JANUARY 12, 2004


Chairman Perkins called the meeting to order at 7:01 PM.

Selectman Eayrs, Selectwoman Brunelle, and Selectman Wiksten were present.



Selectman Eayrs made two (2) corrections to the Minutes.

Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To approve the Minutes of January 5, 2004 as amended.

Unanimous Vote.


Meeting with Ed Whitworth – RE: E.R. Permit – Certificate of Completion

Ed Whitworth was present. He apologized to the Board for not being at the site on Saturday when the Board did a site visit. He said he had left his phone number with the Town Manager’s office, and thought he would get a call.

Chairman Perkins said that the Board saw what they needed to see.

Selectman Eayrs said that the Board had surveyed the property, and observed no top soil. He said what has been done there is a "hardship to the land". He said he did not see stockpiles of loam. He noted that Mr. Whitworth had mentioned he had put grass seed down, but Selectman Eayrs asked how it could grow without top soil.

Selectman Eayrs said he could accept that there would be no bogs, but said the landscape needed to be reconfigured. He said there was nothing "complete" about it, and therefore would not qualify for Certificate of Completion. He said the land is not protected, and is open to the elements.

Mr. Whitworth said he would not argue with Selectman Eayrs’s assessment of the property. He said he could produce an affidavit from employees that loam had been placed there. He said, in the Fall, it was seeded and hayed. He said he agreed that the east end of the property was loamed and seeded but didn’t take. He said Mr. Healey could say that there was grass growing at one time. Mr. Whitworth said his defense is that he did the work, but it was not Grade A loam. He said it was topsoiled.

Mr. Whitworth suggested that the Board decide what needs to be done and give him a punch list. He said the work would probably have to wait until the Spring.

Selectman Wiksten said the Board can’t issue a Certificate of Completion because the Plan isn’t complete. This is what Town Counsel has told the Board. He said Mr. Whitworth would have to submit an "As-built" plan showing where the project is now, including elevations, closeness to the ground water, vegetation, etc. If the Board approves the revised as-built plan, a Certificate of Completion could be issued.

Mr. Healey said there is a misconception of the possible end use of the property.

Mr. Whitworth said there would not be a subdivision, because it won’t perc. It would take lots of work to bring it to subdivision standards. He said he has a buyer interested now in building one (1) house with a barn and horses.

Mr. Whitworth said he has no money to build the cranberry bog, and didn’t know if there would be enough money to do an as-built plan. He said the situation is not that he didn’t want to build the bog. He said he is asking for some help to try to work something out. He said he understood the Board’s hesitance to "set a precedent" with other Earth Removal projects, but said every Earth Removal project is different. He noted that the Conditions for each project are specific to that project.

Chairman Perkins suggested that the Board reconvene a meeting at the site to point out their concerns.

Selectwoman Brunelle said that her biggest concern is the open area, looking barren with nothing growing. She said it cannot be left this way.

Selectman Eayrs asked how many acres of bogs were planned.

Mr. Whitworth said 12.

Selectman Eayrs said there was no sense to meet on the site, but insisted that an as-built be drafted, and the Board proceed from there. He asked Mr. Whitworth how many acres of space have been cleared.

Mr. Whitworth said eight (8).

Selectman Eayrs said that much has to be permanently seeded and "tied down" to start. He said there has to be something to support vegetation. He asked if Mr. Whitworth had any loam stocked.

Mr. Whitworth said he did not.

Selectman Eayrs asked if there was loam in the berm.

Mr. Whitworth said the top slope, which contains a few slopes, "turns pretty green in the Spring". He said, in order to remove the berm, trees would have to be cut to get equipment in.

Mr. Whitworth said he could take out the berm at Capeway Rovers, and go out that way. He said he had no disagreement with what the Board is saying about the conditions of the property. He said, in regards to the erosion and the pond, he did not have a chance to put riprap. He said it is sloped back towards Plymouth to the east. He said there has to be someway for water to migrate into the pond. He said he had some ideas.

Mr. Whitworth said he would rather spend the money to complete the property instead of hiring an engineer to do an as-built plan.

Selectman Wiksten said the Board cannot continue without the plan. He also said he would like the ConCom to be involved.

Selectwoman Brunelle noted that Town Counsel has said the Board can make an amendment to a current permit to bring it to a state of satisfaction to issue a Certificate of Completion.

Selectwoman Brunelle asked if there was a final plan for the reservoir.

Mr. Whitworth said it was built in accordance to the engineer’s plan.

Mr. Healey said the project is currently not permitted because it has expired. A Certificate of Completion was not issued because the project was not completed according to the plan. He suggested a new approved as-built plan be part of the re-issuance of the permit.

Mr. Healey suggested asking Mr. Whitworth to repair the erosion, reseed in the Spring, and when there’s a stand of grass revegatate the entire parcel that’s not vegetated now. Then an as-built can be prepared to reflect what is there. Mr. Healey said this would keep the cost of preparing the plan down. He said that the existing plan shows all of the elevations.

Mr. Whitworth said this sounded reasonable.

Richard Chamberlin, Chairman of the ConCom, spoke in regards to the erosion to the pond. He said he would rather not wait until the Spring as the rain could do more damage. He suggested haybales or siltation barriers be placed where there is existing erosion to stabilize it. He asked what the depth of the groundwater was.

Mr. Whitworth said it is 2’ in most areas, some higher.

Mr. Chamberlin said the ConCom has never issued a Certificate of Compliance without grass growing.

Chris Bradstreet, 16 Stone Street, said that Mr. Whitworth had agreed to the terms and conditions set to build a bog. He said he didn’t know how anything except what was agreed upon could be accepted. He said a "punch list" was created five (5) or six (6) years ago. He said any deviation from the project is "throwing away all of that work". He said he understood Mr. Whitworth’s financial situation, but noted "that’s what bonds are for". He asked if the Board considered another plan would all abutters be notified?

Diane Bassett, 30 Stone Street, said all abutters would have to be notified as a requirement of another permit.

Selectwoman Brunelle noted that Mr. Healey had offered some suggested as to what needs to be done. She suggested Mr. Whitworth go forward to finish what has to be completed, and then review it in the Spring.

Selectman Wiksten said Mr. Bradstreet’s comments have merit. He suggested asking Town Counsel if the Board would have to start over if the permit is to be amended.

Selectwoman Brunelle said Mr. Whitworth needs to get an as-built as to where he’s going to go before an amendment can be made to the existing permit.

Chairman Perkins noted that the permit has expired.

Mr. Healey said the Earth Removal was completed.

Selectman Wiksten said the end product is not there. There are no bogs, and the buffer is now gone.

Mr. Whitworth said he did not take anything from his neighbors. The buffer was his land. He said he would agree to providing an as-built but would not go through the whole process.

Selectman Wiksten said this was Mr. Whitworth’s choice.

Mr. Whitworth said the property was a "park" before he bought the land. He said there was no control over bikes and what people did to the property. He said he had offered to divide and sell the land behind the abutters when he purchased the property 15 – 20 years ago.

Selectman Eayrs said he agreed to public input. He said the only thing at issue is that the "land should become something". He said the Board should instruct Mr. Whitworth to take the plans and modify them to give indication of what he intends to do to make the property whole.

Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To instruct Ed Whitworth to take the plans and modify them to give indication of what he intends to do to make the property whole.

Unanimous Vote.

Mr. Bradstreet said the Earth Removal is not legally complete. He said the earth removal may be done, but the project is not completed as it was permitted. He also said he had no problem with Mr. Whitworth "turning the property into something else equitable.

Mr. Whitworth said he would contact the Conservation Commission regarding their issues.

Meeting with Betty Brown (Korpinen Cranberries) – RE: E.R. Permit – Certificate of Completion

Betty Brown was present.

There was discussion on the site visit that was done on Saturday. Ms. Brown said that she and her engineer waited for the Board, but never saw them.

Chairman Perkins said the Board did the site visit.

Because of the confusion, Chairman Perkins suggested rescheduling another visit in two (2) weeks.

Meeting with Steve Dixon, Bob Carter and Claude Miquelle – RE: Bay State Specialties – Rice Street

Bob Carter introduced Steve Dixon, a resident who has a construction company, and Claude Miquelle, who owns an architectural firm in Rochester.

Mr. Carter told the Board that he was interested in developing property on Rice Street, now known as Bay State Specialties. The building, built in 1897, was a shoe factory for many years. Bay State Specialties has owned the property for 30 years.

The proposal is for "A Shoe Shop Place". It would consist of 30 condo units (10 1-bedroom and 20 2-bedroom).

Mr. Miquelle explained that little change is proposed in regards to the footprint of the property. Currently, it is about 10,000 square feet. The proposal would have a 400 square foot addition. There would be 2:1 parking for each living unit.

Mr. Miquelle said there would be a function room on the first floor. Each unit would be unique, ranging in size from 700 sq. ft. to 1100 sq. ft. They would saving the "basic bones" of the building, noting it is sound.

Mr. Dixon said the group looked at what would be in the best interest of the Town in regards to renovating the building. He said the project would maintain the history of the building, help revitalize the downtown, help property values in the neighborhood, and
"turn an eyesore into an attractive part of downtown".

Mr. Dixon said a market study was done, and the project is feasible. 25% of the units would qualify under 40B. The prices would be $145,000 to $200,000 per unit.

Upon motion by Selectwoman Brunelle and seconded by Selectman Eayrs, the Board

VOTED: To endorse the project proposed by Bob Carter, Steve Dixon and Claude Miquelle.

Unanimous Vote.

Hearing – Request for Title V Variance – 685 Plymouth Street

Chairman Perkins opened the hearing.

Jeanne Spalding was present.

She told the Board that the variance is for property located at 685 Plymouth Street. The request is for a 3.9’ setback from the road layout as compared to the required 10’, a .53 reduction to the groundwater table and a .0016 slope reduction in the field slope.

Ms. Spalding told the Board that there were some "inconsistencies" with the design plan. According to Mr. Donahue, the engineer, there were two (2) outlet pipes from the house of which only the higher one was indicated on the plan. The slope elevations had to be minimized to meet the second outlet pipe further resulting in a pitch reduction to .0034 instead of .005. Ms. Spalding suggested this be addressed with a follow-up Title V inspection in two (2) years to ensure the system is working properly.

Ms. Spalding said the original design plan indicated a cesspool, which there wasn’t.

Chairman Perkins asked if this came from old records. Ms. Spalding said it did not. She said she was not sure why the engineer mistook the information.

Chairman Perkins asked if this was a new owner.

Ms. Spalding said it wasn’t. She said the upgrade is being offered to accommodate an addition being put on the house.

Chairman Perkins asked if Ms. Spalding was in favor.

Ms. Spalding said she was. She said the only other option would be a pump system, and there wasn’t enough room.

Hearing no further comments, Chairman Perkins closed the hearing.

Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To approve your request for a Title V Variance for the property located at 685 Plymouth Street, Middleboro, as follows:

3.9’ setback from the road layout

.53" reduction to the groundwater table

.0016 slope reduction in the field slope

The Board further moved that a follow-up Title V inspection will be completed within 2 years to ensure the system is operating properly.

Unanimous Vote.

Request for Title V Variance – Lot 1 Precinct Street

Chairman Perkins read a letter from Jeffrey Youngquist, Outback Engineering, Inc., requesting a variance from the Town of Middleboro Board of Health Rules and Regulations for property located at Lot 1 Precinct Street, for a reduction in the minimum distance from the proposed well to the SAS from 200’ to 151’ (proposed SAS) 200’ to 133’ (proposed reserve).

Elliott Schneider presented the plan to the Board. Wendy Souza and Cheryl Kutzy, owners of the property were present. Another owner is Bruce Gates.

Mr. Schneider that the request for 133’ should be 110’.

Mr. Schneider explained that several different perc holes were done on Lot 1. The area was impervious, and would not perc. Where the septic system is was a perc of less than 3 minutes per inch. He said one was 2 minutes.

He said the requirement of 200’ separation cannot be achieved on this lot.

Mr. Schneider said that Outback Engineering has determined that the water moves out significantly away from the well area. He said there is an impervious area between the well and the septic system.

Mr. Schneider showed the Board a topographical map which showed that the well is almost at the top of a mound. The direction of the water table goes to the swamp across the street, or the wetland area.

Ms. Spalding provided a copy of the regulation bylaw to the Board. She said she is never comfortable with new construction not providing the well setback. She said generally, the well site is designated after the appropriate excavation for perc tests and well sites have been located. She said that was not the case here. The lots were designated, and the applicants are trying to fit in the utilities after the fact. She said the decision is the Boards. She said, at the very least, she would require a deep well.

Mr. Schneider said every configuration of the lot has been tried.

Chairman Perkins asked if Ms. Spalding did the percs.

Ms. Spalding said the percs were done in 2001 by Richard Bagdasarian. She went out for re-verification.

Ms. Spalding said the Board can grant a variance for new construction based upon the water table, direction of ground water flow and soil conditions.

Selectman Eayrs asked, if the Board granted the variance, who would be responsible should the well get polluted.

Mr. Healey said he didn’t know if there would be recourse because the property owners are seeking the variance.

Richard Chamberlin told the Board that rules and regulations and bylaws are formatted for a reason and should not be taken lightly.

Chairman Perkins said he had misgivings at first in regards to the request, but said the fact that there is a tight soil surrounding it, he didn’t believe it would be creating a difficult situation.

Ms. Spalding suggested that the applicant be required to tie into Town water should it become available.

Mr. Schneider noted that the State requirement for the Title V setback is 100’. Middleborough’s is 200’. He said that the request is well within the State’s requirement.

Hearing no further comment, Chairman Perkins closed the hearing.

Upon motion by Selectwoman Brunelle and seconded by Selectman Wiksten, the Board

VOTED: To approve the request for a Title V Variance for the property known as Lot 1 Precinct Street, Middleboro, as follows:

Reduction in the minimum distance from the proposed well to the SAS form 200’ to 151’ (proposed SAS) 200’ to 110’ (proposed reserve)

Motion further required the following stipulations:

    1. Follow-up water testing in two (2) years
    2. If system should fail, to be repaired in place
    3. If water becomes available on the street, property must tie in
    4. Deep well must be installed

Unanimous Vote.



Request to Approve & Sign Order of Taking – Heidi Lane

Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To approve and sign the Order of Taking for Heidi Lane.

Unanimous Vote.

Request to Approve & Sign Agreement for Engineering Services – Tibbetts Engineering Corp.

Mr. Healey told the Board that the Town had agreed to take care of expenses for testing of roadway work on Plain Street, and to pay for police details. The Town applied for, and secured, Chapter 90 monies for this purpose. The cost of the police detail was $30,000 and the engineering cost is $58,000. Mass Highway has approved $88,000.

Chairman Perkins questioned language in the Agreement that said "It is understood that TEC shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, and TEC shall not be responsible for failure of the contractor to perform the work in accordance with the Contract Documents. It is also understood that TEC will be indemnified by the client against any third party suits against TEC on account of its actions or inactions."

Mr. Healey said this was a disclaimer for the performance of the contractors, because the contract is under Oak Point.

Selectwoman Brunelle suggested the Board get clarification from the engineering company.

Mr. Healey noted that the prior sentence says "Any work observed to be questionable in TEC’s opinion will be brought to the client’s attention". He said TEC will be "our eyes on the project". They will test materials and call attention to anything that is not 100%.

Selectwoman Brunelle said the intent was outlined in the following section: "… have TEC on the site on a regular basis to observe the work in progress relative to the approved plans and specifications."

Selectwoman Brunelle also noted a statement which reads "Materials testing services of any kind are not included in the AGREEMENT."

Mr. Healey will clarify the Board’s concerns and bring it back on January 26th.


Request to Rent Town Hall Auditorium & Waiver of Custodial Fees – Troop 20 Boy Scouts

Upon motion by Selectwoman Brunelle and seconded by Selectman Eayrs, the Board

VOTED: To rent the Town Hall Auditorium to Mary Ann Cunningham and Kathy Miquel on Saturday, February 28th from 6 – 10 PM for the Eagle Court of Honor for Boy Scout Troop 20, and to waive the custodial fees.

Unanimous Vote.


There was no "Old Business" to discuss tonight.


Mr. Healey said he still believes the Town will be $1.2 million short.

Chairman Perkins said that the news is reporting that the Governor will come out with level, or additional aid to towns.

Mr. Healey said the increase would probably be in Chapter 70 monies.

Selectman Eayrs asked why the FinCom had corresponded to the Selectmen by writing a ‘Letter to the Editor’ of the Gazette. He suggested Mr. Healey respond by writing a letter the editor.

Chairman Perkins said the Board should be prepared to notify residents if it gets any worse.

Mr. Healey told the Board that he had prepared a draft list regarding Tasks & Objectives. He noted that his Agreement calls for the list to be developed jointly. Mr. Healey began to go over the list.

Selectman Wiksten said he would have liked to have had the list before tonight. He said the Board will add to and/or delete items on the list.

Mr. Healey said that the Board had agreed to set a time to bring together Tasks & Objectives to discuss a list of those things that could realistically be achieved between now and the end of the fiscal year.

Chairman Perkins noted that the Board was also asked to prepare a list.

Selectman Wiksten said that some things on the list should be done anyways.

Mr. Healey said the purpose of going through the list is to determine what is jointly felt to be important so that they can be achieved in a timely manner.

Selectman Eayrs said the list was a good start. He suggested the Board take it and prioritize, adding some things, and bring it back to discuss.

Selectwoman Brunelle agreed the list was a good start. She said some of the goals are associated with financial matters of the Town, and will depend on what finances are available.

Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To review the list of Tasks & Objectives prepared by the Town Manager, and be prepared to comment at the meeting on February 2nd.

Unanimous Vote.

Mr. Healey said he had things to add to this list, and would be happy to receive any preliminary lists that the Board comes up with.


Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To pay the bill submitted by Hathaway Publishing in the amount of $307.51.

Unanimous Vote.


Review Town Manager’s Goals & Objectives

(See Town Manager’s Report)


Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To authorize the Chairman to further approach the City of Taunton for clarification.

Unanimous Vote.



Upon motion by Selectman Eayrs and seconded by Selectwoman Brunelle, the Board

VOTED: To enter into Executive Session at 9:32 PM, not to return to Open Session, to discuss Union Negotiations.

A poll vote was taken. Selectman Eayrs, Selectman Wiksten, Selectwoman Brunelle and Chairman Perkins approved.

VOTE 4 – 0



Diane Henault, Secretary