Town of New Salem Selectboard
December 28, 2020
Held Virtually via Zoom
Convened: 7:00 pm
Present: Randy Gordon, Wayne Hachey, Jean Derderian, Selectboard; Nancy Aldrich, Town Coordinator; Jen Potee, Cam Dunbar, Board of Health; Gabriele Voelker, Town Treasurer; Phil Delorey, Zoning Enforcement Officer; Ami Fagan, Bruce Spencer, Zoning Board of Appeals; Nancy Slator, New Salem News; Genie Gunn Casey; Jackson Goddard; Rose Lyman; Scott Farrar, Jared, National Grid Representative; Barbara Lauriat, Attorneys for the Fishers; Marny Ashbourne; David Cramer, Planning Board; Bradford Randall, Ancient Growth; George Hunt; Pete D’Agostino, Peter Fisher; David Briand, Assessors; Tamara Conde, Cemetery Commission
Selectboard Reviewed & Signed the Following:
- Payroll & Vendor Warrants
Pole Hearing – 37 South Main Street
Nancy Aldrich summarized that National Grid would like to install about 100 feet of conduit from an existing pole to 37 South Main Street. There would also be a pole box at the base of the pole. This would be all that would be installed in the public right of way. Randy apologized for the amount of time this has taken, but opened the floor to questions from the public. Barbara introduced herself as an attorney for the Fishers. She asked the Selectboard to consider not approving this request as her clients have taken an appeal and this may be premature. Should the Selectboard determine not to do so, she put forward a proposal that the Selectboard grant permission on this conditionally pending appeal. Scott then spoke on behalf of National Grid. MGL requires them to serve all customers requesting service and the customer requires service now. Wayne then asked about the service noting it is substantial, about 800 amps. Jared responded by outlining the change in service and why it’s about 800 amps. Jared noted that the size of this service really shouldn’t have an impact on the decision. This is on the low voltage side and will run through a conduit. This isn’t 800 amps blowing through in that sense. Wayne felt there wasn’t much of an alternative. He understood what Barbara was saying noting there is an appeal before the ZBA, but didn’t really see an alternative. While there are other issues, if National Grid is ready to go with this and will restore the road he couldn’t see how holding this up would benefit the town or the public. Randy noted that if changes are made later the customer still has the right to get their electrical service now. Peter then asked when work would begin and be completed. Jared responded that it’s entirely to when the customer is able to complete their final electrical inspection. It could be anywhere from one month to two months, probably six weeks out. Wayne asked how long the road might be torn up for the conduit. Jared responded that most of the trenching should be on the same side and only anticipated it would be two days for the part where the road is opened up. Peter asked if there would be notification to him as an abutter. Jared responded there would be notice and likely a police detail for directing traffic. Scott agreed to make a point of notifying Nancy Aldrich prior to any work beginning.
A motion was made by Wayne to approve National Grids request to install conduit and install service at 37 South Main Street. The motion was seconded by Jean and passed without objection.
Town Property Mowing
Gabe started by explaining that tonight she’s representing Finance Committee. The Committee would like direction from the Selectboard as to how to break up the mowing from the Cemetery. The history is that the Cemetery Commission had an expense line that was sort of a misnomer as it was for cemetery under title but was paid for out of general town budgeting and not paid for from perpetual care. This account also covered all mowing in town beyond the cemeteries. So the Cemetery Commission is using that account to pay for its mowing’s, but the same account is now paying for that general mowing. Finance feels that this should be separated. Since this is open for discussion, Finance Committee would also like to address some needs that have been brought to them. Finance has a few options of how to handle the account. That’s not the real challenge, it’s really getting a handle on the amount. One of those is the need for a new lawn mower. Any decision to purchase a lawn mower and to create the line and so forth falls to the Selectboard as that body would sponsor any related articles on the town meeting warrant. Jean conceded that new lawn mowers are more efficient, but this is a big expense and she wondered if the current machinery is workable and in good order or whether this machinery needs to be replaced. Cam responded by identifying himself as the new employee mowing. What is being done here is to get a plan in motion. We own two pieces of equipment for this. A leaf vacuum for use in the fall, and a lawn mower. Most other communities are mowing with zero turn mowers which are more efficient and faster. Part of this is to lower man hours on the equipment which would actually lower the towns costs. The Lyman’s made a lot work with what they had. Tamara interjected that the current mower is old and likely only in good condition because of the Lyman’s. Cemetery always anticipated it would need to be replaced. The only reason a zero turn wasn’t used in the past was that they aren’t suitable for headstones. So with the cemetery having a service, there’s no reason not to pursue this for the rest of the towns mowing. Wayne then asked Gabe about capital improvement. Gabe responded this would likely be over $5,000. The quote is about $9,000. If the town goes for a slightly smaller deck it would likely fall under that.
She stressed this isn’t just recreational fields, it includes the Town Common and the sides of South Main Street. So she returned to the question of constructing expense lines for this mowing separate from Cemetery Commission. This being separate from the lawn mower question as that would require an article at town meeting. Wayne asked if this would wise to buy from a local company that could do service as well. Gabe responded the town could go with Hume who would service it or go to John Deere which would also service it. There are a few other options as well. The current mower the town does have is a Deere. Wayne asked about comparability. Cam responded that they would be pretty comparable pricewise. Wayne was comfortable with further research on this as part of the normative budget and capital planning process. David Briand noted that Board of Health bought a new mower for the Transfer Station and asked if it could be used for this as well. Cam responded that the Board of Health’s is a John Deere purchased with some surplus at the end of a financial year. The mowing happens regularly and that particular mower was bought at the request of DEP which was concerned about the use of more heavy Highway Dept. equipment. That mowing happens weekly. As to use for the general mowing, the mower is a bit different. DEP does inspect the work and everything must be in compliance. David then asked why the Transfer Station isn’t left as a meadow. Cam responded that large brush and trees cannot be allowed to root in the landfill and that’s why it must happen weekly. Jackson noted he’s purchased a similar mower, a Bad Boy, and it only cost about $3,400 at the time with a 52-inch deck. Jean then expressed some concern about putting the expense lines with building maintenance. She submitted having two different accounts, feeling it to be cleaner and easier. Gabe responded that we really do need to figure out what the costs are. She felt confident that it could be safely done in one line.
Still, whoever is going to be mowing the fields needs to be able to sign off on bills that go through and they should answer to the Town Coordinator. She felt a good starting budget could be as little as $3,000. The labor was always very reasonable with the Lyman’s. But we don’t really know with Cam now. But the new mower might help lower costs by improving on labor. This can be tweaked as time goes on. We just need to set this up. Cam agreed noting the newer mowers are so much more efficient. So they save on manpower and time. Wayne expressed favor for the proposal, but felt it should be researched further. Tamara felt it would likely cost about $4,000 to $5,000. Gabe asked Tamara if she has an estimate noting that one will be needed for Cemetery’s budget. Tamara responded that Cemetery Commission is running about $8,000. Gabe asked that vender quotes be included with the next budget request as Cemetery will need to increase its existing line. Tamara stressed that the costs are flat in the sense that they don’t have to maintain equipment, pay for repair costs, or other employee costs. Tamara was confident in her numbers. Cemetery could probably give up a little from its budget in her mind to assist in establishing these new costs. It was agreed by all that the Lyman’s were a bargain and a hard act to follow. Randy agreed with Wayne’s position on doing more research. Otherwise he was generally in favor as well. Gabe then reminded all parties that budget sheets have been sent out for requests and departments need to fill those out. Finance Committee would like to have things battened down before March. Randy asked where the funds for a new mower would come from. Gabe responded it would have to be Free Cash or borrowing. Wayne asked if it could come out of Vehicle Stabilization. Gabe responded the town could do that. Randy asked what the cost would be if the town hire out to a service. Gabe responded it would cost 3 to 4 times as much. Wayne echoed that based on his own experience. Wayne asked about the next scheduled Finance Committee meeting. Gabe responded that one hasn’t been scheduled as of yet. Finance is asking people to submit their budget request sheets. It was agreed to set the expense line up as lawn maintenance. It was also agreed to pursue an article on the next town meeting warrant for the purchase of a new mower. Nancy noted that ultimately the town will vote on this and it will require the voters blessing both for the mower and for the line as part of the budget.
A motion was made by Wayne to separate a line for general lawn maintenance for this mowing. This motion was seconded by Jean and passed unanimously.
Questions Regarding Appeal to Zoning Board of Appeals / 37 South Main Street
Amy outlined the current situation. An appeal has been submitted by the Fishers. There were two variances which were deferred by the ZBA over the summer after discussion with the Building Inspector who is also the Zoning Enforcement Officer. The ZEO advised that this would fall under the purview of the Planning Board. ZBA abided by that. But now this application has come in appealing that decision. So it is unclear as ZBA was under the impression that the prior decisions, including that of Planning Board were valid and binding. Phil then spoke to his own impressions of what happened and noted this involved extension of a nonconforming use rather than a variance. Outlining the history, he elaborated on how this became a Planning Board issue versus a Zoning Board of Appeals decision. The applicant chose to go with the Planning Board option regarding the extension of the nonconforming use rather than appealing an adverse decision by Phil to the Zoning Board of Appeals as to his ruling on the status of their work being conforming. He commended all parties in this process. But as to appeal of his decisions to grant applications that appeal can be taken to the ZBA. Still he recommended that Town Counsel be consulted. Amy noted that this was decided to be addressed as a special permit issue for Planning Board. Phil elaborated further on the two options. Planning Board has already rendered their decision, which makes its somewhat unclear. They have granted an extension for a nonconforming lot. So it opens the question of where that leaves the ZBA. Barbara then spoke to explain the basis of the appeal from her clients. She argued that the Planning Board granted these extensions under Special Permit which she argued was granted improperly as they were not granted with a variance. Phil disagreed with that position arguing that a variance did not need to come into it under his reading of MGL Chapter 40A.
While a home cannot become more nonconforming, he did not feel that it would block this extension. Barbara responded that she isn’t surprised at that position given case law, but she argued that utilizing the test from the courts, there is a limit on the process. To her mind the ZBA really needs to look at this to determine whether in fact a variance should have been issued. A variance usually is a higher threshold and the Planning Board cannot grant one. Further if the Special Permit issued by Planning Board should have had a variance then it would be invalid without the ZBA having first granted one. Phil responded by outlining again his understanding of the law which is in contrast to Barbara’s. He felt that this really was a decision within the purview of the Planning Board. Amy was uncertain of the jurisdiction of the ZBA to acknowledge that a decision by Planning Board is null. She did not feel she had that knowledge or authority to come to that conclusion. Wayne acknowledged that Town Counsel has previously found that this subject falls under Planning Board’s purview. Amy differentiated that and felt this to be a separate question for Town Counsel. Still Town Counsel felt that any appeal of the Planning Board should be to the Land Court. She acknowledged that Barbara argues differently, but did not feel comfortable with ZBA taking action without first consulting Town Counsel. To that end Amy asked the Selectboard if the ZBA could consult Town Counsel. Phil then added another piece of information. He noted that part of this is a claim that he has failed to address a patio and a fence installed at 37 South Main Street. The law allows the installation of the fence without a building permit assuming it stays under 6 feet. Barbara responded that the concern isn’t the fence, it’s the patio. She also argued the fence is really a retaining wall and if over 4 feet they must have a permit. Phil responded that a retaining wall issue would be separate from the fence. Again this could all have been resolved at the Planning Board. Phil confirmed that he never issued a permit for a patio. Still this is separate from any other question of appeal to the ZBA relating to the permit. Amy returned that this issue at this meeting is in regards to the jurisdiction question for ZBA.
Randy noted that it seems like there’s information going around and it might be useful to have a succinct statement that is clear drawn up. He expressed concern about an extended back and forth with Town Counsel. The best way in his opinion is to have something from Phil, something from Barbra, and something from ZBA. This can be sent to Nancy Aldrich and boiled down. Amy responded outside of the inquiry regarding jurisdiction there really isn’t anything more for ZBA. Phil noted he has a fair amount of documentation that he can provide. Wayne suggested a site visit. Phil was happy to assist. Still he did not feel it appropriate for him to question the Planning Boards decision. Amy asked Phil to proceed with compiling what he has. Barbara noted that there is an appeal that is pending before the Land Court. Amy then asked if this is already in Land Court why ZBA would wish to intervene now. Barbara responded that given the time frames under MGL for appeal, that appeal to ZBA has to happen simultaneously. Amy asked what would happen if the Land Court upheld the Planning Board’s Special Permit. Barbara responded by elaborating on how that would work and noted that they have to appeal and the ZBA can wait for tolling from the Land Court while its weighs in. Randy asked about extensions as a result of COVID-19. Phil noted that if both parties agree an extension can usually be granted to his recollection. Jean noted she would like to read all of the information and asked to be included. Barbara advised her on how to reach the documentation she has submitted to the Land Court. David Cramer noted that the only appeal to this is the one from the Fishers. Otherwise Planning Board hasn’t heard from the property owners. He then noted for the record that as of December 10, the extension of time for issuance of permits due to the pandemic has ended, but he agreed with Phil that it may be possible to extend the time with agreement among all parties. Randy asked what the outcome would be if Town Counsel determines that ZBA can address some of these questions. Wayne responded it would likely result in a lawsuit. Amy disagreed noting that ZBA would have to go through its processes and making a decision. Once that decision is made then it would go from there. Barbara responded that if ZBA required a variance they could simply apply for one from ZBA. Phil noted that if they were denied they could be ordered to undo the work and it would all indeed end up in court. It was agreed to proceed with consulting Town Counsel with the matter going through Nancy Aldrich’s office. It was also agreed to attempt to have this question resolved by the end of January. Jean requested this matter be on the Selectboard’s next meeting agenda for follow up. It was so agreed.
Chapter 61 – Waiver of Exercise of First Right of Refusal at 2 Daniel Shays Hwy
Nancy Aldrich explained that the location that Ancient Growth will be going into is under MGL Chapter 61. When the use of a property changes or if the property is sold, the Selectboard has a right to first refusal. Ancient Growth is asking the town to forego exercising this right. Bradford explained that this is really just a change in use as George Hunt will continue to own the property and Ancient Growth will be a tenant. But given the considerable financial investment Ancient Growth has in this, it is necessary to seek this waiver now. Jean had a few questions asking if the right of first refusal pertains to one lot or several and whether it would apply to the building on the property as well as some curiosity regarding the use and whether it would fall under Chapter 61’s uses. Bradford responded that the lot is 6.9 acres. Obviously Ancient Growth won’t use all of that, but it is one lot. None of the property can remain under Chapter 61 after Ancient Growth starts as it would change the use. Wayne noted the house should be on its own lot separate from the Chapter 61. He asked if this was in Chapter under forestry or agricultural. Bradford responded that what he has from George Hunt is that it is one parcel. Wayne felt certain the house should be on its own lot at a minimum of 2 acres. George responded that to the best of his knowledge the town granted the status despite the house being on the lot and it being a whole lot. George said to his memory the lot was never subdivided and was always one lot at about 6.95 acres. He bought it at a real estate auction two years ago in April. He recalled that it was in foreclosure and the house was in serious disrepair. Wayne asked if he put it in Chapter. George responded that he did put it in and had to apply for the status which was granted. Wayne felt the Selectboard would need to consult the Assessors about the status prior to any vote. David Briand noted that Chapter 61A & B require 5 acres. Chapter 61A & B have to reapply yearly with a minimum of 5 acres. Wayne felt the house should not have been included in Chapter status. Further he would think given the substantial repair work done to the house that it would remove any grandfathering for a 1-acre lot and likely require a 2-acre lot. He didn’t feel it to be a huge issue but felt it should be cleared up. Jean asked about the value of the premises. Bradford responded George bought it for about $86,500. Randy asked what the difference would be in the right of first refusal here. Wayne responded that it only makes a difference as to whether everything is in proper order. He was positive the town doesn’t want to exercise this right, but the town should have this cleared up. Randy asked if the town can make sure the paperwork is correct while still giving some indication to Ancient Growth on this. Wayne suggested presenting this as being contingent on the paperwork being cleared up. Bradford was amenable saying a resolution signifying the town is not interested in exercising the right is sufficient. Nancy Aldrich noted that the Selectboard will have to vote again down the road. So this is really signifying the intent and not the final paperwork. This won’t be filed in a registry anywhere just indicative of the towns intent.
A motion was made by Wayne affirming that the town has no intent to exercise its right of first refusal under Chapter 61 as to this property. The motion was seconded by Jean and passed unanimously.
1794 Meetinghouse Request for Proposals
Nancy reported on her discussions with the Meetinghouse. The Meetinghouse is looking for a 25 year to 30-year lease. This would require an RFP as a result. Wayne felt that far beyond comprehension. He was amicable to a 5 to 10-year lease, but not a 25 to 30-year lease. Randy noted that this building is a special case in a sense and it is being used and the party using it wants to maintain it. People are using it and noticing issues. So we don’t want to lose them. Tamara interjected to say that the issue is likely obtaining grants with a 10-year lease. Jean asked want type of grant is in question. Tamara responded it would be a preservation grant and they usually want at least a 25-year lease. Wayne was still uncomfortable with such a long lease term. He recalled times he’s been involved with preservation where something like this wasn’t needed. Jean noted that if there are specific grants being looked at some of the concerns could be addressed in the lease through specific provisions. Nancy Aldrich submitted that to further this project there needs to be a determination on the years being pursued. Wayne suggested asking Town Counsel prior to agreeing to something like a 25-year lease. Randy asked about the timeline. Nancy responded it’s likely that they have a grant timeline and that might be a consideration, but an RFP is going to be a 4-8 week process. But there is still work going on to get that RFP ready. Jean noted some of the ways this can work noting it may not be that they themselves have to hold a lease. It’s possible that the matter might involve the town. She suggested that it could be a quick easy question for Town Counsel. Nancy was concerned about the budget for Town Counsel given that the town is 73 percent expended on that budget. Jean agreed in that light to reach out to Massachusetts Historical Commission to try to get the question answered.
Board of Health Request to Contact Town Counsel
Nancy reported that the Board of Health has withdrawn this request.
Removal of Dangerous Trees
Wayne briefly reported on two dead large maples that are dangerous. Given their dangerous status he felt the town could move on them. He recommended hiring a tree removal service for the day and getting these and any other dangerous trees removed immediately. Randy asked whether these are trees that the Tree Committee and Tree Warden acknowledge are dangerous. Wayne responded that is correct and Tree Committee has the budget for this. A number of these are close to the road so they really pose a danger. Randy asked if the Tree Committee needs to do this or whether the Selectboard needs to act for them. Nancy Aldrich responded that the final decision is the Tree Warden’s. Wayne responded that he is on board with this. One of the dead maples is actually across the street from the Stowell Building.
The Selectboard considered the minutes for November 30, 2020 and December 14, 2020. It was agreed to table the minutes from December 14 and to approve the minutes from November 30. Wayne was comfortable with the minutes as written. Jean went over the changes she was proposing. Randy felt that there may be an appearance of spin in the changes so proposed. The minutes to him were clear. It appears to him, in his opinion, that whenever there is discussion regarding COVID-19 there are attempts to spin things in a particular direction. The party that takes minutes does so with the attempt to be neutral and he felt that important. Jean submitted her changes are reasonable and these minutes are the record of the Selectboard and the Selectboard can make changes to that record.
A motion was made by Wayne to approve the minutes of November 30, 2020, as written. The motion was seconded by Randy and passed by majority vote with Jean opposed.
A motion to adjourn at 9:14 pm was made by Wayne. The motion was seconded by Jean and passed without objection.
Jakob K. Hamm, Selectboard Clerk