Great Barrington — At the beginning of its regular meeting on Monday, March 11, the Selectboard held a 54-minute executive session on three different issues. During the session, the board discussed threatened litigation against the town concerning host agreements for marijuana establishments Theory Wellness and the Community Growth Partners company which owns Rebelle Dispensary. While in executive session, in addition to approving previous executive session meeting minutes, the board also discussed litigation concerning Housatonic Water Works and its request with the state’s Department of Public Utilities for a rate increase.
Back in public session at the March 11 meeting, the Selectboard took no action concerning Housatonic Water Works or the threatened litigation by the two marijuana dispensary companies.
On February 27, on behalf of Theory Wellness and Community Growth Partners, attorney David Rich of Todd & Weld LLP of Boston sent a letter to Town Manager Mark Pruhenski threatening litigation against the town. In his letter, Rich demanded that the town repay funds it received from both companies through Host Community Agreements. Rich demanded that the town immediately return about $5.18 million to Theory Wellness and that the town return $526,380 to Community Growth Partners.
In his letter, Rich goes on to threaten a lawsuit against the town if it does not pay back the funds. The letter states:
Theory Wellness and Rebelle have requested that the town return illegal impact fees which we have been forced to pay over the years despite the Town of Great Barrington repeatedly acknowledging in writing that our businesses caused no negative impacts. On the contrary, in addition to our impact fees, we have paid millions of dollars in taxes, employed dozens, and brought hundreds of thousands of visitors to the area. Despite the town acknowledging in writing that it has incurred no costs arising from our operations, we have been assessed, year after year, millions of dollars in impact fees. These fees cannot legally be used and must be returned as other towns around the Commonwealth have now been doing (see Boston, Uxbridge, etc.) It is important to note that Impact Fees are different and separate from the taxes we pay to the town. What many may not realize is that we have paid to the Town of Great Barrington more than $5 million in taxes, in addition to the $5 million in impact fees.
Rich added that the companies have previously tried to negotiate with the town “but have been repeatedly ignored and/or dismissed.”
The letter was not available in the informational packet for the March 11 meeting; however, a copy of Rich’s letter can be found here.
Since The Berkshire Edge broke this story on March 8, residents have aired their concerns about a possible lack of transparency from the town government surrounding the situation.
In an email to readers on March 11, Eileen Mooney, publisher of NEWSletter, shared her email correspondence with Pruhenski concerning Rich’s letter not being made available in the information packet. “Also, why was [attorney Rich’s letter] not mentioned at the February 28 Finance Committee budget hearing and/or the boards’ budget discussion that followed the hearing?” Mooney wrote to Pruhenski. “It seems to directly relate to the budget for the new fiscal year, and its mention would alert board members that a special article, revenue, and perhaps the operating budget’s legal account might be affected.”
Mooney is referring to the February 28 joint budget meeting of the Finance Committee and Selectboard to deliberate the fiscal 2025 budget. At the meeting, the boards held a public hearing and made further cuts to the proposed fiscal 2025 budget. However, the February 27 letter from Rich was not discussed at the meeting.
In response, Pruhenski wrote that the letter was not in the March 11 informational packet “because it’s an executive session topic, not something we’ll be discussing in public session.” Pruhenski added: “I would not recommend that the board discuss litigation strategy openly. That would not be wise and is not common practice for municipalities. Tonight [March 11] will be the first opportunity for the board and staff to discuss this matter with our attorney since the letter was first received after our last meeting on February 26.”
In response, Mooney asked Pruhenski what prevented the letter from being made available as a public document, even if the discussion about it would be held in executive session. Mooney also asked if the Finance Committee was made aware of attorney Rich’s letter before the February 28 meeting “since it could have affected that board’s, and the Selectboard’s, recommendations.”
“I’m not comfortable answering any questions related to this matter until we receive guidance from our attorney,” Pruhenski wrote back.
Also before the Selectboard meeting on March 11, Berkshire Edge columnist Peter Most filed a public records request with the town to obtain copies of letters and communications between the town and Rich concerning Community Impact Fees dating back to July 2022.
During public comments at the March 11 meeting, resident Michelle Loubert expressed her concerns to the Selectboard about transparency concerning the potential lawsuit by the marijuana dispensaries. “For a public board to be effective, it must possess credibility, accountability, and trust, faith, and competence of its constituents,” Loubert said. “A public board should be as open as the law allows, and it should also welcome citizen participation, as much as the law allows, and then some. This is good governance. But recently, my trust, faith, and confidence in this board, as well as some of our town government practices, have been badly shaken.”
Loubert said that, at the February 13 joint Selectboard and Finance Committee meeting concerning the proposed fiscal 2025 budget, Finance Committee Vice Chair Anne O’Dwyer brought up her concerns about lawsuits in the state by marijuana businesses trying to get their Community Impact Fees back from towns and cities. “I also brought this up at the February 14 budget meeting stating that it would be wise to vet this issue carefully before distributing any more funds,” Loubert said. “The town manager assured the public by stating, ‘I think there are some legal challenges, but we feel confident that the funding we collected would not need to be returned.’ The Selectboard and the Finance Committee voted on the town budget on February 28, including making a positive recommendation on the $1.5 million to RSYP [The Railroad Street Youth Project].”
Loubert said she was referring to a request made by the Railroad Street Youth Project for $1.5 million in Community Impact Fee funds. “However, Town Manager [Pruhenski] was sent a letter on February 27 electronically and by overnight mail by the attorney for Theory Wellness and Rebelle stating a [lawsuit] against Great Barrington to recoup their money,” Loubert said. “Why wasn’t this disclosed on February 28? This could have been handled in a discreet manner that would not jeopardize any future executive sessions.”
Members of the board and Pruhenski did not respond to Loubert’s comments.
Selectboard member Eric Gabriel was not present at the March 11 meeting.
As of publication, neither Theory Wellness nor Community Growth Partners have filed a lawsuit against the town.
