Amherst school project referendum set amid legal confusion

Staff Writer
Thursday, February 16, 2017

AMHERST — Residents will have a final say on the project to construct a dual elementary school for 750 students on the site of Wildwood School, rejected twice by Town Meeting, when annual town election is held March 28.

But it’s possible overturning Town Meeting’s decision against authorizing borrowing for the $66.37 million project could be significantly harder than some who petitioned for the referendum vote initially anticipated, depending on an opinion the town receives from its attorney, KP Law.

The Select Board Monday agreed to schedule the referendum on a separate ballot from the annual election after Town Clerk Sandra Burgess informed the board that her office had certified 1,016 of the signatures submitted a week ago, clearing the 5 percent, or 829 of 16,569 active voters, as of the Jan. 30 dissolution of Town Meeting.

Supporters of another townwide vote are relying on the Town Government Act, which provides for referendums. That act states that “no action of the representative Town Meeting shall be reversed unless a number of registered voters equal to at least 18 percent of all the active registered voters shall so vote.”

The word “so” is key.

One side interprets this language to mean that at least 18 percent would have to vote in favor of overturning Town Meeting action. The other side takes it to mean 18 percent would simply have to vote.

In both cases, two-thirds of those who vote in the election must approve the borrowing.

Vincent O’Connor, a Precinct 1 Town Meeting member, said that previous town counsel Alan Seewald interpreted that this language to mean that at least 18 percent, or 2,983 residents, would have to vote in favor of overturning Town Meeting action.

O’Connor said this was his experience in previous referendum votes, including in the 1970s on rent control, in the late 1990s on the Boltwood parking garage and in 2005 on the Plum Brook recreation fields.

A different legal interpretation, though, would state that if 2,983 came out to vote, meeting the 18 percent threshold of all active voters, two-thirds, or 1,989, would have to vote in favor of overturning Town Meeting.

Select Board Chairwoman Alisa Brewer said it is important that KP Law attorneys dig deeper into the language of the Town Government Act to determine whether the 18 percent only refers to voter participation.

Assistant Town Manager David Ziomek, who is serving as acting town manager with Paul Bockelman on vacation, said he has been in touch with KP Law’s Joel Bard.

Annual election set

Meanwhile, the Select Board unanimously signed the annual election warrant for March 28, which will have townwide and precinct races, but no binding or nonbinding questions.

KP Law has informed town officials that the special election referendum can be held at the same time, from 7 a.m. to 8 p.m., but that the question cannot be on the same ballot.

The will require additional staffing to check people in and hand out ballots.