During a seemingly productive two-hour discussion Tuesday night, May 27, the Board of Selectmen made progress on revisions to the Friends of Ambler Farm lease.
The lease had initially been negotiated privately between attorneys for the Farm and the Town with First Selectman Toni Boucher, and brought to BOS members in executive session in April. Boucher brought what she believed was a final version to be reviewed publicly by the BOS on May 5 for consideration and a possible vote of approval.
However, following challenges by members of the public (including a CT Superior Court injunction) calling for vote by Special Town Meeting, concerns about several lease provisions raised by the Board of Finance in a 17-point memo — all of which happened in public — as well as their own worries about not having adequate time for their own review, the selectmen agreed it would be prudent to revisit the lease.
On Tuesday, May 20, the BOS began further public discussion about the lease, with Town Counsel Doug LoMonte participating. As the discussion and issues grew more complicated, Boucher sought to schedule a separate executive session and meet with her board out of the public eye. But after receiving pressure from GOOD Morning Wilton that the matter did not legally qualify, she announced that it would be held in public.
Tuesday evening, May 27, the BOS met (inviting BOF Chair Matt Raimondi to participate) and made several adjustments to the lease, coming to what members appeared to view as constructive results.
But the changes meant the lease now likely differed greatly from what the Town and Ambler Farm officials had once agreed upon. And despite the conciliatory tone between participants in Tuesday evening’s meeting, Friends of Ambler Farm Attorney Doug Bayer — who could only watch and not take part — closed the meeting by expressing whole-scale disappointment during public comment at the discussion town officials had just held.
While he said he wasn’t going to address particulars — though he noted observations he would later comment on — Bayer chastised the group for a discussion he implied was presumptive and should have been held privately.
“Given where we are and how this has progressed … I cannot express, from a process standpoint, how disappointed I am how this has occurred,” Bayer said.
“I think a lot of these discussions should have been had with Friends of Ambler Farm and not in public,” he said. “I think that — and I have not discussed this with the (FOAF) board, so I’m speaking as quasi-advocate and a quasi-citizen at this point — but I think what you’re discussing sounds like a very different document than what the (FOAF) board approved.”
Though they were in attendance, several FOAF officials remained silent during public comment after the discussion wrapped up. FOAF President Patti Temple spoke at the initial public comment period before the BOS began reviewing the lease in detail to correct what she said was misinformation that had been repeated during prior discussions about the lease agreement.
Officials Scrutinize the Process — and the Town’s Attorney
BOS members made it clear on Tuesday night that they were unhappy with the process up to this point and felt they had not had adequate time to review the lease. They praised the BOF for bringing concerns to their attention.
Town officials also noted the precarious tenor of the recent discussions around the lease following the BOF publicly raising objections.
“It feels like this has gotten a bit adversarial, which I find surprising,” Raimondi said.
“The Board of Finance has said repeatedly … we are very pro-Ambler Farm. We are pro-Friends of Ambler Farm,” he said. “Our questions related to the governance document.”
Raimondi said that, while it might have felt to the public as if the BOF gave last-minute feedback on the lease, BOF members did not get to see the lease until April 29 and only after having to request it from Boucher. They discussed it for the first time at their May 13 meeting.
Selectman Ross Tartell echoed Raimondi’s concerns. “The process over the last couple of months has been a little disturbing to me, because we’ve lost site of the win-win. What I find lately is we’ve shifted into a win-lose … and we’ve lost a way to work collaboratively … The tone has been changing,” he said.
Selectman Josh Cole, likewise, pointed out that the BOS only first saw the lease at the end of March.
“There were obviously discussions and negotiations between Toni and Ambler Farm and the attorneys before the lease document was brought to us,” Cole said, explaining that they were then in the middle of a busy budget season.
“We had an initial meeting on it and gave some preliminary kind of thoughts on it, with the expectation that we would be delving further into it once we got past the budget,” Cole said.
Selectwoman Kim Healy said that she had felt “extremely pressured and rushed” to do a vote on the lease just prior to the Annual Town Meeting on May 6. She said she had felt uncomfortable with the content of the lease then, even though Boucher and attorney LoMonte had given it strong support as it was presented.
“I am extremely grateful that we are back at the table (and) I’m really grateful to the Board of Finance for their comments on the lease,” Healy said.
Healy also reminded Boucher that she had been waiting to get a copy of the previous lease draft from the town attorney — one that was being negotiated around 2018.
“I’ve asked for it many times now,” she said, not getting a clear answer on why LoMonte’s firm, Berchem Moses PC, had not provided one of the most recent iteration.
Officials have raised other concerns about the Town’s legal representatives. During budget season, issues arose regarding town counsel’s interactions with both the BOS and the BOF, including questions related to the BOF’s desire to communicate directly to the public about town matters using the Town’s email system. That episode even prompted the BOF to raise the question of whether it could engage its own separate legal counsel.
“A New Day” and (Costly, Says Boucher) Changes
Boucher emphasized that this was now a new day and that, despite earlier confusion, they would embark on what she said would likely be the substantial changes needed to get everyone onboard.
“We’re not gonna rush through this process,” Boucher said, simultaneously indicating several times, however, that this process of revision was going to be “costly,” particularly with regard to legal fees to the town.
“We’re gonna have as many subsequent meetings as we need to get it right,” she said.
The group was able to reach relatively quick consensus, however, solving most of the main concerns with several specific changes.
- Concern: Absence of Non-Appropriation Clause
Contrary to the opinion of LoMonte, who stated that a non-appropriation clause was not necessary for the lease, as it didn’t impose any new spending obligations to the town, BOS members disagreed and asked to have language to that effect added in.
“The rub here is that, when and if the town executes the lease, we now have taken on a contractual obligation to pay a number that we may or might not have budgeted for,” Selectman Bas Nabulsi — a lawyer — said. “The town may or may not have approved the expenditure of those funds, so we need the lease to align with that fact.”
Cole — the other attorney on the BOS — agreed.
“Even though you may have a baseline responsibility for something,” Cole said, referencing the town’s ongoing obligation to take care of the Ambler property, “going forward that number is going to change from year to year … I think naturally it makes sense to have that in there.”
“I think in many ways we’re gonna continue operating as we have, [but] we have to have these type of guardrails in there so that we’re not obligating the town,” he said.
The BOS decided that, as with other entities in its operating budget, going forward it would ask FOAF to make a budget request each year. The BOS would then have the opportunity to review and approve the request during each budget cycle, including appropriations for maintenance and utilities.
“I like this discussion because it fits with the ongoing discussion of the budget process,” Tartell said.
“This brings governance closer … Every year it’s part of the budget process,” he said.
Healy noted that, in the event of emergencies, the BOS could provide additional funds as needed.
“If there was ever an instance where there’s a need for critical funding, we are always available for it to be requested,” she said.
“It’s not gonna change anything in the real-life experience of Friends, I don’t think,” Nabulsi said.
- Concern: 90 Year Effective Term (lease structured as a 10-year term with eight 10-year renewal options)
Following discussion on the length of the lease term, the BOS asked that the first term of the lease be changed to only five years in order to, in part, test out the workings of the agreement, and then feature eight 10-year opportunities for renewal.
Per the BOF suggestion, however, BOS members suggested that instead of the lease renewing by default every 10 years, instead the BOS must proactively see the lease renewed.
BOS members also batted around the idea that renewal of the lease should be encouraged by language outlining what criteria FOAF would need to meet to, broadly, warrant BOS lease renewal approval in the future. Members suggested this could include a recognition that the nonprofit is delivering on its mission statement, as well as other elements, including proper staffing, board representation and insurance.
“My big-picture thing is fulfilling the mission … In my view, the agreement should be renewed if they’re delivering on the mission,” Nabulsi said.
- Concern: FOAF Retains All Revenues
The issue of potential revenue sharing was tabled at Healy’s request.
“I’d rather come back to it another time,” she said.
In its comments, which were presented as a 17-point memo to the BOS, the BOF noted that the current proposed lease has FOAF retaining all income, with no financial reporting or requirement to offset subsidies from the town.
Reaction
Two members of the public, including former first selectman Paul Hannah praised the BOS for its work.
“I think the Board of Selectmen has done a great job tonight,” Hannah said, noting they appeared to have ironed out the issue of the town’s commitment of future expenses without due process for approval.
Peter Wrampe, Republic Town Committee chair, also had positive words.
“You have given some good thought to this process … I want to congratulate you,” he said,
Bayer, however, voiced strong disapproval, also noting that until the BOS finalized its revision, he couldn’t comment on details.
“I can’t, in any way, respond to what we’ve heard tonight, because it can change at the next meeting (but) when I hear things like, ‘We’re asking for subsidies,’ I can tell you on an emotional level,” he said, he felt “frustration and disappointment.”
“It sounds like you’re making presumptions that the board is going to live up to the obligations that it agreed to live up to in this lease (but) with a completely different structure than what was negotiated to begin with,” Bayer said.
“The comments that have been made that this is going to be subject to further comment and to further comment and to further comment, does not give me any real confidence in going to my client, the board, and suggesting that we respond to anything that we’ve heard tonight,” he said, “because I feel like the end zone is moving.”
Boucher, meanwhile, said that, while according to town counsel the BOS was not legally required to do it, she wants to see the lease brought before a Special Town Meeting for a vote.
“Now the next step is, we revisit this but maybe we should also get some input from the other side to see if some of these changes would be acceptable,” she said, noting that Bayer and LoMonte should likely meet and discuss the lease.
Raimondi said he would be happy to return for an additional BOS meeting on the matter, but Boucher, who initially had not even wanted him in attendance at Tuesday night’s discussion, discouraged the idea.
“We appreciate that very much,” she told him. “We hope that we can make progress after this meeting and we’ll keep you informed. Thank you.”
Editor’s note: An original version of this story stated that the BOF members saw the lease as of April 20, but according to BOF Chair Matt Raimondi, he had to request a copy of the lease from First Selectman Toni Boucher, and the BOF was not able to review it until April 29. The story has been updated to reflect this.
Disclosure: Friends of Ambler Farm attorney Doug Bayer is also the attorney for GOOD Morning Wilton. He has not been consulted in advance of this article’s publication.