Voters have another shot at nude law
By Dawn Nieters
WILMINGTON- It may be too cold for skinny-dipping but the issue certainly hasn’t been put to bed for the season in Wilmington, where voters will have another chance to either uphold or rescind the town’s public indecency ordinance, adopted by the town’s selectboard in June.
As the result of a successful petition effort by advocates of clothing-optional recreation at the Ledges on Harriman Reservoir, voters will have yet another opportunity to reconsider the ordinance. Voters upheld the ordinance in August by the narrowest of margins, 289 to 282.
Ledges advocates and opponents of the ordinance went to work once again after their efforts were defeated, collecting over 100 signatures which were submitted to the town after a short petition drive. The board agreed to “piggyback” the vote with the general election, a combination which will likely insure a high number of voters weighing on the issue once again.
Selectboard members adopted the public indecency ordinance this year in response to complaints from Vernon resident Margaret Frost, whose family owns a camp near the shore of Harriman Reservoir, just north of what has traditionally been known as the Ledges nude beach. Frost came before the board in 2001 to complain that Ledges users had spread far beyond the traditionally accepted boundaries, and were engaging in lewd and lascivious conduct in the woods near the beach.
The board discussed the matter in meetings with Frost, property owner U.S. Generating Co., and the fledgling Friends of the Ledges. Board members thought they’d reached a solution by implementing boundaries for the clothing-optional area, but later found that U.S. Gen. was not willing to post the boundaries, fearing discrimination lawsuits and a violation of their Federal Energy Regulatory Commission license.
Wednesday night, the board hosted a public informational hearing, required by statute prior to the vote, and heard from residents and non-residents, Ledges users and local non-naturist supporters, as well as Frost herself and a few other local proponents of the ordinance.
Frost told the board and the relatively small audience of roughly 25 that she would have been happy if boundaries were posted and respected, but said the power company will neither post signs nor allow anyone else to do so.
“Unfortunately, U.S. Gen. backed down,” Frost said. “They will not allow anyone to put up signs. So if no one can put up any signs, how do we solve the problem?”
But Frost’s side appeared to be outnumbered by Ledges users and other ordinance opponents, who accused the selectboard of acting rashly, without appropriate research and with a solution that doesn’t fit the problem.
Wilmington business owner Robert Pelosi, who proffered an alternative ordinance at the last public informational hearing, said he’d conducted extensive research which made him question the defensibility of the law.
“I’m clearly against having an ordinance, and particularly this ordinance,” Pelosi said. “We have a flawed ordinance…(that) will not stand up to the scrutiny of the federal supreme court. If we have to have an ordinance we should have the best possible ordinance we can have.”
Pelosi said the “handwriting is on the wall,” adding that if the ordinance is defended in the same way recent town legal battles have been, the town is in for a long and expensive legal challenge.
Selectboard members told Pelosi the ordinance had been modeled on one used by South Burlington, which had been upheld in federal district court. Town manager Sonia Alexander said she was told by the South Burlington city manager that the same ordinance had been upheld in a supreme court test, but added that despite extensive research she has not been able to find a case citing which includes the text of the ordinance.
Alexander said the only change was the inclusion of an exception to the law for breast-feeding mothers.
Selectboard members defended their decision to adopt the ordinance, telling the audience they had sought other solutions without success. Board member Paul Kasanoff said his decision was based solely on the possibility of a strip club opening in Wilmington, and not on the Ledges. “If the people and the nudism were strictly at the Ledges, I don’t think it would be a problem in my opinion,” Kasanoff said.
Selectboard chair Fred Skwirut said the decision to adopt the ordinance was in response to the board finding itself in the same position during the summer of 2002 as it had been in the previous year, with complaints about the Ledges and no other ways to address them. Skwirut added that issues related to the town’s lack of a public nudity ordinance had been raised in the past, but the board had declined to adopt such an ordinance, feeling it was not the appropriate way to address the issue.
Wilmington resident Kevin Downey, who submitted the first petition to reconsider the ordinance, said Wednesday night he thought the strip club issue was a “scare tactic” noting he’d had a discussion with the business owner reportedly considering such a venture, and told him it wasn’t economically viable. “I told him ‘you’re not doing your research.’ The demographics don’t support it.’”
Business owner Cliff Duncan said he disagreed, noting that in his discussion with the same business owner he was told the operation would be relying on out-of-town customers who preferred not to be seen in such a club in their own back yard.
“People don’t want to be seen locally entering or leaving a strip club,” Duncan said, in comments advocating for the ordinance. “I don’t think he (the business owner) was counting on this valley being his biggest support.”
Duncan likened the situation at the Ledges to ones he had faced as president of the local snowmobiling club, when access to trails had become more and more restricted because of a “fringe element” which abused the privelege. “I think the reality of it is that this frontier has been lost. The quiet secluded area the Ledges once was is gone,” he said, suggesting he wouldn’t have a problem if clothing-optional users found a different, less public area to use.
Voter Mike Eldred questioned Duncan’s assertion with regard to the strip club, suggesting that those operations catering to a long-distance clientele usually enjoyed the benefits of interstate access, which Wilmington lacks. He went on to question an opinion provided by the town’s attorney, Dick Gale, with regard to judicial interpretation of the ordinance, noting that some residents had already suggested the town find new representation. As for the board’s decision to adopt the ordinance, Eldred said he was offended.
“I spent 11 years in the military defending liberty,” he told the board. “And I really resent coming back here and having it voted away.”
The opinion to which Eldred referred, was requested by town officials after receiving a number of letters and comments on the ordinance from residents and non-residents, suggesting its vagueness created a number of potential hazards for the town. Many said the use of public urinals and locker rooms, or even a parent changing a child’s diaper could be prohibited by the ordinance, but Gale disagreed, saying common sense and legislative intent would be considered by any court. Gale said the definition of “public place” could be construed differently depending on definition and intent.
“Clearly the legitimate use of a urinal in a public restroom is not illegal if the user is pointing in the right direction,” Gale said. “Likewise, it is not illegal to change clothes or shower in a locker room despite the fact that such places may be open to members of the public. Such facilities have certain specific purposes and if used for those specific purposes such uses do not violate the ordinance.”
Many opponents of the ordinance questioned its necessity and suggested any real problems could be addressed by existing laws, without infringing on their personal freedoms.
“The ordinance is too broad-based. How are people going to react to this 50 years from now? We need to trim it down,” suggested Wilmington voter Cindy Wiesner, adding that the ordinance hasn’t succeeded in prohibiting nude recreation. “Yeah, you’re kicking people off there, but we’ll still be out there.”
Another Ledges user, Robert Cramer, asked why the town had acted on the complaints of “one single person, Margaret Frost.” Cramer went on to suggest that environmental crimes were being perpetrated by real estate developers near the Ledges and that the ordinance was an attempt to collude with those developers. Cramer was cut off by moderator Frank Spencer, who said he would not allow personal attacks during the hearing.
Phil Markham, organizer of Friends of the Ledges, said he felt disorderly conduct charges, as advocated by Senator Patrick Leahy when he served as a state’s attorney for Chittenden County, could be utilized where nudity which was not lewd and lascivious was nonetheless offensive because of its setting, as in the center of town. Markham said he felt communication and more creative solutions could be utilized to address concerns. “We did have a group of people getting too close to Mrs. Frost,” Markham conceded. “So we walked down there and talked to them and they said ‘we didn’t know.’ Mrs. Frost’s son-in-law thanked us for that kind of work.” Selectboard member Rob Wheeler said he feels the process by which the ordinance is adopted and reconsidered is “excellent.”
“We’ll be voting on whether we accept something our selectboard did or not,” Wheeler said, advocating for voters to make the effort and weigh in. “I hope we can get as large a turnout as possible because this issue certainly deserves it.”