Board of Selectmen |
October 5, 2009 |
Regular Meeting |
Selectmen’s Hearing Room, Town Hall |
Present: |
Robert P. MacKendrick, Chairman |
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Arthur J. Bourque III, Selectman |
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Al Merritt, Selectman |
Chairman MacKendrick called the meeting to order at 7:00 p.m.
Hearing on the laying out of roadways
Chairman MacKendrick called to order a public hearing on the laying out of the following roadways: Freeman Street, Greenmeadow Drive, Horseshoe Drive, Mansfield Road, Murphy Way, Otter Pond Road, Stagecoach Lane, Tappan Court, and Thistle Lane. He explained this process precedes a town meeting vote to accept the roadways as public ways in the Town. He asked if there were any comments from the public.
Muriel Cecere of Mansfield Road said she believed that a portion of that roadway had already been accepted by the Town. Town Counsel Thomas Mullen said that was correct, and the remaining portion was being accepted. He said the Town will take Indian Road at a later date. Ms. Cecere asked what the benefits of acceptance are. Mr. Mullen replied that owners of a private way are obligated to maintain the road and could face liability of injury or damages to a third party occurred due to a pothole or other defect. He said the Town could decline to provide trash collection and school bus service on private ways. She also said other communities have received grants for traffic issues.
Ms. Cecere said that despite years of meetings and complaints she had not seen any progress on traffic issues on Walnut Street, where the intersection of that street and Gianna Drive. She suggested that an electronic message device be employed there to warn drivers of the dangerous intersection. Public Works Director Dennis Roy said he has held numerous meetings with residents and other Town officials on the subject and that the town hired an engineering firm that has provided a preliminary report on proposed traffic mitigation measures. He said the Town is unlikely to receive a grant for this area because of the small number of people affected on Gianna Drive and Mansfield Road. Town officials in Saugus were unwilling to participate with Lynnfield in seeking funding for the project. He said he plans to funds improvements
through Chapter 90 funding. He said the proposal involved a sensor at the Gianna Drive intersection which would trigger a LED-style warning sign on Walnut Street alerting drivers about the upcoming intersection. Chairman MacKendrick asked that a report on that proposal be placed on the Board’s November 2 meeting agenda. Mr. Roy said a report from the engineering firm should be ready by then, and that he would discuss its provisions with neighborhood residents before the November 2 meeting.
John Maloney of Tappan Court raised a drainage issue affecting residents of that street. He said his wife had spoken with Town Engineer Charles Richter and has set up a meeting with Mr. Roy. He said surface water is creating a continual stream during times of rain and snow melt. He said the existing drainage system is inadequate to handle this runoff.
James McEwan of Thistle Lane said he built that roadway 18 years ago and intentionally refrained from seeking its acceptance as a public way. He said his house has been for sale off an on for about seven years, and said his property offers the only additional access point to the nine-hole golf course. Selectman Bourque asked whether he was seeking remuneration for use of this property. Mr. McEwan said he was. Selectman Bourque said there are no plans to access the golf course via Thistle Lane, and said the Town would plow and maintain the roadway if the Town accepts it. He said he could not justify to the taxpayers continuing these services if the owner refused public access. He also said that the Town could be liable if the roadway was damaged by Town vehicles providing services to it. Chairman MacKendrick said the slope
of the land would limit use of that site as an access point.
Mr. Roy said that many roads in Town have been provided these services even though the Town had not gone through the full process of taking them. He said developers had agreed to turn the roadways over to the Town as part of the subdivision process. Once these roads are taken, the Town can count them toward the total miles of roads in Town, a factor in the computation of the amount of Chapter 90 highway improvement funds that the Town receives from the Commonwealth.
Mr. McEwan said that he pays taxes and has maintained the lighting and the roadway. He said there are no maintenance issues currently. He said his house is suitable for use as a clubhouse, and asked if the Town would be interested in purchasing it for that use. The selectmen said there were no funds for this.
On the motion of Selectman Merritt, seconded by Selectman Bourque, the Board voted to lay out Freeman Street, Greenmeadow Drive, Horseshoe Drive, Mansfield Road, Murphy Way, Otter Pond Road, Stagecoach Lane, Tappan Court and Thistle Lane as public ways, and signed the orders of taking as indicated in the attached exhibits.
Review of town meeting warrant articles
Chairman MacKendrick said the Board would review the town meeting warrant articles to consider the Board’s recommendations on each one.
Restaurant meals tax: Town Administrator William Gustus said adoption of this measure would impose a 0.75 percent local meals tax, resulting in a 75 local tax on a $100 bill. He said failure to approve this measure would cost the Town about $50,000 in revenue annually, and that amount would easily double once the Meadow Walk project is completed. He said in the first partial year, the revenue would be about $25,000. He said the Town had projected revenue from this source as part of the budget process, and that it must address this loss of revenue if the measure is not passed. Selectman Merritt said that while no one wants more taxes, Lynnfield is trying to expand it commercial tax base, and this measure would allow out-of-town customers to help Lynnfield pay for its budget. Selectman Bourque and Chairman
MacKendrick agreed.
On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend passage of the article.
Amendment of Fiscal Year 2009 budget: Chairman MacKendrick said that final numbers would be available at the October 19 meeting of the Board, preceding town meeting.
On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to table consideration of this article.
Septic loan program: On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend passage of the article.
Removal of police chief position from Civil Service system: Selectman Merritt said he had met with the police chiefs and town managers in six area communities that are similar to Lynnfield. Some are in the Civil Service system, and some are not. He said in all six cases, the departments were functioning smoothly within the Town government, whether the chief position was “strong” or “weak,” or whether the position was inside or outside the Civil Service system. He said based on these discussions and the consultant’s report on the Lynnfield Police Department, he favors removing the chief’s position from civil service. In the other communities, there is a greater number of senior officers eligible to apply for the position. Lynnfield has always kept costs down by holding down the
number of full-time personnel, and this is not likely to change. Only two or three of the sergeants will become viable candidates. When hiring a town administrator or school superintendent, the Town has selected the most qualified candidate, whether employed by the Town or elsewhere. He said the question is whether the Town is comfortable limiting the candidates to the existing sergeants, or wants to broaden that pool to include those outside the Lynnfield department. If the Town supports this measure, the Town would engage current or retired police chiefs to conduct an assessment center to recommend top candidates to be appointed.
Selectman Bourque said he agreed with Selectman Merritt’s comments and said the Lynnfield sergeants were victims of much larger issues, such as past issues of whether the Board had rights to intervene in the management of the department in issues in which the Town could be exposed to lawsuits. In the past, the Board had been advised it could not intervene in these issues. He said the Town was lucky not to have been sued over a number of situations. He said that modern chief commands a salary of over $100,000 and has a college degree. The Board does not want to tell the chief how to run the department, but wants the standard for removal of the chief to encompass poor performance, not just gross malfeasance or incompetence. The taxpayers should be well aware of how many times the Board has tried to get corrective
action in cases where the Town could be at risk of exposure and could not. The current department has three good sergeants eligible to apply for the chief position whose qualifications may not meet the standards for the position through no fault of their own. He favors removing the chief position from Civil Service.
Patricia Campbell of Patrice Lane said she is actively involved as a citizen but is unaware of the circumstances referenced by Selectman Bourque. She said that the selectmen should “lay it on the line” instead of making “veiled references.” She had read the consultant’s report and the police union’s response to it, and would like to see a balanced presentation from both sides at town meeting.
Chairman MacKendrick said that is the purpose of town meeting and said he looks forward to an open and honest discussion. Selectman Bourque said that the consultant’s report identified 60 areas in which the department was not meeting the standards of accredited departments. He said there have been a number of issued with personnel over the years and that he has to be careful in discussing them, and cannot name the officers involved. Mr. Mullen said he would recommend that the selectmen “steer clear” of this area, as the warrant article is process-oriented, and identifying specific past conduct by officers could invite problems.
On the motion of Selectman Merritt, seconded by Selectman Bourque, the Board voted to recommend passage of the article.
High school building study: Timothy Doyle, chairman of the School Building Committee (SBC), discussed the proposed feasibility study for the Lynnfield High School addition. He said that despite appeals from Town officials, due to student enrollment projections and state reimbursement guidelines, Lynnfield High School could not have been expanded during the most recent building project. At that time, the school was renovated and was rated as accommodating a student population of 590. In September, enrollment at the school was 663, or 12 percent over capacity. By 2017, enrollment at the school is projected to be 842, or 252 students beyond capacity. The SBC toured the building in September and found that several rooms and spaces meant for other purposes have been converted into classrooms. The creativity of school
administrators allows the building to accommodate the current enrollment, but he said it cannot make further adjustments to meet the anticipated growth in enrollment.
Mr. Doyle said that the SBC concluded that the school needs eight additional classrooms, two of which would be science labs, at a projected cost of $2.5 to $5 million. The SBC has looked at a permanent modular addition, which it believes will be embraced by the Massachusetts School Building Authority (MSBA) as an economically and environmentally responsible project and due to the speed in which it can be accomplished. He said the cost may be cheaper then a stick-built project. The School Department paid $3500 for architectural and legal services. Last week, the MSBA agreed to work with the Town on a feasibility study on the project, and the SBC is seeking a Town appropriation of $95,000 for this purpose.
If the Town moves forward in an expeditious manner, this addition could be completed during the 2010-2011 school year, Mr. Doyle said. Inaction could compromise MSBA funding or completion in a timely manner.
Selectman Merritt complimented Mr. Doyle and the SBC on its work. He said that the Town has seen an explosion in the population of school-aged children since the last building project and that the schools have matched the quality of the new and renovated building with academic results. In 2006, the Town received a state reimbursement check for $40 million for that project. He said he saw this plan as an opportunity to show the MSBA some creativity but said that until the entire project is approved by the MSBA, the Town cannot be assured of project reimbursement, projected at 40 to 50 percent of the total cost. A vote to approve this appropriation would show good faith to the MSBA, but the Town is still waiting to hear from the MSBA about its preferred course of action. He suggested deferring a decision on the
article until the October 19 meeting. Chairman MacKendrick said the delay could also yield a clearer picture on local aid.
Mr. Gustus said that the MSBA has approved the Town for a feasibility study, which usually takes a year. The MSBA has indicated it may be willing to fast-track the application. The architect with whom the Town has been working is concerned that the Town signal to the MSBA through this vote that it is ready to move forward. He said that before town meeting he hopes to learn from the MSBA how quickly it expects the town to move, and whether the vote can wait until the annual town meeting in the spring. He said that the Town is likely facing another cut in local aid due to state revenue shortfalls and this may have an impact on how this appropriation would be funded. If town meeting decided to move forward, the funds could come from free cash, the stabilization fund, or through borrowing. Each of the three has implications
on how the town will meet its operational needs in the next six to nine months.
Chairman MacKendrick said that the Board recognizes the need for this project and supports it, but needs time to consider the issues surrounding the funding and study process further.
On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to table the issue until October 19.
Selectman Bourque stated that he did not believe that the Town would be in this advantageous position if it were not for the work of Mr. Merritt and Mr. Whalen on the previous school building project. He said that the Board recognizes the need for the project but must decide how bets to proceed. He said he will be interested to see how the townspeople and taxpayers will respond to the proposal on October 19.
Expansion of groundwater protection district: Mr. Gustus said that this article was requested by the Lynnfield Center Water District and would cover the area surrounding the district’s newest wellfields.
On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend approval of this article.
Street acceptances: On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend approval of these articles, which will be handled through a consent agenda.
Timothy Hubbard of Walnut Street said he was concerned about the status of the lower half of Mansfield Road. Mr. Roy said that the Town had previously accepted this portion of the roadway.
Adoption of a tree bylaw: Mr. Mullen said he viewed this article, submitted by petition, as a request under the town charter to create a new board under the Board of Selectmen to advise the tree warden which shade trees should be taken down or preserved. The board could also advise other Town boards, such as the Conservation Commission and Planning Board on issues such as scenic roads. The petitioners plan to make a motion to establish a five-member board with three-year overlapping terms.
Mr. Mullen said that the proponents originally contemplated this tree board as one with authority to expend funds from a revolving fund, which would be fed by fines received from violations of the tree bylaw. He said that a revolving fund can only be created at the spring town meeting, and can only be created to capture funds received for services rendered. Fines, under state law, must go into the general fund. He said there will not be a lot of money raised through the fines, and those funds raised cannot flow into a fund controlled by a tree board.
Beth Aaronson of the Conservation Commission’s Tree Bylaw Subcommittee appeared before the Board with fellow members Jane McDuffie and Helen Pimentel. She said member Jane Bandini and Chairman Nathan Rawding were unable to attend. The subcommittee has been working very hard and presented a proposal based on language recommended by Mr. Mullen: that the tree board be appointed by the Board of Selectmen to ensure compliance with existing state laws and to promote the planting and preservation of trees. The tree boards in other communities work with the tree warden and are charged with developing a comprehensive tree program. She said this board would work to bring Lynnfield back into Tree City USA status. Surrounding communities have achieved Tree USA status and have created scenic roads. The tree board would look into
these issues and provide education to the community on tree-related issues and seek grants for planting and preserving trees, which have a life of 75 to 80 years.
Selectman Merritt said that the nonprofit group Townscape, Inc. works on replanting of trees in Lynnfield. Ms. Aaronson said that tree boards often work with such entities in a public-private partnership. Kendall Inglese of Townscape, Inc. commented that the Town has a strong Director of Public Works and Tree Warden in Dennis Roy and that Townscape has worked with the DPW to plant hundreds of trees in Town during its 23 years of existence. She said she would welcome the creation of a tree board as long as Mr. Roy does, and that it could give new energy to these efforts.
Ms. McDuffie said a tree board would help protect the work done by Townscape and would educate the public about what a public shade tree is, and that it is the property of the community. Ms. Inglese said that Townscape has conducted walking tours and attempts to educate the young and old about the importance of trees.
Selectman Merritt asked if the tree board and the tree warden were in agreement on how this process would work. Ms. Aaronson said they had not yet reached an agreement. Selectman Merritt said this would be helpful. He said when forming a new town board it is important to be explicit about its powers and duties. He said the petition article did not have enough clarity. He said while he respects the work done by the subcommittee, he is not in favor of creating a new committee for this purpose through a new bylaw.
Ms. Aaronson said Selectman Merritt has been very helpful in helping the subcommittee refine what it is seeking. She said the members are discussing the town meeting process with the moderator and Mr. Mullen, and will take out the portion of the proposed motion that the board will “ensure compliance’; with state law. The subcommittee wants to assist an overworked DPW.
Selectman Merritt asked what violations of the shade tree law have occurred. Ms. Aaronson said town shade trees have been taken down on Chestnut Street, Lowell Street and Apple Hill Lane. Mr. Roy said he wants to work with a tree board but said there is some confusion about state law on shade trees. The tree taken down on Apple Hill Lane was not in the town right of way. Trees on Chestnut Street and Lowell Street were falling down, diseased or a hazard to passing vehicles and pedestrians.
Mr. Roy said that the DPW has very little money to take care of such trees -- about $28,000 annually and each tree case costs about $500 to $1,000. Mr. Roy said that the DPW attempts to preserve trees when possible, trimming back those that appear to be dying t see if they will re-leaf. Healthy trees are not taken down. Trees that pose a hazard to public safety may be taken down without posting of notice, by state law. In a recent case, the DPW received a call about a shade tree being taken down in the area of Durham Drive and Grey Lane. Mr. Roy found the trees being taken down were on private property and were not under the control of the Town. The owner said a woman identifying herself as the tree warden told him to stop.
Mr. Roy said that while the Town can ask owners of trees located within 20 feet on the public way to sign those trees over as public shade trees, the Town would face the cost of care for those trees and liability issues. The DPW works closely with Townscape on projects to plant new trees. Mr. Mullen agreed that not all trees within 20 feet of the public right of way are public shade trees. In response to a question from Selectman Bourque, he explained that if a public shade tree is to be cut down, the tree warden holds a public hearing to which abutters receive notice, and the proponent has to show cause whey the tree is to be taken down.
Mr. Roy said that at a new development off Summer Street called Taylor Terrace Extension, three trees planted by Townscape are to be removed. The developer is required to transplant those trees to locations within the right of way. If they die in the process, the developer must replace them.
Selectman Bourque said in the past, developers worked to preserve trees, but now many land owners are clear-cutting their properties. He said that the Town must balance private property rights with its desire to maintain its character. Ms. Aaronson said that the subcommittee hopes that an arborist will be appointed to the tree board, and that the board would have more credibility if it is a standing rather than an ad hoc committee. She said that while the Town may not be able to stop clear-cutting on private property, the Town has many streets that could qualify as scenic roads, such as Lowell, Summer, Salem, Main and Chestnut streets.
On a question about Tree City USA status, Mr. Roy said that it is a matter of filling out the paperwork. He said that many grants for planting trees require a community match.
Selectman Merritt said he would be more comfortable with a board appointed to advise the tree warden than one described in the original proposal. Chairman MacKendrick asked Mr. Roy whether he felt such an advisory board would be helpful or harmful. Mr. Roy said he never turns away help, and would find an advisory board helpful as long as it understood the necessity of following state law. He said he would not want to wait for a 30-day notice and hearing process to take down trees that are a danger to the public safety.
Selectman Merritt made a motion to not recommend this article. Selectman Bourque seconded for the purpose of discussion. He said that he agrees with the overall goal, but does not believe a bylaw or town meeting article is necessary to establish an advisory board. Mr. Gustus said the Board can establish ad hoc and advisory boards, such as the Economic Development and Housing Advisory Committee, which is very effective, without passing a bylaw.
Selectman Bourque asked the members of the subcommittee if this approach would be acceptable to them. Ms. Aaronson replied that it would be a “fine alternative” and send “the right message.” Selectman Bourque said that he would be inclined to have the Board appoint a committee after town meeting. Selectman Merritt asked the subcommittee members if they would withdraw their petition for the warrant article. Mr. Mullen explained that this would require all signers of the petition to agree to withdraw, a cumbersome process. He said the petitioners could make a motion for indefinite postponement and explain their reasons. Selectman Bourque asked if this proposal would be within the four corners of the article. Mr. Mullen said he believed that a motion to urge the Board of Selectmen to appoint an
advisory board would be within the four corners of the article.
Chairman MacKendrick said he favored recommending against the article and having the Board look into appointing a tree board at its November 2 meeting. The tree board would be advisory to the tree warden and Town boards. Selectman Merritt said the subcommittee should work with Mr. Roy to bring a proposal to the Board.
On the motion, the Board voted unanimously to recommend indefinite postponement of the article.
Tree bylaw fine article: On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend indefinite postponement of the article.
Stormwater management bylaw: Selectman Merritt asked if the proposed language was standard for this type of bylaw. Mr. Richter said that the bylaw was based on a model provided by the state attorney general’s office, and was drafted after a review of those in place in neighboring communities with the help of Mr. Mullen. Selectman Bourque said he is concerned that the proposed bylaw would affect homeowners using sump pumps to remove groundwater from basements and are discharging the water directly into the stormwater system at the request of the Town. Mr. Richter said this bylaw does not prohibit the discharge of clean groundwater into the system.
On the recommendation of Selectman Bourque, seconded by Selectman Merritt, the Board voted to recommend approval of this article.
Fines for violations of stormwater bylaw: Selectman Bourque asked if there would be an appeals process related to the fines. Mr. Mullen said the appeals process would be the same for any fine system under the non-criminal disposition model. Those wishing to appeal could do so in Peabody District Court. If the alleged violator refused to pay the fine after losing an appeal, the Town could seek a criminal complaint.
Selectman Bourque expressed concern that the fine seemed small for the nature of the violation. Mr. Mullen said the fine could not exceed $300, as the Town of Wakefield tried to adopt a higher fine and the attorney general refused to approve it. He noted that each day in which the offense continues is considered a separate violation. Mr. Gustus noted that some of the more egregious cases of discharge violations would also violate state and federal environmental laws and would carry much larger fines as well as remediation costs.
On the motion of Selectman Merritt, seconded by Selectman Bourque, the Board voted to recommend approval of this article.
Vocational school merger: Selectman Merritt made a motion to recommend approval of this article. Selectman Bourque seconded the motion for discussion.
Selectman Bourque noted that the issue of the use of the proceeds of the sale of the existing vocational school in Middleton had been raised at the previous meeting of the Board. He asked at what point should Lynnfield try to assert its rights.
Mr. Gustus said that at some point, the district’s member communities will have to take up a new regional agreement. He said this is when the issue of whether Peabody, a non-member of the original district, should share in the proceeds of the sale through the use of those proceeds to offset the cost of a new school should be raised. He said the special legislation authorizing the creation of the new district made it clear that the funds from the sale of the current school should go to only member communities. He said he had discussed the issue with town administrators from other member communities and found “no one wants to give Peabody a $2 million gift.”
The Board voted unanimously to recommend approval of the article.
Charter revision to allow consideration of financial articles at all town meetings: Selectman Merritt made a motion to recommend indefinite postponement of this article. Chairman MacKendrick seconded the motion for purposes of discussion.
Selectman Merritt said that the article arose at the end of the process of drafting the warrant based on Moderator David Miller’s interpretation of the town charter. He said that if the Board proceeded with the article and it did not prevail, it could be “awkward,” as the Board believes the charter already permits consideration of financial articles at all town meetings.
Mr. Mullen said that the charter is very clear and directive on this point. He said language descriptive of the annual spring and fall town meetings are just guidelines, and do not say financial articles may only be considered at the spring meeting and zoning articles may only be considered at the fall meeting. Other charter provisions expressly contemplate that either type of article may come up at any town meting. Mr. Mullen said he agreed that if voters defeated the proposed measure, it could be awkward to continue under the Board’s interpretation of the charter. He said with all due respect to the moderator, he has a different interpretation of the charter on this point.
Selectman Bourque said he has a great deal of respect for the moderator, and noted the moderator suggested a full review of the charter, which he said is sorely needed. He said he would support indefinite postponement, but wished to take up the matter of charter review at a November meeting of the Board, in preparation for the formation of a charter review committee for the April or October town meeting. Chairman MacKendrick agreed, but said he would prefer an ad hoc advisory committee to the Board rather than forming a Charter Review Commission.
Mr. Gustus said the formation of a Charter Review Commission would require the signatures of 30 percent of the electorate. Members would be chosen by the voters and the commission would hold public hearings, and could recommend adoption of a new charter. If the Board wants to consider minor revisions to the charter, it should appoint an ad hock advisory committee instead. Selectman Bourque said the latter course is the one he intended. Selectman Merritt said he wanted to get more information ion the process before deciding. Selectman Bourque said that the need for charter revision is raised frequently, but is never considered except when the Town is dealing with a crisis.
Patricia Campbell of Patrice Lane said that she was glad a complete review of the charter was under consideration. She expressed the hope that alternative dates and times for town meetings would be considered. Chairman MacKendrick said the matter would be discussed at the November 2 meeting of the Board.
The motion to recommend indefinite postponement of the article passed unanimously.
Administrative matters
On the motion of Selectman Merritt, seconded by Selectman Bourque, the Board voted to approve the minutes of the meeting of September 14, 2009 as presented.
Mr. Gustus told the Board that Moderator David Miller has a vacancy to fill on the Finance Committee and asked that it be announced at this meeting in order to publicize the need for applicants.
On the motion of Selectman Bourque, seconded by Selectman Merritt, the Board voted to adjourn the meeting at 9:30 p.m.
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