Two Mashpee Town Meeting Articles That Deserve Careful Consideration

Article 15 on the May 5 Annual Town Meeting Warrant is one of those instances when it is advisable to read the fine print. In this case, however, the fine print is not included in the warrant.

Article 15 reads:

“To see if the Town will vote to amend Article V of the General Bylaws by deleting §3-21 in its entirety.

Submitted by the Board of Selectmen 

Explanation: Massachusetts General Law Chapter 60, §77B allows the custodian of tax possessions (Treasurer) to sell tax foreclosed properties at public auction. Section 3-21 restricts the disposition or sale of tax foreclosed property until Town Meeting action is taken, restricting our ability to restore properties to the tax rolls.”

As this article has received the unanimous endorsement of the selectmen and finance committee members, it could be read as a routine housekeeping matter or something equally benign. It is neither.

The section of the General Bylaws, 3-21, that Mashpee’s policy-makers and financial advisors want to delete “in its entirety” reads:

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“Land Acquired by Town: No land acquired by the Town through tax title proceedings shall be sold or otherwise disposed of until it shall have first been determined by a vote at a Town Meeting whether or not said land shall be held by the Town as conservation land for all purposes included in MGL C. 40, #8C, as it now reads or may hereafter be amended, or shall be held by the Town for some other municipal purpose.”

If Town Meetings voters approve Article 15 they will be giving up their decision-making power over the disposition of land taken through tax title proceedings after responsibly carrying out this duty for more than 30 years.

Town officials, elected and appointed, want to bypass Town Meeting voters and give this responsibility to the town treasurer. Why? Because the current situation is “restricting our ability to restore properties to the tax rolls.”

Surely, town officials are not saying voters are a pesky nuisance. So, could it be, in their minds, that voters have not been making the right decisions about whether tax title land should be held for conservation, affordable housing, recreation, or sold at auction to the highest bidder? This has at least the ring of truth, given that some town officials are not shy about saying that they think Mashpee has more than enough open space.

The deliberate vagueness of the selectmen’s explanation for Article 15 should raise a red flag of concern in the minds of Mashpee residents for whom Town Meeting is truly hands-on democracy for expressing the will of the voters.

Cape Cod Commission Petition Article

Town moderator Jeremy Carter has it within his authority—with plenty of legal backing—to declare Article 20, the final article on the warrant, beyond the scope of Town Meeting.

It reads:

“To see if the Town will vote to direct the Board of Selectmen to place the following question on the next election ballot, ‘Shall the Town of Mashpee petition the General Court of the Commonwealth asking that the Town of Mashpee be released from membership in and removed from the authority of the Cape Cod Commission and the Cape Cod Commission Act,’ or take any other action relating thereto.

Submitted by Petition

Explanation: The intent of the article is to determine whether the Town of Mashpee has a need for continued services currently provided by the Cape Cod Commission and the Cape Cod Commission Act.”

The board of selectmen does not take a position by a vote of 4-0, 1 abstention.

Finance committee does not recommend approval by a vote of 4-3.

Mashpee town manager Joyce Mason told me last week that town counsel Patrick Costello has reviewed the petition and believes “it does not appear to be a legally proper means for a town to initiate a petition for special legislation with the General Court.”

Mr. Costello explained that even if selectmen placed a question on the ballot regarding Mashpee’s withdrawal from the commission at Town Meeting’s request, it would be nothing more than a non-binding referendum or “sense of the town” vote. Ms. Mason said, “Mr. Costello also stated that given the lack of any legal ‘mandate’ for the General Court to act in response to the vote, he would expect that the General Court would likely be reluctant to entertain any action pursuant to such a vote.”

Barnstable town counsel Ruth Weil called the same petition article “defective and flawed,” prior to the town council voting unanimously April 3 to deny the petition.

On that same day, Brewster town counsel advised the town administrator that “the action requested within the article is contrary to state law and, thus, it is not a lawful article….As such, the town moderator will have to decide whether the question should be put to Town Meeting for a vote.”

On February 12, Sandwich town counsel John Giorgio advised town administrator Bud Dunham, in a highly detailed opinion, that “the petition article is legally defective.” Mr. Giorgio added, “[I]n my opinion, the subject matter of the petition in this case, i.e., to require the Board of Selectmen to include a binding question on the ballot at an election, cannot be accomplished without special legislation” approved by the General Court.

It is a pity the petitioners, led by selectman Tom O’Hara in Mashpee and encouraged by regional gadfly Ron Beatty elsewhere, had not done some homework prior to gathering signatures and submitting this petition to town clerks. Petitioners have put town moderators—and voters—in an awkward position. If moderators act responsibly and rule the petition does not have legal standing before Town Meeting, they open themselves up to unfair charges of being undemocratic and squashing debate. But if debate is allowed, our Town Meeting could conclude with a possibly strident, even divisive exchange, which can have no legal resolution.

If Mr. Carter decides to allow debate and a vote on Article 20, it is to be hoped there are enough voters left in the high school gym to soundly defeat it, by conveying a “sense of the town” firmly on the side of carefully considered regional planning and economic development.

At least one good thing has arisen from this petition movement, however, and that is some sensible discussion about the value of the Cape Cod Commission to the 15 towns and how two-way communication can be improved.

The pressing need for the latter was acknowledged by both selectman O’Hara and Paul Niedzwiecki, executive director of the Cape Cod Commission, before the Mashpee Planning Board on March 19.

Mr. O’Hara initiated this petition because he was incensed by the commission’s recent ruling on the Bridges, a 60-bed memory care facility planned near Southport. The commission imposed a $1 million-plus mitigation fee on the developer to provide for some affordable units. Even the most ardent commission supporters would have agreed with town planner Tom Fudala when he said at this meeting, “Memory care has nothing to do with affordable housing. This was a stupid ruling.” But, especially given that the developer agreed to pay the fee, Mashpee’s long-term relationship with the commission should hinge on all the advantages that have accrued to the community since 1991, not this faulty decision that easily could have been avoided with better communication.

Mr. O’Hara told the planning board he was disappointed more town boards did not step up to comment on projects before the regional planning agency. “It’s our responsibility, too,” Mr. O’Hara said. “The door should be open both ways. There needs to be better communication, better understanding. We can both do a better job.”

The role for the commission, as mandated by the Cape Cod Commission Act of 1991, is “to balance the needs of the environment and the economy,” Mr. Niedzwiecki said. “That’s not an inconsistent charge.”

Mr. Niedzwiecki said the commission staff understands the need to stimulate the local economy, especially “as the canal is a drag on development.” This is one reason he has gone to the assembly of delegates to raise thresholds on some commercial projects, not lower them.

He also cited examples in Bourne’s and Falmouth’s industrial parks, as projects that get referred to the commission for review that should stay under a town’s purview.

“There is an information gap on what the commission does,” Mr. Niedzwiecki said. “The commission belongs to the towns and the people of Cape Cod. We need to do a better job of communication. We can be advocates for you,” in challenging situations, he said, especially those that cross town boundaries: the sole source aquifer, wastewater discharge, the protection of bays, transportation, Broadband, and economic development.

Although the unemployment rate on Cape Cod is lower than at the state and federal levels and “personal wealth is up,” Mr. Niedzwiecki said, “those on fixed incomes can’t afford to spend more on infrastructure. The year-round population carries the burden for the peak population” of summer.

The major infrastructure project facing the 15 towns—wastewater treatment facilities to reduce the nitrogen overload in our bays and estuaries, mostly from household septic systems—has been estimated to cost $5 billion. In the present furor, one fact should not be lost. Through its outreach efforts to the communities, the commission recently identified a $2 billion savings from that earlier engineering estimate.

Mr. O’Hara is quick to point out that belonging to the Cape Cod Commission is not free. Of course not. But if the commission were to disappear, so would its source of funding. Property owners support the commission, not the towns.

The countywide vote in March 1990 that established the Cape Cod Commission also put in place the Cape Cod Environmental Protection Fund. The source of revenue for the CCEPF is apportioned by Equalized Property Valuations (EQV). For the current fiscal year that is $0.039 per $1,000 valuation. The assessment for a single-family home in Mashpee this year is $17.37 per year. That’s up from $13.78 in 1991, the CCEPF’s first year.

Growth in the CCEPF is capped at 2.5 per cent annually. The CCEPF represents 62 percent of the commission’s 2014 budget; the balance comes from a combination of grants (23 percent), fees (3 percent), and CCEPF reserves (12 percent). The commission’s budget is supervised by the county commissioners and the assembly of delegates.

Given present constraints on the town budget, there is no way Mashpee could provide residents with the wide-ranging services, expertise, and technical resources town departments now receive from the commission.

The commission also plays a mostly unheralded, but vital role in protecting Mashpee from the impacts of developments in our far larger neighbors: Falmouth, Barnstable, and the base. What happens there impacts our bays and watersheds, our local economy, and our quality of life.

(Janice Walford is vice president of the Mashpee Environmental Coalition.)

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