Not long ago in these pages I laid out the grounds for my opposition to the two articles on the warrant for the April 17 Special Town Meeting—not because I oppose addressing the Housatonic Water Works (HWW) crisis (and it is a crisis), but because these particular articles are legally dead on arrival and logically unsound. You cannot, for instance, purchase an entity with $5 million of debt for $2 million, nor can you negotiate the acquisition of two regulated utilities by referendum.
Passing these articles would do nothing except foster false expectations, waste political momentum, and confuse the public about where things actually stand—and what is legally possible.
The recent column laid out a detailed list of concerns with the sincere hope that the proponents might respond thoughtfully point by point. Dare to dream.
Litigators like to say: When neither the facts nor law are on your side, pound the table. And in the lead-up to the Special Town Meeting, that is exactly what we have heard: a lot of table pounding. Loud declarations about filthy water (all fair), but little in the way of solid legal footing or factual substance to justify passage of these articles to accomplish a complex transaction.
If the proponents intended to send a message that the community demands change, message received and mission accomplished. Obtaining 300 votes to set a Special Town Meeting is no small feat.
But let’s be clear: This is not a referendum on whether HWW ratepayers should continue drinking brown, manganese-laced, and Halocetic acid-infused water. No one is voting for that. That issue was settled long ago.
What is actually on the table is an ill-conceived proposal to merge two water systems now and figure out the details later. That is “ready, fire, aim” at its most reckless.
The defects were pointed out to the proponents months ago. The response, loosely stated, was: “We’ve already collected lots of signatures, so we’re moving ahead.” Sharon Gregory, the chief proponent of the articles, put it this way: “You apparently did not understand I could not change the petition in mid-stream without invalidating all our petition work and to start again from scratch.”
When you are about to drive off a cliff, the right answer isn’t “But look how far we’ve come!”
Article 1—which seeks authorization to purchase the Great Barrington Fire District (GBFD)—cites as its statutory authority an 1886 law that applies not to GBFD but the long-defunct Berkshire Heights Water Company. As noted in the earlier column, invoking statutory authority to purchase an entirely different water company is legally defective. As drafted, Article 1 is ultra vires—it purports to authorize the Selectboard to act beyond its legal authority.
In response, Ms. Gregory suggested that I must be unaware that more than 100 Massachusetts towns have exercised state-approved options to acquire their water companies. She further noted a 50-page Department of Public Utilities report listing franchise areas, highlighting that towns such as Lenox, Stockbridge, and Williamstown secured their water rights decades ago under what she described as “nearly identical statutes.”
But that is a non sequitur. No one disputes that Massachusetts towns have acquired water companies and water rights. The issue is legal authorization under the wrong statute.
At the risk of going too far down this rabbit hole, there are statutory provisions that authorize the acquisition of municipal water supply systems. M.G.L. c. 40, § 39A–39I governs a municipality’s ability to establish, purchase, or take by eminent domain a supply system. Section 39B permits a town to acquire supply or distribution systems so long as the acquisition is duly authorized by town meeting and complies with the statute’s procedural requirements. Section 39C authorizes borrowing for such acquisitions, subject to the usual oversight and two-thirds vote. But invoking the wrong statute—as Article 1 does—unleashes none of these powers.
At the outset of the Special Town Meeting, town counsel should advise the Selectboard and moderator that Article 1 is merely advisory and carries no legal effect. Words matter. A citation to Massachusetts State Statute 1886, Chapter 311 does not confer legitimacy—it confers confusion. Article 1 is a nullity—a point Ms. Gregory herself appears to concede: “Whether it has legal stature, we believe it is enough to bring to the MA DPU who has the ability to intermediate with our official petition ….”
“Enough”? No—not even close. The Department of Public Utilities enforces statutes and regulations, not citizen’s petitions that merely wander into the neighborhood of correct.
Article 2 fails for similar reasons. The town is not voting to approve the purchase of HWW for $2.3 million—it is voting to authorize the Selectboard to negotiate up to that amount. It’s akin to a parent handing a child $10 to buy a loaf of bread and asking for change back. But let’s be clear: No bread will be bought as a result of the Special Town Meeting.
Town counsel should also advise the Selectboard and moderator that Article 2 is purely advisory. In essence, voters would simply be encouraging the Selectboard to continue doing what it is already actively pursuing, behind closed doors in executive session: exploring options for acquiring HWW, likely under the very (correct) statutory framework outlined above.
Because no borrowing is proposed, only a simple majority is required for passage of these advisory articles—but passage accomplishes nothing. Worse, a failed vote carries real risk. If voters reject these legally deficient articles, it sends a damaging signal to HWW that the town may not support a purchase at any price. That message could severely weaken the Selectboard’s negotiating position. The result wouldn’t just be unproductive, it would actively hamstring the town’s ability to resolve the HWW crisis.
In response to the prior column, some suggested I have been quick to criticize but slow to offer solutions. Fair enough. So here it is:
The best outcome on Thursday evening would be a motion to indefinitely table both articles, allowing the town to continue its efforts without unnecessary complication, distraction, or confusion.
Let the town’s newly engaged counsel negotiate with HWW—unencumbered by the optics or fallout of a failed vote. There is no real benefit to approving the articles. But if they fail, the consequences could be very real.
The proponents have already achieved a meaningful milestone by calling the meeting. Take the win—and let the town take it from here, at least for now.
Survey Monkey Question
Here is a link to the following Survey Monkey poll: “At the Special Town Meeting, would you vote in favor of a motion to table the articles?”
Survey Monkey Results
Here is the result of the following recent survey question: “Does holding a performative Special Town Meeting bring us any closer to fixing HWW?”
As of publication, 78.95 percent said “no.”
