The Londonderry Conservation Commission’s planned outdoor recreation web-based guide is on hold, after the group was told by Comprehensive Planner Jon Vogl that money from the Open Space Fund, which was being used to fund the guide, cannot be used for that purpose.
The Commission has already spent $9,000 on the project, which is under the direction of Stuart Arnett, the town’s contracted planner. The recreation guide is considered by Arnett as the first step toward a comprehensive plan of outdoor recreational properties and what can and cannot be done on those properties. At the Nov. 19 Commission meeting, Bill Flynn of Arnett Development had asked for a “not to exceed” figure of $28,000 to be used for the project.
The Commission had been following advice given by former town counsel Bart Mayer, whose opinion on the matter was contradicted by current Town Counsel Mike Ramsdell.
Conservation Commission chair Deb Lievens said at the commission’s Tuesday, Dec. 10 meeting, that there had been “some concern since the last meeting about taking the money from the Open Space Fund, even though we were told (by Mayer) a year and a half ago, almost two years ago now, that it was OK.” She said that there had been “vast numbers of emails going back and forth.”
“I didn’t bring any emails because I’m not a lawyer – neither am I in municipal finance – so I am the bearer of bad news,” Vogel said at last week’s meeting. “The long and the short of it is that the new town attorney (Ramsdell) has decided that the Open Space Fund is not the appropriate place to draw funds for stewardship projects, including the recreation plan, so that money is off the table. I asked about the $9,000 that has already been spent and allocated to this project, and that will need to come from somewhere else.”
Vogl said the suggested source would be the Conservation Fund, which he said has about $26,000.
“A lot of it has been dedicated already – there was a little bit of reserve but certainly not enough to continue with the management project. I think that we’re open to any other ideas,” Vogl said.
Commissioner Mike Speltz said the $9,000 already spent has to be paid back to the fund.
Speltz asked if Town Manager Kevin Smith had gone back to the attorney to ask if he was in disagreement with Mayer or if it was the particular use for an electronic product that was inappropriate.
“My understanding is that he provided the emails that were going around and Atty. Ramsdell read them and did not change his mind,” Vogl said.
“So he had the benefit of seeing the previous attorney’s advice,” Speltz said.
“Yes,” Vogl said.
“The truth changed,” Speltz said.
“You have two different attorneys looking at the same document and coming to two different conclusions,” Vogl said.
Commissioner Marge Badois asked what the commission’s options were.
“(With) any money that was spent before we got a new opinion, why do we have to go to the new opinion?” Lievens suggested. “Why can’t we say we spent the money during the old opinion? That would be a legal question.”
Speltz said “that would be no different than the dustup we went through on impact fees. Basically if you make a mistake, you gotta make it good.
“In our attorney’s view, that was a mistake. He doesn’t care if it was made by finance people, a previous attorney or whatever,” Speltz said.
Speltz said one possibility is to go to the Town Council and say that it asked the Conservation Commission to be more aggressive in its stewardship efforts and the commission responded with this project.
In writing the annual budget, the council should think about including funding for the project in the planning department’s or the Conservation Commission’s budget, “now that the truth has changed,” he said. “If this is something they want, then they need to put it in somebody’s budget.”
He added that taking it out of the Conservation Commission’s budget isn’t going to work because that is already obligated.
Lievens she thought $8,000 or $9,000 was left and was supposed to be used for “stewardship management, anything that we can’t cover with our daily budget.”
Speltz said there was not enough non-obligated money in that fund to make good the money already spent.
Asked for background on the matter by Commissioner Mike Considine, Speltz said he found an email from 2012 in which the commission asked then Town Manager Dave Caron if the commission could use Open Space Fund money to pay for stewardship activities.
“He asked then town counsel Bart Mayer and the answer came back ‘yes, we could.’ Dave then communicated to Deb (Lievens) and she to me and based on that guidance, we authorized the statement of work and finally got the thing going up to $30,000,” Speltz said.
Vogl said the resolution that created the Open Space Fund indicates that it was for the purchase and costs related to the purchase of properties. “So that’s where stewardship is not mentioned specifically, and I think that’s where they’re drawing the conclusion that it’s excluded,” Vogl said.
“Short of contesting it with the town attorney, we’re stuck with this ruling,” Speltz said.
Lievens said the commission was encouraged “very heartily to go in this direction, and maybe we can encourage them back to help us out,” referring to the Town Council.
Speltz said it would be reasonable to see if the school district and the recreation department could “split out some money for it” as well.
Vogl said they had asked Arnett to “dial down” the project a little bit” and to ask what they could do for $10,000 instead of $28,000. He said he thought they could keep the project alive but phased in over two years instead of one.
Speltz made a motion to rescind the vote to pay for the second phase of the project up to $28,000. It passed unanimously.
Lievens said the commission didn’t have a choice except to make the decision to scale back until the matter is “sorted out.”
Asked about the situation after the meeting, Smith said a second attorney was involved because the Conservation Commission requested that money from the Open Space Fund be used to pay for the Recreation Guide, and Finance Director Sue Hickey asked current town attorney Mike Ramsdell for his opinion, in light of past mistakes with the impact fee forensic audit. In a Superior Court decision dated Dec. 31, 2012, the court found the Town’s impact fee program in place since 1994 had at times been illegal and refunds were due to parties who paid the illegal fees.
An RSA 91-A Right-to-Know request by the Londonderry Times for the emails involved was declined on the basis that the emails are between staff and the town’s attorney and thus are not available because of attorney-client privilege.