BURLINGTON — An ordinance designed to close the Church Street Marketplace to unruly visitors is about to get a second look.
Burlington City Council will reconsider an ordinance that authorizes the removal of people from Church Street for unruly behavior after the public raised concerns over the city’s no-trespass law.
The council voted 11-3 this week to ask the Ordinance Committee to reconsider the ordinance’s constitutionality, which was endorsed by Assistant City Attorney Gregg Meyer’s legal analysis written last June. The memo can be seen below.
The memo was deemed confidential under the attorney-client privilege public disclosure exemption. Council members decided to release the memo to better understand both sides of a constitutional debate.
The Ordinance Committee is required to report back to the council with its reconsiderations of the no-trespass ordinance no later than October of this year. The council could then decide whether to change or rescind the ordinance.
The main focus of an ongoing constitutional debate centers on two concerns: the city’s authority to remove people from a public space, the Church Street Marketplace, and the legal resources for violators who wish to challenge a no-trespass citation.
Meyer said in his memo that the ordinance satisfies both of these constitutional hurdles.
The city has the authority to enforce the ordinance because it has an interest in maintaining a sense of public safety, health and order, his 2012 memo states. However, the memo also says the ordinance must better articulate the reasoning.
The memo also says the ordinance provides adequate due process by providing a quick hearing process after the no-trespass citation is issued. However, it states that the law must include a more defined time frame for the hearing process, which currently takes place no later than 10 days after requested.
However, John Franco, a private attorney who once served as an assistant city attorney, contested Meyer’s legal analysis. His opinions can be seen below.
Franco said the city does not have the authority to enforce the ordinance, which must be authorized by the Vermont Legislature. Therefore, it cannot banish people from the public street.
He also said the ordinance does not provide adequate due process. Franco said the hearing process is too slow and is conducted by an unauthorized hearing panel, the Church Street Marketplace Commission.
“This ordinance doesn’t do that. It shoots first and ask questions later,” Franco told reporters outside City Hall this week.
Sharon Foley Bushor, I-Ward 1, said it may have been a mistake to pass the ordinance last year. In order to reconsider her position on the ordinance, both legal opinions will need to be debated over the summer.
“If you get conflicting information, you don’t just close the door, you decide how you’re going to deal with that conflicting information,” Bushor said, referring to Franco’s opinion.
