For those following the Steinman vs Tuftonboro lawsuit, please see the attached documents.
For those following the Steinman vs Tuftonboro lawsuit, please see the attached documents.
Last week a preliminary hearing in Steinman vs Tuftonboro was cancelled at the 11th hour when the parties came to an agreement for a Stipulation on Preliminary Injunctive Relief. Rick Sager, the selectmen’s attorney, was kind enough to forward the agreement to me yesterday evening.
The Steinmans and the selectman have temporarily agreed to the location of the center line of Brown Road and the location of the Right of Way, without waiving any legal rights, “for the duration of this action or until amended by Court order.”
As long as they don’t encroach on the towns Right of Way, as temporarily agreed to, “the Steinmans may maintain the stonewall in its present location… on a temporary basis during the pendency [sic] of this action.”
Before the final hearing, the Steinmans may “extend the said stonewall along the temporarily stipulated right of way boundary line so as not to encroach the Town’s ROW to the water’s edge in compliance with all Town and State regulations.” However, they acknowledge if they do so the court may later require them to move the rocks.
The town agree to “take reasonable steps to ensure the stones” (in their present location) are “secured against any third party removing” them.
The two parties acknowledge the Stipulation “does not create, extinguish, or limit any right for any member of the public to use any right of waay which may or may not exist in this location, but reserve the right to “proceed against any person whose actions are in disregard to the several rights of the parties hereto” through civil or criminal charges.
One of the points of agreement in the Stipulation is that the Town will “Notice this Order publicly in Town Records.” So it’s in the Town’s interest to get this information out, and I’m happy to do my small part. Still, Rick didn’t have to send it to me, so I thank him.
There will be a hearing on Friday, December 1, 2017, at 10:30AM at Carroll County Superior Court for the lawsuit that Dr. Theodore and Carol Steinman have brought against the town of Tuftonboro.
In 2016, Carolyn Sundquist, who was the chairman of the selectmen at the time, told the Steinmans that they could place boulders on their property along the edge of Brown Road. The goal of placing the rocks was to stop people from accessing Lower Beech Pond with boat trailers. Carolyn acted without the approval of the rest of the board of selectmen, but the Steinmans followed her directions anyway and placed boulders in the town’s right of way. The selectmen — included Carolyn — then told the Steinmans to move the boulders. When the Steinmans refused to move them, the selectmen — Carolyn having since left office — instructed the Road Agent to push the boulders farther onto the Steinmans’s property, out of the town’s right of way.
The Steinmans dispute the location of the right of way and allege that the town trespassed on their property.
Richard Sager, of Sager & Smith in Ossipee, is representing the selectmen. A review of his available invoices show he has billed the town at least $3,568.75 for the Steinman lawsuit.
Someone has moved the rock that was blocking the access to Lower Beech Pond at Brown Road.
As you can see in the video, it’s evident that the rock was dragged along the shoulder. It has been left a considerable distance from its prior position. It is also within the town’s right of way, which extends 14’3″ to either side of the pavement.
Here’s what the access looks like today:
And here’s what it looked liked a few days ago:
This week Tuftonboro Road Agent Jim Bean moved the rocks on Brown Road that had been placed in the town’s right of way by Ted and Carol Steinman along their property. The Steinmans put the rocks in the right of way last year after getting approval from Carolyn Sundquist, who was at the time the chairman of the board of selectmen. The current board of selectmen has disavowed Carolyn’s actions, saying that she acted alone without the full approval of the board.
Here is a photograph of the access to the pond on May 18:
And here is the access on May 25:
Saying that they had met with Carolyn Sundquist “at this table” in a “series of meetings,” Dr. Ted Steinman and his wife, Carol, accompanied by their attorney, Jeremy Eggleton of the law firm Orr & Reno, described to the board of selectmen (left to right: Chip Albee, Bill Marcussen, Lloyd Wood) on Monday, April 24, how last year they had sought and “followed directly the town’s directions” when placing boulders along the edge of Brown Road on their property in order to block access to Lower Beech Pond from boat trailers and bob houses.
Carolyn Sundquist’s emails concerning Brown Road were obtained by Guy Pike through a Right to Know request last December. In one email to Road Agent Jim Bean dated August 25, 2016, Carolyn Sundquist wrote “I advised the Steinmans to go ahead with placing boulders in front of the access.”
In an email recently, Glenn Normandeau, Executive Director of the NH Fish & Game Department, confirmed what many Tuftonboro residents are already aware of: The department did not stock Lower Beech Pond with fish in 2016.
For more information on Lower Beech Pond, read: Selectmen Vote on Brown Road Lower Beech Pond Issue.
Mark Evitts, president of the Hidden Valley Property Owners Association, and David Smith, a board member of the same association, worked closely with Tuftonboro Board of Selectmen Chair Carolyn Sundquist over the summer and fall to place a “stone wall,” as Evitts characterized it, along Brown Road to block vehicles with boat trailers from accessing Lower Beech Pond.
Emails from Evitts and Smith, which are public records as defined by RSA 91-A (the Right to Know law), as well as correspondence between the selectmen and Ted and Carol Steinman, were obtained through a Right to Know request made by Tuftonboro resident Guy Pike last month.
Smith wrote to Sundquist on August 3 that, “The longer this takes the longer the threat of milfoil infestation continues.”
Evitts made the concern more explicit on September 5 when he wrote to Sundquist:
As you probably know by now, we have installed a stone wall along the Steinman’s property at the head of Lower Beech Pond. The goals of the project were two fold:
- To keep boat trailers and large boats from backing down into the pond and to thereby reduce the threat of exotic weed introduction into the pond;
- To keep trucks and cars off the road shoulder/pond bank to limit further compression of the soil and to stop/limit erosion/road water runoff.
I’d appreciate it if you would focus on the second goal when discussing this at your public meetings. I may be overreacting, but I fear a disgruntled person might purposely introduce milfoil into Lower Beech Pond. Thus, if we don’t emphasize this goal in public no one will get any bad ideas.
Sundquist told Smith in an email on August 3, “At this point the water access could be blocked by boulders but the side of the road should not be blocked.”
However, on August 25, Sundquest emailed Road Agent Jim Bean, “I advised the Steinmans to go ahead with placing boulders in front of the access.”
It’s not clear whether Sundquist advised the Steinmans in person, over the phone, or by email. Pike said his Right to Know request was for “any and all communications” to or from town elected officials or employees on the subject of access to Lower Beech Pond. The selectmen did include in their response to Pike a two-page email that has been completely redacted other than Sundquist’s email signature. The selectmen did not give Pike any explanation why the two pages were redacted, so it’s impossible currently to determine if the redacted email might be from Sundquist to the Steinmans advising them to “go ahead with placing boulders in front of the access.”
According to the attorney general’s memorandum on the Right to Know law:
The public body must have a basis for invoking the exemption and may not simply mark a document “confidential” in an attempt to circumvent disclosure.
In addition, the attorney general further states:
The governmental entity should retain a copy of both the redacted and un-redacted record. The governmental entity producing the record should also include an explanation of why certain information has been redacted or removed from the record. For example, if a record contains both public information and confidential medical information that has been redacted, the person requesting the record should be informed that the record has been redacted to prevent disclosure of confidential medical information. It is helpful to cite the applicable section of the Right-to-Know law or the other legal authority which exempts the information from disclosure. The person seeking the governmental record can then easily independently assess the appropriateness of the redaction.
After Sundquist advised the Steinmans to “go ahead with placing boulders in front of the access,” they did just that, as Evitts wrote in his September 5 email.
However, the “stone wall,” as Evitts described it, is within the town’s right of way, according to a letter the selectmen sent to Ted and Carol Steinman on October 17.
The Selectmen have reviewed the issue of the very large rocks placed in the Town’s right-of-way on Brown Road. The placement of the rocks was not authorized by the Board of Selectmen. In your discussion with Board Chair Carolyn Sundquist and Code Officer Jack Parsons, it seems there was a misunderstanding of what was allowed at the time. Chairman Sundquist advised that you would only be able to close off the access to Lower Beech Pond with a couple of large rocks. She also mentioned the possibility of a No Parking sign, but never authorized blocking off the right-of-way. Chairman Sundquist apologizes that she may not have been specific enough in what was allowed.
The selectmen then requested that the Steinmans “move the boulders from the right-of-way to your property line as soon as possible.”
The Steinmans replied in a letter to Sundquist on November 15:
In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a 3-foot wide opening at the head of the pong to allow small boats, canoes, kayaks to be carried in. We complied with the direction of Jack Parsons to keep the rocks 3-feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro’s Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.
We have tried to be good citizens and we have worked with the town in good faith to develop a plan to address the erosion problem. A group of us banded together this summer to personally fund the rock warrior, which we view as a first step in this Erosion Control Project. We spent approximately $3,500 on the project, so I’m sure you can understand our dismay when we received your request to remove the rocks. Again, our objective is simply to protect the lake and by extension the surrounding property values while enabling all to access the pond through our property.
The selectmen (Carolyn Sundquist, Bill Marcussen, Lloyd Wood) had a special meeting this morning at 10AM to encumber funds that had been appropriated for 2016 but not spent. Encumbering allows the funds to be spent in 2017 instead. Selectmen Wood voted “no” on the measure to encumber funds for new garage doors at the high department garage on Sodom Road. Other than that, the selectmen were unanimous in their other votes, including to encumber funds for storm windows at the Town House.
The selectmen also voted to authorize their attorney, Rick Sager, to investigate public access to Lower Beech Pond from Brown Road. In an August 25, 2016, email to Road Agent Jim Bean, which local resident Guy Pike acquired through a Right to Know request, Carolyn Sundquist wrote “I advised the Steinmans to go ahead with placing boulders in front of the access.” The Steinmans are Theodore and Carol Steinman, of Brown Road. After Sundquist advised the Steinmens to “go ahead with placing boulders,” they paid their contractor $3,500 to place boulders at the public access to Lower Beech Pond, which is a state pond stocked with fish by the New Hampshire Fish and Game department. Sundquist apparently did not consult with Sager before advising the Steinmans.
The Steinmans explained in a letter to Sundquist dated November 15, 2016, also pursuant to Pike’s Right to Know request, “In a good neighbor gesture, and discussed with you and Jack Parsons in advance, we left a three foot wide opening at the head of the pond to allow small boats, canoes, kayaks, to be carried in. We complied with the direction of Jack Parsons to keep the rocks three feet back from the road so as not to interfere with plowing. Our contractor, Jake Dawson, spoke with Tuftonboro Road Agent, Jim Bean, in advance of any work to clarify the correct placement of the rocks.”
Unfortunately for the Steinmans, it appears that the rocks are within the town’s right of way. The question now is, should the Steinmans, who diligently sought the town’s advice before taking action, be held financially responsible for moving the rocks? According to an article on the concept of Municipal Estoppel at the New Hampshire Municipal Association’s web site, no. If the Steinmans can prove that they sought the advice of an “elected official or a municipal employee with actual authority to represent the municipality on the matter” who “makes a statement to a person which proves to be false” then “the municipality will be ‘estopped’ or ‘prevented’ from taking action to reach some other result with the person.”
In this case two elected officials, Selectmen Carolyn Sundquist and Road Agent Jim Bean, as well as a town employee, Jack Parsons, told the Steinmans it was OK to place the rocks where they are currently located, in the town’s right of way. Since the Steinmans relied, in good faith, on advice that turned out to be false, that means that the town will be “estopped” from requiring the Steinmans to move the rocks.
Carolyn Sundquist gave bad advice. Now the town has to pay Rick Sager $175 an hour in taxpayer money to tell her that it was bad advice. Then we might have to spend public money to move the rocks that are only where they are now due to Sundquist’s mistake.
The selectmen forgot to say the pledge of allegiance before this morning’s meeting (they are required by vote of Town Meeting to start each meeting with the pledge), so Guy Pike led a recitation of the pledge, joined by other members of the public, after the selectmen adjourned their meeting.