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HomeMy WebLinkAboutmin brd of selectmen 06/16/04 rŒCEIVEI r. . '. f. . P v c; 0 f- r: I C E . '."'. . r _ r Board of Selectmen Minutes of June 16,2004 04 JUL - I AM 9: 23 ! I',' ····-LD ì"Ú~ ¡, ¡ t. MASSACHUSETTS Present: Steven W. MacCaffrie, Chairman; Vice Chairman Roger S. Achille, Clerk; Bernard J. Dolan; Selectmen Louis P. Amoruso and Michael W. McCue. Town Manager John O. D' Agostino The meeting was called to order at 7:30 p.m., followed by the Pledge of Allegiance to the Flag. The Light Commissioners portion of the meeting was called to order by Light Commissioner Chairman Roger S. Achille. The Light Commissioners Meeting adjourned at 8:00 p.m., at which time the Selectmen's portion of the meeting was called to order. r DPW Director Lee M. Azinheira; Town Counsel Robert S. Mangiaratti; James Murphy, Manager of Service Bay State Gas Company; and Attorney Henry Sorrett of Boston, representing Bay State Gas, were in attendance to discuss the utility review policy. Also present with Town Counsel Mangiaratti was Judge Emeritus Vieri Volterra. Attorney Sorrett noted the Gas Company's ratepayers are the Town's taxpayers. Bay State is a regulated utility and' expects to continue providing gas throughout the Commonwealth as long as there is natural gas. He pointed out Bay State is not the same as a local contractor with a rusty backhoe coming in to dig a hole and also that the law differs from Mansfield's requirements with regard to patching requirements following an excavation. Attorney Sorrett reviewed the decision of the State Supreme Court which resulted in the Department of Telecommunications and Energy (DTE) requirements. Pavement costs are kept within reason as a result, with the regulations determining the timing and type of patching required. Chairman MacCaffrie asked that the items on which we disagree be addressed. Attorney Sorrett stated Mansfield's regulations require indemnification for any harm caused by the excavation, regardless of fault. Town Counsel noted pre-emption, in which the law is fully controlled by State Statute. Case law is true as stated by Attorney Sorrett. An r administrative fee is allowed by State law, and there is a difference of opinion regarding it. There may be other indemnifications with regard to using one of our police officers Board of Selectmen Minutes of June 16, 2004 1 r for a detail. Attorney Sorrett noted if Bay State is negligent and causes harm, they should be responsible. The Town's liability is capped however. Town Counsel asked that the focus be on the administrative fee for review. Mansfield charges $50, although the by-law states $100. Attorney Sorrett's position is the law says the fee may be charged for receiving the application, processing it, and issuing the permit. There is no authority for reviewing the plan, supervising the work. Town Counsel pointed out the pre-emption clause says we can charge them a reasonable fee to grant permission to get into our street, but cannot charge them an administrative fee. He noted there are potential impacts to the Town when a street is broken into. When DPW gets an application it's circulated for review and comment before we will grant permission to go into the street. It can't be used as a revenue generating tool, but the Town can charge a "reasonable" fee. Once permission is given the Town is done. It cannot charge for monitoring the job. DPW Director Azinheira said there is a road opening fee of $50 and a fee for review that is based on a sliding scale. The smaller applications cost us more than what we charge. Mr. Sorrett said $50/permit is fair and reasonable. The main extension fee is not, and is charged above and beyond the application fee. Selectman Achille asked what the average fee has been. From $100 to the thousands. Lee explained the reviews needed by various departments when an application is submitted. Mr. Sorrett noted the Gas Company is a substantial taxpayer and many of these services should be provided for the taxes they are paying. Mr. Sorrett differentiated that they are State regulated and therefore different r from private contractors. The Statewide Uniform Utility System says you can only charge the administrative cost of issuing the permit. Chairman MacCaffrie suggested that in figuring the time of all department heads reviewing an application, they're probably not paying enough. The company tries to replace pipe when a street is already opened for another project to reduce disruption. The surcharge for main extensions is one they do not believe is allowed by State law. Town Manager D' Agostino said we all know we can charge a reasonable fee for the cost of reviewing plans for any utility. It was noted that administrative cost is not considered plan review. When there is 1,000 feet of pipe for an extension, the review is far more extensive than a small road opening cut to repair a pipe. Our time spent reviewing that permit to protect our interests has some bearing on the cost of doing business. He believes we can substantiate those costs. Mr. Sorrett pointed out developers are not regulated public utilities; Bay State Gas is. Town Counsel Mangiaratti noted it is true that we can't treat regulated public utilities the same as we treat developers. He believes, however, that we are justified provided we can demonstrate the actual cost to the Town of doing the review. Town Counsel Mangiaratti summarized the three choices available to the Town: 1) We can acquiesce to Bay State Gas; 2) We may be able to negotiate some figure between $50 and whatever we charge now that they can live with; 3) We don't agree and we continue to charge what we think is fair. As a matter of law we are entitled to do so; however Bay r State Gas considers it a big deal and they have litigators willing to contest it. This Board of Selectmen Minutes of June 16, 2004 2 r- r r bothers them and they will litigate it in Mansfield, as they have done in other towns. Selectman Achille asked if Bay State's representation is correct regarding other regulated utilities. Yes, but "narrowly". The "precedent" issue disturbs Bay State Gas. Across the State every Town is looking for additional revenue. Steve - based solely on the amount of work being reviewed by six departments, it's well over $50. Attorney Sorrett - Bay State applies for thousands of permits throughout the Commonwealth. They are sensitive because what is decided here effects what happens in every other community. If every city and town were to impose additional costs, the DTE would be highly critical. They are stuck in the middle, as is the Town. Town Manager D 'Agostino emphasized the fee is reasonable and not intended to be revenue-generating. We can substantiate the fee as a reasonable recovery for the cost of the review. The taxpayers of the community should not be straddled with Bay State's cost of doing business. Attorney Sorrett - noted Town Counsel's three suggested solutions and said he is willing to negotiate. Town Counsel Mangiaratti said he will talk about it with them in conjunction with staff over the next several weeks to see if the Town's interests can be protected in a settlement. Selectman Dolan said he doesn't like the attitude that we're the big guns and will pay the cost and has a problem with the attitude of the Gas Company telling us what we have to do. Selectman Amoruso asked how long as this fee been in place. (Six or seven years - since the Newton case.) Town Counsel Mangiaratti explained that one of the fees charged was $50 for an administrative fee and the Court said it was okay. It did not address how it is calculated. Selectman Amoruso asked how long it has been in place and if it still covers the cost the same as it did seven years ago. Attorney Sorrett suggested that what the administrative fee covers needs to be addressed, stating he did not come in here confrontational. He said they continue to provide gas and recognize their obligation to work cooperative with the communities they serve. They do make the effort to maintain patches in accordance with the regulations and are willing to enter into reasonable negotiations to resolve this in their mutual interest. It was suggested that the best course of conduct is counsels and administrative staffs to work together and layout their perspectives to come to a fair agreement. Selectman Dolan stated he believes we're losing money in reviewing the plans and does not think we're making a cent on it. Selectman McCue said he agrees with Bernie to a certain degree. If our fees were being used to enhance revenue it could be disputed. Other than excise tax and property tax we have no authority to create taxes. In a singular case it's not a problem; when it multiplies it becomes a problem. We've raised fees a couple of times to keep up with inflation and understand their position. Selectman Achille noted there is also a different wage scale between Weston and Mansfield. It was suggested that if the matter is not time sensitive it be tabled without making any decision at this point. Attorney Sorrett said he doesn't expect any decision tonight. Town Counsel Robert S. Mangiaratti and Attorney Susan Jacobs requested an executive session to review and discuss pending litigation. Motion: To go into Executive Session at 8:53 p.m. for the purpose of discussing current and on-going litigation and to return to Open Session at the conclusion of the discussion. Board of Selectmen Minutes of June 16, 2004 3 (McCue-Amoruso) r Roll Call Vote: MacCaffrie, aye; Amoruso, aye; Dolan, aye; McCue, aye; Achille, aye All in favor - Passes 5-0 The meeting reconvened in Open Session at 10: 13 p.m. following the conclusion of the Executive Session and a brief recess. · Warrant No. 50 in the amount of$712,554.72 Motion: To approve (Dolan-Achille) 5-0 Passes · Warrant No. 51 in the amount of$8,183,369.85 Motion: To approve and sign (Dolan-Achille) 5-0 Passes · Minutes of June 2, 2004 Selectmen's Meeting Motion: To approve and sign (Dolan-Achille) 4-0-1 Passes r · Hackney Driver License Application of Allen Falconer of Foxfield Taxi to be approved - CORI and Driving record received and reviewed Motion: To approve (Achille-Amoruso) 5-0 Passes · Live Entertainment Weekdays License Application for Geno's Restaurant, 409 North Main Street w/routing slip attached Motion: To approve and sign (McCue-Achille) 5-0 Passes · Drainlayer's license application of SLT Construction Corp., 169 Camelot Drive, Plymouth - recommended for approval by Town Engineer John Sullivan Motion: To approve (McCue-Amoruso) 5-0 Passes Town Manae:er and Staff r Board of Selectmen Minutes of June 16, 2004 4 Letter from Nick Riccio r . Memorandum from DPW Director Lee Azinheira providing further clarification on the Water Treatment Facility/Municipal Fees Memo attached thereto · Letter from Police Lieutenant Walter Crickard regarding the June 8, 2004 performance of BLINK 182 at the Tweeter Center that incurred a curfew violation, ending at 11 :07 p.m. Motion: To send a letter requesting response with a check in payment of the fine or a request for a hearing in accordance with license agreement (Amoruso-McCue) 5-0 Passes · Memorandum from DPW Director Lee Azinheira regarding basketball hoops on public ways in violation of the Mansfield General By-Laws, Chapter 5, Streets and Sidewalks, Section III quoted therein. · Copy of letter to Allison Ford and Robert Fund in response to their request for a sidewalk extension · Memorandum from Town Engineer John D. Sullivan, Jr. following up on his memorandum of May 7, 2004 regarding the scheduling of a public hearing for a requested major sewer extension on Ware Street. Put on the agenda after discussing with Lee Azinheira and John Sullivan r . Memorandum from Water Operations Manager Kurt Gaffney asking that Selectmen put into effect Phase I of the Water Use Restrictions on July 1,2004 Motion: To institute the Phase I Water Use Restriction on July 1,2004 in accordance with the conditions set forth by the State in approving the permit for the Morrison Well No. 10 (Amoruso-Achille) 5-0 Passes · Memorandum from Town Engineer John D. Sullivan, Jr. regarding donations of land takings and temporary construction easements for the Route 106 Improvement Project with request for a Vote: Motion: To accept the donations as listed in the Route 106 Order of Taking, filed February 25, 2004 at the Bristol County North Registry of Deeds, as Document 14271, Book 13340, Page 180, for the properties listed with $0.00 damages awarded, and the following additional donations since that filing: r Parcel No. TE-12 TE-23 TE-37 TE-46 TE-58 TE-62 TE-67 & 68 Owner Donna G. Gay Michelle & Priest McCartan Thomas & Nancy Malay Shady Brook Neighborhood Regina Sproul Derek M. & Laureen M. House Maria Bracchi Map/Lot 30/19 31/30 41/33 33/84 33/118 33/116 25/53 & 52 Board of Selectmen Minutes of June 16, 2004 5 r TE-77 & 78 TE-79 TE-84 Richard M. Palanza Debra Hondromihalis Robert & Patricia Souza 25/38 & 56 25/37 25/33 (McCue-Achille) 5-0 Passes · Memorandum from Police Chief Arthur M. O'Neill stating the Police Department has no objections or parking concerns with the application of the Tiger Woods Foundation at the Tweeter Center · E-mail from Inspector of Buildings/Zoning Enforcement Officer Nick Riccio regarding the application of the Tiger Woods Foundation to park cars at the Tweeter Center Motion: To grant the request of the Tiger Woods Foundation as a charitable organization for the temporary use of the Tweeter Center for the purpose of parking cars from September 1-6 during the Deutsche Bank Championship; to waive all fees; to extend for one additional day if there is a rain date. Provisions should be made for sanitary facilities in accordance with any Board of Health regulations and must be coordinated with the Police and Fire Departments for public safety details and traffic control. (Dolan-Achille) 5-0 Passes r . Memorandum from DPW Director Lee M. Azinheira outlining meetings and workshops that need to be scheduled with the Board of Selectmen Set date at next meeting - get dates for consideration · Memorandum from Police Chief Arthur M. O'Neill with his recommendation regarding two applications for constable attached thereto. Boards and Committees · Letter from Robert V. Linney resigning from the Mansfield Cable Access Board of Directors because he no longer resides in Mansfield Motion: To accept with regret and letter of thanks (McCue-Amoruso) 5-0 Passes Other · E-mail from Tweeter Center Executive Director Bruce Montgomery in response to the Board's inquiry regarding sound levels during the River Rave Concert on May 30th -letter was read ,.-. · Left over from last week for additional information: fee waiver request. If license can be waived for other projects, the fee should not be waived. Need to list the project and all the fees requesting to be waived. Fee waiver policy was established in Board of Selectmen Minutes of June 16, 2004 6 r 1999 so the Board would not have to vote on each request. Policy allows for a waiver of the Town's portion of permit fees. A drainlayer's license is an annual license that can be used anytime within the year on any project. Motion: Adjust the verbiages such that any Town projects subject to reimbursement must come before the Board for approval (Dolan-Amoruso) 5-0 Passes Motion: To waive all fees (relating to this request) excepting drainlayers' licenses (Amoruso-Dolan) 5-0 Passes With the meeting approaching the 11 :00 p.m. curfew: Motion: To extend the curfew to 11: 10 p.m. (Amoruso-Dolan) 4-1 (MacCaffrie opposed) Town Manager D' Agostino reported: · The Water Dept. received an award for scoring in the top 10% of the water districts in the State with respect to water quality r · The Assessors job description is being worked on; prior discussion about the chief assessor position has not been acted on. It will be filled with added job duties and responsibilities. · Due to the death of President Reagan the meeting with Commissioner Cogliano was postponed to June 18th at 9:00 a.m. in Room 3AB of Town hall. An agenda has been prepared. Because of these initiatives we have received a tremendous amount of funding for projects. Route 140, Route 106, and three grid projects are ongoing. He plans to reiterates the Town's opposition to the northbound slip ramp for Route 495 that would take homes in Mansfield. We are also going to explore Golden Triangle access from Route 140 to alleviate traffic on School Street corridor. · He attended a meeting last week to discuss facade grants for Downtown. The program will include grant authorization with interest at less than prime charged. ,-- · Provided an update on the status of union contracts. All have been completed at a 70/30 split for healthcare. The teachers' vote necessary to close the gap will not be achieved by July 1 st. This will have ramifications with regard to the dental cost going forward and it may be off the table. He encouraged Board to send acknowledgement to the School Committee that any shortfall to reach a 70/30 split comes from that shortage should be made up from the school side of the budget. Motion: To send a letter to the School Committee and Superintendent Moretti advising them of their need to come up with any shortfall (McCue-Dolan) 5-0 Passes Board of Selectmen Minutes of June 16, 2004 7 r r (' · The Medco TIF is coming up next week · He's scheduled a meeting with the Veterans Thursday night to discuss a regional approach to the Veterans Agent position. Chairman MacCaffrie: · A previous Light Commission meeting matter needs to be clarified. Town Accountant Bea Kearney and Electric Department Chief Financial Officer Kim Stoyle agree that we need to vote that the pilot be $480,000. Motion: That the payment in lieu of taxes (PILOT) for FY'05 be $480,000. (McCue-Amoruso) 5-0 Passes Motion: To adjourn at II: I 0 p.m. (McCue) 5-0 Passes ~~ Ignature of C (0/ ~d D -0 L,) Date of Approval r Board of Selectmen Minutes of June 16, 2004 8