SELECTMEN’S MEETING

MARCH 4, 2002

 

Chairman Perkins called the meeting to order at 7:00 PM.

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

SELECTMEN’S MINUTES

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

VOTED: To approve the Minutes of February 25, 2002.

Unanimous Vote.

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

VOTED: To approve the Executive Minutes of February 25, 2002.

Unanimous Vote.

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

VOTED: To approve the Minutes of February 26, 2002.

Unanimous Vote.

HEARINGS, MEETINGS & LICENSES

Hearing (cont.) – Request for W.R.P.D. Permit – Peck – 167 East Grove Street

David Peck, the applicant, has asked for a continuation of this hearing, as his engineer is still working on the plans.

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

VOTED: To continue this hearing until March 18, 2002.

Unanimous Vote.

Meeting with Ryan Rose – RE: Sale of Plymouth Street School

Chairman Perkins read a letter from Dan Murray, dated February 26, 2002, which informs the Board that a deed to the Town or the school district, has not been found which includes the Plymouth Street property. Attorney Murray is asking the Board to advise whether they want to terminate the sale agreement, or take other action.

Ryan Rose, the successful bidder of the property, was present. Chairman Perkins read a letter from Mr. Rose that offers to pay the fees for Land Court up front, if they can be deducted from the purchase price of the property. Mr. Rose believes that adverse possession of the property would be the quickest way to create title.

Mr. Rose told the Board that he had contacted Attorney Robert Mather, and was told that the cost for Land Court would be approximately $5 – 10,000.00. The process could take up to six (6) months, depending on how much work Attorney Murray has done.

Selectwoman Brunelle asked if the property could be taken by eminent domain.

Selectman Eayrs said that he found it incredulous that the Town would build a school on land they did not own, and assumed a document must be somewhere. He suggested Selectmen’s Minutes may refer to this. He did not feel that the Town should terminate the sale agreement, noting that this would show bad faith on the Town’s part. He asked Mr. Rose if there were any other issues that might impede the sale.

Mr. Rose said he has already been through the Zoning Board and the site has passed a perc test.

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

VOTED: To direct Attorney Murray to provide a solution, possibly eminent domain, which would expedite the sale of the Plymouth Street property.

Unanimous Vote.

The Board suggested he may want to talk to Attorney Mather.

Mr. Healey suggested this would be a good challenge for Mike Maddigan, a local historian. Jane Lopes also offered services from the Historical Commission.

Hearing – Request for All Alcoholic Restaurant Liquor License – Fisher’s Chicken House, Inc. – 450 Wareham Street

Chairman Perkins read the following: "A hearing will be held by the Board of Selectmen on Monday, March 4, 2002, at 8:00 PM, in the Selectmen’s Meeting Room at the Town Hall, located at 10 Nickerson Avenue, Middleborough, MA, for the purpose of discussing the request made by Fisher’s Chicken House, Inc. d/b/a Fisher’s Chicken House, for an Annual All Alcoholic Restaurant License for property located at 450 Wareham Street, Assessors Map 087 Lot 2229, Middleborough, MA. Anyone desiring to be heard on this matter should appear at the time and place designated." The hearing was opened.

David Fisher was present and returned the green cards.

Mr. Fisher told the Board that he is interested in making a family restaurant at this location. He suggested there may be light entertainment, but was focusing on the food service. He noted this was a well known landmark, and was bringing this back. A liquor license was being requested to complement the meals.

The business would be open six (6) days to start, expanding to seven (7) days for lunch and dinner.

Chairman Perkins asked when the business may open. Mr. Fisher said he hoped to open the restaurant prior to the summer traffic. A lot of cleaning is being done right now.

William Cook, an abutter, had concerns with parking across the street from the restaurant. Mr. Fisher said he could not really address Mr. Cook’s concerns until he was into the business. There is parking for 70 – 80 patrons.

Selectwoman Brunelle suggested posting "No Parking" signs on that side of the street.

Mr. Hatch, another abutter, had concerns about the "light entertainment". He noted that previously this was loud, and caused overflow parking.

Mr. Fisher said the focus will be on food. He has not really thought about the entertainment, which he does not have in his other restaurants. If it was not become a problem, he would not do this. His plan is to have a DJ or a guitarist. He said he is not looking to make this a nightclub. It is not going to be the "last call" type of place.

It was noted that Mr. Fisher has had no problems or complaints with his other establishments.

Hearing no further discussion, Chairman Perkins closed the hearing.

Upon motion by Selectman Eayrs and seconded by Selectman Wiksten, the Board

VOTED: To approve the request made by Fisher’s Chicken House, Inc. d/b/a Fisher’s Chicken House, for an Annual All Alcoholic Restaurant License for property located at 450 Wareham Street, Assessors Map 087 Lot 2229, Middleborough, MA.

Unanimous Vote.

Meeting (cont.) – Request to Approve Motorcross Dates, Sunday Licenses & One Day Liquor Licenses – Capeway Rovers

This meeting was continued from last week. Chairman Perkins read a letter from Dan Murray dated March 4, 2002 which gave his opinion as follows: "My opinion is that the change in the identify of the license is not an unlawful change in the nonconforming use. I think that such a change does not fail any part of the three part test which is used to evaluate changes in nonconforming uses." …….My opinion is that the increase in the number of youth races along with a reduction in the number of adult races is not an unlawful change in the nonconforming use. I think that this change does not implicate any of the three tests for unlawful changes in a nonconforming use."

Selectwoman Brunelle made a motion to approve the request for the request motorcross dates and associated licenses. Selectman Eayrs seconded this.

Selectman Wiksten questioned the need for rain dates.

Norman Collins said that the rain dates are in as requested by the Selectmen. He noted that previously traffic could not get down the street, and they had to come back before the Board to request rain dates.

Selectman Wiksten said that he was concerned that the rain dates would allow additional races to "slide in". Mr. Collins said he had no problem removing these dates.

Selectwoman Brunelle amended the motion to exclude the rain dates, Selectman Eayrs seconded it.

Mr. Collins noted that two (2) of the dates will be benefit races for the youth of Middleborough.

Selectman Wiksten asked about the starting time. Mr. Collins said they do not start before 9:00 AM and a policeman is on duty to enforce this. Selectman Wiksten suggested a notice be sent to the police.

Chris Bradstreet read a letter to the Board. He had several concerns, and he is asking that they be answered by Town Counsel. He said that Mr. Murray had raised may questions in previous letters, and they should be discussed.

Selectman Eayrs noted that the property has been a nonconforming use for decades.

Mr. Bradstreet said that the Zoning Board had labeled the property as a non-conforming use, and any change would have to be approved by the test put forth by Mr. Murray.

Selectman Eayrs said that that is a ZBA issue.

Selectman Eayrs said that race dates are left to the Board. Unless there is a compelling legal argument, the Town and its Boards have sanctioned the use of the Capeway Race Track since before zoning. He said he is sympathetic to the abutters, but noted that Capeway has a right to carry this on.

Mr. Bradstreet said he has been coming before the Board for over (10) years. Different Boards make different decisions. He suggested that if the issue he is raised is not for the Board of Selectmen, that it should be sent to the proper people.

Mr. Healey noted that the letter from Town Counsel dated January 4, 1996 that Mr. Bradstreet has referred to, has to do with an entirely different subject, BMX racing.

Chairman Perkins suggested that the letter from Mr. Bradstreet be forwarded to Dan Murray.

Another abutter asked that the races that may be approved for youth races, stipulate that use.

David Berbine, 50 Stone Street, said that the noise has gotten longer and louder because of the graphics around it, woods have been torn down, houses and cranberry bogs have gone up. He asked if there was any way to curb the noise. He suggested the races stop at 5:00 PM.

Selectman Eayrs noted that what was tolerable years ago is intolerable because of the buffer zone being chewed up. He noted it is not the fault of Capeway Rovers, nor the abutters. He suggested the abutters get together with the Capeway association and try to work out a solution. He noted both sides have rights.

Selectman Wiksten noted that the number of races has grown from 11 to 19. He asked how this can be controlled.

Mr. Collins said the number of adult and youth races has always totaled 19 – 20.

Selectwoman Brunelle suggested Mr. Berbine address issues of additional building or developing with the Planning Board. She noted that Mr. Bradstreet’s questions are zoning issues, and this Board cannot address them. The Board can address the number of races and the times.

Selectman Wiksten said he had other questions that he would like Town Counsel to answer.

Selectman Rogers suggested an independent party be hired to come up with solutions to the noise. He said the number of races is not the issue, the noise is. Mr. Berbine asked the Board to address the time of the races.

Mr. Collins said he has spent $500,000.00 bringing in an engineer, and putting up berms and walls.

John Nickerson, 18 Stone Street, asked what assurances the Board has that another organization would not come forward and request more dates.

Selectman Wiksten asked if the time could be changed to 5:00 PM. Mr. Collins said this would not be possible. There would not be enough time to finish races, especially if there was a stop time in the race. He said that they now finish between 6:00 – 6:30 PM. Selectman Wiksten suggested the day could be shortened by classes. Mr. Collins said that they don’t make the classes, it comes with the sanction.

Mr. Collins said that he understood everyone’s problems, and he has spent a lot of time and money trying to solve them. He is now putting a 6’ stockade fence on top of the berm. He noted that the engineer that was hired had suggested berms. Where this was not possible, 12’ walls were placed. He said this has all helped.

Selectman Wiksten made a motion to limit the time to 5:00 PM. Selectman Rogers suggested a compromise of 6:00 PM. Selectman Wiksten amended his motion.

Upon motion by Selectman Wiksten and seconded by Selectman Rogers, the Board

VOTED: To restrict the license time from 9:00 AM to 6:00 PM.

VOTE 2 – 3 (Selectman Eayrs, Selectwoman Brunelle and Chairman Perkins against.) Motion did not carry.

A vote was taken on the previous motion to approve the following dates:

To approve one day liquor licenses, motor cross permits and Sunday licenses for races to be held on the following dates from 9:00 AM to 7:00 PM:

March 31, 2002 August 18, 2002

April 28, 2002 September 8, 2002

May 19, 2002 October 13, 2002

June 30, 2002 October 27, 2002

July 28, 2002

Also, Motor Cross Permits for youth races were approved for the following dates:

April 20, 2002 August 3, 2002

May 4, 2002 August 10, 2002

May 11, 2002 September 28, 2002

June 15, 2002 October 19, 2002

June 22, 2002

July 13, 2002

VOTE 4 – 1 (Selectman Wiksten voted against)

Upon motion by Selectman Wiksten and seconded by Selectman Eayrs, the Board

VOTED To forward the letter from Chris Bradstreet to Dan Murray, adding questions and concerns from Selectman Wiksten.

Unanimous Vote.

NEW BUSINESS

Set Order of Conditions – Samuel Pike – 38 Short Street

Chairman Perkins read a letter from Dan Murray dated March 4, 2002 that stated "My opinion is that the Board may accept a suitable bond with someone other than the record owner of the premises as the principal under the bond. The relevant provision does not require the record owner to be the principal under a bond".

Selectman Rogers suggested the project should have three (3) phases, with Phase 1 being to clean up the material on site.

Mr. Healey said it is most important to restore the buffer first, rather than move material around the site.

Selectman Rogers suggested that the site should be cleaned up, especially with the Farm Plan, which should become part of the Earth Removal plan.

Mr. Healey said this could be worked in as a third phase.

Selectwoman Brunelle said that the most important issue is the buffer zone. Discussion of removing the piles had not been an issue, and she did not feel it could be incorporated in this Order.

Wording had been added that would restrict Mr. Pike from spot picking materials, but rather proceed in an orderly fashion. Selectman Wiksten asked how this would be enforced.

The Board reviewed the standard conditions, and made the following changes:

Upon motion by Selectman Wiksten and seconded by Selectman Rogers, the Board

VOTED: To remove "the day after Thanksgiving" from condition #3.

Unanimous Vote.

Selectman Rogers had several suggestions for additional conditions, including monitoring of the well, not standing trees to be cut, trimmed or removed, with a fine of $1,000.00 imposed for violation and/or immediate revocation of the permit, and providing a de-watering operation to the Town’s Agent.

Upon motion by Selectman Eayrs and seconded by Selectman Wiksten, the Board

VOTED: To incorporate Selectman Rogers’additional conditions into the Order of Conditions for Samuel Pike.

Unanimous Vote.

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

VOTED: To include the resetting of the fence at the Holt property line and planting of seedlings along the fence.

Unanimous Vote.

Selectwoman Brunelle noted that the Bylaw provides for fines. Selectman Rogers’s suggested fine would be in excess. Upon motion by Selectwoman Brunelle and seconded by Selectman Wiksten, the Board

VOTED: To amend Selectman Rogers’s modifications to refer to the fine to be imposed in accordance with the Earth Removal Permit Bylaw. – Section 6.

Unanimous Vote.

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

VOTED: To approve the Earth Removal Conditions for Samuel Pike, 38 Short Street, as amended.

Unanimous Vote.

Request for One Day Liquor License – A+ Bartending Services, LLC

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

VOTED: To approve the request made by A+ Bartending Services, LLC for a one day liquor license for Saturday, March 16, 2002 from 6:00 PM to 12:00 AM for a function to be held at the COA.

Unanimous Vote.

Request to Renew Auditor’s Agreement

The financial officers recommend approval of this request.

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

VOTED: To approve the renewal of the Contract with Thevenin, O’Grady & Co., LLP for the years 2002 – 2004, based on the proposal dated January 15, 2002.

Unanimous Vote.

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

VOTED: To authorize the Chairman to sign the renewal as stated above.

Unanimous Vote.

Request to Amend Irrevocable Standby Letter of Credit – Oak Point Associates, LLC

Mr. Healey explained that this request is being made because of a change in the maturity dates of credit. The Planning Board has already approved their Letter of Credit.

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

VOTED: To amend the Irrevocable Standby Letter of Credit for Oak Point Associates, LLC to extend the expiration date to October 23, 2002.

Unanimous Vote.

Request to Rent Town Hall Auditorium – Jean Bagdon

The Board received a request from Jean Bagdon to rent the Town Hall Auditorium to hold an Eagle Scout Court of Honor on Thursday, March 28, 2002. Ms. Bagdon told the Board that she had been notified by Sacred Heart Church that they would not be able to use the parish hall (where they normally meet) due to Holy Thursday.

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

VOTED: To approve the request made by Jean Bagdon to rent the Town Hall Auditorium on Thursday, March 28, 2002 to hold an Eagle Scout Court of Honor at 6:30 PM.

Unanimous Vote.

The Board discussed waiving all fees, including janitorial. Selectman Wiksten said that security could be worked out between himself and other Board members.

Upon motion by Selectman Wiksten and seconded by Selectman Eayrs, the Board

VOTED: To waive all fees associated with the above request.

Unanimous Vote.

OLD BUSINESS

The Board had received a letter from Rosemary Gilroy, owner of property located at 58 East Grove Street (formerly the Red Cactus). She has asked the Board to remove the condition that was placed on a request for a liquor license for that property that made granting of the license contingent on clearing up environmental issues on the property.

Chairman Perkins noted that Town Counsel has agreed that this condition should not be imposed.

Mr. Healey noted that he had spoken to the attorney for the buyer, who said that he did not see the condition to be a problem in purchasing the property.

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

VOTED: To remove the environmental condition placed on the approval for an Annual All Alcoholic Restaurant License for property located at 58 East Grove Street, Middleboro, MA Assessors Map 065 Lot 288.

Unanimous Vote.

TOWN MANAGER’S REPORT

Mr. Boucher told the Board that a one-year plan was being provided. Because of low level State funding, the five-year plan has turned into an eight-year plan.

Mr. Healey told the Board that he had received a call from Representative Tom O’Brien, who informed him that that legislature had passed the increased Chapter 90 money of $50 million.

Mr. Boucher said this would give the Town another payment of $204,945, which is a normal payment. It had been thought that the Town would not receive this, and as a result two (2) roads were eliminated from the list.

Mr. Boucher said that there is a real issue with deteriorating roads. Some roads will turn back to dirt roads in 7 – 8 years. He noted that the five-year plan had begun in 1985 when there was more funding from the State. In 1995, funds were cut, and the numbers no longer work.

Mr. Boucher noted that Middleboro has almost 200 miles of road to maintain. He said that roads are Middleboro’s largest asset. He hoped that the Town would go back to full funding in the next 2 – 3 years.

Mr. Boucher said that roads are deteriorating faster than they can be maintained. He noted that the Town has not contributed beyond budget items since 1988, instead living off of State allocations each year. He asked this to be kept in mind when budgets are being planned.

Mr. Boucher said he will take the 2nd year of the plan, and prioritize those roads to do with the additional funding this year. He said he feels strongly that Spruce Street should be done.

Chairman Perkins noted that subdivisions add roads, which increases the volume of traffic.

Selectman Rogers thanked Mr. Boucher, and noted that water main work will be done on some roads. Mr. Boucher said this has been taken into account.

Selectwoman Brunelle asked why this would not come out of an enterprise fund.

Selectman Eayrs said that he was concerned that the Town does not have an appraisal for this property, and suggested this needs to go forward.

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

VOTED: To authorize the expenditure of $4,250.00 from the Engineering Account for a property appraisal of the Fuller Street property, if a line item is not within the Water Department.

Unanimous Vote.

Selectwoman Brunelle said that she had hoped projections on additional revenues would have been developed last fall, noting that the Town was aware of the fiscal situation in December.

The Board suggested scheduling a meeting for April 4th.

 

 

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

VOTED: To schedule the Annual & Special Town Meetings for June 3, 2002, continuing to June 10th if necessary, and to open the Warrant with a closing date of April 12.

Unanimous Vote.

Mr. Healey presented the Board with a draft letter to be sent to all departments asking for a 10% reduction. Selectwoman Brunelle questioned if this would be enough. Motion was made by Selectwoman Brunelle and seconded by Selectman Eayrs to send the letter. The vote was unanimous.

Mr. Healey noted there could be a one-time revenue of $1 million with the sale of property.

Selectwoman Brunelle said she was concerned with the local receipts, noting that there was a reduction of almost $1 million form last year.

Mr. Healey told the Board that he is meeting with Judy MacDonald tomorrow to discuss the parcels that will be sold, and how each parcel will be marketed.

SELECTMEN’S BILLS

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

VOTED: To pay the water bill for 63 Miller Street, submitted by the Town of Middleborough, for $19.54.

Unanimous Vote.

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

VOTED: To pay the bill submitted by Martha E. Dupuis, Secretary to the Historical Commission in the amount of $54.00.

Unanimous Vote.

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

VOTED: To pay the submitted by Jeanne Turney, Secretary to the Personnel Board in the amount of $144.00.

Unanimous Vote.

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

VOTED: To pay four (4) bills submitted by the Middleborough Gas & Electric Department in the amounts of $5.35, $5.35, $5.35 and $12.05, totaling $28.10.

Unanimous Vote.

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

VOTED: To pay the bill submitted by Suvalle, Jodrey & Associates, for summons served, in the amount of $99.00.

Unanimous Vote.

CORRESPONDENCE

VOTED: To authorize Chairman Perkins to be the representative on the MBTA Advisory Board.

Unanimous Vote.

 

 

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

VOTED: To adjourn at 9:40 PM.

Unanimous Vote.

 

 

Diane Henault, Secretary

BOARD OF SELECTMEN