Town attorney clarifies public hearing procedures

By Dwight Collins | Jul 29, 2014
Photo by: Dwight Collins

Rockport — Rockport's town attorney said proper procedures were followed by the select board July 22 when it received a proposal from the library committee regarding development of a plan for construction of a new library on the ballot.

Numerous residents attended a select board meeting July 22 in the hope of speaking about the library proposal, which seeks voter approval to develop a construction plan for a new library at the site of the former Rockport Elementary School on West Street. At that time, Select Board Chairman William Chapman allowed very little public comment and explained the board only expected to receive a request from the library committee to place the resolution on the ballot.

After that meeting, some residents said they felt Chapman was out of line to deny public comment on the emotional issue – some even expressed the feeling he had broken the law.

“I had asked some questions of the town attorney, Bill Plouffe, regarding 'public hearings' and what was required of the Rockport Select Board given our town charter and select board bylaws,” Chapman said this week. "His response was provided to the rest of the select board. I think it shows some background that the select board is going far above what is required regarding placing questions on the ballot.”

In Plouffe's reply to Chapman through an official memorandum, he explains that legally the town is well within the letter of the law.

Chapman asked: “Is the Select Board required by law to hold a public hearing before voting to place an article on the Town Meeting warrant?”

Plouffe wrote, “In Rockport, there are three ways in which an article or question can make its way onto the Town Meeting warrant or referendum ballot. The Select Board may on its own initiative place on the warrant any article relating to the welfare of the municipality.”

Secondly, Plouffe said any qualified voter who presents a written proposal for a warrant article can ask selectmen to include it on the ballot. Also, if the select board is presented with a written petition signed by a number of voters equal to at least 10 percent of the votes cast in Rockport at the last gubernatorial election, the issue may be placed on the warrant.

"Nowhere in the cited charter provisions or in the cited statutory provisions do I find a requirement that the select board hold a public hearing on the question of whether to place the article on the warrant. Of course, any discussion and vote by the Select Board on the question must be held at a public meeting," he said.

Plouffe said, “I offer no opinion on the wording of the proposed question. I note that the proposal is for an advisory referendum. Neither the charter nor the state statutes speak to advisory referenda in the context presented by the facts here. ... However, municipalities do place advisory referenda on ballots and I believe that it is within the power of the select board to do so here.”

The memo continued, “I have reviewed the Bylaws of the Select Board (adopted 6-23-14). In Section 4 of the Bylaws I find the following: 'Public hearings of the Board shall be called as required by law or on such other occasions, as a majority of the Board may deem appropriate.'

"Since I find no law requiring a public hearing in these circumstances, my advice is that the select board may hold a public hearing if it chooses to do so but that it is not required to hold a public hearing before deciding whether to place the proposed question on the warrant/printed ballot.

"You note in your email, and I repeat here, that we are not discussing in this memorandum the public hearing that the select board must hold on all referendum questions at least 10 days before voting takes place. 30-A M.R.S. § 2528(5). The proposed question on the library has not yet reached that stage in the process.”

Chapman also asked for clarification on rules of procedure the Select Board can impose on those wishing to testify at the hearing, such at time limits.

The Bylaws of the Select Board provide, in Section 4, the following relevant guidance, according to Plouffe.

“The board may receive any oral or documentary evidence but shall exclude irrelevant, immaterial or unduly repetitious evidence - or - the chairman may impose such reasonable time limits as may be necessary to ensure that all parties have an adequate opportunity to be heard,” he said. “Based upon this guidance and general principles of conducting public hearings, I can respond to your specific questions as follows: The chairman may impose reasonable time limits on speakers if he deems it necessary in order for all parties to be heard during the time allotted for the hearing. I am aware of 3- and 5-minute limits being imposed at, for example, legislative hearings. ... The chairman may limit each individual to one opportunity to speak if he deems it necessary in order for all parties to be heard or because he wants to avoid repetitious and argumentative testimony.”

Plouffe recommended establishing rules prior to opening the public hearing that direct speakers to address the wording of the question, not the proposal itself.

“I suggest that the board open the hearing with a request that speakers keep to the issue at hand and then 'reign in' speakers as needed,” he said.

The memorandum also notes members of the board can ask questions of speakers. If time constraints are placed, questions from the board should not count toward the speaker's time, Plouffe said.

"Board members should be cautious not to enter into a give-and-take with speakers," he said, adding,the purpose of the hearing is gather public input, not to debate the issue with members of the public.

Chapman questioned if the select board is required to publicize the anticipated date of the board vote in a different manner than usual procedure.

Plouffe said the board should follow its normal procedures for notifying the public. If the Board plans to vote on the issue at the same meeting that it holds a public hearing, then it should include an agenda item relating to the vote, Plouffe recommended. If the public hearing and vote take place during different meetings, separate notices should be given, he said, adding another public hearing is not required if the vote is postponed or scheduled for another date.

"In conclusion, the select board is not required to hold a public hearing before voting on whether to place the proposed advisory referendum before the voters. If the select board chooses to hold such a public hearing, the chairman/board has considerable latitude in setting establishing the procedures that will be followed at the hearing,” he said.

The issue of the public library has been one that at time has been very emotional and at the select board meeting on July 22, the Library Committee outlined a process that has been years in the works.

“The process leading up to this recommendation has been unfolding for years,” said Library Committee Chairman Kathleen Meil at the July 22 meeting. “Since the 2004 Comprehensive Plan charged the library committee with expanding the current facility or constructing a new facility on one of Rockport's major routes.”

Meil spoke about the number of public meetings and the series of five neighborhood listening sessions. She said she felt confident citizens were heard and their input was invaluable to reaching the final conclusion that the site of the former Rockport Elementary School is the most suitable location.

“I've been working on the question of our library's future for years now and I am convinced that a new facility adjacent to the ball fields on the RES site could live up to Rockport's needs and aspirations without losing the comfortable, friendly, cozy, Maine library the residents will love,” Meil said.

After hearing the proposal, an Aug. 5 public hearing was set by the select board, to address placing a non-binding resolution on the November ballot seeking approval for development of a construction plan for a new library on the former Rockport Elementary School site.

The public hearing will begin at 6:30 p.m., upstairs at Rockport Opera House.

The library committee identified eight possible locations and used 11 different criteria to rank them in order of best scenarios, according to previously published reports. Other sites considered besides the current and RES sites were Memorial Park across from the library; a combined site of the current library property and Memorial Park; the former Center for Maine Contemporary Arts building; a large commercial site on Route 1; Camden Hills Regional High School library and a Rockport Properties site on Central Street abutting the Shepherd's Pie Building, adjacent to Mary Lea Park.

In July 2013, nearly 100 residents attended a meeting at Rockport Opera House to support the notion there is room for expansion at the current location in the village after it was originally suggested the former RES site would better support expansion.

To that end, the following November, residents voted to make a change to the Shoreland Zone Overlay District, adding municipal buildings to the acceptable use section of the ordinance. With plans approved by Maine Department of Environmental Protection, renovation or new construction of the public library could take place at its existing location in the harbor village.

A study, funded by a $15,000 grant secured by former library director Molly Larson, was completed in 2013 and recommended RES as the most suitable site as it already is owned by the town. In May, the Library Committee independently endorsed a plan for the construction of a new library on the former RES site at the intersection of routes 1 and 90.

Editor's note: This story has been updated to clarify the potential ballot issue, which would seek voter approval to create a construction plan for a new library at the RES site.

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