Judge allows North Branch Fire District sewer dispute to proceed

The wastewater plant at the North Branch Fire District.

Don't miss the big stories. Like us on Facebook.  

DOVER — Select Board members declined to make interim appointments for a committee governing the North Branch Fire District, a request complicated by a lawsuit over the very issue.

“I really don’t want to wade into this,” Select Board Chairwoman Victoria Capitani said at the board meeting held May 4 with participants joining remotely via Zoom and the board stationed with attendees at the town office. “If you say this is going to court, I don’t think the town wants to get involved right now.”

A recent lawsuit filed in Windham Superior Court, Civil Division against North Branch and two committee members seeks to undo committee appointments alleged to have been illegal and allow voters to elect new members. Steven Montello of West Dover is being represented by James Valente of Costello, Valente & Gentry of Brattleboro. They are seeking a preliminary injunction against the North Branch Fire District, which runs a wastewater system in West Dover that is governed by the five-member Prudential Committee.

Attorney Bill Ellis of McNeil, Leddy & Sheahan of Burlington, who is representing the defendants, said the committee started to “suffer some attrition” in late 2019 and early 2020. He described how one member stopped coming to meetings and moved out of state, another committee member moved out of state and a third member relocated to Chittenden County after his house burned down.

“So we were down to two members and there was no quorum on that five-member board,” Ellis said.

Ellis said the complaint claims that committee appointments made by Tom Ferrazza and Dan Facilla, committee members who are named as defendants in the case, did not have authority to make appointments because they lacked a quorum at the time.

“They also claimed that the Prudential Committee doesn’t have the authority to make an interim appointment,” Ellis said, pointing to law cited in the complaint that gives the Select Board authority to make committee appointments until the district’s next annual meeting or a special meeting is called to have an election.

The plaintiffs tried to get all the seats on the committee up for a vote last week when the district’s election was held, Ellis said, but the defendants weren’t served in time. Three seats were filled, none of which was held by Facilla and Ferrazza, who also were appointed by the committee. Montello was elected to the committee.

Support our journalism. Subscribe today. →

Ferrazza told the board, “Basically this is absolutely going to wind up in court. All we’re asking is to keep this as a five-member board until such time as either the judge would say, ‘We accept the nominations from the Select Board to allow them to stay for the one year,’ or, ‘We’re going to have a special election.’”

Asked by the board why the request came now, Ellis said he recently started representing the district and read the law then figured approaching the board would be the best way to resolve the issue. He said he did not think appointments made by the board would factor into a judge’s decision.

Capitani expressed concern about a lack of committee meeting minutes explaining the appointments.

“I have so many questions that I think I would like to pass over this,” she said.

Board member Dan Baliotti recommended the committee hold a special meeting as soon as possible to “resolve their own issues.”

“I think this is a complicated situation but I don’t think involving the Select Board is going to make it less complicated,” Select Board Vice Chairwoman Sarah Shippee said.

Board member Joe Mahon suggested the request should have come in November. Facilla said appointments were made at a time with the best legal advice the committee could get.

Later, Mahon said he appreciates how the district came to explain the situation and make amends.