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STATE OF NEW HAMPSHIRE Coos County #2012-CV-_____ Charles W.

Kalil and Brenda Kalil Post Office Box 188, North Conway NH 03860 Street Address: 3 Kalils Way, Bartlett NH, Plaintiffs v. Town Of Dummer Board Of Selectmen Town Hall, 75 Hill Road Dummer, New Hampshire 03588 Defendant Verified Petition To Invalidate Selectmen Action & For Other Relief Under The Right To Know Law, Chapter 91-A Plaintiffs Charles W. Kalil and Brenda Kalil complain as follows: 1. Plaintiffs Charles W. Kalil and Brenda Kalil (Kalils) are residents of Bartlett, Carroll County, New Hampshire who own a tract of land in Dummer, Coos County designated Map R11, Lot 3 On the Dummer Tax Map (Kalil Land). 2. Defendant, Dummer Board Of Selectmen (Selectmen) is a public body as defined and described in NH Rev Stat 91-A:1-a, VI (d) of New Hampshires Right To Know Law. It has three (3) elected Selectmen members. 3. On December 12, 2011, the Dummer Zoning Board of Adjustment (ZBA), on appeal, issued a written Notice Of Decision issuing the Kalils permits to construct two (2) buildings on the Kalil Land. (Kalil Decision). 5. NH Rev Stat 677:2 provides in pertinent part: Within 30 days after any order or decision of the zoning board of adjustment, , the selectmen, any party to the action or proceedings, or any person directly affected thereby may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order (Emphasis Added) Superior Court

6. On reasonable knowledge and belief, on/about January 10, 2012 a document titled, Motion For Rehearing of Town Of Dummer Zoning Board Of Adjustment Decision Dated December 12, 2011 (Charles And Brenda Kalil), hereafter Motion For Rehearing, signed by two of the three Selectmen on 1/10/12 was delivered to the ZBA Chairman. The Selectmen were applying to the ZBA for rehearing of the Kalil Decision as authorized by 677:2 according to their Motion For Hearing. 7. The ZBA has scheduled the Hearing on the Selectmens Motion For Hearing on Wednesday, February 8, 2012. 8. Based on reasonable information and belief, between December 12, 2011 and January 11, 2012, the date by which the Motion For Rehearing of the Kalil Decision had to be filed with the ZBA, the Selectmen had four (4) meetings, meetings held December 12, 2011, December 19, 2011, January 2, 2012, and January 10, 2012. 9. Based on reasonable information and belief, including a review of the minutes of the the above-referenced four (4) Selectmen meetings, the Selectman never discussed or considered filing a motion for rehearing of the Kalil Decision or voted or made a decision to file a motion for rehearing of the Kalil Decision in or during any of their four meetings between December 12, 2011 and January 11, 2012. 10. It is also noted that, according to the minutes of the Selectmens January 10, 2012 meeting, there were two (2) Selectmen present for that meeting but one of the two signers of the Motion For Rehearing (signed on 1/10/11) was not present for that meeting. 11. As of January 23, 2012, there was no record, such as in minutes of meetings, the Selectmen ever discussed or considered filing or voted or made a decision to file the Motion For Rehearing at a scheduled Selectmen meeting. 12. The Preamble to the Right To Know Law states: 91-A:1 Preamble. Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people. (Emphasis Added) 13. The Selectmens decision to file the Motion For Rehearing was subject to the provisions of the New Hampshire Right To Know Law, Chapter 91-A. 14. At a minimum the Selectmen were required to vote or make a decision to file the Motion For Rehearing at a scheduled public meeting and ensure some record of their vote

or decision was kept, such as in minutes of a meeting. Not only does it appear the Selectmen did not do this, but it appears the Selectmen made no effort to do this. 15. NH Rev Stat 91-A:2-a Communications Outside Meetings states I. Unless exempted from the definition of "meeting'' under RSA 91-A:2, I, public bodies shall deliberate on matters over which they have supervision, control, jurisdiction, or advisory power only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III. II. Communications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1. 16. A decision to file a Motion For Rehearing under 677:2 is not exempt under 91A:2, I, which exempts bona fide chance, social or other encounters provided no decisions are made and discussions with legal counsel and on collective bargaining strategy. 91-A:2, II and III require, inter alia, all meetings of quorums of public bodies be public (unless expressly exempted), no votes be made by secret ballot (except in town meetings), and that minutes of meetings be kept and made open to the public within five (5) business days. 17. Based on reasonable knowledge and belief, the Selectmens decision to file the Motion For Rehearing was made at an unscheduled meeting held or conducted in violation of and not in compliance with the Right To Know Law. 18. NH Rev Stat 91-A: 8, Remedies, provides in II: II. The court may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation. 19. And NH Rev Stat 91-A:7, Violation, provides in pertinent part (a)ny person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. 20. The Kalils are aggrieved by the Selectmens violation of and non-compliance with the Right To Know Law because in order to benefit from the ZBAs Kalil Decision they must contest the Motion For Hearing the Selectmen filed with the ZBA without complying with the Right To Know Law and they may have to enter or defend an appeal to the superior court from the ZBAs decision on rehearing.

21. The Kalils assert the circumstances justify retroactively invalidating the Selectmens decision to file the Motion For Rehearing and their filing the Motion with the ZBA and an injunction to bar and prohibit the Selectmen from prosecuting their Motion For Rehearing as an appropriate remedy. This is not a case where the Selectmen made a good faith effort to comply with the Right To Know Law and fell short. It appears to be a case where the Selectmen made no reasonable good faith effort at all to comply with the Right To Know Law. 22. Invalidating the Motion For Rehearing and enjoining its prosecution is not a disproportionate remedy even though the 30-Day period to file a motion for rehearing expired on January 11, 2012. The ZBA obviously concluded that issuance of the building permits to the Kalils was proper and that the Town would still continue to exist and survive quite well after the issuance of the permits to the Kalils. 23. Finally there is no other appropriate remedy available that provides the Kalils relief or that enforces and maintain the dignity of the Right To Know Law. 24. NH Rev Stat 91-A:7 states in pertinent part: the courts shall give proceedings under this chapter high priority on the court calendar. 25. As already noted, the ZBA has scheduled a hearing on the Selectmens Motion For Rehearing On Wednesday, February 8, 2012. Wherefore plaintiff Charles W. Kalil and Brenda Kalil respectfully demand that the court: A. Issue Orders Of Notice In This Case And Give This Case High Priority On The Court Calendar For A Hearing As Required By 91-A:7, and B: Enter A Judgment & Decree Declaring That The Selectmens Decision To File The Motion For Rehearing And Their Filing This Motion With The ZBA Are Invalid And Void Retroactive To The Date Of Their Decision To File; and C. Enter A Judgment & Decree Invalidating And Voiding The Selectmens Decision To File The Motion For Rehearing And Their Filing This Motion With The ZBA And Prosecution Of This Motion Retroactive To The Date Of Their Decision To File,; and D. Enter A Judgment & Decree Permanently Enjoining, Barring And Prohibiting The Selectmen From Prosecuting Their Motion For Rehearing Before The ZBA And From Appealing Any Adverse Action By The ZBA On Rehearing; and