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HomeMy WebLinkAbout1996-03-12 Board of Selectmen Minutes Board of Selectmen Meeting March 12, 1996 The meeting was convened at 7:00 p.m. in the Senior Center Dining Room, 49 Pleasant Street, Reading, Massachusetts. Present were Chairman Sally Hoyt, Vice Chairman, George Hines, Secretary Camille Anthony, Selectmen Dan Ensminger and Bruce MacDonald, Town Manager Peter Hechenbleikner, Town Counsel H. Theodore Cohen, and the following list of interested parties: Gordon Rogerson, Paul Feely, Richard Smith, Bill Ryerson, Don Cowan, Brendan Hoyt, Florence Campbell, Beverly Daly, Steve Crook, Frank Driscoll, Nancy Eaton, Peter and Robert DePesa, Atty. Steven A. Colarossi, Steven Maddox, Erik Newton, R. Graham, Stephen Viegas. The meeting started with the swearing in of the two re-elected Selectmen. Sally Hoyt attended by her husband Brendan Hoyt, was sworn in by Town Clerk Cheryl Johnson. George Hines attended by his wife Rose Hines and son Chip Hines was sworn in by Town Clerk Cheryl Johnson. On motion by Anthony seconded by Hines, the Board of Selectmen approved a Certificate of Appreciation for Summit Towers Condominium Association for the Water Conservation Program. The motion was approved by a vote of 5-0-0. Dick Smith, President of the Association, was present to receive the Certificate, and explained the Water Conservation Program to the Board of Selectmen. Liaison Reports/Selectmen's Comments: Dan Ensminger noted that the Budget Council had completed its work. He attended the RMHS Boys'and Girls'Track Banquet, and presented the Proclamation on behalf of the Board of Selectmen. He attended the Girl Scout Gold Award Program on Sunday. Camille Anthony attended the Ipswich River Watershed Association meeting and will report on it at a later date. She attended the Reading Healthy Community Program and they will meet again on March 26. The Program has been entitled HELP READING. She attended the Water and Sewer Advisory Committee Meeting with regard to the new rate structure. She organized a Community Day Celebration Meeting and the next meeting is March 21. The Community Day will be held on Memorial Day or on June 2. Bruce MacDonald discussed with Representative Brad Jones the KENO license policy. He received calls regarding the Mill Street developments being too close to the river bank. He has received calls regarding the conflict of interest special exemption issues for employees. He attended Cathy Quimby's retirement party. He expressed thanks to the people who established the cross country ski trail in the Town Forest-- he has used it this winter. George Hines noted that the budget work is completed and that the Budget Council works very well. The conclusion of the budget process is very positive this year. He attended the Finance Committee meetings the last two weeks regarding budget and capital expenses, and particularly Board of Selectmen Meeting-March 12, 1996 -Page 2 the Recreation Improvement Program. He feels that the article providing for expanded recreational facilities is an opportunity to expand the Town's facilities. He attended the Ice Arena Board of Director's Meeting. The debt on the facility is below$400,000 because of surpluses in operating revenue. On the 17th, a Bruin's Old Timers Game will be held at the Burbank Ice Arena as a fund-raiser. With regard to the election, he noted that it was the first time he has run unopposed, and that was very unusual. He felt that the workers did an excellent job and that the election went without a hitch. He still hears a few comments about people preferring to vote in their neighborhood schools, and this issue should be monitored over time. He thanked those who came out to vote. He made a bid for additional volunteers and noted that a number of Town Meeting seats went to write in candidates. Sally Hoyt attended Cathy Quimby's retirement dinner. She attended the Budget Council meetings and felt they were very positive. On March 5, she went to the Vocational School Open House. She attended the Arnold Berger Memorial Service. On March 7, she participated in doing the drawing for the housing lottery for Bear Hill. On March 10, she attended the EMARC breakfast at which Ruth Clay and Jim Keigley received awards. She attended the Girl Scout Gold Award Program, and attended the County Advisory Board,Legislative Committee. Public Comment: - There were no public comments. Town Manager's Report: The Town Manager noted that the budget has been approved by the Finance Committee. He also reviewed the Presidential Primary Election and Town Election, and noted that feedback is requested but that everything seemed to go very well. The Town Manager reviewed a list of vacancies on Boards, Committees and Commissions. The Town Manager expressed that Town employees have continued to do an outstanding job on snow plowing and ice control this winter, and that additionally Water Treatment Plant employees have been recognized by the Massachusetts Dental Society. The Selectmen's Forum scheduled for March 7 was rescheduled for the 28th of March. The Disabled American Veterans are having their Forget-Me-Not Sale on April 22 to April 28. The Town Manager reviewed the Board's meeting schedule for the next couple of weeks which involved a lot of activities outside of regular Board business. The Town Manager noted that the Reading High School teams have continued their outstanding accomplishments both in athletics and academics. Hewill put back on the Agenda discussion on appropriate recognition of such achievements. Board of Selectmen Meeting-March 12, 1996 -Page 3 Discussion/Action Items: Continuation-Hearing on Change of Location Liquor License- Square Liquors The Board continued the hearing on the Change of Location of Liquor License for Square Liquors. James Watts, representing the applicant, brought the Board of Selectmen up to date on the application. The Board of Selectmen reviewed the material that was submitted since the last meeting. Watts noted that he had, at the Town Manager's request, sent a notice to all of the abutters who had received notice previously that the hearing would be held on March 12 at 7:45 p.m. at the Senior Center, Camille Anthony expressed concern about no loading area, less parking spaces than required, drinking in Memorial Park, and hours that were non-traditional to retail stores. Bruce MacDonald asked the hours of operation (10:00 a.m. to 11:00 p.m., Monday through Saturday) and when the traffic demand is highest(traffic tapers off between 8:00-8:30 in the evening). It was noted that they have in the past been open five Sundays per year. Gordon Rogerson representing Old South Church as the Chairman of the Board of Trustees is a resident of 34 Charles Street which abuts Memorial Park. He noted that there is a pre-school with 3 to 5 year olds at Old South and they take frequent field trips to Memorial Park. He is concerned about them having to walk past the liquor store with the advertising of the resident in the windows. As a resident, he noted that in the summertime kids drink in Memorial Park. There is a problem and the Police can't handle it. He is not saying that the applicant currently contributes to it but is concerned about the proximity of a liquor store to the park. The Board of Trustees took a formal vote in opposition to the location of the liquor store at this site. He expressed no concern about Sunday sales and in response to question by Ensminger noted that there are no problems with the store at its current location which is only 300 feet farther from the church than the proposed site. He noted that there is no concern about traffic. Ted Cohen read the state statute with regard to what authority a church or school has with respect to location of liquor serving an establishment. George Robertson, the owner of the two family home across the street, expressed concern about difficulty getting into and out of his property, and about lights shining on his property. He noted that Salem Street is a residential street. Attorney Watts suggested that traffic impact a store like Square Liquors compared to other stores that can be located at this site is minimal. Watts noted that the liquor store gets 5 to 6 deliveries per week from a straight body truck, not a tractor trailer. If the Board of Selectmen put a condition on the license not to allow two delivery trucks at one time, the applicant could live with that. Board of Selectmen Meeting-March 12, 1996 -Page 4 Peter Dubois of 26 John Street had three problems with comments previously made: 1. The impact of loading trucks would be very minimal; 2. The drinking problem is not liquor stores, it is problems at home; 3. The traffic would be minimal compared to what is there currently. He noted that people in Town do not want change, and he suggested that the Police need to spend more time working with kids. John Cann owns the property and noted that he never promised that there would be no liquor store at this site, and never promised vans for delivery at this site. Dan Ensminger noted that some of the neighbors raised legitimate concerns, and would like to see the Town increase the bicycle patrol at Memorial Park. Gina Lawrence of 13 John Street noted that any type of store is going to create traffic but a liquor store will create traffic avoiding the Square. There are children in most of the homes, and residents are trying to make John Street a family street. The construction work at the end of John Street at Walkers Brook Drive did help slow traffic down but there is still a lot of traffic. Chris McPhail of 864 Main Street spoke and indicated that he doesn't believe the applicant should be discriminated against because of the business they are in. Gary Nixon of Main Street spoke in opposition to the petition. He presented a petition of people within 500 feet of the site, and a petition that was circulated within the school. They want something in this location that is consistent with the residential area. Bill Brown of Martin Road noted that the site used to be an auto dealer and gas station and that it was always a busy location. Steve Viegas of 16 John Street spoke in opposition to the location being within 500 feet of a church and 500 feet of a park in a residential neighborhood. Gail Rinaldi of 37 Salem Street spoke in opposition. She lives in a residential area and wants to live in a residential area. She said the traffic would increase significantly and there are two driveways (a site plan was to provide only one driveway). She knows that there will be more accidents and hopes that if this is located here, that everyone will go for a tax abatement. There are a lot of kids that walk up and down this street. John Cann noted that there is only one driveway, and it is now closer to the white house. If there is a restriction on the proposed lease, that there would be only one delivery truck at a time. The signs in the windows are restricted and the building is set back a far distance from the street. Board of Selectmen Meeting-March 12, 1996-Page 5 On motion by Hines seconded by MacDonald, the Board voted to close the public hearing on an application to change the location to sell all alcoholic beverages by Athens Liquors, Inc. d/b/a Square Liquors, 607 Main Street, to a location on 34 Salem Street. The motion was approved by a vote of 5-0-0. Members of the Board of Selectmen spoke on what they had heard. Hines noted that he has respect for the business owner but will vote against the relocation out of respect to Old South Church's findings and the residential neighborhood. MacDonald noted that he agreed with George Hines. This is a residential neighborhood. The church's position has to be taken into account--the church can't move its location but the liquor store does not have to be located here. He suggested that if there are building code violations in the present location that the Town should inspect and take care of it. Camille Anthony had reviewed the Planning Commission and ZBA notes and the comments of the Historical Commission. The character of the business that goes into this location has clearly been a concern from the beginning. Dan Ensminger disagreed with the three previous members of the Board of Selectmen. He feels that the applicant is a good business person. He thinks that the church's concerns are irrelevant-- traffic and Sunday sales would be more of an issue, but they have indicated that these are not problems. He does not feel that traffic is going to be a concern- Salem Street is a busy street anyway. A use that goes into that property could be much busier than a liquor store-- something like a convenience store. Sally Hoyt noted that she respects the applicant's business credentials, but is concerned about comments from the residents and from the church. Dan Ensminger noted that the Board of Selectmen have been on record as wanting business in downtown, and three times now have voted against business. On motion by Ensminger seconded by Anthony to approve an application to change the location to sell all alcoholic beverages by Athens Liquors, Inc. d/b/a Square Liquors, 607 Main Street, to a location at 34 Salem Street, with a finding by the Board that the use of the premises for the sale of alcoholic beverages will not be detrimental to the education or spiritual activities of the Old South Methodist Church was defeated on a vote of 1-4-0, with Ensminger voting in favor. Hearing- "Brown Bagging" in Restaurants: The Board opened the hearing on "brown bagging". The Secretary read the Legal Notice advertising a hearing on regulations on common victualler's policies. Steven Colarossi of 199 ^` Revere Street representing Focaccia spoke. He indicated that he was present to oppose the regulations. He noted that the practice of"brown bagging" has not presented any problems. Patrons have not had any problems. It has benefited businesses in the area including the liquor Board of Selectmen Meeting-March 12, 1996-Page 6 store next to Focaccia. If this policy prohibiting "brown bagging" is not adopted, there are other state regulations that apply to the sale and use of liquor. This regulation will only effect this business in Town(Focaccia) and will be unfair. The specific objections to the regulations are 1. The language that the Board may permit quantities of alcoholic beverages for cooking at the Board's discretion is inappropriate; 2. As the proposed regulation comes under the Board's regulations of common victualler's, it regulates the customers not the businesses; he asked the Town not to approve the policy as outlined. George Hines asked who would have liability if someone has been drinking on the premises and has an accident--would it be the patron or the business owner. Ted Cohen noted that under current case law, the responsibility would lie solely with the patron. The court has dealt with this issue in a number of cases, but it doesn't mean that in some future case, this ruling might be changed. Camille Anthony asked that if the Town has no regulation, does that mean that any business could have alcoholic beverages on the premises. Ted Cohen noted that the ability to regulate is local --there is no state law. Some towns say that if a license does not permit "brown bagging" then it is prohibited. Others say that if it is not prohibited, then it is permitted. If there are no bylaws or regulations dealing with the issue, then "brown bagging" would be allowed in any facility that has a common victualler's license. Bruce MacDonald asked if a regulation could be developed to prohibit "brown bagging" in certain types of places. Cohen noted that a regulation might be drawn up to do that but it would be very difficult. If the number of seats is the issue, for example, most fast food restaurants would have plenty of seats, but places like Focaccia probably would not have enough. It would be important to set up fair and logical distinctions if the Board were going to establish such a regulation. Camille Anthony asked how many seats there were at Capri Restaurant. The Town Manager noted that there were less than 100 but that Capri was planning on expanding to the adjacent area. Anthony also noted that some places have to pay a lot for a liquor license and wondered how that was fair. MacDonald noted that if people are "brown bagging," what is the responsibility by the owner for underage drinking, etc.? Ted Cohen noted that if the owner determines there is a problem, he may have an obligation to call the Police. Ted Cohen gave his opinion to the Board of Selectmen. He noted that in his opinion the the Board of Selectmen have the power to approve such a policy or regulation. Section 3-2 of the Reading Home Rule Charter gives the Board of Selectmen the power to adopt regulations. The November 30, 1976 Cambridge license that is the model for this has had no problems in terms of enforcement. The proposed regulation contains the same language as to the discretion of licensing authority as the Cambridge regulation. He feels that this would stand up in court. With regard to the question of whether this applies to one business, that is up to the Board of Selectmen. Under Section 4.11 of the Reading Home Rule Charter, itis his opinion that this regulation is valid and the Board of Selectmen Meeting-March 12, 1996 -Page 7 Board has the power to adopt it. Dan Ensminger asked about the earliest possible effective date. Ted Cohen noted that the restriction in the 1996 license would apply to all but Focaccia because of the Superior Court action-- at least until Friday,the 15th of March. On that date, Focaccia and the Town are due back in Court at 8:30 and the court will hear the outcome of the action by the Board of Selectmen. There is a lawsuit pending. If the Board adopts the regulation, it may not go into effect until litigation is complete unless the restraining order is lifted. In the worst case, he felt that the Selectmen's regulation would be in effect immediately with the possible exception of Focaccia where the regulation may not go into effect until January of 1997. Sally Hoyt asked if a bylaw was required, and Cohen noted that he does not believe so. He feels that the Board of Selectmen have the authority to introduce such a regulation on their own. The Board opened the discussion up to the public. Russ Graham, former member of the Board of Selectmen, gave the historical perspective on the current liquor regulations in Reading. He noted that the entire discussion and campaign to allow liquor to be sold in restaurants was based on 100 seat capacity. There has never been a change until this time about restrictions on "brown bagging" in restaurants. He would urge the Board to adopt the policy as they have written it. Sandy Trainor of 35 Scotland Road spoke in favor of allowing "brown bagging." She feels that it enhances the dining experience, keeps business in Reading, and permits fine dining at a moderate price. She did note that one disadvantage was that there is no liability on the restaurant owner. She suggested that in the interest of developing the Downtown area, the Town needs to look at its policies that discourage Downtown development. Maybe in allowing "brown bagging," Reading could become a center for fine dining. She thinks we should look at less regulation and become more user friendly. She suggests to continue "brown bagging" until the bigger issue of Downtown development is dealt with. Anna Carroll, proprietor of The Hot Spot on Haven Street in Reading, has a common victualler's license and it has the restriction that there be no alcoholic consumption on the premises. She feels that restriction is valid and she accepts it. As a citizen, she is concerned about "brown bagging." She is concerned that if"brown bagging" is allowed in a place where one is not encouraged to sit for awhile and eat, that there may be a tendency to finish the bottle of liquor quickly and then drive home. Don Cowan, Vice President of Chamber of Commerce. He sent out letters to 28 restaurants who have licenses so that the Chamber of Commerce could understand their concerns. The few comments that he got back were that they did not care one way or the other, but that they wanted regulations to be on an equal footing. Personally, he indicated that he would hate to see 28 restaurants with the ability to "brown bag." He has heard from managers that they have found empty beer and wine containers in their restaurants. He is opposed to young people drinking on Board of Selectmen Meeting-March 12, 1996 -Page 8 the premises. He feels that all restaurant owners didn't feel that they needed to show up because they thought the regulation was appropriate. MacDonald, for clarification purposes, asked whether the other restaurateurs wanted a level playing field, or whether they wanted "brown bagging." MacDonald also noted that a restaurateur, even though he was not restricted from allowing "brown bagging" could prohibit it on his own. Hines asked questions about the North Reading bylaw, and Ensminger asked if "brown bagging" is permitted in an establishment with a liquor license. Cohen noted that was not permitted. Steven Colarossi noted that the concern seems to be that there will be underage drinking. He noted that there have been no problems. Focaccia is willing to craft a reasonable regulation with the Town. Some of the national chains prohibit "brown bagging" in their National Charters. John Cronin of 403 Pearl Street noted that if you permit "brown bagging," then everyone else will want to do it. If the bottle is not consumed, then it is against the law to place it in a vehicle. If the owner of the operation has no regulations, there could be anything in the bottle. Somebody has to watch out for underage drinking. Camille Anthony noted that her concern is that we have been very stringent with liquor licensees requiring them to do TIPS training, etc. She is not comfortable with everyone having the ability to have "brown bagging," and feels that if you allow liquor to be served in your establishment, you should bear the responsibility. George Hines noted that "brown bagging" was not perceived as a problem in the past because it was not a community standard and was not allowed in the community. Deviation from the liquor license laws is not consistent with the community standard. Camille Anthony noted that while it may have not been illegal in the past, no one in the past considered it. Bruce MacDonald noted that he does not see what the problem is. He cited Rockport which allows "brown bagging" and where there is no problem, "brown bagging" is generally used by older people to enhance their dining experience- not to get inebriated. He would like to try to reduce the regulations. He does understand what is wrong with a person trying to take personal responsibility. Brendon Simpson owns the American Brake Service Store in Reading, and understands the Board's concerns. He noted that "brown bagging" does not create a bar room atmosphere. This is a full service restaurant, not a fast food restaurant. He noted that people who have liquor licenses get a large profit from the sale of liquor. "Brown bagging" is a convenience to the customers and does not see it as a problem. Board of Selectmen Meeting-March 12, 1996 -Page 9 Steven Maddox, a friend of Focaccia from California, noted that the Board of Selectmen seemed bent on establishing a regulation to prevent a problem that does not exist. Sally Hoyt had a concern about the practice of"brown bagging." She cited the efforts of the D.A.R.E. program, and the Prevention Education Coordinator in discouraging underage drinking. On motion by Ensminger seconded by Hines, the Board voted to close the public hearing on a policy establishing regulations on common victualler's licenses relative to the consumption of alcoholic beverages. The motion was approved by a vote of 5-0-0. Dan Ensminger read a portion of the Board of Selectmen policies on sale of liquor in restaurants, and noted that there would be no control if"brown bagging" was allowed in common victualler licensed locations. He does not feel that this would be fair to liquor licensees. MacDonald noted that the policy Ensminger quoted supports in spirit what will be done with "brown bagging." He noted that the Town should be in pursuit of solving a problem. Hines noted that this is not about one restaurant. It is better to be proactive with respect to underage drinking. There is evidence that underage drinking is a problem in the community, and this regulation would close that loophole. On motion by Anthony seconded by Hines, the Board of Selectmen voted to approve a policy establishing regulations on common victualler's licenses relative to the consumption of alcoholic beverages as submitted, by a vote of 4-1-0, with MacDonald opposed. Exemptions for Employees Holding;2 Positions: The Board discussed exemptions and special employee status for employees who hold two jobs -- particularly those who are municipal employees and also coach high school athletics. Sally Hoyt noted that the issue may be able to be dealt with by a Home Rule Petition, and that this could be done. Bruce MacDonald wanted to know what we open up in terms of problems, and Town Counsel reviewed the privileges granted to special employees. On motion by Ensminger seconded by MacDonald, the Board of Selectmen voted to designate the position of part time athletic coach in the RMHS Athletic Department as a "special municipal employee" within the meaning of the conflict of interest statutes. The motion was approved by a vote of 5-0-0. Board of Selectmen Meeting-March 12, 1996 -Page 10 On motion by Anthony seconded by MacDonald, the Board voted to approve 20(b) exemptions on the conflict of interest statutes for the following individuals and their positions upon completion and filing of all the required forms: David Roy Firefighter and Girls'Junior Varsity Basketball Coach James Collins-Police Officer and Boys'Junior Varsity Hockey Coach Lois Margeson-Girls' Swim Team Coach and Recreational Pool Director Frank Driscoll -Firefighter and Girls'Freshman Softball Coach Frank Driscoll and Mim Jarema spoke before the Board. It had been the Town Manager's understanding that Mr. Driscoll was not appointed, but Miss Jarema thought that he had been. The Board agreed to include it, and if he has not been appointed, then the necessary paperwork would not be done. The Board approved the motion by a vote of 5-0-0. Ted Cohen noted that we are due back in court on Sanborn Lane, and that he would continue to represent the Town in expressing that the Board of Selectmen had no concerns about an agreement between the "Old Sanborn Owners" and the "New Sanborn Owners" as long as the Town could get free access for all public services including school busing, police,fire, rubbish disposal, etc. The Board agreed. On motion by MacDonald seconded by Hines, the Board voted to adjourn the Selectmen's meeting of March 12, 1996 at 11:15 p.m. by a vote of 5-0-0. Respectfully submitted, Secretary