NOTES OF FEBRUARY 3, 2018 RYE DELIBERATIVE SESSION
Final Revision B – Provided by the Rye Civic League
Present on the stage (left to right as viewed from the audience): Town Clerk Donna Decotis, Town Counsel Michael Donovan, Vice Chairman of the Board of Selectmen Priscilla Jenness, Selectman Phil Winslow, Finance Director and Assistant Town Administrator Cyndi Gillespie, Town Administrator Michael Magnant, and Chairman of the Board of Selectmen Craig Musselman,. Present at the podium: Bob Eaton, Town Moderator.
Additional persons present from the Town included: Police Chief Kevin Walsh, Fire Chief Mark Cotreau, Public Works Director Dennis McCarthy, Planning and Zoning Administrator Kim Reed.
Editor’s note: The elapsed times are relative to start of each video segment. Segments consist of one or more warrant articles. To access the video for a particular warrant article, click on the heading for the warrant article. The video will be positioned to the beginning of the segment. You may then use the slider to position the video to the appropriate elapsed time. The video is available at https://vimeo.com/254488140/
1. The $9.2 million operating budget was placed on the ballot without amendment. Resident comments included noting the fact that the budget, after adjusting for reductions in capital outlay and debt service, was actually up over 2017, and describing the new tax environment now that only the first $10,000 in state and local taxes may be deducted.
2. Article 15, changing the purpose of the Fire Truck Capital Reserve to encompass ambulances was amended to remove a provision that would have enabled the Selectmen to spend money in that reserve without a town vote.
3. Article 17, a new deck for the Harbor Rd. bridge was placed on the ballot without amendment. The bridge weight limit will not increase until 2025 or 2026 when a more extensive refurbishment is planned. Three of the Town’s fire trucks have gross vehicle weight ratings exceeding the weight limit of the bridge. The Public Works Director said that overweight vehicles might damage it a little bit, but bridge collapses are rare.
6. The Town Attorney threatened to make a resident “answer for” allegedly accusing him of violating the Code of Professional Responsibility for attorneys by entering into an allegedly unlawful settlement agreement on the South Rd. litigation committing a Town Board and a Town Commission to take certain actions, notwithstanding the requirements of prior public hearings.
Moderator Eaton read the warrant article, which states that the DES program includes principal forgiveness, thus the only cost to the Town is a small amount of interest.
Selectman Musselman explained that it is a bond article only because the borrowing needs to be authorized, although it will not be drawn down.
There was no discussion, so Moderator Eaton ordered the article placed on the warrant as written.
Moderator Eaton read the warrant article, which states that, if the article fails to pass, a default budget of $8,789,573 would apply.
Selectman Jenness explained that they had followed the usual process of budgeting. The department requests were reviewed and reduced by $29,929. The Capital Outlay is down 36% over the prior year and the default budget is $396,700 less than the operating budget, she said.
Peter Crawford said that he wanted everyone to understand a little bit of what was behind the numbers. You see that the General Fund is down from $8,680,000 to $8,470,000, about $200,000, he said. Of that, $110,000 was the Red Mill Ln. Culvert that was in Capital Outlay last year and is now going to be a $250,000 warrant article. The other big piece is the debt service, which is down about $150,000. When you add those two things back in, it’s actually up. In addition, we had a big drop in the medical insurance costs which may not happen every year. This year, a lot of the spending has been moved to the warrant articles. There is $2.5 million in warrant articles that are recommended by the Selectmen. That doesn’t even include the John Loftus article for $3 million. About half of the warrant articles bond financed and the other half by current taxation. We’re looking at another tax increase this year if everything passes, he said.
Mike Thiel said that he calculated the numbers quickly and came up with a 4.5% increase in the operating budget.
Town Finance Director Cyndi Gillespie said that the operating budget is 36% less than last year and the warrant articles are to allow the residents to decide what they want to fund. Editor’s note: Ms. Gillespie is apparently referring to the last column of the “General Fund” line on the sheet that was passed out at the table at the entrance to the Deliberative Session. It shows a 36.52% decrease in this line. However, that appears to be the result of an error in the spreadsheet formula, which adds the .78% decrease in the “Department Operations” line and the 35.74% decrease in the “Capital Outlay” line, an incorrect way to calculate the decrease percentage. In fact, the $203,182 decrease indicated is 2.34% of the 2017 budget for the “General Fund” line.
There was discussion that indicated that Mr. Thiel was comparing the budget to the default budget.
Selectman Musselman said that the default budget is not what was spent last year, but what would be appropriated if the operating budget was voted down.
Ms. Gillespie explained that the default budget is last year’s budget less any one-time expenditures plus any new contracts. Editor’s note: Also deducted for purposes of calculating the default budget are any contractual commitments that were reduced or eliminated from year to year. Thus the default budget was reduced to reflect a conservation bond that was paid off in 2017, and for which no principal or interest payments are due in 2018.
Mr. Thiel reminded everyone that we are operating under a new environment as far as taxes are concerned. There is now a limit on how much of all of this taxation may be written off. I don’t think that the Board of Selectmen is cognizant of that. Editor’s note: Legislation enacted at the end of 2017 capped the amount of state and local income and property taxes that can be deducted for federal tax purposes to $10,000. Mr. Thiel said that a lot of us in Rye are hitting up against the limits of what is going to be deductible. He also referred to other state taxes such as the Business Profits Tax.
Jane Ireland moved the question. Jane Holway seconded. The motion carried.
Article 11 was ordered to appear on the ballot as written.
Selectman Musselman moved to restrict reconsideration of Articles 10 and 11. Mae Bradshaw seconded. The motion carried.
Moderator Eaton read the warrant article.
Selectman Jenness said that the Recreation Space Needs Committee had met from February to November, 2016. That Committee was charged with defining the space needs for that department. The tax impact would be $.07 on $1000 of assessed valuation. The year that the study was done there were 1780 participants in Recreation programs. Their facilities are in twelve different places. While the Committee came back with long-range and short-range needs, this is the short-range need that really needs to be addressed, she said.
Gregg Mikolaities, Chairman of the Recreation Commission, spoke about the defeat of the study last year. The Commission regrouped. Recreation is in 19 different storage facilities around town which is a serious problem. A lot of it is unheated. We lose equipment and uniforms every year. Mr. Mikolaities explained the configuration of the facility which is almost two stories. There would be heated storage on top. A concession stand would be part of the facility. We recognize that we’re not going to see a Community Center down there anytime soon. We kept delaying the storage every year hoping that we would get the Community Center, he said.
Mike Thiel said that the Rye Civic League had presented some information regarding this. He said that he understands that there are four garage bays. My concern is with the money that we’re spending in Rye. I built a carriage barn last year which is about 900 sq. ft. It is four bays and is unheated. That cost less than $40,000. I didn’t spare a lot of expense on that. He asked where the other $110,000 is going. Heating might cost a little bit more, but that’s a lot of money in my mind, he said.
Mr. Mikolaities said that they had come up with $80 per sq. ft. There is about $20,000 of soft costs. Someone is needed to design the building. There is $115,000 for construction, $22,000 for soft costs and another 10 percent for contingency. If we can get it done for $80,000, I’m a taxpayer too, we’ll agree.
Jaci Grote called the question. Mae Bradshaw seconded. The motion carried.
Moderator Eaton ordered Article 13 to appear on the ballot as written.
Moderator Eaton read the warrant article.
Selectman Winslow explained that the fund is straightforward and is used to maintain our highway equipment, used for our grounds, roads and Transfer Station. We raised $100,000 for this account in 2015, and $75,000 in each of 2016 and 2017. We spent over $338,000 through this account from 2015-2017. We purchased two six wheel dump trucks at $170,000 each. The current balance is $77,593, he said.
There being no discussion, Moderator Eaton ordered Article 14 to appear on the ballot as written.
Frank Drake suggested that articles 15, 16 and 24, which is a change to the Ambulance Fund, be considered together. Scott Marion seconded. The motion carried.
Moderator Eaton read Article 15 which would change the purpose of the Fire Truck Capital Reserve Fund to include the purchasing of fire and ambulance vehicles and vehicle equipment, designate the Board of Selectmen as agents to expend, and raise and appropriate $100,000 to be placed in the fund. A two-thirds vote is required. He said that the article was recommended by the Selectmen 3-0. He then paused and looked at Town Clerk Donna Decotis and then said that it is not recommended by the Budget Committee by a vote of 10-1.
Selectman Winslow said that this is similar to the roads equipment fund. The current balance is $356,955. The ambulance fund has $11,564. Editor’s note: That is the balance of a different ambulance fund than the one funded from cell tower revenues which is the subject of Article 24. The cell tower ambulance fund has $167,921 in it. Selectman Winslow said that a new ambulance was purchased in 2017 at a cost of $266,000. We are keeping the old ambulance for use as a backup. The life of the new ambulance is expected to be 7-10 years. If we continue to put money into that account a substantial amount of funds would be built up. That account, which we couldn’t touch, is only for ambulances. What we’re trying to do is move the availability of those funds to pay for the capital needs of the Fire Department. The source of money for the ambulance fund is $52,513 from a cell tower on property owned by the Town. The Chief joined us in late 2017. Chief Cotreau spent 34 years in the Concord, MA Fire Department, much of that time as Chief. He is currently doing an analysis of vehicle requirements. Selectman Winslow referred to a number of significant costs coming up. We are asking that $100,000 be put into this account and that the fire truck and ambulance accounts be combined, he said.
Peter Crawford handed an amendment to Moderator Eaton. He said that he is on the Budget Committee and, from his perspective, the reason that the Budget Committee voted not to recommend this was because of the language in there that appoints the Selectmen as agents to expend. His amendment would take that out. If this amendment is adopted he would change his vote to recommend the article. He believes that most of the other members of the Budget Committee would also change their recommendations, he said.
Mr. Crawford said that Cyndi Gillespie was going to look into whether this is a change or whether the Selectmen are already agents to expend.
Ms. Gillespie said that the original article did not name the Selectmen as agents to expend. Editor’s note: She was apparently referring to the article that set up the fund.
Mr. Crawford said that this would make the Selectmen agents to expend, which would mean that the Selectmen could decide on their own to spend up to the total amount in the fund on capital equipment. That would be different from the way that we have always operated. We have always required a separate warrant article to pull the money out as well, in terms of ambulances, fire trucks and highway equipment. Presumably this was a mistake to include that language. It doesn’t really matter at this point. Let’s just remove it, he said.
Mae Bradshaw seconded.
Moderator Eaton said that the amendment would remove the language in the article reading “and to designate the Board of Selectmen as agents to expend.”
Ms. Gillespie pointed out that all of the other capital reserve accounts name the Selectmen as agents to expend, but traditionally the Selectmen have always brought these to the Town for a vote.
Moderator Eaton called for a vote. He said that he thought that the amendment had failed, but asked for a hand count. He asked Shawn Crapo to count the left side, for Scott Marion to count the right side. He said that he would count the table.
The motion carried 43-35.
Shawn Crapo said that he was just one vote on the Budget Committee, but he voted against this to keep the ambulance fund and the fire truck fund separate. If this article passes the fund that currently goes towards ambulances would go towards fire trucks, which have their own fund. That is why the vote on the next article is unanimous to put $100,000 towards the fire trucks. Editor’s note: That is not quite correct. Article 15 would change the purpose of the Fire Truck Capital Reserve Fund to permit it to be used for both fire trucks and ambulances. Article 24 would change the purpose of the cell tower ambulance fund to encompass both fire trucks and ambulances. If both pass, either fund could be used for either fire trucks or ambulances, effectively combining the two funds. Article 16 only has an effect if Article 15 fails to pass. In that case, if Article 16 passes, $100,000 would be added to the Fire Truck Capital Reserve Fund notwithstanding the defeat of Article 15.
Ray Jarvis said that he was on the capital investment committee. One of the good aspects of that was that each department had to look out six years. If you start combining the funds the departments would not each be responsible for their own plans.
Jaci Grote asked whether, with the amendment, expenditures for the Fire Department would go to a warrant article. Moderator Eaton confirmed.
Ms. Grote said that one of the concerns before the Budget Committee was the mixing of the funds.
Frank Drake asked a question regarding Mr. Jarvis’ comment. He asked who filled out the capital plan for the ambulance and for the fire trucks.
Ms. Gillespie explained that both are done by the Fire Chief.
Peter Crawford asked whether the $11,000 referred to by Mr. Winslow wasn’t an old ambulance fund.
Ms. Gillespie referred to a $11,000 fund for fire trucks that had not been touched since 2006. Editor’s note: According to page 74 of the Town’s 2016 Annual Report, there is a capital reserve for fire trucks with a balance, at the end of 2016, of $249,267 and a capital reserve for ambulances with a balance, at the end of 2016, of $11,304. Since it is likely that some interest accrued in 2017, it appears that Selectman Winslow was referring to the ambulance capital reserve and that Ms. Gillespie is incorrect, as there is no second fire truck capital reserve on that page.
Mr. Crawford asked how much was in the cell tower ambulance fund.
Ms. Gillespie responded that it was $167,000.
Mr. Crawford said that the impetus behind this was to essentially combine the funds. It’s not quite doing that. It takes the two funds and has them have the same purpose, which effectively combines them. The reason is that we just bought a new ambulance a couple of years ago and we’re accumulating $50,000 a year from the cell tower going into the ambulance fund that can’t be used for anything other than a new ambulance. If all three articles being discussed pass, all of the money is effectively combined and can be used for either fire trucks or ambulances. Next year, we potentially have a new quint, which is a ladder truck combined with a pumper, to the tune of $500,000 or $600,000. In the CIP Plan three or four years after that, there is another pumper truck for a similar amount of money. Editor’s note: The CIP Plan for 2018-2023 included a quint in 2018 for $600,000 and a pumper truck in 2022 for $750,000. The Fire Chief requested that the quint be delayed a year to give him an opportunity to look at the capital program. There is a lot of potential capital spending here and we have money accumulating for a new ambulance that won’t be needed for another eight or nine years.
Fire Chief Mark Cotreau came to the microphone. Moderator Eaton introduced him as the new Chief. There was applause.
Chief Cotreau said that the warrant article would provide flexibility to apply the funds to fire trucks or ambulances as needed. The Fire Department has an aging fleet. We have at least two engines which are going to need to be replaced, one of them very soon. Our ambulance was just bought new, and I would agree that somewhere in the order of 7-10 years is probably reasonable for the buying of another ambulance. We will be assessing the department over the coming year, including the fleet. We will do a replacement and refurbishment plan. We will be able to feed into the town’s five year plan. Hopefully we will have an 18-20 year plan. We need to get to the point where we jump start the program. I think we do have some purchases coming up. The more flexibility I have the better, he said.
Ms. Gillespie explained that they are talking about two capital reserves. There is also a special revenue fund that is money generated from the cell tower rental. As Mr. Crawford said, we are looking to make it more flexible. The cell tower money would still stay separate. It is just changing the purpose.
Ray Jarvis asked how much an ambulance costs.
Town Administrator Magnant said that $266,000 had been paid for the new ambulance.
Mr. Jarvis pointed out that that is still five times the annual revenue of the ambulance fund. While flexibility is gained, the can is kicked down the road. We’ll be having the same discussion. There will be a need for a $300,000 ambulance and someone will say there is $13,000 in the fund. I’m big on flexibility, but we were having a similar discussion a few years ago when we needed money for an ambulance.
There being no further discussion of Article 15, Moderator Eaton ordered Article 15 to appear on the ballot as amended.
Moderator Eaton read the warrant article which provides that, if Article 15 is defeated, $100,000 would be added to the Fire Truck Capital Reserve Fund.
Selectman Winslow explained that they would still like to get the $100,000 regardless of whether the two funds are combined.
There being no discussion, Moderator Eaton ordered Article 16 to appear on the ballot as written.
Moderator Eaton read the warrant article, which would change the purpose of the fund to encompass both ambulances and fire vehicles, as well as vehicle equipment. The current purpose is limited to “New Town Ambulance.” A two-thirds majority vote is required.
Selectman Musselman said that this had probably already been fully deliberated. We have known for a few years that we had been accumulating funds faster than needed for a new ambulance. Every time that it was suggested that we might do this Joe Mills had a fit because these funds were dedicated to a new ambulance, and by God, we did not have a new ambulance yet. We now do, and we have a second serviceable ambulance. We don’t need a new ambulance for a long time and it is now time to change the name so that it can go towards either fire trucks or ambulances. Editor’s note: Joe Mills is a former Selectman. He did not run for reelection in 2017 and was replaced by Selectman Winslow.
Shawn Crapo asked whether the decision to redesignate the fund couldn’t be delayed until it was thought that money was needed for a new fire truck. In the meantime it would accumulate towards the ambulance as intended.
Town Attorney Donovan pointed out that, if you got to that point a couple of years down the road, you wouldn’t be able to just have a warrant article to take the money for a fire truck out of the ambulance fund.
Peter Crawford asked whether that would mean a two year process.
Attorney Donovan is viewed on the video nodding in agreement.
Moderator Eaton stated that the answer was yes.
There being no further discussion, Moderator Eaton ordered Article 24 to appear on the ballot as written.
Selectman Winslow moved to restrict reconsideration on all articles not restricted to date. Ms. Hodson seconded. The motion carried.
Moderator Eaton read the warrant article, which provides $75,000 for remedial repairs of the Harbor Road bridge deck.
Selectman Musselman said that the article is to allow maintenance of the deck. This is a small bridge that provides access to 20-some homes on Harbor Rd. The deck has not been maintained in the past. Every now and then the paving needs to be removed and a new waterproof membrane installed and then repaving done. That has not been done, and there has been some impact on the deck. The Town is on the list to replace the bridge and receive 80 percent funding in 2025 or 2026. That will cost $250,000 or $300,000. We met this year with the folks from Harbor Rd. If the bridge were replaced now we would not be eligible for State funding in arrears. We would sacrifice about $240,000 of State funds. This is recommended by the Town’s consulting structural engineers. There is a weight limit on the bridge that Mr. McCarthy can talk about. There are ways to get around that by having a limited number of axles on the bridge. There is some concern about fire trucks being able to get to a fire, which Selectman Musselman said he does not believe is correct.
Public Works Director Dennis McCarthy said that there has been some confusion about the weight limits. Bridges that have a sign saying “E2” have never been rated. No one should drive on those bridges with a load that might damage it. In the course of studying this bridge, we found that it had never been designed to current road standards. We posted it for what it can support. The truck drivers are supposed to try not to use the bridge if they feel that they are over that load rating. It doesn’t mean that driving on it with a higher load will cause the bridge to collapse. However, the bridge will sustain more damage and it will increase the rate of deterioration. It is very rare for bridges to fail. When you hear about it, it is catastrophic. Bridges typically have safety ratings of six, meaning that they are designed six times over what they can actually sustain (sic). Editor’s note: It is likely that Mr. McCarthy meant that they are designed to handle six times the rated load. This bridge can take many of the loads that it has been for 40-50 years, he said. However, once we know what it can sustain, we have to put the proper rating on it. If there is a fire, it is an extenuating circumstance and they will drive over it. They may damage it a little bit, but they’ll get to your house. The ambulances and smaller equipment are not a problem. If someone is bringing construction materials or concrete, they should be aware that they should not be crossing the bridge with full or heavy loads.
Peter Crawford said that this is the first that he is hearing about a six to one safety factor. I think that, at the Selectmen’s meeting when this came up, Selectman Musselman, who is a civil engineer said that it is something more like 40 percent, he said.
Mr. Crawford said that he had gone by Harbor Rd. and looked at the signs. It has a two axle silhouette that says 15T that presumably means 15 tons, and three axles 23T, but I believe that our fire trucks are two axles, so that would mean thirty thousand pounds. He said that he went by and talked to the Chief who has some numbers from actual weighings. He said that he thought that we were in the 30,000 plus range, so we might be slightly over if they’re fully loaded with water. He asked Chief Cotreau to share the numbers.
Fire Chief Cotreau said that he found the GVWs on the trucks:
Engine 1 (1993) 35,000 (12,000 front axle, 23,000 rear axle)
Engine 3 (2003) 45,000 (18,000 front axle, 27,000 rear axle)
Ladder 46,800 (18,000 front axle, 28,800 rear axle)
Ambulance 16,500 (7,000 front axle, 11,000 rear axle)
Chief Cotreau said that there are grey areas as Mr. McCarthy indicated. With the exception of the ambulance, they always have water.
There being no further discussion of Article 17, Moderator Eaton ordered Article 17 to appear on the ballot as written.
Selectman Winslow moved to restrict reconsideration of Article 17. Burt Dibble seconded. The motion carried.
Moderator Eaton read the warrant article.
Selectman Jenness said that the town’s liability for accumulated leave is $546,362.97 and $200,285.63 is in the account. The State recommends the account to be funded at 50 percent. Even if the $50,000 is approved that account will be short.
There was no discussion and Article 18 was ordered to appear on the ballot as written.
Moderator Eaton read the warrant article, which provides that the funds would be removed from the Highway Equipment Capital Reserve.
Selectman Jenness asked Mr. McCarthy to explain the status of the current mower.
Mr. McCarthy said that the current mower is used to mow Parson’s Field, the landfills, and such. It’s a small, open mower. Usually it would not be that high on the list, however, we also operate a rake for the beaches. Public Works is on the beach three days a week removing seaweed. We operate a self-propelled machine provided by the State. We do their beaches as well. That machine is quite old. They would like to use a similar to that used at Hampton Beach which is towed by a tractor. Our current tractor will not pull that type of beach rake. We are looking for a mower that will handle that as well. We’re also hoping that it will be able to mow the roadsides, which is contracted out. There is currently $77,000 in the reserve fund.
There was no discussion of the article so Moderator Eaton ordered it to appear on the ballot as written.
Moderator Eaton read the warrant article.
Selectman Jenness said that the skid steer handles the recyclables at the Transfer Station. In 2017 $37,800 in tipping fees were avoided due to recycling. In addition, $88,818 in revenues were provided. The tax impact is $.02 on each $1000 of assessed valuation.
Mr. McCarthy said that the equipment is essential. It is used the five days that we are open as well as on a sixth day that we are closed. We do not have sufficient funds in the Highway Reserve to pay for this piece of equipment. There is also the question of whether that fund would apply to this equipment as it is used at the Transfer Station. We are beginning to have some mechanical problems. The new one would be similar to the old one.
There being no discussion, Moderator Eaton ordered Article 20 to appear on the ballot as written.
Shawn Crapo moved to restrict reconsideration on articles 18-20. Burt Dibble seconded. The motion carried.
Moderator Eaton read the warrant article.
Selectman Winslow said that the money is for the maintenance of town buildings, recognizing that there is a contentious decision with regard to Town Hall. The fund would allow us to paint the Town Hall and replace some of the shakes. Our intention is not to do that if Article 9 passes and the Town Hall is going to be razed.
There being no discussion, Moderator Eaton ordered Article 21 to appear on the ballot as written.
Moderator Eaton read the warrant article, which would create the fund and place $10,000 in it.
Selectman Jenness explained that the fund to be created would function the same way as the Town Employees Accumulated Leave Fund functions. The tax impact would be less than $.01 per $1000 assessed valuation.
Karen Oliver, member of the Library Board, said that the Library has not had the fund, but it is needed. The total liability is about $60,000. The recommendation is that half of that be on hand, which would be $30,000. We have decided that the best way to accumulate that is over three years. This is the first request, she said.
There being no discussion, Moderator Eaton ordered Article 22 to appear on the ballot as written.
Selectman Winslow moved to restrict reconsideration on all previously considered unrestricted articles. Shawn Crapo seconded. The motion carried.
Moderator Eaton read the warrant article.
Selectman Jenness said the article is similar to last year’s and the tax impact would be less than $.01. It speaks for itself, she said.
There being no discussion, Moderator Eaton ordered Article 23 to appear on the ballot as written.
Brian Klinger moved to restrict reconsideration of Article 23. Scott Marion seconded. The motion carried.
Moderator Eaton read the warrant article.
Selectman Jenness said that the article is to address the so-called “gap” veterans who do not meet the current criteria but were honorably discharged and served 90 days, but not during active wartime. For example, the Korean War ended in 1953 and the Vietnam War started in 1960. Those who fell in between are not covered by the current tax credit. This would cause them to be covered.
Karen Oliver asked whether the apostrophe should be placed after the “s” in “Veterans” since it’s plural. Moderator Eaton called for a vote on whether to place the apostrophe after the “s.” The motion carried.
Selectman Jenness said that it is estimated that Rye may have 145 gap veterans.
There being no further discussion, Moderator Eaton ordered Article 25 to appear on the ballot as amended.
Moderator Eaton read the warrant article, which refers to the road being located off of South Rd. Editor’s note: This is related to a small subdivision by D.D. Cook and should not be confused with the larger subdivision off of South Rd. by Joe Falzone. That is the subject of a legal settlement that would allow 13 house lots. See Article 32.
Selectman Winslow said that the Planning Board had approved this development in April 2015. It is off the corner of South Rd. and West Rd. and includes four lots, one of which previously existed. One of the lots is deeded to the Conservation Commission. They received 58 acres at a cost of $300,000.
Steven Borne asked about the liability, given that the road “t-bones” the house across the street. He referred to icy roads and discussion before the Planning Board of something to protect the house. He asked whether the town could be liable.
Town Attorney Donovan said “likely not.”
There being no further discussion, Article 26 was ordered to appear on the ballot as written.
Elizabeth Sanborn addressed the article. She said that she and 51 neighbors had approached the Board of Selectmen to make Dow Ln. a dead end. They did not recommend it, nor did the Budget Committee recommend it, so we’re offering an amendment, she said.
Ms. Sanborn said that Dow Ln. has been a cut through since 1809. In 1886, the first motor car was developed. Currently we have GPS and Google Maps. When they put this road through they did not anticipate the future changes. Chief Walsh has been very supportive. Two thousand cars a day drive by Dow Ln., past the homes with young families and toddlers. It is one of the affordable neighborhoods left in Rye. Sixty percent of those 2000 cars, as recorded by the Police Department, were speeding. The city (sic) has tried to make an effort to put more cautions there and change the intersection to slow things down. It has not worked. The amendment would provide for more testing. There is a caveat to avoid having to go down this path every year as the traffic increases.
Moderator Eaton read the amendment which would replace Article 28 in its entirety with the following language:
“Will the Town vote to advise the Board of Selectmen to evaluate all options in concert with New Hampshire Department of Transportation to reconfigure the Dow Lane/Route 1 intersection to reduce vehicle speed and increase safety. Should the traffic calming trial phase suggested by Chief Walsh prove inadequate to the immediate Dow Lane residents and Board of Selectmen within sixty days, will the Town vote to close the hazardous skewed angle intersection at the juncture of Dow Lane and Lafayette Road (NH Route 1) thereby making Dow Lane in the Town of Rye a dead end and will the Town raise and appropriate the sum of sixty thousand dollars to pay for all costs associated with the closure.”
Steven Borne seconded.
Shawn Crapo indicated that he would read the proposed amended article to give the residents a right to object to the outcome of the study and cause the road to be closed.
Town Attorney Donovan said that he believes that that would be correct. He added that the paragraph in black conflicts with the one in red. In one place it refers to advising the Board of Selectmen while the other takes that authority away. Editor’s note: To the contrary the language appears to require that the Board of Selectmen also determine that the outcome of the trial phase is inadequate. If it passed, I’d have a hard time opining on what it is the Board of Selectmen is supposed to do, he said.
Ms. Sanborn said that that was a good point and that she would be open to any suggestions. She added that the residents of the neighborhood had been asking for this for years and years and years. We really do want this in the long run as a dead end. The budget covers the purchase of land and addresses the turnaround for fire trucks. We’ve tried to meet the Town at every single corner. It is important that the residents have the final say, she said.
Moderator Eaton said that Town Counsel had a suggestion which would rewrite the article to say:
“Will the town vote to recommend that the Board of Selectmen take the necessary steps to close the hazardous skewed angle intersection at the juncture of Dow Lane and Lafayette Road/NH Route 1 thereby making Dow Lane in the Town of Rye a dead end and will the Town raise and appropriate the sum of sixty thousand dollars to pay for all costs associated with the closure.”
Moderator Eaton pointed out that instead of voting to close the road, the vote would be to recommend that to the Board of Selectmen take the necessary steps to close it.
Ms. Sanborn and Mr. Borne went along with the friendly amendment. Moderator Eaton said that there was a new amendment to consider.
Matt Marra said that, as a new family to the area, it was important for them to know how this was going to be perceived by the Selectmen. He asked whether they would now recommend the article. It is concerning that the neighborhood would want the change and it is not recommended by anybody.
Town Attorney Donovan said that he would respond as it was an amendment that he suggested. That was because the process of closing a road is complicated procedurally. It is called a discontinuance. This article is not drafted to do so. One of the possibilities would be to include a turnaround at the end. You don’t know at this point what additional right-of-way might be required for that. Another complication is that the intersection is with a State Highway. My understanding of the law is that the State would also have to act to discontinue the portion of the road within the Route 1 right-of-way. If this is approved, the Selectmen would have their marching orders to pursue it.
Moderator Eaton said, with all due respect to Attorney Donovan, that the question had been whether the non-recommendation of the Selectmen would change.
Selectman Winslow said that he thought that it would be appropriate to get into a little more detail on this. He asked Chief Walsh to provide a little history and the plans going forward.
Police Chief Kevin Walsh said that Dow Ln. residents are the same as other residents of Rye with regard to speeding vehicles. There are Rye residents and people from other towns that drive too fast on the roads. Dow Ln. is being treated no differently than other roads. Communication is knowledge and we are listening to you. We do things based on what you tell us. There has been a lot of communication and coming together with regard to Dow Ln. We have been able to reach out to the State. We are looking at improper turns at Dow Ln. and Washington Rd., with the stop sign being treated as a yield sign. We put in temporary barriers, although they have been removed for winter maintenance. DPW is looking at taking some of the pavement out to narrow the width to make it a straight line to the stop sign. Vehicles on Washington Rd. will be forced to slow down and make a proper turn rather than crossing the double yellow line, he said.
At the other end of Dow Ln. we are working with the State DOT, Chief Walsh said. I got an idea from Selectman Jenness who mentioned a similar intersection at the Post Office in Greenland which has a 90 degree turn. You are forced to slow down. Selectman Musselman had a great idea about a flashing speed sign. We were able to borrow one. We did a test. We have purchased one which will be installed after the end of the winter. I am encouraged by the support of the Dow Ln. Our goal is to get vehicle speeds reduced to the exact speed limit. I know that we can do that working together. We are going to make some design changes to make Dow Ln. safer. Dow Ln. has been an entrance and exit to Rye. There are a lot of us who use that roadway. You should drive at 30 m.p.h., he said.
Elizabeth Sanborn said that she appreciated what Chief Walsh said. We have an alternative, which is Washington Rd. to the light at Lafayette Rd., coming and going. There’s a light. It’s safe. It’s controlled. You don’t need what is now just a cut-off road. It serves no other purpose. No one needs to live on just a cut-off road, she said.
Peter Crawford said that he had attended most of the Selectmen’s meetings where this was discussed and thanked the Chief for being very responsive to the residents. My concern with the amendment is that we have not heard whether the Selectmen are going to change their recommendation so I assume that the answer to that is probably no. If we raise and appropriate $60,000 and they say we’re not going to spend this money they still would have to raise it in taxes. It would potentially go back in 2019 as part of the unassigned fund balance, but it would still be taxation that would be fruitless if the Selectmen are not going to do anything with the money anyway, he said. Editor’s note: The tax rate is set in October or November of each year based on appropriations made at the Town Meeting in March of that year. Even if it is known by late in the year that the money will not be spent, it still must be raised in taxes. Money that is not spent by the end of the year, with certain exceptions, becomes part of the surplus for the year and increases the unassigned fund balance. The Selectmen may, but is not required to, vote to apply a portion of the unassigned fund balance to reduce taxes in October or November of the following year, which in this case would be 2019.
Selectman Musselman said that, if the warrant article passed, the Selectmen would have an obligation to pursue this solution. Town Counsel just explained that pursuing this solution is not straightforward and the decision is not all ours. My guess is that we would use some portion of the $60,000 trying to line up land acquisition and work with DOT to see if they would go along with the closure of the intersection. I am not confident that they would go along with that, but that would be their decision and we would have to pursue that, he said.
I believe that the solution to the speeding problem on Dow Ln. is to square off the intersection of Route 1 and Dow Ln., which is partly a DOT right-of-way, partly in North Hampton and partly in Rye, Selectman Musselman said. Chief Walsh described some temporary measures that are in the planning stages to do that. I think that that would be successful as now people can slide off Route 1 onto Dow Ln. The Police Department has done great work there to keep the speeds under control. I’m not certain that the voters will vote this up and be interested in spending $60,000. It is understandable that the people on Dow Ln. want to cut down the traffic as well as the speeding, but that is a separate issue. With the amendment it would be a legal warrant article that we could pursue. Personally, I don’t believe that I would vote to change our recommendation. I think that we should work with DOT to square off the intersection and see what that does to speed. Quite frankly I won’t be on the Board of Selectmen so it doesn’t matter what I think. Editor’s note: However, the vote on changing the recommendation would occur prior to the end of his term following the March election.
Jane Ireland moved the question. Jane Holway seconded. The motion carried.
Moderator Eaton called for a vote on the amendment. The motion carried.
Scott Marion questioned the use of the words hazardous and skewed, and suggested that it might bias the result. He moved to remove the words “hazardous skewed angle.” Mae Bradshaw seconded.
Elizabeth Sanborn said that it is hard to convey what it means to the community. The words bring to mind why this is being done. Those words are important. The neighbors don’t have a voice, other than here.
Joe Cummins asked Chief Walsh how many accidents had occurred on Dow Ln. in the last year or two years. Chief Walsh is observed on the video holding up three fingers. Mr. Cummins asked whether any pedestrians had been hit. Chief Walsh is observed on the video nodding no. Mr. Cummins said “zero pedestrians, three accidents.” Mr. Cummins said that he has friends on Dow Ln. but he thinks this is an aggressive solution, although the word “hazardous” should remain. The posts at Washington Rd. were quite dangerous. I would wish that some of the $60,000 be devoted towards speed bumps, he said.
Shawn Crapo supported Mr. Marion’s amendment but indicated that he would have an additional amendment so asked that the question not be called after the vote on the amendment.
Scott Marion said that he lives on Washington Rd. east of Brackett Rd. and would like to close that because people are drag racing there to the beach in the summer. With all due respect you’re not the only one in town that has this problem, he said. He said that, based on Mr. Cummins quick fact check, the word “hazardous” is probably not accurate and its use would be prejudicial.
Elizabeth Sanborn said that the State had done a survey of the intersection and called it hazardous.
There being no further discussion, Moderator Eaton called for a vote on the amendment, which would strike the words “hazardous skewed angle.” Moderator Eaton said that he thought it passed, but called for a hand count, to be conducted by Shawn Crapo and Karen Oliver. When calling for the show of cards of those opposed, Scott Marion said “zero.” There was laughter. Mr. Eaton said “lock him up, Chief.” The motion carried 38-19.
Shawn Crapo said that he drives commercial and residential vehicles through Town. There are larger, more complicated commercial vehicles. Part of the reason for using Dow Ln. is to avoid the hill and intersection. If you are towing a heavier load you have to accelerate up the hill if you’re turning from Washington Rd. left onto Route 1. If you are going north on Route 1 there are issues with delays at the light. I have some language that I will provide. He provided some language which was unclear and said that it might allow the Selectmen to get behind it.
Moderator Eaton said that Town Counsel had suggested that the “up to” prior to $60,000 stricken as appropriations need to be for a sum certain.
Shawn Crapo accepted the friendly amendment.
There was a pause while Shawn Crapo conferred with Moderator Eaton. Moderator Eaton said that he had asked Mr. Crapo to write out the amendment. He asked whether there would be a second. Mr. Marion seconded. Moderator Eaton said that Mr. Crapo had provided the gist of his amendment and suggested that discussion continue while Mr. Crapo reduced it to writing. Mr. Eaton then suggested a ten minute break. The audience appeared opposed so this did not occur.
Art Ditto said that he would support Mr. Crapo’s amendment. He referred to the New Hampshire Department of Transportation having, about ten years before, studied Route 1 and recommended the reconfiguration of the intersection in a manner similar to one in Greenland which would eliminate the ability to shoot down Dow Ln. This might move up the priority of that. If you go online there is already a preliminary design for that. If you shut the road off you eliminate the ability of Rye residents to use their own roads. It is how the roads are used which is the issue. Closing Dow Ln. would increase the traffic at Washington Rd. at Route 1, he said.
Moderator Eaton said that he had the amendment now. It would replace Article 28 with:
“Will the Town vote to recommend the Selectmen modify the intersections at the ends of Dow Ln. and will the town raise and appropriate the sum of $60,000, to pay for all of the costs associated with the changes and further to apply for, obtain, accept and expend federal and state grants or other aid and any private donations that may be available towards this purpose and to comply with all laws applicable to said project.”
Peter Crawford said that this kind of came up before the Budget Committee and that he thought that he had heard Chief Walsh say that there was enough in the budget already to address what he wanted to do for the coming year. If that’s the case, why do we need any additional money? If it’s not the case then I think we should add additional money, but $60,000 was the amount for closing the road and it might not be the right amount for this, he said.
Police Chief Kevin Walsh said that there is enough money for the solution that is on the table. Public Works Director Dennis McCarthy already has a rough draft of what he would like to do based on the budget for 2018. Our goal is to make improvements to both sides of Dow Ln. and it is within the budget. To provide a permanent solution may require some additional money to dress it up and make it look nice, but we can come back to the town to ask for that, he said.
There being no further discussion, Moderator Eaton called for a vote on the Crapo amendment. The amendment carried.
There being no further discussion on Article 28, Moderator Eaton ordered Article 28 to appear on the ballot as amended.
Shawn Crapo moved to restrict reconsideration on Article 28. Selectman Winslow seconded. The motion passed.
Moderator Eaton read the warrant article:
“To see if the Town will vote to require that all environmental monitoring, sample analysis and interpretation of results in connection with Rye landfills, former landfills and the Coakley Landfill be conducted by an independent entity. An independent entity is defined as an individual or organization that has no personal or familial relationship with any member of any Rye Board, Commission, Committee or any Town employee. All conclusions, reports and supporting documentation relating to tests done in the future, as well as all past tests, shall be kept on file at the Rye Town Hall and, if available in electronic form, timely posted, or linked to, in unaltered form as provided by the independent entity, on the town website in the appropriate, readily visible section. The Town hereby appropriates one dollar ($1) for the purpose of defraying any unbudgeted costs associated with the implementation of this warrant article.”
Moderator Eaton said that the article is not recommended by the Board of Selectmen, 3-0, and not recommended by the Budget Committee 7-3.
Peter Crawford addressed the article. He handed an amendment to Moderator Eaton. He said that, over the past year there has been a lot of concern in Town about the landfills: the Coakley Landfill, the Breakfast Hill Landfill, which is adjacent to the Bethany Church just across the border in Rye (Coakley is not in Rye) and the Grove Rd. Landfill which is across Grove Rd. from the existing Transfer Station only about 800 ft. from our main well, the Garland Well.
Currently, CMA Engineers, which is Selectman Musselman’s firm, has been doing the interpretation of the results and the reporting to the State. His firm was also involved in the closure, Mr. Crawford believes, of the Breakfast Hill Landfill. With all due respect to his valuable service to the Town, Mr. Crawford thinks that it is appropriate that we have individuals and entities who are not associated with the Town doing this work in the future.
This article was drafted prior to his decision not to run for reelection having been revealed. It has come up that the term “personal or familial relationship” is a bit vague so the amendment deals with that and also refers to persons or firms who were involved in the closure also being restricted. This is important for the town, given the major concerns over the issue that there be no question about any conflicts of interest that there might be. Mr. Crawford said that he doesn’t have any indication that anything funny has been going on, but the people need to be assured that this is being done by an independent entity.
Moderator Eaton said that Mr. Crawford’s amendment would change Article 30, up to the final two sentences, which would remain the same. Prior to that, the article would read:
“To see if the Town will vote to require that all environmental monitoring, sample analysis and interpretation of results in connection with Rye landfills, former landfills and the Coakley Landfill be conducted by an independent individual or organization. To be an independent individual, neither the person, nor his or her spouse, child or parent may be a member of any Rye Board, Commission, Committee or be a Town employee. To be an independent organization, no officer, director or more than 20 percent stakeholder of such organization may be a person who is not an independent individual. No individual or organization that was involved in the closure of any of these landfills shall be considered independent.”
Steven Borne seconded.
Peter Crawford said that the amendment tightens up the prior language referring to “personal or familial relationship” and makes it very specific.
Jaci Grote said that she is not in favor of the amendment or the article.
Moderator Eaton said that the amendment should be discussed first. Ms. Grote left the microphone.
Steven Borne said that the key thing about this article is the one dollar as the Budget Committee did not provide funds for this.
Moderator Eaton asked what that had to do with the amendment as the one dollar is both. Mr. Borne then left the microphone.
Shawn Crapo offered a friendly amendment to remove the word “all” in the first sentence, which would allow the Selectmen to continue to use the institutional knowledge of Selectman Musselman.
Mr. Crawford said that, while he agrees with the intent, he does not believe that removing that word accomplishes that. Moderator Eaton said that the answer was no.
Selectman Musselman said that he was going to try to sit quietly. He said that, with respect to the amendment he thinks that it is ineffective. He said that his firm had nothing to do with the closure of the Breakfast Hill Landfill, nor did he. The Grove Road Landfill was never closed. It operated as a Town Landfill for 40 years. Then it was bought by the Water District which drilled a public water supply well right next to it, just down gradient from it. Selectman Musselman said that his firm oversaw the hydrogeologic characterization of the Grove Rd. Landfill in the mid 90s to the early 2000s on behalf of the Town. There are two senior people, me and one other experienced engineer in our office who are aware of all of the historic data, Selectman Musselman said. If your intent is to preclude me or my firm from advising the town going forward on matters going forward on the Grove Rd. Landfill, the Town is going to have to pay a senior hydrogeologist or senior engineer to get fully up to speed on the data that has been developed for the past twenty years, he said. Since I became a Selectmen, since I had the institutional knowledge, my firm, at no charge to the Town for the past twelve years has done, not the sampling and analysis, but the reporting to the State of the data and this year we have provided some interpretation of that data as is entirely appropriate, Selectman Musselman said. We have done that at no charge for twelve years. I rationalize that as I am paid a pittance as a Selectman, but that was not the cost of the work, Selectman Musselman said. He added that if the Town wished to preclude me or CMA Engineers someone would have to be hired by April as the next round is due in April or May. After March, if the Selectmen ask, we would provide a proposal for the staff to do the normal reporting, and I would provide the background at the evening meetings at no charge. I have had no conflict of interest. I have been practicing before municipalities for 43 years. I have worked for over 100 municipalities and I take this somewhat personally. My integrity has been maligned in Rye more than it has been anywhere else by a factor of 20. If this continues to get worse, you’re going to, in time, struggle to get sane people to run for the Board of Selectmen, he said.
Laura Brown asked whether something is in place requiring that conflicts of interest have to be disclosed. She said that she doesn’t think that the amendment is necessary.
There was some discussion.
Moderator Eaton said that he believes that the answer is yes, there is a conflict of interest policy in place.
Scott Marion called the question. Jaci Grote seconded. The motion carried.
Moderator Eaton then called for a vote on the amendment. He reread the amendment The motion failed.
Joe Cummins said that he respected the professionalism of Selectman Musselman and the work that he had done for the Town, “but I have to say that I think that statement was… and this is relevant to this because it goes to the heart of why this warrant…”
Moderator Eaton interrupted and cautioned Mr. Cummins to avoid “harsh, slanderous words.”
Mr. Cummins said that he felt that Mr. Musselman’s statement about his reputation perhaps being impugned was directed at an individual who has provided valuable services to the community and we should let bygones be bygones. I personally will have difficulty supporting this article. But, “it makes me sad to hear… this is a man who was attacked by Boards, threatened physically by Boards, and I’ll leave it at that, threatened by people on Boards. Mr. Musselman was sitting there when that happened. He did not come to the defense of that person. So, in that sense he certainly should understand where there might be some skepticism,” Mr. Cummins said.
Selectman Winslow proposed an amendment to change the entire article to “to see if the town will vote to require that all environmental monitoring, sample analysis and interpretation of results in connection with Rye landfills, former landfills and the Coakley Landfill be conducted by a professional engineer.” Selectman Jenness seconded.
Scott Marion offered a friendly amendment to change if to “qualified professional engineer.” Selectmen Winslow and Jenness accepted.
Michelle Tyminski asked why, “if we have had a discussion here and we are not concerned about people being independent or not independent, why do we have to take independent out of this?” With everything going on with this landfill and there’s no conflict of interest with Mr. Musselman’s firm, then there are other organizations that might be hired that are not independent and we might not want them to be considered.
Scott Marion said that there is already a conflict of interest policy on the books so that this is redundant.
Selectman Winslow expressed concern that the cost might be $50,000 to get another firm up to speed. Selectman Musselman recuses himself at Selectmen’s meetings when we talk about the Coakley Landfill and Grove Road, he said.
Jaci Grote said that the article makes her sad as there are a lot of people in town who work for nothing. We have a conflict of interest policy. I might consider running for Selectman in the future. It undermines what we stand for, she said.
There was no further discussion of Article 30. Moderator Eaton reread the proposed amendment. The amendment carried. Moderator Eaton said that the record should reflect that Selectman Musselman abstained from the vote.
Carol Menard said that she was confused by the entire discussion. She asked whether there wasn’t already a requirement that the sampling be done by a qualified engineer and whether the amendment didn’t eliminate the need for the article.
Selectman Winslow said that that was the intention. We have restrictions and town ordinances already that preclude any potential problems with people being associated with an organization without notifying us of that. I personally feel that this goes back to what we have now.
Someone moved the question. No second was heard. Moderator Eaton called for a vote. The motion carried. He called for the article to appear on the ballot as amended.
Mr. Hickson moved to restrict reconsideration. Mae Bradshaw seconded. The motion carried.
Moderator Eaton read the warrant article which would restore to the voters the exclusive authority to acquire or sell land and/or buildings by rescinding Article 12 of the 2002 Town Meeting which has given the Selectmen that authority without any obligation to obtain voter approval.
Lori Carbajal introduced the article, saying that she would like to see the article on the ballot as there are not a lot of people in the building to make that decision. It’s like a decision being made by one sibling that affects the other four. That wouldn’t be fair, she said. All voters and property owners should make the decision.
Selectman Musselman offered an amendment, saying that there is a misstatement of fact in the warrant article. He moved that, following “which has given the Board of Selectmen that authority,” the language “subject to the requirements that any sale or acquisition be submitted to the Planning Board and the Conservation Commission for their review; that the Selectmen hold two public hearings; and that if fifty voters object by petition, the Selectmen must put it on the ballot for a town-wide vote.” Shawn Crapo seconded.
Selectman Musselman argued that it matters little if this is voted or not as virtually all such acquisitions or sales have been placed before the voters. One exception was a sliver of land traded for another sliver, measured in square feet, not acres, to true up the roundabout. It would have been kind of a waste of the voters’ time for them to wade through that. If this passes with the proper language, everything would go before the voters.
Joe Cummins asked what language was inaccurate.
Selectman Musselman said that there is an obligation under certain circumstances to obtain voter approval.
Mr. Cummins said “but not all circumstances.”
Selectman Musselman agreed.
Mr. Cummins asked whether he was talking about public hearings.
Selectman Musselman said that he was talking about Town Meeting voter approval. The amendment provides a correct statement of fact.
Mr. Cummins asked whether the Board of Selectmen had the authority to buy a $.5 million piece of land without going to the voters if they wished.
Selectman Musselman said that they could not do so without an appropriation.
There being no further discussion on the amendment Moderator Eaton read the amendment which would rewrite the article to read:
“To see if the Town will vote, pursuant to RSA 41:14-c, to restore to the voters the exclusive authority to acquire or sell land, buildings, or both, by rescinding Article 12 of the 2002 Town Meeting, which has given the Board of Selectmen that authority subject to the requirements that any sale or acquisition be submitted to the Planning Board and the Conservation Commission for their review; that the Selectmen hold two public hearings; and that if fifty voters object by petition, the Selectmen must put it on the ballot for a town-wide vote. Nothing herein affects the authority of the Conservation Commission and the Heritage Commission to make acquisitions pursuant to RSAs 36-A:4, I and 674:44-b, II respectively.
Moderator Eaton erroneously referred to the “Conservation Committee” as he read the article.
The amendment passed.
Peter Crawford said that he would like to correct a couple of statements that were made. First, he said that he thought that Selectman Musselman was referring to the Foyes Corner rerouting. That actually did come before the Town Meeting because it required that a Town right-of-way be abandoned. Editor’s note: See 2013 Article 11 and N.H. Rev. Stat. Ann. (“RSA”) 231:43, I which requires a vote of the town before any class IV, V or VI highway may be discontinued. Second, with respect to the sale or property, there was a plan at one point to sell the Parsonage for one dollar. That was going to come before the voters, but that is the kind of thing that I’m concerned about. Just last year, $75,000 was spent without any voter knowledge until the transaction had been agreed to, although there has been an argument as to whether that was a legal settlement or a land acquisition. Editor’s note: This was the acquisition of a portion of the Transfer Station land by quitclaim deed that the Town had already thought that it owned, agreed to in late 2016.
Jeanne Low asked whether there hadn’t already been a discussion about this and whether in some case it wasn’t practical to get voter approval.
Peter Crawford said that her memory was correct. Just last year a very similar article came up. We appreciate that they’re not trying to do the same thing as last year. Last year they turned it on its head and said “would you vote to reaffirm the authority” under that 2002 vote. This year they’re not trying to do that, and I appreciate that. The vote to reaffirm the authority failed 967-548. The voters have already voted that they do not want to reaffirm this. I am very pleased that they’re now going to have a chance to rescind it as they obviously do not want this authority to be in place, he said.
Ms. Low called the question. Mae Bradshaw seconded. The motion carried. Article 31 was ordered to appear on the ballot as amended.
Scott Marion moved to restrict reconsideration. Burt Dibble seconded. The motion carried.
Jaci Grote announced that the Budget Committee would be meeting after the Deliberative Session concludes.
Moderator Eaton read the warrant article which emphasizes that any attorney paid from funds appropriated by Rye voters represents the Town and not the Board of Selectmen or any other Town, Board, Committee, Commission or individual. It provides further restrictions on agreements to disburse funds without an appropriation or when public hearings or required prior to a decision to disburse funds. It also provides for public hearings following settlements.
Peter Crawford addressed the warrant article. He said that recent events have made it clear that, often, neither the Selectmen nor the Town Attorney are proceeding in our best interests and in accordance with New Hampshire law and professional canons of ethics for attorneys.
First of all, it must be recognized that, the Selectmen are not vested “with exclusive authority to conduct litigation to which the town is a party.” He said that that was a quote from a New Hampshire Supreme Court case. Editor’s note: See Moulton v. Beals, 98 N.H. 461, 464 (1954).
Mr. Crawford referred to the settlement of the South Rd. litigation. He said that the Planning Board had denied a 17 lot subdivision and that a settlement had been concocted behind closed doors before the Superior Court had considered the case. Rye taxpayers were being forced to pay $400,000, although there was a minor reduction from 17 to 13 lots. Had the 17 lot subdivision been approved, 40 acres would have been donated to the Conservation Commission. The settlement stipulation states that “the planning board shall conditionally approve” the revised application and the “Rye Conservation Commission shall pay $300,000” to the developer. Furthermore, the settlement offer states that the Planning Board approval would be granted in a non-public meeting.
Mr. Crawford said that neither the Selectmen nor the Town Attorney could lawfully enter into an agreement that requires actions of an independent Town Board and an independent Town Commission and the law also requires public hearings by both entities before they may act.
While Mr. Crawford was speaking, Town Attorney Donovan got up and spoke to Moderator Eaton at the lectern. He is then seen walking off camera towards the location where Selectman Musselman is seated at the end of the table. After he returned, Selectman Winslow is observed getting up and walking off camera in the direction of Selectman Musselman. Moderator Eaton then is observed walking over to Attorney Donovan and appearing to whisper something
As Mr. Crawford said that the attorney had acted contrary to the interest of the Town as his client and outside the bounds of the law, Moderator Eaton interrupted and asked Mr. Crawford what he was reading from.
He responded that he was reading from a statement that he had prepared.
Moderator Eaton asked Mr. Crawford whether he was accusing someone of a violation of professional conduct.
Mr. Crawford said that he was not going to answer that.
Moderator Eaton raised his voice and said “what?” and added that he was concerned about personal attacks.
Town Attorney Donovan raised his voice and alleged that Mr. Crawford had accused him of violating the Code of Professional Responsibility governing lawyers. He said that he had given lectures to other lawyers on that. “I am asking you to apologize for accusing me before this group of violating the rules of professional conduct and if you do not apologize, you will answer for it.”
Mr. Crawford did not respond and kept reading. “The Town Attorney is not above the law…”
Moderator Eaton asked Mr. Crawford whether he was going to respond.
Mr. Crawford said that he was not going to, and resumed reading. “The Town Attorney is not above the law and possesses no super powers to waive bothersome legal mandates.” Mr. Crawford said that a statement prepared by the Town Attorney, announcing the settlement, states that $100,000 of the settlement amount “will be paid from litigation reserves, not from property taxes.” That statement is incorrect. As he admitted at this very meeting one year ago, in connection with an extra-legal $75,000 purchase of Transfer Station land, the amount of the reserve is established on the books of the Town by the auditors in consultation with him. It’s a bookkeeping entry, not an account holding cash. We taxpayers will provide the cash, he said.
Mr. Crawford also said that neither the $100,000 nor the $75,000 were ever appropriated by voters. Committing to spend taxpayer money that has not first been appropriated is a violation of RSA 32:8. Mr. Crawford concluded by saying that “this warrant article is needed to force the Selectmen and the Town Attorney to follow the law and to explain their actions rather than hide behind secret meetings, vague representations, and the assurance that, if we just knew what they knew, we’d agree with what they did.”
Selectman Winslow said that he had served on various boards and commissions representing the town for ten years and had seen the attorneys represent the town properly. He said that the warrant article is totally out of place, and proposed an amendment to change the article to: “[t]o see if the town will vote that any attorney paid from funds appropriated by Rye voters properly represents the Town of Rye.” Jaci Grote seconded.
Shawn Crapo urged support of the amendment as the article is an insult. He referred to instances where boards have retained their own attorneys, the ability to vote out Selectmen and Board members, and the vagueness of the reference to the best interests of the Town.
Jane Ireland moved the question. Jane Holway seconded. The motion carried.
The amendment passed.
Steven Borne said that, to him, the most important part had just been eliminated. We have had a litany of lawsuits over the years. I’ve never been in a meeting where there has been a “lessons learned” discussion and what we need to do to try to eliminate these situations in the future. He moved that the last lines back in. He referred to the lines staring with “at such hearing…” He provided the example of South Rd. and the need for a public discussion on what happened so that we can learn from it and not make the same mistakes again. Peter Crawford seconded.
Moderator Eaton described the motion as restoring the final two sentences.
Karen Oliver said that, in order to make sense the motion should include the final three sentences.
Mr. Borne agreed.
There was further discussion and it was agreed by Ms. Oliver, Mr. Borne and Mr. Crawford that the language to be added back would start with “no later than 30 days…”
Selectman Musselman said that following “describe the terms of the settlement” should be added “which are not subject to confidentiality.” Mr. Borne and Mr. Crawford agreed to the friendly amendment.
Town Administrator Magnant referred to settlements for minor motor vehicle accidents. Selectman Musselman suggested the addition following “shall hold a public hearing” the words “for any settlement in excess of $25,000.” Mr. Borne and Mr. Crawford agreed.
Selectman Musselman said that the amendment is doable but is a bad idea. There are settlements where, even after the settlement is done you are not necessarily out of the woods. There may be issues that are not subject to confidentiality that should still not be discussed. You are putting the Selectmen in a very difficult spot, he said.
Shawn Crapo asked what the language would be if this amendment is voted down.
Moderator Eaton said that it would revert to the Winslow amendment, which reads “[t]o see if the town will vote that any attorney paid from funds appropriated by Rye voters properly represents the Town of Rye.”
Shawn Crapo warned of the potential for each hearing taking 3 or 4 hours time and suggested that this amendment be voted down.
Steven Borne said that he would prefer avoiding $400,000 settlements.
Peter Crawford said that we had all been to Selectmen’s meetings where nobody shows up to address an issue and it takes about 30 seconds. Most settlements would fall in that category. You might have some money to run a few ads. It’s probably $10 or $20. It’s only settlements over $25,000 that would be affected, he said.
The motion to call the question passed.
Moderator Eaton then read the article with the proposed amendment:
“[t]o see if the town will vote that any attorney paid from funds appropriated by Rye voters properly represents the Town of Rye. No later than 30 days after the public disclosure of the settlement of any lawsuit, threatened lawsuit or other claim pursuant to RSA 91-A:4, VI, the Board of Selectmen shall hold a public hearing, for any settlement in excess of $25,000, with proper notice as provided by RSA 675:7. At such hearing, they shall describe the terms of the settlement which are not subject to confidentiality, the reasons why it is in the best interests of the Town, and the steps taken, or proposed to be taken, to lessen the future burden on taxpayers of similar settlements. Members of the public shall, at the public hearing, be permitted to ask questions and voice their views regarding the settlement.”
The motion to amend failed.
Shawn Crapo moved the question. Scott Marion seconded. The motion carried.
Moderator Eaton ordered Article 32 to appear on the ballot as amended.
Shawn Crapo moved to restrict reconsideration. Scott Marion seconded. The motion carried.
Mr. Eaton called for a ten minute recess.