April 14 2016

Attorney General's Office Says Planning Board Violated Open Meeting Law

By: Rich Hosford

The Massachusetts Attorney General’s Office has 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 an April 5 finding signed by Assistant Attorney General Hanne Rush of the Division of Open Government, the investigation into the possible violation came in response to a complaint from Tom Killilea, who was at the time a Town Meeting member. 

In the letter Rush outlines the complaint, the board’s response and the details of the case. 

The letter states that on August 1, 2014 the Planning Board approved a special permit for a mixed-use development of the New England Executive Park (now called The District), which included plans to build a full service hotel as part of the Planned Development District (PDD) for New England Executive Park. 


“The PDD required the hotel to be a full-service hotel (ie., a hotel without individual kitchens), rather than a residence hotel,” the letter reads. 

The letter continues that in September of 2015 Burlington’s Inspector of Buildings issued a building permit for the construction of a Residence Inn by Marriott in The District. A copy of the permit was not turned over to the planning department until October 23, the last day possible to file an appeal (30 days since it was issued). According to the AG’s office Senior Planner Josh Morris, who thought he detected possible deficiencies with the construction plans, called Planning Board Chair Barbara L’Heureux about this and invited her to review them. 


Morris, L’Hearuex and Assistant Planner Elizabeth Bonventre reviewed the construction plans and determined that they were inconstant with the language of the PDD zoning provision for the project, the letter says. They decided it was necessary to file an appeal with the Zoning Board of Appeals. 


“With only hours before the deadline to file an appeal, Chariman L’Heureux asked Mr. Morris and Ms. Bonventre to call the other board members to determine whether they supported the filing of an appeal to the ZBA,” the letter states. “Mr. Morris spoke individually with board members Ernest Covino and William Gaffney, while Ms. Bonventre spoke individually with board members Paul Raymond and John Kelly. Each member expressed their support for filing the appeal.” 


It was this action that the AG’s office says is a violation of the open meeting law. 


“The Board used Planning Department staff to poll individual board members in order to reach a decision,” the letter reads. “A public body may not use a non-member, such as a staff member, to communicate on matters that the board would otherwise save for discussion at an open meeting.” 


The board members did vote after the fact, on November 5, to ratify the appeal and disclosed the details of the events leading up to it, including how the board members were polled to reach the decision. This was not, however, sufficient to remedy the situation, the AG’s office states. 


“The board’s ratification of this decision during its next meeting does not sufficiently remedy the serious violation committed,” the decision reads. “First, the topic listed on the notice did not identify the reasons for the discussion about that particular hotel: namely, the public disclosure of the board’s private decision to file an appeal to the ZBA. During the meeting, the board cursorily explained and ratified its actions, but took no time to discuss any possible missteps.” 


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. 


L’Heureux said in an interview with BNEWS that at the time she and the Planning Department staff members were unaware they were violating the Open Meeting Law. They were unable to reach town counsel that day, she added, but said they got feedback from two knowledgable professionals that said if staff made the calls they would be in the clear. 

“I knew that if I had made the phone calls that would be a violation,” she said. “I truly believed if I had staff make them and not say who said what, it would not be. That was the mistake we made.”


She also said that she now acknowledges the mistake. 


“It was a mistake, I acknowledge that,” she said. “I’m sorry for it, now I understand it, and it won’t happen again.”


Finally, she said that at the time she was not aware that she could have filed the appeal as an individual, something not normally done by a board member and a move that does entail some risk. In the future, should the unlikely scenario of something similar happening again, she said she’d have to make a difficult choice. 


“If we are presented the same situation again, I would have to decide to file as an individual or allow the violation to occur,” she said. “Most likely I’d have to let the violation occur.” 

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