Several questions linger on transfer station option

SALISBURY — With a deadline 13 years down the road, the town now has almost a year to decide whether to buy 17 acres of land for a new transfer station.

But one town official has continued to question the legality of the actions of First Selectman Curtis Rand, who last month spent $18,000 in town funds to purchase options on three parcels near the New York border. The options to purchase the land and two homes will give the town the right-of-first-refusal to buy the properties for $2 million until Feb. 28, 2008.

When it was first announced at a board meeting earlier this month that Rand had purchased the options without taking a vote or consulting with his fellow board members, Selectman Peter Oliver raised questions about the propriety of Rand’s actions and even cast doubt on whether the documents were legally binding.

Oliver sent town attorney Thomas S. Marrion a March 7 e-mail asking which state laws give Rand the authority "to enter into a contract" and spend "town funds without the approval of the Board of Selectmen at a duly published meeting." Town attorney’s take

Marrion cited Section 7-12a of Connecticut’s general statutes, which state that "the first selectman in each town for which the board of selectmen is the executive authority, shall be the chief executive officer of such town ...." But the statutes do not define the term "chief executive officer" or state what power he or she might have. Nor, according to Marrion, is there much case law interpreting the statute.

"There is no bright line separating which contracts are within his scope and which are not," Marrion said in an interview Tuesday.

Marrion stated in his March 8 reply to Oliver that he had concluded Rand had the authority to execute the agreements since their "nature" and "scope" were within Rand’s "authority to spend" and because the expenditure was "small enough" and the town’s "other obligations" under the options were "immaterial."

Marrion added that his "conclusion is reinforced" by the fact that Rand attended a Jan. 18 meeting of the town’s Board of Finance and met in executive session to discuss the matter, although no vote was taken. According to finance board Chairman Bill Willis, all five members of his board who were present at that meeting supported Rand’s move.

"There was a consensus of the Board of Finance that this was a prudent use of our land acquisition fund," Willis said at the finance board’s March 8 meeting. "We felt it was a positive use of the money and that it should be pursued." Issue not on BOF agenda

However, the agenda of the Jan. 18 meeting did not include an anticipated executive session, as is typical, nor do the minutes of that meeting indicate the agenda had been revised to include an executive session. The minutes state simply that at 8:19 p.m. finance board member Mathias Kiefer "made a motion to go into executive session to discuss a possible real estate transaction" and that the closed-door session ended at 8:55 p.m.

Marrion declined to comment on the agenda or the minutes until he had a chance to thoroughly review Oliver’s second follow-up e-mail pointing out the possible irregularity.

But in that follow-up e-mail to Marrion, Oliver cited Section 1-225 of Connecticut’s Freedom of Information law requiring a two-thirds majority of board or commission members in order to add items such as an executive session to the meeting agendas. Rand reflects

In an interview, Rand said he felt he had to react quickly because "I was really afraid we were going to lose that property" and that undue publicity might have driven the price up and put great pressures on the sellers not to sell. But he quickly added that "I can’t foresee another instance in which the first selectman needs to be quiet." And Rand characterized Oliver’s charge that his actions may have been illegal as "below the belt."

Asked why he didn’t call a special executive session with the selectmen followed by a vote in public session and the prompt delivery of the two checks, Rand replied, "In hindsight it might have worked. I’m ready to admit I might have made a mistake." But even in the event of a public vote, Rand said he still would have had to negotiate with the sellers and draw up the options behind closed doors.

"They would still be mad at me," Rand said of his critics. "But I’m not going to apologize for this — certainly not legally." Rand’s Democratic colleague on the board, Selectman Jim Dresser, has supported Rand’s move.

But in a comment left on this writer’s blog on The Lakeville Journal’s Web site at tcextra.com, Oliver said, "The absence of an appraisal of the property justifying the purchase price, the selection of a deposit figure of $18,000 (by Curtis’ admission) to keep it under the $20,000, which he believed would require a public meeting and disclosure, and the concealing of the whole thing from the other selectmen on the grounds of confidentiality, is not only insulting, it is absurd."

Kathleen Ross, an attorney for the Freedom of Information Commission, said her organization does not offer opinions on whether it is within the scope of a first selectman’s authority to spend town funds without consulting the other selectmen, but she added, "It would seem to me that it’s very unusual. It’s very weird to me that he would unilaterally spend town money." A fair price?

Oliver added that, "I like open government with participation of those who are going to be asked to pay the bill. Two million dollars for a transfer station site seems excessive."

Indeed, there was broad agreement among local real estate brokers contacted by The Lakeville Journal that the price for the properties was at least somewhat high.

"Obviously, it’s high," said John Harney Jr., owner of John Harney Associates in Salisbury. "My guess is there had to be an enticement. The deal probably would not have been possible with only the market price."

According to Harney, significant market value was added by asking the owners to take the property off the market for 12 months, thereby limiting their ability to realize any gain in the properties’ value over the next year. In addition, the potential undesirable use of the property could subject the sellers to pressures from neighbors and other town residents

"I suspect it had to be incentivized if you’re asking someone to sell their home to be a town resource," added Harney. "Curtis was under the gun. I think he felt it was his responsibility."

Robin Leech of Robinson Leech Real Estate in Lakeville said "in a heated market," the properties might be worth $1 million apiece: "In the current market, maybe not. But it’s roughly fair."

The properties sit on Dimond Road, a dirt road off of the south shoulder of Route 44 across from the intersection with State Line Road and less than half a mile from the New York state/Millerton border. About half the land is owned by Charles and Suzanne Luke and the other by Melinda and Michael Fitting. Michael Fitting is also the town’s building inspector and deputy fire marshal. Under the proposed deal, both families would receive $1 million if the town buys the properties. Current lease expires in 2020

In 2005, the Transfer Station and Recycling Committee hired an engineering firm that identified 66 possible sites for a transfer station, narrowed the list to 12, and then to five finalists. According to Rand, "there were no willing sellers except for" the owners of the Dimond Road properties.

The current site of the transfer station, which Salisbury shares with the town of Sharon, sits on Route 41 on land owned by The Hotchkiss School. The town has rented the 2.5-acre property for a dollar a year since 1975, but after signing a new 20-year lease with the town in 2000, the school made clear it wants to reclaim the property for its own use by 2020, if not earlier.

In 2003, the selectmen entertained the concept of building a new station on town-owned land on Route 112 known as Wack Forest. The land was donated to the town decades ago by the founder and former editor of Field and Stream magazine, who stipulated that the land be used for passive recreation. But nearby residents in the Lime Rock section of town objected so strongly that the selectmen dropped the idea.

At a meeting Monday of the Transfer Station and Recycling Advisory Committee in Salisbury, it was estimated that it will take approximately five years to build and get licensing for a new station. That estimate was shared by Transfer Station Manager Larry Beck and committee chair Bob Palmer.

Getting state approvals alone could take as long as three years, Beck advised.

He also noted that the transfer station’s contract with the Connecticut Resource Recovery Authority (CRRA) will expire in 2012. Whether the towns choose to renew that contract, or seek a different partner, will depend in part on where the new station is sited, and how big it is.

CRRA is planning, for example, to significantly expand recycling options to include seven categories of plastic products. The current transfer station only has enough space to recycle plastics in categories one and two.

"There’s a saying in this business that everyone wants you to pick up their garbage but no one wants you to put it down," said Palmer, who works in the waste management business and has built three transfer stations, for clients including the town of New Milford.

Rand applauded the work of the Transfer Station and Recycling Advisory Committee and said the reaction from people he has heard from has been overwhelmingly positive. He thinks if the town purchases the Dimond Road properties, that in addition to bonding, much of the cost could be covered by a combination of private donations and grants. The same is possible for other upcoming capital projects such as a new firehouse for the Lakeville Hose Company and the repair of the old iron bridge over the Housatonic River between the Falls Village power plant and the Amesville section of Salisbury, Rand explained.

"We have an opportunity to solve some long-term problems in an affordable way," Rand added. "Let’s talk about it in public." Clarification

In last week’s article on the transfer station, it was reported that the purchase options on the three parcels would cost the town a total of $27,000. The actual amount was $18,000, but First Selectman Curtis Rand later acknowledged that a memorandum he wrote concerning the options was vaguely worded. He has since revised the memo to clarify the purchase of two options at $9,000 apiece for a total of $18,000.