Information on Back-Flow Initiative at Asbury Grove

Written by Darcyll Dale,

Member of Hamilton Select Board

https://www.facebook.com/HWdemocrats/

I share the following information to Hamilton residents to clarify the issue regarding the Back-Flow initiative. My letter to Alex Mcgee is in blue and the response from Hamilton Town counsel to Alex Magee is in purple…..

I sent the following letter to the following town officials:

• Alex Magee (Finance Director)
• Cc:
•  Joe Domelowicz

Dear Alex (Magee),

This Back-Flow initiative is way more than just a routine maintenance issue; this project is meant to be a public health/safety measure. The critical aspect of this measure is for protection of health and safety of all the Townspeople who use Town water. It is a responsibility of the Town and its leaders to make sure the safety, health, and well-being of the citizens are secured. We need to rectify this situation as soon as possible. We can talk about the money later. The priority is the safety of the water we supply to the Town.

We have been playing with fire for a long time regarding the back-flow valve. The fact that we do not have a back-flow valve means that our water supply for the entire Town is under threat of imminent contamination from the septic waters of the Grove. Many of the places in the Grove do not have functional septic systems and that means their septic waters can “back-flow” into our treated water pipes. This is the issue that must be addressed by whatever means possible. If we are aware of this dangerous situation and we do nothing, we are in even bigger trouble. 

As a Select Board member – and a Biologist with knowledge of water-borne pathogens and parasites, we are at a point in time where it really is just a matter of Grove’s septic water eventually seeping in through frost heaves /cracks flaws in the pipes. 

My advice is to get this done as soon as possible for the protection of all the citizens of Hamilton. We don’t want to be on the wrong side of this. I can imagine the litigation against those making these decisions if the worst happens.

Thanks,

Darcy

Fri 2/18/2022 12:33 PM

Alex Mcgee, Hamilton Finance Director, forwarded the following advice from Town Counsel:

Public information from Hamilton Town Counsel, KP Law’s opinion on the Back-Flow Valve that will prevent “back-flow” of septic waters into our treated public water supply:

You have asked for an opinion whether the so-called anti-aid amendment prohibits the Town from expending funds for a backflow valve project at Asbury Grove.  It is my understanding that the project involves the installation of a backflow valve at the master meter that services the Asbury Grove property.  While the meter is located on Asbury Grove’s private property, it is my understanding that the Town owns the meter and related equipment.  You have informed me that the purpose of this project is to prevent backflows from private residences located in Asbury Grove from potentially contaminating the Town’s public water supply.  The project does not involve any upgrades to any of Asbury Grove’s service connections or other piping or equipment.    

As we discussed, in my opinion the so-called anti-aid amendment does not prohibit the Town from expending funds to undertake this project.  The anti-aid amendment, which is found in Article 18 of the Amendments to the Massachusetts Constitution, as further amended by Articles 46 and 103, provides, in pertinent part, that “No . . . use of public . . . property . . . shall be made or authorized by . . . the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents.”  Providing benefits to private non-profit enterprises is not prohibited, however, where the primary purpose of the expenditure is for the benefit of the general public and not the non-profit entity.  Attorney General v. School Committee of Essex, 387 Mass. 326 (1982) (funding for transportation of children to private schools is allowed because it is primarily for the benefit of the children); Helmes v. Commonwealth, 406 Mass. 873 (1990) (expenditure of public funds to allow private non-profit entity to restore WW II battleship was sufficiently for the benefit of the general public).

Here, since the purpose of the project is to prevent potential contamination of the public water supply, which is clearly a public purpose, the anti-aid amendment does not prohibit use of Town funds for the project.  Moreover, the project only involves the installation of a backflow valve on a Town-owned meter, and does not include any upgrades or improvements to the privately owned service connections or other infrastructure owned by Asbury Grove.  Accordingly, since the funds are being expended to improve Town-owned equipment which primarily benefits the public, in my opinion, the anti-aid amendment does not apply.

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