State Rep. Al Baldasaro, R-Londonderry has challenged the Town Council’s decision to keep a citizen’s petition off the ballot.
The Town Attorney advised it would be illegal for the Council to enforce a warrant article petition Richard Bielinski of Hall Road submitted, which proposes dissolving all Tax Increment Finance (TIF) Districts and revitalization districts, and requiring a ballot vote to establish any new TIF or revitalization districts.
But Baldasaro said Secretary of State David Scanlon told him the Town had no authority to shut him down or to deny petitions on the ballot.
Baldasaro said Scanlon pointed to New Hampshire RSA 39:3, which states, “Upon the written application of 25 or more registered voters or 2 percent of the registered voters in town, whichever is less, although in no event shall fewer than 10 registered voters be sufficient, presented to the selectmen or one of them not later than the fifth Tuesday before the day prescribed for an annual meeting, the selectmen shall insert in their warrant for such meeting the petitioned article with only such minor textual changes as may be required.”
Additionally, Baldasaro notes the Town Charter invokes the rights granted citizens through RSA 39:3, referring to the statute in Article 7 of the Charter. Section 7.3 of the Town Charter states, “The voters of the Town shall retain the rights and privileges set forth in RSA 39:3.”
“RSA 39:3 makes it a violation if they refuse to insert a petition article into the warrant. Our best course of action is to include the warrant and express concerns at Deliberative Session,” Baldasaro said, noting the voters generally defeat proposals where there are clearly legal issues.
The Council also could have petitioned to the Superior Court for instruction on how to proceed with what was deemed an illegal warrant article petition, or proposed its own language eliminating the legal defects at Deliberative Session.
“The dates are over because by law the Town had to make a decision the last Monday of January. Now the ball’s in my constituent’s (Bielinski’s) court on what to do. I don’t know of any remedies to even put this forward,” Baldasaro said. “In my legislative opinion, I think the Town Attorney may have given us some bad advice.”
At the Council’s Jan. 18 meeting, Attorney Mike Ramsdell did advise the most conservative action would be to move Bielinski’s warrant article petition to the Warrant. Ramsdell said if the courts found the petitions were in fact legal, the Town would be in violation of State law.
“We could have put the petition to the ballot, but if it passed, what are we supposed to do with that?” Councilor Tom Dolan asked, as a heated argument between the petitioner and Council members flared.
Bielinski maintained his position that the warrant article petition he submitted is not illegal.
“Even if was illegal, which I say it was not, I find it disturbing after watching the meeting (on Jan. 18) between the Town Attorney, the Town Manager and the five of you there that night, no one knew on page 25 we have all the rights and privileges granted under RSA 39:3,” he said.
Additionally, Bielinski expressed frustration that the Town never contacted the Secretary of State’s Office to seek further advice regarding his warrant article petition.
“I watched the meeting and you said you would contact the Secretary of State’s Office. I spoke with Dave Scanlon, and as of 3:30 p.m. on Friday, he said he has never heard from the Town and that concerns me because a lot of what is going on could have been avoided,” Bielinski said. “Now we have a situation where the dates are passed. You didn’t have the right to do what you did.”
“We had already made a decision based on substantive case law from the New Hampshire Supreme Court,” Councilor Tom Freda said. Freda is an attorney.
Citing the New Hampshire Municipal Association, Freda said that if the substance of an article is illegal and can’t be remedied with minor changes, the New Hampshire Supreme Court has upheld that the Town is not required to place it on the warrant.
Freda pointed to cases in 1976 and 1978, which have yet to be overturned, in which the Supreme Court ruled selectmen don’t have to move an illegal article to the Warrant.
But Baldasaro said the State statutes have been amended since the 1970s, and that it’s his opinion as a state legislator for over a decade that RSA 39:3, referred to in the Town’s Charter, requires the Council move the illegal article to the ballot.
Bielinski called for the Town to go to the State to seek a waiver, and to freeze the Town’s TIF accounts if the waiver is not granted.
“I did everything I was supposed to the way it was in the Charter,” said Bielinski, who has hired legal counsel and is prepared to take the Town to court over the matter.
“The Charter enables the Council and only the Council to enact ordinances. Your petition would violate the Charter and prevent the Council from enacting ordinances,” Dolan said. “What are you trying to achieve by putting this on?”
Bielinski said RSA 39:3 offers the people one chance each year to remedy if they see something wrong in the operations of their local government.
“I did it because a lot of people came up to me and didn’t understand the TIF’s,” he said. “I don’t think public money should ever be used for private development.”
Bielinski also testified at the meeting that Town Manager Kevin Smith told him the $250,000 raised through the Airport TIF was not actually raised to pay for a traffic light on Pettengill Road, but was to reimburse Ballinger/ Five N, the partnership behind the development of the Fed/Ex building on Pettengill, for the purchase of an easement necessary for the development.
Bielinski claimed Smith told him in two separate conversations that Ballinger/Five N wouldn’t have moved forward with the development had the Town not agreed to pay the developer the $250,000 for the easement with the TIF funds.
Smith said the conversations never happened. “It’s entirely untrue,” he said.
“Well, now I know where we stand with you, Kevin,” Bielinski said. “We have a Town Manager who tells me something who won’t own up to what he said.”
“No one puts a gun to anyone’s head here. Are they tough to deal with, they probably are,” Councilor Jim Butler said, arguing that Bielinski would have been just as angry if the Town had failed to facilitate the opportunity to bring in Fed Ex/Pratt & Whitney and lost the developer.
“You have to spend money to make money,” Butler said. “You would say we lost the opportunity to bring revenue into this town. This is baloney.”
“Mr. Bielinski is encouraging us to take his financial advice on how to move this Town forward. He was also part of the group that recommended we never allow the power plant to come into town, because the $5 million they would pay would never be paid. The first thing they would do is go to the State and find ways to not pay,” Freda said. “And now they’re paying $8.5 million per year, and they have brought in over $75 million over the years you would have had to pay as homeowners.
“Your record of financial advice to the town is the worst I have seen,” Freda continued. “I stand behind this Council and our legal counsel, and Mr. Bielinski, bring us to court.”