AG’s Office Pries Open Freedom Polls for Part-Time Totem Pole Residents

Freedom — November 9, 2004 — A controversial agreement that prohibits owners in a recreational vehicle park from becoming residents may be in tatters when five seasonal residents exercised their right to vote Tuesday, after the the New Hampshire Attorney General’s Office intervened.

“I believe five people (voted),” Freedom selectmen’s chair Les Babb reported Thursday. Babb said he did not know if it was the first time park owners had voted.

Totem Pole Park campsite owners petitioned the Attorney General Office’s in August, after attempts to register to vote in Freedom were denied by the town, the planning board reported. Assistant Attorney General Bud Fitch notified selectmen in time for election day that even part-time residents on wheels must be allowed to vote in Freedom, provided they spend more time there than anywhere else.

The constitutional right to vote, Fitch said, trumps a recently amended agreement between the town and the park that would deny seasonal campsite owners town and state entitlements, including voting, schooling, well-drilling, welfare and motor vehicle registration rights.

After Tuesday’s vote, town officials are scrambling to re-evaluate the legality and enforceability of the entire agreement. The successful bid for voting rights, many fear, will further slash barriers that prevent the 459-unit seasonal condominium campground from becoming a 360-day per year trailer park and a drain on town services and overcrowd the schools.

Fitch said he researched state law contradictory to the 15-year-old agreement. The law, Fitch found, allows a small number of motor-home-driving owners who reside in Freedom more than anywhere else, to “claim domicile for the sole purpose of voting,” according to town attorney John Ratigan. Most travel to Florida and parts warmer for the winter and do not have another principle dwelling.

Fitch described the owners behind the initial petition as “spending a fair amount of time on the road: six months there, two months traveling between friends and family and four months in Florida.” He said such a case was understood by both sides as “extraordinary,” and that only “two or three older retired folks,” would register.

“We communicated with town officials,” he said. “This is not something where we say to Freedom, ‘Allow anybody who spends a weekend at the park to vote’. Those who own regular homes,” he said, “no doubt are not entitled to use (Totem) as a voting domicile.”

Fitch also cautioned that he investigated solely on the issue of voting rights, and that his office would only look into other restrictions in the agreement if asked. Serious questions continue haunt some of the clauses, including a seemingly illegal prohibition on private wells, refusal of school services and of motor vehicle registrations. “That is a question that will remain outstanding,” he said.

The enforceability of the failing document has been harshly questioned since it was approved in late August. A group of Freedom residents quickly contacted a lawyer to see if the document would weather a Totem challenge, but abandoned a potential lawsuit due to prohibitive cost.

Officials will meet with town counsel on November 9 in a non-public session to discuss the agreement and recent violations by Totem, according to Babb. “There have been violations of the agreement,” Babb said. “We need to discuss this with Totem Pole and see what’s happened.” Both selectmen and Totem’s board of directors have addressed various violations in the past and have reacted in some cases with evictions.

Tuesday’s act of voting by the five owners clearly violates the agreement signed by both the Totem Pole Park Association and the Planning Board. Clause 3 reads, “… such a circumstance shall be prima facie evidence of a violation of this approval and shall entitle the Town to revoke this approval or take any other enforcement action authorized by law.”

Without offering an opinion on the legality of the Freedom agreement, Fitch cited a California case where a homeless man was granted domicile for voting purposes in the public park where he lived illegally. Even as his claim of domicile was an admission of guilt, Fitch said, the man’s constitutional right to vote trumped the minor crime. “If that’s really where you live,” Fitch said, “and even if by declaring voting domicile you’re admitting to a minor crime, it’s not taking away your right to vote.”

“We can’t stop anybody from voting,” Babb added. “That’s never been the issue.”

In 1988 the Freedom planning board granted a subdivision approval to Totem Pole Park, ultimately allowing a group of private campsite owners two years later to establish an association on 12 acres on the shore of Lake Ossipee off of Pequawket Trail Road.

Totem Pole Park petitioned to amend the 1988 agreement with the town regarding seasonal use of their condominium campground sites in December of 2002. The petition asked the Freedom planning board to extend the park’s overnight camping season from six to 11 months, citing recent case law that would render denial by the town unlawful. The planning board reluctantly approved the amendment adding noise and well restrictions on August 19. Totem Pole Park accepted the approval about one week later.

Totem owners association president Paul Corbin could not be reached for comment Thursday. According to recorded messages his phone is temporarily disconnected and the park is closed for the season.

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