Wednesday, March 19, 2008

Sterling Selectmen disappoint at Wekepeke forum

Last night, over 150 Sterlingers met with the Board of Selectmen to discuss the town's position on Clinton's plan to sell allow Nestle to pump water from land they own in Sterling. All of the citizens who spoke at the forum spoke against the plan, many of them asking the Selectmen to participate in the effort to defeat the plan. But it became clear early in the 2 1/2 hour meeting that the Selectmen have no stomach for a fight with Clinton or Nestle, and nothing that was presented during the evening appeared to change their position.

Without the endorsement of the Board of Selectmen, efforts to oppose the plan are bound to be undermined.

As reported in today's Telegram and Gazette, the opinion of special counsel Mark Bobrowski is that the current zoning does not allow an entity to draw water for commercial purposes. In the scenario that he outlined (and returned to again and again during the meeting) the town of Clinton or Nestle would propose a change in the zoning to allow the use, Sterling would hire a hydrologist (potentially with funds provided by Nestle) to determine the impact on the Wekepeke aquifer, the scientists would report on any adverse effects, and the town meeting would vote the proposed change up or down. Under this scenario, if the town meeting defeats a zoning change Nestle could not pump water out of the Wekepeke.

Over and over again, Bobrowski spoke about this scenario where the town meeting would reject a zoning change and the plan would be stopped. However, he also noted at one point that Nestle's position is that local zoning does not apply since their proposal is to pump more than 100,000 gallons of water a day, since water draws of that capacity are permitted by the Massachusetts Department of Environmental Protection. According to this theory, if the state issues a permit it would supersede the town's bylaws.

Another topic of discussion was the question of whether or not this use is even permitted under the 1876 and 1882 acts that established the Clinton Water Works and gave Clinton the water rights to the Wekepeke. As I discussed earlier this week, it's my position that the Nestle proposal is not an allowed use under the acts and that the rest of the discussion is moot. I am not the only one. Attorney James Gittens has researched the issue and also believes that the acts do not allow a project like the one that has been proposed. Before the meeting, he filed a petition with the Attorney General's office requesting:
I call upon your office to send a ‘cease and desist’ order to the Town of Clinton Selectmen to forestall their impending violation of Ch. 14 of the Acts of 1882 and I also call upon your office to bring a Superior Court action against the Clinton Selectmen to enforce Ch. 14 of the Acts of 1882 if need be.
Gittens has also drafted a legal opinion supporting the claim and has signaled his intent to bring a suit against the town of Clinton based on the 1876 and 1882 acts. Gittens and other citizens (including me) asked the Board to be a party to a potential suit to have the Acts of 1876 and 1882 interpreted. Gittens even offered to represent the town for free in the action, but the Board declined to accept his offer or support legal action.

I am disappointed that the Selectmen are not willing to try to stop the project before it even gets started. A ruling that the proposed use is not permitted under the existing state laws would stop the project in its tracks. If it's not permitted, it's not permitted. Further, two of the three selectmen said that their ideal solution would be to have Sterling purchase the Wekepeke parcel from Clinton. It seems to me that the parcel might be affordable for a possible Sterling purchase only if the water rights have no commercial value. (Clinton has not suggested that they are interested in selling, so any discussion of a purchase is hypothetical anyway.) Yet, the Selectmen are not willing to work to have the the use ruled illegal.

Even more frustrating, the Board of Selectmen wouldn't even commit to delaying any discussions with Clinton or Nestle until this question is decided. If the Board doesn't want to put their necks on the line to actively help stop the proposal, fine. But the town should not play ball with Nestle or Clinton until the rules of the game have been interpreted.

Perhaps the most telling moment was the board's response to a question about the possibility of fighting Nestle in court over zoning. The questioner asked if the Selectmen were willing to commit whatever resources were necessary to defend Sterling's bylaws in the event of a suit. One selectman responded that if it were "20 or 30 thousand" they would, but that they wouldn't want to get into an expensive legal fight. The inference there is shocking. Essentially, the selectman was conceding that if Nestle wants to push Sterling the town won't be willing to stand up to defend it's own bylaws. If that is the Board's position, then it follows that the Board is willing to negotiate a deal with Nestle to allow the development because they don't think they can afford a protracted fight.

I went to the meeting hoping that the Selectmen would help lead the effort to protect the Wekepeke from development. I at least expected them to support opposition to the plan. They made it clear that the people of Sterling would be fighting alone.

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