The city’s Zoning Board of Appeals (ZBA) has been found in violation of the state’s Open Meeting Law in connection with deliberations pertaining to 40B developments at 40-42 Endicott St. and 128 Newbury St.
“I’m grateful for the Attorney General’s office and its thoughtful and fair application of the law to protect the public’s right to know what’s behind important decisions affecting them,” said Councilor-at-Large Anne Manning-Martin, who filed the complaint.
In a Nov. 18 letter written by Assistant Attorney General Elizabeth Carnes Flynn addressing Manning-Martin’s complaint, the Attorney General’s office found that the board “improperly deliberated via email on two occasions” when board member Barry Osborne emailed the full board in May and October of 2021 regarding asserting safe harbor status for the Endicott Street project and the Newbury Street project.
“We order the Board’s immediate and future compliance with the Open Meeting Law, and caution that similar future violations could be considered evidence of intent to violate the law,” Flynn stated, adding that the board “must release” the two emails to the public by either “reading them aloud at an open meeting or by attaching the emails to the minutes of an open meeting.”
The first violation occurred after Manning-Martin and School Committee member Jarrod Hochman sent a letter dated May 11, 2021 to the board asking the board to assert safe harbor for the Endicott Street project.
That same day, ZBA Clerk Carla McGrath forwarded the letter to the full board via email. Osborne responded to McGrath’s email with an email to the full board in which he indicated he supported filing a safe harbor application. (Safe harbor refers to conditions under which a ZBA could deny a comprehensive permit).
The second violation occurred on Oct. 7, 2021. McGrath sent the board an email explaining that a comprehensive permit application had been filed for the Newbury Street project.
Osborne responded to the email, copying the full board, stating his opinion that the board “should inform the applicant we will be requesting safe harbor or have them withdraw the application till we have everything else on our plate settled.”
The letter went on to state that the AG’s office limited its review solely to whether the board deliberated outside a posted meeting in violation of the law and not to whether the board should have sought safe harbor.
The letter also stated that other allegations accusing the board of violations on May 3, May 17, June 14 and Sept. 20 of that same year (such as members of the public not being allowed to speak, letters not being read aloud and public comment not being allowed until after the deadline to assert safe harbor) were “untimely and, even if true, would not constitute violations of Open Meeting Law.”
In reaching its decision, Flynn said the Attorney General’s office considered portions of video recordings of the meetings at which alleged violations occurred, the complaint and the board’s answer to the complaint and “additional information provided by the complainant and information provided by the board in response to questions and requests from our office.”
While Manning-Martin said the decision was definitely a “win,” there are too many unanswered questions about the way the ZBA refused to be forthright about safe harbor assertions for both projects.
“Even with a finding of violating Open Meeting Law from the Attorney General’s office Division of Open Government, we still don’t know why the ZBA was so stubborn and refused to discuss matters publicly and why they ignored pleas from three elected officials, including the Mayor (Edward A. Bettencourt, Jr., Manning-Martin and Hochman), to openly discuss assertion of safe harbor status, thus protecting the Endicott Street neighborhood. The ZBA wanted to hear this project and approve this project and that’s exactly what they did.”
