From 2008 To 2024 There Has Been An Effort To Overturn The Elected Planning Commission

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There may be some misunderstanding of what the phrase “going to court” means, but the effect of trying to remove the voters’ right to vote is the same, no matter what vehicle is used. At the July 9 public hearing on amendments to the town’s Home Rule Charter proposed by the Charter Revision Committee and endorsed by the Town Council, one of the members of the Charter Revision Committee, Margaret Hogan, said she had never recently or in the past “gone to court” to overturn the elected status of the Charlestown Planning Commission.

But there is much more to this story than what was presented on July 9. Not so long ago, on July 24, 2023, the Town Council placed the following on its agenda at the request of the Charter Revision Commission: “Discussion and potential action to Petition the Rhode Island Superior Court for a Declaratory Judgment regarding the legality of Charlestown having an elected Planning Commission.”

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.

At the July 24, 2023, Town Council meeting, the town’s Solicitor 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.” He used the word “defend,” which sounds like such an action would be more than just a friendly chat with a judge.

In fact, the same effort was made in 2007. An article in the Providence Journal dated November 30, 2007, included below, described the earlier attempt to get a Declaratory Judgment regarding the legality of Charlestown having an elected Planning Commission. The attempt described contains many of the same actors (including myself, Ms. Hogan, and Ms. Carney) and the same omission of key facts and the same faulty legal analysis – in fact the article reads like a script for what has happened in 2023–2024. In the end, no one actually did get to court, but they certainly tried.

01:00 AM EST on Friday, November 30, 2007

By Maria Armental

Journal Staff Writer

CHARLESTOWN — The legal standing of the town’s Planning Commission — the only planning board in the state that remains an elected body — is once again being disputed.

This time, however, the challenge comes from the very same group that had been asked to fix the Town Charter’s wording to end the legal wrangling. The discussion started when William F. Meyer, a member of the Zoning Board, asked the Charter Revision Committee to consider making his own board an elected body. Committee member Margaret L. Hogan, a lawyer, responded in a memorandum to the committee saying state law requires that both the Zoning Board and the Planning Commission be appointed. In Charlestown’s case, appointments would be made by the Town Council.

“In my review of these General Laws,” Hogan wrote on Oct. 22 referring to Rhode Island laws that refer to the local planning boards or commissions, as well as the Development Review Act of 1992, “I found no statutory authority for the election of Planning Commission members, either in 1980 or today.

“I therefore believe that our charter runs afoul of state law and that our Planning Commission has been created unlawfully,” Hogan wrote. “Additionally, since [Rhode Island law] provides statutory authority for alternate members only for the Towns of Hopkinton, Exeter, and Richmond, I believe that our current charter provisions which provide for alternate members also violates state law.” Based on Hogan’s findings, the Charter Revision Committee voted Monday night to ask Town Administrator Edward M. Barrett to request a legal opinion from the state attorney general’s office. But then, said Deborah Carney, a former council member who chairs the committee, “we thought that might take . . . too much time” given the committee’s May deadline to present its work to the council, so members took a second vote to “ask the Town Council to authorize the town solicitor to seek a declaratory judgment [from a court] on the matter of the elected v. appointed Planning Commission.”

Both votes were 6 to 0. Member David E. Crandall was absent. “We are hoping if the attorney [gets the declaratory] judgment our recommendation will be based on a strong legal footing,” Carney said.

“I believe it’s prudent to know the legality of something we could possibly be voting on,” she said.A declaratory judgment is a court decision in a civil case in which a judge rules on a legal question. No damages or orders are entered.

The council next meets on Dec. 10. Ruth Platner, who chairs the Planning Commission, called it an “adversarial” move and said a little reading of some of those same state laws shows that towns that have a home rule charter are exempt from the appointment requirement. “Any city or town operating under a home rule charter which provides for the establishment of a planning board or commission may continue under the provisions of that charter,” the statute reads. Moreover, Platner said, the reason Hopkinton, Richmond, and Exeter were singled out is that when that statute was last amended, none of them had a town charter requiring them to seek permission from the state to expand on the board’s membership. Many other communities — including North Kingstown, Westerly, and Providence — have alternate members, as per their town charters, Platner said. “I think she [Hogan] is overinterpreting the law,” Platner said. Under the Town Charter, the commission has five members, and two alternates, all elected at large on nonpartisan basis with the five highest vote-getters becoming voting members — to serve six-year terms — and the next two highest vote-getters named alternates to serve two-year terms. If an alternate resigns or is appointed to fill a vacancy on the commission through the next general election, the council would appoint a replacement alternate also to serve until the next election. “Having an elected Planning Commission makes us much more independent of the Town Council,” Platner said. Moreover, Platner said, she fears challenging the commission’s legal standing is only the first step.

“One of the things that would happen if they say that we were not legally elected [is that] they would try to undo votes that we took, and Ms. Hogan has a conflict there,” Platner said.

Hogan could not be reached for comment yesterday. The Charlestown lawyer, who represents several developers, sued the town last year seeking to annul the zoning ordinance and maps. A Superior Court judge dismissed the case in March saying the developer had missed the 30-day statutory deadline to file suit — by nearly eight years. Hogan appealed to the state Supreme Court.


For more information you can read a brief history of Charlestown’s elected Planning Commission.

Ruth Platner

 

 

You can learn more about the author, Ruth Platner, a candidate for Charlestown Town Council, on her profile page.