City Council – 04/05/2011

DATE 04/05/2011
TIME 7:30 pm
ADA Yes
LOCATION Council Chamber, Woburn City Hall, Common Street, Woburn, MA, United States

Meeting Agenda

 

CITY OF WOBURN

APRIL 5, 2011 – 7:30 P.M.

REGULAR MEETING OF THE CITY COUNCIL

 

Roll Call

 

                                                Anderson Gately
                                                DiTucci Haggerty
Drapeau Mercer-Bruen
                                                Gaffney Raymond

Denaro

_________________________

 

VOTED to dispense with the reading of the previous meeting’s Journal and to APPROVE, all in favor, 9-0.

_________________________

 

Motion made and 2nd to suspend the rules for the purposes of taking the following matter out of order, all in favor, 9-0. A communication dated March 23, 2011 with attachments was received from John D. McElhiney, City Solicitor as follows:

 

Re: Land Court Decision –A.L. Prime Energy v City Council Special Permit for 1 Hill Street, Woburn, MA

 

Dear Members of the Council:

 

I enclose a copy of the land Court decision in the above matter.  Essentially the Land Court has overturned the decision of the City Council to deny the special Permit, which denial occurred back in January 2008.  The Land Court Judge has determined that the Council’s action in denying the Special Permit was “‘arbitrary and capricious.”

 

Further, the Judge has remanded the matter to the City Council with the express order to issue the Special permit, subject, however, to six stated conditions contained in the Order.

I wish to discuss this matter with the Council with respect to an evaluation of the Decision and the Council’s options and strategy with respect to this matter.  Kindly provide time for such discussion at your next regular meeting on April 5, 2011.  In as much as my advice to the Council will involve strategy with respect to this litigation matter, it would be my suggestion that the Council consider going into Executive Session to receive my comments.

 

Unfortunately, given the timing of the Decision and the scheduling of Council meetings, it would appear you should be prepared to take some action on this matter at your meeting of April 5th, given that the Order requires a decision by April 14, 2011.

 

I am looking forward to meeting with you on the 5th.

Sincerely, s/John D. McElhiney, City Solicitor

 

Motion made and 2nd that the City Council go into Executive Session for the purposes of discussing on-going litigation in the matter of A.L. Prime Energy v. City Council, Land Court No. 08-MISC-370678(KFS), ROLL CALL: Anderson – Yes, DiTucci – Yes,

Drapeau – Yes, Gaffney – Yes, Gately – Yes , Haggerty – Yes, Mercer-Bruen – Yes, Raymond – Yes, Denaro – Yes. President Denaro stated that the City Council would reconvene in the Council Chambers after the conclusion of the Executive Session. The City Council removed from the Council Chambers at 7:32 p.m. and reconvened in the Committee Room. The City Council returned to the Council Chamber at 7:59 p.m. President Denaro stated that the City Council voted in Executive Session to appeal the decision of the Land Court in the matter of A.L. Prime Energy v. City Council, Land Court No. 08-MISC-370678(KFS). See release of executive session minutes at the end of this meeting.

 

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Motion made and 2nd to return to the regular order of business, all in favor, 9-0.

 

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MAYOR’S COMMUNICATIONS: 

 

ORDERED     That the sum of $777,093.00 be and is hereby appropriated as so stated from Unreserved Fund Balance Acct #01-356000 $777,093.00 to Capital Improvements: Police Vehicles (3) Cruisers and (2) Unmarked Vehicles

Acct #0112158-586681 $165,000.00, Fire/Turnout Gear Acct #0112158-

586682 $20,000.00, Parks/Groundmaster & Dump Truck 4×4 Acct

#0112158-586683 $114,000.00, Recreation/Library Park PlaygroundPolice Acct #0112158-586684 $100,000.00, Engineering/Leland Park Site Design Acct #0112158-586685 $175,000.00, Public Works/4×4 Pick Up w/Utility Body (5) Acct #0112158-586686 $203,093.00, Total $777,093.00.

 

I hereby approve the above: s/Scott D. Galvin, Mayor

I have reviewed the above: s/Gerald W. Surette, City Auditor

 

s/Alderman Gaffney (per request)

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON FINANCE, all in favor, 9-0.

 

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ORDERED     That the sum of $1,984.80 be and is hereby transferred as so stated from Fire/Sick Leave buyback Act# 0122051-515400 $1,984.80 to Fire/Holiday Pay Acct# 0122051-514500 $1.984.80.

 

I hereby recommend the above: s/Paul Tortolano, Chief, Fire Department

I have reviewed that above: s/Gerald W. Surette, City Auditor         I hereby approve the above: s/ Scott D. Galvin, Mayor

s/President Denaro

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON FINANCE, all in favor, 9-0.

 

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ORDERED     That the sum of $146,500.00 be and is hereby transferred as so stated: from  BLS Ambulance Receipts Act# 31359-595000 $146,500.00 to Ambulance Salaries Act# 0122051-511500 $70,000.00, Fire/Overtime

Act# 0122051-513100 $50,000.00, Ambulance Maintenance Act# 0122054-544300 $25,000.00, Fire/Holiday PayAct# 0122051-514500 $1,500.00.

 

I hereby recommend the above: s/Paul Tortolano, Chief, Fire Department

I have reviewed the above: s/Gerald W. Surette, City Auditor          I hereby approve the above: s/ Scott D. Galvin, Mayor

 

s/President Denaro

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON FINANCE, all in favor, 9-0.

 

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ORDERED     That the sum of $20,000.00 be and is hereby transferred as so stated from

Ambulance Salaries Act# 0122054-511500 $20,000.00 to Apparatus

Maintenance Act# 0122054-544400 $20,000.00

 

I hereby recommend the above: s/Paul Tortolano, Chief, Fire Department

I have reviewed that above: s/Gerald W. Surette, City Auditor         I hereby approve the above: s/ Scott D. Galvin, Mayor

s/President Denaro

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON FINANCE, all in favor, 9-0.

 

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A communication dated March 30, 2011 with attachment was received from His Honor the Mayor Scott D. Galvin as follows:

 

Dear President Denaro and Members of the Council:

This is to advise you that, in accordance with the City of Woburn Charter, I am appointing John (Jay) F. Duran III as the new Superintendent of Public Works for the City of Woburn, effective April 11, 2011. A lifelong Woburn resident, Mr. Duran brings a great deal to this important and demanding job for the City. His qualifications include:

 

  • B.S. in Civil Engineering from the University of New Hampshire;
  • Professional Engineering Licenses from Massachusetts;
  • Commercial Drivers License with Hazmat Endorsement and Hydraulic Engineers License;
  • Knowledgeable in CAD, GIS and other engineering software programs;
  • Experience as a Civil Engineer for more than 20 years as the principal in his own firm, and previously for well-known construction and engineering firms;
  • Extensive knowledge of Woburn City government through working with various departments, including the Department of Public Works, as well as other City boards and commissions on engineering and development projects regarding wetlands, storm water management, and design of residential and commercial water, sewer and drain systems;
  • Experience with DEP and EPA in permitting and compliance for projects regarding wetlands, storm water management, and design of residential and commercial water sewer and drain systems; and
  • Performed inspections for various municipalities regarding installation and compliance of water, sewer, storm water and other utility systems.

 

Based on these qualifications, I am proposing a base salary of $95,000, which I submit for your approval in accordance with the City of Woburn Charter. The salary for your approval is consistent with information previously provided to the City Council, and reconfirmed for this appointment by the Director of Human Resources.

 

If you have any questions on this appointment or the proposed salary, please let me know know.

 

Sincerely, s/Scott D. Galvin, Mayor

 

Attached thereto was the following:

 

ORDERED     Be it Ordained by the City Council of the City of Woburn, as follows:

 

That Title 2, Article XXVII, Section 2-181, sub-paragraph “A” of the 1989 Woburn Municipal Code, as amended, be further amended by changing the base salary amount of the Superintendent of Public Works to $95,000.00.

 

s/Alderman Gately

 

Motion made and 2nd that the COMMUNICATION be ACCEPTED AND THE

MATTER be REFERRED TO COMMITTEE ON ORDINANCES, all in favor, 9-0.

_________________________

 

PUBLIC HEARINGS:  

 

On the petition by J&S Landscaping, Inc./Joseph Constantino, 1 Oakland Street, Woburn, Massachusetts 01801 for a special permit pursuant to Section 5.1.57b of the 1985 Woburn Zoning Code, as amended, to allow accessory storage or parking of commercial vehicles at 1 Oakland Street. PUBLIC HEARING OPENED. A communication dated April 4, 2011 was received from Attorney Joseph R. Tarby, Murtha Cullina, LLP, 600 Unicorn Park Drive, Woburn, Massachusetts 01801 as follows:

 

Re: J&S Landscaping, 1 Oakland Street, Woburn, Massachusetts

 

Dear Mr. Campbell:

 

Due to the fact that the Planning Board has not yet completed its review of the above petition, I respectfully request that the public hearing on this matter be further continued to the City Council meeting scheduled for April 19, 2011.

 

If you need any further information, please contact me. Thank you.

 

Very truly yours, s/Joseph R. Tarby, III

 

IN FAVOR: None. OPPOSED: None. Motion made and 2nd that the PUBLIC HEARING be CONTINUED TO THE REGULAR MEETING OF THE CITY COUNCIL ON

APRIL 19, 2011, all in favor 9-0.

 

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On the petition by Avalon WFS, LLC, c/o Avalon Bay Communities, Inc., 51 Sleeper Street, Suite 750, Boston, Massachusetts 02110 for a special permit to modify a special permit issued April 5, 2005, extended December 21, 2006 and extended January 8, 2009, pursuant to Section 5.1.4 of the 1985 Woburn Zoning Ordinances, as amended, by amending Conditions 1, 20, 21, 22, 23, 24 and 25 as shown in petition to allow for 34 apartment units at 0 Inwood Drive, Lot 1. PUBLIC HEARING OPENED. A communication dated March 11, 2011 was received from Edmund P. Tarallo, Planning Director, Woburn Planning Board as follows:

 

Re:  Avalon WFS, LLC – Lot 1 Inwood Drive – To modify Special Permit dated April 7, 2005 extended on 12/21/2006 & 1/8/2009 for 44 condominium units by now allowing 34 apartments and by amending conditions 1 and 20-25.

 

Dear Mr. Campbell and members of the City Council:

 

At the Planning Board meeting held on March 1, 2011, the Planning Board voted to send a favorable recommendation to the City Council on the Special Permit application of Avalon WFS, LLC, regarding the property at Lot 1 Inwood Drive subject to the following conditions:

 

  1. That Conditions 20, 21, 23, 24, and 25 be deleted in their entirety;
  2. That Condition 22 be modified by replacing “44 units” with “34 units”;   
  3. That a new Condition be added stating: “that all plans shall be in compliance with the

Handicapped codes and the review of the Woburn Handicapped and Disabled Citizens Commission”;

  1. That a new Condition be added stating: “That the Planning Board shall retain jurisdiction over the landscaping”; and
  2. That condition 1 be amended to read as follows: “The Plans of record shall be the Plans entitled: “Avalon Inwood, Woburn, Massachusetts, Applicant/Owner Avalon WFS, LLC c/o Avalon Bay Communities, Inc., Boston, MA 02210” prepared by

Hayes Engineering Inc., 603 Salem Street, Wakefield, MA 01880, dated January 25,

2011 consisting of Sheets C1, C2, C 3, C4, C5, C6 and C7; “Avalon Inwood Phase 2,

Woburn, Massachusetts” prepared by Niles Bolton Associates, Inc., 1 Buckhead Plaza, 3060 Peachtree Road NW, Suite 600, Atlanta, Georgia, dated 02/25/2011 consisting of A0.00, A2.01, A2.02, A2.03, A2.04, A2.05, A2.06, A4.01, A4.02, A5.01, A5.02, A5.03, A5.04, A5.05 and A5.05A; and  “Avalon Inwood Phase 2,

Inwood Drive, Woburn, Massachusetts, For: AvalonBay Communities, Boston,

Massachusetts” prepared by Hawk Design, Inc., Landscape Architecture, Land Planning, Boston, MA, dated 01/25/2010 stamped 2/24/11consisting of L1.”

 

If members of the City Council have any questions or concerns regarding the foregoing recommendation, please feel free to contact me.

 

Sincerely, Edmund P. Tarallo Planning Director

 

A report was received from the Committee on Special Permits as follows: “ought to pass with the recommendations of the City Engineer and the Planning Board adopted as conditions of the special permit.” Appearing for the petitioner was Attorney Francis DeLuna, Murtha Cullina, LLP, 600 Unicorn Park Drive, Woburn, Massachusetts 01801 and he stated that there has been no market for age-restricted over 55 condominium developments, that the Planning Board gave a favorable recommendation to the proposal as did the Committee on Special Permit, and that the petitioner asks that the matter be approved. IN FAVOR: None. OPPOSED: None. Motion made and 2nd that the public hearing be closed, all in favor, 9-0. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, AS AMENDED with the condition as follows: 1. That the recommendations of the Planning Board and the City Engineer be adopted as conditions of the special permit, 8 in favor, 1 opposed (Mercer-Bruen opposed).

 

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On the petition by New Cingular Wireless PCS, LLC dba AT&T Mobility (AT&T), 550

Cochituate Road, Framingham, Massachusetts 01701 for a special permit pursuant to Section 5.1.80a of the 1985 Woburn Zoning Ordinances, as amended, to install three (3) panel antennas, in addition to AT&Ts existing antennas, to existing 75 foot monopole at an antenna centerline height of 64 feet, remote radio heads and surge arrestor for new network service upgrade with associated antenna and electronic equipment, fiber and coax conduits, and install additional equipment in existing AT&T equipment shelter at base of existing monopole, at 100 Sylvan Road. PUBLIC HEARING OPENED. A communication dated March 11, 2011 was received from Edmund P. Tarallo, Planning  Director, Woburn Planning Board as follows:

 

Re:   New Cingular Wireless PCS, LLC d/b/a AT&T Mobility – 100 Sylvan Rd. – To add 3 new antennas to the existing 75’ monopole at an antenna centerline height of 64’ and accessories including additional equipment in the existing AT&T equipment shelter located at the base of the monopole pursuant to Section 5.1.80A and Section

5.6

   

Dear Mr. Campbell and members of the City Council:

 

At the Planning Board meeting held on March 29, 2011, the Planning Board voted to send a favorable recommendation to the City Council on the Special Permit application of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility, regarding the property at 100 Sylvan Rd. subject to the following conditions:

 

  1. That the petitioner shall post a bond for future removal of all equipment requested as part of this Special Permit;
  2. That a structural engineering analysis shall be performed certifying that the existing monopole has the capacity to support the proposed equipment prior to the issuance of a building permit; and
  3. The petitioner shall provide an MPE(Maximum Permissible Exposure) study certifying compliance with FCC Limits prior to the issuance of a building permit.

 

If members of the City Council have any questions or concerns regarding the foregoing recommendation, please feel free to contact me.

 

Sincerely, Edmund P. Tarallo Planning Director

 

Appearing for the petitioner was Attorney Michael Davis, Brown Rudnick LLP, 10

Memorial Boulevard, Providence, Rhode Island 02903 and he stated that the petitioner AT&T is building a long term evolution (LTE) network to improve their 4G service, that the petitioner is trying to utilize existing wireless sites to avoid building new towers in neighborhoods that do not currently have them, that the petitioner does not have an LTE site in Woburn and there is a service gap, that the petitioner has equipment on an existing pole at 100 Sylvan Road, that the petitioner proposes to add the new equipment to the existing pole, that it is possible that a removal bond is already on file for this existing facility, that if there is not a removal bond on file then the petitioner is willing to provide the bond, that there will be no additional visual impacts on the neighborhood, that no traffic will be generated from the facility, that the petitioner will visit the location once per month to perform maintenance, that the proposal will improve the health and safety of the community by improving cell service without dropped calls, that three antennas will be added to the existing 75 foot tower, that he is not aware of a denied petition in Burlington, that this is an existing facility location, that there will be five more LTE sites developed in Woburn, that no equipment will be removed from the tower, that this will be additional equipment, that photo simulations of the pole with the proposed equipment were included in the submission package, that there is a standard mounting platform on the pole, and that he will pass onto the petitioner the difficulty in the 9 Waltham Street petition although he is not working on that matter. Attorney Davis offered a report entitled “Maximum Permissible Exposure Study” dated April 5, 2011 prepared by SAI Communications to the City Council for review. Motion made and 2nd that the document be received and made part of the record, all in favor, 9-0. Kevin Brewer, RF Engineer for AT&T stated that the petitioner is not building new sites for the LTE network, that it is possible that AT&T is building a tower on Garfield Avenue but that is not for the LTE network and is possibly for another of the company’s networks, that the petitioner does not own the locus cell tower, that the petitioner will be adding three additional antennas to the tower with one per face, that the petitioner equipment is at second position on the pole, that the petitioner is looking to install the LTE facilities on five existing towers, that he believes there is a carrier above and another carrier below the petitioner’s equipment on the tower, and that the petitioner will have three additional petitions filed to retrofit the existing facility but he is not certain of the timing. Alderman Raymond stated that there was a petition to put antennas on the roof at Kimball Court in Burlington which was denied based on the impact the facility would have on the view, and that he wants to see a photograph of what the pole will look like with the new equipment. Alderman Gately stated that the City Council will be requesting a fee from the petitioner for the city’s wireless study, and that if five petitions are to be filed they should all be filed together for the efficiency of the City Council. Alderman Drapeau stated that the City Council has issues with petitions filed by AT&T without the permission of the owner, that the attorney should bring back the message to his client that this should not happen, that a 9 Waltham Street petition by AT&T did not have the landowner’s permission, and that he will defer to the Ward Alderman as to the aesthetic impacts of this tower. President Denaro stated that a report has been filed by the petitioner about the health concerns being addressed. IN FAVOR: None. OPPOSED: Russ Richardson, 184 Mishawum Road stated that there is a lot of construction in the city with this equipment being put on the roofs, that this pole and the signs at the building draw the attention of drivers, and that he is concerned about the radio waves from the equipment which may be a health hazard. Motion made and 2nd that the petitioner supply to the City Council a resume of the preparer of the Maximum Permissible Exposure Study, all in favor, 9-0. Motion made and 2nd that the PUBLIC HEARING be CONTINUED TO THE REGULAR MEETING OF THE CITY COUNCIL ON MAY 3, 2011 AND THAT THE MATTER BE REFERRED TO THE COMMITTEE ON SPECIAL PERMITS, all in favor 9-0.

 

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On the petition by Cabot Risk Strategies LLC, 12 Gill Street, Woburn, Massachusetts

01801 for a special permit pursuant to Section 5.1.30b, 5.1.69 and 7.3 of the 1985

Woburn Zoning Ordinances, as amended, to use the existing approximately 16,578

square foot building for “business, professional and general office use” and to allow for the alteration of a non-conforming use/structure at 15 Cabot Road. PUBLIC HEARING OPENED. A copy of a communication dated March 29, 2011 to Edmund Tarallo, Planning Director was received from Brett F. Gonsalves, Senior Engineer, Engineering Department as follows:

 

Subject: 15 Cabot Road Business, Professional & General Office Special Permit –  Special Permit Application Dated March 14, 2011

 

The applicant is seeking permission to occupy the building for business, professional and general office use at the above referenced location.

 

The submitted plans or the special permit indicate that there is any exterior work being proposed. After review of the application, this office takes no exception to the special permit application as submitted.

 

If you or the board have any questions concerning this information, do not hesitate to contact this office.

 

A communication dated April 5, 2011 was received from Edmund P. Tarallo, Planning Director, Woburn Planning Board as follows:

 

Re : Cabot Risk Strategies LLC – 15 Cabot Rd. – To allow use of the existing approximately 16,578 S.F. building located at 15 Cabot Rd. for business, professional and general office use and to allow for the alteration of a nonconforming use/structure pursuant to Sections 5.1.30b, 5.1.69, and 7.3

   

Dear Mr. Campbell and members of the City Council:

 

At the Planning Board meeting held on March 29, 2011, the Planning Board voted to send a favorable recommendation to the City Council on the Special Permit application of Cabot Risk Strategies LLC, regarding the property at 15 Cabot Rd. subject to the following conditions:

 

  1. That the net floor area for the business, professional and general office uses shall not exceed 15,750 S.F.;
  2. That the parking space at the rear of the building with #3 in it as shown on the Proposed Parking Layout Plan prepared by Allen & Major Associates, Inc. dated 0310-11 shall be eliminated; and
  3. That the radius curbing at the driveway entrance shall match the granite curbing of the street.

 

If members of the City Council have any questions or concerns regarding the foregoing recommendation, please feel free to contact me.

 

Sincerely, Edmund P. Tarallo Planning Director

 

Appearing for the petitioner was Attorney Mark T. Vaughan, Riemer & Braunstein, LLP, 7 New England Executive Park, Burlington, Massachusetts 01803-5008 and he stated that the petitioner currently does business in the city on Gill Street, that the petitioner wants to move their offices, that the building at the proposed location meets their space needs, that the petition is for a revitalization of an existing building, that the site driveway is off Cabot Road, that there will be no building addition, that there will be no site plan changes, that if the building is in excess of 15,000 square feet a special permit is required, that the current tenant at the building is Agiltron, that the petitioner’s use will be a cleaner use, that the petitioner will make façade improvements to be more office-like in appearance, that the Planning Board wanted a parking space removed which the petitioner will doe and still meet the parking requirements, that there will be an addition of slope granite curbs to blend with the curbing on Cabot Road, that the petitioner asks that the City Council approve the petition at this meeting, that the petitioner will acquire the building, that the petitioner is not a business that will generate a lot of dumpster use, that the petitioner has 50 to 53 employees, that most of the employees are on the road visiting clients, that 26 to 32 employees are on site during the day, and that the petitioner does not have a lot of walk-in business. Michael Cusack, Principal of Cabot Risk Strategies LLC stated that this location offers the petitioner the opportunity for growth. Alderman Gately stated that this is a good building, that he is pleased that the petitioner will stay in the city, and that he wants the dumpster screened and a snowplowing plan filed. Alderman Mercer-Bruen stated that she supports the petition and the City Council voting to approve the petition at this meeting. IN FAVOR: A communication dated April

5, 2011 was received from Paul J. Meaney, Executive Director Woburn Business

Association, Ten Tower Office Park, Woburn in favor of the petition. OPPOSED: None. Motion made and 2nd that the SPECIAL PERMIT be GRANTED, AS AMENDED with the conditions as follows: 1. That the recommendations of the Planning Board be adopted as conditions of the special permit, 2. That the dumpster be screened, and 3. That a snowplowing plan be filed with the Department of Public Works, all in favor, 9-0. _________________________

 

CITIZEN’S PARTICIPATION:  None.

_________________________

 

COMMITTEE REPORTS: 

 

FINANCE:

 

On the Order to appropriate the sum of $1,800,000.00 to pay costs of roof repairs to the

Joyce Middle School, committee report was received “ought to pass”. Motion made and

2nd that the COMMITTEE REPORT be ADOPTED, ROLL CALL: Anderson – Yes, DiTucci – Yes, Drapeau – Yes, Gaffney – Yes, Gately – Yes, Haggerty – Yes, MercerBruen – Yes, Raymond – Yes, Denaro – Yes.

Presented to the Mayor: April 7, 2011        s/Scott D. Galvin April 7, 2011

 

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On the Order to appropriate the sum of $3,900,000.00 to pay costs of roof repairs to the Kennedy Middle School, committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, ROLL CALL: Anderson – Yes, DiTucci – Yes, Drapeau – Yes, Gaffney – Yes, Gately – Yes, Haggerty – Yes, MercerBruen – Yes, Raymond – Yes, Denaro – Yes.

Presented to the Mayor: April 7, 2011        s/Scott D. Galvin April 7, 2011

 

************************* POLICE AND LICENSES:

 

On the petitions for renewal of Taxi Cab Licenses by Checker Cab of Woburn, Inc.; Maqsud Shaikh dba Bombay Taxi; Saeed Rajabi dba Sky Taxi of Woburn; Mourad Djiar dba ABCE Taxi of Woburn; and Ali A. Saleh dba Metro Cab, committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said License became effective without his signature on April 19, 2011.

 

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On the petition for renewal of Taxi Cab License by Abdulla Nasser dba AACO Travel

Taxi Service, committee report was received “back for action”. Motion made and 2nd that

MATTER be REFERRED TO COMMITTEE ON POLICE AND LICENSES, all in favor, 9-0.

 

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On the petitions for renewal of Livery Licenses by Patricia Porrazzo dba Hollywood Limousine; RAM Electrical Consulting & Contracting Corp.; and Checker Cab of Woburn, Inc., committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said License became effective without his signature on April 19, 2011.

 

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On the petitions for renewal of Common Carrier Licenses by M&L Transit Systems, Inc.; and Boston Tours, Inc., committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0. Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said License became effective without his signature on April 19, 2011.

 

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On the petition for renewal of Bowling Alley License by Woburn Bowladrome, Inc., committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said License became effective without his signature on April 19, 2011.

 

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On the petition for renewal of Second Class Motor Vehicle Sales License by Cambridge Road Auto Service, Inc dba Woburn Plaza Shell, committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said License became effective without his signature on April 19, 2011.

 

************************* PERSONNEL:

 

On the appointment of Barbara Ridley as a Member of the Woburn Council on Aging, committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor: April 7, 2011        s/Scott D. Galvin April 7, 2011

 

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On the appointment of Paul Medeiros as a Member of the Woburn License Commission,

committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor: April 7, 2011        s/Scott D. Galvin April 7, 2011

 

************************* ORDINANCES:

 

On the Order to amend the 1989 Woburn Municipal Code, as amended, by adding a new Title 15, Article VII “Minimum Maintenance Standards for Historical Resources”, committee report was received “ought to pass”. Motion made and 2nd that the COMMITTEE REPORT be ADOPTED, all in favor, 9-0.

Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said Ordinance became effective without his signature on April 19, 2011.

_________________________

 

NEW PETITIONS:

 

Petitions by Lifeline Ambulance Service, LLC, 6A Gill Street for renewal of Livery License. Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON POLICE AND LICENSES, all in favor, 9-0.

 

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On the petition by NSTAR Electric Company, 101 Linwood Street, Somerville, Massachusetts 02143 for a grant of right in a way to install approximately forty-five (45) feet of conduit on Lynn Street northwesterly from pole 328/2 approximately 165 feet northeast of Salem Street.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by New Cingular Wireless PCS, LLC d/b/a AT&T Mobility, 550

Cochituate Road, Framingham, MA 01740 for a special permit pursuant to Sections 5.1.80b and 5.6 of the 1985 Woburn Zoning Ordinances, as amended, to install three (3) panel antennas, in addition to the existing antennas, to the existing 69 foot 5 inch utility transmission structure at an antenna centerline height of 65 feet 5 inches, remote radio heads and surge arrestor for new network service upgrade with associated antenna and electronic equipment, fiber and coax conduits, and install additional equipment in the existing AT&T equipment compound located at the base of the existing utility transmission structure at 9 Waltham Street. Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by 88 Winn Street LLC, Fran Murray , Manager, 89 Winn Street,

Woburn, Massachusetts 01801 for a special permit pursuant to Section 5.1.(45) of the 1985 Woburn Zoning Ordinances, as amended, to allow for the sale of a maximum of five (5) used cars at 88 Winn Street.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by Murray Enterprises, Inc., 88 Winn Street, Woburn, Massachusetts 01801 for a Second Class Motor Vehicle Sales License at 88 Winn Street.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by Inscribe Inc., 35 Olympia Avenue, Woburn, Massachusetts 01801 for two special permits pursuant to the 1985 Woburn Zoning Ordinances, as amended, as follows: 1. To allow for the alteration of a pre-existing nonconforming use of light manufacturing over 15,000 square feet pursuant to Section 7.3, and 2. To allow for the reduction in the number of required parking spaces from 80 to 57 for a mixed use pursuant to Section 8.2.5, both at 9 Micro Drive. Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by Accurate Auto Services, 7 Harrison Avenue, Woburn, Massachusetts

01801 for a special permit pursuant to Sections 5.1 (44) and 15 of the 1985 Woburn Zoning Ordinances, as amended, to allow for the construction of a new building containing approximately 2,100 square feet to allow an automobile and truck repair garage within the Ground Water Protection District at 7 Harrison Avenue.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.                                               ************************

On the petition by Pacific Packaging Products, Inc., 24 Industrial Parkway, Woburn,

Massachusetts 01801 for a special permit pursuant to the 1985 Woburn Zoning Ordinances, as amended, as follows: 1. To allow for a warehouse and distribution center pursuant to Section 5.1.42, and 2. To allow for the overnight parking of commercial vehicles pursuant to Section 5.1.57b, at 331 New Boston Street.   Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by Belinda M. Alfano, Trustee of 85 Green Street Realty Trust, P.O. Box 158, North Billerica, Massachusetts 01862 for a Special Permit pursuant to Section 7.3 of the 1985 Woburn Zoning Ordinances, as amended, to allow for a change in use of the existing non-conforming use and structure from a single family home to a two family home at 85 Green Street.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

 

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On the petition by Oliver Enterprises, 278 Salem Street, Woburn, Massachusetts 01801 for a Special Permit pursuant to the 1985 Woburn Zoning Ordinances, as amended, as follows: 1. To allow for the alteration of the existing non-conforming use and structure (single family home) to provide for an addition to the existing structure to allow for the Petitioner’s landscaping business pursuant to Section 7.3, and 2. To allow for the overnight parking of commercial vehicles pursuant to Section 5.1.57b, at 5 Hancock Street.  Motion made and 2nd that the MATTER be REFERRED TO PUBLIC HEARING, all in favor, 9-0.

_________________________

 

COMMUNICATIONS AND REPORTS:

 

A communication dated March 16, 2011 was received from Charles L. O’Connor, Parking Clerk, Police Headquarters, 25 Harrison Avenue as follows:

 

In accordance with Massachusetts General Laws Chapter 90, Section 20½, I am submitting a report to you on the parking violations in the City of Woburn for the period ending February 2011: number of parking violations issued 420, number of violations paid 159, number of violations outstanding 213, amount collected and submitted to the Office of the Collector $13,196.40. There exists a backlog of 5,648 tickets for 1982 through 2010. Demand will be sent until all tickets have been paid. Parking violations referred to the Handicapped Commission to date $4,200.00.

 

Respectfully submitted, s/Charles L. O’Connor, Parking Clerk City of Woburn

 

Motion made and 2nd that the MATTER be RECEIVED AND PLACED ON FILE, all in favor, 9-0.

 

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A communication dated March 31, 2011 was received from Joanne Collins, Director, Woburn Council on Aging along with a copy of the Director’s Report and the minutes of the Council on Aging for the month of March. Motion made and 2nd that the MATTER be RECEIVED AND PLACED ON FILE, all in favor, 9-0.

 

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A communication dated March 23, 2011 with attachments was received from William C. Campbell, City Clerk as follows:

 

Re: 2010 Census and Re-Precincting

 

Attached is a comparison of the 2000 census results with the new 2010 census figures. It is now the obligation of the City Council to establish ward and precinct lines consistent with statutory requirements. There must be seven wards, each ward in excess of 4,000 inhabitants must be divided into two or more precincts, total population within each precinct must be within 3% to 5% of the precinct target population, any community of interest must be preserved, and a map, vote of the City Council and approval of the Mayor must be filed with the Local Election District Review Committee (LEDRC) by June 15, 2011.

 

Although the goal should be to have ward and precinct lines be as stable as possible, there are some wide swings in precinct inhabitant counts that may require significant change in some boundary lines. The focus is on balancing precinct totals which in turn will balance the wards. The  city has the opportunity to move precinct and ward lines once every ten years. Although a desired goal is to keep boundary lines stable, the City Council could also look at the possibility of realigning all boundaries for reasons that in its discretion the Council finds to be beneficial to the community.

 

The City Council controls the division of the city into wards and precincts. Once the matter is received by the City Council, the matter could be sent to committee for further action. It will be up to the City Council to  determine whether the city should achieve the desired goal of deviation from the target precinct population of within 3% or the maximum allowable goal of 5%. The closer the map is to 3% the greater likelihood that the plan will be approved by the Local Election District Review Committee (LEDRC). The Mayor will also approve the plan once the City Council completes its review.

 

The city is using the services of the Secretary of State’s office in drawing the plan based on the available statistics. The Offices of the City Clerk, Planning Board, City Engineer and City Solicitor are also working to complete some of the work in house. This may ease the burden on the City Council in reviewing possible boundary lines without the delay of waiting for plans by mail.

 

You will also find enclosed a historical record of Woburn’s population since 1790.

 

s/William C. Campbell, City Clerk

 

Attached thereto was the following:

 

2011       City of Woburn Re-Precincting  Ward/Precinct        2000    2010    Difference

 

 

1-1                                      2633                             2768                                135

1-2 2763 2847 84 2-1 2708 2581 -127

2-2                                             2638                             2427                               -211

3-1                                             2597                             2725                                128

3-2 2665 2590 -75 4-1 2757 2791 34 4-2 2650 2605 -45 5-1 2572 3122 550 5-2 2630 2516 -114 6-1 2775 3360 585 6-2 2724 2655 -69

7-1                                             2538                             2517                                 -21

7-2   2608   2616        8   37,258   38,120          862

 

Guidelines

 

  • City Charter requires seven wards.
  • Each ward exceeds 4,000 inhabitants and will have to be divided into at least two precincts.
  • Total population of each precinct must be within 3% to 5% of all other precincts.
  • Any community of interest must be preserved.
  • Map, vote of the City Council and approval of the Mayor must be submitted to the Local Election District Review Commission on or before June 15, 2011.
  • Ward Average:  5446
  • Precinct Average:  2723

 

Desired deviation (factor of plus or minus 82):

Precinct +3% = 2805

Precinct -3% = 2641

 

Maximum allowable deviation (factor of plus or minus 136):

Precinct +5% = 2859

Precinct -5% = 2587

 

U.S. Census Bureau

Total Population Counts 1790-2010 Woburn, Massachusetts

 

1790 ……………………..1,727

1800 ……………………..1,228

1810 ……………………..1,219

1820 ……………………..1,519

1830 ……………………..1,977

1840 ……………………..2,993

1850 ……………………..3,956

1860 ……………………..6,287

1870 ……………………..8,560

1880 ……………………..10,931

1890 ……………………..13,499

1900 ……………………..14,254

1910 ……………………..15,308

1920 ……………………..16,574

1930 ……………………..19,434

1940 ……………………..19,751

1950 ……………………..20,492

1960 ……………………..31,214

1970 ……………………..37,406

1980 ……………………..36,626

1990 ……………………..35,943

2000 ……………………..37,258

2010 ……………………..38,120

 

[Note: In 1799, Burlington was established from land that was formerly in Woburn. In 1850, Winchester was established including a portion of land that was formerly in

Woburn.]

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON

LIAISON and that a meeting be held on the matter on May 9, 2011, all in favor, 9-0.

 

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A communication dated March 14, 2011 was received from Attorney Joseph R. Tarby, III, Murtha Cullina LLP, 600 Unicorn Park Drive, Woburn, Massachusetts 01801 as follows:

 

Re: Lot 1 Inwood Drive, Woburn, Massachusetts

 

Dear Mr. Campbell:

 

Please be advised that I represent Avalon WFS, LLC (“Avalon”) in connection with its

Landowner’s Decision and Notice of Special Permit issued by the City Clerk on April 7, 2005 as extended by Notice of Extension of Special Permit dated December 21, 2006 and by Notice of Extension of Special Permit dated January 8, 2009 (the “Special Permit”).

As a result of current market conditions for age restricted 55 and over condominiums, the development of Lot 1 has not commenced.

 

Therefore, on behalf of the Petitioner, and without prejudice to the Petitioner’s current Petition to Modify the Special Permit pending before the City Council, I respectfully request that the City Council further extend the time period for the Petitioner to exercise its rights under the Special Permit for an additional two (2) year period to April 7, 2013.

 

Very truly yours, s/Joseph R. Tarby, III

 

Motion made and 2nd that the SPECIAL PERMIT GRANTED TO AVALON WFS, LLC,

ON APRIL 7, 2005 AS EXTENDED BY NOTICE OF EXTENSION OF SPECIAL PERMIT DATED DECEMBER 21, 2006 AND BY NOTICE OF EXTENSION OF SPECIAL PERMIT DATED JANUARY 8, 2009 be EXTENDED FOR AN ADDITIONAL SIXTY (60) DAYS UP TO AND INCLUDING JUNE 4, 2011, 8 in favor, 1 opposed (Mercer-Bruen opposed), 9-0.

_________________________

 

UNFINISHED BUSINESS OF PRECEDING MEETING:  None.

_________________________

 

APPOINTMENTS AND ELECTIONS:  

 

A communication dated March 24, 2011 was received from His Honor the Mayor Scott D. Galvin as follows:

 

Dear City Clerk Campbell:

 

In accordance with Title 2, Article XL of the 1989 Woburn Municipal Code, and by the power vested in me as Mayor of the City of Woburn, I hereby appoint the following individuals to The Woburn Agricultural Commission:

 

  • Timothy A. Mooney, 6 Bow Street, with a term to expire on December 31, 2011;
  • Joseph C. Patrissi, 56 Kilby Street, with a term to expire on December 31, 2012;
  • Michael J. Benenate, 83 Burlington Street, with a term to expire December 31, 2012; Robert F. Carley, 25 Wright Street, with a term to expire December 31, 2103; and
  • Paul A. Medeiros, 9 Marietta St., with a term to expire December 31, 2013.

 

Respectfully, Scott D. Galvin, Mayor

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON PERSONNEL, all in favor 9-0.

_________________________

 

MOTIONS, ORDERS AND RESOLUTIONS:

 

ORDERED     Be it Ordained by the City Council of the City of Woburn that the 1989

Woburn Municipal Code, as amended, Title 2, Article XXVI, Section 2-

174 be amended by striking the section inserting in its place the following:

 

2-174  Rates of Service

 

A. The following fees shall be charged for all persons transported to the hospital by the City ambulance service: Current Medicare Fee Schedule plus 200%.

 

As of 5/1/2011:

 

BLS Emergency Base Rate   ……………………………..$1196.25 BLS Non-Emergency Base Rate ………………………….$747.66 ALS1 – Emergency Base Rate  ………………………….  1420.56 ALS Non-Emergency Base Rate …………………………..897.18 ALS2 Emergency Base Rate ……………………………… 2056.05 Specialty Care Transport …………………………………….2429.88 Mileage ……………………………………………………………….20.58 Airway……………………………………………………………….173.30 Cardiac Monitor ………………………………………………….214.07 Defibrillation ………………………………………………………352.87 Oxygen ………………………………………………………………164.69 MAST ……………………………………………………………….235.27

IV/Drugs ………………………………………………………….  352.87

 

Such fees shall be charged for one-way transportation only.

 

s/President Denaro

 

Motion made and 2nd that the MATTER be REFERRED TO COMMITTEE ON ORDINANCES, all in favor, 9-0.

 

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ORDERED     That the City of Woburn subject to bond approval by the City Council approves the proposed renovation and expansion of the Woburn Public Library contingent on the receipt of a state grants.

 

That the Board of Trustees of the Woburn Public Library and the Mayor be and are hereby authorized to apply for, accept and expend any state grants which may be available for the project; and

 

That The Board of Trustees of the Woburn Public Library and the Mayor

be and are hereby authorized to apply for any state funds which might be available to defray all or part of the cost of the design, construction and equipping of the library project and to accept and expend any such funds when received without further appropriation.

 

s/President Denaro (for discussion)

 

Motion made and 2nd that the MATTER be LAID ON TABLE and that a communication be forwarded to the Library Board of Trustees requesting the Board provide to the City Council a revised copy of plans more in line with the Mayor’s budget for the project, ROLL CALL: Anderson – Yes, DiTucci – No, Drapeau – No, Gaffney – Yes, Gately – Yes, Haggerty – No, Mercer-Bruen – Yes, Raymond – Yes, Denaro – Yes.

 

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ORDERED     The City of Woburn hereby petitions the Great and General Court of the Commonwealth of Massachusetts to enact the following proposed Special Act:

 

An Act authorizing the licensing authority of the City of Woburn to issue eight (8) additional licenses for the sale of all alcoholic beverages to be drunk on the premises.

 

Section 1.

 

  1. Notwithstanding section 17, of chapter 138 of the General Laws, the licensing authority of the City of Woburn may issue up to 8 additional licenses for the sale of all alcoholic beverages to be drunk on the premises pursuant to section 12 of said chapter 138, provided said licenses shall be issued within one of the four geographical zones, hereinafter described, and provided further that no more than 2 such licenses shall be issued in any one zone.

 

Liquor Zones A, B, C, and D are hereby established, and comprise the area designated on the City of Woburn Zoning Map as the “Commerce Way Overlay District.”  The specific properties contained within each respective zone are as shown on the City of Woburn Assessors Maps, designated as follows:

 

Liquor Zone A

Liquor Zone B

Liquor Zone C

Liquor Zone D

 

  1. The local licensing authority shall not approve the transfer of a license issued within one Liquor Zone to a location outside the specific Liquor Zone of original issuance. A license granted pursuant to this paragraph shall be nontransferable to any other person, corporation or organization. A license issued under this paragraph, if revoked or no longer in use at the street address of original issuance shall be returned physically, with all of the legal rights and privileges thereto, to the licensing board which may grant any such returned license to a new applicant consistent with the criteria set forth in this paragraph at the same street address provided that an applicant for said license files with said authority a letter in writing from the Department of Revenue indicating that said licensee is in good standing with said Department and that any and all applicable taxes have been paid.

 

Section 2. This Act shall take effect upon its passage.

 

s/Alderman Haggerty and Alderman Gaffney

 

Alderman Haggerty stated that this issue has been the subject of much work the past year, that the city petitioned for additional licenses, that after the matter was forwarded to the State House it was learned that the legislature was no longer granting over-quota blanket licenses but required specific businesses and locations, that a zone proposal was determined to be acceptable to the committee at the State House, that this proposal will benefit the Commerce Way Overlay District, that the proposal provides economic opportunity for the city, increases growth and controls the tax burden on the residents, that he is cautiously optimistic that this proposal will be approved at the State House, and that the Woburn License Commission has endorsed the proposal. Alderman Haggerty submitted a letter from the License Commission dated March 31, 2011 for the record. Motion made and 2nd that the document be received and made part of the record, all in favor, 9-0. Alderman DiTucci stated that it appears that if a license is no longer needed by a licensee it is returned to the city and that this avoids having liquor licenses becoming a commodity. Alderman Raymond stated that this proposal fits into the master plan for the redevelopment of the Commerce Way Overlay District. Alderman Mercer-Bruen stated that she hopes that when this proposal passes that it will move along the development of the Commerce Way Overlay District. Alderman Gaffney stated that these licenses could attract larger chain restaurants which will be a boost to the community.

Motion made and 2nd that the ORDER be ADOPTED , all in favor, 9-0.

Presented to the Mayor: April 7, 2011            s/Scott D. Galvin April 7, 2011

 

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RESOLVED That the City Engineer Department of Public Works Water Department design and install a water loop from Lakeview Terrace to Innitou Road at Arlington Road due to numerous dirty water complaints.

 

s/Alderman Gately and Alderman DiTucci

 

Motion made and 2nd that the RESOLVE be ADOPTED , all in favor, 9-0. Presented to the Mayor April 7, 2011 and ten days having elapsed without same being approved, said Resolve became effective without his signature on April 19, 2011.

 

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RESOLVED Whereas, through their efforts and demonstrated proficiency in their sport, the members of the 2010-2011 Woburn Memorial High School Girls Ice Hockey Team participated in advanced competition; and

 

Whereas, the 2010-2011 Woburn Memorial High School Girls Ice Hockey

Team finishes the season with a record of twenty wins, two losses and one ties; and

 

Whereas, the 2010-2011 Woburn Memorial High School Girls Ice Hockey Team was named the Middlesex League champion; and

 

Whereas, the 2010-2011 Woburn Memorial High School Girls Ice Hockey

Team have exemplified true determination in competitive sport all season;

 

Now, therefore, the City Council of the City of Woburn recognizes the efforts and accomplishments of the members of the 2010-2011 Woburn Memorial High School Girls Ice Hockey Team and extends the best wishes of the community on their continued academic and athletic success.

 

s/Alderman Haggerty

Motion made and 2nd that the RESOLVE be ADOPTED , all in favor, 9-0.

Presented to the Mayor: April 7, 2011            s/Scott D. Galvin April 7, 2011

 

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RESOLVED Whereas, through their efforts and demonstrated proficiency in their sport,

the members of the 2010-2011 Woburn Memorial High School Boys Ice Hockey Team participated in advanced competition; and

 

Whereas, the 2010-2011 Woburn Memorial High School Boys Ice Hockey

Team finishes the season with a record of eighteen wins, five losses and two ties; and

 

Whereas, the 2010-2011 Woburn Memorial High School Boys Ice Hockey

Team have exemplified true determination in competitive sport all season;

 

Now, therefore, the City Council of the City of Woburn recognizes the efforts and accomplishments of the members of the 2010-2011 Woburn Memorial High School Boys Ice Hockey Team and extends the best wishes of the community on their continued academic and athletic success.

 

s/Alderman Haggerty  Motion made and 2nd that the RESOLVE be ADOPTED , all in favor, 9-0.

Presented to the Mayor: April 7, 2011            s/Scott D. Galvin April 7, 2011

_______________________

 

Motion made and 2nd to ADJOURN, all in favor, 9-0. Meeting adjourned at 9:01 p.m.

_______________________

 

A TRUE RECORD ATTEST:

 

 

 

William C. Campbell

City Clerk and Clerk of the City Council

_______________________

 

The following minutes were released by vote of the City Council on December 6, 2016:

 

Motion made and 2nd to suspend the rules for the purposes of taking the following matter out of order, all in favor, 9-0. A communication dated March 23, 2011 with attachments was received from John D. McElhiney, City Solicitor as follows:

 

Re: Land Court Decision –A.L. Prime Energy v City Council Special Permit for 1 Hill Street, Woburn, MA

 

Dear Members of the Council:

 

I enclose a copy of the land Court decision in the above matter.  Essentially the Land Court has overturned the decision of the City Council to deny the special Permit, which denial occurred back in January 2008.  The Land Court Judge has determined that the Council’s action in denying the Special Permit was “‘arbitrary and capricious.”

 

Further, the Judge has remanded the matter to the City Council with the express order to issue the Special permit, subject, however, to six stated conditions contained in the Order.

I wish to discuss this matter with the Council with respect to an evaluation of the Decision and the Council’s options and strategy with respect to this matter.  Kindly provide time for such discussion at your next regular meeting on April 5, 2011.  In as much as my advice to the Council will involve strategy with respect to this litigation matter, it would be my suggestion that the Council consider going into Executive Session to receive my comments.

 

Unfortunately, given the timing of the Decision and the scheduling of Council meetings, it would appear you should be prepared to take some action on this matter at your meeting of April 5th, given that the Order requires a decision by April 14, 2011.

 

I am looking forward to meeting with you on the 5th.

 

Sincerely, s/John D. McElhiney, City Solicitor

 

Motion made and 2nd that the City Council go into Executive Session for the purposes of discussing on-going litigation in the matter of A.L. Prime Energy v. City Council, Land Court No. 08-MISC-370678(KFS), ROLL CALL: Anderson – Yes, DiTucci – Yes,

Drapeau – Yes, Gaffney – Yes, Gately – Yes , Haggerty – Yes, Mercer-Bruen – Yes, Raymond – Yes, Denaro – Yes. President Denaro stated that the City Council would reconvene in the Council Chambers after the conclusion of the Executive Session. The City Council removed from the Council Chambers at 7:32 p.m. and reconvened in the Committee Room. EXECUTIVE SESSION. City Solicitor John D. McElhiney was present in the Committee Room with the members of the City Council. City Solicitor McElhiney stated that this concerns a special permit request for property on Hill Street, that this is the site of the former Registry of Motor Vehicles building, that the petition was filed in 2007, that the petitioner would raze the former Registry building and construct 13,700 square feet of office space, 1,200 square foot convenience store and a self-service gasoline station with four pumps, that the property is located in the B-I zoning district, that the office us is a by-right use, that the convenience store under 5,000 square feet is a by-right use but a special permit is required because of the hours requested which in this case are 24 hours per day, that the special permit is also required for the self-service gasoline station, that the city hired Vanasse Hangen and Brustlin (VHB) to perform a peer review of the project, that VHB said all of their questions and concerns had been addressed with recommendations for minor changes, that the City Engineer was satisfied with the changes to the proposal, that the Planning Board recommended approval of the petition, that the City Council voted six in favor and three opposed deny the special permit, that the decision of the City Council was appealed by the petitioner to the Land Court, that the Land Court judge found after a trial held in June 2010 that the decision of the City Council was arbitrary and capricious, that the issue is whether the City Council wishes to take the decision as it is or to appeal this decision, that if the decision it to take the decision as it is then the City Council must grant the special permit with the six conditions imposed by the Land Court judge, that the petitioner still needs to obtain an easement from the Commonwealth for an additional lane if the special permit is granted, that it was always part of the petitioner’s plan to go to the Commonwealth for approval of the easement after the special permit was granted, that this was a decision of the Chief Justice of the Land Court and the decision will not be overturned lightly, that the judge did find that there were traffic concerns and it was the judge’s opinion that all of the traffic concerns could be mitigated, that the judge may have crossed the line by substituting her judgment for the judgment of the City Council, that there were issues of traffic based on five year projections, that the City Council may decide that traffic is an issue, that there was a basis in the evidence as the judge found  that the traffic was an issue, that this may be an issue of law and the Appeals Court could overturn the decision of the Land Court judge, that another City Council may have decided differently on the special permit but the City Council at the time of the petition felt that the traffic was an issue, that the appeal would be handled in-house, and that the cost of the appeal would be for printing which could be substantial. Alderman MercerBruen stated that the mixed use is not allowed on one site under the Zoning Code, and that the City Council tried to encourage one or another use for the land rather than the mixed use but the petitioner did not agree. City Solicitor McElhiney stated that he is not advocating that if the city loses a case to appeal however in this case there is a basis for a good faith appeal based on an issue of law. Alderman Mercer-Bruen stated that the traffic has not improved in the area since the petition was filed. Alderman Raymond stated that the traffic in that area has gotten worse since the petition was filed, that he understands about the third turn lane but this project will add more traffic to the area, and that he cannot consider the project until there are improvements to the street and lights in that area. City Solicitor McElhiney stated that there will be no fines if the city loses the appeal, and that the city has no negotiation position now and if the city lost the appeal the city would be in the same position then with respect to negotiation position. Alderman Gately stated that he voted for the permit in 2007 as he did not believe that the city would prevail in court, that he is concerned that the city still does not have a strong enough position to win the appeal, and that the Gibbs special permit was appealed and the city lost the appeal and now the city had no control over the conditions at that location. City Solicitor McElhiney reviewed the six conditions imposed by the judge including requirements for an exclusive right turn lane and a center aisle which will require approval of the Commonwealth. Alderman Anderson stated that if the city wants to negotiate the question is what does the city want to negotiate, and that it is difficult to overturn an trial judge but the appeal looks like a good appeal based on the law. City Solicitor McElhiney stated that MassDOT can work with the petitioner without regard to the city’s interests or zoning issues, that if the project works for the Commonwealth then the Commonwealth will likely approve the request and if the project does not work for the Commonwealth then the Commonwealth likely will not approve the request, and that the Commonwealth is not concerned with Hill Street but is concerned with getting traffic on and off the highway. Alderman Mercer-Bruen stated that she has been told that this property is going to be offered for sale, and that if the appeal does not cost the city any money, there is a good faith basis for appeal and the city does not lose any ground then she wants to pursue the appeal. City Solicitor McElhiney stated that the favorable recommendation of the Planning Board and the peer review study indicating that the changes were satisfactory made the case hard to win but the City Council is responsible for the final vote and the it is the City Council’s decision whether or not to grant the special permit, that there will be some monetary cost to the city, and that not every case should be appealed but that there is a good faith basis to appeal in this matter. President Denaro stated that he is in favor of appealing the decision of the Land Court judge, that he was not originally in favor of denying the special permit, and the this likely will not be a successful appeal. Alderman Anderson stated that Hill Street works as two lanes. City Solicitor McElhiney stated that Hill Street is one lane, that Hill Street backs up quickly from traffic exiting the McDonald’s lot, and that this is a good location and a valuable piece of property located right next to the highway. Motion made and 2nd that the decision of the Land Court in the matter of A.L. Prime Energy v. City Council, Land Court No. 08-MISC-370678(KFS) be appealed to the Appeals Court, ROLL CALL:

Anderson – Yes, DiTucci – Yes, Drapeau – Yes, Gaffney – Yes, Gately – Yes , Haggerty –

Yes, Mercer-Bruen – Yes, Raymond – Yes, Denaro – Yes. Motion made and 2nd that the Executive Session be closed and that the City Council return to the regular order of business in open session, ), ROLL CALL: Anderson – Yes, DiTucci – Yes, Drapeau – Yes, Gaffney – Yes, Gately – Yes , Haggerty – Yes, Mercer-Bruen – Yes, Raymond – Yes,

Denaro – Yes. The City Council returned to the Council Chamber at 7:59 p.m. President Denaro stated that the City Council voted in Executive Session to appeal the decision of the Land Court in the matter of A.L. Prime Energy v. City Council, Land Court No. 08MISC-370678(KFS).

 

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Motion made and 2nd to return to the regular order of business, all in favor, 9-0.

 

 

A TRUE RECORD ATTEST:

 

 

 

William C. Campbell

City Clerk and Clerk of the City Council

 

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