Selectmen’s Meeting

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Town Administrator

William R. Griffin

Mark A. Tirrell, Chairman

Linda Zuern, Vice Chairman

Richard LaFarge, Clerk

James T. Grady

W. Thomas Barlow

Meeting was called to order 7:00 p.m.

MOTION by Selectman Zuern, SECONDED by Selectman Barlow and UNANIMOUSLY voted to approve the minutes as amended by the supplemental packet provided at the meeting for September 16, 2003.

September 23, 2003

MOTION by Selectman Zuern, SECONDED by Selectman Barlow and UNANIMOUSLY voted to approve the minutes of September 23, 2003.

There was a discussion on the manner in which the minutes were recorded and how difficult it was hear and understand them during playback.

Chairman Tirrell welcomed Ms. Bergeron, a Wareham resident. Ms. Bergeron has owned the former Tin Man Diner in Pocasset since 1979. Ms. Bergeron said the Fire Department, Police Department, or her tenant never notified her of the fire. She received a telephone call the day after the fire from a public adjuster. Ms. Bergeron further discussed the fire incident.

Chairman Tirrell asked Ms. Bergeron what she wanted accomplished at the meeting.

Ms. Bergeron said she has been trying to rebuild since the fire and was told she could not from the Building Inspector, Mr. Laporte and that she should go to the Selectmen.

Ms. Bergeron’s issue is with the Building Inspector, not the Board of Selectmen. She was informed of the process to follow for obtaining a building permit and the appeal process and further assistance would be provided through the Town Administrator’s Office.

Selectman LaFarge went over correspondence.

A request from NSTAR Electric for the installation of one vault and one cable and conduit on Nightingale Pond Road in Bourne. The construction is necessary to accommodate future additions in the Pilgrim Pines development.

Karen Rae, Right of Way Agent for NSTAR presented petition 03-27 to upgrade the existing underground system on Nightingale Pond Road for 15 new lots being constructed on and future lots.

Questions were raised concerning the notification of abutters and the matter was tabled until an additional property owner, Timothy Smith, was notified.

MOTION made, SECONDED and UNANIMOUSLY voted to table.

Thomas Hanley - Bourne Cultural Council

The Selectmen each received a packet from the Cultural Council. Mr. Hanley introduced the members in attendance. He gave the history and background of the Council. He spoke of the grants currently available through the Cultural Council and the deadline of October 15, 2003 for filing this round. The application forms are available at the Bourne Public Library, Selectmen/Town Administrator’s Office and through the Cataumet Arts Center. Mr. Hanley explained the eligibility requirements for funding. The Council sponsored an artists’ studio and garden tour in the villages of Pocasset and Cataumet for the purpose of raising money to be used for public art in the Town of Bourne. The Council received assistance from the Aptucxet Garden Club and Cataumet Arts Center and others. Selectmen Zuern and LaFarge attended the sponsored tour and spoke of its success.

The Selectmen thanked Mr. Hanley for appearing before the board.

Chairman Tirrell introduced Attorney Thomas E. Finnerty.

Attorney Finnerty was representing Smith Enterprises. Pursuant to Massachusetts General Laws Chapter 138, Section 67, he filed an appeal of the Selectmen’s decision of September 19 to the Alcoholic Beverages Control Commission.

Attorney Augustus F. Wagner was notified of the suspension on September 22 and Attorney Wagner notified his associate, Attorney Finnerty on September 23.

Attorney Finnerty explained why he was there instead of Attorney Wagner. Attorney Wagner is on the Ethics Committee and there might create an appearance of a conflict if he represented Smith Enterprises before the Alcoholic Beverages Control Commission.

Selectman Barlow questioned Attorney Finnerty on Attorney Wagner’s position as Chairman of the Ethics. Selectman Barlow noted that Attorney Wagner is the Chairman of the Ethics Committee for all public officials, including the Bourne Board of Selectmen and questioned why it would be a conflict or appearance of a conflict at the state level and not a conflict on the town level.

Attorney Finnerty responded that there is not a conflict before the Alcoholic Beverages Control Commission, the appearance of a conflict would be clear there. He did not believe there was an appearance of a conflict before the Selectmen, a local body.

Further discussion between Selectman Barlow and Attorney Finnerty on the Conflict of Interest issue between Attorney Wagner and the Alcoholic Beverages Control Commission.

Attorney Finnerty was attending the Selectmen’s Meeting to address the license suspension and the appeal filed with the Alcoholic Beverages Control Commission. He asked for a Stay pending the hearing before the State Commission. The licensee turned in his license at midnight on Sunday evening as per the order. He has been out of business since that time and has been punished for a significant amount of money for the board’s finding.. The Stay would not do anything except Stay the decision and give the Alcoholic Beverages Control Commission an opportunity to review it.

Attorney Finnerty said he learned from his conversation with members at the Alcoholic Beverage Control Commission that "most" of the local boards "Stay" their decision on suspensions pending that review. He asked the Selectmen to consider that as a fair way to appeal as permitted by law.

Selectman LaFarge and Attorney Finnerty further discussed the Stay and irreparable harm on the licensee.

Selectman LaFarge responded to balancing equity and the Town. Selectman LaFarge told Attorney Finnerty that they had to look out for the public and what he heard was probably the clearest case of irreparable harm to a human being. He asked what steps Smitty’s has taken to make sure that this never happens again. He saw no remorse, no one being sorry, and actually people finding some humor at the hearing. He wanted to make sure steps were taken so this would never occur again.

The discussion continued between Selectman LaFarge and Attorney Finnerty.

Selectman Zuern asked if the Alcoholic Beverages Control Commission could impose a fine in lieu of suspension and was told that the ABCC can substitute a fine if it is a suspension that they impose.

Selectman Barlow said as a matter of due process, the notification was sent out to the licensee and that they had the right to appeal within five days. The board’s intention was to allow the matter to be reviewed by another body.

Selectman Barlow made a MOTION to allow the request for a Stay pending the appeal process before the Alcoholic Beverages Control Commission. It was the board’s intention to allow the licensee to appeal their decision. The licensee did appeal within five days allowed. The Licensee did their part and they should have the right to be heard and to make their appeal to another body, SECONDED by Chairman Tirrell.

Chairman Tirrell added comments to his SECOND. He agrees there is due process and they need to stand for justice. The point is well taken that if the punishment on their verdict is levied before he’s heard by the higher review body, there’s no way of getting that business back. The punishment would have been rendered and if found in error of their judgement (which he felt they were not and will not be overturned) he will have been undeservedly punished.

Selectman Grady stated that he was not voting on the merits of the case, but is entitled to vote. He said their Counsel indicated that the issue was irreparable harm. He pointed out that in Court the question of a Stay or an injunction is two-prong test. The other is the likelihood of success. Selectman Grady did not attend but read the minutes of the first meeting and attended the second. He doesn’t think there is any chance at all of a likelihood of success in this matter. Some of the witnesses he heard testify had strange creditability on their testimony of one drink. After reviewing the medical records, he sees almost a miscarriage of justice presented to the board. He didn’t think they had any likelihood of success and should not be granted a Stay.

Attorney Finnerty addressed Mr. Grady’s comments that the likelihood of success is like beauty, it’s in the eye of the beholder. He reviewed the record and understands there was other testimony that they (board) did not hear, that was would be very compelling. He thinks that the likelihood of success while not certain, is worthy of review in his opinion.

Selectman Zuern felt is was a serious violation and she did not think it would be overturned. She further felt that what they did was proper. Selectman Zuern is not inclined to go along with the Stay.

Selectman Zuern asked if an appeal date has been scheduled. Attorney Finnerty understands the hearings are now in November and probably they will not be heard until early December.

MOTION by Selectman Grady, SECONDED by Selectman Zuern and UNANIMOUSLY voted to sign the Special Town Meeting Warrant presented by the Town Administrator

Sandra Vickery thanked the board for placing them on their agenda and deferred to Arthur Wills, President of the Friends, to make the presentation.

Arthur Wills has been a member of Council on Aging since the late 1970’s. He originally found funding for the Council when the town would not contribute money. On behalf of the Friends of the Council on Aging, he presented their gift of $100,000 for senior center furnishings. The Board elected a fund raising committee and embarked on campaign, which included a canal cruise, auction at Beachmoor Restaurant and a huge successful direct mail campaign. The Friends met their goal in April, 2003 and their donation tonight is a result of their achievement in the amount of $73,896.26 for furnishings to the new center for the Council on Aging. He thanked the community for their on-going enthusiastic support of their work, Council on Aging staff and for all they do to improve the quality of life for seniors, and the seniors themselves who worked so hard for so many years to make the building a reality.

Chairman Tirrell asked his colleagues to stand and thank the Friends and then recognized the members.

Chairman Tirrell announced that an article was going before the Special Town Meeting in October and being sponsored by the DNR Director and Shore & Harbor Committee.

Stephen Mealy of the Shore & Harbor Committee and George Weinert the DNR Director presented a plan showing the existing pier and ramp, together with the proposed new ramp and increased parking lot.

George Weinert said this would bring them one-step further to the reality of renovating Monument Beach. A year ago they considered the needs and chose to take the pier renovations and make that a separate item. They now have contract specifications for that. The land areas were under a separate architect. They presented the land renovations consisting of three elements; the building in a state of disrepair, the parking lot expansion and renovation to the narrow launching ramp which silts in very quickly.

The new proposed ramp is double in size, is being moved closer to the building and includes floating piers that go out on either side of the launching ramp.

Stephen Mealy said the Monument Beach Marina has had no major renovations since the 1991 hurricane. If corrective actions are not taken to the structure of the pier, they may loose it. The other renovations are major renovations to enlarge the facility, for access and use of the launch facility and vehicle parking. Stephen Mealy also referred to Monument Beach as a "hidden jewel".

Chairman Tirrell gave a brief report from the Capital Outlay Committee. George Weinert and Charles Miller appeared before the Capital Outlay Committee and agreed with the proponents that it needs redevelopment. It was observed that it was a conceptual drawing and an engineered plan could change somewhat. There were natural limits; the railroad bridge and railroad tracks. Questions were addressed as to whether there would be a market to serve in terms of the launching ramp because of the low overhead. There was testimony of the beach being under utilized compared to years past. Capital projects were cautiously considered during special town meetings because it tends to isolate them from a priority setting exercise, but reasoned with the proponents that this $50,000 proposal would be a step that would allow the project to move forward in a timely fashion. They heard the description of the building with improvements to the concession area, toilet facilities and the addition of a second floor for offices for marina management. The Capital Outlay Committee voted unanimously to approve the request for the Special Town Meeting.

Selectman Grady suggested the architect follow up on the zoning.

Selectman Barlow asked if the plans presented were an expansion of the conceptual plans done by Phil Lindquist. Stephen Mealy said it was those conceptual plans developed in 1995.

The Selectmen continued further discussion with both Mr. Mealy and Mr. Weinert on the future, goals, expansion, and costs of the Monument Beach project.

MOTION by Selectman Grady, SECONDED by Selectmen Zuern and UNANIMOUSLY voted to make a favorable recommendation on Article 9.

Selectman Grady – no report.

Selectman Zuern went on a Base tour last week with Jim Quinn from Ellis Engineering and to the Senior Management Board Meeting in Mashpee.

Selectman Tirrell participated in the Finance Committee meeting with the new Chairman, Howard Crow. They finished up their preparation on their recommendations for the Special Town Meeting and organized themselves to make presentations.

He mentioned the Bourne Friends Food Pantry was having two upcoming fundraisers – a haunted house on October 12 at the Bourne Scenic Park at 7:00 p.m. and a 5K Road Race/Fun Walk on October 25. The Bourne High School Women’s Volleyball Team was congratulated their 100^th consecutive South Coast Conference win last Friday.

Commendations went out for the Department of Public Works, Town Planner, and Contractor for finishing up the Main Street project prior to scallop festival.

Selectman Tirrell suggested a change in the traffic plans for the Cape Cod Filling Station to alleviate the traffic congestion on Main Street.

The Governor signed a 25-year lease extension last Wednesday for Otis.

Announced that Scallop Season starts the 1^st of October and that the Town of Bourne has the best scallops in the Commonwealth of Massachusetts and hopes that the residents get out and take advantage of our coastal resource.

Commendations went out for the Department of Public Works, Town Planner, and Contractor for finishing up the Main Street project prior to scallop festival.

Selectman Tirrell suggested a change in the traffic plans for the Cape Cod Filling Station to alleviate the traffic congestion on Main Street.

Based on the recommendation of the Police Chief, the Town Administrator appointed three new police officers: Todd Cantalupo, Chad Softic and Michael Carini. The three officers have already gone through training through previous police service.

Several months ago the Board of Selectmen approved the transfer of the liquor license from A & P Wine & Spirits to GU Market Spirits, LLC. The Alcoholic Beverages Control had issues regarding the finances and required additional information. There was no change to the original application, just clarification of financing and a new approval form that he asked the Selectmen to sign.

Mr. Griffin attended the City Manager’s Conference last week and reported that it was an outstanding conference in Charlotte, North Carolina. The focus of the conference had a lot to do with finances. Charlotte is a banking center with a lot of attention on the national economy.

A couple of valuable keynote addresses – Senator George Mitchell spoke about peace-keeping missions. It was a global presentation, but important to hear and his views of the world stage. He also attended a program presented by a motivational speaker, Amanda Gore. Ms. Gore’s presentation taught you how to bring it back to work, your home and children.

He attended and participated in the trade show, ethics programs and others.

He thanked the town allowing him to attend.

Jim Mulvey offered his expertise on the differences between manholes and vaults regarding the NSTAR petition previously discussed.

Paul Gately questioned appeal hearings before the Alcoholic Beverages Control Commission and time frames.

MOTION by Selectman Zuern, SECONDED by Selectmen Grady, UNANIMOUSLY voted to adjourn at 9:00 p.m.