Attorney says Preston's land buy invalid; referendum needed

Preston - The recent town meeting vote that approved the purchase of two large wooded lots off Route 2 for open space is invalid, and the issue will have to be voted on at a referendum, the town attorney has ruled.

The Board of Finance had asked Town Attorney Frank Manfredi for an opinion on whether the purchase needed a referendum vote, as it called for spending $230,000 from the town open space account to match a $230,000 state grant to buy 140 acres of rugged woodland property.

The open space account consists of fees collected over the past several years from subdivision developments for the strict purpose of acquiring land for open space. Because the purchase did not involve spending taxpayer dollars, town officials had thought the purchase could be approved at a town meeting.

But Manfredi said the town ordinance requiring a referendum for expenditures exceeding $100,000 does not differentiate between general town funds or funds restricted for certain purposes. The open space fund belongs to the town, so a referendum would be necessary to approve spending more than $100,000 from the fund, he said.

The Planning and Zoning Commission on Tuesday approved the purchase using the open space fund and the state grant and forwarded the recommendation to the Board of Finance. The finance board will set a second town meeting date on the issue, and that will be adjourned to a referendum.

If approved, the purchase would use up most of the $265,000 in the open space account, Town Planner Kathy Warzecha said.

The commission also heard a request Tuesday from the Avalonia Land Trust to use some of the remaining funds in the open space account.

Earlier this month, the Board of Selectmen agreed to ask the land trust if it wanted to acquire two vacant parcels totaling 30 acres on Lake of Isles Road that were in tax foreclosure. The properties abut existing preserved land owned by the land trust at the Preston-North Stonington border.

Land trust officials said they are excited at the offer and intend to pursue the acquisition for the back taxes owed, now about $17,000. But the land trust's own acquisition fund, called the Bedrock Fund, is depleted.

Land trust member Robert Chapin of Preston asked the PZC if the town would consider contributing half the total from its open space fund. Chapin said the land, abandoned by STPR Realty Development of Danbury, would provide valuable off-street parking to the entire combined preserve. It would also allow the trust to develop walking trails to land that is now "stuck back" off the road.

But this open space proposal also generated legal questions. Selectman and PZC member Michael Sinko questioned whether the town could use its own funds to essentially help pay off back property taxes also owed to the town.

"You'd be taking it from downstairs (the planning office) and giving it to the tax collector," he said.

First Selectman Robert Congdon said he has asked Manfredi for a legal opinion on the Avalonia request. Preston has worked in the past with Avalonia to preserve open space land in town. When developers of major projects have offered the required 10 percent of a parcel to the town in lieu of paying an open space fee, the land was donated to Avalonia. But in those cases, the transactions sidestepped the town and involved just the developer and the land trust, town officials said.

Chapin said Avalonia is "so thrilled" with the prospects of acquiring the land that the trust will try to buy it even if the town does not contribute.

"Our starting point was to ask for half, and then have a big fundraising effort in town to replenish the Bedrock Fund," Chapin said.

c.bessette@theday.com