With RTM Authority Challenged, RTM Votes to Appeal Ruling of Town Law Dept

Item 3 on Monday’s RTM meeting was to approve a $5.00 fee for Fire Dept review fees of building permit applications. It was a second read.

The twist was a proposed amendment made from district 8 to allocate half the fees collected to the recently created Affordable Housing Trust Fund (AHTF).

Prior to the meeting the town legal department opined that the proposal to steer half the fee to the AHTF would not be in legal order.

Richard Neuman chair of the Town Services Committee said the town legal dept was aware of the motion and their preliminary review found it might not be in legal order. They discussed AHTF chair Bob Barolak who told them that funds to date had primarily come from the ARPA with only small contributions coming from the public.

They discussed a possible amendment that would include a 5-year sunset clause in 5 years or if the town were to meet its 10% requirement for affordable housing that comes from the state.

Some on the committee felt the fees should go to the General Fund as proposed or the Fire Dept.

He said the town services committee would not bring the amendment, but Cheryl Moss from district 8 brought a different motion.

Kip Burgweger from Legislative & Rules said his committee did not take up the amendment because it hadn’t been made yet.

Cheryl Moss addresses the RTM April 17, 2023

Ms Moss presented her motion, which she said said her amendment would steer money to the AHTF while still retaining money for the General Fund, and included a sunset clause.

She said it would reduce the fee to $2.50 and add a surcharge of $2.50 that would then be allocated to the AHTF. She said she believed her proposal would be in legal order.

Assistant Town Attorney Aamina Ahmad said the law dept’s opinion on Ms Moss’s motion to amend the ordinance was also out of legal order.

“Essentially what it does is very similar to what the prior amendment was proposing,” Ahmad said. “Even though it’s worded as a surcharge, it is our opinion that it is still taking the same approach.”

“A true surcharge would be an amount over a fee being proposed ($5.00)…and not reworded as a surcharge.”

“Essentially it’s saying the same thing and what the Law Dept is saying, looking at the two proposed amendments, this one is not in legal order either,” she added. “The RTM is stepping outside the scope of its authority where you have the fire marshal and BET which have said there is going to be a $5.00 fee for this plan review that gets put into the General Fund, and that’s where it will stay until it’s used for other purposes.”

“You’re reallocating and re-appropriating funds meant for the General Fund and meant to be spent in a different way, perhaps and giving it to someone else,” Amhad said. “Whether you call it 50% of the fee or $2.50 of the $5.00 fee, you’re really talking about the same thing.”

Tom Byrne

Tom Byrne, the RTM’ former longtime moderator, said he couldn’t believe what he had just heard.

“I heard the town attorney say the way you could do this is enact a reviewing fee of $2.50 per $1,000 that would be placed in the General Fund and then enact a surcharge on that fee of whatever amount you want, and you can do that. That’s what I heard, and that is a correct interpretation of the AHTF ordinance, as well as this fire marshal review ordinance.”

“What I then I heard what seemed to be a confusion on the part of the Law Dept, that the $5.00 fee was established by the First Selectman and the Fire Marshal. That is not how ordinances are adopted in this town,” Byrne said.

“The Board of Selectmen have authority over traffic and parking ordinances only,” Byrne said. “The RTM is the ordinance-adopting authority in town, with the exception of land use regulations, which is P&Z.”

“Is everyone aware that the amendment that was made was to set a review fee of $2.50 per $1,000 that would go to the General Fund, and a surcharge on that of $2.50 per $1,000 that would go to the AHTF.”

“I’m not advocating that we do this. What I am advocating is that we do not let the law department and other bodies of town restrict our lawful authority to enact ordinances. What we heard has no sound legal basis.”

“We can do what was proposed. It is in legal order,” Byrne said. “If the law department is not going to change that opinion, then I appeal the opinion.”

The RTM discussed whether to appeal the ruling of the Town Law Department.

“It would send the opinion of the law dept back to Legislative & Rules and the Law Dept for a study and then they would come back with a report at our next meeting in June,” said moderator Alexis Voulgaris. “The RTM would have an opportunity to vote on whatever their recommendation is.”

Lucia Jansen, chair of the Budget Overview Committee, noted that the BET’s proposed budget had expenditures related to the revenue associated with the ordinance.

Ms Voulgaris said they would still get $2.50 per $1,000 in fees.

“A shortfall could occur and perhaps expenditures need to be reduced in order to compensate,” Jansen warned.

Next, Mr. Byrne came to the podium and said rather than vote on the original amendment, the proposed amendment to it took priority.

“We have to decide if there is going to be an amendment before we take up the main motion. That is basic parliamentary procedure,” Byrne said.

“You are suggesting we suspend the vote on the actual ordinance until June when that item and that amendment comes back for review by the RTM,” Voulgaris said.

Ms Moss noted the vote was on the objection to the amendment’s legal order.

“Part of that is the RTM’s authority being challenged as to what we can do in our amendments and how we change ordinances.”

The RTM voted on whether to appeal the ruling of the Town Law Department.

The required majority vote was achieved.
130 Yes
55 No
2 Abstain

The motion passed.

See also:

RTM Resolution to End Hybrid Meetings Fails Despite Some Urging “We’re Better Together” April 18, 2023