GREENFIELD — The Attorney General’s Office has declined to review an Open Meeting Law complaint filed against the Planning Board late last year on the basis that the meeting was not subject to Open Meeting Law, nor was the complaint filed on time.

In his complaint, filed Nov. 17, city resident Al Norman alleged the Planning Board deliberated and made motions when it did not have a quorum of members at an Aug. 3 meeting, during which the board approved the site plan for a 19,432-square-foot Aldi grocery store on the site of the now-demolished Candlelight Motor Inn on the Mohawk Trail.

The city’s attorney, Jesse Belcher-Timme, meanwhile, argued in the city’s response to Norman that while the mayor did not have voting authority when she voted during the August meeting in question, a quorum of the board was present, according to the Planning Board’s most current rules and regulations.

Belcher-Timme stated that according to rules and regulations dated May 15, 2014, three Planning Board members constitute a quorum. Members present at the Aug. 3 meeting included Chair George Touloumtzis, Charles Kinney and Amy McMahan, who was elevated that evening to a full voting member by Touloumtzis. Then-Mayor Roxann Wedegartner, serving as an ex-officio member, sat in for former Chair Charles Roberts and voted.

Meanwhile, the rules and regulations Norman referenced in his complaint — which highlighted his concern for the site plan approval for Aldi — were the ones most readily available online through the city charter, which states four Planning Board members are required for a quorum. A Planning Board vote reduced the quorum from four to three in 2014. Planning Director Eric Twarog previously explained that “not everything online is the updated and official version.”

In her response to Norman’s allegations that the Planning Board lacked a quorum, Assistant Attorney General Carrie Benedon wrote that a gathering of less than a quorum does not constitute a meeting that is subject to Open Meeting Law.

“The Open Meeting Law defines ‘meeting’ as ‘a deliberation by a public body with respect to any matter within the body’s jurisdiction,’” Benedon wrote. “The Open Meeting Law defines ‘deliberation’ as ‘an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction.’ A gathering of less than a quorum of members of a public body does not constitute a meeting subject to the Open Meeting Law.

“Furthermore, we do not review the authority of the mayor to vote as an ex-officio member of the board and offer no opinion on whether actions taken on Aug. 3 could be a violation of the city charter or another rule or regulation outside the scope of the division’s review,” she continued.

In an email to current Mayor Ginny Desorgher, Norman argued that this logic “reveals a major loophole in Open Meeting Law violation enforcement.”

“The AG is accepting no responsibility for sanctioning public bodies that deliberate without a legal quorum required in our Planning Board rules and regulations,” he said.

Additionally, Open Meeting Law requires complaints to be filed with the public body within 30 days of the violation, according to Benedon’s letter.

“Here, your complaint concerns the board’s Aug. 3 meeting, for which notice had been posted,” Benedon wrote. “Therefore, the alleged violations were reasonably discoverable on that date. Your complaint was not filed with the board until Nov. 17, well beyond the 30-day deadline.”

Norman wrote to Desorgher that “the fact remains the Planning Board had no legal authority to deliberate without a quorum.” He asked that the board amend its rules and regulations by adding language that states an associate member of the Planning Board shall only vote on special permits, not on site plans, and if the Planning Board lacks a quorum of three voting members in attendance, it shall adjourn until a quorum is deemed present, and not deliberate on any business before then except to adjourn.

According to Twarog, none of the votes taken on Aug. 3 have been brought up for reconsideration since the complaint was filed. This includes Approval Not Required (ANRs) plans for properties on Lampblack Road and Plain Road.

Reporter Mary Byrne can be reached at mbyrne@recorder.com or 413-930-4429. Twitter (X): @MaryEByrne.

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