Brief History Of Charlestown’s Elected Planning Commission

Charlestown is unique in being the only municipality in Rhode Island that has a Planning Commission elected by the voters. Being unique is certainly not a bad thing nor is it illegal. In many Connecticut towns, members of the Planning and Zoning Commissions are elected. What we do in Charlestown may be unique in Rhode Island, but it isn’t that unusual.

In 1980, Charlestown’s voters approved our first Home Rule Charter; the Charter was ratified by the General Assembly and signed into law by the Governor in 1981. The 1981 ratification of the Charlestown Town Charter is a specific statute entitled the “Charlestown Charter Ratification Act.”

The Home Rule Charter specified that the Planning Commission was to be composed of five regular members and two alternate members, all elected in a general election. These provisions have remained in our Home Rule Charter ever since. These provisions placed in the 1980 Charter have resulted in 41 years of elected planning commissions, members of which have been voted into office in 21 elections. The results of each of these elections have been certified by the state.

However, in 2008, Attorney Margaret Hogan as a member of the Charter Review Committee wrote a legal memorandum; in this memorandum, Ms. Hogan stated that Rhode Island law requires appointment rather than election of Planning Commissions.

In response, Charlestown’s Town Solicitor at the time, Robert Craven, wrote a 10-page advisory opinion. This is his conclusion:

Thus, having reviewed this question from every relevant perspective, I have come to the unmistakable conclusion that the current practice of electing planning commission members is not in violation of Rhode Island law.  On the contrary, election of members is permitted by the Rhode Island Constitution, the Rhode Island General Laws, and case law.  The plain and ordinary meaning of the state planning enabling legislation is that planning boards and Town comprehensive plans are to be established.  In no way and at no time did the Rhode Island Legislature purport to prescribe a defined method of establishment.  The Charlestown Town Charter is consistent with the intent of the Legislature in that it has provided for the establishment of a planning commission and the creation of a comprehensive plan for land use and has left the appointment method to the municipalities.”

Fast forward to 2011, when the question was raised again in a challenge filed in the RI Superior Court. Peter Ruggerio, who was the Solicitor in 2011, wrote a legal memorandum in support of the composition of Planning Commission membership. His conclusion is as follows:


It is clear and unambiguous that the General Assembly’s passage of the ratification act and its signature by the Governor made this law a specific statute exempting Charlestown from the general scheme for the composition of a local planning board or commission. The intent of the General Assembly by passage of the ratification act was to give effect to all the terms and provisions of the Charlestown Town Charter—including the election of Planning Commission members. The ratification act was passed by the General Assembly and became law after the establishment of the general scheme in 1972 regarding the composition of a local planning board or commission.  Accordingly, the only reasonable interpretation of the General Assembly’s intent and effect of the ratification act as it concerns the Charlestown Planning Commission’s electoral form of composition was to exempt them from the general scheme established in 1972.  Accordingly, the Charlestown Planning Commission is validly composed.”

Now fast forward to 2023. The July 24, 2023, Charlestown Town Council agenda included the claim that our Planning Commission members are illegally elected as if it were fact—despite the original Charter being ratified and the legal advice by two solicitors given years apart, that the Charlestown Planning Commission is validly composed.

The reason given for the July 24 agenda item was that this issue has come up over the years and that the Charter Revision Committee has requested that the Town Council seek a Declaratory Judgment from the court in order “to resolve this matter once and for all.”  Seeking a Declaratory Judgment is an action to overturn the elected Planning Commission; it is not just an answer to a question. It is an action with serious legal consequences.

Councilor Carney stated the request was made by the Charter Revision Committee. At the June 13 Charter Revision Committee meeting, the Committee discussed being extremely displeased with current Planning Commission members’ decisions—decisions that had sought to avoid the creation of highly constrained lots and that had sought to protect groundwater and other natural resources. The Committee also voiced that the Planning Commission should serve at the pleasure of the Town Council rather than being elected by the voters. Councilor Carney said she would “prefer to get a Declaratory Judgment [from a court] rather than leaving it to our lawyer to opine on.”

Then, at the July 11 Charter Revision Committee meeting, Councilor Carney relayed the Town Solicitor’s advice that a court would not consider a Declaratory Judgment on this issue because there was no case or controversy. Commission members Hogan and Graziano, who are both attorneys, then gave their own legal opinions that there was “controversy” because the commission didn’t want to put a question on the ballot that might lead the voters to once again vote for an elected Planning Commission that might be illegal. The committee members and Councilor Carney decided to take Attorneys Hogan and Graziano’s advice and ignore the Town Solicitor’s advice.

This matter has been brought up by the same people, using the same legal arguments, and using the same vehicle, a Charter Revision Committee, in 2008 and 2023. Saying something over and over again doesn’t make it true. The matter should have been resolved in 2008. It was confirmed again in 2011 when the legal memorandum from the Town Solicitor was filed in Superior Court. Now, in 2023, if those advisories aren’t convincing enough, then one only needs to look to the very recent four-to-one Supreme Court ruling upholding a Charter provision in a neighboring town.

Saying that all seven members of the current Planning Commission are illegally elected would actually overturn the results of three elections (2018, 2020, 2022). It’s also clear from the comments made during Charter Revision Committee meetings that Attorney Hogan and Councilor Carney believe it’s possible to overturn the results of all 21 elections, which means overturning well over 100,000 votes.

Councilor Carney has frequently stated the number of votes she received in the election and characterized those voters as being disenfranchised whenever she couldn’t get the agenda exactly as she wanted it. In 2020, I was elected by 2701 voters, nearly 300 more than Councilor Carney received in the same election. Those 2701 voters are disenfranchised much more by overturning an election and canceling their votes than by Councilor Carney being frustrated that she cannot get her way immediately.

In addition to thwarting the will of the voters, any action to seek a Declaratory Judgment would violate the rights of the seven current Planning Commissioners. We have been elected by the voters to serve our terms and to do the duties prescribed in Rhode Island law, in Charlestown’s Home Rule Charter, and in our Zoning Ordinance. We have been elected to these positions, some since 2018, and have taken the oath of office. There is no basis for our removal.

Having flawed legal arguments doesn’t stop someone from going to court. If the Town Council were to go to court, they would have access to the Town’s treasury to hire their own lawyer and fund the suit. If the Planning Commission did not have legal representation, the court would only hear one side of the argument. If a judge were to take the case and if the judge were then presented with a one-sided case, perhaps the Town Council could win. Having the Planning Commission declared illegally elected would cause the entire Planning Commission to be immediately removed from office. I would certainly do my best to make sure the Planning Commission was not unrepresented.

At the July 24 Town Council meeting, the town’s current Solicitor, Peter Ruggiero, recused himself from the discussion. His reason for recusing was read: “A Declaratory Judgment matter seeks to undermine a provision of the Charlestown Town Charter providing for the election of Planning Commission members. As Town Solicitor, I have a legal duty and obligation to defend the Charter Provisions of the Town.”

At the beginning of the July 24 Town Council meeting, Town Councilor Susan Cooper expressed her strong opposition to going to court against the right to elect the Planning Commission and said the item should not even be on an agenda because there is no “case or controversy”—a requirement for a Declaratory Judgment. Councilor Stephen Stokes also did not want to go to court and felt this was something the voters should decide. Another Councilor, “Rippy” Serra, was absent. Councilor Grace Klinger clung to the idea of going to court until the end of the meeting and Councilor Carney argued the merits of going to court throughout most of the meeting.

A tie vote would fail, and it was clear early on that Councilor Carney did not have enough votes to pass a motion so there was a suggestion to continue the meeting to a date in late August. If Mr. Serra could be convinced at that later date, there might be the needed three votes to go to court. At the end of over an hour and a half of testimony against going to court to overturn election results, the Council voted unanimously not to pursue a Declaratory Judgment.

A video of the meeting is available at the town’s website, and the discussion of the town going to court against itself starts a little after 21 minutes into the video.

In 21 different elections, voters have decided who should represent them on the Planning Commission. Because some do not agree with these results, they would resort to going to court against their own Home Rule Charter—the Charter they took the oath of office to uphold.

Why did that first Home Rule Charter mandate an elected Planning Commission? Then-solicitor Robert Craven sought an answer to that question in 2008 when he interviewed long-time residents. He found that the answer lay in the proposal to build a nuclear power plant that was defeated in 1979.

At that time there was great mistrust of government when it came to matters relating to the protection of Charlestown’s natural resources and way of life. Since the legislature had recently mandated that municipalities create planning commissions to deal with such land use matters, the original Charter Review Commission thought that electing a planning commission would give a greater, more effective voice to the citizenry.”

And for over 40 years an elected Planning Commission has given a greater, more effective voice to the citizenry.

Without an elected Planning Commission, the issue of land use would not be so prominent in Charlestown’s elections. Town Councils run on a very broad range of issues; in fact, voters might not even know each Town Council candidate’s land use ethic.

But planning is all about land use, about issues of conservation and development. There are many things in which the Planning Commission does not have discretion, but there are other areas where it does. In areas of long-range planning, in the creation of regulations, and in the protection of natural resources, the decision of who sits on the Planning Commission makes a difference, and that decision ought to belong to the voters.

---

Even after voting not to go to court against the elected Planning Commission, there was still a claim that the 1980 Charter may not have been validated by the legislature. The banner image for this post is a photograph of the 1981 Validation Act that was signed by then Rhode Island Governor J. Joseph Garrahy.

---

 

 

You can learn more about the author, Ruth Platner, at her profile page.