Minutes
Stow Board of Selectmen
January 13, 2015
Present at the meeting that was held at Stow Town Hall were Brian Burke, Donald Hawkes, Charles Kern, Thomas Ryan and James Salvie.
Also present were William Wrigley, Town Administrator and Maureen Trunfio, Administrative Assistant. Mr. Kern called the meeting to order at 7:00 PM.
Public Input: None
Chairman’s Comments: None
Meeting Minutes
Mr. Hawkes moved to approve the minutes of December 9, 2014 as drafted and amended. Mr Ryan seconded the motion and it was passed unanimously.
VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.)
Presentation of Certificate of Appreciation
The Selectmen honored Dotty Wilbur as she prepares to retire from her position as Principal Assessor after 17 years of service. She was presented with a Certification of Appreciation signed by the Selectmen.
Appointment of Apprentice Fire Fighters
The Board of Selectmen voted to make the following appointments.
On the recommendation of the Fire Chief, Mr. Ryan moved to appoint the following as Apprentice Firefighters for the Town of Stow Fire Department, for the remainder of the current fiscal year, with subsequent reappointments being one-year terms, ending June 30, 2015. Mr. Hawkes seconded the motion and it was passed unanimously.
VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.)
Apprentice Firefighters:
Ryan Colvin
Jacob Hatch
Camden Herlihy
Matthew James
James Kelly
George Nunez
Ben Rhodes
Carlos Santiago
Jeffery Stupak
2015 Special Town Meeting - date and warrant dates – and Special Town Election
Mr. Hawkes moved that the Board set Monday, February 23, 2015 as the date for a Special Town Meeting, to be held at Hale Middle School, 55 Hartley Road, at 7 p.m. and
moved that the Board open the February 2015 Special Town Meeting warrant on January 13, 2015 and close the warrant on January 20, 2015. Mr. Ryan seconded the motion and it was passed unanimously.
Mr. Hawkes further moved that the Special Town Election be held on Saturday*, March 7, 2015, at Center School, 403 Great Road, from 7 a.m. – 8 p.m. Mr. Ryan seconded the motion and it was passed unanimously.
ALL ABOVE MOTIONS VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.)
*Town Clerk was present and spoke. She explained that in order to accommodate use of the gymnasium at Center School, a Saturday election is necessary. She mentioned that absentee ballots will be available via the Town Clerk’s Office.
2015 Annual Town Meeting Warrant Dates
Mr. Hawkes moved that the Board open the May 4, 2015 Annual Town Meeting warrant on January 13, 2015 and close the warrant on March 20, 2015. Mr. Salvie seconded the motion and it was passed unanimously.
VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.)
Positions for 2015 Annual Town Election Ballot
Mr. Hawkes moved that the Annual Town Election be held on Tuesday, May 12, 2015 at Center School, 403 Great Road, from 7 a.m. – 8 p.m., for the following offices. Mr. Salvie seconded the motion and it was passed unanimously.
VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.)
Board of Assessors |
One 3-year term |
Board of Health |
One 3-year term |
Nashoba Regional School Committee |
One 3-year term |
Stow Housing Authority |
One 5-year term |
Planning Board |
One 5-year term |
Trustee, Randall Library |
Two 3-year terms |
Board of Selectmen |
Two 3-year terms |
Public Hearing (Continuation)
Minute Man Air Field Earth Removal Permit Request
At 7:10 PM Mr. Kern re-opened the public hearing continued from December 9, 2014 for a request for an Earth Removal Permit relating to a runway project at Minute Man Air Field located at 302 Boxboro Road. David Rich, Senior Project Manager at Stantec Consulting Services, Inc. was present as well as air field owner Don McPherson. The original filing was submitted on November 14, 2014 and is available at the Board of Selectmen’s Office for public viewing. Mr. Kern asked if any abutters were present, none were present.
At the prior meeting, the applicant submitted that ledge should not be considered earth. Mr. Kern read aloud Town Counsel’s opinion on this matter,
“Section 22(a) states, “As used in this bylaw, earth material shall include soil, loam, sand, and gravel.” While the word “ledge” is omitted from the definition of “earth material”, it is my opinion that the Board of Selectmen could properly interpret the purpose and intent of Section 22 of Article 6 to include the regulation of removal of “ledge”. First, the Board of Selectmen is entitled to a degree of deference in the interpretation of the regulations the Board is entrusted to enforce. See, for example, Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374, 381 (2009)( “a judge must give 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances”).
Given the purpose and intent of Section 22 of Article 6, it is certainly reasonable to conclude that the Board of Selectmen have been charged with the oversight of the removal of “ledge” in like manner as it has been charged with the removal of soil, loam, sand and gravel.
In addition, when Section 22 of Article 6 is reviewed in total and as one coherent regulation, it is clear that Town Meeting intended that the Board of Selectmen was empowered to oversee the removal of natural materials found within a parcel and ensure that such removal would not be offensive or injurious to abutting properties or the Town in general. The regulation would be internally inconsistent if it regulated the removal of some earth materials—soil, loam, sand and gravel—but not others such as “ledge”. See Livoli v. Zoning Board of Appeals of Southborough, 42 Mass. App.Ct . 921 (1997)(statute should be interpreted so as to render it a “consistent and harmonious” whole, so far as reasonably practicable). Second, and perhaps more obviously, “ledge” is rock and gravel consists of rock. It is not disputed that Section 22 grants the Board of Selectmen the authority to regulate “gravel”. Accordingly, it cannot be seriously argued that the removal of “ledge”, which is a form of
gravel, is un-regulated. Based upon the discussion above, it is my opinion that the Board of Selectmen could reasonably conclude that Section 22 of Article 6 includes the regulation of the removal of ledge as consistent with purpose and intent of Section 22.”
To summarize, Town Counsel argues that the Bylaw intends for ledge to be
considered earth and, thus, the proposed project is subject to the Bylaw provisions.
Mr. McPherson spoke and explained that this project would be funded primarily by State funding but explained that the project requires that it follow specific guidelines.
Mr. Rich said that they had revised the application. They found an area on site, away from wetlands, on which they could stockpile 3,500 c.y. of material. They would need to stockpile a total of 2,900 c.y. of soil on site. 1,200 c.y. of the earth could be reused in larger fills on site which would leave an excess of 3,300 c.y. of earth material that would need to be removed.
Mr. Ryan asked if the project were denied, would it be able to move forward. Mr. Rich answered that they would need to seek areas on site where materials could be stored which would prove extremely difficult due to the many wetlands on the parcel.
Mr. Hawkes asked the applicant whether he considered the project to be landscaping. The applicant replied in the affirmative. He explained that the south end of the runway contains a hill which is a safety hazard.
Mr. Salvie asked the question whether different types and sizes of planes could land on the runway once the proposed project had been completed. Mr. Rich responded by saying that the type of aircraft is dependent on runway length, and the length of the runway will remain the same. Mr. Salvie asked whether the removal of obstructions (the hill) in the safety zone would affect this, and Mr. Rich answered in the negative. Mr. McPherson stated that after the project had been completed, it would be “same length, same width, same traffic.” Mr. Ryan asked whether larger planes could land there in the case of emergency, and Mr. McPherson answered in the affirmative.
Mr. Salvie continued by asking if the airport would see more flights, more carriers, etc. Mr. McPherson denied that there would be any effect on air traffic as a result of this project, if approved.
Mr. Salvie asked how the project could be considered landscaping. Mr. Rich answered that they would be re-contouring for safety. Mr. McPherson explained that the Stow bylaw is flawed and does not allow for safety fixes.
Mr. Ryan asked Mr. McPherson if State funds were not available, would he complete this project with his own funds. Mr. McPherson answered in the negative stating that it would not be cost-effective as an airport owner. Mr. McPherson added that the State is responsible for ensuring safe operation and the runway needs to be repaved.
Resident Nancy Arsenault questioned how many truckloads the volume of earth would equal and how long the duration trucking period would potentially be.
Mr. Rich answered that the project is scheduled to last 50 calendar days. The trucking portion of the total project would not last 50 calendar days (revised sheet from 40 days up to 50 days) but would more likely take 25 calendar days. If the trucks utilized carried 20 c.y./truck, the total number would equate to approximately 800 trips in and out on Boxboro Road, or 1,600 truckloads. He stated that they would like to begin the project in March or April, but must be finished by June 30, 2015.
Resident and Planning Board member Mark Jones suggested caution when defining landscaping. If the Board might allow a liberal interpretation of the word landscaping at a particular hearing and grant a permit based on that definition, the Town might be vulnerable to a precedence reference in future cases.
Taylor Road resident Debi Estey questioned whether the project, with the new stockpiling area, would remain on the same original parcel for which abutters were notified. Mr. Rich said that it would remain the same. Mr. McPherson stated nothing would change. It would be parcel R-7 #35 only.
Kathy Sferra discovered that if an applicant applied for a permit and were denied, Mass Aeronautics and the FAA might take into consideration that the applicant made their best effort in attempting to comply. Mr. McPherson stated that you can apply for waivers from Federal regulations
Resident Bill Byron asked about elevation at end of runway. Mr. McPherson stated that the hill would be brought down by 6.5 feet and then would be raised to 6.5 feet in a gradual slope toward the end of the runway. Earth material from the project would be utilized to create the slope. Mr. Byron also questioned whether the abutters would be affected by loss of a buffer. Mr. McPherson said that the hill would still slope away from the homeowners as it currently does.
Mark Jones advised the Board to be aware that most explosives contain prochlorate, which is found to be problematic with well water. Mr. McPherson claimed that provisions were already considered and would be written into an agreement with the contractor strictly prohibiting the use of prochlorate, if the project were approved.
Resident Lynn Colletti mentioned that less than 30 days of earth removal by truck would equal a heavy amount of traffic on Boxboro Road during those days.
Mark Jones suggested that allowable roads be written into the permit if the project is approved. Single-lane roads such as Packard Road should be excluded from use by large, earth-removal trucks.
Mr. Hawkes moved to close the Earth Removal Permit Hearing for proposed work at Minute Man Air Field. Mr. Ryan seconded the motion and it was passed unanimously.
Mr. Ryan made a motion to approve and issue a one-year Earth Removal Permit, subject to stipulations to be discussed, for proposed removal of 15,700 c.y. of earth at Minute Man Air Field under the landscaping provision. Mr. Salvie seconded the motion, stating that he would like to require expert help regarding the conditions assigned to the project if it were to pass. The motion did not pass.
Mr. Ryan explained his position. He claimed that when comparing this project to a recent earth removal permit request, his opinion was that the two projects are vastly different. The project denied earlier this year required removing a 30-foot hill vs. a 6.5 foot hill, which is the case in this permit request. His reasoning took into consideration that Minute Man Air Field is a commercial operation that has existed for many years. His opinion was that the applicant is attempting to make improvements required for safety and to qualify for State funding under Mass Aeronatutics requirements and it is, in his opinion, a landscaping project. A six-foot change on an existing runway qualifies as landscaping and removing a 30-foot hill does not qualify as landscaping.
Mr. Kern asked Mr. McPherson if there might be any dollar value to the earth material that would be hauled off. Mr. McPherson stated that there is no dollar value to the material and that he we have to pay for the material to be hauled off the site.
Mr. Hawkes explained his opinion regarding the application. He stated that he did not see clear distinction between the current and a recently denied application for an earth removal permit. He agreed that the bylaw strictly limited permissible reasons the Selectmen could allow earth removal. He read aloud Town Counsel’s advice from a memo dated June 6, 2014 regarding a recently denied request for an earth removal permit:
While the Board has considerable discretion to make findings based upon the facts presented to it, it is clear that Section 22 limits the breadth of the Board’s authority under the “landscaping exception”. The Board must initially conclude that the proposed earth removal operation is for the purpose of landscaping. If and only if that requirement has been satisfied, the Board may then proceed to determine whether the materials proposed for removal cannot be “practically utilized on the property”.
The burden of proof regarding these conjunctive requirements is on the applicant and requires the applicant to demonstrate in the first instance in what manner or how the proposed earth removal operation is for the purposes of landscaping and thereafter, in what manner or how the materials proposed for removal cannot be practically used within the property.
Based upon the application submitted in this matter (March 20, 2014), it my opinion that the proposed earth removal operations do not comport with the required findings discussed above. First, there is no evidence that the proposed earth removal operation is for the required purpose of improvement of a lot by “landscaping”. Rather, as stated in the application, the purpose of the earth removal operation is for “creating a Safety Zone on the South end of PLA #690”. Second, the application contains no showing that the proposed earth removal operation—that is removing the materials from the locus—is required and that the excess materials cannot be “practically utilized on the property”. While the application suggests
several “long term benefits” of the earth removal operation, the application contains no support for the Bylaw’s required finding as to “practical utilization”.
Mr. Hawkes stated that based upon the application submitted, the similarities of the two earth removal permit requests does not allow any alternative but to vote against this current application submitted by Minute Man Air Field.
Mr. Salvie said that he commended the effort made by the applicant to comply as closely as possible to the requirements of this project. He noted the effort to stockpile on site, etc. He noted that there was no vehement opposition to this project by abutters to the site, which differs from the past earth removal permit request presented. He also noted that it is a finite project. He acknowledged the validity of Mr. Ryan’s reasoning, but could not agree with the point that the reasoning that good for public safety, which he said he considered true, was an item that the bylaw is permitted to take into account.
He stated that the argument that the degree of difference between the two projects in terms of amount of earth that would be removed, could not be supported because as a result, an arbitrary number would become a determining factor. The prior project that was denied requested permission to remove 70K c.y. of earth. This project, by comparison, requested permission to remove 15K c.y., which might be considered a small enough amount to be considered landscaping, but he felt that would be considered assigning an arbitrary number to the definition of landscaping. He ended by saying that this project serves as proof that the bylaw needs to be re-written. He was sorry that an important part of the community was poorly affected by the bylaw restrictions.
Mr. Burke stated that Minute Man Air Filed is an important business and is a good neighbor. His opinion was that the application is in the interest of public safety . He stated that he was appreciative that the applicant has taken great strides to keep in compliance with bylaw as demonstrated by stockpiling efforts. He mentioned flaws in the current bylaw. He announced that work was underway to amend the current bylaw. He suggested that arbitrary height levels should not be established because the Town would then be responsible for, possibly, defending their decision in court with regard to future cases that might be denied. He could not rectify approving this earth removal bylaw after denying the previous application.
Mr. Kern stated that his opinion was that this project was in the best interest of the Town but there was no possible away to allow it due to constrictions in the current bylaw.
Mr. Ryan was the only Selectman in favor of the motion to approve the project. Mr. Burke, Mr. Hawkes, Mr. Kern and Mr. Salvie were against the motion to approve the project.
Mr. Hawkes moved to deny the issuance of an Earth Removal Permit for proposed work at Minute Man Air Field. Mr. Salvie seconded the motion and it passed 4:1.
VOTED: (4-1) Against (Mr. Burke, Mr. Hawkes, Mr. Kern and Mr. Salvie voted in favor of denial. Mr. Ryan voted against the denial to issue.)
Update from Stow’s Nashoba Regional School District School Committee Members
Present were Nashoba School Committee representatives Maureen Busch and Lynn Colletti. Ms. Busch reported that the Annual District Improvement Plan was approved by a majority before the end of the 2014 calendar year. Ms. Colletti said that they were currently working on the FY-16 Budget. Mr. Burke invited all to the upcoming NRSD Budget Workshop. Mr. Hawkes reminded the Board and Representatives to be cognizant of contract negotiations which begin in July. He stated that any increase that arises from those negotiations becomes the main driver of the budget because 80% of the school budget is comprised of salary costs. Mr. Salvie asked the status on capital project costs with regard to the possible expansion of the high school building. Ms. Busch stated that the Space Study Task Force is not ready to make a recommendation to the
School Committee at this time. Mr. Salvie confirmed that a Statement of Intent was not filed with the Massachusetts School Building Authority (MSBA). Ms. Busch stated that they would be putting off for at least one year, any submission to MSBA. Mr. Salvie asked about the recent vote to accept the District Improvement Plan. Ms. Busch explained that those who voted against it did so simply because the plan, as presented, did not include a wide enough realm of improvement. Mr. Salvie asked for an explanation for the need to expand the high school. The Representatives stated that, mainly, the Science facilities have been an issue and there is a need to relieve those restrictions because Science scheduling is the first area to demonstrate problems when developing students’ schedules. Ms. Colletti mentioned that there are currently 1,038 students at the high school and the building is utilizing 93% of its space. The other area for concern involves Electives, which are becoming more
prominent. The Task Force is working to understand how these two matters work right now. It was established that the school is not overcrowded yet, but is fast approaching that distinction. Mr. Salvie questioned a rumor stating that students take tests in hallways. Ms. Busch explained that during AP exams they use the hallway near the Auditorium Lobby set up with tables because that one area is able to remain undisturbed during regular school days. Mr. Kern determined the space issues are driven not only by head count, but also by classes offered. He asked if discontinuing certain classes might be taken into consideration. The Representatives said that the Task Force is “working through” those considerations.
Mr. Salvie asked if they had received information regarding the budget and health care costs. The Representatives stated that they had not received information from the Superintendent at this point, but said he will most likely give a preliminary presentation before the Budget Workshop at the regular School Committee meeting. Mr. Hawkes encouraged residents and board members to attend Tri-Town Meetings whenever possible, as many school district issues are discussed.
The Representatives stated the current lack of parking is being addressed as a maintenance issue. There are no major capital items, other than possible expansion of parking at the High School. Cuts to transportation from the Governor’s Office (9C) were briefly discussed. The Board thanked the Representatives for their service.
Presentation by Recreation Department of Proposed Improvements to Pine Bluff Recreation Area
Ben Gary, of Marshall Gary LLC, is working with the Recreation Department and was present to explain plans for the Pine Bluff Improvement Project at Lake Boon. He told the Board that the area will be brought up to code to satisfy Board of Health requirements. A pavilion to offer shelter, additional parking, renovation and addition of two restrooms were a few of the many proposed improvements highlighted. Full plans and the written proposal can be viewed in the Selectmen’s Office. The total project cost is estimated to be $242,000. Most of the project’s total cost would be paid for with Community Preservation Commission (CPC) funds. The remainder would be raised by the Recreation Department. The Board commended Laura Greenough, Recreation Director, and the entire Recreation Commission for their efforts on the project.
Appointment of Fire Department Call Lieutenant
Jeffrey Lyons was present along with Fire Chief Joe Landry. Chief Landry recommended appointing Mr. Lyons to Call Lieutenant. Mr. Lyons lives in Stow, is third-generation fire service and has already served four years on the Stow Fire Department. Chief Landry expressed his confidence in Mr. Lyons’ work.
On the recommendation of the Fire Chief, Mr. Hawkes moved to appoint Jeffrey Lyons to the position of Call Firefighter Lieutenant for the Town of Stow Fire Department, for the remainder of the current fiscal year, with subsequent reappointments being one-year terms, ending June 30. Mr. Ryan seconded the motion and it was passed unanimously.
VOTED: (5-0) In favor (Mr. Burke, Mr. Hawkes, Mr. Kern, Mr. Ryan and Mr. Salvie.
Town Administrator’s Report
Mr. Wrigley mentioned that Town Counsel has submitted the Town’s Zoning Bylaw to Massachusetts Department of Transportation for full review.
Mr. Wrigley reported that the funds from free cash, $200K, will most likely be available to contribute to the Fire Station/Community Center Project.
He reported that the Nashoba Regional School District will most likely vote to take the remaining modular classroom at Pompositticut School. It was offered free of charge, due to the possible high demolition costs.
Liaison Reports
Mr. Ryan reported that he attended the Highway Department’s Open House and was impressed with the work associated with attaching and remodeling the modular classroom that was delivered to them in 2014.
Mr. Hawkes reported that he attended the prior night’s Planning Board meeting at which they discussed the Fire Station/Community Center Project with regard to lighting and drainage permits.
Mr. Salvie reported on the permitting associated with the Fire Station/Community Center Project. Permits have been granted from Zoning Board of Appeals, Conservation Commission, and Planning Board has issued site plan and erosion control permits. He announced that he planned to hold a meeting of the Committee, along with the architect, Kaffee Kang, on January 22, 2015 to develop the presentation that will be given to the public at the Board of Selectmen’s meeting on January 27, 2015.
Mr. Burke reported he remotely attended the January Permit Team meeting. Spring Hill Estates, Stretch Code, Earth Removal and Noise Bylaws were discussed. He also attended the COA meeting the prior week and hosted Tri-Town in Stow on January 7, 2015.
Executive Session
At 9:30 PM Mr. Hawkes moved to go into Executive Session pursuant to MGL Chapter 30A, section 21(a)(5), for the purpose of discussing strategy with respect to possible litigation, and to adjourn thereafter. Mr. Ryan seconded the motion and it was passed unanimously. Roll call vote: Mr. Ryan, aye, Mr. Hawkes, aye, Mr. Kern, ay e, Mr. Salvie, aye and Mr. Burke, aye.
Respectfully submitted,
Maureen Trunfio
Administrative Assistant to the Board of Selectmen
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