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Minutes - January 26, 2009
7:00 P.M.

SELECTMEN PRESENT:  Cole, LaMantia, Marsland, McManus, Wilkins

OTHERS PRESENT:  Town Administrator James Merriam, Assistant Town Administrator Nan Balmer, David Ryan, John Chatham, Tom Leach, Elizabeth Hude, Geoff Larsen, Dana DeCosta, Matthew Cushing, Chet Berg, Colleen Springer, Leo Cakounes, Dean Knight, Bob Smith, Alice Boyd, Abigail Newberry, Michael Lach, Jack Brown, Lara Slifka, and others.

MEETING CALLED TO ORDER at 7:00 p.m. by Chairman Wilkins.  


No one appeared before the Board.


Dr. Cushing of the Trails Committee read a news item he prepared for release regarding recurrent vandalism on Town property including signs defaced with graffiti, torn down posts, damaged kiosks, fences damaged by fire and litter.


A.      Approve Minutes:
1.      January 5, 2009 – Regular Session
        B.      Accept resignation from the Trails Committee
        C.      Appoint representative from the Bikeways Committee to the Traffic Safety                                Committee

Mr. LaMantia requested to pull Item A as he was not at the meeting.  Mr. McManus moved to approve Items B and C on the Consent Agenda and the recommended actions thereon.  Mr. Cole seconded the motion.  The motion carried by a unanimous vote.

Mr. McManus moved approval of the minutes of January 5, 2009 Regular Session.  Mr. Cole seconded the motion and requested that the spelling of Mr. Follas’ name be corrected in the Town Administrator’s Report.  The motion carried by a 4-0-1 vote with Mr. LaMantia abstaining from the vote.


A.      Endorse addition of Childcare Subsidy Program to the Harwich/Dennis CDBG Grant

Ms. Boyd explained that in recent weeks there have been significant cuts in daycare and after school child care subsidies for low to moderate income families which is having an impact on Harwich families.  She noted that the Regional Community Advisory Committed has voted to include a social service component in the Community Development Block Grant Application (CDBG) to provide subsidies for families when the loss of daycare would mean the loss of income to the family.  She stated that the Childcare Subsidy Program will be budgeted at approximately $100,000 and provide annual subsidies of up to $5,000 per child with eighteen families being served.  Ms. Boyd asked the Board to endorse the addition of the Childcare Subsidy Program to the CDBG grant application.  Ms. Newberry briefly explained how the child care voucher process works.

Mr. McManus moved to endorse the addition of the Childcare Subsidy Program to the Harwich/Dennis Community Development Block Grant Application.  Mr. Marsland seconded the motion and the motion carried by a unanimous vote.


Discussion on Texeira Property (Article 8) by Conservation Commission and the Agricultural Commission

Mr. Merriam explained that the Texeira property was purchased with land bank monies and is under the care and custody of the Conservation Commission.  He noted that the Agricultural Commission would like to use an area of this property approximately 2 acres in size and is asking for support of a Memorandum of Understanding (MOU) in which the Conservation Commission would allow a portion of the parcel to be used for agricultural purposes.  He stated that an MOU signed by both commissions is a requirement irrespective of what Town Meeting does under Article 8, which would authorize us to submit a petition to the legislature in order to get a special Home Rule passed.  Mr. Merriam pointed out that the majority of the Conservation Commission has not voted to support the MOU and Town Counsel has opined that the vote of the Conservation Commission must be a simple majority, the vote of Town Meeting for Article 8 must be a simple majority and if it gets to the legislature it would require a two-thirds vote.  He pointed out that there is correspondence from the Department of Conservation and Recreation (DCR) indicating that they believe that a two-thirds vote would be required by Town Meeting and a unanimous vote by the Conservation Commission.

Chet Berg, Conservation Commission Chair, stated that the organic garden plot proposal by the Agricultural Commission has great merit and that their proposal has been reduced considerably from the original proposal which included the use of animals and a farmers market.  Mr. Berg explained that the Texeira property was acquired by the Town with a restriction placed on its use so that it was to be used for preservation, open space, conservation and passive recreation, and that agricultural use was specifically omitted and in order for that to be changed, it would require a vote of Town Meeting followed by petitioning of the state legislature where it would require a two-thirds vote.  He stated that before any consideration to allow a change of use of this property, it is important for all parties to understand what resources are currently dependent on this land in its current state.  Mr. Berg explained that the parcel is 16.2 acres of open meadow with the rest being upland buffer to wetlands and there are species whose survival is dependent on open meadow including Whippoorwill, Eastern Meadowlark, and Northern Bob White.  He pointed out that there is less than 2% open meadow left on Cape Cod and we should be preserving this open meadow and providing habitat for these and other declining species. He pointed out that there are other lands available and they have asked the Agricultural Commission to look at other Town-owned lands many of which have no restrictions and some that are currently under agricultural use including the Town gardens and the Great Swamp Bog.  He noted that a recent inventory of Town-owned land was performed which is available for the Agricultural Commission’s review.  Ms. Slifka presented aerial photos which included the Texeira property and Town gardens.

Colleen Springer of the Agricultural Commission stated that under the land bank regulation agricultural use is permissible but it just wasn’t put into this deed and this can be overturned.  She stated that they would like to give the voters an opportunity to make the choice.  She noted that the property is under the control of the Conservation Commission but they don’t own it and agricultural use is not going to inhibit or disturb anything there.  Ms. Springer provided the reasons why they chose the Texeira property including that it is on a main road and easily accessible and is closest to the high residential area of East Harwich.  Ms. Springer pointed out that the Town gardens have Town water which is not organic.  She stated that they did look at the other properties and they couldn’t find half of them and rest had no access or were too isolated.

Mr. Lach, Executive Director of the Harwich Conservation Trust, shared the position of the Harwich Conservation Trust Board of Trustees which opposes Article 8 for the following reasons:

·       It is ambiguous as to who is intended to control the property.
·       It subverts the Conservation Commissions standard review process.
·       It has put two committees against each other.
·       It could set precedence and shake the public trust in the Town’s commitment to land acquisition and passive recreation purposes.

Mr. Cakounes stated that agricultural use was wrongly omitted from the article and that the Texeira’s would have supported agricultural use.  He stated that all the species would enjoy the gardens as it is a food source for them as evidenced by the deer population at the Town gardens.  He pointed out that an organic farm could not legally be put at the Town gardens due to the herbicides and pesticides used there.  He noted that at their meeting on December 5, 2008, the legislative body of the Cape and Islands Farm Bureau voted to petition the state to include agricultural uses in land purchased for recreational use.

Mr. Widegren, Real Estate and Open Space Committee Chair, stated that he does not believe that Isabel Smith omitted this by mistake and believes the voters decided at that time what they wanted to do with the property.

Mr. Smith read the provisions of the Land Bank Act.  Mr. DeCosta noted that the Finance Committee has voted to support this article.

Mr. McManus requested that Mr. Merriam ask Town Counsel what would be required to add agricultural use to the deed.  He also pointed out that the articles for the Great Swamp and Main Street bogs came before the Texeira article and the voters were familiar with the need to include the language for agricultural use if that is what they wanted.

Mr. Chatham suggested resolving this by having the Agricultural Commission and Conservation Commission work together on a Memorandum of Agreement as the Agricultural Commission had brought this forward without any input from the Conservation Commission.

Mr. Knight of the Conservation Commission said he does not believe that the Conservation Commission has any right to approve an MOU that allows for a non-permitted use of a conservation administered property even if they believe it is a good use as it is contrary to Town Meeting vote.  He noted that the process to remove or change the use is quite purposefully restrictive and difficult and he is not sure either commission received a complete legal opinion of the process for an Article 97 land use change.

Mr. LaMantia stressed the need for both an Open Space Plan and Conservation Plan as well as to determine the process and follow it.  

Chairman Wilkins stated that this discussion was to provide taxpayers an introduction to this matter and encouraged residents to come to Town Meeting for further discussion on this matter.


A.      Nominations for a term as Harwich’s representative to the Barnstable County HOME Consortium to serve through January 31, 2012

Mr. McManus moved that Gerry Loftus continue on as our representative to the Barnstable HOME Consortium to serve a term till 2012.  Mr. Marsland seconded the motion and the motion carried by a unanimous vote.

B.      Reaffirm Selectmen’s Policy on Fees

Mr. Cole moved to reaffirm the policy and replace the word “new” in the first sentence with the word “standing” and after the text “March 22, 1994” add “and reaffirmed on January 26, 2009.”  Mr. Merriam suggested adding “appointed by the Board of Selectmen” after “All Departments, Committees, Commissions and Boards.” Mr. Cole accepted Mr. Merriam’s amendment.  Chairman Wilkins seconded the motion and the motion carried by a unanimous vote.

C.      Review Special Town Meeting Articles
D.      Review Article Motions

Mr. Merriam stated that as a result of his meeting with Moderator Ford and Attorney Giorgio, he is recommending that Article 6, Reserve for Future Appropriation Amounts from FY09 Community Preservation Fund Estimated Tax Revenues, be indefinitely postponed as the tax rate has been set.  Mr. Ryan said it will be brought back for the Annual Meeting for FY10.  Mr. LaMantia moved to indefinitely postpone Article 6.  Mr. Marsland seconded the motion.  Mr. McManus noted that the Board should rescind their previous motion first and Mr. LaMantia withdrew his motion.  Mr. McManus moved to rescind their previous motion to support Article 6.  Mr. Cole seconded the motion and the motion carried by a unanimous vote.  Mr. LaMantia moved to indefinitely postpone Article 6.  Mr. Marsland seconded the motion and the motion carried by a unanimous vote.

With regard to Article 1, Supplement Reserve Fund, Mr. Merriam stated that he and Mr. Ryan have not come up with a recommendation yet but are discussing it.  He noted that they have concerns about payouts of benefits for people who have left our employment, snow and ice budget, and Fire Department overtime.  He explained that the Infrastructure Grant applications have been submitted to the Lt. Governor’s office and we have been notified that they are looking for our top 3 projects.

With regard to Article 8, Mr. McManus stressed that they need to know what steps are involved in the DEP review process and be in a position to answer questions before they vote on this article.  Mr. Marsland suggested that Mr. Merriam contact the DEP to see what is involved and Mr. Merriam responded that it requires an MOU, Town Meeting vote and act of the Legislature.  Chairman Wilkins requested that Mr. Merriam provide a process list for the Board to review next week.

After discussion, Chairman Wilkins moved to rescind their position on Article 13, Accept M.G.L. Ch. 32B Section 18A - Medicare Extension Plans.  Mr. Cole seconded the motion.  Mr. Marsland suggested waiting until next week to vote to see if any further information comes out.  Chairman Wilkins withdrew his motion.

NEW BUSINESS (Continued)

B.      Award contract to GlobalStreams for Channel 18 Equipment

Mr. Cole moved to approve awarding a contract to GlobalStreams for the purchase of equipment specified by the Town for a total cost of $51,276 for equipment and $2,776 for an extended warranty.  Chairman Wilkins seconded the motion and the motion carried by a unanimous vote.

C.      Approve Mooring Servicing Agent’s License Agreements

Mr. McManus moved to enter into and sign License Agreements for Mooring Servicing Agents with Allen Harbor Marine, Inc. for the Allen Harbor mooring field, AGL Mooring of Hyannis Port for the Herring River mooring field, Chatham Mooring Services for the Pleasant Bay and Round Cove mooring fields and Harwich Port Boat Yard for the Wychmere Harbor mooring field for calendar years 2009, 2010, and 2011 subject to the Town’s receipt of required certificates of insurance and subject to acceptable annual performance reviews at the end of 2009 and 2010 by the Harbormaster.  Mr. Cole seconded the motion.  Mr. LaMantia stated that under “Conduct” on Section V we need to put in language that the Mooring Service Agent is responsive to his customers and maintains good working relationships similar to language used in the Committee Handbook.  Mr. Cole requested that the last sentence on the first page be changed as it did not make sense.  Ms. Balmer distributed the Mooring Servicing Agent fee comparison as provided by Mr. Leach.  At Chairman Wilkins’ request, Mr. McManus agreed to include making the amendments as part of the motion.  The motion carried by a unanimous vote.

D.      Request from Circadia Country Inn and Tavern to close until March 1, 2009 and to hold liquor license until that time

Mr. Marsland asked Mr. Merriam to find out when Circadia closed.  After discussion, Mr. Cole moved to approve the request by Circadia to remain closed until the first of March.  Mr. Marsland seconded the motion and the motion carried by a unanimous vote.

E.      Set Seasonal Population

Mr. McManus moved to set the seasonal population at 30,500.  Chairman Wilkins seconded the motion.  The motion carried by a 4-0-1 vote with Mr. Cole abstaining from the vote.

F.      Discussion of staffing in Planning/Zoning Department

Mr. Merriam outlined the proposal (see attached).  Mr. Brown, ZBA Clerk, stated that much of what is being proposed is administrative support but the issue of technical support still remains.  He commented that Ms. Leven had provided a tremendous amount of technical support to the ZBA which was extremely helpful but at this time he feels they are not having adequate technical support on a timely basis to help the applicants with their requests causing unnecessary delays and the potential for errors on the part of the ZBA.  Mr. Brown stated that the Chair, Mr. Flink, believes they can handle it with their collective experience.

Ms. Hude stated that the Planning Board Chair has asked for a continuation of this matter so that the Planning Board can discuss it at their next meeting.  She explained that she and the Building Commissioner, Mr. Larsen, had worked out an arrangement which was agreeable to both of them that the zoning function would fall under the umbrella of the Building Department.  She explained that they did this in accordance with MGL 40A which clearly directs ZBA functions to the Zoning Administrator as well as our general by-law Section 10 which calls for the Building Inspector to be the Zoning Administrator and Enforcement Officer.  She stated that Ms. Leven stepped in to provide support when there was none and historically this has been a function of the Building Department.  She stated that if the Board agrees with the structure requiring her involvement in the ZBA, then she will provide the support.  She expressed her concern that the proposal calls for her to be the department head for Planning and the ZBA and the reporting structure needs to be very clear and in keeping with MGL.

Chairman Wilkins stated that he concurred with Ms. Hude completely and supported her fully in getting the reporting structure straightened out now noting that it is everyone’s best interest.  Mr. LaMantia agreed and commented that Ms. Hude is only one person and can only do so much.

Mr. Larsen agreed with Ms. Hude and asked the Board to look at the entire spectrum of Building and Planning tasks as they make their decision.  He stated that there is an economic downturn right now but there are other tasks that need to be done.

Mr. McManus stated that he raised this issue at the Board’s last meeting because he was concerned that there was a hiring process going on that was avoiding the review the Board had requested.  He added that when he raised the question it was in the context of not only what we are planning to do now but what we are planning to do beginning July 1 and there is nothing in this proposal that addresses that.  He commented that he is well aware of the potential for layoffs and anyone who is laid off now will be out of work for years and they need to consider this very carefully.

Mr. LaMantia pointed out that the ZBA not only make judgments on things that go through the Building Department but through the Planning Department as well.  He stated that Mr. Flink has indicated that they need more clerical assistance and they should think about providing that clerical support and see how it works.

Mr. Marsland stressed that we are under a hiring freeze and we have already hired more people than we should have under the hiring freeze.  He noted that we need to handle this in the most cost effective way we can and he can’t support this proposal.

Mr. McManus stated that when you have a body disappear from an organization there is an impact on the amount of work that gets done and that he fully realizes that we are down but he had asked for a review of this position and had asked for it to be all inclusive through the continuum from the Planning Department to the Building Department and not only what is going to happen for the next couple of months but what we will have in place after July 1 so that they can review it as a whole.  He reiterated that this document does not provide any of that and it only provides for the downgrading the position of Assistant Town Planner to a Head Clerk position and backfilling with a Board Secretary position of 5 to10 hours per week.  He pointed out that the other issues aren’t mentioned in any concrete way and he can’t make a decision based on that level of information.

Mr. Merriam stated that this position is for the short term for the balance of FY09, and is the proposed staffing level for FY10 and is incorporated in the FY10 budget recommendations.  He stated that we can afford this staffing level and he believes it meets the Town’s needs.

Mr. Larsen asked the Board to be mindful of the fact that he is certified by the Department of Public Safety and in that capacity is called on to respond when there are concerns by the Fire Department of infractions, building code violations or unsafe structures.  He requested that public safety does not suffer when this matter is resolved.

Mr. Cole asked for clarification on the statute and by law provisions that Ms. Hude had discussed that are in conflict with what is proposed.  Mr. Merriam agreed to bring that back next week.  Chairman Wilkins stated that this item would be on next week’s agenda.


Mr. Merriam delivered the following report to the Board:

Harwich High School
Best Improved: Harwich High School by Great Schools in Business Week
Town: Harwich
GreatSchools rating: 10/10

School Budget cuts
Attached is Superintendent Cragin’s list of cuts that she presented to the School Committee on January 14th  totaling $1,178,337.

Chairman DeLeo
Robin, Nan, Carolyn Cragin and I attended a meeting on Jan. 16th at Eastham Town Hall with House Chairman of Ways and Means Robert DeLeo. While, he did not provide any specifics, he did mention his desire to give us tools to cope with the Local Aid cuts. Those tools included meals, hotel/motel tax telecommunications loophole closing, regionalization and joining GIC. Robin addressed how the Cape embrced regionalism and I spoke of the need for Group Health plan design as an alterntive to joining GIC, because the Legislature set the 70% union support and only a handful of communities joined GIC.

Attached is a letter from Covanta’s Business Manager seeking an amendment to the current contract in which the Town would pay higher tip fees for the last five years of the current contract. The offer is open until 6/30/09. Lincoln Hooper and I attended a CCC meeting in Barnstable re: solid waste on January 21st. With the Cape towns represented at the meeting, we recommended that the CCC coordinate our efforts to explore alternatives. We agreed that Tier 1 communities stay united and not adhere to Covanta’s June 30th self imposed deadline.

Mr. McManus moved to extend the meeting for 10 minutes.  Mr. Cole seconded the motion and the motion carried by a unanimous vote.

Little Beach
Our office received and I forwarded copies of several letters in opposition to the Fitpatrick NOI before the Conservation Commission requesting permission to erect a fence down the middle of the 40 foot easement. ConCom voted to approve the applicant’s request for an extension until March 3rd.

Mr. McManus stressed that they need to establish a manually powered personal watercraft launching area to establish a purpose for why we need maintain the right of way to the water.  Chairman Wilkins stated that he doesn’t believe this is under the jurisdiction of the Conservation Commission.

Red River Beach
The Dredging and Beach Nourishment group met with Chet Berg and Dean Knight to discuss codium disposal for next summer and develop a longer term plan. Staff will refine a plan to deposit at both ends of the beach without impacting on natural dune areas.

South Meeting House
Judy Ford provided me a tour of the current excavation project under the foundation. Most of the post and beam timbers were in good shape for 1832 construction.(there’s only six inches of crawl space between the beams and sand.) Judy informed me of their desire to lift the building up about six inches and pour a concrete foundation as well as construct a parking lot south of the cemetery off Mohawk Lane.

Chief Mason received a complaint of hunters on private property and walking toward Conservation property on the Rail Trail. Absent a Harwich by-law, Chief Mason believes that hunters have the legal right to hunt on  private property (State law prohibits discharge of a firearm or release of an arrow upon or across any state or hard surface highway, or within 150 feet of any such highway, or possession of a loaded firearm, discharge of a firearm, or hunting on the land of another within 500 feet of any dwelling or building in use, except as authorized by the owner or occupant thereof.)  Some communities require through a by-law that property owners must grant hunters prior written permission to hunt. Some communities also prohibit hunting on Town owned properties. In this particular case, Chief Mason found that no state law had been broken by the hunters.

Harwich Mariners
The Cape Cod League Champion trophies will be on display in our office starting January 26th.

Group Health Insurance Trust Fund
Dolly Parkhurst received a check from Blue Cross in the amount of $37,675.49 as a partial release of their working capital. They have retained $50,000 balance.

BOS Budget subcommitte
Selectmen McManus and LaMantia met with Nan, Dave and me to discuss potential revenue sources and budget/ service cuts in more detail. We’ll await the Governor’s speech on Friday for more specifics for FY 09 and 10. We’re scheduled to meet again next Wednesday.

Conflict of Interest Seminar
We have tentatively scheduled a seminar on February 24th with a representative from the State Ethics Commission. He requires a minimum of 30 attendeees but we only have 7 signed up at this time after asking all Boards to provide us with members intending to come.

Volpe Transportation Center
Link Hooper, Bill Doherty , Elizabeth Hude and I met with Federal officials on grant studies involving Ntional Seashore, public transportation, bike trails, sidewalks, emergency routes, etc. Lindsey Morse and Frances Fisher from Volpe National Transportation Center and Clay Schofield from CCC also attended.  

Wind Turbine
Barry Worth, Larry Cole, Steve Wiehe and I met with Chris Adams from Congressman Delahunt’s office. Our selected sites are impacted by Chatham airport. We will pursue technical advice how to select a site which does not have FAA limitations.

Gomes Way
I spoke to Don Dickerson re: the sale of town owned land if Town Meeting approves. We’ll need an independent appraiser to determine if the land is worth $25,000 or greater for bidding purposes. We’ll await the vote before addressing this issue.


Mr. McManus moved to adjourn at 10:40 p.m.  Mr. Marsland seconded the motion and the motion carried by a unanimous vote.

Respectfully submitted,

Ann Steidel
Recording Secretary

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