Residents in Charlton are suing the town, alleging selectmen there violated the open meeting law when they approved a host and development agreement for a marijuana cultivation and manufacturing facility planned for an old apple orchard.

Three residents — Gerard Russell, Brett Moore and Barbara Moore — filed a complaint in Worcester Superior Court seeking to have the court nullify the Board of Selectmen's May 15 vote to approve the agreement and a May 21 town meeting vote that approved a change in town zoning to allow marijuana cultivation.

"The agenda for that meeting did not indicate that such a vote would be taking place," said Francis Fennessey, an attorney for the plaintiffs. "There really was no way of knowing what the selectmen were up to by virtue of the notice."

At the meeting, the selectmen approved an agreement with Valley Green Grow of North Andover, which plans to buy a 94-acre orchard at 44 Old Worcester Road and build a commercial greenhouse between 1 million and 3 million square feet to grow marijuana.

The agenda for the May 15 special meeting of the Board of Selectmen, which was included as an exhibit in the lawsuit, lists as agenda items "Host Agreement - 44 Old Worcester Road," "Land Development (see agreement)," "Host Agreement," and "Non Opposition Letter," among other unrelated matters.

Fennessey said the town did not post the proposed development agreement with the meeting agenda and that many residents had no idea what was being proposed until a reporter from the Worcester Telegram and Gazette obtained a copy of the agreement at the May 15 meeting.

"The first time there was any indication of the agreement or the terms of the agreement was a newspaper report, because the reporter was there and she got her hands on a copy of the development agreement," he said. "The town did not publish it until after the town meeting, when they received the open meeting law complaint" filed by Russell.

The suit lists the five members of the Board of Selectmen as defendants in their official capacities. The selectmen's office referred the News Service to Charlton Town Administrator Robin Craver, who was not immediately available Tuesday.

"The Board of Selectmen does not believe the May 15th posting was inadequate given it identified the property address under consideration as well as the documents the Board was addressing, namely, a Host Agreement, Non-Opposition Letter and Land Development Agreement," Craver wrote to Russell on June 20 in response to his open meeting law complaint. She added, "Some residents would have preferred that the posting include the words 'pot farm' or 'marijuana,' but that did not seem necessary."

Craver also wrote to Russell that "once residents voiced concerns and questioned whether proper notice of the May 15th meeting was given, the Board immediately agreed not to sign any documents until public hearings could be held and the public had an opportunity to comment." She said that three such meetings had been held as of June 20.

The residents' complaint also takes issue with the board's approval of an agreement to locate a marijuana cultivation and manufacturing plant on a property located in an agricultural zone.

"The zoning did not permit that kind of use in an agricultural district. It didn't permit manufacturing plants, it didn't permit marijuana cultivation," Fennessey said.

But at the annual town meeting on May 21, Charlton voters approved an article to allow marijuana cultivation and manufacturing in agricultural zones by special permit, which Fennessey argued represented "a corruption of the zoning amendment process."

"When they took their vote the Selectmen knew or should have known that marijuana manufacturing was not an allowed use in an agricultural zone and that Charlton's zoning bylaw had not been changed by Article 27 to permit such use since the Town Meeting to consider Article 27 had not yet occurred," he wrote to the attorney general's office. "This is probably why the development agreement was not signed on May 15th after the vote was taken and possibly also why the development contract was not published before the town meeting took place."

Fennessey said a hearing on the complaint has been scheduled for 2 p.m. July 19 at Worcester Superior Court.