The Acting Town Manager will continue to investigate the legal ramifications of what to do at Adams Pond. Adams Pond, created as an irrigation pond on private property owned by Mack’s Moose Hill Orchards, was inspected by the state in 2010. At that time a request was made by the state Dam Bureau, part of the Department of Environmental Services, to clean out debris and reduce the level of the pond, due to fears that at its current level, should a 50-year rain event occur, the dam would overtop and cause flooding downstream.
Mike Cross, farm manager of Moose Hill Orchards, said that after the last harvest in 2012, the pond was drained for maintenance and the level was not restored to previous levels. However, when a local organization wanted to hold a Day at Adams Pond on Mother’s Day weekend and learned of the reduced level of the pond, members complained.
As a result, Cross contacted the Dam Bureau and was given permission to partially refill the pond.
At Monday night’s Town Council meeting, Acting Town Manager William Hart said he had looked into the matter because the property carries an easement purchased by the town from property owner Andy Mack Sr. that restricts development rights. “The pond was created by the property owner by placing a dam across Black Brook, and the low water levels were a result of the property owner following the recommendations of the Dam Bureau,” Hart said.
He said the only encumbrance to the title is the easement held by the Town of Londonderry, restricting both use and development rights. “It’s not just the development rights contained in the easement,” Hart said. “The purpose of the easement in addition to the development rights is to ‘allow outdoor recreation; grant access at reasonable times, dates, seasons; construct and allow use and improvements such as trail overlooks, parking lots and other improvements through the auspices of the town or its agents.”
Hart also said the easement further limits in perpetuity subdividing the property or building any structure not consistent with the easement. No change in topography could take place on the property unless the structures are not detrimental to the scenic purposes of the easement itself, he noted.
“No permission has been received as yet to repair the dam, and the town needs to recognize that some or all of the potential liability which now rests with the private property owner, if we reconstruct will very likely be transferred to the local government authority, in this case the Town of Londonderry,” Hart said.
Hart said he has asked Public Works Director Janusz Czyzowski to speak with the property owner.
“At this time the town has no indication as to the cost of repairs, however according to the DPW director, an initial assessment and design cost has been made by the property owner and initial estimates to do that, not including construction, are over $20,000,” Hart said.
Hart said that under the state statute RSA 36a titled Conservation Commissions, section 4 I titled Powers, “it’s clear that the Conservation Commission has the authority not only to purchase land but also to improve, protect and manage that land.”
“Therefore the Conservation Commission may in fact be able to act more immediately to address this concern, since the town would require a proper appropriation in order to take action prior to the next budget process,” Hart said.
Councilor Tom Dolan asked if the responsibility was to land that was purchased, while this land was not purchased.
“The statute doesn’t specifically differentiate, and the town has purchased more than development rights, it has also purchased use rights for essentially 365 days a year,” Hart said.
Dolan said the town attorney should look at the issue so “it doesn’t unravel down the road.” Councilor Tom Freda said Conservation Commission Deb Lievens thought only development rights were purchased. “I think we need to take a good look at the inventory of what we own and what our ownership interests are with these properties and what our duties are, and secondly we need to have some sort of manual of what we’re supposed to do in the event like this, and we shouldn’t be doing it on an ad hoc basis,” Freda said.
He noted the town has spent a significant amount of money and the properties should be taken care of properly.
“Some of these properties are quite valuable,” Freda said. Dolan agreed a manual and inventory should be maintained. Chairman John Farrell directed Hart to look into the legal issues and the ramifications of a manual and inventory, and how they should move forward.