Town of Natick - Board of Selectmen Minutes

Mr. Hurwitz noted that in the package given to the Board there was a layout of the plan. There were three parking spots on the street that were handicapped. Those spots were not required to be handicapped. They can be public parking so, TCAN will actually be contributing three spaces. TCAN will require a handicapped van spot which will be put in space #1 alongside the building. What was being requested tonight was a waiver of the required 70 parking spaces.

Mr. McKinley moved approval of granting TCAN the waiver. Seconded by Mr. Ciccariello. An amendment to the motion was offered by Mr. Ciccariello to make the approval conditioned upon the events being at night and on Sundays. Mr. McKinley agreed to accept the amendment. The motion passed on a 4-0-0 vote. Mr. Hughes, Mr. McKinley, Mr. Ball, Mr. Ciccariello voted in favor of the motion. Mr. Stern did not participate in the discussion or vote.

Mr. Sisitsky explained that the DPW has some personnel issues in dealing with the ongoing operation of the water treatment plant. That operation, including the operation of the 36 sewer pumping stations, wells and reservoirs were controlled by a complex computerized system. A lot of money has been spent on outside consultants, and he (Mr. Sisitsky) was proposing to move the GIS Tech into a position where he can spend a lot more time helping with the SCADA system. The second issue would be additional help in the Engineering Division to pick up the slack left by moving the GIS Tech. That would be a low level position and would help with the stormwater management plan and update of the Assessors’ maps. The third issue was the pumping station technician that would be similar to the pump station operator but would have an electrician’s license. A substantial amount of money was being spent on electrical work and having an electrician on board full-time can save more than the cost of that position.

Mr. Sisitsky continued that he had reviewed the proposal with the Finance Committee and the FinCom felt that it should go before the Board of Selectmen as the Board are the water & sewer commissioners of the town. He was here tonight to present it to the Board and ask for the Board’s support. He stressed that he was not looking for additional funds, but to move money from one account to another to improve these situations.

Mr. Stern inquired as to the total amount spent by the DPW on consultants, and Mr. Sisitsky responded that for SCADA and an electrician it varies, but was around $120,000. Mr. Stern asked if consultants were used for anything else, and Mr. Sisitsky advised that there were consultants on sewer, water, landfill capping, golf course monitoring.

Mr. Stern asked if in Mr. Sisitsky’s opinion, transferring money from the sewer maintenance account would result in any deferred maintenance. Mr. Sisitsky’s response was, ‘no’, adding that those funds were being spent on those consultants. Mr. Hughes noted that $40,000 was being spent on an electrician who only comes in when needed and the DPW was

Mr. Sisitsky had referred to GIS, and Mr. Ball inquired as to where the primary responsibility for GIS laid – was it with the DPW, Community Development or the Assessors. Mr. Sisitsky advised that it was the DPW. The Assessors’ office has a piece of the GIS action that deals with the Assessors maps, and he hoped to work closer with the Assessors’ Office and eventually move all the GIS activity to the DPW and coordinate through the DPW. Right now it was rather disjointed, but the eventual plan was to bring it under one roof. Mr. Ball repeated his question as to who has responsibility, and Mr. Sisitsky replied that if there was a call with it (GIS) being down, the call goes to the Assessors.

Mr. Hughes inquired if moving the GIS full-time to the water treatment plant was also being done in anticipation of doubling the treatment plant. Mr. Sisitsky explained that this was being done to meet the current needs, and he would be coming back before Town Meeting in April to ask for construction funds to nearly double the treatment plant. Town Meeting appropriated the money for design. When the treatment plant was doubled, very likely there would have to be a rethinking of the whole way the plant was staffed. DEP will most likely require two shifts. He stressed that the proposal tonight was to deal with the current needs and not the needs in l-l/2 years.

voting without a Finance Committee recommendation. Mr. McKinley noted that he wasn’t moving approval of the proposal. He moved approval of the DPW reporting back to the Finance Committee the Selectmen’s support, but the Board of Selectmen didn’t have the final say. Mr. Hughes, however, pointed out that the Selectmen were the water & sewer commissioners and it was up to the Board how it was run.

Mr. Ball questioned if when the treatment plant was doubled, if we would look back on this decision and wish it had been done differently. Mr. Sisitsky believed the answer was ‘no’. He noted that this was a need they had now to help with the existing plant, pump station and reservoir. That won’t change. He felt this was what was needed to operate as efficiently as possible.

Community Development Director Sarkis Sarkisian referenced a letter from the Castle family indicating their preference that the land recently donated to the Town be designated as the “Mary E. and Herbert E. Sherman Nature Preserve”. Section 16 of the transfer agreement between the Town of Natick and Mrs. Castle gave Mrs. Castle the exclusive right, within six months of the recording of the deed, to designate the name by which the property will be known through signage, press releases, public records.

Mr. Hughes inquired as to when the sign would be put up and the dedication ceremony scheduled, and Mr. Sarkisian responded that he would have over the winter to plan. He felt the target date should be April 1st and that should be the target for the Town forest as well. The Town had promised the Hunnewell family to have a sign put up at the Town Forest, but it had been overlooked, and Mr. Sarkisian agreed that this was the time to have it done.

Mr. Hughes noted that the buffer zone was Town property and questioned how the Conservation Commission had the authority to permit the work on Town owned land. Mr. Bain replied that it was not an issue of permitting. It was an issue of seeing what has been done and if necessary have it readjusted to the way it was. If what they have done was something that fit into what Mr. Sarkisian has in mind, then it can be considered as a gift from the abutters. The planting will have to pass muster with the Conservation Commission and if it does not, more than likely it will have to be replaced. It was his feeling that the split rail fence will make a good neighbor between the Town and this abutter.

Mr. Sarkisian reminded the Board that he had appeared before them at the prior meeting regarding parking fees. There were a little over 300 spaces available. Last year 306 parking stickers were sold. He knew the Board wanted to be certain that there was a lease with St. Patrick’s, and the Town Administrator finalized that lease last week. The Town and St. Pat’s will split the revenue. There was probably $30,000-36,000 in fees and the Town will receive about $18,000. He still had 18 people on the waiting list. At the last meeting he did not make any recommendation on the fees, but he would suggest that the commuter fees not be raised at this time. The downtown stickers went from $205 to $275 this year. Mr. Sarkisian also noted that $6,500 worth of repairs have to be made to the stairs at the parking deck and it wasn’t fair to the people who pay for these stickers. He will have to go for an overdraft to pay for the repairs, but it was necessary because it was dangerous.

Mr. Stern stated that he would like to know the details of the lease – the term, who pays for maintenance, etc. Mr. Conley advised that he would provide the Board with the lease within a week. When asked if there were any differences from the prior lease, Mr. Sarkisian advised that basically it was the same. The money was different in that it was now a 50/50 split. Under the old lease, the church got all the money.

felt those two increases were incredible; however, he (Mr. Sarkisian) often attends other board meetings and other boards feel the fees are too low. When Barry Cluff’s proposal was talked about, Mr. Sarkisian said he felt parking fees needed to be looked at and a plan put together. Perhaps the Selectmen would entertain the idea of letting people know that over ‘x’ number of years the fees will increase by ‘y’. The maintenance costs weren’t getting any cheaper and structural problems will continue at the garage. Natick Center Associates recommendation was that the fees stay the same at $275.

James Lavoie, President of the Middlesex Savings, spoke on behalf of his bank, Natick Federal Savings & Loan, and Fair & Yeager Insurance. He told the Board that between those three companies, they had purchased 205 of the stickers and have been consistently buying those stickers from the beginning. Since 1998 the cost has gone from $180-275. Middlesex Savings pays about $40,000 in fees, Natick Federal pays $9,600 and Fair & Yeager about $6,400 for a total of $56,000. In his opinion the businesses were already paying too much and they didn’t pass along the fees to their employees. If the fees increased to $500, it would cost the Middlesex Savings $72,500 for employees.

Mr. Lavoie continued by pointing out the community involvement of the Middlesex Savings, Natick Federal and Fair & Yeager and in addition to dollars, the commitment of 100’s of hours from their employees to the Town. The Natick Center Associates was a partnership with the Town and it was clear that without these three organizations, Natick Center Associates wouldn’t exist. As to the issue of fairness, Mr. Lavoie made the following points: l) Middlesex Savings, Natick Federal and Fair & Yeager contributed $100,000 to the building of the Middlesex deck. There was no formal agreement at the time, but the expectation was that their employees would have some place to park; 2) the parking lot across the street from Town Hall was not a municipal lot. It was private but was used nights and weekends for municipal use; 3) Middlesex Savings has 20 offices throughout Middlesex County including two large buildings in Concord and Maynard, and they don’t have to buy any stickers. Only in Natick. In his opinion the fees were high enough. He thought it was important for his business to stay in the downtown, but he has to provide a place for people to park.

Executive Director of Natick Center Associates Joyce Moss understood the budgetary constraints and understood there was a competing interest for the municipal dollars. Over the past seven years that she has been here, she felt the Center Associates has been a very reasonable and flexible partner. In the past years there have been discussions as to what level to raise the parking rates and not precipitate a riot among the businesses. The Center Associates were involved in the $180-205 increase and the $205-275 increase. She felt it was important for their (Center Associates) participation to take place, but the time to talk about parking fees was not at a public meeting. There needs to be a balance between what was reasonable and a disincentive to do business in the downtown. It was important to remember that the three institutions were paying for 2/3 of the stickers.

Mr. Lavoie acknowledged that to be true and added that they were in two other locations similar to Natick but employees park for free in municipal parking lots. Natick was the only place where the bank pays for parking. To Mr. McKinley’s comment about customer service and customer interaction, Mr. Lavoie advised that that was why he moved a number of employees to West Central Street because there wasn’t room for them in the downtown office. He was only leaving people in the downtown who do customer service. Asked if he would have moved those people if the Town had provided parking, Mr. Lavoie responded that he probably would have been doing the development with Mr. Cluff or someone else.

Mr. Ciccariello inquired if the Town was making money with collecting $275 for the 306 spaces on the parking deck or with the maintenance was the Town losing money. Mr. Sarkisian clarified that the 306 was not just spaces on the deck. There were 85 on Middlesex deck and 87 on the lower level plus 59 spaces in the Pond Street lot, 5 along Middlesex Avenue and 70 behind the Police and Fire building. As to the maintenance costs, Mr. Sarkisian felt that that was hard to break down. The DPW sweeps the lots and plows and last year was the first year the Town put $10,000 toward maintenance.

Theresa Capobianco noted the presence of Attorney David DeLuca from Town Counsel’s firm of Murphy, Hesse, Toomey & Lehane and requested a clarification of his relationship in these proceedings. Mr. Hughes advised that Mr. DeLuca had been asked to be here to present the Town’s side by asking the officers to give their testimony. Ms. Capobianco questioned if Mr. DeLuca would provide the Board with legal advice or counsel in chambers after this matter and suggested to the Board that it was in an inappropriate use of counsel to have him play both roles. She asked that the Board choose one or the other. Mr. Hughes responded that Mr. DeLuca was going to present evidence to the Board.

Ms. Capobianco proceeded with her opening statement in which she noted that she was here tonight because Powers Package Store was alleged to have violated Chapter 138, Section 69 in alleged incidents involving William Edgerly which occurred on September 11 and September 12, 2001. Chapter 138 Section 69 prohibits selling alcohol to an intoxicated patron and Powers Package Store falls within that ambit. That statute is used on many levels of the law including the basis for DRAM shop cases, basis for misdemeanor charges, and the basis for administrative hearings such as this one where a holder of the liquor license is called into question for alleged violations. Under that statute for the Board to find that a violation has taken place, the Board must find that at the time of the sale William Edgerly was displaying that he was in fact intoxicated reasonable person would have concluded that he was intoxicated. In this case the case law prohibits the Board from considering evidence that Mr. Edgerly was intoxicated at some point in the future to support any conclusion that he was intoxicated at the time of the sale. Evidence of subsequent intoxication cannot form the basis for your opinion that at the time of the sale he was intoxicated.

Ms. Capobianco continued that on September 11th Mr. Edgerly was taken into protective custody and found to have an increased blood alcohol level of around 0.21. Powers Package Store did not sell alcohol to William Edgerly that evening and the evidence will show that. On September 12th Mr. Edgerly was taken under arrest by the Natick Police Department and found to have an elevated blood alcohol content of 0.20%. Mary Ann Powers will testify that she did sell alcohol to him but it occurred 45-60 minutes prior to him even being found which was at least 20 minutes before the breathalyzer was administered. He purchased a large volume of alcohol, some of which was not found, and he consumed and became intoxicated between the time of the purchase and the time of arrest. At the time of purchase, Mr. Edgerly did not display outward signs of intoxication.

Ms. Capobianco told the Board that evidence would be heard from both police officers and store employees and it was the Board’s job to evaluate their credibility and credibility of the evidence presented. In no way were they (Ms. Capobianco and Powers) accusing Officer Graham of not doing his job. They believed there were a few ends that were left untied which would have prevented Powers from being here tonight. She stressed that they were not here to disparage Officer Graham, the Natick Police Department of Officer Forde in any way nor were they here to minimize the difficulty of their job. They were here to present evidence including the testimony of eyewitnesses who were questioned and those who were not questioned.

Ms. Capobianco noted that the law says uncorroborated hearsay testimony was insufficient for the Board to conclude that the statute was violated. Common sense permits the conclusion that eyewitnesses were better tellers of fact for the Board to consider. Mary Ann Powers has been a citizen of the town for over 30 years and in September 2001 she admitted that Powers Package had violated the statute. Ms. Capobianco

Mr. DeLuca called Officer Alan Graham, Jr. Officer Graham answer ‘yes’ to each of the following questions: Have you had occasion to be involved in any instance involving alcohol, have you made a number of arrests with intoxicated persons, testified to someone’s state of sobriety, and received training in detecting persons who were intoxicated. When asked about the extent of his training, Officer Graham responded that he received training at the Police Academy and had attended classes annually to keep skills updated.

In another series of questions, Officer Graham responded ‘yes’ to the following questions: Was he familiar with a breathalyzer, was he working on September 11, did he recall where he was at approximately 9:00 p.m. Asked where he was at 9:00 p.m., Officer Graham replied that he was in West Natick and received a call from dispatch with a report of a white male wearing blue jeans, a white T-shirt and leather jacket wielding a crow bar aside a Natick Cab and looking for individuals of a Middle Eastern descent.

Mr. DeLuca noted that sometimes there was time a length of time between an incident occurring and the officer receiving a dispatch. Officer Graham agreed and added that it gets called in, dispatch enters it into the computer, and the Sergeant decides how to handle. Officer Graham agreed with Mr. DeLuca’s statement that it could be 3-5 minutes in between.

Mr. DeLuca again asked if Officer Graham had received a physical description of who he was looking for, and Officer Graham responded that it was a white male wearing blue jeans. When asked where Powers Package Store was in relation to that area of Middlesex Avenue, Officer Graham replied that it was right across. Mr. DeLuca inquired if Officer Graham’s attention was drawn to Powers Package, and Officer Graham replied that it was Officer Forde who drew his attention to the individual coming out of the package store and they responded to the parking lot.

Mr. DeLuca asked a series of questions about Officer Graham’s encounter with the individual to which Officer Graham responded that he talked to the individual and the individual was hostile, clearly intoxicated, eyes glassy and bloodshot. The individual had a small black gym bag containing tools and a crow bar and a brown bag with a six pack of

Officer Graham confirmed as correct Mr. DeLuca’s statement that protective custody was not an arrest. It was a level of care because Officers Graham was concerned about the individual’s safety and safety of others. Asked if the reason for placing him in protective custody was because of his state of intoxication, Officer Graham’s response was, ‘yes’. Officer Graham was then asked if a breathalyzer test was given at the station and he responded that it was and his alcohol level was .21. That was over twice the limit to operate a motor vehicle.

Mr. DeLuca questioned Officer Graham about the night of September 12, 2001 and in response to those questions, Officer Graham testified that he was working the night of September 12th and was assigned to a walking beat and he went to the T station. He heard shouting from the platform and he looked over the banister and saw Mr. Edgerly in a verbal argument with an African American male, drinking from an open 12 oz. Coors container. He went down to the platform and placed Mr. Edgerly under arrest. Mr. Edgerly had in his possession the same gym bag and four unopened cold Coors beers and the open container in his hand. As to his observations of Mr. Edgerly’s sobriety, Officer Graham stated

that Mr. Edgerly was clearly drunk. His eyes were bloodshot and there was a strong odor of alcohol emitting from his breath. He asked Mr. Edgerly where he purchased the alcohol and Mr. Edgerly said at Powers. Officer Graham said he then asked him who the clerk was and Mr. Edgerly said he thought it was the owner. Mr. Edgerly was placed under arrest for being a disorderly person. A breathalyzer was given and he had a .20. Officer Graham thought 15-20 minutes had elapsed between the MBTA station and when Mr. Edgerly took the breathalyzer

In another series of questions, Mr. DeLuca questioned Officer Graham about his investigation of the origin of the alcohol. Officer Graham’s responses to those questions were that he went back to Powers Package Store and talked to the owner. She informed him that Mr. Edgerly was a patron of hers. Officer Graham said he informed Ms. Powers that Mr. Edgerly’s breathalyzer had a reading of .20. She admitted that Mr. Edgerly had purchased alcohol from her that evening. He did not ask her how close in time it was to his visit, but she saw him (Mr.

Officer Graham said he asked Mr. Montaldo if he knew about the incident from the night before and Mr. Montaldo said he did. Mr. Montaldo said he didn’t the individual’s name but knew him as being a customer. Mr. Montaldo went on to say that he (Mr. Edgerly) went into the parking lot and began hitting on his girlfriend calling her cutie, calling him buddy. Mr. Edgerly was drunk and he (Mr. Montaldo) sold him alcohol – that was his job. Mr. Montaldo also said that he was scared (of Mr. Edgerly) and wanted him out of the shop.

Ms. Capobianco asked if Officer Graham found a receipt, if he had observed Mr. Edgerly before he went into Powers Package, if he had seen Mr. Edgerly inside Powers. To each question Officer Graham’s response was, ‘no’. When asked about the time, Officer Graham responded that it was about 9:20-9:22 p.m. When asked if he was aware of what time Powers closes in the evening, Officer Graham responded, ‘no’. Officer Graham further acknowledged that he did not see what type of behavior Mr. Edgerly was displaying to the clerks.

Ms. Capobianco then asked questions about other package stores in that area, and Officer Graham advised that Kentucky was in the area, just around the corner. He did not go to Kentucky to see if Mr. Edgerly had purchased liquor there. Ms. Capobianco asserted that Officer Graham was not 100% certain that Mr. Edgerly didn’t purchase alcohol at Kentucky and then go over to Powers and Officer Graham responded that

In response to a series of questions from Ms. Capobianco, Officer Graham responded ‘no’ to each of the following: was he aware that Mr. Montaldo was fired a few days later from Powers Package Store for what they felt was stealing, had he asked to see the video tape, had he known the store had a video tape, had he seen the big red sign (saying there was a video tape), had he seen Mr. Edgerly before he went into Powers, had he seen him in the store making his purchase, was he aware that Mr. Edgerly not only purchased a six pack of beer but a l/2 pint of vodka, had he found the vodka, had he looked for the vodka.

Officer Graham confirmed as correct Ms. Capobianco’s statement that he had no personal first hand knowledge of the signs of intoxication Mr. Edgerly may or may not have been displaying. He didn’t actually see Mr. Edgerly in the store on September 12 making a purchase. Ms. Capobianco questioned if it wasn’t possible for Mr. Edgerly to have purchased a six pack of beer and l/2 pint of vodka and consumed the l/2 pint and l-2 beers before Officer Graham found him at the train station. Officer Graham responded that the video would probably show that. Ms. Capobianco reiterated her question as to the possibility, and Officer Graham acknowledged that it was possible.

Officer Graham responded ‘yes’ to each of the next series of questions: All he knew when he observed him (Mr. Edgerly) at the train station was that he (Mr. Edgerly) was intoxicated and that observation was made after the purchase, had he spoken to Ms. Powers about the sale of alcohol to Mr. Edgerly and that occurred on September 12, had Ms. Powers said she sold the alcohol, had he told her about Mr. Edgerly being arrested and found intoxicated and creating a disturbance, had he asked Ms. Powers about Mr. Edgerly’s condition. When asked what Ms. Powers said, Officer Graham responded that she said she didn’t notice he was drunk and didn’t smell any alcohol. Asked if he believed her (Ms. Powers), Officer Graham replied, ‘no’, not at a .21 at that time of day. Ms. Capobianco pointed out that Officer Graham had testified that it was possible that Mr. Edgerly had consumed a lot more alcohol than he thought, but Officer Graham countered that Ms. Capobianco had asked what he believed and the beers were very cold on a warm day. In trying to establish the temperature, Officer Graham thought it was probably mid 60’s. Ms. Capobianco asked if Officer Graham questioned Ms. Powers’ truthfulness, but Mr. Hughes disallowed the question, noting that that was for the Board.

Ms. Capobianco noted that Officer Graham never asked to see the video tape, and Officer Graham answered that he didn’t know there was a video. Ms. Capobianco asked if Officer Graham would agree that the best evidence comes from eyewitnesses, and Officer Graham responded, ‘yes’. Officer Graham was then asked if he spoke to Abe Kaloustian, the owner of Abe’s Garage which was situated next to Powers, and he responded, ‘no’.

Ms. Capobianco questioned Officer Graham about the breathalyzer and in response to those questions, Officer Graham testified that: On September 11 & 12 he took Mr. Edgerly into custody and both times he exceed the legal limit for driving, he agreed that the breathalyzer levels show an individual’s intoxication at the time it is measured, and agreed that the results do not measure intoxication levels at a point prior to the test, and the results were relevant to present status of intoxication. Officer Graham stated that he was not sure he could answer Ms. Capobianco’s question as to whether he would agree that the breathalyzer test doesn’t provide any insight into the signs

Ms. Capobianco then questioned Officer Graham about the reporting of the incident and he responded that it was probably the Chief who makes the decision to send the Police report to the Board of Selectmen. The report regarding the September 11th incident was written on September 12. It was not written on the 11th because he didn’t think it was a problem until it was two nights in a row and he brought it to Sergeant Davis’ attention. Sergeant Davis did not direct him to write a report. As to when the report was submitted to Sergeant Davis, Officer Graham stated that he recorded the report the night after speaking to Mr. Montaldo and it goes down to records and gets typed. He had no idea what Sergeant Davis would do with the report. He did not inform Ms. Powers that the store would be brought before the Selectmen. He did not play any role in the decision-making.

Mr. DeLuca inquired as to how much time elapsed from the point in which Officer Graham saw Mr. Edgerly exit Powers until he had his first breathalyzer. Officer Graham responded 20 minutes. Mr. DeLuca then inquired if Mr. Edgerly’s state of intoxication at the end of the 20 minutes was any different from the earlier state. Ms. Capobianco objected, and Mr. DeLuca rephrased his question. Mr. DeLuca asked about the second night when Officer Graham found cold beers, how much time between when Mr. Edgerly was found and the breathalyzer. Officer Graham replied that it was a little longer because of the arrest and maybe l/2 hour to 40 minutes. When Mr. DeLuca inquired as to Mr. Edgerly’s state of intoxication between when Officer Graham first found him and the breathalyzer, Ms. Capobianco objected. The objection was overruled, and Officer Graham responded that it was the same.

Officer Vincent Forde came forward and Ms. Capobianco reminded him that he was under oath. After establishing that Officer Forde was working with Officer Graham on September 11, 2001, Ms. Capobianco asked if Officer Forde knew the charges against Powers Package Store. Officer Forde’s response – specifically, no. Asked if he had any understanding of the charges, Officer Forde replied that it was for selling alcohol to an intoxicated person. Asked if he knew who the person was, Officer Forde stated that it was William Edgerly. Officer Forde then responded, ‘no’ to each of the following questions: Did he see Mr. Edgerly purchase alcohol, did he have any first hand knowledge that Mr. Edgerly purchased alcohol at the store, did he observe the behavior Mr. Edgerly displayed at the time of purchase of alcohol.

Sergeant Davis stated that he had been in the department for 28 years and was the traffic safety officer. His duties included alcohol enforcement, underage drinking, traffic, accident investigation. In response to questions from Ms. Capobianco, Sergeant Davis acknowledged that he received a report from Officer Graham regarding the alleged incidents and forwarded a copy of the report that Powers Package Store had violated the statutes and requested that the Chief forward the report for administrative action against the licensee. He did this based solely on the facts of the report and did not do any investigation on his own. Sergeant Davis stated that he received the report 2-3 days after dictation and assumed that he had made the recommendation to the Chief within that shift or the next shift.

Ms. Capobianco inquired if Sergeant Davis spoke to Officer Graham before making his recommendation, and Sergeant Davis said he did. When asked about what, Sergeant Davis responded that he talked to him about the statement of Mr. Montaldo about the gentleman was drunk and his job was to sell booze. That was contrary to any training anybody would have received in a training program, and he (Sergeant Davis) wanted to clarify. Ms. Capobianco asked if Sergeant Davis would say that it was unusual for a store clerk to offer information like that. Sergeant Davis’ response, ‘no’, it was unusual for a store clerk to admit he sold to a drunk.

Ms. Capobianco then questioned if Sergeant Davis had recommended that Mr. Montaldo be charged with a misdemeanor, and Sergeant Davis answered that he did not make that recommendation. When asked about the next – what the Chief would do, Sergeant Davis advised that in the past he (Chief) would forward it to the Board of Selectmen and set a hearing. He could not answer how long the Chief would hold onto the report.

Ms. Capobianco inquired as to how late the store was open, and Mr. O’Callaghan replied that it was open to 9:00 p.m. like every other night. When asked if he was familiar with Mr. Edgerly, Mr. O’Callaghan advised that he (Mr. Edgerly) was a customer. Ms. Capobianco questioned if Mr. Edgerly came into the store at or before closing time. Mr. O’Callaghan responded that he (Mr. Edgerly) attempted to come in, but he was informed that the store was closing. When asked about Mr. Edgerly’s demeanor, Mr. O’Callaghan stated that he seemed edgy, seemed wound up, but not intoxicated. Ms. Capobianco asked if Mr. Edgerly purchased alcohol from Powers Package on September 11th and Mr. O’Callaghan responded that to his recollection he did not.

In his cross examination Mr. DeLuca asked if Mr. O’Callaghan knew Mr. Montaldo. Mr. O’Callaghan replied that he did - that he (Mr. Montaldo) was a former employee. In response to other questions from Mr. DeLuca, Mr. O’Callaghan testified that Mr. Montaldo was working that night, that they didn’t always have an eye on what each other was doing every moment, and he was not present when Mr. Montaldo spoke with Officer Graham.

In response to Ms. Capobianco’s questions, Mr. Whalen acknowledged that he had had occasion to refuse to sell alcohol to an intoxicated person and he was able to recognize signs of intoxication. He described those signs as being unsteady on their feet, slurred speech, glassy eyes. He was working September 12 with Mrs. Powers and had seen Mr. Edgerly as a customer and had spoken to him on various occasions. Mr. Whalen indicated that he recalled seeing Mr. Edgerly come into the store on September 12. He observed Mr. Edgerly, but not at close range. Mr. Edgerly came by and called out a greeting. He did not recall Mr. Edgerly slurring his speech. Asked if there was any reason for him (Mr. Whalen) to be concerned that he (Mr. Edgerly) may have been unsteady on his feet or any reason to believe he was intoxicated that evening, Mr. Whalen responded ‘no’ to both questions. Had he thought so he probably would have communicated that to Ms. Powers.

Ms. Capobianco asked a series of questions to which Ms. Powers responded that she was working on September 12 and Mr. Whalen was working with her. She was familiar with Mr. Edgerly. She had waited on him before. She had waited on him frequently, probably a couple of times a week. Before September 12 she had observed a patron displaying signs of intoxication and did not sell that individual alcohol. She described the signs of intoxication as slurred speech, not walking properly.

In response to another series of questions, Ms. Powers advised that on September 12 Mr. Edgerly came into Powers Package Store while she was working, and she observed Mr. Edgerly in the store. When he entered she was behind the counter near the door. She recognized Mr. Edgerly and exchanged greetings. He went to the back, exchanged words with Frank, got his beer and put it on the counter. Ms. Powers responded that she was able to observe Mr. Edgerly walk; he did not stumble, and was not unsteady on his feet. He had no problem getting the six-pack on the counter. As to how far Mr. Edgerly was from where she was, Ms. Powers stated that he was about the length of the table (in the Selectmen’s meeting room) – maybe 4 feet. When he approached the counter, he asked for a l/2 pint of vodka.

Ms. Capobianco then inquired if Ms. Powers spoke to Officer Graham later that evening after the sale of alcohol to Mr. Edgerly. Ms. Powers advised that she did. When asked how that conversation came about, Ms. Powers stated that she saw him in the parking lot and went out to speak to him. He (Officer Graham) did not say that he was arresting him (Mr. Edgerly). Customers told her that. Officer Graham asked if she sold to Mr. Edgerly that Bill said she did, and she told him (Officer Graham) that she did but he did not appear to be intoxicated.

Ms. Capobianco went back to questioning Ms. Powers about her conversation with Officer Graham and Ms. Powers responded that Officer Graham spoke to her some time later after he took Mr. Edgerly to the station. He spoke to her about the sale of alcohol to Mr. Edgerly that evening and she told him that Mr. Edgerly did not appear intoxicated and she would never sell to someone who appeared intoxicated. Asked if Officer Graham believed her, Ms. Powers responded, ‘no’. Did she feel intimidated, Ms. Powers said she did, adding that she kept insisting that he did not appear intoxicated. Officer Graham doesn’t know anything bout the vodka, but if he couldn’t find it, it (vodka) must have been consumed.

Ms. Capobianco noted that Ms. Powers was before the Board on September 24 and admitted to the store selling alcohol to an individual who did not present identification. Ms. Power confirmed that as correct. Ms. Capobianco then noted that tonight Ms. Powers was testifying that she did not observe any signs of intoxication with Mr. Edgerly. Again Ms. Powers confirmed that as correct. Asked if she was telling the truth, Ms. Powers replied, ‘yes I am’.

Ms. Capobianco questioned if when she appeared on September 24 Ms. Powers had any idea that the events of September 11 and September 12 would bring her back here. Ms. Powers stated that she did not. Asked when she learned of the charges, Ms. Powers replied October 24th. Ms. Capobianco asked several other questions concerning notice of the

In his cross-examination Mr. DeLuca noted that Ms. Powers was not present on September 11, and had no personal knowledge about Mr. Edgerly’s condition on that day. Ms. Powers confirmed that as correct. Mr. DeLuca noted that Ms. Powers admitted that she sold alcohol to Mr. Edgerly on September 12th and Ms. Powers agreed. Mr. DeLuca inquired as to the time period and Ms. Powers stated that it was 6:00 p.m. When asked if Officer Graham was at Powers Package to speak to her before the store closed on September 12th, Ms. Powers’ reply was ‘yes’. Asked if Officer Graham had informed her that Mr. Edgerly was there on September 11th and Powers Package allegedly sold alcohol to him and he (Officer Graham) had arrested Mr. Edgerly for being intoxicated, Ms. Powers answered that Officer Graham did not say that Mr. Edgerly bought liquor from them (Powers) on September 11. Officer Graham said they were called down there, and he came out of the store wielding a tire iron. He (Officer Graham) did not say that they (Powers) sold him liquor that night. Mr. DeLuca inquired if Officer Graham had said that he wanted to speak to the clerk, and Ms. Powers said, ‘yes’.

Mr. DeLuca pointed out that Ms. Power controlled the videotapes right through October 23rd when she first learned about this. She also had information from Officer Graham beginning on September 12 with officer Graham coming to her store and telling her why he was there and what the investigation entailed. Ms. Powers countered that he didn’t say he was going to do anything about it, but he did question her. Asked if she looked at the videotapes, Ms. Powers answered that she didn’t.

Ms. Capobianco rephrased and asked if anybody including Board members or anyone associated led her to believe she would be in need of those videotapes in the future. Ms. Powers’ response was, ‘no’. Ms. Powers was then asked if Officer Graham informed her why he was asking questions regarding Mr. Edgerly on September 12, and Ms. Powers’ response was, ‘no’. Ms. Capobianco commented that Ms. Powers did not know if Officer Graham was asking her questions relating to a crime that may have been committed by Mr. Edgerly and Ms. Powers confirmed that as being correct.

Ms. Capobianco read into the record the following affidavit: I, Abraham Kaloustian do hereby state under oath that on September 12, 2001 I was working in my garage located at 2 South Avenue, Natick, MA which is adjacent to Powers Package Store. At approximately 4:00 p.m. I saw William Edgerly, who I have seen walk across my lot many times, walk diagonally across the parking area of my garage on South Avenue just as he has many times before. I did not notice anything unusual about his walk or his gait. Later that evening I say Mr. Edgerly off the end of my driveway in handcuffs being held by a police officer. Executed November 16, 2001.

In his closing statement Ms. Capobianco reiterated that Chapter 138 Section 69 states that no beverages shall be sold or delivered on any premises under this chapter to any intoxicated person. The Board’s conclusion must be based on substantial evidence which cannot consist solely of uncorroborated hearsay testimony. Evidence of subsequent intoxication is not permissible evidence to base your conclusions. The Board must consider the evidence that occurred at the time of the sale. There is no toxicologist here to say otherwise.

Ms. Capobianco summarized the evidence presented that evening. There was evidence that on September 11, 2001 Mr. O’Callaghan and Montaldo were working at Powers Package Store and were closing up the store after 9:00 p.m. Mr. Edgerly attempted to purchase alcohol, but he never entered the store because they were trying to close. He was not permitted to purchase alcohol. The fact that he had a brown paper bag is not evidence that he purchased it at Powers. Kentucky Liquors is just down the street and Officer Graham did not go there.

Ms. Capobianco continued that Mr. Montaldo was called to find out what he knew about the incident. Mr. Montaldo was fired a few days later having been suspected of stealing from the store. Officer Graham spoke to him by telephone and couldn’t identify him if he (Mr. Montaldo) walked into the store. There was no evidence that Mr. Edgerly purchased alcohol at all on September 11th from Powers, and the Board cannot consider the fact that a breathalyzer was administered that he purchased alcohol.

On September 12th there was no doubt that Mr. Edgerly purchased alcohol from Powers. Mr. Edgerly was found 45-60 minutes later with only four beers left and what happened to the l/2 pint of vodka. Ms. Powers is an important citizen of the community and has already been forthright and honest to the Board. She testified that she sold alcohol, but did not see signs of intoxication. Mr. Whalen testified that he (Mr. Edgerly) did not appear intoxicated. The only facts that Mr. Edgerly may have been intoxicated come from the breathalyzer after consumption of l/2 pint vodka and 2 beers. There was no evidence that he consumed alcohol prior to the sale. The Board has the creditable testimony of a woman who is well known in the community. The law suggested that the breathalyzer tests cannot be considered. There was eyewitness testimony from Mr. O’Callaghan and Mr. Whalen and they were the best evidence.

In his closing statement, Mr. DeLuca stated that the Board was allowed to consider substantial evidence in its decision. That was a standard for administrative procedure and hearings. The Board heard creditable testimony from Officer Graham who had an opportunity to observe a person he knew to be intoxicated. He (Mr. Edgerly) stated he purchased alcohol from a particular location and was seen coming out of there. The Board was entitled to consider those facts and the reasonable inference drawn from those facts. It was a reasonable inference that Mr. Edgerly did purchase the alcohol as he said he did and shortly thereafter tested with a high breathalyzer. Mr. DeLuca suggested that there was substantial evidence and the Board should find that Powers was in violation of Chapter 138.

was looking to connect Town Hall which was integral to the PEG, the Morse Library and the Police and Fire station. The reason it was important was that RCN has found itself in the unique position of having some money they can allocate under this years budget and if they can get it started before the end of the year, they can keep that money applied to this project. Otherwise they will be looking at next year’s budget.

Mr. Ball noted that the contract between RCN and the town requires RCN to install the I-Net and questioned if there was a time limit. Ms. Kirkpatrick responded that she spoke to Tom Steel, RCN Vice President who has worked on the Natick contract, last week. She understood there was a letter sent by the Board to RCN, and Mr. Steel asked that she convey that he was in the process of responding.

Ms. Kirkpatrick responded that she could address that in part. She did not view this as taking care of the I-Net obligation. There was a process of evaluating what was left and seeing how RCN can get the rest of it done. Natick was one of the few towns on the front burner for next year. RCN was committed to their obligation here and had every intention of fulfilling it.

When asked what she was specifically requesting from the Board, Ms. Kirkpatrick responded that she was asking to proceed with the three underground jobs before the formal hearing. Mr. McKinley asked if the Engineering Department had reviewed the plans, and Ms. Kirkpatrick responded that she believed Engineering had seen the plans. She would not proceed without Engineering’s agreement.

Mr. Ciccariello inquired if the Building Inspector had inspected the amusements before they began operating. Mr. Ellerman advised that it had gone through the Building Department. In follow-up Mr. Ciccariello questioned if a permit had been pulled and the rides inspected. Mr. Ellerman replied that the Mall doesn’t install them. The Mall leases Kiddie Koncepts the space and they would need to go through the application process with the Town. When pressed, Mr. Ellerman stated that he didn’t know for a fact whether Kiddie Koncepts went through the Building permitting process or not.

Mr. Ellerman responded that he has sat down with the different entities. The operation manager went out on a medical leave and that was when some of the instances occurred, but he (Mr. Ellerman) has now been working with the Building Department and the Fire Department to ensure that before opening, the stores get proper fire inspection and a certificate of occupancy. Mr. Ellerman acknowledged that he had made some mistakes about the procedures.

Mr. Ciccariello proposed that the application be disapproved until the applicant has filed for a building permit and everything has been reviewed and inspected by the Building Inspector and until the Board receives a letter from the Building Inspector that everything was appropriate. Ms. Challis advised that the Building Inspector, Michael Melchiorri, has seen the rides and has no problem with the operation.

Attorney Jeremy Ritzenberg noted that as instructed by the Board after the last meeting, he spoke with Attorney David DeLuca of Town Counsel’s office and exchanged some correspondence and put together a legal analysis on how the 50% rule was counted. He got a copy of that to Mr. DeLuca and to the Chairman today. Mr. Ritzenberg submitted copies for the remaining members of the Board.

Ritzenberg) thinks it is. There was only one court case in the farm’s favor and no case that directly says count structure by structure. One thing that is clear is that the farm is allowed to count by dollar value and volume. He provided the Board with the dollar count for the entire farm for the harvest season for the primary crop which is apples. This year the harvest was August 8-October 14. The spreadsheet shows what was sold in both the farmstand and at the U-Pick.

Asked if the numbers on the sheet were dollars or units, Mr. Ritzenberg advised that they were in units. The statute says use dollars or volume, and the farm chose to count by the units by which the items are sold. These were estimated units, but he could provide written certification to accompany the spreadsheet. In some instances the estimates were prepared by reviewing sales records and extrapolating how many sales and units. The farmstand does not have an inventory segregation between its own products and someone else’s products. If there were fruits and vegetables on the shelves, it goes in as produce but not whose produce it was. Under the deli section of the farmstand and prepared foods and gelato, the majority of credits were non-farm. Even though the farm is allowed to make gelato, the farm doesn’t have cows and doesn’t grow sugarcane. They took l/2 of 1% for units of gelato sales and 99% count against the farm. Those sales (for gelato) were by the cup or cone.

Referring to the spreadsheet, Mr. Ritzenberg pointed out that l/2 million units were sold for the harvest season. In determining if the farm was in compliance, the Board needs to consider what the farm should be doing on a year in and year out basis. For this year there were 552,990 units sold of which 412,261 were farm produced or 74.55%. Mr. Ritzenberg pointed out that even though the statutes and case law says the farm was allowed to use Berlin, it was deducted out anyway. If Berlin is included, it comes out to 79%. Considering these numbers Lookout Farm for this season was in compliance of the 50% rule. Mr. Ritzenberg advised that he had consulted with Mr. Marino, owner of Lookout Farm, about annual reporting being part of the farm’s relationship with the Town, and Mr. Marino concurred that it will be.

For purposes of the 50% rule, Mr. Stern inquired if there was any disagreement between Mr. Ritzenberg and Mr. DeLuca as to the appropriateness of counting the U-Pick crop towards sales generated by the retail stand. Mr. Ritzenberg that it was his belief that the statutes say to count the entire farm together. He acknowledged that there were no decisions on the statutes that says what the answer was, but it was his interpretation that Lookout Farm was allowed to count the farm as a whole and that makes sense if you look at the purpose of the statute. If the farm was capable of meeting the 50% rule overall but unable to meet it for one structure, it would be easy to shift some sales to the structure that didn’t meet it.

Mr. DeLuca told the Board that there was a real lack of defining case law on the statutes and it was difficult to grasp the intention of all this language. He was inclined to agree with Mr. Ritzenberg in trying to define the intent, that there was a legislative intent to promote farming interests and to provide as much latitude as possible and counting the premises as a whole could be considered. However, he did not agree that product could be imported from other premises and didn’t think the case law would support bringing in product from other locations.

Mr. Ball inquired as to who owned the Berlin facility, but Mr. Ritzenberg did not know. He believed Modern Continental owned the property and if they did not own it, then it would be owned by Les Marino. Mr. Ball responded that it appeared to him that the products have to be produced by the owner, and he would like some assurance that it was the same owner. If one was owned by Modern Continental and one by Les Marino, it would not be the same owner. Mr. McKinley pointed out that by Mr. Ritzenberg’s calculations, even subtracting the Berlin location, Lookout Farm would be in compliance with the 50% rule.

John Burke, attorney for the neighborhood association, told the Board that the neighbors would like some time to analyze this. At the Lookout Farm Advisory Board meeting, Mr. Ciccariello indicated there would be some analysis of these numbers by someone other than the Board. The facility that the 50% is concerned with is the farmstand, and it used to be there was an exemption only during harvest or when you met the 50%. He thought the test had to be made facility by facility and what was given doesn’t tell what’s going out through their register at each facility.

Mr. McKinley asked if Mr. Burke disputed Mr. Ritzenberg’s contention that the facility by facility issue was easily overcome because it was easily gotten around by simply moving things around. Mr. Burke responded that he didn’t think the statute envisioned the situation where there was a U-Pick and essentially a gourmet food store. Most facilities don’t have multiple sales.

Pegan Lane resident Stephen Wardwell expressed the opinion that since the two properties (Berlin facility and Lookout Farm) were owned by different entities, the numbers had to be broken out. It seemed to him that the crops owned by the other owner couldn’t be counted toward the 50% rule. Mr. Wardwell also noted that it had been reported to the Board that the scenic stonewall was corrected, but it was recently taken out and that wall was again down.

Mr. Stern questioned if it were fair to say that the retail stand was on the same parcel of land as the farm or was it separate. Mr. Ritzenberg advised that the old Lookout Farm consisted of two parcels and it was the front parcel that includes the farmstand. It was the back parcel that was about half and half. There were three additional non APR parcels and then Mr. Marino acquired a series of additional parcels around Pegan Lane.

When discussion resumed, Mr. Ritzenberg referred to a diagram of the farm and described who owns what (Mr. Marino or Modern Continental). He noted that 99% of the sales of the farm occurred on Lot 28, and whether the parcel was owned by Mr. Marino or Modern Continental, it was controlled by the same person. Again Mr. Ritzenberg pointed out that the statutes say owned or leased, and if it was an issue going forward, a lease document can be issued if not already issued.

Mr. Stern responded that he would feel more comfortable getting the answer. If they were not owned by the same person, then maybe it can be cured going forward but maybe it can’t be cured going backward. Mr. Hughes pointed out that the Board was looking at the 50% rule because of a recommendation from the Conservation Commission from when the Board was asked to rule on the APR amendment for the bakery. A lot of what was being done now was to cure things going forward. When asked about the consequence for Lookout Farm not having a lease for the 50% rule, Mr. Ritzenberg responded that it would be a zoning enforcement action saying the farm was in violation.

Lookout Farm was going to provide the Town the first meeting in January with some report showing how the Farm stacked up in the previous year with the 50% rule. Mr. Ritzenberg again agreed to submit the report every January. Mr. Hughes then noted that the farm was to provide as built plans and video tape of the sewer lines. Mr. Ritzenberg responded that he didn’t know that that was for tonight’s discussion, and Mr. Hughes asked that he provide the information to Town Engineer Mark Coviello as soon as possible.

With respect to entertainment licenses, Mr. DeLuca advised that he spoke to Mr. Ritzenberg but didn’t have a chance to talk to Mr. Burke. He was aware of activities on the farm, some of which could be referred to as amusements, and was looking for the parties to start with a list of disputed activities and challenge the Board to conduct a fact based inquiry to determine whether those activities were in support of the agricultural interests. If so those activities may be exempt from license requirements and if not (agricultural based), the activities would be required to go through the licensing process. For example there was a rubber wheeled train in operation during U-pick. The train was used for a variety of reasons such as transporting people to the orchards and back and used for farm management purposes for loading product. That may have some strong influence on the Board as to whether it was strictly agricultural or some other purpose. He had a concern with some other forms of amusement like a moonwalk.

As to the APR amendment for the bakery, Mr. Hughes noted that the Department of Agriculture was not requiring an APR amendment for the bakery. Mr. DeLuca noted that contrary to his judgment, the Department of Agriculture feels that it is not a structural change that invokes the APR amendment. They (Department of Agriculture) found that a bakery was an agricultural pursuit and did not feel the APR was affected. That doesn’t change the need for amendment should the Board of Selectmen believe otherwise.

Mr. Ciccariello noted that the Board could withhold voting until the issue with the 51% rule was complete. Mr. DeLuca responded that the 51% was an ongoing obligation. In this particular matter (bakery), it was the Conservation Commission that made the recommendation that they (Conservation Commission) would give their consent to the bakery proposal conditioned upon the Board’s investigation and approval of the 51%. The 51% rule bears no relationship to the APR.

Mr. Hughes advised that there would be no discussion of this item that night, but he felt the Board should begin the process of what to do come June. Mr. Conley’s term was up as of June 30, 2002 and rather than wait for May, the Board should discuss how it wishes to proceed. The item would be put on the January 7th agenda for public discussion as to how the Board was going to address the end of Mr. Conley’s current term.

Mr. Ciccariello recalled that the last time the Board met with the DPW Director, he (Mr. Ciccariello) thought the DPW was trying to get away from easements across properties where the Town would be responsible for going and taking care of lines. Mr. Hughes pointed out that this pipe was the Town’s anyway. It was a Town storm drain and the Town would have to repair it anyway.

advertise the position tonight and appoint on January 7, the individual appointed would have to file papers with the Town Clerk on January 8th in order to run for a two year term. The Town Clerk wasn’t sure if the position could be left vacant and still listed on the ballot and she was checking with the State. He suggested that the Board go ahead and advertise for interviews on January 7th. The other members agreed.

Mr. Hughes advised that the Budget Planning Subcommittee met last week. Before the Board was a copy of the proposal Mr. Palmer sent out to the various department heads for making up the deficit. A similar memo went out to the schools suggesting that their (school) deficit was about $800,000. In view of the service cuts, lay offs and other policy issues affected by these cuts, Mr. Hughes noted that he discussed with Mr. Palmer and FinCom Chairman Frank Foss the possibility of the Board

Mr. McKinley inquired if at that time the Board would have sufficient insight into these numbers so the Board would know the impact of cutting $40,000 from Equipment Maintenance, etc. Mr. Hughes felt the Board would have that information, and added that he had invited Mr. Foss and any other members of the FinCom he (Mr. Foss) wanted to attend. The meeting was about issues such as does the Board want to lay off people in certain departments and how would that affect service, fees at the recycling center, trash fee.

Mr. Ciccariello reported that the School Committee was making the final appointments to the high school building committee that evening. An RFP has been sent out for architects and engineers, but there will be no action taken until the entire building committee is put together. They will probably start interviewing the 2nd or 3rd week of January.

Mr. Ball noted that Mr. Conley was advertising for a Deputy Town Administrator in the MetroWest Daily News, Boston Globe and Beacon and the window was going to close in mid-January. If that was the case and the MMA Beacon just comes out, Mr. Ball wondered about the efficiency of the Beacon. In private discussions Mr. Conley assured him that he would advertise out-of-state in some journal read by municipal managers, but it doesn’t appear as though he has done that. Mr. Ball also noted that in the December issue of the Beacon he saw that if you miss the deadline, the ad can get on the web site and he suggested that there be follow-up to be sure that that gets done.