HomeMy WebLinkAbout1980-04-22April 22, 1980 - TUESDAY
Special Neet ing
The BOARD OPAPP~LS held a Special Meetin~ on Tuesday evening, April 22, t930
~t 8=00 P.M. in the Town Office Building (upstairs). The following members were
present and voting: Prank Serio, Jr., Chairman; Alfred E. Frizelle, Esq., Vice-
Chairman; James D. Noble, Jr.; Richard J. Trepanier. Also present were Assoc. Members,
Walter F. Souls; William J. Sullivan; and Augustine W. Nickerson.
Member Noble assumed the Chair for the following matters:
DECISION: ~RIC HOPE (Trep~nier, Sullivan, Souls, Noble, and Mickerson) - ~ brief
discussion was held in which Trepanier commented that the area, after site inspec-
tion, is rather closed in and what the petitioner proposes will not adversely affect
the surroundings. Sulliw~n mentioned that it is strictly a business area (ex. Trombly's
~otor Coach, the gas station). All the members had viewed the site. Noble stated
that the proposed ~ddition will solve some of~the problems that occur from time to
time on the site. Motion made by Trepanier to GRANT the petition as requested. Souls
seconded and the vote w~s unanimous.
DUBOIS & CIARDIELLO - it was decided that inasmuch as all hmd not viewed the locus
the decision would not be rendered until the May meeting.
SCOTT'S PO5~D - r~%TTER OF COURT CO~PLAI~T BY PETITIO~.~R (regular members sitting):
Present: Reg. Warden, counsel for Scott Follansbee (Andrew Circle Realty Trust);
Scott ?oll~nsbee; George Chongris; Warden's co-counsel; N. A. Town Counsel, Jo~hn J.
Willis, Sr.
T~n Counsel opened the seosion by stating that on April ~, 19~0 at Superior Court
in Newburyport Judge Brady, after discussion with counsel for both parties, wished
all to hold a meeting to see if there could be a resolution of the problems that
exist. He then asked Warden if he had any suggestions ~s to how these problems could
be solved - Warden: the BOARD had some concerns with the amount of gravel to be
taken out, when it is going to go and where it is going to go and we ~re prepared to
~ddress those concerns. We are prepared to address each of the factors in the Earth
Removal By-Law. Town Counsel: let's start with the position that this BOiRD is in
now; there has been a denial of the permit and how do we get out of tk~t denial?
Warden: you are in litigation at this point and it can always be resolved. Willis
then mentioned the procedure of asking the Planning Board for a re-hearing. ~!s. rden
stated that they did not want to get into thgt and felt that it could be resolved
mu%der a stipulation in the courts. Willis then interjected that there is a third
party involved here, the objectors, how do we solve it? Warden: if the B.A. is
satisfied with the terms of what is going to h~ppen out there then that is how it is.
To~r. Counsel: what happens judicially to the parties who are relying on the denial?
Narden claimed that they are not a party ~o this. Further appeals under the statute
were mentim]ed in that the time period had er~ired. ~arden restated that it didn't
matter because the objectors are not a p~rty to this litid'ation. Willis stated that
as oozmsel for the BOARD he found it very difficult to say we can listen to input from
only one side. Marden retorted that ]Allis h~d told him in the Judge's chamber~ that
it could be worked out~ere, it is the same matter, and he was ~der the impression
that we were going to/somet~ing constructive tonight. To~ Counsel repeated that he
di~a~'~ know how to do it. ~!~rden: if the p~rties c~n %gree on wh~t they w~nt to do
~hen the ~:dje can issue an o~.er. Further, the ~0ARD represents the To~n ~ud its
citizens. Willis answered that he could not reconcile deciding on z reversal of
decision just becsmse ~ ~%ppeal wa~ made, no circumst~nce~ ha~ been chanced. On
evidenti~rj~ hea~ing it i~ up to the Judge to ~ecide ~nd I would feel a!ot more
fortable with th?.t because then the DOARD would be ordered by the Court. Me proceeded
'%2~ri! 22, I~90 -
to say that the terms that the BOARD had suggested when in the J,~.dge's cha~aber3 last
week were unacceptable, Le,,come back to another ,.C-%ring ~nder the new ~y-Law. Marden
answered that he is willing to discuss an~, concern~ this BCf~_ED has on the removal of
that gravel. Town Counsel then in~ired if they would put b:.~.ck the Eravel that they
have already exceeded ~md ~',~smden said no, that i~ a w:,~ste o£ everybody's time. Town
Counsel's response was thmt obviously Marries w~*a%ts w]~;t he wmutr~ without limitations.
Marden replied that they hzve ,~ right to t~e it of~ the site and that's reason%ble.
Town Counsel asked if they would be willing to hoz~'o a p~blic hearing to the BCARD'S
stipulation as to how that gravel will be removed - Y. arden: it is ~ public hearing now
and procedurally it doesn't help ~nybody. Willi~.~: at le~mt it %~ould give the parties
who relied on the decision a chance to be he,rd. Mr~rden: we can have the trial, neigh-
bors don't h~ve any rights there. At this point S~l!ivan asked Marden if it was so that
he was not in f~vor of two of the three alternatives gi~zen - ~Iarden ~greed and the only
one left was a trial.
Willis stated thai he had discussed the particular problems with the members of the BOARD
and legalities involved and told ~rden that they ~till h%ve to meet the requirements
of Sec. 10.~ which involves the %butters. Marden ~ti!l contended theft the ~utters had
their sa~~ at the original public hearing. ?rize!le brough~ up the fact that the statu-
tory period for appeal is over and this preclude~ the abutters from their right. Marden's
position is that when a matter is in litigation the pattie, have the right to resolve it.
The B.A. has the power to settle as a matter of law. Town Counsel said but the BOARD
doesn't have a problem, you do. Marden's co-counsel z~ked if Willis would be willing to
sit down with those people who voiced opposition - if you would be willing to come here
am a public hearing~ said Willis. Willis and ~rden could not reach ~ agreement.
Y~%rden stated that he would call for a trial.
Meeting adjourned at approximately ~ P.M.
'¢ P~ank Serio~ Jr./
/ Cilda Black,tuck