Part of the NH Advantage is local control. SB11? Not so much - Granite Grok

Part of the NH Advantage is local control. SB11? Not so much

  1. Does it allow Exeter and Stratham actually do that?
  2. Does it give others a “platform” on which to do other things – unintended consequences?

My background is as a software developer – not a lawyer.  However, as any one that has done any programming, the object is to first write the code that actually does what is needed (design, code, debug).  The next pass is to sit and try to think of all of the ways and permutations that users will use that programming to do their work – and how to subvert their efforts on insisting on “being stuck on stupid”.  For lack of training, unsure of the job requirements, cases of “let’s just try THIS and see what happens” to those that rub their hands in glee and exclaim “LET’S PLAY GAMES!” – one can be sure that your code will stop some of the inanities that users believe your code should otherwise handle.

Emphasis on some.  Many silly things it won’t simply because I don’t think like they do so I can’t write the software to keep them from using it “wrongly”.   To be sure, more will see what works, what doesn’t, and then will try to exploit it because 1) it is a challenge to do so, but for some idea of fun, or 2) they have an ulterior reason to exploit the system from some sort of personal gain. Get the wrong logic operator in the wrong spot (AND instead of OR, EXACTLY instead of CONTAINS) or assuming data is returned from a call in a certain format and type, and things can fizzle pretty quick.  GIGO (Garbage In, Garbage Out) deliberately done can really hack out a system – the environment in which a program is run also effects what it can / can’t do and the results (valid / invalid) are spit out.

Laws work the same way.  Although not being a lawyer, reviewing laws can be just like reviewing a large program.  Instead of CPUs and networks, the political atmosphere into which the law is enacted is its operating environment.  And make no mistake, just as in computer systems where programs compete for scarce resources, the equivalence is all of the special interest groups hoping to gain some advantage (rent-seeking, be it for commercial gain or ideological success) in either how the law was written (re: hidden back doors, zero day exploits) or the how it can be interpreted to out-chess folks not as aware by those that seek to use it in unintended fashions.

Like with SB11.  And this is what concerns me the most – not the stated purpose of the bill (“first write the code that actually does what is needed”) but how it can be exploited (“and then will try to exploit it because 1) it is a challenge to do so, but for some idea of fun, or 2) they have an ulterior reason to exploit the system from some sort of personal gain”).

This proposed law, as has already been written here on the ‘Grok, is supposed to facilitate the Towns of Exeter and Stratham in cooperating to share water and sewer systems (as NH does not have a home rule capability – everything must go through the State).  So, let’s fisk it to see if

  1. Does it allow Exeter and Stratham actually do that?
  2. Does it give others a “platform” on which to do other things – unintended consequences?

Short answers: yes and YES!!!!!!     It is that second answer that is so troubling when one looks at the “operating environment” currently in NH.

 

Here is the text of the bill as it currently stands:

SB 11-LOCAL – AS AMENDED BY THE SENATE

02/14/13 0124s

2013 SESSION

13-0298

06/05

SENATE BILL 11-LOCAL

AN ACT relative to water and sewer utility districts and water or sewer utility districts.

SPONSORS: Sen. Stiles, Dist 24; Sen. Prescott, Dist 23; Rep. Abrami, Rock 19; Rep. Copeland, Rock 19; Rep. Schlachman, Rock 18; Rep. Flockhart, Rock 18; Rep. Lovejoy, Rock 36

COMMITTEE: Public and Municipal Affairs

AMENDED ANALYSIS

This bill permits municipalities to establish water and/or sewer utility districts and to enter into intermunicipal agreements for the establishment of such districts.

Observation: The original purpose of the bill was to allow Exeter and Stratham to cooperate.  this bill does that.  1) CHECK.   Does it allow other entities to do similar things?  2) CHECK.  One of the hallmarks of good legislation is that it be narrow-cast: one single purpose, carefully worded, and limited to only the problem at hand.  The Analysis proves that the bill can be construed as being “overly broad”.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/14/13 0124s

13-0298

06/05

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Thirteen

AN ACT relative to water and sewer utility districts and water or sewer utility districts.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subdivision; Water and/or Sewer Utility Districts. Amend RSA 31 by inserting after section 133 the following new subdivision:

Water and/or Sewer Utility Districts

Observation: New?  Why?  What about Section 53-A:1, Section 53-A:3, Section 38:2-a?  These certainly seem to provide the foundation for cooperation for the single purported purpose of the bill

31:134 Statement of Purpose. An adequate supply of water is indispensable to the health, welfare, and safety of the people of the state and essential to the natural environment of the state. Therefore, the general court declares and determines that the waters of New Hampshire constitute a limited and precious public resource to be protected, conserved, and managed in the interest of present and future generations. This requires careful stewardship and management of water and wastewater within the state. To maximize health and safety, ecological and aesthetic values, and the overall well-being of the people, the state of New Hampshire must enable municipalities to protect water supplies and provide sewer utility services in compliance with federal, state, and local requirements. In order to foster regional approaches to providing utility services to multiple municipalities, the state must enable municipalities to enter into agreements that provide for efficient means of collectively financing and operating such services. The establishment of water and/or sewer utility districts will enable municipalities to provide property services at a more intensive level than is provided in the balance of the municipality; provide funds for capital expenditures towards constructing and maintaining those utilities; provide funds for the operation and maintenance of those utilities; and authorize the establishment of charges to owners and users of property within such water and/or sewer utility districts in an amount not to exceed the costs to the municipality of providing such utility services at levels over and above those provided in the balance of the municipality.

Observation: We see the amount of trouble, consternation, gnashing of teeth, and overall sense of heartburn that a single word, “cherish” has given the State of NH in the area of Education once the Courts got their teeth into this.  Given that hingepoint, the above is a veritable minefield for those that would want remove all local control  and all sense of private ownership of water rights for reasons of “sustainability“; just start bringing this verbiage into court and I can assure you that the unintended consequences that would be seen by many of us would be proudly hailed by certainly groups – like NHListens and the Water Sustainability Commission.  The above is nothing more than a springboard into an evironmentalist’s pool of goo.

1) Does it allow Exeter and Stratham actually do that?  Yes, I think

2) Does it give others a “platform” on which to do other things – unintended consequences?  O. M. G – with steroids upon steroids!  As regular readers of the ‘Grok know, we have been against the Federal Depts of HUD, EPA, and DOT push for “Sustainable Communities Initiative” on the grounds that:

Observation:NH as been doing a pretty good on its own these last 300 or so years – Federalizing otherwise local zoning codes is unnecessary and given the huge national debt, money and effort ill spent trying to “urbanize” rural NH.  We believe that this much of this is an Environment First / Humans Second effort – an exercise in watermelon environmentalism (green on the outside and Red on the inside) with these departments shoving a top-down command and control upon the Live Free or Die State.

Let’s take the boldings from above and check off it if is a 1) or a 2):

  • An adequate supply of water is indispensable to the health, welfare, and safety of the people of the state

Observation:No kidding but those words “is indispensable” are a green light to later raise water to a level that demands that only a collective purpose AND OWNERSHIP can satisfy.  Doesn’t matter that NH has been, and is projected to be, a water-rich State over the long term.  The Malthusians amongst us have been proven wrong over and over again, but they never stop.  Just like “healthcare” is said to not be a regular “marketplace” and should be socialized to save it, so will water.

Can this lay the foundation of “Eminent Domain by other means” here in NH?

  • and essential to the natural environment of the state.

Observation:All hail the natural environment.  We already see that DES and the EPA are all but out of control in telling private landowners what limited rights those departments are saying they have, imagine what will happen next?  Many states, via overheated environmentalists, have made it illegal to simply collect the rain coming off one’s roof – is this the trail you want NH to start down – and ending up like Maryland where even the rain falling on your property is taxed?

  • the waters of New Hampshire constitute a limited and precious public resource to be protected, conserved, and managed in the interest of present and future generations.

Observation:If this doesn’t say “future Collectivism” written all over it, nothing else will.  Limited?  Government control.  PUBLIC RESOURCE – no private ownership for you!  We, the collectivist WE must and are obligated to manage it for all.

Go ahead, put that in front of an activist judge – not a chance that water will remain as it has for centuries – that the landowner owns the rights under his surface land.  Once that water is declare to be Public Property, just WAIT to see the restrictions that will come into place and see how otherwise law abiding citizens become felons in a heartbeat.

  •  and the overall well-being of the people, the state of New Hampshire must enable municipalities to protect water supplies

Observation: “to protect” means an activist Government, an intrusive Government – Progressives who have brought in that non-native political philosophy into the State would be doing cartwheels over this.  Yet, what will that do to the more libertarian let-me-live-my-life-undisturbed history of this State?  Legislators must get this one right – or risk changing the nature of New Hampshire forever.  To go where a municipality has never gone before – especially in rural areas where there is little but locally and privately owned wells and septic systems.

  • In order to foster regional approaches to providing utility services to multiple municipalities,

Observation:Foster? I thought this was ONLY to allow Stratham and Exeter to do stuff together?  REGIONAL is the buzzword of Planners everywhere (including NH’s own Regional Planning Commissions who are aiding the Federales in trying to trump local codes.  I have no problem with 2 towns cooperating AS LONG AS it is elected officials calling the shot – which can then be held accountable by the voters.

  • and authorize the establishment of charges to owners and users of property within such water and/or sewer utility districts in an amount not to exceed the costs to the municipality of providing such utility services at levels over and above those provided in the balance of the municipality.

Observation: Sometimes, what is not said is as important as what is said: “within”.  It says what is allowed – a positivist view of Government of what it can do for you (and to you) and with no limiting Government to what it shouldn’t or can’t do to you – the essence of a limited government.

Back to the bill:

31:135 Definition. In this subdivision, “water and/or sewer utility” means an entity established for the acquisition, operation, and management of water and sewer infrastructure.

31:136 Water and/or Sewer Utility Authorized; Intermunicipal Agreement.

I. For the purposes of this subdivision, the legislative body of any city or town shall have the authority by a majority vote to establish one or more water and/or sewer utility districts and designate a water and/or sewer utility commission to be the governing body to manage the activities of the district.

Observation: Once again, we see the side-stepping of the fundamentals of Democracy – setting up yet another unelected and unaccountable board which, in this case, will be beyond the reach of the ordinary citizen.  Once again, we see that Government is insulating itself from those that it is supposed to serve.  And as we are seeing with the triple scandals of the IRS, HHS, and DOJ, government entities that are disconnected from oversight are things to be avoided.  Will these commissions be that large – for course not!  But too often we see functions that our elected officials should be leading and be accountable for be sloughed off – and sometimes taking major and expensive decisions outside the normal voting arena by voters.

II. In the case where a utility district encompasses land within more than one municipality, the district may be authorized by majority vote of the legislative bodies within each affected jurisdiction in accordance with the terms of an intermunicipal agreement under RSA 53-A:3. Such agreement shall be contingent upon approval of the legislative bodies of each of the parties to the agreement, and shall, in addition to the requirements of RSA 53-A:3, II, specify the following:

(a) The source of the water.

(b) The disposition of sewage.

III. For a water and/or sewer utility that encompasses more than one municipality, the intermunicipal agreement shall create the water and/or sewer utility commission and representation on such commission shall be proportional to the number of the owners or users, or both, of properties in the water and/or sewer utility district as defined by the intermunicipal agreement.

Observation: The problem is that an exploitation can be in that phrase “number of the owners or users”?  Is that users of a current municipal system?  Is that owners of properties that are all ready connected to such a system? What about owners that have their own facilities?  This would allow them to be charged even if they aren’t presently hooked up or located in such a place that it would be financially exorbitant to do so?  What if a property owner has their own facility – can this commission force them to connect and thus virtually performing a “taking”?  Where in this act does proper compensation appear (hint: it doesn’t).

31:137 Commissioners. For the convenient management of any water and/or sewer utility district, a municipality shall vest the construction, management, control, and direction of such district in a board of commissioners to consist of 3, 5, or 7 citizens of each municipality, the commissioners to have such powers and duties as the municipality may prescribe. Their term of office shall be for 3 years and until their successors are elected and qualified. The first board of commissioners may be chosen for terms of one, 2, and 3 years, respectively.

Observation: Board of Selectmen, City Councilors – you just lost power.  Oh sure, you can complain, but you will have no recourse if the Commission acts in a way that is counter to even a large minority of taxpayers / voters in your towns.  They will have the power to set fees or taxes to pay for what they want – even if this puts you in a bad position because of torqued off voters.  The voters put you in charge locally, why do State Legislators wish to remove that from you – the ability to respond even as you keep the responsibility to be the target of all the flack?

31:138 Election or Appointment.

I. The board of commissioners may be elected by the legal voters of the municipality at any meeting or election at which the provisions of this subdivision are accepted, or at any special meeting or election thereafter called for that purpose, and their successors shall be elected at each annual meeting or election thereafter in the manner or form as the municipality may determine.

II. The board of commissioners may be appointed by the mayor and board of aldermen or city council or by the selectmen of the town in the manner or form as the municipality may determine.

Observation: The essence of good government is to keep control and oversight of something as close to the voters as possible.  Yet, this causes voters to have to deal with yet one more group of decision makers when there are almost too many to keep track of already!  I could easily be out of the house every day and night trying to be the good citizen, the involved citizen, who appreciates the system but knows that the phrase “ever vigilant” must be especially used with respect to those we have elected.  But how much can the individual spend on this activity – and this is even if this new entity is elected?  And once it becomes “appointed”?  The master becomes the appointer, not the voters.

31:139 Services Provided; Cost.

I. The services provided by a water and/or sewer utility district under this subdivision may include property-related services, including but not limited to providing public drinking water and water for domestic uses; water for fire suppression; and wastewater management; related construction, operation, and maintenance of capital facilities needed in the performance of these services; and other business development services and activities related to the maintenance of an attractive, useful, and economically viable business environment within the district. These services and activities may be either those of a routine nature provided for all properties, or may be particular to those in the water and/or sewer utility district.

Observation: Wait a second!  Here is a real 2) set of wording – again, legislation should be narrow-casted and the above bolded text seems to indicate that the purpose is not just to provide water / sewer services but to do Economic Development?  Aren’t there ENOUGH governmental agencies out there doing thrashing the hastings to bring in new businesses and foster growth of current ones?

II. The legislative body of each municipality shall define the water and/or sewer utility district, select specific services and levels of services to be provided, and, subject to RSA 31:137, authorize the department, agency, or other party that is to undertake the work.

III. The costs of providing services in the water and/or sewer utility district shall be those accruing to the municipality, which result exclusively from the provision of services in the district, and which exceed those being provided in the balance of the municipality.

31:140 Method of Appropriation. Each municipality shall adopt a budgetary appropriation for capital and operating expenditures including replacement and upgrades, or services to be performed in a water and/or sewer utility district as part of its budget process. The expense of constructing and maintaining the facilities needed to perform the authorized services to the district, or paying off any capital debt or interest incurred in constructing or maintaining the district on an annual basis shall be included in the budgetary appropriation. At the end of each fiscal year, a full accounting of expenditures shall be made.

31:141 Assessments and Fees. Upon adoption of the budgetary appropriation, the municipality may levy assessments or fees, or both, in an amount not greater than the net appropriation to a water and/or sewer utility district fund. The assessments and fees shall be made against the owners or users, or both, of properties in the water and/or sewer utility district and shall be based upon a formula determined by the municipality to be in relative proportion to benefits received by each property owner or user, or both, in the water and/or sewer utility district. Assessments and fees shall be billed and collected as specified by ordinance adopted by majority vote of the governing body of the municipality after a public hearing or in accordance with the terms of the intermunicipal agreement. Government property and non-profit organizations within the district shall be subject to the assessment and fees. Interest and other collection procedures shall be made by the tax collector or other official responsible for property tax collection. Enforcement powers for nonpayment shall be the same as those provided under RSA 80 relative to property tax collection.

Observation: Think of the “view tax” when your property tax is assessed.  Will we see the rise of the “it’s available tax” if these services are available but an owner has their own facilities (see above and earlier)?  This legislation does not specifically say “no”, so in these times of short money, there would be a built in reason to say “YES!”

31:142 Limit on Liability. The provisions of RSA 507-B relative to bodily injury actions against governmental units shall apply to all municipal activities performed in connection with a water and/or sewer utility district.

31:143 Authority to Incur Capital Debt. The commission shall have the authority to issue bonds under RSA 33 or RSA 33-B, as approved by the governing body of the municipality or, if intermunicipal, in accordance with the terms of the intermunicipal agreement.

Observation: Once again, we could see an unelected and unaccountable appointed board able to pile on debt upon property owners – in addition to the local School Board, the Selectboard / City Council, the County, and the State; when does it ever stop?  Sure, it leaves it up to the “agreement” – but how few such agreements keep that election to the elected officials?

31:144 Assessment Funds.

I. The funds received from the collection of water and/or sewer assessments and fees shall be kept as separate and distinct funds to be known as the water assessment fund and the sewer assessment fund respectively. Such funds shall be allowed to accumulate from year to year, shall not be commingled with municipal tax revenues, and shall not be deemed part of the municipality’s general fund accumulated surplus. Such funds shall be expended only for the purposes of this subdivision as it relates to public drinking water and domestic supplies or the previous expansion or replacement of water lines or water treatment facilities; or for wastewater or the previous expansion or replacement of sewage lines or sewage treatment facilities.

II. Except when a capital reserve fund is established pursuant to paragraph III, all assessment funds shall be held in the custody of the municipal treasurer. Estimates of anticipated assessments or fees and anticipated expenditures from the assessment funds shall be submitted to the governing body under RSA 32:6 if applicable, and shall be included as part of the municipal budget submitted to the legislative body for approval. Notwithstanding RSA 41:29 or RSA 48:16, the treasurer shall pay out amounts from the assessment funds only upon order of the governing body of the district. Expenditures shall be within amounts appropriated by the legislative body.

III. At the option of the governing body of the district, all or part of any surplus in the assessment funds may be placed in one or more capital reserve funds under RSA 35:7 and placed in the custody of the trustees of trust funds. If such a reserve fund is created, then the governing body of the district may expend such funds pursuant to RSA 35:15 without prior approval or appropriation by the local legislative body, but all such expenditures shall be reported to the municipality pursuant to RSA 31:148. This section shall not be construed to prohibit the establishment of other capital reserve funds for any lawful purpose relating to municipal water.

31:145 District Utility Fund. Notwithstanding RSA 31:144, the local legislative body upon establishing a utility district may vote to establish a separate and distinct fund to be known as the district utility fund to serve as a collective operating fund for the district, or to administer funds common to the district that are not directly attributable to water or wastewater services. Such fund shall be allowed to accumulate from year to year, shall not be commingled with town or city tax revenues, and shall not be deemed part of the municipality’s general fund accumulated surplus. Such fund shall function as a collective water and sewer fund and shall be authorized to be managed in the same ways as water or sewer funds are used under RSA 31:144.

31:146 Abatement and Appeal of Assessments and Fees.

I. Any person aggrieved by an assessment or fee made under this subdivision may, within 2 months of the notice of assessment, apply in writing to the governing body of the district for an abatement of such assessment or fee.

Observation: Oh goody!  Do you know how hard it is to fight, the aggravation accrued, to fight just a Select Board or Zoning Board over an overvalued assessment?  Now, I have to do it all again?

what happens when this turns out not to be just TWO towns but perhaps 5 or 6?  Look what is happening in Great Bay because of an overbearing EPA – you really think an ordinary Individual is going to have much of a shot at fighting such twice?

II. Upon receipt of an application under paragraph I, the governing body of the district shall review the application and shall, in writing, grant or deny the application in whole or in part to correct any error in the assessment or fee within 6 months after the notice of assessment or imposition of the fee.

Observation: Six months is a long time – why not shorter?  Why should a taxpayer forced to accept long delayed justice?  Think of how long a fight could stretch out – years!

III. If the governing body of the district neglects or refuses to abate the assessment or fee, any person aggrieved may petition the superior court in the county where the property is located within 8 months of the notice of assessment or imposition of the fee.

Observation: Once again, we see Government declaring that Citizens are guilty before proven innocent.  What’s the big deal, you say – we always seek justice in the court system.  Take the ordinary Joe, Mrs. Middle Class – or even the Not-Quite-Middle-Class First Time Owner that gets slapped with an assessment they feel unfair – and are unable to fight it from lack of being able to pay a lawyer.  This is Government sticking up for Government, truth be told.

IV. For purposes of this section, “notice of assessment” means the date shown on the assessment bill.

V. Each assessment bill or fee shall require a separate request and appeal.

Observation: Boy, those could add up – not just in money but in years (see 6 & 8 month time lags, above)

And the below?  So much for just Exeter and Stratham narrow-casting.

VI. For good cause shown, the governing body of the district may abate any such assessment or fee made by them or by their predecessors.

31:147 Liens and Collection of Assessments. In the collection of assessments and fees under RSA 31:141, municipalities shall have the same liens and use the same collection procedures as authorized by RSA 38:22. Interest on overdue charges shall be assessed in accordance with RSA 76:13.

31:148 Reports. In municipalities adopting this chapter, the governing body of the district shall annually, at the time other municipal officers report, make a report to the municipality of the condition of the plant financially and otherwise, showing the funds of the district, the expenses and income thereof, and all other material facts. This report shall be published in the annual report of the municipality.

31:149 Local Option. Any city or town may adopt this subdivision and shall thereafter have all the authority, powers, duties, and responsibilities set forth in this subdivision.

I. A city may adopt this subdivision by majority vote of the legislative body of the city after notice and hearing.

II. A town may adopt this subdivision by majority vote of the voters present and voting at any legal town meeting under a proper article after notice and hearing.

2 Agreements Between Government Units; Joint Exercise of Powers. Amend the introductory paragraph of RSA 53-A:3 to read as follows:

53-A:3 Joint Exercise of Powers. Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised jointly with any other public agency of this state. Such authority shall include, but not be limited to, the power to enter into agreements to share tax revenues resulting from local economic development efforts and with respect to cities and towns, the power to form the entities and conduct the activities provided for in RSA 162-G and RSA 31:134 through RSA 31:149.

3 Effective Date. This act shall take effect 60 days after its passage.

 

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