MINUTES OF WESTBOROUGH PLANNING BOARD
January 05, 2016
Regular meeting of the Westborough Planning Board held in the Forbes Municipal Building in the Room 23, 45 West Main Street. Members Bush, Silverberg, Diamond and Spencer were present. Member Ed Newton, Jr. will be present by Skyping.
Meeting dates: January 19, 2016 and February 02, 2016
Chairman Brian Bush stated that the first item on the agenda is for a continuation of the public hearing on Toll Brothers but he must recuse himself from this discussion.
At 7:00 p.m. the Board prepared to continue the Modification to Special Permit #T-OV-05-1 (Westborough Village). See attached minutes.
At 7:00 p.m. the Board prepared to continue the Public Hearing on the Downtown Planning Overlay District (DPOD) Rules and Regulations.
Chairman Brian Bush stated that because we have been very busy with Toll Brothers, we have not put together the guidelines so we will continue this to January 19, 2016.
Member Mark Silverberg motioned to continue the public hearing on the DPOD Rules and Regulations to January 19th, 2016. The motion was seconded by Member Bill Spencer and unanimously voted.
The minutes of December 15, 2015 was reviewed and approved.
OLD/NEW BUSINESS:
Update on State Hospital:
Chairman Brian Bush said the State Hospital Reuse Committee met with Board of Selectmen and gave them a presentation and preliminary recommendation on progress for this project. The Selectmen were supportive of the reuse plan showing parcel division and proposed zoning. We have succeeded going forward on what will be retained and what comes down. The Selectmen will have a formalized recommendation by January. We want to put together several articles for this project. There will be a couple of articles relative to this. Zoning will change in the mix use district eliminating market rate housing. We want to restrict it to only 55 and over. We also need to make a change to the Senior Living Overlay age from 60 to 55 years and that no one under 18 can live there.
The Reuse Committee meets next Thursday. A survey has been released for a subdivision of land as well as piece of land developed through the RFP. One issue is asbestos. It was discovered late in the process. There have been hazardous surveys done on the property. We want to get a recommendation that the reports are adequate to bid with. We should come together for a recommendation to go to Town Meeting this spring.
Member Bill Spencer asked are we referring with Town Counsel on this.
Minutes of Westborough Planning Board
January 05, 2016
Page 2
Chairman Brian Bush responded yes that Town Council will review these articles and let us know if we are within our rights to make these changes.
Member Mark Silverberg asked we are changing zoning and also amending the senior housing for this District?
Chairman Brian Bush said there will be a hearing on this. The overlay district is included now in the MUD district. We will change the zoning based on age. It is a Planning Board issue and is really consistent with what was intended.
The Town Planner said he will give everyone a copy of his questions to Town Counsel. 1. A change in age from 65 to 55; 2. Excluding individuals under the age of 18 years; we have to modify our local bylaw to incorporate this and reference the exclusion of individuals under 18. They can visit but can’t establish residency. This also needs to be amended in the Senior Living Overlay District. We must make reference to the state hospital separate from the Senior Living Overlay.
Member Mark Silverberg commented that we will have to amend the Use Regulation Schedule in the MUD District as a footnote.
The Town Planner said on January 19th, we will hold the Public Hearing for an article on the Spur House. The legal advertisement has already run in the paper.
Mr. Pat Purcell, new Fire Chief asked what are you projecting for building structures? He is concerned with call volume.
Chairman Brian Bush said there will be very broad uses, multiple uses. It is up to the developer to make a plan of what they intend to do. It could be commercial, office, senior housing, hotel or retail. It is unknown at this time. The process must get approved first through Town Meeting and then they must come to the Planning Board. At this time everyone can comment. The RFP is handled by the Board of Selectmen. There will be a weighted evaluation of the proposal which could be made up of members of the Reuse Committee, Town Manager, Board of Selectmen and Department Heads.
The Town Planner said the Planning Board will have to discuss the zoning options for a March Town Meeting. We would have to do public hearings in January or February.
There being no further business to discuss, the meeting adjourned at 9:17 p.m.
Respectfully submitted,
Sandy Spinella/Administrative Assistant
Minutes of Westborough Planning Board
January 05, 2016
Page 3
APPROVED:
--------------------------------------------------- -----------------------------------------------------Brian Bush, Chairman of Board Mark Silverberg, Vice-Chairman of Board
------------------------------------- ---------------------------------- -----------------------------------
Edward Newton, Jr. Charlie Diamond William Spencer
NOTICE OF PUBLIC HEARING
ON
Modification to Westborough Village (T-OV)
Gleason Street
January 05, 2016
Pursuant to the Rules and Regulations relative to Special Permits, under Section 1330, 2300, 2400 and 2600 of the Zoning Bylaws of the Town of Westborough and M.G.L., Chapter 40A, Section 9, the Westborough Planning Board held a public hearing on Tuesday, December 15, 2015 and a continuation on January 05, 2016 on a Modification of its Special Permits. The original special permit for the project was issued in 2006 as Special Permit #05-1 and the special permit was modified in 2010. This application concerns the parcel referenced as Assessor’s Map and Parcel 18-5-0 located on Gleason Street, Westborough, Massachusetts.
Member Mark Silverberg invited the proponents to come forward with their presentation.
Attorney Christopher Senie, Mr. Shawn Nuckolls, Mr. Derek Wheeler were present for discussion.
Attorney Christopher Senie said he has had many informal discussions with the Town Planner and did receive a draft decision which has since been altered to add in comments. Both the draft and comments from the Town Engineer were found to be acceptable to Toll Brothers. We would like to close any remaining gaps.
Attorney Senie stated the main request and reason for this public hearing and the way it was advertised in the paper is to waive Footnote 5 on the dimensional table under Section 5060 of the Zoning Bylaws. Note 5 would be considered to mean that there will be no bedrooms below grade. It may be finished with bathrooms but no bedroom closets, no bedrooms or kitchens. We also discussed that Toll Brothers did listen to comments from staff. Again, they are disappointed that tax revenue from the commercial is not flowing in. Since development of Building #48 has taken longer than anticipated, Toll Brothers is considering a program called PILOT. They are seeking permission to make payments in lieu of taxes to the Town beginning in the current tax year, at the rate of $15,000 per year.
Toll Brothers is willing to do this until Building #48 is built under the original or alternative development program approved by the Planning Board. Toll Brothers proposes a cap on PILOT payments of 5 years or a maximum of $75,000. The commercial building should be up before they hit 5 years. Attorney Senie said we then discussed an alternative to allow a development program for Building #48 to allow a mix of age restricted dwelling along with commercial within Building #48. Since we recently learned that to make it age restricted and affordable, this would require a piece of land with 5 acres and the land with Building #48 is only 1.3 acres. The Town Planner asked him if he would consider removing the ANR line. Attorney Senie said this would be difficult to do because it would integrate the commercial into the residential development. It might be better to go back to the commercial building and they will pay the taxes
for five years.
Modification to Special Permit T-OV#05-1
Westborough Village
January 05, 2016
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Member Charlie Diamond said when you came back in 2010, the original plan said 25% had to be affordable and you asked to have this reduced to 12%. The Board allowed this because of a bad economy. However, now the economy has improved. It would be beneficial to the Town to provide affordable housing to seniors. Member Diamond said he would like to include this in the decision. There is a need for affordable housing in Westborough. There is room for compromise.
Attorney Chris Senie said you want to build this into the modification and hope it isn’t challenged.
Member Mark Silverberg said he was one of the original Planning Board members to approve the 2010 amendment. The study on children was poorly done. The affordability was erroneous and they couldn’t make it work under those terms. You requested 10% affordable and we got you up to 12%. The point is, the project has been very successful and we want to see you get closer to the 20% affordability. He didn’t like the change to Building 48; it should be a modification in its own right. If you do the senior housing, you would be increasing the number of residential units. It is a request for the applicant to increase the number of units.
Attorney Chris Senie said not true, this came from an idea at a work session and not Toll Brothers.
Member Mark Silverberg said he wants you to get back closer to the 20% affordable units. You ended up with having to do only 33 affordable units and it originally should have been 54.
Attorney Chris Senie said this is the first time we are hearing the increase in affordable units. Toll Brothers is only looking for a waiver on the finished basements.
Member Mark Silverberg said he is trying to fix what is broken in this permit. He is not making the waiver contingent upon other things. If the basement waiver makes sense, then he will support it. The interconnectivity piece has been agreed to; the PILOT for taxes is also good. Regardless he likes the idea of affordable senior housing and Westborough residents are given preferential treatment. 20% was always there from the beginning. How can we fix what is broken in this permit.
Attorney Chris Senie said this is brand new to us; we worked on the issues at a work session and identified the lack of tax revenue. In reality, the notice in the paper evolved from a modification of definition of bedrooms to about fixing things. The notice says we are looking for an opportunity to add senior affordable units to Building 48.
Member Charlie Diamond said you did suggest a mixed use and then we suggested maybe senior housing in there too. It could be seen as a nice adjustment.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Member Bill Spencer said there are three issues: live-in basements, PILOT program for taxes and senior living. We need to address each issue separately. We need to put in order what we can get done.
Member Ed Newton, Jr. said he is not convinced basements are a stand-alone item. We need to take a step back and keep the hearing open to discuss all this further.
Member Mark Silverberg said we will start by discussing PILOT:
Member Silverberg said he has a big issue that there is a 5 year cap. He wants to see that extended until the building is finished. He has no problem with the amount they are proposing.
Member Ed Newton, Jr. said he is okay with that and agrees that there should not be a cap. Paying the taxes should remain in place until building is done.
Member Charlie Diamond said he would be willing to compromise if they modify and add affordable senior living.
Member Mark Silverberg said the intent of the mix use was to generate tax revenue not related to school age children. The importance of the additional tax revenue was because it would partially offset the cost of children to the school system, one reason the town has done well is because there is a lot of commercial revenue in addition to residential tax revenue. In 2010 we reduced the commercial requirement for Toll Brothers. We have yet to see any revenue from that one remaining commercial building. We are suggesting the PILOT be extended until the building is built.
Mr. Shawn Nuckolls said there was never a requirement to build a commercial building until the end of the project. We are coming to the table with $75,000 and a gate for the water treatment plant. We feel this new interpretation is false. We are here to negotiate. This is not heading in the direction of being fair. This project would not have happened if the amendments had not been in place.
The Town Planner said the Planning Board gave you a privilege at the time. The reality is the market is not poor anymore. Regardless of the interpretation, the Zoning gives the Planning Board the right to interpret their own zoning.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Member Mark Silverberg said we will discuss Senior Housing:
Member Silverberg said he is okay in concept with the increase in residential units to make that building more marketable. These units would be included into the Homeowners Association (HOA) and would have full use of the parks. He does not know if the Association would accept this. The point is he wants to see the building built by allowing you to increase the number of units as senior housing affordable units, and be part of the HOA. This would be the best solution.
Attorney Chris Senie said with the number of owners we have the only changes Toll Brothers can make to the condo documents is clarification purposes aspects of the Master Deed. If something is substantive, it would have to be the subject of a different special permit. The Homeowners Association would have to approve the changes to the condo documents. It would take many months to do the legal work to change the documents.
Mr. Shawn Nuckolls said this would be a major modification which would require a super majority of the HOA (70%) plus every mortgage company with a lien on the property and all P&S buyers for homes. The possibility of that happening is extraordinary slim.
Member Ed Newton, Jr. said under Section 2 and 10 of the Master Deed it covers further obligations by amendments by the Planning Board.
Member Mark Silverberg said in the Master Deed the second paragraph references the original Special Permit and amended 2010 Special Permit. If this modification is granted, it will be filed. Will it be referenced in the Master Deed also?
Attorney Chris Senie said it won’t be referenced in Master Deed. The general language in Master Deed will be binding. This was not covered by notice of the public hearing. It would have to be re-advertised to do this.
Member Mark Silverberg said we will now address Basements:
Attorney Chris Senie said the language he provided to the Board is good language and is clear. The Homeowner’s Association has reviewed the language and agrees with it. It is an awkward situation. It would be fair to the people who bought to let them finish their basements.
Member Ed Newton, Jr. said the ones not sold or built should not be allowed.
Mr. Shawn Nuckolls asked why?
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Member Ed Newton, Jr. said that Note 5 was always there and we know we did not catch it.
Mr. Shawn Nuckolls asked what it the issue of not allowing finished basements in single family homes.
Member Mark Silverberg said when you finish a basement kids will use it as a play area. That opens a room upstairs for other uses. The study can now be a bedroom. The finished basement is now the entertainment area. Now the loft will become a bedroom. We have seen extraordinary number of children (600% from what they quoted).
Member Mark Silverberg asked why the projections are so far off. The basement allows larger families to live there.
Member Mark Silverberg said the definition of affordable unit is the number of bedrooms plus one. In a two bedroom affordable unit you should only have 3 occupants.
Attorney Chris Senie said that Mr. Derek Saari made a mistake. It reads “appropriate size household plus one”. The Deed Rider is attached to the Master Deed. A Mortgage qualifier is to look at earnings compared to household size; then use the lottery taking in to consideration the size of family. This whole thing is being taken out of context and being misread by Mr. Derek Saari. There is nothing that limits size of family.
Member Mark Silverberg asked how are we getting from 28 children and up to 140 plus when built out. How do you fit a family of five or six into a 2 bedroom unless using other spaces for bedrooms?
Mr. Derek Wheeler said we do have 3 bedrooms available and single family homes have 4 bedrooms. We don’t have a large number of finished basements. The real reason for the population explosion is that Westborough is a fantastic town with schools that are great. That is the real reason.
Mr. Shawn Nuckolls said finishing basements is not adding children.
Attorney Chris Senie said the individual homeowners will be paying taxes so that their children can go to Westborough schools. The school department is showing numbers higher than we thought. The homeowners pay all their own plowing and amenities. We did grossly underestimate children. But this development does pay for itself. Attorney Senie said he doesn’t want people to have the impression they are be subsidized by others in town.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Attorney Chris Senie said he reviewed Mr. Derek Saari’s chart. There is no evidence of overpopulation in Westborough Village. The homeowners have normal size families. The Westborough Village has large units this is not a matter of overpopulation but bad study on children was originally performed. Only 90 out of 276 units have potential for basements. You shouldn’t penalize these people. There is pent up anger from the Planning Board for bargaining down the affordability number and he understands this. We should not be having a conversation on real resentment for what happened in the past. The residents of Westborough Village are carrying their own weight.
Member Mark Silverberg asked what about the sewer capacity. What happens when the sewer hits capacity?
Mr. Shawn Nuckolls said we have plenty of sewer capacity. The design capacity was very generous. This has all been fully permitted.
Member Mark Silverberg said he wants DPW to respond to this. He does not want to have buildings started and then have them hit the capacity number and have no more sewers. He would like to have Town Council also weigh in on this. He does not even know if we have the authority to grant this waiver. Also he wants Town Counsel to weigh in on the Master Deed. Will the Homeowner’s Association be obligated? What happens if we don’t grant this waiver?
Attorney Chris Senie said late in the day he heard from Toll Brothers Attorney and asked if he would be agreeable to a clarification to the modification. Mr. Derek Saari has said he wants language that “any space that is not a bedroom cannot be used as a bedroom”. You can’t create bedrooms not allowed. He will conform the Master Deed to reflect that.
Member Charlie Diamond asked when the deeds are transferred to the HOA, will it still be covered?
Attorney Chris Senie replied that if we want to change the master deed to include the new modification, it can be done.
Member Mark Silverberg said he would like to hear from the HOA on how they propose to enforce the use and non use of bedrooms in the future. If it is up to the town only, then the HOA will help enforce this.
Attorney Chris Senie said you need to regulate. The HOA can be asked to help enforce that bedrooms can be used only as bedrooms. This is something that could exist throughout the entire town. They already took title that they can only have immediate family. You can regulate your community.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Member Charlie Diamond asked who will watch when Toll Brothers leaves.
Attorney Chris Senie replied that there is great vigilance that everyone follows the condo rules.
Member Mark Silverberg said he would like to see a commentary from the school committee as to whether this waiver will have an impact.
Member Bill Spencer said he appreciates the arguments. There is a lot of heated discussion about this and the personal space they want to own. He regrets the arguments on the tax base specifically. We have three issues: finished basements - need to do all; the payment on taxes – if this project is not done in 5 years, then is should be continued; flex area Member Spencer said he will not comment until Town Counsel clarifies.
Member Ed Newton, Jr. said he wants to keep the hearing open.
Mr. Shawn Nuckolls said he wants to clarify that Toll Brothers has not asked for additional residential units. We are fine with leaving as it is in commercial. We want this to be developed as quickly as possible. He questions if age restriction and affordable units is legal, and it won’t be financially feasible.
Member Mark Silverberg said another option is to combine it with the project next door to meet the 5 acre requirement. That might be a solution. The whole concept of mix use was to see it built sooner. If you want to just build as a commercial building he is ok with that.
Mr. Shawn Nuckolls said this project is already filed with the state and shows Building 48 as commercial.
Audience:
Mr. Srikanth Tadi at 14 Simon Howard Way said that he is one of the Board of Directors in the Homeowners Association. He wants to make some comments. When he bought his home, he paid for rough-in basement upfront. This has created some financial problems. We need to keep this in mind.
Mr. Shawn Nuckolls said everyone has the option for a finished basement and what he is talking about is a plum-in for plumbing in the basement. The intent was that they will be able to have a finished basement.
Mr. Tadi, 14 Simon Howard Way said he is upset that they have to fight to have a finished basement to watch TV. He works in Cambridge and moved to this town because of the good schools.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Mr. Tadi said he has 3 bedrooms and is a have a family of three. He sees more young couples move in. People already have finished basements and have one or two kids. He would like to see resolution on the basements.
Member Charlie Diamond asked Mr. Tadi if he would bring info back to the HOA. When Toll Brothers is done, you will be responsible for your development. We will want to work with you to make sure rooms are used as they are meant to be. Bring up the issues we have discussed tonight,
Member Bill Spencer said he sympathizes with their frustration. The issue of bedrooms and children has more to do with the town and not the individuals. Would you take back to the Board the general feelings about having a phase with senior units?
Mr. Tadi responded that he would be okay with the senior units but he can’t speak for everyone.
Member Mark Silverberg thanks him for stepping forward as a Director of HOA. We are not concerned with just their basement. We are looking at basements in general. Is that waiver a positive step for the town? He would hope you appreciate we are looking to the future. A renovation to a school adds a lot to everyone’s tax bill. It will affect the whole town’s taxes. We are trying to figure a general policy for basements. We have to think about policies that will be acceptable to all future owners in the HOA. If this waiver is not granted you could still go to the ZBA for a hardship. That would be your recourse if we don’t grant this waiver.
Mr. Tadi said we don’t know how much benefit will get from homes with unfinished basements. By not giving this provision the town is not getting anything and it will be a loss to both the homeowner and the town.
Member Mark Silverberg said we welcome all residents. We are not trying to make your lives harder. Sometimes we have to make hard decisions. We have to formulate decisions with the best policies in mind for the town.
Mr. Rajender Kalavala, 2 Simon Howard Way stated he is also on the Board of Trustees. He came to Westborough for the school district. He has a finished basement and two children. The logic of finished basements is off. Why are we not comparing apartments? If you are thinking kids to basements, we still have not come to a resolution. He does not think a basement adds to the number of kids. We will make sure the community is protected. He would really like the Board to grant the waiver.
Member Bill Spencer said you can’t say by finishing the basement that it will impact the schools.
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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Member Bill Spencer said our zoning bylaws are not directed just at Westboro Village but for the whole town.
Member Mark Silverberg asked if you may not use the basement as an additional entertainment space, could you see a new owner buying this.
Mr. Kalayala, 2 Simon Way said it is an open space.
Member Mark Silverberg asked does a finished basement make it easier to use another room for a bedroom.
Mr. Kalayala, 2 Simon Way said there are rules already in place about basements.
Member Mark Silverberg said there a2 bedrooms units with studies and lofts. Is the HOA willing to enforce that studies and lofts are not to be bedrooms. Is the Association going to work in partnership with the town to make sure that only rooms designated for bedrooms are bedrooms? The Board has to look at this. Please bring these questions before your HOA.
Member Charlie Diamond agreed. We want to hear what your Board has to say.
Mr. Sreenivas Yalamarthi, 6 Simon Way said our house is expensive with taxes high. He has two children and he wanted to move to his own space and not rent. He commutes to Cambridge for work. He has more space but can’t afford more than two kids. He would not put a bedroom in the basement. Your furnace is down there. Units with finished basement are able to watch TV down there. He signed lots of documents with rules that he must abide by to live there. How can you tell people how to live in a house that they own? There are restrictions as to what we can ask of people. Many new couples live there. They will pay high taxes because of the schools and transportation.
Member Mark Silverberg said we are suggesting that the HOA can make sure people are not using rooms not meant to be bedrooms. A finished basement makes it easier to live in the units. If you didn’t have a finished basement, would you have bought the unit? My sentiment is that it makes it easier for a larger family to occupy these units. Member Mark Silverberg said he appreciates his contribution to this discussion.
Mr. Lakshmnarao Pallothu, 44 Simon Way said he moved from Malden due to the schooling. If the basement is not there, he would not have bought the home. You don’t increase the number of children you have due to additional space. They need space for entertainment of existing children. You approved 275 homes and you don’t think there will be any children added to the school population in town? How would you feel if you were being told you can’t finish your
Modification to Special Permit T-OV #05-1
Westborough Village
January 05, 2016
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basement in an expensive unit? This argument does not make. A finished basement does not increase the size of your family and how can you tell us how many children we can have?
Member Mark Silverberg responded we are not in China. He said the finished basement made it easier for you to live in that space. It defeats the whole point and why the footnote was put in. Basements in this zone were not supposed to be habitable space. Are we as a board going to make it easier for larger families to live in these units? We have to realize that this will tax the infrastructure, schools, etc of this town.
Mr. Prasada Anem, 37 Simon Howard Way said he moved to Westborough because he wanted to live in a good town. His son is now gone away to college. He wanted to have a finished basement to watch TV.
Member Bill Spencer said these folks are going to have to live with our decision. We have discussed this quite a bit.
Member Ed Newton, Jr. motioned to continue the public hearing on the Modification to Special Permit #T-OV 5-1 (Westborough Village) to January 19, 2016 at 7:00 p.m. The motion was seconded by Member Bill Spencer and unanimously voted.
Member Mark Silverberg said that the Town Planner will get Town Counsels opinion, talk to the DPW about sewer capacity and talk about senior housing idea. We will also speak to Town Counsel about deed definitions and requirements in the deed. He would like to see this resolved at the next meeting.
Member Mark Silverberg said he would also like to speak with the school department to hear their comments. Also with Town Counsel confirm that we have the authority to grant the waiver.
Mr. Shawn Nuckolls said on the Modification of the 2010 Special Permit to reduce the affordable component, we were originally approved for 350 units and reduced the unit count to 275. Whether basements produce bedrooms, this definition was never intended for how it is being used. It did not come up as an issue until it became a school issue. Building Commissioner Tin Htway found the footnote and asked for an interpretation on it because he felt it was against what he had been approving. Mr. Nuckolls said he does not appreciate this opinion.
With no further business to discuss, the meeting adjourned at 9:17 p.m.
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Westborough Village
January 05, 2016
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Respectfully submitted,
Sandy Spinella/Administrative Assistant
APPROVED:
--------------------------------------------------- -----------------------------------------------------Brian Bush, Chairman of Board Mark Silverberg, Vice-Chairman of Board
------------------------------------- ---------------------------------- -----------------------------------
Edward Newton, Jr. Charlie Diamond William Spencer
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