Opening Comments at the 9-17-18 BOS Meeting by Chairman John B. Macauley

I would like to briefly recap where we have been as a result of the May 8 Annual Town Meeting vote, the June 28 Petition, and the September 10 vote at the Special Town Meeting.

So, of course we have the results of the May 8, 2018 Town Meeting note on Article 25 which substantively approved both the Main Street Project and its funding.  Article 25 passed by a vote of 98 yes to 71 no.  Our Town Attorney has advised us that we must honor the Article 25 approval of the Main Street Project. 

We have the Petition on June 28. 

Here is what the Town Attorney has advised the Board and has publicly repeated at meetings on August 6 and September 10:

The Board of Selectmen decided under the Charter to allow the Petition to go forward to a Special Town Meeting as Article 4, after adding an Article 3 for a street sweeper, and Article 5 for clarity as to next steps with the Main Street Project.  We have received consistent advice from the Town Attorney that the Petition Article 4 has a procedural focus only on the Board of Selectmen and that, under the circumstances of the Petition, the Petition would not and does not supercede the substantive vote of the May 8 Annual Town Meeting. 

Instead, it directs the Board to consider and reconsider the 4 procedural considerations in the Petition: (1) routing and approach to utilities (especially the wire utilities); (2) the project time line/job schedule; (3) consider allowing development to happen before placement of utilities, sidewalks and street pavement (after confirming that “town voters have voted in the positive to improve Main Street”); and (4)  to consider the options of incentivizing developers. 

The Town Attorney has consistently advised us that procedural consideration 3 in the Petition is problematic in its plain language because: (1) improvements to Main Street can be done with “stubs” to allow access to infrastructure once development happens; and (2) the Town has no power to require when development must occur on Main Street, but only to use those utility stubs and the State law moratorium on opening pavement once placed (and also the relief opportunity for development under State law) if development seeks to happen after the Project is done and within 5 years of completion. 

The Town Attorney has also advised that Article 25 does provide language of authorization and also provides boundaries.  Specifically, Article 25 calls for “improved sidewalks, grading, drainage, roadway and utilities, including burying the overhead utility wires”, as well as plantings and lighting.  He notes that Article 25 does not, for example, detail exactly what degree of burying of wire utilities is required (although there must be some), or detail all of the specific plantings that must be made, and that Article 25 calls for “general conformance” if there is the opportunity, and need to finalize the details of implementation before a project is built.  In that regard, please review the detailed text of Article 25.

The September 10 vote just happened last Monday, and as a result, 97 votes were cast in favor of Article 4 and 45 votes case in the negative on that Petition article seeking only to have the BOS do what it can with 4 different procedural considerations as part of  “consideration and reconsideration” of the Main Street Project. 

Article 5 sought to give some clearer procedural guidance to the Board and some leeway to address “details of implementation” of the Main Street Project and that vote cast was 77 in favor  and 23 in the negative.

The BOS did have an executive session on September 13, wherein the BOS asked legal counsel for guidance on its rights and duties in light of the September 10 vote.  As State law allows, the Board asked questions and sought guidance from the Town Attorney as to our options.  Those in attendance included members of the Board of Selectmen, the TM, the PW Director, the Town Attorney and Town Clerk.  I want to emphasize that, consistent with the Maine Freedom of Access Law, no decision or substantive action was taken by the Board. 

The Town Attorney did confirm with the Town Manager today that the Board could allow discussion as to the results of Article 4 and 5 and the Board could and should take the opportunity to make inquiry of the PW Director and TM about the “details of implementation of the Main Street Project.”  The Board could then post the final discussion and a decision about details of implementation of the Main Street Project for the October 1 meeting.  The Town Attorney does suggest that, if members of the public have helpful and constructive ideas and questions about the “details of implementation of the Main Street Project”, the Board should listen and take careful notes to inform their discussion and decision on October 1.

Finally, the Town Manager and Town Attorney acknowledge receipt of a letter from Attorney Stephen Hanscom dated September 14 that briefly makes note of the September 10 Town Meeting vote, and encouraged dialogue and a “plan for what steps will be taken by the Town” within 10 days and prior to litigation.  The Town Attorney has said that Attorney Hanscom’s letter does not change the course detailed above but that he will respond sometime after tonight’s meeting once he is aware of the time frame the Board needs for its deliberations.

I am going to open the public discussion, but our legal counsel confirms that we do have options, and we should address the votes cast on May 8 and September 10 in a deliberative and stepwise fashion: (1) as the Board of Selectmen, we should take comments and questions and any suggestions from the public tonight; (2) the Board should then first consider whether we need further information tonight, (3) on October 1, once we have that information we should decide whether we will reconsider; and (4) on October 1, upon deciding whether to reconsider, we should seek to address the details of implementation of the project, including any modifications, and then finalize our approach prior to signing up a contract to advance the Project.