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HomeMy WebLinkAboutCHARTER COMMISSION MINUTES (YELLOW FOLDER) Ralph A. Barbagallo, Jr. is an attorney, age 41, married to the former Marie E. Consoli; the couple have two children: Ann Marie, eight, ~d Ralph IiX, four. They reside at 66 Boxford Street, Nerth An dover, Massachusetts. EDU~ATION A graduate of the John Breen Gray,ar School in Lawrence, Massachusetts (1956). A graduate of Central Catholic High Schooi, Lawrence, Massachusetts (recipient of the History Medal for highest accumulated average in History- 1960). A graduate of St. Anselm's College, Manchester, New Hampshire (196~- elected to Who's Who American Colleges and Universities). A graduate of Boston University Law School, Boston, Mass- achusetts 1966 - 1967 - 1967 - Present 1972- 197~ 1980 - 1978 - 1983 (1967) with a Juris Doctor Degree. EMPLOYMENT Member of Attorney General Ed Brooke's staff. Admitted to the Massachusetts Bar. Engaged in the private practice of law in both the civil and cr/minal areas with emphasis on trial work. Participated in the Essex Oounty Publi¢ Defender Program in the Lawrence District Court. Appo/~ted by Presiding Justice Albert P. Pettoruto in the Essex County ~robate Court to sit as Master to h~ar domestic relations cases. General 0ounsel for the Lawrence Redevelopment Authority; responsibilities include preparing all legal documents necessary for eminent domain takings a~d the trial of land damage cases. 158 South Broadway t "wrence. MA 01843 Tet. {617) 686-981'~ 1983 - Appointed Special Town Counsel for the Town of North Andover. Director of Leonard Be~-~stein Scholarship Committee, Director of the International Institute, Elected to ~Who's Who in American Law, Member of Greater Lawrence Home Health Care, and CLASS (0itizen League ~for Adult Special Services), Past Vice-President of the Republican Club of Massachusetts~ Member of the Board of Directors, ~ormer Director of the Merr/mack Valley Philhamoni¢ 0rchestra~ Member of the Lawrence Bar Association, Massachusetts ~ar Association (Member of the Probate Law Sections), American ~ar Association, Member of the ~ntertainment Law Section, Member of Massachusetts 0onveyancers Association, Member of Lawrence Musician's Un/on, (past president 1973-1975) Delegate from Local #3?2 to the Lawrenoe/~averhill 0entral Labor Council, Member of Sons of Italy, Member of Italian American 0ivil Association, Member of Tenn/s and $ongwritir~ An accomplished mustctan~ who during college and law school, was involved with such diverse musical groups and the Hampton Beach .Concert .0rchest~a, the Ted Herbert Dance Band and his own group~ Rico ~arr ~d the Bar~isters. LAWRENCE REDEVELOPMENT AUTHORITY JAMES P. McDONALD Chairman RONALD F. MARTIN Vice Chairman IIICHARD F. BONIN Treosurer BERNARD McDONOUGH ASSL T~eosurer 237 ESSEX STREET, LAWRENCE, MASS. 01840 TEL. 686-3995 September 28, 1983 Ralph A. Barbagallo, Jr. Esq. 158 South Broadway Lawrence, Massachusetts 01843 Dear Attorney Barbagallo: The members of the Redevelopment Authority and I would like to offer our thanks to you for your years of service as legal counsel to the LRA. Your prompt responses to questions and problems; your thorough investigation of all of the facts in any matter; your attentive and businesslike manner in negotiating both acquisition and dis- position of real estate; and your impressive and successful courtroom work on behalf of the Authority all have proven invaluable in assisting us to carry out our varied programs. I would also like to offer a word of thanks to your competent and friendly staff. These factors have created a very pleasant association over the years that we are sorry to see come to a close, but look forward to close contact on a personal basis. Very truly yours, Chairman JPMc/pn TO: FROM: DATE: SUBJ: TOWN OF NORTH ANDOVER, MASSACHUSETTS BOARD OF SELECTMEN iDaniel Long, Town Clerk James Dewhirst, Town Treasurer Donald Smith, Town Moderator William Cyr, Highway Surveyor James Noble, Chairman, Board of Public Works Edward Phelan, Chairman, Board of Assessors James Gordon, Chairman, School Committee Edward J. Scanlon, Acting Chairman, Board of Health Paul Hedstrom, Chairman, Planning Board John W. Graham, Chairman, Board of Selectmen February 8, 1984 T£t..WI~HONE 682-6483 Proposed ByLaw Change - Town Counsel The Board of Selectmen are requesting that you attend a special meeting on Wednesday, February 15, 1984 at 7:30 P.M. to discuss an amendment to the existing Town Counsel ByLaw. This meeting will be held in the Selectmen's Meeting Room. Attached for your review are three options relative to the proposed town ByLaw change that would affect Section 3.7, Town Counsel. As you can see from Option 1, the duties of of Town Counsel would be established on an annual basis by the Appointing Authority, through a Memorandum of Agreement (see Attachment B, illustrative only). In Option 2, the duties of Town Counsel would be established on an annual basis by the Board of Selectmen, through a Memorandum of Agreement. Option 2 would still require the same method of appointment. The only change under Option 2 is that the Selectmen would now have the authority to establish the Town Counsel's duties through a Memorandum of Agreement. Option 3 would require that all existing language in Section 3.7 be eliminated and replaced with language as outlined in the Attachment. Essentially, what this language change would do would be to give the Appointing Authority of Town Counsel to the Selectmen and also to allow the Board of Selectmen to define the duties of Town Counsel through a Memorandum of Agreement. For your information, I have attached the present ByLaw (see Attachment A), and some information relative to how other towns handle their Town Counsel position (see Attachment C). Proposed ByLaw Change - Town Counsel February 8, 1984 The Board of Selectmen are looking to you, as the Appointing Authority of Town Counsel to help us determine which option we should present to town meeting in April. Hopefully, on Wednesday evening we will be able to come to a consensus on what option we, as a group, feel would be best for the Town of North Andover. I urge you to make every effort to attend the meeting on the 15th. If you cannot attend this meeting, please contact John Bohenko, Executive Secretary at 685-8860. Thank you in advance for your cooperation in this matter. /cf ARTJCLF OPTION #1 To see if the Town will vote to amend its genera] bylaws in the following manner: Amend Section 3.?(B} by deleting the entire existing paragraph so thal Section 3.7(B) shall no~ read: (B) DUTIES: The duties of Town Counsel shall be established on an annual basis by the Appointing Authority through the execution of ~ Memorandum of Agreement entered into'by said Appointing Authority and Town Counsel. Execulion of said Memorandum of Agreement shall be no later than l0 clays after the annual appointment of Town Counsel. OPTION ARTICLE To see if the Town will vote to amend its general bylaws in the following manner: Amend Section 3.7(B) by deleting the entire existing paragraph so that Section 3.7(B) shall now read: (B) DUTIES: The duties of Town Counsel shall be established on an annual basis by the Board of Selectmen through the execution of a Memorandum of Agreement entered into by said Board and Town Counsel. Execution of said Memorandum of Agreement shall be no later than 10 days after the annual appointment of Town Counsel. OPTION #3 ARTICLE To see if the Town will vote to amend its genera] bylaws in the following manner: Amend Section 3.7(A) and 3.7(B) by de]eting the existing language so that Section 3.7(A) and 3.?(B) shall now read: 3.7 Town Counsel (A) Appointment The Board of Selectmen shall on or before January first, appoint, and subject to the appropriation therefore, fix the compensation of an attorney at law who shah be a member in good standing of the bar of the Commonwealth, to serve as Town Counsel for a term of one year from the first day of July next following, and until his/her successor shah have been duly appointed and qualified. The Selectmen shah likewise fill any vacancy in said office for the unexpired term thereof. The Selectmen may employ special legal counsel whenever, in their judgement, the necessity therefore arises. (B) Duties: The duties of Town Counsel shah be established on an annual basis by the Appointing Authority through the excecution of a Memorandum of Agreement entered in to by said Appointing Authority and Town Counsel. Execution of said Memorandum of Agreement shah be no later than ] 0 days after the annual appointment of Town Counsel. Attaclment A the lown Ir~as~e~,-th~ Na~der~tc, T, the Night,b, Surveyor, Con~n, ittees: the Chairman ~i the ~oard of Selectmen, the Settlor, Chairman cf the ~oard of Assessors, the Ch~.irman of the Board of Public Works, the School Committee Chairman, ,tEe board of HEalth Chairman and the Chairm~n of the Board shall ~nnually in June ~ppoint and, subject ~ppropri~tion therefor, fix the compensation of an ~ttorneyj At-Law who shall be a resident of the iowr, and a member 9ood standin~ of the Bar ef the C~mmonwea]th, to serve as Town Counsel for the term'of one year fron~ the first day of July next following, and until his successor shall hew been duly appointed and qualified. Said [c.~itle~ shall likewis~ fill any vacancy in said office for the un~x[,ired ier~ thereof. The Select~en ~,ay e~.F, lov.. .-,t~ci~l~ Counsel to ~i~t__ _ the ~own Counsel when- ever, in their judgement, th~ necessity theyefor arises. Z, uti es The Town Cc~unse3 shall, subject to the direction oy the of all local procee¢inps to ~'hicf, th~ lown is ~ party arid tlc Fr~secution or Cefar, s~ a~ the [as~ na~' bE, ail l~c~l proceedings by c,~ ~gains~ any Tcwr, officer, bo~r cr cc~.~.itte~. Ne shall pr~;ar~ r,r ~FF. rev~ all legal is- s~rL,s,~r:~s ~c v, Lick: th6 :~:~.n is ~ p~rt~ or ir, v, hich any E-rea~er Lawrence £anitary I~istrict F, epresentative Seiectmer. shall [,ave the power ~n¢ ~uthority to 8ppoir, t. n,~jr, rity vote. ~,e~bers of the 6re~ter Lawrence Sanitary duties es ~,~y be ~,rescribed by law. At the same tir, e they ~Ef, c~ or other disability of the inspector, 6~::1e~ ~s th( ~.electmer, nay dj'root. ~e~'__ tO. b~ ch~oe~_ ~0~ gas - In. Doctor of J,~ires ~t,e Selectmen, shall annually, ir, April, appoint ar, ]nspeczor of Wires who shall have the [,ewErs and duties prescribed by Section 32 of Chapter 166 of the 6enerEl Laws and all other governing statutes an6 duty prescribed rules end regulations. t Attachment Memorandum of Agreement RE: Town of North Andover Town Counsel Agreement pertaining to duties a~d responsibilities. Included in Annual Town Counsel Salary Attendance at meetings and representation when requested by the Executive Secretary or the Board of Selectmen. Research and furnishing of written legal opinions to Executive Secretary, Board of Selectmen or any department head or Committee when requested in writing copies of same to be rendered to the Board of Selectmen. Telephone consultations and conferences when requested by Executive Secretary, Board of Selectmen or olher town employees. Review of articles and motions for annual arid Sl:,ecia] town meetings, for legal sufficiency. Attendance at annual and special town meetings. Review of contracts and other legal instruments for ]ega! sufficiency. Preparation of deeds, easements, and other legal instruments where others have provided all necessary data therefore. Investigation of claims and preparation of defense. Bubjects for Additional Compensation o Litigation, including drafting of pleadings, dispositions, court appearances, preparation, trials, appeals, conferences, motions etc., whenever the Town is a party, except as otherwise provided for above. o Conveyancing, including title examination, deeds, contracts, lega! instruments except as otherwise stated above. All activities subject to additional compensatio~ shah be approved in advance by the Board of Selectmen. In each instance when the Town intends to p~osecute a case, and in each instance when a case involving a subject for additional compensation arises which could incur a significant expenditure of town funds, the Town Counsel agrees to explain fully to the Board of Selectmen the circumstances surrounding the case and the implications thereof. Detailed billings for services eligible for additional compensation shall be submitted on monthly basis. Attachment B Pa~e 2 The hourly rate for additiona! compensation shall be $ per hour. Approved, Appointing Authority Accepted Town Treasurer Moderator Highway Surveyor Chairman, Board of Selectmen Chairman, Board of Public Works Chairman, Board of Assessors Cha/rm~n, School Committee C:hairm~n, Board of Hea~th Chairman, Planning Board Town Counsel Attachment B ?ag~ 2' The hourly rate fo~ additiona] compensalion shall be $ per hour. Approved, Appointing Authority AccepteO Chairman, Board of Selectmen Town Counsel Attachmeat C Andover (pop. 26,370) Town resident is Town Counsel - annual retainer is $17,000 a year. Special legal account is approximately $100,000. They use ab'out 10 outside law firms. Last year, they looked at the possibility of using a firm as Town Counsel, but decided not to go in this direc- tion. Appointed by Town Manager. Lexington (pop. 29,479) They use the Boston firm of Palmer and Dodge as Town Cotmsel. Total cost approximately $90,000. They are very happy with this arrangement. Appointed by Town Manager. Ipswich (p. 11,158) Town Counsel is a town resident. Duties are defined through a Memorandum of Agreement. Retainer is $9,000 per year with outside compensation being paid at a rate of $55 per hour. Town Counsel also does labor negc.tiations. Wilmington (pop., 17,471) Town Counsel retainer $33,000 a year - no other charges. When representing Sewer and Water Commission, Town Counsel paid an additional fee. Appointed by Selectmen. Methuen (pop., 36,701) Burlington (pop., 24,000) Town Counsel full time, $33,000 a year salary. Also have a legal secretary with a salary of $18,000 a year. Town Counsel position can be an individual or firm. This past year, they advertised the 'position in the Boston Globe and Massachusetts Lawyers Weekly. They hired the firm of Kopelman and Paige who also serve as Town Counsel for Stoughton, Burlington, Walpole and Provincetown. The Town's legal budget for the year is $60,000. Tram Office eul ldlql Tile ly-llJ peevtltefl pelvlm rely let i Teem piyme~! to the eUb~Kt empleyle ef the dlffereflc~ ~ #1t mllltlry I~ lid htl regale' TeMI c4lape#~tl~ rite, iltultllll in d~l~b It~ prwllllal ,f the TM II--tm Ir~ Imlllint 1he it-Ill Ilnvlllo~ # ti Jllltlry Ieee ~ flrtt In tbs hrimnl ~ # ~l~ted jeer e'tiJle t0 el Ira ~ hr Very trvty yeure, Tm Cemml Fire Fire I tim yeur letter tl am 4~td klJtellNr dll, Ifll)~ reqlelttll ay llltlfffiletlill e! St. INit~ e. gal~ Idlldl tm "flu ~le8 f~r ovortimu oervlee by el firs tll~tlllJ hJl~N~.,,,,~ TIW ~ ts yeir qlllltt# I1#, tkglfiF1, illth .~tulll¥. $~. lll~, ~. ia, bee little If my hlpllit # Nlrlll Aldlglr'! Iflllfiz wlflled It, rial Tm BIIht properly wte teemml Itl ~1 By=Lite IN) it ml~t m fit. Vary trmy m, AField ii. #tllkll~ Tome Cemml Willie I. Dully. S4~lBtmldl~t Baaed ef h~t te ~erlm Tm Offic~ 6ulldlat ll4fJlil: I do not ~on~true time vete el the town ess ~ 2n41 m I~ with ~ M'I rt~t te ~t ~ ~ tlft ~ t~ ~t~ ~ ~ glft. Ii, Ill il#fy TI Offl# klldl~I film tilll t~ ~M ~ t~,.o.~II · Itait itll hill diI~I~I Of his lnt~lIt,.,,eln ~I ~t~I~o..,,~ I /Irs III Va,ir tl, vly pi1, ~lI #, #11~ TI II WItlIIll J, Ditflfy~ dl'.~ [lqlltril~ CtttilltJn TM Jlfi~ MI Idlnt I hive ye~ letter tem dated 4)rit L~ Igtlt, requeetli~I muet be regiater,¢t ee veterl In Nm. th M41mmr~ '~r Is reeldence in the T4m~ el~:e~e, Guffl~lm~t?,~ es you ~t ~e, thet leell c4~sleee'~tl4~i mtg#t ereete such · re-. quireemnt, i em infer~ed ~y leum Cevneel fed, the ~uth Perish that Very truly yourj, ~l~telll N. SCl Ili~ry Tall Ceumle I INrd et /Ifil'Il t~ All Ilillllll Illttdiltl~l.L. f~, i40j Sij tlde, I~l~ Sla~ #4mlr~llldlll IpprWflprillllliNIfilRlt #eKlttlBlel..... ~31withrlf~ te · Ileelltee'l ieee el iNlel4eelen ef the Ileeelell truly ylurl, mid #, Sllllivry DW ~. G~fol I: I hive ya~r l~tm- te me 4Mte4 Jimlery thnt the Sehe~l BUitdln~ Cmmlttee mid tike mtrlmtM' em~leyell te emq~lete the Fr-~lln Seheei cmml~Ir, etim Irm the ee~trKter~ tl~e i~ety ~ 1~11t ~ mil tM Ar~kitKt~ c~:er~lng thees ~ttere, TI~ Ce~mlttee eppet-ently leell that ccmpremi~e $ol~ltie~ln to its tteted pi'~blelm~ mJ~tt be in grder~ with the ~tr~t~, ta ~lve ati ~ W p~t ef the T~'e eltla il~ldit~ d~a~ bec~ of the ~ d~ ~ley In ~letlng ~e ~ te this ~stlK MI ~ ~el I~ ~t Je ~e ~tr~t JtHIt~ at ~ ~t~e, ~t ~th~, in ell t~ ¢t~t~ that ~e ~itt~ h~ ~ M of ~1~, the claim ~Id ~ ~olly h~&~ f~ f~t~ ~tlett~ ~ l~ p~tl~ ~ Itl fl~l Yom' eeeeml qsie~tlm Ilkeml~e done net~ as I ~ it, ~ ~ ~ t~ ~Itt~ ~t~im to fett~ tM ~tl~ el ~e ~i- tKt, ~ the ~tr~t~, ~ m f~ el Iltl~tl~ ~1 te ~ hie elmira In "~ ~lt." ~ ~t~ ~ f~ lett~ te the ~lt~t ~lble ~t ~tim ~ld ~ mldfl by re~lag · ~1~ ~t with ~e ~tr~t~ - ~ the ~11~ ~t of my ~ ~t - ~ ~att~ ~1~ ~ ~Ult~ly within the ~i~e ef t~ ~itt~ et thin truly Plele~t Strelt ~d K ~ily Inflexible rule ~ldt~ ~lclp41 fott~ il, ~ IKIp~t Int~mt~tet ~~ ml~t mit will ~wi~ ~ l~m tim, thet ~t ~.will ~ ~~!~ lall ~I Ifil% ~1~ 1~, it~iq mia In g llglgl, the C~rt hid t~t ~l ie t~ nte~-uto did ~t ~lfleelly ~t ~ te ~t~lJffi ~ rl~t ~ ~ty ef ~ ~l mlttn, W B et ~1 h! tdl~ ml~t ~t OlMI~ ~ ~l~le; tho stetute ~ thl ~ttt~ ~ t~ ~ ~tltvtt t~ "ffill I~ ~f t~ ~t~ I Very truly Al~ad leant of hlegfme Teym Off;ce Buttdlng I~rfl~ ^adorer, /~ss~chusetts TI~il latter ts ated Oct~ l~, at the tim ~f t~ ~lti~g of ~i~ It eld ~ of t~ f~t that Fred of ~e, ~et~ at the pr~oGed special alKtl~ a ~1~ I~g let ~ich ef F~e t~,d~ ~ ~e~ ~he ~u~ee~ful c~d~date at the ~tlh ilm m It thla ~N~tle~ la that tl~ Kiel electi{e d~a~ld N cellat te fill tl~~ mtil tllla re~!t ia r#1t#~ mt I~t' my q~Jlfle Itdlltt ~r j~li~ial #Jlllet # at~tllll llt ~ litttg~ti~ll, L, Jll~ Jidl Im~lJ ~ tilt tlttt~l {~l~lata~t nlJe tllJ Il eleetil, it la ftJ'l I~Wla flint M tnily yllrl~ #'il, Id tt, #~ I1~ IO~ Ilflt, fir lb #dttlll M I #iii ilNltli 1e fill h lellfllil II i~ w(ll~j It wiiilt Ill' #lllJll M I lleilll ~ ~t~i~M ~IeG~.,,.,,,~kli ~1t l& ~ist ll~li~ 1o fill ftllll el the petttlel wltll yl~. At imf I ~ Ferled I~ fhe p!tlflem lind flil illellel II ~ted I~ tlNi efftee e~ the ~~ VlI¥ ltamy !1,II'~ ARNOLD H. '::JALI'~BLIRY' TrIwN E:rliiNC:JEL TrlWN E}F NORTH ANDrlVEI~' MA~=JAI~'HUBETT~ LAWREN GE, MAS~AE:H LI~ETTS February 27, 1967 Board of Selectmen Town Office Building North Andover, Massachusetts - 01845 Re: ~~ l~%eetin of ~arch 18 1967 R CEIVF-D BOARD OF SELECTMEN Gent{emen: Because of the difference in'the phraseology of certain of the Articles in the Annual Town ~eetin§ warrant, a question arises as to whether affecting borrowings may be made under them as recoramended by the AdviSory 66C resent a good example of the problem. Committee. ~ tcles 66A, 66B and ..P ~.: ..... cnmmittee recor~mends a . All relate t rwater extensions, and the ~uv o~.y ~---.- blanket borrowing for all three. But 66A and 668 do not mention the possi- bility of a bond issue, while 66C does. if all three did not, there would be no problem. Whitney v. St~, II1 ~ass. 568 [1875). Also, of course, none would exist if all three proposed a possible borrowing. But since one does and two do not, bond counsel might take the position that no proper borrowing could be made for the purposes of 66A and 668. ~The same difficulty exists as to other Articles, listed belOW. Out of an abundance of caution, therefore, I recommend to you that you insert certain corrective Articles into the warrant for the Special Town ~eeting a{so to be held on ~arch 18. They are enclosed, and are as follows: Article 2 rephrases Article 55 of the main warrant. Article 5 rephrases Articles 40 and 44. Article 5 rephrases Articles 64A, 64B, 64C and 640. Article 6 rephrases Articles 66A, 668 and 66C. it was to avoid this problem in the future that [ sponsored Article 25 of the main Warrant. If the by-law amendment proposed by that Article is adopted, we will not again have this trouble. Article I is suggested to implement Article 2: [ do not believe that the Town has ever voted, under G.L.c. 40, ~ 15A, to transfer the Johnson High School site out of the controi of the School committee~ which certainly will not want such control if it is to be used for police station purposes. ARNOLD h. SALISBURY, TOWN OOUNSEL TOWN OF NORTH ANDOVER, MASSAOHU-:;ETTS February 27, 1967 Board of Selec,men Town Office Building Nor,h Andover. ~assachuse,,s - 01845 Re: $~ecial Town ~eetin~ of ~arch 18,z 196], Gentlemen: , BO,-,,RD OF SELECTMEN Because of ,he difference in'the phraseology of cer, ain of ,he Articles in ,he Annual Town ~ee, ing Warrant. a question arises as ,o whether effec,ing borrowings may be made under ,hem as recor~mended by the Advisory Cor~i,,ee. Ar, icles 66A. 66B and 66C presen, a good example of ,he problem. All relate ,o water ex,ensions, and ,he Advisory Committee recorm3ends a btanke, borrowing for all three. But 66A and 66B do no, mention the possi- bility of a bond issue, while 66C does. If all ,hree did no,, there would be no problem. Whitney v. $,ow, III Mass. 368 (1873). Also, of course, none would exis, if all ,hree proposed a possible borrowing. But since one does and two do not, bond counsel might ,ake ,he position ,hat no proper borrowing could be made for the purposes of 66A and 66B. The same difficulty exists as to o,her Articles. lis,ed below. Ou, of an abundance of cau, ion. ,herefore, I recommend ,o you ,ha, you inset, cer, ain corrective Articles into ,he Warran, for the Special Town ~ee, ing also ,o be held on March 18. They are enclosed, and are as follows: Article 2 rephrases Ar, icle 35 of the main Warrant. Ar, icle 3 rephrases Articles 40 and 44. Ar, icle 5 rephrases Ar, icles 64A. 648. 64C and 640. Article 6 rephrases Articles 66A, 668 and 66C. I, was ,o avoid this problem in the fu,ure ,ha, I sponsored Article 25 of ,he main Warrant. tf the by-law amendment proposed by ,ha, Article is adop,ed, we will not again have ,his trouble. Ar, icle I is suggested ,o implement Ar, icle 2: I do no, believe ,ha, the Town has ever vo,ed, under G.L.c. 40. ~ 1SA. ,o transfer ,he Johnson High School si,e ou, of ,he con,roi of ,he School Commi,,ee. which cer, ainly will no, wan, such con,roi if it is ,o be used for police s,a, ion purposes. -2- February 27, 1967 Article 4, a rephrasing of Article 47 of the main Warrant, is the result of an agreement between the Highway Surveyor and the Advisory Co~mdffee. I am sending a copy of this letter, and of the suggested Articles, to the Moderator and to the Chairman of the Advisory Committee. AHS:ad Eno. Very truly yours, Town Counse I ~ t m~ am~li~ ® Gqv/~f fllit letter, emi ef ~ auggi~e4 ~rtl~t#~ ~e tM IK)ll~'t~ar ~ to Its Cltiltq~lt el th~ Atllil~ Ggmtltt#, letting of iIeo~I~i4 ~ of the be4r4 of ~le,,,,, , il tKIiI ~,t of OUr ~lng ~G~rilljiy~ II IN1, ~Ir ~ #Id I~Itat II Iici IIij o! h J ~ ~Itll J t $1tll! ~ yifl, I~I ~r ~ term of hm yei,i, I~ 14 ~r i t~l of ii yeer; lherI- Il, #t lilt TI It thi4r4 of M4hlBI In the ~11t A~I ilmtfl#lly living the i el MtI~ ~ h ~ el ~t~t, ~ In m~~t It mid ~ m ~ tfl ~t Veq t~ly ~ J~ty aS, till the Teem will Veil C~e~tlen 4,7 ef itrlkl~ *tnt I~#l.g ~lstrlete lell rapll~l~ it with '/q.~ Dimtrict~tt IImee the f~th~t~ ~t~ to mal~ tl i~rflell~ 3,1 caantsi~ s list 44 tl~ ~,'t~ ieel~ll 41ltrt4~hl ti Ils-th ~adear, The article peqm'ty itlq.mee te ~ ~e t~im Jilt ether type Gl district, 14eeever~ tG be ~emltBtmt with tt~ preempt ;Il bari# 4~1 #111 # ~ ky ettllll~l the terdl dt&tri~t" md ieilertlail i~ pike that the ~ "l;4rtmllt )1 M it mm etmdi~ tim Irepel~ irtlcls iNS net daIGrl# l~fn N ~lm te ~t ~ ~tl~ 4.~ te KMt I Kilt ~lt II e itlrlitI It lll~t It~ I I~ e II~ ~ It eld ~lI I* #fie TI/t ARNOLD H. C;ALI~BURY, TOWN COUNSEL TOWN DF Nr~RTH ANDE)VER, MAC:SAP. HU.C::;ETT~ February 26, 1965 John J. Lyone, Town Clerk Town Office Building North Andover, Massachusetts Re: Essex County Retirement Board vso Town of North Andover and others Dear John: For your files, I enclose herewith a copy of the Record and of the Briefs filed with the Supreme Judicial Courtlin connection with the above cases. Very truly yours, aHS/psg Eric. COMMONWEALTH OF MASSACHUSETTS. SUPREME JUDICIAL COURT FOR THE COMMONWEALTH. ESSEX COUNTY. MARCH SITTING, 1965. I~ E~U~TY, No, 6589. ESSEX COUNTY RETIREMENT BOARD LOUIS P. SAUNDERS ~t~o OTa~RS. ESSEX COUNTY R~ETIREMENT BOARD FRED M. McCORMACK ANY O~S. BRIEF FOR THE RESPONDENTS, APPELLANTS. Introduction. These substantially identical petitions in equity were brought in the Superior Court under G.L.e. 32, ~ 24 (1). They seek the removal from his ofaee of the principal re- spondent in each ease, each of whom (1) is more than seventy years of age, and (2) is currently serving as a Registrar of Voters in the Town of North Andover. The petitioners contend that the continued public service of these respondents would be violative of the provisions of section 3 (2) (f) of said chapter. The only other present respondents (in each case) are the Town and its Treasurer. By its final decrees, the Superior Court has eliminated the Commissioner of Insurance as a party (R. 11, 25). These cases were determined by the trial Court upon cases stated (R. 5-7, 18-21); there is no disagreement as to any of the pertinent facts. They come here upon the joint and several appeals of the respondents (1~. 12, 25) from said decrees. For the convenience of this Court the two appeals are presented by a single record (R. 12-13, 26). The "Findings, Rulings and Order for Decree" of the trial judge are identical in each case (R. 8-11, 21-24). The Pertinent Statute~ Three sections of G.L.c. 32 (set out in full in the Ap- pendix to this Brief) need the attention of the Court in these cases: Section 3 (2) (d) (formerly, at the time of the original "employment" of the respondent McCormack, ~ 27 (1) as appearing in St. 1938, c. 360, § 5): "In all cases involv- ing part-time . . . or intermittent employment . . . in any governmental unit . . . the [retirement] board shall have and exercise full jurisdiction to determine such employee's eligibility for membership [in the appropriate retirement system]." (The parties have agreed that the petitioners' "estab- lished policy" is to refuse to admit municipal Registrars of Voters, regardless of age, as members of the Essex County Retirement System under this section (R. 6-7, 20).) Section 3 (2) (f): "No person who enters . . . the serv- ice of any governmental unit as a~ employ/ce after attain- lng age sixty . . . shall become a member [of a retirement 3 system] .... No such employee . . . shall remain in the service of such governmental unit after attaining fihe maxi- mum age for the group i~ which l~e would l~ave been classi- fied if he had become a member . . ." (Emphasis sup- plied.) (Prior to the enactment of St. 1951, c. 644, ~ 2, retirement system membership was forbidden to persons entering the public service after attaiuiag age fifty-five. This was .the state of the law at the time of the original "employment" of the respondent McCormack. See G.L.c. 32, § 2 (3) (as appearing in St. 1938, c. 439, ~ 1) and ~ 2 (16) (as appear- ing in St. 1939, c. 433.) The sweeping 1945 revision of said chapter 32 did not become effective until after his initial appointment as Registrar (see St. 1945, c. 658, .~ 11).) Section 20 (5) (e): "The [retirement] board.., shall keep a record of the date of birth of each member of the system, and also shah keep a record of the date of birth of each other employee who entered . . . the service of the governmental unit . . . after attaining age sixty . . . [and shall] notify each such member or employee, the head of his department and the treasurer or other disbursing otti- cer responsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be employed . . . after such date . . ." (Emphasis sup- plied.) (As hereinafter argued, section 20 (5) (e) neither en- larges nor diminishes the effect of section 3 (2) (f), and must be read with it.) Two Special Acts must also be mentioned, in view of paragraphs 4 and 5 of the petitioners' bill in the McCor- mack case (R. 13-14), and of paragraph 8 of the case stated .therein (R. 19-20): St. 1950, c. 639, ~ 9: "... the director of civil service · .. may:--... (h) Shall [sic] approve in writing the temporary re-employment of any former.., employee · . . of any political subdivision . . . who has been retired . . . or who has been separated from the public service by reason of superannuation or disability without a retire- merit allowance or pension to any position or employment subject to chapter thirty-one .... The written approval of the appointing officer, board or committee sb~]] be re- quired in the re-employment of such former . . . employ- ees to any . . . employment not subject to said chapter thirty-one .... " (Emphasis supplied.) St. 1962, c. 743, ~ 1: "Section nine of chapter six hundred and thirty-nine of the acts of nineteen hundred and fifty is hereby repealed." ~the ]f~qlleS. (1) Whether the repeal of St. 1950, c. 639, ~ 9, has any- thing whatever to do with these cases. (2) Whether G.L.c. 32, ~ 3 (2) (f), requires the retire- merit, when he has attained "the maximum age for the group in which he would have.., become a member," of one who first entered the public service after attaining age sixty, in a position the duties of which make its in- cumbent, regardless of his age, ineligible for membership in a retirement system; or whether that section (in large part because of its use of the words "such employee") requires such retirement only of a person who would have been entitled to retirement system membership if he had been younger than sixty at the time of his entry into the public service. (3) Whether G.L.c. 32, ~ 20 (5) (e), quite apart from said section 3 (2) (f), prohibits the continued public serv- ice of either of the respondent t~egistrars. (4) Whether a North Andover Registrar of Voters is an "employee" as defined by G.L.c. 32, § 1. (5) Whether the petitioners are "interested" parties within the meaning of G.L.c. 32, § 24 (1). (6) Whether the Superior Court's decrees were proper in any event. The Argument. I. THE 1962 REPEAL OF SECTION 9 oF THE "CIVIL DEFENSE ACT" Dm NOT AFFECT THE STATUS OF EITHER RESPOND- ENT REGISTRAR. The parties have agreed that neither of the respondent Registrars has ever been retired under any retirement or pension law, or separated from the public service by rea- son of superannuation or disability without a retirement allowance or pension (R. 7, 20). Neither of .them, there- fore, could ever have been employed by the respondent Town under St. 1950, c. 639, § 9, which regulates the re- employment only of persons so retired or separated, a~d then only in civil-service positions (the North Andover Registrars of Voters clearly do not fit into this category) or in other public employments with the written approval of the local appointive authorities (the record is bare as to any such approval). Therefore, while the respondent McCormack, since his seventieth birthday (in 1959), may have been "carried on the records of the Essex County Retirement Board as being enrolled and employed by virtue of the Civil Defense Act" (R. 19-20), any such recording was wrong, as matter of law. His status since that time, if it ever has been or may presently be affected by any legislation, must be measured by G.L.c. 32, ~ 3 (2) (f), which was as applicable (or in- applicable) to him in 1959 as it is today; the petitioners to the contrary notwithstanding (see Exhibit A, R. 3, 15-16), St. 1962, c. 743, ~ 1, did not vary his rights. It is therefore submit.ted that, at the outset, this Court should ignore the impact of the Civil Defense Act, as well as the repeal of its section 9, in these cases. II. SSCT~ON 3 (2) (f) rOSS NOT AFFECT THE STATUS OF EITHER OF THE RESPONDENT I~EGISTRARS. A. The Purpose and Effect of the Statute. Section 3 (2) (f), about which these eases turn, does two things: (1) It excludes a public employee who first entered public service after age sixty from membership in a retirement system, and-- (2) It prohibits such an employee from remaining in .the public service after attaining the maximum age for the group in which he would have been classified if he had become a member. The legislative purpose behind the exclusios seems ob- vious: It is that no public servant holding a position for which retirement benefits are provided by chapter 32 shall receive such benefits unless he shall have contributed to his retirement system for (as to Group 1 personnel) at least ten years. This policy serves to protect the "integrity" of the retirement systems by conserving their funds for distribution only to long-time public employees. The reason for the prohibition is not so clear. It has been suggested that it may be to require "employees to retire at a fixed age, thus creating an incentive to other employees who may look forward to promotions" (Op. A.G., August 14, 1961 (P.D. No. 12, 1961-1962, 65, 67)). It is submitted that, while the statutory prohibition might have this result as to positions entitling their holders to ' retirement-system benefits (except for those originally en- tering the public service after age sixty), it does not have any such result as to part-time or intermittent public posi- tions such as those of Registrars of Voters in Essex County, who, by the established policy of the petitioners, have traditionally been excluded from membership in the Essex County Retirement System (R. 7, 20). (It should be noted that this "policy" is consistent with the provi- sions of the concluding clause of G.L.c. 32, ~ 3 (2) (d), at least with reference to the respondent Saunders (R. 6, 19).) Take, for example, two persons, A aged thirty and B aged sixty-one, both of whom first enter the public service at the same time, and both of whom hold their public posi- tions until they may attain age seventy. (1) If they enter such service in "Group 1" positions which are clearly in the "regular" public employment, A will automatically become a member of his retirement sys- tem; B will not, because of the exclusionary provisions of ~ 3 (2) (f). At age seventy A must be retired for super- annuation (and will be entitled to retirement benefits); when B reaches seventy he must also be retired from serv- ice (without such benefits) because of the prohibitory pro- visions of that statute. Aspirants for such a public position, then can "look forward to promotions" when either A or B reaches age seventy. (2) But, if A and B first become, at the same time, for example, Registrars of Voters in Essex County, neither will become a member of the Essex County Retirement System (R. 7, 20). When A reaches age seventy, no exist- ing statute will require his retirement; section 3 (2) (f) clearly does not extend to him, and he will be able to con- tinue in his office as long as the appropriate appointive authority continues to reappoint him. However, if the petitioners' governing contention is correct, B must retire at age seventy. Since the As in this hypothetical case will very likely outnumber the Bs, .the application of section 3 (2) (f) to B would not appreciably further the incentive which the Attorney General suggests as the General Court's reason for the prohibitory provision of the statute. (A and B, in the context of the present cases, are, ob- viously, the "third Registrar of Voters" in North An- dover, John J. McD~me (R. 6, 19), and either of the respondent I~egistrars.) It is therefore submitted that section 3 (2) (f) could not have been intended to require the retirement, at whatever age, of persons who hold position~ not classified by the appropriate Retirement Board as regular public employ- ments. Regardless of h~s age at the time of his entry into service, an Essex County Registrar of Voters, at age seventy, should or should not be allowed to continue in his office, according to his abilities at that age. Since the pres- ent state of the law allows A to continue to perform his public duties regardless of his age, it is submitted that sec- tion 3 (2) (f) should not be construed to require B's re- tirement from such duties, at age seventy. Any such construction of the statute would not further the "incen- tive'' referred to by the Attorney General, and would result in treating B worse than A, for no logical reason. If the General Court had wanted to provide that all pub- lic employees, of whatever grade or class, should retire from service at age seventy, it would have been very simple for it to say so. It has not. B. The Statute does Not Establish ~4ny Mandatory Re- tirement Age for the Respondent Registrars. If the respondent Registrars were eligible for retirement- system membership, they would obviously be classified in 9 Group 1, G.L.c. 32, § 3 (2) (§) (as amended by St. 1958, c. 321, ] 31), with a "maximum [retirement] age" of seventy. G.L.c. 32, ~ i (as amended by St. 1958, c. 321, ] 1). The trial judge has so determined (1~. 10-11, 24). But, as stipulated, neither respondent has ever been so eligible (~. 7, 20). Hence, there is no retirement-system group in which either "would have been classified" (4 3 (2) (f)) at the time of his entry into service. It follows that, there being no group into which the Registrars might fit, no section of chapter 32 can be read to prescribe any maximum retirement age for either of them. It is submitted that said section 3 (2) (f) should be read and construed as though it said expressly, as it does im- plicitly, that a person who, except alo~e for his attained age at his entry into service, would have been classified into one of the retirement-system groups must retire at the maximum age specified for the group into which he would otherwise have bee~ classified; and that it cannot be tortured into requiring the retirement from public service, at any age, of one who could never, because of the ~ature of the duties of his position, have become a retire- ment-system member. III. SECTION 20 (5) (e) DOSS NOT ElqLM~OI~ THE PROBLEM. Sections 3 (2) (f) and 20 (5) (e) are sibling laws and must be read as complementary of each other, just as they are, traditionally, amended together. See, e.g., St. 1956, c. 609, ~ 2 and 3. Neither subtracts from nor adds to the other. Said section 20 (5) (e) merely provides a method by which the provisions of section 3 (2) (f) may be ira- plemented i~ a case in which the latter may be applicable. It is submitted, as suggested above, that neither of the subject causes is such a case. 10 Of some pertinence is the fact that section 20 (5) (e) requires the Retirement Board to notify certain persons of the date when such member or employee will attain the maximum age for "his group." (Emphasis supplied.) The respondent Registrars, because of the petitioners' "established policy" (R. 7, 20), have never had any "group" to which to belong. IV. QUAERE: ARE THE RESPONDENT REGISTRARS ~' EMPLOYEES" ~ As defined in section i of chapter 32, an "employee" is one who is "regularly employed" by a political subdivi- sion, from which he receives "regular compensation." And it is the function of the petitioners to determine the status of Registrars of Voters as "regular employees." See G.L.c. 32, ~ 3 (2) (a) (iv), which, defining eligibility for membership in a retirement system, refers to "any such person who becomes regularly employed, as deter- mined by the board as provided for in paragraph (d) of this subdivision . . ." (Emphasis supplied.) Having im- plicitly determined (R. 6-7, 19-20) that the respondent Registrars are not "regular employees," it is submitted that the petitioners cannot now contend that they are. Cf. De Weerdt v. Springfield, 295 Mass. 523, 526 (1936): "The words 'regularly employed' . . . mean something of per- manence in the employment, as distinguished from that which is occasional or temporary." Of course, if they are not "employees," as defined by section I of chapter 32, neither of the respondent Regis- trars can now be affected by the provisions of section 3 (2) (f), which refer only to persons entering the public service as such "employees." These cases would seem to stop here. 11 V. THE PETITIONERS ARE ~OT ~'INTERESTED'' PARTIES UNDER G.L.C. 32, ~ 24 (1). The petitioners purport to be "interested" parties to these proceedings because of their obligation to supervise and protect the "integrity" of the Essex County Retire- ment System, and have heretofore cited to the Superior Court certain authorities which, they contend, support their claim of interest. But each of these authorities re- lates to the rights of a member of a retirement system, or the widow of such a member, or to one hoIding a position which would entitle him to retirement-system membership except for his attained age at the time of his entry into public service; none of them reaches to our precise ques- tion, and in citing them in these cases the petitioners as- sume the correctness of the single point which they must make if they are to prevail here. Thus State Board of tirement v. Contributory Retirement Appeal Board, 342 Mass. 58 (1961), has to do with the claim of the widow of a former Attorney General "for an accidental death benefit"; obviously the State Board, from the funds of which such a benefit would be paid, had a real and direct interest in ascertaining the legality of her c]aim. The Opinion of the Attorney General dated August 14, 1961, had to do with the status of one who, except for his attained age at the time of his entry into the public service, would have been entitled to membership in the State Retirement System; the same is true of the Opinion of the Attorney General dated October 3, 1946. The provisions of section 3 (2) (f) obviously applied in both matters. Their appli- cation in the present cases is far less obvious. The re- spondents do not question the validity of these authorities as they may establish the "interest" of a Retirement Board as to matters concerning members of its retirement system, or concerning persons holding positions which would make them eligible for membership i~ that system 12 except for the exclusionary provisions of section 3 (2) (f). But, as to persons holding other public positions, it is sub- mitred, since no expenditure from the retirement system's funds could ever be made, ~n a~y circumstances, to or for the benefit of such a person (or his dependents), that-- (1) The "integrity" of such system is in no way threatened by the continued public employment of such a person, at whatever attained age, and that (2) .the Board administering the retirement system not only has no duty to attempt to remove such per- sons from their positions, but, as a matter of law, ac- tually has no right to make such a~ attempt. As suggested above, if the Legislature had intended that ~o public employee should serve as such after age seventy, and that some Retirement Board should enforce such a rule, it could easily have said so, as it has not. Even if section 3 (2) (f) be strained to the point where it might be construed to require the immediate retirement from office of the respondent Registrars, it is submitted that the petitioners still do not have any standing in this Court as "interested" parties. The payment of the re- spondents' nominal annual compensation is made, not from Essex County Retirement ~ystem funds, but from the treasury of the Town of North Andover.. Ten taxpayers of the Town might be proper parties-petitioner in appro- priate circumstances (G.L.c. 40, ~ 53), but it is again sub- mitted that the expenditure of Town moneys, legal or il- legal, is none of the official business of the Essex County Retirement Board. VI. THE Frs~L DI:CrJ~ES OF THE SUPERIOR COURT ARE I~EAlq- ISOLESS, ASD SHOUnO SE R~vEr. sEx). The petitioners' bills, unlike most petitions in equity, pray for no specific relief against any of the respondents, 13 and no order of the Superior Court presently runs against anyone. No such order, in these cases, could, in any event, ever properly be made against-- (1) The respondent Town, the inhabitants of which have no responsibility for the appointment, or the continued em- ployment, of the respondent t~egistrars. These matters are the concern of only three of those inhabitants: the Selectmen of North Andover. G.L.c. 51, ~ 15. The Select- men are not part4es here. (2) The Town Treasurer, whose only official connection with this quarrel is his usual periodic payment to the re- spondent Registrars of their nominal annual "salary." He has not been ordered to discontinue such payments, nor, if any such order were ever to be made, would those respondents thereby be removed from the oi~ices which they purport to hold; and their re~noval from office is, pre- sumably, the ultimate result sought by the bills. The respondent Registrars have not been ordered, by the decrees, to do or not to do anything. The petitioners have not sought any declaratory relief under G.L.c. 231A, and the decrees do not purport to define and determine any rem "controversy." Conclusion. The respondent Registrars can now be required to retire from public service only if some governing statute so pro- vides. The 1962 repealer of section 9 of the Civil Defense Act is not such a statute. Neither is G.L.c. 32, ~ 20 (5) (e), which merely implements the provisions of its sister law, G.L.c. 32, ~ 3 (2) (f). No other law bearing upon the ques- tions raised by these pleadings seems to exist, so that the respondent Registrars must go, or may stay, as (~.L.c. 32, ~ 3 (2) (f) (hereinafter called "the statute") may be con- strued by this Court. 14 It is submitted that the statute was intended to reach only to persons ineligible for membership in a retirement system solely because of advanced age. This was once clearer than it now is: see G.L.c. 32, ~ 2 (14) and (16), as appearing in St. 1938, c. 439, ~ 1. But it is still clear, es- pecially ff one attempts to find any logical legislative intent to have the statute extend to any others. As to "covered" positions within a retirement system, it may make sense to require the retirement of all personnel at a certain age-- including employees in such position, s who were barred from system membership because of their advanced age at the time of their entry into service; such a policy might, indeed, create "an incentive to other employees who may look forward to promotions." But this arg~ment can hardly be forced to reach the instant cases; when he reaches age seventy, if he then still holds his office, the "third North Andover Registrar," who initially entered public service at a relatively early age (R. 6, 19), will not be al- fected by the statute; nor will any of the many (R. 7, 20) Essex County Registrars in his class. No such "incentive" exists in these many possible future cases. It is submitted that the Superior Court decrees should be reversed, not only for the reasons sparsely given above, but because they make little sense and are unenforceable. LOUIS P. SAUNDERS, FI~ED M. McCORMACK, TOWN OF NORTH ANDOVER, JAMES J. MAKER, Tsr.~sur~R, By AI~NOLD H. SALISBUI~Y, Town Counsel, Town of North Andover. 15 Appendix. GE~ss~m LAws, C~ArT~ 32, SteTsoN 3 (2) (d). In all cases involving part-time, provisional, tempo- rary, temporary provisional, seasonal or intermittent em- ployment or service of any employee in any govern- mental unit, including such employment or service of any state official, the board shall have and exercise full juris- diction to determine such employee's eligibility for mem- bership; provided, that any person holding a position for which the annual compensation is fixed in an amount of two hundred dollars or less shall not be eligible for mem- bership except by vote of the board; and provided further, that any teacher employed in the school department of the city of Boston on a provisional, temporary, temporary pro- visional or similar basis shall, upon the completion of a school year of service in the public schools of said city, become a member in service of the State-Boston retire- ment system if then under sixty years of age. For the purposes of this paragraph, a school year of service shah be deemed to have been completed upon the termination of a school year in which the teacher, while holding a cer- tificate granted by the board of education under section thirty-eight O of chapter seventy-one or while exempt from the provisions of said section because of empIoyment as a teacher in the service of said city prior to the effective date of said section thirty-eight G, has actually performed teaching duties on more than one hundred and twenty school days, whether or not consecutive, in such school year. [As amended by St. 1947, c. 660, ~ 2; St. 1947, c. 667, ~ 2; St. 1958, c. 578, ~ 1.] Gr.s~^= L~ws, C~Ar~E~ 32, Ssc~oN 3 (2) (f). No person who enters or who re-enters the service of any governmental unit as an employee after attaining age 16 sixty, and after the date when a system becomes operative therein, shall become a member except as otherwise pro- vided for in this section. No such employee other than an elected official or a state official, as defined in section one, shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have been classified if he had become a member, except under the same conditions which are applicable to a member as set forth in paragraph (e) of this subdivision. Any employee who was not eligible for membership be- cause of originally entering the service of any govern- mental unit after attaining age fifty-five but before attain- ing age sixty, may apply for and be admitted to member- ship upon the terms and conditions set forth in subdivisions (3) and (3A) if under the maximum age for his group on the date of his application. [As amended through St. 1956, c. 609, ~ 2.] GENEraL LAWS, CHAI~TEI~ 32, SECTION 20 (5) (¢). The board of each such system shall keep a record of the date of birth of each member of the system, and also shall keep a record of the date of birth of each other em- ployee who entered or re-entered the service of the gov- ernmental unit to which such system pertains after attain- ing age sixty and after the date when the system became operative therein. It shall be the duty of such board to notify each such member or employee, the head of his de- partment and the treasurer or other disbursing officer re- sponsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be em- ployed in any governmental unit after such date except as otherwise provided for in section one to twenty-eight, in- 17 clusive. Such notification shall be made in writing not less than thirty days nor more than four months prior to such date. [As amended by St. 1956, c. 609, ~ 3.] STATUTr, 1950, C~ArTER 639, SrCTXOS 9. [The director of civil service . . .] (h) Shall approve in writing the temporary re-employ- ment of any former officer or employee of the common- wealth or of any political subdivision thereof who has been retired under any retirement or pension law, or who has been separated from the public service by reason of super- annuation or disability without a retirement allowance or pension to any position or employment subject to chapter thirty-one of the General Laws. Any person so employed shall receive full compensation for such services less any retirement allowance or pension received by him. The written approval of the appointing officer, board or com- mittee shall be required in the re-employment of such for- mer off%ers or employees to any office or employment not subject to said chapter thirty-one. Any appointment or transfer made under this section shall be effective only for the period during which this sec- tion is to be operative. STATUTE 1962, CHAPTER 743, SECTION 1. Section nine of chapter six hundred and thirty-nine of the acts of nineteen hundred and fifty is hereby repealed. No. 6589, ESSEX COUNTY RETIREMENT BOARD V. LOUIS P. SAUNDERS r~T ~LS. SAME V. FRED M. McCORMACK ET ~s. BRIEF FOR RESPONDENTS, APPELLANTS. ESSEX CouNtY. w_~. TO~N ,OF NURTN AI~DOVER & others REARDON, J. The Essex County Retirement Board (the board) brought substantially identd~d_ bills in eq~it, y seeking the removal of the defendants Saunders and McCormack from their ~$1%ions as registrar~ of voters in e town of North Andcver~ In his final uecrees ~,n~ j~dge of t. he ~ ~erl~r ]o ::'t determined that *~= hoard nad standin~ to orose ~ ~ · that cu~e ~ne mat~er, defendant registrars are each o~o~ .h~ ~e of seven%y; a~d that the said registrars are requi,~ ~y law to be retired. The several defendants ~n each case have appealed and toe appea]s have been ccnsoi~dated f~r our conszderat~on. The facts are not !~ d~spute and were Dres.nte~ to the Superior ,~our~ as a :::a~e ~ .... . ,~,.-2. Saund~rs was t:n November 8, 1892, and az age s!xt.y-nino, in March, i962, was to toe pos~v .... n regi r,~r. He ,s now ~=-,ring in that office at an annual salary of :~200. Y, cCorma~ w~ z.~,rn on March six, anu ba:~ served ~n 'nat office ccntlnua~=~, ~znce :hat uate. His annual saiarv,, in~tlai~y $~5, is ncw $2~,.: : '?:e thJrd registrar, woo z= ' 'r'.'~]ved In thence pr.zcee~Tugs, wa~ appointe~ at age forty-one and, unlike ~he '-'~..,,er' two, '~as n~ reacheJ ~ge ~v'~t,. 2 It is the "established policy" of th,~ h,- ..... · municipal registrar2 of voters as "non-members" jr the County ~etirement o under G, L, c 32, ~ 3 ~2) (d' ~ Fhus, n;~ -~ .... mn ~n~ ~o~n ~th~n the ~ssex ~ ~oun.y ~et'_r~m~nt $ystem :,s enrolled as a member of thar~ system, n,"r ~a~ anv ?n~ ~? tb~ th~e~ afore- mentioned registrars ever been ao enrolled Ne:'~er defendan*. law or separated from t, ne pub]ir 5~r'~to, ~v --~ ~ ' ....... F~ioe~'~2~uat ~o~ or disab~ ~ Zn October, '?(,7 ~e beard advised he town t~,~asur-er wou2d he - .:._: ega.. 8r7,.} 'n, ¢'~ ' e'-m; nat~ by St present.. ' }' v -~ ;, fi: ' !'~: F, OarQ " 1. We agree with the judge that the board has standing to seek the removal of McCormack and Saunders. While this is less clear in this case than in a situation where a retirement board seeks to litigate a claim for funds over which it has control and hence to protect the integrity of the retirement system (see, e.g., State Bd. of Retiremen_t vo ,Contrib,utory Retirement Appeal Bd. 3~2 Mass° 58, 60}, w. think the broad scheme of G. L. c~ 32, ~nd spe,'~if~ca!iy '?-e :~:~.-]~.~di,g 5~n!_en~e of G. L~ c. 32, ~ 2& (1)~empowera the b~:~ard 2. We agree also that ~}~e ~egls-~.r:~r5 ~re "e~pl,iyees" for purposes of G~ L, c. ~ Section i ?ber~:~of defines an "employee~" as applied to persons ~ieceiving "regular ~', mper,~tion" ~r,~m a political subdivision of bhe Cc~;onwea]th, regularly em~loyed in the servi~.le of any 5.~h pe]~tica] sub- division," ~e phrase "regularly emplt, y~:~t" Js :~t. defined; we note, however., that the germ "employ+~e" as ap?l~ed to persons regularly compensated by bhe Co~onwealrh (a~ distinguished from a po].iglcal subdivision) is one whose duties requlre him to work "during the ordinary working hours of regular and permanent employees." G. L. c. 32, ~ !. The lack of such a specification for those compensated by a indicabes that. part, time employees of the lat~er are within the definition. Morecver,"rec~]a~ compensation" g~/ This o~ovJs~on vests in the Superior Cou~t equity jurisdic- tion "upon pe~itio~ of the co~r~issioner of insurance or any inter- e, sted part~ t~ compel ~he observa.nce and tc restrain the violation 9f any progision of =ections one to twenty-eight" cf G. Lo co 32 (emphasis suppliec). of G. L. c. 32 to distinguish between regular pay and bonus or overtime pay rather than between full time and part time employees~ The use of the term "employee" in § ] [2) (d) of the statute (see footnote 2) further supports our conclusion. 3. Having classified the registr, ars as nnramembers of the retirement system, the board now contends t. hat registrars must be retired at age seventy. We do not read ~ 3 (2} (f) or ~ 20 (5) (e) of G. L,. e. 32 t,o lead to rh~s result. The reg~s~.rars belong to a class of whi~h nc. mombe. :s e]igibie for membership the retirement system. Sectio~ ~ ~,) (f} ?rc:v~de~r "No person who enters or who re-enters the service of any go'v'ernmental :mit as an employee after attaining a~e sixtT, an~ a~ter the date when a system becomes operative , ~ ,,~ sha~ bec'~mp member as otherwise provided for in this section ~.J::~ · -~.~,-,. employee other than ~n elected cff',ziai or a st~e of'fi<~e~L· the maximum ~'~e for t:;e ~u~_ classified if be had become a member, exc ,-+ u e~ .... .~r t~le same conditions ~hich are -~ ~- a:p ..... ah~e t :~ :~ member as .'~et. forth in this section a person e:~terin? q. v:-rnmentr,] servi.::v offer a~e ;tad he e t which J s prohi' '- to the exclusionary first sentence. The prohibition of § 3 (2) (f), therefore, relates only to employees barred from membership by reason of age. The registrars are barred by reason of classifica- tion under § 3 (2} (d}. The third registrar, who entered at age forty-one and is now under seventy, would not be required to retire at seventy, since he is not "such employee." We do not think the registrars are snbject to varyin2 treatment under ~ 3 (2) (f) acrurd~n~ to ~ge ~pon entry into service whe~ the board has established a policy, under ~ 3 (2) (d}, whereby no registrar may be in the system. ~. Oeneral Laws c. )2, ~ 20 (5) (e), adds no prohibition to that contained in ~ 2 (2) (f) It merely ~e ~ires the board to "keep a record of the data of birth of each, member of the system" and "of each other employee who entered or re-entered the service of the governmental unit. to which such :~ystem pertains after attainin,z age ~,-~x*~' " ~ 20 (5) (e) "to nctJ, fv each ~)uc~ me~ber cr as the department head and the person compensatio~ "of the date when such memoer or e;'~:' [oyee will attair, the ;~axim~ a~e for his gro~p, arid suc~ member or emo~o~ e shall net be employed in any,:~overnm~:~[. . ~.,, unit af~.~-:~ -~,~ da~,e Decree5 reversed. COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court for the Commonwealth ESSEX~ SS. SUPERIOR COURT IN EQUITY THOMAS F. DUFFY, RALPH W. F, TJJSON, EDWIN II. DAMON, as they are all the mem- bers of thc Essex County Retirement Board ~8. TOWN OF NORT~ AN~0~R; JAM~S J. MA~, Treasurer, Town OF NORTH ANDO~R; C. Euo~ FAR~A~, Commissioner of Insurance and Lows P. SAuxrr~s BILL OF COMPLAINT (Re: Saunders) Respectfully represents your petitioners: 1. That your petitioners are all the members of the Essex County Retirement Board. 2. That the respondent, Louis P. Saundcrs of North Andovcr, was employed by the Town of North Andover on April 1, 1962 as a member of the Board of Registrars, he then being sixty-nine (69) years of age. 3. That the said Louis P. Saunders was not upon his said em- ployment eligible for membership in the Essex County Retirement System as he was over age to qualify at the time of his employment. 4. That on November 8, 1962, the said Saundcrs having attained the age of seventy (70), it became mandatory that his employment by the Town of North Andover cease on November 30, 1962. 5. That your petitioners on October 24, 1962 notified the re- spondent, James J. Maker, of the termination date of the employment of the aforesaid Saunders, a copy of which notice is annexed hereto and marked "A". 6. That thereafter on November 14, 1962 the respondent, Mak- 2 er, notified your petitioners that the employment of the said Saunders would not then terminate, a copy of which is annexed hereto and mark- ed "B". 7. That thereafter on February 6, 1968, the respondent, C. Eugene Farnam, the Commissioner of Insurance, was advised as to the illegal employment of the said Saunders. 8. That the said Town of North Andover; the respondent, Maker; the respondent, Farnam have each and all failed to act to ter- minate the employment of the aforesaid Saunders. 9. That the employment of the said Saunders from and after November 30, 1962 has been in violation of law. 10. That your petitioners are interested parties in the premises and bring this bill to compel the observance and violations of law as aforesaid. WHEREFORE, your petitioners pray: 1. That pending a hearing on the merits, that the employment of Louis P. Saunders as a member of the Board of Registrars of the Town of North Andover be suspended and that he be restrained and enjoined from serving as a member of said Board. 2. That it be adjudged and decreed that the employment as a member of the Board of Registrars of the Town of North Andover was terminated on November 80, 1962 8. That a short order notice issue so that the pleadings in the within matter may be speedily completed. 4. For such rebel as this Honorable Court seem meet and prop- er in the premises. Thomas F. Duffy, Ralph W. Ellison, Jr., and Edwin H. Damon By their attorney, James T. Ronan THE COMMONWEALTH OF MASSACHUSETTS EssEx, ss Salem, June 18, 1963 Then personally appeared before me the said Thomas F. Duffy, Ralph W. Ellison, Jr., and made oath that the allegations set forth in said Bill are true. Before me, John Iq'. Ronan Notary Public My commission expires Feb. 20, 1970 October 24, 1962' Mr. James J. Maker, Town Treasurer, North A. ndover, Mass. Dear Mr. Maker:- This is in reference to your letter of October 23, 1962, in connec- tion with Fred M. McCormack and Louis P. Saunders, both members of the Board of Registrars of the Town of North Andover. Inasmuch as the Civil Defense Act has been repealed effective October 23, 1962 as to Section 9 of Chapter 639 of the Acts of 1950, which authorized the re-employment of Fred M. McCormack after the date he attained age seventy in March, 1959, under the provisions of the retirement law, his employment as a Member of the Board of Registrars must terminate as of October 23, 1962. In view of the fact that Louis P. Saunders will attain age seventy on November 8, 1962, under the provisions of the retirement law, his employment as a 1V[ember of the Board of Registrars must terminate effective NOvember 80, 1962. Very truly yours, ESSEX COUNTY RETIREMENT BOARD By: TFD/E Chairmaxs-Treasurer. Received 8 o'clock November 15 1962 Essex County Retirement Board OFFICE OF TOWN TREASURER NORTH ANDOVER MASSACHUSETTS November 1~, 1962 JM :m Filed June 18, 1963. ANSWERS OF THE RESPONDENTS TOWN OF NORTH ANDOVER, JAMES J. MAKER AND LOUIS P. SAUNDERS Now come the Respondehts above-named, and jointly and sever- ally, and without waiving their several demurrers and pleas fried here- with, but expressly relying thereon, make the following answers to the allegations of the Petitioners' Bill of Complaint: 1. They admit that the Petitioners constitute the Essex County Retirement Board. 2. They admit the allegations of fact contained in Paragraph 2 of said Bill. 3. They admit that the Respondent Saunders "was not upon his said employment eligible for membership in the Essex County Re- Mr. Thomas F. Duffy County Treasurer Court House Salem, Massachusetts. Dear Mr. Duffy; On advice of Town Counsel and upon clireetion of the Board of Selectmen your letter dated October 2~, 1952 has not been complied with. Very truly yours, James J. Maker Town Treasurer tirement System," but deny that his ineligibility has at any time here- to fore been predicated upon his attained age. 4. They deny, as a matter of law, the validity of the conclusion of law stated by Paragraph 4 of said Bill. 5. They admit that the Petitioners have, from time to time, noti- fied the Respondent Maker that, in their opinion, tthe employment of the Respondent Saunders, as a Registrar of Voters, should cease. 6. They admit the allegations contained in Paragraph 6 of said Bill. 7. Having no knowledge thereof, they neither admit nor deny the allegations contained in Paragraph 7 of said Bill, but leave the same for proof by the Petitioners, if material. 8. They admit that the Respondent Saunders is presently a Registrar of Voters of the Town of North Andover. 9. They deny, as matter of law, the validity of the conclusion of law stated by Paragraph 9 of said Bill. 10. They deny, as matter of law, that the Petitioners "are in- terested parties in the premises," as alleged in Paragraph 10 of said Bill. YVItEREFORE, they jointly and severally pray that said Bill may be dismissed, and for their several costs. Town of North Andover James J. Maker, Treasurer Louis P. Saunders By their Attorney, Arnold It. Salisbury Town Counsel Town of North Andover Filed August 16, 1968. CASE STATED BY AGREEMENT OF THE PARTI]~S Now come all of the parties to the above cause and state the fol- lowing case for the decision of the Court: 1) The Respondent Louis P. Saunders was born on November 8, 1892. 2) He was appointed as a Registrar of Voters of the Town of North Andover, by its Selectmen, pursuant to the provisions of G.~b. C. 51, §15, in March, 1962, and is now serving in that office, at an annual salary of $200.00. 8) As at the date of his said appointment, he had attained the age of 69 years. 4) As at the date of the institution of this action, he had at- tained the age of 70 years. O) The other two appointed North Andover Registrars of Voters are: Fred M. McCormack, the principal Respondent in Essew County Retirement Board v. Fred M. McCormack and others, Esse~e Superior Court No. 1$J05, who was born March 17, 1889, who was ftrst appointed as such Registrar in March, 1945, at the age of 06, and who is now serving in said office at an annual salary of $250.00, and John J. McDuffie, who was born October 18, 1908, who was first appointed to serve as such Registrar in March, 1945 (when he was 41 years of age), and who has since so served, by virtue of subsequent regular appointments, and is now serving, in that office, at an annual sMary of $200.00 6) None of the three appointed members of the North Andover Board of Registrars is, or ever has been, a member of the Essex County Retirement System, although other North Andover em- ployees enjoy such membership. 7) Immediately following the appointments of Fred M. Mc- Cormack and John J. McDuffle as Registrars of Voters in March 194.5, the North Andover Town Treasurer, by letter to the Essex County Retirement Board, inquired as to their status in the County Retirement System. By a letter dated June 8, 19.45, the County Re- tirement Board advised the Treasurer that these new appointees were not eligible for membership in the System "due to the fact that their employment appears to be classified as 'part time or intermittent em- ployment' as referred to in Chapter 82, Section 27 (1) (f) ..... " [See, now, 'G.L.c. 32, §3 (2) (d).] pUrsuant to this directive, the North Andover Town Treasurer's records have, since 19~5, indicated that the municipal registrars of Voters were not members of the Es- sex County Retirement System. 8) The Respondent Saunders has never been retired under any retirement or pension law, or separated from the public service by reason of superannuation or disability without a retirement allow- ance or pension. 9) No Registrar of Voters in any Town participating in the Essex County Retirement System is enrolled, by the Essex County Retiremen ~Board, as a member of that System. The Respondent Saunders and the Respondent McCormack (in Case No. 14405) are the only Registrars in any of the participating Towns who are over 70 years of age. Many of such Registrars are under age 50. 10) It is the established policy of the Essex County Retirement Board to classify municipal Registrars of Voters, regardless of age, as "non-members" of the Retirement System under G.L.c. 82, §3 (2) (d). 11) In early October, 1962, the Essex County Retirement ~Board advised the North Andover Town Treasurer that the continued employment of the Respondent Saunders as a Registrar of Voters would, after November 80, 1962, be illegal. 12) On October 20, 1I)02, in reply to their inquiry dated Ooc- tober 10, 1962, the North Andover Town Counsel advised the ]North Andover Selectmen that, in his opinion, the Respondent Saunders need not presently be retired from the public service. Essex County Retirement Board By James T. Ronan Its Attorney Town of North Andover James J. Maker, Treasurer Louis P. Saunders, Registrar of Voters By Arnold H. Salisbury Town Counsel Town of North Andover 8 January 9, 196~ Filed by Leave of Court (Paquet, J. ) E. Philip Littlefield Asst. Clerk FINDINGS, RULINGS AND ORDER FOR DECREE The purpose of these two petitions filed pursuant to G.L. (Ter. Ed.) Chapter 32, Section 24 (1) is to compel the observance and restrain the alleged violation by the Respondents of Section 3 (2) (f) and Section 20 (5) (e) of said Chapter 32. The Respondents Saunders and McCormack are presently serving as members of the Board of Registrars of Voters in the Town of North Andover and each is over the age of seventy (70) years. The cases were tried together by me on the merits upon the Peti- tions, the Answers and a Case Stated By Agreement of The Parties. The documents reciting a "Case Stated" were filed by leave of Court and duly recorded. I adopt the facts contained in the "Case Stated" as all the material facts bearing on the questions submitted for de- cision and the same are referred to, incorporated herein and made part of these findings and rulings. At the threshold the Respondents challenge the Petitioner as be- ing an "interested party" under G. L. C.32, S. 24 (1) and contend the Board has no standing to seek the removal of superannuated voter registrars, not members of the retirement system. The entire statutory purpose of _Chapter 32 seems to contemplate supervision of the system at various levels by the appropriate retire- ment board. It is only when these boards fail to act that the Commis- sioner of Insurance steps in and refers the matter to the Attorney General. The petitioner is charged with the smooth functioning of the entire county retirement system and it becomes an interested party when the board decides that the retirement law is being violated and seeks to have it enforced. It must seek relief in equity and accordingly I rule that the Petitioner in each case is an "interested party" within the meaning of Section 24 (1). The next question is whether these voting registrars, both now over seventy (70), may be foreed to retire by the retirement board whose main function is to administer a system which neither of them was ever a part of. The pertinent statutes read as follows: "No person who enters or who re-enters the service of any governmental unit as an employee after attaining age sixty, and after the date when a system becomes operative therein, shall become a member except as otherwise provided for in this section. No such employee other than an elected offcial or a state official, as defined in section one, shall remain in the service of such governmental unit after attaining the maxhnnm age for the group in which he would have been classified if he had become a mem- ber, except under the same conditions which are applicable to a mem- ber as set forth in paragraph (e) of this subdivision. Any employee who was not eligible for membership because of originally entering the service of any governmental unit after attaining age fifty-five but be- fore attaining age sixty, may apply for and be admitted to member- ship upon the terms and conditions set forth in subdivisions (8) and (SA) if under the maximum age for his group on the date of his ap- plication.'' G.L.C.82, S8 (2) (f). "The board of each such system shall keep a record of the date of birth of each member of the system, and also shah keep a record of the date of birth of each other employee who entered or re-entered the service of the governmental unit to which such system pertains after attaining age sixty and after the date when the system became operative therein. It shall be the duty of such board to notify each such member or employee, the head of his department and the treasur- er or other disbursing officer responsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be employed in any govermnental unit after such date except as otherwise provided for in sections one to twenty-eight, inclusive. Such notification sball be made in writing not less than thirty days nor more than four months prior to such date." G.L.C.82, S. 20 (6) (e). Under these statutes the Retirement Board has at least a dual 10 function: (1) Watching over the retirement system and (2) making sure that employees not members of the system also retire when they are supposed to. A dispute arises over whether or not these registrars, who are paid only $200.00 and $250.00 a year, are employees within the meaning of these statutory sections. Aeeording to the Definitions Section: "'Employee', as applied to persons whose regular compensatio~ .... is paid by any political subdivision of the commonwealth .... shall mean any person who is re#ularlgt emplo~ted in the service of any such political subdivision .... "(emphasis added) G.L.C.32 S. 1. "Regular compensation" is defined, not so as to distinguish regu- lar employees from part-time employees, but rather so as to distin- guish regular pay from bonus and overtime pay. "Regularly employ- ed'' is not defined. It should be noted, however, that the definition per- taining to an employee of the commonwealth (as distinguished from a political subdivision thereof) specifies that such person must be engag- ed in his state work "during the ordinary working hours of regular and permanent employees". No such specification appears to apply to town employees. The Respondents further contend that pursuant to Section 8 (2) (a) (iv), which defines eligibility for membership in the system and uses the phrase "regularly employed" is followed by the phrase "as determined by the board as provided for in paragraph (d) of this subdivision". I construe paragraph (d) to mean that it relates solely to eli#ibilit~ for membership in the system and not to whether or not a part-time employee is an "employee" within the meaning of that term when used elsewhere in the chapter or specifically in Sections 8 (2) (f) and 20 (5) (e). The statutory pattern of ,G.L. Chapter 82 indicates a general overall intent that public employees must not continue to serve after arriving at the age of seventy (70) except in specific cases. The re- spondents Saunders and McCormack do not fall in the class referred to in Section 8 (8) or (aA). After a careful analysis of S.8 (2) (f) I conclude that the section requires the interpretation that if the respondents Saunders and Mc- 11 Cormack had been members of the syste~n they would be elassified in Group 1; that the maximum age for 'Group 1 is age seventy (?0); that both are over age seventy (70) and that they should be retired. I rule that the respondents Saunders and McCormack are em- ployees within the meaning of the relevant sections of the law even though they are not now and never have been members of the retire- ment system. The facts found herein constitute all the material facts upon which my order for decree is based in so far as it applies to the facts. ORDER FOR DECREE It is ordered that a decree be entered in accordance with these findings and rulings and the pleadings and that the prevailing party draw the decree as provided for by Rule 82 of the Rules of the Super- ior Court and submit it to the undersigned within 80 days from the date hereof. May 20, 196~ Wilfred J. Paquet Justice Superior Court FINAL DECREE This cause came on to be further heard after hearing on the merits and thereupon, upon consideration thereof it is odercd, adjudged and decreed that the Essex County Retirement ]Board is a party in interest and has a standing to prosecute the within ~natter; that the respondent, Louis P. Saunders, is an employee of the Town of North Andover and as such, subject to the supervision of the aforesaid petitioner; that the respondent, Saunders, is over the age of seventy (?0); that the respondent, Saunders, is required by law to be retired; it is luther ordered, adjudged and decreed that the Town of North Andover ter- minate forthwith the employment of the respondent, Louis P. Saun- ders. It is further ordered, adjudged and decreed that the within bill be hereby dismissed against C. Eugene Farnam, the Commissioner of Insurance. ]By the Court, (Paquet, Charles F. Metcalf Asst. Clerk July 15, 196~. 12 July 15, 1964. The within decree may be entered. Wilfred J. Paquet Justice Superior Court. RESPONDENTS' APPEAL Now come the Respondents Tow~ of North Andover James J. Maker, Treasurer and Louis P. Saunders and jointly and severally appeal to the Supreme Judicial Court from the Final Decree entered in the above cause. Town of North Andovcr James J. Maker, Treasurer Louis P. Sannders By Arnold ti. Salisbury Town Counsel Town of North Andover Filed July 81, 1964. RESPONDENTS' MOTION TO CONSOLIDATE FOR APPELATE PROCEDURE Now come thc Respondents Town of North Andover, James J. Maker, Treasurer and Louis P. Saunders and jointly and severally move that this cause be consolidated with Essex County Retire~ent Board v. Fred M. McCormack and others, Essex Superior Court No. 14405 (Equity), for the purpose of presenting a combined rccord of said two causes to thc Supreme Judicial Court upon their joint and 18 several appeals, this day filed, from the final decrees entered in both said causes, on July 15, 1964, by order of Paquet, J. S. C. Town of North Andover James J. Maker, Treasurer Louis P. Saunders By Arnold H. Salisbury Town Counsel Town of North Andover The Petitioners hereby assent to the allowance of the above motion. Filed July 81, 1964. Paquet, J. Essex County Retirement Board By James T. Ronan Oct. 26, 1964 Motion Allowed Attest E. Philip Littlefield Asst..Clerk BILL OF COMPLAINT (Re: McCormack) Respectfully represents your petitioners: 1. That your petitioners are all the members of the Essex County Retirement Board. 2. That the respondent, Fred M. McCormack of North An- dover, was employed by the Town of North Andovcr in March of 1946, he then being over fifty-five (55) years of age, his then services were terminated upon his reaching seventy (70) years of age. Sub- sequently, he was re-employed after reaching his seventieth birthday and is presently employed as a member of the Board of Registrars. 3. That thc said Fred M. McCormack was never eligible for membership in the Essex County Retirement System since he was over age to qualify at the time of his initial employment. 4. That section 9I-I of Chapter 639 of the Acts of 1950 provided in part: "... The written approval of the appointing officer, board or committee shall be required in the re,employment of such former officers or employees to any office or employment not subject to said Chapter thirty-one". That said Section 9I/was in full force and effect at the time of the re-employment of the said McCormack. 5. That thereafter Section 1 of Chapter 748 of the Acts of 1962 provided "Section 9 of Chapter 689 of the Acts of 1950 is hereby repealled". This act took effect on October 23, 1962. 6. That on said October 28, 1962 the said McCormack then be- ing over the age of seventy (70), it became mandatory that his em- ployment by the Town of North Andover cease on said date. 7. That your petitioners, on October 28, 1962, notified the re- spondent, James J. Maker, of the termination of the date of the em- ployment of the aforesaid McCormack, a copy of which notice is an- nexed hereto and marked "A". 8. That thereafter on November 14, 1962 the respondent Mak- er, notified your petitioners that the employment of the said McCor- mack would not be terminated, a copy of which communication is an- nexed hereto and marked "B". 9. That thereafter on February 6, 1963, the respondent, C. Eugene Farnam, the Commissioner of Insurance, was advised as to the illegal employment of the said McCormack. 10. That the said Town of North Andover; the respondent, Maker; the respondent, Farnam, have each and all failed to act to terminate the employment of the aforesaid Fred M. McCormack. 11. That the employment of the said McCormack from and after October 28, 1962 has been in violation of law. 12. That your petitioners are interested parties in the premises and bring this bill to compel the observance and restrain the viola- tion of law as aforesaid. WHEREFORE, your petitioners pray: 1. That pending a hearing on the merits, that the employment of Fred 1~. McCormack as a member of the Board of Registrars by the Town of North Andover be suspended and that he be restrained and enjoined from serving as a member of said Board. 15 2. That it be adjudged and decreed that ~e employment as a member of the Board of Registrars of the Town of North Andover was terminated on October 23, 1962. 3. That a short order of notice issue so that the pleadings in the within matter may be speedily completed. 4. For such other relief as to this Honorable Court seem meet and proper in the premises. Thomas F. Duffy, Ralph W. Ellison, Jr. and Edwin I-I. Damon By their attorney, James T. Ronan COMMONWEALTIt OF MASSACI-IUS]gTTS ]gssrx, ss Salem, June 18, 1963 Then personally appeared before me thc said Thomas F. Duffy, Ralph W. Ellison, Jr., and made oath that the allegations set forth in said Bill arc true. Before me, John T. Ronan Notary Public My commission expires Feb. 26, 1970 "A" October 2~, 1962 Mr. James J. Maker, Town Treasurer, North Andover, Mass. Dear Mr. Maker :-- This is in reference to your letter of October 23, 1962, in con- nection with Fred M. McCormack and Louis P. Saunders, both members of the Board of Registrars of the Town of North Andover. Inasmuch as the Civil Defense Act has been repealed effective Octiber 23, 1962 as to Section 9 of Chapter 639 of the Acts of 1950, which authorized the re-employment of Fred M. McCormack after the date he attained age seventy in March, 1959, under the provisions of the retirement law, his employment as a Member of the Board of Registrars must terminate as of October 23, 1962. 16 In view of the fact that Louis P. Saunders will attain age seventy on November 8, 1962, under the provisions of the retirement law, his employment as a Member of the Board of Registrars must terminate effective November 30, 1962. Very truly yours, Essex County Retirement Board By: TFD/E Chairman-Treasurer Received 8 o'clock Nov. 15, 1962 Essex County Retirement Board OFFICE OF TOWN TREASURER NORTH ANDOVER MASSACHUSETTS November 14, 1962 Mr. Thomas F. Duffy County Treasurer Court House Salem, Massachusetts. Dear Mr. Duffy; On advice of Town Counsel and upon direction of the Board of Selectmen your letter dated October 24, 1962 has not been complied with. Very truly yours, James J. Maker Town Treasurer SM :m Filed June 18, 1963. (O'Malley, J. ) 17 ANSWERS OF THE RESPONDENTS TOWN OF NORTH ANDOVER, JAMES J. MAKER AND FRED M. McCORMACK Now come the Respondents above-named, and jointly and sever- ally, and without waiving their several demurrers and pleas filed here- with, but expressly relying thereon, make the following answers to the allegations of the Petitioners' Bill of Complaint: 1. They admit that the Petitioners constitute the Essex County Retirement Board. 2. They admit that the Respondent McCormack {whose true and legal name is Fred MeGormaek) is presently serving as a mem- ber of the Board of Registrars of Voters of the Town of North An- dover, having been first appointed as such in 1045, subsequent to his fifty-fith birthday, and having since that time been a member of said Board. They deny, as matter of law, that "his then services were terminated upon his reaching seventy (?0) years of age;" they admit that he is presently more than seventy years of age. 3. They admit that the Respondent McCormack "was never eligible for membership in the Essex County Retirement System," but deny that his ineligibility for membership there in has at any time heretofore been predieated upon his attained age. 4. They make no eomment as to the legal effeet, upon the issues hereby joined, of St. 1950, e. 039, § 9 (h), but leave this question for the determination of the Court. 5. They make no eomment as to the allegations contained in Paragraph 5 of said Bill. 6. They deny, as matter of law, the validity of the eonelusion of law stated by Paragraph 6 of said Bill. 7. They admit that the Petitioners have, from time to time, noti- fied the Respondent Maker that, in their opinion, the employment of the Respondent McCormack, as a Registrar of Voters, should cease. 8. They admit the allegations eontained in Paragraph 8 of said Bill. 9. Having no knowledge thereof, they neither admit nor deny 18 the allegations contained in Paragraph 9 of said Bill, but leave the same for proof by the Petitioners, if material. 10. They admit that the Respondent McCormack is presently a Registrar of Voters of the Town of North Andover. 11, They deny, as matter of law, the validity of the conclusion of law stated by Paragraph 11 of said Bill. 12. They deny, as matter of law, that the Petitioners "are in- terested parties in the premises," as alleged in Paragraph 12 of said Bill. WHEREFORE, they jointly and severally pray that said Bill may be dismissed, and for their several eosts. Town of North Andover James J. Maker, Treasurer Fred M. McCormack By their Attorney, Arnold H. Salisbm3r Town Counsel Town of North Andover Filed August 16, 1963. CASE STATED BY AGREEMENT OF THE PARTIES Now come all of the parties to the above cause and state the fol- lowing case for the decision of the Court: 1) The Respondent Fred M. McCormack was born on March 17, 1889. 2) He was first duly appointed as a Registrar of Voters of the Town of North Andover, by its Selectmen, pursuant to the provisions of G.L.c. 51, §15, in March, 1945 at an annual salary of $75.00, and has since so served, by virtue of subsequent regular consecutive such appointments, and is now serving, in that office, at an annual salary of $250.oo. 3) As at the date of his original appointment to said office, he had attained the agc of 56 years. 4) As at the date of the institution of this action, he had attain- ed the age of 74 years. 19 5) ers are: The other two appointed North Andover Registrars' of Vot- Louis P. Saunders, the principal Respondent in F~ssex Counter Retirement Board v. Lo~is P. Saunders and others, Essex Superior Court No. 1,t40,t, who was born November 8, 1892, who was first appointed as such Registrar in March, 1962, at the age of 69, and who is now serving in said office at an annual salary of $200.00, and John J. McDuffie, who was born October 18, 1908, who was first appointed to serve as such Registrar in March, 1945 (when he was 41 years of age), and who has since so served, by virtue of subsequent regular appointments, and is now serving, in that office, at an annual salary of $200.00:. 6) None of the three appointed members of the North Andov- er Board of Registrars of Voters is, or ever has been, a member of the Essex County Retirement System, although other North Andover employees enjoy such membership. 7) Immediately following the appointments of Fred M. Mc- Cormack and John J. McDuffie as Registrars of Voters in March, 1945, the North Andover Town Treasurer, by letter to the Essex County Retirement Board, inquired as to their status in the County Retirement System. By a letter dated June 8, 1945, the County Re- tirement Board advised the Treasurer that these new appointees were not eligible for membership in the System "due to the fact that their employment appears to be classified as 'part thne or intermittant em- ployment' as referred to in Chapter 82, Section 27 (1) (f) .... " [See, now, G.L.c. 82, §8 (2) (d).] Pursuant to this directive, the North Andover Town Treasurer's records have, since 1945, indicated that the municipal Registrars of Voters were not members of the Es- sex County Retirement System. 8) Since the enactment of St. 1950, c.689, §9 (hereinafter some- times referred to as the Civil Defense Act), the respondent McCor- mack has been "carried on the records of the Essex County Retire- ment Board as being enrolled and employed by virtue of the Civil 2O Defense Act. It was the repeal of that act that called attention to the fact that McCormack was employed while over the age of seventy." 9) The Respondent McCormack has never been retired under any retirement or pension law, or separated from the public service by reason of superatmuation or disability without a retirement allowance or pension. 10) No Registrar of Voters in any Town participating in the Essex County Retirement System is enrolled, by the Essex County Retirement Board, as a member of that System. The Respondent Mc- Cormack and the Respondent (Saunders in Case No. 1~04) are the only Registrars in any of the participating Towns who are over 70 years of age. Many of such Registrars are under age 50. 11) It is the established policy of the Essex County Retirement Board to classify municipal Registrars of Voters, regardless of age, as "non-members" of the Retirement System under G.L.c. 32, §3 (2) (d). 12) In early October, 1962, the Essex County Retirement Board advised the North Andover Town Treasurer that the continued employment of the Respondent McCormack as a Registrar of Voters would, after October 28, 1962, be illegal. 13) On October 19, 1962, the Secretary of the Commonwealth sent to "All City and Town Clerks and Election Commissioners" a communication relative to an Opinion of the Attorney General recent- ly received by him in answer to his request therefor. The third para- graph of that communication reads as follows: "On the third question as to whether a member of a board of registrars who is over the age of seventy must retire from the board on October 23, the Attorney General respectfully suggests that this is a question better referred to individual town counsel and city solicitors." 14) On October 20, 1962, in reply to their inquiry dated Oc- tober 10, 1062, the North _A__ndover Town Counsel advised the North Andover Selectmen that, in his opinion, the enactment of St. 1062, e. 743, §1 (repealing St. 1950, e. 639, §9), did not require the retire- 21 ment from the municipal service, as at October 23, 1962, of the Re- spondent McCormack. Essex County Retirement ]Board By James T. Ronan Its Attorney Town of North Andover James, J. Maker, Treasurer Fred M. McCormack, Registrar of Voters By Arnold H. Salisbury Town Counsel Town of North Andover Jan. 9, 1964. Filed by leave of Court. (Paquet, J.) Attest: E. Philip Littlefield Asst. Clerk FINDINGS, RULINGS AND ORDER FOR DECREE The purpose of these two petitions filed pursuant to G.L. (Ter. Ed.) Chapter 32, Section 24 (1) is to compel the observance and restrain the alleged violation by the Respondents of Section 8 (2) (f) and Section 20 (5) (e) of said Chapter 32. The Respondents Saunders and McCormack are presently serving as members of the Board of Registrars of Voters in the Town of North Andover and each is over the age of seventy (70) years. The cases were tried together by me on the merits upon the Pe- titions, the Answers and a .Case Stated By Agreement of The Par- ties. The documents reciting a "Case Stated" were filed by leave of Court and duly recorded. I adopt the facts contained in the "Case Stated" as all the material facts bearing on the questions submitted for decision and the same are referred to, incorporated herein and made part of these findings and rulings. At the threshold the Respondents challenge the Petitioner as be- 22 lng an "interested party" under G.L.C.82, S. 24 (1) and contend the Board has no standing to seek the removal of superannuated voter registrars, not members of the retirement system. The entire statutory purpose of Chapter 32 seems to contemplate supervision of the system at various levels by the appropriate retire- ment board. It is only when these boards fail to act that the Co~nmls- sioner of Insurance steps in and refers the matter to the Attorney General. The petitioner is charged with the smooth functioning of the entire county retirement system and it becomes an interested party when the board decides that the retirement law is being violated and seeks to have it enforced. It must seek relief in equity and accordingly I rule that the Petitioner in each case is an "interested party" within the meaning of Section 24 (1). The next question is whether these voting registrars, both now over seventy (70), may be forced to retire by the retirement board whose main function is to administer a system which neither of them was ever a part of. The pertinent statutes read as follows: "No person who enters or who re-enters the service of any governmental unit as an employee after attaining age sixty, and after the date when a system becomes operative therein, shall become a member except as otherwise provided for in this section. No such employee other than an elected official or a state official, as defined in section one, shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have been classified if he had become a mem- ber, except under the same conditions which are applicable to a mem- ber as set forth in paragraph (e) of this subdivision. Any employee who was not eligible for membership because of originally entering the service of any governmental unit after attaining age fifty-five but before attaining age sixty, may apply for and be admitted to member- ship upon the terms and conditions set forth in subdivisions (3) and (SA) if under the maximum age for his group on the date of his ap- plication.'' G.L.C.82, S8 (2) (f). "The board of each such system shall keep a record of the date of birth of each member of the system, and also shall keep a record of the date of birth of each other employee who entered or re-entered the service of the governmental unit to which such system pertains after attaining age sixty and after the date when the system became opera- tive therein. It shall be the duty of such board t~ notify each such member or employee, the head of his department and the treasurer or other disbursing officer responsible for paying his compensation, of the date when such member or employee will attain the maxismun age for his group, and such member or employee shall not be employed in any governmental unit after such date except as otherwise provided for in seetlons one to twenty-eight, inclusive. Such notification shall be made in writing not less than thirty days nor more than four months prior to such date." ,G.L.C..82, S. 20 (5) (e). Under these statutes the Retirement Board has at least a dual function: (1) Watching over the retirement system and (2) making sure that employees not members of the system also retire when they are supposed to. A dispute arises over whether or not these registrars, who are paid only $200.00 and $250.00 a year, are employees within the meaning of these statutory sections. According to the Definitions Section:" 'Employee', as applied to persons whose regular compensaticm .... is paid by any political subdivision of the commonwealth .... shall mean any person who is re#ularl~j emplo~ted in the service of any such political subdivision .... "(emphasis added) G.L.C.8~, S. 1. "Regular compensation" is defined, not so as to distinguish regu- lar employees from part-time employees, but rather so as to distin- guish regular pay from bonus and overtime pay. "Regularly employ- ed'' is not defined. It should be noted, however, that the definition per- taining to an employee of the commonwealth (as distinguished from a political subdivision thereof) specifies that such person must be engaged in his state work "during the ordinary working hours of regular and permanent employees". No such specification appears to apply to town employees. The Respondents further contend that pursuant to Section 8 (2) (a) (iv), which defines eligibility for membership in the system and uses the phrase "regularly employed" is followed by the phrase "as 2~ determined by the board as provided for in paragraph (d) of this subdivision". I construe paragraph (d) to mean that it relates solely to eligibilit~t for membership in the system and not to whether or nog a part-time employee is an employee" within the meaning of ghat term when used elsewhere in the chapter or specifically in Sections 3 (2) (f) and 20 (5) (e). The statutory pattern of G.L. Chapter 82 indicates a general overall intent that public employees must not continue to serve after arriving at the age of seventy (70) except in specific eases. The re- spondents Saunders and McCormack do not fall in the class referred to in Section 3 (3) or (3A). After a careful analysis of S.3 (2) (f) I conclude that the sec- tion requires the interpretation that if the respondents Saunders and McCormack had been members of the system they would be classified in Group 1; that the maximum age for Group 1 is age seventy (70); that both are over age seventy (70) and that they should be retired. I rule that the respondents Saunders and McCormack are em- ployees within the meaning of the relevant sections of the law even though they are not now and never have been members of the retire- ment system. The facts found herein constitute all the material facts upon which my order for decree is based in so far as it applies to the facts. ORDER FOR DECREE It is ordered that a decree be entered in accordance with these findings and ruhngs and the pleadings and that the prevailing party draw the decree as provided for by Rule 82 of the Rules of the Su- perior Court and submit it to the undersigned within 80 days from the date hereof. May 20, 1964 Wilfrid J. Paquet Justice Superior Court 25 FINAL DECREE This cause came on to be further heard after hearing on the merits and thereupon, upon consideration thereof it is ordered, ad- judged and decreed that the Essex County Retirement Board is a party in interest and has a standing to prosecute the within matter; that the respondent, Fred M. McCormack, is an employee of the Town of North Andover and as such, subject to the supervision of the aforesaid petitioner; that the respondent, McCormaek, is over the age of seventy (70); that the respondent, McCormack, is required by law to be retired; it is further ordered, adjudged and decreed that the Town of North Andover terminate forthwith the employment of the respondent, Fred M. McCormack. It is further ordered, adjudged and decreed that the within bill be hereby dismissed against C. Eugene Farnam, the Commissioner of Insurance. By the Court, (Paquet, J.) Charles II. Metcalf Asst. Clerk The within decree may be entered. July 15, 1964 Wilfred J. Paquet Justice Superior Court Filed July 81, 1964. RESPONDENTS' APPEAL Now come the Respondents Town of North Andover James J. Maker, Treasurer and Fred M. McCormack and jointly and severally appeal to thc Supreme Judicial Court from the Final Decree entered in the above cause. Town of North Andover James J. Maker, Treasurer Fred M. McCormack By Arnold I/. Salisbury Town Counsel Town of North Andover 26 RESPONDENTS' MOTION TO CONSOLIDATE FOR APPELLATE PROCEDURE Now come the Respondents Town of North Andover James J. Maker, Treasurer and Fred M. McCormack and jointly and severally move that this cause be consolidated with Essex County Retiremen Board v. Louis P. Saunders and others, Essex Superior Court No. 14404 (Equity), for the purpose of presenting a combined record of said two causes to the Supreme Judicial Court upon their joint and several appeals, this day filed, from the final decrees entered in both said causes, on July 15, 1964, by order of Paquet, J. S. C. Town of North Andover James J. Maker, Treasurer Fred M. McCormack By Arnold II. Salisbury Town Counsel Town of North Andover to the allowance of the above The Petitioners hereby assent motion. Essex County Retirement Board By James T. Ronan Filed July 31, 1904. Paquet, J. Motion Allowed Attest: Oct. 26, 1964 E. Philip Littlefield Asst. Clerk The foregoing are true copies. Attest ........................................... ~4sst. Clerk TABLE OF CONTENT'S Bill of Complaint Answers Case Stated (Saunders) ........................... 1 (Saunders) .......................... 4 (Saunders) .......................... 5 Findings, Rulings and Order for Decree Final Decree Appeal (Saunders) ......8 (Saunders) ..........................11 (Saunders) ..........................12 Bill of Complaint Answers Case Stated Consolidation of 14404 (Saunders) with 14405 (McCormack) for Appellate Procedure ..............................12 (McCormack) ...................... 18 (McCormack) ...................... 17 (McCormack) ...................... 18 Findings, Rulings and Order for Decree (McCormack) ...... 21 Final Decree (McCormack) ...................... 25 Appeal (McCormack) ...................... 25 Consolidation of 14405 (McCormack)with 14404 (Saunders) for Appelate Procedure ...............................26 CO]YIMOI~w~ALTH OF MASSACHUSETTS EssEx, ss. SXZ~.RXOR COURT THOMAS F. DUFF¥ & others, as they are all the Members of the Essex County :Retirement BOard. TOWN OF ~ORTH ANDOVER & others. (:Re: Saunders) THOM.~S F. DUFFY & others, as they are all the Members of the Essex County Retirement Board. Town OF NORTH AN~)OVER & others. (Re: McCormack) CONSOLIDATED APPEAL. COMMONWEALTH OF MASSACHUSETTS. SUPREME JUDICIAL COURT FOR THE COMMONWEALTH. ESSEX COUNTY. MAi~CH SITTING, 1965. I~ E~UITY, No. 6589. ESSEX COUNTY I~ETIREMENT BOARD LOUIS P. SAUNDERS ANy 0THEaS. ESSEX COUNTY RETIREMENT BOARD FRED M. McCORMACK AND 0THrRS. BRIEF FOR PETITIONER. Statement of the Case. These are appeals from two decrees, entered in the Supe- rior Court, which ordered, adjudged and decreed in sub- stance that the two respondents Louis P. Saunders and Fred M. McCormack each were employees of the Town of Andover, and as such subject to the supervision of the Essex County Retirement Board; that each of the afore- said respondents, being over the age of seventy years, was 2 required by law to be retired. Each decree further di- rected that the respondent Town forthwith terminate the employment of each of the aforesaid respondents (R. 11, 25). The case comes before this court on the appeal of ~he Town of Andover; James J. Maker, Treasurer; Louis P. Saunders; and Fred M. McCormack; and said appeals have been consolidated by the Superior Court (R. 12, 25, 26). Statement of the raets. The facts were submitted to the court as a case stated in each matter, wherein it appeared that the respondent Louis P. Saunders, who was born on November 8, 1892 (R. 5), was appointed a Registrar of Voters on March 12, 1962, he then being sixty-nine years of age; that at the commencement of this action he was over seventy years of age;that he never became a member of the Essex County l~etirement System (R. 6). It appeared in the second case stated that Fred M. lgcCormack (R. 18) was born on March 17, 1889, and was first appointed a Registrar of Voters in March, 1945, he then being fifty-six years of age; that at the time of the commencement of this action he had attained the age of seventy-four years (P~ 18); that he never has been a member of the Essex Connty Retirement System (R. 19). It further appeared that no Registrar of Voters of Essex County, regardless of age, has been granted mem- bership by the Essex County Retirement Board acting un- der G.L.c. 32, ~ 3 (2) (d) (1~. 7, 19). It was agreed that Saunders served at an annual salary of $200 (R. 6) and that McCormack served at an annual salary of $250 upon his most recent appointment (1~. 18). The Essex County Retirement Board notified the Town Treasurer on October 24, 1962, that the employment of the respondent Saunders should cease on November 30, 1962, since he would attain age seventy that month (R. 3, 7), and that McCormack's employment should cease as of October 23, 1962, the effec- tive date of the repeal of the Civil Defense Act (R. 15, 20). Subsequently the said Treasurer notified the said Board that said notice would not be complied with regarding either Saunders or McCormack (R. 4, 16). Thereafter each of the bills in equity was commenced (R. 4, 16). 1. Does the Essex County Retirement Board have a standing as an interested party to prosecute each bill, in- asmuch as neither respondent Registrar of Voters has ever been a member of the Essex County Retirement System? 2. Whether or not, as a matter of law, the termination of the employment of Louis P. Saunders was mandatory on November 30, 1962, and that of Fred M. McCormack on October 23, 1962. Argument. 1. The Legislature has designated that the Retirement Board is charged with the maintenance, supervision and control over those matters set forth in O.L.c. 32.* More- over, the supervision reposed in the Board pertains to those who are members of the system as well as to other governmental employees. Specifically, the Board is charged with the duty to. keep birth records of members of the system or employees entering the service of a gov- ernmental unit after attaining the age of sixty (prior to 1956, the age was fifty-five) and to give notice of such in- *Relevant portions of chapter 32 are set forth in Appendix B at the end of this brief. dividual's attainment of the maximum age for his group, after which such individuals shall not be employed. G.L. c. 32, ~ 20 (5) (e). That the Board is charged with the supervision of employees as distinguished from members of the system in the employ of a governmental unit couJd not be more clearly set forth by the Legislature. The extent of the responsibility placed upon the Board to ad- minister the system and the obligation to protect it has been discussed by the court. State Board of Retirement v. Contributory Retirement Appeal Board, 342 Mass. 58. To say that one who is an employee but not a member of the system and thus beyond the supervision of the Board wholly is to ignore that the unrestrained employment of anyone by a governmental unit regardless of age would certainly contribute to a breakdown of an obvious funda- mental purpose of the Legislature, to have a mandatory retirement of all such employees at the age of seventy; all the more so in this case, where the employment of the re- spondent McCormack before the age of sixty made him eligible for membership at the will of the Board, he then earning less than $200 annually. See G.L.c. 32, ~ 3 (2) (d) and (2) (f). It certainly would be a curious result if the Board which could determine him to be eligible for mem- bership and require his retirement at seventy could not have a standing to see his employment terminated at that age, simply because he was not declared eligible. Further, the Board, being one of the parties enumerated as one to receive notice of violations by a governmental unit of pro- visions of the Act as set forth in G.L.c. 32, ~ 24 (1), it is submitted that the term "interested party" as subsequently used in said statute was obviously meant to include the Re- tirement Board. It is respectfully submitted that the Essex Connty Re- tirement Board has the standing to prosecute each of these bills in the discharge of its duties and obligations under G.L.c. 32, and further that the Board is expressly author- ized so to do by virtue of the language of G.L.c. 32, ~ 24 (1). 2. Turning now to the question of whether or not the termination of the employment of Saunders and McCor- mack was mandatory: Having in mind that Saunders was sixty-nine years of age upon his appointment in March of 1962, and that he reached age seventy in November of that year, he was never eligible for membershio in the retire- ment system. However, it '~s submitted that this distinc- tion in the factual pattern as hereinafter set forth in the history of McCormack's employment is of no consequence and the same requirements apply to each. Thus the fact that McCormack was employed at the age of fifty-six and could have come into the system except for the practice of this Board not to take those earning less than $200 is of no materiality when one considers the general legislative intent behind (~.L.c. 32, ~] 1-28. Further, it is not mate- rial that McCormack had reached the age of seventy-four years when the action against him was commenced. That he was permitted to be retained as an employee and car- tied on the records as being such by virtue of the Civil Defense Act was in the agreed statement offered only to explain his employment at his advanced age; whether or not the act applied to him is of no concern now, for, if it did not, then his employment should have ceased four years sooner, it has not been suggested that the Board waived any right in permitting his employment to continue and, indeed, it is submitted that none was waived. Wether v. Boston, 342 Mass. 67, 70. Therefore the Board contends that both men, being over seventy and employees of the Town of Andover in the capacity of Registrars of Voters, and not being members of the retirement system, are sub- ject to the same application of the law. Mention should be made here that each of the gentlemen was an employee of the Town of Andover and was such 6 within the meaning of G.L.c. 32, ~ 1, wherein employees are defined: "as applied to persons whose regular compensa- tion . . . is paid by any political subdivision of the com- monwealth . . . shall mean any person who is regularly employed in the service of any such political subdivision · . . and also including officials and public officers so paid whether employed, appointed or elected by popular vote for stated terms or otherwise . . ." Of course, these gen- tlemen were appointed by the Selectmen for stated terms under the provisions of G.L.c. 51, ~ 15. That persons earning $200 or less might not become members was ex- pressly recognized by the Legislature (G.L.c. 32, ~ 3 (2) (d)), but that is not to say that they were ever deemed not to be employees. There can be no dispute of the fact that the basic inten- tion of the Legislature is to bring about the retirement of employees upon their reaching the age of seventy regard- less of which governmental unit may in fact employ them. In ~.L.c. 32, ~ 1, maximum age is defined as "the age on the last day of the month in which any member classified in Group A as provided for in paragraph (2) (~7) of section three attains age seventy [70] . . ." Further, in various sections of the statute retirement is mandatory in particular cases there enumerated; see, for example, section 65A, per- taining to justices and judges, section 70, firemen, section 75, probation officers, and section 83, policemen, all of whom shall be retired at age seventy. Moreover, it seems amply clear that this mandatory re- tirement age applies to those employed by a governmental unit regardless of their status as to membership. This position is spelled out in G.L.c. 32, ~ 3 (2) (f), which states: "No person who enters or who re-enters the service of any governmental unit as an employee after attaining age sixty, and after the date when a system becomes opera- tive therein, shall become a member except as otherwise provided for in this section. No such employee other than an elected official or a state official, as defined in section one, shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have been classified if he had become a member, except under the same conditions which are applicable to a member as set forth in paragraph (e) of this subdivision. Any employee who was not eligible for membership be- cause of originally entering the service of any govern- mental unit after attaining age fifty-five but before attain- ing age sixty, may apply for and be admitted to member- ship upon the terms and conditions set forth in subdivisions (3) and (3A) if under the maximum age for his group on the date of his application." Too, the Legislature has expressly called for the retire- ment of employees upon their attaining the maximum age, which directive is contained in G.L.c. 32, ] 20 (5) (e), wherein it is provided: "The board of each such system shall keep a record of the date of birth of each member of the system, and also shall keep a record of the date of birth of each other employee who entered or re-entered the serv- ice of the governmental unit to which such system pertains after attaining age sixty and after the date when the sys- tern became operative therein. It shall be the duty of such board to notify each such member or employee, the head of his department and the treasurer or other disbursing offi- cer responsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be employed in any governmental unit after such date ex- cept as otherwise provided for in sections one to twenty- eight, inclusive. Such notification shall be made in writing not ]ess than thirty days nor more than four months prior to such date." The position of the Essex County Retirement Board that [he law requires the termination of the employment of these gentlemen is perhaps best demonstrated by the two opin- ions of the Attorney General, both of which opinions are annexed hereto (Appendix A). Conclusion. To conclude, it is respectfully submitted that the Essex County Retirement Board does have the standing to prose- cute each of the aforesaid bills in equity, and further that as a matter of law Mr. Saunders and Mr. McCormack must have their employment by the Town of Andover terminated. It is respectfully requested that the decrees in each case be affirmed. ESSEX COUNTY RETIREMENT BOARD, By its Attorney, J~,s T. Ro~A~. Appendix A. ~/IASSACHUSETTS ASSOCIATION OF CONTRIBUTORY RETIREMENT Bo~mos THE COMMONWEALTH OF MA$SACHUSETTS~DEPARTMElqT OF THE ATTORNEY G~N~R~L---State House, Boston 33, Mass. --August 14, 1961 Honorable John T. Driscoll Chairman, State Board of Retirement State House, Boston 33, Mass. Dear Sir: Your letter of recent date relative to your duties con- cerning the Chairman of the Government Center Commis- sion is at hand and contents noted. In your letter, you state that your Board has been ad- vised that Mr. William F. Callahan, Chairman of the Gov- ernment Center Commission, attained age 70 as of June 12, 1961; that Mr. Callahan is not a member of the State Employees' Retirement System, having commenced his present period of service after attaining age 60. You fur- ther state that Mr. Callahan applied for membership in the retirement system but withdrew the application. In view of those facts, you request my opinion "as to what duty or responsibility now evolves upon the Board when considering Mr. Callahan's ease un- der the provisions of chapter 32 of the General Laws and more specifically under the provisions of section 20, paragraph 5 (e)." Your request requires a construction of various provi- sions of G. L. (Ter. Ed.) c. 32, entitled "Contributory Retirement System for Public Employees." One fact ira- 10 presses me as I read the various sections apparently put together with much care by the General Court relating to matters raised by your request. The statutory pattern of chapter 32 indicates a general overall intent that public employees must not continue to serve after arriving at the age of 70 except in specific cases, and subject to the pro- visions of § 9(h) of c. 639 of the Acts of 1950. For ex- ample, ~ I of c. 32 defines "maximum age" as the age on the last day of the month in which any member classified in Group A as provided for in paragraph (2) (g) of ~ 3 attains age 70 or if classified in Group B or Group C, at- tains age 65. Section 3 contains many restrictions and limitations of the right to become entitled to the benefits of membership in the public contributory retirement system. Subpara- graphs (2) (e) and (2) (f) of ~ 3 read as follows: "(e) No member, except as otherwise provided for in subdivision (1) of section five or in section ninety- one, or in section twenty-six of chapter six hundred and seventy of the acts of nineteen hundred and forty- one, or in chapter sixteen of the acts of nineteen hun- dred and forty-two as amended, shall remai~ in service after attaining the maximum age for his group or after the date any retirement allowance becomes effective for him, whichever event first occurs. "(f) No person who enters or who re-enters the service of any governmental unit as an employee after attaining age sixty, and after the date when a system becomes operative therein, shall become a member except as otherwise provided for in this section. such employee other than an elected official or a state official, as defined in section one, shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have 11 been classified if he had become a member, except un- der the same conditions which are applicable to a member as set forth in paragraph ( e) of this subdivi- sion. Any employee who was not eligible for member- ship because of originally entering the service of any governmental unit after attaining age fifty-five but before attaining age sixty, nmy apply for and be ad- mitted to membership upon the terms and conditions set forth in subdivisions (3) and (3A) if under the maximum age for his group on the date of his appli- cation.'' Section 5 contains numerous conditions for allowance of superannuation retirement benefits. Subparagraph (1) (d) of ~ 5 contains detailed provisions for holding over after reaching the maximum age limit of elective public officials. Section 20 of c. 32 seems to be clear and un- equivocal. Section 20 (5) (e) reads as follows: "(e) The board of each such system shall keep a record of the date of birth of each member of the sys- tem, and also shall keep a record of the date of birth of each other employee who entered or re-entered thc service of the governmental unit to which such system pertains after attaining age sixty and after the date when the system became operative therein. It shah be the duty of such board to notify each such member or employee, the head of his department and the treas- urer or other disbursing officer responsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be employed in any governmental unit after such date except as otherwise provided for in sections one to twenty-eight, inclusive. Such notification shall be made in writing 12 not less than thirty days nor more than four months prior to such date." It should be noted that the General Court took pains to include wi~in its scope not only members of the contribu- tory retirement system but also non-member employees. You advise me that Mr. Callahan is a non-member em- ployee in the service of the Commonwealth. It would ap- pear that ~ 20 applies to the situation you refer to. Sec- tion 91 provides another indication of the legislative intent relative to retirement at age 70. It is there provided that no person after having been retired shall, while receiving his retirement allowance, be paid for certain public serv- ices specified therein with an exception in favor of those appointed for a term of years to a position by the Governor with or without the advice and consent of the Council, in which event the retired employee may be paid the compen- sation to which he is entitled under the new appointment provided he waives his retirement allowance while so re~ employed. However, since you advise me that the Chairman does not belong to the State Employee's Retirement System, the provisions of ~ 91 do not apply to him. Those provisions do, however, indicate a determination by the General Court not to permit the re-employment of public officials after the attainment of the ma~irnmn age limit of 70 except in a very limited number of cases of which the one you refer to is not one. My attention has been called to an opinion of the Attor- ney General dated May 27, 1946 (Op. Atty. Gen., p. 115) which ruled that a state employee who had voluntarily elected not to join the State Employees' Retirement System was not obliged to retire at 70 because the controlling stat- ute did not so provide. In discussing the subject, the At- torney (]eneral stated that a non-elective employee, not a 13 state official, was obliged to retire at the maximum age and from that it might be inferred that a state official was not. However, it is quite apparent that the Attorney General did not take into consideration ~ 20 (5) (e). It is possible to argue that ~ 3 (2) (f) quoted above, which requires non-members to retire on reaching the maxi- mum age for their group, may contain in it an exception on behalf of elected officials and state officials. The language, however, is somewhat ambiguous. It should not be con- strued to create an exception to the general policy set forth in Chapter 32. As previously stated, the chapter covers retirements of all state employees whe~er or not members of the retirement system. It has, among others, the pur- pose of preventing employees from accepting a salary in addition to a retirement allowance. It also has the pur- pose of requiring employees to retire at a fixed age thus creating an incentive to other employees who may look forward to promotions. Such desirable purposes should not be defeated by an over legalistic interpretation of an isolated subdivision of the statute. It is more reasonable to assume that the Legislature ex- pected that state officials, whether or not members of the system, should all be treated alike as indicated by the fact that subsection (f) specifically provides that exceptions as to the continued employment of non-members shall be the same as the exceptions available to members set forth in subsection (e). In the light of the foregoing, I am of the opinion that pursuant to the provisions of G.L.C. 32, § 20 (5) (e), Mr. Callahan's tenure of office is terminated by the statute. Very truly yours, (Signed) ErwA~m J. McCoRr~Ac% Jl~. Attorney General 14 Copy ])EI~.~aT~E~ OF ~HE ATTORNEY October 3, 1946 His Excellency the Governor and the Honorable Council Sirs: In a recent letter you have asked my opinion upon the following question: "May a person, seventy one years of age, be legally appointed as Director of the Division of local taxes, in the Department of Corporations and Taxation?" I answer your question in the negative. The provisions of G. L. (Ter. Ed.) c. 32 (the Contributory P~etirement Law), as amended by St. 1945, c. 658, do not differ mate- rially with respect to retirement at seventy years from those of said chapter 32 as it existed before such amend- ment. By force of the provisions of G. L. (Ter. Ed.) c. 32, sec. 2 (14), (15), (16) and sec. 4 (b), prior to the said amend- ment of 1945, the retirement of an employee in the State service at age seventy was required. 1944 Op. Atty. Gen. 104. See Goodale v. County Comm4zsioners, 277 Mass. 144, 150-152. With regard to the appointment of persons over seventy under said chapter 32 as it stood before said amendment, it was said by one of my predecessors in office in 1941: "The provisions of G.L. (Ter. Ed.) c. 32 as amended, by requiring employees reaching the age of seventy to withdraw from the public service of the Common- wealth . . . by implication prohibit the appointment to positions in such se~wice of those who have attained the age of seventy." 15 The legislative intent as expressed in the retirement law with regard to retirement of employees at age seventy was not changed by the said amendment of 1945, chapter 658. Under the present provisions of said chapter 32, as amended by said St. 1945, c. 658, retirement at seventy for a State employee occupying a position such as that indi- cated in your letter is required. Said chapter 658, sec. 3 (2) (f), provides in its applicable parts, with certain exceptions not here relevent: "No person who originally enters the service of any governmental unit as an employee after attaining age fifty-five . . . shall become a member (of the retire- ment system)... No such employee other than an elected official or a state official as defined in section one shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have been classified if he had be- come a member . . ." Subsection (g) provides that "officials and general em- ployees'' are to be classified in "Group A." The phrase "maximum age" as applied to the classification of "Group A" is defined in section I of said chapter 658 as "age seventy." The particular official under consideration is appointed by the Commissioner of Corporations and Taxation (G.L. (Ter. Ed.) c. 14, sec. 4) and is not a "state official" as those words are used in said subsection (f) and so is not included within the exceptions noted therein. "State OB- cial" is defined in said section i as "any person appointed by the governor . . ." It follows that any person seventy-one years of age ap- pointed to the position mentioned in your letter would by force of the terms of said subsection (f) be compelled to immediately cease to remain therein. Such an appoint- 16 ment would therefore be futile, and it may fairly be said by implication from those provisions of said chapter 658 which I have pointed out that such an appointment could not as a matter of law be effective. Very truly yours, (Signed) CLARENCE Ao BARNES Attorney General Appendix B. GEI~,R~L LAWS, CHAPTER 62, AS INSERTEI) BY ACTS OF 1945, CH~rT~ 658, Sr.c~o~ 1. SEC~O~ 1. The following words and phrases as used in sections one to twenty-eight inclusive, unless a different meaning is plainly required by the context, shall have the following meanings :-- "Employee", as applied to persons whose regular com- pensation, except in the case of any register of probate, is paid by any political subdivision of the commonwealth, ex- cept the metropolitan district commission, shall mean any person who is regularly employed in the service of any such political subdivision, including members of the police and fire departments, teachers and employees of any free public libra~7 or any public museum maintained in any city or town, to the support of which said city or town contributes not less than one half of the cost, employees of a school lunch program as authorized under the provisions of chap- ter five hundred and forty-eight of the acts of nineteen hun- dred and forty-eight, employees of a mosquito control proj- ect authorized under the provisions of section five A of chapter two hundred and fifty-two, and also including offi- cials and public officers so paid whether employed, ap- 17 pointed or elected by popular vote for stated terms or otherwise, except members of the judiciary. "Employee", as applied to persons whose regular compensation is paid by the commonwealth or the metropolitan district commis- sion, as the case may be, shall mean any person, whether employed or appointed for a stated term or otherwise, who is engaged in duties which require that his time be devoted to the service of either such governmental unit in each year during the ordinary working hours of regular and perma- nent employees, and who is regularly and permanently em- ployed in such service, including employees of the general court, state officials, constitutional officers, members of the general court or other persons elected by popular vote, but excluding members of the judiciary. "Employee", as ap- plied to persons whose regular compensation is paid by the United States from funds allocated to the Massachusetts National Guard, shall mean any person who is regularly and permanently employed under the control of the military department of the commonwealth and whose duties in such employment require substantially all normal working hours. [As amended through St. 1956, c. 306, ~ 2.] "Maximum age", the age on the last day of the month in which any member classified in Group I as provided for in paragraph (2) (g) of section three attains age seventy, or if classified in Group 2 or Group 3 attains age sixty-five. [As amended through St. 1958, c. 321, ~ 1.] SEcr~os 3. (1) (a) Membership in a system shall consist of two kinds as follows :-- (2) . . . Eligibility for Membership. 18 (d) In all cases involving part-time, provisional, tempo- rary, temporary provisional, seasonal or intermittent em- ployment or service of any employee in any governmental unit, including such employment or service of any state offi- cial the board shall have and exercise full jurisdiction to de- termine such employee's eligibility for membership; pro- vided, that any person holding a position for which the an- nual compensation is fixed in an amount of two hundred dol- lars or less shall not be eligible for membership except by vote of the board; and provided further, that any teacher em- ployed in the school department of the city of Boston on a provisional, temporary, temporary provisional or similar basis shall, upon the completion of a school year of service in the public schools of said city, become a member in service of the State-Boston retirement system if then un- der sixty years of age. For the purposes of this paragraph, a school year of service shah be deemed to have been com- pleted upon the termination of a school year in which the teacher, while holding a certificate granted by the board of education under section thirty-eight G of chapter seventy- one or while exempt from the provisions of said section be- cause of employment as a teacher in the service of said city prior to the effective date of said section thirty-eight G, has actually performed teaching duties on more than one hundred and twenty school days, whether or not consecu- rive, in such school year. [As amended through St. 1958, c. 578, ~ 1.] (f) No person who enters or who re-enters the service of any governmental unit as an employee after attaining age sixty, and after the date when a system becomes operative therein, shall become a member except as otherwise pro- vided for in this section. No such employee other than an elected official or a state official, as defined in section one, 19 shall remain in the service of such governmental unit after attaining the maximum age for the group in which he would have been classified if he had become a member, except un- der the same conditions which are applicable to a member as set forth in paragraph (e) of this subdivision. Any em- ployee who was not eligible for membership because of originally entering the service of any governmental unit after attaining age fifty-five but before attaining age sixty, may apply for and be admitted to membership upon the terms and conditions set forth in subdivisions (3) and (3A) if under the maximum age for his group on the date of his application. [As amended through St. 1956, c. 609, ~ 2.] Ssc~o~ 20 .... (5) . . . (e) The board of each such system shall keep a record of the date of birth of each member of the system, and also shall keep a record of the date of birth of each other em- ployee who entered or re-entered the service of the gov- ernmental unit to which such system pertains after attain- ing age sixty and after the date when the system became operative therein. It shall be the duty of such board to notify each such member or employee, the head of his de- partment and the treasurer or other disbursing ofiqcer re- sponsible for paying his compensation, of the date when such member or employee will attain the maximum age for his group, and such member or employee shall not be employed in any governmental unit after such date except as otherwise provided for in sections one to twenty-eight, inclusive. Such notification shall be made in writing not less than thirty days nor more than four months prim' to such date. [As amended through St. 1956, c. 609, ~ 3.] 2O S~.CTmN 24. If the commissioner of insurance is of the opinion that any governmental unit or any officer or em- ployee thereof, or the state board of retirement, the teach- ers' retirement board or any other retirement board sub- ject to the provisions of sections one to twenty-eight inclusive, or any member or employee of any such board, has violated or neglected to comply with any provision of such sections, or the rules and regulations established thereunder, he shall give notice thereof to the governor, county commissioners, the mayor or the board of selectmen, as the case may be, and to the retirement board, and there- after, if such violation or neglect continues, shall forthwith present the facts to the attorney general who shall take appropriate action. The superior court shall have juris- diction in equity upon petition of the commissioner of in- surance or any interested party to compel the observance and to restrain the violation of any provision of sections one to twenty-eight inclusive and of the rules and regula- tions established thereunder. [As inserted by St. 1945, c. 658, ~ 1.] No. 6589, ESSEX COUNTY RETIREMENT BOARD LOUIS P. SAUNDERS SAME FRED M. MoCORMACK BRIEF FOi~ PETITIONER. EssEx Cov~Y. Illllmltt F. Itltttt&, NISMIiy ~ Tilt ltftlll lld I11111 ! 1.11 W tetttf tem#tallla..l~ I~, IIII, ~ ittlr 4allVltlall e I~ t~, - Tklrl iI MtIIteIE livlntYeu lay a u ch ;utkerlt¥. mid thl T~ ~ i lly.4JliitNaapIilk Iklerelett, W lMI,t ia m~ItltelNtpe~tttl~ll I~Tw t~l~l~t W & VIi? frilly Illrl, /tliitl I~ Itlllllr/ T~iiI QIilll Sir: t~ ~ of ~iblllty tie l# il#l~.,..[l tt~] ~ It [1~] ]ii tltl t~liit their ttle YBii llliitlld fill I tii IHq Ii Ny Iii M r~lr. ty~l h lye tl~t l~lUilVe Galh'01 "i~f tilt ertlliia, y ~ll~tr 41f i~ldtlliS ~ la....... K ~ltl~l....tittt~t NliiI tltbJKt fo tN l,ttl4~lty ltl I~ #t#tllilt." GeL. e. 41. ~ ii, the veBleiit eld ~ FINJllall, liglJlVlr~ flelt till elplel1!_ II qlll!t~ lint ~ ~ty i ~ ~11~ W~ i atilt I1~ ~ ~ Itl Vg'lfall Illltlllll II fill If~~ef ~J Yfl#ldlBl, TkoKef ~K ~ ~e ~ gi~~l~l~ ~T~~i,L. ~ 41, ~ ~ ~ m ilrlllld N, #tlldlNIf'y Tillllll d~llllll#~lL Ikls h t111111# IlEal lill ~ 8treetl, itt~ elm #11al tie "tqLLtlI# ~ laae-I. 41eot lamen: i #m your letter ge me~ d~tell e~t41Nr ~, ~, It~l~ ~ TM tn t~ lB thia ~. me tt mi arlllutly aeealtru~t~ ~(mt I1~, (md la eno ef tko tee tow eighteenth mtury tmildl~e atlll atldl~g le N~ ~, ~ M~t, I~l~ly la ~t el hie ~, t8 I~ ~ Ii. ~St~t; t ~tlm that ~ 41ff~ tl~m N ~ ~tlli ~ ~1~ 1l~ll t~ Ibl~ efe Mile ~. ~ LL. e. K ~ I ) A Ptmj dlted llle, ef the ~lmeetNd Imtmilltil te the NOlte ef LydlII Plillltpl~" drlm 119 Ill K, 4amd trliel4, 4~1~11! fee $o I~ RN#IItlt, lld Plml, 4it441 amie, lies, lltlttei -Fire if ~ it. tgqmtee) ieletllnl te ilium I. t*eli~- m ~ Bate Imlre, CE, Nleltti, Team TIIt ii Rim N, St~ ~1~ ~1 Bi4rd I ~ your litter tem ~ iept~ier ~l, INS lid lUllJ tim follewillI ~NimlfJtl tO ~ eilt4lrltlll Itt Il YI~ Imlelee qam tim tm~lli~ll of tllnlttl' tetlel# 4eteemlmm the eeq~l~d ~e"l ~ ~ltle IiqaleT ~ tim el~ieemmt ef · Thlt I'lllVlfllllt e~{lltl ally # tlllpllld by the llltrel LiN et Ify Mill# II lllltt{leut ti llepf stay pl~ mPtl.~ll eeltfllJlld lB i WllTlf. I~ ~NJlJef tbit ~ llPttelll milt Immetlly Im Idlpted tPr · ~/J wte, Quite tlm eeveele is true. I mien tNmllt · pleteell~ if pep Z} of I Illin wit# roesen#le oaJ~letleell the tefu~ll 14ul r~lrlnll ~J votet In Ipeelfle in, re,Mo, la oil ethtr eltel~ slJorlfy octim Il luffleimt. If tho ftretillI dell nlt ~ ~ 4111tilt, pIIIN let Bi Vlry tl~tly dVlOld II, Sltltllry Ch. 44, Sec. 1 defin~ "majority vote" and "two-thirds vote" as "the vote a majority or two-thirds, respectively, of the voters present and voting at a meeting duly called." Ch. 39, · Sec. 15 says: "If a two-thirds vote of a town meeting is required by statute, the count shall be taken, and the vote shall be recorded in the records by the clerk; but if the vote i~ unanimous, a count need not be taken, and the clerk shall record the vote as unani- The following is a reasonably complete list (lifted from Bulletin F) of such statutes. Tho~ specifying annual meeting only are noted but the list is not complete as to that condition. CHAPTER SECTION 39 15 40 5, Cl. 15 40 5, Cl, 27 40 5It 40 12 4O 14 40 15 40 15A 40A 7 41 3 4~ 43A 42 83 44 44 7-8 44 2O 45 3 164 36, (18 45 19 275 Act 1948 · amend~l 41 81Y 32 88 ~ ~OA Annual Meeting Secret ballot, limited town meeting Appropriation for counsel before legislative hearing Celebration of anniversary of settlement Appropriations from stabilization fund Purchasing l~nd for bathhou~ X Purchasing land in general Conveyance of land taken other than by purchase Transfer of land to another board Amending existing zoning by-law Rescind vote az to official ballot Indemnifying treasurer or collector for suits Removal of art commission X Incurring debt under ~ny special act Incurring debt within or without debt limit Use of loan for other purpose X Removing park conunis~ioaers Acquiring and selling light plant Acquiring land for public domain Debt to remodel buildings Giving munleilml service to l~d which should b~ but is not on a subdtvtslo~ plan Accepting ~ for payments to del~mtents of per- som~ killed ia line of duty X Accepting act on penaion~ to person~ r~tir~d for disability X (two meeting~) X litdietal F, lllltti:: Nlillly ~ Till lilfl# hltdlll Deer Sir: ti# In the initlnt ~, ! #11 ~ ~ttm, ti# t~ ny lttt~ te the Itt#t- mci 4et. July I1~, l~ll~ ~leh ~ Iit ~ al fellm~ ta the Illl~t et this #tlitl~ #t1~, Mfel, id ill ~llte elflalt~, the Tm nl~t # held ~lble ~ dlnlm ~lt;~ fre~ ~ ~f~ in its ~t~ itree~," It my # tl~ ye~ wilt mt ti ~ the Kley ~ )q~r I~ ~!l~effl# tlt te thl8 mtt~r, in4 I ~ld # tt1# te ltl4111 it further with yeu, ~ ~ ~ Ums~ (bo,'bdmr). - tlltl~h ~ld it' llil. td hive ~ *~~ I~ tits ~tl& ~III ~1~ ~ IIHI W ~ ~1t ~ ~t~1~ ~ ~ II--Ill ~ ~ ~ly If ~ T~ ~I~ ~lfl~lty Very t~tly yaqlr8, mid It. #1 Illmry ARNOLD H. SALISBURY, TOWN P. rlUNSEL TDWN DF NORTH ANDOVER, MASSAE:I~UsETTS July 27, 1965 John J. Lyons, Town Clerk Town Office Building North Andover, ~assachusetts Dear John: t have your letter ,o me da,ed July 22, 1965, calling my a,,en,ion ,o Chap,er 530 of ,he Acts of 1965. You inquire as ,o i,s scope. Said c. 530 amends G.L.c. 50, ~ 7, under the provisions of which, for many years, the Selectmen have been empowered to "make regulations consistent with law relative to the use of ballot boxes and seals, counting and other apparatus, the receiving of ballots and the counting and returning of votes." The 1965 amendment relieves the Selectmen of this responsibility, and places it with you. The regulations which you are now empowered fo make are purely administrative, and the new statute leaves unimpaired the Selectmen's power fo appoint and remove "election officers" [wardens, clerks, inspectors and their depufiesl, and to fill vacancies in these positions. See G.L.c. 54, ~ 12-14. lin certain stated circumstances, the Board of Registrars of Voters may appoint such officers if the Selectmen fail to do so, G.L. c 54, ~ 12, and, in the absence of an appointed election officer at the opening of the polls at the quadrennial Presidential Election, the Town Clerk may appoint his replacement, G.L.c. 54, ~ 16; if the Town should accept G.L.c. 54, ~ 16 A, you would be so empowered af any election.] I am sending a copy of this letter to the Selectmen, for their information. Very truly yours, AHS:ad Town Counse I ~ ARNOLD H. SALISBURY, TOWN F:.OUNSEL TOWN OF NORTH ANDOVER, MA-~SAP. HUSETTc= LAWR ENi~ E, MA~:SAE: H IJ c= ETT~: 01B40 July I, 196.5 John J. Lyons, Town Clerk Town Office Building North Andover, Massachusetts - 01845 Dear John: You tell me that, for numerical reasons, the presently existing boundaries of North Andover's voting precincts ~1 and ~4 should be changed, You ask my advice as to the procedure - being ahead of me, of course, by citing G.L.c. 54, ~7, which is a governing statute. The General Laws specifically require cities fo divide their areas into "convenient voting precincts," G.L. c, 54, 22, but merely permit towns fo do so. Thus, see G.L.c. 54, 26, which provides fhaf a town may direct its selectmen fo divide the municipal area into such precincts, making, so far as possible, "the center line of streets ....... or other well defined limits, the boundaries of the proposed precincts ..... "and G.L.c. 39, §20 (formerly G.L. c, 11, 2353, as amended, which the Town accepted under Article 12 of the warrant for its 1912 Annual Town Meeting), providing that, upon such acceptance, a town may "establish precinct.voting .... [this is merely another example of the different treatment occasionally accorded by the General Court fo cities and town~, and I call if to your attention only so that you may again be alerted fo the necessity of reading statutes relating to municipal government with extreme care.] But we now have precinct voting in the Town, and your current question has to do With how the precinct boundaries may properly be changed. I) Only a Town Meeting may change them, and then, of course, only under a Town Meeting warrant Article, properly drafted. 2] Such changes "shall take effect" on the last day of the calendar year following such Town ~eeting action. G.L.c. 54, 2 7. [Therefore, if you are looking toward the 1966 Town election, a pre-New Year's Eve special Town Meeting will be necessary.] 3} At least seven days prior to such a Town Meeting, the Selectmen must file with you a "statement" giving the boundaries of the proposed new precincts "and the number of voters registered in each for the preceding state or town election." G.L.c. 54, ~ 7. ARNOLD H. SALISSURY. TOWN r:DUNS£L TOWN OF NORTH ANDOVER, MASSAr:.HU~ETT5 -2- July I, 196.5 4} After an affirmative Town Meeting vote upon such an Article, the Selectmen must post, in your office, and in at least three public places in each newly defined precinct, "a map or description" of the same, in which they shall be "defined clearly andt so far as possiblet by known boundaries.." Copies of such a "map or description" must also be furnished to I) the Registrars of Voters, 2) the Assessors and 3} the election officers of each such newly defined precinct. See G.L.c. 54, ~ 8, another governing statute. I am sending a copy of this letter to the Selectmen, for their information, AHS:ad Copy to the Selectmen Very truly yours, ItIItl ~ thl ~ It llIII ~ IliIItlt ii eli te fll lIMIt," lee S 8, JII 11t lin lift Iit t l,ltttl ~ il Itl II'll~ ~ Ii tlc leleeli lmul4 eel ~ · Ipy4, Itl tIle'd I!e ill'lid iii ~ N. ~1~ TIII imm Imm mmet lc' lmllle I~ml~ ml Il mm t irelm-#m mmm, It Il mm~ ml~.Itmll~l llml em~telm e! tlc mere ef lelm mlmltlmll Vlmm stnmt w~n te mmm~l~ title tm tim leml m~ ~le# l~e pIm elmm It em ~ ptmt t~mem m ~ t~ ~ mm~e, emml Immm It elemell ~ tt mm~ Immml~lm l~bl Il troll. hll flemlt m~ ef mm # MIlK M M tmlll {1~ t#I IIIIIIIII ~ lllltld el' mil III Tm Im i ~irty! It Imm mm tm~Irl~tm~ lint tm lira trod Im ~mml~l~m~ mm. mm~m~ m.l~r t~ e. the mte their Jeer te rm~tm el t~.mt mime It imemtl~ Imld ~ em mmmm rammer IIEt, n tim mml mlth tlmm tr, Iff"lllm Imld m mtl~ efter flrS$ eemlllfll~ #lc~ fel, im~lee~ I t~ imf eec Stmit the Tm Ime~mm$ ly imm emiy mmlelpe! I#temt Ie the mulk, Jeet~t~ ef ~ t~tt~, tm m, Vlry trtlly yllmmmq~, ARNOLD h. SALI-=;BilRy, TOWN OOUNSEL TOWN OF NORTH ANDOVEI~, MA=;SAOHUSETTS LAWR eNE:£~ MASSAC HLISETT~ nlB4n DaVid F, ReHI~ Teill~ ~tMt TeMII~ OffJ~l~ B~ll4t~ Nm'th *ndev~ i~ll~setts - I hive ymlr litter t~ # dittd Ity ~/~tt¢te ~ et tht IHt ~Ivlt Telm lilting m~nt te the St#l t I~itle~ ired. In ~N4, the sm ef $te,G me I Imm thee it m tl~ lute~tte~ et tl~ Ml~t~r~ ~ te ef that bllme to t~ p~ ef ~tlele ~ m ~ te the ~Bt ef t~ State ~~ Flm ~4, ~ It mid ~t ~ ~, ~ it the ~te ef t~ l~ Tm ~tln~ ~ ~ ~t ~ · pprovlt mid be letter te It dllt# that it raj# Ind ~lete Ile,~ ~ ~lttm te t~ tlti~ F~4 ~1~ "~ ~ ~ti~ ~d t~ Tram wt~. It Isqulteet~ thee St~llizttl~ F~, 11~ the p~iN t~et~ If te~tty ~lble, the ~." h ~t~ trm~, th~e te Its r~t ~,1 by the Stet~ ~ey Fin~ ~d. k~ ~ ~tile. I ~ ~et imam m/mt y~ md the Tra.surer cnn mt Implemlmt tl~e i.t~t ef tkll le ~ fleld, ~t ml~. ~t 1 that ~ ~ ~ llO~ ~uld be ~ to ~ ~etl~ F~, ~ thee ~ le~ ef t!~18 lett~ te tl~ Tm ¢lerl~ ~ml Very truly ARNOLD H. SALISBURY, TOWN OOUNC~EL TOWN OF NORTH ANOOVER, MASSACHUSETTS April 26, 1965 Board of Public Works Town Office Building North Andovar, ~assechusetts - 01845 Planning Board Town Office Building North Andover, ~eSsachusetts - 01845 Gentlemen: I now have reouests from each of your Boards relative to certain problems, set out below, raised by actions taken at the ~965 Annual Town Meetin§ upon Articles ceiling for extensions of the water Supply system. A1 the outset, the substance of G.L.c. 4C, ~ 42 G, must be stated [i m mater;al portions ere om;tted) tributing system which accepts this sect ~ey provide AY vote for the levy of spec~ Any' lown hevin~ a water on and the two follow in~ sections el assessments to meal the whole or pert of the cost thereafter incurred of laying (water distr;but;on) pipes in public and private ways. At that meeting, the Town (under Artlcle 31 of the warrant therefor) vcte~ to accept the subject statutes; under Article 3lA, it voted to prov;de for such a levy, "the amounts of such essess~ents, and the persons to be assessed, to be determ;ned by the Board of Public Works." This vote is cons;stent with said ~ 42 G, which also provides that "1he amount to be cher~ed e]ainst each ~arcel of lend receivin5 {the) benefit (of new water Supply extensions) shell include the cost cf the ~ipes end other materlel and of the labor of lay]n~ them and other e.~_penses inc:dental thereto and ,~nll be sscert~inedI eele,~ed end certifies by the officerl in chm'ge of the l~ly end ~intribu_ti_onof water Jn such t~," ~ereefter, in it~ .ction un~ ~everel Inter ~ticle~, the T~ ~t~ to reins ~d ~pr~rl.te ~eye "to ~e exp~ded un~r the directi~ ~f the Boers of Public ~kl f~ the purple ef ext~eing the water ey~t~" ~ certain n~ etr~te: In each Inlt~ce, the foll~ing condlti~n i~ee ~y the T~ in its vote: "~IDED further that the petitiener~ or their n~inee ~ell ~ ~ before August I, I~, have begun c~ntruction =fnt le~t one h~uee: ~e ~IDED further that the peti- tionern or their n~in~ ~hell bef~e the inntalletion of the utilitiel requeste~ under thin article poet · coven~t running to the T~ of North An~ver eetinfectory to the ~th ~ver Planning Board to a~nure that the street or way affected by thin article shell Be put into condition f~ ecc~tnnce ne · public way by the petiti~erl or their n~inee iii in ~cordence with t~e requir~nts of the Su~ aivision C~frol L~ ns e~ted by the T~ with reference to surfacing end ~reinege," Let it be meeea matter of record that I had nothing to ~ with the ~fting of thil provilo: it wll pr~osed to the ~eting~ end adopted, prior to my having had any ~portunity to explore the unc~forte~le legal questions ~ich it generate~, It I~ hereinefte~ referred to e~ "the condition," I, In his letter to me d~ted ~erch 15, I~, my ~ttention to the provision of G.L, c, ~, ~ 42 I, ~Jch require~ the Boer~ of Public Works, ~ce it hen "~te~ined to lay water p[pel in public ~d priv.te ways," to "forthwith cause to be recorded in the registry of ~eed~ ........ e statist of their action ..... " He he~ requested my e~vice ~ to "the fo~ end manner of such · ~tet~nt." SeJd ~ ~ I i~o~e~ the roll.lng requir~ents for the "~tet~nt" ~Jch the Board must record: I} It ~hell "~pecify the ways in ~ich ~uch water pipes ere to be 2) It Ihlll, I1 to landl benefite~ by the extenlion which do not i~t up~ luCh · wly~ "dtlcribt luch lind." 3) It ll~ell delignate, as the cw~ner of each p~rcel of land to be ~eee~e f~ the c~t of the extension, the per~n n~d ~uch ~er ~on the A~eeeeore' record~ aa at the preceding January I. Accoreingly, I rec~ne that the Boer~ of Public Works, ~en the ~propriete t~ ~rrivee, cause to be recordS, ~tat~nt~ in ~ug~eted fo~ annexes hereto en~ m~ked "A". I~, The Pl~ning Bo~d hal rlquelte~ my advice e~ to it~ "dutiel, re~onlJbilitie~ ~ ~ctionl ........ under the requir~ent~ noted in Article 52 ~ other~ ee pa~sed et last T~ ~eeting, ~erch I~, 1~5." Tbe~e ere, of course, the Art~cle~ authorizing water extensions under "t~e condition." "The con~iti~" purport~ to incorporate certain of the prov;~ion~ of the "Sub~ivJlion C~trol L~" IG.L, c, 41, ~ 81 K, ff.), "with reference to ~urfacing end drainage," ~nto the T~'e vote~ upon the "water exten=~on" Article~. One d~fficulty, at the start, i~ that that L~ does not tself ·pell out any roa~uJl~ing requir~nt~: the~e are left to ~e aef ned by the rule~ tnd regulation~ of local planning board~, And, ~le, pres~aDly, the North An~ver Planning Board hal e~pted and n~ enforces such it i~ my understanding that none of the erea~ to ~e ~erv~ced ~y the authorized water extensions fall~ within the statutory definition of a "subaivision" (lee G.L.c. 41, ~ 81L): no ~uch area, therefere, il lub~ect to the diction of Plannin~ Boer~'l "~ubdivi~ion" regulations. Another difficulty sp~ed ~y "the condition~' ~I t~at of the ~uriediction of the Plannin~ Board to make ~eci~ion~ directty affecting t~e expenditure of T~ fund~ for the purpose of extending the municipal w~ter ~yet~. Certainly no luch ~ur~idiction i~ explicitly accorded to that Bo~d by the ~neral L~, an~ it ~& doubtful that G,~. c. 41, ~ 81 ~, permitting the To~ to refer "any ....... matter or cl~ of mstterl to the planning board before final ~ct~on therein,', f~ts the contours of our .prob- lem. He, myer, I em wllllng to asinine0 at thil date, that the Te~n may have Preg~erly designated the Planning Board to serve in an a~l¥i~ery capacity to the Board of Public lIrRI in the matter of the proposed water syltem tenlionl. Still another question arilea because of the provisions of "the condition" that either a ~ond or a.~Oveq~t (in each instance "letlsfectory" to the Planning Board) be given to guarantee that the affected ways eventually be put into a state of good repair without cost to the Tc~m. Prelums~ly, because of "the condition's,' later reference to the Control Le~, it was inteneed that any such c~essnt contain the tens of covenants given under the provialonl of G,L. c. 41. ~ 81 U: "that no lot in a particular subdivision ~hall be built upon or conveyed (with lame prelently i~material exceptions} until the landc~mer Shell have met certain requireemnts. It is obvioul that no such undertaking could be made by any- one in the context of our present probleen, in view of the other requirement of "the condition,, that "on or before August I, 1965 ..... tthe} construction of et least one house Ishall have been begun)...,, Accordingly. I recommend that only the bond suggested by the To~n'l recorded votes under the sub- ject Articles be considered as amiens of guarantee. One of the other problems involved s raised by the ~hrase "the petitioners or their nominee." I frankly adrn t my inability to pinpoint the identity of the person who should post the required bond ae to any one of the matters with which the Town concerned itself under the subject Articles. However, I ern advised by ~-. Duffy that the Board of Public Works Will have no difficulty in this area. And, of course - and this is of prime importance in the solution of ell of the questions suggested II)eve, and of thole ~hich may later arise - it is that Board which w;ll ultimately "direct" the expenditure of the funds raised by the T~ for water system extensions in Ig65. Unless it is satisfied that the To~n*a interests will be adequately protected, it should not direct any such expenditure, in any instance, Since one of its rne~nbers is the author of "the condition", I have no doubt that it is fully .were of the intent and purpose of the atrictive provisions of the Town's votes upon the subJect Articles, and that it will not "direct" any expenditure inconsistent thar~ith. Ill. The Highway Surveyor, whose respon$;bility it is to keep twon ways in repair, il clearly en interested party here. in all likelihood~ the Planning Board would be willing to accept hie recowrnendations relative to minim~ requirements for "putting" each of the subject ways "into con- dition for acceptance as a public way." I am therefore sending him a copy of this communication. IV, I suggest the following timetable: 1! The Board of Public Works, after consultation with the Highway Surveyor, should prepare a form of bond, eventually to be executed by the proper per.ns, specifying what "the petitioners or their nominee" must do in order to comply with "the condition." The amount of the bond and the time within which the principal shall perform the specified work should, of course, be alt forth. 2) Th;S proposed form of bond should then be forwarded to the Planning Board, for its approval. 3! Following Such approval, the Board of Public Works should record the "statement" above referred to, proceed with its work, properly expending the funds appropriated therefor by the Town Meeting, sub.iect, of course, to the additional requirement of "fha condition" relative to the construction of "et least one house" prior to August I. In my opinion, the only function of the Planning Board in these matters ia to approve or disapprove the form of bond presented to it, for such approval, by the Board of Publ;c~l~Orkl. In arriving at its deter- ~inltion upon thi~ question, it may or m~y not, entirely upon the r~nd~t~on~ of the gi~y Surveyor ~ to mln~ ro~bui Idlng requir~nte, In my ~inion, al~, I may h~eefter be required to ditcull theee ~ttere further ~i th your ~ar~. ~rh~ you may agra. Very truly yours, Cople, to: The Hl gh~,y Surveyor The Town Clerk you ~or'werfld to me, with a request for ~r~ B~l~eF ~t~tee ~hat a wly delcribed by him el s "public right-of-,~.~y"', .~ich~ spa.really, abuts hie property, ia in bad need of repai~ ~ f~fh®~ e~etee that he would be glad to mike the in- dicated r~p~i~ ~f h~e ~ expense, but "unfortunately" cannot do so because h, ~oe~ ~t ~ the lane over which the way ex[all. it ~y ~ be that, if M~. BI[lay will conlult his own l awyer~ he ~i~ fin< ?hat ha le more fortunate then he believes, "The right ~ ~ye~e ~ntif~ea to uae a private way to make rtslonable repairs an~ ~e~Y~te is well eltablilhed in caeel Where the way without i~~ th~ way il I~#llble end ultllll,' Gu~ll.ety,. Liverqol~ ~gT ~l~, ~7, )40 IIg57l. In ell Ilkellhooa, the way in question ~ ~'~i~lle"' ~theF then "public," I ~ugg~lt that you reply to N~r. Bailey ay Sending him a copy of thio ~etter (photocopy enclole~ for your ulel. N-IS:ed Very trul~ i ARNnLo H. SA, LISBURy, TOWN C(3UN~E~L TOWN OF' NOI~TH ANDOVEI:t, MASSACNUSIr'I-I'$ April 15, 1965 Richard H, Stang, Chairmen North Andover Personnel Board Tc~t~ Office Building North Andover, ~$sachusetts Deer Sir: Your predecessor in office has requested my opinion, by his letter 1o me dated ~erch 28, 1965, as to the "effectiveness" of the Town's action, at the 196~ Annual Town Meeting, upon Articles 80 and 8i of the warrant there- for. AS you know, each of the subject Articles called for an amendment of fha Personnel By-Law to create new municipal positions (Article 80: "Treasurer Assistant", and Article 81: "Accountant AssJstant")~ each allocated to "Grade $-6" (see Schedule B of Section 7). The Tow~ Meeting, again as you know, e~cpted these Articles. /~-. Hunter has called my attention to Section 4 {E) of the Personnel By-Law, which provides that "No position may be re-clasSified or no reis1 may be assigned fo a different c~'npensation grade, until the Perlonnel Board shall have determined such reclassification or such resss[gnrnent to be consistent with the clasaifTcaf~on and compensation plans." He seems to quire whether this provision of the By-Law invests your Board with the authority to "a~sign individuals (emphasis mine) to said new titles and compensation assume that you want my answer to his question. I would be happier if I knew precisely what it was. If it is whether or not your Board has the power to ~esignate the psrticu~&r individual to fill the newly designated Town posit;oas, e negative answer is, quite clearly, indicated. See Section 4 (B) of the By-Law: your Board's decisions cannot in any way affect "the power of any a~ninistrative authority .......... to appoint, to assign duties to, or to direct and control the work of any ~loyee under the .jurisdiction of such authority." You lihould, of course, "maintain written ~ob descriptions ........ of the classes in the classification planlt(as required by said ~ 4 [BI), end have~l ~ informed, requested both the Tcr~cn Treasurer and the Town Accountant to supply you w~fh such descriptions. ! understand that these will shortly be forthcoming. IS there some other question? Have t missed the thrust of Mr. Hunfer~ inquiry? AHS:ad Copies to: Very truly y~-rs, The To~m Treasurer - The Tow~ Accountant Town Counsel ARNrlLD H. SALISI:::ILIEy, TnWN OrllJN.qEL TnWN DF NnRTH ANDnVER, MASSAP. HU~:ETTS LAW[~ EN r:E. MABSACHU~ETTS 01840 ~ ~Nlevir, Ill tliettd it fill illt! ~ Irllttll!l ltltlMt," It I11 JieM'ilt It ~ Iii Ira4 IlJJ~ J tJJatly ~ lilllltt# ti jar ~ tltlitealj~ with in lt~lltllttllt fi, i INtlit flr thl I#tlllJtlll ti ~ J lJltJ~ iltir SJ~tten 4 mt yeur ~llttlitleJl rjr C4JqN~Ii~ IJtl, l". Yeu IBqlllre ltl tit year j~rlldlGtlea te eet iq#J t#lt~ tMltfir. et ~r~J, ie I~J tmmt lmm, yew lattl# tilie! ~ ~t ~ ~, et t~ tim ef t~ mt~ of t~t ~, ~et In~lnlm t~ J~ IJ~t thlil Im amt ii %J~Jl e~Je-; the $,4mrtir Cellpte titter, dl~Idld tkat ye~ llek J~,l#lJtlea J~tmJ~ dlaj~4tI I~lltm t1~ thtt MJ~lpJt ml~, ira4 ARNOLD H. SALISIUFIY, TOWN COUNSEL TOWN OF' NORTH ANDOVEfl, MASSACHUSEI~E; LAWi~-NCE:, MAIIIAI::HUBEI"TII Olll4O At~ril I, 1965 Nicholal F. Nicetta, Highway Surveyor Tow~ Office Building North Andover, Ma$1echuaett$ Delr /Wt. Nicettl: I hive your letter to ma deled Msrch 22, 1965, together with its enclolUraa (returned to you her~lllth)~ which are: I1 An origlnel application (in quadruplicate} to the Advisory l~oerd~ seeking a tranafer from the ,,Reserve Fund" in'the imount of $4B0.42 for the purpose of paying accrued ,,vlcation pay" to your predecessor in office/ v~o retired from public service as at the date of the 196§ Annual Town Election~ et which he was not a candidate for re-election. Dated Larch I, [965, this application wll filed with the Board by Mr. carry on the lest day of his tenure. 2) A letter to your department from the Advisory Board deled /~arch 17, 1965, advising you that, until further advised I$ to "the legality of such a transfer," it would not act favorably upon the application, You requeat my comments es to this problem, pres~aDly, the Ad-- vilory Board would also welco~ne them - Debar'wile, ( should have to decline to give you eoy advice having to do with the powers and duties of another Tow~ agency, tn the subject circumstances, however, ; em happy to advise you (and lhe Advisory Ioard, to the Chairman of w~ich a copy of this letter goeS1. I do not reach the que$tlon of ~r, Cert'!'s riehl to any ,,vacation ARNOLD H. SALISBURY, TOWN COUNSEL TOWN OF' NORTH ANDOVER. MASSACHUSE']i5 April I, 1965 Nicholas Fo Nicette, Highway Surveyor TMvn Office Building North Andover, ~a$1achuaett$ Daar~Wr-. N/certs: I have your letter to me dated March 22, 1965, together with enclosures (returned to you herewith), v~ich are: I) An original application (in quadruplicate} to the Advisory Board, seeking · transfer from the "Reserve Fund" in'the ~'nount of $~0,42 for the purpose of paying accrued "vecet;on pay" to your predecessor ;n office, ~o retired fr~ public service ee et the date of the 1~65 Annual T~ Election, et ~;ch he wes not · candidate for r~election. Dated ~rch I, 1~65, this application wee filed with the Board by ~r. Catty on the le~t ~ey of hi~ tenure. 2) A letter to your depart~nt fr~ the Advisory Board dated ~rch 17, Ig65, adv~sin~ you that, until further advised el to "the legality of ~uch · transfer," Ft ~uld not act favorably upon the appl;cat;on. You request my c~nte ee to thee probit. Pre~ably, the A~ vi~ory 8oerd ~uld el~o welc~e th~ - othe~iee, I shoul~ have to decline to g~ve you soy advice hav~n~ to do w~th the p~erS amd duties of another To~ 8~ency. ~n the eub.~ect c~rcu~stences, h~ver, ~ a~ happy to advise you (and 1he Advisory loer~, to the Cha;r~en of ~ich a copy of thi~ letter ~ ~o no~ reach the question of ~r. Cert?'~ r~oht to any "vacation -2- pay", lince, even if aery euch right may exlat, It II my opini~ that fundl to S~h a tr~af; aroperly t,e mt' ')y the Aevilory Beard only for "extr~ er~in~y or u~fo~ :~een e~pe~d~tu~'~,;' 6.L, c. ~, ~ 6: the obviou~ policy of the Im il that only I T~ ~ting ~all eeflne ~d eete~lne other pendituree of public funde. The proposed pe~t to ~, Catty wee clearly not "unfe ~" at the time of the 196~ Annual T~ ~eting, ~ich wee ~ t~lve elyl after the ~ete of the eub{~,'~ ~plicetion: nor, Jf h~l right to luch "v~eti~ pay" exists, ~uld t~ . nt be "extr~rdinary." Accordingly, I aeviee you that, in ~ ~inion, the Advi~ry h~ ncte8 properly in refu=ing to authorize the requeeted trenefer. AH$:ad Copy to T. Petere, Chairmen North Anclover Aelvi~ry Board Very truly youra, Town Counael ' ~ ARNOLD ~4. IALIIIURY. TOWN COUNIEL ?CNqI~ c)r )~ITH ,Id~Dl:~v[ll. MAIIACHUIETTI TM Office Bmilding North Amlovm-, MMlmhui~ttl Re: 1~gtets of Ada Beqrme~ Elmax Probate No,~, Deer Mr. Wile: I he~a your letter to am defoe March I0, Ig65, relative to the MK)V®o You state that the decedent m e recipient of eeilltence, under ~.L.c. IleA, frail September 17, I~e, to tho Jato of her death, bar 5, I~1, In the total mmunt ef 12,889.52. You further request that I taka ~ch Ktlon in be~elf of the T~ aa amy be permissible ~der ~.L.c. 11aA, ~ 4 A, in order to recoYer eeme part or ell af these ex~e~jlturee~ m~ file ateo includes a phot~y of the latter to ye~ fram the State ~epertment of I~blic Welfare, Jatee March II, 1~65~ approving the inltlatlo~ of ouch action, all aa provided by eaiJ ~ 4 A. ~ Inv#tlgatlee af thio matter Injicataa that Themes J. Lane, of Lmm-trice, fileJ hii official bond end w July appointee Executor of the Lest Will of Ael ~Men an d~uory 7, IW. Ae~raingly, the rl~i to lW reim~rlwt for e~m Inc~r~ for ~iiitence r~ree te ~ ~W ails c. 118 A ceM~ to exist ~ ~ ~thl prt~ to my first ~lGetl~ rrm yea ce~niag thll ~tt~. ~ 6. L. ~. 118 A, ~ 4 A, me Itl referees te 6. L. c. I~."'~1~ e~ef t~ litt~'~Wl~ proYidel ~lete bar, et this ti~, against the Ktl~ ~Jch your lett~ ~kl ~ to unites. Accordingly, I luggest that you place thil matter in your "cloled flies", end that, in order to c~,ly with the request of the State Department (mede in its March II latter} that you ~iae it "Set action you are taking in thio matter," you for~arJ to it the enclosed photocopy of this letter. V,ry tr. To~ Counee I ~ ARNOLD H. SALISBURy, TOWN r-OUNSEL TOWN OF' NORTH ANDOVER, MASSACHUSETTS ~erch 25, 1965 Chsrlel H. Foster, Jr., Building Inlpector T~ Office Building North Andovar, MlllachUlattl 01845 DeSr Charlie: I ~ lorry not tO hlVI an~red, before no~, the two thorny queltions which you put to me by your letter Of January 5, 1965. principal excuse il that the intervening period hms been, em fha period before [end afterl Tomm ~eeting always is, m busy one ~or me: another ~s that you did not breathe d~ my neck about theme problem for ~ch, fhankl. Your first question i~ ~efher you may properly pe~if on~ f~lly structures erected m~nce January I~ lP~O, to De converted use am mult~-f~ly ~ll[ngm: you re,er mm to Section 4.11 of the Zoning By-L~. I an~er your question ~n the negmtive, For reamons not presently apparent to ~, Im~d ~ 4,11 authorizes such conversions only oF structures built prior to that date. Buildings s~nce then constructed may not be So converted mm m matter of r;ght, although, proper cour~m~ fha BomrQ of Appeals might, i~/c~rc~mfences, change th~s suit in s~e specific case. G.L.c. 40A, ~ 15. This question of yours is troubles~e to me only because I cannot ~ive you any reason ~or the inclusion o~ fh~s arbitrary cut-off date ~n the By, L~ (with the draftinS o~ ~ich, ~nciQentally, end thankfully, I had -2- ~ethlng ~hete~er to eel. ¥ogr ~ee~tl ~meti~n h~ to ~ w~th the "ll~yl centro~li.l S~tl~ 6.~1" ef the Z~ing ly-Ll, ~lck provl~l thet the minim~ Iot- ~ ~d etreet-fr~te~ r~ulrmte i~ by the By-L~.~ p~cel8 of I~ l~oted In the ~vFII g,i~co Dlltrictt of tho T~ not ~,ly" to I~lotod ~r-liz~ lore, provi~d thee certoln 8tuted y~e r~uir~te ere ~t. ~ile, ~por~tly, ~ c~cernJng thte I~tlon exists, ~e ~eule~ it ~rely mens ~et It Year pr~l~ que~ti~ Il: '~ the Bullelng ln~ector ~r ~ti~ 6.61 h~e the rt~t to i~ builelng pe~lt~ ~ Iotl, regerel~ ~ their lize ........ t" I ~ It in the effl~etive le~ing, of court, thet, ~e your letter putl it, "they ~t the reetrictione ~ellee out In 5~tion 6,61 .... "). ~e thi~ ie true regerdle~e of the type of Dietrlct, be it "Vii le~," "Country" or "gur~l": the exc~tion providee for by ~eid ~ 6,61 extenee, e~lic~tly, to "eny Section 6.~1 of the By-Lin, ~flnlng the minlm~ Iot-eree end etr~t-fr~tege r~uir~t~ in "Vi lll~" Reliance Districts, ehould not be re~d te limit the i~ect of ~ 6.6l: quite the reveree il true. Sele ~ 6,~1 reletel ~ly te "Ville~" Reel~nce Diltricte (unlike ~ 6.61, ~ich ~pllee to ell euch Dletrict~), end provides that its r~uir~nts mey be ~ivee by the Boer~ of Appeell "e~ further ~pecified in S~tion 6,6". Thle provision, prier un~r G,L. c. ~A, ~ ~, obviously refers to ~ 6.62 of the By-Lin, ~ich i~ the only pert of "Section 6.6" eutherizlng thee Boer~ to grent · "~eci~l pe~it" (~n the circ~t~nces ~teted thereby, end then only in "Vi liege" D~str~cts). You need not ~rry ~bout ~t in your ~tion~ under seid ~ Nor need you concern yourself, within the eree of your present queerish tc~ me, with G.L. ¢, 40A, S 5 A, ~ich {over-riding the Zoning By-.Lml p®~nltl the c~mer of m i~lltee "un.r-sized" lot to ule it f~ ~l~tiel p~poeel lub~ect to the c~dlti~e Sete ~ 5 A is ~re reetr~etf~e then ~ 6.61 the T~ By-L~, in thet ~t p~cels heving en eree of ~ ~u~e f~t; sei~ ~ 6.61 c~tein~ no ~uch I iml teti~. The preset policies of your ~t~nt, ~ to the metters c~c~ning ~ich you here inquirte, ~ould, in my ~ini~, be c~tinued. Very truly yours, AH&: me Copy to: Deniel T. O'Leery, Cheirme~ North Anclover Boerd of Appeels tm a~y~, Orglnm, y r~llr~ ettPubtt( weye are uneer ~ ~,uslve emltr~l, witlN~t ~ review by he SeleetiMm. G.L. e, , t lineal4 eq~et II~t l~m m #l~e mt if yevr i!~teel In t#l~ ~ eg ~t ~lltreet~tt~et- ~~ blerllll ilt etMI tile ~ ef pellee me other ~ aervleel, leNie pt'o~eln erllMl, I iAli! ! lie gild to Y~u ~v~ ~ppIted B~ with · a~y O~ B c~ntr~Gt ~ III Idlllttr It Ii '1li111" Ill IIIIIIII tl ~ltltllll!e It ~mb.l~4t S1 ts. #11 II ..... ,ll~ttllll Il Iny ~ ...... · llll,t ~ fi.... ~ ef no Bud~ IBllgli.qlmt by y~dr ~li'd Is tG the Firr~ll II~'epal'ty. ~l~lllY, I e.lmlf ~ ~t q~mtle, t. tim mlg~lt~. tim ~mm-e$ ~ el tim ~ttl~ ~, ~ ~, ~ tm ~ ~ ~l~ete ~t, ~IIIt ti* #llI~ tII It ARNOLD H. IALIIIIUlty. TOWN DrlLINI[L TOWN OF' NOI~H ANOnVlrlll, MA, iiA~HUILrT-rli This duplicetion of Lot n~m~berl II not of my cl©ing; it o¢curl upon the plln eul~m;ttee to your Boerd. ARNOLD H, fJALI-qBuRy, TOWN COIJNS£L TOWN OF NDI~TN ANDOV£~, MAI~SACHUS£TTB Jorth ~r Advise~ ba.T,d 201 ~ Str~e.t Ilorth Am~ver, &a#mehudett4 ~ Tedz b ~ 19~5 Yarrut. Lr~tcl~ 1_ 1S65 w~t. ~,u,4,.?; 13 ~XXtia ~ot o~t4m that Z hal'~ omnt~ te make about fo,* +~. ..... --~--s?.,~ ~ Aree warGon rot oM ~ear. One SelectmAn ~. ~ ~ O~ &~_ ~ ..... ~ ~ ~O _ __ t----~ u. ~ ~ AU~O~t7 for fi. I enclose a photocopy of the above paragraph fer ye~u. re*unlesS, melon to tho pr~.f4r. - 2 - ire netatieus against AllEles I and 71 of the 1~6~ Warrant. See, aloe, mF :Letter tm ~ lbax~ dated lfobrmax? 27, 1~, as to said Ax~iale ?~. Acoord~ng3~y, it has boon m7 rms~ms4ht~'t~y, ~ktoh X new aoknodmdae, to match, before now, tho ~nd~oatod error in A~t~ele 1 of tho 1~5 braz~ant. But, as wul~ostmd above, all is not lost. If yeu~ Board ohaooos to approve t~ts ir~L~o, it may moro~y roeemmond · that tho Town vote to ADOPT tho ArYAols." Th~ So,sermon's rosponsib~l~ty in th~s &r~a ~, presmuhly, bo~n in 1968. tm/. ¢olxt. ss to: T'~ Zmm,~ C'~rk The Hodez.atoz. ARNOLD H. SALISBURY, TOWN COUNSEL TOWN OF NORTH ANDOVER. MASSACHUSETTS F·l~ru·ry 16, 1965 Theodore Peter·, Ch·ir men North kndover Advisory Board 201 Dale Street North AndoYer, ~ale·chu··tte Re: Dear Ted: 0184~ The 106§ Wart·at This goal forward to you, together with eight photocopies for your colleagues: it i· in partial ·nMNr fo your letter to me dated Febru·ry Art. i.cie 25: IhS. "$tabilizati~9 Fund" 6. L. Co 4~ 9.58, permit· the eetablil~'m~ent of a "St·biliz·tlon Fund", by an appropri·tion the amount of ~hich Ihall not exceed "ten per cent of th· amount railed in the preceding year by tax·rios..." Appropriation· from ouch a fund may be voted only ·t an annu·!...to~m meeting, by a two-thirds vote, end only for purposes for which municipal borrowings ere permitted by G.L. c,44, ~§ 7 and 8. The Tow~, ·t its 1964 Annual ~eetJng (under Article ?8 of the 1964 Warrant) established the current Stabilization Fund by ·n appropriation of $10,000; ae at this data, the amount of the Fund Itandl at $10,229.68 Ire- presented by deposits in the Arlington Trust Company and the Broadway Savings B·nk). St. 194~, c. ~, a war-time statute ·till in effect (although see St. 1946, c. I01, permitted the Town to establish a "Post-War Rehabilitation Fund", frcx~ which appropriation· might be made, by · ma.j~rity vote, and at any to~.. meeting, for purpose· for which certain borrowings afl permitted by ·aid c. 44, and for such other purposel Il may be approved by the State Emergency Finance Board ~4t~i~'li~hecl I~y St~ 1953. ¢~ 49~ ~1. By Itc ~ctlon under ~tlclt 25 of the l~rmt md ~r Article ]~ of the 1~5 l~r~t, the T~ ~r~tlte~ of S1~,~ to 8uch · F~d, fr~ ~i~ prier ~pr~rletl~ h~e ~ince been ~; the prat r~elnlng bll~ce of thlt F~d It~dl It ~,7~.~ (r~rmnted by ~ ~t in the An~r Sivlng~ Benk). The eubJect Article ¢elle f~ · I~ ~pr~rietlen in ~ ~nt to the exist- ing ,,St~illz,ti~ ~e" end f~ · troffer of the full ~unt gf the ~llitetion Fune" ~ · pert ef ~uch ~r~rieti~. ~i~ely, ~ucb · -tr~ef~" muet met mlth the ~provet ef the E~er~ncy Fenice ~e. I here c~eulted ~tth ~e ef thet ~e~ ~re fthe ~ That t~-~ ~.~:~rd's ~ollcy ~ ngt to ~ptove ~y Juch tr~Jfer in edvence of officiel T~ ~eting ~tl~, but 2J ~t, ~ince the Jug~te~ tr~jfer~ ~ ~d if eff~ted, ~uld reeult j ~e r~tricted uJe by the T~ of the ~7~.~ In quejti~ {J~ unde~linlngJ Jbove), the ch~ceJ of itJ dlJ~provjl of the tr~Jfer ~uld be minimel. ~ccoreingly, if your ~erd fevore the Article, I ~ug~lt thet you fecund "~ ~ t~ T~.?~ '~ te t~ r~is~ ~n:~ ~pproF-r~ete the s~. oF $~ to bm edded .o the StabiJizJt{un fund. T~e j~n of S4.7~.~ IbeJng the current belmnce of the T~'m Post.mr Rehebilitetion Funcl} mhell, mubject to the ~provel of the Stete E~rgency Finmnce ~r~. be trmnlferrmd end ~pl lee to seie appropriation." Copies to: The Tovm Treeeurer The llederetor ARNOLD H, SALISBURY, TI]WN COUNSEL TOWN OF NORTH ANDOVER. 1,4~,,SSACHUSEfTS February Theodore Peters, Chein~el~ North Amlover Advisory 201 Dele Street ~rth ~ver~ ~ellachullftl Re: The 196~ A.T.~. ~errant Deer Ted: Together with this letter Iplus eight cop lei for the other me~ers of your Board) goes a "Summary" of the 196~ Wlrrlnt Isl~o with eight copiee). This Sumnary: I. Lists the several Articles by their assigned numbers end briefly dslcrtbe$ each. 2. Gives you a reference to comparable Articles considered by the Town at its 1954 t~esting {$o that you may make Such uss of your 1964 date as you deem pertinent in I~). Notes those Articlsl which call for s "bond issue". 4. Includes present and "early" cc~nents as to most of the Articles, D. Indicates to your Board, by the designation "XX", those Articles concerning which, for various reesons~ I must make later corements. In the S~,v,ary~ Articles arbitrarily designated as "Simple" are those upon which your Board msy~ in its wisdom, make terse final recoetmendations to the /~eet~go (Of course, you may properly be es verbose as you like about your reasons). £xamp~es are: AD IF YOU DISAPPROV~ OF THE PROPOSAL.: "It is reco~m~ended that the To~m vote fo REJECT the Article." B, 1~ YOU APPROVE OF THE PROPOSAL, AND WANT TO RECOt/~END THAT THE. REgtJESTED FUNDS BE RAISED BY TAXATION: "it is recanmended that the Town vote to ADOPT the Article." C. IF YOU APPROVE OF THE PROPOSAL, BUl WANT TO REC(~'61END ANOTHER SOtJRCE OF FUNDS: (t) "it is reco~rmended that the Towtn vote to ADOPT the Article, the required amount to be transferred for its purposes from available fumle ia the Tm. treseury% er I~l "It la recemm~led that tbs TI vote to N)0F1' the Article, lbs required mmmt to be relemd by a Imrre~lag pmlltted I)y the Immrnimg prevlsieem of tho Geflersl Lime," (Such a prqK)aitlen will 1[~lOl~Iro ~ ~eftlnI of i p~ '~d ~ti~," tm H c~8i~ ~H by the itlml; thll ~ eNily ~ ~ pri~ to ~~/%/ I~). /ten: An Ar'ticle I.11¢meinl thut eerie q~eclflc lin le "ral#e mill elqH-eprlsted" clearly permits yea te reccxmmnd that the requested tamest be "trmmfer~ed fram evil labia funds." ] E Item: There' ere two'Kkoels ef theu~t idlest the propriety of a "lKmd iBaue' vote iqlNm a "rein m~d el~roqH'iste' Article. I recmmend that year Beard not reeamm~d a berrewlng for the .purposes of any Article unlem8 the Article ItesIf suggests such ectIee; the "Summery" refers ta all such ~ticlee.] D. IF YOU APPROVE OF ~ PROPOSAL, ~/T wMrr To. IIECQIII~ND A D IFFEHENT ABOUNT FOR IT~ PURPOSES: "It ia recmmmnOed that the sum of S . .. ~e ralesd md appropriates Ior transferred fram evai lubla funds~" the Gestural Lml for the purposes of this Article." [Item: Your Board celmot properly re~amn~d, nor can the ~tlng pr~erly ~tm,~,~m~o ~y ~tlcle rflmting · ~iflc sm of ~ey, that · ~enter 8m ~ neff ~el I~le for its p~e8; · Im~ ~t c~, ef ~r~, ~ primly r~~ Md ~ted. Nmver, M to ~ ~ttcle ceiling foK nsu~ 8~ ~ ~ ~ ~e~Y~ for · p~ticul~ pu~e, y~r ~d Md the ~tlng ~e ~th ~ their S~ m~ch foe' the "Simple Articles." ~z~ The others [lle~lgnated "XX~'] will ultimately Iperhops not ~ ~f~e ~r~ ~) rfluire f~th~ ~t by m for, But y~ ~d ~ould ~d ~y pr~erly ~ to Itl c~cl~l~s inf~ the T~ of itl r~ultlng r~~tl~, In its ~rt Inf~, ~et ~t to the printer mtl~ ~fore the calendar ~d of Febru~yl. Rememloer: your Board's recamaendatiefla upas t~e several Articles atltute your l~ortmnt currunt age~da; Iq~l~tlng f~q~ of mt~o~a muet lutir CaW4 frOl~ 12 ~7 A8 of this data, the "XX" Articles "for VlrlOUl rultOnl", ire: I ? 26 29 44 4~ 46 47 48 49 53 58 ~ 63 69 70 72 73 end 75-64 Inclusive. Final ly, please ¢o not forget to instruct Ithe printer, Curing hie pre- pirati~n of your report, to print letter-olze {8-1/2 X II) pagea of it for the; uae of the I~derator, the Tam Clerk, mylelf md, purhiK)a, for each of your :BOard's Very truly your~ CC: He~. Arthur A. Themmm, ~boeeretor / ~ 6 ~.electe~ Offi~er~ Selec~na ' Report ~ne.~pem~ed Apprep~, at~.e~, C~p~uaatie~ of ~ ~ A~ISORI BOARD NO ACTIO~ NECgSSAR! 'It is recmmaemded that the refer te t~e Solec~a ~ ap~n~nt of T~ ~cer~ not o~e~e ~ho~en. ' "It 1~ rec~nded that the Te~n veto te accept the ~pert.' 'It ia r~oc,m,~nd~l t~% the Tram vet~ t~ carry forward, te fi,eel 1965, the felle~inE A~LicleJ amd a pprepria tiem J: ~IST ] See yemr 196~ R~pert THIS IS UP TO YOU; y~u ~y reo411aend incre&ae~ oz' in toque.ted departmental or even add ,mM of your ewe, aa your c~,himed Ju~glent~ may See your 1964 Report S~mp~e Article Simple Article LATER Simple Article Simple Article Simple Article Simple Artiale ~3 Your 196~ recemmen,~ation wa, "1~ adopt the A~e, a~ ~ au~o~ze and ~ct %he Selec~en to ap~nt a C~t~e of ~ne ~rs ~ ex~ ~e app~a~en." ~2 amendment: swimming (other) ame_~ nt: m~L~ing (ether) Gr. Lre. Guidance Center, $1696 Accep+~auce of GL 40-$20 water assesmaente I,,ev'~' of assessments, if Arti,~le 31 is adopted Martin Avenue water Simple Artiele Simple Article Simple A~tiele Simple Artiale Simple A~Ci cie LATER Simple Artiole S~mple Article Simple Artiele (but you may want t~ d. fer t~ the Planning Board reccm~.ndatio~; see your 1964 ~xa~ t or · e). LATER Simple Article Simple Article Simple Article We are now getting into the area of the .tradi~tiomal" water and sewer vetes: see the next page. ! ~ 26 Z8 28C 32 Z~ amendment: swifm~ing pool, (other) Z~ amendment: p~ols (~er) Gr. L~. O~ce Cen~r, Aeeep~nce of GL ~r ~mses~en~ ~y of a~ses~n~, if ~e ~i is adop~ ~r~n Aven~ wa~r - $I~ 3~A 31uple AFtt ele Simple Artiele Simple A~iele Simile &rtiole Simple AF~iele LA?~R Siu~le Article Simple Article Sim~le Artiole (but you may Want t~ 6of er t~ tho P~g ~ ~c~~; see yo~ 1~ ~ ~ ~cl~ 53, ~o, *~*). LA~B Simple Article Simple Article Simple Article We are no~ getting int~ the area of tho .tr~di~t~tonAl" water ~nd s®wmr vot~s: see the next page o ~; ameun% t~ bm tj~oFtod. [m,~ xssm3 Oqood Stm~t sm~r ,,f S~ttm Sta~et ~ (&e~el~aaee and S~,,ple Article Street ~er~ 37 st=va, ~.t~ o.~ $impl* ~ ~: ~A T~ansfer of $101~ for abeee 59 H/S: ~e,urfaeing ,,treet~, 2O Simple 60 H/I: ~atch be~i~ Siaple Artiele ~ ~/S,~ $ide~k repair 2~ Simple Ar~le 2i~Dle Artie!e H/S: Culvert repair, Dale 25 Street ama Marbleridge l~d., $18OO E/S: Catch baein~, Sutten Street, $2000 Bimple Article site Simple Article . Simple Article 69 In 196~, the Town voted: "to adopt the Article, t~ r~ile amd appropriate t~e s~ ~ $~ for its ~$e~, a~ to aurorae a~ ~ct ~e Selee~n ~ ~ ~e ~X ($7o0) Those ar~ amendments to the 196~ .~e~onnel ~Id~. from m~, but enly as to for~s of votes to impl~aent your recm~e~iations. 8~ 87 89 90 Transfer to ~eserve F~nd Reduction of Tax Rate These are prepeeed ~n~aenta te the To~n's Zonl~ By-law, in each instance asking for a change of zoning frc~ Residence to Business u~es. Traditionally, yom' Boar~ defers to the Planning ~oard~s recommendations ut~n s~h Articles; this ia not to say that you may or should not speak your own minds. 65 79 See your 196~ action W t1~ tm Im tooo Jl~Jt & Jyllell~ pM)I ~ bill JNIMMd~ ] mm Jim # mm fm gillla~ tile t~ Imammmly kte lmik~ m i~ mlmfld ~mmlm tim lJfl~ d #1t mm Ilqif, ing Mmmd~: ~IM~ flint m mJlmlm~l IWml Im tm Imm t~ Tail ti ~ J!~ ~l ~l. mil: It ~ m Iit mlJiWi ~ t~ mm mm ~mm t~, mm ~m mm~ ~t~y~ It le dlfflil~l! ~ mit te Imiqllllie I~ pair9 nm,gm ARNOLD H. IIALIIIBURY. TOWN CDUNE[L TOWN OF' NOI~TH ANOOVrR, MAIIIIAC:HUSETT'S~ October ~harlee H. Foster, Jr,, Building Inspector ToKe Office Building North AfldoYer, M~leChulettl Deer Jlir, Foster: I hive your letter tome deted September 28, 1964, requeetingaty opinion upon the foll(~ing q~eltions: I) Is I m~ieming pool m "ltructure" within the meaning of the Town's Zoning By-Law (eipeclelly ~ 7.2 thereef)? 21 Doei the Town'l Building By-Law require e permit from you For the conltructlon of · swimming pool? I. Section I of the Zoning By-Lee explicitly leases that its t~tlon is "for the purposes net forth" in G,L, cc. 4,0A end 143, Chapter 40A is, of course, "The Zoning Enabling Act,", GoL. Co 40A, ~ I, without which no m~lnici- pal zoning regulations can ever be promulgated, Chapter 143 ii concerned with the "inspection end Regulation of, ina Licenlel for, Buildings, Elevators end Cinometogrephe.,, In vi aw of the By~Law'l specific reference to them, the Iog- /cel~lterting point for the onm~er to your first question ia at o~e or the other of these Chapters of the General Lew~, Chapter 40A contains no "definition lection,' end is, consequently, of no present help. But ~ I of said c. 14~ Ipecificelly defines the word "structure,': "e cembination of meter/ell maimS)led et · fixed location to give support or shelter, such ee · building, framework, retaining will, tent, reviewing stand, platform, bin, fence, sign, flagpole, malt for radio antenna or the like ...... ', in my opinion, this statute evinces no legislative intent to include eeirming podia - which require, rather than give, support end shelter - within its definition, and if I mere to go no farther, my answer to your first question would be in the negative. Howtver, the By-Law itself offers further confirmation of my answer to your question. Section 7.1 makes it clear that the front, side end rear yard requirements of §§ 7.2 ff were adopted solely for the purpose of provid- 2. ~ e~ewer to your second que. tion is consistent with the ~oregoing. Y~r e~thority to Seethe buileing permit, sterne only fram the Ta~'g Bullelng Lam, ~tc~, in turn, cee et"ed only ~ the pr.visine of G.L. c~ 14], ~: " ..... IA t~, ~y by-lin] ..... ~y regulate the in~ti~, .... ~,l~etl~ an4 uae, me ~y r~ulre pe~it. ~ I Jc~ee therefor, of buildin~ ~ et~ etr~t~ ~;thin tt~ limits ........... "IE~h~ie e~pliee). I~t~ ~ve; 8 ~i~ing p~l ~ld ~ ~t to be · "strucf~e" ~ ~flne¢ ~y ~ I e~ ~ele c. ~4~. ~r~ver, the Buileing By-L~ it, ll restrict, y~r pe~lt-~mtJ,g pmrl to ~plic~ti~ f~ the erection ~ ~ltereti~ of in~" (~5~ 6)~ ~Jch te~ c~ h~dly be tho~t to inclu~ m~ ,.tar, ef ~e?~ ~i~e. The "primary intent" of ~nicipel building regulative i~ to "mute safety in construction," ~lli~, ~1, ~ee. I~. ci~. 192. ~ete~r e~re ~i~Jng p~l~ may pre,est ~ not usual ly eries fr~ the m~er ~f their c~etruction. Accordingly, I en~r your second qusltlon, el~o, In the n®g.tive. AH$:pml See, ~.].ao: 4ols~.,., ~-, ~ermet.% Co, ~ ~?e~n', F~t ~n~, Co,,, ARNOLD H. IIAi. IIIURY. TOWN COUNgIrL TOWN atr NOI~TH ANOaVCR. MAgBACHU~E'I-Tll September 17, 1964 Dimlel To O'Leary, Chi/man North ~devar Board of Tc~n Office Building North ~ndovar, II~$achusetts Rs: Felanga v~ Beard of ~ppeal~ of NOrth ~ndeyer end George H. Farrj Essex Super, lorC~#rt De~r Sir: I Initially wrote to you concerning the above matter an August 29, Ig64. Since that time, I have carefully reviem~l my file, and have the following comments to make: I) Aa I heys an several occasions advised you, In order far your Board properly to authorize a "variance" fram the terms of the Zaning By- Lee under G. L. c. 40 A, ~ 15 15), it mutt first find each of the three "jurisdictional facts" set out in that statute. Your decislan in the Farr cate gives, as your Board's 'ressans" for granting the requested variance, each of laid jurisdictional facts; it substantiully perephrues the stltu- tory provisions. But this is not enough. The requirements of said ~ 15 !nd of ~ 18 of slid Chapter, which demands that you "lief) forth clearly the rssso~ or reelons' for your decision upon any variance application, "cannot be latiafied by a 'mere repetition of the statutory wards.'" Sullivan y. Board of, Appeals, of B~lmont, 190 N. Eo (2d) 85, 85 11965). Accordtngly~ as it now stands, your decision is a complete nullity, and emit be so declared by the Superior Court. ~aunt v. Board of Ap~esls of /Mthuen, 527 ~sll. 580~ 582 11951). I hays heretofore ~o adviled your Beard in similar circ~tances. You must not only find the ~uriteJctlonel fecal to exist (under said ~ 15), ~ut emit al~o giYe your reae(~s for ar- living at your conclusions. 21 But, in my opinion, your board may still rectify itl error by filing with the Toem Clerk an emen~nent of its decision, setting forth its raaeons for finding the ~ 15 facts end authorizing the variance. Sss ~paulding v. Board of Appeals of Leicester, 354 Mill. 688 (19~6), ~here the respondent Board filed a "Statement of Facts" on August 17, 1954, sup- pleamnting a deficient decision rendered on January 7~ 1954; the Court*s opinion in this case explicitly holds the August supplementation to be the "only decision filed by the board" (554 ~ass. 6921, end thus implicitly pleeee its eteq of q~g-evtl ~ t#t 1~le)tlce ef emefldl#g virimce de- cleieee. 41t bee ieee defl#lflV~ly held thlt I Imird of q~eels his "i~- hereflt eeni#letrltive pealer fhut to filM4 IfS 4Klilefl,,....,..et leeet durlsI the ipipell perlldl#, Dilg~_v, ~ ~f AII4~I,I,,, of, Wq, lthlm, ]44 ~ 3) If you determine tO Immd lmur dlcill~, your s~plmt~y letter to the T~ Clerk ~ld MI icl~t y~ litter to him dited Aunt 14, I~, but ~ould ~tein, in l~ifl~ I ~tlll~ Itet~t of the 8ubet~ti~tlng fKtl f~nd by ~ ~d t0 Ixllf; ~ U the foll~inS, eli of ~i~ I s) Thet the subJect prlBitl4 tl'I ltl~&t~l in the Rurel ResidenCe Zone, es defined by the By-Lie, ahl¢l~ rHvlree I ttreet frontsge of I.~0 feet end · lot erie of 44,000 Squire feet ($ectlel~ t! Thlt the epplicMt Icquirell~ In SeptelllN~, 1963, i large trsct of led off the weeterly side of JohneellStreet; hiving · freetlge elong said ltreet totelling 1044,8 feetl If 'hie frontigesmf-e 10~S0 feet, he could properly hive subdivided thio ~l'ee info ~ confor~lng lots. c) Thee the IpplicMt Ii I b. llder ~ contrector, end, iftor hll Icquilition of Ilid erect, pro~eded to tubdlvlfl the 8~; he hll hH pr~ pored pl~e of lend, ~ing 6 lite c~f~lho ~th . to fronte~ ~d es to ~ee z~ing requir~t8, r~fllng n~t~ly ling J~n~ Strut fr~ theft ~utherly point of his pr~ty. The~ pies hive be~ recorded, bering Pl~ning Baird certificitl~ thee thit ~d'8 ~provel of th~ wBe not required un~ the 8ubdtVI81~ ~trol lB; three of th~ hive been sold ~d the ~p/Ic~t hie ei~ed~fr~tl to~ll t~; he ltJll ~l ~e, d) Thm pl~ne, lei# Ifld ~ofltrlctl hive left him with s plrcel of lind et the northerly end Of tho Whole tre~t v~l~ hie on oreo of 44,420 squire f~t ~d · J~n~ StrHt f~tt~ of 1~.8. It is this pr~ed lot f~ ~Jch he ~ek8 · viri~ce, ~loly because of the 5.2 f~t frontage ~fici~cy. el If the virilnce iD not granted, thil leveflth lot cermet be used for mny purpose under the Zoning by-lew~ end the Town, sew ell se the plicent, would suffer hercl~hip. fl There lm to bi no other pereel of lind in the Rural Residence District which so closely feill to CoflfOrlg to zOrll~g frontege rl<luiremente, gl Owing to itl ships, the luiJecf percel'e width, some 40 feet westerly fram the welterly line of JohnsOn Street, il in excess of I~0 feet; the parcel's area is well in excee~ of the requires 44,000 square feet. h) Were the requeetecI vlrllnce to be grnnted, lsd I conforming dwelling to be constructed upon the psrcel, al the tpplicent intends, no observe~le zoning nonconformity would eppelr to any passerby, nor to edJecent I~ncIc~ner. i) ~0ther reeeonewhich mey occur to you es hiving motiveted your Board.] h flre~lsf Ii .et late.141 te ~ ti, laimteime ef yem' ~ ~tetlly ~t te ~ tilt ~ fi~ My ef t~ fKtl ~tll~ ~tltlm to ~ ~ i. L. ~ A, S Il lSI, in ~lng ~ filing ~ ~181m t~. ~ ~ I ~ to e~ ~y qlnl~ ~ te t~ 4) If yeer' leerd defernlnee net te md Itl 4eclllee in thll mt- tm'~ I ¢mpeet that, under the "deetri"e of ~" I!)lel _y. I~m'¢l of A~l~eal9 ef Waltham,_. :S44 Ine~. lee. clt. SS~I, it will Ill II~lellfl by the S~im' Ceurt. Nemever, yev ee-a "et thereefter pcwm'lm to e~tm'tein i new petl- tine fee · vm'llnce e~ the .dJeet let. !_leetm~ll v. Illem'd' of .B. eralteile, ~4 Illl. 44& Pleeee let Be hem' frem yov, w. itheut ,dele~, N te ,hit yeer Boerd lie in till mette4-. I ~ yle lille Il II R llllllle Still tilt yml ~ NM ImNflil4 If -m iBll~ thai abe is #~Vlllll INIeB 41ttleelty with me · lmm ~1/~, I~l~lleg eae~a~ le lend meed by her. I eemmt lee tl~t the Tirol, er yevr Belin41, ~ 4w/lfll~lml I1- l~lll In thll Niter, AeeerdlmlllY, I muBt rfllNlttul ty 4N~tl till te eBIIler lhli quiltill Illxtld bit pl'llllt# by year ~ to her paplalil lelll IIMIItl, IdlI, I! I11111 Itll fill ~ em mlvtee her em tm her i'1t111~ lB file eul~Jeet e~remmenee~ em t.ltlll hub chllllrJfl*$ rt~lJ ill tl~J rear ef t#le that al t.~ qlptlfltltm IllJ l~J Jldi, qMm~oa. Am Tm Ommmel. ~ mn eblX~&ted et~y to f~vo op~dmm to S~M~H [m,~ O~nmttl ~.Lm; AFt~tl, lW. J 40]. and ut~l I ma ntLmf~od that yet a~o in mm or~eXal mod af n~ adv%~o. I d~ not ~ntond te not 2o g~vo k~atu~t~uf op~dmem u~en quomt~onm n~% a~tutl~y oon~retrt~nf ln~/s Hoard o~ Selectmen TOwn Office Building ~orth Andover, C-entlgmofl~ X have your letter to mS dated JuXY ?,i 1964t enclosed with which Zs a letter to your Board, dated JunO*'29, 1964, from John E. Hanson, Jr** appIying for your appointment of him as a wGame Warden.n ! return to you, herewith, his original latter to you. Since the au,'ndnent of G. L. e..21, $. ?tOe appea~ing in St. 1993, c. 329, s. 8, by St. 1937, c. 418, s. I (see s, 3 of said c. 418), ! do not think that local Boards"of Selectmen bare had much to do with the appointment of con- servation o£ficers. However, ! could be wrong~ and if ~.r. flanson willre~sr ~our Board to the statute under which he thinks you appoint btm as a '"~me Wardeus· mud i~ you will relay such an i~lemented appIication to us, I shall be glad to any questions you may have concerning it, .In the peri~, I do not intend to comb the ~ oF the Commonwealth ~o~ him - and I recommend that you put ~st':o~ yo~ problems ahead o~ this Very truly yours, Xl~nJn TI OIIt~I IllilIIlllt Ifil Mdmmr, IIIIiIIttl I ~ll 1t yti IItIlll~lt ti I i I IliliItl re~i4tl~ INt Il gill or n~w bldl fi' the II'~ ~11 ~ ~l all'. Ce,, Ifil I ~ tt~ III film ~lm It i INlIIItl Ii Iii eny ltli [gilt tI~ I I yIIIIr flrllt ~IItll I! ~ ltllItitltl. V IiIII~lII- Il ~ Ill mlr tl~ i~J~l #lff#11I ~ ~ rllht *il i, tJ~st IW ~ iii ItI-t i I~ ~ll Iltl~ Il Il ~tleIl~. Il ~i Il~~ rl~l Ill, ~li~tla~i~t it H~Itl Il ~ fatly ~ ~ ~~ te~ ill, ~mwtI Il~ ~lti~Illy ~i~ tb,t ~ -~lnI ~t~lt~" ~ ~ '~tr~l~H. it II t~ tN ~tt~ llt~t g Il il..~.~., i, ~tI It t~ ~lttl Iltl- ~tl~ i~tll'~g ~ A. ~1~I ~ I~ l~q IIlt~ II~g ~ !~ I~1~ t~ ~litl~ ti ~I~ .tll ~til~ N tl~ltI ~ t~lg~ I1 ti q ~l.tl t~t ~ ~ ~ I ~1~ !t~im ~t ~tle~ N W ~ mit 1~ #b ~ ll~ttM ~ ~1~ Iltl~l& Itt !tletttll wtlt~ ~1 ~11t!I a #tl l# iltltt_# tli ~ ltltttlll I~tttlIII ~ idlltlet If ~ Its 4m~t villi tie I Iltttll, lit' f/il IllliCl ttllt lttitll tt, IlttliiT TI~ ~ln~m ~t tim Pllmlq ~ hie I~BndH tt w~ ~ let~ te tli11~ gild iyfll 17, Ilti~, rllltti~i ti ~ lleN, ~ hll flqlllltld thnt I reply te it, 4wlth 'Fe4nm Ill U*~", p, 44 ef the "PllWllltg hive · Gc~yh I ¢I~ net kn~w tt~ 4lite el tbet filing, IHit~ Illll, ~ 14NIrd II~llld ealllil~lleete with the PI¥1MIItg!1111t~ It I~L~L_~j~' This it I~t te ~y, ef ~ II~t the I~ilimt*e feli!lrt ti ~Lly ~ with ~ I~llm wtthl& t~ ~i~ H ~ ~lfl fill ippll~llnttl ~ellpIl~ with Il#rd. t~ fl~l PI~i~ ~ ~t~ ~y ~ ~t~ ~ttl ~ ~f~" tim. ibmlld go to thlt Bl,l~d)~ t wltl .IH ul~ Wlth thin on I~ d#k, Iff mit/ A/,nold #. Itllllklry t ~ yeqt' letter te am #tal ~ 41, Ill4, h seen ts imluire d~fflmr the Tams may prepe'ty Immd list imf 4 ef ! te blntl ~ by erll~tl#ll i Bern ~14~1~ 41lt~let tfe~ "llfilt4NI~ el* ~llltrle- tl~e" Im~it~il~ ulNISI ~ittmut, ill t~ ~ tim, ~i~ ~tlm ~ ~ t~ ~ ~ ~tbl~ Klfle I~ ~i~ ~ld ~t~ AIPI~II N, T~m A~NC]LD H. ~ALISI~UR¥ ~arch 5~ 1964 Board of Selectmen Town Office Building North Andover, ~alsachusatt$ Genf I ~nen: I have before me the newspaper account of fha corr~ents made, at your meating of Fabruary 24, by tha Chief Enginear of the local Fire Engineers relative to "WHO WORDS ARTICLES FOR TO~I~I /V~ETING?". While ! am aura that you head no explanation of this general question, one should probably now be made, for the record. You are charged with the responsibrlity of calling Town ~eeting$, by Warrants "under your hands", properly served and posted as prescribed by the Town By-Laws. Every such Warrant wil! contain one or more "Arti- cles'', each of which will state a matter of business to be considered by the ~eeting. But an Article merely sets forth a proble~n, and the ~eeting cannot take any action upon it unless a motion is made at the ~eeting (and duly seconded) to act upon it in some way. Accordingly, an Article should be so worded as ,o give notice ,o any interested voter as to the precise problem involved, so that ha may be ready to present an implemen, ing motion. ideally, as to "spending" Articlea, the Article itself should state I) how much money is to be spent, 2} how it ia to be made available, 31 who iS to supervise its expenditure, and, of course, 4l for what it is to be expended. If an Article sets forth all of these elements, the Town Meeting can act upon ~t quickly and surely: it may vote merely fo "adopt" the Article or to "reject" it. [Of course, subject to the ~oderator's rul- ing as to its being "within the four corners of the Article", a voter may make a motion to modif/ the proposed action in some way: but this is the exception, and not the rule.) BUT THE ARTICLE ITSELF CANNOT BE Ah~ENDED BY I'ME h~EET~NG. G. L. c. 39, Gl©, raquires you to ~nsert in the warrant for an An- nual l own Meeting "all subjects the insert';on o~ which shall ~e requested ..... in writing Oy ten or more registered voters .... ", All other Articles in the wlrrlnt ira inlertsd at .your discretionz and their form is et your choJ CS, Since my original appointment es To~vfl Counsel, I have taken it upon ~yself, prior to the printing of the official warrant for any Town Meeting, to revi~ end, in s~ instances, to re-phrase, proposed Articles presented to you for insertion in the Warrant. In doing so, ! have tried strictly to foll o~ these rules: I) No Article eulxnitted by ten or mere registered voters will be changed in any way, except, perhaps, for the correction of grammatical er- tort. Th il is~ of courle~ blclull of the statutory requirement that you insert such Articles in the Warrant; the right of "free petit;on", must be recognized at the local as w~ll as It the State 2) Other requaItsd ArticleI, inIertad in the Warrant ~t 7our crstion, I have felt free to re-phreIe, without chengin~ their tenoc, to Itmplify end clirif¥ the isiueI for the To~ ~seting. Thus, if you hive been requested by the Tree WIrden to inIert an Article for the purchets of a power sew, w~ich will cost $500, lies Article ~2, 1964 Werrant) ~ have voluntarily added to the proposed Article the phrase ='to be expended under the direct!on of the Tree Warden". Such a change accurately states the tee, is not one of substance, and tends to expedite the business of the ~eeting. /N3rJ<)var, since such Articles ere generally submitted by ]o~n agencies, for each of which I am Counsel, i conceive it to be my duty to be sure that their sponsored Articles era in proper form~ an4 will duly warn the voters of the proposed action. To come to the subject problem: Articles 49 and 50 of the 1964 Warrant were originally submitted to your Board by the three Fire Engineers: only their signeturel Ippeer upon the proposed Articles, so that you were not required by law to insert these Articles in the warrant, and could prop- erly change their form and substance, When ,heSs Articles came to me for revise, prior ,o ,he printing of the Warrant in itl final for-m, i, occurred to me that the Engineers, as your appointees, would welcome your approval of their expenditure cf $41,0C~ of the taxpayers~ funds, and t tentatively inserted in the proposed Articles that their action thereunder should be "with the approval of the Selectmen". Few, if any, such ma]or expenditures are usually made without · warning to the Town, the citizens of which have had no voice in the selec- tion of its personnel, that their mOneyS, in such targa amountS, are to be expended by an appointed board. Thii is not to say, and i w Il be among the first tc deny, that there ia any reason to suppose that the present Board of Fire Eng;neers is not competent or is not dedicated tc the lown's interests. The Chief Engineer ;s right ;n his critic;sm of my arb;trary insertion of the "with the approval of the Selectmen" phrase, w;thout my first clearing that insertion with your Board end wiih his. I ~n~ended to do so, as my notes indicate~ Out apparently, in the rush which invariably attends the preparation of the Warrant, I neglected to do so. But h~ is clearly wrong if, because of this oversight on my part, he leriouely q~'e, tions the validity of the I g6~Warrent. Subject to the /&oeeretor's rulings and to the Advi.ory Board's recc~mendationa upon these Article.~ aa they now .tend, there is ~othing to prevent the Chief Engineer fr~m~m~ving~ ~t~en the Articlet reach the fleer of the Meeting, that his Beard ba given the sole control of the expenditure of .uch funds aa may then bl mede available for their purposes. Very fruly you~,.~- -~ ICopy to the Chief Engineer an~l to ~ the ~eVI Off iGC B~i td|f~I I ~ ¥~ qitiea la the etFfi~Iti~I. II Ilell. ii lief prel~lbtt~ I~o.o....lleie e.,teekl.o..- ap. A. e..~ifltet i~. cio,.. April ;50, IgC. In ll~ QIItI~i~II~ ~ty effected by l~u~ p~ll¢ mI~I in tM tm ¢~ecltlee I~gle~te4 by yos~l' letter. TIll #evember 4, ~g~. T4RVIIt OfflGe Ibl |tllll~a I hlme yeg~ letter te me deted O~t~er ~, I~, r~tlng ~ ~ini~ ~ t~ qmtl~ ef the le~l ~lety ef ~t~llKl~ t I ~f~ ~ te~ iettee te y~ ~t~ ~ly ~, t~, ~lnl · Dle~ietl, ~ t~y ~ ~finee by the ~tb ~ ~ln~ ly-L~; m, I ~ee ~t r~t~te my eff~ te ~f~ mltb ~ ~ te ~y Itltfl ~.), ~ntty ~t~t t~ ~J~t ~t~ ~ ~t r~t lett~ Al.held g. Ill WILLIAM A. FINN~'R&N. GNAIIIIJM~ FRED P, (~AKEI. (;i.iIK RAYMOND BROADI41A, D NORTH ANDOVER, MAI~A~ BOARD OF SELECTMEN ~ MU tees tolX~ ~mVzvv~....'. ~.00 ]~oar~ ~ Seleo~mea Illrd ,f tlulltl letflre T--elli Offlel lilt idllg lalf I, ella ~ k d~ I IllOl If 41~ TN l~lll t.l~ig*lllg Tell Ag~#llel I~ V~y t~y i, em~, ~d#, ~lisbu~y, Tm Oifi# bli tdi~l Yev t~tete that ~ leq~r Imlrl~ll me the eul~Jest i~ptlfaltllm, lint that elK, "lme41all relellt ~ tim I~.tltlllm' el ,fll,ll Illqllne~l It III'IT lamer'l, Iit,, trim ~ ~ iit Itltlttt." ~t As le tim effellt t,i., I, ICl, ~ tt, dill ! Illvlll IIit yll Iltitlti "t1111i Iii lldl wit#lB linty 41ye i~.tttt' ~ Ill tt Iltiltt, t ~ ~ tll tlllll tilt iii the ~mil~ ef JurllNttlt 14~ ~, t~IVllg tl~ flllt l~tutlefl of tl~ IppIllllf~l lf~tam tl him II4N~o This I8 m ti I~t~, ]~ t8, ya~r Bl41'd*n duty m Ii ~ itt 41411tlli it 'within I retail tim," The m~ Itetutl I~Id~ thlt of the beard ~htlt I~ ml41e within ninety 41yt liter' the 411ti ef fl~ flll~ll of 4m q~H~ll, 41~ll4etten er 114tltlim." ~ hm mt y~t hem Ily Jvllilil Inttf]~tltll~ ~f tlllt Im ~4Hlilt'amt. IMt~vit#tlntll#g Itl m if 1~ Iq~retlve "tldll', It It W illlllt tlltt the legillitv~ did mt lltemt Ii md tl~ Jm, l~lll~tlm ~t & lei11 Bem~ if ~ellt ln~er my pm~ttll I~tttlm at the mqtll'litl4~ if ninety d~8 fm ltl filing, 41td thlt the Itlltllteell prlvtlll~l Ire "il~t~" ~t~ ~ ~t~." pr~ly tm ~tl~ ~ My ratty p~ing ~t~e ~ wit~t ~ te ~ ~te el itl flti~i, ~ll IIMt ti ~, el ~, t~ ~ ~ldMt, If within t~ t~th ~1~ ~i~ t~ ~et ~t h~ ~ t~l~t~ ~ ~ Tam IIIIllel AIINOLO H. IALImmUlIY. TOWN TI3~I~N OF NI31ITH ANDOVrt~, klAIIACHUI[¥~! August Board of Selectmen Toum Offlcs Building t~rth Andever, ~llllChullttl ~ent leewn: I have your letter to me dated August 15, 1963, requesting my "counsel sad recea~e~dstle~- relative to two recent comp llJntl made to your Basra by residents of the Tewm who fesr that actions presentJy ~eing taken by their neighbors may result In the flooding of their lands. You Inquire, especially, in the msttsr of the camplaint of Mrs. Warren G. Ogden, Jr., of Johnson Street, whether there may be any municipsl lisbility for the anticipated flooding. Overllmll~llfied, perhaps, your questions es to any luch complaint sro these: hss the Town clone anything, or has it failed to do anything which the laws of the Commonwealth require It to do, which might result in damsge to the complainant? If the answers to both these questions ere, ss they see~ to be in the current instances, in the negative, your Board he~ no obligation to take say action upon the complaint; indeed, it lacks the po~ver to take say such action. ~unicipal paternalism does not, as yet, extend to underwriting the cost of the prosecution or defense of con- troversies between individual citizens of the Town. I refer you to my letter to your Board dated May 8, 1~62, in which, in answer to a somewhat similar request fram your Board, I stated that "1 see no municipal question and therefore must decline to answer your inquiry. I am not upon notice that public travel over...(any public way)...is in any way adversely effected by the situation which you descriDe, and can see no other cause for mly official concern by your Board as to this matter. The owner of the premises upon which the wafer is being discharged, if he objects to the same, should consult private counsel for advice as to how to deal with his private problem..' rs Copy to: With particular reference to your current inquiry concerning Mrs. Ogden*a suggestion that aha might institute so~e legal proceedings against the Town in connection with her problem, I advise you that i have, within the last few days, conferred with her counsel, Charles G. Hatch, Esquire, who has stated to me that he agrees that, at this moment, there is nothing which the Town can or should do eDout it. A copy of th;s letter goes to him, for his information. Charles G. Hatch, Esquire August 15, 1963 A~mold H. Salisbury, Esquire. North Andover Town Counsel. Essex'Street Lawrence~ Masse Dear Arr~old: At your earliest convenience, would You kindly clarify for me the status of WOOD LANE IN NOi~TH ANDOVEH. The records of this office show that Wood Lane is part public and part private way and of late I have been questior~ed occasionaly on it. AppreCiating very much your cooperation and counsel at all times along with respect and great admiration on your decisions, I am, Sine ere'ly, JOHN J. LYONS. AI~NOLO H. IIALIIIUI~Y, TOWN COUNIIIrL TOWN SIr NOI~TH ANDOVIrI{, MAIIACHL{Ik"TTI Bo8 O. L e. O#A . "Oeudutt of PeblAe Of?toinb and 1 ' ~%~i t ~r .... .Aa I am. ,u~.e.~u ,ami kB.g, ~he f~tll imps,% ef IM previolei eed~e% · .eu~Ay Je prepmiel with Bush aeeu~a~y8 Tear OeuMel and Oltv Saliaib.~ · eu ~he Berlmhires b the Oape find themel?en in wide dioagrenm% ao te IM applAeeti~u in may eiremtaaoen. d- -- ,=. ,,,, w,,., ir y.,, 3,.,, l.~,~,~A j "~ ~ es no~ &Al pOrle~ pel'rer~l~q slrv~eel" fol' ~lle Teqfll will be aeuaidered &o 'general' mmieipal euploFeen [~he ad~eef~?e 'generals ri, where al~a. ~ in ih, *tat~to, ~t is a eouveulou% teFu to use ia deserlbll~ ih'ne eBpie~e# no% speoifieally elaesiflod u "opeeinl']. O. L. e. 26~A, j 1 (u). Zeur euly guide in mkiug ibis elassiflea%len is giver in the seettea of the s~a%ub ~ut el~ed, "Sub ela~elfleattea .~all ~e made by eapleyiag std,.mlar, b reeeenably relabd b b ,~abd ~ ..... o~ this ebapier" - and .eh~.~pb~.eontaino ne oxplioi% Ib%e~-'~--------'-'-'-'e~ Jif lntrpenen, leu si-e, aoeerdingl~,, AOr~ vl~ ne ota~u%or7 guide fer yeur do, iai'ns in this area. 0hapbr 2~A dee, dii~erentta~o between "general" and "ope, iai" wta~ and eeua~Z e~le~ees vith seuo speeLd'iei%y, (a) i porseu elooted to his o~l~lee is a 'g~e~lf ~pl~ee. (b) A ~m ,er~q rebut eo~Ma~im is a ",~inl' ~loyee, wh~er ~0 e~ee to elusive or apMin~ive. (e) A ~m ~~ b his e~ee ~ a "spiel" empl~ if ~ my pr~rly e~ge ~ o~ prl~b ~ineee ~rp~se d~ ~1 ~ er if he 'does no~ m~ o~a~l~ as ...., (fmh) ...** e~l~ for ~ a~re~te ~ ~re ~n ei~t h~d ho~s ..... (~r ~r) ." S~m 1 (m) ~ (o). "" le) Xe it paL4 (and, if os, bev generously) er uupeid! d) Hey ~Miw 4- t~e breadth and se·pa e~ *ho ef~teit~ l.eepem, iklllt7 er lb O~hor eemide~a~eed m7 es·ur b pea. (1) Ne person per,·ruing an7 servia· for *be bun aaa, vl~hon% _ha._.v!ng_~ ShOVer b our er~dnal eeurtd, sol4-1% er tee·p% · brihe, 8.L.e. ZOSA, $ Z, er · gift for past e~e~bial ae~Aem, O.O.e. 268A, S ~heee rules, d~e~abd by em sense and do·easy aa veil aa by ef ~e s%a%ate ~mere eaaee ~e ,li, t'Teron~e ke~eea 'geueral' ead "speelal' Perseemel. (2) A 'goneral' emp, loyee ~ ~et aeeel., ee~ati~e~ ,frsm person, Mr aa% tf h4l at~n% er t%~e---- · ...... .-- .--;, ~- relaiAon ~ any pariAoular mt~er .. r---; ..... , . 'ope·iai' employee ~eee rules only if ~he m%~er is ese llt in vhiah he ha, ,~Aolally per%ieipa%ed, vl~eh, wire, La a ~eer, ha been sa subJee% ef his efTlelal reepeemiblli~,' er (e) vhteh is 'pendiu~ 4u ~e mm~eipel ageu87 ~n vhieh he i8 ,ervin~' (Viii·el he serves no Bore ~ siX% · year &..~*h *mpleyee). O.L.e. {~2A. { {7. i 'lpeelal' employee m2 aid an7 person, for eempeufa~ieus °lB ~te per~ermnoe e~ warm under a oeBtrue% wt~h ....o b .**** head e~ his deper~en% er afeu~2 set, flee t~at ouoh aid ia 4u ~he ~n~ereet of ~&e Teen, and %hat eert~tfd.a%e Il filed =i~h ~he Torn Clerk. 0.L.e. 268A, ~ 18. (~) ]We dif~Aem exlfb bebreee ~he rights and obli~t%ieeM ef ~he ~ue el·asea e~ empleyeee FA~h teepee% ~o ~ba rest~ietioM pla·ed upeu ~he ae~Avi%iee ef 'foruor' euplo~eee by said S (4) Nar dee· an7 sash dis%ina%ion exist belwe·at af ~o ~he partieipe~ion o~ an euployee ts oueb ~u a mat~eF ~n whieh hie immalia~e family, his par~aer, · business organi~-'~ieu of whieh he ~a an ot~A~eer er employee, er his prMpee~Ave prl~u~e employer baa · ~inanotal in%sree%J euoh 4- forbiddee ~e every Town employee, unless he makes · iSull dieeleeure e~ bio prep·sea par%iaipa%lon in su~h a -,%~er ~o 't~o o~iotal reepeu~ible fol' --d l'-.t-., l..d,.....,,t,on e~ e~T1~XaA ~a~ ~he in%er·et is lnauhet~oe~lal and net likely ia%egrity e~ his serviaee. J.L.e. 2~A0 ~ ~9. 'mpeeial'. (k) All full-b ?evb meploFoee should ne~ be ehssi~ed u (e) Wei~ sk~ b SelNM. (d) Belier oh~2d ~ O~el, ileemLtilly, Z mud to 7w bt, u I stir%, 7ou elaqify all Town emploFoee as "speciAl" exeep% Porn e~ Order A1.~1 "mmtelpal espleyeee,' aJ defined by 8eetioa 1 e~ said Obap~e~, ezoe~%t I ) AKy ~eroem euployed and paid by ~he ToMu u a full-tim euploFee. 2) The 8eleetmm. ~) 'l'ke 'A'mm Oe~m~el. ARNOLD H. SALISBURY, TOWN TOWN OF NORTH ANDOVER, MAI;:ISACHUI:IETTB Town 0t~loe Building North Andover, 14aosaaJnme%td I~. St. 1962, o. ?79, S ~b. Xt ts the eon%reverses1%e~liet of every perfol~ perforuing any fore[es for ~-%e e~l~e~." lit ~r~ b go~m~ alee, oer~in f~ ~o brb~.o b ~e ~ fl~ ~emelvu ~vide d~~t u ~ tb *l~i~lJ ~ ~ do ~, all pe~ 'perfo~ng .e~e~" for ~e rease~bly relt~ed ~ ~e m~ted ~m ..... of ~ e~y~rs - c~pte~ eon~t~] no ex~lic~t a~tem~ ~ i~ ~. You are, left' wl~ no o~tuto~ ~ldo faf y~ d~lol~ ia ~ arm. Ohap~er 268A does dtffereu~Att4 between '&~norel" and and eo___u_u_u_u_u_u_u_u~ e~l~/eee with e~le (a) A persia elected to him off/se la · 'general" employee. (b) A person aery/ag vt~beut eempeuoa~Aal to · 'spools1' employ~.~ whe~.ber his o~lee is ele~%tv~ or appe~n%lv~. (o) A persou ~~o bls eS?See 4. a ',peetal' eBpIoyee t-~ - 2 - DU%, as ~adiea~M[ abeve, ne suoh elear-e~ dioiAsd~Aea be~eea are lef% t~ ~orR~hb yOV~r O~a r~lo8 ~er elaooifleatieu. ~eesible or~er~a your uae tn ouoh · fomula~teu are the ~llwinf* (1) He p~m perfo~ any oe~e ~er O.L.e. 2~A, J 2. er a ~fl ~or pot ~iolal ~e ~Xu, 4~bd ~ e~ s~e a~ d~ ere okvt~, I~ I s~ ~m rarely b illMtNte ~t il (2) A °~e~lS ~Z~ per, on, nor tot as hie agent er a%~erue2! 'fa relaqAea te a~ pariAoular mt~r in vhioh ~he ..... ~e~ is · par~ ....e'! · "lpeoial" emp~o~e~ if bmmd by · yeer ts ,uok ea~teyee), g.b.e. 2gSA, J 17. A elpeeJal' euployee u~y lid any pewees, ~er eeupeadttio~, fin the yer~emf~oe e~ werk under a eeei.-ue% head o~ ida departmoa* er agem~ eer~A~eo ~ba* ouoh aid is tu the ln~ere~% of the To~n, aaa iba% eeri~Piea~e ~ fixed =~th ~he ~euu S~l~eeted ~efa ef Older AI.~I '~mieilal 'ee~leTeee,' es eeflae~ b~ eeetAem 1 e~ eaid Ohapte~t exse~ts ~ ) ~ peseta emple~l aaa emil ~/t~e t~a u · }) l~e ~ Oe~meel. shall rml~ t~ t~ell fer~e e~l effee% ease~% u t% I~T ]~feef~r ~ ti~ to AI~I "mmiell~l e~l~yees," am maid Ohal~er, ~) ~e l~mOemsel. m~aX1 ~emi~ ia t~11 feree aM ef~ee% me~t a~ it ~ he.after fl~ ti~ ~ ~im be m~e~ ~y m, u ~at~. ei~amee ~ die~e. ANNOLD H. IALImlaUI~Y, TOWN COUNBEL TOWN OF' NORTH ANDavER, MAllACHUIIIETTN Beard of Appeall (Zoning! Tmm Office Building North Andover, IillsChulettl Gentlemen: August I, 1963 hive your letter to me dlted June 26, 1963, which Invltes my "receam~ndstlofls" concerning your tentative approval (by unanimous vote) of the q)pllcltlOfl of Gilbert Rea for a "special permit" to remove "elrth materiels" from the area shown by the plan scc~.,~anying his application la copy of which you also have sent to me), You must understand that you ere not entitled to - nor have ye~4 requested nor do I volunteer - my obiervatlons as a private citizen upon the merits of the subject application. My duties aa Tcwm Counsel will require me to defend, against whatever attack, your decision in this matter, and I shall do so, Jf the Gcca$ion arises. I shall also, of course, aum~e the responsibility of approving the form of the "performance bond" which your Board will, apparently, require of the applicant. The proposed "motion" which your Board presently proposes to adopt in thls matter should be "to grant the spec/at permit requested by the applicant, subject to the following conditions, restrictions, controls and safeguards:" It is not for me to suggest any further conditions for your Board to impose in a matter of this kind; I need comment only that your tentative restrictions seem not to be inconsistent with the dut;es with which the governing statutes invest you. Asom'dllllly, By IlVltsd "recemBef~detions-, ~4~lch follow, he~ to ~~, with y~ re~ilblll~lel la ~neeti~ with ~plice~lon8 ~ ~tlee of ~ ~d In thln erel, ~ In III others, nra limited ~d p~l~ by t~ stirs lelllllt~e lin the ~nerel Lml 8~ ~1[ ~tin~t ~tl~ of the T~ Z~lng By-Lm (herelnefter mtlmn referred to ~ "~L"); the ~verning stetut~ must be re~d sld~by-nl~ with the by-I~, Md ~t be t~ to overri~ the letter In the ev~t of ~y c~fllct bet~ th~. S. L. c. G, ~, lut~lzen the T~ to Include wlthln its by-I~ ~ili~8 thet your ~e~d ~y greif · "~eclal pe~it" to · to ~e m ~eclfic use of his IM~ by wiy of ~ "excepti~" to the provlel~8 ef the ~y-I~, md SI~ 12) of eeid Ch~ter e~e~ly ~rs you "to heir Md ~1~ ~pllcitlMe for ~e¢iel pe~its for exertions es p~ovlded in eecti~ four ..... - Settles 5.1 end 5.2 of the N~L, i~te~ by the T~ ~r ~ld ~, luthorJze your ~erd to IIl~ the r~vel of "eerth mlterlils" I~ ~y z~ing district ~y issuing such I ~eeiel pe~it, upon su~ ~dltl~e es you ~y eeo fit to i~m (slid ~ IIso ~rs you to ett~ to your pe~lt "~pr~riete con~Jtt~s ~ The procedurBI ~t~l to be foll~ in su~ a mltter ire ~ foll~: I. The ~pllclnt ~st file with you I ~itten ~pl~cetJon for the pe~it, ~1~ muBt include B "dJlg~" (or p/in), d~ to scnle, of subject pircel of I~d, ~h~ing: e) the ~erlhlp and boundertel thereof, ~) the n~e of III ~erl of adjoining parcela lea found in ~et recent tax list), c} the location of iii public and private weya nearest to the eu~ject parcel, and .0 d) the axlstlaO ~d proposed elevations, 14~ZBL ~5. I ~pIl~tlN (t~t~r, I~ ~ ~inl~ with · ~y of the lc~yin9 wltk tke PI~IRf ~d. N~L ~ ~.1. II1. Y~ ~d ~lt fh~ ~ld I p~llc ~el~lnf ~ the Firlt ~1~i~1 ~he ~flce required b~ G.L.c. ~, ~17. G.L.c. ~A, ~4. IV. Thlt noti~ ,It be publited In "e n~er of ~nerel clrculltl~" In ~rth ~ver, "~ce In each of t~ successive ~eke, the first p~llcetl~ to be not lam than feurte~ 4~yl before the day of the ~lng." C~le~ of thil Ntlce molt be mellel, po~tige prepild, n) t~e ~pllc~t, bi the ~erl of ell proart iai "~md by the board te iffected t~ereby, I~ they ~pelr ~ the mt recant local t~ list," end to c] the Planning Bo.rd. G.L.c. ~A, ~17. V. At the e~ertlzed public halting, ~ich muir, of courle, held purlu~t to the prevllions of the I~called "~en ~eetlng" Iw {G.L. c. ~9~ S 2D~2~), ~yone, '~ethir entitled to notice thereof or not ~pe~ In per~ or by agent or by ittorn~y." G.L.c. ~A) ~17. You must ~ to your decision upon the application within ninety diys, G.L.c. 40A, ~18, nn~ no decisi~ in favor of the ippl Scent c~n be made except by a 4/5 vote of your Bolrd, G.L.c. ~A, ~lg. VI. Your Board's decision muir be written, must contain a "detailed record of...(the Bo~rd'l}...proceedings, shying the vote of each m~ber up~. ·.(the). .questi~,. .lind must set)...forth clearl7 the reason ~r reasonl for its deci~i~l .... " G.L.c. 40A, ~18. It need not stets, lince your BolFd is not, up~ luch an application, called upon to exercise its statutory p~r to var~ the terms of the NAZBL, any of the findingl of feet ul~lch yes ~muld ott~erulee be r~ulred te [~ ~ letter to you ~ted ~ey ~6, I~, ~i~ ,~llins the difference be~en y~ y~i~ p~r ~d yNF lUthOrlty, ~r the by-I~, to grKt "8peclol ¥11. A ¢:m~y of your ~erel's urltten decision (~hich, If It fly, ri the elapllcmt, will lie; In effect, the "~eciel pe~lt" ~lch he e~8} mot "Imdlotely- be filed with the T~ Cle~, In ~e office It will th~c~ f~d be · public re~d. G.L.c. ~A,. SI8. Said SI8 "Mtl~" of your eclll~ . Mi led to "p~tles In interest...lJflcludlng). . .the Plmnlng ~erd, md to every per~ present at the he~ln'g ~o r~uests that netl~ be sent to him.. ,, I eu~et that you fo~rd te ell such "parties la interest- ~les of yeur ~clal~ end that you el~ ~il · ~y ther~f ta the Ieildlng In~ector, ~ ia required by ~5.2 of the ~ZBL. rill. Year Beard then must, In the event of yeur decision In his fe~r, Ie~,e to the ~plic~t · notice, "certified by the chai~en or clerk~ ~telning the n~ aaa eeere~ of the lend ~er, identifying the lend effectea, end stating thst e, , .special pe~;t he~ been grated f~th in the eeciei~ of the ~erd ~ file In the office of the clerk.. Thia notice ~t be duly re~r~e et the local Registry of Deed~ before your pe~lt c~ have ~y effect. G.L.c. ~A, ~18. ~See, al~o, my letter to you dated August 5, IX, Of ~uree, a person "aggrieved" Oy your decision may thereafter "~peel" it to the Superior Court. G.L.c. 40A, ~21. Very truly you~ ~ TI Gift# Bill ~/mi#vim, e.L, e. let, ~ hll far ~ y#rl luthe~lt# It Tell . vt,. Tm m ~tlete ~ el t~ ~t f~ t~ I~ ~1 Tm btlq ~ Its ~tlm ., .- ,-,.,.,,- -,,- - ~--,- ~,..t.,.,., Fa, the re#eel I~ll#t# #leer ! ~ld ~ little f~ t~ ~ .tim ef ~ Tm ~ ~lele II ef ~  t t~ ~ T~,a ~ ~ ~1~ ~ ~ tim ~t~l~.- ~ ~tlnl ~t~ te ltrt~ ell ~tl¢le the h!~ milt # ~ I. their efflelll tl~e ~11t T~t~ #~tl~ el a !~ I~, truly ~ld tl, #11~ T~ ~t kI~lM IIINIII IIi/i~ 1II4 11 eeIeP te fi I 1 tim ~ la I!IriIp ~ ~ taIIl~ Mfl. irlty MlIII4 I~ the FmIIt 41Mh Alii'II Ii, ilia, Iii, Jill. Chief IIi II II ®IIIM Ill tlJ),, h ~ NtltlM Iy Ifil1 Sit Il II i~ TM M. IIt IIm'I et Ilw MMI In Iii tl~ IItIIiII ill ~I Il M,I 'ti IIJI~lIl II I I~ II I MfltII~I lltltlII tl IItl I1 # ~ ~ I Mill** l~ll,, iIlIIII II, II~ ARNOLD H. mALIllU#Y. TOWN COUNIEL TOWN ~ NORTH ANC)C/V~I~ MAisnACHUIE'TTi JUly 12, I~) B~mrd of Selectm~l Tm Offl~ Building North Andov®r, Moos. ~ntlmmn: I hlVt your letter to me dated July I0, Ig~ request- lng my eevl4e e~ to the ameer of nmi to be included upon the list of Jurori to be ennuslly prepured by you. G. L. c. 2~4 S4 previdel thot such u list "shell Include not les1 than one Juror for every I00 iehabitent$ nor more then one for every 60 according to the lut census ..... " I em informed by the tmm clerk thst the most recent federol census lID(K)) outs the North Andover popu- lotion et IOgOe; accordingly, your jury list should consuls not leu then lOg end not more then 181 nme, I cell your attention to the other proviuion$ of eoid ~4 regulating the Information to be included in your listing, and Ills to the provisions of SI of sold chafer, which exempts certain person~, ~g ~ich ere ott~fyl et Im, ~ero of the Ancient end Hofloroble Artillery C~y ~d keepers of light houses, rrm jury duty, SHA:r$ ,lul¥ I, I~ Teem Offl4~ North ~, MllltlhllNtta I hive yellr letter ti le Iglted ~ 4, I~ relllttlw tt tit tiers; yev mia s Iv~gelled #t el "Rulel ~ lblvlltte~l relltlw to the Imltillitle. si glm pipll~ a ~ ~llllleet III II¥1 ldl#~ll~# the ~ of ~teh I~ net q~erm~t, end rmlUeSt my eam~ti ulNm them, Yeu m~te m Ii lem~it sial tee letter, #Icl 31nlvy tl, I~, to ~ ~ ~tly nl~ ~t~ statute: It ~tl thlt ti ~ ~ly with "~itth re~l~tl~" te ~ ~ by t~ ~ ef ~lth. TI~ Tm nlilht, by ~tI., rqutite ~# tmtllletlm, ii, L. e. 40, ~ Il 1t81~ but It hal l~et ~ #, M#r~lltl¥, I I~i# yes m ,el~; ti ~ tim mlmllte efe. L. e. t43, S 3~e, the Tm !:~e~' ~ ~l~m~'tl By-,la~ At'title lV~ Seeflel~ tt, 31111 yeu ~ Ieee. TI~ By-Il rtll~l~ him "tS el~ fie I~1t# ~ reg~lltleel ~tletet ky the teer4 erlgl#lty #tll~ll~eel aeler Seetlee I~i ef (3tapter ~ ef the ~1 Lmm," Ne eheglel I~ fo ttme~ reg~lltleml far the dell~ltla si #Il ~t le~. ~11 ~/~tlele g el the leftist fee the tlt~ /~VIvll Te~m/aeetli~ tim Tm emgeed the am by-tee I~y mlthe~lltag ye~ te eetelte the I~m~ter~l Ieee, TNI& ~t ~ elfeetlv~ e# 4l~e II, I~l~t, 14Nm It8 pelltlllI Ifeltfllltl itl r, ~e~mel ay the Atterlmy IlelNrlll ~1~ thet Cite. S, L, e. 44), l~~~.~~;~e; Pursumt te the ~l'tlele IV ef the Gmm~l By-liim et the Tm, lB meat remmt ly imll4~, the fellmlnf l~e Illelmetlen feee, te Im eelleete4 I~¥ the fire Inepe4lter fee the Imeflt of the Tm, ere hereby eetlillelm41: truly yeldrl, Al'llld Il. lllllld~ 'lX)WN OF NORTH ANDOVER, MASSACH ' TOWN COUNIEL Board of So~oetmm X kw ~ur lo~to~ er iWr ~, w adv~oe 8e~oeM la ~he ~o~a o~ l~erth Andover.f aa2 be either me or throe yoa~. O.L.e. 41, $I. Tholq~ere, it lin eleo~iag personf %o ~ha~ beat~l. Itiee lerUI Aiiovel j~liel~Jqy "ebeeee. the iembe:, of 1%~ board ~ p~blie velfa~e t~or one ]mil,,I 13id uiel eo~'loAal .billet4e &% i%e elee%Aelu, thAo ao~lon B~T be tmJreel ander ele~%leu ~d no~ earr7 hobos eg eea~da~ee i'er ~he bead e~ publte for before an emmal eleettea, te have t~, ,%lleeiag q~eatiea ~laeeA'ea the ef~A~l keller* e~l ~e ~ w~ to ~ve Xt~ ,elee~ ~t ~ l~ b~ ~ ~lie ~e~e ~11~ gall ~er ma et~lel~ e~ma, ! aa &.ee~ e~ tk~e letter ~th (Ac T~a Oletqr. · l~niel O'boary, ~halFuan lerth iud,yet Beard e~ Appeals Te~n Offfiee Bulldilg lei-th Alder. r, Masmaehule%td Dear sir, Yeu have feretrded to me, for eom, n%, the "Appeal fre~ Dee4tieu ef Buildimg In, poster' filed with your Board, Il dupltsat4, by Alfa, and Mary 8.a. pie~sa, 'Il &eeerdanee with the previsions o~ G. t. shaptor &O A 8eetioul 1~ and l&.' ~his "appeal" lmrperts to be token freu · .l.~%ter, dated April ~, 196~, t~fe~ the Building il~l~etor to Barry Arakeliam s~M,~g, Il elf,e%, the% be dee, no% believe the% the la%tar'· pre·au% ~e et' his preper%y a% ~2 Lilde~ Aye~o Lea~_titut~l. · violatlell et' the Teen'l Zoning By-Law. I% ~s roiled te ~e~ en 7 B, 196~,. sou- ~ da:Fw after ~at letter's da%e **, together vita · sever le%to~ from the 'appollanta~, a%terney, Tin, mt Os Ourele~ ~quira, re, usa%Lug tha~ yeur Beard 'se% the Be%tar dawn for hearing a% your oarlies% oemvee~terde,e Yo~- Board urn% 'hear and dooide appeals tsken ·s provided il seeMeu thirteen (of e. ~0 a)o~ 0.I,. s. ]10 A, S 1~. hid S 13 provide· that 'An appeal to the beard of appeal· .:... my be ~aMon ..... by any person aggrieved by &ny ~rder or doeis~eu of *he uupootor of buildings **. ** in viola%isa et any provisiea ef this ohap%er **.., or by-law adopted %hereunder.' se, Following any dee4ale~ of your Beard upon smh an appeal, the appellant my take a ~urther appeal te the Superior Oourt, under j21 of said e. ~0 A, for a determine%loll ef whether gush de, isled was in excess of your Board's authority. A typioal sase would invelye an appeal to you, under said ~1~, frae the Building Iwtpeetor's issuanee of a permi% ; following ~our appreval et his aetieu, the Oourt might, upen an appeal to it under ·aid ~2~ (and subJee% to · ese%rolling deeisie~ frew the Supreme Judieial Oeurt), either dismiss tho appellant'· bill of so,plaint or meats yeur de, isis. O~elabefale v. Board ef Appeal et Weeto~n, ~6 Mass. 21~ (1~7). e, Al at this d-to, there seem to be no deadline date for the t'iling of an appealsr u~der said. r~ 1~: I am uaa~are o~ any r~le of your Beard ·~ee i~yngi i · ed·enable time for ·~h · t'iling. See O.L. 0. aO A, ~ 16. [The rea.n% amendment off ·aid S 16 (St. ~6~, s. 20?) is not yet in ef~eot.] Th.i· wu., not alulyl 0o. Prior to the enacts, n% et' $%0 19r~, e° ~, the rights "appeal" et' ·ueh a pereo~ depended upon an autheriaing by-law provieie~. See G.i.e. 40A, ~ I~, aa appearing in St. 19~, s. ~6~, ~ 2. - 2 - b e~ vo~, ~o ~e ~ld~ lM~r ~ rode u order ~ om ~0 ~ ~, ~7 ~,,- ~, 2~ (~)~ ~ v. ~r e~ e~ prevbim ~ ~e ~hw) a~ ~er fo~l te~a ~ ~e r~m*..t' ~i a~e~s~ er r~ui~ u a~h~e~~~, b hv a~r~F b b~ M a~l mde~ said ~1~ wall r~eh ~ h~ '~ ~ ~ is o~ ~ ~ ~,. ~ (~9~), ' ' Aeeerdingl%, h a~ 3ud~Bon%, ~ho sub,se% "appeal" ia ~napprep~ia%e, and X re~aru t% ~e ~u herewith, Wi~h *he reeemmuda%leu ~ba% rou, in ~uru, re~ru 1% ~e Mr. 0M~ele, bgether vl~h a espy ef ~A~ls le%~er, whieh will serve as 7~ur teaser ~er re~min~ b entertain it. IA pho~oeey7 o~ %his le%~e,, ~er 'thai purpose, is emeleeed.] ~ao "appellee." mu~ ezhaus% ~heir leeal reaodi# befere applyin~ ~e ~he Superior for a uaudamm order againf% ~he D~ilding lnepeo~or. ~hur~h v. ~ )bls, ~, 268 {1961), Your refusal b aeeept "appeal', a] reseeded above, should ea~toi~ thio legal req~ireBon%. Very %r~ly To~u Oouaoe! See S~n~erland v. ~ulldins In~e~r of North Andover, ~28 ~a,s. 6~8 (~2)~ TOWN CLERK NORTH ANI3 OVER M ASS A C H US'-:'TT$ TOWN OF NORTH ANDOVER PUBLIC HEARING ( NAi,~E W. Phillips Foster & John F. Foster) having petitioned the Board of Selectmen for a license to keep additional and store / petroleum products (etc) in the amount of 1500 gallons (2000 gal. total) in underground tanks on the land of the petitioners at 96 Central Street, ~ the said Town of Andover, a public hearing on said petition will be held on Monday, October l~, 1957, at the Town Office Building, in accordance with the provisions of the Oeneral Laws relating thereto. By order of the BOARD OF SELECT~[E~'. Town Clerk Date of Issue. /I,/ ..... . TEIWN DF N~TH ANDOVE~II, MABIACHLJ~i'TTg David F. Roche, T~ A©ccuntent T~ Office Building North AndoYer, Massachusetts Deer Sir: I hive your letter,to me dated April 6, 196~, Inquiring whether or not yo~ may properly era~ a warrant upon the treasury for the payment, from the "Public La~ 874 Account," of certain bills approved end submitted to you by the School Department. Apparently your only reason for this inquiry ia that the subject bills are for goods sold to that department, for the High School athletic program, during fiscal 1~2. In the first piece, there ia nothing inherently sinister · bout "unpaid bills of previous years." The provisions of G.L.c. 44., ~ 64, requiring ta~n meeting authorization by more than a majority vote for the payment of certain such bills have to do only with claim~ "which may be unenforceable due to the insufficientX o~f a_~n ~pproprietion in the year in which SU~i ~111~ ~I~P~ I~U~ ..... , - i.e., bills incurred in violation of of seed Chapter, which forbids any municipal departme~t "financed by municipal revenue" to "incur a li·billty in excess of the appropriation mede for the use of such department ..... " It does not appear that the bills in question were originally incurred in violation of said ~ 21, the provisions of which do not reltrict a school co~mittee contracting for needed school supplies. Rin~ v. Woburn, ~11 Mall. 679, 694 (1942). They ere, therefore, valid and current claims against the To~, en~ may be paid if there are funds from which to them. See G.L.c. 44, ~ 14: "Nothing in this chapter ·hall exempt a ..... town ~ its liability to pay debts contracted for purposes for which it may lawfully expend money." The School C~ittee had express statutory authority to make the subject purchases. G.L.c. ~1. ~ 47. Secondly, the "Public La~ 874 Account" is mede up solely of moneys received from the federal government, and the governing Mallachusett$ st·tuts expreslly em~owers the school co~ittee to make disbursements therefrom ;'for current expenditures of .... (thel .... school system ..... "without any I~propr[efion thereof by the To~fl for euc~ purposes. St. 19~, c. 621. in my opinion, ea Iteted above, the sub~ect bills are "current" obligations, and may properly be paid from said account without any town meet ng ·ctlon. I should tell you, however, that this · not the opinion of the Director of Accounts, with whom I have discussed this problem, end to whoen I am sending e photocopy of this letter. AHS/s Ve~ tru I y~--'~ AI~NOLD H. IALIIIIII~Y. TOWN COLINgE:L TOWN {:Ilr NOI~I'I-I ANDiOV[:ii' MAIIACHUILrTll Arthur N. lacl(iMaoa, Blrecter of Acce~nta Deport~ent of Corporatiaea end Te~eti~ ~t~, i~leChultttl Deer Arthur: I encleee her,|th I photocopy of · self-explanatory letter ~lch I have today aent to the North Andover Town Accountant. You ay recall our telephone converaetion concerning the aubjoct-metter of that letter lame deya ago. A1 yOQ Cln lit, my aevic6 to the Accountant differl fram that which you inaiceted ahould be given, but, for once, ~ think you may he,tong. Mr. Roche may communicate directly with you on this queation, end if he dome may chcoae to follo~ your advice to him. Thio reault mill eot hurt my feelinga at all, because I recognize the fact that, es uauel, you may be right. AHS/e Apri I 24, Charles H. Foster, Jr., ~ul~lng In~pe~tor T~wn Office Building Deer Sir: Your letter to me detee April i5, Ig6~, states that, Ilnce tlklng your office, you hive requlrae the wet or ~flsteiler of els advertising sign ts procure, end to file with the T~ Clerk, I "Certificate of Inlur~ce" in- dicating that he holdl · ~llcy, in an e~quete ~unf, insuring him egeinit ~al injury or pr~ertv d~e~ claim reeulting fr~ hi8 erection end mlntenance of 8u~ ai~. [A photoc~y of ~uch s "Certificate', i~ ettiched.] You inquire ~ether y~ lhould require, instead of ~uch insurance ~verige, fhnf such nn ~pllc~t procure · "~d;" I i8~ that you refer to the type of bond required by the City of L~ence of ell applicants for nighs or other strucfure~ projecting over public ways. [A photocopy of the L~ronce fo~ of b~d is also ~ftached.] Your inquiry preeenta no real legal question, and I must decline to make any recommendation to you upon this matter of policy. HOwever, for your guidance in arriving et your eom decision, I make the following comments: I) The "Certificate of Insurance,, will indicate to you that the person re~poneible for the maintenance of the sign has taken steps to ineure himself against the claime of pardons injured by his negligence in such maintenanC Iwithin the stated policy limits). Such a policy, of couree, protects only the aign-e~mer. Any such Certificate ehould contain (as dome that · copy of which ia attached) · claude requiring the insurer to notify the Town of any cancellation of or change in the policy. 2) The "bond," on the other hand, would run directly to the Town, alluring it of indefmification againlt any claim which might be mede against it by agate injured and litigious person. It ia difficult to envislge I meritorious claim in this area. Hmvever, es to bleating operations, the General Court has Seen fit to make the procurement of Such I bond a prerequisite to the issuance of · municipal permit. G.L.c. 148, ~ 19. ~) Since the two types of insurance coverage ere not duplicative, there ia no reason why both may not be required in instances where chances of injury ere higher than usual - or, for that matter, in any instance. I cell your attention to the fact that the issuance of permits for signs "projecting into or placed on or over public weye" ia the responsibility of the Selectmen. G.L.c. 85, ~ 8. AHS/a 30HN J. LYONS TOWN CLEF~K Name L Location o~ operltiomworth Andover, {dais. l~ ~acekd or eh~d durl~ th~ p~riod* o~ ~ ~d h~r~in in such manr~r lu to d[~:~ ~ Czr~tficsm, wrt~en ~ ~ b~ ~iven to th~ Prtncil~l at w[~:~ mqtmst this C~rttfi~ate To, ~-'--~n of l[orth Amiover THAT ........................................................................................................ as Principal and ................................................................................................................................. aa Surety Holden and stand firmly bound unto the City of Lawrence in the sun~ of ........................................ ................................................................................... dollars, to the payment of which to the mid City of Lawrence, or its succesmrs or a~ign$, we hereby bind ourselves, our successors, ax~igns, heirs, executors, administrators. THE CONDITION of the obligauon is such that whereas an application has been made to the City Council of the said City of l~awrence, tor :t permit to erect a Street Sign or other structure projecting over a punic way by principal herein named--located at Now therefore, if the permit applied for is granted t. the said .............................. and he shall faithfully observe and keep all the specifications, a~eements, and provisions of this permit on. part according to the full extent and spirit of said permit and the ordinances ot the City of [.awiene, arid shall indemnify and save harmless the City of Lawrence to the extent ol the penalty above specified from all liabilities, loss and expense whatsoever which the Cily may incur and suffer out of i~uing of such permit or any extension of the same or from the erection, maintenance, or failure to maintain the Sign or other structure f.~ which this permit has heen granted, and shall make no default therein, then this obligation shall be void. otherwise it shall remain in full force and virtue. IN WITNESS WttERE()F' we hereunto set um hands ami seals this day of ..................................... A. D. 19 Signed and sealed in the presence of A~NOLD H. IAL~IIU~Y, TDWN ~OUNI[L TOWN ~? NO~TH AND~V[~, MAIIACHUIL"TTI ~Mle ! rowefniso Four proper lu%ereet 4u Four oliow~' eea~on~Aeua, aBd f~tpa~hlso vt~h ~ a4~o7 ~ bit bblf, I de ~t ap~ wig uh~ ~ ~7. I ~l~e her~i~ a ~e~e~ ~ Artielo 1 ~ ~e w~n~ for ~e Spial ~ ~ ~ ~e ~, 1~0 ~b~h eallo for ~e ~ e~ ~e 1~ ~ ~ ado~ e~ie~i7 a~ ~h~ oe~bf all ~ ~e aru ~e~d ~ ~e ~hie se-u- Aeeerdinf~y, I de ne~ agree ~hat I should now rMdvime ~he htld~q IMpeebr u 2~ur letter roeem~ado, lot, although I have al~ayu ou~oyed lepl discussions vt~h 2e~, de ! believe ~ba% ~b~ eea~e~enee bo~eea ua vhioh b las% ~ragraph e~ Feur lo%tot eqgee~o, ueuld be vet2 fruitful ia the above oea~e~%. erefere, perhapo 7ou ebeuld iume41a%ely iM%ltute, in behal~ o~ your eliem~d, "proper lefal ae%ion' uhieb ~ou mention ~n your lo%bt, so ~ha% leu~ TOWel O~ ~ A~OV~R WARRANT COMMOHWIJ YH OF M&SS&CHUSETTS To either o~ ~he Comtablm of the Town of North Ando~x~: G~TINC~: ]in the name of ~e Co~mon~-alth of Ma~achuaet~ you are hereby/directed to n~tify and w~rn the inhabitanta of No~th Andover, qualified ~o vote in Town Affaira, to meet in ~he Veteram Memorial Auditorium of the High School in ~aid North Andove~ on Saturday, the thirtieth day of June, 1956 at one-thirty o'clock P.M., then and there to act on the following business: ARTIC~I~ !. To ~ee ii the Town will vote t~ amend both the 194~ zoning bylaw worth and the 194~ zoning map aa hithez'to amended ~rom time to time, by mb~tituting in their place all or ~_ much of the May 1956 revhed zoning map and all or ao many o~ the May 1956 r~vim:! ~aing bylaw proviaiom stated below aa the Town may adopt or further amend and adopt, provided that if any portion of the May 1956 revival map and proviaiom ~hall not be adopted or not further amended and adopted, the mo~t nearly corresponding provhiom of the 1945 zoninl~ worth and zoning map aa previously amended ~hall continue in force in supplement to and not in conflict with ao much of the May 1956 reviaedprovisiona and map as may be adopted or further amended and adopted by the Town, and provided that me Town Meeting ~hall have liberty to adopt, amend and adopt, or reject any or all of the May 1956 reviaed zoning proviaiora and zoning map propo~'d below, including without limiting the generality of the foregoing the lot ~xe requirementa propm,x~ the zonimt district boundnrie5 proposed, the land use regulations proposed~and the number, kind and name~ of zoning districts propo~d. I Jeamar ), DBnlel P. Yalpey~ Ohal~ ?mm Oi~l'ts · Nor~ Au~over~ )leasaeh~ae%~ I have }.our liter to me ~ted Dooember 28, 196~, roqueetini m7 opiniea as ~o ~a legality of a proposition of our hrd of Health that 'orll polio vaosina" be made amileble to the people of the ?own at no salt to rheas vent~e. In l~ Judgment, s~=h · project vould be a legitimate mmioi~al 1) O.L.o. 111, ~ 101, epeaifioally pro,idem that local Boar4e ~f Health, "if in their opinion it is nas·meaty for pu)lio health or safety, shall require and e~'oree the nool~atl~ and revaooination of ell the in- habitanid ef their towns, and shall ~ thom with the maine of free vuoeinetion ...." (emphasis supplied). This fta-~"ute ~a· lest ~-pooif'tcally studied by the General Oourt sene sixty years ago (it has remained unohanged ein~e ~%. 1902, o. 190, $ 1 ), vhen "vaooination" and "small-pox' had synonymous l~tatis. However, in a~ opinion, up-dated to 196}~ ·aid i 181 presently eupower· the Town to Bake the/~~penditure. ' 2) 6.L.o. 111, j ~0, authorises a teen to "establish and maintat~ ..... health clinies .....' and further provi4ee that "all appropriations --de for the purposes of this ·ectioll shall be expended under the direotion of the loeel board of health ..... subJe~% to such rules and regulatio~ es said board may establish.' A· you must k~ou, municipalities may legally appropriate ami expend moneys only t'or p~rpoees speoifioally authorized by the legislature. O.L.c. ~, I ~ (19) give· the required authorization, "A to~n may ..... appropriate money ..... for the performance of the duties of the board of health and for the establishlent and maintenance of .... . olinics ..... ~ Pre·usably, our Board of Health intend· to dispense the "oral polio vaecine~ through ·omo kind of ~clinic." }) I spoke by telephone, yesterday, with the State Director of Accounts, who assured me that hie Division would not question the legiti~aey of such · use of Town funds. (This, ·sa praotical matter, supplies the principal basis for the foregoing opinion.). P To~ Counsel Board oF 8elestmu Tern Of~ee BuSldsag #arab Andover, Maeeaehuoe%b ' Oen%lemo·t % hmw ~our le%br to Be, dated bveube~ 16, 1~ %'~1~ 1 ) Muo% the holder e~ · "roar·ur·n%" er "elub" liewmo oudor O.L.e. 1~. I 12, ·lee yroouro a '8unde% entor~asamen~" lieenoo udet provSde enter·airmen% an "the ooumeu 2) b% eu~h n licensee ml·o hold m "em t~etualler'o' lieenee, under O.L.e. 140, S 2, iF i% propoaee to nell f~edotuf~ ~e ?he Sunday lieeuoe provisions eA' b new 'nome· Z~y oF Rest id~' do no% apply to hold·n e~ eon-promises' liquor l~eenooa 'sa ·e n· tho~ req~re · license For the use o~ radio end televieieu.' ! uaqualtf~Aedly ·nowe~ your oeeoud quo··Aaa Sa the af~Am~Avo. mm to "ree~auront~*, an~ It is m~ opinAeu tht· "clubm (es def,!ed by S I oF enid Oh·peer) eell~l~g Feodn~tf~o to nonhero and guesto et be epesifloml%y ltemed ~o de 0o by ~our So·rd whether o.~r no~ It mbo held! · lleense under O.L.o. ARNOLD H. BALIBBURY. TOWN COUNBEL TOWN OF' NORTH ANDrlYER. MAB!IA~-HUIBI~T'T~1 October 20, 1962 Board of Selectmen T(wm Office Building Nee'th AnsWerer, ~sssschusetts 6~ntlemen: I have your letter to me dated October I0, 1962, in which you request my advice es to the effect, upon the employment status of certain Town employees, of St. 1962, c. 745, § I; you inclose a copy of · letter to you from the Town Treasurer, dated October 5, 1962, advising you that his understanding is that "all persons over 70 years of age employed by the To~m~ whether they ere members of the retirement system or not must cease es~ployment as of October 25, 1962 [the effective date of said c.745), the only exceptions being elected officials and persons who waived their rights et the time the Town accepted the Retirement Act ..... in ..... 1943." This is probably the most difficult question you have put to me during our long association, principally because it lies on the fringes of the provisions of that Chapter of the General Laws (c. 52! which deals with "Retirement Systems and Penaions"-s piece of legislation which, largely because of the many amendments to it, but also because it has always been · prime example of legal gobbledeygook, is nearly es inco~-- prehensible to lawyers as it is to laymen. Yet, et the outset, the question does not sees~ complicated at ell, because the subject Statute {St. 1962, c. 745, ~ I) is quite brief: "Section nine of chapter six hundred and thirty-nine of the acts of nineteen hundred and fifty is hereby repealed." Let us use shorthand from now on: 1962-743--I repeals does this mean that certain persons now in the amp ovment of the Town. Doing over the ego of seventy, cannot continue in their present capacities? 1950-6~9 is the so-called "Civil Defense Act", Its ~ 9 (repealed Dy I c~62-745-1) contained · sub-paragraph (hi, which permitted towns (and ether governmental units), temporarily to re-emplo~~, "for the safet~ of the Commonwealth during the existence of an emergency resulting from disaster or from hostile action" (excerpt from ~itle of 19.50-6~9). former employees who had left the public Serv;ce, because of superannuation, with or without an~ retirement allowance. The 1962 repeal of Said § 9 means merely that North Andover, after October 2~, 1962, can no Ion§er ~ard of Select~n -2- October employ certain elderly parsees un,er the Civil Defense Ac_.~.t. O~r question, therefore, ie this: does eny other statute ~hich wlll be in force after October 2~, 1~62, prohibit the Town,s continued employment of per·one over seventy ye·re of age? tis en~eer, ae might be expected, ie yes (in ~eme circumstances) end nc> lin others). Thee· ere the governing rules, ae I see them: (I) A To~ employee ~ho il nc~ a ~nber "in service" of the County RetJreemnt System (hereinafter celled the"SyStem"] must retire when he attains the maximum age limit prescribed by said c. ~2. G.L.c. That limit, for "Group I" ~loyee. (~Jch include "Officials end general ~loyee. including clerical, a~inietrative end technical ~rkers, la~orer~, ~enics and ell others not othe~ise classified," G. L. c. ~2, ~ ~ [2] [g~}, is leventy yeer~; ell of the T~ per~nel ~o might be affected by the 1~2 legislation fell into "Group I" - but none, for various reasons, is a ~ber of the Syst~. Accordingly, in my ~inion, n~e of them should be Invelunterily retired bec·use of the provisions (2) A "Group I" T~ ~loyee ~o is not a ~ber o~ the because of his entry i~_to public ,SerVi~f~ttainin~ e~e aJxt~ ¢for- ~rly fifty-five) ia prohibited, by the provisions of G.L.c. ~2, 12) (f), fr~ r~aining a municipal e~loyee after attaining age seventy. It is my understanding that certain of the T~ e~loyees referre~ to by the Treasurer's letter to you fall into this category, and es to them ~st regretfully advise you that their public e~loy~nt should cease et ~tober 2~, 1962. (~) A seventy year old T~ ~loyee ~o i~ not e member of the Systm for s~ reason hevin~ ~ to do with his ~ et the time of hie original ~lo~me.nt is not, in my ~inion, presently required to be retired fr~ public service. I must advise you that this opinion differs fr~ that of the Secretary of the [Ssex Count~ Retire·et Board, tells me that his interpretation of seed G.L.c. ~2, ~ 5 (2) If} is that it require~ the involuntary retir~nt of all seventy year old "Group I" municipal servants, even though they be not m~bers of the S~st~, end ~atever may be the rea~on for their non~bership. I have verified hie po~ition as to this matter within the lest few days (by telephone); see, ~1~o, the letter, dated ~arch 5, IgC, fr~ the Essex County Retire- ment 8oar~ to WilIJ~ B. Dully, Superintendent. the second pergraph of ~Jch reeas "In accordance with the provisions of the conlributory retire- ~nt I~, ~neral L~s, Chapter 52, Section ~ (2) (fl, no person shell r~ain in the service of any gover~entel unit after attaining the mexim~ age for his group notwithstanain9 the fact that he is not a member of the contributory retir~nt It is mt understanding That the present employment status of certain members of the Board of Registrars o~ Voters, and of certain £1ection workers4~, now over age seventy, has been thrown info doubt b7 the Board of Selectmen October 20, lg62 Treasurer's letter to you referred to above, although he tells me that hie records indicate that their ineligibility for membership in the retirement system ste~a from reasons other than their attained egos ·t the time ef their original employment by the Town. In my opinion, the subJect 1962 legislation in no w·~ affects the status of any of the following: {J) Certain elected public officers. See G.L.c. 32, ~ gl, (2! Any person who, when the Tc~m accepted the provisions of the retirement laws in 1943, properly elected not to become a member of the System. G. L. c. 32, ~ 2 (bi. (3! Any person-who is not presently · member of the System for same reason other then or in addition to his ·trained age st the time of his entry into public service. This is · third group of unaffected em- ployees not mentioned in the Treasurer's letter to you dated October 5, 1962, end exists bec·use, in my opinion, G.L.c. 32, ~ 5 (2! (fi refers only to a per·on who enters the public service after attaining age sixty, end because I know of no other existing statute placing ·n ·ge limitation upon the municipal employment of persons not members of the System, I am sending · copy of this co~rm~unicetion to the Treasurer, who has indicated to me that he will consider himself bound by m~ opinion on this matter, Very truly yours, Arnold H. Salisbury lown Counsel *(Page two) Indeed, see G,L. c. 32, ~ 91, as most recently amended b~ St. 1962, c. 367, permitting persons retired from public service and actually receiving retiremenl allowances, to be paid "for work as election officers at polling places ar primer[eS and elections ..... AHS: ~nr ARNOLD H. SALISBURY, TOWN COUNSEL TOWN OF NORTH ANDOVER, MASSACHUSETTS ~,eae F. ~, Chatrmn-?reaaurer Oft'tea of t.~e Tr~eurer Oeurt Ho~me~ S~lea~ I~eeaehuaetta i~r Xr. ~= I have read vith in~erset your unsolicited legal opinten, rt to advise hl~ that the enpletm uhioh your purpe ....... u-..~ Andovor, "must terminat~ for many yelrl I l~egil%r~r off vowm ox Oe t~eber 2}, As the duly appointed and seeing Torn 0mmeel of North ! had eu posed it to bo m~ solo respen~ibili%y to ~dover, P ........ ~- -~oitl duties, ~ds · reffer~e ~ ~e praise quemti~ u~n vhieh you ~ve pur~r~ ~e a the re~e,t A~rmey ~me~l o~ ~h - 1 . ~r~ the seore~ of the O~onv~l~ TO AAA a ree~t Opini~ o~ ~e At~ey Oene~l. My letter ~ ~e ~el~ of ~or~ Andover, dated ~ber 20, 19~, copies off which w~t fomrd ~ ~e Town Transfer and, eourt~y, ~ ~e Clerk of yo~ B~rd, s~ted ~ opinion ~ ~Co~ek's "eaplo~nt' as ~stmr o~ Veers need not "ter~nate as of y~ and I are ~ng ~e ~or~ Andover T~ Transfer co~licting leal opinion. ~ae is, I ~i~, sufficiently d~u~nt~- You~ is not. S~e you are pres~ng also to act as ~s legal oo~sel in ~is ~tter, and si~e we lawye~ sb~ld, in s~h ci~u~~ inter- o~ge ideas, so ~t we ~y ~ch lear~ fro~ the o~er, I should appr~iate - indeX, [ ~i~ I a~ entitled ~ - yo~ answers ~ ~eee questio~ 1 ) I think we can agree t~t Nr. ~Cor~ok is not, and never ~s be~, a ~aber oT ~e ~sex Co~ty Retireaent ay, tea. O~n your r~ords, wb~t is ~e r~son For bis non~bership? 2) If his non~eabership in ~e System is, as I am ~ven ~ ~ders~d, based solely u~ ~e a~t of his "salary' as Register, - 2 - will yo~m pl~ae ait~ me to ~y presently elf.%ire wta~u~ (or o~,r of ~v) ~eh pr~bi~ ~s e~ti~e ia e~ee afar ~e a~i~t of age eeven~2~ I~all ~ou o~ do ia ~ ~ve m O.L.e. ~, j ~ (2) (f), bo~er; i~ is ob~ly not applicable, ~l~s ~e Opi~ of ~ ~ne~l ~ ~e ~ve~or and O~ll ~d ~ber ~, ~, exten~ whieh, h ~ j~, It elurly do~ M~. ~t o~er au~ori~l~ de ~ve ~or ~ dir~tve b ~e T~ Tr~s~er~ 3) I suggested ia aY cover-letter to your Olerk, aoee~l~myiag the espy et' aY letter to the North Andover Sele~ta~n tarot October 20, 1962, that he, or your Boar~, obtala oo~etent legal counsel to interpret said S ~ (2) (f) for yo~. Have you done soy If so, who is he~ (! should like to discus these questions with · ~enber of the Bar.) If not, do you net thiak that you should? 4) ! understand that your Board has suggested to our Teen Treasurer that, if he sees fit to follew aY advice rather than yours, he My find hi. elf ~erser~lly liable for any salary payment~ rode to Mr. MoOoreaek after Octeber 23, 1962. Searing in ~ind that the North Andover 3eleot~en have determined te follow aY advise, rather than yours (see the attached photocopy of a Lawrence Eagle-Tribune article dated October 31, 1962), would you be good enoug~ to give ~e your ideas as to who sight be · plaintiff in any action agaiast the Treasurer? Are you thinking in terms of a "ten-taxpayers' suits In the oireumtances, do you seriously believe that the To~m could institute such an action? D~ you, by any ehan~e, think that your Board could be such a plaintiff? This question interests le very ~uch, and I am willing to learns if your answer to this question sakes any sense at all, I should not hesitate to re-advise the North Andover Town Treasurer. ~) Finally, what ~ statute (or other rule of law) requires, or even per~d~a, your Board to render legal opinions to our To~n Treasurer! This questiou also interests ne, and should be of interest to you, as well, since I aa sure that the duties of your office are presently sufficiently burder~om so that you should not ,m-ecessarily enhark upon projects which are, to put it quite bluntly, none of your off~elal business. Very truly yours~ '~ ) Town of North Andover ~.~ Copies North Andover Selectmen North Andover Town Treasurer North Andover Town Clerk ESSEX COUNTY RETIREMENT I:=IOARD OFFICE OF THE TREASURER COU PI? HOUSE SALEM, MASSACH uIIrl"TS 0archer 2~, 1962 · '. Jamem J. ~aker, ?o~a ~eaaarer, Horth An(lover, ~ss. Dear ~r. Haker:- This is [n reference to your letter of October 29, 1962, in connection with Fred M. ~cCoraack and Louis P. Saunders, both ·eabers of the ~oard of Registrars of the ?o~n of North Andover. laasauoh as the Civil Defense Act has been repealed effec- tive October 23, 1962 as to Section 9 of Chapter 639 of the Acts of 19~0, ~hich authorized the re-employment of Fred M. ~cCoraaok after the date he attained a~e seventy tn ~aroh, 1959, under the provlslo~ of the retire~ent'law, his employmen~ as a ~eaber of the ~oard of ~egts~are must terminate as of October 23, 1962~ ]n view of the fast that Lou~s P. Saunders will attain age seveuty on November 8, 1962, urger the provisions of the retire- ment law, bls e=ploy~eat as a ~e=ber of the Board of Registra~s must terminate effective November 30, 1962. Very truly yours, ESSEX COUNTY RETIREMENT BOARD . _~- ::-- _ -./_._ f.'., / / ~Y: 6A.:, . , . .~ · ' . ~',,tt'~ I mm mu~milt~t~ ~m Loulo }, 8aunderm cam m~p~ialmd u amber or BoLd o~' aegiat~'arm on April, IOU, date o1' bSA. ill, Ileveube~. 8, 18~qJe Ver~ Truly You, re a COD. h~'ay and to be "and in o£ JncIi. h~ter Coror~uni' ~'IL L_~M A~ FINNERAN, CHA}RMAN TOWh?~)F NOR'rH ANDOVER MASSACHUtTTS BOARD OF SELECTMEN TELBI~ON[ MU 2-~4~ ~ 27, ~62 ~ar~ler t~e llort.~ Amlovea' ~ ~3.m on 1'4m~14ay~ levmmer ~y~ ~ and Pr~lay, Ilev~ber 30~ 196~ · e.. office Dea~ 81~o · apee~eelX~ autbr~sed b~ ~ho 9eMeal Oeu~. and fro not pub{te ple{T~ouad, o~ ~eemtiea eeu~ (of. O.L. e, ~, J ti), ARNOLD H. ~ALISBURY, TOWN COUNSI~'L TOWN OF' NORTH ANDOVER, MAI=IBAI~.HUI~ETTS Deee~er 7, 19~. B~ard of Seleetae~ TOM O~fioe Building North Andover, Maaeaohuaetts Oentlemens The published notiee of your moot recent~romulgatod traffic regulatio~, relative to the overnight parking of motor vehicles upon public ways during the winter months (a photocopy of which appears hereon) requires mo call t~ your attentic~ that your authority to mke such a rule does not stem from G.L.e. ~0, S 22D, but rather from G.L.c. S 22. Said S 22D, which "aCcepted" by the To~n at its 1962 Annual To~n Meeting (Article NOTIC T IdOTOIISTS ALL NI&HT PARKINt ~AN W~L ~ ~ 11111~? II 60) has to do only with your adoption cf rei~,~ia, lot, ~e ~tv, -o the towing away of improperly parked vehicles. See ::~ 'er o ye. -tod October ~9, ~96~, and December ~) Su~estionI In ~96}, any "All Night ~rkir~. ~n' · no~ed you should recite that it is issued ~rsuant to the provi~:ons ,f sai.~ ~ 22. 2) Question: ~ you int~d ~ n~ke an order authorizin~ the ~ing a~y of vehicles ~rked In violation of your "ban"? ~der said ~ 22D, and I shall be happy to d~ft a ten~tive~tion for your arpro~l. ARNOLD H. ESALI.I::IEIUR¥, TOWN COUNSEL TOWN OF- NORTH ANDOVER, MAE~AOHUS£T-lrS November 29, 1962 Board of Selectmen Town Office Building North Andover, A~aasachusatfs Gentlemen: I have your letter to me dated November 28, 1962, requesting my advice as fo whether a "Club" may properly ask for a renewal of a license held by it under G.L.c. I~B when it does not have any "premiSes" to be licensed, You enclose a copy of a letter sent by you to the Alcoholic Beverages Control Commission, also dated November 28, posing the s~e question. Since that C~iss~on must approve en~ action taken be YOUr Board upon such an application, ; th~nk YOu would be well cdr;sad to wait for ~ts reply to your ~nquiry. and that, ~n the interim, t ~hould not undertake any exhaustive stud,,, of the matter; aSSume that your Board will ab:de Ov the dec~s;cn of the quest ;on by the H~ever, ~ will c~ent es foll~s: II A "club" may be I~censed Dy ~our Board (sub ecl to A.B.C.c. approval] tc Sell I;quors "to ~rs members on~ " ;,. C. ~3~, ~ ~. ' 2) A "club" S "8 corporal;on ..... owninq, h:r,n~ or leasfng e bu; Iding, or space n e bu~ !~;nc ..... aOeau~e ~or ~he reasonable and G.~. c. ~8, ~ ~. ' .... Ver' ARNOLD H. SALISBURY, TOWN COUNSEL TOWN OF NORTH ANDOVER, MABSAOHUSETTB ~ovesber 1~ 1 Board of Seleot~en To~m O~fioe Building North Andover, Mascachusett~ The North Andover "Plannint Boar. d_ of Appeals# Oentlc~ O.L. co Al, ~ 8~ Z, requires · te~ to ·dope a by-he providing for '· board of epl~els, which shall have Jurisdiction to isle. · per.it for the erection eft a building ~der section ei~ty~ne T.' North Andover adopted omb t by-~v ~der Article ~ of ~e ~r~t for ~e ~ A~I T~ Meeting~ it ie n~ ~ ~r 5oo~ aa Article XII-A off ~e Oene~l By-~ve o~ ~e T~, and re~r~a yo~ Board ~ ap~int ~be~ ~ere~. Thi, is not, of cource, the "Board of Appeals' the exist.nee of which, required by O.L.c. ~O A, ~ 1~, rests upon the provisionc of ef the To~'e Zoning By-Lace This 'Zoning' Board of Appeals has Juriedicticm over certain aapect~ of the Zoning By-Law, ·nd has no powers whatever to issue permits under G.L.c. ~1, j 8~ ~. The Juricdiction of the 'Planning Board of Appeals' is extremely limited; ! question that it will frequently be called upon to act. This fact, however, dose not excuse your Board from the responsibility of appointing members to it under said Article XII-A. G.L.c. ~1, ~ 81 Y, emp~ers the Building Ins~ctor to withhold his per~t "until ~irst satisfied ~at ~e lot on which ~e building is to be erected is not within · subdivision, or that a way fu~ishing ~e access ~ such lot ..... is sho~ on · ~an ..... entitled ~ be r~orded ..... and that ..... (all Pla~ing Board conditions have been ~t or ~ived).' It th~ pro,dee tiler 'If, h~ever, the enforcement o~ the foregoing provision. ..... would ~il practical difficul~ or unnecessary hardship, and if ~e circuma~ncea of the case do not require ~et ~e building be related ~ a ~y sho-n on s~h plan, the board o~ appeal (sic~) provided for in section eighty,ne Z a~l! have power ...... to issue a per~t for the erection of such building ...... ' ~ie ie the only mater over which a Planning Bo·rd of Appeals would.ye ~ Ju~cdiction. · an 'official ~p'. See G.L.c. $8~ ~. ARNOLD H. SALISBURY, TOWN f:OUNE;EL TOWN OF NORTH ANDOVER, MASSAIDHUSETT5 C)¢fo~er 19, 196~ Daniel T, O'Leary, Chairman North Andover Board of Appeals tow~ Office Build;n9 North Andover, Massachusetts Dear Mr. O'Leary: have your letter to me dated October 17, 1962. By my tatter to you da*ed Oclober II, 1962. I advised you that, in my opinion, your Board had improperly granted a special permit for an Apartment Development {under ~ 4.7 ft. of the Zonino B~-Lew) to an appJicantwhose ~and area was no~ sufficient to comply w/Ih the provisions of ~ 4.75 of the By-Law. You now advise me that the applicant has decided ro "build six apartments, rather than eight as originally r~quested,~ (and approved b~ your Board's decision as now on ~ile); it appears t~ai th~s m~dif:cali~n of his plans would r~sult in complianc~ w;lh ~he land area requirements o~ said ~i 4.75. You appear to ;nquir~ wheih~r ~our Board ma, now properl~ emend, Or revise, its decision upon his application so as to perm;t issuance of a building permit ~or lhe conslruct;on o( :he newl~ proposed six-apartment development without hotdin~ a furthest advertised ~ub~,c hearing ~hereon. - if th;s be ~our question, j answer ~t in the e~irma:,ve. Such a revised decision would obviously resul~ ,n a lesser doper:ute ~r~-~ ~he zoning requirements of the l Own ~han Your dec Sion upon the app~ cant's original petition, if th~ reverse were ~rue, should advise ~ou ( as I did ~n my ietter to ~ou da;ed August ~2. 1959} rha~ \our Board should re-advertlse and re-hear ~h~ sub.i~¢f pe:,:ion. ~u; ~! Seems cl~ar thor you may in th~ present circumstances, at leas~, preFar~ end til~ an amended decision with iPe lawn Tanzi I v. Casassa, 324 ~ass. hereatter, act as I~oal COUnSel ~or the ap~Ircant .n matt£rs no: concern- ing t~ iown. and thaf his present couns~l ~n Ih $ matter, ~o$~.Dh i'. Daniel T. O'Lemry, Chairmen -2- October 19, 1962 also have my assurance, holdover, that these factors have not to any extent influenced whet has been said above, end that I have no financial interest whatever in this matter. It would certainly not be improper for your Board to re-advertise end re-hear the applicant's emended petition for a special permit. advise you only thai, in my .judgment, such a re-hearing is not required by the gover~in§ statutes. AHS: dmr ow~ Couns AR~!OLO H, SALISBLIR¥, TOWN ~oUNSEL TOWN [DF N[DRTH ANDOVER, NIASsAOHUSETTS october 15, 1962 Charles H. Foster, Jr.. Building Inspector Tow~ Office Building North Andover, ~assachuaettS Dear Sir: ~ have your letter to me dated October requesting my advice as lo your po~er to issue a permit in the cirCUmStanceS set forth beloW. AS shown by' the adjo,n~ng rouqh sketch, there ~ist four contiguOUS lois of land. numbered 13~-157, i~clus~ve. as Shown upon the-Highland View Park Plan" INor~h Deeds Desk Plan No. 03581. Each has a frontage on Went- worth Avenue of 45 ~eet; each is slighl~y ~es$ than lOC: feet in depth, They lie w~ihin the Villaqe Residence Zone of the Town, ;n which Iai frontages o{ IO~ {ee; and lot areas o{ 12,500 square feet are required by Zoning By-LaW. Lots 134 and 135 were acquireO by Andrew MelnekiS e._~l u.~x in 1925 as''~enants by the entirety", and have since been held by them, aS a singte parcel of land. upon which ~ot a dwelling house presentl~ slandS. Lot 1~6, presenll? vacant, was acquired D', Andrew ~elnekiS e_.~.t u._~x a5 "io;n~ tenants" in 1~4~. Lo1 157 was conveyed to Andrew ~elnekiS, aS sole owner, in 1943: it is ~o~ also presently vacant. On AuguSt 2C, ID6~. a deed was e×eculed and r~corded, the name of V~to J- ~eln,~as e_~t u_!~, as "ioin~ tenants", ]hey bare mppl',ed lo ,au ~ lhe SUb~c'C~ Pcrm:~: ~t is m~ undersland'ng thal !he;r proOoS8t ,S ~o build 8 dweil;no feet and upon t~esm ~ot~ a5 8 ~:~ ~aFc~l o~ 18nd hav~q 8 ~tr(:e~ trO~e CJ r in shape aha s~ze ~o ~ 8dio~n~nq p~rc~l Cons,stUn(? (~ ~otS I~D and tha~ you ma'. proder I~ qrenl SUCh 8 perm; '. to ~.our ~DP ,cents :nc~u~O c~:. ~oI ~'? (rev~ne 8 trontage at ~5 ~(~(,t and 8~ ar~8 ct ARNOLD H. ~;ALISBURY. TOWN CDUNSEL TOWN DF NORTH ANDOVER, MASSACHUSETTS October 15, 1962 Charles H. Foster, Jr.. Building inspector Tow~ OfFice Building North Andover, ~assachuaetts Dear Sir: I have your letter to ~e dated October I0, 1962 requesting my advice as Io your power to issue a bui perm~ in the circumstances set forth below. dina As shown by the adjo,n,ng rouqh sketch, there exist tour contiguous lots of land, numbered 134--1~7, inclusive. as shown upon the"Highland View Park Plan" (North Essex Deeds Desk Plan No, OSSa}. Each has a frontage on Went- worth Avenue of 45 feet; each iS slightly les~ than lOC feet in depth, They lie within the Village R~sidence Zone of the Town, ;n w~ich lot frontages of I00 ~eel and areas of 12,500 square feet are required by ~ 6.51 of the Zoning By-Law. Lots 134 0nd 135 were acquired bt Andrew Melneki$ et ux in 1925 aS "tenants bv the entiret;,'r. and have since been held by them, as a single parcel of land, upon which a dwelling house presently stands. t. ot 13~, presently vacant., was acquired b; Andrew Aetnekis et ux as "ioint renanls" in 194~. Lo* 1~7 was conveyed fo Andrew ~einekis, as sate owner, in 1945: it is also presentl~ vacant. 6o~ 1~8 6at 1~7 6at 1~5 9#.&7m 6at 1~5 that You ma,~ proper I, gran~ such ~ permi '. Had the August i962 conve,anc~ ~o ',,our adp cants ~rontage c~ 45 Feet and an ar~a o~ On Augusi 2C, 1962, a deed was execuled and recorded, ptaclng the record lille to th~vacan; lois 13d and I37 ,n the name of V~to ,). Melnikas et ux, as ".ioini tenants". ]hey have applied rd ~ou for the SubieCt pErm:l: it is m~ undersiand,ng that their proposal ;$ 10 build a area of somewhat les5 then ~OC squ8re - 8 parcel, in other word~, substan¢ ~at! :d~nt cai in shape and size ~o th~ ~d]oin~nq parcel consistJne o~ lots I~ and Charles Ho Foatar~ Jr,, Building Inspector October 15, 1962 application for · permit been mede as to that lot onlt, it seems clesr fhsJ your permit should issue, sub,!ect only to fha conditions ;mposed b~ !i 6.61 of the Zoning By-law. ihs furtherance of the"health, safetx, conyenience, morels or weJ~ar~" o~ Ihs peOp!e of North Andover, which is the sole basis for thc tnact~nt of such a b~-Iaw |G.L.c. &OA. ~ 2), would seem not to be fo an? e~lenf pr~iud;¢ed b,, your grantrnc o~ e permit ~or 8 $lrucfure upon ~ parcel of land double th~ siz~ o! lot 137. t purposely make no comment concerning Ihs pertinenc~ hereto Of the provisions of '~ G.2 of the North AndOver Zoning B~-Le~,, nor do i expect Jh8t ',ou w~ll ac: upon this limited opinion in other f&ctusJ circumstances, J~N$:dmr Cop~ to: H. Morley,, [sQuir~ own CourlSf I ' j ARNIDLD TOWN H. S~,LI~IGURy, TOWN COUNSEL i-lf NO~TH ANDrlVER, NIA~ImiACHUC~ETTS~ October II, 1962 Daniel T, O'Leary, Chairman North Andover Board of Appeals Town Office Building North Andover, Massachusetts Dear ~r. O'Leary: I have your letter fo me dated October 5~ 1962, together with its enclosures. It appears that your Boara, upon a petition for a "special permit" for an Apartment Development presented to you under !;~ 4.7 fl. of the Zoning By-Law, has voted to grant the same, notwithstanding the fact that the area of the subject lot is not sufficientl} large to comply with the provisions of ~ 4,73 (c) of the By-Law. In my opinion, for the reasons stated below~ your vote was improper, and is of no effect. You seem to inquire whether your Board may now great a statu- tory "variance" in order to validate your action in granting the re- quested permit. I must answer your question in the negative. Said ~ 4.7 authorizes your Board to grant such a permit "only it it be satisfied that such development wilt conform to the specific regulations set forth in ..... (~4,73) ..... " It is obvious, i~ the ~acts assumed above Daniel T. O'Leary, Chairman -2- October II, 1962 in fact exist~ that your Board cannot satisfy itself ss to such confor- mance. Accordingly, it had no power to grant the requested permit; GaL. c. 40 A, ~ 4, the 9overning statute~ specifically authorizes the Town to include in its enabling by-law "general or specific rules" regulstfng your Board's action upon such a petition. The by-law, as above noted~ contains such rules. I cannot bring myself to the conclusion that you may enlarge the power given you by the By-Law by later exercise of your statutory power of variance, under G. L. C. 40 A, [ ~5 I~}. Iarn unaware of any rule permitting a variance "on top of" a special permit, and cannot believe that any such rule can or should exist. In passing, I cannot refrain fro~ ceiling to Tour attention the fact that your Board still seems to be confused as to the difference between its "special permit" and "variance" powers. Its decision in the present matter, dated September 28, 1962, contains "reasons" which said ~ 15 requires for the granting of a "variance". Aside frcx~ the requirement of ~ 4.7 quoted above, the only conditions imposed by the By-Law upon your granting of an Apartment Development permit are: I) That you find "that the development as planned will not be detri - mental to the neighborhood in which it is to be located, and t~at the Town can reasonably provide ..... all necessary ut;~ities and facilities," ~ 4.74, and Den,el T. O'Le~ry, Ch.,r man -5- OctoDer I, 2) "Before iasuing any permits the Bosrd of Al)peels shell request a report fr~m the Planning Board on the extent of ..... conformity,' of the proposed development to the requirements of the subdivisiom control lit, ~ 4.7~. AH$: d~r Tc~n Couns~ I ~'~ Ikl Idlnt i ,nqWef~ Tm Oftl# k! ldinii Chllaerlng ~tlilaey hieing in ~ ~ ~,G Mm t~t, ~ the MJmit ~ perpemm. ~4~tiili By- ~lllllrl~ il, Flltelt'~ ~, Nlul, YlUr prlmlry qmotlli Ill Il lle llldllt! Vlllllty el lltlh i, I~ Itiltlllil' lqtlldill! Ifil- not ~ ~m Mnm l~ ~ty ti m~o lm I~m~ ~ It. tit tllllrl Tm A~NOLD H. BALI~aU~Y, TO~ ODUNBEL TOWN DF NDETH ANDOVER, MA~A~HUIETTB I~7 22 ~ 19~ Board of Seleetmea ?c~rn O~fica 9uildin[ North Andovar~ ~mmaohueet~ ~ent I · ~n ~ By your letter ~o me date~ ~y 1, 1962, you inquire aa ~o ~e 'le~lity ef the ,i~ ~e Merrimek Valley Motor ~ (~ Chiekertng proposes ~ ~ea to advertise its buai~aa. I ~ke your inquiry to be, ia essence, whether your B~ra nee~ concern itael~ ~ith the ~tter o~ re~lating~ in ~o~e ~ay, the deai~ and size of ~e propoee~ At the outset, X advise you that there ia no s~te agency which has any ~uriedietion over this probl~. ~e ~oor Advertiai~ Division of the ~rt~nt o~ ~blic ~or~ (O.b.e. 16, ~ ~ C) has ceftin powers of control over b~iness si~a on public ~ye or within public vie~, but none over "point of puro~ae' advertising devises - 'ei~ or o~er ~evioee erected and mim~inea in eoaformit~ wl~ law and which advertiee or indicate eider the person ~oupying the pre,iaea Xn question or the business trane- acted there~ ..... ," 0.4. e. 9~, ~ ~ (emphasis supplieS). Aa to such local m~ic~pal legislation constitutes the sole control, subject only to the statu~ requirement t~t re~latory to~ by-lawa ~at be consistent the governing e~tutea of the Co~oneealth. G.4. c. 9~, ~ 2~. Acting ~der Article ~ of its ~arrant ~or tls 19~9 A~i To~ Meeting, North Annoyer adopted ~he By-~w ~hieh ia now Article IX of its - 2 - By-Lace. In ~ opinionw none of its provisions conflict with any of those of O.L. co 9~, SS 29 ~, p~s~nt to ~ioh it ~s expressly ~erefore. subject ~ any express or i~plied lair changes in its provisions, said Article IX presently re.lares 'advertisi~ sl~s and billb~rde~ ~ ~e To~. It is not ~e sole eoetrolling legislation, h~ever~ as indicated bel~ o~ Z~ing By-~ also purports ~ li~t ~e ~e of land for advert~siag ~r~os oS. ~eoti~ 6 o~ said Article IX Pro~de8 t~t ~ Sresidential diarists' no one shall ~in~in a si~ 'exceeding five sq~re feet aggre~te ar~ . .... ' You should bear in ~nd t~t. in ~9~, when this provision ~s First ~de, no "residential dis~iots" ~d yet been specifically defined - o~ first Zoning By-~w ~a not adopted until ~9~ - and ~at said Article IX should now be so read and interpreted. In f9~9, following the d~ision in Coolidge v. Pla~inz Board of North Andover, ~7 ~ss. (~9~), ~e To~ adopted what is now ~ ~.~ of its Zoning By-~w, authorizing the Board of Appeals, in appropriate instances. ~ petit ~e erection and ~intenace oF motels ~ln any zoning district~, and to per.t, as uses accesso~ ~ereto, advertising devices of reaso~ble size and app~ra~e. See ~ letter to ~e Building Inspector, dated Februa~ 19, ~9~, in ~ich I have s~ted opinion ~ be that ~e ~9~ Zoning By-~w a~ndment, in so Far as it ~y be inconsis~nt wi~ the narrower restrictio~ of said Article IX, has impledly repealed them. In the li~t of the above, I advise you as 1) Your Board should not concern itself with the subject problem; the size and appearance oF the proposed motel si~n should be regulated by 'the Board of Appoals~ upon whioh rests 'the rssp~ibility o~ deter~[nl~, II ~0 ~hl operation oi' any North Andover motsl~ "the well'are of the t~ generally, lnoluding a~enity and pleasantness oi~ site plan~ (therei'or) ...." Zoning 'By-Law, $ ~o~. 2) You should advise the hotel o~ner to consult his o~n attorney as to the steps which he should no~ take~ I shall Be glad to confer with any lawyer oi' his o~ ohooeing in an attempt to resolve the difTiculties he presently i'aoes. Very truly y~ ...... Town Oourmel I re~use to assume any r~sponsibility £or the phraseology of this provision; your records will indicate that I did not become Town Counsel until 1959. ¢07I~ TO: Building Inspector Board o? Appeals ~mm&:hmmmm olmtm & m mmU3, m 112m W,,, ~r 10~ 1962 Board of ~elect~n ~ Office Building North Andover~ Massachuaetts C~ntlemen: I haws your letter to me dated ~ay 1~ 1962 requesting my opinion as to 'the legality of parring cars for a fee in an J~dustrial zone". A co~nercial parking lot is ~ ~non-retail activity" which doe~ not involve noisy processea~ ~achinery~ or motive power; it is relatively free from auch disturbing factors as noises and odors, at least as we must me&a~rs such ~actor~ in i962~ See North Andover Zoning By-Law ~ction 4.41. Accordingly, it is my opinion that an owner of land in the Industrial Zone may properly use it for the use of the commercial parking of motor ~ehiclee, although whether such use ia the "highest and best use" of auch land may be debatable. AHS: dmd mmmmr t, mm ~ mmmb mm m m mmmm w m m1~ w m mmm mm, ~imm m W ~llmm ~wmmi W m m mmm 14 m m Beard of ~41eetmm I have Four lett4r to Be ~ated Xl~ ~, X96~ moloLt~ eketah ehevi~ the ippraz~Mte lo~t~ of & ney dv~lLt~ m Street fral the ~ of vhtoh rater ~ ~ f~4eL~, thr~ & OIG,ve~t,~, IG)m, 1And ~Ltt~ted ~ the oth~ - I- bu,, xeou,,e emro ~o J, bumb~ m,,,~ ~m ~ mete,, er ,, ~ ,re,bm ~ bm.i. Iktttama*e v. ~,a O%eek et, L hlm,M~ ~ Nme. W4 (1~,~). tt, ii ~ ~ ~. ~ (~). ~ Andever Ple~ ~ea~! Tram or.Ace ~l~f~eg ~rae eenMai is needed eeaee~ lO,~ app~ I ~ve p~~ r~~ (m~ ~ lm%t~r ~ ~ ~ ~ t8o urn, ~, ~e~. deem ~ 'i'm oeu~ I~e L ~afe~d, Aetiag Tree ~ar~em T~ Of~iae ~i~ l~h ~ver, Wae~aehu~et%e I have ~ letter te me dated February 12, 19~2, requem~lz~ m e~q~lanatte~ ~f t~ ~iti~ ef ~b~ ~ade tree" ~t~m~ ~ ~. L. ~. ~, ~he~ ~r~e ~ be~ ~~ ~ ~nfer u~ h~ ~eelu~ ~ ~e~e~ t~ ~aid ~ 1 i~ ~naa~igue~m. Y% defines a "~b~c ~.~ the ~t=, ~ ~ ~e ~~a, ~f a ~b~c my. A~o~g~, ~ t~e ~t~d~ ~u~ ~te ~ ie n~ a ~c ~e t~ ~er the s~&u~ defying. He~r, ~ a e~se ~, t~ statute of ~ ~e p~te o~e~w of a~ t~e ~ ~e ~tt~ ~Y o~er, ~i~ietim as t~e ~d~. ~d~d~ I ~e no ~a~n ~r ae~m ~ ha~ b~ ~e eu~m ~ p~ d~t for ~ ~ c~ue ~ Hm, ~s~bi~ty for the ~ of t~em ~eri~ Y~ur letter ~fe~,m to my reemt "ruling ~ertaining te ~ti~ the ~e~ ~-~ of ~e ~ ~hibit t~ ~nten~ of a ~litie~ ~la~ · ~ee the ~fe~mt ~ ~e ~-~w ie ne ~ ef ~ur ~tiem as t~ ~, ~e p~bl~ 8e~o ~ ~ of ~ici~t 1~ in~re~ ~ ~r~t ~e ~tt~ ~t Said ~icle ~X ~e ~eifics~y ~o~d ~ ~r~ ef ~e A~. IX, ~ 1. It ~, ~e~foM, ~ ~ ap~st the h~d off ~d c. 939 ~ich has %o do ~ ~ the ~%i~ of tr~e ~d bue~e~, ~d ~ no v~ ~s itself ~ ~tio~ "~wti~.' Accord~glv, no p~sim of md A~. IX c~ he de.ed ~ ~h to ~litic~ ~lae~dL January 11, 1962 Danl.el O'Leary, Chairman North~qdover Board of Appeals Town Office BuHtding North Andover, Massachusetts Dear Mr. O'Leary: Re: Francis J. Hayes and smother v. Board of Appeals of North Andover and another. Essex Superior Court No. 13456 Equity As you know, th~ above ~atter i~ an appeal, under O, L. c. 4OA, s. 21, from the decision of your Board, dated Octo¥~r 24, 1961, upon the petition of Charles B. Perry for a zoning by-law variance. The appeal ~ttacks that decision upon the grounds, among others, that it is too vague a~d ~ndef4nlte, and that it does not contain ~he r~a~ons w~:~ch your ~oard had ~or grantL~g the requested variance. In my opinion, both of these ~ro~ds are valid. Section 18 of said c. bOA requires that any deci- sion of your Board must clearly ~et forth the reason or reasons ~herefor. Accordingly, whenever your Board renders a decision granting a requested variance, ~t should ~et forth not only the general findings of fact which s. 15 of said c. 40A re- quires, but also such subsidiary findings of fact as your ~oard may have found. In other words, any such dec~sion should con- rain, amoung such other matters as your Board sees fit to include, findings mubstantially as follows: "Owing to conditions especially affecting the subject parcel, but not affecting g~nerally the zoning district in which it is located, a literal enforcement of the provisions o!~ ~he by-law would tnw~lve substantial hardshf? to the aoplicant, and desirable relief may be granted wl~hout substantial ~etrime~t ~ the public good and wd~thout nuil~fT~ng Daniel O' LearT, Chairman -2- January 11, 1962 or substantially derogating from the intent or pur- pose of the by-law". (These are the facts wh~ ch must be found by your Boar~ before it may properly . gr~nt a variance. O. L. c. 4OA, s. 15) "The Board's reasons for making th~ fore- going findings of fact are as follows: ..... " Iou should also bear in mind, of course, that your decision should also co~tain a record of the wo%ing of each melber of the Board upon the petition. The decision of your Board dated October 24, 1961, is, in ~y opinion, defective in that it does not set forth the required statutory findings or any other findings of fact con- stituting reasons for the granting of the variance. Nor, as the pending appeal points out, does the decision itself spell out in sufficient detail exactly what the variance was designed to permit. In my opinion, your ~oard would be within its rights bo file a supplemental decision with relation to this matter, stating all of the facts found by your Board in connection with the decision of October 2~, 1961. If your Board chooses to do so, I should be glad to be of assistance in .suggesting the precise form which such supplemental decision should take. Counsel Copies to: Charles W. Trombly, Esquire Frederic S. O'Brien, Esquire A~NOLD H. IALltIURY, TOWN T~VN OF NO:~"H ANDOV£R, I~.,B~AOHUSETTB ~a~es ~. human, Ohairmm If ottO JJ~dover Plann~n~ Be4rd ?ov~ ~Lt ldin( Dear Sir: I have your letter t~ ~e dated ~ceiber ~, 1~t, requeiting · y advise aa to the legality of a proposal to re-zone f~r Oeneral Bu~ineei purpoeel a parcel off land, preIently lying within the Village Residence z~e, ~hich haI an area off 16~ a~are Feet and a frontage, along 8aunderi Btreet, of 10~ feet. Tour Soard held a public Bearing up~ this proposal ce~ Deee~ber 4, l~, at which ti~e it ~as voted to refer to me, aI Town Counsel, the queetic~ of "the legality of the size of the lot for bu~ineai.' ~hs governing provision of the Zoning ~y-Lae ~a f 6.1~, WEnch lot (in a Oeneral Business 0istriet) shall oontain not less than twenty-five thousand (2~OOO) square feet area amd be not leas than one hundred twenty-five (~2}) feet width at the street frontage ..... I. At the outset, I ,ug~eat to you that any action by your Board upo~ this ~u~stion, at this ti~s, ~ould be premature. O.L.o. ~ 6, provides that no zoning change ay be a~opted by a Town Meeting until the Planning Board shall have held a public hearing thereon, and shall have subaitted wa Final report with recommendations to the ..... town meeting.~ I am not aware that any To~n Meeting has been called for the purpose - 2 - ee~sl4eri~ the s~aing ~hange which yo,~ letter deeortbe~. At this theretore, there is n~ To~ Neet~ ~ ~hioh yo~ ~rd ~an report, nor y~ ~ any ~y ~ ~i~ ~t an Article emb~ the ~ubJeot pro.al will e~r ac~lly be in. erred in the wa~ant for ~ future T~ Mee~. Her~ff~r, I reoo~d ~t yo~ B~rd not ent~r~in any request flor a p~lio h~r~ up~ a pro.wed zoni~ by-law a~nd~nt ~til afar appropriate Article co~e~ing the sa~ ~e ~ ~act b~ome a ~rt of a Meeting ~rrant. II. Tho ~arcel in question was the mite of the 'Hunt Club', so-called, which was destroyed by fire so~e ~ontbe ago. Petitioner's counsel, according to the r~ord off yo~ meeting of ~e~er 2, ~, o~d to you ~at his oli~t ~s "o~ed" ~e H~t Club si~e ~9~, ~at by ~ act of God he ~f been 'put out of b~inell, and can be ~t ~ck by an act of charity of the nei~bort.' Petitioner pres~bly also o~s ~e subject ~rcel. If his request is accurately described by the record of your meeting, it is clearly a proposal that the Town "spot-z~e" his land. The law does not per.it neighborly charity to extend so far: it is b_~eyond the power o~' the Town Meeting to "single out one lot located within what essentially a residential district and impose restrictions upon this lot that are less onerous than those imposed upon the remaining portion~ of what is really the same zoning district,' 4eahy v. Buildin[, Tnapector of New Bedfo,r,d, 708 ~ase. 128, that lot." ~fhitte~ore Further, it is my opinion that the Town could not legally re-zone the petitioner's lot for business purposes while the current provisions of said S 6.~.1 e~' the North Andov~r Zoning By-daw re~ain in ei'l'ect. That wecti~ ~n~ ~o~Ily es~blished ar~ and fringe req~re~nts for ~esa le~, ~e T~ oould not, vi~out a~ndi~ it in e~ ny, t~ere t~ pro~tms ~ ~ relate ~ ~e petttioner~a lot. III. The foregoing counts relate only to the questi~ of law which will arise iX' and when so~e future To~n Meeting should be oalled upo~ to act on the propolal which you have heard. I cannot and do not intend to suggest what your Board's Report to such a Meettn~ should contain. Very truly yours To~n Oouneel Copies to: Tc~n Clerk Moderator John J. ~illis, Esquire ALL IIIT itl pIbliIliilI Il bi LlulIIlI hflo*ITiii, iWSsdId ti'MM I, SL~LIbml7 buU GoUld. ]Jowsk~ 1,, !~dl Yemu or,lee ~d)Atll ARNOLD H. ~ALIIilURY, TOWN COUN~BEL TOWN OF' NOI~TH ANDOV£R, MAI~I~CHUIE'TTI O~tober ~O~ 1961 Board of 1%alth Teen Office Buildin~ North Andover, #aeeeohuset%s The October 27, 1961, issue of the L~wrenoe ~gle-Trib~e carried ~e ~oll~i~ .tory= O0~mS ~ULI~ FAYORS CHICK.S ~ ~e advise of ~ eo~eel t~t ~e property ~n ques~ i~ ~ot in a heavXly populated area, ~e ~ard of H~al~ ~anted a pe~it to Nor~ F, Bu~ o~ 1~ Omgood 5treat ~ keep amtnale or birds. ~r. H~ea w~ll keep ~ ohick~l ~ his property of 1.6~ acrel ~ ~e ~lis off Atty. SalisB ~'s rul~g, othe~i,e a ~ni~ off thr~ acres would be needed .... ..... ~ do not ~o~ whether this acc~t accurately s~s the action ~ken ~y yo~ Board up~ ~e application in ~uestion. I ~ow, b~ever, t~t I ~ve never advised you that the To~ 2oni~ By-~ ~ould allo~ ~e keepin~ of ~ chick.s upon a lot of less area than ~ree acres, re~rdless cf whether the subject loc~ lies a "thickly settled" or a "not t~ckly settled" ~ietrict. I refer you to ~ letter ~ the Pla~ing Board dated ~Ay 19, ~9~1, a copy oF which I fforwarded to you, and ~hich s~s, expressly, ~ ) t~t only pets of the family living on s~ch lot" ~y be k~pt on a lot having an area of les~ t~n three acres, and 2) t~t G.L.c. ~A, ~ 12 requires t~t your Board "ref~e any permit or license for ~ ne~ use of .... . l~d - 2 - vhieh uso would bo ~n viola%ion of ~y z~ni ,.... by-hw. " I~ 7o~ ~rd he indee~ voted to ~nt the ~t In ~e ~wo~r aooo~t, ib scion ~s cl~rly oontra~ ~ ~ advloo~ a~ ~ ~ opini~, le~lly ind~ible. S~h a pe~t~ o~m~ oould ~t be ~k~ to valuate a land-~o proh~bit~ By ~o T~os Z~l~ ~-he, e~ch ~o B~ldinG Ins~c~r I am sendin~ a oo~ of ~i~ letter ~ ~o Buildin~ ~or his i~ormtion and ~ida~e~ ~d to tho Plying B~, for its files. Very truly yo~, ~ Town Counsel ~ bo t ~d~nd~%esem. ~%etb ~m~ mf Wm~m~ mmm~ fm~ ~ ARNOLD H. SALII~BURY, TOWN COUN~IEL TOWN OF NORTH ANDOVE:R, MAIIIIAI3HUlaE:TI~ l~o~rd o! Selaetmm ~oin O~l~oe Butldi~ North Andover, N~saaohuse%%4 Gen%le~en~ You have advised me that a lo, al attorney has r®que~ed you "to have ~e neoeeea~ e~pa ~ to ~ve [~r~] ..... Strut Your Board has been given the power to 'lay out .... . town ways .... . and private ways ..... " O.L.c. 82, ~ 21. A~ used in that statute, the words Sprivate way~s refer ~o Sways of a special type laid out by publio authority for the use of the public ..... suoh ' "private ~ys" are private only in name, but are in all other respects ~ublio~ ..... " Opinion of the Justices, ~1~ Mess. ~79, 782 (19~). In general, I public way should be laid out aa a "to~ way" if the totm itself ia to be responsible for any consequent damages for the taking of land, and as a 'private way' if any such d=.~ges are to be asa.seed in whole or in part upon the persons principally benefitted by its c one truc ti o~. Your laying out of a public ray, vhether "town' or "private", should be in the form of an Order of Lay Out, similar to the sample form - 2 - ~here ia no statutory rcquire~Mnt that heari~ relative to a p~sed hy ~t. However, see ~.L, o. ..... no public way shall be laid ~t .... , ..... ~ beon re~erred ~ tho pl~ b~rd ..... ~d o~h b~rd reported thereon, or he all.ed wight ~ub~tt[~ i~ repo~,m The form o~' article For insertion in a to~n meeting warrant is as follows: "To see if the To~n will vote to establish Morris Street aa a public way By acoeptin~ the selectmen's laying out oF thesame, heretofore filed with the Toen Clerk." Very truly yours, Arnold H. Salisbury Town Counsel We, the undersigned, being the selectmen of the town of North Andover, do now and hereby, at our regular meeting held tht.s day, lay out aa a town way/priwate way XIIXX Street, so-c~_l]ed, between YTTTY Street and ZZZZZ Street, its boundaries and admeasurm, ents ~beir~g those shown upon a plan of land entitled dated IIXXXIXYJO2(, drawn by X/~XX, a copy of ~hich said plan is attached hereto and made a part hereof. our hands, and the seal of the town of North Andover, this xx;oooo[x day of , ]96x: TOWN O? ~:JRTM A~3OVER Chairman Received and recorde~, this ×~xx~x:: day of xx~xxxxxx~.x, 196x: reguh~An~ *Mm the Teuu ~mping Otq~d, and ~e~ ~11 ~~ ~ ~ et all ,,,,e a !,,w,e kdlr ~livd, md #'?"NM' leu,. e. !Jl, t ME], mememmm 4,,~? (t! emro ~1' (e) ~ ~ mm, mB oettlede mJqm~ eempm~e.L.e.~Ooj t. ~ee, m ~ammm~$ee~ t,m~ · ~e~ ~)~bff, dte ~ ~ou u~en ~bieh u~ f~a~t~or a~lee n~y be r~uirod, ! oee no useful Iaa3~ee ~o a p~Lvete oi~As~u baying ~Ae {ro~ ~n~oroo~ ma2 ~ake e~ ~e ~eFee hf~ ~o per~o~ ~ese ~leo, bu~ ~ BemfJ bas n~ eve~lt yevoP ~o de ~o, a~eerb~n ~be f~th~ f~e~0 ~o fo11~ f'~t., knmm ~, mm. 'AWn O~f~ee Bu~ldln~ -2- (I~1) end heo, ~, ~ (1871), ..// f The ej~dAea*Aea~ flAed lqd,JqmT 20~ I~, ed Vm~e~ ~e~ ~ A~ #aomShu.~o Avenau (~tMfte~ ~Aeu ~r lt. amm3, ffJ heenb~ Xg. X960, uput dd, eh · ~ uso held es - 2 - ~ f. he pvmd. u~ mt, m~utdmm de m~ ~ #e~ wo~ld ~m be uude~ au~ eb2ASatiea te ~ et~beF er theal see e. X3e, ~6~ # · ... In ease · ... l~8aX auMMa~iAee a~e uad~ ~O a lam to aaF eF the applieaats beru~ ~% (a~eJ), then reek - & - b f'os, t~flvo ~ prom*fed mpeef, fld ~ 43.L.e. AX, § ~,~, sd has date) M.~ the uu, ttt4,a m,~cmmomt of' +.he apl,X,teawk. o~' {lof~l/d~. l'hmm~o lo no m~ai.~AoJ,j~ ~t ~ that iJmMm.d,o me'~l, el utmon ma appl~u~u re~. aj~ as ~e a imFl~ let. ~e that it ~a~ tak~ tiao fe~ aa ade~ ~ ~a em~ aa applAe~ %0 made. ~ ~m~ ~ollarJ ~ eeeh viel~tiau ~he ~ev%eeal Learn ha~e beeB ~A~e ~ ~eJ~ Fea~o. See O, Le e, ~,,~ ~e%%a~,. [er m ,~,e~ ~ %,,,, ~ TOWN OF NORTH ANDOVER, MASSACHUSE~TTS ARNOLD H, SALISBURY, TOWN COON$='L ]~otrd o~* Sele~ Ton au~ld~nf Gm I~o,, ,~ .,188 tCL~e. (2) ~ ~o~n. d~t,j,,,pimm, The map {~Jdd,~i.t 1) e~eM, on ~he paso en~Atled b~s~mm. ~ ~ ~ oF ~ or b ~~m M ben'~a~ed li~. An au~e~le ~viee mtmt~m is ~o~d %h~. ~e ~ a~ea ~m a a~rt ~mt~ ~ o~' t~ ~ee static. ~ ~m a at t~. loeatl~a ~ ~o t~ ~ption oF t~ m~ b~-hu h ~y-pa~a ~d Hi~oAdo Road. l~ ~o ~poo%te ~ ~s~ly ~d ~ t~ ~e l~ ~ ~th al~a of t~ ~p~ $~tA ef ~ ~ ~ee~. ~a, ~le~e ef tho ~or a b~ldl~ used ~ ,no~h ~tLu ~mid~i~ ~a~led Am bua~om in ~lth~ o~ w~d ~a~r~e~s uae ~l ~e~eee ~w p~i~ted. t~e ~Mm of h,l- s~lle~, eml. ~ ~ ~n~ t~ ~toM of odd lend o,xpleSned that ~.u~Xd~o Donov~ end ~ etlM~ moll etc. ~ ~oes. s as~ A~ehtteet m'e tm~e te anmfer X~, l~ha. ee em %t~l.X;m%d~ Remd. ~ "'1,~', Zmuma m~_~$em~ ~e/am, J.f~'lJa~ tim m~ie~l~ eash and asa~ and u auld be epea unti% da~k, helm and m be. mu tAem, o neu~ end Shall mae ~da t;he ~,m~ym ~m ~ umm.l~d b~ tim ~oamd. MM uex~ ~'e~ulaA. mee~ns. ~. hinnan made t~ mo~len, oeoanded ~ ~. ~MAske and vo~6d unanlAc~ol2. ' 10. uot~en sat, l't'uno ~v~, , J~oT*'t~ AAdoVoIPj MASS, end m eememe4e,%a~eemmte .¢~fmmjmm~%, T~m~m %ami b* mlm~ X3. a eem~Lt'~ed copt er ~ho £em~oin~ oep~e of ~ho ~Aee~ er oread ~eun oel~ln~ feg~lt tho.~ in tho seuo .olaoaf~eat~ea ef mead tho eemmre&oX tim be~l~ pe~tS~ ,boeeJl8o t~o FA~ Board of and tha~ ~teet~ e~ ~i~e 1) e~tbg ~a~w~mt.' At ~ ~oettn~, eounoe% ~a~ a~l&ed ~or a ~l~,~tl ~t t~ vas ~ ~~ P~~ ~~t to t~ Z~ ~%-1~ ~ted b7 tM T~ at t~ 16. u.~t~ned; %~eheXan F. %?, ~j t~n~ ~t~a~l% b~ ~-~r~ line of ~te~, ~7.~ feet te ,~ I~ p~ ~~ ~ ~1~ to ~ t~ ~ it t~ ~te~ee~t~ of the ~~ly pa~a~ ~e ~~ by t~ eaa~rl~ line ~ ~ ~8ed to las~ s~d ~ t~a~ aB ~$ ~a~ ~be~ o~ a "17. ~ ~~ ~d uso o~ 1%8, ~he~ vas no e~bat~tl~ ~e d~a~t7 or ~m~lbu~l~ oF said ~a~i~ ~, ~ &~ ~ to the ~19. SeiCheP t~ PetitL~ refe~d to ~Xn ~s dofeot~ve or ~v~d %9. oons~lt~/onallt7 of tho aoni~ eeqll~ of tho .tam as a vholo llpMs ~,uoh a oouton~l~n b:~ a land ovneP ~ ~ ~r~ ~. .~ p~e~ of the t~ lo no~ ~~d. ~y ~d'C~% ~~ v. '~lt~o ~ pu~eoe of ~i~ %qishti~ ia ~e ~teetl~ or ,t~ b~t~ oafs ~d ~!t~ ~1~ In u~ to l~ve.' O~eo e~ted. "i ~it; or ~ ia J~tifted ~ ~tl~ ~e p~ ' ~ out ~n t~ m~~ ~ t~ ~e~l o~ ~ ~blle ~q~ ~ aeti~ ~d v~ ~ ~o ~lo~d a~ ~al~ M~om~ ~60, at ~6~. ~t ~ eaid %n t~ ease ~ ~eetov v. Cm~%~e, ~0 ~aao. )A~, at ~ "Oo~tw o~t wet ~ t~ deeloion o~ p~e o~loor~ ro~t%~ in ~ ~ to a ~ ~bitr~ ~ X~at~a~ ~e~eloo 20, ~aaeadet, t~ leeaSAea, else md eha~aete~seiea ef the and uso of the ~~ lead i~ the &mmm,~ vielu~Ity,, v~ ~el~ of t~ a~lty ~d p~m ~o~-~ t~ Tm violaS,ye of ~ ~tm ~d ~ t~ ~l~nt~ e&~ ~ t~ ~te~ed~ Wovouhe~ 1~) 1~0 ~'e~ Beaa"4 :Lee el' eeuroe~ Ga& ~ ~e Iai Vso s~.., t'K)6, e, 580, SI, ~o ~e p~opooed ~ emutee~4Aea, very Aeee~g'~y, I advise ~o~ ~a% ~he Te~B ia ~o% an~o~Ased above ee~ of~eia~ eeuoe~u u~h ~he prolcon ~n quoe~Loa. t~e eome~ of Seeeml S%ree~ and ~lw~lel~ haw at, atdd. andl mm,~pu, queeklminMie arfiJUa~w. Tho ..,d, mnbe~ or ~'oqu, lom'd ~ waq, ibmn~ et IPebJqmtT X m.e us4. fM, Gat w~,eson eXouo, diJ,eurl, eneM.oed, and *da.~ n.~ :LegdlF m G~a%l,w~us tho buAlJL~ ~a erder ~e detee~ne l~ 1% al,Pre~zl o~ tho plea, believe it v~u3d be bette~ 'teun planaAng" ~e have tho propeee4 d~we~ ~ fol~tb SSt~,, vnleeo ~ ua, e el' ~ l~,md ~ropoeed bi' ~he j,e~L~eno~' eeus~,,J seu~ m "~.a~e~al oelqrleee' ~nelude se~m~mge ~ae~l~tAeo, G,Lo e, 41, SOl~, e~ ~ et~aSa ~ue~lm appleseed b~ b Plaa~ ~ea~l as a eer~%~ea lu~eedeu~ t~ %he proposed vi~l~ ArnOld He Sali~baJT ~e~ ~ieh for --ereatt~ ~l~ ~ have such a l~e_~y.n~ be ~~ prier a strictly ~bllo ~, ~o~ ertl eg~e~l to ~y o~r ~ l~ ~blie ua..,.,~ ve~ tm~y ?o~n hildin~ ~ear~ of l~bll~ ~e~ks Town Buildin~ earlier Teal ?m MI DeaL. - I - ve~ tnd~ ~eeA~ ~ ~a_ 1~ el' ~,, ~ Mature. ~1, ?~b (1~), ami % emil% Yea mar llm~ havo G~e mmm~ pever ulder ii,J! mid 1~11 4~' ~ er more ~ shall ee~m~tar~e a J~tfpJ'~',," Ver~ %~d~y M, le~ ~ ~weat% ~ ead~ week, under ~o pro~ta~eaw of~ O.L, ee board e~ seleebln. Q.L.e. ~, $~(i)* (See, ~lme, Dear ~r~ ' te~m% leto G~emm ifa ~ ~r ~r duty Amel4 n, ~ Sofh Andov,~ (Zeainf:) Doer4 of* Ippoab ~17, ~e~, I ailvt~e ~,~a %~a% e~ ~ee .~4 be gi?mm, to %1~ eppea~, epee t~o la,est moe~ds ef tbs - } - - .5 ,- ?mm o~ ~e ~r~ o~ A~ls, for ~ ~i~ o~ ~t ~. aruelt a. saltsbu]~ Julrl~, 1959. N, Bannon, Chat~mm'~, tndo~r ~n~g In the event t~t ~u ha~ not yet h~ it ~ to ~ ehould ~ow ~at a ~o~t~ adored etatu~ ~ eh~8~ the the ~blie notice te be ~ by ~ ~, ~ti~ ~ ~blic h~ ~ ~te to the ~ ~Law. Se~i~ 1 off ~a~r ~lT of ~e A~s of 1959 ~q~ t~t ~eh noti~ ~ by ~l[~ti~ a~ a ne~r of ~eml ~~ ~ the . · in each of %~ sueeeset~ ~a, the fi~t ~li~ti~ ~ not Ieee t~ty~e d~m ~fo~ the date of such he~ . · · · e ~is lawns a~d on ~y ~, 1959~ ~d ~ ~e Vet7 truly ARNOLD ~. SALISB~JR~f, Xo~ ~otmsel. Daniel O'Leafy, Chair~n. ~o~h ~r, If it ha~ not a~ of the ~c~t ~t of ~e~l La~, O~er ~A, the ~ui~ta aa ~ the ~blic noti~ u~ apes o~ ~titim~ fil~ ~th ~eti~ 2 of ~r be~blish~ ~ a ne~r of t~ eucees~ ~ka, the fir~ ~b~ti~ ~fo~ the ~y of the hea~." ~is ~at~, app~ Very truly Four~, ARNOLD ~. SALI5BU~/, ~o~ ~el. ~s/s :~z,~Ith, $ .aciflca?.y :Jtat~s that !'~s cl~ d~::$ ~t ~ ~ ..... ~ (~',.:... c. , ~. ~.//, 16~) doos not ~e~ ~o ::~ve boen ost~bl!~od ~o pPovi-!e fo~ ti~ pa~ of ~: c!a~ ~d · u~e 9, ~ sorth Andovor, ~aeoaohuee%~e ~entleuen t You Aav~ r~fom~d to mo, fop eomuent, tho one C~l~ne ~w~u, of ~e~on, ~ u~n ~n allo~d d~e ~ ~r moor ~ele ~8~ on or a~u~ ~b~ ~e ~o~t of t~ els~ Xo The att&shed correspondence ~nd~oa~es that on oa~d date, an e~ployoe of the H~way Surveyor #basked tats & oar retXetared to Car~lXne Dawnon ,....... when turu~n~ a~ound at Old Clark ~tree% and Sutton St~ee%. b~eakin~ a tail ltSA% and 8e~a~hX~ a fende~." A le%%e~ f~ma ~he Highway ~ur~eyor, dated ~ay 28, 19~9, in answer to ay letter to his dated ~ ~0. 19~9, verifies th18 all®~ation~ he says t~at hie ~ployee va~ alone at the tl~e and oheekln~ on send,Glen of the roads,..' On YAy 2~, 19~9, I ~e to hl~ ap followoJ "! Jud~ fr~a youP letJor t~t . o. (the employee).,,, ~t tho tine of tho accident ~n ~ueetion, war on Town ~lSh~ffky Depa~tnont business, us unaccom- panied, a~ ~as at fault. Please disabuse me of these ~epreoslces if I au in er~o~.# H2$ reply to uy lo%ret of ?a~ ~9 fails to ~ake any ~en%lon of th~ Dawson ola~n{ ~ au le~ad, the~elao~e, to asswae the truth of my 8u~poel%lo~e. upon the lo,al responsibility of the Town{ I do not purport hereby to wake auy recommendation a8 to wbothe~ or nots aa a practical matter, an adJus~en% of the ela~ should be e£~eoted. In the circumstances orated above, ! adv~mo you ~ ~ove~l~ ~le, ,~d at len~ In tho X~t~ ~~ ~t ~v~noe. ~5 ~as,. ~. ~9 ff (1917). Is ~t a the absence qf $~el~ 8~tute ~8~ Ilablllg. lo ~ l~able fo~ ~e ~l~s acts of its officio ~ ~t8 In selection wtt'h ~ ~uX~u8 ~rfo~ of ot~dtly -2- Perhaps you~ hrd should COnsider the advisabtli$~y of ~l~ in the ~t fo~ t~ 1~0 ~al ~ ~t~ ~n A~tele p~senti~ ~ question off w~t~ t~ ~ 8~d acc~t ~ p~violon8 Of ~,L. Q, 41, a. I~A, Aruold H, bAiebal~ a.~llea~leas, ea ire neette, until af~e~ Septatber ~, 1~0. 'enee~ ~th t~e eemmnt e~ all ef ~e ntbe~ ef the ~ beaed,...,e 5oard of Appeals l~orth AudoveF, l~aehaeetto va~ianeo of the ~effaireueato of {6.~1 of the ~0ninf IS~.La~. By an application filed with 3~ on Oet~be~ he sought a varianee to perfdt him ~ubdivialen of said u~ ~e ~ ~r~ of.th t~ ~p~ bra. ~ ~, ~ its d~i~ dat~ ~ ~, 19~, d~ his a~eat~ ~t he "Ms ~ ~ ~e~t ~ ~e ~ for On Deaenbe~ 18, 19,q9, the appliean~ rile4 ~ ~ ~ id~ ~i~m, ~~ ~ a M~ ~ ef ~e ~ ~ ~ ~e~ a~ h fact t~ ~ d~~ ~e ~ h ~e~, e~ ~ u~ ~e of ~e ~.t ~ btm ~p~ ~ ~, ~e ~m~ of the ~d ~ ~ ~~, ~t ~ ~d~ ~t~ ~ ~ de~~ ~ d~of~o~~, 19~. ~a~eh~ this t~ b~use of tb ~~ of~ of the ~ B~, ~ The oee~d applieatio~, identioal with the flrJt~ ~ not have been entertained by you~ Boa~ without the eenaent of all of tho meuhors of the Plannin~ ~oard. 8oo G.L.o. &OA, $~, iseeepted b.j' the ?em - 2 - gFau~ a ~LTteaee L~m mT e£ t~e t~ao of eu~ 3m~4 ~, J~' 3,'lin L~And t,h~ ~e~ the relieving ~aetm mdJt{ the noa-existmee o£ aaF mae of tJMm im al", BlJ~man v. Board or Aoooalo of ~hmotable. 33& Hams. &A6, &~O (~956) ~ L ~at ~ ~ eeFt~An eeuditAeed, espeeSAll7 af~m~ t~ La d~.ie~ the ~ im heated. 2. That, mgm t~e waa-Aauee to fraxted, the al~t~ll furra~ subotant~al hewdshtp, £inaaeial er et3~srutae. Provided the mmbers of the PLuming Bea~d unmlmoua~y eeaoent Fou~ BoaFd aa~ Wopo~I7 eatortetn aaotho~ applieetieu foF the in ~uostioa peto~ to Xoveaber 2b, lg~O. O.L. ~ AOA, S~O. Lf md Seetiou 4 of said o. AOA all~ds & to~, lu its saturns ~-lav, to al ~ the the ~, ~he third ~nciple distinetien bo$~oea the tm poMo~ lo that ~hile, in orde~ to grant a ~ you~ Board mst f3m~ find the four faets epeeified and subject ou~y to ~ha%evm- l~nfl_tatien~ the by-Law ~mp~8o~, you feel that should iseaeo truly ~.-nold S. Salidm~ Tom Counsel all bl~a.~ bida, O~ tO ~ny of tho o~:~ bldCl~. said m, ~ i~ t~w a~e that all tho neoe~aa~ ~;o, oil ~ ~ it ~1I, Your le%&e~ the ~ for a~cati~ ~ a ~% ~ in~ea~ ~F ~ ~O, ~ m ~o~ ~ ~diti~ ~ Of his ~s ~ or ~t~ ~F the ~le of ~ell ~ithin your ~ t~ a~, ~, the th~ ~ t~ ~i~ ~ the ~ce of th~ To~, It f~llow~, off course, fha% if lm,?roper f~r y~u ~ aut~ori~e the p~me~t Of :z r,et~,,~ e~p2]x}ye, e, dt~rin~ 1959, im lieu of very truly Ma~ X2, 1959 ~o~th And~ver Planning Board Te~n ~ildi~g- North Andover, ~ae~aehu~ehts Gentlmea: ! am i~ receipt of F~r lette~ dated ~Ay A, 1959, a~ of the file of eorreependence aecc~penying the m~e. It appea~ fr~ that file ~ce, ~ ~e ~ 1955 (~e of its e~n). f~ ~th ~a~s ~g~, title a~ ~te~ the ~ 8a~ F~, ~, ~ ~ for the ~~ of i~ ~ not d~ ~~ ~ ~ the ~se~ of t~ ~ the ~e, for ~ur ~m~s. I haw ~ To~ ~e~ ~e ~ple~e file l~t~. ~M. ~*s of ~ok St~t, ~ I ga~ f~ ~t ~2isfl~ that ~ ~ ~h~ the file in ~ for by ~. ~, ~d i ~te ~at ~o te~s me that his s~ Since the Selectmm ~ eaa er~oree the be~, amd ain~e ~ t~e ~ a~i~ the~ ~til th~ ~o~ ~at ~q~ta have no~ ~ met ~ ~. ~o, i~ is o~a t~t I ~t, as ~u ~ ~ ~ pl~. IndeX, no ~ ~pe c~ ~ ~ ~~eea w ~ ~OW~t "~is m~" ~y ~. Accordingly, I suggest %ha% your Beard let me have, aa ~eon as p~aaible, the follow~ imformAtien: 1. ~ hat requirements have ~een prescribed by the Highwa~ Surve~r re~--~-~'~ to Woedstock S~eet? 2. ~mi~h of these have been met by Mr. Marin~? 3. What requirements of the Righ~ay Surve2or relative drainage must still be met? What will it oo~ to meet ~. ~t requirea~ts of the P, tgh~ ~auw~y~r relative ~ must still he met? b% will it cost to meet thru? 9. Has Mr. Marine installed, as sho~n ~ the pl~,~ filed with you, 150 feet of $" VoC. ~anitary sewer pipe and manhole? If is the estimated cost of this 6. Has he connected the same to the existing ee~er now under Li~de~ Avenue? If not, ~hat is the estimated coat fer thi~ ~rk? Until specific answers to all of these que~io~s a~e in mY there is nothing that I ~an d~ with relation ~ this pr~ble~ If Board is dissatisfied with l(r. Marine~s performance, it must know ~h~, and I ask onl~ for the reasons for y~ur dissatisfaction, in the detail esoen~ial for ar~ sensible approach t~ a p~'oble~ ~ich should long ag= have been solved. I am se~ding a c~py of this letter to the Selectmea, for their informatien. Arnold H. ~alisbury To~ ~un~l Board of' ~lmctm~ 1Tort,1'~ Andov~., L~msaelmasett;s C~nt lemen: I have you letter dated April 30, 19~9~ with its several enclosures, one of which seems to requl~e opinion relative to ~ power to '~waive~' the previsio~ of the Pe~ao~l, ~,'age ~d Sal~y A~nis~atlon PI~ of the T~ g~n~ event.s pay. Speci~~, advice ~$ to y~ authority t~ aRp~v$~eh~y_~ of the ~'~To~ki~ ~o~e~n~' of the ~'~ ~o~ witl~mtandlnM tho man~te o~ the ~-~w that sha~l ~t ~ paid to .. ~ a~ pe~son classified of th~ I.T ~ ,~ehedu~e This ~estmictive p~ovision was.added to the PIa~ by the action of t~e .o~a un~e~ A~ticle I~ (D) of the T;s~z~rmnt £or the 1958 Az~uual Town ~-~etimg. The By-Law (Sc~hedule O, ~ringe Benefits, Ove~lme) ~e~Its any of its p~ovisio~ relat~ to ove~t~.~ tm be ~w~ived by the ~o~d of ~lec~em by its ~ a~ ~ ~e event of eP~o~2 supplied). I take it t~t there ~a no Guestien of ~'p~lfe emer~.en~ with which we ~ed ~eaently eence~ e~ae~vea. Acco~dlngly, I advise you t~hat it lies with~ you~ ~ower to approve the ~ay~ont of overtime pay ~wo~k!n~ fo~e~en" of ~h~ T~, ~b~ect, home,r, existence of ~ch "s~cial oi~c~s~ces~ as, ~ y~_J~nt, ~ar;~t such action ~y ~u. _t ts the ele~ inten~ Dy-~w t~t you : d octa~ , in yo~ vets aut~izi~ overt~ pay, w~t p~esently e~st~ -s~cial c~c~ces roqui~e the ~l~ti~ of the '~-e~t~ 2revision" off ~an. ! si~ld sup~se t!mt you c~ld pot p~~ aeti~ ~ess ~u h~ve ~o~ation w~cn was the T~ on L~ch 15, 19~8. V~ry trOLly y Ou~S, A~n~ld H. Saliabur~ Tewn Counsel 1959, vl~ of i~ [n p~t att~i~lt~.bie, th~e i~Iay ~ a the way ~w~.e~e the el~'~iman~ alleges t[~$ ~[e elipp~ ~md Fell. w~lich would ba~ he~ f~cmf ~y IeSte~ to y~ dated ~ti.~ ~ec. ired ~ c~.i~ the incident, was writt~ $~ae twe~-~e ~ af~e~ h~ a!~e~d ~all. ~ce the t.~y defect ~on wi~ch e~e r, lies eon- ~ii~to<~ ~t loa~ :~p ~att~te, ~.~.~., c. ~., s, !J, ~clfle~lly ~e~i~ ~ a notice to hove bm'm ~ivon rithin t~ action ~2~in~t the V~y t~ly Y~'s, Town ~maneel Boax~d cf ~ablic WOrkS Town 33,z1.1, diz",,,,g Nox~h AndOW'e~,, ~s~aeh~tts L~y your letter to me date4 Ap~.~ 28~ 19~, have in£o~med me of the following facts: e~tension of the sawe~ ~st~ ~ ?le~an~ St~t ~imed at the 1957 ~ual T~n ~e~i~ was e~le~d, ~d ~ $~$ date y~ ~ard filed with the ~as~eP the ee~ificate o r~u~ed ~ St. 1~6, e. 3~, a, 7. The latter f~ith ~ ~,ie written de--ds upon the o~e~a of t~ aeve~ ~nefite~ ~o~x~a of their assess~nts~ ~>ne of those ow~e~a failed= within She three month period follo~ing the semvlee ~pon ~Aim..of ~_~ to request in w~iting that your Boa~d apoa~.on /~15 ass?aa merit into some nt~be~ of equal pa~ts, one such part tobe a~.¢led to the annual tax upon his p~opex~y fox* She next for each meceeding yea~ until all of such pa~ts, ~ogethe~ with ~uterest, should have been paid. ~e has new, by letter da~ed April ma~e s~ch a request, and 2~A LuquiPe, "how we may d~ thiS at this ~e :~ovialons of said aecti~ 7 ~elative to the apportto.r~ont of assessments a~e ~lely fo~ of the assessed o~rs; t~y ~ke it m~dat~y fo~ to take cert~n desisted acti~ if p~e4 by ~er to do so v~th the p~ec~ibed ~riod of t~ee ~nt~. Th~ do not ~po~t to,~o~blt y~ f~:~ t~ ~ aotion, in y~ ~liscretion, ~.~ tF the Assessors, the T~ ~ud the T~ea~e~ ~e wi!l~ to take t~ir p~s ~ the apo~tio~ent proemS, in ~! other ~ses. In my opinion, it presently lima withim ~ powe~ to comply with the request to which 7ou ~efer through voluntary agreements betwee~ you~ Boa~d~ the benefited and the other Te~wn deportments affeoted. ~ a p~oeedume, netthe~.p~hlbi~ed by nM inconsistent with the purposes of the 1908 Act, would clearly not be against public peltey~ . in any way advePse to the ~est interests of the Town. .W~llowe~ at the specific request of the only real pa~ in interest, its regularity could be questioned by no one. The only question Which remains~coneerns~he ~n~ .in~ance of t_he lien created by section ~ of said ~hapte~ 3~0, at toast un~ il the full amount of the assessment in question, plum in~erest, s/~all ~ve be~n p~id in full. ~Tntle that s eoti~n p~ovide$ that t~hat lien sd~all continue, 'in ease of apportiomm~n~, until the expiration of two yeaPs f~o~.~ the time when the last in~ ~$]~aen~ is comr&ttted to the c&!lect~,' it might be am.~g~able that. ~.~i~$vi.s.ten applies only to mandato~ a~ortionments made under sa~d sectzon 7. I have in mi~.l, ef course, G.L.c. 83, s. 29, which wuuld p~eaerve the lien, Lu a~uy event, u~util some recorded alienation of the benefited estate, but in ~y optnlen it would he wise to t~l~e steps to assume the continuance of an enforceable lien so long as the Town may have need of it~ Aec~n~dtngly, i sug~eat: 1, That y~um Boa~d fimst ~etermtne whether, in all the circumstancee, the requested apportionment should be made. 2. That, if ~ conclusion iS that the owner's request sh~ld be granted, you ascertain f~ma the As~es~e, the Tax Col!octet and the Treasume~ whether they will be willing, as a matter ef interdepartmental cooperation, to p~eas the progosed apoortio~ment in al! ~e~pecta as though it had been made as the result of a timely request unde~ said section ?. 3. That, if this ag~eemen~ is reached, the . appo~tionment be made as ~equested, but only follo~t~ the. o~ner,s execution of a document, to be ~ecorded at the locallEegist~y of .~.~eeds, stipulating that the ~mesently existing lien upon his estate shall continue until two yearns aftem the last instalment of his .~0o~ti~ned assessment shall have been con~.Itted. '~f these suggestions meet with youm approval, and if you ~eaeh the ~t~d sugEested step, I shall be glad ~o p~epame an ap'~r~p~iate form of stipulation fo~ the owner's signat~1~e. truly yours, A~nold H. Sali~u~y Town Counsel ARNOLD H. SALISBURY, TE]WN IS:E]UNSEL TOWN OF NORTH ANDE]VER, MASSAP-HUSETT-c:; John J. Lyons, Town Olerk Town Office Building North Andover, Massachusetts Dear ~ohn= Pursuant to our telephone conversation of yesterda~ morning, ! suggest the following form for your official record of the vote of the Town upon Article 1 ~-B of the Warrant for the 1961 ~.ual Town Meeting~ VOTED~ That the Personnel, Wage and Salary Administration Plan be amended as proposed by the Article, said _amendment to be effective as at May 1, 1961, and that the su~ of $20,000 be raised and appropriated for the purposes of said amendment for fiscal 1961. This is my recollection of the Town's action upon the Article in question. If yourS:: differs in any way, please let me know. Very truly yours,