01:00 AM EST on Friday, November 30, 2007

By Maria Armental

Journal Staff Writer

CHARLESTOWN — The legal standing of the town’s Planning Commission — the only planning board in the state that remains an elected body — is once again being disputed.

This time, however, the challenge comes from the very same group that had been asked to fix the Town Charter’s wording to end the legal wrangling.

The discussion started when William F. Meyer, a member of the Zoning Board, asked the Charter Revision Committee to consider making his own board an elected body.

Committee member Margaret L. Hogan, a lawyer, responded in a memorandum to the committee saying state law requires that both the Zoning Board and the Planning Commission be appointed.

In Charlestown’s case, appointments would be made by the Town Council.

“In my review of these General Laws,” Hogan wrote on Oct. 22 referring to Rhode Island laws that refer to the local planning boards or commissions, as well as the Development Review Act of 1992, “I found no statutory authority for the election of Planning Commission members, either in 1980 or today.

“I therefore believe that our charter runs afoul of state law and that our Planning Commission has been created unlawfully,” Hogan wrote.

“Additionally, since [Rhode Island law] provides statutory authority for alternate members only for the Towns of Hopkinton, Exeter, and Richmond, I believe that our current charter provisions which provide for alternate members also violates state law.”

Based on Hogan’s findings, the Charter Revision Committee voted Monday night to ask Town Administrator Edward M. Barrett to request a legal opinion from the state attorney general’s office.

But then, said Deborah Carney, a former council member who chairs the committee, “we thought that might take . . . too much time” given the committee’s May deadline to present its work to the council, so members took a second vote to “ask the Town Council to authorize the town solicitor to seek a declaratory judgment [from a court] on the matter of the elected v. appointed Planning Commission.”

Both votes were 6 to 0. Member David E. Crandall was absent.

“We are hoping if the attorney [gets the declaratory] judgment our recommendation will be based on a strong legal footing,” Carney said.

“I believe it’s prudent to know the legality of something we could possibly be voting on,” she said.A declaratory judgment is a court decision in a civil case in which a judge rules on a legal question. No damages or orders are entered.

The council next meets on Dec. 10.

Ruth Platner, who chairs the Planning Commission, called it an “adversarial” move and said a little reading of some of those same state laws shows that towns that have a home rule charter are exempt from the appointment requirement.

“Any city or town operating under a home rule charter which provides for the establishment of a planning board or commission may continue under the provisions of that charter,” the statute reads.

Moreover, Platner said, the reason Hopkinton, Richmond, and Exeter were singled out is that when that statute was last amended, none of them had a town charter requiring them to seek permission from the state to expand on the board’s membership.

Many other communities — including North Kingstown, Westerly, and Providence — have alternate members, as per their town charters, Platner said.

“I think she [Hogan] is overinterpreting the law,” Platner said.

Under the Town Charter, the commission has five members, and two alternates, all elected at large on nonpartisan basis with the five highest vote-getters becoming voting members — to serve six-year terms — and the next two highest vote-getters named alternates to serve two-year terms.

If an alternate resigns or is appointed to fill a vacancy on the commission through the next general election, the council would appoint a replacement alternate also to serve until the next election.

“Having an elected Planning Commission makes us much more independent of the Town Council,” Platner said.

Moreover, Platner said, she fears challenging the commission’s legal standing is only the first step.

“One of the things that would happen if they say that we were not legally elected [is that] they would try to undo votes that we took, and Ms. Hogan has a conflict there,” Platner said.

Hogan could not be reached for comment yesterday.

The Charlestown lawyer, who represents several developers, sued the town last year seeking to annul the zoning ordinance and maps.

A Superior Court judge dismissed the case in March saying the developer had missed the 30-day statutory deadline to file suit — by nearly eight years.

Hogan appealed to the state Supreme Court.

marmenta@projo.com