Town of Nottingham
Selectmen’s Meeting
January 4, 2010
6:31 PM Chair Bonser opened the meeting and asked all those present to stand for the Pledge of Allegiance.
Members Present: Mary Bonser, Peter Bock, Gary Anderson
Guests: Deputy Attorney General Bud Fitch
Others: Charlie Brown, Town Administrator; Traci Chauvey, Recording Secretary; Gail Mills; Chris Mills; John Terninko; Bonnie Winona; Charlene Andersen; Cheryl Smith; Judy Doughty; Representative Frank Case; Peg Case; Karen Davidson; Senator Jackie Cilley; Mike Russo; Laura Clement; Tom Sweeney; Gail Darrell; Chris Regan; Dale Shippee-Rice; Peter Thompson
Chair Bonser thanked everyone for coming. Acknowledging the agenda, she moved right into appointments.
APPOINTMENTS
6:30 PM – Bud Fitch, Deputy Attorney General, State of New Hampshire
At 6:31 PM Chair Bonser acknowledged Deputy Attorney General Fitch and asked him to introduce himself.
Deputy Attorney General Fitch gave a brief history of himself. He informed all that he is not an expert in all areas of the law and, specifically, not in the issues that were to be discussed at this meeting. He will listen to all, provide answers where he can, be honest when he cannot, and determine if there are areas where he will need to get back to anyone.
Chair Bonser informed Deputy Attorney General Fitch that there were several specific areas they wished to address this evening including the permitting process for the permit that was issued to USA Springs, Chair Bonser’s interpretation of DES lobbying at the State House, Nottingham’s water ordinance, Part 1 Article 10 of the NH Constitution, the DOT driveway permit issued to USA Springs, and NAFTA.
Opening discussions on the permitting process, Chair Bonser explained she had some documents she wished to discuss.
Motion: Bonser, second Bock to make the letter from Attorney Donovan dated December 16, 2009 public information.
Vote: All in favor. Motion passed 3-0
Chair Bonser informed all that the Selectmen had hired Attorney Donovan to review all aspects of the permitting process for USA Springs. The Selectmen had received a preliminary opinion.
Chair Bonser provided Deputy Attorney General Fitch with a packet of documents and distributed copies of the letter from Attorney Donovan to the public. (See official file.) She read paragraph three of Attorney Donovan’s letter, for the record. She referred Deputy Attorney General Fitch to his packet of papers, noting that the packet included Attorney Donovan’s letter, the report from Dr. Ballestero, the report from ESNR, communications between Representative Tom Bucco and herself, a letter from Mark West, a Nottingham resident and wetland scientist, and a one page document
containing recommended changes to the groundwater legislation. Chair Bonser informed Deputy Attorney General Fitch that while doing research, to be sure that municipalities were never given authority in this area, she discovered that it appears as though DES was never given authority to issue groundwater permits; adding this in to 485C:1 is one of the proposed changes. She believes there has been a catastrophic breakdown at DES. She reported that DES had 27 reasons not to issue the permit until Benson became Governor. After Benson was elected, those reasons became mere concerns.
Note: It was noted that the copies of the letter did not include the second page. Chair Bonser continued to speak, while Mr. Brown left to make copies. He departed at 6:37 PM and returned at 6:42 PM.
Mr. Bock, acknowledging that the issue is bigger than Nottingham, commented that, although many can speak to the complexity of the issue, no one has been able to speak to the resolution. Chair Bonser voiced concern that the approval was politically motivated and not based on scientific evidence.
Deputy Attorney General Fitch, again, explained that he is not an expert in this case, but offered to speak about the processes of government, options taken, and options remaining.
Chair Bonser raised the issue of the five year life span of the new source bottled water permit, which expires next October. Renewal requires that pumping be monitored for one year prior to the five year expiration. There has been no pumping at the site in four years. Chair Bonser reported that Brendon Kernen had said that that is just a technicality; they will have no problem renewing the permit.
Motion: Bonser, second Bock to request that the Attorney General’s Office investigate the process by which this permit was approved.
Discussion: Mr. Bock would like to see the record of the process used; he does not understand how this turned around and went the wrong way. He inquired about records that may possibly be available to the AG’s Office that are not available to the Selectmen and about whether this type of investigation would fall under the egis of the Attorney General’s Office. Deputy Attorney General Fitch informed all that the Office of the Attorney General is a constitutional office; the Attorney General is appointed, not elected. It is a four year term, which outlasts the person whom appointed them. The Office is charged with looking into allegations of criminal misconduct by public officials in their official capacity. He informed all that the Governor and the Executive Council are
supervisors of the State staff and that the AG has a role in supporting the Governor and Executive Council as they carry out this duty. If, during the course of their duties, there is found to be an improper carrying out of the law, the Attorney General’s Office will usually address the situation directly with the offender, explaining that things need to be done differently. If that does not work, they go to the Governor and Executive Council, who have the authority to take whatever disciplinary steps they deem appropriate including removal from office.
Deputy Attorney General Fitch noted that everything is governed by public policy. He gave a brief civics lesson on the hierarchy of the government, noted that the Town had appealed this case all the way to State Supreme Court and the State Supreme Court had ruled. He informed all that, right or wrong, our forefathers agreed on this form of judicial branch, leaving final decisions with the State Supreme Court. He explained that if all avenues have been exhausted and the outcome is not desirable, the next step is to go to the legislature to change the laws. He noted, again, that there is no higher authority in the state than the Supreme Court. Returning to the issue of whether or not DES is doing their job, Deputy Attorney General Fitch, acknowledged Chair Bonser’s contact with Governor
Lynch and again, noted that the Governor is the overseer of this area. At Chair Bonser’s inquiry, Deputy Attorney General Fitch noted that the Attorney General’s Office is one of many resources that could be called upon to aid the Governor in an analysis of this situation; however, this is not where their expertise lies. He believes that the Governor would need to call upon people with expertise in the sciences.
Deputy Attorney General Fitch assured those present that Nottingham is not the only community having problems with the State deciding what can and cannot be done on their land. Many communities are having issues with solid waste.
Chair Bonser again reiterated that she believes DES is an errant agency, adding that she does not believe there is enough money in the State to fix the damage that will result if this is allowed to continue. She inquired as to whether or not this situation becomes criminal at some point. Deputy Attorney General Fitch replied that, as he sat there, he was not aware of any criminal activity. There was discussion around familiarity between parties. Deputy Attorney General Fitch noted that it is a small State and unlikely that you will not run into people you know, everywhere, in the course of business, especially when you are in public office. There was discussion about the system of laws, NH Statute 21-G, and conflict of interest. Deputy Attorney General Fitch talked about relationships. Mr. Bock, speaking to Deputy Attorney General Fitch and for the record, again, voiced consternation, acknowledging that many people in this community are feeling this way.
Chair Bonser thanked Deputy Attorney General Fitch for his input and informed the other Selectmen that she would like to move forward with a vote and write a letter to the Attorney General’s Office. She asked Deputy Attorney General Fitch if he could provide them with suggestions on what they should say in the letter. Deputy Attorney General Fitch, again, stated that he had not heard any evidence of criminal misconduct, although he did not want to discourage them from writing. He acknowledged that they received letters all the time for things that do not fall within their range of responsibilities. He informed them that Attorney General Delaney will review the letter and if his analysis does not indicate criminal misconduct he will write, explaining the same things that Deputy Attorney
General Fitch explained tonight. Mr. Bock asked to hold off on the vote until after public input.
Acknowledged by Chair Bonser, Mr. Terninko took the mic and asked Deputy Attorney General Fitch what advise he would give to residents of Nottingham, if they hired him as their attorney. Deputy Attorney General Fitch explained that he has a role, and he has a client. His client is the State of New Hampshire. There was a joke about conflict of interest. Mr. Terninko stepped down.
Acknowledged by Chair Bonser, Ms. Doughy took the mic. She informed Deputy Attorney General Fitch that she has been involved since the beginning. She informed DES of the pollution on the Harnum property, and even provided Sarah Pillsbury with requested maps. On the day of the inspection, she was informed that DES had not brought metal detectors with them to find the buried tanks. She voiced concern over the kind of protection DES is providing. Ms. Doughty informed Deputy Attorney General Fitch that the ten-day pump test moved forward resulting in the pollution being drawn in to the aquifer, wells being drawn down, etc.; scientific proof that this project is not viable. She noted that DES denied the permit for twenty-seven reasons. The denial was appealed and the decision to deny was
upheld. She, also, informed Deputy Attorney General Fitch that the only change between the denials and ultimate approval of the permit was the change in governors. She believes that DES has committed criminal acts against the people of New Hampshire. Noting that citizens are repeatedly told they have no standing in this issue, she wants to know who the protectors of the people are and at what point they come into play. Chair Bonser thanked Ms. Doughty. Ms. Doughty stepped down.
Acknowledged by Chair Bonser, Ms. Clement asked for clarification of Ms. Doughty’s words that “the scientific evidence disappeared.” It was clarified that the evidence was not missing but ignored. Ms. Clement stepped down.
Acknowledged by Chair Bonser, Mr. Thompson took the mic. Mr. Thompson informed all the he has spend much time looking at the reports, including the permit application, the points made by DES at the time of the denial, and the explanation by Brandon Kernen, the DES hydro-geologist in charge of large groundwater permitting. He noted for the record that Mr. Kernen’s explanation addressed each of the twenty-seven items in the DES denial, in great detail. He feels that people need to accept the fact that the “rules of the game were followed.” The problem is not that the evidence was ignored but that Mr. Kernan disagreed with Dr. Ballestero on several fundamental aspects including the movement of groundwater and the potential for adverse affects. He noted that, at a meeting he had
attended, Ballestero and Kernan had agreed to disagree and DES, faced with the decision of what to do, decided to take the approach of “we will monitor.” This has been done before and the parties withdrawing water have had to reduce the amount being withdrawn. The plan included with this approval clearly stipulates a percentage to be reduced if adverse affects should appear. Mr. Thompson voiced concern that political pressure was placed on then commissioner, Nolan, to take this approach. He is concerned with the process by which one landowner might be able to withdraw water and adversely affect neighbors when their sole intent is to sell the water for profit. At Chair Bonser’s request, Mr. Thompson informed Deputy Attorney General Fitch that he is a bedrock geologist, although not a hydrogeologist.
Acknowledged by Chair Bonser, Mike Russo took the mic. He informed Deputy Attorney General Fitch that he does not feel protected by DES. DES has concerned themselves with only quantity, not quality, in this case. He believes there is a significant gap in the regulatory process and permitting framework. He is concerned with other potentially contaminated sites, noting that there is no monitoring in place for migration of pollution. Mr. Russo also addressed the DOT driveway permit and Declaratory Ruling 2000-01. He informed Deputy Attorney General Fitch that he was unable to locate where it states who may or may not appeal a driveway permit, although residents have been repeatedly told they have no standing. Mr. Russo, acknowledging the twenty-three items requiring review for a
major driveway permit including traffic studies, noted that these things were never done and rules followed for the issuance of this permit were the rules for a regular permit. He further noted that this permit has expired several times, may be expired now, and keeps getting approved for renewal with no updates. Much development has taken place in this area since this permit was originally approved. Chair Bonser thanked Mr. Russo. Mr. Russo stepped down.
Chair Bonser noted for the record that the permit is the largest, and only bedrock, groundwater withdrawal permit in the State of New Hampshire. Chair Bonser closed the discussion on the permit and opened discussion on DES lobbying.
Chair Bonser informed Deputy Attorney General Fitch that she finds it highly unethical that DES employees are lobbying to take rights away from municipalities, noting they are paid bureaucrats. Deputy Attorney General Fitch discussed the system of laws that govern lobbying under RSA 15. The definitions exclude government employees. Acknowledged by Chair Bonser, Mr. Sweeney asked for clarification from Ms. Bonser of state employees sitting on committees, adding that as a past state employee, he finds this unusual. Chair Bonser read Sarah Pillsbury’s name from the roster of members on the large groundwater legislation commission. Deputy Attorney General Fitch explained that the Commission is an advisory board only. They are not voting on and making laws. He explained that in a
small government, such as New Hampshire’s, lobbyist and state employees are frequently used to help craft legislation because the legislators do not have enough time and staff to cover all that is needed. There was discussion around the weight that these commissions and committees carry, the potential for abuse of this type of system, and lack of resources to change the system to something that may or may not be better. Chair Bonser closed the discussion on lobbying and opened the discussion on the water ordinance.
Acknowledged by Chair Bonser, Gail Darrell took the mic. Ms. Darrell introduced herself as a Barnstead resident, an employee of CELDF, and a member of the Nottingham Tea Party. She noted that the Tea Party has learned much about water corporations, the withdrawal process, the permitting process, and how the State works within these processes. She was here for clarification and information to have a better understanding. She asked if, under NH law, it is illegal for a town to draft an ordinance banning the withdrawal of water. Deputy Attorney General Fitch, noting that illegal can mean many things, explained that the Supreme Court had ruled that in the absence of any clear statement giving municipalities authority in any area, they are pre-empted by State laws and regulations. Ms.
Darrell asked what would happen next if the town did pass such an ordinance. Deputy Attorney General Fitch explained that nothing would happen until one of the parties, the town or the applicant, pursued the issue. There was discussion about actions either party could take. Ms. Darrell asked if the applicant could sue the town for prohibiting the withdrawal if the town enforced the ordinance. There was more discussion around actions that could be taken. Deputy Attorney General Fitch explained that the applicant would, most-likely, sue to challenge the town’s authority to prohibit rather that the actual prohibiting. Ms. Darrell voiced concern that there is nothing a town can do to protect themselves. Deputy Attorney General Fitch reminded Ms. Darrell that he was not here to provide a legal opinion. He educated the public further on being citizen members of sovereign entities; the first being the USA, which is followed by the
State. He discussed having elected officials making decisions on laws, voting for those you trust, and municipalities existing at the pleasure of the State. He reiterated that towns only have what authority is expressly given to them in the laws and reminded all that New Hampshire had considered home rule some time ago but it was voted down. Ms. Darrell believes it is contradictory that the State prohibits this type of action when it is clearly allowed by Part 1 Article 10 of the NH Constitution. Deputy Attorney General Fitch interprets Article 10 as acknowledgement by our forefathers that they were forming a constitution that had a means by which the people could change government. He discussed the constitutional convention. In this case, specifically, he noted there was a process of redress that was followed; each time someone came out a loser. In the end, the towns came out the losers. He explained that since there was opportunity
for redress, there is no trigger for the right to revolution. Chair Bonser read an excerpt from Part 1 Article 10 of the NH Constitution, and stated that revolution is legal when redresses are ineffectual. Chair Bonser thanked Ms. Darrell for input. Ms. Darrell stepped down.
Acknowledged by Chair Bonser, Mr. Mills took the mic and introduced himself as a Nottingham resident and co-founder of the Nottingham Tea Party. Mr. Mills informed Deputy Attorney General Fitch that attorneys and the selectmen have repeatedly stated that the ordinance is illegal and unenforceable. He referenced John Forest Dillins and the relationship of the State to Town being much like that of a parent to a child. He inquired about what redress is available to a town when there is an abusive parent. Deputy Attorney General Fitch does not support the analogy, noting that we are all equal parts of the State and everyone gets a vote. He noted for the record that he did not get a vote in his family. He reminded all, again, that our forefathers entered into an agreement to live by the
democratic process put in place long ago. It is a system of majority rules. If you do not like the rules, you must convince half plus one to agree with you and vote in your favor. Mr. Mills indicated that he believes that is what they have done with the water ordinance; they are challenging the State’s laws. Deputy Attorney General Fitch feels that the passing of the ordinance is meaningful, makes a powerful statement, but has no legal effect. The forefathers agreed to live by this form of government and the correct democratic process for changing laws must be followed. Chair Bonser thanked Mr. Mills. Mr. Mills stepped down.
Mr. Bock noted for the record that he was one of three sitting Selectmen when the water ordinance came about. He informed Deputy Attorney General Fitch that they had received much advice on the ordinance. They were interested in not only the ramifications, but the cost and liability of it, also. He reported that the Selectmen were not negligent of the ordinances impact, they simply felt that nothing would be accomplished by taking this route.
Acknowledged by Chair Bonser, Ms. Mills took the mic and introduced herself. Mr. Terninko and Ms. Winona joined her. Ms. Mills inquired about Article 8 of the New Hampshire Constitution and read a portion regarding government officials being responsible to the people they represent, for the record. She informed Deputy Attorney General Fitch that the Selectmen had been asked to enforce the ordinance under this Article on several occasions. Deputy Attorney General Fitch interjected that he thought any good attorney would advise the Selectmen against that course of action to the extent that the provisions they want enforced are clearly pre-empted by State law and unenforceable. Deputy Attorney General Fitch went on to explain that part of government’s duty is to not do something just
because someone wants it done. There are standards set for when it is proper to investigate. It is the government’s duty, equally, to investigate when there is cause as it is to not interfere with the freedom of the accused when there is no evidence. He further noted that the Selectmen took an oath of office to uphold the Federal and State Constitutions and it is reasonably understood that if someone wants them to take action that they have been advised they have no legal right to take and by taking action they interfere with another, it would not be proper for them to carry out the action. Ms. Mills asked Deputy Attorney General Fitch if he was saying the ordinance is illegal. Deputy Attorney General Fitch noted that several attorneys were consulted or provided some opinion on the ordinance, and all generally agreed on its status. He, himself, is not here to provide a legal opinion but it does not surprise him the all others have advised
them not to enforce the ordinance. There was discussion around those that provided opinions including Attorney Teague, Attorney Loughlin, and several attorneys from LGC. Chair Bonser noted that the Selectmen have not received one opinion in support of enforcing the ordinance. Ms. Mills reminded all that the Selectmen had been invited to have a conversation with the constitutional lawyer who has supported the Tea Party through this process and questioned what good Article 8 is. Deputy Attorney General Fitch explained that Article 8 is the very thing that requires public officials to use the course of authority given to them only when there is just cause to do so. Ms. Mills acknowledged that the Selectmen decide what will be enforced. Deputy Attorney General Fitch noted that, in every instance, there is a mechanism to replace an official who is not carrying out their duties in a neutral and appropriate fashion. Ms. Bonser thanked Ms. Mills. Mr. Terninko raised the issue of
good and bad laws, and suggested that the major changes that have taken place with laws did not come without confrontation. Deputy Attorney General Fitch disagreed, using the same sex marriage issue as an example. He is proud that change was managed entirely through a democratic process. Mr. Terninko noted that part of the state’s job is to protect the citizens. He does not see the citizens being protected from NAFTA or the WTO. He noted for the record that USA Springs has a European market for the water. Deputy Attorney General Fitch informed him that he had just jumped from 1/860K percent of a decision making process to 1/300M percent. Federal agreements are high on the scale. There was more discussion on the proper avenues to support and institute change. Ms. Winona shared her disappointment with Deputy Attorney General Fitch, noting that she had looked forward to his visit believing that he would be of some help.
She informed him that she believes government is basically corrupt, starting at the federal level. She noted that there is corporate money buying both sides of the aisle and paying for lobbyists. She believes that lobbyists have contributed heavily to the corruption of the government and should be banned. She encouraged any representatives who were present to consider other options. Citizens are left with the vote, whatever good that is, when corporations have the money to pull all the strings of the representatives that are supposed to be representing the people. She voiced consternation at these paper entities that have no regard for the environment or the people. Deputy Attorney General Fitch respectfully disagreed with Ms. Winona and encouraged her to speak one-on-one with her State Representatives and Senators. He shared that his experience, with the rare exception, has been that these are honest individuals trying to do the
right thing. Ms. Winona clarified that she was calling the collective system corrupt, not the specific individuals. She believes the system has been corrupted and is easily corrupted by the structure that exists when citizens have no standing in their own State to address issues that affect their health, safety, well being or pocketbooks. Mr. Terninko read a poem by Wendell Berry titled Questionnaire. Ms. Bonser thanked Mr. Terninko, Ms. Mills, and Ms. Winona. They each stepped down.
Acknowledged by Chair Bonser, Representative Case took the mic. Representative Case wanted to make it abundantly clear that to the best of his knowledge all bills that come before the House or Senate, in the State of New Hampshire, have been composed and written by a group called Legislative Office Services; a group of lawyers. The bill then comes to the committee and, while lobbyists are there and may be asked for recommended changes, he is unaware of a lobbyist ever drafting language for a bill. Ms. Bonser thanked Representative Case. Representative Case stepped down.
Chair Bonser moved the meeting on to police powers of the Board of Selectmen. Deputy Attorney General Fitch explained that this is not about uniform policing such as would be done by the police department but a generalized legal term that refers to the regulation of the community. He referenced NH RSA 31:39 and talked about things such as regulating the conduct of public dances, regulating the conduct of roller skating rinks, and the making and ordering of the Town’s prudential affairs. Chair Bonser inquired about case law that would further define the law. Deputy Attorney General Fitch acknowledged that there is case law and offered to leave them with a listing he brought. This information can also be found in the bound RSA book. He noted that they also have additional authority
in the land use area which is covered by different RSA’s. Chair Bonser inquired as to whether their authority and duty to handle the prudential affairs of the town, which she believes includes the health and safety of the community, provide the Selectmen that ability to enact regulation for large groundwater withdrawals that would hurt the community. Deputy Attorney General Fitch informed Chair Bonser that there were two reasons this would not happen. The first being that there would not be a grant of power that would allow the municipality to adopt rules that are in conflict with State laws and secondly, the Selectmen would not be allowed to regulate and area the State has already filled unless given an explicit grant from the State. He referenced Gerard vs. the Town of Allentown, and recited part of the Supreme Court Summary. He, again, reiterated that there are methods to make changes.
Chair Bonser thanked Deputy Attorney General Fitch for his input. She called for any other comments.
Acknowledged by Chair Bonser, Senator Jackie Cilley took the mic. Having raised the ability of the legislators to craft laws on behalf of the citizens, and since she has been the focus of considerable attention relative to groundwater, Senator Cilley asked Deputy Attorney General Fitch to speak about retroactive legislation, informing all that she has been asked to seek legislation that will affect the permit that has already been granted to USA Springs. Deputy Attorney General Fitch informed all that one of the principals of the Constitution is ex post facto law; when someone relies upon current law to enter into a contract, the government cannot come along at a later time and change that relationship. Law can change how future permits are handled but cannot unwind existing acts and change what has
already happened. Senator Cilley asked Deputy Attorney General Fitch to speak about whether there are any instances, in the State of New Hampshire, where the State had delegated to any other entity, including municipalities, authority over issuance of permits, from a State regulatory body. Deputy Attorney General Fitch could not comment for certain but noted that he is not familiar with any. Lastly, Senator Cilley informed all that she Co-Chairs the Citizen’s Commission on the Impact of Free Trade Agreements and would welcome any of them at the Commission’s meetings. They typically hold their meetings on the first Monday of the month from 9:00am until 11:00am. Chair Bonser commented that even though there are no other instances of DES sharing permitting responsibilities does not mean that it should not happen in this instance. She informed Senator Cilley that that is what she should be working toward. Senator Cilley thanked
Chair Bonser and stepped down.
Acknowledged by Chair Bonser, Mr. Terninko began to rise. Ms. Clement interjected and requested that the Board take comments from individuals who had not yet spoken. Mr. Terninko took his seat. Chair Bonser acknowledged Charlene Andersen. Ms. Andersen took the mic and introduced herself. She explained that she lives within the zone of influence and has spent much time educating herself on the issue. She inquired about the Governor’s doctrine for putting water into the public trust and whether or not the public trust would give the Attorney General’s Office authority to protect the people. Deputy Attorney General Fitch acknowledged that he is familiar, but not an expert, with the concept of the doctrine of the public trust as it applies to water. He would provide
a limited answer to the best of his ability, and seek a more definitive answer from someone more experienced in this area. He believes that if there is such a doctrine, Nottingham would be in the same situation. I t would not create an overarching authority. The doctrine would distinguish real property from the water that flows under it. Ms. Andersen reported that she had heard from a town in Maine that is going through the same thing that this public trust helps. Deputy Attorney General Fitch did not dispute, acknowledging that it sets ownership. Chair Bonser thanked Ms. Andersen. Ms. Andersen stepped down.
Acknowledged by Chair Bonser, Ms. Shippee-Rice took the mic. She thanked Deputy Attorney General Fitch for taking his time to come to answer questions. She sees two risks; the contamination and the safety on Route 4. She asked Deputy Attorney General Fitch who would bear the responsibility for adverse affects from this project. She asked if residents could sue the State for criminal negligence. She wants to know what recourse residents have after-the-fact. Deputy Attorney General Fitch acknowledged the questions, noting that recourse would depend on what had happened. He felt it was unlikely that the State would be held responsible for an accident for having issued the driveway permit. He noted that he is not a pollution expert and could not give a menaingful answer to that
part of her questions but he would expect that at some point, the entity that is causally responsible should be held responsible, but acknowledged that he did not know if operating within the permit mitigated their responsibility. Ms. Shippee-Rice asked how the State considers reasonable risk that is a moderate to severe risk. Deputy Attorney General Fitch felt her answer was, at least in part, scientific. He noted that it is a process that is always evolving. Ms. Shippee-Rice commented that DES is as responsible for water quality as they are quantity. Deputy Attorney General Fitch indicated he was not comfortable responding to this, noting that he felt its meaning went beyond what he thought the correct answer is. Ms. Shippee-Rice confirmed with Deputy Attorney General Fitch that he would return to his post with the knowledge that the residents are as concerned with water quality as they are quantity. Ms. Shippee-Rice stepped
down.
Acknowledged by Chair Bonser, Chris Regan took the mic. He talked about parsing laws and smoking guns. He informed Deputy Attorney General Fitch that he has seen neighbors driven out of the neighborhood by intimidation, automatic weapons being fired, people beat up, and cameras ruined. He told Deputy Attorney General Fitch that they are looking for leadership from their elected officials. He believes that the smoking gun is the sudden change at DES in the permitting process. Deputy Attorney General Fitch, acknowledging respect of Mr. Regan’s interpretation of the smoking gun, noted that he, himself, is the one that is called upon to confront those interpretations. Deputy Attorney General Fitch acknowledged the residents frustration with the law and explained that as frustrating as
it is that he cannot do anything for us, it is, also, protection. Protection against someone else requesting the same actions be taken against the Town of Nottingham. He noted that it is a critical part of our democracy and he believes it is the best system humankind has come up with. He encouraged all to continue to work through the democratic process. Chair Bonser thanked Mr. Regan. Mr. Regan stepped down.
Acknowledged by Chair Bonser, Ms. Doughty informed Deputy Attorney General Fitch that she, herself, had been a victim of intimidation and relayed an incident involving four threatening men, carrying weapons, who beat up a camera man, stole his camera, and waited for Ms. Doughty at the end of her driveway. She informed Deputy Attorney General Fitch that she was concerned with leaving her house because of she was in fear for her animals’ welfare. Chair Bonser thanked Ms. Doughty. Ms. Doughty stepped down.
Acknowledged by Chair Bonser, Mr. Mills took the mic. He posed to Deputy Attorney General Fitch that there is an ordinance in place that has never been challenged and there is a building permit that has expired. He believes that to reissue it would go against the ordinance. He inquired as to whether the town can refuse to reissue the permit. Deputy Attorney General Fitch, standing on his earlier comment, noted that the government officials are to use their coercive powers that they are given in government only when they have a reasonable basis to believe that the action is sustainable under law. He further commented that the Selectmen have a duty to listen to their counsel and that it would be inappropriate for them to use the coercive power of government. Deputy Attorney General Fitch
clarified for all that he was not offering an opinion on whether the town should reissue the building permit. Mr. Mills feels there is a dichotomy and that the town is in a position to refuse to reissue a permit when it violates an existing town ordinance. Deputy Attorney General Fitch informed Mr. Mills that although he respects his opinion, he did not share it. He noted that the Selectmen have prudently sought legal counsel in the past, acknowledging that they have been counseled by several very competent attorneys.
Chair Bonser closed the discussion and thanked Deputy Attorney General Fitch for his time and efforts. She reminded all that there was still a motion on the table. There was discussion around the wording of the motion. Chair Bonser explained that she had worded the motion as she did because she believes that something happened. There was more discussion around the wording for the motion. Chair Bonser moved the following motion forward.
Motion: Bonser, second Bock to write a letter to the Attorney General asking for his assistance in reviewing the process and procedures used in the large groundwater withdrawal permit issued to USA Springs.
Discussion: Ms. Clement inquired about the purpose and necessity for a letter considering Deputy Attorney General Fitch was sitting here taking notes. She inquired what he would do upon leaving here. Deputy Attorney General Fitch reiterated that no evidence of criminal conduct by a public official had been raised this evening. Unless the letter contains something more, he suspects that we will receive a letter back stating that the Supreme Court has ruled in the process. He again noted that the question as to whether or not DES did a good job is one of executive supervision which lies with the Governor. Chair Bonser informed all that she wanted to follow up with the letter as formality and moved the motion.
Vote: All in favor. Motion passed: 3-0
The last thing Chair Bonser wished to address with Deputy Attorney General Fitch was whether or not DES had the legislative authority to grant the permit to USA Springs, in the first place. Deputy Attorney General Fitch responded that he believes that was answered with the Supreme Court’s ruling. There was discussion around why wording would be proposed now, if they had the authority all along. Deputy Attorney General Fitch noted several reasons including to remove any doubt and because of a Supreme Court decision. At Chair Bonser’s inquiry, Mr. Bock indicated he was not interested in following up on this line of questioning.
Acknowledged by Chair Bonser, Senator Cilley informed all that she did not want to leave any notion on the floor that Attorney Head had crafted the language for the legislation, in any way. At Chair Bonser’s inquiry, Senator Cilley noted that many people were involved in crafting the language, including an attorney from the working committee and Sarah Pillsbury.
Chair Bonser, acknowledging the need to take care of administrative business, thanked Deput Attorney General Fitch for his time and consideration and called a break at 9:25 PM.
Chair Bonser reconvened the meeting at 9:35 PM. Everyone, with the exception of Mr. Brown and Ms. Chauvey, had left the meeting.
ADMINISTRATIVE BUSINESS
The Selectmen addressed the signature file.
Motion: Bonser, second Anderson to authorize Charles Brown, Town Administrator, to sign the contract with the SPCA.
Vote: All in favor. Motion passed: 3-0.
Mr. Brown reported that the Co-op approved the overhead service at the new sand and salt facility. They will put the meter in tomorrow. Mr. Brown has contacted Gemini to be present when service comes on.
Mr. Brown is working on updated budget worksheets. He informed the Selectmen that he had been off by approximately $10K on the New Hampshire Retirement System payment.
The Selectmen determined that they will hold a non-public workshop Monday, January 11, 2010 beginning at 6 PM.
Mr. Brown reported that he would be attending the USA Springs bankruptcy hearing on Wednesday, January 6.
The Selectmen decided to gear the meeting scheduled for Tuesday, January 19 toward the budget.
The CIP is meeting on Monday, January 11, at 8:15 AM.
Mr. Brown reported that Mr. Colby is still waiting on a response from the party involved in the code enforcement issue.
The Selectmen asked Mr. Brown to schedule a meeting with Attorney Donovan to help craft a letter to the Attorney General.
Having no further business,
Motion: Bonser, second Bock to adjourn the meeting.
Vote: All in favor. Motion passed 3-0.
Meeting adjourned at 9:57 PM.
Respectfully submitted,
Traci Chauvey
Recording Secretary
Approved as amended at the February 16, 2010 meeting.
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