Chester considers sex offender ordinance, stalls on board appointments
Shawn Cunningham | Oct 26, 2016 | Comments 3
By Shawn Cunningham
© 2016 Telegraph Publishing LLC
While Chester's town attorney asserted that it could "enmesh" the town in a lawsuit "that you will lose," resident Randy Miles stressed the need for an ordinance that would limit where sex offenders could live, saying he was willing to spend taxpayer dollars fighting to keep the town's children safe.
Randy Miles explains his views on the proposed ordinance. Photos by Shawn Cunningham
The ordinance, proposed by his wife, Mary Jane Miles, at the Aug. 17 meeting and modeled after one adopted by the City of Rutland, would establish 1,000-foot protection zones around "protected properties" including schools, recreational facilities and licensed day care centers. At the August meeting, Miles said the ordinance had withstood challenges and that Andrew Costello, the lawyer who wrote it for Rutland, was happy to talk with them if they had questions.
Pisha noted that the ordinance had been reviewed several years ago, then again recently by Jim Carroll, the town's attorney. Carroll said that the proposed ordinance had been modeled on one adopted by Rutland City, with Barre adopting a similar law. In Barre's case, its ordinance was struck down in 2009 by Superior Court Judge Helen Toor on the grounds that the town did not have the legal authority to regulate where people can live. Pisha said that a case against the Rutland ordinance was moving toward court and would also be heard by Judge Toor.
In its November 2009 newsletter, the Vermont League of Cities and Town told its members that "While it is not binding on other municipalities in the state, those municipalities that have adopted sex offender ordinances should take heed of Judge Toor's decisions and proceed with due caution" and recommended consulting with a municipal attorney before enacting or enforcing a sex offender ordinance.
"Lawyers may tell us we're wrong and that there's nothing on the books for it, but I'd rather err on the side of protecting out children and let somebody challenge us and say we're wrong," said Randy Miles at last week's meeting. "Not always do the lawyers have our best interest."
Randy Miles told the board that this was "more important than anything else" and it should "err on the side of protecting our children"noting that "not always do lawyers have our best interests, they just look at pieces of paper and writings and sometimes we have to go outside that and deal with our hearts and what's right for our community. If we need to fill this place with people, next meeting I'll fill this place with people."
"I'm 100 percent with you as the dad of two little boys," said board member Ben Whalen. "But to what point does the town want to fight that to, how much money do you want to invest in fighting this, $100,000? What happens when we do fight this as the little town of Chester?"
"I'll put our taxpayers dollars on our children's sides," said Miles
It was revealed at that point that a special meeting of the Select Board had been called for Thursday Nov. 17 to discuss "board procedure," and it was suggested that everyone get questions together for Carroll who would be attending that meeting.
Andrew Costello, the lawyer who wrote the model for the ordinance in question, is now practicing in Long Island and did not respond to repeated requests for comment.
More delay in board appointments
Resident Marilyn Mahusky asked what was happening with the appointments of people who expressed an interest in serving on the Development Review Board and Planning Commission, saying that she had expected it would be on the agenda.
Board chair John DeBenedetti said that there were four people interested with one alternate position open on the Planning Commission and that generally the board doesn't like to make appointments without a full board.
DeBenedetti also said he would like to have a the conflict of interest policy in place before appointments are made. DeBenedetti has suggested that no resident should be able to serve on more than one board or committee, although that has been the case until recently with Tom Bock on the Select Board and Planning Commission and Harry Goodell with the Planning Commission and Development Review Board.
Mahusky noted that state statute says that the Planning Commission must be no fewer than three or more than nine members and since the period of the next town plan expands from five years to eight, that more members with more perspectives would be better.
Mahusky pointed to the board's action in the last meeting of expanding the master plan steering committee from seven to 10 and now to 11.
Rick Paterno listens as he is appointed to serve on the steering committee for the village center master plan
She was referring to Rick Paterno's appointment. Having expressed an interest in serving on the Village Center Master Plan steering committee several months ago when the grant was announced, Paterno, owner of The Free Range restaurant, was appointed as the 11th member of that committee that evening.
In other business
After six hours and 20 minutes of work over six executive sessions, the board finished Pisha's annual review and decided to renew the town manager's two year contract and awarding him a 3.5 percent raise retroactive to his anniversary date in August. The town's annual report says that Pisha was paid $76,180.29 in 2015.
In old business, board member Arne Jonynas asked Pisha what had become of the research he was doing on private driveways that are classified as town road and plowed and maintained by the town.
Pisha said he thought that interest in the idea had waned. Jonynas said it was his impression that Pisha was coming up with a priority list and that he had spoken with some people on those roads who seemed to understand why the town was looking into this.
In old business, Pisha told the board that there had been an Act 250 hearing with a site visit for siting the new water tank and transmission line on the old O'Neil Sand & Gravel property. "It seemed to go quite smoothly," said Pisha. "Fish and Wildlife and the town were basically expressing the same vision for the property."
Randy Miles asked what had happened to the Sandri Sunoco proposal to put a Dunkin Donuts into their gas station on Main Street, saying he was interested in fair practice for both Sandri and Jiffy Mart, which recently opened across the street with a Subway and Ramunto's Pizza.
Board members Whalen, Jonynas and DeBenedetti recalled that they were asked if the town was willing to sell land that it owns behind the gas station so that a drive-in could be constructed at the back of the building. They had agreed to consider it, while noting that the land was prone to flooding. Sandri President Michael Behn said he would return with engineering drawings, but the town has not heard from him.
Miles said he had "heard a lot of stuff back and forth."
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Mary Jane says:
Barre's ordinance was challenged and lost.
Rutland used the reasoning given by that judge, to fill the loopholes that were of concern to the judge before their ordinance was drafted. It had not been challenged in Rutland but has been in place and worked well since 2008. My error I thought it had been challenged in Rutland.
Also the little Town of Chester has liability insurance, if we were in a law suit our insurance would provide coverage.
I spoke with Mr. Costello, he indicated he is not surprised a lawyer would say no, but lawyers DO NOT set town policy. The board does and he has often seen boards make decisions against attorneys advice. It doesn't mean catastrophe will result.
This is our decision. We are stuck with the loophole created by transitional housing. They are not out of the system yet, but are convicted and are not subject to the state law. The ordinance provides safe zones same as the state but extends to convicted sex offenders in the prison system not otherwise covered by state law.
Lastly, it does not cover the entire town, which is important in consideration of being discriminatory.
This makes sense, the VLCT select board handbook indicates that they are in support of transitional housing to be very supportive of town ordinances. We don't have! Clearly they are not otherwise respectful of our town based on past performance at meetings on record.
We did not elect a board that does not stand for "We can't." We elected them to try and see how "We Can" especially on issues that the constituents support. We use our town attorney to assist us in doing so via the safest passage not in setting absolute policy.
In fact, sexual offenders have one of the LOWEST recidivism rates. Nonetheless, one re-offense is too many.
The issue not being discussed is the difference between a sexual predator and a sexual offender; those populations are being conflated in this discussion. How do you know who is a sexual predator? The sex offender registry is a poor source of information. Why? Only a small percentage of the convicted sex offender population has offended against stranger children, which is the concern being addressed here. The majority of sexual offenders are statutory offenders (cooperative sex with underage person legally unable to give consent), and the second largest category are men who violate against their own child or teen family member(s).
Moreover, sexual abusers of non-familial children report an average of seven victims before detection. Bottom line: The ordinance under consideration would NOT protect victims, and in fact could lead to a false sense of security while leaving actual abusers free in the community.
To accomplish the goal of protecting children from "predators" outside the home, the town would need some mechanism for distinguishing which offenders have targeted children, and in particular children outside of their own family.
Protecting children is a laudable goal, but simply implementing severe restrictions on registered sex offenders does a poor job of it. (Stats about sexual offending are compiled by the Bureau of Justice Statistics, a branch of the Department of Justice, and a good place to begin a review is https://www.ncjrs.gov/sexoffenders/statistics.html.)
The rights of innocent children should supercede those of sexual predators and offenders. Sexual offenders have one of the highest recidivism rates; keeping their residences away from schools and other places children congregate is one way to help reduce temptation for child molesters.