MINUTES OF THE CUMBERLAND TOWN COUNCIL

WEDNESDAY, JUNE 18, 2008

EVERETT “MOE” BONNER, JR. COUNCIL CHAMBERS

45 BROAD STREET, CUMBERLAND, RHODE ISLAND

REGULAR SESSION

 

The meeting was called to order at 7:35 pm by Council President Higgins.

 

The meeting opened with the pledge of allegiance to the flag.

 

MEMBERS PRESENT:

 

Council President Higgins, Councilors Mutter, Ackerman, Lemois, Morris, and Kirkpatrick    

 

Also present Mayor Daniel J. McKee, Thomas E. Hefner, Town Solicitor and Sandra M. Giovanelli, Town Clerk 

 

MEMBERS ABSENT:

 

Councilor Albuquerque

 

GENERAL ANNOUNCEMENTS

 

CONSENT AGENDA

 

A.  Acceptance of Minutes of the Special Town Council Meetings of May 29, 2008, June 2, 2008, June 4, 2008, June 9, 2008 and the Regular Town Council Meeting of June 4, 2008.

 

B.  COMMUNICATIONS:

 

1.  C-08-40 – A letter from D.E.M. regarding an Insignificant Alteration-Permit, Application No. 06-0318 in reference to Assessor’s Plat 19, Lot 7, Cumberland, RI

 

C.  DEPARTMENT REPORTS:

 

Building Official

Tax Assessor

Parks and Recreation Department

Animal Control

Police Department

Rescue Department

 

 

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

FINANCE REPORT:

 

1.  General Fund Financial Report as of 5/31/08 for the current FY 2007-2008 period.

 

Tom Bruce, the Finance Director, stated that that as of June 11, 2008, the Town had collected and recorded 96.23 percent or approximately $46.2 million of the budgeted total property taxes.  He added that because they are currently at a peak collection time, collection analysis based on June data becomes more reliable as they utilize the most recent data available.  He pointed out that the total collections this year compared favorably to the prior fiscal year and last year at June 11, 2007, the Town had realized a lower collection value 93.62 percent of budget.  He also mentioned that as of June 11, 2008, the Town had collected and recorded 96.10 percent of the 2007 budgeted tax levy.  Overall, these statistics represent a stronger collection performance this year compared to the prior year.  Mr. Bruce stated that in regard to other revenues and major expenditure accounts, the following listed table presents significant projected year end account deficits and surpluses based upon the attached eleven-month figures.  He explained that revenue decreased resulting from the State of RI current year amended budget are also reflected in the projections.

 

Building Permits                                  ($180,000)

Realty Transfer                                    ($75,000)

Recordings Fees                                  ($40,000)

2008 taxes                                           $90,000

Injured Worker BC Reimbursements   $130,000

State Rev. Sharing                               ($238,202)

Rescue Revenue                                  $30,000

Investment Income                              ($80,000)

Misc. Income                                       $41,000          

Motor Vehicle Phase-out                     ($44,136)

Health Insurance                                 $305,000

 

Mr. Bruce informed that Public Works and Highway would also realize department surpluses of at least $120,000 combined.  He reported that the expenditures are generally in line with anticipated amounts and Non-seasonal payroll approximately reflects twenty-two pay periods equaling 85 percent expended on a straight-line basis.  He also stated that the operating expenses should generally be in the 90 percent to 100 percent expended range and health insurance costs are running favorably at 79.2 percent of the annual budget expended after eleven months.  Mr. Bruce reminded the Council that as of January the Finance Department has administered a freeze on nonessential spending.  He informed the Council that none of the projections he is working on now are not inclusive of judgment bond proceeds.  He explained that when they issue TANS and potentially a Water Fund RANS this fall they will be evaluated again by Moody’s and Standard & Poore’s.  He stated that the focal point of that evaluation will be the bottom line including the judgment bond proceeds because if they recall that expenses for legal, expenses for bonding, and the Northern Rhode Island Private Industry Counsel lawsuit are all direct expenses that are netted out against proceeds which is helping them retain and operate surplus for the fund.         

 

Councilor Mutter asked if they are still running stronger than last year as far as the tax collections.

 

Mr. Bruce replied that was correct and added that there is no reason to believe that the 2008 collections are going to slope off.  He stated that if they look at the same dollars coming proportional to this tax levy he is projecting that they will be $666,000 over budget.  He stressed that he is going out on a limb to make that projection but he believes that these numbers are very strong and speak for themselves but he informed that he is still looking at a break even or slightly negative outcome on the General Fund and it is those proceeds from the judgment bond that are going to some extent are going to net against any loss.   

 

Council President Higgins asked if the higher collection rate reflect more people utilizing the discount then paying up front and will that affect the subsequent quarters.

 

Mr. Bruce replied that he is correct and they have had a larger participation this year.  

 

OLD BUSINESS

 

A.  COMMUNICATIONS:

 

1.   A Discussion of C-08-39 – A letter from the D.E.M. regarding Freshwater Wetlands Program, Application No. 07-0430 in reference to Assessor’s Plat 21, Lot 60, Utility Pole No. 9A2, intersection of New York and Alaska Street

 

Councilor Morris informed that they received an email this afternoon from Mrs. Annette Birman stating that she had more information and she would like to hear from her before they proceed.

 

Annette Birman of 15 Alaska Street explained that after further researching this property in more depth she brought to Councilor Morris’ attention that Mr. Bruce Gambal is requesting D.E.M. to permit a permit for a single family dwelling.  She stated that there is also a concern of a mobile pipeline easement that runs alongside the area where this person would like to build a single family home and run a Town sewer.  She believed that the Council should know and should be a concern to the Town that along this pipeline easement they can’t build or disrupt this pipeline within 40 feet of either side.  She mentioned that she was working with a professional to look at the endangered plant life and wild life that live on this wetland parcel that should not be distributed.  She added that in further discussion with Councilor Morris she should further discuss things with D.E.M. moving forward which she intends on doing and she believed that it would be in the best interest of the Town to have D.E.M. look into this further.  She concluded that she doesn’t think that this is a good place for a single family home to be built with all these other areas that have to be looked at including the pictures that were presented to the Council at their last meeting showing the flooding within that valley and the homes in that area.           

 

Council President Higgins stated that he spoke to Town Engineer and he indicated that is a Fresh Water Wetlands Program Application not an Insignificant Alterations Permit, which means that it is held to a higher standard at D.E.M. then just moving a little piece of wetlands somewhere.  He added that the Engineer also indicated that under that program as he understood it if they move or replace wetlands they have to replace somewhere on the lot so that the wildlife doesn’t lose anything.  He continued to explain that the Engineer stated that the standard of proof is very difficult and he felt the Town could send a letter to D.E.M. stating their concerns without denying it all together.  Council President Higgins mentioned that the Engineer indicated that they could make steps in the Planning stage instead that if it was approved that there be a provision that no additional run off from the property be given.     

 

Councilor Morris clarified that D.E.M. standards require that there been no greater off site impact than what exists today so that is a standard that they have to meet or they do not get the permit.  She mentioned that the Engineer suggested that they as the Council could provide that any permit must be reviewed by the Town Engineer because this would not be subject to Planning Board review where they usually look at drainage issues and things like that.  She added that building permits are not typically looked at by the Engineer so in order to further protect the neighbors and the property she would like to know if there is a way to direct the Building Official to ask the Town Engineer for any advice on permit application.  She concluded that her concern is that she is not in favor a taking property without knowing what affect it will have on the Town and the tax payers but she believed that D.E.M. are the experts that should be looking at this.

 

Council President Higgins clarified that the Engineer has suggested that we send a letter to D.E.M. not necessarily deny this application but stating the concerns that exist as well as the neighbors doing what they can to attend the hearings held by D.E.M. to be heard. 

 

Councilor Morris asked if they could provide D.E.M. with a copy of the minutes that would provide the discuss on this issue

 

Council President Higgins asked the Town Solicitor for his opinion.

 

Mr. Hefner replied that it is his opinion is that these types of issues are totally within the purview of D.E.M. so if they decide that this parcel can be built then it will be allowed to be built.  He stated that they have the right to have their Engineer send a letter with their concerns or objections if they felt they had evidence that was relevant.  He believed that would be the way they would monitor what takes place there but it would be incorrect to say that they would be able to hold back a building permit if D.E.M. granted the application unless there is some other reason within the building code or zoning ordinance that would allow the denial of the building permit.  He concluded that he will send a memo to the Town Engineer on this issue to make him aware of it and stays on top of it as well as draft a letter to D.E.M. listing their concerns.  

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR ACKERMAN TO DIRECT THE TOWN ENGINEER TO SEND A LETTER TO D.E.M. EXPRESSING THE CONCERNS THAT WERE RAISED ALONG WITH THE MINUTES.  VOTE 6/0.

 

B.  ORDINANCES FOR PUBLIC HEARING:

 

1.  #07-27 – An Ordinance relating to Fair Share Development Impact Fees (last tabled from May 21, 2008)

 

Councilor Morris stated that they still have not received the information regarding the update to the impact fees

 

Council President Higgins clarified that the impact fee ordinance requires an annual update.  He stated that it has been several months that they have been working on this and asked the Solicitor where they are in the process.     

 

Mr. Hefner believed that Mr. Aubin, the Planning Director, was waiting for information from the Building Official and may have recently received that information however he specifically recalls the reason for this being sent to the Ordinance Sub-Committee was because one of the Councilors’ concerns was what the definition of a damaged structure was. 

 

Council President Higgins agreed but explained that the definition was addressed in this ordinance, 07-27 but there seemed to be some indication by Councilor Morris that the Ordinance Sub-Committee thought it was an appropriate time to take care of the other issue as well.

 

Mr. Hefner stated again that he believed that the Building Official has recently provided the information Mr. Aubin had been waiting for.

 

Councilor Morris stated that the Ordinance Sub-Committee would be glad to review that information before the next meeting.

  

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR LEMOIS 
TO TABLE TO JULY 16, 2008.  VOTE 6/0. 

 

2.  #08-11 – An Ordinance for a change to the Town of Cumberland Zoning Map - Assessor’s Plat 53, Lots 6, 7, 8, 9, 10 & 11(last tabled from June 4, 2008)

 

Councilor Morris explained that this was reviewed by the Ordinance Sub-Committee and as they are probably aware the Planning Board issued a negative recommendation because they didn’t think they need to change the zone.  She stated that they all like to have positive Planning Board recommendations when they pass these items but they should all remember that they granted a license on this property with the intent to change the zoning designation to C-2 with some restrictions.  She also stated that she has been informed that the Planning Board want to see what uses were allowed in C-2 that were not allowed in C-1 which Mr. Hefner did provide them with a list of 14 uses that were allowed or allowed by a special use in a C-2 that were not allowed in a C-1.  She mentioned that it is not clear if the Planning Board had the benefit of the Building Official’s most recent zoning certificate indicating that this use is classified as retail trade more than 2500 square feet which is not permitted in a C-1 zone.  Councilor Morris pointed out that Mr. Hefner suggested that as a Committee they go through his memo and try to recommend what use they think should be prohibited so they have recommended approval of the zone change with the following conditions; that retail trade more than 2500 gross floor area is permitted by right and not by special use permit only on this site, that they allow a fast food restaurant by right not by special use permit, that they prohibit use code 61, Transportation Center, use code 62, Freight Terminal and use Code 65, Communications and Utilities.      

 

Public Hearing opened at 8:07pm

 

Public Hearing closed at 8:08pm

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR LEMOIS BY A ROLL CALL VOTE TO AMEND BY ADDING TO LINE 33 OF THE ORDINANCE THE FOLLOWING, “SECTION 5: APPROVE THE ZONE CHANGE FROM C-1 TO C-2 WITH THE FOLLOWING RESTRICTIONS AND FINDINGS, AS TO PERTAINS TO THESE PARTICULAR LOTS AND THIS PARTICULAR PARCEL A RETAIL TRADE WITH MORE THAN 2500 SQUARE FEET GROSS IS PERMITTED BY RIGHT AND AS PERTAINS TO THESE PARTICULAR LOTS ONLY A FAST FOOD RESTAURANT USE IS ALLOWED BY RIGHT WITHOUT SPECIAL USE PERMIT.  THE FOLLOWING RESTRICTIONS SHOULD APPLY TO THESE LOTS THERE SHALL BE NO USE CODE NO. 61-TRANSPORTATION FACILITY, USE CODE NO. 62-FREIGHT TERMINALS AND USE CODE NO. 65-COMMUNICATIONS AND UTILITIES FACILITY”.  VOTE 6/0.   

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ACKERMAN AND IT IS VOTED TO APPROVE AS AMENDED BY ROLL CALL.  VOTE 6/0.

 

3. #08-13A – An Ordinance amending the Ordinance establishing the salaries of the Executive Staff and other positions

 

Council President Higgins asked the Solicitor if the ordinance no, #08-13A is numbered correctly.

 

Mr. Hefner replied that it is correct.

 

Council President Higgins explained that this is the salary ordinance that pertains to the Public Works Superintendent’s as well as the Water Superintendent’s salary.

 

Mayor McKee explained that when they lasted discussed appointing Mr. Brodd as the Water Superintendent they had talked about separating his salary with a portion in the Water Department and the portion in the Public Works.  He recalled that at the time there was a question as to how they would keep track of the time spent in the Public Works so what they have felt was most appropriate way to handle it was to put the $80,000 into the Water Department and as any work is done in the Public Works they will document that then charge the Public Works for that work.  The Mayor also explained that the other issue is that the Public Works Director has been here more than a year and his base is still the same so they included the three percent increase which is similar to the increases that happened in this fiscal year.

 

Council President Higgins stated that he was confused about the amendment to the Director of Public Works because it reads that there is an amendment proposed for a fiscal year that already passed raising it from $68,696 to $70,757.  He questioned whether this is a typo or not.

 

Hefner explained that initially when this went through as Ordinance No. 08-13 the $68,696 figure that was listed was inaccurate, he was already getting $70,757. 

 

Council President Higgins pointed out that for the fiscal year 2007-2008 the amount listed was $70,757.     

 

Councilor Mutter asked if the fiscal years listed are incorrect because he thought they were talking about amending the Water Superintendent for the fiscal year 2008-2009.

 

Mr. Hefner stated that if there is any issue they can table this until the next meeting. 

 

Councilor Mutter stated that he would prefer to table it because the number listed in this ordinance, for Public Works, is in excess of the number they just approved in the budget.        

 

Councilor Mutter moved to table to July 16, 2008 and it was seconded by Councilor Kirkpatrick

 

Mayor McKee asked if the Council would consider acting on the Water Superintendent and leaving out the Public Works Superintendent.

 

Council President Higgins points out that there is no discussion after a motion to table in order to proceed they would have to vote the motion to table down. 

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR KIRKPATRICK TO TABLE TO JULY 16, 2008 AND REFERRED TO THE FINANCE SUB-COMMITTEE.  VOTE 0/6.  MOTION DENIED. 

 

Mayor McKee asked if they could amend the current ordinance by putting the Public Works Director back to what it was and move forward on the Water Superintendent. 

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR LEMOIS TO AMEND LINE 29 BY REPLACING BOTH COLUMNS ENTITLED 2006-2007 AND 2007-2008 TO $68,696.   VOTE 6/0.

 

Public Hearing Opened at 8:18p.m.

 

Public Hearing Closed at 8:19p.m.  

 

Councilor Mutter asked if they also need to amend Section 6, which reads “This ordinance shall take effect upon passage and in the case of the Director of Public Works shall be retroactive to January 1, 2008”.

 

Mr. Hefner replied that they should take out the Public Works Director from that section.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR LEMOIS TO AMEND PAGE 2, LINE 24 BY DELETING “AND IN THE CASE OF THE DIRECTOR OF PUBLIC WORKS SHALL BE RETOACTIVE TO JANUARY 1, 2008”.  VOTE 6/0.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED BY A ROLL CALL VOTE TO APPROVE AS AMENDED.   VOTE 6/0.

 

4.  #08-17A – An Ordinance establishing the Water Department Budget for the Fiscal Year 2008 – 2009

 

Council President Higgins explained that this item was continued from the last meeting of the Budget process.  He added that they have had the two required public hearings and the first vote; however, there were some questions that Councilor Mutter had. 

 

Councilor Mutter explained that his feeling is to hold back this because he is more interested with the deficit reduction plan portion of this ordinance and unless there is a definite plan at this time.

 

Mayor McKee stated that they can give them an update on the plan for the deficit reduction.

 

Mr. Bruce explained that they have been working with their Financial Advisors, First Southwest, to focus on a July time frame for the initiation of some type of formal borrowing.  He reviewed that Moody's report date May, 2008 characterized the Water Fund’s financial operation is critical to the overall improvement of the Town’s fiscal health and will be an important credit factor in future rating analysis.  He pointed out that they will go to Moody’s and Standard & Poore’s to rate their notes and they know that they are going to have tax anticipation notes.  He also stated that they had talked about a deficit funding bond for Water, which their Bond Counsel Attorney, Dan Waugh, has provided them with a written opinion stating that a voter referendum would be needed for a deficit funding bond.  He explained that it would not make good sense to pursue on in light of the fact that the Auditor General has never approved a deficit funding bond.  He stated that their Plan B is what they have done in the past which would be annually renewed rate anticipation notes however in order for their credit evaluation to go well, in order for them to have proper liquidity in the General Fund instead of this $4 million dollar hanging over their backs they need to look at multi year plan for at least five years.  He concluded that at the current time his only concern with the Water Fund’s liability to the General Fund.

 

Councilor Mutter stated that he believed that they need to give this another month in order to define what the deficit reduction plan.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO TABLE TO JULY 16, 2008.  VOTE 6/0.

 

5.  #08-20A – An Ordinance relating to the issuance of licenses or permits to carry concealed pistols and revolvers (last tabled from June 4, 2008)

 

Councilor Morris stated that the Ordinance Sub-Committee voted to recommend approval but defer to the Town Solicitor for further explanation.

 

Mr. Hefner explained that this ordinance was not drafted on his own initiative but instead a response to a movement by a certain unknown organizations that are trying to make a point of construing the State Law that they have relating to the issuance of permits to carry firearms to directly applying to the Police Chief or to the Licensing Authority’s of each City and Town.  He further explained that historically in the State of Rhode Island all of these permits to carry concealed weapons are issued by the Attorney General and for whatever reason these organizations are taking it upon themselves to D.E.M. and that the Licensing Authorities and/or Police Chiefs and/or the Town Clerks’ of each of these Cities and Towns issue directly a license.  He added that he law in question, GL 11-47-5, does state that the Police Chief or the Licensing Authority shall issue a license, assuming that the applicant meets all the requirements of Chapter 11-47.  He added that he drafted this ordinance to allow the Town Council in this Town to be the Licensing Authority for the issuance of such permits because there are two Town Charter sections that clearly give the Town Council authority.  He referred to Section 407(c) related to preservation of the public peace, health, safety, welfare and comfort of the inhabitants and Section 407 (r) which specifically gives them authority to grant, suspend, or revoke licenses.  He mentioned that it is important to act on this tonight because a certain party in the Town of Cumberland, fully knowing that the Town was in this process, took it upon himself, thought this organization, to file a suit against the Police Chief a little less than three weeks ago.  He concluded that the complaint is being answered by his office so it is important that this be acted on tonight.

 

Public Hearing opened at 8:31pm

 

James Archer of 10 Crestview Drive, Smithfield, Rhode Island was present to speak in his capacity as the President of the Citizens' Right to Action League.  He stated that he had reviewed the ordinance and had some general and specific comments he wanted to offer.  He began by stating that State Law on this issue is fairly clear and addressed in current Case Law in 2004.  He made the Council aware that RIGL 11-47-58 provides that the control of firearms, ammunition, or their component parts regarding their ownership, possession, transportation, carrying, transfer, sale, purchase, purchase delay, licensing, registration, and taxation shall rest solely with the state, except as otherwise provided in this chapter.  He continued to explain that they have what has been referred to as a state preemption on firearms laws to prevent 39 different jurisdictions from enacting 39 different rules and regulations concerning the issuance of these permits.  He mentioned that the solicitor’s reference to RIGL 11-47-11 is correct in that it reads, “the Licensing Authority shall issue” these permits and historically it has been the Licensing Authority that issues these permits not the Attorney General’s Office as mentioned by the  solicitor.   He explained that what happened was that during Sheldon Whitehouse’s time as Attorney General he approached the Police Chief’s Association in Rhode Island and directed that they no longer consider these applications and instead refer them to his office where upon he began denying the applications in record numbers and also revoking permits.  He pointed out that prior to that the Attorney General and Licensing Authority had frequently issued them.  He stated that he is not necessarily present to speak against the ordinance but wanted to bring some issues to their attention.  He believed that this ordinance seeks to do is to take the responsibility assigned by State Law assigned to the Police Chief and reassign it to this Council.  He also doesn’t believe that trying to call this Council the Police Chief’s Board for this narrow purpose will allow modification to the Town Charter is really going to get the Police Chief off the hook for having to exercise his duties as assigned to him under State Law.  He added that it might call to question the validity of any permits issued or approved by this body and it may also call to the validity of the very important clause in State Law which inD.E.M.nifies the Licensing Authority from any civil or criminal action in issuing authority.  He stated that he was very confused why the Police Chief has refused to do this and why the Council would want to adopt that responsibility for themselves because it is his opinion that politics and gun permits do not mix.  He also stated that case law clearly holds that because of RI constitution applicants who meet the criteria outlined in the statute have entitlement to this permit.  Mr. Archer believed that rightfully or not if a political body is making that decision there will always be people in the public who will believe that they were denied or someone approved for political reasons.  He mentioned a case in 1973 where is was litigated whether or not the actual delegation authority by the General Assembly to a local licensing authority was constitutional at which time the court held that it was constitutional but made the determination that to give operative affect to the law it required delegation of authority that in this instance the legislature made to those who by reason of their training and experience and facilities of their command are probably most competent then any other to exercise that delegated power.  He believed that it was that reason the General Assembly appointed a Police Chief or Police Chief’s Commission because they are more likely to know the people who might be a problem and have the ability to check the background of these applicants. 

 

Council President Higgins stated that Mr. Archer mentioned specifically that the law provides that it rest solely unless otherwise provided and it would seem to him that it would be otherwise provided in 11-47-11.

 

Mr. Archer replied that 11-47-11 provides that the Licensing Authority shall issue but definitely the Licensing Authority is found in 11-47-2 where it also defines the Police Commissioner’s Board where such a Board exists.

 

Council President Higgins asked if it is Mr. Archer’s position is that a Police Commissioner’s Board needs to be created by Charter and can’t be created by ordinance as it is in this ordinance.

 

Mr. Archer replied that after review the Town’s Charter, the Police Chief reports to the Mayor and a Police Commissioner’s Board traditionally is a Board of civilians appointed or elected to supervise the operations of the Police Department.  He pointed out that this ordinance does not declare the Council as in fact a Police Commissioner’s Board but instead it states that they are that it is a Police Commissioner’s Board for this narrow, single purpose.

 

Councilor Lemois stated that he wasn’t sure how Mr. Archer can say what the Police Commissioner’s Board would or wouldn’t do.  He added that Mr. Archer is giving a definition of Police Commissioner’s Board in a general statement where they are talking about very specific narrow focus.    

 

Mr. Archer replied that he can’t point to any specific case law that says that this ordinance would not in fact make this Council a Police Commissioner’s Board for this narrow purpose but the Police Commissioner’s Board does have a traditional responsibility.

 

Councilor Lemois asked where these traditional responsibilities derive from.

 

Mr. Archer replied that they derive from the Charters of Warwick and Providence which are the only two cities that actually create this Board.  

 

Council President Higgins stated that the Board of License Commissioners isn’t created by the Charter either.

 

Councilor Morris responded to the statement that they are entirely a political body and when they act as the Board of License Commissioners they act in a much different capacity with standards in somewhat of a quasi-judicial setting where people can challenge what they are doing.  She concluded that they have the ability to take off their political hat and put on another hat to review something according to certain standards.

 

Mr. Archer stated that he didn’t mean to imply otherwise but there is a public perception that the government is a public body and if an applicant is rightfully denied there will always be that perception that they were denied due to their party affiliations or political favors.  He continued to address his concerns starting with Section 5 which list the requirements set forth by state law.  He pointed out that section contradicts state law because it lists “(e) the applicant has any other proper reason not included in Sec. 5 (d) for carrying a pistol or revolver” and “(d) The applicant is a suitable person to be licensed to carry a concealed pistol or revolver” as an “and” situation when is should be an “or” situation.  He also stated that his other concern with this ordinance is the issue in Section 7 regarding the proper showing of need after the criteria is met which he believed would change the standard dictated by State Law. 

 

Council President Higgins asked why this all the sudden has become an issue for them.

 

Mr. Hefner replied that the reason for drafting this ordinance was in response to one individual. This is the best way they saw fit along with devising the application and the procedure.

 

Council President Higgins stated that it seemed that they didn’t have much choice but to adopt a procedure.

 

Mr. Archer agreed with but stated that typically it is the Police Chief who does adopt the procedure.  He continued to state that his other issue with the ordinance is that the law provides that the identities of the people who hold these permits are confidential and shouldn’t be released.  He sited case law that found that extended to applicants as well so he asked that the Council not to list the applicants on the agenda and consider these applications in executive session.  He added that the Open Meetings Act provides an exception for open meetings when they are discussing the character of an individual.

 

Council President Higgins clarified that is only for employees and does not apply to members of the public.  He asked Mr. Archer to provide the Town Solicitor with that citation because they certainly do not want to break the law and if in fact that is the law they would have to come up with some procedure on how to handle that.

 

Mr. Archer also mentioned that the court has held that rejected applicant and is entitled to know the evidence upon which the department based its decision and the rational of the denial, so they can formulate an appeal. 

 

Council President Higgins asked the Solicitor if the council was to deny an application based on the recommendation of the Chief does the applicant have a right to appeal and if so where do they appeal to.

 

Mr. Hefner replied that he is not sure and would have to check on that for them.

 

Mr. Archer informed the Council that he was granted a permit is property or liberty and revoking it triggers due process concerns.

 

Councilor Morris stated that she believed that it was a matter of interpretation about the confidentiality because the way she reads it they should not provide or release to any individual, firm, association or corporation.  She pointed out that it doesn’t address the fact that the application or applicant should be confidential.      

 

Councilor Mutter stated that this is just a legislation issue.

 

Robert Panicucci of 1 Plantation Drive stated that he was familiar with RI Law and as a resident of Cumberland he believed that by law he should be able to apply in Cumberland.  He also believed that to make the applicant’s name and information public would put applicants at risk for being identified as fire arm holders and the second amendment which provides the right to bear arms has been upheld to be true by the courts. 

 

Councilor Mutter stated he is uncomfortable with the Council approving these permits and believed that the Police Chief’s Commission should be made up of Police people who are the people who are going to enforce these matters. 

 

Councilor Lemois asked Mr. Hefner that if they were to pass this and he found through further research found that there is a confidentiality problem they could alter the ordinance to comply with State Law. 

 

Mr. Hefner recommended passage and he would do whatever he can to make it right.

 

William Carlson of 217 Rathbun Street, Woonsocket, stated that there are only 2 towns/cities in Rhode Island that have a Board that issues these permits and the rest of the towns/cities rely on the Police Chief as required.  He added that if the Council wished to move that responsibility to themselves that it is perfectly fine but as of today the Police Chief is responsible for doing that. He sees no need to move the responsibility to the Council and the Police Chief, when he could on his own mirror the procedure before the Council.  He concluded that he noticed that the ordinance does not provide for out of state residents to apply as the State Law provides.

 

Public Hearing Closed at 9:16pm

 

Councilor Mutter asked what law they are using that allows them to do this.

 

Mr. Hefner states that under the Charter, Council is the sole licensing authority - he has had them name themselves as the Police Commissioner’s Board

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR KIRKPATRICK TO AMEND SECTION 5, LINE 6 BY DELETING THE PERIOD INSERTING A COMMA, ADDS THE WORD “OR”, DELETING THE LETTER “E”, MAKES THE UPPER CASE “T” IN THE WORD “THE” LOWER CASE, LINE 9 BY CHANGING SUBSECTION “F” TO “E” AND IN LINE 11 BY CHANGING SUBSECTION “G” TO “F”.  VOTE 4/2.

Nay:  Councilors Ackerman and Mutter

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR MORRIS AND IT IS APPROVED AS AMENDED BY A ROLL CALL VOTE.  VOTE 4/2.

Nay:  Councilors Ackerman and Mutter

 

6.  #08-21 – An Ordinance in amendment of Ordinance 92-38 creating and establishing the position of Superintendent of Water

 

Council President Higgins explained that this ordinance was presented at his request because apparently when they filled the position there was nothing in the Ordinance Book reflecting ordinance 92-38.  He also mentioned that when the reviewed the ordinance it had some conditions that needed to be amended so this ordinance doesn’t create a new position but affirming the creation of the position. 

 

Public Hearing Opened at 9:33pm

 

Public Hearing Closed at 9:34pm

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED BY A ROLL CALL VOTE TO APPROVE.  VOTE 6/0.

 

7.  #08-22 – An Ordinance for a change to the Town of Cumberland Zoning Map–Assessor’s Plat 51, Lot 11

 

Mayor McKee requested that this matter be table to the next meeting.

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO TABLE TO JULY 16, 2008.  VOTE 6/0.

 

NEW BUSINESS

 

A.     COMMUNICATIONS:

 

1.   A Discussion with the Department of Planning and Community Development of disposition of publicly held property.

 

Mayor McKee explained that they have put together an additional list of potential Town properties to be sold.  He further explained that he is passing this list on for information only but requested that the Council conduct a workshop sometime in August or September so they can have some discussion on the matter. 

 

2.  Eugene Jeffers and David Carr request that the Ferncrest/Willow sewer project be placed on the Town Council Agenda for purposes of making the Town Council aware of the status of the project.

 

Mayor McKee explained that this has some level of emergency in terms of the completion of a sewer project on Ferncrest Drive which was completed somewhere in the last 35 to 45 days.  He mentioned that the way this was structured it had to do with Dave’s Marketplace and there was an agreement in 2005 that Dave’s Marketplace would absorb the cost of the improvement of the tie in creating a sewer line from their property through Ferncrest and Willow Street.  Mayor McKee stated that there was documentation in terms of how that cost would be calculated and distributed for those frontage fees to the neighbors.  He pointed out that they are in a position to move forward because they have 120 days after they issue a permit for Dave’s Marketplace to hook in with the agreement on a principal was that the balance that was appropriated towards the Ferncrest and Willow Street would be apportioned by footage and then the property owners in that area that would start paying a frontage fee.  He stated that the cost is slightly higher than what was originally estimated in 2005 because of ledge and that type of thing but they have negotiated a price with Dave’s Marketplace of absorb a large portion of the cost with no interest charges and reimbursed 75 percent of what is actually assessed on the frontage.  He asked that the Council should become familiar with this because there are a few options that they are outlining in terms of the overall cost and he would like the Council to have a workshop to discuss those options.

 

Council President Higgins preferred that the Finance Sub-Committee review this matter while they are also reviewing the Sewer Budget.

 

REFERRED TO THE FINANCE SUB-COMMITTEE

       

B.  APPOINTMENT:

 

1.  Appointment of Michael F. Crawley, Jr. of 3 Apache Lane, Cumberland as the Parks & Recreation Director

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

Councilor Lemois stated that after having the opportunity to work with Mr. Crawley in a couple different capacities he has found him to be an upstanding resident of the Town and believed that he would do a great job for the Town. 

 

C.  RESOLUTIONS:  

 

1.  R-08-71 – A Resolution supporting Legislative Amendments to Protect Rhode Island’s Cities and Towns and their Public Officials/Employees

 

Mr. Hefner believed that this was forwarded to us by the School Department and asked for legislation amendments to protect the Cities and Towns in relation to the tort visa, a tax cap interest on civil actions. 

 

Council President Higgins clarified that this is endorsing Senate Bill 3015 which places limitation on exposure of municipalities to lawsuits. 

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR MORRIS AND IT IS UNANIMOUSLY VOTED TO TABLE TO JULY 16, 2008.  VOTE 6/0.

 

2.  R-08-72 – A Resolution authorizing Mayor Daniel J. McKee to execute an Easement Purchase Agreement with STC Five LLC and Global Signal Acquisitions III, LLC

 

Council President Higgins explained that this is a communication tower lease that was discussed in Executive Session.

 

Mayor McKee explained that this is a long-term lease for a cell tower located off the Staples Road area which they currently operate and they have negotiated a long-term 100 years lease in the amount in the range of $465,000.  He stated that they are asking the Council to allow them to enter into that agreement and they recommend putting that money into some type of Economic Development Account but if it is amended to be put into the general fund would be all right too.     

 

Council President Higgins asked what the appraised value was.

 

Mr. Hefner replied that the appraised value was $494,000.

 

Council President Higgins asked if there was a reason that Section 4 reads that all funds derived from this shall be deposited in a restricted account to be used solely for community and economic development for at least two years.

 

Mayor McKee explained that one of their goals is economic development and any dollars that they spent out of this account would have to be approved by the Council.  He further explained that this would put them in the position to have some flexibility in some economic development particularly on Broad Street that they are working on with Central Falls and Pawtucket.  He added that the intent would be to use this as potential seed money that they could recover.  He also stated that there would be a sunset clause in there so if they weren’t able to provide any good opportunities then that money would revert back to the general fund.  

 

Council President Higgins stated that he thinks that they would still have that option because these funds are not budgeted for any purpose and he thinks that he would rather not tie the funds to that limit but to have the option to use it for others.  He clarified that they do not know what is coming down the road and might decide that there are other ways to spend that money.

 

Mayor McKee stated that he wouldn’t object to that, what they would do at that point in time is suggest to make proposal if something came along but he wanted to at least go on the record to state that they would be looking for economic opportunities.

 

Councilor Mutter stated that if they let that money go into the general fund, ordinance 04-27, delineates how they can spend money out of the general fund which economic development isn’t one of them.  He pointed out that if they were going to add a sunset clause he would make in front of the levy just in case they came upon a year so that if they need to use that money to supplement a tax increase or some funding problem June would be too late.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO AMEND SECTION 4, LINE 20 & 21 FROM JUNE 30, 2010 TO MARCH 30, 2009.  VOTE 6/0.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR MORRIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

Mayor McKee acknowledged and thanked their IT Director, Dan Lemois, for his work on this. 

 

3.  R-08-73 – A Resolution memorializing the General Assembly to enact Legislation authorizing the Town with the approval of the Qualified Electors, to issue bonds and notes for the purpose of Financing Sewer Improvements in the Town.

 

Councilor Morris recused herself.

 

Mayor McKee requested that the Council approve this resolution to allow him to request the General Assembly to put on sewer bond for the November ballot.  He stated that they are aware and understand that there is some level of stress in terms of borrowing money but they should be planning for when the economy turns or for when they have reduced debt service to improve their infrastructure.  He explained that they would time that borrowing according to their ability to pay for that but it is good to have as a kind of insurance policy.

 

Councilor Mutter asked if this is the typical language for sewer projects.

 

Mr. Hefner replied that it is the same language.

 

Councilor Mutter asked if these could be improvements that are not funded through assessments.

 

Mayor McKee replied that yes they could be improvements that are not funded through assessments.

 

Councilor Ackerman wanted the record to reflect that if they were to incur any more debt service she would like to see the Sewer Bond take priority.

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 5/0.

 

4.  R-08-74 – A Resolution memorializing the General Assembly to enact Legislation authorizing the Town, with the approval of the Qualified Electors, to issue bonds and notes for the purpose of Recreation Facilities in the Town

 

Councilor Morris recused herself.

 

Mayor McKee stated that this is part of a discussion that they have had in the last 6 months in terms of trying to find ways to find matching funds for State D.E.M. Recreation grants and currently they have $300,000 grant to do improvements to Tucker Field but there has been no ability to match it.  He added that every other year there are recreation grants that are available to the Town but they have no real ability to match at this time and without the ability to match they could be out thousands of dollars of opportunity.  He also stated that they would not bond this money unless they felt that the opportunity warranted and the Council would have to approve and of this borrowing.

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

5.  R-08-75 – A Resolution authorizing an increase to the approved amount of the existing contract with Robert F. Audet, Inc. of East Greenwich, Rhode Island in an amount not to exceed $2,746.26 for Additional Heating Devices as a Portion of Part III of the CHS2010 Phase III Project at Cumberland High School.

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

6.  R-08-76 – A Resolution authorizing the Settlement of all Pending Tax Appeal Cases with Southern Union Gas Company, d/b/a New England Gas Company

 

MOTION BY COUNCILOR MORRIS, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

7.  R-08-77 – A Resolution authorizing Mayor Daniel J. McKee to Enter into an agreement with the Rhode Island Municipal Insurance Corporation to obtain insurance and enter into a Cooperative Risk Management Program

 

Mayor McKee explained that this request is a result of the Coalition of Communities Improving Rhode Island’s work to lower our Administration Fee collectively with communities which will reduce the fee to $38.50 per individual from the budgeted $60 area with a $1.50 administration fee that the Board will control.  He further explained that the Board will consist of the municipal leaders. 

 

Council President Higgins asked who is going to be a Cumberland’s Board of Director member.

 

Mayor McKee explained that it will be him or his designee.

 

Council President Higgins asked what Authority grants him that.

 

Mayor McKee replied that is in the agreement that was put together by an attorney representing the Coalition to get the lowest rates. 

    

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR MORRIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

8.  R-08-78 – A Resolution authorizing and empowering Mayor Daniel J. McKee to execute a contract with Wayne Roofing of  Norwood, Massachusetts for a new roof at BF Norton Elementary School in an amount not to exceed $149,500

 

Councilor Mutter stated for the record the concept behind this.  He explained that in the current year that they are in they budgeted $111,600 under a Master Lease/Capital Improvement and there was the $100,000 Capital Improvement line item for a total $211,600 at which time they knew they weren’t going to have the first payment for the Master Lease so that money was set aside for the B.F. Norton roof.  He further explained that they then passed a levy where at the time it was before the Council all expenditures were included inside the levy.  He recalled that in recent discussion with the School Department during the budget proceedings it was brought up that one thing that would need to be cut based on the funding level would be the B.F. Norton roof as a possibility to meet the budget.  He added that if they move this back inside this years budget all they are doing is allowing them to use some of their accumulated surplus to go to other operating expenses which reduces the difference between the request and what the funding was that was provided by the Council’s approval. 

 

Council President Higgins pointed out that there needed to be an amendment to the resolution because the amount in the resolution says that the lowest bid was $149,000 but it appears to be $149,500.  He also stated that he has added up the totals of the two school department’s resolution, R-08-78 and R-08- 79, which seem to be in excess of the $211,600 amount and asked how that was going to get paid.

 

Alex Prignano, the School Department’s Business Manager, explained that the $149,500 amount in the first resolution is the accurate number for the roof.  He further explained that the second resolution was actually awarded for $66,264 by the School Committee.  He stated that they should have a copy of two checks that they have already cut to Sonitrol paying for security systems that they installed in five schools during the year and they are not looking for a reimbursement back for that.  He pointed out that the check totaled just over $61,000 plus the $149,500 would fit into the $211,600 and they are not asking for the $6,444 for the annual monitoring fee for the three year period.

 

Mayor McKee stated for clarification that of the $211,600 he believed that the School Department has control of $100,000 of it that was appropriated in the Capital Improvement.

 

Mr. Prignano believed that it was in the Town’s budget.

 

Council President Higgins stated that there is a Capital Improvement line item under the Town Budget School Department expenses.

 

Mayor McKee wanted to make sure that they are not approving $211,600 on the Town side because he believes the School Department has a $100,000 in a Capital Improvement line.

 

Mr. Prignano confirmed that there is $100,000 in their budget but last year he thought there was also $100,000 on the Town side which is where they were getting the $211,000 from.

 

Council President Higgins stated that under School Department along with the Town Contribution and the Capital Improvement and other Sources including the total school department that is where the $100,000 is, it is not a separate $100,000.

 

Councilor Mutter asked if the Town gave the School Department $35,758,031.

 

Mr. Bruce confirmed that it did.

 

Councilor Mutter stated that he keeps going back to that levy when the projected expenses were given to them it was what the budgeted amount was and Mr. Prignano expressed to him that they could do without the $211,000 so he is confused if that amount was ever $211,000 was it $111,000.

 

Mr. Bruce replied that as the Mayor mentioned it was $111,000 with the passage of the former budget last June the $111,000 was solely under the control of the School Department not the Town. 

 

Council President Higgins stated that they were lead to believe that there was this $211,000.  He asked if they still have that money in their budget.

 

Mr. Prignano replied that they have spent it on numerous locker repairs throughout the district so they have spent about half of it.  He clarified that he was under the assumption last year that there was

$111,000 that the Town held in the event they needed assistance in completing the B.F. Norton roof and he thought the $100,000 in their budget was separate and apart from that $111,000.     

 

Councilor Mutter stated that it was the B.F. Norton School roof was projected over $200,000 last year and it he believed that their intent was also very clear which was $111,000 and the $100,000 and they were to come to the Council and they were to fund that.  He also stated that there were discussions as to whether or not doing that helped the levy discomfort by $211,000 which he was told it would and now they are being told is not really true and there is only $111,000.  He stressed that if in fact it is what it is they should vote to release the $111,000 and they will know better and he would have to look back at what they just enacted to make sure that it does what it intended to do.  He concluded by emphasizing that it certainly wasn’t the intent and wasn’t what he was told previously.

 

Council President Higgins also stated that Councilor Mutter’s account is how he recalled it. 

 

Mr. Bruce clarified that the Mayor’s Proposed Budget for 2007-2008 had $0 for Town Contributions under the School Department appropriation and it was the Council that moved it to a $100,000 level.  He added that the $111,600 was associated with an actual plan at the time for lease, not a purchase, and that is in the ordinance.  He also mentioned that the tax levy this past April in the projections under the Town control limited to $111,600 which is all they were able to project as spent and the $100,000 was always under the School Department’s control.  He pointed out that they just completed a master lease that has the ability to go back and extend the amount of that lease. 

 

Mayor McKee’s recollection was similar to Councilor Mutter but the problem is that he doesn’t believe there was any discussion about releasing $66,000 for a security system.  He stated that if there is away to release $211,000 from the Town budget that works then fine but he just is not sure whether that money would come from. 

 

Councilor Mutter stated that he would only support whatever way they would release $111,600 only.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR BY REPLACING IN LINE 9, 24, 32 AND IN THE FISCAL NOTE THE SUM OF $149,500 WITH $111,600.

 

Councilor Morris asked who is going to sign the contract now due to this change.

 

Dr. Morelle believed that the contract and bid amount need to be identical so possibly the issue on the ordinance may want to say not exceed $149,500 and then the issue might be the funds to support that would come from two sources.

 

Councilor Mutter stated that he believed that the School Superintendent is correct and he would like to withdraw his motion and then leave the $149,500 and put the two funding sources in the fiscal note.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR MORRIS TO AMEND LINE 24 BY REPLACING THE SUM OF $149,000 TO $149,500, APPROVE THE RESOLUTION AMOUNT AT $149,500 WITH THE FISCAL NOTE AMENDED TO READ $111,600 COMING FROM THE MASTER LEASE/SCHOOL IMPROVEMENT FOR FISCAL YEAR 2007-2008 AND THE REMANINING $37,900 COMING FROM THE SCHOOL DEPARTMENT’S BUDGET.  VOTE 6/0.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR KIRKPATRICK AND IT   IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

9.  R-08-79 – A Resolution authorizing and empowering Mayor Daniel J. McKee to execute a contract with Sonitrol Security Systems of Riverside, Rhode Island for security systems and monitoring at various Cumberland Schools in an amount not to exceed $66,264 for equipment and installation and $6,444 per year for monitoring over a three year period

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO TABLE TO JULY 16, 2008.  VOTE 5/1.

Nay Vote:  Councilor Mutter

 

D.  ORDINANCES FOR PRESENTATION AND PERMISSION TO ADVERTISE:

 

1.  #08-23 – An Ordinance in Amendment of #08-01 entitled an Act relating to Inter-Fund Interest Charges

 

Referred to the Finance Sub-Committee

 

2.  #08-24 – An Ordinance Authorizing the Sale of Cumberland Tax Assessor’s Plat 64, Lot 22

 

3.  #08-25 - An Ordinance related to Non-transferable Class B Liquor License

 

Referred to the Ordinance Sub-Committee

 

PUBLIC COMMENTS:

 

ADJOURNMENT:

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO ADJOURN AT 10:37PM.  VOTE 6/0.

 

 

 

________________________________________

Sandra M. Giovanelli, Town Clerk

 

 

THE DVD AND MINUTES OF THE ENTIRE MEETING IS AVAILABLE AT THE EDWARD J. HAYDEN LIBRARY