2002/05/22 Council Minutes

TOWN OF BEDFORD

TOWN COUNCIL MINUTES

MAY 22, 2002

OLD FIRE STATION

10 MEETINGHOUSE ROAD

A meeting of the Bedford Town Council was held on Wednesday, May 22, 2002 at the Old Fire Station. Present were Councilors David Danielson, William Greiner, Kevin Keyes, Michael Scanlon, Bruce Searing and William Van Anglen. Councilor Thomas Riley was absent. Also present was Keith Hickey, Town Manager. Chairman Scanlon opened the meeting at 7:10 PM.

Mr. Scanlon said the non public minutes of April 10, 2002 had a discussion about purchase of the Flatley property, and the Council voted to seal those minutes for a year. He asked if we can unseal them since it is now public information. Mr. Hickey said it was voted to be sealed up to a year or when the transaction is complete.

Mr. Greiner said on page 21, last paragraph, it should read that he “dislikes” the idea. On page 14, second paragraph, it should be “Erie, PA.”

Bedford Town Council – May 22, 2002 – Page 2

Ken Peterson, 43 Brick Mill Road, read a petition regarding the Manchester Airport:

interests well, Therefore be it resolved that this petition requests the Bedford

Mr. Peterson said he has looked into this, and there are several of these commissioners who are specific to a community. He believes if the Council goes forward with a formal position on this by contacting the Mayor’s Office, we might get something out of it. He thinks it is important for the town to be represented on this.

Mr. Danielson said there are 2 organizations – the Airport Commission, which is controlled by the Mayor and Aldermen, and appointees are made by the Mayor and Aldermen. There is a Planning Commission of which Councilor Paul Goldberg was a member of. Mr. Danielson will follow up on this. Mr. Greiner asked if Mr. Peterson is putting his name forward. Mr. Peterson said there are many qualified people in Bedford. He would be happy to serve.

Mr. Danaf, Green Meadow Lane, discussed the bullet found in his home. In addition to the damage, it caused them to become very concerned about the safety of their children and themselves. Had the bullet hit a person instead of the house, the injury would have been fatal. On the same day, members of the Pointer Fish & Game Club were practicing shooting between 9 and 11 AM. Their house is in direct range with the gun club. The bullet in their house matched bullet casings from the gun club. Although it can’t be confirmed 100%, it is very possible the bullet came from the gun club. They are still waiting for the police report. He is asking for help to get to the bottom of this and to make sure this doesn’t happen again. This is a safety issue for his family and the entire neighborhood.

Bedford Town Council – May 22, 2002 – Page 3

Mr. Hickey said they met with representatives of the neighborhood to discuss their concerns and to let them know where we are in the police investigation. They took the concerns the neighborhood had to Pointer’s Club. The Club representative took the information back, and they had a board meeting last night and voted on a number of those issues. They will be sending out a voting to the full membership that will be done the first Monday of June at their next meeting. Some of the recommendations/suggestions include having some type of a range card that the individual has to fill out when they enter the property so there will be a record of who enters the property. The Police Dept. will have a list of all members, and also a list of all board members and officers. Although their berm meets minimum requirements, they are willing to increase the height of the berm. They will bring in the National Rifle Association or some other group to come in and evaluate the range to determine whether or not there are issues that could be addressed and improved upon. They will investigate whether it is appropriate or allowable to change the direction of the range. One of the issues they have to address with Merrimack, is they would be changing it to southwest direction which would then be going into Merrimack. They are giving full access to the Police Dept. to go down there at any time if there is a complaint or a concern by the neighborhood. They will take a zero tolerance policy for non members. There are more and more people utilizing the facilities who are not members. People will be arrested for trespassing. They will post new signage along the gate so people are aware of these policies and procedures. We should hear back from them the first week in June.

Mr. Hickey said a question was raised on a moratorium until some of these things are addressed. He does not know if they are willing to do that. They also discussed limiting the types of guns that are fired down there. They did not address that at this time. The board members he has met with are willing to work with the neighbors and the town to try and resolve this.

Mr. Keyes asked if they talked about a range monitor, or someone being down there responsible for the club when it is open. Mr. Hickey said that was brought to their attention, but that was not one of the issues they listed. Mr. Keyes would like to urge them to consider that. He does not see how there can be any control if there is not someone who is responsible. He is convinced members of the group know who shot the bullet that day.

Mr. Hickey said they did bring that up to the board members they met with, and they went back and had that discussion at their board meeting. It was a clean up day at the range, and between the hours of 9 and 12 there was nobody shooting at the range, but some of the members heard shooting out towards the powerlines. This completely conflicts with the reports from residents.

Ann Legasse, 67 Green Meadow Lane, appreciates the talks with the gun club about safety concerns. The range is pointed at their neighborhood, and that is of the utmost urgency.

Anne Hoffman, 64 Cider Mill Road, said in Nashua the fish and game club have a totally fenced in place and reissue a key every year to members, and that’s how they control access. Re Joppa Hill Farm, she encourages the board to consider hiring a land use planner rather than a park planner for reviewing and planning the conservation and use of the farm. Re the ordinance that is coming up, she strongly encourages the board to oppose that. Mr. Scanlon said she can make those comments during that portion of the meeting. Ms. Hoffman said if there is any consideration of leasing any portion of Town property to the Mobil Corp., she very strongly urges the Council to oppose that. Mr. Scanlon said that is a vicious rumor.

Mr. Scanlon said, “recently comments were made by Councilor Riley to a newspaper stating that he thought there were reasons behind a Planning Board member not being reappointed to the board. His comments were not only irresponsible but inaccurate. One of the more important responsibilities the Council performs each year is the appointment of residents to the different boards and commissions. These people not only represent the residents of Bedford but the Town Council. Through the appointment process, it is our responsibility to insure that the people selected best represent the community. Therefore, it is important that these appointments represent the philosophy of the Council. This year, as a matter of fact, unlike in past years, all the Councilors were able to be 100% involved in the interview and nomination process if they so chose to. Each of us had our own reasons for supporting or not supporting the different applicants who applied. We were very fortunate this year as the list of applicants was long and their qualifications were high. It is totally inappropriate for a Councilor to levy accusations such as these, particularly if the Councilor recuses himself from the process. For any one Councilor to comment on the intentions or motives of the other six members is wrong, and we expect it will not happen in the future.”

Bedford Town Council – May 22, 2002 – Page 5

1. Presentation of proclamations to Kid’s Council & Discussion of Future Kid’s Council

Five members of the Kids Council were present. Mr. Danielson thanked the members of the Kids Council who completed the program. He introduced Sue Gibbs who has been the parent coordinator and Amy Schaltegger from St. Anselm College who is responsible for the college volunteer program. Mr. Danielson recognized Tom Cronin, also from St. Anselm College, who has been a member of the program and participated in all the meetings.

Mr. Danielson asked the five members of Kid’s Council who were present for their thoughts on the program. Their thoughts included: more hands on to get more involved; thought it was a good program to see how the town worked in different areas; some speakers went a little too fast and it was hard to follow; it was very interesting to learn the different areas of town; really liked it, but it was slow because they did not do a lot of hands on; had fun and learned a lot of rules he did not know about.

Mr. Danielson outlined the program for 2002-2003. It is an expanded program, broken down into 5 elements: A) The new Kid’s Council will operate for 18 weeks. Some comments were that the scheduling was not consistent. The new program will try to be more consistent on day and time and finish with a Kid’s Town Meeting; B) They hope to have the Institute of Politics at St. Anselm College become a partner, and hope to integrate with the speaker’s program at the college; C) They hope to add a second program for those who have completed this program and for freshmen and sophomores in high school. Maybe they will go to the county level; D) They propose to add a “This Town is Your Town” program for adults; E) Establish a budget with $5,000 as the goal. They do not want to ask the Town for money. They are hoping to secure a grant.

Mr. Danielson said another town has expressed an interest in doing the same program for their town. Mr. Searing asked what is the time frame for the grant. Ms. Schaltegger said they could get one of their grant writers involved. There is not a definite time frame. He would search for appropriate grants. Mr. Searing asked who would be the overseer and manage this. Mr. Danielson said he and Ms. Gibbs would stay with the program.

Bedford Town Council – May 22, 2002 – Page 6

Mr. Greiner said the agenda looks fairly regular. Is that too demanding? Ms. Gibbs thinks it will work well. It is like an extra-curricular activity. Mr. Scanlon thinks it sounds like a good idea. Mr. Searing thinks it is a great program. He expressed concern that when you expand a program from where it was the first year, and if you expand it to an extent that it is a much larger program and takes more resources in terms of people to volunteer to support it, his concern is you want to make sure you continue it. Mr. Danielson said that is why they approached St. Anselm to see how to institutionalize this. Mr. Searing asked if the expansion is too much for one year. Mr. Danielson said the priority program is the Kid’s Council Program. The second program would be the county program. If we get those 2 pieces in place, we could move onto the adult program. They will take it a step at a time.

Kitty Kelekci, Hitching Post Lane thanked Ms. Gibbs and Mr. Danielson for pulling this together.

Mr. Scanlon read proclamations for the following Kid’s Council members: Chiara Arcidy, Brooks Boucher, Deniz Kelekci, Jay Murphy, Christen Scanlon, Lisa Stebbins, Cassidy Stone, and Sarah Tyer.

Mr. Scanlon read a letter of thanks for Tom Cronin and a proclamation for David Danielson. Mr. Danielson read a letter of thanks to Sue Gibbs and presented her with a bouquet of roses. Ms. Gibbs presented Mr. Danielson, Mr. Hickey, Ms. Gaudes, and all members of the Kid’s Council with a package of cookies. Mr. Danielson thanked Keith Hickey, Martha Gaudes, and everyone who volunteered to help with the program.

Ms. Barron invited everyone to the library for a tour. She did it for the Kid’s Council, and they were amazed. Ms. Barron has been here a little over 6 months and said the Bedford Public Library is probably the best in the state due to the support of the Town Council over the past years and their Board of Trustees. They also have a Library Foundation who supports the library and enables them to do extras. There is a Friends Group who help with a lot of library programs and help fund things they could not do in the budget.

Bedford Town Council – May 22, 2002 – Page 7

They have 33 volunteers who help staff the library with a staff of 15 with only 3 full time. They have 11,397 borrowers and are open 7 days a week for a total of 61 hours a week. They have developed a web site. They are trying to develop more programs for teens. They have experienced and professional reference librarians. Some of their activities include: book discussion groups, museum passes, Sunday concert series, and monthly art exhibits and displays. They are offering more and more adult programs and are hoping to develop a lecture series. They have a very active children’s department. Last year they had 1,000 in their summer reading program.

Atty. Karen McGinley, (attorney for the Town Council) explained the history behind the 2 ordinances. Two years ago the Town Council enacted Article

25-3-2 concerning Clubs and Live Entertainment. She was asked to look at that ordinance and advise the Council how it could be revised given what has been learned in the last two years and what law changes have occurred. A determination was made that the ordinance needed improvement. The 2 leading cases in this area concerning minimum attire and consideration of First Amendment protection or right of expression are Barnes Vs. Glen Theater and the City of Erie. The Erie decision was issued by the court at about the same time the Live Clubs and Entertainment Ordinance was passed two years ago and was not available to the town. It is the most recent word from the Supreme Court on this issue.

The amendment to the Clubs and Live Entertainment Ordinance incorporate the provisions of the Erie ordinance that was upheld by the Supreme Court and encompass the holding of the Erie case in the area of the constitutionality of restrictions on expressive conduct. The opinion of the plurality of the court was written by Justice O’Connor. She stated in part “that although being in a state of nudity is not an inherently expressive condition, nude dancing of the type at issue in the Erie case is expressive conduct that falls within the outer ambit of the First Amendment’s protection.”

Bedford Town Council – May 22, 2002 – Page 8

Justice O’Connor went on to say that “even if Erie’s public nudity ban had some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch dropped, the exotic dancers are free to perform wearing pasties and g-strings and the effect on the overall expression is diminimus.”

Atty. McGinley said the first work they were asked to do was to close identified gaps in the Clubs and Live Entertainment Ordinance pursuant to the holding of Erie, and many of the changes were modeled after the Erie ordinance. In addition, the Council asked them to add provisions providing for criteria and information to be furnished to applicants for licenses, and that information be used as criteria for determining whether or not a license would be granted to someone who would like to have a club or live entertainment establishment. While working on these revisions, it came to the attention of the Council that a person in the town was considering opening a topless donut shop. The Council realized there was nothing in the Clubs and Live Entertainment Ordinance which would prohibit that activity, and they were asked to look at that conduct and advise them on a method of controlling that type of conduct.

The US Supreme Court in Erie said that being in a state of nudity is not inherently expressive. Therefore, absent expressive activity being in a state of nudity is not constitutionally protected. The Council asked them to draft an ordinance that would prevent unwanted activities such as a topless donut shop or other businesses and inappropriate activity. They were sent an indecency ordinance by the staff of the Town which they used as a base. Both the Prohibited Conduct in a Public Place Ordinance and the amendment to the Clubs and Live Entertainment Ordinance were based on their research and other ordinances. What they did in the Prohibited Conduct Ordinance to make sure it was not unilaterally directed at any type of business or public place is they used a definition for public place that they took out of other statutory language, and in this case it was the Americans with Disabilities Act which provides that certain public places, called public accommodations, must be made accessible to handicapped people. They decided that was a good definition for public places because it was broad in its definition. They have modified that.

Atty. McGinley went over the changes made to the two ordinances since the first reading to take into consideration some of the comments that were received at the first reading. In particular, in the definition of public places, they made it clear that the ordinance applies to public places only during the time of day when the public is present and likely to be present and doesn’t include other parts of those places that are not open to the public.

Bedford Town Council – May 22, 2002 – Page 9

For example, Atty. McGinley said she has a law office. The reception area and conference rooms are open to the public, but the individual offices are not, so they would not be considered public places. They are private offices. The Prohibited Conduct Place ordinance defines nudity. The definition applies to public places with some exceptions. One of those exceptions is the expressive nudity that is protected as expressive activity by the First Amendment of the US Constitution. These ordinances are graphic in nature. It would be easy for anyone to pick out phrases and portions of them to read in an effort to embarrass or otherwise make you uncomfortable. Both the Prohibited Conduct and Live Entertainment Ordinances are an effort to improve upon what currently exists in the Town of Bedford. Non substantive changes were made in the ordinances from the comments received at the first meeting. These were made available to the public as soon as the changes were made, both in marked and clean copies.

Atty .McGinley went over the changes. In the Prohibited Conduct Ordinance, the word morality or morals was taken out. While it is within the power of the Town to legislate based on morality, it was not necessary for the ordinances, and the Council felt it should be taken out. The definitions have a lead in that makes it clear that the definitions are only for use in these ordinances. There was an objection raised with regard to the definition of a person being someone that is under the age of 10. That is currently in the Clubs and Live Entertainment Ordinance. That is only for use in this ordinance and does not mean to imply anything beyond that, and in addition there are state laws that pertain and protect children and they would have precedence over anything that was passed here. There was a change made so that the portion of the buttocks that can be seen is more clarified in that there were examples given so that these would be easier to understand both by the public and the law enforcement community, and that change was made. Elaine Tefft asked her to reference the pages where the changes were made.

Atty. McGinley said on page 4, VI is the lead in to the definitions. The clarification and the definition of nudity is iii on page 4. The next change is in the limitation on when a place is deemed to be a public place on page 5. There was a change made in a place provided or set apart for nudity in that she added a little redundancy so that the paragraph would lead with the broader definition and with examples instead of the other way around, top of page 6. Below that in VII she gave a definition of what the word fondle means.

There were fewer changes in the Clubs and Live Entertainment Ordinance. There was a reference to the recitals in the Prohibited Conduct Ordinance. There was a title change in I on page 1 because they incorporated, at the request of the Council before these were issued the first time, both an opening and closing time. Previously it had only been a closing time. On page 4, there is a lead in with regards to provide the definitions for use only in this article.

These amendments would need to be adopted by the Town Council if they choose to adopt it as well as any other changes.

Mr. Keyes suggested a couple of changes in the Prohibited Conduct Ordinance. On page 3, III-C, he believes we can take that out completely. He thinks A & B pretty much cover the things he would be most concerned about seeing someone on the corner doing. Mr. Searing agrees because if you are out playing a ballgame and you have a need to adjust yourself, that could be deemed guilty of “C”. Mr. Scanlon asked if it is necessary to have that in there to make this enforceable. Atty. McGinley said that stands apart from A & B, so it’s removal would not affect the enforceability of A & B. Mr. Scanlon asked if that would be changing the intent. Is that more than a minor change? Atty. McGinley feels this is a substantial change. Mr. Searing doesn’t think we should be making these decisions based on whether it is a minor or substantial change. Mr. Scanlon said he is just curious. He is not opposed and has no problem. Mr. Danielson thinks the suggestion of the attorney was that what she could do as we went along she would keep track of the comments. Mr. Van Anglen would like to go through and have the attorney look at it in its entirety because the danger of one of these things is when you change one thing they all interconnect so it could change the spirit. He said what happened in the past is people looked at this and have taken one word or line versus looking at it in the entirety of the ordinance. He would like to hear what the different ideas/changes are and then see if it really does affect this ordinance as well as the other ordinance because they are interconnected. Under this condition, yes maybe it shouldn’t be there, but when you put it in context with the other ordinance he wonders if it is an issue.

Mr. Keyes said on page 6, VI – place provided for or set apart for nudity – he has received a lot of comments, e-mails and telephone calls. One that makes sense is we don’t want to make it illegal for a legitimate art school that does nude modeling to not be able to do that in town under the appropriate circumstances. Mr. Scanlon said that was covered in the definitions on page 5.

Bedford Town Council – May 22, 2002 – Page 11

Atty. McGinley said that is in the definition of public place. Mr. Keyes said it is prohibited in those places, but under circumstances where it is a nude model, why not just add it. Mr. Keyes said what he doesn’t want to have happen is someone set up an art school and charge $10 to get in and $20 for every paintbrush. Mr. Van Anglen said our intent isn’t to do that. He doesn’t see a problem putting it in. Mr. Keyes, page 6 VIII (e) suggested taking out the last few words “or any opening of another’s body.” These are pretty much covered. Mr. Van Anglen does not see an oral opening. Mr. Keyes said (b) and (c) cover those. Mr. Scanlon said if you want to pick your nose in public you can do it.

Mr. Scanlon said on page 5 (B) add “public place of recreation.” Atty. McGinley said we can, but it is a bit redundant but she never objects to redundancy as long as it is not inconsistent.

Mr. Van Anglen said on page 6 “person” – we defined it in context of this ordinance. He would like to define the intent a little more. What we are not trying to do here is, one way of reading that is to say it’s ok to do all of this with kids underage. That’s what some people have said to him. Our intent is to understand that there are children of certain ages that because of their age (2,3,4) might decide to take a bathing suit off at the town pool and run into their parent’s arm into a towel. We are not trying to address that. That’s not the spirit of the ordinance. He believes it is covered in the opening statement. That has been an objection. Atty. McGinley asked if it would be helpful by referencing the protective state statutes. Mr. Van Anglen said that might be helpful. Mr. Danielson understood that to mean that this does not impact children under 10. Mr. Van Anglen said it is more of a point of clarification.

Stanton Tefft, 7 Meetinghouse Road, said he is just as opposed if not more so than he was last time. He discussed the cost factor you are going to be looking at if you pass this. He said to Mike the other day, do you realize if you pass this you are looking at “X” dollars. His response was “oh, we anticipate that expense.” Atty. Tefft said there are some individuals and some national groups who are already very interested in what you do here. He has had 4 calls in the office, not to hire him, to find out what is going on and why you are doing it. There are several groups, well financed, ready to do battle with you if you pass this. When this is attacked, it won’t be attacked in Hillsborough County Superior Court, it will be attacked in federal court. He has spent about 40% of his time in the last 50 years in federal court. He knows the rules. He has tried a lot of cases in federal court. He has been a member of the bar of the US Supreme Court since 1959. In addition, he has written over 50 briefs and argued over 50 cases in the NH Supreme Court. He has a good idea what all of this work takes and what the cost could run to.

Bedford Town Council – May 22, 2002 – Page 12

Atty. Tefft said you have already got invested someplace between $10,000 and $15,000. You have these 2 qualified lawyers at $400 an hour sitting here tonight. You are going to spoil over $2,000 before the night is over, and that puts you over $10,000. Once this case gets into the federal court system, you will be starting to look at the high rent district. He estimates if you have to go in and try to support this ordinance in federal district court, you are going to spend between $25,000 and $40,000. If you win there, these groups are going to take it to the next level – the first district court of appeals. If you lose at the federal district court level, you have to make a decision do we cut our losses at $40,000 or $50,000, including the $10,000+ here, or do we appeal and go on and blow another several thousand dollars. Let’s assume you lose in district court, but you don’t want to take your tail between your legs and go home. You want to go to the circuit court of appeals. That’s an automatic appeal. If you make the appeal, the court has to accept it. You are talking another $40,000 to $50,000. The higher the level, the more expansive is the places we have to look to find cases to find argument, to find similar things. If you lose at district court level, and then don’t appeal, you are not only going to pay your own lawyer but in addition you are going to pay the other side because he is sure they will bring a 1983 or some other type of action which provides that the loser pays their attorney’s expenses. When a lawyer is charging somebody, other than his client, he has a tendency to read and write very slowly, and you are going to be stuck with an additional $50,000 to $100,000. So, even before you go too far, you are up to $100,000, and you’re not out of the ballpark yet. The same thing applies if you lose in circuit court. Again, you have to pay the winner’s legal fees. Mr. Scanlon asked if that is true if the town wins they would pay our legal fees. Atty. Tefft said very likely not. Sometimes they get granted,but I guarantee you the other way around is not always the case. It specifically provides for the plaintiff but not necessarily for the defendant to pay. If you win there, the other side will undoubtedly ask for a writ of certiari in US Supreme Court. That means they have to ask the court to accept the case. It’s not automatically accepted. There is probably not one out of 200 cases that is accepted by the court. Even just the preparation of the writ is a real pain and real time consuming. If it goes to the US Supreme Court, either way, by you appealing or the other side appealing, the sky’s the limit. If you go all the way, you are looking at a quarter of a million dollars, minimum. If you lose, you can almost double that. If you want to spend anywhere between a quarter of a million and a half million dollars of the taxpayers’ money of this town, go right ahead. Because that’s what you are looking at.

Bedford Town Council – May 22, 2002 – Page 13

Atty. Tefft said one of the things that amazed him is you have got this thing cranked up and had 4, 5 or 6 people come in and oppose it, but he has not heard a single witness support this. Usually, in these types of ordinances, usually local groups have come in and said we’ve got to have this, we’ve got to protect our children, we’ve got to protect our morals. There hasn’t been one person in the Town of Bedford that has come in here and said we want to have this. The only guys as far as he knows that are trying to do this is the 7 of you. He thinks you have to think about that.

Mr. Searing asked Atty. Tefft, you said that you are more upset with the changes than you were with the original. You said you disliked this more than you disliked it before. Atty. Tefft said he dislikes it more now than he did last week. Mr. Searing asked why. Atty. Tefft said he completely forgot last week about all this money going out of the window. Mr. Van Anglen said it has nothing to do with the changes we talked about. Atty. Tefft said as far as he is concerned, the thing is still bad. When Ms. McGinley said that law offices are not public places like our private office. That’s probably true in Devine, Millimet because you go in, you come into the foyer, they’ve got 6 conference rooms, and that’s where we always meet. Very seldom do you ever get to go to the offices. There are conference rooms on the mezzanine too. She can legitimately say, not only for the Devine firm, but the same is true for Sheehan, Phinney, etc. You have these private conference rooms, which is basically against the rules for the public to go up to the private offices. She is right as far as the big firms are concerned. He has 2 conference rooms, a reception room, and his office. The public goes in there all the time. He doesn’t differentiate between keeping people out of there.

Atty. Tefft said your retired senior partner, Mr. Branch, has a private beach, so if you are going to put public in that sentence, you had better except Bart’s (Branch) beach from the list.

Mr. Keyes said Atty. Tefft has made it clear that this is something he and Elaine (Mrs. Tefft) are opposed to. He questions if you turn this around, if this was something you were passionately in favor of, absolutely thought that this was the best thing for the town, and really thought it was something that needed to be done, would you suggest that if we feel that way that we should not pass it because we are afraid of the cost of litigation? Atty. Tefft said when he was on the board, he passionately did not like the Police Chief, Mr. Audette. He, amongst others, voted to fire Mr. Audette. He said to himself, this is a piece of cake, this isn’t going to cost much money. He was dead wrong. The trial was 2 or 3 days. The Town lost. The judge said we didn’t really have grounds to fire him. The bill from the Town’s attorney was something like $15,000 or $18,000, the bill from Audette’s attorney was $35,000 which we had to pay.

Bedford Town Council – May 22, 2002 – Page 14

If someone had said to him ahead of time, you’re going to blow over $50,000 trying to get rid of this guy, he would have pulled in his horns very fast because he does not think that he has the right, as a councilor, to spend that money, without a groundswell of support. Given the same thing to do over again, just on the cost directly, he would say no. Mr. Keyes asked if he would have kept a Chief of Police that he felt was not qualified. Atty. Tefft said he would have felt that unless there was a groundswell to get rid of him. He thinks the major cause of that related to the fact that he had publicized a domestic dispute situation, and the Selectmen felt that was something that he had absolutely no right to do.

Atty. Tefft said we have a state statute, RSA 645, public indecency. If this ordinance passes, what can a person be arrested for under the Bedford ordinance that they can’t be arrested for under the state statute? He read from the state statute “a person is guilty of a misdemeanor”, more serious that a violation because under your violation you’ve only got a $1,000 fine; misdemeanor up to a year in jail, $2,000 fine. It’s more serious. It’s also a crime of record which a violation is not. “A person is guilty of a misdemeanor if he fornicates, exposes his genitals, or performs any other act of gross lewdness under circumstances which he should know will likely cause affront or alarm.” That statute has stood us in good stead for many, many years. It’s flexible, it brings in a community standard concept. Another interesting thing about that statute which your ordinance doesn’t mention, is the factor of consent. Two people can violate your law consensually. They don’t have to be out like the guy in Manchester a couple of weeks ago on a public slide in McIntyre Park. He got nailed under this statute. You can just be patting a girl or sitting in a car moving your hands around. And she’s consenting. She says this is great. But under your statute that’s a violation. The state is more reasonable. Do you know of anything you could be arrested for under the Bedford ordinance that you couldn’t be arrested for under that? Atty. McGinley said given her recollection of the Bedford ordinance, some of that is covered also in the state statute, and this prohibitive conduct statute began with a proposed public indecency ordinance, and some of it would overlap with the state. Atty. Tefft said he is not asking that. His question is, what could somebody be arrested for under the Bedford ordinance that they could not be arrested for under the state statute? Atty. McGinley said it probably would be the topless donut shop. Atty. Tefft said you don’t think that under the state statute that somebody frying donuts naked from the waist up, and a police officer walked in, he couldn’t say that he thinks this is an act of lewdness under which circumstances you should know is going to cause affront or alarm. You are saying a cop couldn’t arrest for that? Atty. McGinley said the Bedford ordinance is more specific, and it specifically prohibits the activity that was of concern, and that statute is not specific and it’s application is not clear from the statute.

Bedford Town Council – May 22, 2002 – Page 15

Atty. Tefft said what you are saying is the only thing you can think of is if somebody could be arrested under the Bedford ordinance is if they were frying donuts naked from the waist up. Atty. McGinley said no, the way the Bedford ordinance is drafted is that if they appear nude under the definition in a public place under the definition. The example she gave was the topless donut shop; that is not the only……. Mr. Danielson is concerned this is getting into a debate. He doesn’t think that is the nature of the testimony. Mr. Scanlon asked if there is a point to be made. Atty. Tefft said the point is he believes and asserts that anything you could be arrested for in the Bedford ordinance…….. Mr. Scanlon asked why would the Bedford ordinance be more intrusive into your rights. Atty. Tefft said it wouldn’t be more intrusive. Mr. Scanlon said Atty. Tefft said anything you could be arrested for in the Bedford ordinance you could already be arrested for in state statute. Atty. Tefft said that’s right. Mr. Scanlon said then if we are not being any more strict on you than the state statute, what’s the problem. Atty. Tefft said you don’t need it. Why spend all that money repeating what the law is already. Mr. Scanlon said if this ordinance is not any more restrictive than state statute is already……… Atty. Tefft said there isn’t a prosecutor alive given the choice of prosecuting somebody for a misdemeanor or a felony, as opposed to prosecuting somebody for a violation, who isn’t going to pick the felony or the misdemeanor. This statute, meaning state statute, starts out with “the person is guilty of a misdemeanor”. Right off the bat, you are looking at a person arrested for this type of business who is looking at a misdemeanor. Why should the police cite the Bedford statute when they can get a guy for a more serious crime, same action, same conduct, for a misdemeanor. Don’t forget, the state statute goes on to say “if you do anything involving a kid under 12, it’s a felony.” You don’t have that in there. You don’t need this thing. It’s already covered. It already works. If this is the second or third time he has done this, he is in deeper, deeper trouble under the terms of the statute. Under your statute, it is still a violation. He thinks the prosecutor would probably agree with him they would much rather proceed with a felony or with a misdemeanor than a violation. That’s why prosecutors have a habit of throwing every charge in the book that they can think of because they have a better chance of proving something or they have a better shot at bringing about a better plea deal with a misdemeanor or a felony than a violation. Atty. Tefft said he is hopeful that you will take these things he brought up tonight and also the things he brought up last week, and somehow get rid of this thing. We do not need it. It is already covered better, it is more flexible, it is more complete, and it protects kids far more than this one does.

Elaine Tefft apologized to Atty. McGinley because she understood that she drafted the ordinance, and she believes she heard tonight that it was done by someone in the town and sent to you (Atty. McGinley). Atty. McGinley said they were sent both the existing ordinance, Clubs and Live Entertainment, and they did revisions to that. They were sent a public indecency ordinance and revised it given the comments they received from staff. Ms. Tefft was under the impression that Atty .McGinley had written it. Atty. McGinley said some of it they did. They took an original ordinance and revised it. Ms. Tefft did not think you could even bring this up tonight because of the 5-day requirement. She was informed that Bart Mayer (Town Attorney) gave his opinion that there were no substantive changes so that you could go ahead with the hearing. Ms. Tefft said what that says to her is that removing one word morals and one word morality, but leaving in what she refers to as trying to legislate morality which is what this ordinance does. That is still in there. She still has the same problem with that as she did before. She does not think it is your job to legislate morality. She thinks it is your job to protect the health and welfare of the citizens, and your job to use our tax dollars wisely. She will not address this issue because Atty. Tefft made that point.

Ms. Tefft still insists there be separation between the state and religion. She thinks this ordinance does exactly the opposite. It violates the first amendment. She does not agree that nudity is evil in and of itself. She doesn’t think it is offensive in and of itself. She thinks most evil is born in the minds of the beholder, occasionally in the minds and actions of the performer. She is distressed that you are going ahead with this. She thinks there are some issues that need to be addressed. She thinks you are asking a lot of the Police Dept. How are you going to train police officers to know turgidity, at which point it is turgid. She thinks that needs to be seriously addressed as does providing the court with proof. If you are going to go into the business of trying to delineate every kind of conduct that you personally find offensive, people are going to start trying to regulate that you don’t find offensive. She thinks the broad definition of public place, the list is way too long. She does not think giving an example of what fondling is is the same thing as defining it. She does not think there is a definition. She thinks it is too subjective. She objects to that. She does not think you have taken care of the covering the buttocks with a fully opaque covering which is different than covering it with a 3” wide strip. She thinks you are going to have some enforcement problems, and you are going to create problems. She thinks those are still in there. She almost got her hopes up when you started trying to take out things, but the bottom line is that you are not going to be able to take out or amend this. She finds it hard to believe that because someone said they were thinking of opening a topless donut shop that you are spending this kind of money on it.

Bedford Town Council – May 22, 2002 – Page 17

This appears to be a little sexist. She touched on this briefly the last time. It seems to be addressed to women not being topless. If this passes and she drives by a ballgame and any guy has his shirt off, she is calling the cops. If she drives by the town pool and a guy is topless, she is calling the cops if this passes, because she thinks it is an anti women statute. She thinks it is massaginist. She thinks, while it is ridiculous for someone to say men have to wear tops at the swimming pool too, she thinks it is equally ridiculous to say women can’t wear anything unless it is fully covered opaque and 3” wide. She doesn’t know what kind of a bathing suit that is. She thinks there are other ways to do this. She thinks the state laws are more than adequate. As a taxpayer she thinks there are better ways to spend the money. She could go through, as she did the last time, and ask about specific definitions and explanations, but it’s pointless. She thinks probably anything she says is not going to sway the Council one way or another as to whether or not you are going to pass this. She thinks you have probably had a ton of people talking to you. Your continued pursuit of something unnecessary and something that is going to turn out to be very expensive, not just financially but very expensive in terms of what people think of you. You start out by saying Bedford is this wonderful little community, yet the one thing you are spending a ton of money on is to make sure that there is no nudity in Bedford. There is no nudity in Bedford. She hasn’t seen any and she has lived here a long time. She thinks it is an over reaction to an issue that doesn’t exist except in a few minds. She doesn’t think it is real, and she doesn’t think it is a threat to Bedford. She thinks what is a threat to Bedford is the deviceness in this Town both the one that is compounded by Route 101 and the strong feeling on issues like the school. If you have an extra quarter of a million to half a million laying around, please spend it on the roads because even though you have some kind of a plan, it’s not making her life of riding around town any easier. She asked the Council to vote against it because she feels that’s the least she can ask for. Otherwise, if you are not going to vote against it tonight, then she is asking you to table it, and as long as the School Board is trying for a so-called emergency meeting to buy the Flatley property, she thinks you need to put on there, do you guys really want the public indecency/anti nudity statute that may end up costing us a quarter of a million or more to defend in court. She thinks you are going to find out that people don’t really want to spend their money like that because they don’t see it as a big issue.

Bedford Town Council – May 22, 2002 – Page 18

Atty, Bill Knowles, Portland, Maine, representing Mark Deane. It is with great disappointment that Mr. Deane, should these 2 ordinances pass, be filing on Friday morning a civil rights complaint in the US District Court alleging that the Town Council violated his civil rights as well as the common law and the land use law of the State of NH. Mr. Deane truly wanted to work with the Council in an effort to deal with your legitimate concerns and at the same time protect his business interest. That request was made and it was denied. Atty. Knowles said he is not an expert on erotic dance. He is making the assumption that the Council do not have expertise in the operation of erotic dance clubs or any expertise and experience in the arena of erotic entertainment. What you are doing to his business is taking the erotic out of erotic dance. Two provisions of your ordinance are why they are going to court. The first is the touching of the buttocks which now would be forbidden in Mr. Deane’s club. Also, the dancers would be required to wear non flesh colored pasties over their nipples. You will be taking steps to regulate erotic dance that are more far reaching than any community in the US has ever done. The Erie decision came down on March 29. Your ordinance of April 2000 was adopted April 12. Atty. Meyers, who Atty. Knowles is working with, had a conversation with the Town Attorney, Bart Mayer, who acknowledged that he had reviewed and considered the Erie decision when he helped draft that ordinance. Mr. Deane will tell you that when you regulate the dance to the extent that you are attempting to regulate, you do take the erotic part out of the dance, that historically touching of the buttocks is part and parcel of the dance, part and parcel of the erotic message that dancers deliver. The opaque colored pasties that are permitted today allow the shape and the form of the breast. What you have required is going to not only take away from the natural appearance of the breast because you are going to have non-flesh colored pasties, but the only available product would also disfigure that portion of the breast in that you can’t use latex in your new ordinance. It’s like going back to the 50’s where you would see the burlesque shows where they would have tassles. Mr. Deane wouldn’t be here tonight if he didn’t honestly and sincerely believe that your proposals would put him out of business. He trusts and hopes that is no one’s goal here.

Atty. Knowles does not know what attracts 6,000 people every month in your community to Mark’s Showplace. Mr. Deane has been in the business 12 years, and if this goes forward to trial there will be both testimony from dancers and from experts in the industry that will tell you that your regulations go too far with an ability to attract patrons and to provide an erotic message that is provided throughout this country in virtually every state.

Bedford Town Council – May 22, 2002 – Page 19

Atty. Knowles said Mr. Deane came into Bedford, and his club is managed by himself and Cindy Deane, who live here in Bedford at least 6 nights a week. This is his community, his home. He also had a club in Portland that he no longer controls or has any interest in. He didn’t come into Bedford without his eyes open. He managed for Mr. Chani, the facilities until you passed an ordinance on April 12, 2000. He looked at that ordinance, he made a decision he could work under it, he could live under it, he could make a profit. There is no question he has complied with the ordinance. Upon its passage, he started doing business, and Mr. Hickey and Chief Bailey went to the club, looked around, were concerned about the opaque colored pasties. The Chief’s comment was let us check it out, and 3 hours later, he came back and said no problem. These opaque colored pasties are permissible in the ordinance, and I guess you are right that they are used everywhere. Mr. Deane invested about a quarter of a million dollars in the club. He has never received any citation for any violation of any local ordinance, any state law, and never received a citation for a liquor violation. He has not received any citation for violation of your Club and Live Entertainment Ordinance. He is a model business in terms of compliance with the rules you set down. He relied upon your ordinance, he invested money, he employs 70 people, and about 6,000 people every month from your community decide they enjoy that entertainment.

Atty. Knowles is asking with respect to Mr. Deane, that you grandfather him or at least take out the 2 provisions, i.e. touching of the buttocks in a nightclub where you are providing erotic entertainment. He is not asking you to change that with respect to the public indecency ordinance, just under the expressive conduct. And also to allow him to continue to operate using opaque colored pasties. That would solve the problem. When he saw this ordinance, he asked Mr. Deane what is the big deal. Mr. Deane said he can’t do business. He thinks we owe Mr. Deane the benefit of his thoughts with respect to a business that he knows about and none of us do. He asked the Council to ask themselves, if some other business came up here, a business with which none of you had much familiarity with, and had been as far as you knew a model business, and told you that the amendments which you are going to pass would put them out of business, and that they truly came into town, relied upon an existing ordinance, and did everything they could to comply, and you agreed with that, would you tell that business person if it wasn’t the business of erotic dance, no, we are going to pass the ordinance and we are going to put you out of business. He doesn’t think so. He hopes and believes it is the lack of understanding as to what this could do to Mr. Deane’s business that has allowed these proposals to get to the point where they are without at least some modest changes to either grandfather Mr. Deane or take out the provisions which disrupt his ability to provide the kind of entertainment which this town has now given 2 licenses to. The first one was April 2000, and he got his second permit about a month ago.

Bedford Town Council - May 22, 2002 – Page 20

Atty. Knowles said when he looks at this ordinance to some extent what these proposals do with respect to adult persons 21 years of age or over, these proposals try to prohibit the appearance of nudity. He believes this goes to far to some extent in censorship. Why would nudity be permitted in theaters and a number of other venues in Bedford? Even the appearance of nudity, i.e. non-flesh colored nipples, is being considered inappropriate at a 21 year plus club who’s purpose on the license states is to provide erotic entertainment. The opinions of those who drafted the proposed ordinance banning simulated nudity at Mark’s Showplace, believe that is somehow bolder, more indecent, maybe more immoral, whereas nudity in the cinema, at the arts school, or in a number of other forums, is acceptable presumably because it has some artistic value. He can think of no other reason for this kind of distinction. So essentially then, he is of the view that the proposed ordinance is saying that those who frequent Mark’s Showplace preferring the burlesque over the dramatic, somehow need to be protected from their own lack of good taste by being deprived of the liberty to make bad aesthetic choices. That is why he believes the proposed ordinance is a censorship measure. The essence of censorship is the government’s assertion of its own moral, political, or aesthetic judgment in the place of a citizen’s perogative to make up his or her own mind. The basis of censorship in any of its forms is the government’s unstated trust of its own citizens. You have 6,000 people every month from this community, 21 year olds, mostly males, not completely, who prefer this type of entertainment.

Atty. Knowles said the folly in his view of censoring non obscene artistic activity, no matter how unsophisticated, originates not in the possibility of erroneous aesthetic judgment, but in the assumption that people’s taste can or ought to be controlled or regulated in the first place. It is part of the essence of art he suggests including popular entertainment, that each individual has the freedom to decide what is sublime and what is ridiculous. Therefore, he agrees to compare topless dancing with serious artistic expression is ridiculous in a way, but the idea that that distinction can be established through legislation rather than through individual response is even more ridiculous. None of you may admire those who wish to spend their Saturday night at the burlesque, but do you find it more admirable that the proposed ordinance will require someone, presumably someone on your payroll, to make nightly checks at Mark’s to see whether the covering on a woman’s nipple is fully opaque, non flesh colored and does not give the realistic appearance of a nipple. He wishes to suggest that the reason why it might strike you as ridiculous to compare the entertainment of topless dancing to serious artistic expression is because most of us, tend to be a bit snooty about what passes for entertainment in popular culture.

Bedford Town Council – May 22, 2002 – Page 21

The practical fact of passing ordinances which demand that politicians and judges play the role of art critic is simply to enforce conventional notions of educated taste, and therefore to allow highly sophisticated people to consume erotica in the theater, but to forbid the general public from doing the same thing at Mark’s Showplace. But the Constitution underlying our democracy does not look down its nose at popular culture. As Supreme Court Justice Potter wrote in 1966 “censorship reflects a society’s lack of confidence in itself. It’s a hallmark of an authoritarian regime. Long ago, those who wrote our First Amendment chartered a different course. They believed that society can be truly strong only when it is truly free. In the realm of expression, they put their faith for better or for worse in the enlightened choices of the people, free from interference of a policeman’s intrusive thought or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance.”

Atty. Knowles said perhaps the time will come in our society when males and females will no longer be sufficiently fascinated by female breasts to support a place like Mark’s Showplace. One thing however is for certain, this ordinance should not be the way to bring about that result. He asked the Council to give serious thought to letting Mark Deane do business under the ordinance that this town passed before he began operating Mark’s Showplace. Let him do business as he has outlined on his 2 requests for licenses under the Clubs and Live Entertainment Ordinance, and to allow him to continue to do business as is. Mr. Deane has told the Police Chief that he is not opening the donut shop. He could have opened this club to 18-year olds next door at the pool room. The Chief said it was a bad idea. He said fine. There is nothing that could suggest to you that Mr. Deane’s not trying to do his part. He asked the Council to consider what impact this had on his business and help him so he can do his part.

Mr. Danielson said Atty. Knowles mentioned 6,000 people from this community attend each month. How do you know that? Atty. Knowles said he asked Mr. Deane to keep track of that. He is not talking about the Town of Bedford. Mr. Danielson asked where do the 6,000 people come from. Atty. Knowles said it depends on how you define community. He doesn’t think of it as just the town. Mr. Danielson thinks the average person listening to the testimony would agree that this community referred to Bedford. Atty. Knowles said that was not what he intended. He meant surrounding communities.

Mr. Scanlon said Atty. Knowles said if we force them to use a purple pastie, in the Erie case the Supreme Court basically said “that even though you might be using erotic mesh, it has a minimal effect on the erotic message by meaning that portion of the expression that occurs when the last stitch is dropped the dancers at Kandyland and other such establishments are free to perform wearing pasties and g-strings.”

May 22, 2002 – Page 22

Mr. Scanlon asked if it is fair to say that if the Supreme Court says we can tell him he has to wear purple pasties then we are within our rights to do that? Atty. Knowles said no. He has the complaint filed with a 50-page legal memorandum, and the issues are very complex. He disagrees, but he is not going to debate the law with you. They would not be going to federal court unless they had a reasonable chance of success. They are going to push this as far as it can be pushed. It’s not the way he would like to see it dealt with. But, on a number of grounds you are going to exceed your Constitutional authority.

Mr. Keyes said he is not ready to table the Clubs and Live Entertainment Ordinance amendment until we have gone through the changes. Mr. Van Anglen is not ready to table it yet. He wants to hear from our attorney about the changes we made.

Mark Deane, owner of Mark’s Showplace, 390 South River Road, is here to say he thinks this is a little bit of an embarrassment for the city. He has tried to do his thing as far as keeping it as calm as possible, except he is a promoter and he does advertise. You can go 20 minutes south and see totally nude. He is keeping people from going south. He came here, spent money, and followed the rules. Now you are jeopardizing his job.

Mr. Danielson said it would have been a lot better for you to present yourself to the Council. Mr. Deane said he went to Mr. Hickey and sat down with him when he heard about this, and told him what he would like to see done. Mr. Hickey went back to the Council and came back to Mr. Deane and got the door shut. He is willing to work any way he can to keep everybody happy. He does not want to do this. He does not want to spend any more money.

Mr. Danielson asked if the Council feels the same way. It would have been more productive. Mr. Deane said he did try and it did not work.

Andy Egan, 183 Joppa Hill Road, said there is a small irony. A multitude of times it seems in terms of the hours spent waiting for Joppa Hill Farm in one form or another to come up as is scheduled on the agenda, has coincided for a year with the issue that is currently being debated. There has been some reference made to lack of community comment. He has heard some very compelling arguments this evening from some people who clearly know what their intentions are, what the precedents are, etc. As he understands Mr. Searing’s intent is he is suggesting this be tabled, and you all take the time to meet further with legal counsel. He encouraged the Council to consider what Mr. Searing was about to propose and take no final action tonight, consider all the ramifications, and all of the issues that have been brought before you and look into this matter further.

Arthur Ketchen, First Amendment Legal Defense Fund, said Atty. Knowles hit the nail on the head as well as the Teffts. When Stan Tefft read about the state statute and mentioned non consenting behavior that was forced, the language in your ordinance is so general in trying to cover every little single thing, it makes it even more convoluted, even more vague. No cigar on the art schools because when you say OK that’s a place reserved for public nudity, you still have the expression of expressive nudity. Artists don’t draw models with pasties. You have something where if it be compared to an operation, the doctor said, well his jawbone is fine, it’s reset, but his heart isn’t beating. By the way it is set up it is like quicksand. It is not only statutorily bad, it will also turn upon you because the law needs to be clear, and every judge knows that. If you pass this, it goes way beyond. The comparison to an authoritarian regime is certainly apt. In the United States, a town can only go so far, and he is very happy that in all levels of government there are checks on those, and the checks are on the side of the citizen, and Mark Deane is a citizen, and we all are citizens. You are limited still in many ways as a public official what you can do, and if you pass this it is like sowing the wind and reaping the whirlwind. This is a union; this is not a confederacy where everything in the union is together so it affects the interest of all of us.

Mr. Scanlon said he agrees that part of an exotic dance should be rubbing your hands over different parts of the body. An exotic dancer would not be able to touch her buttocks. On page 3, III-B, is it appropriate to take that out. Atty. McGinley said you could take it out but you would also have to change the

definition of sexual conduct. She said in the comments she has received from the attorney for Mark’s Showplace, this issue about touching the buttocks was not raised so it was not presented to the Council for consideration. You would not only have to make a change under b, but sexual conduct b-1, if you don’t change the definition would still preclude it. Mr. Keyes asked if we could just take out the third line which starts with the word “otherwise” and take out the words “or the”, so it would say “would prohibit the touching of another person’s own…….” Mr. Keyes said on licensing, page 2-b-ii talking about people who have committed a crime or otherwise subjected to criminal administrative penalty, “involving the management or operation of a live entertainment club.” Would we want, if we found out that someone had been found guilty of murder or prostitution, that wasn’t necessarily while they were operating a live entertainment club, would we still want that as a legitimate reason. It seems like it is limited only to things that they did while they were managing a club. Atty. McGinley said if you look at the third line, “or any other felony in the US”. That would require the reporting. She thinks there may be certain convictions you may choose not as a basis for denial or a license, such as drunk driving.

Mr. Keyes said on page 5, b-ii, same comment he had on the public place. Remove “or any opening of another’s body.” Mr. Van Anglen said on page 5, definition of person, add the RSA. There was no public comment on the Clubs and Live Entertainment Ordinance. Mr. Van Anglen said having heard these changes, he asked Atty. McGinley, putting them in their entirety, how does that affect the ordinances and the spirit of what we are trying to do. Atty. McGinley said the definition of expressive nudity, it does not prohibit the use of latex. “It may not give the appearance of or simulate the body part that they are covering. Liquid latex, whether wet or dried and similar substances which give the appearance or simulate the body part that they are covering. Body paint and body tattoos shall not be considered opaque covering.” That was a language change. If she looks at the changes in totality, there were many changes that first in the Prohibitive Conduct, the one change that gives her some concern because this is a publicly posted ordinance and while we don’t hear the vocal support here, that doesn’t mean there isn’t vocal support in the community that didn’t appear that have reviewed this ordinance. The one that gives her concern without reposting is III-c that was taken out. She would have to look at the Charter which governs this because the Charter doesn’t say that it’s only changes to the spirit of the ordinance that need to be reposted, it really has a fairly limited definition of what can be changed. It can’t be more than a clarification. This is a change as opposed to a clarification. She thinks that the other changes, even taken in totality probably are just clarification. She can add

Bedford Town Council – May 22, 2002 – Page 25

the state statute referencing the protection of children. That is the one change that causes her concern without reposting. She has less concern about the Clubs and Live Entertainment, but these two are tied together and you really need to pass the first before the second.

Mr. Scanlon asked if we can make these ordinances stand alone. Atty. McGinley said yes. It would require some redundancy of language.

Mr. Danielson said when we are satisfied that we have either the individualization of the two or we have enough data that we can go forward, that’s where we want to go. Mr. Searing said the intent of the motion is not to delay it longer than it has to be delayed in terms of making a decision. The purpose of the motion is we have heard a lot of input two weeks ago and we heard a lot of input tonight, and he thinks it is important for the Council to have some discussions with our attorney in regard to the legal ramifications and move on this sooner rather than later. Mr. Van Anglen agrees. There were comments made about nobody stepping up and supporting this, and it was only the 7 of us in our minds thinking this was needed. He has only heard 2 residents oppose it. He had heard lawyers from out of town, lawyers representing special interest groups, he has heard the Teffts, and that’s it. He does not see an overwhelming “don’t do it” from the town either. He has talked to a number of people about this who from varying degrees felt that maybe this was a little too heavy, a little too limited, reading it word for word versus the intent, but felt the spirit was the right thing to do. He wants to make sure that people understand that. Mr. Danielson is 5 to 1 – five have told him they really support the idea and one said they didn’t think it was a good idea. Mr. Scanlon has had more positive as far as continue what you are doing.

Bedford Town Council – May 22, 2002 – Page 26

Mr. Scanlon said we are at the end of finalizing a lease with Carol Whitson who wants to operate the Lakewood Educational Farm on the Joppa Hill property. The lease is for 5 to 20 years and will encompass 35 acres. Ms. Whitson was present. Mr. Keyes said the pagination is wrong. On page 2, Mr. Keyes asked about the definition of curtilage – he never heard of it. Re performance by lessee shall be re-examined on the first 2 anniversaries, he would rather see something more of a continuous review to assure compliance. On page 3, paragraph 3-A “all agricultural activities shall be in accordance with a coordinated management plan for the sites and soils of the premises.” He never heard of “sites and soils.” Ms. Whitson said that was from her attorney, and she will check with him. Same page, B – for one day a week during the school year. He would like to add the language “for the entire term of the lease.” On page 7, paragraph 7 re hazardous substances. He asked if there are any hazardous substances that are customarily used in farming. Ms. Whitson said they are not using any. On page 8, paragraph 10 alterations and improvements - Mr. Keyes would like to take out the language “which consent shall not be unreasonably withheld.” On page 9, “lessee shall also have the right without limiting or going to expand parking areas”. He thinks we need to add “with written consent of the lessor, including potentially Planning Board approval.: On page 9, “risk of damage” – he is not sure what that means. He suggested “all properties on the leased premises.” On page 10, indemnification – he could not figure that out. Something is missing. Mr. Danielson asked if the Town Attorney looked at this. Mr. Hickey said yes. Mr. Keyes said on page 11, paragraph 19 - “the premises and removal all the personal and property”. He thinks that should be “personalty.”

Mr. Danielson asked if Councilor Riley has looked at this. Mr. Hickey said the lease has been out there in this form, and every Councilor has had a look at it. He has not heard from Mr. Riley. Mr. Danielson has a problem that we do not have a plan in place. Philosophically he feels it is premature. It doesn’t mean he is against it, just means he would like to see it as part of a plan as opposed to an individual piece. On page 3 – b – consideration – “one day a week during the school year, school children from Bedford.” Who else can we expect, what kind of traffic intensity would we see there. Ms. Whitson said she will go to the schools for this. There might be a field trip but not on a regular basis.

Bedford Town Council – May 22, 2002 – Page 27

Mr. Danielson asked how many – 4 or 8 buses? Ms. Whitson said they could handle as many buses as they bring. Mr. Danielson said coming down that hill and you have buses pulling out. He is thinking of that issue. He feels we should be a little more definitive about how we want to handle that situation. Mr. Scanlon said we would only be talking about once or twice a year. Mr. Hickey said it might not just be the Bedford School District. It may be other towns. Mr. Searing asked if this needs to be in the lease. Mr. Keyes said yes because they are obligating themselves in lieu of rent. Mr. Searing said he was talking more about the transportation. He said Ms. Whitson will work with us on that. Mr. Danielson said his concern would be under paragraph B, page 3, that is working with the schools. He does not know why that would be in the lease if she is going out to the schools. Mr. Hickey said we want to show that there is going to be a value in the lease that Lakewood Farm is going to be providing to the town and/or school district in lieu of rent paid. There is a value to what she is doing. Ms. Whitson said the value is between $800 and $900.

Mr. Danielson said on page 4, paragraph F – “lessee shall work with the Bedford Conservation Commission to establish a public trail or trails to ensure public access to the remaining portions of the farm which are not part of the leased premises.” If they are not part of the leased premises, why would we care if they were gated or closed. Mr. Keyes said it is the old Joppa Hill Road trail. It will be gated at night.

Mr. Danielson asked if they are responsible for insurance. Ms. Whitson said yes. Mr. Danielson said on page 8, # 9 – fixtures and improvements. He is concerned, his impression is that the town is doing a fairly good piece of work here, and his concern is all fixtures and equipment including fences installed by the lessee shall continue to be their property and may be removed by them after the termination of the lease, including fencing. Mr. Keyes said if the farm goes away, why would we want the fencing. Mr. Danielson said if another organization wants to use it for farming, i.e., a farming museum. Mr. Scanlon asked if Lakewood would have a problem taking the fencing out. Ms. Whitson said it is a big expense.

Mr. Danielson said on page 9, # 12 – it is not clear re damage or reconstruction. There is no reference to who will pay for it. Ms. Whitson asked if that is all covered by insurance. Mr. Hickey said they will be required to have insurance on the structures they want to use, and it would be their responsibility to replace those structures. Mr. Keyes said it should say “at lessee’s expense.”