The House, Thursday, June 15, 2023

Deputy Speaker Steven SmithRep. Len Turcotte moves that the House nonconcur and request a committee of conference. Rep. Kuttab is recognized to speak against the motion. Let's settle down. The House will be in order. The member has right to be heard.

Rep. Katelyn Kuttab (R - Rock 17)Thank you, Mister Speaker. The Senate amendment to House Bill 467 just clarifies that this is only for new playgrounds. House Bill 467 provides accessible pathways to public playgrounds. This is a civil rights issue. Everybody should be able to use public places. We have little kids who cannot access a playground and grandparents who cannot access it to take their grandkids out to play. For me one of the most heartbreaking things to hear was the little kids at recess who are in a wheelchair and forced to sit and watch the rest of their classmates play while they themselves were unable to play. We owe it to these kids to do right by them and make sure they can use the playgrounds, just like they can use any other public building. We're all taxpayers. We all pay taxpayer dollars. We should make sure that every single person can benefit, that every single person has a reasonable way of accessing public amenities. I ask you to please vote no on this request for a committee of conference so that another, more sensible motion can be made that supports children. Thank you.

Deputy Speaker Steven SmithRep. McMahon is recognized to speak against the motion.

Rep. Charles McMahon (R - Rock 17)Thank you very much and good afternoon. Fellow colleagues, I rise in support of not supporting a committee of conference. The issue that we have before us here is accessibility for all of our families and citizens, regardless of age. What I bring to the table here is one thing that we have led the nation on, in my view, and I've been here for quite a while. I'm not old, but I'm aggressively mature. I hope that is a good thing. We have led the nation in home and community-based care. A big part of that is our parents taking care of their physically handicapped and, at times, mentally challenged as well, children and young adults and also parents. Prior to 1990, when it was a requirement to consider adjusting handicapped accessibility to public buildings, this one included, was the ADA. It has had some amendments since then and the last one in 2008 providing for reasonable, reasonable is the term, access. What we have with our playgrounds taking place, which this bill is focused on, and as the sponsor previously indicated, is what is coming to be built and that it provides that access for those with physical handicaps. Right now, in how playgrounds are built, and I'm one that did that in my town as well, was providing a strong, not pavement per se, but for the ability where wheelchairs, walkers and also canes can be utilized without causing a trip hazard. When we have the opportunity for young people to participate with their friends who are able bodied, but they can be right there with them, that builds up a comradery of support, not just with their families and friends, but with their town. Because everyone is working with cooperative collaboration to achieve consensus and that is to help each other. So, I'm looking here to ask you not to support the committee of conference so that we can move this opportunity forward for future planning of these projects. And to use one of the lines that I use, is to do it while we are young, and let's do it today. Thank you very much, Mister Speaker.

Deputy Speaker Steven SmithRep. Ball is recognized to speak against the motion.

Rep. Lorie Ball (R - Rock 25)Thank you, Mister Speaker. Having accessible pathways in playgrounds so those both young and old can access the playground equipment has been a federal law since March 15, 2012. The ADA 2010 standards requires an accessible path from the building or parking lot to the edge of the play area and again, an accessible path from the edge of the play area to the play equipment. Currently, many New Hampshire playgrounds use compressed wood chips to create these pathways, however, using compressed wood chips to create pathways requires routine maintenance to keep the chips compacted. Imagine the disappointment so many New Hampshire families feel when they arrive at a playground for an afternoon of fun only to find that the chips have been kicked around and loosened to the point that a family member in a wheelchair, using a walker, cane or crutches cannot traverse the now uneven path. As a primary caretaker to my mother, who is confined in a wheelchair, I can tell you that trying to include my mother in our families' outdoor activities required a herculean effort. New Hampshire is better than this. In New Hampshire we believe in supporting our friends and family with mobility challenges by assuring we provide equal access to all New Hampshire has to offer. This includes a fun filled day at our public playgrounds. Given New Hampshire's aging population and the number of grandparents who are now primary caregivers to their grandchildren and/or provide daycare for their grandchildren, we cannot ignore a situation that is not working for them. Whether it be pushing a stroller, being in a wheelchair, using a walker, a cane or crutches or assisting a child with a mobility challenge, New Hampshire's caregivers need accessible pathways in our public playgrounds made from resilient solid surface materials and not a loose fill or aggregate. It is well past time for New Hampshire to take proactive measures to assure all those with a mobility challenge have equal access to every piece of playground equipment every time they arrive at a playground. Please vote no to the committee of conference and then vote yes to concur so everyone, young and old, can enjoy equal access to our public playgrounds. Thank you.

Deputy Speaker Steven SmithRep. Donnelly is recognized to speak against the motion. Alright, Rep. Len Turcotte is recognized to speak in support of the motion.

Rep. Len Turcotte (R - Straf 4)Thank you, Mister Speaker. Let's start off making it crystal clear, there is nothing that prevents a town or a city from doing what this bill is asking to do. What we are doing here is trying to maintain a consistent policy in the Municipal and County Government Committee and I will speak a little bit more on that in a second. The ADA already has significant requirements for playgrounds. In fact, the summary document for playgrounds alone is 40 pages. That's the summary document. This bill would have the state mandate above and beyond what the already expensive ADA requirements contain. Now, I'm sure all of you are going to remember three bills that came out of Municipal and County Government this year that were state mandates thrown down onto towns. Each one failed here in a large bipartisan manner. One was four units on a single-family lot, one was rent control and the other one we actually tabled talking about two accessory dwelling units. We should never support state mandates on municipalities that have the ability to zone, or in this case, increase or add to the ADA requirements. Speaking on that last point, I've already opened up this speech talking about there is nothing that prevents a town from installing materials, as this bill would have them do. There is nothing that requires or prevents them from putting that on there now. If a town wants rubber or mats or whatever they want to do, they can do that. We don't need the state telling them to do that. It's our belief that we do not need to be adding red tape to making these playgrounds more costly than the ADA already requires. A primary concern of one of the sponsors was that a town that they were an occupant in, went and built a playground based on a contractor's recommendation and after completion, they realized it was not perfect so they would have to do some more work or potentially redo it. My points to this are one, caveat venditor. Why did the town elected officials not do their research, either on their own regarding what was required or on the contractors that sold them on putting in whatever they put in? We only heard that one side of the story, however. The main focus of the proposed bill appears to be, we have to require rubber matting because we couldn't or didn't do our homework, so we need the New Hampshire nanny state to mandate beyond the ADA. Again, there is nothing that prevents a town or city from putting down whatever material they want already without adding a mandate. So, in summary this bill contains excessive bureaucratic overreach that would require regulations that already exceed the comprehensive ADA rules. It creates a potentially expensive state-imposed mandate that can already be considered, and we do not need the potential for towns or cities looking at this expensive addition mandated by the state to the point where they decide maybe we don't even build a playground. So, for that reason I would ask that you nonconcur so that we can have a committee of conference. There is language that has been proposed that would at least inform towns through the RSA's that they should consider alternatives, but it would not mandate those alternatives. Thank you, Mister Speaker.

Deputy Speaker Steven SmithRep. Bill Boyd is recognized to speak against the motion.

Rep. Bill Boyd (R - Hills 12)Thank you, Mister Speaker. Mister Speaker, to my distinguished colleagues of the New Hampshire General Court, I rise in opposition to the nonconcurrence of HB 467. I will not be redundant in my testimony to you as our esteemed colleagues have made the eloquent argument against nonconcurrence. What I would say to you in opposition to nonconcurrence is this, we are all American citizens. We cherish the pillars of our Declaration of Independence, which is life, liberty and the pursuit of happiness. As legislators, we've taken the oath of our office to preserve, protect and defend our constitutions. We cherish our right to self-govern. If these devotions to the ideals of freedom and democracy are the keys to our civic responsibilities as distinguished members of the General Court, then isn't it the key to our ebullient humanity to include the devotion to the tacit agreement that we will leave our children with something better from which we received? I voted for HB 467 because I believed it would be made better and easier for all Granite State children and their families to access playgrounds in the future. Voting against nonconcurrence will permit all playground participants to freely congregate and recreate in these accessible areas. I sincerely ask that you vote against nonconcurrence so that another vote may be made. Thank you and thank you, Mister Speaker.

Deputy Speaker Steven SmithRep. DeSimone is recognized speak against the motion.

Rep. Debra DeSimone (R - Rock 18)Thank you, Mister Speaker and thank you, colleagues. I am the grandmother who has gone to the playground with my grandchildren using a cane and found it very difficult to traverse. I am the grandmother who looks forward to a better future for my grandchildren and for any child who would love to go and play with their friends and their peers and be able to get into the playground to have that fun. It's an important rite of passage. I look forward to a better future and to vote any other way on this bill does not provide a better future for the kids and the grandparents and the parents who use canes, wheelchairs or any other apparatus to get in and to get out of a playground. Nothing is worse than to see a child in a wheelchair sitting at the edge of a playground because they can't make it to the swing that is specifically made for them to use. I pray that you make the right decision when you vote. Thank you and thank you, Mister Speaker.

Deputy Speaker Steven SmithRep. Bordes is recognized to speak against the motion.

Rep. Mike Bordes (R - Belk 5)Thank you, Mister Speaker. I don't want to reiterate anything my previous colleagues said, but this is...Sorry, you can't hear? I don't want to repeat what my fellow colleagues said before me, but this is a commonsense measure. If you have two children and one is handicapped, you have to leave your handicapped child at the entrance of a playground because they can't go play with the other child and it's just commonsense to pass this bill. I appreciate your time. Thank you, Mister Speaker.

Deputy Speaker Steven SmithRep. Preece is recognizes to speak against the motion.

Rep. David Preece (D - Hills 17)Thank you, Mister Speaker. I'm here to speak in opposition to the motion for a committee of conference for HB 467. Children with disabilities aren't someone else's problem. They are our children, our grandchildren, our nieces and nephews. They are the children of our next-door neighbors. We are responsible for their care. In fact, in 2021, there were over 12,000 children in New Hampshire with some forms of physical disabilities. These children and their caretakers constantly face barriers in enjoying their fundamental, human rights and inclusion in our communities. Children with disabilities are overlooked, their capacities are underestimated, and their needs are given a low priority. When this bill was presented at the Municipal and County Government Committee, the committee members heard testimony that there were many obstacles for disabled people and their obstacles are found in all of our communities. They are reflected in policies, regulations created by governments. Some of the obstacles are physical, for example, barriers to public buildings, transportation and recreational facilities. This bipartisan bill seeks to amend RSA 155 by adding a new section requiring any playground in use on or after January 2024 have accessible pathways made of compositive surfacing and similar solid surface material. This bill would complement the Federal Americans with Disabilities Act. Improving accessibility will make playgrounds and parks more inclusive and welcoming to all children and their caretakers, especially those with disabilities. In addition, adding pathways made of these materials will relieve towns of the need to replace less accessible materials periodically and save money over time. In the municipal committee, as well as this House here, we both voted to approve HB 467. The changes by our friends on the other side of the wall have only improved the bill. If my fellow representatives believe as I do that New Hampshire State Constitutional Article I, that all men are born equal and this includes those children with disabilities and their caretakers, then we will do the right thing and vote down this motion of committee of conference and press the red button so another motion to concur with this bill can be made. Thank you very much.

Deputy Speaker Steven SmithRep. Pauer is recognized to speak in support of the motion.

Rep. Diane Pauer (R - Hills 36)Thank you, Mister Speaker. Colleagues, I ask you to support the motion on HB 467 to nonconcur so that the bill can go to a committee of conference. To be clear, this is not about accessibility. It's about an unfunded mandate. The part of the Senate amendment that changed the description of the material mandated for playground pathways is highly problematic for a number of reasons. First, the term "resilient" in reference to a solid surface material is improperly used, which created confusion. Resiliency indicates the ability of a material to absorb a fall and reduce severity of injury, specifically a head injury. A resilient material is one that needs impact attenuation industry standards. Typically, this applies to materials used under playground equipment, not on pathways. To be clear, material standards for accessible pathways are established to evaluate firmness and stability of the material, not it's resiliency. So, this wording is clearly a problem. Second, solid surface material that is not a loose fill or aggregate is a further concern. This language outright prohibits the use of other acceptable surfacing materials that are both ADA compliant and meet ASTM 1951 standards. Moreover, this language mandates the use of a single material and it's an unfunded mandate. Notably, material experts that I spoke with agree that the only resilient solid surface material that is not a loose fill or an aggregate is, in fact, solid rubber or rubber composite surfacing. So, in effect, the Senate amendment complicates the problematic language. Third, the single materials specified by this mandate have serious implications since rubber surfacing has a number of problems and concerns associated with it. Poured in place rubber surfacing is extremely expensive to install and maintain. Over time, and with exposure to the elements, cracks can form on the surface allowing moisture to penetrate to the subsurface below. Once a crack has formed, it slowly worsens through seasonal freezing and thawing cycles combined with the effects of erosion and oftentimes aggravated by vandalism. Eventually the surface is undermined to the point that a portion of it implodes requiring a very expensive repair by a qualified technician. Then there is the prohibitive cost factor associated with the installation of rubber surfacing. For example, for 200 square feet of solid rubber surfacing, the cost of materials and labor is $25 per square foot or $50,000 total compared to $3.75 per square foot or $7,500 for engineered fiber, which is ADA and ASTM 1951 standard compliant material. Rubber surfacing is nearly seven times more expensive compared to an acceptable alternate material. Such an extreme cost difference for the mandated rubber surfacing would unnecessarily drive up the cost of new playgrounds causing projects to be scaled back or even tabled because they are simply too expensive to build. Ironically, rather than providing more accessible playgrounds, this amendment will most likely end up having the opposite effect resulting in fewer new playgrounds. It's also worth noting that rubber surfacing is a petroleum based nonrenewable manmade foreign product. Rubber surfacing is not a green product. Rubber surfacing is not biodegradable, and it ends up in our landfills. There are also serious health and safety concerns associated with rubber surfacing. Under certain weather conditions, such as long sun exposure or extreme heat situations, it's possible to sustain thermal burns from the rubber surfacing. Additionally, there are a number of ongoing safety studies which may result in future federal regulations requiring the removal and replacement of rubber materials on playgrounds. Lastly, by placing into statute an unnecessary, expensive, unfunded mandate for playground design and construction above and beyond what is already required by federal law for accessibility, the amended bill constrains local control and decision making, which in turn, negatively affects local spending and taxation. Therefore, I urge my fellow colleagues to support the motion by voting yes so that this bill can go to a committee of conference. Thank you, Mister Speaker and I ask for a division vote.

Rep. Keith Ammon (R - Hills 42)Thank you, Mister Speaker and thank you for taking my question. Isn't it true that according to our state constitution, unfunded mandates are against the state constitution?

Deputy Speaker Steven SmithThe question before the House is whether to nonconcur and request a committee of conference on HB 467. Okie dokie, Len Turcotte requests a roll call. Is that sufficiently seconded? Yes, it is. This will be a roll call vote. The question is whether to nonconcur and request a committee of conference on HB 467. Rep. Grossman is recognized for a parliamentary inquiry.

Rep. Gaby Grossman (D - Rock 11)Thank you, Mister Speaker. If I know that this is a civil rights issue about freedom and access for all Granite Staters to enjoy our public playgrounds regardless of age or mobility issues. If I know that this is already federal law under the Americans with Disabilities Standards for Accessible design and has bipartisan support and support from the New Hampshire Municipal Association. And if I believe the deeply personal testimony that's spanned all ages, political parties and included a wide array of mobility abilities that would benefit from this legislation, then I invite you to support the bipartisan legislation and press the red button to ensure that all Granite Staters have the freedom to access our public playgrounds with their loved ones so that another motion can be made? Thank you.

Deputy Speaker Steven SmithRep. Pauer is recognized for a parliamentary inquiry.

Rep. Diane Pauer (R - Hills 36)Thank you, Mister Speaker. Mister Speaker, if I know that a prescriptive law for playground pathways mandating the use of a single expensive material with known negative characteristics and prohibiting the use of other ADA compliant materials, fails to make more playgrounds more accessible. And, if I know that the bill, as amended, is an imprudent and unfunded, overreaching state mandate that strips away local control and will unnecessarily drive up the cost of any future playground projects resulting in fewer, not more, accessible playgrounds across the Granite State. And if I know that towns can already install solid surface material if they want to, there is absolutely nothing stopping them, would I now vote yes to support the motion to nonconcur and request a committee of conference by pushing the green button so that the bill language can be properly addressed in a committee of conference? Thank you, Mister Speaker.

Deputy Speaker Steven SmithThe question is whether to nonconcur and request a committee of conference on HB 467 and this is a roll call vote. If you are in favor, press the green button. If you are opposed, press the red button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 161 in the affirmative, 199 in the negative, the motion fails. For what reason does the member rise?

Deputy Speaker Steven SmithRep. Kuttab moves that the House concur. Are you ready for the question? All those in favor, say Aye; all those opposed, Nay. The Ayes have it and the motion is adopted.