BRUNSWICK — A group of residents hoping to reverse the Town Council’s decision to sell town-acquired coastal property at 946 Mere Point Road will petition to send the decision to referendum – despite the town attorney’s opinion that a petition might not carry any legal weight.
After a week-long review of the petition request by town attorney Stephen Langsdorf, the group received petitions from the town clerk Monday. However, Town Clerk Fran Smith issued the petitions with a memo from Langsdorf, of Preti Flaherty in Portland, explaining that the petition has no legal basis in the Town Charter.
“The petitioners should be made aware that there are serious concerns regarding whether the petition, if returned, will be accepted as legal,” the memo states.
“I don’t think it’s a legal process,” Langsdorf said in an interview three days before the memo was issued, explaining that the petitioners hoped to take advantage of a process in the charter that, in fact, is not appropriate to the action of reversing an executive order to retain town property.
“While there is nothing in the charter giving the clerk the authority to deny the issuance of the petition, the council will have the opportunity and authority to review it, if it is returned, for validity, completeness and legality before voting on whether to put the petitioned article forward to referendum.”
On Oct. 18, five residents requested petitions for a draft ordinance designed to take advantage of a mechanism in the Town Charter called a police power ordinance, which exists to enact ordinances for the promotion of public welfare.
Langsdorf determined, however, that the petition did not satisfy the criteria for a police power ordinance. He said police power ordinances aren’t intended to allow residents to reverse executive orders; rather, they are meant to enact a set of legislative rules or procedures that benefit the public.
Langsdorf said that using a police power ordinance to require a council to “retain property” would be a misuse of its intent.
He said that the Town Charter includes a legal mechanism for nullifying an ordinance – although within 20 days of its approval, which has since passed. But the council’s decision to sell the property was an executive order, he said, not a legislative action.
“This was an order, so there’s no power for the people to get involved with that” in the charter, Langsdorf said, which made him suspect of the process.
Though it may have no legal bearing, Langsdorf said, “We don’t want to stop them from going out and getting their petitions.”
Which is what the group still intends to do.
Sockna Dice sent a letter to the Town Council on behalf of five petitioners Wednesday morning, arguing that the group still thinks the petition has legal standing under state law.
“The town attorney is absolutely correct in stating that the local right to petition may have different standards imposed by each municipality. This is quite different, however, from asserting that the municipality may, by executive action, limit the people’s right to petition so as to confine it to some small universe of activity,” the letter states.
The letter goes on to appeal to state and First Amendment laws that allow citizens to place broad initiatives on the ballot, as evidenced by the six measures the state will vote on this November.
Additionally, the petitioners wrote that they never claimed their request was dependent on the charter, and failed to receive information from the town about how to pursue a petition through state law.
“With sincere respect to our present council, the reason for this is clear: to ensure that voters have recourse to take action when the voters believe that their representatives have failed to act, ignored the will of the people, or acted against their will,” the letter goes on.
Langsdorf was in court Wednesday morning, and not able to immediately respond to the letter.
However, last Friday he said it is still entirely legal for the petitioners to collect signatures to bring before the council – but in his opinion, thecouncil isn’t legally bound to enact the ordinance, or to send it to referendum.
Whether public opinion sways councilors to reconsider their decision is another matter.
“The political part is up to the council,” Langsdorf said. “The council will get to make the decision whether or not to order the election.”
If history is any indication, the decision will be political.
The council’s summer-long consideration about whether to sell the property or turn it into a public park produced massive public commentary. Several councilors reported that they received more emails on the subject than any other issue since their election.
Those who opposed the park – specifically, neighbors near the property – have already expressed their condemnation of the petition.
Heather Osterfeld, of Wild Aster Lane, wrote to The Forecaster on behalf of five couples in her neighborhood who are “concerned taxpayers in town are putting our confidence in all Town Council members to uphold the Town Charter and the rights and responsibilities of Town Council to vote on the business of the Town.”
Her letter took the form of an open letter to the Town Council.
“Town Councilors, the facts have not changed regarding 946 Mere Point Road. Your entire process and vote to sell the property was thorough, valid and correct. Don’t allow an end run around council to subvert your careful work, and to call into question every vote you’ve made or will make in the future,” she wrote.
“Your assessment, discussion and deliberations on the property were as well publicized, transparent and open for public input as any in the history of council,” Osterfeld continued. “Where were these petition-signers then?”
But the petitioners argue that they made their voice clearly heard during the council decision, and did so with the backing of four town committees that recommended the council retain the land.
Tony Yuodsnukis, one of the petitioners, said the group formed with the sense that there was still a lot of public support for a park.
“In my heart, I do believe that there are many people in the town that would like to have more public access,” he said in an interview after the request for petitions was made, but before Langsdorf weighed in on its legality.
Five signers is the minimum number needed to obtain a petition from the clerk, but according to Yuodsnukis, the group of people supporting the petition is much larger.
He said the group is not formally organized, but connected through phone calls and email. As such, it is difficult to quantify or delineate a set of official petitioners outside of the five signers.
The petitioners plan to collect signatures on Election Day, Nov. 8, with the hope of sending the measure to a June 2017 referendum.
Osterfeld declined to comment about whether she would organize a response to the collection of signatures. But in her letter she urged residents to call and write town councilors to express their opposition to the petition.
Meanwhile, Town Manager John Eldridge confirmed the town is still moving toward clearing the title on the property – the first step toward a sale.