Council to consider ordinance change after Board of Appeals lawyer limits absent members' vote counting

Councilmembers reviewed a legal interpretation reported to the Board of Appeals that a town zoning code provision requires at least three members present during proceedings and prevents counting a member’s vote toward a decision if that member missed the meeting and did not concur with three members present. The board’s attorney cited section 290-32(c)(3) of the town zoning ordinance in explaining that a member who missed the hearing may participate in deliberations and vote, but that the member’s vote may not be counted unless it matches the vote of at least three other members present.

Council members argued the rule was applied midstream in a case that had extended for more than a year, and they said two long-serving Board of Appeals members who missed meetings for work or medical reasons were effectively converted to the role of public commenters. Several councilmembers expressed concern this midstream change was unfair and that only the council can amend ordinance language. Council instructed staff to consult the town attorney and to prepare an amendment to the zoning ordinance; members discussed using an emergency ordinance to make the change effective for the pending Board of Appeals case.

Council asked that, if the ordinance is changed to allow a missing member to vote, the member should be required to certify that they reviewed the recording and documents from the missed hearing before their vote is counted. Staff said they would consult the town attorney and prepare a path forward, including the feasibility of an emergency ordinance.