1985 ruling indicates Lynn ZBA has been incorrectly appointed

It started out with Mayor Judith Flanagan Kennedy looking for what she thought would be a simple answer to a simple question. It turns out it was not so simple.

While reviewing the makeup of several city boards and commissions, the mayor discovered that the term of one of the members of the Zoning Board of Appeals – John Volo – had expired Jan. 1 of this year. That led to the question of who would make the appointment to fill that position.

While Kennedy knew in her experience the City Council had made ZBA appointments, she did some research and, with the help of City Solicitor Michael Barry, discovered Lynn has been doing it incorrectly for the last quarter-century.

“The Board of Appeals was created pursuant to Mass General Laws Chapter 40A, Section 12 – www.mass.gov/legis/laws/mgl/40a-12.htm), which states that unless otherwise provided by charter, the board is appointed by the mayor, subject to confirmation by the City Council,” said Kennedy, who immediately sought an opinion from Barry.

It did not take long for Barry to give the mayor an opinion, and with good reason. The city solicitor produced a legal opinion he originally rendered on March 13, 1985 (when he was assistant solicitor) to then-Mayor Antonio Marino, informing the mayor that by state law the mayor has the authority to appoint ZBA members.

Kennedy then reviewed the city charter to see if there is anything in it transferring the ZBA appointing powers to the City Council; there is not.

Neither Kennedy nor Barry knows how or why the authority was transferred to the City Council, but both are sure it was done in error.

“I asked the city solicitor how we should proceed and he advised me that we should research the legal issues of what steps must be taken to validate the actions of the board to date, and whether to ratify the existing board members or advertise and re-appoint all five positions,” Kennedy said. “If we must advertise the positions, all the current members are encouraged to reapply. They will be considered along with any other applicants. This s not a reflection of anyone’s service on the board. We are simply trying to correct a 25-year mistake.”

The current members of the ZBA are: Kathryn P. Brown, Patrick B. Calnan, Norman R. Cole, Jeanne M. Curley and Volo. There are also four associate members who do not vote on matters before the board unless to replace a member who must recuse himself from voting on a particular issue.

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