1.         Call to Order

Chairman Raymond Shaw called the meeting to order at 7:00 P.M at the Town Meeting Room in the Library.  Present at the meeting were Vice Chairman James Carter, Chief Tom Ryan, Chief Al Donovan, Will Lambert, George Donovan, Steve Deackoff, Doug Sears, Director of Community Development Steve Sadwick and Recording Secretary Dawn Cathcart.  Clerk Michael Sitar was not present.

2.         Approval of Minutes – 03/04/04 and 03/16/04

MOTION - Mr. Lambert made a motion to take the minutes of March 4, 2004 off the table.  The motion was seconded by Mr. Donovan and unanimously voted 8-0.

MOTION - Mr. Lambert made a motion to approve the minutes of March 4, 2004 with the following corrections:

1.       On page 5, under Section 6, change “600 Million” to “6 Million”.

2.       On page 6, under Section 6, 1st paragraph, 1st sentence change to read:  “Mr. Deackoff asked if this was inconsistent with Smart Growth and sustainable development policy.  Mrs. Barrett replied that was correct.  Mr. Deackoff reiterated that Ms. Barrett stated that this is also inconsistent with the development policies of the Master Plan.”

The motion was seconded by Mr. Deackoff and unanimously voted 8-0.

MOTION - Mr. Deackoff made a motion to approve the minutes of March 16, 2004 with the following correction:

1.       On page 5, 2nd paragraph, change “Mr. Deackoff stated that numbers in the” with “Mr. Deackoff asked if the numbers in the”.

The motion was seconded by Mr. Lambert and unanimously voted 5-0.  Mr. Sears, Chief Donovan, and Mr. Carter abstaining.

MOTION - Mr. Deackoff made a motion to authorize the chair to file the final minutes of this committee.  The motion was seconded by Mr. Carter and unanimously voted 8-0.

3.         Receipt of Environmental Review Report – Beta Corporation

Mr. Shaw stated that they received the report from Beta Corporation and there are no local jurisdictional issues and this is for information.  This should be filed and forwarded to the Board of Selectmen.

Mr. Sears asked if this was not relevant then why should this be included.

Mr. Lambert stated that this is part of the study area so it should be included for the file and be forward to the Board of Selectmen.

Mr. Deackoff stated that on page 3, under other considerations there is a paragraph regarding wells for irrigation.  This should be included in the Development Agreement because it is inconsistent with what is there now.  Chief Ryan stated that it doesn’t say that wells can’t be used, it says that they may need to be controlled or at least monitored.

 

MOTION - Mr. Deackoff made a motion that the following be included for discussion of the Development Agreement from the Beta Group, Inc memo dated March 17, 2004.  “On-site use of pumped groundwater for irrigation purposes may need to be controlled, or at least monitored, since excessive pumping in certain locations may influence on-site migration of contaminated plumes adjacent to the Property.  Under no circumstances should on-site wells for potable water be permitted.  The motion was seconded by Mr. Sears and voted 2-6.  Mr. Deackoff and Mr. Sears voting in favor.  Mr. Shaw, Mr. Lambert, Mr. Donovan, Mr. Carter, Chief Donovan and Chief Ryan voting opposed.  The motion failed.

MOTION - Mr. Lambert made a motion to file the Beta Group, Inc. report.  The motion was seconded by Mr. Carter and unanimously voted 8-0.

4.         Draft Zoning Article and Development Agreement

Attorney Richard O’Neill handed out an updated Development Agreement

MOTION - Mr. Shaw made a motion to advance the draft zoning article to Attorney Zaroulis and Attorney Bobrowski for final review and forward the Development Agreement to the Board of Selectmen and Town Manager for final negotiation.  The memo entitled “Thoughts on MILLS Development Agreement Draft 3/15/04” from Mr. Sears and all discussions tonight shall be included to the Board of Selectmen.  The motion was seconded by Mr. Sears and unanimously voted 8-0

Mr. Sears stated that the first question is what Mills entity will sign the agreement.  Attorney O’Neill stated that the parent Mills Corporation will sign the agreement.  The second question is who pays the taxes.  Are flagship tenants responsible for taxes and what happens if those tenants go bankrupt.  Attorney O’Neill stated that individual land owners pay taxes.  Certain portions of the mall area could be subdivided and those owners would be responsible for their taxes but taxes from “leasers” would be paid for by Mills.  Attorney O’Neill stated that going further, there will be a building permit for the mall and each re-tenant would require a separate building permit.  Mr. Sears asked what happens when a flagship tenant goes bankrupt.  This would require that a third party be included into this contract.  Mr. Sears stated that he wants to make sure the Mills stands by its obligation to the town.

Mr. Donovan stated that the Board of Selectmen should review these questions and make changes to the Development Agreement that they deem necessary.

Mr. Sears stated that question three addresses ownership of the land.  Mr. Shaw stated that this is not in our jurisdiction and the Board of Selectmen should address this.  Mr. Sears stated that ownership of this land has an effect on the timing of this project.  This will be a complete waste of time until the land owner is determined.  Question four deals with the conveyance with the Conservation Easement.  Attorney O’Neill stated that this would be similar to the restriction on Emerald Court.  This is a statutory process with the Conservation Commission, Board of Selectmen and EPA signoffs required.  There could also be passive recreation uses such as hiking, nature trails, etc.  The Conservation Commission will determine these uses during the NOI process.  With the restriction being conveyed to the State it would make it harder to remove it.  Mr. Sadwick stated that the Town of Tewksbury could be added.

Kim Derosa of 109 Jennies Way – Ms. Derosa stated that the residents wanted the restriction to go to the State because they don’t trust the Town.

Attorney O’Neill stated that they are not sure how much area will be available for the Conservation Restriction but once the project is defined then they will be able to address how much land could be added to this restriction.

 

Mary Fishlin of 120 Jennie’s Way – Mrs. Fishlin stated that they do not want any passive recreation on this site.  Attorney O’Neill stated that could be deleted.

Mr. Sears stated that question five addresses if the easement would run with the land.  Attorney O’Neill replied yes it would.  Question six deals with passive recreation.  Attorney O’Neill stated that it was just stated that this would be deleted.  Question seven deals with replication of wetlands.  Attorney O’Neill stated that they will comply with all town bylaws including conservation.  Question eight asked if any of the alternatives for the interchange are approved except for the 5th alternative then Mills will not build a mall.  Attorney O’Neill stated that Mills will not build a mall unless the fifth alternative is approved.  Mr. Sears stated that the ninth question deals with access to South Street from the Weens property.  Attorney O’Neill stated that there are three possible access to this site for emergency access.  They are the railroad bed, the Weens property and Jennie’s Way.  There is a new item in the Development Agreement regarding eminent domain.  Mr. Sears stated that there is no guarantee of access if the Weens property is sold.  The tenth issue is sound mitigation.  Mr. Sears asked why Mills would measure the mitigation for sound.  Attorney O’Neill stated that the applicant has worked to maintain the Town’s bylaw of 50 dBA.  The Development Agreement states 45 dBA.  Mills is committed to the level of sound in the Development Agreement.  There are enforcement options.  Mr. Shaw asked that “as directed by the Town of Tewksbury” be added to page 4 of the Development Agreement under Section 5, last sentence.  Mr. Sears asked what are the options if this is violated.  Attorney O’Neill replied it would be like any other zoning violation.  There is enforcement or court action.  There is also the option of civil action for nuisance.

Chief Donovan stated that the answers to these questions should come from Attorney Bobrowski since he is point of contact and has been paid by the Town.

Mr. Sears stated that he will just summarize the rest of the questions.  Question eleven asks what recourse the Town has if Mills does not maintain the road.  Question twelve deals with a possible liability to the Town if there is hazardous waste left on the Mills site from the dump.  Question thirteen deals with the use of casinos on the site.  Question fourteen deals with the fact that the town will not get any money until all the permits are approved.  Mr. Deackoff asked if the latest revision of the Development Agreement was written by Attorney O’Neill.  Mr. Shaw stated that Attorney O’Neill did update this document and it will reviewed by Attorney Bobrowski.  Attorney O’Neill stated that he will submit an amendments list of all the changes.  Attorney O’Neill stated that regarding question fourteen, the Development Agreement now indicates that Mills will contribute funds prior to final approval.  Mr. Sears stated that the Town should be able to have recourse if Mills pulls out mid way.  Question fifteen deals with the ice rink.  The Development Agreement doesn’t specifically call out two rinks.  Attorney O’Neill stated that there is concern from the Town to protect the public ice time for the School, Recreation and Tewksbury Skating Authority.  This will have to go before the Planning Board before they can commit to two ice surfaces.

Mr. Deackoff stated that in the Development Agreement, Item #17C there is some language missing that specifies total hours.  Attorney O’Neill stated that it was intentionally left off.  The High School hockey program only skates during a specific month period.  This section was intentionally left out because recreation skating is all year.  Mr. Deackoff stated that it is not clear on how many hours would be available per year to the Tewksbury Skating Association and it says that Mills will schedule the ice time.

 

Mary Fishlin of 120 Jennie’s Way – Ms. Fishlin asked who negotiated on behalf of the Town.  Mr. Shaw stated that he, Mr. Sadwick, Mr. Cressman, and Attorney Bobrowski were involved in a participation in discussions.  Attorney O’Neill added that information received from peer reviews and public hearings were also incorporated.

Mr. Deackoff stated that in the Development Agreement #3, the phrase giving the Board of Selectmen approval for mitigation after a public hearing was removed.  Mr. Deackoff added that the Town Manager should be removed from the Development Agreement.  There are substantial changes from the Development Agreement dated March 15, 2004 and this draft and Attorney Bobrowski has not looked at this version.  This shouldn’t go to the Board of Selectmen without the issues being pointed out.  Mr. Deackoff reiterated that the Town Manager should not be in the Development Agreement and the Board of Selectmen should be able to modify the mitigation after a public hearing is held and if it a substantial change then it should go back to Town Meeting.

Mr. Donovan stated that wording could be added that the Town Manager could sign a modification if approved by the Board of Selectmen with a public hearing.  Mr. Deackoff stated that the Board of Selectmen should retain control of this agreement.  Mr. Sears stated that substantial modifications need to go back to Town Meeting and substantial needs to be defined.

Mr. Deackoff stated that Mills should be responsible for land taking if that intersection is impacted by the project.

Chief Ryan read a memo dated March 8, 2004.  This memo addresses Fire Department fiscal history and that a mall would be a positive impact.

MOTION - Chief Donovan made a motion to accept Chief Ryan’s memo and file.  The motion was seconded by Mr. Carter and unanimously voted 8-0.

5.         Draft Committee Reports

MOTION - Mr. Lambert made a motion to accept the draft committee report and forward to the Board of Selectmen.  The motion was seconded by Mr. Donovan and voted 6-2.  Mr. Lambert, Mr. Donovan, Mr. Shaw, Mr. Carter, Chief Donovan and Chief Ryan voting in favor.  Mr. Deackoff and Mr. Sears voting opposed.

Mr. Sears asked if all exhibits will be attached.  Mr. Sadwick stated that there will be two attachments, the Zoning Bylaw and the Development Agreement.  Everything that has been received has been identified in the report.  The peer reviews and staff submittals will be included, but the applicants submissions will just be referenced and will be made available upon request.

Kim Derosa of 109 Jennie’s Way – Ms. Derosa stated that she wants a line added to the report that Jennie’s Way residents do not think the 5th alternative ramp is the best option.  Mr. Shaw stated that this report is from the committee and if the residents want to submit a report to the Board of Selectmen they could do.

Mr. Deackoff stated that he does not agree with the language or the results of this report.

Judy Fittery of 19 Bemis Circle – Ms. Bemis asked when the Environmental Report was received.  Mr. Shaw replied tonight and it has been filed.

 

Al Fishlin of 120 Jennie’s Way – Mr. Fishlin asked why members of this committee were negotiating with Mills.  Mr. Shaw stated that they did not negotiate, they were involved in discussions.  The Board of Selectmen will be the negotiators and will sign the Development Agreement.

Mr. Donovan stated that there has been no negotiations between the committee and Mills.

6.         Adjournment

MOTION - Mr. Lambert made a motion to adjourn the meeting and dissolve the Mills Study Committee at 8:35 PM.  The motion was seconded by Mr. Donovan and voted 6-2.  Mr. Lambert, Mr. Donovan, Mr. Shaw, Mr. Carter, Chief Donovan and Chief Ryan voting in favor.  Mr. Deackoff and Mr. Sears voting opposed.

 

Approved:                              

                  Raymond Shaw, Chairman