Collusion accused in clam shack case: Residents question procedure resulting in new ZBA decision

NEWBURYPORT — Mark Roland thinks the decision to allow his renovated clam shack on Water Street to be turned into a single-family home is "tremendous."

Others, though, are crying foul at the decision this week by the Zoning Board of Appeals to grant a special permit to Roland after the board initially rejected it. At least four residents — including a city councilor and a former ZBA chairman — say the proceedings and the ultimate decision were the result of "political muscle" and "collusion" that ultimately ended in "travesty."

City Councilor Larry McCavitt, a steadfast and often outspoken advocate for the waterfront, said he questions what happened between March's meeting in which the ZBA rejected a variance and this week's meeting in which they approved a special permit.

The councilor says he thinks Mayor John Moak, the building commissioner, the applicant, the applicant's lawyer and "I wouldn't be surprised" if a board member, too, were "involved in conversations about this matter."

"What's happened or what's changed between (the March meeting) and now? Nothing factually has changed in the application," McCavitt says. "So what are we to conclude here? I'm concluding that there is something rotten in Newburyport. And I believe there has been collusion all around here."

Those who made the decision and those accused a playing a role in affecting the decision — including Moak — deny that anything untoward happened.

But contention on the fate of this 948-square-foot renovated clam shack at 269 Water St. is nothing new.

The 4-1 vote to approve came at the end of a nearly four-hour hearing Monday, ending a year's worth of public hearings.

Roland wouldn't say exactly, but with a laugh almost of disbelief admitted that his lawyer bills resulting from a months-long fight total "less than $30,000 and more than $10,000."

"But I was going to go to the end with this thing because I knew it was right," he said.

His proposal has been marked with controversy from the start, including when it was questioned whether Roland even owned the riverfront land or if the city owned it — something that remains unanswered but outside the purview of the ZBA.

Then in March, the ZBA voted 3-2 to reject a variance to allow Roland to make the clam shack into a single-family home. Much of the reason for that vote was based on safety concerns, minutes from that meeting show.

Even the merit of the meeting this week was questioned since it only took place after application filing discrepancies, an issue resolved after a private meeting with Roland and his attorney, Robert Brennan, the city solicitor and Moak.

Many recent complaints stem from the participation the solicitor, Ilana Quirk, who helped guide the proceedings, including providing a 14-point "findings guideline" that helped the board make a decision.

McCavitt, Bill Abbott, a former ZBA member and chairman, Harvey Beit, a retired attorney, and his wife, Norma, each say the inclusion of the lawyer in the meeting is something they've never witnessed before.

"Never before have we known that a city solicitor came to a meeting of the Zoning Board and set forth the criterion in which they made their decision," Norma Beit said. "So that was a little unsettling."

Harvey Beit, who said he is not suggesting corruption of board members, said the solicitor was there to ensure that the vote came out in Roland's favor, adding that "I do believe there was political muscle that entered the arena," coming in the form of the findings guidelines as "a control mechanism."

"I do feel in the last chapter, in act three, a political influence was exercised how very subtle it might have been," Beit said, later adding about Quirk: "Her job that night was to get them to vote for that permit. She was charged with a mission, and she executed it well."

McCavitt added: "I've never seen anything like it in my life. They are literally afraid of ruling against him."

Abbott, who spent a decade on the board, said he's never seen a solicitor play such a role.

"I think the proceedings were a travesty," he said.

Beit said if the vote was "done normally" — without the solicitor's influence — that "it would have been 3-2" denying the special permit.

Others, though, say it is a normal practice.

Moak said city attorneys often go to Planning Board and ZBA meetings to ensure proper legal proceedings.

"If the Zoning Board feels that this is an issue that needs that kind of support, then we need to do it," he said. "If it is a case that became very contentious, it is good protocol to have that done. All that she is doing is listening and presenting them the legal procedure."

About Quirk's "mission" to ensure the ZBA ruled in Roland's favor, Moak said: "She wasn't charged by me with any mission except to do one thing: to make sure the zoning board procedure was proper. She received no direction from me at all. I don't do that."

Robert Ciampitti, a ZBA member, said there is a "long and proud history" of enlisting legal advice from the city's solicitor.

"It is of great value and great merit that a city would undertake the expense to make sure that the board doesn't run afoul of what it is permitted to do," he said. "Given that level of heightened scrutiny it is even more important that members get some legal guidance."

Ciampitti said Quirk was there as an "objective" and "disinterested" person to provide "legal advice."

"You need to have some guidance when the issues get very complicated and cumbersome," he said. "These are issues that lawyers tangle with it."

As far as the statements of "political muscle" or "collusion," Ciampitti said: "Such a statement on its best day is irresponsible; on its worst day, utterly ridiculous."

Moak said as a neighbor of the clam shack he is happy that it will be used as a single-family home, be preserved and that Roland will have a chance to live there.

"I think it is a great use of that property," he said.

But the mayor said that in no way did he ever try to influence the outcome of the hearings.

He said only twice was he ever involved at all: when Roland's attorney felt he didn't get a fair hearing because of the filing discrepancies and the city's attorney recommended another hearing and when Quirk asked if it was OK to attend the ZBA hearing at the ZBA's request.

Moak said he never attempted to influence the outcome.

"I have to say to you that I'm appalled by the accusation," he said. "For anyone to imply that I spoke to anyone regarding this is untruthful, No. 1, and unsubstantiated, No. 2."

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