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HomeMy WebLinkAboutMinutes - BoS - 09/28/2010 Minutes—Board of Selectmen September 28, 2010 Selectmen Present: Karen Quigley, Chairman Edwin G. Carr, Frederick Koed Paul Carlson Selectman Absent: Leland H.Jenkins Others Present: William R. Griffin,Town Manager Jennifer Brennan Oram, Selectmen's Clerk Chairman Karen Quigley called the meeting to order at 7:OOPM Town Manager's Report—Sheila Conner of the Hull Conservation Commission addressed the Board and asked for the Board's support to name the newly constructed Tide Gates at the William McNamara Bridge at West Corner after Lawry Reid. Mr. Reid is the founder and past president of the Straits Pond Watershed Association. In her letter, Ms. Connor read that "through Reid's efforts as president of the Association, the replacement and enlargement of the severely deteriorated culvert and tide gates moved forward". She added that due to the new gates,there have been significant improvements to a "critically impaired coastal pond". After a brief discussion, Selectman Paul Carlson moved to approve the naming of the Tide Gates after Lawry Reid. Selectman Frederick Koed seconded the motion and the vote was unanimous(4-0). Town Manager, William Griffin, asked the Board to approve and sign a series of temporary and permanent easements in the vicinity of Jacobs Meadow to allow the culvert work to begin. Selectman Edwin Carr moved to approve and sign the temporary and permanent easements. Selectman Koed seconded the motion and the vote was unanimous (4-0). Mr. Griffin asked the Board to recommend the filed Citizens' Petition article to the Planning Board for the Public Hearing process. The proposed article asks for a pool used for a business be allowed to be constructed and used in a residential neighborhood. Selectman Carlson moved to forward the article to the Planning Board for the public hearing process. Selectman Carr seconded the motion and the vote was unanimous(4-0). Selectmen Comment Period Selectman Carlson suggested the Board look in to moving their meetings back to Tuesday evenings as the parking at Town Hall is extremely difficult on Monday nights. The Board agreed this should be discussed when the Interim Town Manager begins. Selectman Carr brought attention to a piece of correspondence the Board received from Secretary of the Commonwealth, William Francis Galvin. In the letter, Mr. Galvin alerted communities that with the results of the 2010 census, any municipality with populations greater than 6,199 will be required to redraw their local precinct lines, or"re-precincting" as it is called. In the letter, his office offers Towns help with the process. Selectman Koed asked about the letter from the residents on Cedar Acres Lane about resurfacing their street. Mr. Griffin stated that the letter had been sent to Town Counsel for review. He stated that it could be the case that Town funds cannot be used to resurface the road as it is a private way. Selectmen—9.28.10-JBO 1 Minutes—Board of Selectmen September 28, 2010 Licenses& Permits—Selectman Carr moved to approve a one-day liquor license for a wedding reception being held at the Second Congregational Church located at 43 Highland Avenue. The license is for a cash,full bar from 5PM-10PM on November 20,2010. Selectman Carlson seconded the motion and the vote was unanimous(4-0). Update on Treat's Pond Pipe Inspection & Discussion on the Town's Rights and Obligations under the Bigelow Easement. Chairman Quigley stated that she felt it was important to bring this issue forward. She stated they are now one year into the agreement; an agreement which took two years to come to. Chairman Quigley felt the Board should have a conversation about what the Board is allowed to do,what rights the document gives the Board and allows the Board to live up to. Attorney Lou Ross of Town Counsel's office joined the Board for the discussion. Attorney Ross stated that the easement is in "two parts". The easement that was granted to the Town (the Bigelow Easement) is a Conservation Easement which gives the Town the right to enforce the conservation of the pond. The Town has the right to enter these properties to clean up the pond, but it's not clear that the Town has the obligation to do that. He sited for example, if it were proposed that the property be used for anything else [other than conservation] the Town may have an obligation to stop that. He stated that the Town's rights and obligations are spelled out very vaguely in the easement. Chairman Quigley asked that where the easement says 'preserve the Marsh Pond in its natural state', should the Town be preventing the growth of invasive plant species. Attorney Ross stated that when you have an instrument [an easement] like this, you have to try and determine what the parties intended and there are various interpretations; arguably it could have been to maintain the pond, weed out the species etc., but it's all subject to interpretation. He stated that the Town does have the right to go to Land Court and determine what the scope of the Town's obligations are. Selectman Carr asked what the existing license between the Town and the abutters of the easement allows the Town to do. Attorney Ross stated it is a very limited agreement and that it basically allows the Town to dig out the pipe; it's a short term solution to a life long problem. He added that if a solution is not found, then another Board down the road will have to deal with the license when this one expires. He stated that there is not a lot in the law that holds what people have to do. Selectman Carlson asked if easements had to be reviewed every twenty five years.Attorney Ross said they did not. Selectmen Koed asked if the Board could get an update on the pipe and the camera that was sent down it. Mr. Griffin stated that the contractor the Town hired did get down the pipe with a camera but that it could only get down part way, he said it appeared the pipe is a 16"wide pipe. Chairman Quigley stated that with the camera now going down the pipe,they do not know anything more about where the pipe presently lays. She stated she is not sure if they can maintain the pond without an outfall pipe. After a brief discussion, Chairman Quigley asked what the sense of the Board would be; do they want to look in to going to Land Court or would it rather do nothing. She stated she would be loathe not to do anything and leave it for another Board to deal with. Attorney Ross asked the Board that if they were to discuss going to Land Court,would they like to move into Executive Session. Selectman Koed stated they need to discuss what they want to consider doing. Should the Board walk away or consider fixing the pipe to help deal with the run off on the street. Chairman Quigley stated that the run off is a stormwater issue. Selectman Koed stated that the Board could still make a recommendation. Chairman Quigley stated that at this point, she is not concerned about which side of the issue [Treats Pond] people stand; she wants to deal with the reality of the issue. She is also wondering if the pond is protected by the Conservation Commission and the Wetlands Protection Act does that obligate the Town to maintain the pond or if it private property would it be up to the owners to protect it. The Chairman then opened the subject up to discussion from the audience. Mr. Peter Selectmen—9.28.10-JBO 2 Minutes—Board of Selectmen September 28, 2010 Whittemore of 47 Elm Court stated that had spoken to Dr. Ed Woods who helped negotiate the Bigelow easement. He then addressed the size of the pipe stating that if the pipe could be restored to its 24 inch permitted size he feels it would serve everyone well. Mr. Eli Manchester of 83 Atlantic Avenue stated that he has watched the Board debate this issue for a long time and does not know how it can make a decision until they get a complete cost and engineering data. He feels there are many alternatives and things to consider. Chairman Quigley stated that she is trying to separate out the two issues of stormwater and what the Town's obligations and rights are with the easement. She would like to see the Town resolve what its legal liabilities are and once that is determined, then the Board will know what to do with the pond. Attorney Ross stated that the Town is not obligated to solve stormwater issues on private property,that being said,the Town is trying to do something [by addressing the language in the easement] Mr. Amory Houghton of 91 Atlantic Avenue stated that since the two roads were built near his property his property has flooded and that he feels the Town has some responsibility. Chairman Quigley stated that the Board is sympathetic and that his situation although unfortunate is not unique. She stated that the purpose of the discussion this evening is to decide what the Board would like to do in regard to the easement, but it seems to her that the sentiment this evening amongst the Board is to do nothing. Selectman Koed stated that he sees that there are two issues;go to Town Meeting to get approval for a land taking or to go to Land Court to get a definition of what the Town has the right to do with the pipe. If the Town votes no,then we know where we stand. Selectman Carlson stated that he has an issue with taking property without scientific evidence showing that it's the best option. Selectman Koed stated that he does not think the Town would have built something that did not work and that he feels the pipe needs to be extended. Mr. Charles Higginson of 159 Atlantic Avenue stated that when the pipe is dug out it works well and that he has pipe on his end of the beach that works very well. He stated that like lawyers,Engineers can disagree on the same issues. Selectman Carlson stated that he would like to see some evidence. Chairman Quigley stated that once again the discussion has gone to stormwater and that she is trying to discuss the Town's responsibility and legal rights to the pond and if the Town wants to continue to be encumbered by this legal document (the easement) She stated that the Town has the responsibility to maintain it's structures and that monies were appropriated in the past for this pipe, which she seems then it is reasonable to feel that the Town should have a legal right to access and maintain the pipe. If the Town is going to be held liable for flooding, then they should be allowed access to do so as it would not be fair to it accountable for flooding otherwise. Attorney Virginia Brophy—Access Easement to Bear Hill Water Tank—Attorney Virginia Brophy of 16 Beechwood Street addressed the Board. She stated that Town Counsel had advised her that the best venue for expressing what she is bringing to the Board tonight would actually be a Water Department meeting, however, she stated that this evening she is not speaking as an Attorney, but is before the Board speaking as a private citizen of Cohasset. Ms. Brophy sent her concerns to Town Counsel's office and Attorney Lou Ross rendered an opinion. Attorney Lou Ross of Town Counsel's Office sat before the Board on this discussion to defend his position. Ms. Brophy feels that the Water Department acted beyond its authority when it reduced their existing 100 Pleasant Street easement from 30' to 12'. She feels that because the easement was reduced below 50%of it's original width, the reduction constitutes an abandonment of the easement. She cited Morey v. Martha's Vineyard to support her case. Attorney Ross then addressed the Board and stated that much of this issue does come down to whether the moving of the easement was abandonment or relocation. Attorney Ross stated that when an easement is acquired the entity that obtains the easement is given a right to use someone else's property; it's not an exclusive use. He added that the Commissioner's made a determination after the landowner asked them to move the easement to reduce it to 12'. There was then a brief discussion between Attorney Ross and Ms. Brophy about legislative acts. Attorney Ross stated that Ms. Brophy is assuming that the Selectmen—9.28.10-JBO 3 Minutes—Board of Selectmen September 28, 2010 easement was abandoned however the Commission still holds a 12' easement and that the use of it is not lessened because it is not as wide. After further discussion, Attorney Ross stated that the Commissioners have retained all of their rights they had with the original easement, but have changed location. He stated the entire discussion comes down to the characterization of the easement. Chairman Quigley asked that when a Commission makes a decision that turns out to be problematic, if there is a remedy. Attorney Ross stated that the first step could be to ask the developer if there is any land available to widen the easement. Selectman Carr stated that he would like to confirm that this is a Water Department issue. Chairman Quigley stated that she thought the discussion could help with the thought process in regard to the easement. She then opened up the discussion to the audience. Mr. Thomas Ogrodnik of 55 Reservoir Road stated that he took issue with the fact that the Water Department would enter into an agreement{to relocated the easement] without knowing where the houses were going to be built. He stated that the Water Department has had large trucks go up the easement in the past to paint the tanks and do other maintenance. He feels they knew that large equipment would need to get up to the tanks for any type of construction or work on the tank. Mr. Michael Ronzoni of 50 Reservoir Road stated that this issue was visited by the Board back in 2008. At that time the Water Commissioners were bringing the relocation to Town Meeting but then decided to not pursue the article. He stated that he was a cynic and feels that somewhere along the line some sort of agreement(between the Water Department and the contractor)was made. Mr. Ronzoni also expressed concern about the pipes under the roadway of the easement stating they are made of asbestos and the heavy trucks going up the road could damage them. Selectmen Koed stated that Water Commissioner Glenn Pratt brought the issue of the pipes up when he was before the Board once before. Selectmen Koed said the pipes are like that all over Town and that if there are issues they can be addressed when the time comes. Mr. Ogrodnick then suggested that the cell towers being proposed would be better placed at the Water Department located on King Street. He feels that the Commission deciding to place the proposed towers on top of Bear Hill tank goes beyond their jurisdiction. Chairman Quigley thanked everyone for their input. Selectmen's Comment Continued Selectman Koed then read a letter aloud from Mr.Arthur Lehr who stepped down from Emergency Management. Selectman Koed expressed the Boards' appreciation for all of the years of service Mr. Lehr has provided from the Town. Selectman Carr moved to adjourn the meeting. Selectmen Koed seconded the motion and the vote was unanimous(4-0). Meeting adjourned at 8:45PM. Respectfully submitted, Karen Quigley Chairman Documents: -Letter from Sheila Connor of the Hull Conservation Commission re: naming the West Corner Tide Gates after Lawry Reid. -Opinion of Attorney Lou Ross of Town Counsel's Office, dated October 7, 2010. -Morey v. Martha's Vineyard -"Conveyance of Land or Abandonment of Easements; Procedures" -Letter from Attorney Lou Ross of Deutsch/Williams to Virginia Brophy dated October 7, 2009. Selectmen—9.28.10-JBO 4