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Courts Divided on Shaheen Statewide
Property Tax
On January 17, 2001, Rockingham Superior Court Judge Richard Galway ruled that the statewide property tax, as implemented by the Legislature and the Shaheen administration, is unconstitutional. The ruling resulted from a lawsuit filed by Newington and 26 other cities and towns, acting in concert as the Colalition Communities. Galway's decision came as no surprise here on the Seacoast, however it caught our state government completely unprepared. Governor Shaheen termed the court ruling "ridiculous".

The NH Attorney General immediately appealed the Galway decision to the NH Supreme Court. The fundamentally flaw in the State's position is that property assessments vary widely from one community to the next, and that defect can not be remedied either quickly or inexpensively.

Judge Richard Galway then clarified his ruling of January 17 regarding the amount of illegally collected property taxes that the State of New Hampshire would be obligated to return to the municipalities. The NH Attorney General had argued that the court decision required the return of only $48 million collected from "donor towns". Galway shattered that little misconception, one of several lately entertained by the Attorney General's staff, and ordered the refund of $880 million collected under the tax scheme which Galway had declared unconstitutional. The judge also noted that just such a refund had been promised by the Attorney General's representatives during the trial.

In response to Galway's clarification, House Speaker Gene Chandler and Senate President Arthur Klemm filed a motion with the NH Supreme Court claiming that the Attorney General had no authority to make any such promise.

Attorney General Philip McLaughlin, an unelected Shaheen appointee, appealed Galway's decision to the NH Supreme Court. On May 3, 2001, three of the five justices (all of whom are recent Shaheen appointees) overturned Galway's decision. The two remaining justices, Brock and Broderick, both of whom have served many years on the court, issued a strongly worded dissent.

A statewide map depicting so-called donor and receiver municipalities was prepared in mid-2001 by the Coalition Communities.

 

Tax Revolt
In July 2001, the Board of Selectmen received a petition from 52 Newington residents who are frustrated and angry with the support accorded the statewide property tax by the Governor, the Legislature and the NH Supreme Court.

The petition asks the Selectmen and townspeople to invoke Article X of the New Hampshire Constitution. This article, entitled The Right of Revolution, was adopted in 1784. It reads as follows:

"Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against abitrary power, and oppression is absurd, slavish, and destructive of the good and happiness of mankind."

A number of the petitioners interpret Article X to be a constitutional right that would allow the Town of Newington to secede from the State of New Hampshire.

The Selectmen held a public hearing on July 31, 2001 in order to solicit input from the townspeople. A crowd estimated at 300 was in attendance. By Newington standards, that was a very large crowd, as our community's total population is only 900. A number of attendees came in from nearby communities to express support for the petitioners.

Portsmouth Mayor Evelyn Sirrell proclaimed that

"Portsmouth is watching what is happening tonight with great interest. The citizens of New Hampshire need to turn their frustration into a political action to overturn this tax. I want you to know, we are with you. Portsmouth is with you all the way."

The complete text of Mayor Sirrell's comments are available on-line.

A summary of the comments of many of the speakers have been preserved in the minutes of the Public Hearing. In response to the numerous pleas from townspeople to take action, the Selectmen agreed to hold a special Town Meeting on this issue in the coming months.

On August 2, 2001, the Manchester Union leader published a Front Page editorial stating that Newington's petitioners

"are absolutely right to be outraged at what has been done to them and what has been going on in Concord under Gov. Shaheen and the Supreme Court these last few years."

Fosters Daily Democrat also published a strongly worded editorial in support of the Newington petitioners. As for secession, Fosters' editors had this to say:

"Secession from the state is an idea that has been advanced by some people in Newington. Why not? When a state becomes abusive of its residents - when it uses its power to tax as a vehicle with which to treat people unfairly - common sense dictates that those people rise up and protest with whatever means are at their disposal."

Fosters went on to state the following:

"A fair resolution of the public-funding dilemma called for political courage... Instead, Gov. Shaheen and the Legislature took the easy way out - the expedient way out.

It is political cowardice and indecision on the part of elected state officials that has brought intelligent, but frustrated residents of Newington and elsewhere to talk of revolution."

On July 29, former NH gubinatorial nominee Arnie Arnesen had this to say in her Boston Globe column:

"New Hampshire's answer to the educational funding/property tax crisis was to rearrange the deck chairs on the Titantic and call it a solution. What a brilliant idea: don't solve the problem of poor towns with an inadequate property tax base, don't solve the problems of the low-income and the elderly burdened with regressive property tax bills. Instead, create a new property tax problem in donor towns like Newington and Moultonboro and Portsmouth and New London."

Associated Press accounts of the proposed secession have been published in various newspapers across the United States. The story was also broadcast worldwide by CNN. The international news coverage resulted in a flurry of emails and phone calls from places far and near, nearly all of which were in support of the petitioners.

One caller, a gentleman from New Jersey, praised the petitioners for their rebellious spirit, however he went on to express concern that our brave little town would be "Waco-ed". He was referring, of course, to the unhappy fate of the Branch Davidian compound in Waco, Texas.

On August 8, 2001, the Union Leader published another editorial entitled Listen up legislators: NH won't be NH without Newington and Rye. The editorial reads in part:

"Granite Staters have long been smart people and that's why our founders gave towns a chance to secede from the state. Sometimes government has such bad ideas that good citizens ought not be required to go along with them. That's why residents of Newington and Rye are invoking Part 1 Article 10 to the state Constitution and threatening to secede from New Hampshire.

As currently written, the statewide property tax robs Peter to pay Paul - even when Paul doesn't need the money..."

The Union Leader subsequently published a lengthy and informative article on the tax revolt on Sunday August 12, 2001.

In regards to the calls for secession, Governor Shaheen and legislative leaders have issued no public response or comment.

 

Selectmen Going to Jail?
Newington Selectman Cosmas Iocovozzi (pictured below rig
ht) says he would rather go to jail than allow Newington tax dollars to go to Concord under a taxation scheme that Rockingham Superior Court has declared to be unconstitutional. Why should low-income Seacoast taxpayers be subsidizing wealthy residents of receiver towns such as Bedford and Amherst? Or for that matter, why should we be fixing that opera house in Claremont or filling potholes in Manchester? And what does any of this have to do with education? Rye Selectman Joe Mills, tethered to Cos here on the left, apparently agrees. Some folks in the Governor's office have requested that "the rhetoric be toned down". Yeah, right.

 

Simplex vs. Newington
On January 29, 2001 the NH Supreme Court re-wrote the rules for granting a variance to zoning ordinances throughout New Hampshire. Our town happened to be the test case. The court applied the new rules retroactively.

A brief history: In 1996, Simplex Wire & Cable, now known as Tycom, had proposed commercial development along some of their 92 acres east of Woodbury Avenue, opposite the Fox Run Mall. The land was zoned for industrial uses.

In November 1997,the Newington Board of Adjustment rejected Simplex's request for fourteen variances. Simplex appealed that decision to Superior Court.

Judge Richard Galway ruled that the Newington Board of Adjustment had acted correctly. The decision was a strongly worded decision in the Town's favor. Simplex then appealed to the NH Supreme Court, seeking to overturn the Galway decision.

The Supreme Court noted that the Superior Court had "properly applied settled law". Translation: Both the Newington Board of Adjustment and the Superior Court had applied the law correctly.

The Supreme Court rejected Simplex's request to permit commercial development on their land. Instead, the case was sent back to Superior Court where Simplex's proposed development would be subjected to the Supreme Court's new rules for the granting of variances.

The new rules represent a significant departure from many years of Supreme Court decisions. The new rules permit a property owner to more easily obtain a variance. The new rules are also far more ambiguous than the old ones, and that has left zoning board members across New Hampshire scratching their heads in puzzlement. This ambiguity will no doubt lead to a flury of Son-of-Simplex lawsuits in jurisdictions throughout New Hampshire. The confusion will continue until such time as the Supreme Court clarifies their new rules.

On March 14, 2001, the Rockingham Planning Commission held a public forum on the new rules. The commission organized the forum in response to a barage of queries from zoning boards across the county. The principal speaker was Peter Loughlin, Newington's counsel in the Simplex case, and New Hampshire's foremost expert in land use law. Video tapes of Attorney Loughlin's March 14 lecture are available.

Ironically, in the early summer of 2001, prior to the commencement of the second Superior Court trial, Tycom dropped the lawsuit. The Town subsequently issued a press releasecommenting on the significance of Tycom's withdrawal.

 

 

ConEd Plant Completed
Newington Energy LLC, a subsidiary of Consolidated Edison of New York, NY engaged in a flury of building activity during 2000-2001 at a 24-acre site behind the Beane Farm. At the peak of construction, nearly 800 construction workers were employed on-site.

This 40,000 square foot, $350 million, gas-fired facility generates 525 megawatts of electricity, enough power to supply approximately 700,000 homes. The plant is the third largest power producer in New Hampshire.

The project web site formerly contained hundreds of photographs that vividly document the construction progress. A portion of one such photograph (taken on November 8, 2001) is reproduced below.

Integral to the project is ConEd's construction of mile-long roadway to run from River Road to Piscataqua Drive, formerly known as the Simplex access drive. When completed in early 2003, this multi-million dollar roadway was given to the Town of Newington at no cost to the taxpayers. The new road was designated Shattuck Way due its proximity to the World War I shipyard of that name. The new roadway will improve the efficiency of industrial traffic, help to increase the Town's tax base, and eliminate most truck traffic from the Woodbury Avenue corridor that is heavily utilized by shoppers.

 

September 11, 2001
The terrorist attacks in New York and Washington prompted a memorial service outside the Fox Run Mall on September 14. Upwards of 5,000 people attended. The event was described by the mall's Operations Manager, Thomas Lavigne, as follows:

"We held a memorial service, last night at 6 PM, in remembrance of the victims and families of September 11. The attached picture shows those in attendance approximately an hour before it began. Two local fire departments, held aloft on their ladder trucks, one of the largest American flags I have had the privilege to stand near. Mother Nature contributed with a breathtaking sunset as a backdrop to the event.

In the end, the local police and fire chiefs estimated in excess of 5,000 people had joined us. When it was over at 7:30 PM, many small groups stayed. They sat in circles, candles lit, simply not ready to let go of the comfort of the gathering. It was the strangest atmosphere as it felt, despite their great numbers, that they stood together as they had all known each other. Speaking freely, among themselves, of their support and sorrow.

In my lifetime, I have never been exposed to the level of loss and violence of September 11th, I also have never experienced the joining of hearts and minds that resulted. God Bless America."