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Legal opinion eases dispute between selectman, water district trustee

Attorney: Fryeburg Planning Board power unaffected by water district wording
By Laura M. Russo,  January 31, 2007  Conway Daily Sun

FRYEBURG—The Fryeburg Planning Board will not gain any power from requested amendments to the Fryeburg Water District’s enabling legislation, according to a legal opinion delivered to selectmen earlier this month.The opinion quieted a debate between Selectman David Knapp and Dick Krasker, member of the board of directors for the new Fryeburg Water District. The legal opinion partly reinforced the position of Knapp, who argued that the planning board does not have the power to regulate sale of bulk water as a commodity, while the opinion also backed Krasker’s position that the proposed language was not an inappropriate expansion of power of the planning board over bulk-water sales.

The argument, while mired in legal technicalities, spoke to a larger rift in the community over the planning board’s role in regulating large water withdrawals.
Two years ago, outraged at the Fryeburg Planning Board over its handling of aquifer protection and water-tanker truck traffic, citizens launched a petition drive to replace the current planning board members, asking voters to make the board an elected rather than selectmen-appointed body. This effort failed.
Around the same time, the Maine public advocate’s office suggested that Fryeburg citizens and the Maine Legislature create a water district as a way to remedy long-standing concerns with Fryeburg Water Co., including concerns over the company’s resale of water to international bottled-water giant Nestle Waters, parent company of Poland Spring.

Citizens especially found themselves polarized after Poland Spring received the planning board’s approval to build a silo and truck-filling facility on a 65-acre parcel in a rural residential zone along Route 302 in East Fryeburg. The site is to be connected to a wellhead in Denmark via an underground pipe. Tanker trucks — roughly 50 per day at peak periods, based on company estimates — will fill up with water at the station, if it is completed. A lawsuit now before the Maine Supreme Court seeks to overturn planning board’s approval.

Attorney Mark Kremzner of Hastings Law Office determined that, while the planning board lacks authority to overseee the sale of water, it can manage area aquifers, and that proposed amendments to the legislation guiding the water district would comply with this oversight.

Knapp acknowledged that the proposed amendments seemed innocuous.

“While the language is superfluous, it probably does not create extra power for the planning board,” he said. “The planning board does not have the authority to approve the sale of a commodity such as bulk water. This basically says the amendments are probably harmless.”

Kremzner’s legal opinion was sought after Knapp and Krasker butted heads in disagreement over the legal ramifications of the proposed legislative amendments.

According to Krasker, water district trustees asked for two amendments to the enabling legislation “to correct deficiencies that would make it difficult to carry out its mandate from the public.”

The first amendment aimed to allow ownership of property in New Hampshire so Fryeburg could continue providing East Conway residents with water, should the Fryeburg Water Company ever be sold. The second sought a permit for the purchase of water company stock, “as that may be the manner in which they wish to sell the company for tax purposes.”

But where the dispute arose was from a statement in a section titled “Additional Powers,” which indicated that selling bulk water comes “… with the approval of the town’s planning board.” This clause caused Knapp to challenge the planning board’s authority, arguing that the planning board’s control over bulk water withdrawal is limited to approval of a specific land use. Wording related to the “approval” of bulk water sales, he said, did not fall within the planning board’s jurisdiction.

“The inclusion of the planning board in the original legislation was, in my opinion, erroneous for a variety of reasons,” said Knapp. “Many in town continue to advocate for the planning board’s role in monitoring, enforcing and ‘approving’ bulk water withdrawals. Simply, that is not their job in either law or practice. … I have advocated for the creation of a separate, joint committee of district, planning board, and other town officials to undertake the monitoring, etc.”
Knapp added that “it makes sense, from a variety of perspectives,” to leave the planning board to approving the activity and application of any potential bulk-water users, rather than the follow-up of those approvals.

Krasker fired back that Knapp was meddling. He said the water district trustees “wished to share their displeasure and anger” at Knapp’s attempt to amend the district’s enabling legislation, calling his action “without any consultation with the directors of the district or its voters, and under a rationale that has proven totally lacking in law or fact.”

Krasker said, “Mr. Knapp is continuing to push his own agenda to separate the Fryeburg Planning Board from its voter-approved responsibilities to protect and manage the community’s water resources. If he wishes to pursue this, it should not be done in his position as selectman, but rather as a private citizen/voter, collecting sufficient signature to place an article to that effect on the agenda for the annual town meeting.”

After the rendering of Kremzner’s decision during a Thursday, Jan 18, selectman’s meeting, Knapp hinted that he may act along those lines, stating, “and what I do as a private citizen is still my business.”

A portion of correspondence from Kremzner dated Dec. 29, 2006, reads, “The Fryeburg Planning Board does not have the authority to assert how much water can be sold or in what manner it may be sold. However, the board has the authority to determine how natural water bodies, such as aquifers, are used and managed. In this regard, the board may issue rules and make decisions on how much water can be withdrawn from these water bodies, and how the quality and quantity of water contained in aquifers situated in Fryeburg are to be maintained. Such a determination, of course, has an effect on business transactions. However, the subject of regulation by the planning board is not the manner in which water, as a commodity, is sold, but rather the manner in which water, as a natural resource, is used and managed.”

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