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HomeMy WebLinkAbout2002-08-28 Finance Committee MinutesJOINT MEETING OF READING SCHOOL COMMTTEE, FINANCE COMMITTEE, CONSERVATION COMMITTEE & BOARD OF SELECTMEN Regular Session August 28, 2002 CALL TO ORDER At 7:30 p.m. in the Superintendent's Conference Room, Chair Griset called the School Committee to order, Chair Anthony called the Board of Selectmen to order, Chair Martin called the Finance Committee to order and Chair Green called the Conservation Commission to order in the Superintendent's Conference Room. Present were School Committee Members Cavicchi, Dahl, Griset, McFadden, Russo and Twomey, Board of Selectmen Anthony, Cummings, Hines, Wood and Schubert, Finance Committee Members Epstein, Grimes, LeLacheur, Martin, McDonald and Robinson and Conservation Commission Members Finch, Goulet, Green and Lloyd. Also present were Superintendent Harutanian, Town Manager Hechenbleilmer, Attorneys Gonzales, Giffane and Slavitt. Finance Committee Member Ms. Grimmer and Conservation Administrator Ms. Fink arrived during the executive session. EXECUTIVE SESSION Ms. Cavicchi moved the School Committee enter into executive session for the purpose of discussing pending litigation not to return to regular session. Mr. Dahl seconded the motion The vote was 6-0 Ms. Cavicchi, Mr. Dahl, Mr. Griset, Mr. McFadden, Mr. Russo and Mr. Twomey voted yes Mr. Hines moved that the Board of Selectmen enter into executive session for the purpose of discussing pending litigation and to return to regular session at approximately 8.30 p.m. Ms. Wood seconded the motion. The vote was 5-0 Ms. Anthoni, Mr. Cummings, Mr. Tunes, Ms Wood and Mr. Schubert voted yes. Mr. Green moved the Conservation Commission enter into executive session for the purpose of discussing pending litigation not to return to regular session. Mr. Finch seconded the motion. The vote was 4-0 Mr. Finch, Mr. Green, Mr. Goulet and Ms. Lloyd voted yes. Mr. McDonald moved the Finance Committee enter into executive session for the purpose of discussing pending litigation not to return to regular session. Mr. LeLacheur Ms Martin Mr. McDonald and Mr. Robinson _ C-) Duo cn cn . JOINT MEETING OF READING SCHOOL COMMTTEE, FINANCE COMMITTEE, CONSERVATION COMMITTEE & BOARD OF SELECTMEN Executive Session August 28, 2002 CALL TO ORDER At 7:35 p.m. in the Superintendent's Conference Room, Chair Griset called the School Committee to order, Chair Anthony called the Board of Selectmen to order, Chair Martin called the Finance Committee to order and Chair Green called the Conservation Commission to order in the Superintendent's Conference Room. Present were School Committee Members Cavicchi, Dahl, Griset, McFadden, Russo and Twomey, Board of Selectmen Anthony, Cummings, Hines, Wood and Schubert, Finance Committee Members Epstein, Grimes, LeLacheur, Martin, McDonald and Robinson and Conservation Commission Members Finch, Goulet, Green and Lloyd. Also present were Superintendent Harutunian, Town Manager Hechenbleikner, Attorneys Gonzales, Giffune and Slavitt. Finance Committee Member Ms. Grimmer and Conservation Administrator Ms. Fink arrived during the executive session. Dr. Harutunian stated that the purpose of this evening's meeting was to bring all boards and committees up to date on the pending litigation. He stated that the attorneys were present this evening to make a presentation and answer any questions. ( Dr. Harutunian introduced Ms. Gonzales, attorney for the Conservation Commission, and Mr. Giffune and Mr. Slavitt, attorneys for the School Committee. Attorney Slavitt gave an overview of the current litigation. He explained in detail the process of the DEP appeal and bylaw appeal. He stated that the Mola's have 30 days from August 26th to appeal the decision. He stated that there is an extremely high threshold for anyone trying to overturn the decision on appeal. He stated the job of the appeals court would be the purely factual question of if the lower court made a mistake of law or if the decision was irrational. He stated that the cases were largely straight- forward. Mr. Slavitt informed the Committees that there is no order in place preventing the town from proceeding with the project. Dr. Harutunian asked if the Town decided to move forward on breaking ground what immediate action the Mola's could take in an attempt to stop the project. Mr. Slavitt stated that the Mola's could go to court for an injunction. Mr. Slavitt stated that the Mola's would have to show the court that they would have irreparable harm and that the harm to the them as plaintiffs outweighs the harm to the Town and is in the best interest of the public. He stated that the only issue the Mola's have is where the water goes from the property and that issue is .a fixable issue. He stated that his opinion that the likelihood of the Mola's successfully getting an injunction was not good. Executive Session 2 August 28, 2002 Mr. Hines asked if all of that is based on the judge's interpretation of the case and stated his concern about a previous lawsuit where an injunction was issued against the town. Mr. Slavitt stated that there is no guarantee but that no further evidence could be introduced and the judge would have to determine that the decision of the lower court was irrational. Mr. Slavitt stated that if they did file an injunction, the town would know fairly quickly if the court was willing to entertain the injunction. Dr. Harutunian asked for an approximation as to how long it would take to get through the appeal process. Mr. Slavitt stated that an approximate time frame was about one and half years to two years. Dr. Harutunian asked if the town decided to wait for all appeals to be finalized would the increase in construction costs be greater than any judgment that would come back regarding the Mola drainage issue. Mr. Slavitt stated that if the increase in construction cost was $1 million per year the town would spend more money by waiting than by possibly fixing draining issues. He stated that in his opinion this case was never really about drainage issues but about not ( having the project occur. Mr. McFadden asked for clarification on the timeframe of the appeals. He stated that Mr. Giffimes' letter states 6-8 month delay. Mr. Slavitt stated that the 6-8 months referred to the bylaw side of the case. He stated that a reasonable estimate for all appeals to be finalized was approximately two years. Mr. Schubert asked if the Mola's file an appeal, which our attorney's indicated they won't succeed at, is there anything the town can do to recoup legal fees such as filing a nuisance suit. Mr. Slavitt stated that in his opinion the courts would not discourage a citizen who wants to spend their time and money in court~from filing. He stated that the burden would be on the town to show the filing was malicious or frivolous. Mr. Schubert asked if an effort had been made to resolve water run off issues with the Molas. Mr. Giffune stated that he had unsuccessful discussions with the Mola's attorney to try to reach a settlement. He stated that the DEP superseding order of conditions resolves the ( issue. Executive Session 3 August 28, 2002 Mr. Schubert asked if the town is still responsible for making the change in the DEP superseding order of conditions. Dr. Harutunian stated that the change has been made and the cost was approximately $430. Mr. Twomey asked if there was a time period after construction started when they would have to file an injunction by. Mr. Slavitt stated that there is no statutory limit on when a party can seek an injunction, but that court takes into account whether a person promptly comes forward. He stated that courts are stringent about not being used for strategic reasons. Mr. Twomey asked if injunction proceedings a plaintiff can introduce evidence not already introduced in superior court. Mr. Slavitt stated that no new evidence about the merits of the case can be introduced. Ms. Martin asked about the legal costs to date and an estimate of costs to get through the appeals process. Dr. Harutunian stated that legal fees for the ten-taxpayer lawsuit were just under $100,000 and approximately $100,000 for the DEP. He stated that those fees do not include the fees for the Conservation Commission attorney and administrative costs. Mr. Slavitt estimated that future costs, without an injunction being filed, would be $25,000. Mr. LeLacheur stated that the cost of legal fees was minor when compared to the cost of moving ahead. He asked if there are any legal grounds on which they could stop the school from being built. Mr. Slavitt stated that based on what he knows, it is very unlikely they could stop the school from being built. He stated there is nothing within the reasonable normal range but stated that he could not confirm there was not a golden eagle nesting on the property. Ms. Lloyd asked if there is an amount of money that the Molas are looking for to settle the case. Dr. Harutunian stated that at no time was a cash offer made to the Molas. He stated that a plan including approximately $50,000 in landscape changes was put together and Executive Session 4 August 28, 2002 presented to the Molas. He stated that he felt the only acceptable solution to the Molas would be the entrance to the school coming in on Fox Run Road. Mr. Griset stated that he believes the Molas have a moving target and that the Committee has been aggressive in trying to settle. Ms. Fink asked if the SBA would reimburse on a project that was started before all appeals were finalized. Dr. Harutunian stated that the SBA's role has nothing to do with litigation. The reimbursement would not begin for 2-3 years after the project was complete and all appeals would be completed by then. Mr. Cummings asked if there were any other issues to be considered this evening. Dr. Harutunian stated that a discussion to let the public know where we stand right now should be considered. Ms. Anthony asked if the Molas were required to put up a bond if the injunction was approved what the cost of the bond would be. ( j Mr. Slavitt stated that the cost would be one percent of the purchase price plus one percent per year. Ms. Anthony asked for Ms. Gonzales opinion on what was discussed this evening Ms. Gonzales stated that she agrees 100% with what has been said this evening. The Town's exposure on losing this case is very small. She stated that notwithstanding a golden eagle nesting on the property she can think of any judge that would approve an injunction. Mr. Schubert asked if the Town has been harmed in cost by legal stalling tactics does the Town have any recourse to recoup the funds. Ms. Gonzales stated that the issue they raised probably would not be considered frivolous and the Town would spend more money trying to recoup funds. Mr. Grimes asked how long it would take for a decision if an injunction was filed and how soon would they have to file an injunction. Executive Session 5 August 28, 2002 Mr. Slavitt stated that an injunction would be finalized within one to two months. He stated that it is hard to image an injunction being issued in this case. Mr. Dahl asked if there is a process where we can claim irrevocable harm if we do not proceed such as increased construction costs. Mr. Slavitt stated that would be relevant information in an injunction hearing. Mr. Dahl asked if the Committee were to proceed and made changes to the project would the plaintiffs have any recourse for filing again. Mr. Slavitt stated that any changes have to go to the Conservation Commission and they would have to determine if the change impacted the underlying permit. ADJOURN At 8:45 D.M. Mr. Hines moved that the Board of Selectmen adjourn from executive session and return to regular session. Mr. Schubert seconded the motion. The vote was 5-0 Ms. Anthony, Mr. Cummings, Mr. Hines, Mr. Schubert and Ms. Wood. Mr. Dahl moved that the School Committee adjourn. Ms. Cavicchi seconded the motion. The vote was 6-0 Ms. Cavicchi, Mr. Dahl, Mr. Griset, Mr. McFadden, Mr. Russo and Mr. Twomey. Mr. Green moved that the Conservation Commission adjourn. Mr. Goulet seconded the motion. The vote was 4-0 Mr. Finch, Mr. Green, Mr. Goulet and Ms. Lloyd voted yes. Mr. McDonald moved that the Finance Committee adjourn. Ms. Robinson seconded the motion. The vote was 7-0 Epstein, Grimmer, Grimes, LeLacheur, Martin McDonald and Robinson Respectfully submitted, "tary S L