DUNBARTON TOWN FOREST COMMITTEE

TUESDAY, AUGUST 26, 2003

TOWN OFFICES – 7:30 P.M.

The Dunbarton Town Forest Committee met in public session on the above date, time and place with Chairman John Swindlehurst II presiding. The following members were present:

John Swindlehurst II, Chairman

Ron Jarvis

Ed White

Fred Mullen

Steve Duggan, Town Counsel was also present.

John Swindlehurst II, Chairman, explained the purpose of the Public Hearing by reading the public notice for the meeting which was posted in three public places throughout the Town. The purpose of the meeting was to consider what action, if any, the Committee will take in consideration of lawsuits mentioned in the Public Notice of Hearing concerning the “Agreement as to the Improvement of Stark Lane”. He stated the Committee will allow public comment as long as the length of time was kept to a minimum because of Town Counsel’s presence which was costing the Town money.

John Swindlehurst II first explained the process and how the agreement had come into being as follows:

He stated the Forest Committee were contacted by the developer about cutting trees for a sight line on Stark Lane. They told the developer they would need to provide some plans prior to meeting with them on site. Met at Stark Lane on site with plans. I remembered when I was on the Board of Selectmen, there were other circumstances at other areas on roads in Town where safety was an issue and we needed to correct them. Remember deciding the best way was to take 200 feet each way and anyone can run a string, etc. John Chmiel’s property was one instance where the Town made road improvements by straightening out the curve, etc. We then sat down and talked with the developers. The proposed road will not travel onto the Town Forest land. Five trees which interfered with the sight line from their approach on Stark Lane. These trees were unmarketable. One member thought it would be wise to move the stone wall and fill it in with like stones so we worked on that aspect also. After discussing at great length, told the developer that the only thing they were going to pay was damages. How much? I figured if we got $3,000 for five trees, we would doing good. That is where the $15,000 came in. We thought we are getting improvements to the road and getting $15,000 plus saving over $30,000 in road repairs, and I thought it was a “hell of a deal”. But evidently someone else thinks it was not such a good idea, so here we are.

Chuck Frost – Asked if there was a map showing the changes. A map was presented by Jacques Belanger, Surveyor. (attached) C. Frost asked that the map be passed throughout the audience. Asked what the lawsuits were trying to do.

At this point in the discussion, Town Counsel Steve Duggan, explained the process and the fact that there were two lawsuits pending as follows:

One from Margaret Watkins, et al against the Planning Board stating that the conditions that the Planning Board approved were unlawful. The Town Forest Committee and the developer entered into an agreement. The other claim that the plaintiffs make is a Declaratory Judgment action. The initial claim is that the agreement that the Town Forest Committee entered into was an agreement that allowed the transfer of an interest in land and the State Statute does not allow the transfer of land unless it is approved at Town Meeting. The plaintiffs also argue that the Town Forest land at issue was created by deed and a trust that have specific conditions. They say the Town Forest Committee violated the deed and the Trust by using the town forest in a manner prohibited by the terms of the deed and trust. If the deed and the Trust are violated, plaintiff’s argue that the town forest would revert back to the Society for the Protection of New Hampshire Forests (SPNHF).

Donna Dunn – Asked Steve Duggan, Town Counsel, representing the Town, if the land reverts back to the SPNHF, what difference would it make than if the Town owned it?

Steve Duggan – Stated that he could not offer legal advice on the issue.

John Swindlehurst stated that the plaintiffs claim that the Winslow Town Forest would come under the ownership of the Society (SPNHF). Town would not be able to manage the Town Forest through the Town Forest Committee as it is now done. Would not be able to receive interest monies from the Trust Funds or manage the Forest, etc.

John Swindlehurst noted the Town presently takes gravel from the Town Forest for Town Road Improvements.

Gregg Reed – Stated you refer to a dangerous situation on the corner. Is this from the Police Chief? I have lived there 23 years and don’t know of one accident and if it is straightened out, it would make cars go faster. Would make a more dangerous situation that presently is there.

J. Swindlehurst II – If the road improvements were made, it would give you a more gentle curve. You could see better. I still consider it a great safety improvement. The other two situations the Town has worked on have been a great improvement. (John Chmiel property and North Bow Road improvements specifically.)

Ron Slocum – Basically, the developer did not come to the Town Forest Committee stating they were interested in straightening out a safety problem caused by the design of the Town Road. They needed the trees cut down in order to have adequate sight distance for their proposed entrance for the proposed subdivision. Without this, the subdivision would be invalid.

John Swindlehurst II – Stated that he thought it was for trying to enter into their land. There are also other methods of getting into the land. I think the development will still happen.

Donna Dunn – Stated that wetlands didn’t seem to be shown clearly on the map. It is all wetlands. What about the existing culverts? Where will the water go?

J. Swindlehurst II – Stated that the culverts will all be replaced.

Donna Dunn – Asked if they had ever seen the water over the road there? Stated it was wetlands. I have a concern and wonder how it will be resolved. Don’t have a tremendous amount of background re lands that have been left to the Town but I know that people are concerned about leaving land to the Town. When we make changes to scenic roads, we have to have a public hearing. Even if it is approved by the taxpayers, this is setting a precident. I own land that someday I would be interested in giving the Town. I am also a taxpayer.

John Swindlehurst II – Stated that because the Town Forest Committee is the owner of the property, any material to be removed has to be paid for. Those funds have to be in a separate account. Not co-mingled with Town funds.

Donna Dunn – Asked if the Town Forest Committee have the jurisdiction of cutting along Scenic Roads.

John Swindlehurst II – No, just the Town Forest. The deed states that anything sold from the Town Forest will be charged for.

Donna Dunn – Does the Town Forest Committee come up for vote before the Town.

John Swindlehurst II – Stated the Town votes to give the Town Forest Committee the interest from the Trust at Town Meeting. If we have anything “big”, we work with the Selectmen to work with the Town. I have been on the Committee for 30 years, and I have never seen any action not in the best interest of the Town of Dunbarton.

Rene Ouelette – Asked if they were going to take comments as well as take questions?

Swindlehurst – Indicated they would be taking comments also.

Rene Ouelette – I think the question most pertinent is does this parcel come with more restrictions on its use than any other piece of land you manage?

John Swindlehurst II – Yes, some parcels didn’t come with a deed. Probably done more with that property than any other. One was a burned over parcel. Another was taken by tax deed.

Rene Ouelette – Deed states fairly clear that it will only be used for forestry. It was only supposed to be used for forestry.

John Swindlehurst II – Indicated we could not have taken gravel off the parcel if this was the case. There is no transfer of property. That is legal.

Rene Ouelette – Should be used only for forestry. It appears that it was used for something else. I would question the intentions. I am one of the plaintiffs in the lawsuit. You didn’t know the restrictions on the deed? I guess the judge would have to decide. There is definitely a disagreement about the restrictions on the land.

John Swindlehurst II – Stated they don’t have anything to do with subdivisions. The Forest Committee was strictly working on the road issue and getting $15,000 for road improvements.

Rene Ouelette – Stated he has lived at Stark Lane for 15 years and have seen a lot of accidents. Cars go into the woods and onto the Marcou property. Not going to stop the accidents, will end up having more accidents at the point.

Chuck Frost – Concerned after looking at the map that there is a fair amount of alterations to be done, stone wall will be relocated several feet. I think first, what you are doing is selling an interest, and it should be taken up at Town Meeting. When you sell an interest in the property, it looks like you are selling an interest in the forest and the public should vote. Secondly, the property should be managed as a forest and it states here that the property is not managed properly so the property could be not a part of Dunbarton but come under the SPNHF. Would like to hear the developer’s attorney and the Town Counsel’s opinion.

Steve Duggan, Town Counsel – Stated he cannot speak to this because of existing litigation.

Leo Martel – Stated he was not familiar with this. What came first, the idea for the development or the improvements on the road?

John Swindlehurst II – Stated the improvements to the road was an offshoot of the development.

Leo Martel – What happens if they don’t get the sight line? Do they have to find another alternative? This would be an easier way to go than any other road.

Bob Martel – If these trees were unmarketable, why didn’t this happen before?

Ed White – Stated that about ten years ago, Cy Audet approached me because I was on the Town Forest Committee, and he asked if he could get permission of the Town Forest Committee to improve the road. That was the start of the improvement to the Town Road. Cy Audet never got back to us.

Bob Martel – Why didn’t the Town Forest Committee pursue this?

Nancy Weirs – If you want to be rationale, you should figure out a way of making the cars go faster. That is what will happen when you straighten the road. Cars are going fast enough now but why not make them go faster, right.

Margaret Watkins – Stated that my interest has been a public policy question which this situation has raised. Has motivated me to say to the Planning Board, get an opinion from Town Counsel. DOT will own the easements once the developer has cut the trees and turned it over to the State and they will be responsible for maintenance. It is not a license, it is an easement. Has to go to Town Meeting for a vote. No one has the power to sell off Town land. We are concerned that this is a license and not an easement.

Secondly, the deed to the Winslow Town Forest has restrictions. Read from a letter from the Society of Protection of New Hampshire Forests (attached). They would be the recipients but because they have incredible influence in the courts to have dealt with conservation easements. Letter from John Barto, SPNHF Attorney. If the Town loses the land through the court, the Winslow Town Forest goes to the SPNHF. It would still be a forest but the Town would get no revenue. Would lose a valuable asset. A license can be revoked and you can leave it up to the judge. I am sure this Town wants this Town Forest to remain in Town hands. Made reference to a letter from Will Brown where he asks what is being done with this. Is it the Town, are they saying we want to make improvements to this road. If there is a private developer benefiting from this, he is against this. Urge you to rethink your decision and reverse you earlier decision.

Attorney Howard Dunn, (representing DiPiertro and Hardwick) – Three comments, this is a very small amount of land we are talking about, .25 acres. This is about safety. We have an agreement with you and we have relied on this agreement so I don’t think revocation is possible. I am not saying you couldn’t. Two, with respect to the power of the committee, both under the deed and the deed are plenary.The Committee is given the power to manage the forest. They also have the power to cut trees. The agreement talks about trees and vegetation and moving a stone wall. The sight line was not a requirement. Third, reference John Barto’s letter, this is a “cheap shot”. States little bits of the deed but not all of the deed. When you leave out words, creates problems. Managing the forest for the public benefit, those are things clearly with possible legal content of the deeds and statutes. The New Hampshire Statutes give the Committee the right with regard to the Town Forest Committee decision. Such an emphasis on safety .25 acres. Nothing they will do is going to stop the Town Forest Committee’s decision. Would hope they stand by their original decision.

Ellie Stein – Stated she was one of the plaintiffs in the lawsuit. One of the issues is the Law 91 A. We feel they need to have public input. This is one of the things that concerned me when the Planning Board reviewed this, they had to get out of this. This affects generations and a piece of Town Forest. The people should have the opportunity to participate in decision making.

John Swindlehurst II – Stated he has lived in the Town of Dunbarton for 71 years and have contributed to this Town.

Ellie Stein stated she would like to present ideas if she could. The real concern is “What is the purpose of the Town Forest Committee”? Is it about road safety, or about development in Town. It is about protection. The deed is a two page document. The Town Forest is being given to the Town Forest Committee and managed by the Town Forest Committee for the public good. It doesn’t say this can be compromised so that the guy next door can develop his property and I would not want to be a member of the Town Forest Committee when the deed gets turned over to another entity. I know that all members have your normal routine and every once in a while something comes up that you don’t expect. Town Counsel did review the deed and decided what you did was okay. There is an issue about this and we believe it is okay to revoke your decision. We stand to lose this property. The attorney mentioned that there is a binding agreement with the developer. It is not in effect until September 1 and the $15,000 is received. It is a very important issue. I guess I just hope that each member of the Committee including those that think they can’t participate because they are in the neighborhood think about this.

Donna Dunn – There are other options for this development.

Attorney Dunn – We have to stay with the one we have now.

Bob Martel – Indicated the State would redo the shoulders of the road. I didn’t hear the State saying they have to do something with that corner. The other two areas in Town had other problems. This does change the charm of the road. I don’t need any encouragement to rush to work, etc.

Donna Dunn – Asked which one of the stone walls are we talking about?

John Swindlehurst II – The one that borders the Reed property.

Donna Dunn – How are we saving $30,000? Is the developer going to pay?

Rene Ouelette – We are talking about five trees and moving a stone wall plus regrading of the road.

John Swindlehurst II – The road sweeps over onto the other side of the road. Going to have to have some fill in there.

Ellie Stein asked if there were any way to determine how many people present are for this?

John Swindlehurst II – Stated this is a hearing, not a Town Meeting.

Margaret Watkins – We feel there should be a Town Meeting.

The public hearing was closed at 8:18 p.m.

COMMITTEE MEETING AND DISCUSSION:

John Swindlehurst II stated that he had some concern about the SPNHF trying to “land grab”. The last thing I want is to lose the Town Forest.

Ed White – Asked if we could meet with the SPNHF ourselves.

Ron Jarvis – Stated that one thing that concerns him is this is a precedent, and I know that as we did this, I wasn’t there. I am concerned about this setting a precedent and as time moves on, other people are going to be reluctant to do this. I expect that I would not want to get into this. We kind of got into this whereby they are going to spend the money to improve the road. Those trees are not marketable and are right on the road. Some of those trees are within five feet of the road. You and I both know that mills don’t want to cut them up because of nails, signs, etc. in the logs. This is not good timber plus having plows bounce off them for 40 years. I can tell you honestly we were thinking we were getting something fixed. There was no intent to screw over the Town. Now we are getting this out of it. We did what we did thought was the right thing to do at the time, and I think we made an error. Repercussions are far greater than I thought it would be, but there are some real problems. Not in favor of keeping the agreement as is.

Ed White – Stated he has served on the Conservation Committee and the Planning Board. Have been in Town for 23 years. I have worked in the timber industry for 28 years. This was a safety issue as far as I was concerned. Road safety is a big concern of mine. My daughter wrapped around a tree in an accident. I have realized that politics do play a big role in decisions. Have worked with the SPNHF for many years. A lot of people have called me and am concerned about the public vote at Town Meeting. We are approached by a Committee to sign off on Town rights on a Conservation Easement. John brought up the point that someday maybe 100 years from now, we won’t have land to build a school on. So I am leaning toward seeing it go to a public vote.

Fred Mullen – Stated he has recused himself from any of the discussions, etc. regarding this because he has had a lawsuit and conflict of interest, etc. He stated they did meet with the Surveyor in 2002 to find out what they wanted and at that time John Swindlehurst asked me for my opinion. I felt it was not right for me to give because of a prior lawsuit, and I have recused myself. It is not right to jump into this now and vote.

John Swindlehurst II – Stated that Fred Mullen has been very good about this all along this process.

MOTION:

Ed White made a motion that the Committee elect not to accept any monies or escrowed monies from Rocco E. DiPietro and Brian Hardwick as allowed by paragraph 4 of the so called “Agreement as to the Improvement of Stark Lane”. The motion was seconded by Ron Jarvis. The motion passed unanimously.

The meeting adjourned at 8:45 p.m.

Respectfully submitted,

Alison R. Vallieres, Acting Secretary

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