GRAY TOWN COUNCIL
MEETING MINUTES
JULY 5, 2005
Present: Town Council Members: Gary Foster, Andy Upham, Skip Crane
Town Manager Mitchell Berkowitz
Excused: Denise Duda
Others Present and Speaking: Pam Wilkinson, Claudette Sims, John Welch, Alan Rich, Peter Gerardo, Michael Salvetti, Julie Sheets, Allison Brown, Paul Proudian, Fran Monroe, Sarah McCleary, Steve Bunker, Tod Bennett, Karen Taylor, and Dana Walker.
Chair Foster called the meeting to order at 7:00 p.m.
First Order of Business
None
Second Order of Business:
Approval of June 7, 2005 Town Council Minutes
Councilor Crane moved to approve the minutes of July 7th.
Councilor Upham seconded the motion.
There were no corrections or comments.
The motion carried unanimously, 3-0.
Approval of June 21, 2005 Town Council Minutes
Councilor Crane moved to approve the minutes of June 21st.
Councilor Upham seconded the motion.
There were no corrections or comments.
The motion carried unanimously, 3-0.
Acceptance of the June 11, 2005 Town Meeting Minutes
Councilor Foster noted a correction: The votes in favor of the Pennell referendum 562 582.
There were no other corrections or comments.
Councilor Crane moved to approve the minutes of June 11th Town Meeting as amended.
Councilor Upham seconded.
The vote was 3-0.
Third Order of Business:
Reports from the Council Chair
Councilor Foster reported Chief Jon Barton was honored on June 25th at the New England Fire Chiefs Association meeting. Chief Barton is currently the outgoing president of NEFCA and will be honored in Gray later this year as his retirement approaches.
The Council will be working on housekeeping items such as reaffirming the Council Rules, parliamentary rules, and other items such as changing the date of the Town Meeting and drafting a policy on public meetings and notification. The Council is unable to make any changes to the Council Rules unless all five members are in attendance.
Two requests were received that fall under the Freedom of Access Laws. The Council will be receiving some legal advice on how to proceed.
Reports from the Town Manager
Tuesday, July 5, 2005
Road Name Change:
This office received a request for a road name change and after review by the Staff it has been approved. Journee’s Way, LLC has changed the name of their 1800’ road from Journee’s Way to Timber Creek. This will be changed in the 911 Data base.
IF&W Renewal of the Discharge Permit:
We have received notice of the IF&W fish hatchery renewal application for their discharge of the settling pond at Hatcher Brook. The complete application is on file at the Gray Public Library for public inspection. The notice also outlines how citizens may request further information including but not limited to a public hearing.
Notice of Motion to Extend Stay:
We have received a copy of the filing by the Town and the MSAD #15 to extend the stay that was due to expire on June 30, 2005. The extension is to August 31, 2005 by mutual consent. This is in regards to the Town’s original motion to stay the stipulated judgment rendered on June 13, 2003.
Wilkies Beach Water Test:
As part of the Recreation Department’s efforts to ready Wilkies beach for the fourth of July weekend, Dean conducted a water test to assure safe water. The results were very favorable for swimming activities. Our initial concern had come from the high spring water and possible contaminations. None existed.
Year End Financial Actions:
Donna Hill and staff spent several extra hours on the night of June 30 to process the closing of the 2005 fiscal year and prepare for the Auditors arrival. The auditors are due to arrive on Wednesday, July 6. As Town Manager I will also be working on the Management Discussion and Analysis letter that is part of the year end audit and a requirement of GASB 34 accounting standards.
In discussing our year end expenditure balance with Donna she reports that of the $4.7 M budget as approved at the June 2004 Town Meeting, we will have about $15,000 of unexpended funds after the approval of the segregated funds. This is about 3/10th of one percent surplus. This is an un-audited number. We will also report the revenue balance at the July 19 meeting.
Libby Hill Maintenance:
As an ongoing effort to assure that the trails and properties remaining at Libby Hill are addressed for maintenance and the like, we met in the Superintendent’s office last week with representatives from Gray Community Endowment, George Litrocapes, Victoria Burns and myself. Carl explained the level of work he and some volunteers annually accomplish and that they were not able to carry that load…they needed help. As a result, this Wednesday, July 6 Ed Milose and myself will join George, Terry Towle ( Business Manager of MSAD #15) and Carl to walk the area starting at 8:15 AM behind the Middle School. We are willing to dedicate some staff time for trail mowing but first want to see the conditions and challenges. The cost of any work we do is covered by the budgeted amount, which is $2000 for FY 2006.
As Council may remember, GCE, MSAD and the Town are just three of the key property owners with Hancock Land Management being the fourth. There are private land owners who allow access but rely upon the key players to maintain the trails. The collaboration of all land owners to assure access to their lands has made the whole Libby Hill area a much larger publicly used parcel that what could have been achieved otherwise.
Universal Waste Disposal:
Effective July 1 the Town like all other waster handlers, must now deal with the special handling of television sets and monitors due to their lead content. As such our costs for these are, in part, being charged to any Gray resident and user of the Transfer Station. The charges are $10 for monitors and $15 for console tv’s to simply give an example of the size and cost. We will continue the free disposal during August Fall Greening up weekend to determine the impacts of loss of revenue and report to the Council the findings and any recommendations.
Bidding of Projects:
Over the next several weeks the Town will be advertising several projects for which we are accepting bids. These include the painting of Stimson Hall, the Section 125 Plan, vehicle and equipment purchases for both Public Safety and Public works. We will also be notifying the Engineering firm of HNTB to proceed with the bidding process for the Bridge work on Mayall Road, Center road and the deck replacement of the Meguire Bridge.
Mass Gathering:
Over the July 4th weekend the Stonehedge Country Festival completed a safe and successful music festival. This is noted since it was only the second such mass gathering permit issued by the Town. Because we anticipated a greater crowd the Town and the applicants spent additional time in pre-planning. For this event, the crowds did not materialize but all of the pre-planning was very helpful for our future permit applicants.
The first mass gathering permit was issued to Juniper Farms as they conducted the National Holstein Cattle competition and auction. Gray will continue to experience these events in the future and as they occur, our community will receive recognition. It will be our challenge to balance the requests against the potential problems they may occasionally arise with such events.
Respectfully Submitted,
Mitchell A. Berkowitz
Town Manager
Fourth Order of Business:
Committee Appointments and Resignations-
Reappointment Request-Ralph Wink to CEDC for three years 7/2005-6/2008
Council Liaison Appointments
At the last Workshop the following Council members were assigned to the following committee liaison positions.
Councilor Foster ORC, Central Corridors, Solid Waste
Councilor Upham ZBA, Planning Board, Dry Hydrant, Libby Hill, Board of Assessment
Councilor Crane GBA, GPCOG, Pineland, CEDC and Public Safety
Councilor Duda Library Board of Trustees, Charles Barker Scholarship, Grange Hall, Dry Mills School, Cable Committee
To date, the Finance Committee and Recreation and Conservation Committee do not have liaisons assigned to them.
Chair Foster reminded everyone that there are openings on several town boards. If anyone is interested, please contact the Town Office.
There is one opening on the Council. Applications are at the Town Office.
Committee Reports
Councilor Crane reported the Public Safety Committee discussed the need for better numbering at area homes to help assist the department with public safety in cases of emergency. The committee also discussed the numbering of mailboxes and illumination.
Council Correspondence:
Several items were received.
A handwritten letter was received from Virginia Duhamel. Ms. Duhamel wrote that she did not feel it was appropriate to name Wilkies Beach after Ed Wilkinson because he was not involved in the Kiwanis Club and her family has maintained the beach. While she realizes that there is not much she can do about it, she still wanted the Council to know she was disappointed.
A letter addressed to Bill Dale and the Manager was received from Lynn Olson. The Council received copies. Ms. Olson stated she was appalled by the actions of the Council as they took correspondence from citizens and had them published in the Monument Newspaper. These actions intimate the public from coming forward to share their opinions and should be stopped. She called the action an abuse of the publics’ trust.
Richard Barter emailed to request answers to the Pennell Trust issue in an attempt to squash negative rumors. Mr. Barter had several questions and requested a statement be issued by the Council explaining the costs of the legal fees and whether or not the issue would be on the next Workshop agenda on July 24.
A letter was received from Sharon Bondsoff asking the Council to support the voters’ choice to turn Pennell over to the Gray Public Library Association. Ms. Bondsoff asked the Council not to hinder the process.
Paul Proudian wrote requesting the Council not ignore the will of the voters and to honor the vote on the referendum question that allows GPLA to take over Pennell.
Michael Salvetti, Mayberry Road addressed the Council. Mr. Salvetti noted the Town has a library and while it is not perfect, it will never be perfect. Mr. Salvetti explained that the Pennell issue is not a crisis and has stood for over 100 years and felt if someone is pressured to do something, they shouldn’t do it.
Fran Monroe, Lewiston Road asked about Pennell’s ownership and suggested no one invest in a project that might ultimately not belong to them. Ms. Monroe said she thought the referendum vote was non-binding, which means a purchase is not pending. She asked the Council to look at all of the possibilities surrounding Pennell before action is taken. Ms. Monroe said she knew the Councils action on Pennell would be for the good of all the citizens.
Resident Alison Brown thanked the Council for looking into Pennell’s legal status and suggested the Town actually own it before any actions are taken in transferring it. Ms. Brown suggested it would be good fiscal management to first own it and she supported getting to the bottom of the issue even if that meant incurring legal fees.
Council Business
The Manager distributed Councilor Upham’s notes that were taken during a meeting with Town Planner Dick Cahill. Mr. Berkowitz explained that there were no major changes to the ordinance proposals and suggested the ZBA be given the opportunity to look at the new draft and make comments. Action could not be taken at the July 19th meeting but the item can be on the July 21 ZBA agenda for review and action to follow at the next Council meeting.
Councilor Upham explained his intent was not to change the content but a matter of clarifying it so that a citizen or CEO could have a better understanding of the verbiage. Barry Watson, Zoning Board of Appeals Chair helped assist Councilor Upham by providing his background experience with zone changes and codes.
Councilor Foster said the Council would be working on the issue of proper notification. After the policy is drafted it will be added as an agenda item for Council action.
Workshop Status-
At the June 27th Workshop, the Council worked on some basic housekeeping items and agreed to limit Council Workshops to one per month with an additional Workshop if needed on the fourth Monday.
Councilor Crane suggested at the Workshop that the Council establish parliamentary rules. The Council discussed and nominated the liaisons to the Town’s committees and boards and went over board vacancies. The June 23rd meeting with the Town, GPLA and SAD #15 was discussed. The Manager noted action on the liaison positions would be taken at the July 19th meeting. There is no order for action on tonight’s agenda.
Fifth Order of Business:
Additions to the Agenda
None
Sixth Order of Business: ORDERS AND ORDINANCES
Order # 1- To review and act on the certification of notifications regarding the proposed zoning map and changes to zones per MRSA 30-A-4352 subsection 10.
Sponsor- Town Manager
The Manager explained that Attorney Dale’s reviewed supported the minor changes and that new notifications were not warranted. No changes were made to the map or the proposed uses.
Councilor Upham moved to act on the certification of notifications regarding the proposed zoning map and changes to zones per MRSA 30-A-4352 subsection 10.
Councilor Crane seconded the motion.
Councilor Upham commented that he did not see any substantive changes and recommended to Dick Cahill that some language referencing the percent of impervious surfaces in the MD zone be inserted.
Citizen Pam Wilkinson suggested that the definitions be clarified to insure that all parties are equitably treated and to ward off any potential legal issues. She also noted this would be a good practice so that if the Boards change members, clarification is not an issue.
There were no other comments.
The motion carried 3-0.
This action requires a majority vote after an opportunity for public comment
Order# 2-. To review, amend and affirm the Council Rules
Mr. Berkowitz explained the Council cannot amend and affirm the Council Rules until there are five members present.
The action tonight is to reaffirm the existing rules.
Councilor Crane moved to affirm the existing Council Rules.
Councilor Upham seconded the motion.
There were no other comments.
The vote carried unanimously, 3-0
Sponsor- Town Council
This action requires a majority vote after an opportunity for public comment
Order# 3- To review and affirm the level of purchasing authority of the Town Manager at $10,000. Sponsor- Town Council
The Manager explained this Order is acted upon annually and allows the Manager purchasing authority up to a $10,000 limit. Any purchases above that figure requires Council approval.
Councilor Upham moved to affirm the level of purchasing authority of the Town Manager at $10,000.
Councilor Crane seconded.
There were no comments from the public.
The motion carried 3-0.
This action requires a majority vote after an opportunity for public comment
Order#4-To review and act on the re-appointment of Mr. Ralph Wink to the Community and Economic Development Committee for the term 7/1/05-6/30/08.
Sponsor- Town Council
Councilor Upham moved to act on the re-appointment of Ralph Wink to the CEDC for the term 7-1-05 – 6-30-08.
Councilor Crane seconded.
There were no comments from the public.
The vote carried unanimously, 3-0.
This action requires a majority vote after an opportunity for public comment
Order #5- To review and act on the new Waste Handling Agreement, Interlocal Agreement and Amended By-laws with the Regional Waste Systems for the Town’s continued participation and disposal of solid waste.
Sponsor- Town Manager
Councilor Upham moved to act on the new Waste Handling Agreement, Interlocal Agreement and Amended By-laws with RWS for the Towns participation and disposal of solid waste.
Councilor Upham seconded the motion.
Chair Foster explained RWS’s new restructuring which removed the sunset clause that would end the agreement in 2014. Now the agreement will be continued indefinitely under the new name Eco Maine. Gray is in District 1 and Dave Morton of Casco will serve on the Executive Board for District 1.
There were no comments from the public.
The motion carried 3-0.
This action requires a majority vote after an opportunity for public comment
Order #6- To review and act upon the request for segregated funds into the fiscal year 2006 to complete the expenditures as originally appropriated.
Sponsor-Town Manager
Mr. Berkowitz explained the Council is requested to address accounts that were not properly expended and to allow these segregated funds to move into the fiscal year 2006 to complete the expenditures as originally appropriated.
Maps and GIS $900
Library Training and Supplies $1,100
Libby Hill Maintenance $1,000
Maine Infonet (Library) $1,700
Dry Mills renovations $400
Councilor Crane moved to act on the request for segregated funds into the fiscal year 2006 to complete expenditures as originally appropriated.
Councilor Upham seconded.
There were no comments from the public
The motion carried 3-0.
This action requires a majority vote after an opportunity for public comment
Order #-7- To review and discuss only the act of directing the Town Attorney to submit the necessary documents and filings to the Court to determine whether the Pennell assets are part of the Pennell Trust or outside of the Trust and subject to the School Closing Act. Sponsor- Town Council
Councilor Foster noted the Council will not take action this evening in light of Councilor Duda’s absence. The order was re-written to state the matter was for discussion only with action to follow when all Council members are in attendance.
The following letter from Councilor Duda was read aloud.
Councilor Upham moved to discuss the act of directing the Town Attorney to submit the necessary documents and filings to the Court to determine whether the Pennell assets are part of the Pennell Trust or outside of the Trust and subject to the School Closing Act.
Councilor Crane seconded.
Chair recapped the events of the June 23rd meeting with the Town, GPLA and the SAD #15 members. He noted he raised an issue that he had done previously regarding a court action that separated the trust from the property and turned the property over to the Town to back a bond. Further research did not show the property was returned to the trust. Both John Welch and Michael Salvetti, Gray residents, researched this information. When this issue was raised again at the June 23rd meeting, the meeting changed course and in the end it was decided to adjourn the meeting. Three of the Council members had not previously discussed it since they were newly elected members.
Councilor Upham thanked residents for their emails and letters and noted there were only two council members present at the joint meeting. People were anxious for action to take place and it did not happen. It was a good first meeting and was not unsuccessful. The Town Attorney was requested to provide the Council with a written assessment of the success and costs associated with proceeding with court action. The GPLA members were asked to provide in writing, how the transaction would look – they have done this and it has helped clear up some of the unanswered questions. Councilor Upham said he had every intention of working with GPLA to resolve the matter preferably without litigation. If it were decided that litigation is needed, he would fully support it. Councilor Upham asked the voters to pay attention and to watch what happens
and said he knew the outcome would be successful and the residents would be pleased.
Public comments:
Claudette Sims spoke on behalf of the Gray Public Library Association. Ms. Sims is the Secretary on the Library Board of Trustees. Ms. Sims remarked that at the being, the GPLA thought they were helping solve a problem and they did not ask for the political mess that has ensued. The Library can provide services at the current Hancock Street location or at Pennell. First and foremost is providing services to the community. The location at Pennell would make the Library more visible and would address the space issues that the current location has. Over 4,500 patrons use the Library and the voters were in favor of having the Town’s Library at the Pennell building. Ms. Sims addressed Mr. Salvetti’s comment and said the GPLA is not under pressure and while the present location is a good one, there is a need for more space.
John Welch, Mayberry Road resident noted Richard Barter’s involvement in Pennell over a year ago and commented that the Town has not made much progress since then. Mr. Welch said he encourage the Council to continue forward with the litigation to resolve the matter once and for all. Mr. Welch explained that when he was on the Council when the Library was being expanded previously and there was a lot of citizen participation. But during that time the possibility of moving the library to Pennell was not considered because the SAD was using the Building and it looked like they would be using it indefinitely. The trust that was financing some of the costs of the High School was not able to handle the expansion and discussions began as to whether or not the money could be raised. It was then when the Library found out they could not expand
because they did not own the building. Originally the trust was financing some of the costs of the High School
Back when I was on the council, the library was being expanded. There was a lot of citizen participation. The Trustees decided to transfer owner of the Town and they went to court (Talbert case). The decree instructed the transfer and some meeting minutes noted the property should be moved out of the trust and at the end of the bond the money could be put back into the trust. The final decree or deed has no mention of this.
If at some point the Town finds the SAD did not have the right to make the transfer and GPLA has raised funds and done repairs, - it will have all been done for a building that is not legally theirs. The true status of Pennell is in the best interest to all parties and proceeding with the court case is the right thing to do. Mr. Welch added that he did not have a problem with the Library relocating to Pennell but wished to see the trust/ownership matter resolved for all concerned parties.
Alan Rich, SAD #15 Board member reminded everyone that the voters wanted to explore the transfer and voted in favor in May. Mr. Rich noted that two Assistant Attorney Generals and the Attorney General have told the District that the Pennell building is still in the trust and the Town can continue if they choose to take this matter further to Superior Court. The Town can request an opinion from the AG to see if the proposal is legally acceptable.
Peter Gerardo, GPLA member read a letter from Mike Smith. Mr. Smith stated that he is unsure if the GPLA will be interested in raising money for the Library if it turns out they would actually be raising the funds for the Town. Mr. Smith said the voice of the people should be heard and he supported the Library’s move to the Pennell facility. He suggested to the GPLA board that after the next scheduled meeting on July 19th, they might wish to consider exploring other options.
Michael Salvetti said the entire matter boils down to prudence. No prudent person would consider a real estate transfer that has a cloud on the title. Fundraising might be affected? Not knowing the ownership and status of the property is by far more risky. It benefits all concerned parties to know the status. Then let the chips fall where they may.
Julie Sheets, Wilderness Way noted the referendum asked the voters wanted to consider working with a newly formed citizens group for the purpose of refurbishing Pennell so the town could lease it back to the Library. On June 14th 78% of those who voted were in support. Ms. Sheets took issue with Council Foster and quoted him as saying it was up to the voters of Gray as to what happens with Pennell (Feb 05 Monument Newspaper). No member of the Council has spoken to a GPLA member and they wonder what has changed from February until now. If the GPLA disbanded, the building could be sold back to the Town. Councilor Foster said he didn’t think the GPLA could transfer Pennell back to the Town and the AG would not approve the contingencies. Ms. Sheets replied that if the GPLA drew up the proposal as per Councilor
Upham’s suggestions, the building and the land would not be subject to the trust and the town could do whatever it wanted to with the building.
Paul Proudian, Wilderness Way asked Councilor Chair Foster if he bore some of the responsibility for the outpouring of citizen comments regarding the Pennell issue. Councilor Foster said there were some assumptions made that were not necessarily complete or accurate. Mr. Proudian noted that most of those in the audience tonight had read the Monument and the letters surrounding the referendum. Councilor Foster affirmed the Council supported the GPLA’s discussions with the AG and hoped the unanswered questions regarding the trust would be answered and settled once and for all. Councilor Foster said he did not suggest litigation against anyone but rather to have the information presented for a determination. Mr. Proudian said a prolonged court debate could open a door that has no end in sight and even if a ruling is made it could be
appealed. Mr. Proudian asked the Council not to stand in the way and let the GPLA turn Pennell into a library. Prolonging the issue will cause GPLA to forgo their plans. Chair Foster responded that the GPLA’s mission is to support the Library and raise funds, and at the time of their formation, there was no mention of Pennell, it was believed to be the Hancock Street property. The referendum vote did not give ownership to GPLA.
Councilor Upham thanked Mr. Proudian for his interest and reminded him that the Councils first interaction with GPLA, SAD#15 and the attorneys was to discuss how to proceed there are still significant questions and the Library’s Cohen report has not been reviewed.
Mr. Proudian noted the expenses that have already been incurred to the tune of $20,000 and the additional costs could add on $15,00 more. Councilor Upham said there would be fees regardless, even under amicable circumstances – title fees, filings and other costs.
Fran Monroe, Lewiston Road said she was hearing mixed messages from GPLA and it seemed they are shifting their direction. Ms. Monroe asked if there was an attorney present tonight and if the Town was paying for him. Councilor Foster said he was unaware of any legal counsel present on behalf of the Town. Peter Gerardo explained the GPLA’s attorney was present at the group’s expense. Ms. Monroe said she supported the Councils pursuit of the building’s ownership and noted the Gray News was negatively reporting on the issue.
Sarah McCleary remarked that in Bill Dale’s letter to the Manager that discusses an estimate for the costs associated with the case – it appears there is some back peddling going on.
Steve Bunker, Portland Road said the public has indicated they want a Library at Pennell and he hoped the Historical Society would remain there. Mr. Bunker said these things should not preclude the fact that ownership is an issue. He requested the Council keep the public appraised of the costs to proceed and hoped that the public, GPLA and others would get involved in raising funds to help keep the costs down. Mr. Bunker said he supported investigating the status of the Pennell property and trust.
Pam Wilkinson, Birchwood Drive suggested the Council make a request to proceed at the July 19th meeting with the School Department and the AG to explore the matter on a parallel level, addressing both issues at the same time. Councilor Foster said he has always supported that idea and has said so on previous occasions. Ms. Wilkinson suggested both items be added to the agenda for the next meeting.
Tod Bennett said he was at the joint meeting with Peter Pinkerton from the School Board and felt the meeting went badly. Mr. Bennett said that he would pursue the decisions the Board makes and that they had decided to make the transfer. Prior to that decision, the Board had stated they did not need the building. The Board worked on an MOU which fell apart and then GPLA came in with a concept that the Board thought the Council had supported. The fact that the Town has now changed its mind again is disheartening. Councilor Foster interjected that his comments have been raised before and were not new. Mr. Bennett suggested the Town set aside the lawsuit or to obtain an injunction for an extended period while the Town reviews the costs and how the impacts will affect the taxpayers of Gray and New Gloucester.
John Welch, Mayberry Road asked on what basis does the SAD feel they are the trustees of the Pennell trust? In Judge Tapley’s decision, the Town resisted giving up Pennell to the SAD. The property was deeded to the SAD. The question is- is there any attachment of the trust to the Pennell property? Mr. Welch said the last document he saw spoke to this issue (1954 documentation) shows the property was separated from the trust. Before anything can be done, the true status has to be determined. Mr. Welch said he did not think the GPLA would lose interest in supporting the Library even if the matter remains in the courts. Mr. Welch asked the Council to pursue finding a clear title, no matter what direction is taken.
Peter Gerardo said he would provide copies of the Cohen report to the Council. The GPLA does not need to know the ownership of Pennell as it was created to help raise money for the library. It does not matter whether the Library remains where it is or moves to Pennell.
Alan Rich, a member of the School Board noted that Mr. Pennell did not leave the building to the inhabitants of Gray but rather he left it in trust to them. The trust owns the building. The District cannot transfer the property by deed as the trust is the entity that controls the building. Unless proven otherwise, this is how things stand. The District is asking if a trusteeship to the GPLA is acceptable. This is not a deed but rather a transfer of the trusteeship. The issue of GPLA selling the building, when they would be raising money to enhance the building, makes no sense.
Fran Monroe noted that not once during tonight’s meeting did she hear anyone on the Council say they were against having the Library at Pennell.
Julie Sheets suggested that the words “at a future date” be removed from the wording in Order 71 and suggested no attorneys be involved at the next meeting. Chair Foster noted the wording of the order is not perfect but the “at a future date” wording allows the
Council to take further action at some point in the future. Ms. Sheets suggested a separate order be written that addresses the attorney’s action to file a petition. Councilor Foster said that the Order would be divided into two separate orders for the July 19th meeting.
Pam Wilkinson asked if the Council would be placing an Order to pursue the issue with the AG. Chair Foster said Order #88 (May 17th) addressed this and that he was willing to work with the GPLA and SAD.
Karen Taylor asked why the District would turn to the GPLA and not the Town. Chair explained that most people want the building returned to Gray. The GPLA would write their bylaws to satisfy the trust and the Attorney General would transfer it. If the Town owned Pennell, the GPLA could still raise the funds for the Library. The Manager added that the AG did not consider the Town as meeting the educational requirements. If the lease agreement proceeds, the GPLA has offered a renewal lease for 99 years.
Councilor Upham read GPLA’s response from a letter dated June 27, 2005, which outlined the conditional offer of lease for the Pennell Institute.
Non-binding terms as follows:
1. The Town can obtain a dismissal of certain lawsuit currently active in the Superior Court no late than June 30, 2005 and shall relinquish any all of its right, title and interest in and to the Assets and all associated properties pertaining thereto.
2. The Town shall enter into an agreement with the Association to use best efforts to assist the Association and the MSAD #15 in their efforts to transfer the trusteeship of the Pennell Trust to the Association and to assist the Associations’ renovation efforts related to the Assets, which assistance shall include prompt issuance of properly applied for permits, approvals and certificates necessary for such renovation, within thirty days of the full execution of said agreement to assist.
3. Upon complete and final transfer of the trusteeship of the Pennell Trust and the control of the Assets to the Association, the Association shall use reasonable efforts to fundraise and otherwise acquire sufficient funds necessary to renovate the Building and Assets into a facility suitable to house the Gray Public Library (the Library); suitability being at the reasonable discretion of the Association.
4. Upon completion of the renovations to the Building and issuance of a Certificate of Occupancy by the Town Code Enforcement Office, the Association shall lease the Building and Assets necessary for the operation of said library, for a period of 99 years, renewable upon the same terms, for a sum of $1.00 per year (the Lease)
5. the Town shall agree in writing to provide financial support necessary for the normal operation of the Library and all associated activities related thereto for the term of the Lease and any renewal and extensions thereof.
6. The Lease shall be Absolute Triple Net; meaning that, throughout the term of the lease and any extensions or renewal thereof, the Town shall be solely responsible for (among other things) the maintenance and repair (capital and otherwise) of the Building and all other Pennell Institute improvements, liability and casualty insurance (full replacement valve), paying any and all real estate and property taxes, utilities, and any and all other charges, assessments and costs related to the operation of said Building and all other buildings and improvements of the Pennell Institute and the Assets.
7. This offer is subject to the satisfactory completion of an environmental assessment and a title search, such satisfaction being at the discretion of the Town and the Association.
8. This offer is not binding, rather this offer sets forth the general understanding of the parties related to the Building, Assets, the Pennell Institute, and the trusteeship of said Institute. The parties agree to negotiate the Lease and any and all other agreements related to the Assets, the Building, the Pennell Institute, and trusteeship of same in good faith, and shall not unduly hinder or delay negotiations.
Sincerely,
Daniel W. Walker, ESQ., on behalf of the
Gray Public Library Association
Councilor Upham read Bill Dale’s letter to the Manager dated June 24, 2005
As required at Wednesday’s meeting, please find enclosed five copies of the various background material and letters for distribution to the new Town Councilors. I think the enclosed materials cover all of the important points.
Councilor Upham asked that I provide my best estimate of the Town’s chance of prevailing if the current litigation were pushed to conclusion and how much the same would cost. With regard to the Town’s chances of success in the litigation, there are several points to consider. First, the School District has already obtained a Superior Court order in its favor ( the Town was not even made a party to the court case( , and so our first order of business is to get the Superior Court to re-open that decision so that the Town can intervene as a party and then argue the merits of its position. I think it is highly likely, say 75%, that the Superior Court will re-open the matter but cannot say so with 100% certainty. Second, if the court re-opens the matter, again I think it highly likely, say 67% to 75%, that the court either direct
that the real property (that is the land and buildings) go back directly to the Town or, in the alternative, allow the School district to sell the same, but then be obligated to give the cash proceeds of such a sale to the Town. Note in that latter circumstance that the Town could bid aggressively on the p4operty to ensure that it was the high bidder, obtain title to the property through that bidding process and then get reimbursed with the cash proceeds from the School District.
As to the cost of pursuing the litigation, there are also several factors to consider here. First, all other things being equal- meaning a modest contest being put up by the School District and the Attorney General’s office in Superior Court, the Town’s additional legal fees would likely be between $5,000 and $7,500, again depending on how hard either the School District or the AG’s office contests the Town’s pending motion to re-open the Superior Court case. On the other hand, if either the School district and/or the Attorney General’s office elects to contest vigorously the Town’s position in court, the Town’s additional legal fees might be as high as $10,000 to $12,5000.
If you have any questions, please call me. I would be more than pleased to come out to meet with the new council to explain any issues that they have after reading the materials.
Thank you.
Sincerely,
William H. Dale
Fran Monroe commented that a lot of time could have been saved this evening if both the GPLA’s letter and Attorney Dale’s letters were read.
John Welch stated it bothered him that the Town was not determined to be worthy to receive the trust items back, and that the original donor thought the inhabitants of Gray were worthy of it.
There were no other comments.
The motion carried 3-0.
This action requires a majority vote after an opportunity for public comment
Seventh Order of Business
Public Discussion of Non-Agenda Items.
John Welch inquired as to who the two parties were that requested information under the Freedom of Access law. Councilor Foster identified them as Pam Wilkinson and Paul Proudian and noted the Town’s attorney is reviewing their requests.
Fran Monroe voted her dissatisfaction that tonight’s meeting allowed for so much dialog. She suggested the Council look into limiting the speakers’ comments to the motion at hand.
Councilor Foster apologized for not reading Councilor Duda’s letter earlier in the meeting.
July 5, 2005
Gray Town Council
Dear Fellow Councilors and Citizens of Gray,
First of all, let me be clear: my absence tonight was unavoidable. I’m out of state on a preplanned trip; however I will review the videotape and/or the minutes from this discussion, prior to the July 19th meeting when a decision from the Council is on the agenda. The following are my thoughts on the disposition of Pennell and the related property now held by SAD 15.
It appears that many of us who are involved in the current discussion agree on at least one point: we want to see the Pennell building and property preserved in some way. What we may differ on is how that should best be accomplished. For myself, I don’t believe that the town of Gray or its taxpayers need another property to take control of. As a town we would either, (a) sink significant taxpayers’ monies into it, or (b) as history has demonstrated, allow it to sit in disrepair and decay.
Studies have shown that the initial preservation of these buildings will be extremely costly and may not be the best use of the town’s limited resources. Possibly, a better option would be to allow the nonprofit group, Gray Public Library Association (GPLA), to assume responsibility for the Pennell Trust. Across New England private groups have refurbished and maintained beautiful historical architecture in their town, in many cases sparking downtown revitalization efforts by other interested parties as well.
I have considered the important questions raised by John Welch, as to the actual legality of ownership by the SAD. Pennell was removed from the trust in the 1950’s to be used as collateral for an expansion loan. It was put in the town’s name in order to secure the loan, but it seems evident that it was supposed to be returned to the trust. The current status as Welch and others have pointed out, if true, is the result of an oversight and does not represent the intentions of the trust.
From what I have learned, the State Attorney General makes rulings on trusts and has a history of trying to maintain those trusts and uphold their intent. I agree. I don’t think that the town of Gray should try to capitalize on a “legal glitch” and circumvent the intent of the trust.
So, that brings us to the options before us. The SAD and the Gray Public Library Association seem ready to continue the intent of the trust: continuing its use for educational purposes. I don’t see the GPLA as the only possible entity that could work, but they do fulfill the requirements and the voters of Gray support their mission to renovate the building for a library.
That being said, I have some very serious concerns about the open-endedness of the lease proposed between the GPLA and the town of Gray. The newly refurbished building would be leased by the town for use as a library. Given that Gray already has a beautiful library that could be expanded for future growth, I think that we need to be careful that any future arrangements will not end up costing the taxpayers significantly more than working with our current facilities. Additionally, I’d like to see some legal protection written into the documents that would prevent the town of Gray from being held accountable financially if the GPLA disbands or puts unreasonable requirements on the town as tenants.
Lastly, I have some concerns about negotiations so far. This issue is very complicated and it needs to be considered thoroughly and properly. I completely support the Council Chair’s decision not to discuss it as a Council until it could be put on the agenda and the public could be notified. I also support the right and duty of the Town Council to request information on all of our options. While we may disagree on the best course of action to take, I think that it best serves all of us if this issue is considered from several different perspectives, in order to head off problems in the future. Some undue pressure has been placed on the Council as we have begun to work through this problem. Please allow us, as newly elected Councilors, time to carefully consider these matters.
So tonight whatever position you may take, I encourage you to do this: argue the merits of your position. Argue passionately even, but leave out any personal attacks or threats; these don’t serve any of us well.
Sincerely,
Denise Duda
Gray Town Council
Claudette Sims remarked that Councilor Duda needs to read the Cohen report which addresses parking and safety issues.
John Welch disagreed with limiting the time for citizen comments.
Dana Walker inquired about the zoning ordinance and asked for consideration of an additional use for a heliport in the plaza area. Mr. Walker noted his non profit flight service falls under a 501.3 (c ) which provides flight service for charities. Additional approvals would be required from the DEP and FAA.
The Council directed the Manager to wait in adding Order 88 to the next agenda for action pending further review of the GPLA’s letter by the Council. Public discussion will be allowed on the matter and added to the July 19th agenda under Council Business.
There will be a Council Workshop on July 25th.
Eighth Order of Business: Adjournment
The meeting adjourned at 11:15 p.m.
Respectfully submitted,
Janmarie A. Bourret
Recording Secretary
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