City council to defend its approval of playground project

VERGENNES — Vergennes aldermen in a 4-2 vote on Tuesday agreed to defend in court their support for a proposed East Street preschool playground.
The action came in response to a March 18 lawsuit that East Street resident John O’Donnell, who has spoken against the project at public meetings, filed in Addison Superior Court that sought a preliminary injunction ordering Vergennes to cease efforts to build the playground.
O’Donnell’s filing cites the 303-202 Town Meeting Day vote against the playground in what aldermen called a non-binding referendum.
City officials have also criticized the wording of the petition that triggered the vote. They note that although it did state that half of its projected $42,000 cost would come from the city’s Water Tower Fund, it did not mention that the remaining half of its cost would be funded by a state grant.
The Water Tower Fund is fed by cellphone companies who pay to hang broadcast equipment on the city’s former water tower, next to city hall, not by taxpayers. Aldermen use it at their discretion for capital improvements around the city. Projects have included the new police station and downtown sidewalks.
In seeking an injunction, O’Donnell’s suit states that the question of whether Australian ballot votes are binding on municipal governing bodies is an “actual or justiciable controversy,” and that construction of the playground would go “against the mandate of city voters.”
Mayor Bill Benton and City Manager Mel Hawley said at Tuesday’s meeting they met with city attorney Jim Ouimette and came away with an opposing legal view.
Hawley said if the council chose not to tap the legal expenses line item in the city budget, in which he said money remained, aldermen could simply “pull the plug” on the project.
Benton said he would not recommend a long legal battle, but believed O’Donnell’s filing could be quickly tossed out without a full court case. He suggested the council “proceed through Phase One” and seek that outcome.
“We certainly don’t want to take it to the Superior Court, but it is likely we could get it dismissed,” Benton said.
Benton and Aldermen Lowell Bertrand, Jeff Fritz and Joe Klopfenstein voted in favor of that approach. Alderman Renny Perry was absent, and City Council members Mike Daniels and Lynn Donnelly voted against.
“I would still have to honor what the voters recommended,” Daniels said.
The council’s position drew fire on Tuesday from two former aldermen. Ziggy Comeau said the Water Tower Fund money also belonged to residents, who stated their preference in March.
“The voters in Vergennes now have something to say about this money,” Comeau said, adding, “The voters said no.”
Hawley said voters have never exercised direct control over the money. Benton agreed with Comeau the voters said no, but repeated the majority council position that the article voted upon was not clear because of its failure to fully disclose the funding, including the grant.
“I had a lot of people say, ‘I just don’t get this,’” Benton said. “It wasn’t a clear and transparent referendum.”
In a pre-vote email to Hawley, petition author Sue Ferland defended the language of the article.
“Putting the toddler park aka preschool park on the ballot allows the people of Vergennes to vote on whether or not they want money from the tower fund to pay for it. If the vote comes back in favor of spending tower funds for the preschool park aka toddler park then so be it. However, if the vote shows that the citizens of Vergennes don’t want to spend money from the tower fund on the preschool park I would hope that the council would listen to the people,” Ferland wrote.
Former Alderman David Austin also spoke on the issue. Austin said he did not believe in general in government by referenda, but that when aldermen had such evidence in front of them they should listen, regardless of wording issues.
“I just have to tell you what I hear. I think some caution is in order,” Austin said. “I’m not sure it is a good idea to go against a vote.”
Resident Bill Funcannon said, however, that aldermen have been elected to make decisions that are in the best interest of the city, and that he trusted the council on issues like these.
“I can’t be bothered voting on every dollar you spend,” he said.
Andy Kirkaldy may be reached at [email protected].

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