VILLAGE DISTRICT OF EIDELWEIISS COMMISSIONERS MEETING August 20,2013

The Board of Commissioners met on Tuesday, August 20,2013. ln attendance were Commissioners lVlark Graffam, Ron Sandstrom and Mike Smith. Also in attendance was Fred Gurley (highway'), Mrs. Brewer and herfather of 14 Jungfrau, and Gloria Aspinall, resident. The meeting wa{i taped by Tim Hughes.

At 2:00 pm the nreeting was called to order by Chairman Mark Graffam at 14 Jungfrau Rd. At2:34 pm the nreeting reconvened in the office.

1. Agenda

Mark Graffam ntakes a motion to accept the agenda" Mike Smith seconds the motion and the motion passed 3-0.

2. Accounts Pa'yable 3. Minutes

The minutes of July 31 are reviewed. Mark Graffam makes a motion to accept the minutes as presented. lUlike Smith seconds the motion and the motion passed 3-0.

4. Highway Department Report

Fred Gurley reports that the culvert at32 Middle Shore has been installed. Headers were built for the culvert and 6" rip rap stone was added. Culverts at26 and 28 Middle Shore were cleaned. 6" rip rap stone was also added to the ditch near 2 West Bergamo. The crack sealing has been completed on Eidelweiss Dr. and Appenvel Way. Fred Gurley adds that
RCH did a good job completing the work. Mark Graffam discusses an area near Boulder Beach; Fred Gurley will add a small amount of asphalt to this section prior to the chip sealing being done. Culvert cleaning will be the focus for the remainder of this week. Grison and Grachen area will be graded. Addition of an 18" crown for Jungfrau is discussed. Mike Smith makes a motion that Fred Gurley creates a 6" cut swale at bottom of driveway of 15 Jungfrau Rd and directs the water flow to the existing culvert. Ron Sandstrom seconds the motion and the motion passed 3-0. The new bit ends for the grader have been received and installed. A trench is developing across Little Shore, this will be looked at. Fred Gurley reports that the culvert on East Bergamo has been checked and is clear. Some water does sit in the culvert, but there is nothing inside. Discussion on checking the catch basin at the inlet of the culvert is held. Discussion turns to road priorities. Mark Graffam makes a motion to have all drainag;e issues sent to the office, by letter or in person, for Board of Gommissioner discussion so that priorities can be developed. Ron Sandstrom seconds the motion and the motion passed 3-0. Overweight trucks that have been using Eidelweiss

Dr. to pass throurgh the District have been noted. The company has been requested to stop. Any additional trucks seen are to be reported.

5. Road and Driveway Review

The homeowner of 23 Oak Ridge Rd did not receive the original Driveway Permit for Operation that was mailed last week. A duplicate has been requested.

No response has been received from the letters mailed last Fridav to the owners of 30 and 32 Middle Shore Drive.

6. Water Systenr Planning

The pump & motor for the Chocorua Station have been ordered. An estimate of installation costs will be requested.

The new pH meter has been calibrated and is being used. The pH was tested at all stations and a range fronr 6.0 at the office sink to 7.2 at the Muddy Beach well was found. A report from NH Dept. of Environrnental Services on drinking water pH has been distributed. Orange Juice has a lowe,r pH than 6.0; the pH of vinegar is 2.4. Jason Roache of Northeast System Controls will be followed up with as the status of the order for the new flow meter.

7. Scheduled Appearances

The residents of 14 Jungfrau discussed water flow across and down Jungfrau Rd. Road damage is visible. Water crosses road from driveway at#15 and creates a washout down slope. The area may be ditched to reduce water flow onto road. The road is not crowned in this section. Grervel may be added if time and budget allow. Mike Smith makes a motion to visit 68 Eidelwe,iss Dr. prior to returning to office. Motion fails for lack of a second. Mark Graffam ntakes a motion to recess the meeting for travel to the office. Ron Sandstrom seconds the motion and the motion passed 3-0.

Gloria Aspinall has attended the meeting to discuss the culvert on her property. An increase in road materials into the culvert is creating difficulty in cleaning it. Materials added to Eidelweiss Dr wash down hrer driveway and into the culvert. Ms. Aspinall outlines the history of the culvert, the increase in road debris, and the desire for an agreement that the VDOE should responsible for cleaning the culvert until a solution for the drainage of Eidelweiss Dr in the area is implemented. Mark Graffam discusses the need for storm water management throughout the VDOE. Each case is unique and should be considered as such. Possible solutions are outlined; the roarl may need to be engineered for a more permanent solution. Mike Smith makes a motion to have the DPW clean the culvert until a plan for a solution is created and implemented. Ron Sandstrom seconds the motion and the motion passed 3-0.

Mark Graffam ntakes a motion to schedule a catch basin design to intake side of the culvert as a high priority for this year. Ron Sandstrom seconds the motion. Discussion is held. Motion is called to a vote and the motion failed 1-2. Ron Sandstrom makes a motion to put the design of a catch basin on the list of priorities and review against the other priorities on the list. Mike Smith seconds the motion and the motlon passed 3-0.

8. Warrant Artic;les

Mark Graffam rnakes a motion to send a follow up request to NH Dept. of Revenue on the loan docunrents for the Jungfrau pump skid. Mike Smith seconds the motion and the motion passed 3-0.

3 proposals have been received for a new F-550. The specifications are to be checked. Mark Graffam makes a motion to invite Bob Hackett of HP Fairfield to the next meeting. Ron Sandstrom seconds the motion and the motion passed 3-0.

Proposals from Case, Caterpillar, Volvo and John Deere for a new grader are to be reviewed when received.

9, Commissioners Reports

Ron Sandstrom discusses the missing road sign for Big Loop. Mark Graffam makes a
motion to order a road sign for Big Loop and the road map sign for the Huttwil parking lot, adding "We,lcome to Eidelweiss" at the top of the sign, not to exceed $120. Ron Sandstrom seconds the motion and the motion passed 3-0. Ron Sandstrom states that he would like to disr:uss the recommendations from the Attorney on storm water management, roads, and the right of way. Ron Sandstrom makes a motion to communicate with the property owners abutting phase 1 of the Oak Ridge Rd plan outlining the construction process. Mike Smith seconds the motion and the motion passed 3-0. Mark Graffam makes a motion to call the Attorney for specifics to be included with the communication. Ron Sandstrom seconds the motion and the motion passed 3-0.

Mike Smith mal<es a motion to hire the beach cleaners to rake out the sand piles on the beaches in the areas approved on the drawings. Ron Sandstrom seconds the motion and the motion passed 3-0. Mark Graffam makes a motion to show the plans to the beach cleaners prior to spreading so that sand is spread only in accordance with the plans and requrest that the beach cleaners report any beach on which machinery is needed to move the piles. Ron Sandstrom seconds the motion and the motion passed 3-0.

10. Signature lttems

A letter to resident requesting information on any agreement to clean the culvert on the property is revie,wed. Mark Graffam makes a motion to disregard sending a letter to Gloria Aspinall, Ron Sandstrom seconds the motion and the motion passed 3-0.

A credit applicatiion for Nortrax has been completed. Mark Graffam makes a motion to sign the credit applircation. Ron Sandstrom seconds the motion and the motion passed 3-0.

11. Correspondence

The check for $2150 towards the Fire wise mailing has been received from the Eidelweiss Property Owners Association as was discussed previously.

The Local Government Center has announced that NH Senate President Bragdon has accepted the por;ition of CEO.

Granite State Analytical has forwarded the monthly water system test results. All results are in compliance and negative for bacterium.

The NH Municipal Association has issued the final legislative bulletin outlining all new regulations put irrto effect this year; including an update that will effect upcoming road projects.

12. Administration

The payroll report is presented. Reporl and time cards are reviewed. Mark Graffam makes a motion to approve payroll in the amount of $4,701.62. Ron Sandstrom seconds the motion and the motion passed 3-0.

The Treasurer hias sent a report on account balances reflecting the deposit of the tax check. 13. Old Business

Ron Sandstrom discusses establishing the top 6 priorities to be pursued within the 2013 Road Plan. Grader paving is discussed. Ron Sandstrom makes a rnotion to obtain quotes for paving from a c;ontractor to compare to the cost of having the DPW do the work. Mike Smith seconds the motion. Discussion ensues. Mike Smith makes a motion to remove Mark Graffam as Chairman for the Board of Commissioners. Mark Graffam seconds the motion. Discus;sion ensues. Motion is called to a vote and the motion passed 2-1. Mike Smith makes a motion to appoint Ron Sandstrom Chairman of the Board of Gommissionersi effective immediately. Mark Graffam seconds the motion and the motion passed 2-0-1with Ron Sandstrom abstaining.

14. Other Business

A vacation request sheet is turned in. Ron Sandstrom makes a motion to approve vacation time for Nancy Cole. Mark Graffam seconds the motion and the motion passed 3-0.

Mike Smith mal<es a motion to have Fred Gurley mark illegally stored canoes for removal. Ron €iandstrom seconds the motion and the motion passed 2-0-1with Mark Graffam abstairring.

15. Public Gomments

At 5:20 pm Mike Smith makes a motion to enter Non-Public Session pursuant to RSA 91-A:3, ll (b) hiring of an employee, (a) employee matters, and (d) property matters. Mark Graffam seconds the motion. Motion called via roll call; Mark Graffam yea, Ron Sandstrom yea, Mike Smith yea, and the motion passed 3-0.

Motions and votes of Non-Public session:

Ron Sandstrom makes a motion to allow family coverage on the health insurance to be at the same 80/20 split as two person coverage. Mike Smith seconds the motion and the motion passed 3-0.

Ron Sandstrom makes a motion to post a public meeting for Friday morning, August 23,

in addition to ttre Non-Public Session. Mike Smith seconds the motion and the motion passed 3-0.

An Attorney Client consultation followed.

At 6:00 pm Mike Smith makes a motion to exit Non-Public session and adjourn the meeting. Ron Siandstrom seconds the motion. Motion called via roll call; Ron Sandstrom yea, Mike Smith yea, and the motion passed 2-0.

Respectfu lly subm itted,

Nancy E. Cole Administrator

As voted on 9-3 the correspondence with Attorney Crean is attached to this document

Ofiice (603) 928-7760

Dqwiel fr. Creaw, F.X,.L,C. Attorney-ut-Low
414 East Yiew Drive Pembroke, NH 03275

Cell phone (603)- 7 15-0922

e-mail to: creaulaw@comcast.net

NOTE: Attorney Client Privileged Document Via email and US Mail

This correspondence is communication between attorney and client. It is rendered to advise the addressee as to legal rights, duties, and responsibilities and is therefore a confidential document subject to the Attorney-Client privilege.

To: BoarrJ of Commissioners - Village District of Eidelweiss RE: Roads and Drainage/Flowage
Date: August 19,2013
From: Danierl D. Crean

This memo responds to an email from Commissioner Sandstrom. His comments and questions are set out below in red text and my responses follow printed in blue text.

'['o assist us. so that we clo not spend *ur meeling inter:pleting your respoltse" cfin you plovirle us rvith actionahle gr,tidance atrcl simple Hnglish clality. While I have tried to respond with as simple and clear language as possible, some questions do not have a single (6true" or 'onot true" answer but depend on some additional facts or circutnstances. I have tried to explain those as simply as possible, but sorne matters are plainly complex and do require analysis and discussion.

Fu'examplc:

1) Ths clistrict tti.vns tlie foircls attcl llr* land that is a total of'4.0 Jeet in wirllir, n:easurt:d 20 fe,et jk:xr thc centelline o{ the roael.
Pick oue TI{.LIE [ ] or NOT TI{.I-IE I X ] . Based on the deed, sent to me by Nancy, in Parcel 16 Great Northern conveyed its interests in the roads listed in the deed and all ooeasements and appurtenancrss" to VDOE. The roads are listed by reference to plans records in the Registry of Deeds. Thus, VDOE does own the roads listed, presumably in fee interest (only a title search could verify actual status of tifle). My reasons for cheching NOT TRUE in the box are as follows:

r

r

The dleed says the roads are apnroxilnatelv 40' in width;
. They are conveyed subject to rights of others, public utility easements and all other

easements of record; and
Importantly, the roadway width of 40' is the space within which the paved or traveled

portion of the road is located. It is rare when roads are actually constructed with the center Iine of the traveled portion coinciding exactly with the center line of the road right-of-way. Thus, using the center line of traveled way provides an approximation of the center line of the right-of-way but it may not be exact and in some cases may not be close. [In one municipality I represented years ago, the paved portions of some of the roads lvere not even located within Ure described and depicted right-of-rvay.l To truly locate the center Iine of the right-of-way (which would then determine the area within which VDOE has rights associated with the roads) various techniques could be used ranging from surveys to field

VDOE Boarrj of Commissioners RE: Roads and Drainage/Flowage

August 79,2A'13 Page2

r
techniques as discussed below.

inves,tigations using whatever physical boundary marhers may exist or some other

In addition, rvithout benetit of a title search, it is impossible to know what other rights of record may exist that limit VDOE's rights. It can be said that roads generally include the right to locate drainage within the right-of-way unless a contrary intent is shown. T'o the extent that drainage ancl flowage righl existed onrlo property of others [either expressly, by implication, or by long standing use - the three ways in which easement rights exist], VDOE can continue to use those rights. However, thart does not allow the District to substantially expand or alter drainage and flowage onto the property of others rvithout consent or conveyance of additional rights, as further discussed below.

2) The land nhrrtting tlrc roads is ciu,n*il by tlLc hexne owncr as shorvn on his/hel'dr'*d.
Piclt ote TRUIi I X I orNO f Ttt{J}tr, I I This response assurnes that homeowner owns the

land on whiclh the home is locirted and that the deed description is accurate so that the property line actually does abut the VDOE right-of-way line.

3) '['1te clistli,;L has exisling, ancl curt'c'nt *asements for egch homer abutting the lo;tcis to charrg* thr. topology of'tlle laniJ fo irnplnr'* drainagc issnes.

Piclt on* l"R{ M l I or N0'l' I'R{JF, I X I VDOE, :rs stated in response #l has existing rights within its rigJht-of-way and in accordance with easernents and appurtenances as statetl in the Great Northern cleerd. Without knowing the exact extent, purpose or description of such easements, it is impossible to do anything other than to provide an estimate of those rights - a starting point is to looh what has been the historical perspective of how drninage has been handled. In many states, but particularly in New Flampshire, easements are a bit flexible as they can be expanded within litttits by whart the courts say is natural and necessary to further the purpose of the easement so long as the pr:operty over which the easement exists is not unduly adversely a{Tected. That response' unibrtunately, is not simple antl clear, simply because that is rvhat the courts have said. An example rnay assist in understanding: An existing municipal roacl has within anyone,s memory used an adjoiining property lbr drainage that is relatively contained to certain areas of a property, with the possible exception of the area increasing, say by 10% lbllowing heavy rains * but that ceases shortlly'al'ter the storm event. Changes in topography, surface or other action by the ntunicipality results in a change in location of the drainage or its expansion by 2501,, In nry view, courts would deem such a change as requiring permission. On the other hand, if natural weather conditions changed over the course of time to increase flowage - without action by the municipality - courts woulld lihely assume that to be an act of nature :rnd would al{ow it to occur, unless the municipality could tahe action to address the situation - within reason - i.e., having to reconstruct the road would not be reasonable.

The next ques{ions ltssnrir* the rr:;:iJ is ?0 {e*t jn lvidlh;rnd tota'| r,virlth of':trO {tet includes 10 i'ect of'land nexl trt thc road. My comments as to location of the traveled portion within the right-of-way apply here as well.

VDOE Boar,C of Commissioners RE: Roads and Drainage/Flowage

August 19,2ctl3 Page 3

4) The distr:iet has the lighL lo i:hnnge lhr topogrrlphy ri'the lanci nert lri lhc lnilcls at an1,' linirr w{{hom{ tt*ti*e lo a honte ot\ir"ler rvhose. lancl is abulling ilre lr-rad.

Pick one l"RtJH I I lli)I"'fltiJlr I X I As stated in the previous irnswcr, if the change in topography substantially alters drainage or llowage onto adjoining property, that presurnably would exceecil the existing easement rights on property onto property of others. In any event, it is generally vierved as pool" practice (and certainly poor public relationr;) to undertake road projects without provided notice (and opportunity for comment) by abutters. 1) Notice and opportunity tbr comment may provide inlbrmation that will be uselirl in planning and executing projects. 2) Even if inlbrmation does not result in changcs to the project, inlbrming people instead of proceecling without notice generally produces positive reaction and may lessen concern ancl opposition.

5) "['he district has the riglrt to chang* the tapography af t]re land next 1o the lcads at an_y time rviftr nctie* to a hcrne owner rvitose lancl is abutting the road.

Pjcl< ont l't{.tJti I I }{()l"llt.tJtrl I X I Notice is helpfut as noted inr response #4, but changes in topography that adversely affect abutters or result in changes or expansion beyond o'reason" as described above, cannot occur even with notice. Ifnotice is given, and the abutter cloes not object - and if the changcs are as describecl and expected, the abutter may face dilficulty in mounting an after-the fact challenge under the doctrine that bars people frorn sitting on their rigtrts until al'ter something occurs. However, this would require a clear and convincing demonstration that a clear and effective notice of the project was provided, a deadline lbr responding wns clearly stated, along with notice that the District would rely on a lach of response as constituting authority to proceed with the abul.ter's consent. This needs to be done c:rrefully :rnd clearlly with adequate docuntentation, and then it is still not a (oslarn dunk," :rs courts ciur be very protective of priv:rte property rights.

6).I.hclc}istr]icthristherigl'rttrlch;ingct.h*tc4,:clgr.aplryofth*landtt*x1' s{ t}:e hume {}w{'$sr ll'hr:sc la.nd is ahutting f.he ro;rd.

l:)iclt oue ll{"UE I X I Niil"'f l{lJl- | I Absent somc extenuating circumstances as described above, if the ,change in topography has :rny adverse or potentially adverse effect on adjoining property' agt'eement (hopefully in writing as an easernent) is the best way to proceed. Ilowever, mere change in topography that does not affect adjoining property (hard for me to imagine) would not require agreement, though I prefer that notice and opportunity for cornrnent be providetl as stated above.

Assttrningthirf,rve0allr}0|ele|ertrrirr*ij.tlrcdistt'icthi:stiicright'-tl{-tl,iivorthir1$i]'St:|I}cl1lS;:reetrt.rcr,t|lill *1'{*ci

1) The distr"jct urust ta'ork u,ilh the lil-l lluleaLr o1'Ilight-of'-Wa,v- io aequire ih* uecess*ry plr:pefly lights before heginning atly coltslrllction project that altels the topology,' of tlie land in the l0 {foot?) section rrexl to lhe road.

Pick one l'R{lFl I I }J{}1' 'fR.lJH I X .l I do not know of any state agency called the Bureau of Right- of-Way that deals with municipal roads. That Bureau, to my knowletlge, acts on state projects. [For

a description of how the state handles property acquisition, see: httn://www.nh.sov/dot/ore/proiectdevelonment/rishtofway/faq.htm.l If voluntary consent for a

District project cannot be obtained and the projects needs aclditional rights to proceed, the manner of acting is to utilize eminent dornain to acquire those rights, with the process perhaps going

VDOE Boar,C of Commissioners RE: Roads and Drainage/Flowage

August 19,2A13 Page 4

through the I\H Board of Tax and Land Appeals. Both that Board and the courts, if used, have the authority to revierv not only compensation to the property owner, but also the public neecl fbr the project and acquisition of property rights. As stated above, mere alteration of topography without affecting abutting property in any way, likely could proceed without acquiring rights from abutters, but any substantial project within thc right-of-way likely would have some affect requiring sornc ftrrm of perrnission or involuntary acquisition of rights.

B) Ther ilistr'ict mttst obtain eulrcrll cilsf,mcnts lar propelti*s rlext to cur district roilds.
Pick one TRLIn I I NOT TR{JI;i I X I VDOE's deed does convey existing easement rights and appurtenances, though it may be dit'ficult to actually prove what those were. It is unlil<ely that VDOE has krept exacting records to show what has been done over the years and whether those even contem;rlated whether they were within existing easements or permissions. Naturally, if any such records exist, they might demonstrate that VDOE had or obtained permission to act. For future guidance, adopting policies and procedures to review existing rights and to notify and document property owner actions (i.e., consent) is highly recommendecl. I thinh trying to obtain easelrrents for all situations could be very counter-productive with solme property owners believing this to be a chance to obtain rnoney fbr rights that already may exist.

That said, going forward with a project to assist in identifying trnd clarifying VDOE ancl property owner rights m:ry be very worthwhile. For exanlple, trying to map existing rights-of-rvay could assist in determining the areas within which VDOE can nct on its own accord, Merely measuritrg 20' from the center line of the traveled or paved road m:ry not be accurate :rs stated above. If suc:h a mapping proiect were to occur, a rnethodology less costly:rnd intensive thzrt actual surveys' but rone that still may be usef'ul, would be to use whatever bounclary rnarhers can be founcl; marhing them out on the grounctrl and notice ancl hearing with opportunity to submit comment prior to ('finarlizing the map." T'hat process would not lihely include rnapping of all existing llowage ancl drainage:, but it may be a step in assisting in that objective. Again, I suggest that a public and open process with ample opportunity for public input is a uselll and benelicial tactic. While it rnay produce some objection at the outset, it is better to address those concerns early in the process instead of waiting until some obiect after the District has acted.

In conclusion, I hope you understand and agree with the notion that a 4-page response lihe this was required to address your concerns. I have tried to provide a clear "yes" or "no" reply where I could; but easement andt highway law is not always quite so clear cut. Please contact me as needed, and I hope t0, have provirded you with legal and practical guiclance.

lsl
Daniel D. Crean