Other issues waylay special Chester board meeting

By Shawn Cunningham
© 2016 Telegraph Publishing LLC

What was intended to be a training session on the powers and responsibilities of the Chester Select Board and town manager, conducted by town attorney Jim Carroll, turned into a tutorial on legal aspects of several recent developments in Chester including why the Select Board believes it cannot discuss or take action on alleged missteps by the town‘s zoning administrator and on the hurdles faced by a sex offender housing ordinance.

The Thursday, Nov. 17 special meeting was called last month to discuss “board procedures” and was intended as a training session, according to Executive Assistant Julie Hance,and the agenda for the evening listed Carroll’s presentation as “Selectboard functions and duties.”

But at the Oct. 19 regular meeting of the board where a “child safety ordinance” was discussed, it was suggested that perhaps Carroll could answer a few questions on the practicability of enacting such an ordinance. That was put on the agenda as “brief discussion of Child Safety Ordinance.”

In addition, at the Nov. 16 regular meeting, board member Heather Chase wondered if Carroll could be asked to give a fuller explanation of the problem with the Select Board discussing the circumstances around the issuance of a building permit at 284 Elm St. after several complaints that Zoning Administrator Michael Normyle had overstepped his authority.

Carroll at first seemed unaware of the other topics saying, “Thanks for coming, I didn’t expect a crowd for the boring topic of how select boards work.” But as he began to give a legal outline on town government in Vermont it looked like he had come prepared for the hot button questions.

Child Safety Ordinance vs. legal precedent

Noting that Vermont is a “Dillon’s Rule” state, Carroll said that all authority derives from the state and that towns only have the power to do things that the legislature has expressly given them. This related directly to the Child Safety Ordinance proposed by Mary Jane and Randy Miles. The ordinance would prohibit convicted sex offenders from living near schools and other  ‘protected property’ and is aimed at regulating where transitional housing of prisoners can be set up.

The ordinance is modeled on one currently being challenged in Rutland. A similar ordinance in Barre was set aside in 2009 by Judge Helen Toor who found that the town did not have the legal authority to regulate where sex offenders may or may not live.

Carroll told the group that there are several significant legal issues including constitutionality and enforceability, but that Toor did not find it necessary to rule on those issues because the question of legal authority was “the low hanging fruit.”

“You don’t even get in the door,” said Carroll

Carroll said that some towns, including Chester, have charters and a charter could give a town an argument for claiming the necessary legal authority. But according to Carroll “Chester’s charter is thin.”

Mary Jane Miles suggested that since the Vermont League of Cities and Towns  suggests that the state corrections system observe the laws of local jurisdictions, the town could enact it as a way of influencing where transitional housing could be placed.

“Just because the potential for litigation is there, it doesn’t mean it will happen,” said Miles

Randy Miles asked the board to look “at the other side of the coin.”

“Is the town liable if it considers the ordinance and rejects it and then something terrible happens?” he asked.

“Towns are pretty big targets for a lot of claims, but they also have a lot of defenses,” said Carroll. “The facts would have to be pretty egregious for that type of claim to come back against the town.”

“What happened to ‘we the people?’” asked Miles.

Chester resident Roy Spaulding suggested enacting the ordinance, but not enforcing it as a way to influence the corrections system while avoiding a lawsuit. “Have it, and if it’s challenged then deal with it,” said Spaulding.

“My take,” said board member Ben Whalen, “is that this is something that would be at a state level and should be taken to the state.”

“How would you advise the board?,” DeBenedetti asked Carroll.

Carroll said that he would not give advice on a specific case off the cuff, but noted that such an ordinance has “a truly significant enabling authority problem.”

Select Board as judge

Although he said he could not speak to specific situations, Carroll outlined the Select Board’s function as a quasi-judicial board in employment questions in the town manager form of government. In these cases, a select board would hear appeals of the town manager’s decision to discipline or terminate an employee. For this reason, Carroll says that the select board cannot know what is happening in a situation as “it might take members out of the box.”

This explanation seemed to be one requested by Chase on Wednesday night when residents asked the board what would be done about a permit they allege was improperly issued by Zoning Administrator Michael Normyle. Carroll said that the decision to go ahead with any disciplinary action and the select board hearing that might be triggered by it is in the hands of the town manager.

Carroll envisioned such a hearing taking as long as “two weeks, night after night, five to six hours per night.”

Carroll did not reconcile this with the state statute that created the zoning administrator position and gives a select board the power to remove the administrator “for cause at any time by the legislative body after consultation with the planning commission.”

Sufficiency of warning for public hearing questioned, Yosemite status

During public comment for the meeting Chester resident Amy Mosher noted that the Planning Commission’s Nov. 21 public hearing on changes to the Unified Development Bylaws had not been warned by being published in a newspaper for 15 days as required by state statute. DeBenedetti said he thought this should be taken up with the Planning Commission. The meeting was later canceled and rescheduled for Dec. 19.

Chester resident Frank Bidwell asked Carroll where the question of ownership of the Yosemite Fire House stood. Carroll told him there was one person who is asserting a title interest.  “The petition has been ready to file for about a month,” said Carroll noting that he had a few details to address on it, “I need to get it off my desk.”

So, in the end, the meeting that was supposed to be about board responsibilities was not and after the meeting DeBenedetti was heard to say “You heard me, I tried to get back to Page 5,” referring to a portion of Carroll’s packet that outlined the duties of the board.