NOTES OF FEBRUARY 26, 2018 RYE BOARD OF SELECTMEN MEETING

Final Revision B – Provided by the Rye Civic League

Present (clockwise around table): Town Administrator Michael Magnant, Selectmen Craig Musselman, Priscilla Jenness and Phil Winslow. Not present: Finance Director Cyndi Gillespie. Also present and sitting in the audience or the lobby outside: Police Chief Kevin Walsh, Fire Chief Mark Cotreau, Public Works Director Dennis McCarthy, Building Inspector Peter Rowell, Deputy Building Inspector Chuck Marsden.

Persons present from the public included: Greg Bauer, Marty Chapman (Housing Partnership), Peter Crawford, Jane Holway, Jeanne Low, Mel Low, Marisa Novello (Portsmouth Herald), Elizabeth Sanborn, Vaughn Sanborn, Jenny Sears, Joe Tucker.

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 6:42:56 (0:00 elapsed).

Summary

1. A long-time resident provided documents to the Selectmen that, she said, supports her assertion that Esther Parsons had not wanted the TD Bank parcel put to a government use.

2. Approval of the $300,000 conservation acquisition associated with the South Rd. development settlement was tabled after a resident expressed concerns, including non-compliance with 2015 Article 27, which requires a hazardous waste study for land previously used commercially.

3. The Rockingham Planning Commission presented the results of their study on Dow Ln. traffic.

4. The owner of 56 acres of land adjacent to the Town Forest complained about the lack of effective action to control dogs and the fact that three members of the Conservation Commission are opposed the leash law.

5. Selectman Jenness’ motion to support two New Hampshire House bills on Coakley Landfill remediation and a transparency requirement for the Coakley Landfill Group died for lack of a second after Selectman Musselman, admitting that he was a member of “the group,” warned that the issue was none of Rye’s business.

6. The Housing Partnership’s proposal for the Parsonage Apartments, if any, will be presented in April. Rent increases of thirty percent appear likely.

7. The Fire Chief said that usage of PFC-containing firefighting foam in Rye has been minimal, however some may have been used on the Grove Road Landfill, which is near the Garland Well.

Sealing of minutes (1:14 elapsed)

The motion of Selectman Jenness to seal the minutes of the non-public session just concluded carried unanimously.

Announcements (1:24 elapsed)

There were no announcements.

Public Comment: Esther Parsons’ desires regarding TD Bank parcel (0:35 elapsed)

Jane Holway passed out a document to the Selectmen. She said that she was present to talk about Ms. Parsons’ wishes regarding the purchase and use of the TD Bank building. She said that she had spoken at the Deliberative Session based on recall from 55 years earlier. She said that she had been in her attic looking for something else and found this material which is evidence of Ms. Parson’s desires regarding the property.

In 1964 the property was deeded over to the bank. In 1968, Mr. Young, who was then Chairman of the Rye Board of Selectmen, sent her a request to sign a release deed to allow for the use of land for municipal purposes. At that time the town was considering putting in a complex with a Town Hall, Library, Police and Fire. Editor’s note: It is unclear whether Ms. Holway is talking about the TD Bank parcel or the parcel on which Parsons Park is located. Ms. Holway said that that had never materialized. She said that Ms. Parsons’ response was that she could not sign it, and the reasons were provided. She also replied to the Chairman of the HDC on the same subject. She read from the documents and said that a legal opinion needs to be obtained.

Public Comment: Conservation acquisition, South Rd. (4:19 elapsed)

Peter Crawford expressed concern about the conservation acquisition that would be considered later in the meeting. He said that he had attended the Conservation Commission hearing the prior Thursday. Prior to that he had asked Mr. Magnant whether the traditional “a through p” documentation would be provided in accordance with the Selectmen’s policy of early 2014. He passed out copies of that document.

Mr. Crawford said that the document had been promulgated prior to the vote on the $3 million conservation bond which passed by six or seven votes. In the public’s mind, these were conditions to the passage of that bond. Without this, it probably would not have passed. He read from the document which says that “the Town Administrator and the Board of Selectmen may waive the specific information requirements outlined in items 2 a through p if deemed by them to be inapplicable to a specific acquisition.” There was apparently no determination that anything was inapplicable, there was a determination that this wouldn’t be done, which I think goes against the Selectmen’s own policy. It is very disappointing that a policy was in place, but the entire policy was waived, he said.

A lot of the information was found in the Planning Board files, but I had to go searching through them. It would have been nice to have had the information assembled and I don’t know why that couldn’t have been done, he said.

More importantly, Mr. Crawford said as he passed out a copy, in 2015, I introduced a warrant article that was amended fairly severely at the Deliberative Session, but it passed with a strong majority, 829-548, Article 27. He read the warrant article:

“Under the ‘a to q’ process for conservation land purchases, promulgated by the Board of Selectmen on January 6, 2014, only the written information and testimony at the public hearing may be considered in approving any acquisition. The selectmen may consider requiring as part of the Information Submittal an appraisal at the behest of the Town appropriately addressing the development potential of the property and a property survey plan and boundary description. A hazardous waste environmental analysis shall be performed for town on property previously used for commercial use.”

Mr. Crawford substituted “documentation” for “information” and left out two definitions in parentheses as he read. He said that he understood that, at least with respect to Selectman Jenness’ portion, there was a wood lot that had been logged.

Selectman Jenness started to say “no,” but Selectman Musselman interrupted her. Mr. Crawford said that he may be incorrect, but there needs to be a certification from all four property owners as to what commercial use may have occurred before it may be decided that there was no commercial use on any of this land, which is a condition to approving the acquisition. It does not appear that that was done. This may be just a formality, but the certification needs to be done, he said. Editor’s note: The land would to be part of a 13 lot subdivision, in accordance with a court settlement. The land was to be subdivided was to come from four owners of adjacent properties, one of which is a trust of which Selectman Jenness is a beneficiary. The four land owners, including the “PV & Hyde F. Jenness Rev. Trust” are co-plaintiffs in the lawsuit against the Planning Board of the Town of Rye, which sought to overturn the Planning Board’s denial of the application. See http://ryecivicleague.org/?p=3886.

Mr. Crawford said that he had had some trees cleaned up on his property and, when the vehicles go back, they’re loaded with diesel fuel, hydraulic oil and gasoline for the chain saws. There’s a possibility that some of that may have been spilled back there in connection with logging, or there may have been other activities. For example, there was a strawberry farm further down on South Rd. Sally King speculated at the Conservation Hearing that there had not been any commercial activity. I don’t think that that is good enough when we’re talking about potentially huge liabilities for the Town under the environmental laws. Once you’ve bought it, you pay for any cleanup, he said. We need to resolve this issue before we go ahead.

In addition, the absence of an appraisal is very frustrating as well, Mr. Crawford said. The former Rand parcel had an appraisal on it, and the other acquisition off of South Rd., the D.D. Cook subdivision, where there was a lot purchased for $350,000, which was also a lawsuit settlement, had the full “a through p” done and an appraisal was included which supported the $350,000. Here, all we have is speculation. I’m left scratching my head as to whether or not it’s worth $400,000 or $300,000. The Rand acquisition was $1.25 million for 16 lots that they believed would have been buildable. That works out to about $80,000 per lot. This is $100,000 per lot. It’s $400,000 to get them to reduce from 17 lots to 13 lots, a reduction of four. Whitehorse Farms, which occurred a couple of years before the 2004 road approval, was a reduction from 28 to 15 lots, a 13 lot reduction. The Conservation Commission, acting on behalf of the Town, got 80-100 acres and only had to pay $210,000, or $16,000 per lot. There has been some inflation since then, but not six times. How can we tell without an appraisal whether it is worth $400,000 or not? How to go into a negotiation to settle the case without an appraisal that tells us what our position should be? The developer in all likelihood had a sense as to what he was giving up. When I compare the drawings, two of the lots that he gave up had tons of ledge on them, which I think is no accident, he said.

(12:12 elapsed)

Selectman Musselman said that Mr. Crawford was well over five minutes and asked him to sum up.

Mr. Crawford said that he believed that those lots had been chosen so that he could avoid hammering out all of that ledge. Editor’s note: Under the terms of the settlement, blasting was prohibited. Mr. Crawford said that he did not know how many hundred people signed the petition urging the Town not to proceed with the development. Yes, it went from 17 to 13 lots, but for those who are really worried about the water quality, if that is even an issue, it is scant solace that there are only 13 lots rather than 17. To do everything in secret is forbidden by this article, which says that “only the testimony at the public hearing” and “only the information submittal” may be considered. If the Selectmen are going to rely on what they know from private conversations with counsel and these private negotiating sessions, that is not in conformance with this 2015 Article 27, Mr. Crawford said.

Editor’s note: The matter was tabled to March 12 later in the meeting. Click here.

Public comment: Dow Ln. (13:09 elapsed)

Elizabeth Sanborn said that she had learned a lot at the Deliberative Session with regard to what could happen. We went in with one warrant article and came out with something totally different. Tonight we are going to learn a little about this remediation effort from Chief Walsh, which is important to us. The neighborhood is a bit frustrated, but the steps going forward are important. We are not going to give up the fight for as long as it takes. We’re going to make sure that we’re represented at every step along the way, she said.

Public comment: Dogs on private property (14:11 elapsed)

David Tilton asked when the town was going to do something about dogs running loose disturbing wildlife on private property. I’ve been asked by the Chief to please be patient. I’m out of patience. Despite complaining for the past two years, nothing effective has been accomplished. You had three people on the Rye Conservation Committee (sic) that oppose a leash law. Are there other people? How much influence do they have so that the Selectmen can’t give the Chief the authority to do something to control the problem. I have 56 acres of land, the majority abutting Town property. I’ve allowed people to walk the perimeter for years, provided they stay out of the interior. It became necessary for me to say that you can walk the property, but without dogs. The townspeople became so used to using my land that the majority thought that they were on Town land. They put up a no hunting sign on my side of the wall. Someone else brought it to their attention. Another day I was clearing brush along the edge of my property. A couple came through and noted how they enjoyed walking there every day. They wanted to know if I worked for the Town of Rye. I want the wildlife not to be disturbed, he said.

Mr. Tilton proposed a 150 foot leash law around private property. He said that he had a pleasant meeting with Susan Shepcaro. Editor’s note: Ms. Shepcaro is a member of the Conservation Commission. Mr. Tilton said that she said that they were going to put up a fence. He said that the fence was unnecessary. I can handle the people, he said. He spoke about a dog having gone over the wall chasing a fox.

Selectman Musselman said that it had been more than five minutes and asked Mr. Tilton to sum up.

Mr. Tilton said that there were things that he could do that are legal, but that people would not enjoy. If something isn’t done by you people, I can assure you that people walking through the Town Forest near my property will not have a pleasant walk.

Another thing to consider is that I’m getting up in years. I’m not going to be here forever. With regard to the 56 acres of land that I own, the Town of Rye would be at the bottom of his list, he said.

Consent Agenda: Representative Messmer House bills on Coakley (23:48 elapsed)

Items A through C were approved without comment, with Item C, a letter regarding what to do with the TD Bank building, to be placed on file. Item D, a letter from Representative Mindi Messmer supporting two house bills, was pulled from the Consent Agenda.

Selectman Jenness said that Representative Messmer was requesting support for House Bill 1766 which is an act to remediate the Coakley Landfill in Greenland. A second bill that she is seeking support for is House Bill 1701, which would make the Coakley Landfill Group subject to RSA 91-A. Selectman Jenness referred to assertions that had been made regarding $5.25 million that had been received by the Group, but uncertainty as to what the money had been spent on. She made a motion that letters of support be sent for those two bills.

Selectman Winslow asked whether it was known what the remediation was supposed to have been.

Before there was an answer, Selectman Musselman interrupted and said that that was one of his questions as well. He said that the Coakley Landfill had been closed in accordance with arrangements with the EPA. He said that he did not know what was supposed to have been done. The second bill pertains to the Coakley Landfill Group which is 53 percent the City of Portsmouth and also includes the Towns of North Hampton, Newington, New Castle, I think, and some waste haulers. The point that they don’t know what the money was spent on, I don’t understand.

Selectman Jenness asked whether there was any accounting anywhere.

Selectman Musselman said that they have said that they are pulling together decades of boxes. I don’t know that that is the Town of Rye’s business. If we were Greenland and wanting water mains, we’d have a different stake. This an issue for Portsmouth and North Hampton to deal with, he said.

Selectman Jenness said that we did not send material to Coakley, but that we were getting it back.

Selectman Musselman agreed, referring to surface water in very low concentrations.

Selectman Jenness said that we are getting leaching and could in the future. That is a problem to me, she said.

Selectman Musselman referred to newspaper reporting where a City Attorney had made a statement relative to private entities, and said that the Town might be encouraging a difficult legal situation which we know nothing about and which the City of Portsmouth had been dealing with.

Selectman Winslow said that, from reading the background information, it seems obvious that somebody has to get to the bottom of it. My concern is whether the Town of Rye should get involved and what the consequences would be.

(26:02 elapsed)

Selectman Musselman said that he is a member of “that group.” He referred to the lack of “standing” to interject in our neighbors’ business. He asked whether there was a second. Editor’s note: “Standing” is a legal concept providing that someone arguing in court must have a stake in the outcome. It has no meaning or applicability in the legislative context.

There was a pause.

Selectman Jenness said that she would withdraw the motion if there is not support. She referred to the possibility of Coakley leaching additional material.

Selectman Winslow said that he would not be comfortable supporting the motion unless it was first found out what the remediation was to have been back in 1994.

Selectman Jenness said that it was only a request for support of the bill, not involvement as such.

As Selectman Jenness’ voice was trailing off, Selectman Musselman interrupted and referred to the minutes.

Minutes (32:03 elapsed)

The minutes of the February 12 meeting and the non-public session of the same day were unanimously approved without changes.

Sea wall rebuilding at 11F Street and 92 Old Beach Rd. (32:40 elapsed)

Greg Bauer addressed. Permission was granted for him to access the beach for separate two week periods for each property. All work is to be complete by April 15.

Dow Ln. analysis, David Walker, Rockingham Planning Commission (37:00 elapsed)

Editor’s note: Click here for public comment earlier in the meeting on the Dow Ln. issue.

Mr. Walker addressed. He said that traffic counters had been installed and in-person monitoring of turning movements had been conducted. Anecdotal evidence of speeding had been confirmed. Average speeds were in the mid to high 30s, but closer to 30 m.p.h. at Washington Rd.

There would be sufficient capacity if Dow Ln. was closed and the traffic diverted to Washington Rd. and Route 1. The light there is not optimized. There would be a cost to make it so. He implied that that would eventually need to be done. A new light would cost about $200,000. Closing Dow Ln. would not be a high cost as it could be done with Jersey barriers.

Various options for remediating the situation were discussed. There was discussion about the upcoming paving of Route 1. Several residents of the area also provided input.

There was discussion about accidents. While there were a number of accidents, Mr. Walker said that the number of serious injuries or fatalities in the past 10 years might prevent the intersection from qualifying for special treatment.

Housing Partnership report on the Parsonage Apartments (68:00 elapsed)

Marty Chapman, Executive Director of the Housing Partnership said that they were close to providing a proposal. The target for that is early April. There was discussion about various funding options. While many of the residents are currently senior citizens, the Parsonage Apartments are not technically senior housing currently. There was discussion about an increase in the rent. Current rents are about $680 monthly. An increase would be proposed to about $938 following renovation. That led to discussion about whether some of the current residents would need to be relocated elsewhere due to their inability to qualify at the higher rent. Mr. Chapman said that, after renovation, the apartments would be serving a different demographic. Mr. Chapman said that builders do not like to rehabilitate while the building is occupied, so temporary housing for the residents would be needed in any case. He referred to providing help for those needing to relocate.

Selectman Jenness asked about the availability of other housing in the area at the current price.

Mr. Chapman said that the residents could not be displaced until the end of the contract, or the difference in rent would have to be paid for 3 ½ years. The better scenario would be to identify other housing. If the Town is not going to be the landlord they would have to move anyway, he said.

Selectman Musselman pointed out that the lease would be up in January 2019. He asked why the Town did not yet have a proposal.

Mr. Chapman referred to his vendors having to proceed without compensation. He said that the Housing Partnership would be willing to do an extension rather than walk away at the end of the lease.

Selectman Musselman asked whether the missing information related to the construction cost.

Mr. Chapman agreed. He also said that the units would be moving from low income to moderate income housing.

Selectman Winslow referred to a rent increase exceeding 30 percent. He asked whether the vacancy rate was still 5 percent.

Mr. Chapman said that anything substantially below market would have demand. He has no doubt that the units can be rented once they are nicer. However, the bank would probably ask for a market study.

Selectman Musselman expressed suspicion that Town Meeting voters would not want to approve a 99 year lease.

Selectman Winslow asked whether the project would be viable with a 30 year lease.

Mr. Chapman said that it would be most viable with a 99 year deed restriction. The idea is to create and keep affordable units, he said.

Selectman Winslow said that he would like to reconvene the Parsonage Committee when Mr. Chapman comes back in.

Mr. Chapman said that their response would be either that they would not do the project, or that they were willing to do the project on specified terms.

Use of firefighting foam in Rye (46:36 elapsed)

Fire Chief Mark Cotreau reported on the issue. He said that there is more use of Class A foam. Class B foam has PFOA concerns. Rye firefighters have used very little Class B foam. He said that he had spoken with his three predecessors and interviewed department members. He said that only Class A foam had been used on the brush fire at 111 Garland that also involved construction equipment. Former Chief Sullivan reported training having been done behind the station using fewer than 10 gallons of Class B foam, he said.

Selectman Musselman asked whether Class B foam had been used near the Grove Rd. Landfill. Chief Cotreau said that it may have been, but he is not sure. Editor’s note: The Grove Rd. Landfill is just a few hundred feet from the Garland Well, which has experienced somewhat elevated PFC levels. PFOAs are a type of PFC.

Chief Cotreau provided the inventories and replacement costs for the foams that Rye has on hand:

Gallons Replacement cost

Class A 60 $5,800

Class B 35 $10,000

He said that the foam has a 20 year shelf life. He said that some trucks carry Class A foam and others Class B. In some cases, the foam is sucked out of a container using the venturi effect. Some of the foam is on trucks and some is at the station. Thirty-five gallons would not do a lot. If there was a plane crash they would call Pease.

Selectman Jenness referred to a plane from Pease having crashed in Rye just after the base had opened. There were quite a few feet of foam, she said.

In response to a suggestion from Selectman Winslow, Chief Cotreau agreed to keep a formal record of the usage of foam and the location where it was used.

Chief Cotreau said that since 2015 all of the foam acquired has been environmentally friendly and PFC-free. Everything we have now is below 1 part per billion of PFCs, he said.

Selectman Musselman pointed out that that is still 1000 parts per trillion. Editor’s note: The drinking water standard in New Hampshire is below 70 parts per trillion.

Chief Cotreau said that they must be really careful around waterways and marshes.

In response to a question from Selectman Musselman, Chief Cotreau said that Class B foam would be used in the case of a transportation accident, particularly when there is a volume of running fuel and a person in the vehicle. It would not be used on a structure fire, he said.

Selectman Jenness asked whether there was a danger if foam was sprayed on a person.

Chief Cotreau said that if there is a victim in a car that would be the least of their worries. He said that he had been involved in the usage of Class B foam only 2-3 times in his career.

(125:46 elapsed)

On a different subject involving PFCs, Selectman Musselman said that he had recently been involved in an issue in Arundel, ME involving a former dairy farm. The PFAS concentration there was very high due to the application of sludge. He asked whether there had been any sludge sites in Rye.

Selectman Jenness referred to a farmer who was also a sewage collector who had applied sludge on his own land.

Selectman Musselman said that he knew where it was. There was an old pit there, he said.

Selectman Jenness said that she did not know about the pit, but it was near a spring.

Selectman Musselman said that it was downhill from the spring.

South Rd. Conservation Acquisition (131:35 elapsed)

Selectman Jenness started to get up to recuse herself. Selectman Musselman moved to table the issue to the March 12, 2018 meeting. Selectman Winslow seconded. Both were in favor.

Permission for Keriann Roman to hold sign on March 9

Town Administrator Magnant said that Keriann Roman had asked for permission to hold signs on both March 9 and 10. Since March 9 was a Friday, and since the permission granted in response to Mr. Crawford’s request at the prior meeting applied only to Saturdays, he asked whether this request was aceeptable. It was.

Blue Ocean Society cleanup

Selectman Winslow referred to 71 beach cleanups having been done, collecting 4961 pounds. It was agreed that a letter of thanks would be sent to them.

Adjournment (134:16 elapsed)

Whereupon the meeting adjourned at approximately 8:57 p.m.