The Chairman opened the meeting at 7:35PM with Members Sears, Gill, and Selissen in attendance as well as the Town Manager, David Cressman and meeting recorder, Charlene Dennehey.  Selectman John Ryan was absent.  Town Counsel Charles Zaroulis arrived at 7:50P.M.

 

Chairman Charles Coldwell opened the meeting with an introduction of two special guests tonight,  Mr. R.J. Mignone and Mr. Dennis Campbell who are first grade students at the Dewing School who are here to observe the live broadcast in order to get their Tiger badges.  Both R.J. and Dennis are members of Tiger Cubs Pack 41 and were welcomed to the meeting.

 

Donna Walsh – Sewer Enterprise Fund

The Chairman introduced Ms. Donna Walsh, Finance Officer, to discuss the Sewer Enterprise Fund.   Ms. Walsh stated that in their packages are 3 different statements for information on where we stand on the Sewer Enterprise Fund which was established on July 1, 2003.  There is a Balance Sheet, an Income Statement, and a Budget-to-Actual Statement.  The Balance Sheet and Income Statement are done on the accrual basis of accounting.  The Budget-to-Actual Statement shows what we have actually spent out.  The accrual basis is where we make estimates of what some of the expenses will be that have not been paid out yet but would have been paid if the bills were received.  We added Fixed Assets to the balance sheet which is $21 Million which covers all the sewer projects done since the 1980’s and is an accumulated depreciation of $8 Million. 

There are Notes payable of $3.9 Million, Bonds payable of $6 Million and some accrued expenses which is basically Lowell sewer.  This leaves us right now in a good financial position; fund equity is $13 Million.  The income statement covers July 1 through and as of January 31, 2004.  Shows different types of revenues that have been received and billed out -- for sewer rates, we’ve billed $1,300,000 thru January.  For expenses, at Town Meeting we voted a General Fund allocation and have been allocating it evenly over the months so we’re up to 7 months.  The Lowell sewer expenses are $104,000 but on the next statement, you will not see them because they’re not paid but are incurred.  Depreciation expense thru January of $321,000 leaves us through January on an accrual basis with a net income of $712,000. 

If you look at these statements at the end of February, they will look different because February is when all of our principal and interest payments are due so $600,000 will go out.  Then we transfer $300,000 in from the General Fund to cover the amount that is exempt from Proposition 2 ½.  All paid in the same months, not accrued over the year, just wait until actually due.  The statement of Budget-to-Actual is presented as the budget that Town Meeting voted, different types of revenues and expenses, allocated the budget over 7 months instead of looking at where we are to the total budget.  On this statement, we’re about $900,000 to the good; does not include accrued expenses or depreciation.  Includes only revenues that have actually been received.

 

Mr. Selissen reminded the Board that Mr. Ryan had requested this to be presented and he will get together with him to go over it.  The good thing is all six phases have been capitalized with this and we are now in full compliance with GASB 34 as far as the Enterprise Fund is concerned.  Also, when we borrowed just under $4 Million to fund this project, when we put the cost model together 2 years ago, we anticipated an interest rate of 5 ½% and when we went out to market, we actually came in at 3.9%.  We are running a positive cash balance and anticipate that for the next 3 or 4 years and hope to extend it beyond.  Project is going really well and there are 13 people in Phase 6 who have already been notified that they can hook up effectively immediately.   Presently, most of the construction is stopped and we’re hoping to start back up in late March, early April -- definitely ahead of schedule.

 

Mr. Sears asked about the revenues:  Sewer connections of $56,700, liens $85,386, application fees $2,600.  How are these realized and what do they represent?
Ms. Walsh replied that the statement he refers to are amounts that are actually billed out, not necessarily received for sewer connections and sewer liens.  A sewer lien is when people don’t pay their sewer bill and we lien on their real estate tax bill.  A $50 application fee when you want to hook up to the sewer.

 

Mr. Gill asked if she is comfortable with the revenue stream or sees any problems in the future.
Ms. Walsh replied, problems not expected in the next year or two.  Mr. Coldwell asked Ms. Walsh if she agreed that it appears that things are looking fairly good in terms of the revenue stream at this time.  Ms. Walsh did agree and added that even from where we thought we’d be, we are a little better off but have a long way to go.  Mr. Cressman added that on one sheet for expenses in the area of debt, only a charge so far of $18,360 and because most of our principal payments, $699,000 will come in on the February report.

 

The Chairman thanked Ms. Walsh for the update.  As there was time available before the next scheduled agenda item, he opened the meeting to residents.

 

Residents

Kim Derosa, 109 Jennies Way:  Read aloud a letter she sent to the Board of Selectmen last week and requested their comments.   She had a question following the last Selectmen’s meeting on February 10.  What makes one property owner more important than another.  Maverick’s area neighbors showed up to one Selectmen’s meeting and they get a meeting with Mr. Coldwell and the business owner to address their concerns.  She and other neighbors have come to these meetings expressing concerns about the Mills proposal and get pushed off to the Mills Study Committee.  We stayed very late at your January 20 meeting expressing our concerns about Mills’ ramp proposal but still you voted to ask the MVPC for its inclusion.  For town residents to have a voice on what happens with the 93 interchange, they need to be informed.  It was obvious at that meeting you were not familiar with the details of the trumpet interchange or the Mills ramp.  The trumpet does not connect with the Tewksbury side of 93; the Mills ramp does connect to Tewksbury streets.  As voters and taxpayers in town, we should be treated with the same respect that other neighborhoods are when they present their concerns.  At the Mills Study Committee meetings, we’re subjected to heckling by special interest groups brought in by the Mills; the Chairman of the Mills committee is inconsistent in his rules about who is allowed to speak and what subjects are appropriate.  When we have questions about the zoning articles, we were told our concerns belong in a Development Agreement and to send our concerns via email to Mr. Sadwick who will forward them to Mr. Brabowski.  There will be no meetings to discuss the Development Agreement yet Mr. O’Neill has direct access to Mr. Brabowski.   Concerned that land locking the Perkins property with the trumpet interchange seems more important than the neighborhood’s quality of life.  You’d rather have 14 million visitors driving 200 feet from her home on the Mills ramp than land lock Perkins.  They sold the land her home sits on; if they want to develop the land commercially, they should not have built a residential neighborhood abutting the highway.  They created this problem and why are is the board trying to fix it for them at her expense.  Board claims to be undecided on the Mills proposal but are giving the impression you support a rezone.  It has been said many times that a residential development would use South Street but a commercial one could not; the land is not land locked.  What do the families of Jennies Way need to do in order to gain the support you have given so many other neighborhoods in the past.

 

Mr. Sears asked what do you think we could do?

Mrs. Derosa:  Do something about how the Mills Study Committee meetings have been run.  You created this subcommittee and should be doing something to make it an open and fair process.  This Development Agreement supposedly protecting us if this goes through -- we have no access to it during the process.  We should have a meeting over it to discuss our concerns.

Mr. Coldwell:  Do you feel your concerns have not been raised at the subcommittee meetings?

Mrs. Derosa:  We raise our concerns but don’t feel we’re given the opportunity to explore our questions and concerns, i.e. Mr. Kelley asked questions about the traffic report and was limited to 5 minutes.  Mr. O’Neill was given 10 minutes or more about merits of an ice rink, an unrelated topic.  All of our questions and concerns should be heard and answered.

Mr. Coldwell:   Each Chairperson runs the meeting a different way.  Mr. Shaw has been the Chairman of the finance committee for a number of years and has run other meetings in the town; done a fairly good job.  I watch the meetings but should not micromanage these committees. 

Ms. Derosa:  Mr. Shaw is also making comments to the newspaper that he thinks everybody is for the Mall except for a few who show up to these meetings so I think he’s biased.

Mr. Coldwell:  We’ve discussed that by phone and I have concerns with your letter saying that I have not been open to the people.  I have long conversations with you and others; you have a neighborhood subcommittee formed to discuss this openly and above board.  I have met with the group you mentioned earlier but it has not been a year-long study of that situation.  There have been some issues going on down there in that area for some time and I thought should be addressed.  Mr. Sears was there also at that meeting on Saturday.

Mrs. Derosa:  I’m not saying you should not have done that -- just give us the same consideration.

Mr. Coldwell:  Your subcommittee, in existence for almost a whole year, is due consideration.

Mrs. Derosa:  We don’t know much more than when we started.  We have peer reviewers being fired because they’re biased; a Chairman who is biased in my opinion. 

Mr. Coldwell respectfully disagreed that their Chairman is biased.  If I’m watching a meeting and a citizen calls, I give them the same consideration given you.  The phone takes me away from the TV;  my job is to try and answer all the problems of all the people who call.  I try to treat everyone equally and feel I’ve done that.  A subcommittee convened for almost a year to study just one major issue is a fair way to do it.  You can disagree.

Mrs. Derosa invited the members to come to her neighborhood and walk through her back yard to see where this ramp will be and still say it won’t have an impact.

Mr. Sears:   Reason for attention to the Perkins family and the Mills folks using their property, if something doesn’t happen with the Mills Mall, then 40B housing plans are all made and ready to go in the area.  The Wing property is up for sale again.  Andover tried to put their 40B on our side of the courts 10 years ago, all reasons to look at something else before we go to the default position of having 40B all around there.

Mrs. Derosa:  That was never told to us.  We were told the issue was not to land lock their property; didn’t say we’re being threatened with 40B so we’ll look at this Mall.  So if my neighbors and I band together and say we’ll sell our property to a 40B developer unless you consider that we’re important, then will we get some consideration?

Mr. Sears:  Nothing wrong with 40B; it’s the fact of the huge amount of houses that possibly could go on those combined properties and would severely overburden the infrastructure of the town.  There’s a concern town wide that not happen.

Mrs. Derosa:  If the mall goes in, then the surrounding property could still go 40B.  We’re not eliminating the possibility of a large housing development by putting a mall in.

Mr. Sears:  The area will get developed at some point and what will it be developed a, becomes a question to this board because of all the permits people will come to ask for.  Concern that may be the area for all our 40B choices for the future; may not be an adequate approach to that area.  That is why the Mall is being looked at and we’ve been asked to look at it.  The Mills Subcommittee is trying to do what it was asked to do and hopefully we’ll get some report at some point in time.

Mr. Selissen:  People on Jennies Way were extended an invitation by the Chairman to be on the committee.  There was only one person from there on it who has since resigned.

Mrs. Derosa:  That’s how it was supposed to be set up, one person from the neighborhood.

Mr. Selissen:   I thought 3 or 4 from the area.

Mrs. Derosa:  No, only one with others from other areas.

Mr. Coldwell:  I had suggested that but one of your group suggested the different parts of town.

This has been an open process from day one.  We convened a subcommittee; people have come and gone.  If there are things being hidden, tell me what they are.  There’s a report coming and hopefully we can all make a judgment from that.  Or we could have let it go its own course.  The proper hearings by the petitioners – we would have been criticized that it was a set up. 

Mrs. Derosa:  You set up this committee and said they wouldn’t make any recommendations.  Then you let us stand here for 2 hours telling you we did not think it was a good idea to make a decision on the MVPC letter; we thought it was inappropriate to do it at that time, you did it anyway, and look what happened. 

Mr. Coldwell:  We sent the piece about the road for them to study and tell us what they thought was best; maybe we did ask for a recommendation.  The recommendation piece was the final report not to say yea or nay – give us the data and let the 5 members here make their own decision.  That’s how I set it up and understand it.  Getting to the point now where no matter what this Board did would be criticized.  We have to take this criticism and let the process take its course.  It is unfair that it started out as a great idea and people should stand up and say here we had a fair and open opportunity to speak.  You have had ample opportunities to be heard.

Mrs. Derosa:  Here it didn’t do us any good.  We haven’t been able to do it there.

Mr. Coldwell:  My position is that the fifth alternative is the only choice we had in the matter.  The other 4 had already been rejected by this board and no one disagreed until that night when the trumpet ramp came up.  I don’t believe the trumpet is as good as it should be.  Any other proposal would add traffic to South Street which we don’t want.  They were rejected.

Mrs. Derosa:  And why didn’t you then take a look at all the 5 alternatives and rank them – the trumpet is not the one you voted on in 2002 – see what the effects will be on the town and then say which are the better possibilities.  If the trumpet is built, it takes some of Perkins land which is why they’re fighting it so hard.

Mr. Gill:  Responding to the letter and accusations that Ray Shaw is an unfair Chairman.  I have known Mr. Shaw, he’s my friend, sat with him on the Finance committee, always been fair.  They have a proposal before that committee.  I take exception to your letter’s comment.

 

Maria Damien Fishlin, 20 Jennies Way:  When anyone gets to the podium to speak, Rick O’Neill or Mr. Wahr, the timing should be equal to that of regular residents speaking -- no preferred status.  I didn’t apply for one of the open positions because I couldn’t be unbiased; I’m against the mall completely.  Recently, two people in town applied for the 2 openings and were selected and I had asked if these two were totally up to date on the mall proposals so we didn’t have to go backward in time and reeducate them.  Was told they had watched every meeting, been to meetings.  The very next meeting comes, we talk about the 5 ramps, and Mr. Lambert didn’t know what the 5^th proposal was, didn’t understand it at all.  I asked Mr. Shaw why we were going backwards and he said there’s a new audience watching now and I should be patient and allow them to be educated.  The next meeting discussing the ramp again with Mr. Hajec, during the period I asked Mr. Shaw to have Mr. Hajec point out where Jennies Way was on the map which he agreed to do…but did not… even when I asked again.  Example of what’s been happening to us.  We also go to the meetings and attend and other than Mr. Deackoff and Mr. Sears, nobody asks a question.  We come here and nobody asks a question other than Mr. Coldwell and Mr. Sears.  When other residents come forward with a problem, everybody’s outraged – concerned about Barry Drive, Bligh Street, Foster Street.  We do feel like second class citizens and would feel much better if you would come down and visit us.  Come to Kim’s house, she’s 170 feet from the ramp.  I’m probably the least affected of everybody.   Please come by and visit us so you can see what this is about.

 

Susan Duffy, 67 Catamount Road:  I’m a member of the group STOMP which stands for Sensible Taxpayers Opposed to the Mall Plan and we are a group opposed to the mall as proposed.  I agree with the comments from Ms. Derosa and Ms. Fishlin in regards to the committee and us not being allowed to have equal time.  Further, when we do ask a question, the committee doesn’t have a response or questions for clarifications for us at that meeting but at the next meeting, those questions still aren’t answered or no response of follow up.  So we have to ask again repeating ourselves.  Please do visit Jennies Way and see that ramp proposed will be 170 feet to someone’s back door.  I measured from the inside of the table here to the very first big tree at the end of Town Hall steps which  is 170 feet.  If you can relate to where that is to your own house, you can understand the concerns.  I brought a valentine for each of the members showing pictures of about 50 people at Town Common a few weeks ago showing “No Mall” signs on Valentine’s Day.  The mission was to tell you “Don’t Let the Mills Take the Heart from our town character”.  If there’s another alternative that would bring the ramp further from those homes, you should consider it.  The other ramp would not land lock the property completely and would be 650 feet from the homes.  There are quite a few of us -- many who don’t live in that area – do not only look at the short term goal and short term monetary gains but look at the long term picture.

 

Mr. Coldwell stated that nobody on the board ever said the group is a vocal minority.  Everyone in this town has an equal voice as has been reflected this year -- everyone has been allowed to speak.  The impression that your group has been treated unfairly has not been at this table.  Watching the meetings, the issue of 5 minutes versus 10 minutes may have some validity but the meetings I’ve watched and attended, everybody was allowed to speak.  As to hecklers from out of town, the evening we had our meeting here, there were some faces, out of town or not – there were rumblings in the back and they were asked to stop and they did.  I feel we’ve given everyone an opportunity to speak here and I’m disturbed that people feel they were treated unfairly. 

Ms. Duffy:  We have had opportunity to speak here but the unfairness is that if you wouldn’t want this in your back yard, why would you want it by somebody else’s.

 

With only one resident remaining to speak and to keep the scheduled agenda on time, Mr. Coldwell respectfully asked if resident Robert Kelley could wait until after the next agenda item with the Senator and Representatives.   Mr. Kelley agreed and was going to suggest so himself.

 

Michelle Walsh – Chairman, Land Use Committee -- Senator Susan Tucker,

Representative James Miceli, Representative Barry Finegold 

-- Legislation to Protect Certain Parcels of State Land --

 

Mr. Coldwell invited Michelle Walsh to come forward to bring the Board up to date on the legislation to protect some of the parcels of the state land and to cover the reference material provided.   In addition to Senator Susan Tucker, Representative James Miceli, and Representative Barry Finegold, were members of the Land Use Committee, Michelle Walsh, Chairman, and members Greg Peterson, Bob Kelly, and Joanne Foley.

 

Mrs. Walsh presented the latest developments regarding the legislation to protect some parcels of state land at the Tewksbury Hospital.  The packets would recap what has happened and is broken down into sections:  (1)  Original proposal by the Land Use Committee, (2) Alternative Legislation [New Proposal by Department of Public Health] that had been recently presented to them, and (3) Preliminary Comments from the Land Use Committee.  They will be looking for comments from the board and residents tonight.  Joanne Foley will cover the original proposal brought to Town Meeting in October 2002. 

 

Ms. Joanne Foley covered the following:  Warrant Article #6 that was proposed on October 1, 2002;  the Warrant Article #6 Amendment Map – addition of a 19-acre section of the hospital campus;  a Map of all parcels identified for protection at that Town Meeting [approximately 400 acres] for our “Home Rule Petition” which was developed into Senate Bill S1708.  In addition was a copy of a letter sent by then-Selectman Kevin Anderson dated March 21, 2003 written to Governor Mitt Romney stating that “…the Board of Selectmen of Tewksbury supported preserving the state land in the Town of Tewksbury.”   The map posted on the display board gives details as to the parcels and what is included in them.  Michelle used this to express to Senate President Travaglini while he was visiting the State Hospital, a general idea of what parcels were included.  There are also copies of a presentation that Michelle had given to the Board of Selectmen looking for support of Bill S1708.  This is a general overview of the original proposal.  Due to a lack of full support, our Bill remains on the table, however the Department of Public Health [DPH] has put forward a new proposal which will help to protect state land in the town of Tewksbury.  Michelle Walsh will explain the details of this proposal.

 

Michelle Walsh notified the public that maps were posted on either side of the room.  The orange highlighted map is the originally-proposed land parcels and the other map is the one referenced presently which represents the areas that the hospital has proposed possible future expansion and there are some conflicts with some of the parcels we chose for conservation.  At the October 2002 town meeting, residents voted unanimously to send a Home Rule Petition to the Legislature.  A Bill was drafted requesting a conservation restriction on certain parcels of state land at Tewksbury Hospital.  By requesting to protect this land with a conservation restriction, we will be partners with the state in the care and oversight of this land.  The strong language in this bill favoring the town’s perspective has prompted the Department of Public Health to propose an alternative.  The alternative draft legislation is, “…an act designating certain lands in the town of Tewksbury for conservation, agriculture, and public recreation purposes.”  This is an attempt by the DPH to meet us half way.  In reviewing the alternative draft legislation, there are areas where hospital expansion sites lay within the parcels the town wanted to protect under a conservation restriction.  

Referring to the maps in the packets, Mrs. Walsh identified the areas where the conflicts in the parcels lie and thanked Mr. Sadwick for providing the color maps used for this presentation.  It becomes clearer when referring to one of the maps in the report, sites for possible future expansion or development are in the areas shown in purple.  It shows expansion areas on sites 5, 6, 7, 9 and 10 which do not lie within the parcels of state land that the town requested a conservation restriction.  The sites which do lie within the same parcels of state land that the town requested a conservation restriction are sites 1, 2, 3, 4, 8 and 11.  Two areas were of primary concern to the committee -- areas 4 and 8 -- which are located at the top of Livingston Street where the hill is.  The area 4 is located between existing development on that side of the street and does not encroach on the open space toward East Street -- no longer a concern for expansion in this area.  Area 8 is a 5.78 acre site located at the top of the hill on Livingston Street and part of the area which the town currently uses for youth sports which stretches from the parking area at the top of the hill, down to the swale of water separating the parking area beside the Haunted House and the youth football field.  Committee members support the town’s continued use of the site for passive recreation as it has been for decades and the land use committee has since learned that there are no specific plans for this site but the site is very valuable for the youth sports in town.  The members oppose development for any purpose on this site which was one of the comments we forwarded to you regarding this area 8.   The land use committee also recommends that the language to the DPH’s draft legislation include Tewksbury in the drafting of the rules and regulations for this land. Currently the legislation before you doesn’t include the town of Tewksbury’s Conservation Commission which is the way the state usually includes the towns.  We recommend this as well.  If you have areas of concern and questions, I will answer them now.

 

Mr. Sears noted that on Livingston Street which appears to be noted for potential future growth, areas 5, 6, 4, and 8 in line along the street.  Knowing the hospital is trying to maintain itself with the current status, don’t see future construction imminent but what plans have been given to our legislators if any for what DPH thinks it might possibly do for this area.

Senator Tucker responded that no one in the administration, in the DPH, Commissioner, nor hospital folks, have put forth any plans whatsoever.  Their only concern was that as it is an active state facility, their legal eagles in the administration felt it was their duty to look after potential expansion at some point.  Absolutely nothing is planned now.  The front of the land is protected.

Mr. Sears:  If no current plans for it, I think it’s a good idea to put the areas aside for future use as it makes me think they might sell these to the highest bidder if they can get 2/3 vote and Livingston Street might be in danger of losing its character.

Senator Tucker responded that the whole purpose of this is to protect the open spaces around the hospital and she requested comments from the Board.  This is still a work in process, an open process that you and the citizens of Tewksbury are going to look at before anything is finalized.  She thanked the Board who started all of this with the Land Use Committee and Steve and the Town Manager have been excellent in this process.   This has been a decade-long struggle.  Feels we are closer than ever before to reaching the goal, although a little different than the vehicle before, but to protect even more acreage than we had in the Home Rule Petition.  The final acreage is approximately 600 acres conserved for open space, conservation.  A phenomenal win for Tewksbury if it can get done.  Key points of open process and bipartisan teamwork to get to this point.  This has been one of her top priorities in the Senate for the last few years and we are closer than ever to reaching that goal.  Purpose tonight is to get your comments first and we will respond in any detailed way to that particular concern.   The negotiations continue but cooperatively with the Department of Public Health.  On the Livingston Street question of why do you want this, what plans do you have?  One never knows in 2 decades if we’re going to add something to the hospital.  The state hospital as an active facility, the state must protect its interest.  I have written that down and perhaps the Representatives want to respond.  There has been no talk at all or movement about selling the land but the quicker we get this into Article 97, the sooner we’ll know that the land cannot be sold.  The minute this Bill is signed, the 600 acres is safe under Article 97.

 

Representative Miceli added that we have co-sponsored the Bill.  The Bill goes to the Senate and then to the House for debate.  He spoke on behalf of the Bill at Town Meeting so we know this is not the same Bill that came from Town Meeting, not the Bill we spoke about.  Is it a good Bill?  Yes and I’ve asked the DPH people the same questions relative to the proposal.  There’s got to be a little bit of trust in this.   It’s not that I don’t trust the folks making the presentation on behalf of the Commonwealth.  Since I’ve been there, I’ve seen folks in their position turn over time and again, the new people coming down the road 4 years from now…will they have the same commitment?  Is this the best we’re going to do?   I’ll go with the consensus – whatever the town decides I will make sure becomes engrossed and finally enacted in the House.  I still have those lingering questions, what is going to happen with that property, what are the plans for it – we have nothing at the present time...and trying to convince us that nothing would be negative.  The problem is that in the original from Town Meeting, we had the final say and they have to come back to the town.  This time, we have oversight in all of this and they haven’t finished the final draft yet.  Tried getting that this afternoon…will not be finished for at least a couple more days.  The Senator tried to obtain it also.  They said they’ll “….give us a seat at the table.”  I can interpret that a lot of ways but will reserve interpretation until we receive it from the Department of Public Health.  If the town feels that this is what they want to support, by all means I’ll put it on a fast track when it gets to the House …and I’ve got a reputation for that…and put it out as soon as possible and put it out in the form that you want.  I’ve sat in on the negotiations and the discussion and my final reason for being here is to solicit your input.  The Bill that we put through at the Town Meeting is not the same Bill; this takes a lot of land out of circulation but there are still a lot of questions relative to Livingston Street.  I’ll reserve judgment until I see the final draft which is coming from them, not from us.

 

Representative Finegold commended Michelle Walsh and the Committee for what they’ve done.  Quick observations:  to see what has happened, I think we’re wearing them down at Department of Public Health so even though they put up this front, there’s such a huge offense at them, slowly they’re giving in.  Also the Governor is backing down, the administration taking a step back from that which is a good sign.  Concern that when land goes into park land and conservation, it is almost impossible to get it out which is a good thing.   But once it’s in, it’s almost impossible to get it out.  I think it will happen, will be a great thing when it does and very few towns are taking these proactive steps to really preserve the community which is a great thing so I think it’s a matter of time.  There’s great teamwork here as the Senator and Representative said and in the end, the town will prevail in a positive way.

 

Mr. Gill:  To be acted on is 600 acres; what did we request, how many acres?
Mrs. Walsh responded that the original proposal was approximately 400 acres and their alternative is 600 acres.  Mr. Robert Kelley added that there is additional acreage on the property especially up on East and Livingston on the left side going toward East Street – that farmland is now part of this and wasn’t originally.  Both sides of Livingston at the East Street intersection are now part of this conservation restriction which is great, beautiful farmland which will be maintained as farm. 

On numbers 5 and 6, the intent there is probably for more assisted living units in that area versus anything to do with the main hospital campus infrastructure.  The old hospital homes should be torn down unless they are historical and need to be maintained.  The opportunity for the town and the state is to try to do something like affordable housing or a senior housing complex to develop that area just below the trees and try to make that work for some families or residents of the town.  Will take private-public partnerships to get that done.

 

Mr. Selissen:  Parcel 2, is that where the old farmland for residents keep gardens?

Mrs. Walsh:  Yes, the community gardens.

Mr. Selissen:  Parcel 8 concern – pretty close to the existing ball fields.
Mrs. Walsh:  Parcel 8 is approximately a 6 acre parcel from the top of the hill where the parking is for the soccer, little league, youth football – down the hill to past the concession stand for the youth football area – mostly frontage involved.

Mr. Selissen:  I was on the original Land Use Committee, 1994, and it took a long time to get this far.  Got the ball to the 2-yard line and seems the hospital took the ball and went home.  Asked the Legislators, what it would it take to make this happen.

Representative Miceli:  Once we receive all your input and receive back the proposal from the Department of Public Health which should be in a few days, and look at the finished product, the committee would probably discharge the Bill with a favorable report over to the Senate and from the Senate, it comes to the House -- 2 months --  may be optimistic.

Senator Tucker:  What is important is that the administration is proposing this so they will not be fighting us on it as they were on the Home Rule Petition, with too many questions about potential costs to the town, the precedent it would set to turn over an active state facility to a community – it had never been done – that petition would have been a fight.  Now we have something we are all on board with and as Representative Miceli said, it is waiting for the finished product.  Clearly, our hope is that before the Legislature recesses at the end of July, that this will be a done deal and signed by the Governor.  Things can happen but it is our hope that it is a done deal and signed into law before recess in July.

Representative  Miceli:  We’re waiting for the finished product and don’t expect dramatic changes; if there are, we will  report back to you.

Mr. Selissen:  I agree with Selectman Sears that whatever we need to do to make this happen -- if we’ve asked for 400 acres and they’re willing to give up 600 acres -- no plan will be absolutely perfect.  Encouraged the committee to press ahead.

 

Mr. Sears:  The original proposal done at Town Meeting, the State would still own it but there would be conservation restrictions on it unless both the State and the Conservation Commission decide to change something from the natural way it was left and that idea got scrapped.  How is this an improvement when the State still owns it?  How does it help the town of Tewksbury?  “intrastate transfer” is a good deal for the town -- how do we know that?

Mrs. Walsh:  To answer your question, the Conservation Restriction was the strongest way to protect this land which is why we proceeded that way, -- a partnership between the state land and the town and would take a 2/3 vote at Town Meeting and a 2/3 vote of the Legislature to overturn – both would have to happen.  With Article 97, it still is protected and a plus for the town but a 2/3 vote of the Legislature could overturn this.  There is some legislation to strengthen the existing Article 97 so that any lands that a 2/3 vote of the Legislature overturns, would have to be replicated within the town.  At the very least, we would still have our open space if that happened.

Representative  Miceli:  You’re hitting the nail on the head.  That’s the big difference.  We’ll see what’s in the proposed Legislation and what “…a seat at the table” means.  It’s a matter of policy now, building in that replication.  There are proposals making it legislatively intact and that hasn’t happened yet.  It’s a good Bill but that’s the big difference.  They would have to come back to the community and it would have to give its blessing, then it would go to the Legislature.

 

Mr. Sears:  The way the bill is now, it would have to be a 2/3 vote of both the House and the Senate in order for something different to happen than the way you would leave it.  But 2/3 vote of the House and Senate can sell anything.

Representative Finegold:  Yes.  When it comes to this type of land, it is incredibly difficult to get land considered conservation, park land, or agricultural out of that status. 

Representative  Miceli  and Senator Tucker:  It can legally be done but it is the strongest state protection for open space that we have.  Can’t imagine a sitting Representative or Senator that would allow that to happen in the town of Tewksbury unless it was something the town wanted also.  The end game is the same.  Very strong protection for that land in the town.

Mr. Sears:  Is there any way that the Executive branch can short circuit that?
Senator Tucker:  No, they can’t, never have, and is constitutionally prohibited which gives it a sense of urgency.

 

Mrs. Walsh’s concluding statements:  The current Land Use Committee has been assembled since July of 2001 and it has taken effort to get to this point.  The town’s bill contains strong language from the town’s perspective but sets precedent of town control over an active state facility and there is opposition and legal concerns on every level.  The DPH draft legislation is not perfect; instead of a conservation restriction, the land would be protected under Article 97 of the State Constitution and there are conflicts with the town’s legislation where possible hospital expansion sites are located on the parcels of the town’s legislation that the town sought to protect.  The state owns the land and may use their own land to further the hospital’s mission and offer the appropriate facilities to their patients.  The language needs to be added, “to include the Town of Tewksbury” in the drafting of the rules and regulations.  The DPH draft legislation does offer protection of approximately 600 acres of state land, 200 acres more than the town’s legislation.  The DPH has met us half way offering an alternative to the town’s legislation proving to have too much of an opposition to move forward.  Protecting this land has been an open process and continues to be.  The committee had originally hoped to bring this issue back to Town Meeting but we’ve been advised that May is too late and it would severely jeopardize this legislation.  Everyone has a voice in this legislation and has been stated in public announcements, the government channel, that local comments are welcome and should be directed to the Director of Community Development or our state officials, Representative Miceli, Representative Finegold, and Senator Tucker.  We ask this happen by the end of this week.  The sooner this Bill is passed, the sooner the land is protected.  There is a sense of urgency and we have momentum now.  This legislation satisfies our same goal at the October 2002 Town Meeting to protect this open space, this jewel of Tewksbury.  We welcome comments and questions and hope the Board of Selectmen tonight will vote to support this Legislation with the Land Use Committee’s comments and concerns that are provided in a separate memo provided.

 

Chairman Coldwell stated that he is personally disappointed that the Land Use Committee’s first recommendation didn’t go forward as proposed.  It was strong, a lot of work, and is appreciated, however, negotiation is the art of getting things done.  They have my full support on this one. 

 

Motion by Mr. Gill, seconded by Mr. Sears, to send a letter to the attention of the appropriate person at the Department of Public Health and copy the Representatives and Senator, incorporating the issues and concerns brought forth in a letter from the Chairperson of the Land Use Committee dated January 29 and date stamped received January 30, 2004, stating that the Board of Selectmen of the Town of Tewksbury support this piece of legislation and would like to see it go forward and passed as soon as possible.  Unanimous vote.  Absent Mr. Ryan.

 

Mr. Cressman added that the concept is ideal but Parcel 8 has been utilized by the town for 25 years for youth sports and we don’t want to see that as future development.  The “triangle piece” next to it is also part of State Field and has been utilized by youth sports.  Will that still be utilized by youth sports when the language in the legislation says, “passive recreation”.  That’s the horn of the dilemma, how to deal with that issue.

Representative Mr. Miceli suggested if you want to move the Bill quickly and want to leave everything intact in the proposed legislation that we’ll receive in a couple of days, you can always revisit that issue if it became a question.  The only way to put it through at this time would be to put it through intact and come back and make an argument for addressing that problem legislatively.  We would try now to address it and hope that maybe they would change their thinking but the question of “passive recreation”, does it apply to youth sports?  I’ve got my own answer to that but will save it for someone in town.  If there was a problem, we could always come back to this legislation and only address that specific area if we want to move forward with this proposal now.

Mr. Cressman wanted to bring it up now so everyone is aware of that issue so that we’re not faced with the dilemma of several hundred representatives of youth football, youth baseball, youth soccer, men’s soccer, etc. visiting us within the next year.

 

Mr. Sears:  The flip side of that question, who would kick them off?  Who’s going to police this area -- Tewksbury Police, Public Health police?  Volunteers, boy scouts, girl scouts…who will police this area?  Cost to the town or not a cost to the town?  Keeping the area cleaned up, etc.

Senator Tucker:  Clearly the state owns it and not sure anything would change from the current situation along those lines.  The reason we keep talking about Tewksbury’s voice in this and why we are of one mind at the table is that with Article 97, there are individual rules and regulations that can accompany an Article 97 – not written into the bill – but then developed by DPH, and we will insist that be in consultation with the Town of Tewksbury so that any rules and regulations surrounding this 600 acres have input from you the Board in terms of some of the details.  Under the Home Rule Petition, a whole conservation restriction was going to have to be written out on every single parcel which would have taken probably longer than getting the Bill through.  This puts an immediate preservation on the land but there are certain rules and regulations that will be determined in the future. 

Mr. Sears:  Very practical -- is the DPH going around in vehicles posting signs saying, “No Biking” or will they do as they do now or say, “ don’t play football here…” or what?  Who will be supervising this show?

Senator Tucker:  A valid question and we will look into it.

 

Mr. Gill:  Any other concerns from the Town Manager?  Mr. Cressman:  No.

Representative  Miceli:  To show you how well they police it, I put through a lot of Bills to turn over land for recreation for the community, one was a parcel that had a cement block building on it before the Legislation was signed by the Governor…so the DPH is not doing a good job of policing it.

 

Mrs. Walsh reminded the public that the information is provided on Channel 10 but it is the Director of Community Development’s office that is accepting all comments regarding this Legislation which has been posted at the Town Hall as well at the reference area of the library for public view.  Residents can also forward comments to our state Representatives Miceli and Finegold and Senator Tucker’s office.

 

Town Manager

 

Chemist Position

 

Motion by Mr. Gill, seconded by Mr. Selissen, to authorize the Town Manager to post the vacant position of Chemist due to a resignation.  Unanimous vote.  Absent Mr. Ryan.

 

Conservation/Open Space Land – Map 111 Lot 34

Mr. Cressman informed the members that through research done over the Tennessee Gas easement proposal, it was discovered this parcel was never accepted as Conservation/Open Space Land.  The Conservation Commission has voted to accept this parcel as Conservation/Open Space land and the Board is requested to also adopt a Motion of approval.  Mr. Selissen asked if there are any other parcels that are like this or if there is any way we can research to ensure there are no more?  Mr. Cressman stated it was an issue that came up with the Master Plan that the town needs to do a better job of identifying which parcels should be Open Space/Conservation land and is something to be undertaken.  There may be one or more that could fall into this category that he has himself identified but there is no list currently.

 

Motion by Mr. Gill, seconded by Mr. Selissen, to accept the parcel of land, Lot 34 on Assessor’s Map 111, as Conservation/Open Space land.  Unanimous vote.  Absent Mr. Ryan.

 

Dispatcher Vacancy

 

Motion by Mr. Gill, seconded by Mr. Selissen, to authorize the Town Manager to post a vacant dispatcher position.  Unanimous vote.  Absent Mr. Ryan.

 

Executive Session

Perkins Development Trust – Involving Litigation

Negotiations

 

Approval of Minutes  -- None

 

Reports

a.       Board Members:

 

Mr. Sears:  Will reserve his comments for the televised issues later in the meeting.

 

Mr. Gill:  (a)  Hope Mr. Ryan is feeling better and will join us soon.  (b)  Letters from Professor Phelan:  who is he and should we pay attention as the last 4-page document seemed to be rambling.  Mr. Cressman responded that the communication appears to be representing some residents in the community and is probably concerning Tennessee Gas and the Conservation Commission.  Of the many communications he receives, this is one he will not make a judgment on.  (c)  Received a communication on Green Mango and that Mr. Colantuoni observed the place locked and appears there is little change since December 22; likewise, Sam’s Beer and Wine’s premises are locked and no activity, appears closed.  What is the next step?  Mr. Coldwell felt we already sent a letter regarding Green Mango and their attorney responded and we followed up with the inspections over the last month with no further activity.  Mr. Coldwell asked to send another communication to the attorney who represented Green Mango and a letter to the owner of the property of Sam’s Beer and Wine and ask their intentions and a timeline if anything is going on.  Mr. Cressman will also discuss the matters with Town Counsel Zaroulis.

 

Mr. Selissen:  (a)  Contract #22 for Phase 7 of the sewer project bids due in at 2:00PM on Thursday.  We will be having a Sewer Advisory committee meeting on Thursday night at 7:00PM.

 

Mr. Coldwell wished Mr. Ryan well and understands he is coming along and he is missed on the Board and look forward to having him back shortly. 

 

Residents (continued):

Robert Kelley, 75 Mill Street:  As a follow up on Mrs. Derosa’s comments and the Board’s empathy towards the passion and concerns she and other residents have for the residents of Jennie’s Way and what’s in front of them.  The concern is about double standards in this town, i.e. reflecting upon the situation with the proposal and it was only a concept for affordable housing-type plans for town-owned land in the Bligh Street/Colonial Drive areas.  The residents of those neighborhoods came out in full force with children in carriages and so forth and packed the town hall and were vocal against a concept put in front of the Board of Selectmen and you voted that night to support those residents on Bligh Street and Colonial Drive because you thought that was important for you to do.  These residents at Jennies Way feel the same way -- they feel they’ve been disenfranchised or disadvantaged by a situation that is being rushed by an out-of-town company that all of a sudden shows up on the block and says that we need to look at rezoning that land for a large mall and retail complex.  At the same time this is going on, our Master Plan committee and subcommittees are looking at a number of alternatives for land use in the town of Tewksbury and they just finished their recommendations and came up with four different alternatives for possible uses of rezoning the land in South Tewksbury, the Perkins land in particular. 

Back in 1992, an earlier Master Plan Committee voted unanimously to leave that land residential and it was residential for all these years.  The Perkins’ took advantage of that and built Jennies Way, had an opportunity to build the rest of that land up but didn’t do it.  Now they held on to it for the purposes of who knows, financially possible for them to do or impossible or waiting for a ramp to come in at that point in time.  Ramp proposals have probably been proposed in that area for many years according to the history I’ve heard and read from Senator Tucker and now they’re trying to relieve the traffic in Andover because of the excess development on their side of the highway.  Jennies Way becomes the victim in all of this.  If Jennies Way wasn’t developed and Fieldstone Circle as well, maybe there wouldn’t be as loud a vocal opposition as you see today about this issue. 

Mrs. Derosa is trying to point out that less than 200 yards from the back door of several homes in that beautiful neighborhood, 38,000 cars a day will be passing behind their homes and is a tragedy when you think of the impact on the quality of life for their children and whether or not they want to stay in this town forever.  Several people who have recently bought houses were told by realtors and by some town employees that the land facing across the street from them was conservation land or open space and may be built into a golf course.  No one ever told them there was a potential for a highway access ramp coming in there.  Maybe the Jennies Way people who bought their property should have questioned if something like that could ever happen.  They put their faith in our government that the government would do the right thing for them when their day came and that’s all they’re really asking – that they can receive your support when a decision has to be made on this whole issue.  We’re far from making the decision here, still in a study mode, and I disagree to some extent.  Mr. Shaw has done a good job in trying to balance this committee but the committee has been more preferential to the proponents versus the opponents. 

We’re both vocal on this whole issue whether a mall should go in there or not.  We’ve done a lot of research on our own.  Been at this for a long time when Gator showed up and now when Mills showed up, to try to find what really is the right thing to do down there.  We’re faced with a lot of impacts from the cleanup of Rocco’s or the superfund site as well as the impact on South Street and Jennies Way.  A lot of sensitive issues down there.  We’re trying to find a reasonable middle ground.  Had negotiation of the hospital land for years and we’re finally negotiating with the state and trying to find a middle ground which actually works out better for us given the amount of acreage.  We’re trying the find a middle ground for that property too, something that won’t impact those residents of Jennies Way.  What’ll provide the right kind of tax revenue to the town yet won’t impact the quality of life that something like this will have on us. 

The trumpet ramp that I saw on the I-93 corridor study has a little loop that comes off the end of it but doesn’t come out to South Street.  It goes out towards the Wilmington side.  There’s no access there right now, don’t know how you develop that access, but this town as well as Andover and Wilmington had a chance to weigh in on those 4 access ramp proposals as well as the 5^th and I didn’t see anybody on this Board at the December 16 meeting at Methuen.  Mr. Sadwick was there but not Mr. Cressman and there were no comments made for those 4 ramps that I could see.  There were opportunities to say why don’t we design the ramp a little differently and as far as the land-locked parcels are concerned, the biggest land locked parcel around 93 is the Wing property in Andover.  They’re land-locked by not only Rte. 93 but the Shawsheen River and the power lines.  Maybe a bad investment in buying that property at the time, but they are land locked.  If you put an access ramp on I-93, the Wing property is the best alternative of any because it ties right across the street from Gillette and Wyeth who are the main problems of the traffic issues in Andover.  These people are really concerned about their futures in this town with their children and the impacts with the 40B or commercial development, North Street or South Tewkbury.  They all should be treated fairly.

 

Mr. Cressman stated that since Mr. Kelley mentioned twice he was not there on December 16 at the hearing, there was a Selectmen’s meeting here that night.  Mr. Sadwick was there as his representative and he was there to listen and represent.  As we’ve seen what has developed over the last couple of months, I have not weighed in on a comment because the Board here has not weighed in on a public comment regarding the access ramps that night. 

Mr. Kelley stated that the study was going on for 3 or 4 years and he was told by Mr. Carmonic of the study committee of the Merrimac Valley Planning Commission that the town of Tewksbury as well as the town of Wilmington were invited to participate in that study and offer their insight and their ideas as to what these proposed access ramps or the widening of I-93 or the Dascomb Road interchange would be.  I don’t know how many meetings you attended but I looked at the minutes of the meetings going back to 2001 which only had 4 or 5 meetings and don’t know whether you were there or not.  If we had the opportunity to weigh in on access ramp proposals, then we missed the boat.  It was important for us to participate in.

Mr. Cressman responded that in December 2002, the Board made the decision on weighing in on the alternatives and he was a participant in several meetings prior to the board weighing in on the alternative and making comments at that point in time with the Merrimack Valley Economic Development Council who sponsored several meetings with officials from the various towns as well as some of the businesses in that area, Mr. Halperin’s private agency, not a public agency.   I attended other meetings where there were representatives from that group in attendance as well as public officials where we were able to listen to the various proposals. 

 

Mr. Kelley added that he provided commentary to the Merrimac Valley Planning Commission on that access ramp issue and Representative Miceli did also and opposes it.  Not sure what Representative Finegold and Senator Tucker did.  In Mr. Shaw’s study committee, he rushed to make a decision to recommend the fifth alternative without looking at it.  They accepted Mr. Hajec’s findings which was using a ranking system he developed, not something the Institute of Highway Engineers developed.  What was missing from his ranking system was any impact on the quality of life in the neighborhoods.  Under federal highway administration rules and other MEPA rules, it’s always the environmental impact to the abutters of the neighborhoods.  The papers had information on the I-93 access ramps and Methuen rotary -- there are homes there that will be taken and the residents are really mad about their homes being taken.  In the Eagle Tribune the other day was an article about the residents in Andover not having a sound barrier wall put up next to their homes because if I-93 gets widened to 4 lanes, it will come closer to their property.  Think about 4 lanes on the side of Tewksbury when it comes closer to these residents in Jennies Way.  They don’t have a sound barrier, not asking for one.  We’re all impacted by this and have had chances to weigh in.  The study didn’t allow enough public input as one meeting wasn’t enough to satisfy federal highway regulations and we as a town should have spent more time on trying to design a better alterative ramp system for that property to get it further away from the Jennies Way neighborhood.

I know you’ll talk later in Executive Session on the Perkins Development Trust regarding the ownership issues and what happened both in 2001 and 1998 when the Jennies Way development went in and what should have happened and didn’t happen.  Mr. Zarouilis is supposed to come back with a letter commenting on some of the issues surrounding the Jennies Way court order and what should have been done.  I took a look at the Selectmen’s minutes of October 16, 2001 and can share packages with you, have copies for each of you.  Back in 2001, I was told that if I had paid attention to the Selectmen’s meetings back then, I would have understood what happened with the giving up of the Perkins property which was formerly town-owned land.  On the October 16, 2001 agenda, Executive Session is Lot 1, Map 114.  I asked Sandy Barbeau for a copy of the Executive Session minutes.  Sandy had to check with Mr. Zaroulis and Mr. Coldwell to see if they could release those minutes.  This is two years or more when this meeting happened.  The minutes attached of the regular board meeting back then indicated you went into executive session, a motion, to discuss Emerald Court.  The agenda said Lot 1, Map 114 which we all know is the Perkins property.  Emerald Court was an item on executive session in August of 2001.  There was a mistake in the minutes themselves as to what was supposed to be discussed at the executive session.  When I got the executive session minutes, Mr. Zaroulis got them to Sandy on November 22 of 2003, the minutes contained no discussion of Lot 1, Map 114  -- wasn’t discussed at all.  You’ll see that Mr. Zaroulis dedacted [marked out], according to state law, discussions that were held at that session on AFSCME and labor negotiation issues with the Firefighters but there was no discussion in those minutes of any Perkins development on that parcel of land.  I found it interesting why wouldn’t there be some record of the meetings or a discussion of that when it was said on the agenda it was going to be discussed.

Thru the Jennies Way request for public information through Mr. Cressman, is a memo dated April 15, 2003 to Mr. Zaroulis and Mr. Cressman regarding Perkins Development Trust versus the Town of Tewksbury.  This is a lawsuit that the Perkins Development Trust has against the town right now which is in the Superior Court in Lowell which nothing’s been done since March of 2003.  I talked to the courthouse’s civil records section, and she said nothing’s been filed, the Motions haven’t been amended and actually expired for the dates of the deadlines that were supposed to be met for the docket of this case.  The timelines have expired and they have to go back and ask the court to reinstate the timelines here.  This memo that Mr. Cressman sent to Mr. Zaroulis indicates that in October of 2001, “… the Board of Selectmen agreed to the recommendations of Mr. Carey and Attorney Coppola in my recommendations, to settle the town’s interest in Lot 1 for a payment of $62,000 over a 120 days.” 

So in 2001 there was a decision made, not sure if it was made at the Executive Session Minutes but they weren’t recorded and I find that hard to believe that we don’t have any record of Minutes of any discussion of that particular parcel at that point in time.  Also, Mr. Zaroulis’ comments show he was somewhat concerned and commented to Mrs. Barbeau on the consistency of Executive Session Minutes.  I’m not sure what all this means but I will tell you right now that it looks like some decisions were made in Executive Session and the Minutes were never recorded and that leads me to say that maybe the Executive Sessions for other meetings and other Minutes aren’t properly recorded as well according to what state law requires to be done on a roll-call vote.  You go into Executive Session not to talk about the same issue of the Perkins Development Trust.  I don’t see where there’s any reason under state law and open meeting law that would exempt this from being a public session tonight and not Executive Session.  Mr. Zaroulis can comment if he wants.

 

Mr. Zaroulis responded that it is not for Town Counsel to decide whether a Board goes into Executive Session or not but as you stated earlier, there is pending a case of Perkins against the Town of Tewksbury even though the town has not been served any papers in regard to that.  Notwithstanding that fact, clearly the filing of such a complaint is a threat of litigation and some of the issues in that complaint concern what happened in the past with the Perkins property and the town, so if in fact a discussion on this matter may be of assistance to the plaintiffs, Perkins, against the Town, the Board I believe because there is a threat of litigation, may go into Executive Session for that purpose.  If they choose not to, they don’t have to but it’s for the protection of the town in regards to this litigation that one goes into Executive Session.  Clearly, there is a threat because a complaint has been filed, can’t be idle, can’t be merely a spoken word of a threat or a letter -- an actual complaint seeking money damages was filed with the courts.

Mr. Kelley:  That filing as I understand it was done in December of 2002 which is a year or more after the town decided to vacate title to their property in December of 2001.  The Selectmen voted on that so here we are a year later and the Perkins Development Trust is suing us for not allowing them use of the property from 1957 to 1976, I believe is the timeline here.

 

Mr. Zaroulis:  I have a very low regard on that suit, not a meritorious suit at all, think it’s frivolous.

Mr. Kelley:  Do you think the suit is active to the extent that the docket has not been made.

Mr. Zaroulis:  Where the town has not been served, the town need not and should not do anything.  My understanding and have been trying to keep track of it also, that unilaterally the court should have dismissed that case by now without any further action because they failed to serve the town within the appropriate period of time.  The court is supposed to do that unilaterally.  When they see that no service has been made, it should be dismissed.

Mr. Kelley:  I just want to be sure we are getting the full facts of why this would require an Executive Session.  Thank you for your response on that and I look forward to seeing the Executive Session Minutes when they can be released and I would suspect that they could be released following dismissal of the case?

Mr. Zaroulis:  Not necessarily.  I take a position that some may not agree upon but when I look at collective bargaining Minutes or Minutes concerning litigation, if within the context of those Minutes, there is a strategy which is discussed that would be used in the future, then in my view it’s inappropriate to release that information so that potential litigates will know how we go about addressing resolution of cases.  Anyone with experience in discussions of settlements for example, there is that kind of attitude or position or flexibility, what kind of authority is given that if the world knew about it, they would take advantage of the town in regards to litigation.  That kind of strategy should always remain confidential for the protection of the citizens of the town.

 

Mr. Kelley:  It’s my sincere hope in all this land use and ownership issue is that somehow the town was not unduly harmed in this and somehow we can find a way either by mistakes or something that the town gave up title to that land wrongly, fundamentally by state law, and we could get back into an ownership position of that 31 acres.  That was my real reason for this because I think that we made a huge mistake in not going back to the residents of this town back in 2001 when we vacated title to that property and asked for their opinion as I feel we didn’t follow state law because we abandoned title to that property without coming back to the townspeople for their vote.

Mr. Zaroulis:  Not to correct you or get involved in any argument but just so there’s clarity.  The Town never abandoned title or gave up title.  The town only gave up at that time, whatever it had.  In a sense that to vacate, was to vacate the Foreclosure proceeding that had Foreclosure Right of Redemption.  If the town didn’t have good title, it didn’t give any title.  The question of title to the town was never determined by that litigation.  It had nothing to do with the title of the town whatsoever.

Mr. Kelley:  But in 1985 the land court determined by a tax title Foreclosure the town had title to the land.

Mr. Zaroulis:  That’s not true.  It foreclosed a Right of Redemption because if what the town took for tax title was no good and the land court foreclosed a Right of Redemption, the town had nothing at that time.  It doesn’t address the issue of title.  The issue of title is still open as we speak right now.  Whoever had legal title at any time in the past 30 or 40 or 50 years, has the right today whether it’s the town or Nova or Perkins or anyone to go into land court and establish that title.  Nothing was given up in regard to title.

Mr. Kelley:  But back in 1985 when the town did take title by McGee not redeeming that property, could the town after 1985 had sold or done something with that property?

Mr. Zaroulis:  It did not take title with that.  The town acquired a lien on the property for non-payment of taxes but clear title did not vest in the town at that time.  The purpose of filing a petition to foreclose is the Foreclose Right of Redemption and if you took something at that time that you had no right to take, it’s all meaningless.  The point is if anyone had good title back in 1985 or 1980 or 1975, they still today as we speak, have the right to establish that title.

Mr. Kelley:  Then why wouldn’t that be the same case with other parcels of land that Mr. Cressman might put up for sale that the town has taken on tax title Foreclosure?

Mr. Zaroulis:  The town sometimes makes a mistake when it takes land because of incorrect record keeping but at some particular point with the Right of Redemption, people’s rights are foreclosed at that time.  What is of interest here is that at that time, Perkins was not listed, was not notified of that Right of Redemption Foreclosure proceeding.  It’s a little complicated and I was not involved in that situation so I’m not all that familiar with it except what I’ve read as what you’ve read.  It’s not a simple matter that the town gave up title, that’s not the case at all.

 

With no other residents wishing to be heard, Chairman Coldwell continued the regular agenda.

 

b.      Town Counsel:  Nothing further.

 

c.       Secretary:  (a)  Mr. Ryan we miss you, please come back soon.  (b) Residents, please recycle. (c) Post your house numbers, and (d) Vote at the primary on March 2.   Mr. Coldwell added that the polls will be open from 7AM to 8PM are posted on the Town Bulletin Board as you drive by and are on the message channel.  Also, our next meeting is on March 9 instead of the 2^nd because we cannot meet on a national primary day.

 

Unfinished Business

Maverick’s Pool Table License – To be Discussed

Representatives from Maverick’s were Attorney Raymond Paczkowski representing Richard Proctor who is Trustee of the March and Main Street Realty Trust and also represents Rene Proctor who is the license holder of the premises known as Maverick’s Restaurant which is held by an entity, with Rene Proctor President, Treasurer, Clerk and sole stockholder.  Mr. Paczkowski  stated that this is mentioned to illustrate that there are two different entities relating to the real estate in question.  There was a misunderstanding between his clients and the town of Tewksbury through their representatives relating to the non-issuance of the license for the use of pool tables on the premises.  Apparently there was some concern as to whether or not the taxes were paid on the premises and could be used as a means to preclude the delaying of the issuance of the license.  He believes there was a misunderstanding, however, the issue has become moot because all of the taxes have been paid prior to the end of the year 2003.  When a meeting was held recently and the issue came up, the Board may not have been fully apprised of the situation and had they been fully apprised, they hopefully would have issued the permit at that time.

 

Mr. Coldwell stated that they were apprised but the issue came up that there was an agreement made that for a period of a month’s time, the pool tables would not be used.  There was no vote taken between Mr. Proctor and ourselves.  As you know and it came out tonight, there was a meeting with the neighbors down there on Saturday and we covered a lot of ground.  While on the premises myself, the pool tables were covered and labeled not for use and Mr. Proctor was in fact compliant.  We discussed the fact that he had paid the taxes which we understood and that his agreement was a solid one but there was a loss of income occurring.  With that and per your request, I put this back on the agenda for the Board’s consideration.  We didn’t take a vote last time not to give him back his license but we had made an agreement and it appears that good faith has been shown over the last few weeks and I state that to the board that we had a good meeting on Saturday.  Many issues were discussed and we’re on the right road. 

 

Mr. Coldwell opened the discussion to Board Members.

 

Mr. Gill asked how many pool tables was the original license for?  Mr. Proctor responded three, the same number he is asking for.

Mr. Selissen stated that the main issue was the tax issue but he recently found out that the license actually expired on April 30 of 2003 and Mr. Proctor didn’t apply for a renewal license until October so in reality, you were operating without a pool license for a 7 to 8 month period.

 

Attorney Paczkowski replied it appears to be true, however, the way the business is operated through his daughter, Rene Proctor, is that when the license is ready to expire, the town sends a new or renewal application and never received an application.  When he did realize he didn’t have the license renewed, he made a number of contacts with the town and discussed these issues and it was then that he was told he could not get the license back, could not apply, notwithstanding the fact that he tried to make a payment of $300 on the taxes owed.  The statute is clear that the non-payment of taxes can be used as a means to not issue a license only if the taxes have not been paid by the license holder.  In this case, the license holder was not the property holder, granted it is a technicality but nonetheless, would have to comply with the law.

Town Counsel Zaroulis stated, that is not correct.  The statute under our bylaws says that if the owner of the real estate fails to pay the tax, then any activity within that unit even if it’s a different owner and has a license, is subject to revocation with a hearing.  There may not have been the necessity of a hearing as the Selectmen stated that he didn’t submit the application.  Even though you fail to receive a particular document from the town which may have been caused by the Post Office and not by the town, the responsibility of obtaining the license is not upon the town to ensure the application form was received -- the obligation is upon the licensee to make sure they have the license.  We should put things in proper perspective as to where the legal responsibility lies and in this case, it lies with the licensee.  The town cannot be responsible in each and every instance to make sure that things go out or mail is delivered.  It is not the responsibility of the town.

Attorney Paczkowksi agreed with Town Counsel and his client is not trying to be absolved of his responsibility but on his behalf, he is just a citizen and is able to make errors of judgment just as the authorities here could.  The taxes are paid in full and when he was told to pay the taxes, he immediately went to the tax collector to make arrangements to pay them and now they are paid.  I don’t think they will ever be in arrears again and my clients have learned a lesson.  They have lost greatly because of the inability to use the pool tables.

 

Mr. Coldwell stated that based on what was discussed on Saturday and based on the fact that he saw the pool tables covered and not in use, he is satisfied with our agreement although it was for four weeks but our agreement and good faith has been shown.  The Motion was to not issue the permit based on non-payment of taxes so the Board will now have to make a Motion to reissue the license based on the fact that the taxes have been paid.

 

Motion by Mr. Gill, seconded by Mr. Sears, to reissue the pool table license to Maverick’s based on the fact that the taxes have been paid.  Unanimous vote.  Absent Mr. Ryan.

 

Attorney Paczkowski and Mr. Proctor thanked the Board for their good will and cooperation.

 

Town Meeting Review Committee Report – To be Reviewed by Board

Mr. Coldwell introduced the materials provided dealing with the televising and replaying of town meetings, a very comprehensive report from the subcommittee.  He welcomed questions and comments from the Board and the public tonight and would like to invite the subcommittee in to answer those questions at the meeting on March 9 and have the discussion completed to get underway to do the televising.

 

Mr. Sears stated that Channel 10 is an informational channel and not a public access channel.  Since we do have Channel 8, we should either give it back or use it as a public access channel. 

Mr. Coldwell asked Mr. Gill to explain the scenario if we were to activate Channel 8.

Mr. Gill stated we cannot do so.  We don’t have any equipment and we haven’t entered into negotiations with Comcast about doing that.  That is our station; we’re not going to give it back.  They’ve paid for the use of that at one particular point during the Olympics.  The issue of public access is going to be discussed at the renegotiations and it is up to the Board of Selectmen to decide whether or not we want a public access channel – whether or not we want to tax the people an additional amount of money to run that cable access because that is a fee-based channel and run by an additional fee put onto your cable bill.

Mr. Sears stated he fully understands it is not something you get overnight -- it took a year to get this far with this report and agreeing to actually tape these meetings but that’s a step.  Would be interested in being present when we do some of those negotiations; read Donna Gacek’s report and read other things and seems to be something other communities aspire to and some folks in this community think this is appropriate for this town.  There will be a period of time when we can all make comments on that.

 

Mr. Zaroulis stated that the town should proceed with extreme caution in regards to the public access station.  The public access stations in other communities have proven to be very divisive, created a great deal of controversy.  If you’re going to do that, you need to have a consultant come in to discuss how to approach public access which may be that there be a separate corporation created which is not associated with the town, to deal with that particular issue and to keep the town out of -- and public officials out of -- the public access station.  You’ve got your own station, an educational station, so if the public is going to have a public access station, it should be a separate corporation that’s run by a non-profit or a public organization separate from the town.  I won’t say what direction to go in but suggest that this is the correct direction and that before you make any decision, to start to explore that particular view, take the time to bring in a consultant like Bill Solomon for example who can give your committee some excellent advice in regards to this matter.  Mr. Gill also suggested Peter Epstein.

 

Mr. Sears had questions on the language in the document, i.e. words like “at a later suitable date and time” -- meaning later than what.  Mr. Coldwell asked him to cull those issues out and put it in writing so we can send it off to the committee so they can respond.

Mr. Sears asked that as the committee suggests the Board of Selectmen recommend these other boards to adopt a retention policy – who retains the tapes for these other boards?  Does each board keep them for themselves?  That should be spelled out.  “The annual town meeting and special town meeting videotape shall be retained for 5 years” – retained by whom – the clerk?

Mr. Sears has a concern about charging $24.50 for tapes and extra work for Sandy and Joe Dermody.  Perhaps for some meetings such as the Selectmen’s meetings, a second tape be made and have one stay here and another go to the library to be checked out like any other tape and maybe that will cut down on the number of recordings that have to be made.  On the last page, “hardware upgrades” – videotapes may be converted to CD format – probably to DVD -- and perhaps we will jump from taking videotapes right to DVD’s.  We might want to invest in a DVD camera for recording meetings that are not able to be televised live.

 

Mr. Selissen noted that we have a lot of committees.  Before we do anything, would like to have somebody take a look at that and see if some of them are still applicable, some need to be dissolved, i.e. the deduct meter committee – I don’t that’s active any longer and is probably part of the water sub-committee, will take a look at that.  Probably go over the whole list in detail. 

Asked the night’s videographer, Dave, if it is possible to record on a DVD or do you have to record on tape and then on DVD.  Wondered what the cost of that is.  Dave was not sure.

Concern is where do we cut it off and where do we make a determination as to which committees and subcommittees get broadcast and which aren’t.  Had this concern for some time.  Not sure who makes the determination as to all the Board of Selectmen subcommittees and whatever – is the Board the determining factor as to what will go on TV and what will not?  There’s an added to cost to that.  Wants the committee to be aware of that and there may be some initial substantive investment in infrastructure as well as a lot of camera men’s time.

Mr. Sears added that we may discuss some of these issues when we renegotiate the contract.

 

Mr. Gill stated that Mr. Selissen pointed out a very important thing -- the number of committees we have in town -- and at some time during the year, a lot of them are active and we would have a problem finding space on our “informational channel”. 

Responded to Mr. Sears about the negotiation on cable access – we discussed that when Mr. Anderson and myself negotiated the last contract -- an active discussion on whether or not we should have cable access.  Don’t remember who the individuals were who gave us a rundown on what access was all about and what the trials and tribulations other communities experienced with access; at that particular time, we recommended not to have access, brought it back to the Board, the Board agreed that we would only keep the informational channel and leave channel 8.  We can activate channel 8 any time we want with the proper equipment.  We could activate it for recreational purposes and meetings, just activate it for replays of town activities and meetings.  Just need equipment and notifying Comcast that we want to activate that channel. 

Cable access is a different issue altogether.  Disagree on the fees; if you remember when the town clerk sent us the schedule of fees from around the Commonwealth of copying tapes, the fee proposed here is very reasonable compared to a lot of communities.  Some had up to $50 and we’re only proposing $18 plus $3 handling.

 

Mr. Sears added “in conjunction with a copy of the Selectmen’s meeting being put at the library” may be reasonable.

Mr. Zaroulis added that these are public record and the public records law says that the fee is the fee that it costs you to make a copy of it, that’s the fee.  You can charge a mailing fee but not a handling fee.  I’ve already notified the committee about that.

Mr. Gill stated that $18.50 mentioned a prorated employee’s salary responsible for the task -- that’s how they came up with that.  Mr. Zaroulis responded that figure has got to be the lowest paid in that department according to the public records law.  Mr. Selissen commented that what was missing from that was an equipment fee.  Obviously we’re going to invest in some equipment and there’s an expense associated with that.  Mr. Zaroulis stated, there may be but the law simply states that it is the cost of making the tape which is the cost you can charge.  Mr. Selissen continued that it could be the cost of the individual’s time, cost of the tape, and any depreciation associated with that equipment.  Mr. Zaroulis stated it could be, yes, as long as you can justify it.

 

Mr. Gill added that the committee has done a yeoman’s task in presenting a very lively and informative report and an eye opening report in some instances.  A tremendous first step down the road to accomplishing the task that we have before us.

 

Mr. Coldwell stated that they did do a good job. The debate we had was centered around this report and it is quite comprehensive, covers a lot of ground, and when the committee comes in, we can discuss such issues as the costs of equipment and other matters that Mr. Sears brought up.  This is what they want and we will get those questions to them and when we have them in, we can try and wrap this whole situation up.  This is a 5-page report and you can see how much work went into it over time, covered everything.  I don’t think any of us ever disputed the fact that we probably should be televising and replaying the meetings – that wasn’t the issue.  If you look at the work that went into this, you can understand why I was so intent on getting this report before we moved on.  They will be invited to our next meeting on March 9 and Doug will put his questions in writing and we will put these questions on paper and get them to the committee so we can expedite the discussion.

 

Mr. Sears wondered that in the spirit of liking what we have said here that the Board might consider voting that the March 9 meeting be recorded.

 

Motion by Mr. Sears, seconded by Mr. Gill, that the March 9, 2004 Board of Selectmen’s meeting be recorded and replayed.  Unanimous vote.  Absent Mr. Ryan.

 

New Business

Constable Resignation

The Chairman stated that Mr. Mark Hildebrand appreciates the opportunity of having served as Constable but at this point he would like to resign.

 

Motion by Mr. Coldwell, seconded by Mr. Sears, to accept Mr. Hildebrand’s resignation with regret and send him a letter of thanks for his service to the community.  Unanimous vote.  Absent Mr. Ryan.

 

 

Motion to adjourn at 10:10P.M. by Mr. Sears, seconded by Mr. Gill, for the purpose of Executive Session discussions.   There will be no further business discussed following Executive Session.

 

The next meeting is on Tuesday, March 9 at 7:30P.M. and we look forward to seeing you that evening. 

 

Motion to go into Executive Session by Mr. Sears, seconded by Mr. Gill.  Unanimous vote.  Roll call vote:  Mr. Selissen, Mr. Sears, Mr. Gill, and the Chairman in favor.  Absent Mr. Ryan.

 

 

 

The Board came out of Executive Session at 10:40 P.M. on a Motion to adjourn by Mr. Gill, seconded by Mr. Selissen.  On a roll call vote, Mr. Selissen, Mr. Gill, Mr. Sears, and Mr. Coldwell in favor.  Absent Mr. Ryan.

 

 

 

                                                            ___________________________________

                                                                              Jerome E. Selissen, Clerk