Selectmens Meeting Minutes - 10/5/2010
Selectmen’s Meeting
Nathan Media Center
Fuller Meadow School
October 5, 2010
7:30 p.m.


Chairman Lindberg called the meeting to order at 7:30 p.m. Present:  Mr. Prentakis, Mrs. Jones, Mr. Houten and Town Administrator.

Mr. Prentakis made a motion and was seconded by Mrs. Jones to read and initial the minutes to indicate their acceptance. The motion carried 5-0.

The Board approved Warrant #1114 dated October 5, 2010 in the amount of $565,270.
Chairman Lindberg asked for a moment of silence for Harry Matthews who served on and was Chairman of the Planning Board for many years.

Mr. Singer also pointed out that Mr. Matthews was a member of the Master Plan Committee and who helped put to together the permanent Master Plan for the Town.

Administrator’s Report:

  • 180 feet of Lake Street ductile iron water line has been installed, flushed, chlorinated and tested and activated with three new water services and waiting to see if discolored water problems are eliminated.
  • Rubchinuk fields will be sodden within the next two weeks.
  • School Construction gas main extended on Central Street, masonry almost done on ¼ of  the school, windows are on order and delivery is expected in mid-November, roofing work is ongoing and scheduled for completion by the end of October, temporary heating plans are made, a public meeting for the neighborhood issues is scheduled for October 19th at 7:00 p.m.
  • The purchase and sales agreement for the acquisition of 11 South Main Street will be closed on October 27th, at which time the Town will take possession of the property. As requested by the Selectmen, the Middleton Industrial and Commercial Design Review Committee has met to draft landscaping recommendations for inclusion into a site plan to be presented to the Board of Appeals but has not yet had the chance to review these with the Library Trustees, and the DPW Superintendent and Veteran Services Officer who oversees the Town’s war memorial and monuments on the Library grounds. Specifications are being drafted for the demolition of the structure and will advertise in the next couple of weeks with a due date for a bid for mid-November.
  • The purchase of the replacement ambulance to the Town’s 2001 Miller McCoy is on schedule and will be in service by mid-November. The Town was able to sell the older ambulance to the Town of Wakefield at market value including an exchange of portable radios to Middleton from Wakefield that were of use to the Fire Department. The new ambulance should be delivered within three weeks.
  • The State Budget Office has calculated the impact of the 2.5 billion dollar loss in revenue if Question 3 passes which reduces the state sales tax from 6.25% to 3% and predicts local aid will be cut $600 million in Fiscal Year 2012 and in this Fiscal Year starting on January 1st.
What that means to Middleton, the State Budget Office projects cuts under a simulation exercise of up to $464 million in Chapter 70 Aid and another $103 million in unrestricted local aid, together a loss of more than $232,000 not including regional school transportation funding, library aid, special education circuit breaker and other funds. This represents a loss in funding for about 5 full time jobs at a minimum.     

Chairman Lindberg reminded residents that the current vehicle transfer stations have expired. Town hall is open 8:00 a.m. to 4:00 p.m. Monday through Thursday Friday 8:00 a.m. to 1:00 p.m. and extended hours on Tuesday evenings until 6:00 p.m. The cost for a new sticker is $100.

Acceptance of $1,000 Donation from Gathering Change Inc. to Council on Aging Food Bank:  

Mr. Singer spoke with and received a letter from Dorothy Goodwin and explained that Gathering Change Inc. out of Lynnfield, MA was started two years ago as a 501c3 non-profit charitable organization that collects spare change from communities for distribution back into neighborhood food pantries.  The volunteers do not draw any salary and 90% of the donations go directly to the food pantries.

Mr. Houten made a motion and was seconded by Mrs. Jones to accept the $1,000 donation from Gathering Change Inc. to Middleton Council on Aging for the Food Bank in accordance with the Massachusetts General Laws, Chapter 44, Section 53A Gift Acceptance. Motion carried 4-0.  

Notice from Massachusetts State Lottery Commission of “Keno to Go” Agent Application Received from Fast Freddie 265 South Main Street: (If Town objects it must do so within 21 days of notice with written notice)  

The Board concurred that they do not have an objection to Fast Freddie’s at 265 South Main Street
getting a KENO monitor at their establishment to display Keno games.

Review of Chapter 188, Section 68 of the Acts of 2010 Providing a Municipal Tax Amnesty Program
during Fiscal Year 2011 until June 30, 2011:

Mr. Singer explained that this is brand new and is part of the Municipal Relief Act package which puts into play a temporary opportunity by local option through legislative body only which means Town Meeting an opportunity to enact a temporary tax amnesty program only through June 30, 2011.

The Local Tax Amnesty Vote options cover personal property, real estate and excise taxes. No immunity for the tax itself but for interest. This is Town Meeting’s decision, not the Selectmen’s decision.  

The Treasurer is preparing some evaluations and will bring back to the Board at their next meeting. The program will give a little boost in collections. The program allows for a uniform percentage of interest to be waived for some or all of taxes owed the Town.

For those who have not been able to pay their taxes on a timely basis will receive an amnesty. The purpose of the program is to encourage collections by waiving interest costs. The town in any one year is owed between $500,000-$600,000 in property taxes owed to the Town. The Town collects almost $19 million per year which includes Tax Title. The Town could collect up to $100,000 more than a normal collection process.   

The question is does the Board want to give the taxpayers the opportunity to approve the Amnesty Program on a Town Meeting Warrant?

If the Town does have a Special Town Meeting in May, by the time the Board adopts the program it would be seven weeks. Seven weeks is a short time window if it was well advertised. It will let the taxpayers know that if the taxes are paid within seven weeks he/she will avoid 14% interest on unpaid taxes. The program might encourage taxpayers not to pay and save the interest.

Mr. Prentakis stated that the Town’s uncollected receivables is only 3% and are pretty low for an Amnesty Program. The program might put taxpayers off on paying in other years if they think there will be another Amnesty Program.

Mr. Singer agreed that the Town has such low receivables because taxpayers are great to respond and pay their taxes on a timely basis. An Amnesty Program could become a disincentive if it is not handled properly. If the Town had larger receivables of unpaid taxes, the Town would have to disregard some of those fairness issues to do what it has to do to collect the receivables. Taxpayers need to understand that if the Towns based its budget on say $1 million dollars and it collected only $900,000 and yet spent the $1 million dollars the Town would eventually go bankrupt.  The Town manages its receivables through the balancing of its surplus and reserves.

The Town will look at the numbers and impacts to the Town. Ultimately it will be the voters at Town Meeting who will make the final decision for an Amnesty Program if the Selectmen choose to include it on a warrant.  Mr. Singer will bring back exact numbers of receivables.

Request to Schedule a Hearing for a Change in Hours of an Existing Class II Used Car Dealer’s License held by Middleton Auto Exchange, Michael Hancock, Manager at 184 North Main Street by Attorney Jill Mann:  Thomas Fallon, Town Counsel    

Attorney Jill Mann representing Mr. Michael Hancock, Manager of Middleton Auto Sales, Inc. located at
184 North Main Street. Attorney Mann explained that her client is here tonight in accordance with what
was discussed at a meeting a month ago. She explained they would come in and approach the Board to
expand the hours of operation as well as expand the use and remove the limitations that exist on the license
and not to do repairs in the broad sense of the word, but merely to do repairs that are necessary to get the
vehicle ready for sale.  

Attorney Mann is looking to show grandfathered right to maintain the vehicles, not to perform major
vehicle repairs, not to perform repairs for vehicles not being purchased and sold because that was never
done. Only activities that were previously done by Lewis Motors is what Mr. Hancock would like to
continue. Attorney Mann requested that her client be placed on the Selectmen’s next meeting.  Attorney
Mann explained that she does have to obtain some materials from the Building Commissioner’s Office to
review which would become part of the grandfathering procedures and establish with the Building
Commissioner what the actual use of the property had been with the previous owner. Attorney Mann had
submitted a letter sometime in September requesting to be placed on the Selectmen’s agenda.

Chairman Lindberg asked if Attorney Mann was requesting a change in hours only.

Attorney Mann is requesting a hearing, she would have preferred to have come before the Board for a
change of hours only, but was told a hearing was required.  

Attorney Mann asked if the Board is looking for her to make the argument for the grandfathering for the use of the property, she does have some materials that she has to present and go through the Building Commissioner Office.

Mr. Houten asked Town Counsel if the Selectmen have the authority to change the use for this property.

Town Counsel informed the Board that the Selectmen do not have the authority to change a use. When the Board licenses a business or amends a license what the Board is saying is that the person is suitable and that the premises are suitable for what the business is conducting. Town Counsel suggested that the Selectmen do not know if the premise is suitable unless the Selectmen know exactly what is being conducted on the property. Town Counsel suggested that Attorney Mann contact the Building Commissioner first. Town Counsel stated that it was his understanding from the Building Commissioner that these uses are not grandfathered. Although Town Counsel has not seen the license held by Lewis Motors, he believes the old license would be similar to the license now held by Mr. Hancock.  

Town Counsel stated that if the old licensee was doing work that was not specifically delineated on the license that he was probably doing so illegally and he was not grandfathered for those particular uses because it is the Building Commissioner’s decision to determine the use of the property. In any event, Attorney Mann should contact the Building Commissioner because it sounds like she will be appealing the Building Commissioner’s decision to the Board of Appeals. Everything should be resolved through the Building Commissioner and the Board of Appeals so that the Selectmen know exactly what uses will be allowed on the premises then come back to the Selectmen and ask for an expansion of the license.      

Attorney Mann stated that the license was limited because no one believed that the licensee had the ability
to do certain light repairs on the property and the Selectmen made that decision without the benefit of
counsel to her client and Mr. Hancock is looking to amend his license to allow him to perform certain light repairs. The prior owner changed tires, batteries and did light repairs. Finding the evidence to support the fact that the use was illegal will be difficult given what is in the files.

Mr. Houten stated that he does not have a problem with her client requesting extension of hours, but
changing the use on the license is not part of the Selectmen’s authority.

Attorney Mann believes the Selectmen do have the authority to put on the license whatever the Board
believes to be suitable and the license was limited to detailing of vehicles only. Attorney Jill Mann would have to show that it was something that was done and grandfathered. She contends what usually goes hand and hand with a used car dealership is minor repairs. The Selectmen limited the license in a manner not necessarily needed to support zoning and said that he can only do detailing of vehicles with the sale of vehicles. The Board can lift this restriction and by the way if zoning wise, if he is not permitted to do repairs and for example, if the Town still permitted a place to sell used automobiles and there was a location specifically allowed, the licensee could sell used automobiles, but there are no provisions for being able to have any kind of auto repairs associated with it like it was not part of the definition for the sales or if you could not have auto repairs. That new license, the Board would not have to say a darn word, because zoning prohibits that which you did or did not grant because the Board of Selectmen does not have authority.    

Mr. Houten asked if there is a license in Town to sell automobiles with the right to repair vehicles and who has it?

Attorney Jill Mann replied that right now her client does.

Mr. Singer stated that there is one other licensee in Town that is allowed to repair vehicles.

Mr. Houten stated that the Selectmen issued the same exact license to the prior owner at this location.

Attorney Mann contends that the Board did not issue the same exact license to her client and she can show the Board a copy of the previous owner’s license. The Board did not impose any restrictions on the previous license as they did on Mr. Hancock’s license.

Mr. Prentakis informed Attorney Mann that every license is different and the fact that the Board issued a license for that location and the licensee did or did not legally or illegally do repairs says nothing about what the license to the new applicant can do on his property.

Attorney Mann disagreed with Mr. Prentakis and said that the Board had no right to deny Mr. Hancock the right for a second hearing for a used car license if Mr. Hancock is a suitable person and if the suitable premises would have included to do minor repairs, this Board would have been acting arbitrarily and capriciously unless you could support that because it was a permitted use and that is why the licenses continue to be granted because these types of licenses are not longer permitted along route 114, the Town does not allow new used car dealerships. There were other car dealerships with a Class II license, but two years elapsed and therefore the use was abandoned. That is not the case with this property.

Attorney Mann will meet with the Building Commissioner and if he makes a determination that Mr. Hancock cannot perform light motor vehicle repairs, she will come before the Board and inform the Board of the Building Commissioner’s decision and whether or not she will appeal the decision. At that point she will still ask the Board to expand the hours of operation to 7:00 p.m.

Mr. Houten stated that he would agree to schedule a hearing to expand the hours of the current license, but anything else he would want a lot more information regarding the use change for light repairs.

Mrs. Jones stated that she thought Attorney Mann was going to speak with the Building Commissioner before coming before the Selectmen to request a hearing.

Attorney Mann stated that she did meet with the Building Commissioner and has been trying to schedule a hearing and did not have much success. She was waiting to hear from the Selectmen. If the Building Commissioner denies the light repairs, she would rather hear the two issues separately because you hurt the businessman by not allowing him to operate during business hours to sell vehicles.

Town Counsel stated that he was not at the hearing when the license was issued to Mr. Hancock. This is the second time he has he dealt with someone who has come before a Board whether it’s the Selectmen or Zoning Board of Appeals asking for a license or a special permit and agreed to certain conditions in order to get what they requested and then delineated from the conditions and terms of that license or special permit. A person granted a license/special permit from any Board shall agree to the conditions in return for that license/permit. Town Counsel does not know how the Board can bifurcate the issue before it can adjudicate whether these premises are suitable for the license expansion. You have to know exactly what is going to happen on the premises.  

Mr. Prentakis stated that the rationale for granting the license was based on Mr. Hancock being in compliance with the current conditions since his suspension.

Town Counsel explained that the Selectmen need to discuss the compliance issue before they make a decision to expand hours. If there was an alleged a violation of the license, the court could say that the violation was waived by the Board. There has to be some documents memorializing how many vehicles will be on the property, where they are going to be placed on the property and identifying employee vehicles. In fairness to the Selectmen, the Police Department and Building Commissioner who will be enforcing the license, everyone  should know in black and white if there’s a violation or not. Town Counsel stated that when the Selectmen get into the discussion of repairs it will make it difficult and it is dovetailed with Zoning Board of Appeals on exactly what is allowed on the property.

Attorney Mann stated that she will submit additional information if she has it to be presented prior to the meeting for the use change.

Mr. Houten made a motion and was seconded by Mr. Prentakis to schedule a hearing for extension of hours for Middleton Auto Exchange, Inc, Michael Hancock, manager at 184 North Main Street on October 26, 2010.  The motion carried 3-1 with Mrs. Jones voting against.

Other Business: 
Mr. Houten reminded the audience that the Pumpkin Festival will be held on Saturday, October 23, 2010
 and the committee could use some volunteers.

Mr. Prentakis informed the Board that the Town will be receiving $38,951 in matching funds to the
Community Preservation Fund which is $1,600 less than what the Town budgeted but does not present
any problems for the Town.  

At 8:30 p.m., Mrs. Jones made a motion and was seconded by Mr. Houten to adjourn the meeting. The
motion carried 4-0.