Rebuttal to Selectman Dumas

On May 31, 2021 Selectman Tony Dumas published in the Nottingham Unfiltered and the Nottingham News and Information Facebook groups his reasons for being opposed to Warrant Articles #19 and #20, and by inference, his reasons for leading the Town to overturn half a century of practice and to expose the Town to a lawsuit over the objections of his fellow Selectmen.

Selectman Dumas began his statement by accusing the supporters of Warrant Articles #19 and #20 of being engaged in spreading "misinformation." While Selectman Dumas has his right to an opinion on matters, there's a large body of factual information at hand on this issue from which one can expect the courts to draw a conclusion opposite to what Selectman Dumas believes and from which the voters of Nottingham can also see Selectman Dumas' errors on this issue.

In Selectman Dumas' opinion, the roads at issue are "private." By "private" he says he means: "'private' meaning 'not owned by the town.'" As this is the breathtakingly erroneous foundation of his entire argument, I will start with that claim.

In the book, A Hard Road to Travel, which functions as the "bible" of road law in NH, it states, "a public highway is simply an easement held in public trust by government for the use of the public. Underlying land is usually ... owned by abutting landowners." So, Selectman Dumas is fundamentally mistaken on the difference between a public and a private road. Passing Warrant Article #19 will not transfer land ownership to the Town; it just creates an easement. By Selectman Dumas' erroneous understanding of the difference between "private" and "public" roads, even after Warrant Article #19 is approved by the voters these roads would still be "private" roads!

As if this error of understanding between "public" and "private" roadways was not shocking enough, he then goes on to opine, "it doesn't matter who they let drive down there, the fact remains that the land is owned by the property owners on those roads and not by the Town. They can close off the road any time they like want, because they can. It's *their* land." Despite Selectman Dumas' claim, this is not only not a fact, it is contrary to the facts! Only a fraction of the property owners on those roads have any ownership of those roads. Worse, it is preposterous to claim that these owners can close off these roads at any time as it would prevent people from accessing their homes. Anyone who tried to do that would be promptly sued and subject to an emergency court injunction. And besides, the public does not have to own the land under a road for the road to be a public road. All that is required is for the public to have an easement over that land for the road.

Selectman Dumas says that all that he - and the bare majority of the Selectmen who agreed with him - were doing was "attempting to exercise its discretion under the Emergency Lane Law (RSA 231:59-a) to cease maintenance due to the fact that most of the roads in question no longer qualified to be ELs." The first problem with this is that this is not an established fact, as Selectman Dumas claims. It is merely his opinion - an opinion that is contrary to the judgment of decades of previous Boards of Selectmen, contrary to the judgment of other current Selectmen, and presented without substantiation. Meanwhile, it is obvious that homes in Nottingham need to be accessible to fire trucks and ambulances, and that the power lines along those roads need to be accessible to utility workers. It is a disservice to the voters of Nottingham to claim that his opinion has the status of being a "fact." Yet, he has the audacity to accuse others of engaging in "misinformation."

Further, by Selectman Dumas' own admission ("most of the roads in question") he thinks that there are roads which do qualify as Emergency Lanes but which he thinks the Town should cease maintenance of, demonstrating that his primary interest is in having the Town cease maintenance of its roads rather than the safety and well-being of the Town's citizens.

Selectman Dumas then claims that "no one ever suggested 'reclassifying roads' as some have put it...." Is it not obvious that what people are referring to is the reclassification of roads from the status of being Emergency Lanes to not having the status of being Emergency Lanes?

Next Selectman Dumas presents his opinion of the legal status of the roads in question. This opinion is contrary to established New Hampshire state law, New Hampshire Supreme Court rulings, and a ruling on a similar case in Rockingham Superior Court involving the Town of Derry. By his attachment to this opinion, Selectman Dumas has exposed the Town to litigation. This litigation has already caused the Town to incur sizable legal bills. There will be much higher legal bills should Selectman Dumas be successful in persuading voters to reject Warrant Articles #19 and #20, as this will cause the case to come to trial.

Nottingham's problem about these old roads has nothing to do with who owns the land under which these roads run. The problem is due to the Town's failure to act decades ago to do what will be remedied by passing Warrant Article #19 as these roads long ago met the criteria for being implicit public roads. The fact that the Town has maintained these roads for decades and the fact that the landowners have not objected to the Town maintaining these roads has given the public an easement through the private property. Rather than expose the Town to litigation, as Selectman Dumas advocates, the Board of Selectmen should have acted to ensure that the Town followed state law by formally acknowledging these are public roads.

A detailed explanation of why these roads are implicitly public roads can be found here. In brief, some of these roads date back to the early 19th century. To clear up the status of roads that predate 1948 and which were being used by the public without being formally accepted, New Hampshire passed legislation that said these roads were of public status if they were in continuous use through 1968. Others of these roads were constructed around the 1960s without the kind of formal dedication and acceptance process now in modern use. Upon construction of these roads, the Town began maintaining them and has continued that maintenance to the present day. By state law, if a town maintains a road for twenty years, that road is implicitly a public road. So, the Town's fault is not that the Town has been spending public money on private roads; the Town's fault has been that it has failed to acknowledge that it has public roads for which it is responsible. The Town of Derry made the exact same mistake in 2001. Rockingham Superior Court ruled that the Town was wrong. The roads were public and the Town could not relinquish its responsibility for maintaining them. We should expect the same thing to happen in court if the voters fail to overturn the Board of Selectmen's error.

Selectman Dumas cited the situation regarding water pipes running under Highland Ave. as an example of the perils of the Town's voters voting to accept roads. However, Selectman Morin has stated that this situation in fact does not represent a liability to the Town. The residents are responsible for the water pipe that runs under the road, not the Town. This is yet another example of Selectman Dumas' erroneous understanding of the laws governing roads in New Hampshire and why the voters need to vote Yes on Warrant Articles #19 and #20 to save the Town from the disastrous course of action that Selectman Dumas has caused the Town to pursue.

Selectman Dumas's claim that "a small group of folks from these neighborhoods have sued the Town" indicates that he's out of touch with his constituents. Hundreds of households have contributed to fund this lawsuit. They have held many neighborhood meetings attended by a large proportion of the residents.

Selectman Dumas falsely claims that "some of those plaintiffs have created this Warrant Article to convince the voters that this mass acceptance of private roads as the only resolution." This is obviously untrue as the plaintiffs are pursuing resolution in the courts as well. He falsely claims that the Baillargeons did this because they were "uncertain of the outcome of their lawsuit." The Baillargeons have stated publicly that the reason they proposed the Warrant Articles is that they wish to spare the taxpayers of Nottingham the expense of taking the Selectman's meritless legal case to trial and they wish to spare the citizens of the Town from the animosities that arise from citizens having to take legal action against injustices perpetrated by their own government.

As for the small number of signatures on the original petition for Warrant Articles #19 and #20, as Selectman Dumas should know, that's all that was needed to bring the Warrant Articles to a vote at the Town's Deliberative Session, and as Selectman Dumas should know, the voters at the Deliberative Session voted overwhelmingly to put Warrant Articles #19 and #20 on the ballot - an important fact that Selectman Dumas ignores when he claims that "the petitioners cannot honestly claim to speak for all of them." Of course, the petitioners never made the claim that they spoke for all of them, but a massive number of them showed up at the Deliberative Session to make their voice heard and to thwart Selectman Dumas' efforts to prevent the Warrant Articles from reaching the voters as written.

Without naming anyone or quoting anyone, Selectman Dumas claims that "some of the petitioners have even deemed themselves fit to promise that they and all future residents will never want road improvements." Ascribing ridiculous statements to anonymous sources is similarly ridiculous. While individuals may make personal promises, there's obviously no way they can make promises for their neighbors or future residents. Besides, Selectman Dumas should know that once either the voters or the courts correct the Board of Selectmen's error about our old roads, what happens to these roads is out of the residents' hands. It is for the Board of Selectmen and the voters to decide.

Selectman Dumas' claim that "Article 20 is ridiculous on its face, as some of the petitioners were among the very ones complaining that the Town had no road standards a couple of years ago" is itself ridiculous on its face. It was Selectman Dumas himself who advocated for the creation of standards in order to create additional impediments the Board of Selectmen could use to prevent the voters from accepting roads.

Selectman Dumas rhetorically asks "How can you adequately plan, project budgets or maintain properly without standards?" For an answer to this question, Selectman Dumas might wish to ask prior holders of his office, as they did just fine for the past half-century without these newly created standards. If Selectman Dumas means to indicate here that he is incapable of adequately planning, projecting budgets, or maintaining properly these roads without things that decades of prior Selectmen have done just fine without, perhaps he should consider that he lacks the skills for the job rather than blaming the tools he has for the job.

Sadly, Selectman Dumas insists on refusing to acknowledge the voice of his constituents, refusing to come to grips with the actual facts of the case, and, most worryingly, refusing to lead the Town in accordance with state law. For these reasons I now not only urge the citizens of Nottingham to vote YES on Warrant Articles #19 & #20 to overturn the Board of Selectmen's actions which have exposed the Town to litigation, but I must also urge the voters not to re-elect Tony Dumas should he decide to run for re-election in 2023.

Selectman Dumas' Statement: