Date: May 14, 2007
Date Minutes Approved: June 4, 2007
BOARD OF SELECTMEN MINUTES
Present: Andre Martecchini, Chair; Jon Witten, Vice-Chair, and Elizabeth Sullivan, Clerk.
Absent: No members were absent.
Staff: Richard MacDonald, Town Manager; John Madden, Finance Director; and Barbara Ripley, Executive Assistant.
The meeting was called to order at 7:00 PM.
VOTE TO ENTER EXECUTIVE SESSION
Mr. Martecchini moved that the Board enter Executive Session in order to discuss matters related to the King Caesar Fund, which are of a confidential nature, as the fund's purpose is to provide medical relief for the financially needy residents of Duxbury, in accordance with Massachusetts General Laws chapter 39, section 23B, subsection 1, and then to reconvene in Open Session. Second by Mr. Witten. Vote: Ms. Sullivan: aye; Mr. Martecchini: aye; Mr. Witten: aye.
RE-CONVENE IN OPEN SESSION
At 7:32, when the business of the Executive Session was complete, Mr. Martecchini moved that the Board exit Executive Session and re-convene in Open Session. Second by Ms. Sullivan. Vote: Mr. Martecchini: aye; Ms. Sullivan: aye; Mr. Witten; aye.
OPEN FORUM
No items were discussed.
ONE-DAY LIQUOR LICENSE REQUEST: ALDEN RINGQUIST FOR THE ALDEN KINDRED SOCIETY/ Banquet on August 4, 2007
Mr. Ringquist was present to request a One-Day Liquor License for the second annual SPEAK FOR THYSELF banquet. He said that this banquet honors notable women on the South Shore, and was very successful last year.
Ms. Sullivan moved that the Board approve a One-Day Wine & Malt license for Mr. Alden Ringquist, as a representative of the Alden Kindred Society, Inc., to hold the SPEAK FOR THYSELF Banquet on Saturday, August 4, 2007 from 6:00 PM to 11:00 PM, at the Alden Historic Site, under the conditions listed on the license. Second by Mr. Witten. Vote: 3:0:0.
ONE-DAY LIQUOR LICENSE REQUEST: ALDEN RINGQUIST FOR THE ALDEN KINDRED SOCIETY/ Golf Banquet on September 24, 2007
Mr. Rinquist was present to request a license for this annual event. Ms. Sullivan suggested that Mr. Ringquist secure a police detail for the evening, even though it is not mandated. Mr. Witten moved that the Board approve a One-Day Liquor License for Mr. Alden Ringquist, as a representative of the Alden Kindred Society, Inc., to hold a golf banquet at the Duxbury Senior Center on September 24, 2007 from 5:00PM to 8:00PM, under the conditions listed on the license. Second by Ms. Sullivan. Vote: 3:0:0.
REQUEST TO USE THE MILLENIUM TOWN GREEN: DUXBURY COMMUNITY GARDEN CLUB
Ms. Carolyn Ricciardi and Ms. Sarah Violandi were present to represent the Duxbury Community Garden Club (DCGC). This organization will be holding a flower show at the Bertram Center on June 2, from 11:00 AM to 4:00 PM. They would like to be able to hold a portion of their event, a small farmer's market (maximum of seven vendors), on the Town Green, since it is adjacent to the Bertram Center. There will be a fee to the vendors which will go back into the Town Beautification Fund to help maintain the many plantings around Town and on the Town Green.
Mr. Martecchini noted that abutters of the Town Green were notified of the proposal, and given the opportunity to comment if desired. No comments were received. Ms. Sullivan asked that special care be taken to prohibit any driving on the grassy areas, due to the irrigation system. Ms. Sullivan moved to grant permission for the Duxbury Community Garden Club to hold a portion of their flower show on the Duxbury Millennium Town Green on June 2, 2007 from 11:00 AM to 4:00 PM, subject to the conditions listed on the event permit. Second by Mr. Witten. Vote: 3:0:0.
ONE-DAY LIQUOR LICENSE: MR. LAURENCE HANSEN FOR THE BAY FARM MONTESSORI SCHOOL/ Fundraising Gala on May 19, 2007
Mr. Hansen noted that this is the organization's biggest fundraiser of the year, and is used to support their scholarship fund. This is the first time the event is being held "on campus". Two police detail officers have been hired.
Ms. Sullivan moved that the Board grant a One-Day All Alcohol License to Mr. Laurence Hansen, as a representative of the Bay Farm Montessori School, for a fundraising gala at the school campus on May 19, 2007 from 6:00 PM to 10:30 PM, subject to the conditions listed on the event permit. Second by Mr. Witten. Vote: 3:0:0.
CONTINUED PUBLIC HEARING: RETAIL WINE & MALT LICENSE FOR FOODIES DUXBURY, LLC
The continued hearing was opened at 7:47 PM. Ms. Sullivan, having recused herself from discussion and votes on the matter due to her employer's financial relationship with the applicant, left the room.
Attorney Robert Allen was present to represent the applicant. He noted that the applicant has amended the application to list Trapelo Realty as having a limited interest in the license, due to the fact that a percentage of the proceeds from the store will revert to Trapelo Realty.
He said that the lease between the applicant and Trapelo Realty was not made contingent upon the liquor license because of a timing issue. There was pressure to complete the remodeling in time for a Fall opening of the store, and the liquor license application would have delayed this substantially. However, all business planning was done contingent upon the availability of liquor sales, due to its higher profit margin than other items. Mr. Allen said he could not guarantee that Foodies will go forward without the liquor license.
Mr. Victor Leon disagreed with his attorney on the issue of going forward. He said that he is committed to Duxbury, but he is very concerned about the likelihood of his being successful without the liquor license. He will be in competition with "giants" like Stop & Shop, and Hannaford's.
Mr. Caruso, attorney for the opposition, commented that while the applicant has added information to the application, that Questions 13B and 13C (pertaining to financial information) remain unanswered. He said that it is important to have this information in order to test the Foodies business plan. Can it really depend on 500 square feet of retail liquor sales? If Foodies really needed a liquor license to be successful, he said, they would have made the lease contingent upon the license. He said that Foodies has been very successful in Boston without a liquor license.
Mr. Caruso further noted that over 600 people have signed petitions protesting the license application.
Attorney Brian Wall, of Troy Wall Associates (Duxbury Town Counsel) was present for the hearing. Mr. Martecchini asked Attorney Wall whether the Town could consider "public want" as part of the "public need" for a liquor license. Mr. Wall responded in the affirmative, quoting Massachusetts Practice, Chapter 138, section 23. He said that the licensing authority may consider the type of business, the traffic, noise, and the sort of operation, among other things.
Mr. Leon said that it is unfair to say that because Foodies has been successful in Boston without a liquor license, that Foodies will be successful in Duxbury without a liquor license. There are 40,000 people within a ½ mile radius of the Foodies Urban Market. There are 70,000 people within a one-mile radius of Foodies Urban Market.
Ms. Jeanne Clark, of Surplus Street, cited her strong opinion that the license should be granted. She said that it has been devastating to the community to have the space in our Town center unoccupied for 3 ½ years. She said that Foodies is a wonderful business and should be given every chance to succeed in Duxbury.
Mr. Alden Ringquist, of Shipyard Lane said that, while he would love for Foodies to be successful, he would not like to see it happen at the expense of longtime Duxbury businesses.
Mr. Eric Swanson, of Standish Street, stated his certainty that if Foodies is granted a liquor license, that either Wine Depot & Liquors, or Duxbury Wine & Spirits will "go under".
Mr. Joe Carroll, proprietor of Duxbury Wine & Spirits, said that liquor is a burden from a financial standpoint. Wine and beer are more profitable.
Mr. Ken Durfee, proprietor of Wine Depot & Liquors said that he and his wife have worked very hard for twelve years to operate a good business in Duxbury. He said it would be a disservice to give the license to Foodies. He said that Foodies would have an unfair advantage since the Wine Depot does not sell food.
Ms. Linda Brodie, of Bay Road, said that she is in favor of the license because of the great convenience offered to customers. The parking for the other two liquor stores is very limited. It will be wonderful to be able to park at the plaza again, and get food and beverages.
Mr. Bob Reiman, of Bolas Road, said that it is not up to the Selectmen to protect the existing businesses.
Mr. R. Johnson, of Bolas Road, said that he feels that the applicant should purchase an existing license, rather than be granted one free of charge.
Mr. Witten said that he is stuck on the issue of public need. Public want can be included as public need, he said, and the public clearly wants a grocery store. However, having a grocery store is not contingent upon the license. If it was, it would have been stated that way in the lease. There is nothing in the record, he said, that speaks to the public need for this license. Therefore, he said that he would not be able to vote in favor of the application.
Mr. Martecchini stated that he has a very different point of view. He said that there is a very strong public need for this store. He said that he has seen first-hand why the store has been empty for 3 ½ years. It is the demographics. Foodies will need every advantage possible in order to succeed here. Mr. Martecchini said that, as much as he would like to protect the other stores, that he cannot put that before promoting the success of a grocery store at that location.
Mr. Witten said that if the lease had the liquor license as a contingency, then we would have the link between the public need and the license.
Mr. Martecchini asked the applicant if he would like additional time to develop a case for the link between the public need and the license. Mr. Leon responded that he would prefer not to prolong the "mutual misery".
Mr. Martecchini moved that the Board of Selectmen, as the Liquor Licensing Authority for the Town of Duxbury, grant an Annual Wine & Malt Retail Package Store License to Foodies Duxbury, LLC (Victor Leon, Manager) for 46 Depot Street, conditioned upon meeting all relevant Rules and Regulations for the operation of a liquor establishment in the Town of Duxbury:
Such Conditions include (but are not limited to):
· Completion of a CORI check with no negative findings
· Signed Worker’s Compensation Affidavit
· Provision of Proof of Worker’s Compensation Insurance
· Payment of Annual Fee (currently $1,000.00 for Retail Wine & Malt)
· Meeting all Building Department and Board of Health Regulations
· Server Training Certificates for all employees selling alcohol
· Receipt of a DBA Certificate from the Town Clerk
· No exterior advertising permitted for sale of wine or malt
· No wine or malt tasting events permitted inside or outside of the store
· The area designated for sale of wine and malt shall be limited to the
522 sf (± 10sf) shown on the submitted Drawing R-1 (Fixture Plan)
Second by Mr. Witten. Vote: 1:1:0. Motion failed.
HOT DOG VENDOR LICENSE APPLICATION: MS. CINDY BREWSTER, dba "BULL DOGS"
Ms. Brewster is a 1982 graduate of Duxbury High School, and currently a resident of Pembroke. She would like to operate a hot dog cart in Duxbury, and has applied for a variety of locations, hoping that one or more would be granted. Mr. Martecchini went through the list of potential locations:
1) Bay Side of Duxbury Beach: Vendors, other than the ice cream truck, are not permitted on Duxbury Beach by the Duxbury Beach
Reservation. The small parking lot on the land-side of the Powder Point Bridge is too small to accommodate a cart.
2) Standish Monument: This is State property. The Town has no jurisdiction.
3) Landing Road Beach: Mr. Martecchini and Ms. Sullivan said that this is unsuitable for vendors.
4) Fourth of July Parade: She would apply directly to the Fourth of July Parade Committee for this.
5) Other Parades: The only other parades in Duxbury are the Veteran's Day and Memorial Day parades. These are solemn
occasions where a hot dog cart would not be appropriate.
6) Private parties: This is fine, so long as Board of Health regulations are met;
7) Town-owned ball fields that do not have concession stands: The Recreation Director has stated that he has no objection to this,
so long as the sponsoring booster organization does not plan to sell similar items. Mr. Martecchini said that he would like to
bring the Recreation Director into the discussion to make sure that everyone understands the parameters;
8) School fields for practices, or when concessions are not offered: The School Committee was consulted and decided against
allowing this.
By consenus, the Board decided to postpone issuing this license until next week, when the Recreation Director could be present for the discussion.
LOCAL INITIATIVE PROJECT PROPOSAL: WEST BAY LANDING
Mr. Chafik Hamadeh presented information from realtors that he said demonstrated that the market for condominiums is much better than that for single-family homes. He said that the carrying cost of waiting for the single-family homes to sell would be cost-prohibitive for his project.
Mr. Witten said that, given the neighborhood, that the condominium project is much too dense. He said that he would be prepared to make a motion including the following conditions:
· That the LIP endorsement is granted to Zero Bay Road Trust, and is not transferable or assignable without written consent of
the Board of Selectmen;
· That the total development density of the project be no greater than eight (8) single family detached dwellings;
· That no less than two (2) of the dwelling units be sold to individuals earning no more than 70% of the median income for the
geographic region containing Duxbury as determined by the Department of Housing and Community Development;
· That no dwelling unit be constructed closer than 60 feet from a property boundary of one other than the applicant;
· That an appeal of the comprehensive permit issued by the Board of Appeals to the Housing Appeals Committee pursuant to
G.L. c. 40B, s. 20-23 and 760 CMR 31.00 et seq. shall automatically revoke this endorsement, rendering the same null and void
upon docketing of the appeal with the Housing Appeals Committee.
He said that the last condition is extremely important, and if that even if the other Selectmen do not agree on some of the other points, that he hopes that they will agree on this one. If the applicant appeals to the Housing Appeals Committee, the Town will lose, and lose badly.
Mr. Robert Galvin, Jr., attorney for the applicant, objected strongly to this last condition. He said that this gives the applicant no bargaining power whatsoever with the Zoning Board of Appeals.
Ms. Jeannie Horne, of Sanger Road, and President of the Duxbury Neighborhood Association, read a statement outlining some of the neighbors concerns about the project.
Ms. Holly Morris, of Abrams Hill Road, and Chair of the Community Preservation Committee (CPC), said that the CPC has been approached about this parcel of land. There have been some discussions about a potential purchase of the land, and the potential development of up to four affordable housing units. There is not a definite proposal before the CPC at this point.
Mr. Joe Messina, Chairman of the Conservation Commission, stated that the Conservation Agent (Mr. Joe Grady), did an evaluation of the parcel, and found that the Conservation Commission has no jurisdiction over it. However, that should not be used to infer that there is no conservation value to the land.
Mr. Jim Sullivan, of Tremont Street, inquired about the amount of CPC funds currently available for affordable housing projects. Ms. Morris responded that there is approximately $700,000.00 specifically earmarked for affordable housing, but that there are additional funds that are not earmarked, but which could be used for that purpose.
Mr. Skip Zabilski, Beechwood Lane, said that his property lies downstream from this parcel. He is very concerned about flooding on his property if the parcel is developed. He noted that the parcel is not situated for great profit, given the access issues. Perhaps this is not the greatest site for such a project.
Ms. Linda Brodie, Bay Road, inquired about the list of waivers from Town rules and regulations requested for this project. Mr. Martecchini said that this list has been submitted. However, he said that the technical issues would be left to the Zoning Board of Appeals (ZBA). The ZBA will hire an engineer to evaluate the project relative to the Town's zoning, planning, conservation, and health regulations. The Board of Selectmen will not ultimately approve or disapprove this project. This is the purview of the ZBA. All that the Selectmen can do is to endorse the concept.
Mr. Witten said that this endorsement means a great deal. He noted that if the applicant does not have the Selectmen's endorsement, he must go before the Massachusetts Housing Financing Agency. To get the Board's endorsement, Mr. Witten said, it should be a project that Mr. Witten wants to embrace.
Ms. Sullivan said that, perhaps the Selectmen should not be discussing numbers of units and profitability. This could be left to the ZBA, who are the experts, and who will have consultants at their disposal.
Jim Gibbons, of Torrey Lane, said that the numbers being used to determine profitability of this project can be deceiving. He said that the fact that Mr. Hamadeh paid $600,000.00 for the land is not something the Town should take responsibilty for. Mr. Hamadeh is the "opportunist" who may or may not profit from this purchase.
Mr. Howard Goldberg, of Torrey Lane, said that he is the "largest" abutter to the project. He complained that the developer never came to speak with him. He questioned what the benefit of this project to the Town could possibly be. He said that the fact that a water main would be brought to the area should not be counted, because this happens with any kind of development. The fact that the developer is proposing one more unit that that required under a traditional Chapter 40B project, is not worth the negatives of this proposal. He noted that the Planning Board called this project "detrimental" to the Town. Setting the bar this low, he said, is bad precedent. He said that Mr. Hamadeh's statement that he could have proposed forty units with a traditional Chapter 40B proposal
actually sounds like a threat.
Ms. Karen Goldberg, of Torrey Lane, said that she examined the files of all the other comprehensive permits that have been granted by the Town. All of them have bigger roadways. Access to this site is one of its major problems.
Ms. Angela Scieszka, of Summer Street, and member of the Planning Board urged the Selectmen to take their role seriously, and not to pass it along to the ZBA. She said it is crucial to set good guidelines for this project.
Mr. Witten moved that, pursuant to the authority of the Board of Selectmen found at 760 CMR 45.00, that the Board vote to endorse for Local Initiative Program approval, the proposed comprehensive permit project entitled "West Bay Landing" off of Soule Avenue, Duxbury, Massachusetts subject to each and every one of the following conditions:
1. That this endorsement is granted to Zero Bay Road Trust and is not transferable or assignable without written consent of the
Board of Selectmen;
2. That the total development density of the project be no greater than eight (8) single family detached dwellings;
3. That no less than two (2) of the dwelling units be sold to individuals earning no more than 80% of the median income for the
geographic region containing Duxbury as determined by the Department of Housing and Community Development;
4. That no dwelling unit be constructed closer than 60 feet from a property boundary of one other than the applicant;
5. That an appeal of the comprehensive permit issued by the Board of Appeals to the Housing Appeals Committee pursuant to
G.L., c. 40B, s. 20-23 and 760 CMR 31.00 et seq. shall automatically revoke this endorsement, rendering the same null and void
upon docketing of the appeal with the Housing Appeals Committee.
Second by Ms. Sullivan.
Under discussion of the motion, Mr. Martecchini said that he is against setting the level at eight units. He said that he does not understand the profitability information well enough to set this number. In particular, he does not understand whether the assessed value, the sales price, or an appraised value should be used to calculate profitability.
Mr. Witten insisted that the assessed value should be used. He said that this has been established by the State Inspector General.
Mr. Dick Finnegan, Duxbury Deputy Assessor, was present. In response to the question put to him, he answered that the assessed value reflects its current use. In this case, it is undeveloped land. The assessed value does not reflect its potential use.
A vote was taken on the motion: 1:2:0 (only Mr. Witten voting in favor). Motion failed.
Next, Mr. Martecchini commented that his goal would be to lower the density as much as possible, while keeping the profit cap within established guidelines. Also, he is opposed to mandating single-family homes. As a member of the Local Housing Partnership, Mr. Martecchini said that he voted to endorse this proposal because of the condominium concept.
Ms. Sullivan said that the documents presented by Mr. Hamadeh at the beginning of the meeting represent a "snapshot" in time. One thing that is certain is that everything will change. Things that are more profitable now may be less profitable in the future. Ms. Sullivan also said that she would not feel comfortable dictating the type of units. This should be left up to the developer. However, she hoped that the developer would see his way to considering single-family units during the process.
Ms. Sullivan moved that, pursuant to the authority of the Board of Selectmen found at 760 CMR 45.00, that the Board vote to endorse for Local Initiative Program approval, the proposed comprehensive permit project entitled "West Bay Landing" off of Soule Avenue, Duxbury, Massachusetts subject to the following conditions:
1. That this endorsement is granted to Zero Bay Road Trust and is not transferable or assignable without written consent of the
Board of Selectmen;
2. That the total development density of the project be no greater than 16;
3. That no less than five (5) of the dwelling units be sold to individuals earning no more than 80% of the median income for the
geographic region containing Duxbury as determined by the Department of Housing and Community Development;
4. That no dwelling unit be constructed closer than 60 feet from a property boundary of one other than the applicant;
5. That an appeal of the comprehensive permit issued by the Board of Appeals to the Housing Appeals Committee pursuant to
G.L., c. 40B, s. 20-23 and 760 CMR 31.00 et seq. shall automatically revoke this endorsement, rendering the same null and void
upon docketing of the appeal with the Housing Appeals Committee.
After discussion of the motion, it was mutually agreed to change the number of affordable units from "five" to "25%".
The Board summarized the differences between Mr. Witten's original motion, and Ms. Sullivan's motion (as amended):
· The number of units changed to a maximum of 16.
· The qualifying proportion of median income changed to 80%.
· The proportion of affordable units set at 25%.
· The 60 foot setback requirement remains.
· The appeals clause remains.
Vote on the Motion: 3:0:0. Motion carried.
WATER AND SEWER COMMISSIONERS
Mr. Martecchini moved that the Board temporarily adjourn their meeting as Selectmen in order to convene as Water and Sewer Commissioners. Second by Ms. Sullivan. Vote: 3:0:0.
Ms. Sullivan moved that the Board commit the amount of $464,084.89 for Water and/or Sewer usage charges to the Treasurer for collection. Second by Mr. Witten. Vote: 3:0:0.
Mr. Martecchini moved that the Board adjourn their meeting as Water & Sewer Commissioners, and re-convene as Selectmen. Second by Mr. Witten. Vote: 3:0:0.
TOWN MANAGER REPORT
· Construction costs were slightly up during the month of April.
· Health Agent, Tracy Baugous, and Fire Chief Kevin Nord, applied for and received a $10,000.00 grant from
the National Association of City and Town Health Officials for Medical Reserve Corps recruiting and training.
· Substantial progress has been made on the design of the Birch Street water tank.
FINANCE DEPARTMENT REPORT: MISSING CHECKS
Finance Director, Mr. John Madden, discussed a missing Priority Mail package that was mailed to our lockbox on April 25, 2007. (Deputy Assessor Dick Finnegan and Treasurer Beth Conway were also present.) It contained real estate bills and corresponding checks that were taken in over the counter during a two-day period, and then sent to our third-party payment processor. The exact number of checks and total amount are unknown. There is almost no likelihood that these checks could be inappropriately cashed. Each one was marked, "FOR DEPOSIT ONLY/ TOWN OF DUXBURY". An investigation by the Police Department, with assistance of the postal service led to the conclusion that these checks are unlikely to be found. Thanks were given to Lieutenant Chipp Chubb who handled the
investigation.
The steps being taken to handle this situation include:
· Sending duplicate bills to all customers with outstanding balances.
· Allowing those customers a grace period until May 31, 2007.
· Placing a legal notice in the Duxbury Clipper, Duxbury Reporter, and Patriot Ledger.
· Discontinuing the process of mailing payments to the third party payment processor.
· Having an on-site visit from our auditors to review our financial procedures and documentation and make recommendations.
Other news from the Finance Department includes the fact that water bills and parking tickets may now be paid on-line.
MINUTES
Ms. Sullivan moved that the Board of Selectmen accept minutes from April 30, 2007 as presented. Second by Mr. Witten. Vote: 3:0:0.
COMMITTEE RESIGNATION and APPOINTMENT
Mr. John J. Geary resigned from the North Hill Advisory Committee, due to time conflicts.
Ms. Sullivan moved to appoint Mr. Anthony Floreano to fill Mr. Geary's unexpired term, such term to expire on 6/30/08. Second by Mr. Witten. Vote: 3:0:0.
ADJOURNMENT
Mr. Martecchini moved to adjourn the meeting at 10:58 PM. Second by Ms. Sullivan.
Vote: 3:0:0.
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