with how Ward has characterized the events at the meeting, it recognizes his right to purse a Freedom of Information claim. He said the meeting was proper and the town has a right to hold an executive session.

The meeting, held in the Wheeler Middle/High School media center, was posted and listed an executive session would be held. The agenda shows an executive session “to discuss recent Ward decision and review status and basis of certification for appellate review.”

FOI law allows the public to attend that portion of the meeting before the executive session to listen to the motion, reason and vote to go into executive session and who the board is inviting to attend the closed session. The law also does not allow any votes to be taken in executive session. In addition, the board has to return to open session to vote and also has to return to open session after the executive session to consider any other agenda items or to adjourn.

Draft minutes of the meeting show the board voted 4-2 to allow Zoning Officer Juliet Hodge to be in the room during the executive session. The minutes show no vote to enter executive session. The minutes state the executive session ended at 7:14 p.m. “with no decisions made and no votes taken” but makes no mention of returning to open session. The minutes state a motion was made, seconded and passed to adjourn the meeting. The minutes do not state if the votes to invite Hodge into the executive session and to adjourn were taken in open or closed session.

ZBA Vice Chairman James Lord did not return a phone call seeking comment about the conduct of the Oct. 24 meeting.

The FOI complaint by Ward is the latest development in a long-running saga between Ward and the town over his landscaping and tree farm business, which he has operated since 2000 at 79 Pine Woods Road.

In late 2017, Hodge, the town’s zoning officer, issued a notice of violation to Ward saying he was illegally operating an unpermitted business on his property. Ward appealed the notice to the ZBA, which upheld her decision. Ward then appealed to Superior Court, where a judge reversed the order in Ward’s favor.

Collier then filed a petition for certification for review with the state Appellate Court, essentially a request that the appellate court consider the case. Ward states in his appeal that Collier did so without the authorization or consent of the ZBA in order to meet the filing deadline.

The filing of the request is not a decision to appeal. The ZBA still would have to vote to appeal if the court decided to hear the case. Filing the petition, however, preserves the town’s rights if it decides to appeal.

There is no assurance the appellate court will agree to hear the case.

In his complaint to the Freedom of Information Commission, Ward charged that the ZBA’s conduct of its Oct. 24 meeting violated multiple provisions of the FOI Act, going “far beyond technical mistakes or simple omissions.”

Ward argued that the fact the ZBA had scheduled an executive session during a special meeting does not turn the entire special meeting into an executive session where members of the public can be excluded. He said he also was threatened with arrest if he did not leave the school.

Ward stated in his FOI complaint that the draft minutes of the special meeting contain no record of a vote to go into executive session, only a vote to invite Hodge into the session. Ward said those votes were taken in private and not in public, as state law requires. In addition, the board has five members and three alternates, so he said the 4-2 vote means six people, including an alternate, voted — one more than the law allows.

Ward said it also appeared the ZBA took two votes during the executive session, which he could see through the windows of the school media center.

Ward offers detailed accounting of the Oct. 24 meeting in his complaint to the FOI commission.

He said that when he arrived with his wife, Chris-Ann Ward, about 10 minutes before the 6 p.m. meeting was set to begin, Collier told him that he was not allowed to attend the special meeting. Ward said he responded by telling Collier that it was a public meeting and he had the right to observe the vote to go into executive session. He said Collier told him to leave the school or Collier would call state police and have Ward arrested.

As board members arrived, Ward said one of his neighbors also tried to enter the library but was told she was not allowed to enter the room. He said he, his wife and the neighbor then waited in the hallway and looked through the glass windows.

Ward said the meeting appeared to begin at 6:10 p.m. and he saw the board take some sort of vote after discussions with Collier.

He said Collier then came out into the hallway and announced the ZBA was now in executive session and that they could not enter the room. Ward said the discussion continued for an hour or so, at which time it appeared the ZBA took another vote. Soon after, he said the ZBA adjourned and left the building with Collier.

Ward stated in his complaint that the violations he describes “are not insignificant but constitute willful disregard for the provisions of the Freedom of Information Act and the rights of the general public. The Board and its staff, especially its staff attorney, should not be allowed to demonstrate contempt and disdain for Connecticut’s open meeting laws.”

Ward requested that the FOI commission investigate and, upon confirming the violations he describes, impose a significant fine, require the ZBA and its staff to undergo mandatory FOI training and declare that all ZBA actions taken at the special meeting null and void.

j.wojtas@theday.com

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