Town of Natick - Board of Selectmen Minutes 8/5/02

The meeting was called to order by the Chairman Paul R. McKinley at 7:00 p.m.

PRESENT: Paul R. McKinley, John Ciccariello, Charles M. Hughes. Absent: Jeffrey A. Stern, Jay H. Ball

ALSO PRESENT: Philip Lemnios, Temporary Town Administrator; David DeLuca from Town Counsel’s Office; Donna Challis, Secretary;

WARRANTS: Payroll warrants were signed by the Board of Selectmen on August 5, 2002 in the amount of $739,201.68. This figure was included in total warrants signed by the Board of Selectmen of $2,100,015.93.

On a motion by Mr. Ciccariello, seconded by Mr. Hughes, the Board unanimously voted to approve the minutes of the May 20, 2002 meeting.

On a motion by Mr. Hughes, seconded by Mr. Ciccariello, the Board unanimously voted to approve the minutes of the May 21, 2002 meeting.

DAGMAR KLINGER, WABAN STREET: BLOCK PARTY

The Board unanimously voted to approve Dagmar Klinger’s request to close Waban Street on August 17, 2002 from 6:00-10:00 p.m. for a block party. The vote was taken on a motion by Mr. Hughes, seconded by Mr. Ciccariello.

STEPHEN GUILD: PERMIT TO WORK ON SIDEWALK

The Board was in receipt of a request from Stephen Guild to work on the public sidewalk at 2 Summer Street to install an access ramp.

There was a memo from Building Inspector Michael Melchiorri stating that the ramp had to be a handicapped ramp in order to receive relief from the zoning requirements. If the ramp were a loading ramp it would not meet the handicap regulations. He noted that the proposed ramp would be 58” wide and the distance from the face of the building to the property line was 56”.

Mr. McKinley noted that there was an opinion from Town Counsel that an easement for the two inches would have to go to Town Meeting, but the Board could give a license that would not require Town Meeting approval. However, if it were a loading ramp vs a handicapped ramp, a variance from the ZBA would be needed.

Mr. Guild told the Board that the owner of the property was delighted at the possibility of making the ramp handicapped accessible, but the problem remains of a couple of inches to do it. The ramp would be used to provide handicapped access to the building.

Attorney David DeLuca of Murphy, Hesse, Toomey & Lehane confirmed that the Board could grant a license where there was an anticipated conveyance of an easement. The license would be for a limited period of time in anticipation of a more permanent easement.

Mr. McKinley inquired as to what would happen if the Board granted a license, the ramp was constructed, and Town Meeting didn’t convey. Mr. DeLuca responded that there couldn’t be any going back on the extension and all parties needed to be cognizant of that possibility.

Mr. Ciccariello noted that he had had some discussion with Mr. Melchiorri late last week. Mr. Melchiorri had been under the understanding that this was going to be a handicapped ramp, and he suggested that the owner take the design and go to the Architectural Access Board for a variance so nothing would be needed from the Board. Normally the Access Board would grant relief in hardship cases, and he believed (Mr. Ciccariello) relief would be granted in this case. Mr. Ciccariello also noted that the Community Development Director Sarkis

STEPHEN GUILD: PERMIT TO WORK ON SIDEWALK (contd)

Sarkisian believed it to be an historic building and it would need to be reviewed by the Historic Commission.

Mr. Guild told the Board that he would speak to Mr. Wolf (owner of the Clark Block) about seeking a variance from the Architectural Access Board. Mr. Ciccariello suggested that he contact Mr. Melchiorri and see if Mr. Melchiorri was willing to give a letter supporting the waiver based on the hardship of the building.

Charter & By-Law Review Articles

Susan Salamoff spoke as the former Chair of the Charter Commission. She noted that last week she had attended a By-Law Review Committee public meeting relative to articles that might be placed on the warrant for Fall Town Meeting.

While there was no question that the Charter/Bylaw Review Committee was dedicated and had worked hard, she didn’t think that that in itself negated the rights of others to have a thorough legal review of the proposals. She felt that everyone was well served when a great number of changes were proposed, that the legislative process be accommodated so that each change received its just review.

She, therefore, requested the Board of Selectmen to call a special town meeting to address the more than forty articles/bylaw changes anticipated by the Bylaw/Charter Review Committee for the Fall Annual Town Meeting. The special town meeting should be held after there was sufficient review by Town Counsel as to the impact of the changes and the correctness of changes, and also that a public hearing be held for public input. The committee should make available the proposed changes in advance of such hearing.

Ms. Salamoff then referred to Section 7-6 entitled Periodic Review, Charter and Bylaws, Section 7-6(c) that said such review shall be conducted under the supervision of the town counsel, or, if town meeting so directed, by special counsel retained for that purpose. A report, with recommendations, shall be submitted to the town meeting

not more than ten months following the date such committee was appointed.

Because of this situation it became clear that the way we put together the charter document might not be as it was intended. Ms. Salamoff asked that the Selectmen note Section 7-7 Definitions, Section 7-7 (a) Charter – the word ‘charter’ shall mean this charter and any amendments to it which may hereafter be adopted. In her opinion that meant that the original charter, the court judgment of 1980, and all amendments should be combined in one document.

Mr. McKinley was unclear as to what Ms. Salamoff meant as he thought the charter the Town was functioning under reflected the original charter as amended. Ms. Salamoff responded that she would have thought so, but she didn’t find notice any where that the court judgments that impact the treatment of the Leonard Morse Hospital and the Morse Institute Library were shown anywhere beyond the original document that went out to the voters in March 1980. The published document after that reflected court judgments and the next printed document showed a court case Paul Walker vs Town of Natick that said the management responsibilities of those institutions were excluded from the Town Charter. Had the original court judgments been in the body of the document, the committee may not have raised it.

Ms. Salamoff clarified that there was an original document passed by the voters and then amended by a court case excluding provisions relative to affecting the management of the Leonard Morse Hospital and the library and subsequent Charter Review Committees have put amendments to the Town Meeting that were voted by the voters and those amendments have been added as notations in the back of this. She was asking for consideration to go back to a document that represents the original charter and subsequent changes. She noted that Tom Groux (former Acting Town Administrator) had advised that, but she felt that legal advice would be needed.

Mr. McKinley told Ms. Salamoff that he wouldn’t want to do anything until after speaking with the Charter Review Committee.

CITIZENS CONCERNS (contd)

Mr. Hughes noted that the warrant closes on August 16, and the Board wasn’t meeting again until August 19th. He didn’t believe Town Counsel had been involved in reviewing the numerous by-law changes.

Mr. DeLuca noted that be became aware of this issue this past week while Town Counsel John Flynn was away and he would presume that Mr. Flynn would be in a position to review once the committee did its work to develop some changes and would review the changes to see that they weren’t inconsistent with the Charter or any state law.

Mr. McKinley pointed out that the Board couldn’t order the committee not to place an article on the warrant. Perhaps the Board should invite the Charter & ByLaw Review Committee to make a presentation on August 19th and gain some insight into their intent.

Ms. Salamoff told the Board that at every hearing she attended she bought to the committee’s attention the requirement that Town Counsel or special counsel had to be involved in the articles themselves. If

they weren’t reviewed before they became articles, then you have intents. If counsel reviews them prior to submission, he makes sure that the consistencies were clear. There were some department changes, adjustments with the Town Administrator, changes with words or sentences that may or may not have an impact. When the original Charter was written, every step of the way there was discussion of the intent and the impact and whether the By-laws and Charter were consistent. She felt this was significant and the process of not including Town Counsel prior to submitting articles was against the intent.

It was Mr. Ciccariello’s hope that the ByLaw Committee would come to the Board of Selectmen and share their thoughts on what they wanted to do. He wasn’t keen on a special town meeting because of the cost. Until the Board knew what was going on, he would prefer not to vote on a special town meeting.

Mr. Hughes noted that Ms. Salamoff’s request for a special within the annual wouldn’t be an additional cost other than advertising. There may be a need for a special any way, although he was not prepared to vote to call a special this evening. He would like to send a letter to the By-Law Review Committee requesting that before they submit the articles to the warrant that the articles be submitted to Town Counsel.

Former Charter Commission member Milton Gilbert told the Board that he attending the Charter & By-Law Review Committee’s meeting last Thursday and they have 23 pages of articles. He felt the need for Town Counsel to sit with the committee on their proposals was very clear from some of their proposals. They (By-Law Review Committee) proposed to change the duties of the constable and when he (Mr. Gilbert) asked why, he was told that those duties hadn’t been carried out so they should be eliminated. There was no effort to seek state statute or case law. He felt these proposed articles deserved a lot more detail and thought they should be put off until spring.

Mr. McKinley agreed with Mr. Hughes’ suggestion to send a letter to the By-Law Review Committee Chairman requesting him to ask Town Counsel to review the articles before submitting them to the warrant and to ask the Chairman to attend the Selectmen’s August 19th meeting. The other members of the Board concurred.

Sassamon Trace Golf Course

Robert Raisch inquired if any action had been taken on the request for funds being released from free cash for the golf course.

Mr. McKinley advised that the Board had heard a report on the golf course at the last meeting and to his knowledge there was no request for any money from free cash.

Mr. Lemnios added that the Golf Course Oversight Committee spoke to the Board of Selectmen and the numbers talked about at that meeting were projections, but it was recognized that it was too early in the process to assume those projections would be reality. It was agreed that everyone would monitor the finances and if there were a deficit the responsibility would fall to the Town.

CITIZENS CONCERNS (contd)

In response to Mr. Raisch’s interpretation that the Town had no obligation to fund the deficit, Mr. Lemnios responded that the responsibility for the financial health of that operation ultimately falls to the Town.

Mr. Raisch then inquired if all Town agencies had been asked to put on as an austere program as they can. He noted that Mr. Sisitsky was asking for volunteers to help with certain areas that have been neglected. Last week he (Mr. Raisch) saw a crew on Saturday cleaning up Middlesex Path and to him it was needed, but overtime was an expensive venue.

While he couldn’t speak to the overtime, Mr. McKinley assured Mr. Raisch that all Town departments were on a very austere budget. Mr. Lemnios was working aggressively and has spoken about ways to get through the next fiscal year.

PUBLIC HEARING: NSTAR ELECTRIC & VERIZON: WHITTIER ROAD EXT; ONE (1) POLE; ONE (1) ANCHOR GUY

Mr. Ciccariello reported that he spoke with NSTAR representative Christine Cosby and she advised that there was a meeting with Mr. Lemnios and other departments to discuss double poles that never get removed. He explained his concern to Ms. Cosby and expressed the importance to get the second pole removed.

With respect to this petition, Mr. Ciccariello noted that none of this work was on private property including the guy wire and anchor.

Mr. Hughes moved approval. Seconded by Mr. Ciccariello and unanimously voted.

INTERVIEW FOR REPUBLICAN BOARD OF REGISTRAR

As only three members of the Board were present, Mr. Hughes questioned if a 2-1 vote was sufficient to elect someone. Mr. DeLuca advised that there was a quorum with the majority of the Board present and a 2-1 vote should carry the day.

Ms. Eaton told the Board that she had lived in Natick for many years and did a lot of volunteer work. She had worked at the polls for many years and her husband was on the Board of Registrars.

Ms. Lambert stated that she had lived in Natick for 18 years and from 1965 until a year ago had worked at the polls. She had been the Registrar of Probate for Middlesex County and she was a notary public as well as a Justice of the Peace.

Mr. Schlemmer noted that he had been born and raised in Natick. He would like to help get more people involved and registered to vote and get the poll workers organized.

By paper ballot, Ms. Eaton, Ms. Lambert and Mr. Schlemmer each received one vote. The votes were as follows:

Mr. McKinley voted for Ms. Lambert

Mr. Ciccariello voted for Mr. Schlemmer

Mr. Hughes voted for Ms. Eaton

As each member of the Board indicated that he was not inclined to change his vote, Mr. Hughes moved to table to August 19 and ask the candidates to return with a full Board present. Seconded by Mr. Ciccariello and unanimously voted.

GREG CHALMERS, HOPE WORLDWIDE: TWO ONE DAY HAWKER’S & PEDLER’S LICENSE

Greg Chalmers on behalf of Hope Worldwide had submitted an application for a two-day Hawker’s & Pedler’s license at Sam’s Club to sell hot dogs, sodas, etc as a fund raiser.

A member of the audience requested an opportunity to address the Board and although not a public hearing, Mr. McKinley allowed the resident to speak.

Stephen Guild told the board that Hope Worldwide was founded by the International Church of Christ. It was a mind control religious cult.

GREG CHALMERS, HOPE WORLDWIDE: TWO ONE DAY HAWKER’S & PEDLER’S LICENSE (contd)

He recently had his daughter extracted from this group at great expense and he thought it was a terrible idea giving them access to other kids. He pleaded with the Board not to grant them this license and provide access to other children.

Mr. McKinley inquired if Project Hope was part of the church as claimed by Mr. Guild. Michael VanAuken responded that he was a minister and it was true that Hope Worldwide was founded by the International Church of Christ, but he was quite confident that they did not share the same board. Hope Worldwide operates all over the world and in New England services the poor, elderly and the children. They support the Framingham food pantry and worked at the Coolidge House. Obviously Mr. Guild had a bad experience but he (Mr. VanAuken) would deny it being a cult with mind control. The church was a separate incorporation although they were certainly very connected.

Mr. Ciccariello inquired if the organization had done any of the fund raisers in other communities in the MetroWest, and Mr. VanAuken responded that they did fund raising. In Hopkinton and Medway they had permission from the Town to do fund raisers and in a number of towns in MetroWest they collected money at red lights. In Waltham they had car washes at a private location.

Mr. McKinley questioned if this (at Sam’s Club) was strictly a fund raiser. Mr. VanAuken assured the Board that it was strictly a fundraiser and that he would be there on Saturday. When asked if the organization would be recruiting members to join the church, Mr. VanAuken’s response was, ‘absolutely not’. Mr. McKinley affirmed that the organization would only be selling hot dogs and hamburgers and again Mr. VanAuken’s response was, ‘yes’, adding that when they were doing something with Hope Worldwide, they were doing something with Hope Worldwide and it was an inappropriate format to show their faith.

Mr. Ciccariello asked about the necessity of a Board of Health license, and was told by Ms. Challis that one was needed and Mr. Chalmers had applied to the Health Department.

Assuming this was a legitimate organization, and it appeared to be so, Mr. McKinley questioned if the Board could deny their application. Mr. DeLuca responded that it would be perilous to do so because of a religious affiliation and he would caution against it.

Mr. Ciccariello, seconded by Mr. Hughes, moved to grant Greg Chalmers on behalf of Hope Worldwide a two-day hawker’s & pedler’s license to sell hamburgers, hot dogs, etc as a fund raiser at Sam’s Club on August 17 and September 7, 2002 conditioned upon: a) A letter from Sam’s Club saying they were allowing the organization to hold the fund raiser on those two dates and b) approval from the Board of Health. Mr. McKinley proposed and both the maker and seconder of the motion agreed to add to the conditions c) the applicant be required to stipulate in writing that the purpose was strictly a fundraiser and in no way a recruiting effort. Unanimously voted.

CONTINUE PUBLIC HEARING: ABOVE-GROUND STORAGE OF FLAMMABLE MATERIAL: VALVOLINE

Before the Board was a petition from Henley Enterprises, Inc. d/b/a Valvoline for the aboveground storage of flammable material on property located at 891 Worcester Road. Representing Valvoline were the owner Donald Smith and Attorney Richard Glaser.

Mr. McKinley recalled that the application had been tabled at the last meeting to give the Town’s Environmental Compliance Officer Robert Bois an opportunity to review the application. In his report to the Board, Mr. Bois recommended the installation of a polyurethane membrane in the tank room.

Mr. Hughes asked if Valvoline was willing to put in writing the installation of a polyurethane membrane, and Mr. Smith responded that he had agreed to put in the full membrane system. Mr. Glaser pointed out that the Board could either receive a letter or make it a condition of the license.

Mr. Hughes moved to close the public hearing. Seconded by Mr. Ciccariello and unanimously voted.

CONTINUE PUBLIC HEARING: ABOVE-GROUND STORAGE OF FLAMMABLE MATERIAL: VALVOLINE (contd)

Mr. McKinley moved to grant Henley Enterprises, Inc. d/b/a Valvoline a license for the aboveground storage of flammable material at 891 Worcester Street:

1,000 (2-500 gallons) waste oil

2,000 (4-500 gallons) motor oil

500 (1-500 gallons) automatic transmission oil

32 (2-16 gallons) grease dispenser

250 (1-250 gallons) window wash

for a total of 3,814 in the bulk storage tank room

In addition, miscellaneous storage of 1-250 gallon new antifreeze container and one 1-250 gallon used antifreeze container.

The license to be conditioned upon the installation of a polyurethane membrane in the bulk storage tank room. Seconded by Mr. Hughes and unanimously voted.

PUBLIC HEARING: APPLICATION FOR COMMON VICTUALER’S WINE & MALT LICENSE: A.T. PAN CORPORATION d/b/a SHANGHAI TOKYO

Before the Board was an application of a common victualer’s wine & malt license from A.T. Pan Corporation d/b/a Shanghai Tokyo for premises at 54 East Central Street.

Representing Shanghai Tokyo was the owner/manger Yun G. Pan (Tony Pan). Mr. Pan told the Board that he had been operating the restaurant at this location for the past three months and 30% of his customers ask for beer & wine. He needs to increase his restaurant’s business.

Mr. Hughes pointed out that the applicant had answered that it was a corporation, but didn’t indicate any shares. In addition the applicant indicated that it was an individual and a partnership, but it can’t be all three. Mr. Hughes also highlighted the discrepancy in the date the corporation was qualified to do business. He further noted that the application indicated there was no construction necessary, but the floor plans were different from the initial floor plan approved with the common victualer’s license. The original floor plan didn’t have 50 seats and it looked like construction was necessary to get those seats.

Mr. Pan confirmed that the old floor plan had 45 seats and the new one had 50 seats.

With regard to the ownership issue, Mr. McKinley inquired if Mr. Pan was represented by counsel. Mr. Pan advised that he was not. Mr. McKinley responded that the things spotted in the application appeared to result from some confusion and he didn’t think it affected Mr. Pan’s qualification to obtain a license, but as answered they were not correct. He felt the Board would table the application and the advice would be for Mr. Pan to hire a lawyer who could go through the application and make sure the questions were answered properly. It would make it easier to process and would make sure that the business was protected.

Mr. Hughes noted that if the Board were to table, Mr. Pan could submit a new application or amend it. Mr. DeLuca suggested that it would probably be reasonable to withdraw and then resubmit it.

Mr. Ciccariello noted that he didn’t see anything in the application relative to alcohol training. When asked if he was ware of the policy regarding training, Mr. Pan replied that he was and he was registered to take Mike Marcantonio’s class tomorrow.

Mr. Pan told the Board that he would talk to his attorney.

A motion was made by Mr. Hughes, seconded by Mr. Ciccariello, and unanimously voted to table pending Mr. Pan’s submission of a revised application.

RCN: MODIFICATION OF LICENSE

Mr. Hughes moved to table to August 19 citing Mr. Ball’s interest in the matter. Seconded by Mr. Ciccariello and unanimously voted.

OPEN SPACE ADVISORY COMMITTEE: ARTHUR/MORENCY WOODS PROPERTY

Representing the Open Space Advisory Committee were the Chairman Stephen Gartrell and Irene DelBono.

OPEN SPACE ADVISORY COMMITTEE: ARTHUR/MORENCY WOODS PROPERTY (contd)

Mr. Gartrell explained that they were there to discuss the Framingham owned land in West Natick now being called the Arthur/Morency Woods property. At the Framingham Board of Selectmen meeting a number of possibilities were put forth, but the Framingham Open Space Committee asked that the property be in their open space plan and they (Framingham Selectmen) agreed.

Mr. Gartrell advised that the Framingham Open Space Committee came to the Natick meeting and agreed to work together in a joint working group made up with residents, the Open Space Committees, a member of the Conservation Commission and if willing a member of the Board of Selectmen. To apply for open space funding, the application was due by September 6th.

Irene DelBono reported that the joint working group was exploring grant availability on an expedited schedule because the applications were due September 6th. They (joint committee) were gathering facts and figures to present to both boards including options for preserving and ownership options that may include a potential sale. The joint committee will ask the Board of Selectmen to review the application and a week later ask them to sign the application if so inclined.

Ms. DelBono emphasized that the grant application didn’t commit the Town to a tremendous amount. The joint committee was trying to find out if sweat equity could be used to see what could be done for the least amount of money. Framingham seems to want to preserve but wants to find out its options. The committee hoped to be able to present the Board with some facts and figures so the Board can decide if it wants to continue exploring the options.

Mr. McKinley stated that he was interested but had some questions. He was at the Framingham meeting and since then he has had some conversations with Framingham officials about this. He inquired as to the purpose of this grant and legally who was applying given that it was Framingham land.

Ms. DelBono responded that it was her understanding that each Town could individually apply for grant money. The limit last year was $250,000 per Town for the development of the land. It couldn’t be used to purchase the land, but it could be used to develop trails, management plans. Because the committees were just exploring the full amount of options under the grant, Ms. DelBono said she couldn’t tell the Board as much as she would like, but she would have more answers when they came back with the grant application.

Mr. McKinley pointed out that all of this required concurrence with the Framingham Board of Selectmen. Ms. DelBono’s response was, ‘absolutely’; adding that both boards would have to be on board. If one board decided not to participate, then the remaining will explore options as a single Town.

It was Mr. Lemnios’ understanding that Natick’s match would be about 38%, but Ms. DelBono advised that she thought the match was up to 50% with land and water conservation. Given that the Town didn’t have ownership, Mr. Lemnios asked if the lead agency applying for the grant would be Framingham. Mr. Gartrell replied that it was his

understanding that both towns could apply jointly and get more points as a regional effort.

Mr. Hughes inquired if this would be one $250,000 grant. Mr. Gartrell advised that the grant could be up to $500,000 – it didn’t have to be that much but there was an option to do that.

Mr. Hughes then asked if, by the time of the grant application, the Board would know that Framingham would only use the property for what the grant would pay for. Mr. Gartrell hoped that that would be the case, but said he couldn’t answer that tonight. It may be possible that they could select an ownership option, but at least the grant would be in place.

Mr. McKinley was not all that optimistic, but felt there was no harm in trying. Ms. DelBono concurred. Mr. Hughes, however, noted that there might be harm in trying. There were other pieces of property in Town for which we were looking for a similar grant. He knew that Community Development Director Sarkis Sarkisian was interested in getting a

OPEN SPACE ADVISORY COMMITTEE: ARTHUR/MORENCY WOODS PROPERTY (contd)

similar grant for work at the gravel pit and if the Town got this grant (Arthur/Morency Woods), it may not get that one.

Mr. Lemnios reported that he met with Joel Lerner, Secretary DEM, and it may be more advantageous for the Town to apply for a later round for the gravel pit. He added that these grants were very competitive and Mr. Lerner was seeking applications with all the lose ends tied up. He didn’t know that there was harm in trying, but there was harm in getting the grant and not being able to execute on it.

In response to a comment from Mr. Hughes on the Town’s 38% match, Mr. Lemnios noted that where the Town match would come from would have to be identified. On the gravel pit, Mr. Lerner indicated that he would not count labor and effort the DPW spent putting into prepping. Plus the legal issues would need to be surmounted trying to execute on property the Town didn’t own.

Mr. McKinley didn’t think the committee was seriously thinking of applying for $250,000, and Mr. Gartrell confirmed that he didn’t think that much would be needed. He thought $100,000 would be sufficient. Mr. McKinley then commented that one thing that made a grant attractive was the credibility of the grant and it wasn’t likely that the grant would be anywhere near the $250,000.

Mr. Hughes questioned if the grant application would limit what the Town can do with the land after it was done – did the grant decide on the use of the land. If just going to make trails, has it been decided that there would be no recreational use. Mr. Gartrell advised that the grant application wouldn’t limit the use for recreation.

Mr. McKinley noted that the application deadline was September 6 and unless the committee was ready to have it voted by the Selectmen on August 19, the Board wouldn’t be meeting again until September 9. Mr. Gartrell felt it was a tall order to be ready by August 19th, but they wanted to get some sense of where the Board was coming from and it sounded like the committee needed to do a little more homework.

Mr. Gartrell noted that he was also looking to get the Board’s endorsement of the group in terms of working with Framingham in developing an overall plan and program for this property understanding that the ultimate decision in terms of who controls was Framingham’s. The Open Space Committee’s ultimate goal was to preserve the land.

In terms of his discussion with Framingham, Mr. McKinley advised that Framingham concurred that the land at this moment was in the hands of the Natick and the Framingham Open Space Committees, but the final decision was to be made by the Framingham Board of Selectmen. The Framingham Board of Selectmen was waiting to hear back from their Open Space Committee. There were several different points of view over there on what to do with it and he (Mr. McKinley) thought it could affect whether or not applying for this grant was a possibility. If the Open Space Committee wanted to go forward, Mr. McKinley thought the Board would do its best to support, but the committee would have to be ready by August 19.

With respect to the Open Space Master Plan, Mr. Gartrell reported that he had received conditional approval subject to submission of final documents, which means that the Town was eligible to apply for these types of grants. The Town can’t receive money until it was complete and he expected to file the final documents by the end of the month.

HEARING: WESTBOROUGH BEVERAGE CORPORATION D/B/A SAM’S CLUB: ALLEGED LICENSE VIOLATION

Westborough Beverage Corporation had been notified of a hearing pursuant to Chapter 138, s23, 34 and 64 of the Massachusetts General Laws to consider whether to modify, suspend, revoke or cancel the liquor license issued to Westborough Beverage Corporation, 1225 Worcester Street, whether to modify, suspend, revoke or cancel the liquor license. The reason for the hearing was that Westborough Beverage had no approved manager for the premises, and corporate officers and directors who have not been approved.

Representing Westborough Beverage Corporation was Attorney Brian Levey of Bowditch & Dewey. Mr. Levey explained that he was hoping the Board would approve the manager change and that the proposed manager, Derrick

HEARING: WESTBOROUGH BEVERAGE CORPORATION D/B/A SAM’S CLUB: ALLEGED LICENSE VIOLATION (contd

Stryer was present tonight. An application had been submitted for the change in manager and change in corporate officers. The Board had wanted to hear from Mr. Stryer on July 22, and he apologized for the misunderstanding on Mr. Stryer’s part. Mr. Stryer understood that he could come on either July 22 or August 5 and didn’t recognize that he had to be here on July 22.

Mr. Levey stressed that one important point was that at all times there has been a certified and approved manager of record at the store. The public safety in that respect has been protected. There were some snafus with the paperwork, but it had to do with getting some releases from the Department of Revenue. Again Mr. Levey stressed that at all times Sam’s had obtained a manager of record on site who was certified and trained. He hoped the Board would consider the request for the change in manager and corporate officers.

Mr. McKinley noted that tonight’s hearing was to review the status of the license and the manager change was not on the agenda.

Mr. Hughes asked if the Board could consider the manager change and was told by Mr. DeLuca that without the notice it could not be considered. It was his understanding that the change in manager was noticed for July 22nd and there were several telephone calls to make sure of the appearance of the party that night. There was no hearing held that night and it was his understanding that the matter came off the agenda and in response to the non-appearance, there was a request for a hearing tonight on the issue of suspension, modification, revocation of the license or suitable action. That was what was before the Board tonight and that was the only thing that should be heard tonight. The manager issue could be heard at some other time after adequate public notice of it being revisited.

Mr. Levey believed that this was just a name change and the Board could consider the change tonight, but Mr. DeLuca felt it was just the opposite. They could consider action appropriate to the hearing tonight and if they wanted to delay action on that matter until a later time when the manager issue was properly noticed, that could be done. However, the Board had to understand that unless there was some verification of the tax matter being resolved, there could be no resolution of the manager change.

Mr. Levey responded that he had discussed it several times with his client and although they were not able to get a document from the Department of Revenue that confirmed a resolution of the matter, in telephone conversations with the DOR, they (client) were advised that the issue had been resolved. Mr. DeLuca noted that the last correspondence the Town had from the ABCC was June 5 and it was a disapproval because of a tax issue. Mr. Levey reiterated that he had been told that the matter was resolved with the DOR, but they (client) couldn’t get a piece of paper.

Referring to Mr. Levey’s statement that at all times there was an approved manager on the premises, Mr. DeLuca noted that that couldn’t be true. Unless and until the ABCC approved the change, and as of June 5 there was a disapproval, there was not an approved manager. Mr. Levey explained that he only meant that there was someone who was certified under the Mass certification and Sam’s in-house training. He acknowledged that that person had not been blessed by the ABCC.

Mr. McKinley questioned whom Sam’s Club thought was managing the store now and assumed it was Mr. Stryer who was not approved. He also didn’t know whom Sam’s Club thought was managing the store before, but that individual was never approved. Sam’s has been operating without an approved manager. Mr. Levey acknowledged that they had been operating without a manager approved by the Board and the ABCC. When they (Sam’s) moved from Mr. Soares to Mr. O’Brien that was held in abeyance because of a tax issue and in the interim Mr. O’Brien went to another store. They went to replace Mr. O’Brien and learned that that individual resided in New Hampshire. Mr. Stryer was in Massachusetts and was proposed to be the manager of record and his application was filed with the state within 30 days from Mr. O’Brien leaving and a few days later it was filed with the Town. While he was not disagreeing with what Mr. McKinley was saying, there had been a confluence of nasty events.

HEARING: WESTBOROUGH BEVERAGE CORPORATION D/B/A SAM’S CLUB: ALLEGED LICENSE VIOLATION (contd)

Mr. Hughes commented that it looked like someone was not paying attention. The DOR problem wasn’t new. It went back to 1999. In March 2001 there was a DOR problem and in December 2001 there was a DOR problem. Managers were going in and out and nobody was approved by the Board or the ABCC.

Mr. Levey responded that it might not be a Sam’s Club problem, but a DOR problem. His client told him that they made repeated efforts to resolve what was probably a $200 problem. He thought his client was paying attention and had tried to resolve.

Mr. Hughes countered that it was not just the DOR. The people weren’t approved. Somebody leaves and somebody doesn’t show when a transfer was being done.

Mr. McKinley added that of all the licenses granted the one the Board consistently had problems with was Sam’s Club time after time. This was the one licensee chasing the dog getting a manager in place after the fact. Sam’s Club wasn’t getting the job done. If it was a $200 problem, Mr. McKinley suggested that maybe Sam’s should spend the $200 to pay Mr. Levey to go to the DOR and get it resolved. His (Mr. McKinley) problem was the liability issue that the Board of Selectmen has allowed Sam’s to do business selling liquor when they weren’t strictly adhering to the requirements of the license and that concerned him. He questioned if the Town was at risk and should Sam’s be allowed to continue to operate until it was resolved.

Mr. DeLuca advised that Section 23 of Chapter 138 gave the Board the authority to take action where there were clear facts of a violation. An approved manager under Section 15 of Chapter 138 is required and that includes approval by the Board and the ABCC. The undisputed fact was that there has not been an approved manager on the premises since the last time it came before the Board which January 2002.

When asked if he concurred with Mr. DeLuca’s statement, Mr. Levey responded that he was not going to concede that his client was violating the liquor laws. The petition was hung up on the tax issues for many months. He couldn’t dispute that there was no approved manager in place, but for the fact that Sam’s can’t resolve a $200 DOR issue. He understood what the Board was saying and obviously the Board could take some action tonight to go forward.

Mr. Ciccariello noted that the Board didn’t know if this was a $200 tax item. It would seem to him that if Sam’s wanted to resolve the DOR issue, they would have had their attorney running around quickly to resolve it. Instead the Board was getting the excuse that it was the DOR that was not responding. There was nothing from either party saying it was resolved or even from Sam’s saying they sent the DOR a check in the amount of $200 for payment of this overdue tax. Since the Board didn’t have that information, he believed that Sam’s was in violation and to get their attention the Board needs to impose a suspension and get it resolved once and for all. Perhaps the way to get it resolved would be to suspend the license until the DOR confirms that the issue was settled and there was a proper application for a new manager.

Mr. Hughes asked if Sam’s could operate without an approved manager, and Mr. DeLuca responded that to do that they would be in violation.

Mr. Levey advised that he had a copy of a letter dated August 2001 enclosing a check for $226.00 – that was the magnitude of the problem. His client has said that in most recent conversations with the DOR there was no tax problem.

It was Mr. McKinley’s belief that the Board didn’t have a lot of choice. Sam’s was operating without a legally approved manager. While he was empathetic to an ongoing business, as the owner of a business that gets swamped with licenses and permits, he knew you had to do what you had to do to get everything in order and approved. He didn’t believe the powers that be in Sam’s home office have taken this matter seriously enough and he would be in favor of suspending until it was resolved cleanly and fully which meant a clean bill of health from the DOR in writing. Then the Board could do a hearing for a new manager and he presumed it would get approved by the ABCC. Mr. McKinley also

HEARING: WESTBOROUGH BEVERAGE CORPORATION D/B/A SAM’S CLUB: ALLEGED LICENSE VIOLATION (contd)

stressed that the moment there was a manager change, the Board wanted to now about it. The Board had tried very hard to be gracious and accommodating with Sam’s, but on the advice of counsel Sam’s was clearly operating here over the line. He didn’t think there was a choice but to suspend.

Mr. Ciccariello concurred.

Mr. Hughes noted that Mr. DeLuca had indicated that the Board could delay taking action. They (Sam’s) could be found in violation for a period of time to see if they get in compliance. Mr. DeLuca acknowledged that that was an option, adding that Section 23 gave a menu of choices and the Board could delay taking action on tonight’s hearing. Action could be tabled until a specified date presuming something was going to happen, but in the meantime the Board would have to understand that if this retail establishment continued to operate, that they were doing so without an approved manager which was in violation of the statutes.

Mr. Levey reminded the Board that in the situation of an unlawful sale to a minor, the Board’s remedy was a two-day suspension of the license. He noted that he was not challenging the Board’s authority, but would submit that Sam’s would be looking at a 30-60 day suspension until there was a hearing in front of this Board and it gets before the ABCC. He requested that the Board give Sam’s 10 or 20 days and say if they don’t have it done by then, that a suspension will be considered after that point. To whack Sam’s with a 30-45 day suspension because of a paperwork snafu was unfair.

If the Board was going to consider doing that (what Mr. Levey suggested), Mr. Hughes said he would want to continue the hearing to see what if any penalty he was prepared to vote on for non-compliance up to this date.

Assuming Sam’s was in violation now, Mr. Ciccariello inquired as to what issues the Board would have to deal with if an incident were to occur. Mr. DeLuca replied that if the incident related to the absence

of a qualified approved manager on the premises, it put the Town in jeopardy if it was claimed that the Town was aware of it and was in a position of doing something.

Mr. Hughes moved to suspend Westborough Beverage Corporation’s all alcoholic package store license to August 19, 2002. Seconded by Mr. Ciccariello. After some discussion the motion was amended by the maker and the seconder to suspend the license to August 12, 2002. Unanimously voted.

Speaking to the motion, Mr. Hughes clarified that the suspension to August 19th assumed that Sam’s would be before the Board on the 19th with the paperwork done. If Mr. Levey says the DOR has cleared it up, he (Mr. Hughes) was willing to take the risk with the ABCC, but there should be an application for a new manager, change in corporate officers ready to go and someone here.

Mr. Levey advised that the applications were filed and ready to go.

Mr. Hughes continued that he was not comfortable leaving the Town out on a limb knowing Sam’s was in violation. Mr. Levey countered that there was a trained manager and he couldn’t see an issue that was going to come up due to the lack of paperwork. To suspend the license at this point seemed an incredibly severe remedy and he didn’t know when it would get in front of the ABCC.

Mr. McKinley advised that the Board was not requiring it to go before the ABCC (before lifting the suspension). Mr. Hughes clarified that he presumed the Board would grant the change in manager and officers and directors and as he understood it, Sam’s could operate and the paperwork would have to sent to the ABCC, but the suspension was over because Sam’s would have done everything the Board wished them to do.

To Mr. Levey’s comment that he didn’t know if a two week suspension for paperwork was precedented, Mr. McKinley responded that the two weeks was not a punishment as much as making sure the Town was not exposed to any undue liability because Westborough Beverage was in violation of

HEARING: WESTBOROUGH BEVERAGE CORPORATION D/B/A SAM’S CLUB: ALLEGED LICENSE VIOLATION (contd)

its license. He thought the Board was going to require a written document from the DOR stipulating there was no outstanding tax liability, but Mr. Hughes noted that he didn’t make that part of the motion since the Board didn’t require that of any other applicants.

Mr. Levey inquired as to the possibility of having a hearing next week. Mr. McKinley asked if Mr. Levey was prepared to have all the paperwork ready by next Monday, and Mr. Levey replied that the paperwork was all here and filed. It was noted that Mr. Stern would still be away, but Mr. Ball would most likely be able to attend. Mr. Hughes stated that he was willing to be here next week, and Mr. Ciccariello advised that he too could make the meeting if the agenda was limited to this one item.

A motion was made by Mr. Hughes, seconded by Mr. Ciccariello, to schedule a meeting for Monday, August 12, 2002, to hear the application from Westborough Beverage Corporation for a change in manager, officers & directors. Unanimously voted.

FALL TOWN MEETING ARTICLES

On a motion by Mr. Hughes, seconded by Mr. Ciccariello, the Board unanimously voted to sponsor an article for an inter-municipal agreement with Wellesley and an article for a home rule petition to allow Natick to lien Wellesley residents for payment of sewer services.

On a motion by Mr. Hughes, seconded by Mr. Ciccariello, the Board unanimously voted to sponsor an article seeking authorization to acquire state surplus property on Speen Street. Unanimously voted.

On a motion by Mr. Hughes, seconded by Mr. Ciccariello, the Board unanimously voted to sponsor an article to accept a façade easement from TCAN for the 12 Summer Street property.

Mr. Hughes questioned if Town Meeting approval was needed to accept the easement, and Mr. DeLuca responded that it was his understanding that any interest in property required Town Meeting approval.

Mr. Hughes recalled that there had been some discussion in regard to Eliot School and while he was not sure anything would come of it, he asked that an article be put on the warrant authorizing the Board to sell or otherwise dispose of the property. Mr. McKinley asked if anything would be needed to transfer the private property across the street. From discussions with Town Counsel, Mr. Hughes didn’t believe so, but he would defer to Mr. Flynn’s judgment. Without formal vote the Board agreed to put a placeholder on the warrant for the Eliot School.

Mr. Lemnios confirmed as correct Mr. Hughes’ understanding that because it didn’t make the last Town Meeting, nothing was needed on the early retirement bill. It was solely up to the Board of Selectmen.

LICENSE AGREEMENT: WELLESLEY SEWER TIE IN

Mr. McKinley noted that the license before the Board was for one particular piece of property. Mr. Stern had an issue with some of the language from the original draft, and he (Mr. McKinley) presumed that that had been resolved. Mr. Lemnios advised that the language was resolved and noted that this was a two-year license.

Mr. Hughes asked about recording, and Mr. DeLuca advised that Town Counsel’s office would do the recording.

Mr. Hughes suggested that a signature line for Mr. Callaghan be added to the license agreement. Mr. Ciccariello questioned if Mr. Callaghan was the only owner of the property, and was told by Mr. DeLuca that that was what was represented to Town Counsel but a title search was not done to confirm that. Mr. DeLuca suggested adding some language whereby Mr. Callaghan confirmed that the representations made in the agreement were true and accurate to the best of his knowledge.

Mr. Hughes moved approval of the license agreement between the Town of Natick and Mr. Callaghan of River Street, Wellesley for Mr. Callaghan to tie into the Natick sewer system. Seconded by Mr. Ciccariello and unanimously voted.

BUDGET PLANNING SUBCOMMITTEE

Mr. Hughes reported that he had spoken with Finance Director Robert Palmer concerning the impact of the state budget that was just passed and Mr. Palmer indicated that Natick’s loss was somewhere in the neighborhood of $200,000. At this point there were no plans to revisit the budget at the Fall Town Meeting. The next meeting of the Budget Planning Subcommittee was scheduled for August 14th.

Mr. McKinley asked about projections for next year’s budget, but Mr. Hughes had none. He did, however, note that what was before the subcommittee was everything being level funded and that came out to between a $2-2.5 million shortfall depending on labor contracts and how much pay-as-you-throw raised.

SELECTMEN’S CONCERNS

Eastern Partners Bond Cancellation

The Board was in receipt of a release of bond notice canceling the Eastern Partners bond, and Mr. Hughes inquired as to which development it dealt with and if the Planning Board had been notified. He would like to know that the performance had been complied with. Mr. Lemnios responded that he would check it out.

Mr. Ciccariello asked that Andy Frankenfield’s letter concerning his water bill for 1 Abbott Road be referred to Mr. Sisitsky for some feedback. Mr. McKinley suspected that this was another case where at the closing the official meter was read and suggested that Mr. Palmer write a letter.

Volunteer Recognition Brunch

Mr. McKinley reminded the other members that the Board had volunteered to cook for the Senior Center recognition brunch on October 5, 2002.

Early Retirement Bill

Mr. McKinley requested that a letter be sent to the union reps who addressed the Board on the early retirement bill thanking them for taking the time to share their thoughts and letting them know that the Board will continue to investigate it and keep them informed.

The meeting was adjourned at 9:35 p.m.

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John Ciccariello, Clerk