There were three attendees in the audience of the May 21 meeting of the Marion Planning Board, two of which were attorneys.

At issue was an Open Meeting Law (OML) complaint filed by Attorney John Mathieu on behalf of his client Chris Loranger and 324 Front Street JV, LLC.

The complaint alleges the Planning Board members violated the OML by communicating with each other via emails about the project after the April 17 meeting during which the members discussed Loranger’s project on Front Street.

In the complaint, a copy of an email from Administrative Assistant Maureen Murphy asked the members to refrain from further emails, since their discussions were considered “deliberations” and can only occur at a public meeting.

The complaint, which alleges allthe Planning Board members committed the violation, states that after the April 17 meeting “…[The] Board continued Deliberations by emails between the members on April 19 & 20, 2018…”

Loranger, through the complaint, asked the board to “withdraw any and all correspondence created as a result of these illegal deliberations…. I specifically request the Memo created and forwarded to the Zoning Board of Appeals be formally withdrawn.”

After receiving Mathieu’s hand-delivered letter on May 21 questioning the validity of the board going into executive session, Town Counsel Jonathan Witten addressed the board, reassuring them that their intent to go into executive session to discuss the complaint was legitimate.

Mathieu’s letter stated that the notice for this evening’s meeting “…fails to indicate the specific purpose of the executive session which is therefore a violation…” of the Open Meeting Law.

The statute enumerates ten purposes for executive session and requires that a public body must state on its public notice the specific purpose for the executive session.

Mathieu contested the board’s fulfillment of that requirement with the note on the evening’s agenda that stated “Executive Session Open Meeting Law Complaint.”

Witten assured the board they had complied with the law, but also said, “Could there have been more specificity? Sure.” Witten pointed out as evidence of the adequacy of the notice the fact that Mathieu was attending the meeting on behalf of his client.

In the vote to go into executive session, Planning Board Vice Chairman Stephen Kokkins abstained, citing his absence from the meeting that the flurry of emails addressed. However, Chris Collings, attending remotely via telephone, suggested that this discussion was about emails the entire board received, and therefore Kokkins could be involved in the vote for executive session.

“At what point do you have an open meeting violation?” asked Collings. “[When you have received] read receipts from everyone?” Witten replied that whenever an email is sent between one or more members of the board, there is a violation if what is discussed is non-ministerial (i.e. a member may be late or other non-substantive matters).

Board member (and Selectman) Norman Hills was visibly impatient to move into executive session as the discussion continued.

Kokkins pressed Witten on the question, saying, “Personally, I need clarification. [Is it] a quorum or a single pair?”

Witten went on to say, “Whenever there is a deliberation between two members in a matter before the board … any communication must be brought before the board in public session…. Anytime we email each other, we risk violating the Open Meeting Law. Don’t communicate with each other – just through Terri [Santos].”

According to Witten, although the quorum for a five-member board is three members, two members could be considered a subcommittee and therefore any communication of substance is potentially a violation of the Open Meeting Law.

Collings noted that some towns are using Facebook to have discussions, which Witten said was a bad idea.

The Planning Board proceeded with its executive session, and while the board met Mathieu commented, “This is a violation of the Open Meeting Law right now. The notice is faulty,” and said he would be filing another complaint with the Attorney General regarding this meeting.

Mathieu said he believes the Planning Board’s response to the Zoning Board of Appeal’s request for comment on an appeal pertaining to Loranger’s project was “personal.”

“You have to scratch your head,” said Mathieu. “[The Town says it’s in favor of] condos and elderly housing – until someone proposes it; then suddenly no one is for it.”

The Planning Board directed Witten to answer the Open Meeting Law complaint.

Although Comments to the ZBA regarding 324 Front Street was on the agenda, this was not discussed.

The next meeting of the Marion Planning Board is scheduled for June 4at 7:00 pm at the Marion Town House.

Marion Planning Board

By Sarah French Storer

Marion has its own set of marijuana establishment regulations now that the Marion Board of Health has approved its proposed recreational cannabis regulations, but that final draft excluded controversial language that called for a local permit to grow cannabis plants at home.

On May 22, Board of Health Chairman Jason Reynolds said town counsel reconsidered the language and now recommends removing the section that would require residents to acquire a permit in order to home grow the six cannabis plants per adult, 12 plants per household, that Massachusetts already allows.

“I did have a few people come up to me who asked if it was legal,” said Reynolds. “They did not feel the Town should put up any barrier.”

Reynolds continued, “Personally, I also started to worry about enforcement – that would not be very easy. I would not propose going door to door doing inspections.”

“I think that is wise, too,” commented Health Agent Karen Walega.

Planning Board Chairman Eileen Marum said she found the regulation to be well written.

“And I agree. I don’t know how you could go and monitor that and count how many plants people are growing,” said Marum, who observed the meeting. “The other thing, that’s state law. State law supersedes local law.”

For the most part, Marion’s Regulation to Ensure the Sanitary and Safe Operations of Marijuana Establishments and the Sale of Marijuana mimics the Massachusetts Cannabis Control Commission’s regulations, restricting its retail sale to 21 years of age, prohibiting the conveyance of marijuana to anyone under 21, and the requirement of a local permit (in addition to a state permit) to establish and operate a cannabis retail or cultivation establishment.

Enforcement of cannabis establishments will fall under the purview of the Police Department as well as the Board of Health and its agents.

The regulation does not specify a permit fee for retail establishments, but language states that the Board of Health will determine that fee on an annual basis.

The state regulations allow for a “reasonable” fee to cover the Town’s administrative and enforcement costs, not to exceed 3% of total cannabis sales.

Also during the meeting, the board decided against pursuing an all-out ban on menthol cigarettes and will instead focus on banning other flavored tobacco and nicotine products.

Reynolds said he preferred to put flavored tobacco and nicotine regulations back on the agenda this summer after a brief hiatus.

“We need to consider whether or not we are going to include or exclude menthol from the regulations,” said Reynolds. “The likelihood of a lawsuit goes down when we exclude menthol,” by adding an exemption for menthol flavor like many other towns have done, Reynolds said.

“But we don’t want to,” commented Board of Health member Betsy Dunn.

Reynolds continued, “Personally, I’ve started to feel like, in the spirit of trying to move forward some flavored tobacco regulation, I’d be open to the menthol exclusion right now if it would reduce the likelihood of legal ramifications.”

Reynolds also said it would reduce the impact on some of the small businesses in town, referring to the various Marion establishments that sell liquor and other products where menthol cigarettes are roughly 20 to 30% of their cigarette sales. Store owners said a ban on menthol cigarettes would hurt their businesses since many often end up buying more than just cigarettes, and would simply go “next door” to buy their cigarettes – and milk, bread, and beer.

“I agree with that,” said Board of Health member John Howland.

“I was surprised to get that,” said Dunn, “…the information we did from small businesses. That really was an issue. I never ever perceived it to be.”

Reynolds said, however, that menthol-flavored cigarettes and nicotine-containing ‘vape’ products existed “for a reason,” making it more palatable and harder to quit, he said.

“But I think, if you’re looking at it from a town perspective, us getting rid of menthol is not really going to make that much of an impact if it’s still available next door.”

The focus now will be getting those flavors – peach, bubble gum, mango – “that really target youth,” said Reynolds, off of Marion shelves.

If successful in banning menthol cigarettes, Marion would have been the first municipality in the country to do so; however, tobacco companies did contact the Board of Health early in its exploration of a menthol cigarette ban, cautioning the Town against it and implying the certainty of legal action.

The next meeting of the Marion Board of Health is June 26at 4:30 pm at the Marion Town House. The board will then adopt a summer schedule and meet again monthly on July 24 and August 28.

Marion Board of Health

By Jean Perry