News

What happened with Order 35?
Procedure, not outcome, at issue
By Elizabeth Prata

Gray--At the Tuesday, October 4 Council meeting, emotional citizens and irritated Councilors faced each other, but they weren't emotional or irritated with each other. It was the procedure, not the content, surrounding that particular agenda item that the Council spent much of its time discussing that evening. And at the center of that argument sat the Town Manager.

The Order was to "review and act on authorizing the Town Manager and the Code Enforcement Officer to enter into a consent agreement with Fortin Construction Company to mitigate the violation of constructing a house on a lot off Aurora Drive." If it sounds like a legal kind of issue, it is.

Chair Gary Foster said at the meeting that the agenda item "first came up at workshop. We requested more information from the Manager before we acted and asked it not be put on the agenda. He put it on anyway. We did receive information, tonight. We would have liked more time to review this prior to this moment." And with that, Mr. Foster asked his peers for a motion to open the discussion. A long silence ensued.

What had happened between workshop and Council meeting?

The issue first came up at the preceding Monday's workshop meeting. After over four hours of discussion on other topics, at about 10:30 p.m., Manager Mitchell A. Berkowitz informed the Council that he was placing an item on the next week's agenda. There were some residents who couldn't move into their home because the Code Enforcement Officer had refused to give a certificate of occupancy, he told Councilors. The couple had already sold their home and had nowhere to live. He was recommending that Council take action on a consent agreement, so that they could move in.

"The Manager raised this at the workshop under 'Agenda Development' and said that two people couldn't move into their house," Chair Gary Foster said. "We asked why there was a cloud on the house, how it got there, and asked for further information. The Manager hadn't brought any information with him [to the workshop] and he could not fully answer our questions."
The Council directed the Manager not to put the item on the agenda. They wanted their questions answered, they asked for documents such as Planning Board and Zoning Board minutes, and they wanted to review the information before entering into a legal scenario such as a consent agreement.

"He put it on anyway"

The next morning, Mr. Berkowitz added the Order to the agenda, and e-mailed it to Council and all media, noting, "Please find the agenda with order #35-Consent Agreement as attached." He followed up with a call to the media to specifically ask that this new agenda be used and to disregard the previously distributed one.

Seeing this, Vice-Chair Andy Upham sent Mr. Berkowitz an e-mail stating, "Mitch, I thought the council indicated last night that more information was required prior to the consent agreement." Mr. Berkowitz's response was, "Andy that is true, and under the cirsumstances I wanted to make sure we had an opportunity to have Council action once the information was provided. Had it not been on the agenda the opportunity would have been postponed."

Lots of talk, no documents

The Council had asked for documents Monday night and waited for them to be produced. Days went by with no fulfillment of their request for clear information on this legal but also highly emotional issue that would solve or prevent two people from moving into their home.

Councilor John Welch stopped in to Town Office and ended up talking with Mr. Berkowitz further. Absent hard documents, "I talked with the Manager in the office. I thought that the people were stuck. Though I had no hard documents, my conversation with the Manager satisfied me."

Councilor Skip Crane said that "The first we heard of it was late that Monday night. We should have heard about it long before that. We rely on the Manager to offer us information in a timely way."

Mr. Foster ended up talking to the previous property owner, a local surveyor, who was the identified cause of the problem and who was eventually fined $2,000. "I got some information from him, had he not explained it, I would have removed it from the agenda," Mr. Foster said.

As the weekend approached, and with the Order to be acted upon the following Tuesday, Council was still waiting for the information they requested. Mr. Berkowitz placed two calls to Mr. Upham and left voice messages that he would like to speak with him. "I was unable to return his calls and speak with him," Mr. Upham said.

The history surrounding this home construction goes back to 1999 and involves a Planning Board decsion, a local surveyor, a construction company, the Zoning Board of Appeals, and two innocent home buyers.

The meeting time arrives

Tuesday night came and as the Council meeting was about to open, Mr. Berkowitz provided several pieces, but not all, of the documents the Council had requested. Then the lights went on and the television cameras whirred to life and the Council faced a sizeable audience, most of whom were there for Order 35.

As Mr. Foster concluded his preface to the Order, he called for a motion. For a long time, no one spoke. It looked like the Order would die with no Councilor to move on it, but Mr. Welch moved and after another agonizing silence, Councilor Denise Duda seconded.

Asked later why he hesitated, Mr. Welch said "I was a wallflower for a moment, but I was spurred on by my conversation with the Manager in trying to find out what is involved with this issue." Ms. Duda said, "I was reluctant because the issue was still cloudy for me. But I did want to discuss it." Continuing, though, "It would have been better to have the information sooner. Anytime you're pressured to do something, it's easy to overlook something. It's risky."

The Council talked for a long time about the procedure of how the Order got to that point, and lack of information was the major issue they had with it. They were sensitive to the homeowners, but they still were not sure the issue wasn't a civil matter for the courts to decide. The Council had questions as to why the Manager had told them that the fine would be $10,000 but at the meeting it was announced as $2,000.

Mr. Foster later reported that, "That's when I really began to struggle with the issue ... The Manager clearly subverted the Council's authority. However, the people were in a tough spot that wasn't a problem of Council but it became apparent that we could solve it. People were impacted due to incompetence of government and there was no reason to further victimize them."

Mr. Crane said so, too. "The only substantial information we received was at the meeting, which was a map with a notation on it. And of course the Order the Manager had written, his verbal assurances, and listening to the verbal testimony of the people there," said Mr. Crane.

The outcome

In the end, the vote was 4-1, with Mr. Upham opposed. Asked later why he voted no, Mr. Upham said, "I had insufficient information to make an informed decision. I had requested of the Manager to postpone this so I could do my homework to inform my decision." Mr. Crane said, "I voted yes, holding my nose, eventually deciding that if the Town may have had a hand in messing this up, it would not be beneficial to prolong the people's situation."

Mr. Foster was of the same mind. He admitted that if their situation was not so dire, he would more likely than not have voted no. "I am angry, though, for having been placed in this situation. Council will be having a serious discussion with the Manager."