By Chris Keegan
The Sun Staff
CHARLESTOWN – Town Council Vice President James M. Mageau says he’s considering sending his own attorney to Superior Court to find out whether the town’s Planning Commission should be an elected or appointed body.
Following more than an hour of heated public debate at this week’s council meeting, town councilors voted 4-0 authorizing Town Solicitor Robert E. Craven to review a memorandum by local land-use attorney Margaret Hogan and relevant portions of state law to bring clarity to the issue.
Hogan, who serves on the town’s Charter Review Committee, asked the advisory group last month to consider if the development board is legally constituted. Its members voted 6-0 to ask the council to let a Superior Court judge rule on the matter, though committee member Daniel Slattery – who is president of the Charlestown Citizens Alliance – has since asked to rescind his vote under pressure from constituents.
Proponents of the move believe a motion for declaratory judgment filed with the courts would erase the town’s liability against future lawsuits, while opponents have characterized the request as both an attack on the Planning Commission and a move to take away citizens’ right to vote. Charlestown’s Planning Commission is currently the only elected planning board in the state. “Due to the significance of the question regarding whether the Charlestown Planning Commission is legally constituted, I intend to seek legal advice from private legal council to determine if, as an elected member of the Town Council, I have the legal standing to ask the Superior Court to review the law and to issue a declaratory judgment,” Mageau said.
“… I was appalled at the number of ‘sidewalk lawyers’ who actually stood up (at Monday’s meeting) and recited state statutes in opposition to seeking the courts opinion when they obviously know nothing about the law,” he added. “That lends credence to the old adage ‘if you can’t baffle them with brilliance, befuddle them with baloney.’” Prior to Monday’s discussion, Planning Commission Chairwoman Ruth Platner said state statute requires several municipal positions – including town clerks, town treasurers and town assessors – to be elected. The towns of Burillville, Exeter and North Kingstown are granted specific exemptions included in the law, she said.
“Since the town council and the town administrator have shown such an interest in adherence to state law, I feel compelled to make the town council aware of state statute 45-4-1,” Platner said. “… Charlestown is not mentioned in the list of exempted towns. So, are we exempt or not? Does this mean that our town clerk, town treasurer and all the others are illegally appointed? Have we all had our property illegally assessed by the illegally appointed tax assessor?”
“… This may sound silly, but it is state law,” she added. “And if we are going to have this very tight and literal interpretations of law… then I think we should address this section and those other sections (related to the Planning Commission) in the same way.”
Mageau , however, told residents that the intent of the request for declaratory jugdgment is strictly town business, noting that adverse decisions of the Planning Commission overturned by the court have resulted in an unconfirmed, $4-million worth of legal costs to local taxpayers over “several years.”
“No one is saying that it (the Planning Commission) isn’t legally constituted,” he said. “As members of the town council, we have a fiduciary responsibility to answer that question – and that’s all that this is about. It is what it is. If it (the commission) is legally constituted, then there’s no problem. If it isn’t, then we have to do something to correct it.”
In a telephone interview earlier in the day, however, Mageau said that the development board should be an appointed entity.
“I’ve always said that,” he said. “The Planning Commission has been out of control for years. Thank God (Planning Commission members) Bob Rohm, Neil Ulricksen and Lewis Johnson have come to realize they need to control the board and are doing so in a very responsible manner. From what I’m told, those three are exercising their responsibilities very well, but it’s always a fight with Ruth Platner and Linda Fabre.”
Councilor Harriet A. Allen – who alleged that the state’s court system is corrupt in an interview last week – said she believes Superior Court Associate Judge O. Rogeriee Thompson would rule that the commission should be appointed if the town filed a motion for declaratory judgment, due to an alleged “bias” toward Hogan and another development attorney.
Thompson recently ruled against the town in a Zoning Board appeal filed by Hogan on behalf of residents Hamilton Migel Jr. and John Dunn – a decision that Craven said he is considering challenging due to the sum of attorney’s fees awarded.
“Jimmy wants to sue the town in court to try to remove the Planning Commission,” Allen said. “By hook or crook, he wants to get before it before Judge Thompson.”
In related news, resident Kallie Jurgens – a member of Rhode Island Statewide Coalition’s Board of Directors – asked councilors this week whether Hogan’s service on the Charter Revision Committee is a conflict of interest. Hogan is currently the attorney for a developer who is challenging the legality of a 1998 amendment to the town’s zoning ordinances.
The case is currently pending in Rhode Island Supreme Court.
In an October advisory opinion by the Rhode Island Ethics Commission, the commission ruled that Hogan’s presence on the committee does not represent a conflict. Hogan filed a request in May, amid questions about potential recommendations she could offer on the operation of the Planning Commission and the Zoning Board.
“It is of the opinion of the Rhode Island Ethics Commission that the town of Charlestown’s Charter Revision Advisory Committee is not a ‘municipal agency,’ as that term is defined in the (state’s) Code of Ethics because its powers are purely advisory in nature,” wrote Chairman James Lynch Sr. “As a result, (Hogan’s) appointment to the committee by the town council does not cause her to become a ‘municipal appointed official.’ Therefore, as a member of the committee, she is not subject to the statutory and regulatory provisions of the Code of Ethics.”
Members of the Charter Revision Committee are scheduled to meet next Monday at Charlestown Town Hall. In addition to the issue of whether Planning Commission members should be elected by Charlestown’s citizens or appointed by the town council, Craven is also reviewing Platner’s legal concerns regarding the election of town employees.
ckeegan@thewesterlysun.com