Editor’s Note: This story by Aaron Calvin was first published by the News & Citizen on March 30.
Morristown zoning administrator Todd Thomas held a site walk for the town’s development review board members last Wednesday that was closed to the public, employing a strategy to ensure adherence to Vermont’s open meeting law, if not its spirit.
The site walk, which was scheduled after a recessed hearing for a decade-long gravel extraction project that will require the leveling of a knoll on the future site of a Manufacturing Solutions Inc., or MSI, industrial park was ruled off-limits to the public by Thomas despite the great interest expressed in the project by community residents.
But Thomas had a problem. If four or more of the review board’s members gathered, it would be considered a quorum, and state law considers any quorum of municipal board members a public meeting that must be warned, and the public would legally be allowed to attend.
So, Thomas turned to a strategy he said he employs in all the review board’s site walks. Instead of having the board walk the land and survey the knoll together, he had them arrive in groups of two or three at a time, allowing each board member to take in the area in question without technically violating open meeting laws.
Thomas staged the operation very carefully, warning board members not to arrive too early and incidentally form a quorum. Thomas accompanied only two of the three separate groups of board members on their walk, but MSI’s engineer Peter Smiar accompanied each group.
The review board members were warned by Thomas not to ask questions at the site, taking every precaution to ensure that no official business was conducted by the board even in its separate groups. When one board member did ask a question, Smiar declined to answer.
Thomas did allow a News & Citizen reporter to attend the three-part site walk with the development review board, but only with approval from MSI’s lawyers.
Thomas said he categorically opposes holding any public meetings on private land, and made it clear he preferred protecting Morristown from any possible legal liability over the need for transparency.
“Public meetings are meant to be in the town offices, so we do site walks so they’re not public meetings. If I did a public meeting on a property where the public can’t come, I open myself to way more criticism if they can’t walk it, they can’t traverse it, it’s not handicap accessible. That’s where I get myself in trouble,” Thomas said.
Thomas claimed developer Graham Mink refused to let the public attend a review board site walk at his Jersey Heights construction project, though an invitation Mink issued to the public that was recorded in the minutes of an Oct. 13, 2021, development review board meeting contradicts this claim.
“I can’t hold a public meeting on private property. I mean, it would be like holding a public meeting at a bar where 19-year-olds can’t get in. I mean, imagine if some old lady tried to show up here to try to walk this,” Thomas said.
Thomas himself, however, watched several members of the review board, some of whom are older women, traipse through the muck, snow and standing water to get a better look at the hill they would approve the demolition of just hours later.
Jenny Prosser, general counsel and municipal advisor at the Vermont Secretary of State’s office, noted that site walks without quorum and no ex parte communication, a legal term for the privileged exchange of information in private that should be public, technically avoid being considered an official meeting, but said she urged towns to consider the spirit of the law.
“Public bodies should look to underlying policy behind the open meeting laws (in deciding how to apply the OML’s terms) and err on the side of openness when confronted with a gray area of the law,” Prosser said.
Matthew Byrne — a lawyer with Gravel & Shea who has successfully litigated press freedom and open information cases in Vermont, including on behalf of the News & Citizen and VTDigger — said there was room for debate whether Thomas’ strategy violates the open meeting laws or not.
“In my view, it goes against the spirit of the public meetings law to circumvent it by sending just two members of the DRB over the property at one time,” Byrne said. “It would probably take a court case to determine whether they are in fact violating the Open Meetings Act.”
Thomas has vowed to continue the practice indefinitely.
“You can technically, legally (hold public meetings on private land), but it’s horrible practice. I would never do it. I will never do it. It’ll never be done in Morristown while I’m here,” he said.
In a handbook for zoning administrators published by the Vermont Land Use Training and Information Collaborative in 2005, the organization recommends that a town’s administrator and interested persons be entitled to attend site visits and also says that “the public must be duly warned.”
The handbook supports the notion that no testimony should be taken and no ex parte communication should occur at these types of public meetings.