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Settlement

Settlement  Disposition Agreement in the Matter of Kirk Moschetti

Date: 09/17/2020
Organization: State Ethics Commission
Docket Number: 20-0009
Referenced Sources: G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011

Contact   for 20-0009 Disposition Agreement in the Matter of Kirk Moschetti

State Ethics Commission

Table of Contents

Disposition Agreement

The State Ethics Commission (“Commission”) and Kirk Moschetti (“Moschetti”) enter into this Disposition Agreement pursuant to Section 3 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j). 

On June 20, 2019, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A.  On December 19, 2019, the Commission concluded its inquiry and found reasonable cause to believe that Moschetti violated G.L. c. 268A, § 19.

The Commission and Moschetti now agree to the following findings of fact and conclusions of law:

Findings of Fact 

1.            Moschetti, a resident of the Town of Templeton (“Town”), has served as an elected member of the seven-member Town Planning Board (“Planning Board” or “Board”) for approximately fifteen years. Moschetti has been the Chair of the Planning Board for the past fourteen years. 

2.            During the relevant period, the population of Templeton was approximately 8,013.

3.            Moschetti owns, and at all times here relevant has owned, residential property on Rice Road in Templeton which is in a residential zone.

4.            Moschetti’s father also owns, and at all times here relevant has owned, property on Rice Road in Templeton. Moschetti’s father’s property includes his residence and his septic installation, pumping, and repair business. Although Moschetti’s father’s property is in a residential zone, his septic business has preexisting non-conforming commercial use status. As such, Moschetti’s father’s business use of his Rice Road property is limited to those related to the original business of operating a septic business.

5.            On October 12, 2017, Moschetti purchased an automobile storage business property on Baldwinville Road in Templeton. Although the property is in a residential zone, it has preexisting non-conforming commercial use status. As such, Moschetti’s commercial use of the property is limited to those related to the original business of automobile storage.

6.            At a Planning Board meeting on July 11, 2017, the Board discussed proposing to Town Meeting warrant articles rezoning certain areas of Town, including an area of Patriots Road/Route 2A and an area of Baldwinville Road, to increase the Town’s commercial property tax base. Some Board members stated at the meeting that the Patriots Road/Route 2A area and Baldwinville Road areas had a significant number of preexisting non-conforming businesses operating in residential zones.

7.            Moschetti participated as a Planning Board member in the July 11, 2017 rezoning discussion by suggesting the Board consider proposing additional commercial zoning and advocating to rezone both areas.

8.            During the July 11, 2017 Planning Board meeting, Moschetti stated that he “had a conflict” with the rezoning proposal because he “owned property.” As Planning Board Chair, Moschetti stated that any Board members who owned property in the relevant areas could participate in the discussion provided they disclosed their property ownership.

9.            At the July 11, 2017 Planning Board meeting, the Board discussed proposing the rezoning of fifty-three properties in the area of Patriots Road/Route 2A, including Moschetti’s and his father’s Rice Road properties.  At all relevant times, Moschetti knew that the area proposed for rezoning included his and his father’s Rice Road properties.

10.          At the July 11, 2017 Planning Board meeting, the Board also discussed proposing the rezoning of fifteen properties on Baldwinville Road, including Moschetti’s automobile storage business property.  At all relevant times, Moschetti knew that the area proposed for rezoning included the Baldwinville Road property he was interested in purchasing and subsequently purchased.

11.          On September 19, 2017, the Planning Board held a public hearing on the two rezoning proposals. Moschetti participated as a Planning Board member in the September 19, 2017 public hearing by assuring a concerned resident of the Baldwinville Road area that construction would not create water issues in the resident’s yard. Following the public hearing, Moschetti voted “yes” on a motion to change the zoning of certain parcels on Patriots Road/Route 2A from “Residential” to “Highway Business.”1 At the time of the vote, Moschetti stated that he owned property in the relevant area.

12.          Following the vote on the motion to change the zoning of certain parcels on Patriots Road/Route 2A, the Planning Board voted on a motion to change the zoning of certain parcels on Baldwinville Road from “Residential” to “Highway Business.”  According to the meeting minutes, Moschetti abstained from the vote due to “potential financial investment.” In a sworn interview, Moschetti testified that he abstained because he knew he was interested in purchasing the Baldwinville Road business property, and that he announced he might be purchasing the property.

13.          In a sworn interview, Moschetti testified that he believed he could vote on the proposed rezoning of the Patriots Road/Route 2A area because his residence already existed, but that he should abstain on the proposed rezoning of the Baldwinville Road area where he intended to purchase the business.  

14.          The two proposed rezoning warrant articles were put on the agenda for the Town Meeting held on November 14, 2017.

15.          Moschetti participated as a Planning Board member at the November 14, 2017 Town Meeting by advocating for the two rezoning articles on behalf of the Planning Board. Moschetti stated that the proposal would not affect residents and would allow the Town to increase its commercial property tax base. Moschetti stated that he owned property in both areas proposed to be rezoned, but that his businesses would not be affected by the proposed changes.

16.          The rezoning articles did not pass at the 2017 Town Meeting.

17.          On November 13, 2018, the Planning Board held a public meeting to discuss submitting to the spring 2019 Town Meeting warrant articles rezoning the same areas of Patriots Road/Route 2A and Baldwinville Road that the Board had unsuccessfully proposed be rezoned in 2017.

18.          During the November 13, 2018 Planning Board meeting, Moschetti read aloud from a Town resident’s letter to the Board that questioned certain Board members, including Moschetti, owning property in the areas to be rezoned. A second resident, present at the meeting, questioned the Board’s repeated attempts to rezone areas where certain members of the Board owned property.

19.          Moschetti participated as Planning Board Chair in the November 13, 2018 public hearing by stating in reply to the residents’ questions, that “Ethics was not up for discussion.” Moschetti stated further that Board members had “done a full disclosure” and claimed that the Board was trying to encourage business. Moschetti insisted that public comment be limited to zoning suggestions.

20.          After many Patriots Road/Route 2A-area residents expressed their opposition to rezoning at the November 13, 2018 Board meeting, the Planning Board discussed not including the Patriots Road/Route 2A area in a rezoning recommendation to Town Meeting.

21.          Following the November 13, 2018 discussion, the Board voted to schedule a public hearing on rezoning only the proposed section of Baldwinville Road. Moschetti stated that he owned property in the Baldwinville Road area proposed for rezoning and abstained from the vote to proceed only as to the Baldwinville Road rezoning proposal.

22.          On December 11, 2018, the Board held a public hearing on rezoning the proposed section of Baldwinville Road. Moschetti participated as a Planning Board member by stating that residential homes in the area would not be impacted by the change because the area is already busy from a nearby school. Moschetti stated that he owned “the biggest parcel” in the area proposed for rezoning, but that the property was “already grandfathered commercial, so it’s really irrelevant.” Moschetti abstained from the Board’s vote to change the zoning of certain parcels on Baldwinville Road from “Residential” to “Commercial/Industrial B.”

23.          Immediately following the Board’s December 13, 2018 vote, with Moschetti abstaining, to change the zoning of certain parcels on Baldwinville Road from “Residential” to “Commercial/Industrial B,” the Board voted to substitute “Commercial/Industrial A” zoning in its recommendation because “Commercial/Industrial B” zoning would have allowed for adult entertainment, which the Board had not intended. Moschetti voted in favor of the substitution.

24.          The proposed rezoning warrant article was put on the agenda for the Town Meeting held on May 16, 2019.

25.          Moschetti participated as a Planning Board Chair at the May 16, 2019 Town Meeting by answering residents’ questions about the impact of a zoning change on residential homes. The rezoning warrant article passed.

Conclusions of Law

Section 19

26.          Section 19 of G.L. c. 268A prohibits a municipal employee from participating2  as such an employee in a particular matter3  in which, to his knowledge, he or an immediate family member4  has a financial interest5.

27.           As a member of the Planning Board, Moschetti is a municipal employee as that term is defined in G.L. c. 268A, § 1(g). 

28.          The Planning Board’s decisions in 2017 and 2018 to submit to Town Meeting warrant articles rezoning portions of Patriots Road/Route 2A and Baldwinville Road were particular matters. 

29.          Moschetti participated in the rezoning particular matters as Planning Board Chair by discussing the rezoning proposals, voting to recommend to Town Meeting the warrant article to rezone a portion of Patriots Road/Route 2A on September 19, 2017, and advocating for the rezoning warrant articles at Town Meetings on November 14, 2017, and May 16, 2019. 

30.          Moschetti’s father is his immediate family member.

31.          At the time of his participation as a Planning Board member in the rezoning particular matters, Moschetti and his immediate family had to his knowledge a financial interest in the matters because the proposed Patriots Road/Route 2A and Baldwinville Road area zoning changes would allow greater development opportunities on his Baldwinville Road property and on his and his fathers’ Rice Road properties. The ability to commercially develop the properties with fewer restrictions would have increased their value for Moschetti and his father and any potential purchasers of the property. As a matter of law, Moschetti and his father had a financial interest in the zoning changes affecting the use of their properties.6  

32.          The exemption to § 19 stated in § 19(b)(3)7  did not apply because Moschetti’s financial interest in the rezoning proposals, and that of his father, was not shared with a substantial segment of the population of Templeton.8

33.          Therefore, Moschetti violated § 19 by participating as Planning Board Chair in the Board’s decisions whether to submit warrant articles rezoning portions of Patriots Road/Route 2A and Baldwinville Road. 

Resolution

In view of the foregoing violations of G.L. c. 268A by Moschetti, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the following terms and conditions agreed to by Moschetti:

(1)          that Moschetti pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $5,000 as a civil penalty for violating G.L. c. 268A, § 19; and

 (2)         that Moschetti waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

By signing below, Moschetti acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to the terms and conditions herein.

 

STATE ETHICS COMMISSION

 

Contact   for 20-0009 Disposition Agreement in the Matter of Kirk Moschetti

[1] Because the Planning Board did not have the authority to itself change the zoning bylaw, these votes were effectively to submit the rezoning warrant articles to Town Meeting.

[2] “Participate” means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.  G.L. c. 268A, § 1(j).

[3] “Particular matter” means any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.  G.L. c. 268A, § 1(k).

[4] “Immediate family” means the employee and his spouse, and their parents, children, brothers and sisters.  G.L. c. 268A, § 1(e).

[5] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the population of the municipality.  See Graham v. McGrail, 370 Mass. 133 (1976).  This definition has embraced private interests, no matter how small, which are direct, immediate or reasonably foreseeable.  See EC-COI-84-98.  The interest can be affected in either a positive or negative way.  EC-COI-84-96.

[6] See Commission Advisory No. 05-02: "Voting on Matters Affecting Abutting or Nearby Property," which states: "Under the conflict of interest law, a property owner is presumed to have a financial interest when…the matter would otherwise alter her property value, rights or use. For example, a property owner is presumed to have a financial interest in zoning changes, variances, nearby subdivision or development approvals, and roadway, sewerage or safety improvements."

[7] Section 19(b)(3) of G.L. c. 268A provides that § 19 is not violated if the particular matter involves a determination of general policy and the interest of the municipal employee or members of his immediate family is shared with a substantial segment of the population of the municipality.

[8] Under Commission precedent, a “substantial segment” is ten percent or more of the population. See EC-COI-93-20; EC-COI-92-34. Because fewer than ten percent of Templeton’s population owned property in the areas of Patriots Road/Route 2A and Baldwinville Road to be rezoned, Moschetti’s financial interest in the rezoning proposal, and that of his father, was not shared with a substantial segment of the Town’s population.

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