Print this page

MINUTES
Special Cumberland Town Council Meeting
Thursday, February 16, 2006

CALL TO ORDER - 7:00 p.m.

Present:  Chairman Stiles, Councilors Turner, Damon, Storey, Kuntz, Moriarty and Porter.

I.                   APPROVAL OF MINUTES:

February 13, 2006.

Motion by Councilor Storey, seconded by Councilor Kuntz, to accept the minutes as printed.

VOTE:             PASSAGE 6-0-1 (Councilor Turner abstained)

II.                MANAGER'S REPORT:

The Manager received a request regarding the sale of town-owned property on Range Way.  The neighbors will be notified and the matter will be formally sent to the Conservation Commission at the next council meeting for review and recommendation.

III.              PUBLIC DISCUSSION:

No comments received.

IV.              LEGISLATION AND POLICY:

06 - 024.         To hold Public Hearing to consider and act on the Chebeague Island Secession.

The Town Manager announced that the town attorney and petitioners" attorney have "finalized the document" that is before them this evening.  Additionally, the Town Manager received notification from Superintendent Hasson this evening that the SAD 51 Board of Directors will meet tomorrow morning to discuss their agreement.  Only the town's portion of the agreement is before the council this evening.

The Town Manager introduced Town Attorney Ken Cole who reviewed the town's portion of the secession agreement, section by section.  By way of background, Attorney Cole clarified that the document before the council is "proposed legislation¬ so much an agreement."  This proposal creates a "committee amendment to that (LD 1735) flushing out what otherwise was skeletal because there wasn't an agreement at that point.  The portion in this proposed legislation relates specifically to the municipal separation.  The portion that the SAD would add would be considered Subsection B to Section 2."  Section One is "exactly everything Representative McKenney already put in; the only difference being&where we make it clear that everything other than Chebeague Island, the so called outer islands&when you're getting the 50% thereafter, it's not 50% of the taxes generated on Great Chebeague, but only on the others."  Additionally, the payment shall be on "such other schedule as you may agree to so that it's not locked in if somebody wants to accelerate the payment on what they're allowed to by agreement between the parties..."  Section Two is "what would be a committee amendment" offered both by the town, SAD and the committee on secession through their lobbyist" and relates to the matrix items that dealt with tangible property.

All of the real and personal property owned by the Town of Cumberland on Chebeague Island will become the property of the Town of Chebeague Island on the effective date, both real and personal property.  The town agrees that the new fire truck and the "typical assets in the course of business are also included."  This "doesn't deal with the Curit property." We will have a separate assignment of the town's rights that are still retained while the fundraising is technically still ongoing.  Section Three is the "basic agreement" negotiated in regard to "financial consideration" or $1.3 million to be paid by the town of Chebeague no later than December 31, 2007.  Section Four relates to debt; the possibility of a default call on the financing. "It certainly is unlikely" but, to the extent there ever is a call on obligations, thirteen percent would represent the share of the Town of Chebeague Island.  Section five relates to the issue of the Blanchard Lot.  The Town of Cumberland's lease with the Maine DOT will be assigned to the Town of Chebeague Island, subject to the CTC sub-lease.  "At the same time, the Town of Chebeague will take over the obligations under the locally administered project agreement, which is the Wharf Road upgrade. And, the Town of Chebeague Island will pay the other twenty percent."  The floats will be turned over to the Town of Chebeague Island.  Section six relates to "each of your respective liabilities as the owners of closed land fills."  Each town will separately take full responsibility to continue monitoring and "see to it that they are maintained in their undeveloped state and otherwise that's in the orders from DEP when they were closed, and each of you will be holding the other harmless if a claim is made in regard to your maintenance" hereafter.  Cumberland also agrees to "aid in the town of Chebeague Island's membership in RWS in the event they want to join."  Section seven states "you will explore interlocal agreements" in regard to emergency services. Section eight states that "each town will be responsible for its own debts and finances and there will be no further overlapping ability." Section nine is "an attempt to recognize the agreement in the matrix that each of the town's citizens will have equal access to municipally owned public lands for recreation, fishing and related activities.  And we added shellfish rights as reserved to the original inhabitants of the Town of North Yarmouth, which includes the Town of Cumberland, the Town of Chebeague Island and the Town of North Yarmouth."  Attorney Cole also explained that another provision to be added as Section Eight and which he explained will also be found in the final agreement between Chebeague and the SAD states that "this legislation is enforceable (in court) by the two municipalities and the SAD that are parties to it."  The SAD attorneys were concerned that "since it was legislation, the towns might not have had actual standing to enforce it" and prevent the raising of a technical question that the municipalities lack standing because this is actually legislation.

 

In response to Councilor Moriarty's question related to the "first special town meeting in Chebeague" attorney Cole replied if the legislation is passed "it is a stated effective date; July 1, 2007.  So, there is no town of Chebeague in the physical or legal sense until the effective date of the legislation."  Legislation is typically effective ninety days after its enactment date, but the legislature can provide "by specificity" a different effective date "and that's what they're doing in this."  Attorney Cole responded affirmatively to Councilor Moriarty's statement that "between the enactment date and the effective date Cumberland residents living on Chebeague can participate in all types of town elections" by adding that "until the effective date, anybody living on Chebeague Island is a resident of Cumberland  and have the same rights to vote in any election."  Councilor Porter referred to Section seven related to emergency services questioning if there is "a shadow government" between April 2006 and July 2007, "How are we going to have any type of legally binding agreement with a town if there's not a town?" Attorney Cole replied "Until there is a town, there's nobody that can bind the residents of Chebeague Island. This says that in the interim you will explore that type of agreement" which will presumably "be presented to&either the selectmen or the town meeting of the Town of Chebeague Island at such time it's actually created." Councilor Porter further noted that negotiation discussions related to taxes resulted in an agreement that "up front there was the opportunity for a one-time payment of $3.1 million dollars, and there's no fifty percent over fifty years.  Upfront $3.1 million dollars or as stated here $1.3 and then fifty over fifty."  Councilors Damon and Moriarty addressed the issue of election and/or town meeting of the new Town of Chebeague Island.  Councilor Moriarty referred to Representative McKenney's original legislation which "made a distinction between the effective date of separation and the effective date of the act," noting "That's why I thought they could have this town meeting even before separation." Attorney Cole responded that "the effective date of the act is specified in the statute. There is no way they can have a meeting of an entity that doesn't exist. Anything before that would be voidable&if it was challenged."  The bottom of page one specifies the date of July 1, 2007 and "everything thereafter refers to it as that."  

Councilor Damon questioned whether language could be added to the bill and Attorney Cole stated "I strongly suggest you don't want to add that language." Councilor Damon questioned whether an inventory of equipment will be made and the Town Manager clarified that what's "typically at the town garage will be there. I'm not planning to bring anything back." Councilor Damon requested clarification regarding the Curit property. "It makes it sound like we've already decided to sell that property to the Land Trust."  The Town Manager stated the intent was to agree "that it was covered for payment under the $1.3 million and that we would then transfer our ownership to the Town of Chebeague Island." Councilor Damon questioned the definition of "other good and valuable consideration" found under item number three of page three.  "It's literally the arms wide everything that's of value other than the money" responded Attorney Cole.  Councilor Damon referred to the "potential indemnity payments" clause found under page five, number eight, related to the Chebeague landfill. Attorney Cole explained "If a claim against the towns of Cumberland and Chebeague as a result of the mismanagement of the Chebeague landfill by the Town of Chebeague Island was made, the town of Chebeague Island would be obligated to indemnify the Town of Cumberland. Just as the Town of Cumberland would be obligated to indemnify and defend the Town of Chebeague as a result of its mismanagement of the Drowne Road landfill."  Councilor Damon expressed "surprise" at the inclusion of this language because "of the two landfills, the one that has the most potential to be a problem would be the one on Chebeague.  It doesn't seem to me as if that's balanced."  Attorney Cole did not feel the Town of Cumberland should agree to the separation if it "remained the guarantor of that landfill when it would no longer have operational rights or responsibilities in regard to it.  Councilor Damon questioned where are the provisions to say how the remaining matrix issues will be dealt with and recommended one more paragraph to reference those to say theyre going to be resolved.  Attorney Cole stated the town is required to provide any of those documents at a reasonable cost.  The attorneys representing the secession petitioners were satisfied that that was more than sufficient to protect them.  The reversionary clauses are technically included because they are a real estate interest thats being conveyed to you by virtue of this legislation.  Councilor Storey stated he would like to see the whole article thrown out if a challenge were made to the agreement.  Attorney Cole restated that municipalities have no independence but that granted them by the legislature. Once this is in the legislature&they can do what they please.  If the legislature adopts this with the tax sharing formula therein its the legislatures determination to make. I feel comfortable with that being in this legislation.  You have to understand, that when you put this in the legislative arena you are in fact subject to whatever may come out of it. But, the history has been nothing has come out of it other than what everybody agreed to.  Chairman Stiles questioned the recourse for either party should another party not meet its obligations of the agreement. Attorney Cole stated that the final bill or overall legislation will contain language to enforce the provisions of the agreement.  The municipalities or the SAD would have the right to go to Superior Court to get an order to that effect. It works in the same way you collect any other debt; you go to court.  Councilor Moriarty questioned if a section is successfully challenged, is there any implied severability?  In this instance, because it deals with a municipal separation&purely legislative in nature, responded Attorney Cole, I do not see an issue because its completely constitutionally within the legislatures prerogative to create and uncreate municipalities.  Councilor Moriarty questioned whether the five member committee of petitioners have any legal existence after enactment of the bill? to which attorney Cole replied Their function ceases at such time as the legislation is presented. So, in a legal sense no. The town may choose to continue working with the petitioners but nothing you do from that point forward will be legally binding on you or the newly created town of Chebeague Island when it comes into existence.  That can only be done by a subsequent agreement.  If the bill passes, charter changes will be required.  Councilor Moriarty questioned when a proposed charter change should be presented to the voters.    Attorney Cole recommended a charter amendment to replace the Chebeague council seat with an at-large seat in November 2006 and specify an effective date of July 1 (2007) on the charter change.   Councilor Porter asked Attorney Coles opinion regarding whether language is necessary to require the Town of Chebeague to pay a minimum of $3.1 million dollars in the event of a claim of unconstitutionality. Do we need to put that in the legislation now to protect the Town of Cumberland?  Attorney Cole replied, From my perspective, I dont see a significant risk but if the parties were willing to accept it, certainly it can go in there as an insurance provision.  Language could be added stating the estimated return to the Town of Cumberland of this provision is 'x &and if the payment schedule stipulated&is found unacceptable, the Town of Chebeague Island will be responsible to pay whatever that lump sum is. You would simply be&saying this payment was in lieu of a lump sum for x dollars&and if the court doesnt accept the installment payment agreement thats been provided in here then a lump sum will be due.  The lump sum of $1.3 million dollars and then a minimum of $1.8 million dollars would be paid.  There is no down side risk to either the Town of Chebeague or the Town of Cumberland, as long as the parties can agree on what that lump sum represents but there may be no way to know what the 50/50 formula might actually produce over that period of time.  Chairman Stiles asked how a citizen could indicate dissatisfaction with this movement and how long can it go before the secessionists can decide not to go forward?  Attorney Cole stated the legislation seems to say that at any time up to the point of passage the secession committee could withdraw the legislation.  My take is once the legislation is in the hopper they can say we withdraw it, but that doesnt mean the legislature has to accept that.  At any point up to the final report and submission of a bill you can back away.  Councilor Damon added that citizens have the right to attend the session to voice opposition.

 

During public comment, Mrs. Beverly Johnson, Chebeague Island, asked why a separate agreement wouldnt be a better situation for all parties?  Attorney Cole responded that the enabling statute requires a report to the legislature and legislation drafted from that report. This is the legislation drafted from that report and to do it otherwise&would refer to an agreement that is in essence off record.  The committee&would simply be enacting something that is off record.  My advice to the council would be never to do that because then there would be numerous questions about was that report actually legislation etcetera or did they improperly delegate their authority by not putting it into the legislation. 

 

Councilor Moriarty questioned Cumberlands state representatives if a final council vote on February 27^th presents any problems at the legislative level.  Is there some reason why we should vote sooner rather than later?  Representative Terrance McKenney responded that it should not be a problem as long as we have the draft of the information that attorney Cole has addressed.  We need that for an amendment.

 

Mr. Hill, Chebeague Island, stated he will be preparing the report that goes to the committee, who he stated has asked for it a week in advance. He does not feel a February 27^th vote will provide as much time to have our report with its complete agreement as a part of that report. 

 

Councilor Storey requested a dollar figure be prepared&in the event the fifty year payoff wasnt legal.  I think were obligated to protect the Town of Cumberland and thats what I intend to do.  The Town Manager explained that would open up the agreement again and that would probably need to be negotiated with both parties present.  We agreed in spirit to open negotiations at any time for a lump sum payout, but in fairness to all parties that were involved with that agreement, I think that would have to get some input from the secession petitioners as well.  Representative McKenney commented that the legislature has&a good housekeeping seal of approval.  Everything we do is constitutional unless its challenged and ruled on by a court.  Somebody with standing would have to bring suit.  I dont know who would have standing except perhaps the towns and/or its residents. Certainly somebody from Falmouth cant decide that they want to challenge the constitutionality of this.

 

Motion by Councilor Porter, seconded by Councilor Turner, that when this meeting adjourns it adjourn to meet here on February 21, 2006 at 5:00 p.m.

VOTE:             UNANIMOUS PASSAGE 7-0

 

Motion by Councilor Porter, seconded by Councilor Moriarty, to postpone item 06-024 to the adjourned meeting set for February 21^st, at 5:00 p.m.

VOTE:             UNANIMIOUS PASSAGE 7-0

 

06  025.         To authorize the Town Manager to expend up to $35,000 out of

existing FY 2006 budget for emergency repairs to the Prince

Memorial  Library.

 

The Town Manager explained our Librarian, Thomas Bennett, began to receive complaints from employees at the library related to respiratory issues and determined an air quality test should be performed. Northeast Test Consultants performed the testing and discovered quite a bit of mold in our basement area which needs to abated and mitigated.  The Town Manager introduced Mr. Steven Broadhead, President of Northeast Test Consultants, to provide an overview of his findings.  What we found in that investigation was that over quite a long period of time there has been water infiltration into the old part of the building with the source being rainwater from the roof, and improper landscaping.  Many records have been damaged and have grown mold. There is also evidence of mold on the woodwork, decking in the rafters, wooden shelving, and insulation in the boiler room.  The type of mold has been recognized as causing respiratory problems.  Mold was also found in airborne samples.  Our immediate recommendation to the Librarian was to close off the basement to any access, and stop materials from being placed in the room or retrieved from the room.  The air quality in the new section was acceptable and no mold spores were found.  The air quality inside the building was comparable to outside the building. The issue weve got to deal with is down in the basement.  A sump pump is dealing with a fair amount of ground water.  Latex rubbier backing from an attempted carpet removal has turned to latex powder and is another cause of a potential allergen.  The dumb elevator is also providing a natural circulation of air from the basement to the offices, and should be isolated and taken out of service if possible.  The materials that have intrinsic value will be cleaned and restored.  Items available in some other medium will be disposed of as contaminated materials.  When complete, the space will be re-used as storage space as long as it is monitored.

 

Councilor Porter questioned whether there was concern for those working at or using the library at this time?  Mr. Broadhead answered there is a small risk if their movement starts to transfer mold from downstairs to upstairs.  He plans to isolate the space tomorrow, but if the work were to be delayed several weeks, he suggested you close the library.  The remediation will take two to three weeks.  The remediation effort isolates the space. We can conduct our remediation activities, and you can still operate the library. Testing will be done during the remediation to compare the results across the building.  Councilor Damon thanked the Librarian and Town Manager for taking this issue seriously. Both should be commended for doing the right thing.  The Manager added that additional roof work and gutter work will be completed as well. 

 

Motion by Councilor Porter, seconded by Councilor Damon, to authorize the Town Manager to expend up to $35,000 out of the existing Fiscal Year 2006 budget for emergency repairs to the Prince Memorial Library. 

VOTE:             UNANIMOUS PASSAGE 7-0

 

V.                 NEW BUSINESS:

 

None

 

Motion by Councilor Moriarty, seconded by Councilor Kuntz, to recess to Executive Session pursuant to 1 M.R.S.A., Section 405(6) (e) re: consultations with legal counsel and Section 405 (6) (c) re: real estate disposition.

VOTE:             UNANIMOUS PASSAGE 7-0

TIME:             

 

VI.              EXECUTIVE SESSION:

 

Motion by Councilor Moriarty, seconded by Councilor Storey to return from Executive Session.

VOTE:             UNANIMOUS PASSAGE 7-0

TIME:              9:22 p.m.

 

 

 

Respectfully submitted,

 

Nadeen Daniels, CMC
Town Clerk

---

 

Bookmark us and
stop by daily
for updates!