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From Elana Baron
Dear fellow Walpoleans,
Please accept this response to Attorney Hanna’s letter as my final thoughts on why I will be voting “no” to Article 3.
I respectfully disagree with Attorney Hanna’s opinion, retained by and writing on behalf of Mr. and Mrs. Winmill. To be frank, his analysis is flawed. Before I explain why, it would seem there are two preliminary issues that need clarifying:
- I am an Attorney. However, my March 14, 2023 opinion of Article 3, and this one, are my own opinions. I did not write them on behalf of a secret client nor is it the opinion of my office, Bragdon, Baron & Kossayda, PC. I am simply offering my view, as a Walpolean, of how the language of Article 3 can be interpreted. My view, and no one else’s.
- I used a small local maple syrup producer, or a small local honey producer, as examples. They were the first two that popped into my mind probably because I am most familiar with those two. I know several people here in Walpole that spend some free time dabbling in those hobbies. Instead of those examples, please feel free to swap in any small business you like. How about a widget maker, or sock seamstress, or maybe someone who makes those fancy small soaps we all love to put on display in our guest bathrooms but g-d forbid anyone ever actually use. I personally don’t care what small business you use as an example, the analysis remains the same.
I am cut and pasting Article 3’s definition of “Formula Business” here because pulling out a small portion and analyzing the small portion separately from the rest of the language is a presentation meant to blur the omitted language for the specific purpose of guiding a reader to believe their interpretation is their own but really were lead to it (a play out of the “How to Lawyer Handbook”).
“A Formula Business is a business, including but not limited to retail sales, hotels, and restaurants, that both
(a) maintains two or more of the following five standardized features:
- array of services, menus, or merchandise, with 50% or more of in-stock merchandise bearing uniform markings;
- trademark, logo, or service mark;
- architecture, facade, or exterior design;
- decor or color scheme;
- uniform (other than name tags);
(b) shares the same or substantially the same two or more features as 10 or more other businesses, regardless of ownership or location.”
Here is where Attorney Hanna and I are interpreting the definition differently. Attorney Hanna imposes an assumption in the first and second features which then creates a flawed analysis.
Attorney Hanna states the small business “must share the same logo, trademark or service mark with 10 or more other businesses”. That is not what the plain language of the first two features state. The plain language of the first feature states that 50% or more of the in-stock merchandise bears uniform markings. That is all it says; a “uniform marking”. It does not say that said uniform marking must be identical to those of 10 or more businesses.
The same is true for Feature 2. Feature 2 does not say the logo, trademark or service mark has to be the same amongst all 10 businesses. It simply says “trademark, logo, or service mark.” That means, by the plain language, Feature 2 is met if the business has a logo, trademark or service mark.
In error, Attorney Hanna uses subsection b “(shares the same or substantially the same two or more features as 10 or more other businesses) to mean the uniform markings or logos must be the same across all 10 businesses. Section b does not say that. Section b simply says the business will be defined as a Uniform Business when it qualifies for the same 2 of the 5 features listed in Section a.
In summary, a small business will qualify for Feature 1 if it bears a, “a” can be “any”, uniform marking on 50% of in-stock merchandise. Additionally, Feature 2 is satisfied if the business has a, “a” can be “any”,logo, trademark or service mark. Most businesses have uniform markings and most businesses have a logo. Since most businesses share in both Feature 1 and 2, per section b, (share the same or substantially the same two or more Features), most businesses can be defined as a Formula Business. It is not a stretch for an attorney to argue this to be overly broad and unconstitutional as per its definition, all businesses can now be a Formula Business.
All that said, I offer you, the Walpolean voter, the following radical thought: Why push an Article through when you not only have the Town of Walpole Planning Board publicly announcing their opposition to it, but also two Attorneys, both with over 20 years’ experience, arguing why the language should be interpreted differently. Why not first tweak the language? If the intent is to have the uniform marking or logo be identical across the 10 + businesses, then tweak the language to say so before enacting it into law.
You are creating law and when you have an opportunity to avoid future litigation based on its interpretation why not do so? I offer this because in the end, it is you, the Walpole taxpayer, that will be footing the bill to argue the issue in Court.
I thank you for taking the time to read my opinion.
To Find Comments
There seems to be a misunderstanding about Posts and Comments. When someone Comments on a post, it goes with the Post on the homepage but does not get emailed to Followers. To see Comments, one has to go to thewalpolean.org. There are Comments that you may have missed. – Lil
Re: For Immediate Publication in The Walpolean – Response to Elana Baron’s March 24th Post Regarding Town Warrant Article 3
I represent Walpole residents, Tom and Christie Winmill, who joined forces with multiple other voters to protect Walpole from spoiling what makes Walpole special with the infiltration of “homogenous and visually obtrusive businesses.” They asked my law firm, which specializes in land use law, to draft a zoning amendment that would give town officials better regulatory resources to address such businesses. Unfortunately, I am in the position of having to address Elana Baron’s inexplicable opposition to this public-spirited effort.
Rather than suggest a better path forward, she pokes holes at the language of the warrant article and claims that it is ambiguous and that town officials are likely to interpret the article in a manner that is completely contrary to the intent of the new ordinance provision. She does not give the town’s land use boards enough credit. She is incorrect that the language is too ambiguous for reasonable interpretation.
If a development decision of a local land use board is appealed, the court will first look at the plain language of the ordinance. If the court finds that the ordinance is subject to more than one plausible interpretation, it will then look to other information – such as the statement made in the preamble to the warrant article – to determine what the intent of the ordinance is and what interpretation is consistent with that intent.
Ms. Baron has presented an unconvincing case that the language of the article is ambiguous, but in such a case, it is the intent of the ordinance that will ultimately prevail. And the intent of the proposed ordinance is to keep Walpole a special place. Walpole voters should be in favor of this ordinance.
“Great Decisions” – 4/3/23
War Crimes & International Efforts at Deterrence
“Great Decisions” will meet on Monday, April 3, at 6:00 p.m., in the Walpole Town Library. Our distinguished guest speaker will be Dr. James E. Waller, Cohen Professor of Holocaust and Genocide Studies at Keene State College, director of academic programs at the Auschwitz Institute for the Prevention of Genocide and Mass Atrocities. Renowned social psychologist, scholar and author, Dr. Waller’s recent book, “Confronting Evil: Engaging Our Responsibility to Prevent Genocide” (2016), seems prescient in its relevance to the crisis in Ukraine today. The discussion will again be moderated by Adrian Basora, who is on the international advisory board of the Auschwitz Institute.
Recently Karim Khan, chief prosecutor at the International Criminal Court (ICC) in The Hague, issued arrest warrants for Vladimir Putin and Maria Lvova-Belova for the war crime of abduction and deportation of Ukrainian children. Khan stated, “Children cannot be treated as the spoils of war.” We will discuss the implications of the ICC warrants, the international response to the war in Ukraine, how the word “genocide” has been misused as a pretext for the invasion and where it might be used more appropriately, how Russia distorts history to justify its aggression, and how we, as individuals and a community, can best respond to this crisis.
A conversation with Professor Waller is certain to be an informative, stimulating and memorable event. All are welcome to join this public forum at 6:00 p.m. on Monday, April 3, either in person in the Hubbard Meeting Room at the Walpole Town Library or via Zoom. For the Zoom link, contact Jane Malmberg, Library Director, in advance of the meeting: email@example.com.
Sue Kibbe and Ron MacLachlan
Selectboard Meeting Minutes – 3/16/2
Selectboard Present: Steven Dalessio, Chair, Cheryl Mayberry and Peggy Pschirrer
Staff Present: Sarah Downing, Jordan Cannon, Justin Sanctuary and Janet Clough
Others Present: Steve Varone
CALL TO ORDER: Mr. Dalessio called this meeting of the Selectboard to order at 6:25 p.m. in the Walpole Town Hall.
NON-PUBLIC BUSINESS RSA 91-A:3 II (a): Session I
Ms. Mayberry moved to enter into Non-Public Session pursuant to RSA 91-A:3 II (a) at 6:26 p.m. Mrs. Pschirrer seconded. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
The meeting reconvened from suspension at 6:56 PM.
Warrant Article #13: Mr. Varone stated that there are presently five tax exemptions: solar, current use, senior, veterans’ and blind. He said that of the five, there is only one that is income-based, and that is the one for seniors. There is no maximum income or asset amount set for the senior tax exemption. Mrs. Pschirrer reflected that the intent of the exemption was to help seniors in Town who have little resources. Mr. Varone stated that if the limits were set high, the Town would be inundated with applications. Mrs. Pschirrer commented that you cannot amend the intent of a warrant article at a Town Meeting. Mr. Varone stated that he would support Article #13 and would review the elderly exemption again the following year. Mr. Varone stated his intention is to modestly expand the senior exemption.
ACCOUNTS PAYABLE: ACCOUNTS PAYABLE:
Ms. Mayberry moved to approve the Accounts Payable Check Register in the total amount of $738,767.46 for checks issued March 17, 2023. Seconded by Mrs. Pschirrer. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved. This includes a payment of $700,531.17 to Fall Mt. Regional School District.
Ms. Mayberry moved to approve the Payroll Check Register in the amount of $28,085.94 dated March 17, 2023, and for the 941 Payroll Tax Transfer in the amount of $5,526.05. Seconded by Mrs. Pschirrer. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
SELECTBOARD MEETING MINUTES:
SELECTBOARD MEETING – March 9, 2023: Mrs. Pschirrer moved to approve the Minutes of the Selectboard meeting of March 9, 2023. Seconded by Mr. Dalessio. With Mrs. Pschirrer and Mr. Dalessio in favor, the motion was approved. Ms. Mayberry was not present at this meeting.
SELECTBOARD NON-PUBLIC SESSION – March 9, 2023: Mr. Dalessio moved to approve the Minutes of the Selectboard Non-Public Session of March 9, 2023. Seconded by Mrs. Pschirrer. With Mrs. Pschirrer and Mr. Dalessio in favor, the motion was approved. The minutes are to remain sealed.
Ms. Mayberry called attention of the Board the following minutes:
• North Walpole Village Commissioners’ Meeting- February 7, 2023
• North Walpole Village Commissioners’ Meeting- February 14, 2023
• North Walpole Village Commissioners’ Meeting- February 21, 2023
• North Walpole Village Commissioners’ Meeting- February 28, 2023
• North Walpole Village Commissioners’ Meeting- March 7, 2023
Mr. Dalessio acknowledged the minutes.
PROPERTY TAX REFUNDS:
Map and Lot# 008-105-001: Ms. Mayberry moved to approve of the property tax refund of Map and Lot# 008-105-001 for $53.90 for the overpayment of tax interest. Seconded by Mrs. Pschirrer. With Ms. Mayberry, Mrs. Pschirrer and Mr. Dalessio in favor, the motion was approved.
Map and Lot# 020-044-000: Ms. Mayberry moved to approve of the property tax refund of Map and Lot# 020-044-000: for $12.90 for the overpayment of tax interest. Seconded by Mrs. Pschirrer. With Ms. Mayberry, Mrs. Pschirrer and Mr. Dalessio in favor, the motion was approved.
SOLAR ENERGY EXEMPTIONS:
Map and Lot# 021-023-000: Ms. Mayberry moved to approve of the solar energy tax exemption of Map and Lot# 021-023-000. Seconded by Mrs. Pschirrer. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
Invoice Policy: Mr. Dalessio questioned if any changes were made. Mrs. Downing responded that none none of the content was amended. Ms. Mayberry confirmed that there is an effective date on the invoice policy. The Selectboard signed the Invoice Policy effective 3/16/2023.
Draft Procurement Policy: Mr. Dalessio postponed this policy’s review until the following week.
PD Rev. Fund Request for Police Cruiser: Mrs. Pschirrer commented that two police vehicles arrived, and reflected on the difference in cost from what was originally priced. She reviewed with Ms. Mayberry the discussion she and Mr. Dalessio had the previous Selectboard meeting regarding the mechanisms by which the Town would pay for the two vehicles. Mrs. Pschirrer moved to approve the expenditure of $21,915 from the police revolving fund to pay for the Ford Police explorer. Ms. Mayberry seconded the motion. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
PD Capital Reserve Fund Request for Police Cruiser: Mrs. Pschirrer moved to purchase the police vehicle from Warrant #12 from 2022 with the additional cost of $11,415 to be taken from the Police Dept. Capital Reserve Fund. Ms. Mayberry seconded the motion. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
Generators: Mr. Dalessio reflected on the possibility of having a generator in use for the Town Hall given the recent power outage due to the snowstorm.
Red Alert: Mr. Dalessio stated he would be speaking with Mark Houghton about the Red Alert notification system, and how people can sign up. Ms. Mayberry commented that she received three different notifications at once from the school during the recent school closures. Mr. Dalessio stated that only people who subscribe would receive the notifications.
Great River Hydro Confidentiality Agreement: Ms. Mayberry moved to allow chair Mr. Dalessio to sign the confidentiality agreement so that data can be sent to Avitar for creating a draft PILOT agreement with Great River Hydro. Seconded by Mrs. Pschirrer. Mr. Dalessio asked if there was any additional discussion. There was none. With Ms. Mayberry, Mrs. Pschirrer and Mr. Dalessio in favor, the motion was approved. Mr. Dalessio signed the agreement.
FEMA Floodplain Maps: Mrs. Downing stated that a webinar is upcoming on 3/29 and 3/30 wherein new flood maps will be discussed.
NON-PUBLIC BUSINESS RSA 91-A:3 II (a): Session II
Mr. Dalessio moved to enter into Non-Public Session pursuant to RSA 91-A:3 II (a) at 7:35 PM. Mrs. Pschirrer seconded. With Mr. Dalessio, Mrs. Pschirrer and Ms. Mayberry in favor, the motion was approved.
The meeting reconvened at 7:58 PM.
HOOPER TRUSTEES MEETING:
Mrs. Pschirrer moved to enter into Hooper Trustees Meeting at 7:59 PM. Ms. Mayberry seconded. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
The meeting reconvened at 8:11 PM.
Ms. Mayberry moved to adjourn this Selectboard meeting at 8:13 PM. Seconded by Mrs. Pschirrer. Mr. Dalessio asked if there was any additional discussion. There was none. With Mrs. Pschirrer, Ms. Mayberry and Mr. Dalessio in favor, the motion was approved.
Jordan Cannon, Recording Secretary