Board Enlists Town Attorney To Look Into Zoning Question; Residents Offer Feedback On Casella Proposal
Caledonian Record, Published September 12, 2020 by Robert Blechl, reprinted with permission
One week after Casella Waste Systems made its formal offer of $71 million over 25 years to the town of Dalton in support for a landfill beside Forest Lake State Park, selectmen took their next step — looking into the zoning question.
Since July 2019, Dalton has had temporary emergency zoning (coming out a special town meeting in 2019 in response a possible landfill), and the Board of Selectmen on Wednesday voted 3-0 to enlist the town attorney to look into the zoning application process.
“In terms of our next step as a board, I want to make sure that we are representing the town and the town is well-represented,” said Jo Beth Dudley, chair of the Dalton Board of Selectmen. “I think the next step is deciding whether [the proposed landfill] requires a zoning application or not.”
She read a Sept. 1 letter from the Casella engineer, John Gay in response to the zoning question, in which Gay said the “question about zoning, as we understand New Hampshire law, with landfills the NHDES [New Hampshire Department of Environmental Services] has exclusive authority over those areas that would usually be in a town’s zoning review. That’s why we weren’t prepared last night to discuss local zoning.”
One of the reasons Casella proposed the host community agreement (HCA) is because the company recognizes that state regulations preempt almost all local regulation, and under the HCA, Casella can create ways for the town to participate in state permitting that otherwise wouldn’t be possible, said Gay.
Dudley, however, said when she reads the state regulations, the zoning question isn’t entirely clear and an opinion by legal counsel should be the next step.
On a question about zoning during a July 23 update on Casella’s proposed landfill expansion in Bethlehem, where it operates as North Country Environmental Services (NCES), and on its current plans for Dalton, Mike Wimsatt, director of DES’s Solid Waste Management Bureau, said towns do have a degree of authority.
“The state of New Hampshire has primacy with respect to how a facility is sited, designed and operated under state law,” he said. “However, the courts have held very specifically in a couple of cases that a community has a right to determine through properly enacted zoning where a solid waste facility may be located in a community.”
In the 2004 New Hampshire Supreme Court case NCES vs. town of Bethlehem, the NHSC justices, citing RSA 149-M, the state’s solid waste management statute, said “State law preemption of local regulation of solid waste management facilities must be the norm, not the exception” and DES has authority over a landfill’s height, design and footprint, but that municipalities with zoning do have some authority, including not only regarding the location of a landfill, but the size of it.
The NHSC justices ruled that 149-M did not prevent the town of Bethlehem, which has zoning, and would not prevent any other town from prohibiting the development or expansion of a landfill outside of a zoned landfill district.
Casella is looking to build a new landfill in Dalton, one proposed to have a 137-acre footprint, after Bethlehem voters twice rejected the company’s proposal to expand Bethlehem’s current 61-acre landfill district by another 100 acres.
“A plain reading of the statute is that RSA chapter 149-M does not preempt lawful, applicable local regulations that are consistent with State law,” wrote the NHSC justices.
The Dalton Planning Board is advancing a permanent zoning ordinance that could be presented to voters at the 2021 town meeting. Public hearings on the proposed ordinance are expected to begin in October.
Dalton selectmen on Wednesday voted to ask legal counsel to look into the time line process with zoning and get a better understanding of it in conjunction with the HCA and Casella’s permit applications with DES.
To cut down on legal expenses, Dudley said the town attorney at this point is not yet being asked to read and digest the HCA, and she suggested the town enlist a contract attorney if or when it becomes time to look more closely at the HCA.
Residents: Don’t Sign In Haste
Several Forest Lake residents gave their feedback on the proposed HCA, and all expressed concerns.
“There are some concerns I have about the host community agreement, and I certainly agree that it’s impossible to evaluate the potential benefits for the community until we have some idea of what the project is with its own benefits and harms,” said Dalton resident Adam Finkel. “It was a little unnerving to see a legal document with some space for signatures for our [selectmen]. I certainly assume there will be no signing of that until at least there is something to compare it to.”
In written comments to selectmen, part-time Whitefield resident Eliot Wessler said the HCA is “riddled with loopholes and ambiguities, all in Casella’s favor.”
“Some people in Dalton seem to think that Casella is offering the town a great deal — the promise of $71 million over 25 years,” wrote Wessler. “But the experience of other host communities is that it’s just not worth it. Dalton residents need to look no further than Bethlehem to find lots of examples of Casella’s broken promises, and examples where Casella’s ‘host benefits’ have been eaten up by attorney’s fees from endless litigation, and the costs of environmental and economic damage to the town.”
Part-time Dalton resident Erik Johnson said, based on his experience as a technology expert at large companies reviewing hundreds of millions of dollars in contracts through the years, he is concerned because the HCA is not just a proposal, but a document with a space for signatures.
“What I would recommend the town to do, if for some crazy reason this contract were to move forward and the town were to justifiably want to negotiate rather than just accept what is handed to them by Casella, is hire a good contract attorney to negotiate terms rather than just accept what’s there,” said Johnson.
Negotiating quality-of-life, service-level agreements would be critical to the success of both the town and Casella to ensure the company is held to its obligations and there is financial remuneration to the town, above and beyond the normal payment for the use of the property that Casella is asking for, he said.
Johnson noted that two Casella representatives were on Wednesday’s remote meeting and said the company can take his recommendation as professional advice.
Listening remotely, but not speaking were Rebecca Metcalf, outreach coordinator for Casella, and Bryan Mills, enlisted by Casella as a public relations consultant and working for a company called Five Corners Strategies, which, according to its web site, specializes in “creating and managing grassroots public affairs campaigns.”
Dalton resident Jon Swan said for Dalton to save legal fees selectmen should not delve into the intricacies of the HCA until Casella submits a zoning application for town approval.
“It’s kind of like the cart before the horse,” he said.
The town does not yet have a total cost estimate to date of how much money has been spent from the municipal legal budget or other areas of the budget on Casella-related matters.