Town Purchase of Transfer Station Land – RCL Notes as of 12-30-16

Summary for Civic News

1.  The Town has purchased one acre of land that is part of the Transfer Station for $75,000.  See Herald article:

2.  Following the refusal of the Selectmen and the Town Administrator to provide more detail at their December 27, 2016 meeting (see the public comment period at the beginning of the portion of the meeting at Town Hall), the RCL uncovered additional details by reviewing publicly-available court records.

3.  In 1904, one acre of land at the  land at the southeast corner of the Transfer Station (presently used for compost) was deeded to the Town by Sidney and Florence Jenness with the proviso that, once all of the gravel on the lot had been exhausted, it would revert to them or their successors Click to see the deed  Deed1904

4.  Florence Jenness died in 1943 while in a home for the aged.  She had left her estate to the home.  The assets of the home were ultimately transferred to Wentworth Senior Living.  The reversion right of Florence Jenness had apparently been forgotten.

4.  In 1982, according to the Town, the gravel was exhausted.

5.  In 1986, an access easement across the former Jenness land was granted to the predecessor of Zed and Wendy White, who own the otherwise landlocked land  to the Northeast of the Transfer Center, and a fence was erected between the Transfer Station and the easement Click to see the plan –  Transfer Station Plan

6.  Apparently having discovered the reversion provision in the 1904 deed in connection with a 2015 survey, the Town sued Wentworth Senior Living earlier this year, seeking to “quiet title,” i.e. have a court declare that it owned the land, eliminating a “cloud” on the title.  The Town alleged that it had been twenty years since the gravel had been exhausted and the fence erected, and that it should have been apparent to Wentworth Senior Living that the Town had taken possession of the property.  Thus, the Town asserted, after 20 years, that the title reverted to it under the law of adverse possession.

7.  For its part, Wentworth Senior Living asserted that it could not have known that the gravel had been exhausted, and that the fence prevented it from being able to observe the property.  It filed a counterclaim (i.e. claim against the town that is part of the same suit) for “ejectment,” seeking to force the Town to cease occupying what the Wentworth claimed was its property.

8.  The case went to mediation on December 16, 2016 at an office at Pease Tradeport.  The RCL was there to videotape the motion and vote to go into non-public session, as is permitted by RSA 91-A:2, II and 91-A:3, I(b).  However, Town Attorney Michael Donovan twice sought to tell the RCL representative that he could not be present or videotape the vote.  Nevertheless, the Selectmen permitted the RCL representative to proceed with the videotaping of the motion and vote.  Selectmen Musselman and Jenness, as well as Town Administrator Michael Magnant and Attorney Donovan were present (Click for the video https://vimeo.com/197903019

9.  An agreement to settle the matter (click here ) was entered into on December 16, 2016.  The provision requiring a vote at 2017 Town Meeting is scratched out.  The subsequent December 22, 2016 motion (click here ) requesting entry of a decree (click here ) by the town states that the land has been deeded to the town in return for consideration, apparently the $75,000.  The motion is still pending before the Rockingham Superior Court in Brentwood.

10.  According to Town officials, a check payable to Wentworth Senior Living was sent on December 22, 2016.  Click Here

11.  The land purchase appears to be illegal for two reasons:

a.  The 2016 Town Budget approved by voters in March 2016 provides no funds for land acquisition, other than for conservation.  No mention of conservation land appears in the documents.  While the Selectmen may transfer funds between budget line items, they cannot make up a new line item (i.e. purpose) that was not disclosed to voters with the budget.  See RSA 32:10, I(e) (Click here ).  The Selectmen may only expend amounts that have been appropriated by the voters.  Judging from the deleted language, the need for Town Meeting approval seems to have been recognized by the Town Attorney.

b.  While the Selectmen were given authorization in 2002 to acquire land without Town Meeting approval, RSA 41:14-a (Click here) requires that the Planning Board and the Conservation Commission review and make recommendations and that there be a public hearing.  None of this was done.

12.  The land is less than the minimum lot size of approximately 1.5 acres applicable in the Single Residence District in which the lot lies, and thus would be unbuildable without a variance.  In addition, the land is low lying and accumulates water after significant rainfall and may be unbuildable for that reason alone.  This calls into question whether the land is worth $75,000, even without considering the probability that the Town would prevail against the Wentworth.