Plympton Selectmen Thursday night, Feb. 16, announced at a special selectmen’s meeting they had reached an agreement with Robert Smith, R&M Realty Trust and Rocky Harvest, LLC, ending years of litigation which has cost the town of Plympton more than $83,000 in legal fees, according to Selectman Christine Joy.
The terms of the settlement agreement were disappointing, not only to selectmen, but also to the few townspeople present.
According to the new agreement, Plympton will receive $20,000 as a one-time payment for all of the water payments held for years while litigation was pending, and $13,500 per year as an annual fee, beginning January 3, 2017. So Plympton will receive $33,500 in fees March 1, and $13,500 per year going forward..
John Henry asked the board what happens to the approximately $200,000 in fees over the years which have been held in escrow – “What happens to that?”
Joy answered, “We got what we could. $20,000 was what we were able to get.”
Henry said that the town should have appealed the verdict of last summer when the town lost a major piece of its litigation. “I heard that the judge fell asleep twice!” He also pointed out that town counsel Ilana Quirk, from Koppelman and Page, Plympton’s regular counsel, did not represent the town at this trial and instead sent an “underling” to present the case that was lost. Henry continued that the agreement is “blatantly unfair to Plympton.”
Joy answered that she disagrees.
Selectman John Traynor explained that after losing the case last summer, “what rights did we have? We weren’t going to win this.” Selectman Joy further noted that had they appealed that case and lost, “We would have lost everything.”
Traynor explained that the new agreement reiterates the original hours of the Sept. 26, 2002 agreement for judgment limiting the number of tanker trucks to 15 per day, only during the hours of 7 a.m. to 7 p.m. Monday through Friday, and 10 a.m. to 4 p.m. on Saturday. There is to be no operation of water sales or tanker truck traffic on Sundays, and 10 federal holidays throughout the year.
According to the settlement agreement, further disputes will be settled in arbitration, less expensive than in court.
Last summer’s lost court case upheld former Selectman Joseph Freitas’ letter on Selectmen’s stationery allowing Rocky Harvest to operate at any hour, even though it was never voted by selectmen. In fact selectmen were only made aware of the letter when neighbors complained about the increasing truck traffic and Rocky Harvest produced the letter as a defense.
Town Counsel Quirk, according to Henry, said that Freitas did not have the authority to write such a letter, and in fact the full board, had they voted on it, would not have had the authority to lift the court’s mandated hours of operation.
Plympton has entered into a settlement agreement to acknowledge that Rocky Harvest LLC is a successor in interest to the 2002 Agreement for Judgment and that the 2002 Agreement remains in effect and that Rocky may continue commercial water extraction so long as the requirements of the 2002 Agreement are satisfied and the uses at the 225 adjacent farm are agricultural.
Rocky’s agreed to pay Plympton $20,000 and to adhere to the original hours of operation negotiated in the 2002 Agreement for Judgment – not the hours set forth in the 2008 Freitas letter – and to pay the town an annual fee of $13,500.