- Miyares and Harrington, LLP
Town Meeting vs. Select Board: There Are Some Things that Town Meeting Can’t Do
There are times when citizens want to check a board’s authority by requiring that Town Meeting voters approve items that a state statute assigns to the authority of the board. Charlton Town Meeting voters tried to do just that by adopting a Bylaw that would have required Town Meeting approval of any Host Community Agreement (HCA) for recreational marijuana. It also sought to void any previously signed HCA that did not comply with M.G.L. c.94G. On January 15, 2019, (Case #9154) the Attorney General’s Municipal Law Unit disapproved the Bylaw.
The Attorney General concluded that the proposed Bylaw interfered with the contracting authority of the Board of Selectmen, as the statute gives approval of HCAs to the municipality’s contracting authority and does not require Town Meeting approval. The statute, M.G.L. c.94G, §3, requires that a marijuana establishment or a medical marijuana treatment center execute an agreement with the host community. It does not specify the method of approval by the host community. The regulations, 935 CMR 501.101 (1)(a)(8) state that the applicant for a marijuana establishment license must submit a certification “signed by the contracting authorities for the municipality….”
The Attorney General noted that negotiations over HCAs are protracted, conducted by representatives who have the authority to agree to terms. But there is no representative who can speak for Town Meeting and no method by which either party can know if the negotiated terms will be approved by Town Meeting. Since the negotiation of an HCA can be lengthy and complicated, potentially for naught, the requirement of Town Meeting approval was deemed to be an unreasonable risk to the prudent business person and thus barred by M.G.L. c.94G, §3 as unreasonably impracticable.
Moreover, since the statute and regulations are silent as to Town Meeting approval of HCAs and the regulations refer only to the community’s contracting authority, the Attorney General concluded that the Legislature intended that the Board of Selectmen in its capacity as the Chief Executive Officer should exercise its traditional contracting role. By requiring Town Meeting approval of HCAs, the Attorney General concluded, the Bylaw text “usurps the authority of the Board of Selectmen” to enter into contracts on the Town’s behalf….”