Town Council Decides to Take Toll Matter into Own Hands

Merrimack Town Councilors have decided that they are not willing to leave toll relief in the hands of local state legislators anymore and on Thursday night voted to explore the possibility of legal action against the state for what they call unfair taxation of the town that has had to pay a toll in and out of Merrimack for more than 20 years.

The Council voted to spend up to $5,000 to hire an attorney to look into whether they could have a solid case in court, where a judge might agree that the burden the town has shoulder since local lawmakers made what Councilor Tom Mahon calls “a deal with the devil” is unjust in the wake of continued improvements on the F.E. Everett Turnpike without further construction of toll booths in other towns.

Town Councilor Nancy Harrington said it’s time for Merrimack to “stop whining” about the cost and focus on the issue of constitutionality, or rather, the lack there of.

“My issue is the constitutionality of being treated differently from anyone anywhere else,” Harrington said.

She said she thinks that is something a judge may look into that has nothing to do with getting caught in the middle of a battle over legislation that was put into place in the 1980s.

Merrimack’s Senate Representative, former Senate President Peter Bragdon, R-Milford, urged the Council to tread lightly when it comes to talk of lawsuits against the state as that could land the community on a sour note with senators who supported legislation to remove one of the tolls during the most recent legislative session.

Bragdon said for 15 years, Merrimack’s state reps have unsuccessfully been lobbying legislation to have the tolls removed and for 15 years, the House has killed every bill that has come across the table.

“Everyone knoews a standalone bill to eliminate the tolls is not going to pass the House, it never has,” Bragdon said.

But, six months ago, the full Senate supported a bill to remove at least one of the tolls – the first time such a bill has ever passed a full body in the New Hampshire Legislature. Bragdon said despite the fact that the bill has stalled after the House Public Works and Transportation Committee voted 15-0 last week to recommend killing it, there are still options and discussions to be had about this legislation in the upcoming session.

“I urge you to be cautious about not doing something to undermine that support in the Senate,” Bragdon said.

A lawsuit against the state might do just that, he said.

Further, Bragdon pointed out that the argument that Merrimack has paid the tolls off in the 20-plus years they’ve been around is stale and simply untrue.

The tolls have never even brought in enough revenue in a year to make an interest payment on the $50 million bond that was taken out to install them, Bragdon said.

At the rate of revenue coming in from Merrimack’s tolls, if the town loses a lawsuit and the legislature refuses to provide toll relief for the town, Bragdon said the town simply will never pay off the bond for the tolls.

Harrington, and others, disagreed with Bragdon’s opinion that they should continue to hold tight and see how the Senate can help.

“I think there are things we can do and I’m not going to be intimidated into non-action,” Harrington said.

Bill Boyd said he couldn’t take Bragdon’s words at face value after the 15-0 House committee vote last week, calling that "a kick in the teeth."

 “The vote was 15-nothing,” Boyd said. “It doesn’t get much louder than that.”

And Town Councilor David Yakuboff said it’s become a matter of trust.

“As far as I’m concerned, I don’t buy it,” Yakuboff said. “…I guess the bottom line is, I don’t trust politicians.”

Councilor Dan Dwyer, who initiated the conversation about possible legal action, said he is also done relying on local reps and senators to fight for toll relief. Dwyer said the idea is to have a lawyer look through all of the bills and the extensive history of this battle, to interview key players and to come back to the Town Council in six or eight weeks and advise whether he or she thinks there is a solid enough case worth fighting in court.

Dwyer said without legal review the town doesn’t know what the best course of action is.

“The judge could say you were treated badly 20 years ago and nullfy the agreement,” Dwyer said. “... The judicial system fixes bad deals every day.”

Earlier in the night, during the public comments portion of the meeting, resident and former Town Councilor Mike Malzone said he does not mind his tax dollars going to a lawyer to look into a lawsuit. Another resident, Michael Mills, of Arbor Street, agreed.

“Having lived in this town for many years, I’m tired, if you will,” Mills said, quoting his grandmother who he says would have said “do your duty and get off the pot."

The town has made noise over the years, he said, but apparently not enough.

“We’ve stood in line to pay our tolls by the penny at the tollbooth,” he said. “Many of us have done that when that was the thing to do.”

But, Mills likened it to his own experience and said if he had a problem like this for the 43 years he’s been in business he wouldn’t just talk about it for 43 years, he’d resolve it.

“Let’s get off the pot, guys, it’s time for this town to stand up and say we are not paying a toll.”

The Council voted 5-1-1 to invest up to $5,000 for a lawyer to do some discovery and come back with a recommendation. Councilor Tom Mahon was the lone dissenting vote and Councilor Tom Koenig abstained.

The vote does not signify the town will definitively take legal action against the state. That decision could be made down the road based on more information including the legal opinion of the attorney, but that would be a separate vote.

“We have the right to fight this injustice and have our grievances heard and addressed,” Dwyer said. “The time for talk and whining should be over, lets look forward to our day in court.”