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Joyce Endee

Bethlehem voters say 'yes' to landfill agreement

January 25, 2012
BETHLEHEM — Since the first hint of a settlement agreement between Bethlehem and a landfill company, opposition to the deal has been heard loud and clear, but last Tuesday supporters drowned them out in a resounding 2:1 vote.

Fifty-three new registrations brought the number of voters in town to 1,743, and 992 ballots were cast. For Article 1 — to approve a 10-acre expansion to District V, which encompasses the landfill on Trudeau Road — the results were 622 in favor and 368 against. For Article 2 — to approve an exemption of all provisions of the aquifer protection ordinance for District V— 600 people voted in favor, while 384 people were against it.

The settlement agreement, which changes two zoning ordinances to allow North Country Environmental Services (NCES) to expand, while offering Bethlehem residents free trash pickup, a conservation easement and a host community payment, among other obligations, went into effect with the announcement of the results last Tuesday evening.

It had been a long several months of wait and see what Bethlehem would do after a decades-long history of legal disputes and mistrust. Years of railing against the landfill left people either tired of the legal battles and optimistic for a solution, or frustrated and dead set against allowing the landfill to continue operating. Now it's a wait and see of how the settlement agreement will actually pan out.

The town and NCES were facing a March trial that consolidated two lawsuits: one brought by the landfill company and the other brought by Bethlehem. A large portion of the dispute revolved around several ordinances that attempted to restrict the landfill's expansion.

In October, town and NCES officials held a mediation session, which eventually led to a settlement agreement that they said was to offer residents a chance at ending the legal battle on terms that were acceptable to both parties.

Last Friday, attorneys for the town and NCES overnighted documents to the court asking that the combined suit be dismissed and to make the obligations in the settlement agreement enforceable by Grafton County Superior Court. If there is ever a problem for either party, rather than file another lawsuit, the town or NCES can file a motion to enforce the agreement.

The rest of the to-do list involves the completion and conveyance of the conservation easement; an amendment to paragraph 5 in the settlement agreement that adds "parent" to the list of bound parties; an amendment at the request of the town to include the town buildings in the trash/recyclables pickup obligation; and conformation of NCES's lots of record to District V's additional 10 acres at the request of the town through subdivision and lot consolidation by the planning board.

Board of Selectmen Chairman David Lovejoy and Selectman Sandy Laleme said the vote will affect several lines in the budget that was due to be reviewed this past Monday — especially for legal services and the town's transfer station.

As of Jan. 16, before the vote, $86,968 was budgeted for the transfer station and $222,000 out of a total of $252,000 in legal expenses was budgeted for landfill-related issues, making the total saved this year by the agreement approximately $300,000. This year's landfill related legal bill was exceptionally high due to the impending trial.

The agreement will save the town a "great deal of money and a great deal of grief," said Lovejoy. "We'll rework parts of budget; the transfer station and legal lines will change, and that's not an inconsequential number."

Laleme said the town will still have legal costs, but not as much has it has over the past few decades.

With residents once again able to use NCES's transfer station, the town's new facility that opened this past summer will be closed, said Laleme. However, the "nitty-gritty" of how that and the curbside pickup will work had yet to be discussed with NCES manager Kevin Roy as of last week. Laleme said the transition will be made as best and conveniently as possible, though it likely won't be this week or the next.

During Monday night's Board of Selectmen meeting the board agreed the town transfer station would close by March 1, and will post notices and advertisements to that effect.

NCES attorney Bryan Gould said last Wednesday that the company plans to begin pickup within 90 days — allowing for the totes for trash to be ordered, a truck to be bought and a driver to be hired.

Roy said at Monday's meeting that work was being done to prepare the transfer station at Trudeau Road and that he was going to places ad seeking an attendant.

A Look Back

Many Bethlehem residents could recite the events of the past few months in their sleep — not to mention all of the events since Harold Brown received a variance for a 3.82-acre "landfill dump" in 1976. Those in support of a deal and those against it both worked for months to get others to understand their point of view.

The Board of Selectmen said they wanted to offer voters a chance at resolving the dispute. Both Lovejoy and Laleme said the board was open to looking into an agreement as they felt that there had been a shift in the town and a number of residents wanted an end to years of litigation.

The board began in mid-October with a mediation session between town and NCES officials. John Casella, who is CEO of NCES's parent company, Casella Waste Systems (CWS), was also involved in the talks in his capacity as president of the subsidiary.

A Memorandum of Understanding (MOU) soon followed the mediation session, which gave residents an outline of what the settlement agreement would include. The MOU included weekly curbside pickup of municipal solid waste and recyclables for all Bethlehem residences by NCES; use of NCES's transfer station; a host community fee; a 10-acre expansion of District V; a capped height; no use of mechanically stabilized earthen berms; use of state Tax and Land Appeals methodology to determine NCES's property for taxes; a conservation easement on a 47-acre parcel; a clause that NCES can't seek other permits to landfill elsewhere in Bethlehem; and the litigation dismissal.

By the end of November, the settlement agreement reflecting the MOU was drawn up, approved by both parties' attorneys and signed by the town and NCES; soon after, John Casella also signed a corporate guaranty of performance, which bound CWS to the agreement.

Bethlehem attorney Brenda Keith said the guaranty was a request on behalf of the town to cover for future events, such as the possibility that the landfill company filed for bankruptcy. Gould explained that while the term "parent" denotes ownership, it does not signify derivative liability, which is why the town wanted the guaranty.

However, several omissions in the guaranty ended up raising red flags for residents on the lookout for any loophole that might exist in the agreement. The document did not cover several clauses having to do with restrictions on development in paragraph 5 of the agreement, including the height of the landfill, acquiring additional property and the use of mechanically stabilized earthen berms. People where also curious why it hadn't been included in the settlement agreement, and Letters to the Editor accused CWS of slipping the guaranty in as a way to get around the restrictions placed on NCES.

The attorneys were confident in the agreement and defended CWS. Keith said "there was no last minute, backroom deal or scheme by Casella [Waste Systems] to avoid certain aspects of the agreement," and fellow town attorney Edmund Boutin said that Casella was bound to all of the "things a parent company can assume liability for."

Gould also said that "neither side tried to slip anything into the drafts," and the guaranty was not included in the settlement agreement because CWS was not a party to it.

Less than a week before the Jan. 17 vote, the Conservation Law Foundation (CLF) weighed in on the settlement agreement, citing a deficiency in the language of paragraph 5 as a cause for concern.

CLF Vice President Thomas Irwin wrote to Boutin and Keith that the failure to include "parent" in the list of those responsible for the terms in the agreement was inconsistent with "an unambiguous intent to extend landfill restrictions to [Casella]" in the MOU.

In response, John Casella signed an amended corporate guaranty on Jan. 13, which bound CWS to the "entire agreement" and all of the restrictions in paragraph 5. He also said "parent" could be added to paragraph 5 if the town so wished, though the lawyers "tell me the word 'parent' was not included in the settlement agreement only because the clear legal meaning of 'affiliates' includes a parent corporation like CWS."

As the selectmen's signatures on the agreement dried, the Planning Board, which had been a part of the mediation session but was not bound in the agreement to support it publicly, recommended 4-2 that voters not change the zoning ordinances.

Both board member Patrick Doughty and Chairman Don Lavoie voted to recommend the zoning change, while Teresa Tupaj Wood, Dan Webb, Jeanne Robillard and Harold Friedman voted against it.

Despite being well known for opposing Casella in the past, Lavoie had said he felt that the deal was the best the town was going to get.

He warned that if the agreement didn't go through and the town lost the court case — even if Bethlehem won at the superior court level it could still lose at in the state Supreme Court —then NCES could conceivably expand to all of the 100 acres it owns.

"If we lose the trial, we could lose it all," he said. "They get to put trash [from] fence line to fence line."

In response to people's distrust of CWS and NCES, Lavoie said, "I think they will do it if it's in their best interest."

When casting her vote, board member Jeanne Robillard said she didn't believe that the settlement agreement would end the lawsuits based on the town's experience with CWS.

When the floor was opened up to the public, resident George Manupelli questioned why the town was rushing into the agreement and denying Bethlehem its day in court — "squandering" all of the money that has been spent on protecting the ordinance.

The town has "voted 17 times against" expansion and agreement, said Manupelli, and instead established District V at the 51-acres and built its own transfer station "at considerable cost."

However, some residents, such as Rose Israel, were in favor of the benefits.

"I pay to have my garbage picked up," said Israel. "I'm going to save $700 a year" once NCES starts picking up the trash.

Though the selectmen publicly supported the settlement agreement, they had always maintained that they would uphold voters' wishes whatever the results.

Soon after the mediation, Lovejoy said the town was still "going full blast" on preparing for the March trial.

"I think that we are trying to give the town an option … if the town decides to go to court, we're with them 100 percent, and if they don't want to go to court, we're with them 100 percent," he added.

Still the board made an effort to make sure questions and concerns about the agreement were answered to their best of its ability. They scheduled two information sessions at the beginning of December, covering everything from health concerns and how the recycling and pickup would work, to what the landfill would look like if the agreement passed and how the conservation easement would be set up.

Lovejoy said during the first meeting that the board had come to the meeting with the question, "Is there a way to create a situation so we have control of this town."

"This is not the town of the Selectboard; this is not the town of the Planning Board; this is not the town of any small group; this is the town of Bethlehem," said Lovejoy. "If the vote is 'no,' we've wasted our time, but it's just time and we'll go forward with March."

Last Tuesday's results were almost a complete reversal of a June 2006 attempt at compromise. Six years ago, 969 voters voted on four articles with only one-third in support of the settlement that offered tipping and host community fees, an end to all litigation dealing with landfill expansion and the promise to close the facility no later than Oct. 1, 2016, in return for a DES-approved expansion. Not everyone voted for all of the articles, so the results averaged 355 in support of the agreement to 607 against.

After that vote, townspeople "were dancing in the streets and a block party ensued at the Cold Mountain Café on Main Street," according to a Courier story from that time.

Staff writer Art McGrath also contributed to this story.

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