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Waitsfield voters will not be voting on a petition that calls for a cessation of the town’s efforts to procure land for its municipal water project by condemnation.
The select board reported that decision at a well-attended meeting on May 9, explaining that town attorney Joe McLean affirmed that case law and state law rendered parts of the petition not actionable. Two clauses in the petition call for revising the water project which was approved by bond vote and suspending construction. McLean wrote that bond votes that have passed without petitions for revote cannot be undone. Nor, he wrote, could contracts that had already been awarded be undone.
In his written opinion he said that the third clause of the petition, which called for cessation of condemnation efforts, was asking voters to make a decision that legally only the select board was empowered to do and that as such any vote on cessation would be “merely advisory.”
The petition was submitted to the select board at its April 25 meeting with over 100 signatures. The petition asks the select board to call a special town meeting to vote on three articles:
1. Shall the town prepare a revised [water] project proposal for voters to vote on?
2. Shall the town suspend project construction pending the outcome of a vote on the revised proposal?
3. Shall the town cease its efforts to condemn land owned by Jean R. Damon and Virginia Houston until such time as the voters approve the revised project?
Those present at the meeting asked for that legal opinion. It was not made available at the meeting but was made public on the town’s website and town offices on May 11. Board chair Kate Williams told those present at this week’s meeting that the board appreciated the petitioners taking the time to bring forward a petition but said the board opted against holding such an advisory vote, preferring instead to continue its efforts to keep the water project on schedule and on budget and to negotiate or condemn land on Reed Road owned by Jean Damon/Toby Richards and Virginia Houston.
The board heard over an hour of public comment on the petition, its decision on the advisory vote, the water project in general and its efforts to complete the water project. Robert Hanes chastised the board for putting the cart before the horse in terms of proceeding with the project without a secure source for the water.
Board members explained that until last November 30 the town was operating under the assumption that the well it had drilled on Reed Road was a secure source because Reed Road was a town road. In November a judge ruled that the town had not presented sufficient evidence to prove that Reed Road was a town road, leading the town to begin negotiating with the two landowners for the two to three acres of land needed while concurrently beginning the condemnation process.
“Why is it so hard to bridge the gap between you and the landowners? If you don’t want to let us look over your shoulder at the cards you’re holding, I guess I understand that up to a point, but how far apart are you and why is it so hard to get this together?” asked Hanes.
Williams explained that the settlement talks with the landowners is a confidential process that protects the town’s ability to negotiate.
Robin Morris spoke up with praise for the select board and the project, noting, “There’s a view in this room that there isn’t support for this project. But there is a lot of support for this project in the town and I’d like to thank the board for moving forward with the project. There are huge financial costs to ratepayers and the town if you stop the project,” Morris said.
Pete Reynells asked the board what would happen if the town did not prevail in its condemnation efforts.
“The town voted for this and everything was fine until we picked up the paper and it said Reed Road is not a town road. Our reservation with the project now is what are we going to do if we lose in court? What’s your strategy for going forward,” Reynells asked.
Board member Bill Parker responded that the costs of stopping the project now would push the project costs way up. He said that the funding agencies for the $7.6 million cost of the project required the town to pursue condemnation as well as negotiating a settlement for the land.
“I’d say sewer is more important for the town than water. Most people have water. I can take you for a walk and show you 15 septic systems that are malfunctioning and going into the river,” Reynells added.
Chessie Hanes said she wanted the project to go forward but could not support condemnation. She asked the town to postpone the project for two weeks as a show of good faith to the landowners and offered to mediate or negotiate on the town’s behalf with the two landowners.
“If you would stop for a couple of weeks, that would say a lot to Richards and Houston and the rest of us and say that you’re going to aggressively pursue a settlement. You’re just hell bent to do it your way and you’re keeping everything secret which makes me nuts,” Hanes said.
“If we could take a breather, we would. We are aggressively pursuing settlement. We’ve probably spent 40 hours with Houston and the Richards negotiating. We’re not stopping negotiations. I understand you want to know where the settlement negotiations are, but we can’t negotiate publicly,” she said.
Board member Sal Spinosa added, “Whether we’re digging in the ground or not, our negotiations will continue and are aggressive and forward moving. Stopping the project isn’t going to intensify our attempt to resolve this. It is intense. It is ongoing. It is ongoing today and will be ongoing this week.”
Brian Shupe echoed Robin Morris’ comments noting that select board members were dealing with a situation they did not create.
He said there were three votes for the water project, one at Town Meeting 2008 that failed, another in June which also failed and then voters petitioned for a revote which occurred in November attracting 80 percent of town voters and passing the water project bond.
“Condemnation is not stealing. It’s protecting landowners from governments who steal. It says you must pay reasonable compensation for a property if public ownership is in the public good. I urge you to continue the dual process of trying to negotiate a settlement and pursue condemnation,” Shupe said.
After telling the board that he considered condemnation to be stealing, Chris Pierson told the board that the intent of the petition was to take the temperature of the town voters on the water project.
“We thought it was written in a way that was actionable and that you’d take action on it,” he said.
“We worked really hard to make sure we were giving you an appropriate response. There’s case law and statutes that guide how you respond. We wanted to make sure what we are doing is the right thing,” Williams said.
Jon Jamieson urged the board to continue its work on the water project.
“We need this water system. We need a wastewater system. We don’t need it because we want it. We need it. The Town Plan, which voters approved, calls for it. The state requires it. The federal government is mandating that we have clean water. This town will shrivel up and blow away if we don’t get water and sewer. This plan is off the tracks and it is a mess, but it’s all contractual now. Condemnation is distasteful to everybody. It’s philosophically and politically an ugly thing, but you look at the players here. There’s a lot of history with Virginia Houston. She’s made a bed and she’s lying in it right now,” Jamieson said.
“What changed my opinion on the subject was when someone compared water to air for me. I thought we were stealing someone’s water until someone told me that water in Vermont is considered like air, it’s a public trust. The bottom line is that we need this project to go forward. I support the select board and a water and sewer project. I think the board is doing the best job it can under the circumstances you’ve been handed,” he added.
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