Aldermen, Board of

A regular meeting of the Board of Aldermen was held Tuesday, July 12, 2011 at 7:30 p.m. in the Aldermanic Chamber. President Brian S. McCarthy presided; Deputy City Clerk Patricia Piecuch recorded. President McCarthy Before I ask for the prayer, I would note with sadness the passage of a friend of all of ours, Alderman Flynn, a consummate gentleman and a great representative of his constituents to this board, and would ask that we observe a moment of silence. Prayer was offered by Deputy City Clerk Patricia Piecuch; Alderman LaRose led in the Pledge to the Flag. The roll call was taken with 12 members of the Board of Aldermen present; Aldermen Cox and Wilshire were not in attendance. President McCarthy Alderman Cox and Alderman Wilshire are out sick this evening. Her Honor Mayor Donnalee Lozeau and Corporation Counsel James M. McNamee were also in attendance. President McCarthy Does the Mayor wish to address the board? REMARKS BY THE MAYOR Thank you, Mr. President, I do. As you mentioned earlier, Mr. President, we have all lost a colleague and a friend yesterday morning in the passing of Alderman Dick Flynn. It is a significant loss to the city. Over his six years, he served with honor and he brought a real thoughtful approach to what he did. He had a keen eye, he had a good attitude, he was always respectful of the opposing point of view; he was always focused on the issue at hand. All of us would listen to his questions and, I remember during my first budget year saying to him, “I’m just not sure if I can answer that question any more.” I remember him looking at me and saying, “Ok, if I can’t think of another way to ask it, we’ll have to talk about it later.” At the end of the meeting, he took me aside and wanted to make sure that I understood that he wasn’t trying to catch me up short or ask something I didn’t know the answer to, he just really wanted to know the answer. I came to learn that that was the thing about Alderman Flynn. He truly just wanted to understand the answers and he thought out loud. His questions were his way of thinking out loud and trying to wrap his brain around whatever it was we were grappling with so that he was confident that he was making the best decision for the people that he represented. He saw himself as a public servant truly saw himself as a servant of the people. His neighbors were his first priority, and I really enjoyed working with him and I know that you did as well. He was a very, very devoted family man. This loss to his family, words just can’t even explain what they are dealing with. His family was so involved. They know each of you by name. They paid attention to the meetings and they knew what was going on. I extend my heartfelt deepest sympathies to his family on their profound loss this evening and I know you all join me in that. Thank you, Mr. President. RESPONSE TO REMARKS OF THE MAYOR – None RECOGNITION PERIOD Bd. of Aldermen – 07/12/11 Page 2 READING MINUTES OF PREVIOUS MEETING AND PUBLIC HEARING MOTION BY ALDERMAN CLEMONS THAT THE MINUTES OF THE BOARD OF ALDERMEN MEETINGS OF JUNE 28, 2011, AND THE PUBLIC HEARING CONDUCTED BY THE PERSONNEL/ADMINISTRATIVE AFFAIRS COMMITTEE OF JULY 7, 2011, BE ACCEPTED, PLACED ON FILE, AND THE READINGS SUSPENDED MOTION CARRIED COMMUNICATIONS MOTION BY ALDERMAN CLEMONS THAT THE RULES BE SO FAR SUSPENDED AS TO ALLOW FOR THE INTRODUCTION OF A COMMUNICATION RECEIVED AFTER THE AGENDA WAS PREPARED, BY TITLE ONLY MOTION CARRIED From: Donald F. Conley, Chief of Police Re: 4th of July Activity Summary MOTION BY ALDERMAN CLEMONS TO ACCEPT AND PLACE ON FILE MOTION CARRIED Alderman Chasse Should we take this communication from James Cutter that was put on our desks tonight and accept it and place it on file? I make that in the form of a motion. From: James B. and Mary E. Cutter Re: Open Letter MOTION BY ALDERMAN CHASSE TO ACCEPT AND PLACE ON FILE MOTION CARRIED President McCarthy The public comment period I believe I am required to announce that we expect there to be a second reading of R-11-132, regarding the approval to Pennichuck to sell properties in North Conway, and that we expect there may be a second reading of R-11-137, regarding the harvesting of Water Chestnuts. Communications on those two items would be acceptable during the first public comment period. With that said, no one has signed up for the first public comment period. PERIOD FOR PUBLIC COMMENT RELATIVE TO ITEMS EXPECTED TO BE ACTED UPON THIS EVENING - None Alderman Cookson Thank you. With your announcement, I understood that there would be a revised agenda on our desks this evening. Is there a revised agenda? Was R-11-132 included in the revised agenda because it is not on the original? President McCarthy The revised agenda was posted. Did we not print copies of it? The revised agendas are in the mailboxes. I don’t believe that R-11-132 is on those is it Ms. Lovering? Bd. of Aldermen – 07/12/11 Page 3 Alderman Cookson Is R-11-132 coming under suspension? President McCarthy Yes. Alderman Cookson Thank you. Alderman Pressly So you are going to give a first reading tonight and then a second reading right afterwards, is that the intention? President McCarthy I believe there will be a motion for suspension because there is some timeliness to that resolution. Actually R-11-132 has already had its first reading. It was recommended by the committee last night. Alderman Pressly The other one is on for new business is it not? President McCarthy Correct. PETITIONS – None NOMINATIONS, APPOINTMENTS AND ELECTIONS Joint Convention with Edgewood Cemetery Board of Trustees MOTION BY ALDERMAN LAROSE THAT THE BOARD OF ALDERMEN MEET IN JOINT CONVENTION WITH THE EDGEWOOD CEMETERY BOARD OF TRUSTEES FOR THE PURPOSE OF ELECTING TRUSTEES MOTION CARRIED President McCarthy called for nominations. Trustee Maffee nominated the reappointment of Thomas A. Maffee, 18 Colony Way, Nashua, and Carl Andrade, 10 Clydesdale Circle, Nashua for terms to expire March 31, 2016, and the appointment of Hollis E. Harrington, Jr., 62 Farmington Road, Nashua, for a term to expire March 31, 2015. MOTION BY ALDERMAN COOKSON TO CLOSE THE NOMINATIONS MOTION CARRIED Bd. of Aldermen – 07/12/11 Page 4 A Viva Voce Roll Call vote was taken on the aforementioned appointments which resulted as follows: Yea: Alderman Clemons, Alderman Vitale, Alderman Craffey, Alderman Deane, Alderman Pressly, Alderman LaRose, Alderman Tabacsko, Alderman Melizzi-Golja, Alderman Sheehan, Alderman Chasse, Alderman Cookson, Alderman McCarthy, Carl Andrade, Philip Hall, Morgan Hollis, Thomas Maffee, Mayor Lozeau 17 Nay: 0 MOTION CARRIED President McCarthy declared Thomas Maffee, Carl Andrade and Hollis Harrington duly appointed to the Edgewood Cemetery Board of Trustees for the aforementioned terms. MOTION BY ALDERMAN CHASSE THAT THE CONVENTION NOW ARISE MOTION CARRIED Appointments by the Mayor The following appointment by the mayor was read into the record: Airport Authority Dennis Stephens (Reappointment) Term to Expire: August 31, 2016 9 Byron Drive Nashua, NH 03062 MOTION BY ALDERMAN CLEMONS TO ACCEPT THE APPOINTMENT BY THE MAYOR AS READ AND REFER IT TO THE PERSONNEL/ADMINISTRATIVE AFFAIRS COMMITTEE MOTION CARRIED REPORTS OF COMMITTEE Finance Committee ............................................................................ 07/06/11 There being no objection, President McCarthy declared the report of the July 6, 2011 Finance Committee accepted and placed on file. Committee on Infrastructure ............................................................... 06/22/11 There being no objection, President McCarthy declared the report of the June 22, 2011 Committee on Infrastructure accepted and placed on file. Special Personnel/Administrative Affairs Committee .......................... 07/07/11 There being no objection, President McCarthy declared the report of the July 7, 2011 Special Personnel/Administrative Affairs Committee accepted and placed on file. Planning & Economic Development Committee ................................. 06/21/11 There being no objection, President McCarthy declared the report of the June 21, 2011 Planning & Economic Development Committee accepted and placed on file. WRITTEN REPORTS FROM LIAISONS – None Bd. of Aldermen – 07/12/11 Page 5 CONFIRMATION OF MAYOR'S APPOINTMENTS – None UNFINISHED BUSINESS - RESOLUTIONS R-11-126 Endorsers: Mayor Donnalee Lozeau Alderman-at-Large Ben Clemons Alderman Michael J. Tabacsko ESTABLISHING POLLING TIMES FOR THE MUNICIPAL GENERAL ELECTION ON NOVEMBER 8, 2011 Given its second reading; MOTION BY ALDERMAN CLEMONS FOR FINAL PASSAGE OF R-11-126 MOTION CARRIED Resolution R-11-126 declared duly adopted. R-11-128 Endorsers: Mayor Donnalee Lozeau Alderman-at-Large Ben Clemons Alderman Michael J. Tabacsko Alderman Mary Ann Melizzi-Golja Alderman Jeffrey T. Cox Alderman Diane Sheehan DECLARING A MUNICIPAL SPECIAL ELECTION TO FILL A VACANCY ON THE CITY OF NASHUA BOARD OF EDUCATION, ESTABLISHING THE TIME PERIOD FOR FILING NOMINATION PETITIONS, ESTABLISHING POLLING TIMES AND ISSUING PRECEPTS TO THE SELECTMEN OF THE CITY WARDS Given its second reading; MOTION BY ALDERMAN TABACSKO FOR FINAL PASSAGE OF R-11-128 MOTION CARRIED Resolution R-11-128 declared duly adopted. MOTION BY ALDERMAN CLEMONS THAT THE RULES BE SO FAR SUSPENDED AS TO ALLOW FOR THE INTRODUCTION OF A RESOLUTION RECEIVED AFTER THE AGENDA WAS PREPARED MOTION CARRIED R-11-139 Endorser: Alderman-at-Large Ben Clemons Alderman Michael J. Tabacsko Alderman Arthur T. Craffey, Jr. Alderman Kathryn D. Vitale Alderman Mary Ann Melizzi-Golja Alderman Diane Sheehan Alderman-at-Large Brian S. McCarthy PROPOSING AN AMENDMENT TO THE CITY CHARTER RELATIVE TO FILLING VACANCIES IN THE BOARD OF ALDERMEN, BOARD OF PUBLIC WORKS, BOARD OF FIRE COMMISSIONERS, AND BOARD OF EDUCATION Given its first reading; Bd. of Aldermen – 07/12/11 Page 6 MOTION BY ALDERMAN CLEMONS THAT R-11-139 IS NECESSARY, THAT IT BE ASSIGNED TO THE PERSONNEL/ADMINISTRATIVE AFFAIRS COMMITTEE AND A PUBLIC HEARING BE SCHEDULED FOR WEDNESDAY, AUGUST 3, 2011, IMMEDIATELY FOLLOWING THE FINANCE COMMITTEE MEETING SCHEDULED FOR 7:00 PM IN THE ALDERMANIC CHAMBER ON THE QUESTION President McCarthy I guess we can do this here, but it would have actually belonged under new business. Alderman Clemons Sorry. President McCarthy As long as we are here, let’s go ahead and… Alderman Tabacsko Question on procedure Mr. President; to join this as a co-sponsor would be done at what time/ President McCarthy Right now. MOTION CARRIED MOTION BY ALDERMAN TABACSKO THAT THE RULES BE SO FAR SUSPENDED AS TO ALLOW FOR THE SECOND READING OF R-11-132 ON THE QUESTION Alderman Cookson Are we going to follow the agenda this evening or are we just …are we doing unfinished business ordinances or are we going to resolution? President McCarthy This is under unfinished business resolutions. The motion is to suspend the rules to allow for a second reading of R-11-132. MOTION CARRIED R-11-132 Endorser: Mayor Donnalee Lozeau AUTHORIZING THE MAYOR TO GIVE PRIOR WRITTEN CONSENT, AS REQUIRED BY THE PENNICHUCK MERGER AGREEMENT, TO PITTSFIELD AQUEDUCT COMPANY’S PROPOSAL TO SELL THREE PARCELS OF LAND IN NORTH CONWAY NEW HAMPSHIRE Given its second reading; MOTION BY ALDERMAN TABACSKO FOR FINAL PASSAGE OF R-11-132 Bd. of Aldermen – 07/12/11 Page 7 ON THE QUESTION President McCarthy Would you like to recap last evening’s meeting? Alderman Tabacsko Certainly. Last night the Pennichuck Special Water Committee met and recommended final passage on this. What this is is three parcels of property up in North Conway that Pennichuck had purchased in anticipation of needing to drill wells. It turned out they were able to interconnect with a neighboring utility and therefore the wells were not needed. The property that was purchased was not eligible to be included in the rate base so it therefore became excess. It also happens to be in a floodplain, and not suitable for any other purpose than farming. Pennichuck was able to find sort of an agricultural coop that has made an offer to purchase the property. It leaves Pennichuck in a mostly neutral position, a break-even position, and it would have been a cost to the ratepayers going forward. The reason we are dealing with it is because it exceeds $50,000, and we are required to authorize the Mayor to give written consent as required as part of the Pennichuck Merger Agreement. I think that covers the main points. Alderman Pressly Thank you. I was at that meeting and I do support this going forward. Interesting it is being purchased by a non-profit and their emphasis is in teaching farmers how to farm organically. I certainly support this. However, I don’t know why we have to rush this through. I don’t like to do that unless there is some reason. Is there any reason we have to suspend the rules and do this tonight instead of taking it in its regular course? When was this agreement signed? Does anybody have any idea? Why do we have to rush it through tonight instead of going with our regular procedures? President McCarthy Mayor Lozeau or Attorney McNamee? James McNamee, Esq. The Purchase & Sale Agreement, according to Pennichuck, this purchaser is currently renting the property and is in the second year of a two year lease, which is expiring, and had shown interest a year ago in purchasing the property and then came back, went away, but then came back to purchase the property. I think the reason that they have asked for us to approve it now is because the purchaser has come forward seeking to acquire the property and they want to get the ball rolling because this requires approval not just our consent, but also approval by the PUC, and they will be awaiting our approval before they file with the PUC for that. At this point, they are just paying taxes on the property. I believe Mr. Ware told us last night that this was a net cost of $9,000 and I can’t recall if that was a month or a year, it must be a year. In order to put the property essentially back in service by recapping the money so they can put it back into the water system and to cut the costs that they are incurring on a monthly basis. Bd. of Aldermen – 07/12/11 Page 8 Alderman Pressly I totally support our doing this, but if the tenant has been there for two years, why are we being asked to rush this through? Why didn’t they come in a timely way? When was the last contract signed? If this has been going on for a year that they have been talking about it, how come we are just getting it now? Alderman Tabacsko The Purchase & Sale that is attached to the legislation has a date of May 31st of this year. Be that as it may, I’m just looking at our calendar and knowing the process that this has to go through once it gets back to Pennichuck and the PUC, and we don’t meet again until our August meeting. We only meet once in July and August. I have no problem whatsoever in supporting this. It makes sense, and I think it is one of those things that yeah it is not our first choice to do these things under suspension, but this is one, in my opinion, that does make sense to do. Alderman Sheehan I just wanted to remind what we were explained last night is they made an offer on the land and they wanted to look and see if perhaps they couldn’t get more money and so they put out a bid situation, which is why it kind of went away for a little while. Remember the first offer they made was $65,000 and then when they tried to put it out to bid this neighbor wanted to buy this bit, this one was interested in that bit, and so things like that weren’t going to work so they decided to put it out to bid, and then this is the result of that, and they ended up getting I think it was $75,000. Since that happened it has been pretty timely coming forward to us. Alderman Deane Mr. President would this be made part of the same calendar arrangement the City currently has with the PUC that we were told about earlier? End of October? President McCarthy I don’t believe so, this is a separate action between the utility and the purchaser, and we are not a party to that action. Alderman Deane So when would this be in front of the Public Utilities Commission? President McCarthy As soon as they file the request to review it, the docket will get scheduled, I don’t… Alderman Deane And when you file a request for review with the PUC… President McCarthy Pennichuck needs to… Alderman Deane When a request is filed with the PUC it is not instantaneous… Bd. of Aldermen – 07/12/11 Page 9 President McCarthy Correct. Alderman Deane …If you file on a Tuesday it is not done next Monday it is usually … President McCarthy Correct. Alderman Deane …months on end. President McCarthy Right, but my understanding is they can’t file that until they have the approval from us so we delay it another month until that process if we push this to our August meeting. Alderman Tabacsko As I read further in the Purchase & Sales Agreement that is attached here, paragraph 5 states that the transfer of title is to take place on or before September 1st so there is a real time clock running on this particular Purchase & Sales, and I think as we learned last night as Alderman Sheehan just pointed out, that we certainly don’t want to jeopardize what appears to be a pretty favorable offer at this point. Alderman Pressly Just to clarify, I’m fully aware that there was a delay to have a bid. That was Pennichuck’s choice or the subsidiary of Pennichuck. I find it very frustrating. We do this a lot and I think it is a bad habit to get into. I will support it. I supported the whole project, but I really find it very hard when we rush things through unnecessarily. Poor planning. Alderman Tabacsko I take exception to the poor planning if I’m included in that because I just believe that this is not a case of poor planning this is a case of good planning in that we have looked at our calendar in the future and realized that the interests of everyone involved are served by moving this forward tonight. Alderman Sheehan I’m going to second the emotion, and I am going to add a little to it being that it is very difficult for a private company to do a sale and we’re adding a layer of local government, which moves very very slowly, and I think we are probably going to see more instances where it is important that our timing is very tight on things and that this type of thing will happen more so in the future. They probably need crops to plant for next season to mow under, rye grass, things like that, they need to know by September 1st whether they are in or out of this land so this is not something I think that is being done for anything other than this is what they need to do to do this business that they are in, which is a very unique fit, there is a very small market that they can sell it to, and nobody came to protest it, and it is inaccessible land anyway. I don’t think that it was a matter of poor planning, I think they have been expeditious is a better description for it, and they have planned well. Bd. of Aldermen – 07/12/11 Page 10 Alderman Pressly Well I feel I have to respond. I think it is very kind of both Aldermen to give the apologies for them, but the buyer has been farming the land for two years. It might be poor communication they didn’t realize that we had a timeframe here. I’m going to support it, but I think we should go on record at some time that we want people who need things done to have it come in in a timely way, and Pennichuck I think should have known better. But I’m going to support it to get the organic farmers out there and doing the right thing, but I think we should stop giving excuses for anybody who wants legislation passed and doesn’t sort of inquire as to how one goes about it in a timely way. Thank you. Alderman Cookson I would be surprised, even if it gets approved this evening that it will be on the PUC’s docket prior to September 1st. Do what you must this evening. It was poor planning and I think some Aldermen take words too personally when it wasn’t intended toward them. I won’t be supporting this. I think we should follow the process that we have established. We have done this one time before with a contract that was read on a Monday evening and passed on a Tuesday night. It is just not something that you want to get in the practice of even if it is with regard to organic farming. President McCarthy The motion is for final passage of R-11-132. Is there any further discussion? MOTION CARRIED Resolution R-11-132 declared duly adopted. UNFINISHED BUSINESS – ORDINANCES O-11-73 Endorsers: Mayor Donnalee Lozeau Alderman-at-Large Ben Clemons RELATIVE TO THE REVISION OF WARD BOUNDARIES Given its second reading; MOTION BY ALDERMAN CLEMONS TO AMEND O-11-73 IN ITS ENTIRETY BY REPLACING IT WITH THE GOLDEN ROD COPY PROVIDED WITH THE AGENDA ON THE QUESTION President McCarthy I’m sure you want to explain to us what the amendments are. Alderman Clemons Sure or Alderman Chasse. He was there. Alderman Chasse There were a couple of State Representatives that would have been moved around out of their wards under the previous ordinance, and so City Clerk Bergeron had to do a little fixing up to keep them in their wards. That is basically the change. Bd. of Aldermen – 07/12/11 Page 11 Alderman Deane I’m waiting. Are you not going to read? Alderman Chasse No no I just gave you… Alderman Deane You are not going to read the amendments? Alderman Chasse Absolutely not I just gave you the synopsis of it. Alderman Deane Thank you. Alderman Chasse I haven’t got all night. President McCarthy The motion is to amend with the golden rod copy. Any further discussion? MOTION CARRIED MOTION BY ALDERMAN CLEMONS FOR FINAL PASSAGE OF O-11-73 AS AMENDED MOTION CARRIED Ordinance O-11-73 declared duly adopted as amended. O-11-74 Endorser: Alderman Diane Sheehan ESTABLISHING A NO PARKING ZONE ON A PORTION OF CONCORD STREET Given its second reading; MOTION BY ALDERMAN SHEEHAN FOR FINAL PASSAGE OF O-11-74 MOTION CARRIED Ordinance O-11-74 declared duly adopted. NEW BUSINESS – RESOLUTIONS R-11-133 Endorser: Alderman Mary Ann Melizzi-Golja PROPOSING AN AMENDMENT TO THE CITY CHARTER RELATIVE TO FILLING VACANCIES IN THE BOARD OF EDUCATION Given its first reading; MOTION BY ALDERMAN MELIZZI-GOLJA FOR INDEFINITE POSTPONEMENT OF R-11-133 Bd. of Aldermen – 07/12/11 Page 12 ON THE QUESTION Alderman Pressly Could we have some explanation of that please? Alderman Melizzi-Golja A more comprehensive resolution is what you just heard the reading of for R-11-139. Alderman Pressly I suspected that. Thank you. MOTION CARRIED Resolution R-11-133 declared indefinitely postponed. R-11-134 Endorser: Mayor Donnalee Lozeau Alderman-at-Large David W. Deane Alderman Michael J. Tabacsko Alderman-at-Large Mark S. Cookson Alderman Arthur T. Craffey, Jr. Alderman-at-Large Brian S. McCarthy Alderman Kathryn D. Vitale Alderman-at-Large Barbara Pressly Alderman Mary Ann Melizzi-Golja Alderman Diane Sheehan AUTHORIZING THE SALE OF SURPLUS BROAD STREET PARKWAY PROPERTY Given its first reading; assigned to the COMMITTEE ON INFRASTRUCTURE by President McCarthy R-11-135 Endorsers: Alderman Richard LaRose Alderman Mary Ann Melizzi-Golja Alderman Michael J. Tabacsko Alderman Diane Sheehan Alderman-at-Large Barbara Pressly CREATING A SPECIAL REVENUE FUND FOR THE HUNT BUILDING Given its first reading; MOTION BY ALDERMAN DEANE TO ACCEPT THE FIRST READING OF R-11-135, ASSIGN IT TO THE BUDGET REVIEW COMMITTEE AND THAT A PUBLIC HEARING BE SCHEDULED FOR THURSDAY, JULY 21, 2011, AT 7:00 PM IN THE ALDERMANIC CHAMBER MOTION CARRIED R-11-136 Endorser: Mayor Donnalee Lozeau Alderman-at-Large Ben Clemons RELATIVE TO THE RE-APPROPRIATION OF FISCAL YEAR 2012 ESCROWS Given its first reading; assigned to the BUDGET REVIEW COMMITTEE by President McCarthy Bd. of Aldermen – 07/12/11 Page 13 R-11-137 Endorsers: Alderman Michael J. Tabacsko Alderman Diane Sheehan Alderman Kathy Vitale Alderman Jeffrey T. Cox Alderman-at-Large Ben Clemons Alderman Arthur T. Craffey, Jr. Alderman-at-Large Brian S. McCarthy AUTHORIZING THE USE OF $21,300 FROM ACCOUNT 372-7007 “NASHUA CONSERVATION FUND” TO FUND COSTS ASSOCIATED WITH HARVESTING WATER CHESTNUTS IN THE NASHUA RIVER ABOVE THE MINE FALLS DAM, IN THE MILL POND AND IN THE CANAL Given its first reading; MOTION BY ALDERMAN TABACSKO THAT THE RULES BE SO FAR SUSPENDED AS TO ALLOW FOR THE SECOND READING OF R-11-137 MOTION CARRIED Alderman Pressly I had a question on that. My question was going to be what is the urgency of this… President McCarthy The motion to suspend is not debatable. The previous motion was a non-debatable motion. Alderman Tabacsko will explain the urgency of it. Alderman Pressly Okay. What is the urgency of that? Fist I would like… Alderman Tabacsko At this point Mr. President I would move… President McCarthy We need the second reading. Resolution R-11-137 given its second reading; MOTION BY ALDERMAN TABACSKO FOR FINAL PASSAGE OF R-11-137 ON THE QUESTION Alderman Tabacsko Thank you Mr. President. This is Water Chestnuts in the river are an invasive species and the urgency is the time of year. This is the time to get at this. It is one of those things that there can be scientific debate on some of the methods and whatnot, but I think if anybody noticed in the paper today the Nashua River Watershed is actually doing a volunteer harvest down in Massachusetts this weekend. This actually takes a more organized approach to it. I am happy to see that the City has looked into this and addressed it in the way that it has. This has been before the Conservation Commission. The funding is from the Conservation Commission and they are in support of this. I think this is one of those things that we really do need to do it Bd. of Aldermen – 07/12/11 Page 14 now because if we wait until our next meeting these will be beyond…if the Mayor would like to add to that. I know we have worked on this together a little bit and if I have forgotten something. Mayor Lozeau Thank you. Thank you Alderman Tabacsko, I appreciate that. The process for this, Alderman Tabacsko and I have been looking at this for over two years now trying to determine the best way to comprehensively deal with things within the waterways. We have issues, and I think that I have talked to this group about it when we have had some strategic planning discussions and during the quadrant reporting period, we have issues not only with Water Chestnuts, but we actually have 6 invasive species in the river. We didn’t know that at the time, just knew that we had a problem. We have problems with erosion on our banks, we have problems with trees coming out of the retaining wall behind the library, we have some pollution, we have some stagnation in the canals, we have problems with some of the dams. We have some water problems. It was very clear to me very early on that there isn’t a city division or department that has responsibility for that. Over the past two years we have tried to find a way to tackle what we need to do and how to prioritize it. As we were working on it, the Chestnut problem became worse and worse. We don’t know if we can attribute it to some of the work that was done upstream in Pepperell, if that made it worse than it was or not, but we worked with DES and people from our Nashua River Watershed group and with the Community Development Director and the Park & Recreation Superintendent, and we came together with a four year plan. What we discovered when we looked at the calendar was that the harvesting time for the Water Chestnuts in particular are before the seed drops some time in mid to late October and early September. We really want to get in there. When we reached out to the only vendor that has a harvester to do this work, he had one small window of time available in the first and second week of August, and so we really wanted to grab that time. The Conservation Commission took this up two meetings ago; they actually took it up in two meetings; one meeting where I presented and then a second meeting where they followed up. Mine Falls funds are also being used for this, and that is why the urgency. It didn’t occur to any of us that we were going to fall under this window of time and that the one vendor that could do the work that was the only available time that he had as well. On one hand it was very fortunate for us that it worked out that way other than the process here. We also didn’t know what some of the costs associated with it might be, and the idea of sharing those costs with conservation dollars and Mine Falls dollars, we think it is a pretty creative solution moving forward. Thank you Mr. President. I appreciate the opportunity. Alderman Deane What is the total dollar amount of the Mine Falls money? Mayor Lozeau The Mine Falls Park account is about $15,600. Alderman Deane That is from the ETF, from the cell tower? Bd. of Aldermen – 07/12/11 Page 15 Mayor Lozeau It is. Also they will be covering the cost of the permitting and…so if you add it all up, I’m sorry Alderman Deane my sheet has it separate, it is about $20,000 each; $20,000 from Mine Falls and about $20,000 from conservation. Alderman Deane The legislation says $21,300 from the conservation … Mayor Lozeau The total cost is $37,400 so if you subtract the money from the Conservation Commission, the remaining amount is what is coming from the Mine Falls account. Alderman Deane Is this going to appear on the Finance Committee agenda? Mayor Lozeau Yes, the contract will. That is the other reason for the… Alderman Deane Wasn’t there some spraying that was supposed to be done last year that never happened? Mayor Lozeau Fish & Game would not approve the spraying so although we got approval from DES to do it, Fish & Game was able to stop it. This plan is for harvesting and then there will be some treatments that will be done next year and the following year… Alderman Deane My couple of questions are; what happened to the money for the spraying that was approved? A contract came through to Finance correct? We approved it… Mayor Lozeau That wasn’t recent. Alderman Deane No, I know that. Mayor Lozeau Okay. Alderman Deane So the money lapsed into fund balance? Bd. of Aldermen – 07/12/11 Page 16 Mayor Lozeau That would be my understanding if that is where it was coming from. Alderman Deane Okay and what is the reoccurring yearly cost? Mayor Lozeau The four year estimated program cost is between $150,000 to $170,000 for the four years. Alderman Deane $150,000 to $170,000, and right now we are spending $37,400? Mayor Lozeau Yes. Alderman Deane Do I deduct that dollar amount from the $150,000 to $170,000? Mayor Lozeau Yes. Alderman Deane We are going to see what this plan is right? Mayor Lozeau Yes. Alderman Deane What happens when it comes to Finance? Are we going to see everything? Mayor Lozeau Well the Finance Committee is going to approve the contract. Alderman Deane Only for these folks to come in and pull up what is there now, but what about the reoccurring four year, is that $37,400 part of that? You said earlier if I took that I could deduct that from the $150,000 to $170,000, so there is a four year plan of harvesting all of this… Mayor Lozeau No the … Bd. of Aldermen – 07/12/11 Page 17 Alderman Deane … all of these invasive species? No? Mayor Lozeau The four year plan isn’t to harvest them all. The plan is to be developed with DES. They have already done some work developing the plan for what would happen in the Mill Pond, but not for the whole river. These are really just cost estimates based on what they have been telling the group that has been working on this that they have been participating in. That full plan isn’t developed. What is developed is get in there right now and harvest. We have almost 4 acres just above the dam and another 4 acres of Water Chestnuts in the Mill Pond so it is just really kind of choking out the pond. The right now plan that costs $37,400 is to go in and do this harvesting work. Then the next three years of this plan will be further developed with DES and grants are also available. It is my understanding that we will be applying for some of these dollars… Alderman Deane So we won’t be… Mayor Lozeau …so I can’t bring that full plan in… Alderman Deane We won’t continue to tap out the conservation fund as well as the Mine Falls Park fund to cover the cost of this? Mayor Lozeau I think we will likely come back and ask them for some funds, I just don’t know what amount that might be that we will ask them for. It depends on what grants we get approved for and what the plan looks like. There is some new herbicide that could potentially be used that would not run afoul of the regulations that Fish & Game has that we are looking into now and when we can use that. Part of this work just works out beautifully because, as you know, we are doing the boat ramp this year so that helps us to have kind of a whole piece that we can do that will have a significant impact. To answer your question Alderman Deane, again, I cannot bring in a full plan, but I can bring in what has been identified and what work needs to be done and who the contractor is for this first piece of work. And as that plan gets developed we will have more time and not be in a situation like this going forward because we will be able to lay it out. Alderman Deane I guess our legal counsel has seen fit that the conservation funds can be used for invasive specie mitigation. Mayor Lozeau Actually the answer to that question is the State law that designated how conservation funds would be used, which Alderman Pressly is going to be able to tell you a bit about because she sponsored the legislation… Bd. of Aldermen – 07/12/11 Page 18 Alderman Deane This falls under the applicability? Mayor Lozeau …includes, yes these waterways. Alderman Deane If I look in that State law I can find Water Chestnuts in there? Alderman Pressly No it is not going to be in there. I will be happy to speak to it, but… Alderman Deane Mr. President if Alderman Pressly could speak to that… Mayor Lozeau If I could just add one piece, that language was provided to the Conservation Commission and that language included waterways, and that is why they supported this. Alderman Deane If Alderman Pressly could enlighten me with her. Thank you. Alderman Pressly Happy to do this. This was something… well first off I want to say I really enjoyed reading about the Water Chestnuts in the newspaper, had no idea, and I strongly support doing something about that. I have a strong problem with using the conservation fund. I will tell you how this came about and how I happen to author it, and I am really very proud of this taking place about 25-30 years ago. The problem with finding money is always where do you find it and it is in competition with 14 other items so we found a technique where unanticipated revenue was created and any municipality then could in turn use it for the very thing that it had destroyed, and it has to do with the current use laws of our state. The way this works if a landowner keeps their green space in current use, undeveloped, they get a tax break on their property taxes. But once they decide to sell that green space and develop it, they have to pay a back tax so a municipality never knows when this is going to happen so they budget without this extra money. So when there is a change of usage from current use to developed use the municipality gets extra revenue, and they call that unanticipated revenue. What this allowed cities and towns to do was that, if they wanted to it was strictly enabling legislation, if they wanted to they could take a percentage of that up to 100% and set it aside in a conservation fund for the explicit purpose of replacing the green space that was lost when there was the conversion from current use to developed use. The recent purchase of the Terrell land was absolutely appropriate. But this really is not, and I have looked forward to talking about this and suggesting another source of funding so that this can proceed. But I would also like to say that I think this is just a small piece of the problem, and although I had planned to talk about this in committee I am sort of forced to do it with the whole board here, so I hope you will indulge me since this came up at the last minute like this. Bd. of Aldermen – 07/12/11 Page 19 This is just one small piece of the problem and maybe we should go ahead and find funds to do this right now. We have contingency funds set aside perfectly to do something like this, to do that now, but then to start sitting down and start working on these 6 or 7 invasive species going up and down the river. This is just one of them. I know I have spoken with the Mayor; I have spoken to the Chairman of the Conservation Commission to try to come up with a plan to do the whole Nashua riverbank. Fitchburg has recently done this and other communities are working on it too. I think there is going to be a way to solve the problem. If this has to be done tonight without exploring some other ways to find the money, I would like to move that we substitute the Nashua conservation fund and put in the contingency fund. I would like to move that we replace…and the problem this poses me I have no choice but to challenge using it because I know full well the intent of this. I get telephone calls today from small towns all over the State who call me and ask what the intention of the use was. Some communities someone wants to sneak in a ball field when they are supposed to have green natural usage. I know the intent of it, and maybe some people have massaged it a bit to expand it to others, but if we start using it for something like this we are going to deplete the funds that are intended to buy places like the Terrell land or other property that comes up. This has been really most useful for small towns because they just meet once a year. We are able to meet on an ongoing basis as a city, but a small town really has this fund set aside strictly to replace the loss of green space. I have no choice but to challenge that pretty heavily. If this is really that urgent, we need to have the walnuts, and I support that, find another source. We have how much in contingency that we can use this for. I would like to move that we substitute this, and I don’t know what number to give it, but give it a contingency number so we can proceed with the timeliness of this. MOTION BY ALDERMAN PRESSLY TO AMEND BY REPLACING THE FUNDING SOURCE OF “ACCOUNT 372-7007 “NASHUA CONSERVATION FUND”” WITH THE CONTINGENCY ACCOUNT ON THE QUESTION President McCarthy Attorney McNamee is it your opinion that funds cannot be used to … Alderman Pressly He is going to say yes, he says yes to everything the Mayor wants. President McCarthy …pay for this activity? Alderman Clemons Wow. James McNamee, Esq. Pardon me Alderman Pressly. Bd. of Aldermen – 07/12/11 Page 20 Alderman Pressly Pardon me. James McNamee, Esq. Did you say something to me? Did you have a question for me? Alderman Pressly I made a comment and a side comment. I will be happy to say it in public if you like. James McNamee, Esq. Mr. President … President McCarthy I would prefer that you not make side comments when you haven’t been recognized at all. Alderman Pressly Then I won’t… President McCarthy It is really not in keeping with what we expect of the members of this board. Alderman Pressly That is fine. James McNamee, Esq. If you give me a minute on my PDA I have the State Statute that I will take a look at to see if I can answer your question at this time. President McCarthy Thank you. James McNamee, Esq. Otherwise if I can’t from this I wouldn’t be able to give you a response. President McCarthy I believe the motion before us is to amend by striking the conservation fund and substituting the contingency account. Alderman Deane I can give you a number Mr. President if you would like. Bd. of Aldermen – 07/12/11 Page 21 President McCarthy I would. Alderman Deane It is Department 591, five digit commodity Mr. President is 86005 Contingency General. There is a recent balance in that line alone of $325,000. MOTION BY ALDERMAN PRESSLY TO AMEND BY REPLACING THE FUNDING SOURCE OF ACCOUNT 372-7007 “NASHUA CONSERVATION FUND” WITH ACCOUNT 591-86005 “CONTINGENCY GENERAL” President McCarthy The motion is to change account 372-7007 “Nashua Conservation Fund” to 591-86005 “Contingency General”. Alderman Tabacsko Are we waiting for material information from Attorney McNamee on this very question? President McCarthy I believe we are. Alderman Tabacsko Would it be appropriate to give him enough time to maybe …I would like to hear from…. President McCarthy What would be appropriate is a motion to lay R-11-137 on the table so that we can take up the next order of business and then we can remove it afterwards. MOTION BY ALDERMAN TABACSKO TO TABLE R-11-137 MOTION CARRIED R-11-138 Endorser: Mayor Donnalee Lozeau Alderman-at-Large Ben Clemons Alderman Arthur T. Craffey, Jr. Alderman-at-Large Barbara Pressly Alderman Michael J. Tabacsko Alderman Mary Ann Melizzi-Golja Alderman Diane Sheehan Alderman-at-Large Brian S. McCarthy RELATIVE TO THE TRANSFER OF $5,000 FROM ACCOUNT #591-86005 “CONTINGENCY- GENERAL” INTO ACCOUNT #753-3740 “NASHUA MILLYARD DESIGN COMPETITION – BROAD STREET PARKWAY” Given its first reading; assigned to the BUDGET REVIEW COMMITTEE by President McCarthy Bd. of Aldermen – 07/12/11 Page 22 NEW BUSINESS – ORDINANCES O-11-80 Endorser: Alderman Mary Ann Melizzi-Golja AUTHORIZING A STOP SIGN ON KEATS STREET AT ITS INTERSECTION WITH BROWNING AVENUE Given its first reading; assigned to the COMMITTEE ON INFRASTRUCTURE by President McCarthy President McCarthy At this point, I guess I would ask for a motion to recess until Attorney McNamee rejoins us. MOTION BY ALDERMAN TABACSKO TO RECESS MOTION CARRIED MOTION BY ALDERMAN TABACSKO TO TAKE FROM THE TABLE R-11-137 MOTION CARRIED R-11-137 Endorsers: Alderman Michael J. Tabacsko Alderman Diane Sheehan Alderman Kathy Vitale Alderman Jeffrey T. Cox Alderman-at-Large Ben Clemons Alderman Arthur T. Craffey, Jr. Alderman-at-Large Brian S. McCarthy AUTHORIZING THE USE OF $21,300 FROM ACCOUNT 372-7007 “NASHUA CONSERVATION FUND” TO FUND COSTS ASSOCIATED WITH HARVESTING WATER CHESTNUTS IN THE NASHUA RIVER ABOVE THE MINE FALLS DAM, IN THE MILL POND AND IN THE CANAL President McCarthy In front of us is the motion for final passage, and I will ask Attorney McNamee to comment for us. Alderman Pressly Mr. President if we are going to be waiting, I would like to talk about an idea that I have been thinking about that I was going to bring to the committee, but since we had to rush this through tonight I would be happy to toss out a possible idea as far as how to fund this type of thing in the future. The concept of the Conservation fund was based on money that was generated at the loss of something. In other words it was a special interest that generated the money that then gave that back to that same special interest. I think the principles of finding new money in government is having it connected one to the other. The Nashua River, in the small amount of time I have started looking into it, one of the confusing parts is that most people have no idea who is responsible for taking care of the vegetation along the river. When I started out I asked three different people and they all gave me a different answer, and these were authorities. Once said it belongs to the State, the other said it belongs to the City, and the other people said it belongs to the owner. The most reliable last result of that was that the property owner along the river is responsible for taking care of the vegetation to the river’s edge. I would bet you money that there are very few people in the city that live along the river that realize that they are responsible for pruning, for caring for, for taking care of the vegetation. The Mayor herself lives along the river so she knows about this. Bd. of Aldermen – 07/12/11 Page 23 How can we cleverly find a way to set up a fund someplace that can be managed so that we can be proud and keep our river clean? Our river and the buildings along the river are two of the best assets we have in this city and they have been neglected over the years. A couple of ideas that ran through my head are that somehow tying it to the people that benefit from this who are the people who live along the river. Could we take say ½ a percent of their property tax could be devoted to this fund to care for them or would one add a fraction of a percent to their tax to generate some general fund? The property owners need help to know what they are allowed to do. Nobody is going to go and start chopping down…there are many people that I guess use body language to express their unhappiness or dissatisfaction. Most people have no idea what to do as to how to care for the vegetation along the riverbank because it is expected to support erosion. Most property owners have no idea what to do or if they knew what to do they wouldn’t probably be allowed to do it. We would have to work with the Conservation Commission, with all of the State agencies to figure out what to do. I think there are lots of ways to solve this, but I think in the interim if we have $5,000 for contingency general to go for a $5,000 prize certainly we can take the amount of money, the $21,300 from the contingency and protect the purity of the conservation fund for what its purposes are. I think there are lots of things and I think we need to start working together either in a sub-committee or in some way to work together to find a way to take care of all of this scruffy. In most places along the river it is just hideous. We have to find a way, as a community and as a City, find a way to fix it everywhere, not just in one spot as this is. Again, I did not intend to discuss this at the full board, but since you rushed this through tonight I have been left with no choice. But I strongly object to anything of this nature coming out of the conservation fund. We have money other places that are not in possible violation of the intent of the legislation. James McNamee, Esq. As I understand it, your question is whether or not you can take money from the conservation fund to pay for a contract to remove an invasive species from Mine Falls, and your choices that you have put on the table are either to take it from the conservation fund or take it from contingency. You certainly could take it from contingency. The conservation fund is, as Alderman Pressly indicated; the land use change tax creates the conservation fund. The enumerated powers of the Conservation Commission are broad, but they do tend to be written in terms of acquisition of property. However, I think you could do it under that if you wished under conservation fund as well because at the end it talks about otherwise conserving and properly utilizing open spaces and land and water areas within the city or town and manage and control the same. It is reasonable to consider that the conservation fund could be used for that. The fund that is established using the money from the land use change acts can be used for any purpose in this chapter. But I think the point that has been made is that the more specifically enumerated powers of the Conservation Commission have to deal with acquisition of property. Alderman Pressly Just a confirmation that the intention of the law is as I stated. James McNamee, Esq. I… Alderman Pressly From what you just read? Bd. of Aldermen – 07/12/11 Page 24 James McNamee, Esq. …don’t recall what you stated, but the intention of the law is I believe reasonably what I just stated. President McCarthy Could you repeat the section you read to us? James McNamee, Esq. The section in the conservation section, which is RSA 36-A:4 enumerates the powers. The powers that are specifically enumerated involve the acquisition of property by gift, purchase, grant, bequest, devise, lease, otherwise, etc. At the end, it indicates also that it has a…it broadens the language a bit to indicate that can be to limit the future use of or otherwise conserve and properly utilize open spaces and other land and water areas within their city or town, and shall manage and control the same. President McCarthy I have a somewhat broader question. From looking at it, the intent of the statute is that the money gets put into the fund and can be spent directly by the Conservation Commission without approval from the governing body… Alderman Pressly I don’t think so. James McNamee, Esq. Correct. For the purposes enumerated in this statute that I was just reading. President McCarthy But, the legislation that is in front of us actually contemplates a transfer, not expenditure by the Conservation Commission, but a transfer out of the fund and into a general operating account. James McNamee, Esq. So your question is whether or not that constitutes an expenditure by the Conservation Commission? President McCarthy Correct. James McNamee, Esq. I think it is reasonable to consider that it would be because they have control of those funds. President McCarthy Your opinion then would be that we are authorized to expend money on this if we choose to out of the conservation fund? Bd. of Aldermen – 07/12/11 Page 25 James McNamee, Esq. Because the Conservation Commission has made that determination, I believe that they broadly interpreted their powers under this statute, and you, therefore, could accept that money in transfer. President McCarthy Okay. The motion on the table is that of amending, changing account 372-7007 “Nashua Conservation Fund” to 591-86005 “Contingency General”. Discussion? Alderman Clemons Thank you. I would just like to respond to something that was said earlier by Alderman Pressly. That was that the river somehow benefits the property owners who live along it, and while I wouldn’t disagree with that necessarily, I would say that the river also benefits the population in general and so to create some kind of a tax or a levy on somebody who happens to own property along the river I think would be an unfair characterization of the multiple use that the river gets. Further most of the time these invasive species come from people who utilize the river who don’t own property on the river or lake or body of water, it is often times carried in by boats from those day use folks who go in and use the river for the day and come out. What happens is they come in, they didn’t clean off their motor or whatever at home or the hull of the boat and they are carrying fragments of these species, they go into the new water and introduce them there. That is how these things get spread around. Part of this is going to have to be, in the future, is going to have to be monitoring the boat launches and making sure that we have somebody there like in the lake host program that they do in the State where we are monitoring that and making sure and we are checking people’s boats and saying if they have these species on there hey you can’t go in the water until you clean it off. The river is used by many; it is enjoyed by many, much more so than those that just live along it. I think this is something that the community has to; we have to get a grip on these things. These invasive species are awful and they make it impossible for one to enjoy the beauty of the river. I can certainly support using the conservation money towards that because I think, as was stated earlier, it beautifies or manages the open spaces that we have in our city, and that is certainly one of them. I would support doing that but not using contingency. Alderman Tabacsko I wanted to double clarify one thing because I intend to vote against the amendment and vote for the original piece, but I want to ask Attorney McNamee, if I may through you, two things; that the use of this money from the conservation fund in general is an acceptable use and that the Conservation Commission in voting to do so acted properly in your legal opinion. James McNamee, Esq. Yes I think it is a reasonable interpretation of their authority under the statute to have taken the action to authorize expending the money in that fashion. Alderman Tabacsko Thank you. Bd. of Aldermen – 07/12/11 Page 26 Alderman Sheehan Thank you. I just wanted to touch, I also agree with using the commission money to make up part of this. Manage and control open waterways I think is the key. You can buy something or you can have something, but unless you take care of it, it isn’t there to stay. I can see where Alderman Pressly is coming from and I appreciate, it sounds like a similarity to the view tax they were talking about out in the western part of the State, but my last home was on a river and I looked at a very similar one that was not on a river, and the town I lived in did get an extra tax because the house was worth more, and so I paid more and I paid more property taxes. Additionally, I had to learn to take care of my part of the river. Much as you said the Mayor lives on it and she is familiar, you do, you get familiar when you are an owner, but there are just some things you cannot control, and someone else already spoke to it, and it is the things that come in on the bottom of the day boats. I think it is important that we take care of this. I think conserving this open waterway falls under conservation so I am not going to support the amendment. I respect the idea that you had with the view tax is what I would call it, but I think the way that it has come in is the best way to do it tonight. Alderman Pressly Couple of things; first I challenge the attorney’s interpretation. I think he is stretching it. I think the intention of the fund was very very clear and this is a small sub-section that they have found a loophole to do what they want to do, and I challenge that interpretation. I would also like to respond to Alderman Clemons; I believe I made it really clear, our river ways, our Nashua River is the reason we are here. That is the reason this community was developed. It belongs to all of us and we have to take care of it. What I have been told is that the people who live along the river are responsible, and so you just confirmed that with your experience in another community. This amount of money isn’t going to do much. It is like a little mosquito bite. This is not going to solve the problem facing our rivers. If this makes you all feel good to do the walnuts and to take from the fund that was intended to buy, we have other monies, and I would like to take note that when we went into recess the Mayor left and so did the City Attorney, and that I found… President McCarthy And when I found the City Attorney… Alderman Pressly …a little bit distressing. President McCarthy …he was coming back from his office where he went to get the RSA book that he has in front of him now. Alderman Pressly I know that. I just think it is a manipulation of… President McCarthy That was the purpose of the recess… Bd. of Aldermen – 07/12/11 Page 27 Alderman Pressly …the intention of the laws… President McCarthy …was to allow him to… Alderman Pressly …we have other money… President McCarthy …get those books. Mayor Lozeau Mr. President … President McCarthy I’m going to recognize Alderman Melizzi-Golja first. Alderman Melizzi-Golja Thank you. I was looking at the RSA also, and first of all I hate to second-judge the Conservation Commission. I respect them and I think they have done good things for this City. As I look at 36-A:2 Conservation Commission, it talks about establishing a Conservation Commission called the commission, for the proper utilization and protection of the natural resources, and I think that is exactly what this is. I think we all recognize that the river is one of our greatest natural resources, and we also recognize what not only Water Chestnuts and other invasive species do to that natural resource, and in my mind this is an appropriate use of this if we are looking at protecting what I think all of us have stated is a natural resource for this City. I will not support the amendment based on that RSA. Thank you. Mayor Lozeau Thank you Mr. President. Although I don’t believe I owe anybody an explanation of whether I was talking to the City Attorney or not, which I think all of us should be able to speak to him at any time, I left the room because as I mentioned in my earlier comments, Director Hersh presented to the Conservation Commission the language that they requested after I went to the first meeting because they too were interested in knowing whether or not funds could be used for this purpose. I went to my office, called Director Hersh at home, and I asked her if the minutes were posted yet from the Conservation Commission meeting so I could know the language that she read to them in the meeting that I was unable to attend, that second meeting when they took the vote. She gave me the site, I printed it off, walked back in the room, I handed a copy to the President, and I kept a copy at my desk. I read it the same way Alderman Melizzi-Golja did, which said that their job is the protection of the natural resources. It goes on in that Chapter, 36-A, to talk about marshland, swampland, all kinds of different things. When the Conservation Commission was read this letter, legal hadn’t weighed in on it at all. Director Hersh simply brought them the language, read it to them at a meeting, they had a discussion, the made a decision, and they voted to spend the money this way. It never occurred to me that Bd. of Aldermen – 07/12/11 Page 28 it would be a problem at all Alderman Pressly. I’m just trying to find a way to creatively solve some of these problems. I think the Conservation Commission using some of their dollars and the Mine Falls Committee using some of theirs to do an immediate response to something that is right there makes perfect sense. Whether it is the right thing to do long-term going forward, whether we should be looking at the big dollars coming from there, I think that is a discussion for another day. Alderman Clemons Thank you. I would just only say that the Nashua River is a State Right-of-Way, and although the property owners on the river have an interest in it, the interest of the river itself, the water body is that of the entire community and the State and we need to, in my opinion, get behind an effort to clean up the river. That is with or without the property owner. The reality is the problem is not resonating from property owners the problem is resonating from those that use the river on a daily basis for the day. Alderman Pressly Just for the record then if I understand it correctly, we recessed so the Mayor could go to her office and make contact regarding the debate that is on tonight, and the City Attorney left to go to his office to do research. I just find it really interesting that the Mayor and the City Attorney have been so active in the debate of this governing body. When I served over 20 years ago, I don’t think the Mayor hardly ever said a word when we were discussing the issues before us, and I just think it needs to be recorded…did I understand you correctly that you left the room to contact Ms. Hersh? Mayor Lozeau Of course you did. That is what I said… Alderman Pressly Okay good. Mayor Lozeau …I wanted to make sure I had the right… Alderman Pressly Just so you understand… Mayor Lozeau …chapter to… Alderman Pressly …so I mean I guess we all should be able to leave and contact people to have a debate as we are doing it. I just think it needs to be noted. I think it needs to be noted. MOTION BY ALDERMAN LAROSE TO MOVE THE QUESTION MOTION CARRIED Bd. of Aldermen – 07/12/11 Page 29 President McCarthy The previous question was that of amending R-11-137 by replacing 372-7007 “Nashua Conservation Fund” with 591-86005 “Contingency General”. MOTION FAILED President McCarthy The motion before us is that of final passage of R-11-137. Alderman Deane I am a little bit disappointed that I am of the belief this board has found yet another well to drain. It wasn’t the intended purpose of these funds. I remember years back looking at them. Contrary to whether you agree with me or not is one thing, but this just opens the floodgates up. Lord knows what we will be spending this money on next. Alderman Pressly I would just like to say that $21,300 is not going to do much to clean up our beautiful rivers, and I think we need to start looking long-term and start finding a way to involve everybody, but particularly the people who live along the river that are responsible for it and they don’t even know it. If you think this is going to be a great thing for the City by all means take it from any fund you want. But this is not going to solve the major problem of the invasive species along the river. Alderman Cookson Thank you. I was just curious; if the $21,300 gets expended from Account 372-7007, how much money is remaining in the conservation fund? Alderman Deane $1.8 million. Alderman Cookson Thank you. Alderman LaRose Thank you. Yes this is a short-term project, but it was stated that there is going to be a four year study. This isn’t just to get rid of this. There is no way that today we can say we’re going to clean up that river and know what we are doing. We need to do the preliminary work first before we do the hard work. It is know that we can take care of the chestnuts now. We have a short period of time to do it. Let’s get that thing done, and continue to work towards rehabilitating the rivers. Alderman Clemons Thank you. I would agree with the previous speaker, and I will only add to that being an avid I guess you could say fisherman I guess, but I don’t know how successful I am, but in any case, being someone who uses New Hampshire’s lakes and waterways quite often, I am very familiar with the invasive species problem, and the Nashua River, as far as the State goes, is probably the worst off of any body of water in the State. It is a terrible problem and I agree that $23,000 is not going to do much, but it will take care of the Bd. of Aldermen – 07/12/11 Page 30 chestnut problem in the interim and we have to start somewhere. Since we know that this is something that we can accomplish, I think this is a good use of funds. My only hope is that in the future we can come up with a plan that can tackle some of these problems. It is going to have to be a regional solution. It can’t just be Nashua. Unfortunately, the river flows into many different municipalities and so because of that it is a unique problem and probably one of the reasons why the Nashua River has that invasive species problem. Most of the time it is contained to lakes, which are within one municipality so if you have a problem in one lake you can take care of it and obviously the responsibility is going to fall upon that municipality. Whereas it is a river that flows from one community into a different state and then several other communities, we have an obligation to work with them and try to solve this problem. Again, I think this is something that is very important to do. I can attest to the fact that the canal is full of these things. The canal is right behind my house and it is awful. You can’t even take a canoe or anything in there anymore. It is sad. And yes I support wholeheartedly taking this money and trying to tackle this one problem. Do we have more, yeah we do, and we have our work cut out for us, but I think that this is the right use of these funds, and I fully support it. Alderman Vitale I will support the resolution, as it is written, today, and I don’t believe the question is whether the Water Chestnuts need to be harvested or anything like that. I think we all are in agreement of that. I think the question lies solely with the use of the funds from the conservation fund, which normally is used for the purchase of lands to keep as green space. Although I know, having sat on the Conservation Commission, there were many many discussions regarding invasive species and how to take care of them, I do not remember offhand in the six years that I was sitting on the board, if any of those funds were used for that, but I do know that it was discussed almost at every single meeting with anybody that was doing any type of work at all. I can see where the Conservation Commission probably did question whether this was a good use of the funds, and I can see where they all made the decision to go ahead and support that recommendation. I would probably have agreed with that had I sat on the commission now. I will agree with it as it stands with this resolution. I can understand Alderman Pressly questioning the intent that she originally had, and I would think that because we know the Water Chestnuts are going to be an ongoing problem along with other invasive species, that it is something that we should look forward to in the upcoming years and find a mechanism that would be agreeable to all moving forward. But in the meantime, we do have a limited amount of time to harvest them, and I will support the resolution. Thank you. Alderman Pressly Just to clarify what the former speaker just said, if I understand you correctly, having served on this commission this invasive specie problem has been brought up many times and the commission, when you served, resisted tapping into the conservation fund or you talked about how to do something with it, but if I understood what you said correctly they did not invade the conservation fund and the purpose to buy open space while you served. Is that the correct interpretation of what you just said? Alderman Vitale No that is not what I said. I said we discussed invasive species many times and dealt with them all the time. I do not remember in all of the minutes of those years if we actually used the fund. We very well could have Bd. of Aldermen – 07/12/11 Page 31 in the past used the fund. It is a problem in many areas and it is one that you have to be diligent on and take care of on a yearly basis. I don’t remember, but I do know that it was discussed, and I can understand had we been approached at various times back then, I can believe that we would have used the fund had we been asked because of that being that type of problem, but I can’t say, I don’t remember, and I don’t have copies of anything. But I’m just speaking as somebody that sat on it, knows discussions that took place, and knowing what type of problem it is, and I can understand where, as the opinion was stated before, where it would fall under that jurisdiction. Alderman Pressly Well that might be interesting to look into that because I have the impression that the Conservation Commission has resisted getting into the sub-sections that Attorney McNamee has been able to discover that we can use it for. It is unnecessary, it sets precedence, and I think it is absolute foolishness. There is other money. We just have another legislation for $5,000 contingency so do as you are…a lot of you people just came up with this great idea to charge people downtown extra money to take care of our downtown, maybe you can come up with something similar to that since those of you who have served longer than I and you talk about this being a problem for years and years, maybe it is time for some good ideas to come forth from other folks. Thank you. Alderman Sheehan Thank you. I have read a lot about current use and what drove this process, but my feeling is that when this legislation was invented or crafted 25-30 years ago you said, that in a lot of areas it very quickly built up stockpiles and they probably bought a lot of open land and then realized they didn’t have the funds to maintain it. I would think that over the years that this has possibly been amended to allow the use of this sort of evolution of the Conservation Commission. I know you have an understanding of what you had intended when you originally crafted legislation, but at the State, much like here, nothing is forever. Things can evolve, things can change, and that is probably what has happened. I think this is a good use for this. I would like to also move the question, and go from there. Alderman Deane Point of Order; that motion is out of order… Alderman Pressly That is an illegal motion. President McCarthy I won’t accept the motion to… Alderman Sheehan Okay. President McCarthy …move the question after speaking. Bd. of Aldermen – 07/12/11 Page 32 Alderman Sheehan Okay. Alderman Pressly Just to say, Attorney McNamee read the intent, he just found some other ways to go around it. There is no doubt at all. I get calls from other towns all the time wanting to know the intent, and the intent of this legislation was very clear. If we want to go around it, fine, do that. President McCarthy Is there any further discussion of the motion for final passage? A Viva Voce roll call vote was requested, which resulted as follows: Yea: Alderman Clemons, Alderman Vitale, Alderman Craffey, Alderman LaRose, Alderman Tabacsko, Alderman Melizzi-Golja, Alderman Sheehan, Alderman Chasse, Alderman McCarthy 9 Nay: Alderman Deane, Alderman Pressly, Alderman Cookson 3 MOTION CARRIED Resolution R-11-137 declared duly adopted. PERIOD FOR GENERAL PUBLIC COMMENT James Cutter, 86 Palm Street Open letter to Alderman McCarthy: Dear Alderman McCarthy RSA 676:11, Building Permits Required, Ordinance 190-268, Building Permits and Land Use Permits, RSA 626:3, Effect of Ignorance or Mistake, and RSA 627:9, Curtilage, are the laws that pertain to our problem and need to be honored. In review, our problem originated with an 88 Palm Street building permit plot plan approved by a building inspector/public servant that did not match the Deed. After a building permit is approved, it is sent to the Assessing Department that checks the permit against the Deed. If they do not match the Assessing Department is supposed to contact the building inspector. Instead, they changed the 88 Palm Street tax map to 53.7’ from 51’ and the 86 Palm Street tax map from 30’ to 27.3’ along Palm Street. Plot plans, Tax Maps and Deeds must agree. All we want is a letter from the City to our neighbors stating an error was made on the 1950 and 1971 building permits plot plan and they would have to remove their fence, etc. and return our 3’ wide strip of property known as Curtilage to us at 86 Palm Street. This letter along with our letter on file leaves no doubt and no debate the City made the errors to cause our problem. I have down below an explanation: 53.7' equals 53' 8", less 3’, equals the actual 88 Palm Street footage is 50’ 8”. The 88 Palm Street Deed footage of 51’ less 50’8” is 4”. Surveyors found a gap between 86 and 88 Palm Street of 2’8”. The width taken from our driveway, 2’8”, plus 4” is 3’. Utility pole #17 is l' wide. It was originally placed on the south side of the property line and when replaced in 1974 it was placed another I' to the south, making it 48'8" from Buck Street. Confirming the footage namely l' plus l' plus 48'8" is 50'8". As you see it matches the explanation above. Bd. of Aldermen – 07/12/11 Page 33 On the back of this, I have Curtilage: RSA 627:9; Curtilage means those outbuildings which are proximately, directly and intimately connected with a dwelling, together with all of the land or grounds surrounding the dwelling such as are necessary, convenient, and habitually used for domestic purposes. We find in the State of New Hampshire vs. Edward Pinkham, Derry District Court No. 90-068, dated July 16, 1996 the following: On page 1: The sole issue we need to address on appeal is whether Part I, Article 19 of the New Hampshire Constitution or the Fourth Amendment of the United States Constitution applies, etc. On page 2 and I won’t read the whole thing because you have it with you, but I want to read the very last part of it: the driveway is part of the curtilage of the home. Thank you. REMARKS BY THE MEMBERS OF THE BOARD OF ALDERMEN Alderman Cookson Thank you. I just wanted to let Dick’s family know that our thoughts and prayers are with them, and that we all recognize that Dick is in a better place after a very hard battle. He will be sorely missed. I am proud to have called him a colleague. I’m even prouder to have called him a friend. Thank you. Alderman Chasse My condolences to the Flynn family also. I just want to make this really brief; we brought R-11-137 to the table because of some Water Chestnuts. I know there is a time constraint on this one; we beat it up for over an hour for final passage. These belong in committee. They don’t belong up here… Alderman Pressly Thank you. Alderman Chasse …I know there is a time constraint on this particular one, but I want to say that every one of the Aldermen, from the Mayor to anybody who puts legislation in ought to make sure that it has time to go down to the committees. We put Corporation Counsel on the block tonight, he had to go down to his office and get some special books to get a ruling. This is not right. This should have gone down to committee, the committee could have said well we need something from Corporation Counsel, the Chairman says what they need for the ruling. I ask all of my colleagues and the Mayor or whoever puts legislation in make sure you have time to get it down to the committees and let the committees work at it. Thank you. Alderman Sheehan I would also like to express condolences to the Flynn family, and remind the people of Mt. Pleasant that we have our Infrastructure meeting tomorrow night with the hearing for the traffic changes around. After I go to the services, I will be at that. It is 7:00 p.m. here in the Chambers. Alderman Melizzi-Golja I would like to also express my condolences to the Flynn family. I met Dick when he was out campaigning the first time, and we got into a very healthy debate in the hot afternoon sun talking about education funding. I have always enjoyed my conversations with him, and he will be missed. Bd. of Aldermen – 07/12/11 Page 34 Alderman Tabacsko Thank you. I would also join everyone in expressing condolences to the Flynn family. I will let other people speak more eloquently than I can. Alderman LaRose My condolences to the Flynn family. Alderman Pressly I not only lost a colleague I lost a Ward Alderman. He was my Ward Alderman, and I first met him when he came door to door. He was really a very conscientious, a very thoughtful, thoughtful person, and I certainly will miss him. My fondest regards to the family. Alderman Deane Thank you. It is a shame that Dick has passed, but he is better off. He had a hell of a last couple three weeks. I was privy to what was happening. I didn’t share it because the family is very private and they didn’t want things shared with anyone. Dick was more than a numbers guy; he was more than a spreadsheet guy. He was very fascinated with numbers. A lot of his hobbies when you talk to some of his kids, Dick would do all of the fantasy football and he would do everything by hand before the Internet started doing it. I was talking to one of Dick’s Son’s friends and he would say they would sit around a room, they would get everything all set up, Dick would do all of the fantasy football, and by the time they got done Dick would always have the best team and the rest of them couldn’t figure out how it happened because he was trading away players and points. They said the computer and the Internet finally coming up with a way to regulate it and devise the team strengths, finally gave everybody an equal opportunity because Dick knew what he was doing. He enjoyed life, he enjoyed his Grandchild. He was a very interesting fellow. I always enjoyed his e-mails. We had a usual Wednesday morning as I see it e-mail after every full board meeting. We did that for about 5 years. It used to get his Wife rolling around on the floor laughing when she was reading them. He was a good friend and God rest his soul. Alderman Craffey Thank you. I just want to offer my condolences to the Flynn family also. Thank you. Alderman Vitale Tomorrow at 6:00 p.m. I have a Ward 1 Constituent Coffee at the Starbucks at Exit 6. I would also like to give my condolences to the Flynn family; his Wife and his children. You could always tell when he would speak that he was very proud of them and he was definitely a gentleman. Alderman Clemons My deepest sympathies are going out to the Flynn family as well. Alderman Flynn I only knew him from this board, but the time that we served together was well, and although we didn’t always agree we certainly got along outside of the meetings. He will be missed. Again, my deepest sympathies to the family. Bd. of Aldermen – 07/12/11 Page 35 Alderman McCarthy I too would express my condolences to the Flynn family. I certainly developed an appreciation for Dick’s understanding of the issues that came before us, and enjoyed talking to him outside of the meetings about our common interest in the New England Patriots among other things. He will be missed. Alderman Clemons One other thing that I forgot to mention; I wanted to wish our board President a Happy Birthday, which is coming up on July 26th. President McCarthy And that is why we do not have a second meeting in July. I will also express Birthday wishes to Alderman Cox on the 15th and Alderman Wilshire on the 17th who seem to have found another way to avoid the problem. Alderman Deane It is the intention of the board to have an Infrastructure Committee meeting tomorrow? President McCarthy I’m willing to entertain debate on that. I would cancel it in a heartbeat if it weren’t for the fact that I don’t think we can inform all of the members of the public that are expecting it to happen that it is not going to happen, and I don’t know how to tell them when it is rescheduled to because it is groups like the Mt. Pleasant parents… Alderman Deane Aren’t they all on Facebook or some other sort of social media? President McCarthy I don’t know how they were informed the first time. I also don’t know how the notices were sent out for the street acceptance hearings. My experience is we get very little response for street acceptance hearings so I am not terribly worried about that. Alderman Deane The last street acceptance Mr. President that we had where there was any great debate was down on the west end of town, which Alderman Tabacsko can attest to. Other than that, in my years of sitting on that Infrastructure Committee, I think we have had one other person show up for street acceptance. My feeling is that if people in this community don’t understand what just happened in this room, I believe that out of respect for Dick and his family, if they don’t get that then they have problems. You as Board President should just pull the trigger and cancel the meeting and call it a day out of respect to Dick and his family. That is just my opinion. President McCarthy I do agree with you and I believe that we will do that. Bd. of Aldermen – 07/12/11 Page 36 Alderman Deane Thank you very much. President McCarthy I will work with Sue to post some notices here tomorrow to the best of our ability, and we will figure out how we recover from whatever the notice requirements are, but I do agree with you that out of respect for Alderman Flynn I would certainly, I want members of this board to be able to attend the services tomorrow evening, and let’s just go ahead and cancel Infrastructure for tomorrow. Alderman Pressly Thank you Mr. President. Alderman Chasse Is there some way we can get it on Channel 16? I don’t know if we can put in an update saying due to… Mayor Lozeau I will take care of it. Alderman Chasse Due to circumstances beyond our control or something like that…somebody can dress it up. Mayor Lozeau I will dress it up too. President McCarthy As soon as we adjourn I will try to get a hold of who I can… Committee announcements: Alderman Clemons The Personnel/Administrative Affairs Committee will meet on Thursday evening in these Chambers at 7:00 p.m. Alderman LaRose The Human Affairs Committee will meet next Monday the 18th. Alderman Deane The Budget Review Committee will meet on the 21st of this month. Thank you. President McCarthy Are there any other committee announcements? Bd. of Aldermen – 07/12/11 Page 37 ADJOURNMENT MOTION BY ALDERMAN LAROSE THAT THE JULY 12, 2011 MEETING OF THE BOARD OF ALDERMEN BE ADJOURNED MOTION CARRIED The meeting was declared adjourned at 9:30 p.m. Attest: Patricia Piecuch, Deputy City Clerk  Nashua Police Department Panther Drive; P.O. Box 785 Nashua, NH 03061-0785 Phone (603) 594-3500 Main Fax: (603) 594-3516 Donald F. Conley Administration Fax: (603) 594·3615 DelecUve Bureau Fall: (603) 594-3616 Chief of Police Legal Bureau Fax: (603) 594-3571 July 12, 2011 Alderman McCarthy, President Board of Aldermen City of Nashua Dear Alderman McCarthy: The purpose of this correspondence is to provide you with a "snapshot" of time relative to both police service and police activity in our community during the 4th of July weekend. When we picture lhe 4111 of July. most of us develop thoughts of family cookouts, fireworks at Holman Stadium, parades, and a host of other very positive activities. However, I would like to provide you with a clear picture of how bUsy we are as a community and what else occurs during a long holiday weekend. As part of our yearly bUdget review and aldermanic bUdget presentation, the department provides the Board of Aldermen with very important information inclUding data relative to crime, traffic, arrests, and statislical information, which is important for you to know and hopefully is helpful to you when making very tough decisions relative to spending tax dollars. The information we provide annually is a compllalion of a full year's worth of acllvity, but it is also important to see what does happen dUring any three to four day period of time within our communily. As I stated, the department provided services and assistance to the cilizens of Nashua and also to the greater Nashua community in many ways during the 4111 of JUly holiday. These services significantly impact our budget and officer availability. You might be surprised to see just how demanding this period was and how proactive the department continues to be. The department provided the necessary traffic assistance before and after the holiday events and the necessary security during the fireworks display. In addition, we assisted with the road race and various other community related activities. However, during the July 4th holiday. calls for service increased by 20% from 2010 to 2011 with a total of 1326 calls. Motor vehicle stops also increased during the 4th of July holiday by 23% from 2010 to 2011 with a total of 435 motor vehicle stops. We responded to two robberies, several burglaries, an arson at Fairgrounds Middle School, and several assaults. Sixty three arrests were made for the robberies, arson, burglaries. assaults, and a host ~ '.r~~a~~~ i~» A NATIONALLY ACCREDITED LAW ENFORCEM NT AG NCY .~. Board of Alderman July 12,2011 Page 2 of 2 of other crimes· all of which impacts the quality of life for you and our citizens. Please take a moment and review the attached document which details the activity. The cost associated with the holiday period will be approximately $25,000 in overtime. This Is expensive but, as you can see, there is much to do when tasked with safeguarding our city. Donald F. Conley Chief of Police OC:emm cc: Board of Aldermen Mayor Donnalee Lozeau Deputy Chiefs of Police Police Commissioners  Nashua Police Department Crime Analysis; July 12, 20 1 Calls For Serv;ce Tb's analysis represents all activity that was reported to Nashua PD between July 1,400 r - - - - - 1-4 of 2009,2010, and 2011. 1.300 1.165 1,200 1.100 ALL.." FOR SERVICE 1.000 Calls for Service in 2011 were the highest seen in 900 the past 3 years, increasing 20% from last year 2009 2010 2011 during the same time frame. MV Stops MVSfOPS 2011 represented the highest count of motor vehicle stops during the time period over the past three years, with a 23% increase from last year. AC IDE~'TS Accidents remained relatively the same, with a 2010 2011 slight decrease (4 accidents) from last year. Offenses/Field Interrogations OFFENSES/FIELD I~TERROGATIONS Police responded to 34% more offenses and 60 _ _ _ _ _ _ • _ _ ·r __.'. 55 _ field interrogation reports than they did during 50 the same time last year. ;\0 30 20 Police investigated a total of 13 felony crimes 10 o (including arrests) during this time period in 2009 2010 2011 2011. Arrests ARRESTS There were 40% more arrests in 20n than the same time last year. 80 - - - - - - - - - - - - - - - - - - - - - - - . - 61 63 60 40 NOTE: Please note that this analysis only 20 includes incidents reported betwe~n 7/1-7/4. Crimes that occurred during this time period may o be reported sometime afterwards and are 2010 2011 consequently not included in this analysis. James B. and Mary E. Cutter 86 Palm St., P.O. Box 69 Nashua. NH 03061-0069 July 12, 2011 Alderman-At-Large Brian S. McCarthy, President and Board Of Aldermen City of Nashua OPEN LETTER. Dear Alderman McCarthy, RSA 676:11, Building Permits Required, Ord. 190-268, Building permits and land use permits, RSA 626:3, Effect of Ignorance or Mistake and RSA 627:9, Curtilage are the LAWS that pertain to our problem and NEED TO BE HONORED. In review, our problem originated with a 88 Palm St. building permit plot plan approved by a building inspector/public servant that DID NOT MATCH THE DEED. After a building permit is approved it is sent to the Assessing Dept. that checks the permit against the deed. If they 00 NOT MATCH the Assessing Dept. IS SUPPOSED TO CONTACT the building inspector. INSTEAD, they changed the 88 Palm St. tax map to 53.7* feet from 51 feet and the 86 Palm St. tax map from 30 feet to 27.3 feet along Palm Street. PLOT PLANS, TAX MAPS AND DEEDS MUST AGREE. All we want is a letter from the City to our neighbors stating an error was made on the 1950 and 1971 building permits plot plan and they would have to remove their fence, etc. and return our 3* foot wide strip of property known as Curtilage to us at 86 Palm Street. This letter along with our letter on file leaves NO DOUBT and NO DEBATE the City made the errors to cause our problem. Thank you, ~-=- (*) Explanation. 53.7' = 53', 8" less 3' = actual 88 Palm St. footage is 50' , 8". The 88 Palm St. deed footage of 51' less 50', 8" is 4". Surveyors found a gap between 86 and 88 Palm St. of 2' , 8". The width taken from our driveway: 2', 8" plus 4" is 3' Utility pole #17 is l' wide. It was originally placed on the south side of the property line and when replaced in 1974 it was placed another I' to the south making it 48', 8" from Buck St. confi.rming the footage(i.e. l' plus l' plus 48', 8" is 50', 8"). (Over)  C.URTILAGE RSA 627_:9 . ", .' J. 1I11t:W'liiagell means lhose oUlbuildings which nre proximately,· directly and !nt{maleJy,~ohne~ted with a ~\vi:}.ling, together wilh nlllhc land or grounds surrounding the dwelling 'such us arc IlccesslU')',' convenient, Bnd hnbilually used for domestic purposes. . . We find in THE STATE OF NEW HAMPSHIRE v. EDWARD PINKHAM, Derry District Court, No. 95-068, dated July 16, 1996 the following. On Page 1: Th'e s<;>le issue we need to addess on appeal is whether part I, article 19 of the New Hampshire Constitution or the fourth ~endment to the United States Constitution applies, etc. On Page 2: liThe curtilage includes those outbuildings which are directly and intimately connected with the h~bitation and in proximity thereto and the land or grounds surrounding the dwelling which are necessaiY and convenient and habitually used for family purposes and caoying on domestic erriplQ}'ment. i' State y. Hanson. 113 N.H. 689.690-91,313 A.2d 730, 732 (1973) (emphasis added; citatibn~.9n,r~ted); see also Pinder, 128 N.H. at 74,514 A2d at 1246. The Criminal Code defines ourtil~ge ·similarty for purposes of establishing the amount of forae one,may use in self-defense. RSA . 627:4, :9, I (1986). A driveway leading directly to a house clearly faUs within the scope of·'land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purpose~ and carrying on domestic employment." Hanson. 113 N.H. at 690=91, j 13 A2d.aCf32. As such: ~e driveway is part ofthe curtilage of the home. .'