Watch the Videos

Tom Beeler, the editor of the Granite State News, agrees with me that the Tuftonboro selectmen are making it difficult for residents to attend their meetings, but he’s ideologically opposed to me so he’s reduced to quibbling over the definition of “hectoring,” all while patting himself on the back for “asking questions to clarify information for our readers.”

Did the Granite State News ask the selectmen if they were legally authorized to conduct an auction of town-owned properties that was scheduled for October 15? The answer is no, the Granite State News did not. I did. And the answer again was no, the selectmen had not received the legally required authorization from Town Meeting to sell the properties. The auction has been cancelled. No thanks to the Granite State News, Tuftonboro is not at risk for costly law suits as the result of an illegal auction.

Tom suggested readers “watch the video.” I agree. I have made videos of meetings available at tuftonboro.net. You can watch the videos of public comment for June 6, September 26, and October 3. Bob McWhirter, Sue Weeks, and I repeatedly asked questions of the selectmen about the property auction. The selectmen stonewalled and refused to answer. Tom criticized my tone of voice.

Watch the October 3 video and listen to Carolyn Sundquist’s tone of voice. When Elissa Paquette asks a question, Carolyn is all answers. When anyone else asks a question, Carolyn shuffles papers distractedly and refuses to engage; she shows irritation and appears impatient and even contemptuous. Compare this to the exchange between selectman Lloyd Wood and me on October 3. Rather than glare at me mutely as Carolyn and selectman Bill Marcussen did, Lloyd actually engaged me in conversation, and we had a pleasant, amicable exchange.

Tom in particular may want to watch the video of October 3. Lloyd confirmed that, contrary to Tom’s assertion two weeks ago, it is unconstitutional to allow one person to speak but not allow others. Tom was wrong when he dismissed the question of constitutionality as “fashionable.” If his reporter, Elissa, had stayed for the whole public-comment portion on October 3, rather than leaving after she asked her own question, she could have quoted Lloyd, who said, “It’s a first amendment issue.” Once more, no thanks to the Granite State News, Tuftonboro is not at risk of costly lawsuits as a result of the selectmen’s actions.

In scheduling the meetings in the day, the selectmen seem to have their own convenience as a priority. And their attitude at meetings gives the impression that they’d rather town residents did not attend or get involved. But while stonewalling and shutting down legitimate questions, they have repeatedly (albeit unintentionally I’m sure) put the town at risk for costly law suits. They illegally usurped the cemetery trustees power, they engaged in unconstitutional viewpoint discrimination, and they almost conducted an illegal property auction.

If you think that transparency and accountability is a good thing for our town, please let me know in the comments below. I’m collecting signatures for a warrant article for Town Meeting that would require the selectmen to have their meetings at 6:30 PM when more people could attend.

Note: This post was submitted to othe Granite State News and should appear as a letter in the October 13 edition.

Selectmen Cancel Auction of Town-Owned Property

The selectmen have called off the planned October 15, 2016, auction of town-owned property because they do not currently have the authority to sell tax-deeded properties, and therefore the auction would be illegal. Only the legislative body of a municipality (i.e. Town Meeting) can authorize the selectmen to sell such property, through a warrant article.

The New Hampshire Municipal Association web site states:

The governing body only has authority to sell if the legislative body (usually the town meeting) has given them this authority by passing a warrant article in accordance with RSA 80:42 or RSA 80:80.

The authorization expires after one year, unless the warrant article states plainly that the authorization is granted “indefinitely, until rescinded.”

Karen Koch, the administrative secretary, explained in an email to me this morning:

The Selectmen were given authority in 1994 at Town Meeting. The Selectmen now have learned since your inquiry that this authority was voted in 2003 to be put as a yearly vote instead effective 2004.

The last yearly vote was done at the 2004 Town meeting with their authority extended until the 2005 Town Meeting. Unfortunately there were no yearly votes after this to extend the authority.

The auction has been postponed until after the 2017 Town Meeting. The date of which will be set depending upon the outcome of the meeting.

This is the third time this year that the selectmen have placed the town in legal jeopardy by not being mindful to follow the law. They previously broke state law by usurping the cemetery trustee’s power to authorize payments for cemetery maintenance. They also engaged in the unconstitutional practice of viewpoint discrimination by allowing questions from Elissa Paquette but no one else.

The selectmen previously have refused to answer questions about the auction:

If the board of selectmen have sold any tax-deeded properties without authorization in the past 11 years, the validity of those sales would be called into question. Anyone who has purchased a tax-deeded property from the town since 2005 might want to seek legal advice.

It’s strange that the selectmen did not do the basic due diligence to make sure that the auction was legal. They could have asked their attorney, Rick Sager, to confirm the legality of the auction. In addition to being the selectmen’s attorney, Sager was the auctioneer that they hired to conduct the auction, from which he would earn a commission on the sale of the properties. This conflict of interest was first raised by Bob McWhirter on June 6th, but the selectmen rejected his concern out of hand. When he asked if they thought it was a conflict of interest to use the selectmen’s own attorney as an auctioneer, Carolyn Sundquist, the chairman of the board, immediately said, “No.”

You can read the minutes from the Town Meetings of 1994, 2003, and 2004.

Zoning Board Denies Special Exception for Self-Storage Facility

In a 4-1 vote, the Zoning Board of Adjustment denied Paul Zimmerman’s application for a special exception to the zoning ordinance. The board determined that Zimmerman, through his agent Jeff Lewis, failed to prove that the project would not change the essential nature of the neighborhood.

The board was unswayed by a new plan presented by Lewis to build half as many units as Zimmerman had originally proposed. Several residents pointed out that there would be nothing stopping Zimmerman or any future owner from adding more units at a later date.

Several residents spoke against the proposed project, while Steve Hunter spoke in favor of the project. Hunter is the current owner of the property and was hoping to sell it to Zimmerman.

Mark Howard, the chairman, was the lone dissenting vote. Alicia Gettman, Tom Swift, Tom Wood, and Bob Theve all voted against the special exception. Wood stated he thought the self-storage facility would change the “rural, residential nature of the neighborhood.” Theve said the project would be “incompatible with the town’s master plan,” citing the “overall future” negative changes to the neighborhood that would occur. Swift said the facility would be “out of character with the nature of the road.”

Zimmerman has until November 4, 2016 to file an appeal if he wishes to do so.

(The Zoning Board members are pictured left to right: Tom Wood, Alicia Gettman, Mark Howard, Bob Theve, Tom Swift. Jackie Rollins, the board’s secretary, is seated with her back to the camera.)

Zoning Board to Vote on Self-Storage Facility

The Zoning Board of Adjustment will hold another public hearing tonight at the Town House at 7PM to decide whether to grant a special exception to Paul Zimmerman to build a self-storage facility with at least 100 units next to the fire station on 109A.

181-middle-road-self-storage

Zoning Board member Bob Theve is also a member of the budget committee, which has a meeting tonight at 6:30 (at the Town Office). Reached on the phone yesterday, Theve said he would attend the budget committee for about 25 minutes and then go to the public hearing.

Whatever the decision of the board tonight, state law allows for an appeal within 30 days (starting the day following the vote of the board) either from the applicant (if the special exception is denied) or from “any person directly affected” (if the special exception is granted). The statute does not define the narrowness of the term “directly affected.” Certainly abutting property owners would qualify.

Selectmen Have No Answer for Questions About Property Auction

The selectmen are conducting an auction on October 15, 2016, to sell town-owned properties. The auction is being conducted by Rick Sager, their attorney. Sager will be receiving a commission on the sales. It’s possible that, as the selectmen’s attorney, Sager might advise the selectmen, either in the past or the future, on which properties to seize for non-payment of property taxes.

The selectmen are refusing to come clean about when and how they determined the final list of properties to be sold at the auction. The meeting minutes do not show any recorded vote, according to town resident Sue Weeks, who raised concerns at last week’s selectmen’s meeting that two of the properties are on roads that aren’t currently maintained. Her concern is that if the properties are sold and developed, the town will be required to maintain the roads, and in the long run the cost will far outweigh any benefit that the town will get from either the sale at auction or the property taxes.

Town Employee Compensation Is Out of Whack

I am concerned that Tuftonboro’s town-employee compensation in general and benefits in particular are simply out of whack.

I am the Vice-Chair of the Budget Committee, but I am writing as a concerned citizen. The town should be run with respect for the taxpayer, balanced with a desire to fairly compensate employees. However, lately it seems taxpayers are being ignored.

The town pays an average of $25,675 in family health benefits to each full-time employee, almost equal to the current per capita income in Tuftonboro of $33,143. Something is seriously wrong.

Tuftonboro’s employee-benefit costs equal $526,675 in 2016. That represents 46.6% of total salaries. Most businesses use 30-35% of salary as a rule of thumb when providing benefits. I am not aware of a business in Caroll County with fewer than 25 employees that pays these kinds of benefits. Frankly, in my 43 years of business experience, I have not encountered any small business that paid benefits equal to 46.6% of salaries.

The Kaiser Family Foundation and Health Research & Education Trust recently found in their Employer Health Benefits Survey for 2015 that the average employee contribution for family coverage from 1999 to 2015 was 28%.

kaiser-2915-exhibit-6-1

The 2016 Kaiser Family Employer Health Benefits Survey found that the average employee contribution for family coverage in 2016 was 30%.

Average $5,227 employee contribution represents 30% of total cost.
Average $5,227 employee contribution represents 30% of total cost.

But Tuftonboro town employees pay nothing toward their own health insurance coverage—not even their co-pays. That is just incredible!

Tuftonboro spends $302,742 on the cost of health and dental insurance for roughly 20 full-time employees. That’s 57.5% of what we spend on benefits.

kaiser-family-2015-exhibit-6-4

Moreover, the Kaiser Family surveys found that total premiums for family coverage averaged $17,546 (Exhibit 6.4 above) in their 2015 report and $18,142 (Exhibit A above) in their 2016 report — yet Tuftonboro pays $23,291! That’s around 1/3 more. Why is that?

Here are some ways that we as a town can find cost savings:

  1. Establish cost sharing by employees using the Kaiser Family survey’s 1999–2015 average contribution of 28%. Such cost sharing has been commonplace in the business world for over 30 years! This would save the taxpayers $80,000 annually.
  2. Restructure or “shop” the town’s health plan to reduce the cost so that it equals the Kaiser Family survey’s average cost of $17,546. This would save the taxpayers roughly $6,000 per employee, or another $80,000 annually.
  3. Stop paying employee co-pays and deductibles (the Health Reimbursement Adjustment line item on the 2016 Tuftonboro employee compensation spreadsheet). This would save the taxpayers $9,000 annually.
  4. Drop the town’s fully paid dental plan. This would save the taxpayers $18,000 annually.

The annual savings that the taxpayers would receive if we adopted these four steps would be roughly $187,000.

I believe the selectmen, as the town management team, have an obligation and a fiduciary responsibility to prudently manage the town’s affairs in a cost-effective manner. As such, it is important to balance the interests of both the town’s employees and its taxpayers.

Selectmen Again Refuse to Have Meetings in Evenings, Instead Vote Unanimously to Restrict Public Comment

At Monday’s board of selectmen meeting, which was held at 4 PM when most Tuftonboro residents are at work and unable to attend, Chairman Carolyn Sundquist distractedly sorted her paperwork during the public comment portion of the meeting instead of listening to the concerns of town resident Betsy Frago. During other parts of the public comment portion Sundquist impatiently rapped her fingers on the table.

During public input the selectmen again flatly refused to consider a request to have at least one meeting a month at 6:30 PM.

Chairman Carolyn Sundquist also unilaterally refused a request to allow the public to ask relevant (on topic) questions during meetings. The selectmen had been allowing questions during meetings from Elissa  Paquette, the reporter from the Granite State News who always writes favorable articles about the selectmen. After a letter I wrote expressing my opinion that it was a form of unconstitutional viewpoint discrimination to allow one  person and no others to ask questions, Sundquist on September 13 unilaterally announced that the board would no longer take questions from Paquette or anyone else. During this week’s meeting Sundquist confirmed that there was no discussion of the matter by the board, and that she alone made the decision, saying “I eliminated questions.”

When questioned if the chair has the authority to make decisions about who can talk at meetings without being granted the authority to do so by a majority vote of the board, Sundquist hastily made a motion “to not allow public input during our meeting, and only at the end.”

Selectmen Lloyd P. Wood immediately seconded the motion, saying “I’m very pleased with that motion.”

Sundquist said, “apparently everything we do needs some kind of motion. Even though as chairman I do run the meeting, and if I hear from counsel that you can not allow one person to speak and not another, then I eliminate–and make it fair for everybody.”

Wood agreed, “Yes, the case law on that is very clear on that. It’s unfortunate, but unfortunately we have to operate that way.”

“Exactly,” said Sundquist.

Selectmen Bill Marcussen remained completely mute throughout the entire discussion, but joined Sundquist and Wood on voting Aye to pass the motion to not allow any questions from anyone during the meeting, but to allow a public input section at the end of the meeting, after votes have taken place when the public input is meaningless.

After the selectmen voted, I asked Sundquist to confirm that the attorney had told her it was illegal to allow one person to speak and not another. She replied, “he didn’t say that it was illegal… he said you really shouldn’t allow one person.”

Wood repeated that “the case law is clear.”

Notes from the video:

The reason the selectmen voted not to allow questions from anyone until after the meeting: https://tuftonboro.net/max/town-government/letter-selectmen-questions-meetings/

New Hampshire Municipal Association, Selecting the Rules for Boards of Selectmen: https://www.nhmunicipal.org/TownAndCity/Article/323

New Hampshire Revised Statues Annotated (RSA) 41:8, CHOICE AND DUTIES OF TOWN OFFICERS ; Selectmen: http://www.gencourt.state.nh.us/rsa/html/III/41/41-8.htm

Court awards $40,000 in damages in Alton free speech case : http://www.unionleader.com/article/20160504/NEWS21/160509656

New Hampshire Retirement System lowers assumed rate of return to 7.25%: http://www.pionline.com/article/20160525/ONLINE/160529932/new-hampshire-retirement-system-lowers-assumed-rate-of-return-to-725

Pension board hits state with $420 million tab: http://www.chicagobusiness.com/article/20160826/NEWS02/160829890/pension-board-hits-state-with-420-million-tab

Unconstitutional Viewpoint Discrimination

granite-state-news-front-page-september-22It was exciting to have my picture on the front page of the Granite State News last week. For those who don’t know me, the caption identifying me as “with arms crossed” was undoubtedly very helpful in differentiating me from Steve Brinser, who was seated behind me with his arms crossed, or from Carla Lootens, who was seated next to me with her arms crossed, or from Betsy Frago, who also had her arms crossed.

I would like the selectmen to have their meetings in the evening when it’s more convenient for most working people to come—so that more people who wish to come will be able to do so. The selectmen do not want to have their meetings when it’s more convenient for the majority of residents. If you agree with me, please let me know at max@tuftonboro.net and I will bring the petition to you to sign. You just need to be a registered voter in Tuftonboro. If you disagree with me and think the selectmen should continue to have meetings at times that are inconvenient for most people, then please come to Town Meeting in March to vote against the warrant article. Town Meeting will be at 7:30 PM (after normal working hours so that more residents can come).

Elissa Paquette left half-way through the meeting (which started at 9AM), before the public-comment portion, but she did a pretty good job of transcribing the video, albeit with the addition of some fairly amusing purple prose about my speaking style.

Elissa mentioned my discussion about meeting times and noted accurately that I asked Carolyn Sundquist whether she was running for re-election to a fourth term. But Elissa omitted another important topic of conversation: For the past six months, the selectmen have been allowing Elissa to ask questions during meetings while refusing to allow anyone else to ask questions until the end of the meeting. That means the public can ask questions only after the selectmen have voted on the issues under discussion that day. I recently wrote a letter to the selectmen, expressing my view that allowing only one person to ask questions represented viewpoint discrimination, which is unconstitutional. After checking with the selectmen’s attorney (Rick Sager), Carolyn Sundquist announced, unilaterally and without any vote being taken, that she would no longer allow anyone to ask questions during meetings (before the selectmen vote); people can continue to offer comments or ask questions at the very end of the meeting, after the selectmen have voted.

The attorney’s advice strongly supports my assertion that the selectmen have, in fact, been engaged in an unconstitutional practice. Otherwise, he would have told them they could continue to prohibit everyone except Elissa from asking questions during meetings.

This is the second time this year that the selectmen have had to stop an illegal practice after consulting with their attorney. In May, after consulting with Sager, they acknowledged they had no legal right to usurp statutory authority from the trustees of the cemetery trust funds, something they had been doing, by their own admission, for years.

Why didn’t Elissa report on the selectmen’s unconstitutional behavior? Could it be because it has benefitted her?

I do not believe the selectmen have intended to break any law. One reason it’s healthy to have the public participate in meetings is that residents can help ensure transparency and accountability—and course correction when necessary. And that’s good for the whole town.

This post was submitted as a letter to the editor of the Granite State News and would be in the September 29th edition, if published.

Zoning Board Grants Continuance to Zimmerman

No decision was made at last night’s Zoning Board of Adjustment public hearing about the proposed self-storage unit project at 181 Middle Road next to the fire station. The board will reconvene on October 4th at 7PM at the Town House to hold a vote.

The board chairman, Mark Howard, began the public hearing by explaining that the petitioner — Paul Zimmerman, through his representative — was coming before the board asking for a special exception, not a variance. A variance is required when the current zoning specifically prohibits a proposed use for the property. However, Article 3.6.F13 of the Tuftonboro Zoning Ordinance allows the construction of “Storage Buildings” in medium density residential areas by special exception.

Therefore, the use is permitted if the property owner can demonstrate that the use will meet five specific criteria. Howard confirmed to me that if the use does meet the criteria, then the the law requires that the board must grant a special exception.

The criteria are:

Special Exceptions shall meet the following standards:
1. Standards provided by this Ordinance for the particular use permitted by special exception.

2. No hazard to the public or adjacent property on account of potential fire, explosion or release of toxic materials.

3. No detriment to property values in the vicinity or change in the essential characteristics of a residential neighborhood on account of the location or scale of Buildings and other structures, parking area, Access ways, odor, smoke, gas, dust, or other pollutant, noise, glare, heat, vibration, or unsightly outdoor storage of equipment, vehicles or other materials.

4. No creation of a traffic safety hazard or a substantial increase in the level of traffic congestion in the vicinity.

5. No excessive demand on municipal services, including, but not limited to, water, sewer, waste disposal, police and fire protection, and schools.

6. No significant increase of storm water runoff onto adjacent property or streets.

The board was short a member last night, and without an alternate, there were only four members present. Zimmerman therefore had the right to ask for a continuance, since he would require three yes votes to obtain a special exception. His representative opted to go forward with the presentation of the construction plans. However, the board voted at the end of the hearing to issue a continuance and reconvene on October 4th at 7PM in the Town House, in order to give Zimmerman’s team time to respond to several questions and concerns that were raised both by the board and members of the public.

Zimmerman constructed the self-storage units at Clark Plaza in Wolfeboro last year, and the proposed building at 181 Middle Road would closely resemble the Wolfeboro design.

storage-1
Clark Plaza Self-Storage in Wolfeboro

Bob Theve, a member of the board, asked what would happen if someone renting a storage unit put hazardous material in their unit. He was specifically concerned that the town be indemnified in the event.

Zimmerman’s representative, an engineer with Allen & Major Associates, Inc, stated that there would be no office on site and no security gate. The rental agreement would prohibit storage of hazardous material. Several residents were concerned that there would be no enforcement of that clause, however. They pointed out that if there’s no one on site to manage the facility, and if renters can come at any time, including the middle of the night, then there would be no way to prevent someone from storing liquid propane canisters, as one resident suggested as an example. LP canisters are very common and are used for gas grills, for instance.

Faye Friedrich, of Middle Road, stated that she is a supporter of private property rights, which is why she supports the new gravel pit across from her own property. However, she read from the town’s Master Plan, put out by the Planned Board, which calls for maintaining the character of the town. It was Friedrich’s opinion that self-storage units, especially corrugated steel structures as proposed, would change the nature of the neighborhood significantly. “Do we want to be Route 16 in Ossipee?” She asked. Adding, “No offense to Ossipee.”

Keith Rogers, whose property is directly across Middle Road from the proposed project, stated his concerns in reference to criteria #2 in the above list that there would be “no control of what goes in and what comes out.” He also contended that Zimmerman would have to salt the driveway and surrounding areas in the winter to maintain a safe environment for the people coming and going, and that the salt would run off the property, which has a steep incline, across the road, and onto his property and into his and his neighbor’s well (see criteria #6 above). Zimmerman is proposing to use porous asphalt on the driveway, and Rogers stated he is experienced with that pacing material and that if you use sand on it then it will clog very quickly and no longer be porous, thus you must use salt. Rogers was also concerned about lighting, saying that the light from the fire station was already a nuisance.

Resident Sarah Matlock requested an artist’s rendition of the proposed buildings from the point of view of the street. Rogers was also concerned that the building, sitting on a hill, would be in plain view.

Zimmerman’s representative stated the belief of the development team that the project would not negatively affect property values (criteria #3 above) because the area is already a mixed use, with the fire station next door. The abutting property owners in attendance strongly disagreed. I gave my opinion that a self-storage facility would severely negatively affect property values, and shared with the board that my opinion was based on my experience as a residential real estate agent in New York City for nearly eight years.

A storage facility of the proposed size (more than 100 individual units) would be expected to receive on average 27 visits per week day by unit renters, or 54 “trips” to and from the site. Zimmerman’s representative stated this was low-traffic (see criteria #4, above).

Van de Poll Addresses Tuftonboro Association Meeting

rick-van-de-pollDr. Rick Van der Poll of Ecosystem Management Consultants addressed the annual meeting of the Tuftonboro Association Monday evening and gave a talk entitled Conservation of the Great Meadow. Van der Poll has been studying the Great Meadow off and on for the past 16 years, as well as consulting with the Conservation Committee on purchasing various property lots that cover the meadow in order to place them into conservation.

There were approximately 30 Tuftonboro residents in attendance.