, Newburyport, MA

October 23, 2013

Town Meeting rescinds selectmen's River Road action

But town's law firm says that vote is not binding

By Elizabeth Rose

---- — MERRIMAC — Opponents of selectmen’s bid to discontinue a section of River Road were victorious at Special Town Meeting Monday night.

The necessary two-thirds vote was achieved with 126 in favor and 58 opposed.

The vote endorsed Article 12, recently added to the warrant through a town-wide petition circulated by a group of concerned citizens. The article asked whether the town would “vote to rescind the vote by the Board of Selectmen (BOS) for the petition issued to Merrimack Valley Planning Commission by the BOS pursuant to Massachusetts General Law Chapter 82, Section 2 for the discontinuance of a portion of River Road.”

However, in a well-debated wrinkle to the night, selectmen cited legal advice gathered from the Boston municipal law firm Kopelman and Paige that the Town Meeting vote is a non-binding endorsement and cannot overturn the decision of the selectmen.

Furthermore, the legal opinion stated that selectmen are the only legal body that can petition the MVPC for either a discontinuance or a continuance of a county byway.

In the opinion of the law firm, the warrant article contained actions that pertain directly to the executive function of town government. The laws governing governance in the Commonwealth grant only the elected selectmen of each town to serve in the executive role, not the Town Meeting. Therefore, an act that would be considered an executive function, such as in this case the nullification of a selectman-approved decision, could not be legally enacted by Town Meeting, according to the laws of the Commonwealth.

This section of River Road was permanently damaged in the Mother’s Day storm of 2006 and in another significant weather event in 2010. Selectmen reported on many acts of outreach to different funding options to repair the road and are now convinced that there are no funds and there will not be funds in the foreseeable future. After consultation with the town’s insurance carrier, they are cautious about allowing the road to remain the active pathway for bikers and pedestrians that it has become.

The road has been at the center of a controversy between selectmen and an impassioned group of residents who wish to continue to enjoy the pristine nature of this small stretch of road bordering the Merrimack River.

A “Save the River Road” committee grew up over the summer with Ron Barnes, Dan Healey and Harry S. Bowen at the helm. They were successful in petitioning the needed votes to place the article in the warrant and have now achieved their aim of garnering a favorable vote to have the selectmen rescind their petition to the MVPC.

The crafters and supporters of the article wish to gain more time to seek funds to repair the road. They hope their vote will influence the actions of the MVPC at an Oct.30 hearing concerning the decision to discontinue.

In the opening discussion Ron Barnes expressed the view that “the town fathers are giving away a beautiful asset without the input of the 5,800 residents.”

Later, selectmen chairman Rick Pinciaro said that selectmen “were not giving away the road. It has always belonged to the owners; the town only owns the easement.”

Sixteen residents, including the three selectmen and former Selectman Earl Baumgardner, spoke during the 90-minute discussion. Only three residents, aside from selectmen, spoke in favor of the discontinuance. Many of the comments in favor of the article were followed by enthusiastic applause from the audience.

Barnes was pleased with the outcome.

“We meant this move as leverage to the MVPC. If they see a large contingent of voters who oppose the discontinuance they may change course. We accomplished what we wanted to do, get the issue to the voters. No-one knew about [the discontinuance]. When they found out, they were upset,” he said.

Selectmen suggested that an independent committee be formed to investigate further options.

In a statement that demonstrated the gulf that has arisen between selectmen and some citizens, Barnes said, “I don’t feel the formation of a committee will do anything because they won’t listen to us.”

Pinciaro wrote in an email, “The heart of the matter is whether or not Town Meeting has the right to overturn a decision by the Board of Selectmen, in this case our petition to Merrimack Valley Planning Commission, to have them hold hearings to determine if the easement granted … can be removed.”

Pinciaro also stressed that without this protection, town governments would grind to a dysfunctional halt.

“As a practical matter, municipal government would grind to a halt if every decision by an elected body could potentially be challenged in this fashion and brought before Town Meeting. Nothing would get done and no one would run for these positions,” he wrote.

The meeting of the Merrimack Valley Planning Commission Adjudicatory Board is set for Wednesday, Oct. 30, from 2 to 4 p.m. at Merrimac Town Hall.