Little Compton

What is “Town Property” in Little Compton? And who makes decisions about the “acquisition, … sale, mortgage, exchange, or lease” of that property? (Part 1)

At this year’s November 8 General Election (for which early voting began on October 19), Little Compton voters are being asked to vote on fifteen proposed amendments of the town’s Home Rule Charter, as well as a question asking whether the town should issue licenses for cannabis-related business. The Charter Review Commission has prepared and mailed a Voter Information Handbook, which includes the full texts of the proposed amendments.

Among the proposals are Question 5, which would amend Charter Section 103 (“Town Property”), and Question 17, which would amend Section 710 (“Little Compton Housing Trust”). Both amendments, if adopted by a majority of voters, would alter Charter language and/or voters’ roles and rights pertaining to approval of real-estate transactions by, respectively, the Little Compton Agricultural Conservancy (LCACT) Trust and the Little Compton Housing Trust (LCHT). These two proposed amendments, on their face, may appear modest and inconsequential. However, they both involve significant issues and challenges currently facing the town, namely: 1) the town’s land conservation policies and practices; and 2) the availability and affordability of housing options for current and prospective residents. These closely inter-related concerns will affect the economy, environment, diversity, and overall livability of Little Compton for decades to come. The two proposed amendments–Question 5 and Question 17–deserve the scrutiny of town voters.

The issues raised by the two proposed amendments are complicated. I confess that it is a challenge to organize my concerns in a crisp, straightforward narrative. In any case, I treat these issues and concerns in three separate posts, which I’ve divided into seven numbered sections. The three posts will be published sequentially, over several days. This post (Part 1) includes the following sections:

1. The roles of the Charter Review Commission, the Town Council, and voters in amending the Home Rule Charter.

2. Question 5: Amending Charter Section 103. (“Town Property”) regarding the Little Compton Agricultural Conservancy Trust (LCACT).

3. Additional LCACT history and background.

The second post (Part 2) will include one section: 

4. Counting the ways the LCACT is a legal and political component of the Town of Little Compton.

The third post (Part 3) will include three sections:

5. Question 17: Amending Charter Section 710 regarding the Little Compton Housing Trust (LCHT).

6. LCACT and LCHT: Two sides of the same coin. 

7. Other concerns about compliance with Section 103: South Shore Beach, municipal solar-energy contracts.

* * *

1. The roles of the Charter Review Commission, the Town Council, and voters in amending the Home Rule Charter 

The right and procedures by which a Rhode Island municipality may adopt a Home Rule Charter are set forth in Article 13 of the Rhode Island Constitution (“Home Rule for Cities and Town’s”). That article authorizes a town or city to “adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this Constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.” Section 4 of Article 13 specifically reserves to Rhode Island cities and towns the right to determine their local “form of government.”

In 1993, as provided in Article 13, a sufficient number of qualified Little Compton “electors” (i.e., voters) submitted to the Town Council “a petition for the adoption of a charter.” The Council, as Article 13 required, scheduled a September 14, 1993 election posing the following question: ‘‘Shall a commission be appointed to frame a charter?’’ The question was approved by a 246 to 155 vote. At the same election, voters also elected, from a nonpartisan ballot including 20 candidates, a constitutionally prescribed nine-member Charter Commission. It is important to note that this constitutionally granted authority to petition for the adoption of a charter is granted solely and directly to voters. Except for scheduling the necessary elections, the charter-adoption process set forth in Article 13 did not require the involvement or the approval of the Town Council.

With the assistance of the late Elmer Cornwell–a Brown University political science professor, Little Compton Town Moderator, Rhode Island House of Representatives Parliamentarian, and Home Rule Charter consultant for other communities–the Charter Commission drafted a Home Rule Charter. As I recall one member saying at the time, the Commission’s intention was to frame a charter that reflected as closely as possible the form of Little Compton town government as it then existed and functioned. A more ambitious and disruptive document, the commission members reasoned, might encounter skepticism and defeat when presented to voters. This proved to be a wise approach. Once adopted, the Charter could be and has been amended as the town’s needs and circumstances have required.     

During 1993-1994, I attended most of the meetings of the original elected Charter Commission. The Home Rule Charter they drafted was subsequently approved by voters at the November 1994 General Election and took effect in January 1995. (The Charter was also “ratified” by the General Assembly in early 1995, though such ratification is not specifically required pursuant to the state constitution’s Article 13.)

The Charter, as adopted and subsequently amended, includes a process for periodic Charter review and amendment. Section 1004 A, of Little Compton’s Home Rule Charter (“Amendments of Charter”) provides that

The Council shall appoint a Charter Review Commission of seven (7) members, during the month of January in the year 2001, and every four (4) years thereafter, whose members shall serve for a term of two (2) years, and whose duty it shall be to review the Charter and recommend to the Council any amendments or revisions which it feels the Council should consider for presentation to the electors of the Town.

I have served on two Charter Review Commissions, one of which I chaired. As provided by Article 13, and as confirmed in a 2009 opinion of the Rhode Island Supreme Court (Viveiros v. Town of Middletown), only a town or city council has the authority to present proposed charter amendments to voters at a general or special election. The authority of the Commission is limited to recommending Charter amendments to the Town Council. Thus, the 15 Charter amendment questions Little Compton voters will decide this year are those drafted and recommended by the Charter Review Commission, as amended in certain cases and approved by the Town Council.

I attended and participated in several meetings of the current Town Council-appointed Charter Review Commission. I also attended an April 18 joint meeting of the Commission and the Council to discuss the proposed Charter amendments and the subsequent May 19 Town Council meeting at which the amendments were approved for presentation to voters. The Charter review process, as best I can determine, involved limited participation by citizens, especially under COVID conditions. Nonetheless, the volunteer members of the Commission–Chairman Jack Haire, Chuck Barend, Ed Bowen, Philip Crawford, Mikel Folcarelli, Monica Hopton, and Michelle Stecker–conducted their business in a conscientious, business-like manner. They deserve the gratitude of town voters for their efforts.

Most of the Charter Review Commission’s proposed amendments appear to be sensible, useful, or necessary changes to clarify or streamline current Charter language that is obsolete, inconsistent with other Charter provisions, or impedes the efficient operation of town government. In most cases, the proposed amendments, I believe, would not dilute or otherwise infringe on the current rights and opportunities of town voters to participate in or have a voice in town affairs.

The discussion below takes up separately my concerns about the proposed amendments of Sections 103 (Question 5) and 710 (Question 17), relating respectively to the Little Compton Agricultural Conservancy Trust and the Little Compton Housing Trust. The perspective I bring to these matters is solely my own, based on direct personal experience and observation throughout the existence of both town agencies. Other people, of course, may have different perspectives, experiences, and opinions.

2. Question 5: Amending Charter Section 103. (“Town Property”) regarding the Little Compton Agricultural Conservancy Trust (LCACT)

The current language of Section 103, unchanged since the Charter’s adoption in 1994, reads as follows:

Town Property.
The Town may acquire property within or without its corporate limits for any municipal purpose, in fee simple or any lesser interest or estate, by purchase, gift, devise or lease, and within its limits by condemnation as such takings may be authorized by law, and may sell, mortgage, exchange, hold, manage and control such property as its interests may require, provided that any such acquisition, or any sale, mortgage, exchange, or lease of real property shall, exclusive of acquisitions by the Little Compton Agricultural Conservancy Trust as hereinafter set forth, [emphasis added] be approved by the Financial Town Meeting.

The amendment proposed by the Charter Review Commission and the Town Council would simply delete the following clause from the section: “exclusive of acquisitions by the Little Compton Agricultural Conservancy Trust as hereinafter set forth”. Thus, if Question 5 were to be approved by voters, it would read as follows:

Town Property.
The Town may acquire property within or without its corporate limits for any municipal purpose, in fee simple or any lesser interest or estate, by purchase, gift, devise or lease, and within its limits by condemnation as such takings may be authorized by law, and may sell, mortgage, exchange, hold, manage and control such property as its interests may require, provided that any such acquisition, or any sale, mortgage, exchange, or lease of real property shall be approved by the Financial Town Meeting.

After every question that will appear on the ballot, the Commission, in its Voter Information Handbook, provides a “Reason for proposed amendment.” The reason it offers to justify its proposal to amend Section 103 reads as follows, in full: “The Little Compton Agricultural Conservancy Trust is not subject to the provisions of Section 103.”

This rationale, at least in my opinion, is cryptic, circular, and not very helpful to voters. The current language of Section 103, as it has been in effect for almost three decades, says explicitly that the LCACT’s real-estate transactions, unlike those for other “Town property,” are not subject to the approval of the Financial Town Meeting (FTM).

Why was the language the Charter Review Commission proposes to delete included in Section 103 in the first place?

Especially during the mid-1990s, there was considerable debate and controversy surrounding the activities of the then-young LCACT. As an interested citizen, I closely followed and, in some cases, participated in those events and debates. By my observation, a principal (though not the only) reason the current language was included in this section by the original elected Charter Commission was precisely because of intense disagreement at the time the Charter was being written concerning whether the Trust’s transactions required Financial Town Meeting approval. This complicated story, which I won’t recount here, was hashed out between the Town Council, the Trust, and various lawyers retained by different parties who generated pages of legal memos. By recommendation of the Town Solicitor–Richard S. Humphrey, who still serves as Town Solicitor–the Town Treasurer froze the financial accounts of the Trust for the better part of 1993. As Mr. Humphrey wrote in a letter to the late Jim Truslow, Chair of the Planning Board at the time, “If anyone is responsible for the slow-down of the activities of the Conservancy Trust, it is me.” In the end, the freeze was rescinded. All the parties eventually agreed that the 1985 enabling legislation passed by the General Assembly to authorize creation of the LCACT, and the subsequent 1986 vote of the Little Compton Financial Town Meeting authorizing implementation of that legislation, provided clear authority for the Trust to act autonomously on its real-estate transactions, without approval by the Town Council, the Financial Town Meeting, or other town officials.

I was not involved with the nor did I closely follow the development of the legislation creating the Agricultural Conservancy Trust in the mid-1980s. (I did attend the 1986 Financial Town Meeting where I joined the majority of voters in endorsing implementation of the Trust’s enabling legislation and in approving a two-percent transfer tax.) One rationale offered for granting autonomy and authority to the Trust to execute real-estate transactions without approval of the Financial Town Meeting was so that potential willing sellers of property wouldn’t be discouraged from negotiating or entering into agreements with the Trust, for fear of the personalization or politicization of such transactions in the public arena of a Financial Town Meeting. There were also concerns about potential delays and lost opportunities that might result from the requirement.

In addition to its freedom from Financial Town Meeting approval of real-estate transactions, the Trust is also able to negotiate and execute transactions in executive session under provisions of the Open Meetings Act. In terms of accountability, do the LCACT’s considerable powers raise concerns about the propriety and priority of certain LCACT transactions? The scope of the Trust’s autonomy is of course an important question worthy of continuing debate and discussion.

Given the hoopla and rancor surrounding this dispute at the time, the original Charter Commission–wisely, in my opinion–deemed it useful and necessary to include language in Section 103 making clear that the LCACT was excluded from its provisions. Understandably, most of the members of the current Charter Review Commission may not have been familiar with these events from almost three decades ago. As best I can determine, though, the LCACT has not itself requested removal of the Section 103 language. And, according to the minutes available for both boards at the RI Secretary of State’s Open Government website, the Commission apparently did not meet with the full membership of the LCACT in fashioning their proposal to remove from Section 103 the language concerning the LCACT.

I don’t believe the current language of Section 103 is confusing, as was suggested at the April 18 meeting. Rather, I believe it has usefully made clear the Trust’s autonomy to execute real-estate transactions, as originally intended by its enabling legislation and FTM approval of that legislation.

Time marches on, though. As those of us familiar with some of those earlier debates and discussions fade from the scene, the very absence of the current exemption from Section 103 might lead subsequent residents and town officials to again raise the question whether LCACT transactions should be subject to FTM approval. As noted, this is a legitimate subject of debate, with some legally and politically complex dimensions. But I don’t think it can adequately be addressed by a pinprick amendment of the Home Rule Charter.

As a practical matter, it will likely make little difference if the proposed amendment of Charter Section 103 is approved by voters. However, I don’t believe the Charter Review Commission’s stated rationale–at least as I understand it–for amending Section 103 is legally or logically correct or necessary. I will be voting no on Question 5.

3. Additional LCACT history and background

Like any government entity, the LCACT’s purposes, functions, and purpose should be periodically reviewed and, if voters deem necessary, modified. Some further historical background about how the LCACT was created may provide useful context.

“The Little Compton Agricultural Conservancy Trust was established by the voters at the 1986 Financial Town Meeting,” notes the LCACT’s 2021 Annual Report. In fact, the 1986 vote was the culmination of several years of effort, organization, and public education by town citizens and town officials concerned about the pace and impact of land development in those years. The town benefited from the effectiveness of its General Assembly representation at the time. Representative Paul Suttell, a Republican, and Senator Michael Forte, a Democrat–both town residents–were respected legislators who succeeded in winning approval for the 1985 enabling legislation creating a municipal land trust funded by a local transfer fee or tax on real-estate sales. The General Assembly at the time passed similar legislation for Block Island (New Shoreham). Promoters of the two municipal land trusts looked for inspiration to Nantucket and Martha’s Vineyard, whose Massachusetts island communities had established similar agencies just a few years earlier.

The concept of a local tax dedicated to land conservation faced opposition from some Rhode Island interest groups, however. Now, 36 years later, Little Compton and Block Island remain the only Rhode Island municipalities for which the General Assembly has authorized a local transfer tax dedicated exclusively to land conservation. Even though the town’s 1994 adoption of a Home Rule Charter provided significant new authority for modification of the Little Compton’s “form of government” without legislative approval, Article 13 of the RI Constitution reserves to the General Assembly the authority to authorize local, municipality-specific taxes, which must also be approved by local voters. That was the case before Little Compton adopted a Charter and remains the case now.

The LCACT was created by law almost a decade before the Home Rule Charter was adopted. It’s safe to say that the Little Compton Agricultural Conservancy Trust has since been successful in its mission, as defined in its enabling law, i.e.:

. . . for the primary purpose of acquiring development rights to agricultural property within the town . . . [and] . . . as a secondary purpose the acquisition of agricultural property, and/or other property, or interest therein, to preserve open spaces, fresh and saltwater marshes, estuaries and adjoining uplands, groundwater recharging areas, land providing access to the ocean, land for bicycle paths and land for future public recreational facilities and use.

Since its inception,” according to its 2021 Annual Report, “the Trust has preserved or partnered with other organizations in preserving 2,162.58 acres of land,” or about 14.5 percent of Little Compton’s 14,850-acre total area (including inland water bodies). Other land conservation organizations and agencies, such as the Sakonnet Preservation Association, The Nature Conservancy, the Audubon Society of Rhode Island, and the RI Department of Environmental Management, have together protected almost the same amount of Little Compton land.

But a measure of controversy, skepticism, criticism, and confusion has continued to surround the existence and activities of the LCACT. Given the Trust’s substantial impact on the town and its future, this is neither surprising nor necessarily inappropriate. Over the years, I have been at different times both a booster and a critic of some of the Trust’s actions, decisions, and policies. As the Town Council’s “liaison” to the LCACT from 2018 to 2020, I summarized some of those concerns in an extensive October 2020 memorandum addressed to the Trust and the Council

Does LCACT property belong to the Town of Little Compton?

In section 2 of this post above, I have noted the controversy in the 1990s over whether LCACT real-estate acquisitions required Financial Town Meeting approval. Another ongoing matter of confusion and debate, directly relevant to the proposal to amend Section 103, is whether the real-estate interests acquired by the Trust, whether property held outright (in “fee simple”) or as partial interests such as development rights and conservation easements, are owned by the “Town of Little Compton.” In fact, I have heard members of the Charter Review Commission justify their proposed amendment of Charter Section 103 by asserting that LCACT properties are not owned by the Town.

I have recently heard variations of that argument emphatically offered several times, in somewhat different contexts. For instance, in a letter to the editor in the April 28, 2022 edition of the Sakonnet Times, Marilyn and Alan Hoffman, neighbors of property recently acquired by the Trust adjacent to Almy Creek, offered some observations about public access to the property by way of Oliver Lane, a private road. The Hoffmans’ letter was informative and articulate. I appreciate and respect their concerns as neighbors who are and will be directly affected by pedestrian and vehicular activity that may be generated as a result of public ownership of the Almy Creek property by LCACT.

In their letter, the Hoffmans wrote that “local residents have long had access to the beach at Town Way, including the former Ratcliffe property now owned by the Agricultural Trust (not by the town).” [Emphasis added.] They add that ongoing access “is not inconsistent with the fact that Oliver Lane is and will remain a private way, belonging to the adjacent owners, now including the Ag Trust.”

The Hoffmans’ assertion that the LCACT’s ownership of the Almy Creek property, including an interest in the “private way” Oliver Lane, does not constitute ownership “by the town” thus raises the fundamental question of whose legal and political interests the LCACT represents.

As noted, the other recent instances in which I heard a similar assertion were at a joint meeting of the Little Compton Charter Review Commission and the Little Compton Town Council on April 18 and a meeting of the Town Council on May 19, when the proposed Charter amendments were formally presented to and acted on by the Town Council. I attended the meetings as an interested citizen. At the April 18 meeting, as I understood their position, members of the Commission asserted that the Trust’s property holdings were not “Town” property, as defined in Section 103 of the Charter, because, those members said, deeds for those property interests were recorded in the name of the “Little Compton Agricultural Conservancy Trust” rather than the “Town of Little Compton.” It was argued that LCACT real-estate holdings were thus not “Town property,” for the purposes of the Charter. Therefore, as I understood the reasoning offered, it was not appropriate or necessary to include reference to the Trust in Section 103. (Section 103, to be fair, doesn’t specifically define the term “Town property.” But neither does the section include a specific requirement that ownership of such property must be exactly ascribed in deeds to the “Town of Little Compton.”) 

A Charter Review Commission member who spoke on behalf of the Commission on May 18 likewise described the Trust as “private” because, he asserted, the Assessor lists its properties in the name of the LCACT and not the Town. He was speaking extemporaneously, so perhaps he and the Charter Review Commission have a more fully developed rationale for the assertion that the Trust is a “private” entity. If so, I have not seen or heard it.

In the second of my posts on the question of what constitutes “Town Property,” I’ll enumerate the various reasons why I believe the LCACT is not in any way a “private” organization legally independent of the Town of Little Compton and the citizens who comprise the Town. ♦