NOTE: This post is the third in a three-part series titled “What is ‘Town Property’ in Little Compton? And who makes decisions about the ‘acquisition, … sale, mortgage, exchange, or lease’ of that property?” Part 1 is here. Part 2 is here.
These three posts may at times seem daunting, dense, and rambling. I post this installment to meet a personal deadline to complete this series as best I could before the November 8 election. These posts don’t represent the last word–mine or anyone else’s–regarding the issues they address.
5. Question 17: Little Compton Housing Trust (LCHT)
The Little Compton Charter Review Commission has recommended, and the Town Council subsequently approved, placing on the November 8 General Election ballot as Question 17 a proposed amendment of Section 710 (“Little Compton Housing Trust”).
Section 710 currently reads as follows:
Little Compton Housing Trust.
There shall be a Little Compton Housing Trust, authorized by ordinance of the Town Council and organized as a non-profit corporation, the purpose of which is to serve as an advocacy group for any person or group desiring to address the problem of housing affordability or housing for the elderly, those with special needs and families of low and moderate income. It shall oversee the implementation of the Affordable Housing Plan of the community. The Little Compton Housing Trust shall be subject to the provisions of Section 103 of the Charter.
The proposed amendment would amend the last sentence of the current section to read:
With the approval of the Town Council, the Little Compton Housing Trust shall not be subject to the provisions of Section 103 of the Charter. [emphasis added]
Thus, if approved by voters, the amended Section 710 would read as follows:
Little Compton Housing Trust.
There shall be a Little Compton Housing Trust, authorized by ordinance of the Town Council and organized as a non-profit corporation, the purpose of which is to serve as an advocacy group for any person or group desiring to address the problem of housing affordability or housing for the elderly, those with special needs and families of low and moderate income. It shall oversee the implementation of the Affordable Housing Plan of the community. With the approval of the Town Council, the Little Compton Housing Trust shall not be subject to the provisions of Section 103 of the Charter. [emphasis added]
The question that appears on the ballot, in my opinion, doesn’t exactly and accurately describe what the actual language of the proposed amendment says or how it may be applied or interpreted.
The “Reason for the proposed amendment” provided by the Charter Review Commission, as included in the excerpt from the Voter Information Handbook in the illustration above, states that the Housing Trust “could petition the Town Council, on a case by case basis,” for approval of property acquisitions without Financial Town Meeting (FTM) approval, as Charter Sections 710 and 103 currently require. That’s not exactly what the actual language of the proposed amendment says. Rather, it reads: “With the approval of the Town Council, the Little Compton Housing Trust shall not be subject to the provisions of Section 103 of the Charter.” Nothing about petitioning the Council. Nothing about a “case by case basis.” The literal language of the amendment would appear to empower the Town Council to provide the Housing Trust a blanket exemption from the provisions of Section 103 at any time.
In any case, the rationale offered to voters by the Charter Review Commission doesn’t really explain the specific reasons for the proposed amendment that I have heard offered by members of the Charter Review Commission, Housing Trust, Town Council, and others at various meetings. Such reasons have included: 1) possible delays in and lost opportunities for executing property transactions while awaiting the voters’ decision at an annual FTM; 2) the uncertainty of voter approval; 3) the cost of staging a Special Town Meeting for a more timely vote; and 4) the challenge and uncertainty of attaining the Charter-mandated quorum (5% of registered voters) at such a Special Town Meeting. (There are rejoinders and counterarguments to these concerns, which I won’t detail here.) Another concern raised is the apparent double standard applied to the Agricultural Conservancy Trust, which is expressly exempted from requiring FTM approval for real-estate transactions, while the Housing Trust is expressly and currently required by the language of Section 710 to do so.
The Housing Trust, over the course of the 17 years of its existence, as best I can tell, has never really been close to negotiating for or acquiring a property or other real-estate interest for an affordable-housing project. Thus, it has not had occasion to seek FTM approval. I believe that this paucity of concrete activity and results is in large part the result of the problematic legal and political structure of the LCHT, as well as the limited funding the town has provided since 2005 for its operations and mission.
The proposed amendment, in my opinion, doesn’t really address more substantial and important issues regarding the powers, authority, and effectiveness of the LCHT as an instrument for promoting and implementing a broader and more affordable range of housing opportunities in Little Compton.
Brief history of the LCHT
The political and legal origin stories of the Agricultural Conservancy Trust and the Housing Trust are quite different. Town Solicitor Richard Humphrey made this point in a letter to the Charter Review Commission earlier this year, in response to the Commission’s query about how Section 103 applies to the Agricultural Conservancy Trust and the Housing Trust respectively.
“The AG Trust was created by the joint efforts of the Rhode Island General Assembly, the Little Compton Financial Town Meeting(s), and the Little Compton Town Council,” Mr. Humphrey explained. “Townspeople were actively involved.”
“Whereas the Housing Trust, to my knowledge, has been the product of the Town Council, and it has been discussed at Financial Town Meetings, and meetings of the Charter Review Committee,” he continued. “There was also a state agency that helped the town develop the Housing Trust. I cannot recall the name of that state agency.”
“In short,” he concluded, “the AG Trust and Housing Trust are different on many levels. . . . I do not recommend that the Charter Review Commission move to amend or change Section 103.”
As Mr. Humphrey explains, unlike the Agricultural Conservancy Trust, the Little Compton Housing Trust was not created by Little Compton-specific state law and vote of the Financial Town Meeting. Rather, it was established in 2005 by ordinance enacted by the Town Council (including three of its current members; Mushen, Golembeske, Mataronas). Moreover, the Council’s action was not prompted by local initiative and grassroots activity, as had been the case with the creation of the LCACT. Rather, the Rhode Island General Assembly required and set a deadline for all Rhode Island municipalities to revise the Housing Elements of their Comprehensive Plans, partly to address the requirements of the Rhode Island Low and Moderate Income Housing Act (R.I.G.L. § 45-53-3). In order to do so, the town retained attorney Andrew Teitz and planner Sam Shamoon (who had advised the town a decade earlier in drafting the town’s Comprehensive Plan) to develop a new affordable housing program that would pass muster with the state Department of Statewide Planning. In consultation with the Planning Board and with approval of the Town Council, the Housing Plan adopted and included in the Comprehensive Plan at the time, as well as the ordinance additions and amendments required to implement that plan, called for the establishment of the Housing Trust. (See Appendix B at the end of this post for full text of Town Code Section 2-9, authorizing the LCHT.)
Part of the Shamoon/Teitz plan, as provided in town ordinance Section 2-9.1, called for the Trust to be established as “a non-profit corporation” registered with the Rhode Island Secretary of State. (Personally, I have never understood how the Town Council can unilaterally authorize by ordinance the creation of a non-profit corporation legally separate from the Town. If it can do so for the operation of a corporation to own and operate real-estate for the purpose of providing housing, why can’t it create such corporations for the purpose of, say, operating gas stations, stores, a Harley Davidson dealership, or other businesses or services?)
The Housing Trust some years ago duly registered as a Rhode Island non-profit corporation and renews its registration annually. But, as best I can determine, the Trust does not regularly produce any financial statements documenting the financial status of its operations, which have been very modest in scale in any case. The LCHT, as a registered non-profit corporation, appears to be an essentially empty legal vessel.
At the time of its creation in 2005, it appears that attorney Teitz conceived the Trust’s legal structure expressly to circumvent the then-existing Charter Section 103, requiring FTM approval for purchases of Town property. At the May 19, 2005 public hearing on the proposed ordinance to create the Housing Trust, according to the hearing minutes, Teitz described in detail the “two models” he considered in drafting the ordinance:
One model would create a Trust that served as an “arm” of the Town where staffing would be with Town employees. The model would be a more independent model where the formation of the Trust and its by-laws would be established by the Town Council. The Trust would then be an independent agency with oversight to be done by the Town Council through the appointments and amendments to the by-laws. With this type of set up there would not be a need for the Housing Trust to obtain Financial Town Meeting approval each time it wanted to transfer or lease a property under its jurisdiction.
A member of the public [who might possibly have been me; I don’t recall] asked if there was a requirement to obtain legislative approval for this Housing Trust. Anwer [from Teitz]: Because this Trust will not be taxing anyone there is no need to establish through enabling legislation and possibly relinquishing some of the local authority to the General Assembly.
In my opinion, the provisions of the ordinance adopted in 2005 in the form of Mr. Teitz’s second model and the Charter provision approved by voters the next year have left the Housing Trust in something of a confused legal and political muddle, which have hampered its operations and effectiveness.
On paper, the Housing Trust appears to have considerable authority, including the acquisition of property for housing. In fact and in practice, though, the body has proven to be somewhat ineffectual and under-resourced in meeting the plan’s ambitious housing goals. Indeed, Little Compton routinely ranks dead last among all Rhode Island municipalities in meeting the state law’s target that 10% of the town’s housing be “affordable,” as a percentage of available year-round housing. “‘Affordable’ units,” according to the state Office of Housing and Community Development, “are required to have a subsidy (State/local), with restrictions to assure they will remain affordable for a minimum of 30 years.” The 2022 Housing Fact Book published by HousingWorksRI at Roger Williams University provides comprehensive and up-to-date information and statistics about the status of Rhode Island’s housing market, statewide and by municipality.
For one thing, the Housing Trust, unlike the LCACT, throughout most of its history has not had a dedicated source of revenue, as has been the case with the lucrative transfer fee that funds the LCACT. Moreover, the FTM has generally provided nothing or a pittance in the form of an annual appropriation for the Trust’s operations. This situation began to change four years ago, when the Town Council, by ordinance, dedicated a portion of building permit fees to a fund for the use of the Trust. Only at the 2022 Financial Town Meeting, though, through the initiative of Town Council member Andrew Iriarte-Moore and the members of the LCHT, did voters for the first time grant the Trust spending authority for and access to the full balance of funds available in the fund, which at present total approximately $222,000. Even at that, the accumulated balance in and income generated for that trust fund represent a small fraction of what the LCACT regularly receives. Indeed, the total proceeds deposited to the Housing Trust Fund are less than the transfer-fee proceeds the LCACT has collected in some single months in recent years.
In 2006 voters, by recommendation of the Charter Review Commission at the time, of which I was member and chair, the Town Council approved submitting to voters a Charter amendment to add what is now Section 710, codifying in the Charter the responsibilities and authority in essentially the form the Council had enacted by ordinance. However, the Council acted to amend the Charter Review Commission’s draft proposal for Section 710. At a July 6, 2006 meeting, the Council acted on and amended the Charter Review Commission’s recommendation. With regard to the addition of a new section for the recently established Housing Trust, the Council’s minutes read as follows:
The Town Clerk and the Solicitor mentioned that a sentence that stipulated that the LCHT be subject to the provisions of Section 103 of the Charter has been inadvertently omitted from the proposal and should be replaced. None of the Councillors has a problem with replacing this sentence.
The minutes document that the Council then voted to add what is the current final sentence of Section 103, i.e., “The Little Compton Housing Trust shall be subject to the provisions of Section 103 of the Charter.” Thus, as provided by the amended Sec. 710 approved by voters, the Housing Trust–unlike the LCACT–is currently required to seek FTM approval for acquisition of property or other real-estate transactions for the purposes of creating housing alternatives. The respective provisions of the LCHT ordinance and the LCHT Charter section in regard to this requirement appear to be inconsistent and in conflict. The Council’s July 2006 decision to add the Section 103 language to the proposed Housing Trust Charter amendment approved by voters that November appears to have been directly at odds with the language and intent of the ordinance creating the Trust that the Council had previously adopted in May 2005, pursuant to attorney Teitz’s advice.
Members of the Housing Trust have understandably felt constrained by Section 103, which appears to represent a double standard by comparison with the authority and autonomy of the LCACT. In any case, since its inception in 2005, 17 years ago, the Housing Trust has not to the best of my knowledge independently created a single unit of new housing. The handful of legally qualifying affordable housing units in Little Compton–nine by official accounting–have been created through private initiative by town residents Tom and Josie Arkins and the non-profit Church Community Housing Corporation.
Should the LCHT have authority to acquire property without Financial Town Meeting approval?
One does not have to be a total cynic to wonder whether the current requirement for FTM approval of LCHT property transactions is just another NIMBY (“Not in my backyard”) procedural hurdle, which in the guise of local democracy can empower vocal opponents at FTM to block affordable housing initiatives.
On the other hand, the current proposed amendment would strip from FTM voters a current right they enjoy, but have never had occasion to exercise, and delegate it to five Town Council member–or actually a majority of those five. Striking a balance between accountability and efficiency is of course a perennial challenge at all levels of government.
But there’s a blunter political difference between the LCACT and the LCHT, perhaps worth taking into account in considering whether to effectively extinguish voters’ current rights and authority to approve LCHT property transactions.
The cause of land conservation has, for the most part, proven to be politically popular in Little Compton in recent decades. The town’s initiative in the 1980s to create the LCACT and approve a transfer tax is one significant demonstration of local support for conservation, as is the generous funding and membership support non-profit conservation organizations such as the Sakonnet Preservation Association (SPA) and The Nature Conservancy (TNC) have received in Little Compton. (For my part, I have actively participated in conservation efforts as a former SPA board member and president. My wife currently serves on the SPA board.)
For a variety of reasons, though, there is little evidence that the cause of “affordable housing” has had significant public support in town. As in other communities, even those citizens who express general support for that cause, may be put to the test when the question arises about where such projects might be sited. I don’t exclude myself in this regard. Indeed, it is sometimes remarked that everyone is in favor of “affordable housing” until it’s built next door to them.
In my experience, going back to my participation in the early 1990s on the “Housing Element” subcommittee that contributed to drafting a version of the town’s Comprehensive plan, the phrase “affordable housing” is, in practice, a conversation stopper. Each of us associates different meanings and prejudices with the phrase. As I have learned from long experience in town, the result is that it becomes very difficult to initiate and sustain a substantive, productive dialogue about the subject. Many town officials and citizens are, in effect, talking different languages though using the same words.
The current membership of the Housing Trust has shown some renewed initiative in recent years. The members are Patrick Bowen (President), Andrew Iriarte-Moore (Treasurer and Liaison of the Town Council), Isabel Mattia (Secretary), Robert R. Rottman, Susan Bodington, Claudia McNeil, and Amanda Nickerson Toste:
- The LCHT has recently conducted a survey of housing issues, with the assistance of HousingWorksRI, the results of which Trust members say will be published soon.
- As noted, as of this year the LCHT secured direct access to and discretion over the full balance–approximately $222,000 at present–available in a Housing Trust Fund created by Council ordinance in 2018, when a percentage of building permit fees was dedicated to that fund.
The Housing Trust has more work to do, however. A big part of their task, I believe, involves building public confidence that it can develop or facilitate new approaches to creating housing alternatives needed in Little Compton — and do so in a manner that can win significant community support.
6. LCACT and LCHT: “Two sides of the same coin”
Has the sentiment among Little Compton residents to support new housing alternatives changed in the recent few years, as real-estate prices have soared? Whatever the answer to that question, the impact of high real-estate prices on the fabric and future of the community can no longer be ignored.
I believe that public discussion and decision-making regarding the respective roles and authority of the LCACT and the LCHT should not and cannot be addressed separately. A more comprehensive public deliberation is needed, involving a wider array of citizens and town officials.
I know from sometimes frustrating experience in our small town that it can be a challenge to find or organize an appropriate forum for such a public discussion. Many of us bring our own personal prejudices, experiences, and public reputations to such efforts, which can understandably induce skepticism and suspicion about the motives and intentions of fellow participants. Town boards that may sponsor or preside over such forums–whether the Town Council, the LCACT, the LCHT, or the Planning Board, as examples–may also be intimidating to some citizens, who may not feel they are able to participate on equal terms with officials.
Another approach to public discourse, which has been implemented occasionally in Little Compton, is to retain a professional facilitator or consultant to organize a forum or process to hash out and seek at least some common ground regarding knotty public issues. My own experience, while on the Town Council, involved the Municipal Resilience Program, sponsored and funded by the Rhode Island Infrastructure Bank. This program entailed the organization and moderation of a workshop involving about 25 town officials and citizens, who in 2020 convened to identify both the challenges facing the town as a result of climate change and some possible response to those challenges. Originally planned as a larger, daylong, in-person program, the length of and the number of participants in the process were truncated by COVID conditions. A smaller, shorter session was conducted remotely by Zoom. The process was efficiently and fairly facilitated by Infrastructure Bank staffers and an experienced TNC team which has led similar programs in scores of other municipalities.
Nonetheless, the Municipal Resilience Program workshop resulted in a substantial document identifying a considerable number of concrete issues and possible responses, some of which are currently being implemented or planned with the support of a substantial grant from the Infrastructure Bank.
Some may raise objections about the potential cost of retaining professional assistance for such exercises. However, the costs of delay and foot-dragging–both to individuals and to the community as a whole–may pale next to the possible benefits that can be gained from such opportunities for community-wide engagement.
In 1994–almost thirty years ago–I wrote a letter to the Sakonnet Times, a local weekly newspaper, opposing a proposal by a Little Compton citizen to cut the LCACT’s transfer tax in half, from 2%, the rate adopted at the trust’s inception in 1986, to 1% at the town’s annual Financial Town Meeting. The proposal was overwhelmingly rejected by voters. After re-reading that letter recently, I concluded that I wouldn’t really have to amend it substantially, if at all, today. Here’s an excerpt from that letter:
The challenges of open space preservation and housing affordability represent two sides of the same coin. Especially during a period of booming markets, such as the mid-1980s, high real estate values in our attractive and relatively undeveloped town provide strong incentives for landowners to sell their developable property at high prices. We in Little Compton have addressed the challenge of open space preservation in an aggressive and creative manner by creating the trust. The way to address the challenge of housing affordability is by taking equally aggressive and concrete measures to create affordable housing opportunities–not by attacking or limiting the trust.
It’s possible that these two objectives–open space protection and affordable housing–may conflict. But it’s also possible that they can be addressed in a simultaneous and complementary fashion. Other private and public land trusts throughout the country have demonstrated ways of creating permanent affordable housing consistent with the rural character of communities. If we were truly serious about enhancing housing affordability in Little Compton, we would ask the General Assembly to empower the trust to use some of its funds for that purpose. (In fact, as a member of the Housing Element of the Comprehensive Community Plan I made such a proposal, which was with a lukewarm response.) In Vermont, as an example, a state-funded housing and conservation board splits its resources fifty-fifty to fund local open space and housing initiatives. It also has been suggested that properties financed by qualifying housing-assistance agencies, such as RIHMFC, be exempted from the transfer tax.
As a realist, I don’t expect that the town will soon adopt any such housing opportunities. (Some day we may have to, though, in order to comply with the state’s affordable-housing law.) But if we simply undermine the trust’s proven and effective open space protection efforts, we will accomplish virtually nothing to assure the long-term affordability of housing opportunities for Little Compton residents, no matter their age.
The Martha’s Vineyard Land Bank offers a more recent example of how some communities have attempted to coordinate their conservation and housing initiatives. That municipal land trust has developed an extensive policy document describing its policies for working with other organizations and agencies to identify means of cooperation for identifying and acquiring properties suitable for affordable housing. I don’t know how successful that policy has been in practice, but it does provide a model and food for thought. That policy is available here: Affordable Housing – Martha’s Vineyard Land Bank (mvlandbank.com)
Little Compton has made uneven progress on the related challenges of land conservation and housing alternatives since 1994. We’ve got more work to do, even as the economic and political environment has intensified and grown in complexity as time passes.
7. Current issues involving the possible application of Charter Section 103 (“Town Property”): South Shore Beach; Municipal Solar-Energy Contract
Questions regarding who approves transactions and decisions about the disposition of Town property have recently arisen in pending matters unrelated to the activities of the Agricultural Conservancy Trust and the Housing Trust.
A. Sorting out property interests at South Shore and Goosewing beaches: The Beach Commission and the Town Council have also been involved in recent deliberations involving possible real-estate transactions pertaining to property owned by the Town.
For a year or more, The Nature Conservancy and the Beach Commission have discussed an agreement that would attempt to resolve long-standing uncertainties and disagreements about ownership of the eastern section of South Shore Beach adjacent to Tunipus Creek, the boundary between South Shore Beach and Goosewing Beach, and access across South Shore Beach for Nature Conservancy vehicles and personnel to TNC’s Goosewing Beach property.
The history of these boundary and access issues is a complicated one, reaching back literally centuries. By June of this year the Beach Commission and TNC negotiated two draft agreements: 1) “Boundary Line Agreement and Grant of Easements”; and 2) “Goosewing Beach Stewardship Vehicles Parking Lease.” The agreements were presented to the Town Council in July for its consideration and possible approval. At an August 4 meeting of the Council, I presented a letter in which I raised the question whether two sections of the Home Rule Charter applied to the proposed agreements. I suggested these agreements may well require Financial Town Meeting approval. As I outlined in Part I of this series, Section 103 (“Town Property”) of the Charter requires Financial Town Meeting approval of a broad variety of real-estate transactions involving Town-owned property. This Charter provision has been invoked several times since the adoption of the Charter, including consideration of cell-phone tower leases at the Transfer Station and an easement granted to The Nature Conservancy in 2010 across Town-owned playing fields to access Dundery Brook Trail on TNC property.
As it happens, Charter Section 704 (Beach Commission) also includes specific language calling for “Town Meeting” approval of certain real-estate transactions involving Town-owned “beach property.” Section 704 A. reads as follows:
The Commission shall have the authority to manage, regulate and control all public beaches owned by the Town. Any acquisition of beach property by the Town or sale or lease thereof, or any granting of an easement or right of way over any such property, shall, exclusive of acquisitions by the Little Compton Agricultural Conservancy Trust as hereinafter set forth, require consultation with the Beach Commission and approval by the Town Meeting. [emphasis added] The Town Council shall have the power to enact such ordinances as the Commission shall request or as the Council may deem necessary for the policing of said public beaches, in aid of the management, maintenance and improvement of the same, and for the regulation of all travel by the public to, from and over such beaches, and to prescribe penalties for violation of such ordinances.
As I wrote to and told the Council on August 4, “The very terms of the [two] agreements appear to fall squarely within the four corners of the provisions of and requirements for Town Meeting approval required by the above-cited Charter sections [103 and 704 A.].”
At the Council meeting, Council member Gary Mataronas, while commenting that he supported the Town Meeting rights of voters, also raised concerns about the cost of a special town meeting, if required, and the challenge of attaining a Charter-mandated quorum (five percent of registered voters).
I also presented my concerns at a meeting of the Beach Commission, who responded with respectful attention and thoughtful responses. I think it’s safe to say, though, that some members of the Commission, as well as John Berg of The Nature Conservancy, whom I have known for many years and with whom my wife and I worked to convey to TNC a conservation easement on property we formerly owned adjacent to Quicksand Pond, were more than a little frustrated that I had raised the question of the need for FTM approval.
At the August 4 Town Council meeting, as recorded in the Council’s minutes, “Richard S. Humphrey, Town Solicitor stated that he has reviewed both documents and expects to receive further documentation from Mr. Berg. He will continue his review, meet with the Beach Commission and
return to the Council at a future date with a legal opinion on the subject documents.” Since that time, however, more than three months ago, although the appearance of Mr. Humphrey has been included on its agendas, he has not attended any Beach Commission meeting. The proposed agreements between the town and The Nature Conservancy, and the question of whether the agreements require FTM approval, have not been discussed at a meeting of the Beach Commission and the town’s lawyer, nor, to the best of my knowledge, has Mr. Humphrey rendered any legal opinion to the Town Council concerning the matters.
I should say, as I did at both the Council and Beach Commission meetings, that based on the agreements in the form I have seen, they seem meritorious and worthy of approval by voters. However, until someone can persuasively explain otherwise, it appears that several Charter sections may require that the agreements should be presented to voters for approval at Financial Town Meeting.
B. Does a 20-year agreement to purchase solar-energy from a Warren RI facility require FTM approval? The Town Council, Town Administrator, and School Department Business Manager have recently been involved with a solar-energy company in negotiating and approving several agreements to enter into a 20-year arrangement by which the Town would purchase solar-generated electrical power net-metering credits from a facility in Warren, Rhode Island owned by a limited liability company (LLC), TPE RI WA1, LLC. The projected reduction in electrical costs for the town’s municipal buildings have been projected to be about 35%. The plan, which is not a simple one to decipher, appears to be beneficial to the Town, financially and environmentally.
The two agreements take the form of a “Credit and Purchase and Sale Agreement” and a “Leasehold Easement Agreement.” The lengthy and detailed agreements are available in the Town Council’s document packet for its October 20, 2022 meeting, pages 16-60, available here.
The Leasehold Easement Agreement is a 20-year agreement between the Town and TPE RI WA1, LLC “to provide the Grantee [i.e., the Town of Little Compton] with control of the premises,” described in the agreement as a solar-farm comprising several parcels totaling approximately 23 acres in Warren. A September 30, 2022 email to town officials from Walter Gray, Program Manager for Power Options, a company coordinating the project, explains that the leasehold easement “is necessary due to RI law around net metering which requires the offtaker to have an interest in the property which doesn’t really come with any significant rights or responsibilities.” I don’t know whether Mr. Gray is an attorney.
Again, despite Mr. Gray’s terse assurances, the question arises whether the Leasehold Easement Agreement requires FTM approval under the provisions of Charter Section 103, which (as yet another reminder) provides that
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, be approved by the Financial Town Meeting. [emphasis added]
At the October 20 Council meeting at which the agreements were considered, Council member Patrick McHugh asked whether the Leasehold Easement Agreement required FTM approval pursuant to Section 103. The Council minutes for that meeting summarize the discussion and outcome as follows:
Both the Credit Purchase and Sale and the Leasehold Agreement were reviewed for the Councilors by the Solicitor. He noted that he gave a written opinion to the Town Administrator that both documents could be executed and did not require a Financial Town meeting vote (this document was not submitted to the Council, but will be by the Administrator for the record). Councilor McHugh expressed his concern with Section 103 of the Home Rule Charter requiring a Financial Town meeting for real property transactions. He was told that the purchase is of energy financial credits, not real property. The Solicitor stated that he does not believe Section 103 applies to this case, but if at some point it is determined to apply to this case then the Council could have the decision ratified at a future Town Meeting. He further noted that the Leasehold is for purchasing product not purchasing property.
The Council then unanimously approved execution of the two agreements.
* * *
A fundamental question Little Compton voters and residents may wish to contemplate is whether the Town Council in particular, as well as other town boards and officials, will comply with the letter and spirit of the Home Rule Charter in seeking voter approval of these and other real-estate transactions, or if those officials will seek ways to actively and knowingly circumvent such legal requirements. ♦
Appendix A: Links to municipal land trust websites
There are really only three other Rhode Island and Massachusetts municipal land trusts funded by a transfer tax that are comparable to the LCACT: the Block Island Land Trust, Nantucket Land Bank, and Martha’s Vineyard Land Bank. All were created in the mid-1980s. Their tax rates, exemptions, and tax-collection procedures differ somewhat, so it is not possible to draw an exact apples-to-apples comparison among the four concerning their respective effective tax rates. I include below links to the websites of the four organizations, at which links are available to the enabling legislation and other information and documents concerning each:
Little Compton Agricultural Conservancy Trust
Affordable Housing – Martha’s Vineyard Land Bank (mvlandbank.com)
* * *
Appendix B: Town Code Section 2-9 (“Little Compton Housing Trust”)
§ 2-9
LITTLE COMPTON HOUSING TRUST.
§ 2-9.1
Authorization and Purpose.
[Ord. 5/19/05]
There is hereby authorized a nonprofit corporation (to be duly incorporated by the Rhode Island Secretary of State), to be called the Little Compton Housing Trust (hereinafter Housing Trust), the purpose of which is to serve as an advocacy group for any person or group desiring to address the problem of housing affordability or housing for the elderly, those with special needs and families of low and moderate income. The Housing Trust shall generally oversee the implementation of the Affordable Housing Plan of the community, shall monitor long term housing affordability for the community, and advise the Town of Little Compton in its efforts and support the Town’s goal of diversifying the housing stock. The Housing Trust shall also advise the Town in its amendment of the Affordable Housing Plan.
§ 2-9.2
Authority and Bylaws. [1]
[Ord. 5/19/05]
The Housing Trust shall have the authority to receive state and federal grant money, contract with housing agencies such as Rhode Island Housing and Church Community Housing Corporation, contract for consultant services, and establish a Housing Trust Fund for the community. The Housing Trust shall also have the authority to receive real estate, by any manner including grant, gift, bequest or purchase, and to convey or lease real estate and/or buildings, so long as such conveyances shall be in keeping with the purposes of the Housing Trust. The Housing Trust shall be governed by a Board of Directors (also known as Board of Trustees) which shall adopt Bylaws governing the conduct of the affairs of the Housing Trust, provided that such Bylaws and any subsequent amendment thereto shall be subject to the approval of the Town Council.
[1]
Editor’s Note: The Bylaws of the Little Compton Housing Trust were amended by an ordinance of February 9, 2006. A copy of this ordinance may be found on file in the office of the Town Clerk.
§ 2-9.3
Board of Trustees; Term; Officers; Subcommittees; Vacancy.
[Ord. 5/19/05]
The Housing Trust shall be administered by the Board of Trustees, consisting of seven trustees appointed by the Town Council. A minimum of four of the trustees shall be electors of the Town of Little Compton. One of the trustees shall be a member of the Town Council, selected by the Town Council for a two-year term in November of the year of the election of Town Council members. The remaining trustees shall be appointed for five year terms, except the initial appointments of the trustees shall be as follows: two trustees for five years, two trustees for three years and two trustees for two years. Trustees may hold any other federal, state, or municipal office. The trustees shall elect a president, treasurer and secretary for one year terms beginning in the month of July. The Housing Trust shall organize such subcommittees as it shall deem necessary for the performance of its duties. In the event of a vacancy, interim appointments may be made by the Town Council to complete an unexpired term. At the expiration of a term, the trustees shall present to the Town Council a list of not less than three qualified candidates for each vacancy, and the Council shall take into consideration these recommendations when making appointments. Trustees may be reappointed without limitation.
§ 2-9.4
Meetings and Records.
[Ord. 5/19/05]
Decisions of the trustees shall be by majority vote of those present and voting, and no business shall be transacted without four members present. The Housing Trust shall comply with all provisions of state and local law regarding Ethics Commission reporting; open meetings and access to public records. The trustees shall keep accurate records of their meetings and actions and shall file an annual report which shall be printed in the annual Town report.