SOD's Request to Recall Architect Denied

Board Attorney informs SOD that the Zoning Board's protocol and by-laws prohibit recalling an applicant's expert witness.

Miriam Pickett, Executive Director of made a request to the Zoning Board of Adjustment that the architect of the be recalled to answer additional questions and provide clarification. 

Pickett said that she was making the request on behalf of a member of SOD who is an architect who would like to professionally question Christian Lessard of Lessard Architectural Group, the developer's architect. Pickett explained to the board that at the time of , SOD had not yet been formed. Now that they have organized and have had time to process the size and the scope of the proposed development, they have specific questions regarding the design of the structures and land.   

While Zoning Board attorney Scott Sproviero acknowledged that he understood Pickett's request and the circumstances behind it, he said that neither the board, nor the protocol of the board, permits the recall of a witness whose testimony is over. 

"I see no justification factual or otherwise," Sproviero said. 

Pickett challenged, "We've been criticized for asking Dipple (Hekemian's civil engineer) questions that he can't answer and we're told it's a question for the architect."  

Sproviero countered that all the legal means were presented to them and told Pickett that the applicant has followed legal procedure in presenting his expert. Sproviero stressed that they cannot request that the architect return after he had already appeared, testified and had answered the public's questions. According to Sproviero, to reopen his testimony just because SOD had not yet been organized after his portion of the testimony was officially closed, does not follow procedure.

"It's incumbent on you to be prepared. That time has come and gone; the witness has been discharged," he said.

Sproviero recommended to the board that Pickett's request not be entertained. 

Board member Eileen DeBari asked Sproviero, "If the applicant's architect can't answer the public's questions, isn't he obliged to come back?"

Sproviero said he is not obliged to return, saying that the record will reflect his answers, or lack thereof.

Board member Joe Loonam asked if the board could make a request that Lessard return, but after being asked by Sproviero, the attorney for the applicant said, "We are not predisposed to bring the architect back."  

Sproviero said that it is the burden of applicant to convince the board that they have satisfied all of the board's questions regarding the application in order to make a decision on whether or not to grant the variances.

"If you feel they haven't satisfied the board, then that plays into your decision," Sproviero said. 


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Ann Piccirillo August 26, 2012 at 06:12 PM
Thank you Joe, but I firmly stand by what I wrote. I have reviewed my audio tapes from that meeting and here are the direct quotes from Board Attorney Scott Sproviero regarding SOD Executive Director Miriam Pickett's letter to the board requesting that Hekemian's architect be recalled for questioning by SOD. "Neither the board, or the protocol, or the bylaws permit that to happen. While I understand your request and the circumstances behind your request, my opinion to the board is that neither the board, or the protocol of the board permits that. I just don't see any justification, either factual or legal, to support that request, and my opinion to the board is that that request not be entertained."
Ulises August 26, 2012 at 09:32 PM
Thank you Miriam for asking the ZB. SOD! www.sodnow.org
Al Alonso August 27, 2012 at 12:22 AM
Mr. Sproviero's comments should not be read literally, but rather within the context of a legal opinion. I agree with Mr. Sproviero that board cannot ask an applicant to recall a witness for the reasons stated. However, you must keep in mind that it is the applicant who has the burden of presenting sufficient evidence in support of the grant of a variance. Failure to do so will result in a denial of the application. Therefore, if the board feels that there are architectural issues that have not been satisfactorily addressed, they have the right to request that the applicant present the architect for additional testimony. If requested to do so, the applicant will acquiesce because failure to do so may result in the denial. Just recall that the board has requested that Mr. Dipple revise his plans and provided additional information after my cross examination disclosed that his plans were either incomplete or incorrect. Mr. Dipple will be required to do this before the board takes a vote. The board has done this even though the witness has been discharged. Given the issues raised so far, I wouldn't be surprised if the board recalls the architect, although not for the reasons set forth by SOD in their request.
Ann Piccirillo August 27, 2012 at 01:49 AM
Editorial interjection: I ask that the weight of comments be measured before the "send" button is pressed. As editor, I ask that we keep the remarks relevant to the information contained within the story. Comments containing serious accusations with no basis in fact or unfounded truths designed to throw the discussion off course is not something that will be tolerated.


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