TO:RTM Moderator & District & Committee Chairs

DATE:June 5, 2012

TO:RTM District 8

TO:Legislative & Rules Committee

TO:RTM Moderator & District & Committee Chairs

FROM:Kip Burgweger

SUBJECT:Legislative & Rules Committee Meeting of June 4, 2012

SUMMARY:

On June 4, 2012, at 8:00 PM, the Legislative Rules Committee met in the Evaristo Room at Town Hall. All districts were present except District 1.

Item 5 –Sense of the Meeting Resolution Requested by the Land Use Committee Regarding Town Participation in a Lawsuit Brought by Town Residents against Aquarion Water Company of Connecticut and New Cingular Wireless PCS, LLC Opposing the Construction of a Cell Tower at 455 Valley Road

Mr. Burgweger gave some background information on this item. Four months ago, residents of the Town attended the regular scheduled March meeting of District 8. The residents were concernedabout the installation by an AT&T affiliate of a cell tower structure on top of an existing water tank located on land owned by Aquarion Water Company. The water company had purchased the land from the Town pursuant to a deed which contained language requiring that the land be used for water works purposes. Some of the residents had commenced a lawsuit against the water company and the AT&T affiliate and had named the Town as a defendant. District 8 adopted a sense of the district resolution that the Board of Selectmen should direct the Town to join the existing lawsuit as a plaintiff and oppose the construction of the cell tower and uphold the terms of the deed. The following evening, District 12 adopted a sense of the district resolution containing the same language as the District 8 resolution. Subsequently, the Land Use Committee proposed that the RTM adopt the Districts' resolutions.

Mr. Wayne Fox, the Town Attorney, helped the L&R Committee on this matter. Mr. Fox explained first that Mr. Wetmore is handling this litigation and second that this matter had been discussed in executive session with the Board of Selectmen. It was inappropriate for him to report on confidential matters discussed in executive session. Mr. Fox stated that the Town had decided not to become involved in the lawsuit as a plaintiff but that the RTM could ask the Town to do that. Mr. Fox stated further that he believed there was a distinction between the language contained in the Town's deed and the language interpreted by the Connecticut Supreme Court in the case included within the Explanos. Mr. Fox advised that if the Town joined the lawsuit, that would be more expensive and would require retaining expert witnesses.

The Committee also heard from two of the residents involved in the lawsuit and a third resident who had purchased his home in reliance on the Town's deed. They stated that the Siting Council has already approved the installation of the cell tower. They stated that they had requested an injunction in the lawsuit and that request is currently pending.

Mr. Burgweger argued that this was a matter involving the authority of the RTM. He pointed to the documents contained in the Explanos that give the legislative history of this matter. In 1952, the Planning and Zoning Commission approved the sale of the land provided, among other things, “that its use be exclusively for water supply purposes ….” The matter then came before the RTM at its January 12, 1953 meeting in which the land was proposed to be sold subject to “such covenants as may be required of the grantee by the Board of Selectman in its discretion ….” The matter was tabled at the January meeting and reintroduced at the April 1953 meeting. This time the RTM did not leave conditions to the Selectmen's discretion but did authorize the Selectmen to sell the land subject to certain conditions, including “providing for reverter to the Town in the event that the premises cease to be used for water works purposes.” In other words, the RTM required that the deed include a restrictive covenant.

Paragraph 3 on page 2 of the deed, which appears in the Explanos, sets forth the restrictive covenant and the reverter.

Mr. Burgweger argued further that a reverter is a property right and only the RTM has the authority to transfer Town property. Failure to defend the reverter would constitute an abandonment or transfer of Town property.

Several members of the Committee were confused by language of the resolution requesting the Town to join the lawsuit as a plaintiff or were concerned by the additional cost that might entail. The Committee voted unanimously to delete the words “to join such lawsuit as a plaintiff” in the fifth and sixth lines of the resolution.

Our vote on the legal order of the resolution as amended was 11-0-0.

Our vote on the merits of the resolution as amended was 10-1-0. District 2 voted no because he did not believe it was a good idea for the RTM to direct the Town to take legal positions in pending litigation.

Item 7 – Ordinance Prohibiting the Use of Gasoline Powered Leaf Blowers in the Town During the Month of August.

The L&R Committee was assisted in this matter by Selectman Drew Marzullo, Assistant Town Attorney Aamina Ahmad and Ms. Gretchen Biggs of Greenwich Citizens Against Leaf Blower Mania (Greenwich CALM). This matter generated a long and spirited discussion.

Ms. Ahmad presented the ordinance. She advised that the ordinance had been in the works for the past couple of years. The organization CALM had asked the Board of Selectmen to ban the use of gasoline powered leaf blowers for a period longer than a month. The Board of Selectmen held meetings and took in information and this year created a working group headed by Selectman Marzullo. The group met once and rendered its report to the Board of Selectmen.

The Selectmen met this April and directed the Law Department to draft an ordinance that would (1) ban the use of gas powered leaf blowers in August, (2) contain three tiers of penalties and (3) contain a one-year sunset clause that would give the Town an opportunity to review the effects of the ordinance. The Law Department worked with a subcommittee of the L&R Committee.

Ms. Ahmad explained that the Board of Health was not willing to propose modifications to the Town's noise ordinance to ban leaf blowers for any period of time. The Board of Health believed that there was not sufficient evidence of adverse health effects from the use of gasoline powered leaf blowers.

Prior to the meeting, Ms. Biggs on behalf of CALM had offered several modifications to the proposed ordinance, and the chair asked Ms. Ahmad to give her opinion on those changes. CALM’s comments and Ms. Ahmad’s responses follow:

CALM’s comments / Ms. Ahmad’s responses
Add a reference to adverse environmental and health impacts of leaf blowers in the declaration of policy / The Board of Health had rejected health and environmental claims, and the Town will need a solid basis for the declaration if the ordinance were to be challenged.
Delete the exclusions other than storm cleanup. / When drafting the ordinance, she reviewed ordinances from other towns, and they had all carved out similar exclusions, particularly towns in WestchesterCounty. However, the exclusions are a question of policy for the RTM. She did speak with the Department of Parks, and Mr. Siciliano was concerned about the ban even in August because the town needs leafblowers to clean its beaches, parks and paths.
Penalties should apply both to the operator responsible for the offense and to the person or entity who contracted for the services of the operator. / The Selectmen considered at length who should be cited for violations. The Police Department advised that, when issuing a citation, a police officer must explain the options for the violator, including whether to pay or to challenge the citation. Then the violator must sign the citation and acknowledge receipt. Chief Heavey advised that it would be nearly impossible to go through the state-mandated processes if the person who contracted for the services was not at home. The Police Department will print copies of the ordinance and an information pamphlet in English and Spanish for distribution to persons cited.

Several Committee members stated that home owners should also be cited in the event of a violation. One delegate observed that the police have no difficulty citing traffic and parking violators and could not understand why they could not issue citations to violators of this ordinance. Another delegate asked about the cost of enforcement. Ms. Ahmad said that there would be the cost of printing the information pamphlet. The Police Department will track the number of complaints received and citations issued during August and has already developed code enabling its computers to compile these results. However it was explained that in the event the Police Department received calls for emergencies such as traffic accidents or burglary, priority would be given to the more serious calls.

One delegate noted that the ordinance seemed to apply almost exclusively to residences and questioned whether the ordinance would be overturned in a lawsuit because of its discriminatory impact.

Gretchen Biggs, speaking on behalf of CALM, explained that she is an attorney with experience as a litigator and environmental lawyer and opined that a challenge to the ordinance in court would not be successful. She did note that Denise Savageau, the Town's Conservation Director, has spoken out against the adverse environmental effects of leafblowers. Ms. Biggs stated that she agreed that employers of violators should be cited and that homeowners employing violators should also be cited. She noted that fines imposed in the town of Rye covered the cost of enforcement. She also advised that the exclusions appearing in the ordinances of other towns resulted from negotiations involving bans on leafblowers of a longer duration than one month.

There then ensued a spirited discussion among committee members and guests regarding who should be cited and whether the language of the ordinance is clear on who would be a violator. Some Committee members were also of the view that a one-month ban would not be an accurate test of the ordinance.

The delegate from District 7 made a motion, seconded by the delegate from District 12, to change the period of the ban from August to a period from Memorial Day 2013 to Labor Day 2013. The vote on this motion was 3-8-0.

The delegate from District 9 made a motion, seconded by the delegate from District 12, to insert the words “or cause to be operated” in the Section entitled Prohibited Activity between the words “shall operate” and the words “within the Town” so that the first line of this section would read “(a) No person or entity shall operate or cause to be operated within the Town of Greenwich . . . .” The vote on this motion was 4-7-0.

A motion was made and seconded to make the following corrective language changes:

In the Section entitled Prohibited Activity, the lettering of the second paragraph should be changed from (c) to (b);

In the Section entitled Exclusions, in clause (b) change “Section 6B-29(c) of this Code” to “Section 6B-2(c) of this Code” by deleting the “9”; and

In the Section entitled Expiration of Ordinance, delete the word “otherwise” from the second line.

The vote on this motion was 11-0-0.

The Committee then voted on the legal order of the ordinance as amended. The vote was 10-1-0 with District 10 voting no because the delegate believed that this ordinance will open the Town up to litigation and because the ordinance is discriminatory.

The Committee then voted on the merits of the ordinance as amended. The vote was 6-5-0 with Districts 2, 3, 4, 6 and 10 voting no. Reasons expressed for the no votes included a feeling that a majority of the Town's residents are willing to put up with some noise in order to have their property maintained or because no Town agency viewed leaf blower noise as a health issue.

Item 10 – Appointment of Richard J. Margenot as a member of the Claims Committee for the term expiring 12/31/13.

Mr. Margenot appeared before the Committee. He explained that he has maintained a law practice in town for the past 26 years and that he has property and business oriented litigation experience in different courts in different states. In response to a delegate’s question, he stated that he settles about 50% of his cases. He emphasized that he does not sue the Town. However, he is familiar with attorneys who might bring suits against the Town. He explained that other people view the Town as a source of deep pockets and wants to take a close look at whether the Town is paying out more in settlements than is necessary.

Our vote on the appointment was 11-0-0.

Items On The Agenda But Not On The Call.

The Committee took up two possible changes to the RTM rules that were on the Committee's agenda but not on the Call.

The first was a proposed rule change involving RTM members who are employees of the Town or who have spouses who are such employees. The proposed rule would state:

RESOLVED that as of January 1, 2014 the following addition shall be made

to the Rules of the RTM:

V.A.(3) No RTM member who is an employee of the Town or whose spouse is

an employee of the Town may be an officer of any RTM committee which

oversees any department which employs said RTM member or his/her spouse.

The Committee was assisted in the discussion of this rule by Valerie Stauffer, Chair of District 7.

The delegate from District 5 offered this amendment to the rules. She noted that at least 15 members of the RTM are employees and other members have spouses who are employees. She felt such a rule was needed because the Town's rules on conflict of interest are weak and ineffective.

Ms. Stauffer stated that a single vote in a committee can make a significant difference. Employees who have expertise carry extra weight in committee debates. If the rule were adopted, employees could still provide their expertise to committees by attending committee meetings as quests.

Some Committee members asked if there had been any events which gave rise to a need for such a rule change. Other Committee members debated the wisdom of the proposed rule change.

The L&R committee appointed a subcommittee consisting of the delegates from Districts 5, 7 and 12 to review this proposal and report back in September.

The second was a proposed rule to address future efforts to remove a committee chair. It was emphasized that this rule would only have prospective effect although the delegate from District 10 argued that the Committee should be examining current events as well. No text had been prepared for the Committee's review.

Without a rule change, we are relegated to Robert's Rules of Order which prescribes a very cumbersome process. There was substantial debate as to whether the process should be cumbersome or expedited. One delegate argued that if a few people (i.e., the members of a committee) can elect its officers, a few people should be able to remove those officers. Another person noted that sometimes officers are elected by close votes, such as 6-5, and we should not have a system that allows removal of an officer if, at the next meeting, one or two of the people who voted with the majority were absent. Another delegate argued that removal is the equivalent of being fired, and there could be a substantial negative impact on a person's business and reputation in Town. Another delegate responded that a public trial could have an even greater impact on reputation.

The Moderator noted that even under Robert's Rules of Order, there were questions such as who appoints the investigative committee. Would it be the committee members or the Moderator or the full RTM? Additionally, who would be the jury?

The Chair noted that under Robert's Rules of Order, there must be a trial of an officer who serves for a fixed term. However, there is a less cumbersome process if the officer serves for a fixed term or until replaced by his or her successor. The Chair suggested that we could consider changing the terms of committee chairs.

Mr. Fox advised that the RTM could do what the Chair was suggesting, but Mr. Fox believed that process was very important for a legislative body.

The committee formed a subcommittee comprised of delegates from Districts 2, 7 and 8 to study the matter.

The meeting adjourned at approximately 11:05 p.m.

Respectfully submitted,

s/ Kip Burgweger, Vice Chair

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