Palmer Pointe Discussion Is Not 'Highly Improper and Prejudicial'

On June 3, 2013, just hours before the start of the Barrington Town Council meeting, Assistant Barrington Town Solicitor Andrew Teitz delivered to Barrington Town Council President June Speakman an urgent letter.  

The urgent letter was signed by East Bay Community Development Corporation’s (EBCDC) lawyer, Stephanie Federico, of DeSisto Law Associates, and was in regard to the Palmer Pointe tax abatement question on that evening's Town Council agenda (item 19).  As most residents are now aware, the issue of the tax abatement is EBCDC's presumption, as stated on their Palmer Pointe application, that residents "will" be providing a tax abatement.

Following a short discussion within the Town Council, a motion was made to avoid any discussion on item 19, even to disallow public input.  Of great concern now are a number of important issues.  

What did that letter really say?  

The EBCDC attorney admitted in the letter two very important points related to EBCDC’s Palmer Pointe proposed development:  

1) EBCDC has made no application for Barrington tax abatements.  

2) It would be “highly improper and prejudicial” for the Town Council (the public officials who have the decision-making authority) to even discuss the issue while the Palmer Pointe application is pending with the Planning Board.  

Reasonable inference: An intentional "cart before the horse"?  

EBCDC wants the Town Council to believe that it would be highly improper and prejudicial for the Town Council to take up the question of tax abatements until after the Planning Board makes their decision.  But is it reasonable to town residents for EBCDC to have delayed applying for tax abatements until after the decision by the Planning Board?  

At the time EBCDC filed their application with the Planning Board, EBCDC and their attorney, knew, or should have known, that the "will provide an abatement" question was a gamble.  And is gambling on a public document to a public official legal? 

Because the Planning Board does not have the power to grant tax abatements, it also appears that EBCDC’s attorney believes that it is “highly prejudicial and improper” for the Planning Board to review the tax abatement question when considering the application. In keeping with EBCDC’s attorney’s admissions, the tax abatements are “off the table” as an item of discussion and consideration by the Planning Board.  

EBCDC representatives have been quoted in the local media that "to make the entire project feasible, EBCDC needs the Town Council’s support of taxing the project at 8 percent of its affordable rents – as the town does for Sweetbriar, EBCDC’s other project in Barrington. Palmer Pointe would be “infeasible” without that support from the town" – (Barrington Patch quoting Frank Spinella, Development Consultant for EBCDC, November 27, 2012, Palmer Pointe public information meeting).  

A question remains: Can the Town Council even abate property taxes for EBCDC? Can EBCDC simply say: "Just give us what you gave for Sweetbriar"? 

That sounds easy, if it were legal.   

Questions remain about the legality of the 2008 Town Council vote on the Sweetbriar abatement.  There are also questions on any appropriation made against property taxes to support persons who are not "chargeable" to the town (not current residents), and who are not "poor" as defined by the federal poverty level.  

Compounding the confusion, about four years ago, at the November 3, 2008 Barrington Town Council meeting, EBCDC made clear that they knew that a tax abatement was not their "right".  According to the November 3, 2008 Town Council meeting minutes, EBCDC's attorney, Anthony DeSisto, argued that EBCDC was well aware that an 8 percent of rent tax abatement for the Sweetbriar development was "not by right" but "by a vote of the Town Council."  The rationale used by Mr. DeSisto was that Barrington's own town solicitor argued this position on behalf of other towns.  

Given that the abatement is not by right, and EBCDC is preventing the Town Council from even discussing the matter, and the Town Council may not even have the authority to appropriate property taxes for this project, how then did EBCDC believe they could deliver to Barrington town officials an application for Palmer Pointe stating that residents "will" provide a "tax abatement"?  

During the May 30, 2013 Planning Board public hearing, I asked the Planning Board to return the Palmer Pointe application to EBCDC based on it being materially deficient.  Barrington Assistant Town Solicitor, Nancy Letendre, stated that in spite of EBCDC’s representations, “It is an eligible application,” “It meets state and local ordinances.”  

On June 5, 2013, I sent a letter to Council President June Speakman inquiring on the question of whether EBCDC's Palmer Pointe application is in violation of Rhode Island General Laws under Chapter 11-18 - Fraud and False Dealing, - (ref e.g. - § 11-18-1 Giving false document to agent, employee, or public official). The text of that statute under Title 11, Criminal Offenses, states in part:  

"(a) No person shall knowingly give to any agent, employee, servant in public or private employ, or public official any receipt, account, or other document in respect of which the principal, master, or employer, or state, city, or town of which he or she is an official is interested, which contains any statement which is false or erroneous, or defective in any important particular, and which, to his or her knowledge, is intended to mislead the principal, master, employer, or state, city, or town of which he or she is an official."  

What does the US Department Of Housing and Urban Development think about putting the cart before the horse?  

For certain projects involving Community Development Block Grants (CDBG), as is the case with Palmer Pointe, the Code of Federal Regulations provides guidelines, e.g.-  

24 CFR Part 570 Appendix A (2) - "Commitment of all project sources of financing" states in part: - The recipient should review all projected sources of financing necessary to carry out the economic development project. This is to ensure that time and effort is not wasted on assessing a proposal that is not able to proceed."

http://www.law.cornell.edu/cfr/text/24/570/appendix-A  

It appears that a full examination of Barrington's handling of Palmer Pointe financial feasibility is warranted now. But as to legal advice on affordable housing issues, does Barrington's legal counsel tend to favor only one side of an argument - that which is generally not favorable to Barrington’s resident taxpayers? Do such legal opinions favor helping to create a pathway for affordable projects, rather than provide counsel as to the full scope of issues needing review?  

“Will” these and other issues be problematic for the project?  And when will town officials finally admit that all the compliance mandates under the affordable housing laws were done when Barrington completed the Comp Plan and implemented the required new zoning rules? 

All we are doing now is voluntarily rolling out the financial red carpet.

Time and proper, objective, due diligence “will” tell.