Appeal Report Asks Petitioners to Clarify Concerns, Negotiate with Town

The hearings officer for the issued his , laying out deadlines and requirements for the appellants of the project while also opting to combine the appeals into one in an effort to streamline the process.

Friday is the first deadline issued in the report, as appellants are required to initiate “good faith settlement discussions” with the town, something they have not previously done according to hearings officer Timothy Jones. The results of those negotiations are to be delivered back to Jones by Friday, August 24.

One major piece of the appeal was dismissed by Jones following Tuesday’s meeting. MacDonald and others have long expressed concerns related the Activity and Use Limitation that involves the oil beneath the school. However, Jones said there is no jurisdiction in the wetlands appeal related to those issues, so all AUL related claims were dismissed.

Jones then required some clarity for the other aspects of the appeal.

“With respect to the remaining issues asserted in the Petitioners’ Notices of Claim and Pre-Hearing/Pre-Screening Statements, they have thus far been ambiguously stated,” said Jones in his report. “Moreover, after discussing the issues at the conference they appear at present to be significantly based upon speculation and conjecture, and not fact, with respect to technical issues under the Wetlands Protection Act and the Wetlands Regulations.”

As a result, Jones said petitioners must file a signed statement that presents facts that are grounds for the appeals, along with written credible evidence from a “competent source” supporting their claims.

“The failure to comply with this order may result in dismissal of this appeal, absent of showing good cause,” said Jones.

Jones also laid out a list of deadlines that both parties must meet in the likely event that the appeal continues towards its scheduled hearing date of October 25. Among those tasks is designating witnesses for the adjudicatory hearing by August 28.

“At first glance it sounds like the town may think that it’s more favorable towards them than it actually is,” said appellant George Lingenfelter. “Excluding the AUL concerns doesn’t mean they are wrong. Even though it isn’t included, the AUL issue is not going to just go away.”

MacDonald said he reached out on Wednesday to officials to set up time to talk with the town’s attorney as the first step in initiating the settlement talks. Overall, MacDonald said petitioners were not completely satisfied with the conference report.

“There are some things that we disagree with,” said MacDonald. “We find that things are being done that are risking the health and safety of our community, as well as the finances, and the town wants to do things that are detrimental. We feel (Jones) is mistaken in dismissing the AUL concerns.”

MacDonald also expressed concerns with the mitigation plans the town developed, saying they create safety and environmental concerns.

“We’re making a good faith effort to settle the appeal, whether or not the town likes our requests,” said MacDonald. “Basically, we don’t want to have the environment contaminated.”

When asked about the bigger picture of the appeal, MacDonald declined specific comment on whether or not he would be open to continuing to Superior Court if Jones does not rule in his favor following the potential October hearing.

Town Counsel Daniel Deutsch issued a statement on behalf of the town during which he laid out the noteworthy items from the conference report.

“In sum, we believe that today’s order is an important step in the right direction,” said Deutsch.

Jones did not issue a ruling on whether or not the town could begin construction on portions of the high school project during the appeal. That means the town would have to apply to the Department of Environmental Protection and receive action from Jones before that is possible.

Board of Selectmen chairman Mike Newhouse declined to indicate if that is an option on the town’s radar.

“I wouldn’t want to discuss the town’s strategy relative to the substance of the case,” said Newhouse. “Dan (Deutsch) summed things up pretty well and his bottom line was on the money. The order is a good step in the right direction. We continue to feel confident in DEP’s decision and the town’s position.”