NOTES OF NOVEMBER 24, 2014 RYE BOARD OF SELECTMEN MEETING

Final Revision B – Provided by the Rye Civic League

Present: Selectmen Mills, Musselman and Jenness. Also present: Town Administrator Michael Magnant, Town Finance Director Cyndi Gillespie, Police Chief Kevin Walsh, Public Works Director Dennis McCarthy, Town Clerk Beth Yeaton, Recreation Director Lee Arthur.

Persons present from the public included: Victor Azzi, Lori Carbajal, Peter Crawford, Art Ditto, Dennis O’Brien, Larry Rocha, Katy Sherman.

Summary

1. Constance Abell appointed Deputy Treasurer.

2. State plans for roads including Lang & Lafayette intersection and the Newcastle Bridge are discussed.

3. Beach Committee presents its report. Selectmen question whether a Beach Commission is still needed.

4. Rye joins in new Waste Management contract with the Solid Waste District, saving $17,000 annually.

5. Policy on mailboxes hit by plows discussed.

6. Selectmen approved a $25,000 capital expenditure for two new computer servers after a brief explanation.

7. For the third meeting in a row, Selectman Mills has issued threats against a town resident.

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 starts at 7:02:50 p.m. (0:00 elapsed).

Non-public session with John and Toby Heisey

As the doors were opened following a non-public session, John and Toby Heisey, 150 Harbor Rd. and Town Assessor David Hynes were observed to be inside. While the door was still closed, shouting was heard to emanate from the room. Editor’s note: In the past, there have been discussions with the Heiseys regarding purchase of town-owned land adjacent to their property. See Rockingham County Registry of Deeds Book 3782 Page 827, Rye Tax Map 9.2 Lot 19 (property was taken for taxes from an unknown owner on June 7, 2002, for $108.10). See the notes of the December 23, 2013, March 24, 2014, April 14, 2014, April 28, 2014 and September 22, 2014 meetings.

Announcements (0:41 elapsed)

After the meeting was reconvened after the non-public session and the pledge of allegiance recited, Selectman Musselman announced the Holiday Parade on December 7, 2014 and the closing of the Town Offices and Recycling Center on Friday, November 28, 2014.

Consent agenda (1:56 elapsed)

All three agenda items were accepted without discussion. All were in favor of approving the consent agenda.

Minutes (2:16 elapsed)

The minutes of November 10, 2014 were unanimously approved with one change. The minutes of the non-public session of the same day were unanimously approved without changes.

Appointment of Constance Abell as Deputy Treasurer (3:08 elapsed)

Selectmen Mills and Musselman indicated that they did not know who this person is. Selectman Musselman read a letter from Jane Ireland recommending the appointment. It stated that Ms. Abell is a resident of Rye, a teller at TD Bank and Treasurer of the Rye Lions Club and her church. Selectman Mills then stated that he knew who she is and moved to appoint her. Selectman Jenness seconded. All were in favor. Editor’s note: Jane Ireland is the former Deputy Treasurer. She was appointed Treasurer following the death of Treasurer Leon Blaisdell. See the notes of the October 27, 2014 meeting.

Presentation by Art Ditto regarding State plans for Lafayette Rd. (4:23 elapsed)

Mr. Ditto described a number of planned projects by the State in the area. The Newcastle Bridge is planned for replacement in 2017-2018. Town Administrator Magnant stated that an analysis as to whether the bridge should be a fixed or a lift bridge was complete and would be presented at a meeting in mid-December. Mr. Ditto also discussed plans for improvements in the area where Lang Rd. intersects Lafayette Rd. There is a possibility that that project may be paid for out of the Portsmouth General Fund, he said.

Beach Committee Report (16:13 elapsed)

Larry Rocha presented the report. See: http://ryecivicleague.org/wp-content/uploads/2014/11/BchCteeRpt112414.pdf. Mr. Rocha stated that Colin Drake had made only made one meeting.

There was discussion about charging a fee for permits. Selectman Mills stated that they would be going back on their word at the Beach Usage Committee if such fees were instituted.

Mr. Rocha stated that the Committee was in complete agreement with the 2014 Parking Study. Editor’s note: See the notes of November 10, 2014 meeting. A draft copy of the study is available at http://www.town.rye.nh.us/Pages/RyeNH_Selectmen/DRAFT Parking Assessment Study 100914.pdf.

There was discussion regarding the use of mobile lifeguard stands in order that the lifeguards would be located closer to swimmers at low tide.

With regard to resident parking, Selectman Mills asserted that the permitted spaces were not fully utilized the prior summer. Mr. Rocha stated that this was a light summer for beach use.

There was discussion about the license plates of cars observed near the beach. Mr. Rocha stated that, of 21 cars on Perkins Rd., over half were from Canada, and 20 percent were from Maine. Selectman Jenness stated that, at Jenness State Beach, the overwhelming majority of license plates were from Massachusetts.

There was discussion about the flags. Lori Carbajal stated that she has observed the flags denoting the swimming zone being as close as 15 feet apart, resulting in a tiny area for swimmers. Steve Hillman stated that there should be a consistent starting point for the flags. Larry Rocha spoke about the surf camps having established their position occupying the entire beach prior to the arrival of lifeguards. Nevertheless, they narrowed the amount of beach occupied after being asked to do so.

Selectman Musselman asked about conflicts between swimmers and surfers. Mr. Rocha stated that there were not a lot, but then last summer did not have a lot of extended hot periods.

Selectman Musselman asked about interactions between the Committee and the lifeguards, fire, and police departments. Mr. Rocha stated that he introduced himself to Jane, the head lifeguard, but never heard anything further from her. There appeared to be good cooperation between the police, fire and lifeguards, but there could have been more interaction with the Committee.

(36:37 elapsed)

Selectman Musselman stated that the Selectmen faced a decision regarding what to do with the prior warrant article on the Beach Commission which tasked the Commission with active management of the beaches and overseeing a beach “manager” that they have never had. Editor’s note: See 1999 Warrant Article 25, which passed 1142-519. This article provides for the Beach Commission to assist the Board of Selectmen in hiring a Beach Supervisor, to act as a liason between the Selectmen and the Beach Supervisor, to ensure that the Beach Supervisor performs his or her duties, and to work with the Beach Supervisor on the annual beach budget. Following the 2013 season and the resignation of Mike LaBrie from the Beach Commission, the Commission became moribund. Instead of appointing any of the applicants for positions on the Beach Commission to that Commission, the Beach Committee was formed, with a purely advisory role. All applicants to the Beach Commission were appointed to the Beach Committee. See the notes of the April 14, 2014 meeting. Selectman Jenness stated that there had been no money to hire a beach “manager.” Selectman Musselman asked about the need for a Beach Commission and what the role might be. He stated that they are not sure that a Beach Commission is necessary.

Mr. Rocha stated that the annual lifeguard guide is pretty good. However, he does not know whether anyone in the Fire Department has ocean lifeguard experience in order to provide guidance to the lifeguards. He stated that he has 18 years of experience as a lifeguard, and offered that, but he has been underutilized.

There was no follow-up question by the Selectmen to Mr. Rocha’s statement. Selectman Mills changed the subject to the mobility of the lifeguard stands. Public Works Director Dennis McCarthy stated that they are anchored and chained. Selectman Mills stated that they are anchored to cement and a backhoe would be needed to dig up the cement anchors. Mr. Rocha responded that the issue was safety. At low tide, the stands could be 80 yards from the water. He spoke about the difficulty of seeing people in the water when the lifeguards are not in the stands.

Mr. Rocha stated that he understands the problem of theft, as at the Jersey shore they had had people come by in pickup trucks to steal the stands. Steve Hillman reiterated that it would be easier to see if the stands were mobile. Mr. Rocha spoke about chaining the stands together as a way to avoid theft.

Steve Hillman spoke about the problem with stand-up paddleboards, and people going way offshore. Once in open water they are a vessel and not the responsibility of the lifeguards, but rather the Coast Guard, he said. Lori Carbajal added that, at that point, flotation devices are required because it is a craft.

Police Chief Walsh stated that the chain of communication had improved with the Fire Department in charge.

Selectman Musselman asked about the ticket that was issued to a surfer. Chief Walsh stated that the person plead guilty to resolve the matter.

Selectman Musselman thanked the Committee for a “fine summer’s work.”

Emergency Management Performance Grant (44:56 elapsed)

Selectman Musselman read the motion from the agenda. Selectman Jenness seconded. All were in favor.

District Agreement with Waste Management (46:00 elapsed)

Public Works Director McCarthy stated that the Board had previously voted to use Waste Management for a five year period, contingent upon an agreement being reached with the engineer and the attorneys. Editor’s note: He is apparently referring to CMA Engineers, the firm of which Selectman Musselman is principal, and Hoefle, Phoenix, Gormley & Roberts, a Portsmouth, NH law firm of which Tim Phoenix is, according to the firm’s website, Managing Partner. Mr. Phoenix appears regularly before various Rye land use boards, the Board of Selectmen and the Conservation Commission. Recently, he represented Wallis Road Properties, LLC in connection with a development of the former Rand Lumber parcel and the sale of the back portion to the Town, acting through the Conservation Commission, for $1.25 million. He has also been representing D.D. Cook in connection with a proposed subdivision, currently before the Planning Board, on South Rd. (know as the “Rye Farm”). See the notes and video of the November 12, 2014 meeting of the NH Southeast Regional Refuse Disposal District 53B linked to in the December 2014 Civic News. Rye is one of ten towns belonging to this District. The process developed by the attorney was that the towns would, by signing a joinder agreement select one of two firms to be used, Mr. McCarthy said.

Mr. McCarthy stated that the agreement was with the District, but the Town would participate in that by signing the Joinder Agreement. There would be a reduction of approximately $17,000 in the budget due to the new rates under the agreement. Selectman Musselman stated that he would be abstaining from the vote as he negotiated the agreement with the District’s attorneys on behalf of the District. Mr. McCarthy stated that a good job had been done. Selectman Musselman stated that it was a “fine agreement.” It is the lowest tipping fee that he has seen in a long time. The inflation and change of law provisions are also good, he said.

Selectman Musselman then enumerated the provisions of the motion that would be needed to authorize signing of the Joinder Agreement. Selectman Jenness then said that she made the motion as stated. Selectman Mills seconded. Both were in favor, Selectman Musselman abstained.

Coalition Communities, update on “SWEPT” (49:14 elapsed)

Town Administrator Magnant stated that the issue of dues to the Coalition Communities had come up at the budget work session. Editor’s note: The Coalition Communities are opposed to a return of the “donor towns,” which would result in a portion of the property taxes of certain “property rich” towns, including Rye, being sent to the State to be redistributed to property poor towns. See http://cityofportsmouth.com/coalition/about.html. Currently, the Rye School District is able to retain all of the State Education Property Tax for its own use, and has been doing so since 2005. In Claremont School District v. Governor, 138 N.H. 183 (1993) the use of local property taxes to fund education was held to be unconstitutional as it violated that State’s duty to provide an adequate education. Mr. Magnant spoke about the activities of the group, stating that its attorney had been working with Senator Stiles regarding a constitutional amendment. Senator Stiles decided, however, that the timing was not right. There is a Legislative Commission on the adequacy of education that reported to the Governor. They would like the dues to be returned to the $2500 to $5000 level, as before, he said.

Conservation Commission Bond Loan Agreement (51:35 elapsed)

Town Finance Director Cyndi Gillespie stated that the agreement was needed so that the Bond Bank could go out in the December 4 bond sale. Selectman Musselman stated that the amount was to be $1.3 million, as the first installment on the $3 million. Editor’s note: 2014 Warrant Article 7 provided $3 million in conservation funds for land acquisitions. It passed, after recount, 1001-656, 6 votes more than the 60 percent needed. Selectman Musselman stated what the motion would be. Selectman Jenness made the motion as stated by the Chairman. Selectman Mills seconded the motion. All were in favor.

Resignation of Mark Luz from the Recreation Commission (53:49 elapsed)

Recreation Director Lee Arthur stated that a formal letter had been sent to his current address and a response had been received, indicating that Mr. Luz was resigning. Editor’s note: See the notes of the October 15, 2014 meeting. There had been some difficulty locating Mr. Luz in order to obtain an official resignation letter. Selectman Jenness moved that the resignation be accepted with regrets. All were in favor.

Budget Work Session (55:05 elapsed)

Ms. Gillespie stated that this would be a short session. She has done a summary and made a change for the insurance. There is no change in the legal line item, however, this is where dues to the Coalition Communities would go. The reduced tipping fees are already in the revised budget figures, Ms. Gillespie stated. The debt service has been reduced by $33,000 due to only $1.3 million of the Conservation Bond, rather than the full $3 million, being drawn down, she said. The $9080 removed from Fund 12 has reappeared under Land Management, Ms. Gillespie said. Selectman Musselman stated that the full-time/part-time decision for the Tax Collector’s Office remains to be made. Ms. Gillespie stated that the full-time figure was used for the budget presented. Ms. Gillespie stated that the insurance budget was tabled due to a desire to shop the insurance, however there is no other supplier available at this time.

Selectman Mills asked when the next Budget Committee meeting was, commenting that the Town Clerk issue had not been discussed. Editor’s note: He is apparently referring to the full-time/part-time decision. Ms. Gillespie stated that the meeting was December 10. Selectman Mills suggested a short non-public meeting prior to the next meeting. Editor’s note: The next meeting is December 8. There was agreement that $5000 should be added for the Coalition Communities.

(60:25 elapsed)

Ms. Gillespie explained that there is $35,000 in computer capital items, however, $10,000 of that is the normal rotation.

Dennis O’Brien explained the remaining $25,000 which would fund a virtual server environment for the Town. A couple of pieces of hardware would provide multiple virtual servers. A portion is for a storage array of a large number of disk drives. Two switches would be included to provide for redundancy. Twelve disk drives would be included for redundancy, he said.

Currently, there are three servers, purchased in 2008, 2010 and 2012. Typical lifetime for these is 3-5 years. The three servers are running three different operating systems. This makes it more difficult to “dump over” from one to the other. Mr. O’Brien explained that e-mail, website, streaming and storing of videos and Vision Appraisal had been added. These take up space that they do not have. There are remote sites at Public Works and the new Recreation location.

In response to a question about Cloud Computing, Mr. O’Brien dismissed the desirability of storing data in “the cloud” on the basis that storage would need to be provided somewhere.

There was further discussion about the difficulty of sending e-mails with large attachments to Town employees, the downtime associated with the changeover to the new servers, and smart phones for the staff. The last item led to discussion about Mr. Magnant having dropped his cell phone in the toilet.

All were in favor of approving the changes discussed, except for the Town Clerk/Tax Collector position that would be discussed in a non-public meeting.

Portsmouth helicopter Regulation Update (61:35 elapsed)

Mr. Magnant stated that he had attended the meeting, but nothing could be done. He referred to a review of complaints from “the Chief.” Editor’s note: This reference is apparently referring to Police Chief Walsh. There have been tours as late as 8:30 or 9:30 at night. The only thing that came out of the meeting was a suggestion that the Town write to the Congressional Delegation to encourage the consideration of legislation that would permit towns to have some regulatory authority.

Chief Walsh referred to two official reports and 10-15 dispatch calls. There were $30 tours conducted from a restaurant. Editor’s note: It appears that this is Petey’s, as there is an item on the ZBA agenda for December 3 regarding a helipad. The biggest complaint is that the helicopters are flying between houses. It is a safety concern as there is no room for error, he said. He stated that some of the pilots have been cooperative, agreeing to fly over to the marsh and then go up 500 feet. He referred to a report from Victor Azzi that the helicopters are landing on the beach at Wallis Sands State Park.

Selectman Musselman expressed concern about a letter, saying that, with respect to air rights, it is a legal morass with 100 years of history. Above a certain altitude, nobody has any jurisdiction other than the FAA.

The motion to request that the Town Administrator be empowered to write the letter carried unanimously.

Winter mailbox policy and pesticides (78:06 elapsed)

Selectman Jenness asked whether there was a policy with regard to this. Mr. McCarthy indicated that there was a policy but that he was unsure whether it is written. Selectman Jenness referred to a notice provided by Boothbay which states that that town is not responsible for mailboxes in the public right-of-way. Editor’s note: This would appear to preclude any Town liability in almost every case, as almost all mailboxes are located within the right-of-way. Postal regulations require curbside mailboxes to “be placed to allow safe and convenient delivery by carriers without leaving their vehicles.” They must also generally be on the right side of the road as determined by the direction of travel of carriers. See: http://pe.usps.gov/text/dmm/d041.htm. Mr. McCarthy stated that Public Works replaces mailboxes if the plow actually hits them. This is required in New Hampshire, he argued.

Selectman Jenness stated also that Ogunquit was barring the use of pesticides. This should be looked into at some point. “We are losing Eel Pond,” she said, and asserted that pesticides and lawn fertilizers were contributing to that.

Town Administrator Magnant stated that the mailboxes are a sensitive issue this time of year. Some towns are replacing them with basic Home Depot boxes. Mr. McCarthy stated that they do that as well. They go out to see if the mailbox was set up correctly and whether it was physically hit by the plow and not by snow being pushed. Also, even if the plow hit the mailbox, its condition to withstand the vicissitudes of winter is evaluated. There was laughter.

Selectman Jenness raised the possibility of 100 inches of snow and the Town liability under such circumstances.

Selectman Mills stated that Selectman Jenness’ son plows snow, and asked how many mailboxes he hit the prior year. Editor’s note: Selectman Jenness’ son works for the Rye Public Works Department. Selectman Jenness reported that she had not seen “his chart.” Selectman Mills stated that he had heard that he was at the “top of the list.” Mr. McCarthy stated professed a lack of knowledge regarding that, and stated that the list changes often.

Mr. McCarthy stated that the State does not replace mailboxes, but the attorney for the Municipal Association is of the opinion that the mailboxes must be replaced if they have been hit. That does not mean that they must be replaced in kind.

Selectman Jenness stated that granite posts might damage the Town’s equipment. Mr. McCarthy stated that they ask that those be even further from the road. They do not like them, and sometimes do not allow them at all.

Completion of water main replacement (83:00 elapsed)

Art Ditto from the Rye Water District stated that the project for water main replacement along Route 1A had been completed. He thanked the Town. He stated that Chief Sullivan, Dennis McCarthy and Chief Walsh had helped out. He singled out Chief Walsh for particular thanks, saying that he had helped immensely with traffic control.

Selectman Musselman asked whether the paving had been completed successfully by the less than fully cooperative contractor. Mr. Ditto stated that it had been, although one cross pipe had been crushed and water had recently backed up. He indicated that sign off on the completion by the engineers has not yet occurred.

Accuracy of sign at March 2014 election projecting the tax rate (85:22 elapsed)

Peter Crawford referred to an issue that came up at the prior meeting regarding a sign that he had held up at the March election. He passed out photographs of the sign to each of the Selectmen.

Editor’s note: See the notes of the November 10, 2014 meeting. At that meeting, as Mr. Crawford handed out a document relating to the purchase of conservation land for $1.25 million then under consideration, Selectman Mills asked whether the document was similar to the untruths that Mr. Crawford had at the polling place the prior March.

At the election on March 11, 2014 Mr. Crawford had held up a sign that asserted that the Town tax rate would rise to $3.62 from $3.12 in 2013 if all warrant articles passed. All articles except one, for $46,915, passed. The tax rate, as indicated at the beginning of the November 10, 2014 meeting, was set at $3.68, slightly more than Mr. Crawford had projected in March.

Selectman Mills interrupted and said “that’s old news.”

Mr. Crawford asked what was untruthful about the sign.

Selectman Mills responded “you holding it was number one, okay.” He stated that he would not discuss it that night. He said that he needed prior notice, and that he would then make a decision as to whether he would discuss it.

Mr. Crawford responded that he would expect an answer at the next meeting.

Selectman Mills stated that the answer was no.

Mr. Crawford stated that the question was “what was untruthful about the sign.”

Selectman Mills responded “the whole thing.”

Mr. Crawford stated that if there was no answer he would assume that it is truthful.

Selectman Mills stated again that he would not discuss it.

Mr. Crawford stated that that was an admission then.

Selectman Mills shouted “are you calling me a liar?”

Selectman Musselman held up his hands and said “okay, okay, everyone.”

Mr. Crawford did not say anything.

Selectman Musselman picked up a copy of the photograph and said “goodness, gracious.”

Selectman Mills said “I’d love to run into you in a dark alley.”

Mr. Crawford stated that he should watch out, as there is a law against criminal threatening.

Dogs at Town Hall (86:51 elapsed)

Selectman Mills stated that there used to be a policy against animals. Yesterday there were two animals, one of which was upstairs. He referred to a dog that was not “100 percent truthful” playing around at the Town Clerk’s window. He asked who would be liable if the dog bit a kid.

Selectmen Musselman and Jenness noted that an exception would be needed for seeing eye dogs. Selectman Mills agreed that those dogs would need to be allowed in.

Selectman Mills stated that he had been chased down the hallway by somebody’s “Shepard.” Selectman Musselman asked whether a picture of that had been taken, and laughed.

Mr. Magnant stated that the staff had not discussed the issue of dogs at Town Hall. Generally they are not allowed, but in this town people bring their dogs in all of the time. Going back to no animals would be a culture shock, he said.

Selectman Musselman suggested that the change be made when the Town moves into new space. Selectman Mills stated that if someone is bitten, “you” would be liable, not me.

Mr. Magnant stated that some departments have treats that they give out to the dogs.

Selectman Mills made a motion to enforce the policy regarding this that had been put in place 20 years earlier.

Selectman Musselman stated that a draft policy on banning dogs, other than service dogs, and all other animals, from Town Hall should be researched.

Television show on murder in Rye (90:20 elapsed)

Police Chief Walsh referred to a memorandum and the fact that he was working with the Attorney General’s Office regarding what should be released under right-to-know.

Selectman Musselman stated that the question was whether Rye would participate in a television show on a murder in Rye 20 years earlier. He and Chief Walsh indicated that only publicly-available information would be released. Chief Walsh stated that the appeals have been exhausted and he did not want to reopen the possibility of an appeal.

Selectman Mills made a comment about checking with “Sullivan” who is likely to be very upset.

Adjournment (93:50 elapsed)

There was a motion to adjourn, a second, and a call for a vote, but no audible response. The discussion then continued about a judge’s order and a site walk before a member of the audience asked whether the meeting was still going. Mr. Magnant then reached over and turned off the video.