Shutesbury Board of Selectmen April 1, 2008 Meeting Minutes Members present: Chairman Rebecca “Becky” Torres and Ralph Armstrong. Absent: Debra Pichanick who is on a month’s leave of absence for family reasons. Also Present: Town Administrator David C. Dann, Town Counsel Donna MacNicol and Administrative Secretary Leslie Bracebridge, recording. Meeting opened at 6:19 P.M. Appointments In the presence of Town Counsel Donna MacNicol, Selectmen heard from Library accessibility project contractors Mark Montemagni and Laura Montemagni why they felt they were entitled to payments beyond the contracted price: Mr. Montemagni stated: 1. Interest charge: The first third up-front payment for start-up costs and the second of the three payments were both late. At 85% completion, Mr. Montemagni had to borrow money to make the project work. The contract did not read that way. Mr. Montemagni described the third/final payment as an “economic hammer” in that he was told if he didn’t do things the way the town wanted, he wouldn’t get the final $28,000 payment. Shortly after submitting the bill in 5 copies on January 28, he received the final payment. 2. After the first week of work removal and repair of the chimney was verbally added to the project. 3. When the foundation was dug, the north wall turned out to be a loose stone wall that required reinforcement. Miscommunication about the concrete reinforcement led to Dale thinking the price was too high. 4. From the second week in September, Mr. Montemagni was instructed that he could only talk with Dale (who was only available at 7:10 AM and 7:00 PM and not to Town Administrator David Dann who was more available during the day) about the project. With little to no cell phone service, no on-site project manager during the day and no one who could be reached easily and with little detail to the specs, Mr. Montemagni struggled with decisions during the day. 5. The Building Inspector required trusses at 11 AM one day. Mr. Montemagni had 3 men on the job. He couldn’t speak to David; he had to talk to Dale. Everyone knew something would be needed when the space was opened; neither Dale nor Mark knew the Inspector would require trusses. Mr. Montemagni did what the Building Inspector ordered or faced sending men home for the day. When he reached Dale that evening he assumed the trusses would be OK’d since they were ordered and the Building Inspector would not let the project be closed in without the trusses. 6. Lengthening the ramp: the specs. say 15 feet 9 inches. That’s what was bid on. When the day came to pour, measurements indicated the ramp needed to be lengthened or the earth would come within 1 inch of the clapboards. Mr. Montemagni called David and was told that he had to speak to Dale who was not available. Mr. Montemagni got Tim from the DPW who agreed that more space was needed between the clapboards and the ground and that the ramp needed to extend out to the lower the elevation. Both felt the ramp should have gone even a couple more feet or have a landing with an L going back. Mr. Montemagni and Tim made the decision to extend the ramp together. Mr. Montemagni was baffled that a project manager would object. Mr. Montemagni had 4 cement men and three of his own men on the job. I t would have ruined everyone’s schedule if the decision had to wait for Dale at 7 PM. Mr. Montemagni made the decision to lengthen the ramp. 7. Mr. Montemagni also decided to use re-bar in the ramp, even though it was not called for in the specs. Without the re-bar Mr. Montemagni felt the ramp would only last a few years. “We built a ramp that will last, and we built it in the way that a ramp should be built.” He explained using specs from a post office ramp and charged only the $560 for the rebar, not for the time to tie the bars in and even that was not acceptable. Mr. Montemagni was “baffled.” If there had been someone here on site, I would have put in writing that you just cut the lifetime of the ramp by 70% without the re-bar. You build a ramp to last. Mr. Montemagni summarized, “Those are the things that came about that put us in this position. “We did things that were right for ourselves, right for the Town of Shutesbury and right for the lifetime of the building and two of those things were mandated.” Mr. Montemagni calculated the cost of the two requested changes from the contract: the chimney ($2724) and supporting the north wall ($2970) at a total of $5694. While the chimney repair met initial disagreement from the Building Committee, it was later understood and accepted that OSHA requirements contributed to the costs. Mr. Montemagni thought it was resolved but has not yet received payment. Payment was only offered if Mr. Montemagni not take what he considers fair value on the rest of his expenses. Mr. Montemagni said that this as an example of the kind of economic duress that he was working under. Becky requested prevailing wage information. Mr. Montemagni did not have it with him. He did not know it would be requested. (A certified letter was sent to him, but he had not got the slip until Saturday and had not been able to get to the post office to pick the letter up. He assumed that the certified letter was the same invitation to this meeting that he had already received.) Mr. Montemagni said he would provide the requested prevailing wage certification. He asked if this is selected enforcement and asked to see the certified payroll information for the last three jobs put out by the town as well. Becky: Is it common practice to hand in weekly statements. Mark responded that it depends on the town. Town Counsel, “It is statutory” to hand in weekly statements. Becky explained that the accountant requested more specific labor charges to the “big round numbers,” specifically the $1800 figure on the north wall invoice. She used to work for a contractor and whenever there was an overage, that bill went to the client immediately. She understands that sometimes projects have to move ahead but that she is troubled with the big bills coming at the end. Mr. Montemagni responded that he tried to move the job along. There was no project manager on site. Mr. Montemagni was “out there alone,” with no one to talk to about the extras. The opportunity never came along. He could contact the project manager at precisely 7:10 AM. Without cell phone coverage on the job, to contact the project manager at 7:10 AM, he couldn’t be here with his guys. It was extremely inconvenient to call in the evening at 7:30 PM at night. After leaving his house early in the morning he did not want to deal with the project manager that late in the evening. Becky summarized, that Mr. Montemagni chose not to put in the work orders because it was inconvenient. Mr. Montemagni replied that he was too tired in the evenings. He agreed that in retrospect, he should have taken a different course. He, “Never in his wildest of dreams” would have expected this to happen. The Building Inspector required it; there was no one in town to help. Laura Montemagni: Why wasn’t the problem presented prior to the job ending? Becky: It looks like the bills came in, in a clump at the end. Why did that happen? Laura Montemagni: He (Mr. Montemagni) never got a response; he hadn’t gotten paid the $56,000, he hadn’t been paid in 6-7 weeks. Each step of the way seemed to be a fight. Laura chose not to have that in her home during the evening time. At times, interactions were very derogatory and she was not putting up with that at 8 PM in her home. Becky summarized that the Board would take the information under advisement. Mr. Montemagni concluded his presentation: On Dec, 20 with the exception of the windows, he felt the project was finished and asked for a punch list trying to close the project down. That’s typical yet he never got one. A meeting was called in January only after Mr. Montemagni called the Building Inspector. Laura Montemagni: In lieu of working with the town and getting paper work in on time, town workers were working under the Montemagni building permit. “That’s not acceptable. It took a lot of time to get the other contractor off our building permit. We worked with the town throughout.” When the final job was completed, the town had still not met fire or building codes, so the Montemagni building permit could not be signed off on. We worked with the town and went out on a limb with our construction license and the building permit for an overly prolonged time to get the building closed in and a ramp that we felt good about. “Every time we submitted a bill we suffered abuse.” The Building Inspector signed off on everything. Mr. Montemagni: stated that in his 57 years he has never been treated this way on the job by a project manager. “We didn’t do awful work, we have a nice job.” The town’s people said the work looked lovely, the roof looked lovely. Days were spent finding the roof to match the old with no help from the project manager. Laura Montemagni added that there will be another forum on that subject. At 6:52 PM in accordance with M.G.L. Chapter 39, S. 23B 2, Ralph moved that Selectmen go into executive session to consider the discipline or dismissal of, or to hear complaints or charges brought against a public officer, employee, staff member or individual and to reconvene in open session after: Armstrong – Aye, Torres – Aye. Selectmen reconvened in open session at 7:22 PM Appointments (continued) Selectmen did not meet with Police Chief Harding this week. Selectmen unanimously voted to appoint Gail Fleischaker and Donald Wakoluk to the Conservation Commission. Gail and Donald were immediately sworn in for duty by Town Clerk, Leslie Bracebridge and instructed to return to the Town Clerk’s office during business hours to receive packets of information and to sign-off on required forms. In the presence of Collector Ellen McKay, Treasurer Gabriele “Gabe” Voelker and Accountant Gail Weiss, and Finance Committee Chairman Eric Stocker, Elaine Puleo, Mark Poscik, Al Springer, Lori Tuominen, and Patrick Callahan Selectmen met with Mr. Thomas Scanlon Jr. for the FY 07 audit exit interview. Mr. Scanlon used the draft management report to make the following general findings and recommendations: * In general, the financial standing of the town is excellent with the right information and accountability. * No town is perfect. The financial management letter basically reports economic standings in the world that has changed. It is recommended that policies and controls already in place be documented and put into a manual. Example: Currently departments turn over cash to the Treasurer one time per week. That good practice should be documented and put into a manual. * For better risk assessment, one time per year, controls in place should be reviewed for effectiveness. There is no “boiler plate” of policies and controls available at present. The town needs to have one in place within a 2-year period. * The town needs a policy on the use of its two credit cards and how the reward points are used. Mr. Scanlon doesn’t like credit cards because it is hard to get the money back once the card is used. Treasurer Gabe Voelker explained their use in Shutesbury for postage and for purchase of such items as computers as a solution to reimbursing people: The Administrative Secretary uses one card for postage; Gabe uses the other for town purchase of computers. Gabe agrees there is a need to have a formal policy reflecting the tight controls in place by personnel. * GASB 45, a financial report of post-employment benefits other than pension plans, such as healthcare benefits will be complete for Shutesbury at the end of April, 2008. The mandatory implementation date is June 30, 2010. It is a true cost incurring now to be paid later that has to be addressed and recognized on the financial statements of the town. It is recommended that the town continue to keep abreast of this and of future GASB statements that will affect the town. Town officials present discussed the possible use of multiple stabilization funds to get it started and debated if the town should get started in this year’s budget with what it can afford to put aside. * The management letter recommends that the town adopt a policy and procedure for capital assets * Thanks were given to the Scanlon firm for helping Shutesbury find helpful documents for the on-going elementary school construction audit. The management letter recommends that the town arrange for a final audit on the elementary school construction performed through fiscal year 2006. Discussion included current figures, letters and actions. After the Massachusetts School Building Authority meets Shutesbury will get a statement of accepted payments and deductions to be made from cherry sheets. In the presence of Finance Committee members listed above, Selectmen reviewed a draft letter to residents meant to provide information about the proposed Proposition 2½ override. Town Administrator David Dann will incorporate the recommendations into a final draft for distribution with the April edition of Our Town. In the continued presence of members of the Finance Committee, and in the presence of CPA Study Committee members George Arvanitis, Joanne Sunshower, Paul Lyons, and Rita Farrell, and Town Counsel Donna MacNicol, Selectmen discussed positive ways to present a Proposition 2½ override and the adoption of the Community Preservation Act (CPA) at the same town meeting: * The override addresses the current budget; the CPA will benefit future budgets. * If Shutesbury had voted for the CPA in 2001, state funds would now be helping to pay to repair the Lake Wyola Dam. * The current override could have been cut very deeply if Shutesbury had voted for CPA in the past. * Voting for CPA might have moved the need for an override further into the future. * The CPA Committee recommended putting the question of the CPA with a 1.5% surcharge, an exemption on the first $100,000 of valuation, and an exemption for low-income elders on the May 3 annual town meeting warrant. Since the low income exemption has to be applied for every year, it was advised that an instruction sheet on how to apply for the exemption be put into the tax bills. * If it ever came up, it is possible for the people of the church and the town to use CPA funds to “partner” church repairs. * Surcharge percentages can range from 0.001% to 3%. * There is no time frame on when the funds have to be used. * Shutesbury can’t correlate an FY 09 expense with approval because the funding has to be approved by the CPA committee and by town meeting: o A specific project is selected by the CPA Committee. o The Committee makes a recommendation to town meeting. o Town meeting has to approve the recommendation and Town meeting can amend the recommendation. o Town Meeting cannot recommend an entirely new project. * Interest on CPA funds stays in the restricted account. * Projections indicate that a surcharge of 1.5% with a $100,000 exemption on valuation the town would bring in $32,000 per year before the state match. At 0.5% the town would bring in $10,000 before the state match in the first year. * The Department of Revenue (DOR) projects the FY 09 match will be 65% of the surcharge levied by each city and town and the match will be less in FY 10. * Towns that approve a surcharge of 3% go into a second round of funding of the last 20% of state funds available. Preference is given to small towns in this second round of funding. * A community can change the surcharge annually at town meeting. A lot of communities that started low were so pleased with the results that they then increased their surcharge. CPA Committee members recommend presenting whatever percentage level it takes to get the CPA passed. * A chart to help people determine how different surcharge percentages would affect individual tax bills may be a helpful tool in a mailer and at town meeting. * A question remains if the surcharge is applied by parcel or by individual tax payer. * A town’s approval of the CPA enhances state approval of grant funding. Selectmen unanimously voted to create a warrant article for the May 3 Annual Town meeting that the Town of Shutesbury participate in the CPA at 1.5% with a $100,000 valuation exemption, and a low income exemption, and that a 5-member CPA Committee be appointed consisting of one member each of the Planning Board, the Conservation Committee, the Historical Commission and the Open Space Committee and one community at large member. Before many members of the Finance Committee left, Selectmen noted that the order of the annual town meeting warrant will be discussed with the Moderator at the April 15 Board of Selectmen meeting. Finance Committee Chairman Eric Stocker favored having the budget fall relatively early in the town meeting. In the presence of Planning Board Chairman Deacon Bonnar and member Jeff Lacy, state-wide renowned land use Attorney “Mark” Bobrowski and Town Counsel Donna MacNicol, and other community members, Selectmen discussed the recent public hearing and other issues related to the proposed zoning bylaw: Speaking to the meeting as a client of Cinda Jones Attorney Mark Bobrowski: * Due to weather conditions and the hour, would like to make remarks and leave. * Understands from talking with Attorney Michael Pill and Cinda Jones that this is an opportunity to add a little more to what was said at the public hearing. * Most often his the time is spent working on the town’s side of the table and has great respect for Town Counsel MacNicol and Planning Board member Jeff Lacy. * Does not disagree with the principles of the proposed zoning. * The one thing in the proposed zoning he urges further consideration of is the use of the ten-acre divisor in the forest district which he considers to be “Way over the top of what the Massachusetts courts have allowed so far.” * The three-acre “Johnson case” on Martha’s Vineyard’s Great Pond, involved nitrate loading on soils. o The legislature had already showed keen interest with the act creating the Martha’s Vineyard Commission. Doesn’t know that Shutesbury has been singled out by the legislature. o The court allowance of three acres was preceded by enormous studies of the pond site. Doesn’t know that the science exists for the need for a ten acre divisor to preserve forests in Shutesbury. o When he reads the Edgartown case warning: “This opinion should not be read as an endorsement of three-acre zoning. We have upheld the challenged zoning provision because of the special circumstances of this case, particularly the proximity of the restricted land to a coastal great pond. We are confident in the special circumstances of this case that the three-acre zoning provision has not been shown to be arbitrary and unreasonable or substantially un-related to the public health, safety, and general welfare.” o A 5-acre case in Chilmark on Martha’s Vineyard was thrown out by Land Court Chief Justice Sullivan. * Doesn’t know of another Massachusetts case that has been tested at 3 or 4 acres. o Hopewell PA. adopted 10 acres for agricultural preservation which was rejected by the legislature. o In New Jersey courts rejected 6 acres. * Referenced the legislative history of chapter 40A. (Concept intended to be conveyed was not captured by the recording secretary.) * Holds “A very strong feeling” the proposed zoning won’t pass. The town is not served when it is known that the bylaw will go into litigation. The prospect of the town’s success in litigation is not good. Resident Hugh Harwell: * Referenced his previous written comments to the Planning Board. * Gave a full statement of personal experience as a member of the Martha’s Vineyard consulting team, doing the nitrate infiltration empirical studies of on-site sewage disposal, noting it not to be a comparable situation to Shutesbury: o In the mid-70’s they weren’t considering the proposal of Shutesbury which is quite different. o The issue of nitrate loading can be dealt with quite differently now. o The 10-acre factor is a statistical calculator yield for how many buildings would be built there. Attorney Bobrowski: Any challenge to this zoning will not be as applied to show the build-out of a parcel or the constraints. It will be a “facial challenge.” At the trial, you won’t get an opportunity to present the calculations; they’re going to get 10-acres; that’s all the judge is going to be interested in. A facial challenge is not the applied. It probably won’t get into the individual lot. From the judge’s perspective it is 10-acre zoning. Resident Rita Farrell spoke as a tax-payer: * Would not be in support of a zoning bylaw that will go to court with a land-owner with a very deep pocket. * The bylaw as proposed will get 40:B development of the backlands because 40:B is a very powerful tool. Planning Board member Jeff Lacy: * The same comprehensive permit (40:B) could over ride the current sub-division regulations. The comprehensive permit is not new on the scene. * Has worked with 4 land use attorneys plus Don Schmidt. None share Attorney Bobrowski’s views. * The Master plan was done for forestry. The forest attributes that contribute to the bylaw are amply backed up by the Master Plan. * We have towns with 5-acre zones in Massachusetts. The referenced New Jersey case was in a suburban town of 20,000 with few remaining acres. Another town successfully defended 10-acres. Lyme New Hampshire has 50-acre zoning. Nationally there are cases of 10 to 160-acres; many held up in court. * The 35 year old “DCA report” is not statute. Attorney Bobrowski: If you’re headed down this path, “Good luck.” (Ten-acre zoning” “won’t be seen in my lifetime.” There will be an improvement somewhere down the road, but not today. Planning Board member Joanne Sunshower: Why would the court trial be facial and not applied? Attorney Bobrowski: No one would submit the challenge as applied and run the cases one at a time. He listed many court challenges, all were direct facial challenges on the wording of the bylaw. It doesn’t matter on the as applied basis. I just don’t think you can get there in Massachusetts. Resident Rita Farrell: What is the dollar amount for this litigation? Answers were from $13,000 to $200,000. Select Board Chairman Torres: In a facial analysis, do you compare to current zoning? Attorney Bobrowski: It’s a legislative action and the challenger is “in the driver’s seat.” * The legitimate public goal of zoning is to protect public health and safety. * The economic analysis is: Did the town use the least restrictive means to achieve the goal? * In 1965 Sharon wanted to keep their town beautiful. They were told to buy the land. (Mark) doesn’t think it will be much different at the end of this case. * Keeping Shutesbury healthy with a forest environment - at some point it tips because you didn’t choose the least restrictive means. If the ten-acres were substantive, that would be one thing. If you tell the real yield due process is almost insurmountable on Shutesbury’s part. * Why not put the numerator at 3 or 5? Town Counsel Donna MacNicol: Agrees with everything Mark says to a point. Diverge: * The town’s zoning power plus the home rule amendment give the town an enormous amount of power to do what they want, unless someone can prove that they are unreasonable and not related. Attorney Bobrowski: Doesn’t find uniqueness similar to Edgartown’s that justifies the 10 acres. * You’re not going to go above two acres for Title V and wells. * You have to get down to a legitimate reason that protection of Shutesbury’s forest industry benefits the general welfare. * You need scientific back-up for the uniqueness of the forests for the community. If you don’t have the scientific back-up or if there are less restrictive ways to do it then you may not have a case. Can Shutesbury support the concept as unique enough that it calls for protection as in Edgartown? Or, are there other forests around? * Jeff is right about the New Jersey cases. It will come down to: does Shutesbury’s forest need this protection? If it does then the court will find this zoning appropriate; if not then it will strike it down. * It will end up at the Supreme Judicial Court (SJC); that SJC is a property rights SJC. Jeff Lacy: The cases that Attorney Bobrowski cites are older cases. Town Counsel MacNicol: Asked Jeff to talk about the uniqueness of Shutesbury forests. Jeff Lacy: The town is 90% undeveloped; 76% of the town is on prime soil for growing trees; mostly on the western slopes in the private section of the town. Jeff Lacy: Directs Select Board to look at more recent cases: Durand VS Bellingham and Zuckerman VS Hadley. This is the court that will be deciding. These are home rule cases. Zuckerman talks about the measures communities can take including large lot or cluster zoning, expanded frontage requirements and other measures in the footnote. Attorney Bobrowski: Is not reading from a footnote that two justices on the bench lament ever slipped through, and the Bellingham contract zoning offered a power plant in exchange for ten acre zoning. Town Counsel MacNicol: We know that the Durand case proposes that home rule gives a lot of power to the community to pass bylaws. Someone must come in and prove that “you shouldn’t have done it this way.” It comes down to the science. This is the court that decided Edgartown; you have to have the science that shows the zoning’s needed to protect the natural resources and the character. Attorney Bobrowski: “You’ve got a lot of good stuff in that bylaw. Why risk the baby for the bathwater? Why not cut it down? You could claim such enormous victory going forward. You risk loosing all of that because one component will be removed.” Select Board Chairman Torres: Cinda, Tony and Jeff are going to sit down and work together. If a balance can be found by all parties then the town could move forward. Attorney Bobrowski: Excuses himself to travel home in the inclement weather. Resident Hugh Harwell: What would be the cause of action? It could be declaratory or a petition. It could be done right after the vote or in ten years one can seek a petition. Resident Rita Farrell: Doesn’t think Shutesbury is unique; lots of communities across the state have master plans. This is a solution chasing a problem. We’re coming up with a solution for a problem that doesn’t exist. If I was a land-owner, I’d take my backlands and put in 100 units with a packaged septic system, because I could do that with a 40:B. That allows a developer to override local zoning. Town Counsel MacNicol: That’s true but once you’re at 10% then the 40B protections don’t have the strength that they do below 10%. Resident Rita Farrell: It (affordable housing) only has to be 10% of the development so it could go a lot further. Town Counsel MacNicol: There are a lot more issues involved in development in Shutesbury, the demand, the time to do it. Don’t put out “the horribles that will never happen.” Town Counsel MacNicol doesn’t think that (40:B) will be the outcome. Jeff Lacy: Describes Rita’s example as using 40:B to keep old out-date and ineffective zoning. Says the proposed zoning has liberal housing options; allowing multi-family housing in 97% of the town. The proposed zoning has worked when applied to 30 land-owner cases. He can’t see land owners choosing the present zoning over the new zoning. “We’ve road-tested this bylaw.” Resident Rita Farrell: Is looking years out. Select Board Chairman Torres: Thinks the planning board is doing the same thing. Town Administrator David Dann: Wonders what are the Planning Board’s plans for meeting with Cinda Jones? Jeff Lacy: Has talked with Cinda and wasn’t hearing that this was the worst thing in the world. Jeff wants to sit down with Cinda and any firm she chooses and do the examples, but there are only two weeks to do this. Select Board Chairman Torres: It seems like that would be the most helpful. Town Counsel MacNicol: If it’s not worked out with Cinda, Donna charges $100/hour, anticipates it could cost the town $50-60000 for her services, plus the costs of expert witnesses. Cinda would look at $120,000 to her attorney. “It’s a horrendous use of $300,000 to go up against the SJC.” The best solution is for Cinda and the Planning Board to work this out. Or, it’s going to cost everybody a lot of money. Planning Board member Joanne Sunshower: There are many different types of landowners in this town. I am still not convinced that this will be in the best interest of the majority. One hundred and forty property owners of 5 acres or more are to be affected. Joanne has looked at regulatory takings and statutes to protect the forests and is not convinced that the answers are there. She also wonders if Shutesbury’s soils are unique; we haven’t even had that conversation yet. Select Board Chairman Torres: Directs Joanne to information on soil uniqueness. Resident Hugh Harwell: The scientific basis for this zoning is of primary concern. He doesn’t see the link is provided in the formulation of this bylaw. The empirical analysis held up on Martha’s Vineyard. Shutesbury is headwaters for Quabbin, Amherst Reservoir and to Connecticut River. All will play into the analysis. Residents at Cinda’s presentation in Leverett made a very clear strong statement in support of their zoning proposal. Residents have not done so in Shutesbury: There is a profound common interest of the Jones family and the town. There’s a common base of concern for the long-term future of the community. There is a reason they have owned all that land over time as a private landowner. They have the power to do much more through protection than zoning. There’s got to be a basis for coming together to for the long-term future of the community effectively and not to fear property value losses. The conservation market values are holding up today. What we need to see is if the yield issue can be demonstrated to apply effectively for Cinda to her property. If there are too many losses than the formula should be revised, if tests show the same or more yield and the protection of open space then move forward. Jeff Lacy: Distributed a letter written he received from Bob Ritchie, written by Town of Barnstable Attorney Robert D. Smith responding to Attorney Bobrowski’s assertions. The Durand case is interesting: This will be over if the “light bulb goes on for her” That is what I hope. Town Administrator David Dann: Awesome! Select Board member Ralph Armstrong: What the Planning Board has done is incredible. Donna helped with the issue tonight. Mark Bobrowski said what Cinda has been thinking. Look at the problem. We’re going to vote on it and accept it as a town. What will the cost be? The town is on the verge of the unintended consequence. Look at the position that some is better than none and march forward. Is that horrible? Select Board Chairman Torres: Yup. You take out the main piece and it folds in like a house of cards, flexible frontage, driveways; you can’t just change one factor because it’s a part of the whole puzzle. You’re going to have an amazingly different result. It would have to be re-evaluated in whole. It’s not that simple. Select Board member Ralph Armstrong: Understands what Becky says. Based on what Town Counsel MacNicol and Attorney Bobrowski say, if we go forward and we are challenged, it could be a house of cards for us, going into an override; we could be facing $150,000 in legal bills. Town Counsel MacNicol: As long as the Planning Board and Jeff says the science is there; you’ve got to be able to establish the uniqueness. Bob Smith says that twice in this letter. Shutesbury’s costs will e $60,000 plus expert witnesses will be needed. Select Board Chairman Torres: If we just switch that factor to five it creates a whole different beast. You’d have to look at so many other factors. Select Board member Ralph Armstrong: Considers what has been done is excellent. Select Board Chairman Torres: The fear that people feel is the 10-acres. We have to figure out how to do that more effectively. We’re talking closely with Cinda and a number of land owners. Let’s see where it goes. It’s important that what’s decided at town meeting is brought by the Planning Board with all the information they can find. Finance Committee member Al Springer: Do experts charge $100/hour? Town Counsel MacNicol: Yes, but they will be able to testify that this kind of zoning density is required to protect the forests. Planning Board Chairman Deacon Bonnar: The current sub-division regulations end up with roughly the same yield as the proposed zoning yields. Town Counsel MacNicol: Legally it does not play out for a facial challenge, only for an applied challenge. With a facial challenge you’re dealing with the order to sustain the public general welfare. Edgartown plays that out. We’re not saying that any town can willy-nilly go do ten-acre zoning, only if there is legitimate science to support it for the general welfare. Even if we don’t agree with the reason they get to do it because home rule says they get to do it. Jeff Lacy: The court will not simply review the number ten and the methodology? Town Counsel MacNicol: Attorney Bobrowski and Michael will say ten-acre zoning. It’s ludicrous to say it’s ten acre zoning. Of course they are going to look at it. But, does the science support 10-acres to sustain the forests? Jeff Lacy: Believes we have the science, and we have the master plan. In Anderson, New Hampshire 50 acres was upheld. Jeff imagines the same types of experts and testimony held up also in Lyme, New Hampshire where it went to New Hampshire’s highest court. Resident Hugh Harwell: If the point Deacon made, and the critical points Donna is making can be shared throughout the town and passing the bylaw is legitimate legislation of town meeting, and if the land-owners are accepting of it, then the propensity will be there to go along with it without going to court. We should be honoring the rational support of these basic principles that everyone can support. Select Board Chairman Torres: Is worried that everyone is afraid. Town Counsel MacNicol: Town Meeting cannot pass a bylaw that is “arbitrary and capricious.” It must be because this is necessary to preserve our natural resources and the character of the community. Answer that question and anyone will vote for it and everyone will want it. People want to know, “Why does this matter to us?” Attorney Bobrowski came from the exact same place. Jeff Lacy and Attorney Bobrowski can argue for years. Don’t get stuck there; argue why it’s important to us. We can handle the law, you deal with the reasons. The town should know why it’s zoned for forests. Select Board member Ralph Armstrong: Pick to protect the watershed; we’re all in agreement on that. Town Counsel MacNicol: If asked to support 10-acre zoning or a forest would be destroyed without it. Would you support 10 acre zoning? Resident Hugh Harwell: People like to walk in the forest; that is not a simple persuasive reason, but water supply is. Jeff Lacy: They didn’t just consider water in Edgartown, they considered everything. Select Board member Ralph Armstrong: Make the keystone water. Town Counsel MacNicol: Make the foundation forest – forest conservation. Jeff Lacy: The smallest increment to get into Ch. 61 is ten acres, Town Counsel MacNicol: Use the science you know. Jeff Lacy: Will “pull in” Bill Labich who wrote the Master Plan. Following the Planning Board proposed bylaws discussion, Selectmen discussed the ownership of property at Lake Wyola with Town Counsel MacNicol: It appears that town meeting voted takings have happened; gifts did not happen. Valley Land Title said they could do a complete research of the river. Beyond that the town can defer to the Department of Environmental Protection (DEP) for what they will require and beyond that property owners can go to the registry of deeds or hire title searchers individually. Town Administrator David Dann: What’s the liability for the town if a property owner does work on town land abutting shore front property? Donna could write an indemnification/hold harmless agreement. Town Counsel MacNicol: The bigger issue is the 5,000 cubic ft. of dredging because DEP could shut down the dam project. Recommends the policy of the Selectmen to be: We’re going to do the dam project. First come first served for dredging. The next part is everyone must either sign the hold harmless agreement or prove ownership of the lake bed through their own searches. We don’t want to jeopardize the dam project. Only go to 4,500 cubic ft. if the limit is 5,000 because she doesn’t want to jeopardize the project if someone goes over. She suggests a written letter from DEP saying what the threshold for more permitting for dredging would be. Town Counsel MacNicol commented on the Board of Health’s draft regulation concerning nitrate loading: * It adds more restrictive regulations to Title V. * That nitrate argument is the one that won the Edgartown zoning. In so doing, they allowed them to go to three acres. * Doesn’t know the science personally. * Will check, but believes the regulation would have to be approved by DEP. * To Becky’s question of being open to lawsuits as with the zoning, Town Counsel MacNicol responded that one person with an unaccepted septic system could challenge in an applied case as opposed to the facial challenge of the zoning bylaws. * Board of Health Chairman Elliott, in conversation with Town Counsel claims he’s got the scientific evidence: Nitrates flow through soil with the water, so the only thing that deals with nitrates is dilution. If you have problems with ground water then nitrates end up in drinking water. Select Board Chairman Torres: Gets confused with wells and waste water. Town Counsel MacNicol: Doesn’t know if it’s a good regulation scientifically; she understands the procedure to get it passed. If someone gets denied because they want a 4 or 5-bedroom home and it’s only open to 3 bedrooms then it can be an applied challenge that will go into nitrate loading in Shutesbury. The problem is that ultimately we’re restricting people’s use of land and it gets more and more complicated. Town Counsel MacNicol excused herself at 10:43 PM. Select Board Action Items 1. Selectmen: * Did not approve any previous minutes. * Signed vendor warrants totaling $69,567.81and payroll warrants totaling $74,855.91. * Unanimously voted to sign the annual town election warrant. * Unanimously voted to reappoint and sign a Personnel Action Form for Howard Kinder as Gate and Dam Keeper. * Unanimously voted to sign copy of a 5-year ambulance service agreement with the Town of Amherst. 2. Selectmen also: * Unanimously voted to sign a letter prepared by the auditor summarizing audit comments and recommendations for the 2007 audit. * Unanimously voted to sign an agreement with C&A for use of Lot O-32 during the Leverett, Cooleyville and Prescott Roads reconstruction in exchange for provision of asphalt and paving of the library parking area. The contract allows C&A to put gravel on Lot O-32 if needed. 3. Selectmen did not discuss a fence. 4. Selectmen unanimously voted to sign permission for Verizon New England and National Grid to erect 5 jointly owned poles, wires, cables, fixtures and connections as described at the March 18, 2008 pole hearing, the outcome having been tabled so that Mr. Puffer could demonstrate to the Town Administrator how a pole blocked access to part of his property. Since the outcome included no change in pole placement, Selectmen agreed to sign the petition for placement of poles. New Topics 1. Selectmen unanimously voted to authorize Shutesbury’s participation in the Franklin Regional Council of Governments diesel and fuel oil bidding process. 2. Ralph and Becky plan to go to Boston on April 10th to promote state funding of the dam repairs. Selectmen authorized David to make appointments for them to speak with representatives. David will get a dam construction information sheet for them to work with. Ralph and Becky will leave Town Hall about 8:30 AM with Map quest instructions in hand. A motion was made, seconded and unanimously voted to adjourn at 10:56 P.M. Respectfully submitted, Leslie Bracebridge Administrative Secretary 080401 Selectboard 1