The decision to allow up to 100 nonresidents to buy passes to the Waveny Park pool may not have gone through the proper legislative process, the Town Council heard at its meeting Wednesday night.

Town Counsel Ira Bloom said the decision, which was approved by the Parks and Recreation Commission and by the Board of Selectmen, should also have gone through the Town Council, which it did not, before becoming the rule.

The discussion at the council meeting was wholly devoid of any judgment on the merits of such a rule, which has been criticized by some in town who want it overturned.

"This item on the agenda is really about our looking at the process, not the issues around it," Town Council Chairman Mark DeWaele said.

Whether or not out-of-towners ought to be allowed at the pool became an issue earlier this month when a group of residents calling themselves Friends of Waveny Pool had collected more than 100 signatures on a petition asking that the decision be overturned. Many people, both inside and outside the community, cried "elitism," at the petition in online comments and letters to the editor.

Bloom said there is a section in the town's ordinances that states that parks are for the use of New Canaan residents and their guests only.

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"That's something I think you should look at because I think there's a good possibility that prohibition is not allowed in the state of Connecticut," he said, referencing the 2001 Connecticut Supreme Court case Brenden Leydon v. The Town of Greenwich, which ruled that parks must be open to everyone.

Recreation Director Steve Benko said the town was aware of that ruling, and already had responded to it. Years ago, he said, the town had signs outside of Waveny that noted the park was for residents only. In light of the ruling, the town took those signs down.

Still, it was not at all clear that the town would have to make amenities within its parks open to all, Council member Ken Campbell said.

"Can they just walk into Waveny House? The Lapham Center?" he asked.

Bloom, who is also the town attorney for Westport, noted that many towns allow any number of nonresidents to use their beaches, but charge much more for passes to nonresidents.

"Westport does charge more for out-of-town folks at the beach. That's a fair way to do it, taxpayers do pay for upkeep," he said.

Waveny pool is now closed for the winter, and the decision to sell passes to nonresidents was only for 2013. Any decisions the Parks and Recreation Commission wishes to make for next year, whether to sell passes to out-of-towners or to change town ordinances, will have to go through the Town Council, the discussion at the meeting made clear.

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