April 25 2016

Planning Board Responds to Finding of Open Meeting Law Violation

By: Rich Hosford

Members of the Planning Board responded to a finding of an Open Meeting Law violation filed by the Massachusetts’ Attorney General during the meeting last Thursday. 

As reported on BNEWS, the AG’s office determined the Burlington Planning Board violated the state’s Open Meeting Law by deliberating outside of a meeting when members took a list-minute action to file an appeal of a building permit for a hotel in The District. 

According to a letter the violation occurred when members of the Planning Department staffed, with the consent of Chair Barbara L’Heureux, called board members and polled them on whether they would support filing an appeal of the Building Inspector’s permit for the Residence Inn by Marriott in the office park. Because members felt the plans, which included cook-top stoves, violated the Planned Development District bylaw, they agreed. The reason the polling was done was because the planning department received the permit on the last day it was possible to file an appeal.  

Read more about the finding of the violation here


In the end, The AG’s office says it orders the board to comply with the Open Meeting Law and cautions that similar violations in the future may be considered evidence of intent to violate the law. It also ordered that the board review an Open Meeting Law training video. 


On Thursday members of the board, minus L’Heureux who was not in attendance, discussed the finding with the members of the Planning Department. 


One key talking point was that the AG’s office did not nullify the original action to appeal, something that was possible under an Open Meeting Law violation. 


“They could have nullified the action, which they did not,” Senior Planner Kristin Kassner said. “The action taken, the appeal, still stands.” 

Planning Board member Paul Raymond suggested he thinks the act by the board was justified. If they had waited to post a meeting, which requires 48 hours’ notice, they would have missed the deadline to appeal and the permit would have been issued without any contest. 


“I must say I feel no sense of guilt,” he said. 


In the end the board voted 6-0 to send a letter written by L’Heureux from the board to Town Meeting. It reads as follows: 


"Dear Town Meeting Members, 


We are writing to update you regarding the resolution of former Town Meeting Member Killilea’s Open Meeting Law Complaint against the Planning Board. As you are aware, Mr. Killilea’s complaint was in regards to the filing of an appeal of the Building Inspector’s permit to NEEP Realty Trust for the construction of a Marriott Residence Inn at The District, formerly known as New England Executive Park.” 


“On October 23, 2015, the Planning Board Chair asked our Planning Staff to call individual members of the Planning Board to ask them if they would support the filing of an appeal. The Chair did not realize, nor did any of the professionals consulted for advice, that the placing of those telephone calls constituted a violation of Open Meeting Law. The violation was inadvertent and not premeditated. However, it was still an error and for that the Chair apologizes.” 


“The Attorney General’s response to this complaint included a directive that each Planning Board member watch a brief video about Open Meeting Law and that we avoid any similar action in the future. All of the Planning Board Members have watched the video and have signed forms affirming their compliance with the directive. These forms will be sent to and kept on file at the state’s Division of Open Government. From this point forward the Planning Board will be more diligent and better informed about Open Meeting Law Regulations.” 


“Thank you for your attention to this matter. If you have any questions, please feel free to contact the Planning Office at 781-270-1645.” 




The Planning Board.”

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