Massachusetts AG’s Office Finds Plymouth ZBA and Select Board Violated Open Meeting Law

(BOSTON) — The Office of the Massachusetts Attorney General has determined that the Plymouth Zoning Board of Appeals and the Plymouth Select Board violated the Massachusetts Open Meeting Law (M.G.L. c. 30A, §§ 18-25).

The matter arose from five complaints made to the Attorney General’s Office (AGO) by Attorney Margaret Sheehan in December, 2022, and January, 2023, on behalf of the environmental groups The Community Land and Water Coalition (CLWC) and Save The Pine Barrens (STPB). The complaints relate to a November 15, 2022, meeting in executive session of both boards, held to discuss and vote on an agreement with real estate developers Claremont Plymouth, LLC, with respect to water supply, infrastructure, and Claremont’s proposal — since approved by the ZBA — to build 348 apartment units at Colony Place in West Plymouth (note: “The Board” in the AGO determination refers to the Select Board; the Zoning Board is referred to as “the ZBA”).

(Plymouth Town Hall; photo credit — J. Benjamin Cronin.)

The Office of the Attorney General’s Determination

“Together the complaints allege that with respect to a November 15, 2022, meeting 1) the Board and the ZBA held a joint executive session for an improper purpose; 2) the ZBA did not post notice or create minutes for the executive session; 3) the Board’s meeting notice was insufficiently specific; 4) the Board acted in its capacity as the board of water commissioners without posting notice that it would do so; and 5) the Board’s minutes of the executive session are insufficient,” wrote Assistant Attorney General Elizabeth Carnes Flynn, of the AGO’s Division of Open Government, to Attorney Michael A. Bergeron, of the firm of Reservitz and Bergeron, in-house Town Counsel for the Town of Plymouth, in the August 4th, 2023 determination. 

The AGO found that the ZBA and Select Board violated the Open Meeting Law in four of the five instances alleged. 

“.... [W]e find that the Board and the ZBA violated the Open Meeting Law as alleged except with respect to the allegation that the Board should have posted notice as the board of water commissioners. We order the Board’s and the ZBA’s immediate and future compliance with the Open Meeting Law and warn that a finding of similar violations in the future may be considered evidence of an intent to … violate the Law,” wrote Assistant Attorney General Flynn.

“Additionally, we order the Board to amend its minutes of the November 15 executive session to include an accurate summary of the discussions held and to include a list of any documents used during the executive session. We order the ZBA to create minutes for the November 15 executive session, or to review and adopt the Board’s minutes once those minutes are amended to come into compliance with the Open Meeting Law and this order,” Assistant Attorney General Flynn wrote.

”Additionally, we order the Board to release to the public the amended minutes in their entirety with respect to the discussions of 174 Colony Place. We also order the ZBA to release to the public its minutes of the November 15 executive session, in their entirety, whether creating its own minutes or adopting the Board’s amended minutes. We order the Board and the ZBA to certify in writing to this office that they have complied with this order within thirty (30) days of receipt of this letter,” wrote Assistant Attorney General Flynn.

The AGO ordered remedial action on the part of both the ZBA and the Select Board.

“Additionally, in light of the number and breadth of Open Meeting Law violations found here, we order all members of the Board and the ZBA to attend an Open Meeting Law webinar training presented by our office within ninety (90) days of the Board’s receipt of this letter and to certify to our office that they have done so within ninety-five (95) days of receipt of this letter,” wrote Assistant Attorney General Flynn.

(Lot 26-26, one of the two parcels in question; credit — Town of Plymouth Assessor Maps.)

The Broader Context: Claremont, Water Concerns, 40B and the MBTA Communities Law; Comments on the Determination

Claremont Plymouth, LLC, is part of the Claremont Companies, Bridgewater-based real estate developers who are also attempting to build a massive development on Lake Nippenicket in Bridgewater, which residents and activists argue violates many layers of environmental protection which are supposed to preserve the area in question.

In Plymouth, the chief concern of residents and activists with respect to Claremont is water. 

A January 15th, 2019, analysis by Environmental Partners of the effects of the construction of a 40B project on Home Depot Drive — the apartment complex known today as The Oasis at Plymouth — on the Town’s water and sewer systems was sent to Town Water and Sewer Engineer Sheila Sgarzi, P.E. The review found that The Oasis project, since completed, would have a significant effect on the water system in the northern part of the Town.

“This project would significantly increase the deficit in the Northern Plymouth Zones to approximately 180,000 gallons per day,” wrote Environmental Partners principals Ryan J. Trahan, P.E., and Ziad F. Kary, P.E.

“Whereas previously only South Pond Well No. 2 was a large enough source to trigger a deficit in firm capacity scenarios, the addition of the Home Depot Drive Development assigns that status to two additional sources. With the installation of this new development, if any of the following sources are offline, the Northern Plymouth Zones will experience a deficit:

1. South Pond Well No. 2

2. North Plymouth Well

3. Bradford Treatment Plant

If either of these wells is taken offline during the summer months, or an issue at the Bradford Treatment Plant renders both Bradford Wells unusable, the Town can anticipate a steady decline in tank levels in the North Plymouth pressure zones until the source can be reinstated. Particularly with the increased run times anticipated at the Bradford Wells, this represents a significant increase in the risk of an experienced water shortage,” wrote Mr. Trahan and Mr. Kary.

On December 6th, 2022, the Plymouth Water Conservation Committee presented to the Select Board the results of a two-year study, which found that the viability of the Town’s water system was threatened by untrammeled development.

Critics worry that 348 units from Claremont Plymouth LLC, on top of the 300+ units from The Oasis, would have a negative effect on water availability.

Further complicating matters are two mandates handed down from Beacon Hill relating to housing. The first, Chapter 40B of the Massachusetts General Laws, allows developers to circumvent local zoning bylaws and regulations for any Town or City that has not achieved 10% affordable housing stock. The second law is the MBTA Communities Law (M.G.L. c.40A Sec. 3A), which requires municipalities with MBTA service, as well as those adjacent thereto, to zone for a certain number of dense, multi-family housing by-right. These laws place certain inexorable, pressures on communities, which are also suffering from a serious and protracted housing crisis.

The Community Land and Water Coalition (CLWC) described the agreement between the ZBA and the Select Board, on the one hand, and Claremont Plymouth, LLC, on the other:

“The Agreement provides that in exchange for a special permit from the ZBA, Claremont will pay the Town about $2 million for a new water pump for the West Plymouth Water District. What the Town officials did not disclose is that Claremont will actually pay about $700,000 because the Selectboard and ZBA agreed to waive about $1.3 million in building and reduce the affordable housing trust fees by 23%,” wrote the CLWC.

Attorney Margaret Sheehan, who brought the complaints, gave her view on the AGO’s determination.

“We are pulling back the veil of secrecy in the way the Selectboard and ZBA operate. Making secret deals with private developers is an egregious abuse of the Open Meeting Law,” said Ms. Sheehan.

“The Selectboard, ZBA, Conservation Commission and Planning Board are showing a clear bias in favor of developers. Making backroom deals harms the public interest in making sure our laws are followed to ensure clean water and a sustainable environment. Secret meetings, rubber stamp permits and secret deals will not be tolerated,” she said.

Selectman Kevin Canty, the present Vice Chair of the Select Board, was elected in May, 2023, and did not sit on the Board at the time of the Open Meeting Law violations last November. He made the following statement on the matter:

“I was not on the Select Board when the meeting at issue occurred, but I think it's important to highlight that the Attorney General's office determined that the Select Board had not violated the Open Meeting Law intentionally here, and I look forward to the Board moving forward and continuing our important work after learning from this experience," Selectman Canty told The Plymouth County Observer.

Selectman Richard Quintal, presently the Chair of the Select Board, and who served as the Vice Chair at the time of the violations, declined comment (former Selectwoman Betty Cavacco was the Chair at the time; her term on the Board ended in May).

At publication time, the ZBA did not respond to requests over the weekend for comment — though to be fair to the ZBA, this request was made on Saturday, August 12th, rather than a business day.

The Chairman of the ZBA, Michael Main, has clashed with Attorney Sheehan in the past, including at a January 4th, 2023, ZBA Meeting that was characterized by widespread concerns surrounding procedural fairness, which I reported on here.

Precinct Two Town Meeting Member Richard Serkey, who has consistently raised his concerns with the Board vis-a-vis the Open Meeting Law, praised the AG Office’s determination.

“I am very gratified by the recent determination letter from the AG,” Mr. Serkey told The Plymouth County Observer. 

“For too long, the Plymouth SB has been violating the OML. When confronted with OML complaints, the SB has too often chosen to double down, by refusing to take corrective action and by choosing instead to tar the reputations of the complainants and then blame them for the legal fees incurred by the Town in defending against them. I know, because I was one of them,” he said.

The exchange between Mr. Serkey and members of the Select Board occurred at a contentious Dec. 13th, 2022, meeting of the Select Board. At press time, the official minutes of that meeting have not been posted to the Town’s website. However, video and a transcript is available here, via Plymouth On The Record.

“The SB seems to view the OML as nothing more than a pesky fly,” said Mr. Serkey, rather “than an antibiotic. The OML is not a list of suggestions. It is a list of requirements.”

Pamela Magnarelli, a resident of the neighborhood, spoke of her disappointment at the violations.

"As one of the residents who will be aggrieved by the new Claremont development, it was very disheartening to learn that the Town Selectboard and ZBA were violating Open Meeting Laws during negotiations with Claremont. Discussions concerning development in Plymouth must always include public input, especially as it relates to the impact on the natural environment. Improper executive sessions that only look at a developers' point of view are detrimental to all Plymouth residents,” she said.

“We don't need to go back any further than this current year to see how climate change is impacting Plymouth, the United States and the world. Plymouth residents need to have the opportunity to hear and evaluate Town proposals and express concerns on how the Claremont project (or any project) is going to affect water quality and quantity, pollution, wildlife, and density for a part of West Plymouth that has seen enormous residential and commercial growth in the past two years," said Ms. Magnarelli. 

The Plymouth Zoning Board of Appeals is scheduled to meet tonight, Monday, August 14th, at 7pm at Plymouth Town Hall. The Plymouth Select Board will meet next on Tuesday, August 22nd, 2023.