Suit filed against town
Ledges users say board violated state’s open meeting law, exceeded authority in defining nudity as “public nuisance”

By Dawn Nieters

NEWFANE- Three users of the clothing optional Ledges area on Harriman Reservoir filed suit against the Town of Wilmington last Friday, in response to the public indecency ordinance approved by the town’s selectboard last month.

Plaintiffs Phil Markham, Joanne Ruppel and Thomas Aiksnoras contend the town exceeded its authority in adopting an ordinance “that prohibits plaintiffs’ nudity at the Ledges as a ‘public nuisance.’” The plaintiffs also contend that the board’s decision not to take public comment, either in favor of or opposition to, the proposed ordinance, at their June 12 selectboard meeting, violated Vermont’s open meeting law. The board had taken comment at their meeting the previous week, but reserved the next meeting for discussion by the board. “Although I have a great deal of faith in the voters of Wilmington, I felt that this filing served an important function of check and balance of the selectboard that passed the ordinance,” Markham said, adding it was the comments of “many townspeople” following the June 12 meeting which inspired him to file the suit.

The lawsuit was filed just days before selectboard members accepted a petition to rescind the ordinance, signed by over 100 of the town’s legally registered voters, according to town clerk Susan Manton. Markham said filing before a vote on the petition, which may or may not nullify part of the lawsuit, was mandated by Vermont statue, which provides a 30-day window of opportunity following the selectboard’s decision. “Otherwise we would have waited for the voters to speak,” Markham notes.

Markham, an Albany, NY resident, and organizer of the Friends of the Ledges advocacy group, noted he would have preferred the suit be filed by a local resident, but said he understood why some local Ledges users might be hesitant to do so. “Unfortunately when you look at a situation with these kind of rights and so forth…sometimes it’s because of fear of repercussions, of being persecuted.”

The Ledges have been a controversial issue since last year, when Margaret Frost, whose family owns a cabin near Harriman Reservoir, came to the selectboard to complain about encroachment by Ledges users and lewd and lascivious conduct around the Ledges area. Board members worked with users of the Ledges, Frost and land owner U.S. Generating Co., to address the problem, but Frost returned this year to say that her complaints had not been addressed.

On June 12, selectboard members adopted a public indecency ordinance, based on language passed by two other Vermont communities. Board members voted four to one in favor of the ordinance. The petition to rescind the ordinance was submitted Wednesday night by Wilmington resident Kevin Downey. Manton confirmed the required number of signatures had been obtained. The board will meet next week to set a date for a special town meeting at which voters will weigh in on the issue. Later at Wednesday night’s meeting, when the issue of the lawsuit was raised, Downey said the petition was not an effort of the Friends of the Ledges, nor was it related to that organization. He told the board he did not approve of, nor was he involved with, the lawsuit.

In their complaint against the town, Markham, Ruppel and Aiksnoras request a judgment declaring the ordinance invalid or, “in the alternative, as applied to nudity at the Ledges.” They also ask that enforcement of the ordinance be enjoined, or alternatively, enjoined specifically at the Ledges.

Secretary of State Deborah Markowitz said the plaintiff’s contention that the selectboard violated Vermont’s open meeting law is a “gray area.” Markowitz said it is legal for the board to hold a meeting, take public comment and adjourn the meeting to a date certain to continue discussion exclusively amongst board members. “If that’s what happened, they’re ok,” Markowitz says. “If they didn’t, then it’s a gray area, because in effect that’s what they were doing, but the court will weigh whether the intent is met.”

Markham says the comments which he was not permitted to make were with regard to process, and not an attempt to lobby for the Ledges. “My point of order at the June 12 selectboard meeting was a question of due process based upon improper distribution of agenda material, as demonstrated when it was determined that Kasanoff (selectboard member Paul) was reading from the wrong proposed ordinance,” Markham said. “And for not allowing proper public comment before taking the important action of lawmaking.”

Markham said his comment was not included in the minutes of that meeting.

The board did not make any public comment on the suit.