OFFICE OF THE SELECTBOARD
Town of Halifax, Vermont
SELECTBOARD REGULAR MEETING MINUTES
April 3, 2018
Call to Order
The meeting was called to order at 7:00 p.m. Selectboard members Lewis Sumner, Mitchell Green, and Bradley Rafus were present. Also present were Cara Cheyette, Marilou Parkhurst, Douglas Parkhurst, Marilyn Allen, Stephan Chait, Ray Combs, Sue Kelly, Edee Edwards, Fabio Girelli-Carasi, Paula Swartz, Peggy Rafus, and Robbin Gabriel. Paul Blais joined the meeting at approximately 7:24.
Changes and/or Additions to Agenda
Approval of Previous Meeting Minutes
(Note: The 3/19/18 special meeting minutes were listed on the agenda but were not approved, as no quorum was present at that meeting.)
Lewis Sumner made a motion to accept the 3/20/18 regular meeting minutes as written. Brad Rafus seconded the motion, which passed, 2-0-1, with Mitch Green abstaining.
The Selectboard filled 2018 appointed town official positions, as follows:
Sumner nominated Robbin Gabriel as Selectboard Secretary and Administrative Assistant for one year. Green seconded the motion, which passed, 3-0.
Sumner advised Planning Commission terms for Patricia Dow and William Pusey are ending this year. Dow, due to a busy schedule, will not be serving another term. Jason Ashcroft has expressed an interest in serving.
Sumner nominated Jason Ashcroft and William Pusey as Planning Commissioners for three-year terms. Rafus seconded the motion, which passed, 3-0.
Rafus nominated Jason Ashcroft and William Pusey as Zoning Board of Adjustment members for three-year terms. Sumner seconded the motion, which passed, 3-0.
Mitch Green nominated Bradley Rafus as Road Commissioner for a one-year term. Sumner seconded the motion, which passed, 2-0-1, with Rafus abstaining.
Green nominated Ross Barnett as Tree Warden for a one-year term. Rafus seconded the motion, which passed, 3-0.
Sumner nominated Andrew Rice as Animal Control Officer for a one-year term. Green seconded the motion, which passed, 3-0.
Sumner nominated Edee Edwards as representative to the Council on Aging for a one-year term. Green seconded the motion, which passed, 3-0.
Rafus nominated Stephan Chait and Everett Wilson as Windham Regional Commission representatives for one-year terms. Green seconded the motion, which passed, 3-0.
Green nominated Lewis Sumner and Cara Cheyette as Windham Solid Waste Management District representatives for one-year terms. Rafus seconded the motion, which passed, 2-0-1, with Sumner abstaining.
Green nominated Allan Dacey and Andrew Rice to the Loan Review Committee for one-year terms. Rafus seconded the motion, which passed, 3-0.
No volunteers have come forward to serve as ADA Coordinator. This position will be posted.
Rafus nominated Wayne Courser as E-911 Coordinator for a one-year term. Green seconded the motion, which passed, 3-0.
Green nominated Lewis Sumner as Recycling Coodinator for a one-year term. Rafus seconded the motion, which passed, 2-0-1, with Sumner abstaining.
Sumner advised that while no appointment was made last year, two individuals have volunteered to work together this year to serve as Green-Up Coordinators—Hope Phelan and Jessica Cooney. Green nominated Hope Phelan and Jessica Cooney as Green-Up Vermont Coordinators for one-year terms. Rafus seconded the motion, which passed, 3-0.
Sumner nominated Peggy Rafus as Emergency Management Director for a one-year term. Green seconded the motion, which passed, 2-0-1, with Rafus abstaining.
Green nominated Andrew Rice for Citation Ticket Responsibility for a one-year term. Rafus seconded the motion, which passed, 3-0.
The Energy Conservation Officer position remains open and will be posted. Cara Cheyette asked what the job involved. Rafus said Tristan Roberts, who served in earlier years, had assisted with a Town Garage energy audit and a grant application. Edee Edwards mentioned several conservation-oriented groups and activities in the area, suggesting the position could be what an appointee makes of it. Cheyette said she would consider the position, ask some questions, and let the Board know her decision.
Sumner nominated Andrew Rice as First Constable for a one-year term. Green seconded the motion, which passed, 3-0.
Rafus nominated Roy Richardson as Second Constable for a one-year term. Green seconded the motion, which passed, 3-0.
Green nominated the Brattleboro Reformer, The Commons, and the Deerfield Valley News as the Town’s newspapers of record. Rafus seconded the motion, which passed, 3-0. Edwards asked whether every Town notice had to be posted in all three papers, pointing out that was expensive. The Board responded no, and Gabriel explained that the choice of publication was affected by noticing deadlines; the Reformer is the only local daily newspaper, while The Commons and the Deerfield Valley News are weekly.
Green made a motion to continue holding Selectboard regular meetings at 7:00 p.m. on the first and third Tuesdays of each month at the Town Office. Sumner seconded the motion, which passed, 3-0.
Open Meeting Law/Ballot Question—Cara Cheyette
Cheyette thanked the Board for including this item on the agenda, and said she would like to speak about what happened, from her perspective; why she thinks it matters; how it happened; and looking ahead, or what comes next. Cheyette outlined as follows: A ballot question on Town Meeting Day asked voters whether they would expand the size of the Selectboard from three to five members. Several weeks prior to the informational meeting a letter signed by Cheyette (among others) was circulated, making the argument that on a five member board, two members could discuss town business, while on a three member board they could not. Cheyette hoped that point would be persuasive to voters who hadn’t taken a position. During discussion at the yearly informational meeting, Cheyette said, Paul Blais made the statement that two members of a three member board can discuss town business, they just can’t make a decision, and several others concurred. After the meeting, Cheyette emailed Blais, while Gretchen Becker emailed Patty Dow. Both Cheyette and Becker disagreed with the opinion that two members of a three member board could discuss town business, and both emails contained information on State open meeting law statute. At Town Meeting, said Cheyette, the same question arose, and Sumner said the law had changed the week before. The vote on the question of expanding board size was returned 98 “no,” and 95 “yes.”
Subsequently, said Cheyette, she communicated by phone and email with Jennifer Prosser, General Counsel for the Secretary of State’s office. Cheyette asked Prosser whether the law had changed, and two members of a three member board could discuss town business, and Cheyette shared Prosser’s response with the Selectboard. The matter was also addressed in a Reformer news article written by Chris Mays, in which Sumner was quoted as saying he didn’t think it made a difference. Cheyette said she felt it did make a difference, as the proponents had presented the point as a benefit—two members of a five member board can talk; two members of a three member board can’t. Cheyette believes more voters might have voted in favor of a five member board had they understood two members of a three member board cannot discuss town business. She speculated that some voters might have made their choice based on the thinking that, given conflicting information, the proponent letter-writers were misinformed, or trying to mislead people, and could not be trusted. Or maybe, Cheyette continued, the issue bred apathy; some people chose not to vote at all, because they were receiving differing information and decided, therefore, that “you can’t trust anyone in politics.”
Cheyette said there had been communication asking how this situation had come about that everyone had misinformation; she has not heard any acknowledgment about that. I have a question outstanding of how it came about, she said, and when there might be an opportunity to do some training on open meeting law. John Gannon has recommended someone to Cheyette who worked formerly at VLCT, and who will do open meeting law training. She recommended a revote in August to try to take away a little bit of the taint. She said a lot of people feel like there was an effort to put a finger on the scale. What is the law?, asked Ray Combs. Do you have a copy of the law so we can read it? Cheyette said she did not bring a copy of the law, but gave Combs a copy of the email from the Secretary of State’s office. The law says, Cheyette stated, that any time there’s a quorum, which means two out of a three person board, they can’t discuss town business or take action. Edee Edwards said there was a copy of the law (on the shelves) up front—1 V.S.A. 312(a). Green said there was a bill in the legislature that would do what Sumner said at Town Meeting. He read from an “as introduced” copy of the bill, which he said had not yet been fully inacted. Cheyette quoted Prosser as saying that the current pending bill would not allow two members of a three member body to discuss board business outside of a duly warned meeting.
Discussion followed, concerning the status of the current pending legislation. Sumner noted the bill had passed the House. Marilou Parkhurst said she had the impression at Town Meeting the legislation had passed, but it has to pass both houses in order to make it binding law. The requirement is still in effect, she added; two of you cannot discuss anything together. In Parkhurst’s opinion, incorrect information heard at Town Meeting changed how people chose to vote. Paul Blais said he had asked for interpretation of the open meeting law from J.P. Isabelle (Municipal Elections), in the Secretary of State’s office. Blais said the interpretation Isabelle gave him was that when talking and emailing, two members of a three member board are permitted to talk about things they are not trying to influence, but no decisions can be made. Blais quoted from page two of the Secretary of State’s office guide to open meetings (online); “When does the open meeting law apply? Whenever a quorum, or a majority, of a public body is gathered to discuss the business of the board or to take action, the open meeting law applies. 1 V.S.A. 310(2) This means that when the majority of a board finds themselves together at a social function they must take care not to discuss the business of the board. In 2014 the Vermont legislature clarified that a public body is not meeting if members are exchanging emails for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting. Two members of a five person board may meet without the need for a public notice. The entire public body may meet without notice or public attendance when it deliberates on its written decision following a quasi-judicial hearing on an application or permit. In that instance, although the hearing is open, only interested parties have the right to be heard.”
General commentary continued, with Cheyette clarifying that two members of a three member board could not discuss town business, but scheduling and disseminating information is allowed. Does it mean expressing an opinion is outlawed?, asked Fabio Girelli-Carasi, and several people concurred. Several others present, including Sue Kelly, Marilyn Allen, and Mitch Green, then discussed their differing interpretations of what was said at Town Meeting and the definition of “discuss.” Rafus, who had attended open meeting law training at the VLCT Selectboard Institute two weeks ago, said a board member could also distribute information about an agenda item, but there could be no discussion. Also, said Rafus, a board quorum can inspect progress on a previously-contracted town project, without warning an open meeting. It is very, very, difficult to keep those boundaries really clear, said Allen, and not slip into a discussion. I would find it very hard. You three (referring to the Board) work together all the time, you can easily exchange something and not feel you’re discussing it. The point of the open meeting law is to set very strict guidelines so you don’t do that. If we had a five-member board, said Rafus, two members could talk about an issue, but neither of them could discuss the same issue with a third member. Green indicated he would not be happy if he were on a five member board and learned two other members had been discussing how to vote on an issue. Cheyette reiterated her point that she had been correct in her interpretation of open meeting law during the period preceding and following Town Meeting. Partially, responded Rafus. There are three situations in which two members (of a three member board) can speak. You (addressing Cheyette) said at no time can board members talk, and that’s incorrect. We know now what you can and can’t do. Cheyette asked again that the Town hold a training. Sumner noted that four Town officials (Sumner, Brad Rafus, Peggy Rafus, and Gabriel) had taken the VLCT training course at the Selectboard Institute two weeks ago. Edwards questioned Green about his open meeting law training and the bill he had been reading from earlier. At this point the exchange disintegrated briefly, with Paul Blais bringing things back on point by explaining that bill H.235, from which Green had been quoting earlier, was introduced in 2017, while the current bill under condsideration, H.910, might contain different language. The H.910 language states that “a quorum of members of a public body shall not use a series of less-than-quorum communications of any kind, directly or through intermediaries, intended by any of the members to reach an agreement or take action on the business of the public body.” Blais said he would welcome a local training session, conducted by someone from the Secretary of State’s office, for members of various municipal boards and also for interested members of the public. Cheyette gave the Board a copy of an email from John Gannon which contained contact information for an attorney named Jim Barlow who offers training.
Ray Combs spoke strongly about low Selectboard meeting attendance and asked how often Board members received calls requesting information on Town issues. During meetings, he said, nobody ever shows up. You come to the meetings if it’s for your benefit, then you leave, said Combs. I know it’s boring, but it’s part of of our Town, and you should participate. Most of the time there’s nobody here to voice their opinion, so now you don’t trust these people, and that’s why you want to go to a five-member board. Green said he has no objection to training, but would like to wait until the current proposed legislation has passed, so the law doesn’t change after a training session. Rafus recommended that a training session, if one were held, be scheduled at a time other than a Selectboard meeting night.
Discuss ZBA 194 Old Green River Road Decision
Board members have reviewed the Zoning Board’s written decision on the appeal of a zoning violation notice at 194 Old Green River Road. Sumner asked Gabriel to summarize. Gabriel said the ZBA had granted the appellant’s appeal of the original notice that the shed was too large. A second violation notice, which was not appealed, stated that a condition of the permit was that the shed was to be removed by October 31, 2017, or the first snowfall, whichever came first. This second violation notice was not appealed; the ZBA has submitted this open violation to the Selectboard and requests the Board make a decision about whether to pursue enforcement in Environmental Court. Sumner provided some history of the situation. In November 2016, the trailer at 194 Old Green River Road burned. A smaller trailer and a shed were then moved onto the property. Both structures are too close to the road, but are grandfathered because the original structures were in place prior to zoning. Temporary structures after an event such as a fire are permitted for rebuilding purposes up to two years following the event, but those structures must adhere to the original footprint. Board members agreed the law should be enforced. Green made a motion to proceed with enforcement of the zoning violation at 194 Old Green River Road in Environmental Court. Sumner seconded the motion, which passed, 3-0.
Discuss FY2019 Recyling Contract
The Halifax recyling contract with TAM expires on June 30, 2018. TAM had originally suggested a three-year contract, but the Selectboard opted for one year, given that this was a new service for the Town. Sumner said TAM was doing an good job; they are very responsive. Rafus commented that better consumer education is needed. If the cardboard loads are contaminated, the Town loses its earnings on paper waste. Many plastic bags get mixed in with the cans and bottles, and the Town pays a surcharge if the percentage of contamination is too high. Allen recommended posters to increase awareness and Rafus mentioned suveillance cameras, while Cheyette suggested a project involving school students setting up at the recycling site to distribute cookies and helpful information for recyclers. Cheyette asked for an estimate of this year’s contamination costs. It hasn’t been too bad, said Sumner, with the exception of one occasion when someone added a lot of debris to the commingled bin. That cost about $100 in additional charges. We do earn a little on cardboard, he said. Sumner made a motion to request a three-year contract with TAM for recycling services to the Town. Green seconded the motion, which passed, 3-0. Gabriel will communicate with TAM regarding the contract, and find out whether pricing will remain the same.
Erosion Control Update
Rafus met earlier today with Jeff Nugent (WRC) and Meghan Brunk (VTrans), to discuss the erosion control study recently completed by WRC. That study, funded by a grant, represents the first requirement of the new Clean Water Act (Act 64). Stephan Chait and Gabriel were also present at that meeting. Discussion centered on Halifax roads which will need to be changed and upgraded to bring them into compliance with the new regulations. Rafus explained that the erosion inventory is designed to address each road in 328-foot segments. The Town has over 600 segments, with about 514 of those in need of improvements. To put things in perspective, he continued, the Town has been awarded a $14,200 grant which will be applied to the cost of upgrading a 328-foot segment of Stark Mountain Road. The full cost of that project is estimated at about $40,000. Bringing our roads into compliance with Act 64 will be a big hit to the taxpayers, said Rafus.
What has to be done on Stark Mountain, do we widen it?, asked Combs. All the ditches will be upgraded, answered Rafus. On grades up to 5%, we can use vegetation with checkbands. Anything over 8% has to be stone-lined, and culverts must be 18 inches or larger. Our problem is, we have no resources; all of our materials must come from Brattleboro. 15% of the segments in need of upgrading must be completed by 2025. Pennell Hill will be another big project; it will need to be reworked top to bottom. Rafus estimates that cost will run $175-$200,000. We also have to purchase a $2,000 blanket permit each year, with an additional $900 in administrative fees. What happens if we can’t do it?, asked Combs. They’re saying they will pull all the State aid, replied Rafus; the State aid, the Class II grants, the structures grants. Will any of that work make it cheaper to maintain the roads in the end?, asked Allen. The State says yes, I’ll say no, answered Rafus. He gave, as an example, the section of Jacksonville Stage Road adjacent to Allen’s residence. Those ditches were stone-lined after Irene, but now the stone is covered with silt and sediment and will need to be removed for cleaning. It takes two or three days to work a section like that, he said. Other requirements are increased crowning on dirt roads, and the removal of all berms, and—potentially—the removal of old roadside maples. Allen had a number of questions and comments on ditch depth and the effect trees have on water flow. Rafus said another requirement of Act 64 affects culverts on private driveways. Many older driveway culverts do not meet current specifications, and landowners may need to upgrade them. Grants for all this upgrading work may run about 50%, but full information on grant structuring is not yet available from the State.
Executive Session (if necessary)
Rafus reminded those present that both the fire department and highway repeaters are located at Honora Winery. There was never a contract for the highway department. The fire department repeater has been there for about 14 years, and presently there is a conflict over electricity payments and other details. Rafus has had a series of conversations with landowner Harry Farrington, who does not have an issue with the highway department remaining on the site, but would like the Town to pay for electricity used on the tower, and would also like to have his storage building, where Town equipment is housed, be tax-exempt. We would write a contract, said Rafus. The tax exemption would amount to about $700 yearly, and electrical usage installation would be $500-$600. R&R Communications has advised that a new tower installed at the Town Garage would cost $40-$50,000, as an installation at that location would require an exceptionally high tower. Rafus told Cheyette a $12,000 grant award, currently in progress, will pay for a repeater upgrade in its present location. Cheyette expressed concerns over the tower remaining on Winery property, given Farrington’s earlier statement that he would sue the Town. Rafus explained Farrington could not sue the Town; he (Farrington) does not have a problem with the highway department, but rather the fire department. What would be the cost if the highway repeater were to stay in its present location?, asked Green. Rafus said it would be the $700 tax exemption on the storage building, plus the cost of installing an electric meter and paying for monthly electric usage. We have had an offer from another landowner in that area for a place to install a tower, said Rafus, but we’d need to install a tower, put in electricity, purchase a generator for backup power, and put up a building to house the equipment. Is the tax exemption going forward, or is it retroactive?, asked Chait. Going forward, replied Rafus; the question of back payment involves the fire department, not the town. Has the Board approached VTel about using the tower in the center?, asked Edwards. She also mentioned the CoverageCo failure, with reduced communication along Route 112, and asked whether the Town attorney is aware of the tower situation. Rafus said the Town attorney has been advised. VTel would be a good location, but would require rent, he added, and we would need backup power on the site, and a storage building. Cheyette again urged investigation of alternative sites. Peggy Rafus said Farrington’s complaint was with the fire department, not the town; he had not understood at the outset that the fire department is a private entity. Farrington is willing to sign a contact with the Town. Edwards asked about possible sites outside of Halifax; Rafus said the same need for accessories—an equipment storage building, electric service with meter, and a backup generator, would apply. Would we be paying for Farrington’s private use of his generator?, asked Edwards. No, answered Rafus, he wants nothing for the generator use; we would just be paying for our own use of electricity. Cheyette offered the opinion that if the Town were only using half Farrington’s storage building, the entire building should not be tax-exempt. Honestly, replied Rafus, $800 a year is a hell of a deal. VTel and similar installations pay $1,000 a month for their towers. We are also tight on time, he reminded the meeting; our grant deadline (for the repeater upgrade) is June 30th. We could check on what VTel might charge us for rent, said Green. Edwards recalled some problems when the highway repeater was first installed. Not to point fingers, said Rafus, but that’s why it’s not always wise to take the cheapest bid. There’s a reason why one vendor bids $2,500 and another bids $10,000 for the same equipment. We got what we paid for; cheap equipment. That’s why we need the upgrade. There’s a plan to move the highway repeater higher on the tower, said Peggy Rafus, to improve reception. The fire department is negotiating with Whitingham for a location for their repeater. I think we need to do what is necessary for the safety of the highway department, and let the fire department figure out what they need to do. We need to make our decision for the highway department soon, to satisfy the grant deadline. Brad Rafus pointed out that the Town pays Keene Mutual Aid $14,000 a year for their services; he believes Mutual Aid should be dealing with the current fire department situation. Sumner recommended proceeding with negotiating an agreement, while Green said we should try to have that finalized by the next meeting, and also investigate VTel rental amounts. Rafus also advised exploring possible permit requirements if the VTel location were to be considered.
Hearing of Visitors
Combs noted that some people present had stayed for the whole meeting. That’s what it’s supposed to be about, he added.
Is it accurate that the only paid positions among those appointed earlier are the Road Commissioner and the administrative assistant?, asked Edwards. The Board confirmed, and Rafus added that the EMD position is funded until the first of July.
Selectboard’s Order to Treasurer for Payment
The Selectboard’s Order to the Treasurer was reviewed and signed.
New correspondence was reviewed, and one overweight permit was signed. Sumner told the Board Fire Warden Malcolm Sumner recently received a 40-year award at the annual firefighter meeting in Chester.
The meeting was adjourned at 8:55 p.m.