Special BOS 1-6-14 Conservation Meeting RCL Notes

BOS and Conservation Process:    BOS and Conservation Process


HTML Version for Civic News:         RyeBOSrclNotes010614revBfinal


Final Revision B – Provided by the Rye Civic League

Present:  Selectmen Jenness, Musselman and Mills.  Also present:  Mike Magnant. Cyndi Gillespie.

Present from the Conservation Commission:  Jim Raynes, Jaci Grote, Sally King

Persons present from the public included:  Mel Low, Jean Low, Mae Bradshaw, Alex Herlihy, Paul Goldman, Ray Jarvis, Lindsey Josephs, Lee Perrault, plus approximately three other unknown persons.

Editor’s note:  For ease in finding particular sections using the archived video and audio on the Town website, the elapsed time is indicated.  Use the slider and the elapsed time indicated at the bottom of the video window to fast forward to the desired section.  Videos on the Town website may currently be accessed at www.town.rye.nh.us by clicking on “Town Hall Streaming” at the bottom left of the screen.  Follow the link for “Town Hall Live Streaming,” then find the meeting by date under “Previous.”

The video begins at 4:00:11 p.m. (0:00 elapsed)


  1. Selectmen enter non-public session, following which Conservation Commission members indicate that they are in agreement with a proposed new process for the Selectmen to follow in approving their acquisitions.
  2. Selectman Musselman questions public access to Conservation Commission documents at Town Hall that have, in the past, required a Commission member present to be examined.
  3. Members of the public object to:
    1. Past use of taxpayer funds to acquire easements in the name of the Rockingham County Conservation District.
    2. The apparent expenditure of $70,000 for a deed on a property that was already owned.
    3. The implicit assumption in the procedure that all initial meetings will be non-public, when New Hampshire law restricts the circumstances under which those meetings may occur.
    4. The implicit assumption in the procedure that no information will be available to the public until 10 days prior to the public hearing.
    5. The continued holding of minutes of non-public sessions under seal, even after transactions have been agreed to.

4.  The Selectmen unanimously approve the process and then unanimously approve the $3 million Conservation warrant article.  Selectman Mills states that he changed his vote and asks that Chairman Raynes support him, as he has supported the Conservation Commission.

Request for non-public session (0:00 elapsed)

As the meeting began Selectman Mills indicated that Mr. Raynes had requested a non-public session.  Mr. Raynes stated that it would only take five minutes.  The meeting then went into non-public session and the members of the public left.

The video recommences at 4:12:07 p.m. (0:20 elapsed)

Public session resumes:  Discussion of land acquisition approval process (0:20 elapsed)

Mr. Raynes started by referring to a five acre Eldridge parcel on Garland Rd. that fractured the backlands.  That stopped a road being run from South Rd. to Garland Rd.  The Green Co. came to them shortly afterwards and wanted to sell their adjacent land, as it was no longer developable.  The Conservation Commission purchased it for what the Green Co. had paid for it, approximately $50,000 for 40 acres, he said.

Mr. Raynes stated that, every single time since they had received funding in 2002, he had come to the Board of Selectmen and made them aware of what the offer was.  He explained how they were able to purchase property for no more than 10 percent higher than the tax assessed value.  If the seller did not like that, they could provide an appraisal.  The Conservation Commission has never bought anything higher than the appraisal, he said.  Since 2002, they have obtained easements on 16 parcels of land, and have purchased, or had given to them, 22 parcels that the Town now owns.

Mr. Raynes stated that he would permit Sally and Jaci to address the other items on the “(a) to (p)” list and stated that he is comfortable that they can live with.  Editor’s note:  A document dated December 23, 2013 on the Conservation Acquisition Approval Process includes paragraphs numbered 2(a) through (p).  That document is available at https://ryecivicleague.org/wp-content/uploads/2014/01/ConComAcqProcessDraft122313.pdf.  There is apparently a later version that was discussed during this meeting. 

Mr. Raynes stated that they could continue with the executive session to either say yes or no to proceeding.  If they are strong they will drop it there.  The RSAs require them to have a public meeting.  If there is something that comes up, then it dies there.  Editor’s note:  It was unclear what Mr. Raynes was talking about, however it has been publicly disclosed that the Conservation Commission is in discussions with the owner of the former Rand Lumber parcel. 

            Ms. Grote addressed the procedure.  They are in agreement now that their comments resulted in changes.  The only comment is with respect to the January 3 draft, in that it does not mention the Conservation Commission’s public hearing.  Selectman Musselman stated that the Conservation Commission’s hearing was separate.  It is up to them whether it is combined with another meeting.  Selectman Musselman stated that the procedure documented is the one for the Board of Selectmen.  Ms. Grote stated that they would accept it as is, since they would have their own public hearing.

Selectman Musselman stated that he had a change to item 2(e) that they had not seen.  He had a change to the language to make it applicable to easements as well.  Ms. Grote was in agreement.  She requested that a note be added that the Conservation Commission is not covered by this procedure, and that they had their own set of procedures.

Mr. Raynes stated that Chris Keenan makes sure that the Town does not “get out on a limb.”  He follows through and does a title search and any purchase and sale agreement.  Their public hearing would be after all of these steps had been completed.  They will work with Mike to assemble the information on the list.  Editor’s note:  Mr. Raynes was apparently referring to providing items 2(a) through 2(p) to Town Administrator Mike Magnant, although this was not entirely clear.

Selectman Mills asked whether Mr. Keenan had reviewed this procedure.  Mr. Raynes stated that he had not, and he is aware that Mr. Keenan’s opinion and that of Mr. Donovan do not always coincide.  He stated that he would forward a copy to Mr. Keenan.  Ms. Grote interrupted, stated that “we as a Commission are accepting this procedure…”  Selectman Mills stated that it should be reviewed.  There might be a difference of opinion between Mr. Donovan and Mr. Keenan he said.  One is black and the other is white, he said.  Mr. Raynes stated that he felt that they had come to a meeting of the minds and could live with this process.  Unless Mr. Keenan has a real problem, this is how it will stand, he said.

Ms. Grote stated that the only difference of opinion would be in sections (a) through (p), and what is applicable.  The rest is the Board of Selectmen’s procedure.  They should try this.  Things can be modified.  “We are very cozy,” she said.

(10:31 elapsed)

Selectman Musselman read new language clarifying that this was the procedure of the Board of Selectmen only and that the two public hearings could occur coincident with, or separate from, the Board of Selectmen’s hearing.

Selectman Musselman stated that there was another issue with respect to the files.  The files are locked in a cabinet at Town Hall, but he does not know who has keys.  Someone interjected that Peter Rowell has a key.  Editor’s note:  Mr. Rowell is the Building Inspector.  Selectman Musselman asked whether they had an issue with the public looking at any of the Conservation Commission files.  Mr. Raynes stated that any time someone pulled any of their files, one of their members had to be there.  It is locked because they are missing files, Sally King stated.  There is nothing in the cabinet that is not public, she said.

Selectman Musselman stated that the spirit of the right-to-know law requires that someone who comes to Town Hall can have access on a regular basis.  Editor’s note:  See N.H. Rev. Stat. Ann. (“RSA”) 91-A:4, IV.  The spirit of the law would probably not permit them to call someone and make an appointment in each case, he said.  There was discussion about a sign-out sheet and the ability of members to make copies on site.

Mr. Raynes stated that the records are in good shape since Dyana has become involved in the past two or three years.  Prior to that, they left something to be desired.  Some are in storage at the fire house, he said.

Ray Jarvis, 83 Liberty Common, stated that he had worked for the State and, in that position, had 54 file drawers of documents.  Nobody could come in and just take files.  There needs to be someone responsible, and if members of the public want to access something, they need to go through that person.  Any document needs to be handed to the person and then handed back.  Unless the files are backed up, without tight control anything can happen.  With regard to the process, not every transaction in sections 2(a) to (p) will always apply.  Selectman Musselman stated that Mr. Jarvis had an old version, and read a new provision permitting the Town Administrator to waive any of these requirements if deemed by them to be inapplicable.

Selectman Musselman stated that Mr. Rowell needed to understand the files so that he can access them and provide them to the public.

There was discussion about Internet access.  Selectman Musselman stated that they were far from having everything scanned.  Mr. Magnant stated that the process being discussed, of having employees provide files to the public, was what is followed now with regard to Town files.  Selectman Musselman stated that they wanted to extend this process to the Conservation files as well.  Mr. Magnant stated that other committees maintained their own files.  That is an issue that needs to be tackled, he said.

Selectman Musselman asked about issues that are under negotiation and whether they kept that information at home.  Mr. Raynes described certain documents that he had at the current time.  Selectman Musselman stated that, if there were versions going back and forth, those should not be in a public file.  Those need to be segregated at Town Hall or perhaps at their homes.

Selectman Jenness asked whether the files would be looked at in the presence of Mr. Rowell.  Mr. Magnant stated that Mr. Rowell was aware that files needed to be reviewed in the presence of a Town employee.

Public comments about the proposed agreement (21:33 elapsed)

Mae Bradshaw, 106 Harbor Rd. stated that, as part of the CIP process, they had been given a list of properties that had been acquired, including the books and pages and the consideration.  Editor’s note:  Ms. Bradshaw is a member of the CIP Committee.  She stated that she had pulled some of the deeds.  She had spoken with Ms. King about some issues, but others remain.  A number of properties are in the name of the Rockingham County Conservation District (“RCCD”).  The Town of Rye gets an executory interest pursuant to which it may enforce an easement if the Conservation District does not.  She is not comfortable with the use of taxpayer money to buy property or secure easements in the name of another entity.  There are four or five properties on the list where that is the case.  There is one that is in the name of the Conservation Commission itself rather than the Town.  Editor’s note:  RSA 36-A:4, I only permits property to be purchased “in the name of the city or town…”  Ms. Bradshaw suggested that the name of the acquiring entity be part of the list of requirements.

Ms. Bradshaw then stated that she did not know where one could go to get an accounting of the money spent.  There is a confirmatory deed with a $70,000 attribution of value, but no additional property was acquired.  There is also a discrepancy as to the acreage.

Selectman Musselman stated that changes described in the latest version “require that the specific proposed conservation agreement and easement be presented,” so that would be available in writing so the entity holding the easement would be clear.  With respect to the holder, Selectman Musselman stated that sometimes the holder of the easement is a preference expressed by the property owner.  Selectman Mills asked whether anyone from the Conservation Commission wanted to respond.  Mr. Raynes and one other person said no.

Ms. Bradshaw stated that that needed to be made clear to the voters that at times the preference may be in the name of another entity.

(26:01 elapsed)

            Peter Crawford, 171 Brackett Rd., stated that the first step of the process is a non-public session.  In some cases it might be appropriate to have some of the information public.  He used the example of the Rand parcel where the fact that it was for sale was widely known due to the signs out front.  In such a case, everything but the price could be discussed in public.  In other circumstances, the fact that the property was being considered might cause the price to be bid up.  Only what is permitted to be non-public pursuant to RSA 91-A:3 should be non-public.  In the draft, as he reads it, there is an assumption that the entire process at that point would be non-public.

In addition, although ambiguous, it looks like the public would not have access to the materials until ten days prior to the hearing, Mr. Crawford said.  If the document is public it should be available to the public as soon as it is finalized.  If the RSAs say that a document is public, it should become public at the time that the RSAs say that the document is a public document.  Ms. Grote stated that the material would become available at the public BOS meeting referred to in section four.

Selectman Musselman stated that Mr. Crawford raised a valid point as to paragraph 1 and indicated that some language could be inserted “to the effect that meetings will be non-public if and as necessary under RSA 91-A…”  In what they have heard in prior non-public sessions, however, almost everything has to do with a deal that is not yet done and is in negotiation.  It would be inappropriate to release that to the public.  That could change the deal or someone’s willingness to do the deal.  However, if there is something that is clearly public that should be made available, Selectman Musselman said.

Mr. Crawford stated that his fundamental point was that the process would not trump the RSAs.  Selectman Musselman agreed, stating that “it would never, it can’t.”

Mr. Raynes stated that the Conservation Commission operates under RSA 36-A, four and five.  When they meet with the Selectmen, that is required to be an executive session under the RSAs applicable to the Conservation Commission.  He stated that they have been burned.  Some realtors involved with the White Horse Development had considered suing the Town.  He suggested that they keep doing it the way they have been for 23 years.  Selectman Musselman suggested that references be added to RSA 91-A and RSA 36.  Mr. Crawford stated that it should be 36-A.  Editor’s note:  There is no provision in RSA 36-A or 91-A requiring executive sessions as Mr. Raynes appears to assert.  RSA 91-A:3, II (d) permits, but does not require, non-public sessions when the “[c]onsideration of the acquisition, sale, or lease of real or personal property which, if discussed in public, would likely benefit a party or parties whose interests are adverse to those of the general community.”

            Mr. Crawford stated that, reading chapter 91-A, it seems to him that once it’s a done deal, the minutes of any non-public session should be available unless there’s an extraordinary reason not to make them available.  Selectman Musselman said “not necessarily.”  Mr. Raynes referred to them having been sealed.

Mr. Crawford read from RSA 91-A:3, III:  “the information may be withheld until, in the opinion of a majority of the members, the aforesead circumstances do not apply.”  One of the circumstances is “render the proposed action ineffective.”  The reason to have a non-public session is to prevent someone from coming in and bidding up the price.  “Once it’s a done deal, that reason no longer exists so the members should vote to unseal the minutes,” he said.

Selectman Musselman said “if we chose to.”  Mr. Crawford stated that they would need to do that, if they are following the RSA if there is no longer a reason to have them sealed.  Selectman Musselman agreed, saying “correct.”

(33:22 elapsed)

            Alex Herlihy, 55 Lang Rd. made a general comment that he will also make to the Planning Board.  He has always been a supporter of conservation land.  However, in light of a Portsmouth Herald article about the graying of New Hampshire, appropriate development is needed.  Affordable housing is needed to permit young people to move into Town, which would lower the average age of 49 years.

Ray Jarvis spoke up in favor of privacy.  A lot of times it is a gray area.  You are headed for trouble if the tendency is to make things public.  Once released to the public, it may not then be made non-public.  He treasures privacy.  Selectman Mills rose and applauded, thanking Mr. Jarvis.  Selectman Musselman stated that they did the best that they could in gray areas under a gray statute.  There was laughter.

Selectman Mills asked whether “you people” were happy, referring to members of the Conservation Commission.  Jaci Grote stated that she was “cozy and thrilled.”

Approval of the process and the $3 million warrant article (36:08 elapsed)

            Selectman Musselman made a motion to approve the Board of Selectman Approval Process for Land Acquisition as approved and as modified at this meeting.  Selectman Jenness seconded the motion.  All were in favor.

            Selectman Mills asked whether there was anything else they wanted.  There was laughter.  Selectman Musselman made a motion that they recommend the passage of the warrant article for the $3 million as presented.  Selectman Jenness stated that her vote had not changed, and seconded the motion.  Selectman Mills then said:

“I’ve changed my vote now, Mr. Raynes.  Remember that.  Okay.  I’m supporting you now.  You support me.“  Mr. Raynes responded, “you bet.” The rest of his response was inaudible, but resulted in laughter.

The motion carried unanimously.

Non-public session (38:10 elapsed)

The Board of Selectmen then voted to enter a non-public session.  Editor’s note:  There was discussion prior to the start of the meeting about going into non-public session on collective bargaining issues.