===OCR macOS Vision===
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Board of Selectmen: Jamie Toale, Chairman; Robert Ebersole, Vice Chairman; Damon
McQuaid, Clerk; Phyllis Luck, Member; Katey Adams, Member
Also Present: Heather Lemieux, Town Manager; Adam Costa, Town Counsel; James Marino,
Police Chief; Adam Burney, Land Use Director; Elaine Peterson, Executive Assistant
The meeting opened at 7:01 p.m. with the Pledge of Allegiance.
Mr. Toale announced in accordance with the requirements of Open Meeting Law, the meeting
was being recorded and broadcast over the Lunenburg Public Access channel.
PUBLIC COMMENT:
Ms. Luck reminded everyone the next Lion's Club Pancake breakfast will be the first
Wednesday of November due to the Lions' Club getting Thanksgiving baskets ready for
distribution.
INTERVIEWS/APPOINTMENTS/REAPPOINTMENTS/RESIGNATIONS
Resignation from Cultural Council- Christopher Letarte, effective October 7, 2018
Mr. Toale read Mr. Letarte's resignation aloud. "After plenty of thought on the matter I find it easier
on my mental health to resign from Cultural Council. This is my resignation letter. I'm sure I will find
reason to sit on another board in town or be involved with other things but for now I just need to step
away."
Cultural Council Interviews-
Mr. Toale announced one applicant, Daron Massey, 300 Holman Street, has withdrawn his
application in an email sent to Ms. Peterson, "I've reviewed the terms of the Massachusetts Cultural
Commission Grants. The MCC gives examples of possible conflict of interest situations in potentially
being on a commission and applying for grants. The possibility for conflict of interest being present or
absent is dependent on various factors regarding applying for a grant. I do not have the information I need
to evaluate if my application may potentially lead to a situation of a conflict of interest. I would like to
request your withdrawing my application for consideration to the Cultural Commission at this time.
Please remove my appearance at the Board of Selectmen meeting tonight due to the above.
Tyler Hathaway, 872 Northfield Road, stated he moved to town about a year and a half ago, he
previously lived in Ashburnham. He is a digital designer (websites, etc.) and an illustrator. He
felt this was a good way for him to get involved in the town.
Motion: R. Ebersole
To appoint Tyler Hathaway to the Cultural Council with a term to expire June 30, 2021
2nd: K. Adams
Vote: All in Favor
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The Board thanked both applicants.
TOWN MANAGER REPORT
Summer Street Project Update from MassDOT:
The Contractor has reclaimed the roadway from Rocky's Hardware in Fitchburg to the Baker's
Brook Bridge. Emulsion injection of the reclaimed material is scheduled for October 12th and
13th. Paving of the base and intermediate courses in this area is scheduled for the week of
October 15th. The drainage trunk line has been completely installed in Lunenburg. Installation of
the trunk line is progressing in Leominster, but was slowed last week when ledge was
encountered. The hope is to complete the drainage main in Leominster by October 19th. The
Contractor will then begin tying catch basins into the new drainage main starting at the Baker's
Brook Bridge in Lunenburg and progressing towards Leominster. Additionally, after paving, it is
anticipated that curb and sidewalk work will begin in Fitchburg starting at the John Fitch
Highway intersection and progressing towards Lunenburg. This work is subject to the
availability of the curb/sidewalk subcontractor.
Given the condition of the existing pavement on North Street in Leominster, MassDOT has
decided to do some patch paving prior to winter to alleviate further deterioration of the road this
winter. MassDOT has also decided to reclaim the North Street portion of the project instead of
milling. Reclaim of Lunenburg and Leominster will be done in the spring / summer of 2019.
Update on the Town Hall weather vane:
The Historical Commission provided us with an estimated replacement cost and once we receive
a formal quote from the vendor we can submit the property claim with our insurance company.
Beyond the actual replacement of the weathervane, the DPW Director has cautioned that the
structural integrity of the Clock Tower and mount that the Weathervane would be installed on
need considerable work. This will need to be reviewed and may be a capital project request in the
FY20-24 Capital Plan.
Business-Town Partnership Update (TM Goal #1 and #3):
The next Business Town Partnership meeting will be Thursday, October 25th at 5 p.m. in the
second floor meeting room at Town Hall. We will be reviewing a draft of the Business Brochure.
Meetings and other announcements:
• Town Counsel Office Hours: Tuesday, November 27th 12-4 pm; Monday, December 17th 8
am-12 pm.
• Municipal Aggregation Electricity Rates: The new rates for residents that are municipal
aggregation customers with Constellation NewEnergy will be .10998 cents per K Wh starting on
their November meter read date. Our municipal aggregation consultant, Colonial Power,
procured this rate from Constellation after going out for competitive bids. This rate will be fixed
for the next 36 months. As of December 1, 2018, Unitil's electric winter service fixed residential
rates will rise to 12915 cents per kWh. Residents can opt in or opt out at any point. We will post
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tep past a cany posted.
• Town Mechanic
• Assistant Town Mechanic
• Heavy Equipment Operator/Laborer
The following is a list of vacancies on the following committees:
• Agricultural Commission (2 regular vacancies, 2 alternate member vacancies)
• Architectural Preservation District Commission (1 vacancy for a design
professional/craftsperson)
• Cultural Council (multiple vacancies)
• Public Access Committee (2 vacancies)
• Zoning Board of Appeals (2 Associate vacancies)
CURRENT BUSINESS-
1. Warrants
The Board signed an accounts payable warrant in the amount of $329,577.20, a payroll warrant
in the amount of $779,721.38 and a payroll deductions warrant in the amount of $161,511.81.
2. Committee Reports
Ms. Luck reported the Storm Water Task Force will meet on the 25" of October. The School
Committee meets tomorrow. She will be attending the MMA Selectmen's Meeting at Devens
this Saturday. Mr. McQuaid reported Capital Planning meetings will be November 6'h (School
and IT Depts.), November 20" (Police & Fire Depts.) and November 27 (DPW). Mr. Toale
reported he will be attending the MPO meeting tomorrow representing subregion 3.
3. Discussion about Special Town Meeting Warrant articles; votes on
recommendations may be taken; Sign Final Warrant
Ms. Lemieux referred the Board to the final version of the Special Town Meeting warrant. She
referred to the article regarding the American Disabilities Act (#10); it expands the definition of
term of appointments, voting power, resignations, how vacancies are handled, provides new
sections on meetings and selection of officers. She tried to mirror what was in other committees'
charges/descriptions such as PACC and Cultural Council.
Ms. Luck asked what has changed in the Salary Administration Plan (Article#7). Ms. Lemieux
stated it cleans up the language on how vacation time is accrued, amends the provision of
carrying over of excess time and changes the payout from the last week in June to the first week
of July, brings the Family Medical leave section to be more in line with our town policy and
defines what is an hourly employee.
Motion: R. Ebersole
2nd: D. McQuaid
To sign the Special Town Meeting Warrant
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WORKSHOP ON BOARD OF SELECTMEN REGULATIONS AND POLICIES
Special Event Permit Policy
Land Use Director Burney reported this was a followup to previous discussions. He has made
some revisions to what a special event is. Draft #4 incorporates all the changes from #3-we had
talked about one property holding multiple events and that becomes a zoning issue. We talked
about prohibiting alcohol and recreational drug use (marijuana); obviously you can dictate that
on Town property. Private events are not subject to requirements of liquor licensing. He is still
proposing special events not exceed four days. Mr. Burney spoke to the Board of Health
regarding restrooms and trash. Restrooms shall be cleaned daily or as necessary and trash should
be picked up per the Board of Health.
Regarding fireworks, the applicant must be licensed. He added wording regarding buffer zones
as requested. He gave some guidance with a little leeway, if needed. The Board can waive the
distance with written permission from the abutter. He moved on to layout, plans and
documentation; what is this event going to look like and how is it going to impact the area?
Mr. McQuaid had concerns about the buffer zone - he did not like the idea of getting permission
from a neighbor to hold an event. This could affect churches, the farmers' market, the band
concerts at the Town gazebo; to assume neighbors are always going to be reasonable is
unrealistic. He believed the Board of Selectmen should make the final judgement. Further
discussion ensued about the setback requirement.
Steve Weaver, 288 Holman Street, talked about a resident holding private events where the
music is loud and over 150 feet away, upsetting people who have to listen to that all hours of the
night. The zoning should be taken into consideration. Ms. Adams asked about repetetive requests
from the same person, where is the guidance on that? Mr. Burney pointed out the last part of the
first paragraph under Guidelines, "Events that recur multiple times within a calendar year will
not be considered."
Mr. Toale asked how do you define a special event, how many people, how much music? We
need to define special event a little differently because when you introduce music or alcohol or
"the public," are they the criteria? Ms. Lemieux stated the original distinction was "open to the
general public."
Daron Massey, 300 Holman St, stated the word he wanted to keep repeating was reasonableness.
We have had multiple popular events in Town. Events are critical to the social and economic
health of our Town. Looking through the lens of legal counsel and land use could curtail events.
He suggested to look at other towns that have noise ordinances and buffers that are reasonable.
Mr. Ebersole stated we have a zoning discussion. When does a residential use turn into
something else that is not residential because of the frequency? What are we regulating? What is
a properly zoned event? Ms. Adams requested a more specific definition of a special event. Ms.
Lemieux saw the distinction as a special event open to the general public on private property and
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we arent concerned about birthday parties or
something like that. With the noise and smoke from campfires from events held at 300 Holman
Street, we can't keep our windows open. By being invited on Facebook and being charged for
those events, that is different than a private party. The zoning aspect needs to be taken into
consideration.
Tom Alonzo, 284 Lancaster Avenue, stated it comes down to what is the intent of this? You need
to balance property owners' rights and protect the neighborhood by creating noise, health and
parking ordinances.
Police Chief Marino stated in Cambridge there is a committee that reviews special event permits.
It is based on the location, any traffic or public health issues, how it affects the public safety;
what changes it is the word "public," that is the trigger for a special event.
Kathleen Wnuk, 503 Holman Street, stated she lives on a quiet little street. People have events,
that is life. But having an advertised event on Facebook is really different. Having people there
you don't know, wandering through the woods, makes us nervous. We are all worried about our
property values.
Daron Massey, stated it is important that we have a reality based conversation about what is
happening in town, past and present. What's happened in the more recent history and what we
would like in the future; to keep to facts would serve everybody. When it comes to noise,
reasonable comes in again.
Mr. Toale stated more work needs to be done. Ms. Lemieux asked what would you like for next
steps? Mr. Ebersole stated he would like to see what other towns have and how they deal with it,
especially the Cambridge one. He noted the proposed noise bylaw addresses noise during
daytime hours. That may address the noise issue. Do we have regulations for traffic/parking
during an event? If there are different standards out there that we can refer to, he would like to
see them.
Ms. Adams requested some simple exceptions listed, like weekly band concerts. Defining limits
would be good too. Chief Marino stated you are already doing this, like with the car show, the
tollbooth fundraisers; you make a plan to cover all these bases, pedestrian and neighbor issues,
traffic etc. Under c. 181, issuance of a license, issues like pedestrian traffic, noise levels; these
are all factored in. Mr. Toale recommended making this an agenda item considering everything
we discussed tonight and publicize holding a public hearing in advance with a public draft.
Board Policies
Section 2.01 Access to Town Counsel
Ms. Lemeiuex referred the Board to the amended language.
Use of Town Counsel monthly office hours is restricted to town employees, board, committee,
and commission members and legal questions must directly pertain to matters within their
realm of jurisdiction and cannot be for personal interests. The Town Manager will assist
citizens interested in submitting citizen's petitions for town meetings by acting as the conduit
between Town Counsel with the legality and form of citizen petition articles.
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seen before signatures are obtained. One concern me as the us an united midity i a
the part of the Town, Town Manager and Town Counsel to assist with the submission and the
language that states acting as a conduit to Town counsel with the legality and form of citizen
petition articles; and opining on the legality of petition articles while it should be on the citizen.
We are happy to work with them but it puts the Town in a difficult position, particularly if this is
submitted on the eve of a deadline. He recommended "may" versus "will," so as to not obligate
the Town to assist with citizens' petitions. I'd further recommend that that latter part of the
sentence, i.e. "by acting as..." be replaced with the following: "and may seek the advice of Town
Counsel relative to the form and substance of these petitions, and their lawfulness and effect," or
something similar.
Ms. Adams stated having submitted a citizen petition before, she preferred "will" versus "may."
She believed town government should be available for a citizen working on a petition, as they
are a member of the legislative body of the town. Mr. Toale preferred Town counsel's wording
as it does offer assistance and welcomes citizens to participate in government, but it also protects
the Town as an entity on a legal level. Ms. Luck stated it protects the Town from increased legal
expenses and it would be nice to have a timeline so it is not submitted at the last minute. Mr.
McQuaid stated you need to have discretion; yes, the Town is working to serve the people but
you don't get to tell a town employee that they are going to help you. Mr. Ebersole stated he was
okay with the word "will," if it's not the legality. I think we should be helping people with the
form of the citizen petition to make it proper to come before town meeting in order to vote on it.
Mr. Costa clarified he is not looking to place an obligation on the Town unless you want to and
also to be sure that you are not placing yourselves or Town counsel in a position to be giving
legal advice to individual citizens. Yes, they (citizens) are the legislative body, but from a legal
perspective you are the Town. My duty as Town Counsel is to the Board of Selectmen as the
chief executive officials. So aside from changing the word "will" to "may' and that is left to your
discretion, after the term Town Meeting where it says" by acting," I removed the portion that
suggests the lown Manager would act as a conduit between Town counsel specifically where it
then says with the legality in form of citizen's petition articles. I had said the Town Manager
may seek the advice of Town Counsel relative to the form and substance of these petitions and
their lawfulness and effect. She is still seeking the advice of Town Counsel but is not acting as a
conduit between the individual for the purposes of getting legal advice.
Further discussion ensued. Mr.Ebersole withdrew his motion.
Motion: R. Ebersole
2nd: D. McQuaid
To come up with wording as proposed by Town Counsel
Vote: 4 in Favor, 1 against (Adams)
===PAGE 7===
(Excerpt from May 18, 2018 Minutes: "With regards to the lighting, there has been no talk about
one candle, what does that mean? Typically the lighting is one light foot per square foot. That is
not in your regulations. I believe that most towns require five light foots per square foot. Your
regulation is incredibly low. If the officer had to go in and could see the people and use a
flashlight to read the licenses, that's not odd.") Mr. McQuaid added part of issue at that time with
the owner was that the business was closed so why have the lights on.
Attorney Costa stated any bylaw that addresses things like lighting and noise is a challenge.
There are two ways to regulate these, qualitatively or quantitatively or both. When you regulate
qualitatively it is a more subjective standard which gives you some discretion. When you
regulate quantitatively, it is more objective. The challenge is do you have the resources or the
mechanism to complete the measurement and to then determine if there has been a violation and
then to enforce the violation in a manner that will upheld in appeal? What Costa sees more often
is a more subjective qualitative standard where it states lighting shall be sufficient to ensure the
public safety at all times on the premises.
Mr. Toale stated one of the reasons he wanted to review our alcohol-related regulations was to
ensure that ours were within reason vis-a-vis other towns or legal statutes to be able to defend
them when an occurrence happens. So are ours sufficient to allow us to enforce them as the local
licensing authority? Attorney Costa stated he believed the answer was yes, he has seen all sorts
of liquor licensing policies and guidelines. Lunenburg's are in the middle compared to others; he
believed they had enough substance, but if you want recommendations or me to provide a more
section by section narrative approach, he could provide that. Mr. Ebersole suggested checking
with the Police Department, as the agents of the local licensing commission, whether they feel
supported enough and they understand the language.
Chief Marino commented with respect to the lighting issue, windows cannot be obscured; we
need to be able to see inside the building from the outside. Officers should be able to see a
driver's license indoors without the assistance of a flashlight. They have had to address this
before. Mr. Ebersole stated another reason we review these regulations is to become familiar
with them so when we hold a violation hearing we are prepared. Some of the discussion we had
is when do you issue a warning, suspension or revocation of a license? What do we really think
is important? He suggested Town Counsel do a cursory review of the regulations with the Police
Chief on what things might be changed and bring it back to us.
Section 4.02 Bring Your Own Bottle
Attorney Costa reported he did a section by section review of this and Lunenburg's policy is
nearly identical to what he has seen in other towns. One question presented to him was can there
be a carry in permit for a place such as Shady Point Campground or some other locale that is not
a restaurant? The easy answer to that is no. Municipal BYOB regulation is for food service
establishments that are open-to-the-public per the issuance of a common victualler's license. He
was not aware of a community that has regulated the consumption of alcoholic beverages
===PAGE 8===
the sale of pre-prepared or rapidly-prepared food directly to the customer in a ready-to-consume
state for consumption either within the restaurant building, in cars on the premises or off the
premises altogether."
3. (g) The Board may refuse to grant a carry in permit in certain geographical areas of town...or
when not allowed as permitted use under a Special Permit... Costa asked when "what" is not
allowed? He found the wording to be confusing. To qualify for a carry-in permit, the applicant
must be a common victualler. It is the restaurant use that qualifies it. He questioned "no common
victualler's license will be issued to operate a food-and-beverage establishment where it is
prohibited by zoning." Suggestion was made to find out why it was in the policy and that we
shouldn't have any wording that we can't defend.
4. Obligations of a Common Victualler
Attorney Costa noted other possible obligations of the Permittee, for consideration: (i) a
requirement to order and consume food on the premises; (ii) restriction(s) on uncorking, pouring
or sealing of bottles by common victuallers; (iii) mandatory employee training. (b.) mentions
dining room or dining rooms but what about outdoor seating areas?
6. Penalties for Violation
Attorney Costa stated he clarified the first paragraph and commented on the second paragraph
regarding multiple violations by the same customer or patron or arising out of the same event; he
was unsure about the enforceability of penalties imposed as part of a licensing/permitting policy
that are due from the customer or patron. He will further research this.
7. Suspension, etc. of Carry In Permit
Attorney Costa wondered about the provision to revoke or deny; does the Board wanted to use
the word "willful. " What about negligent or grossly negligent? Willful is a different standard
legally than negligent. Negligent gives you more flexibility in enforcement.
4.17 Taxicabs
Attorney Costa stated Ms. Lemieux has asked if anyone was regulating Uber and Lyft? These
services are regulated at the state level.
G.L. c. 159A½, adopted by the Legislature as Chapter 187 of the Acts of 2016 (Aug. 5, 2016), entitled
"Transportation Network Companies," and specifically Section 10 thereof, states in part: "Except where
expressiy set forth in this chapter, no municipality or other local or state entity, except the Massachusetts
Port Authority, may... require any additional license for a transportation network company or
transportation network driver... or... subject a transportation network company to the municipality's or
other local or state entity's... requirements, including but not limited to entry or operational requirements;
provided, however, that a municipality or other local or state entity may regulate traffic flow and traffic
patterns to ensure public safety and convenience."
Mr. Ebersole asked if we CORI limousine drivers rather than just the owner. Ms. Peterson stated
since she has been here she has run CORIs on any new drivers.
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notice of hearing (look at Hopkinton, MA regulations and speak with Town Counsel if this type
of regulation requires approval by Department of Public Utilities."
Attorney Costa stated the Town cannot prohibit double poles. Acknowledging that the presence
of double pole sets for prolonged periods while attachments are transferred from the old to the
new pole present aesthetic and safety concerns" and further conceding "that G.L. c. 164, § 34B
places a ninety-day limit on the utility pole replacement process," the Supreme Judicial Court
nonetheless concluded, in Boston Edison Co. v. Town of Bedford, 444 Mass. 775 (2005), that
although there is no express legislative intent to forbid local activity regarding double pole
removal, the comprehensive nature of G.L. c. 164 implies that the Legislature intended to
preempt municipalities from enacting legislation on the subject." It was noted the utility
company can't just remove poles due to other lines (cable, phone etc.) being attached. It has to be
done sequentially. Ms. Lemieux asked if this would prohibit the Board from not granting a pole
petition due to other double poles in town? Attorney Costa stated legally he would not
recommend it.
5.02 Road Acceptance or Road Discontinuance
Attorney Costa noted his changes in the section mimicking statutes but also providing some
flexibility for language and others that just made sense. Ms. Lemieux had asked, "Isn't it a
requirement to vote to layout the road at public meeting and then can be voted at town meeting?"
Attorney Costa had answered "Not a statutory requirement, except where the road acceptance
includes a taking by eminent domain (where the owners-of-records of the road must be given 7
days' notice)."
Motion: R. Ebersole
To change Section 5.02 Road Acceptance changes as provided by Town Counsel
2nd: D. McQuaid
Vote: All in Favor
7.10 Social Media Policy
Attorney Costa stated he did not make section by section comments purposely but made some
comments. He had associate, Kate Feodoroff, review it as she has done this for a number of
communities. She believed this to be sufficient. One question Ms. Lemieux had was can this be
applied to both elected and appointed officials? Ms. Feodoroff agrees whole heartedly with
applying the social media policy to elected and appointed officials. Sarah Bellino (of our firm)
drafted Easton's policy, which Ms. Lemieux included in the Board's packet. Including public
officials is critically important because residents who appear before public bodies should feel
that they are receiving a fair hearing (which is undermined by misbehavior on social media). If
Ms. Lemieux is interested, Ms. Fedeoroff is working on a draft policy with Newbury that
addresses use of equipment, email, social media and public records/OML compliance when
using technology. It is still a working draft and we are trying to figure out if our policy
===PAGE 10===
a sta ss at work, asked about an appointed
official who is considered an employee; can they not use their social media when they are at their
committee meeting? Discussion ensued about making personal comments on social media while
at work.
Mr. Costa stated the Town has a zero tolerance policy, but there will always be exceptions. So
bes i make some sense to try to place some limitations unit as ablazed is just adopting a zero
Mr. Toale thought this was important enough to not talk in generalities. We should drill down
and be specific as to how it affects paid employees of the Town, what they say on behalf of the
Town, what they say on their own personal sites on their own time. We should talk about
representatives of the town that are not employees, but are employees by this definition.
Committee members, elected and appointed, maybe they are different. We should be very
specific about what is appropriate and what isn't. Even if it is unenforceable it should be a norm
that we understand is appropriate.
Mr. Ebersole stated there would be value to split it up three ways; employees, appointed and
elected officials and cite some examples. Mr. McQuaid stated the important sentence to him was
"As representatives of the Town of Lunenburg, employees should exercise caution with respect
to comments they post concerning the Town as employees or officials." We should be holding
ourselves to a higher standard not engaging in misinformation, fear mongering or bullying or
anything like that online and we shouldn't be doing anything that could portray your personal
thoughts as the thoughts of the Board.
Further discussion ensued about free speech, open meeting law and communication by elected
officials versus multiple member bodies. Mr. Ebersole believed as a public official he has the
ability to speak on a topic in a public forum and it doesn't count as deliberation. Ms. Lemieux
noted electronic communication by one member of a multiple member board, even though no
one else on that board responds back, is deemed deliberation and a violation of open meeting
law. Attorney Costa contirmed that is the case for electronic communications like emails. The
challenge with other sorts of social media is that some of that deliberation is occurring in public.
Mr. McQuaid presented a possible scenario to Attorney Costa: if Mr. Toale goes on Facebook
and says something about a topic the board has been discussing that I disagree with or I believe
is factually wrong, and then the comment section starts going, I have to wait until we convene
again to express my opinion? Costa stated that is the challenge because the argument is if you
respond, one could argue that is deliberation because you are discussing a matter that is within
the jurisdiction of the Board and you are doing so outside of a Board meeting. Ms. Luck stated if
I go to "Discussing Lunenburg" and I express my opinion on something we are going to
deliberate next week, I have just silenced all four of you; you can't respond because then it's
deliberation. So it is inconsiderate of me to say it to begin with. Mr. Toale stated we should have
our discussions here where we are in public on an agenda in front of anyone who wants to know
about it. If it happens at three in the morning on a FB page that somebody is moderating, that
===PAGE 11===
media. Mr. Ebersole would like to have specific guidelines on what would be the best practice on
what to say or not. Mr. Toale stated Town counsel can provide some guidance but further
discussion by the Board is needed
Mr. Toale reviewed the upcoming meeting schedule. The next meeting is November 6'
, we meet
with the School Committee on the 7th
PUBLIC COMMENT:
Ms. Adams noted Saturday is Homecoming and the parade, Sunday is the Miles for Myles Run
and the Ham and Bean Supper is Saturday at 4 pm at Eagle House.
Motion: R. Ebersole
To adjourn the meeting at 10:30 p.m.
2nd. K. Adams
Vote: All in Favor
Respectfully submitted,
Elaine m Peterson
Elaine M. Peterson
Executive Assistant to the Town Manager
RECEIVED & FILED
DEC 10 2018
LUNENBURG TOWN
CLERK OFFICE