The Board of Selectmen met this evening with Chairman Jeffrey Tufts presiding. In attendance were William Hardin, Frederick Clark, Patricia Hunt, Patricia Webster, and Town Adm. Kevin Paicos.

On Clark’s motion, seconded by Hardin, the Board voted unanimously to approve General Minutes dated 8/25/97.

On Clark’s motion, seconded by Hunt, the Board voted 4-0-1 to approve General minutes dated 9/8/97. Hardin abstained.

On Hunt’s motion, seconded by Hardin, the Board voted 4-0-1 to table Executive Session minutes dated 2/3/97. Webster abstained.

On Hunt’s motion, seconded by Clark, the Board voted unanimously to approve Executive Session Minutes dated 5/12/97.

On Hunt’s motion, seconded by Clark, the Board voted unanimously to table Executive Session Minutes dated 8/25/97.

On Clark’s motion, seconded by Hunt, the Board voted 4-0-1 to approve Executive Session Minutes dated 9/8/97. Hardin abstained.

Tufts read the notice of the upcoming Fire Department Open House.

Tufts read Krohn’s Proclamation. On Clark’s motion, seconded by Hardin, the Board voted unanimously to support and approve the Proclamation for Larry Krohn’s retirement.

Tufts read request. On Clark’s motion, seconded by Webster, the Board voted unanimously to approve sign request and fee waiver, as requested by TEMPO.

Tufts read the request. On Clark’s motion, seconded by Hardin, the Board voted unanimously to approve the road closing for a block party on Old Farm Road on 9/27/97, subject to the usual conditions.

Clark noted the recommendation from Special Counsel Lou Cassis. On Hunt’s motion, seconded by Hardin, the Board voted unanimously to have the Police check on the status of the cases referred to by Special Counsel in his letter and to report back to the Board.

At this point in the meeting Selectman Hunt left during discussion and voting.

G. Heino, A. Martin K. Percy and several residents in attendance. Tufts read his letter to the Board.

Hardin’s motion, seconded by Webster, to have the Board of Selectmen noted as being against the proposal as stated by the MBTA to run trains through the Town of Easton, was not voted at this time.

Clark expressed concern with there being no further input from the public by way of either a ballot question or a questionnaire. Hardin noted he is totally opposed to the current MBTA proposal and doesn’t feel they haven’t shown the need for expanded rail service. Hardin noted that the majority of the people who have contacted him are in favor of extended rail service. Hardin noted that if the MBTA had a proposal that eliminated grade crossings and would propose a tunnel through the Town, with no whistles and none of the typical problems with trains, as an environmentalist he would be in favor. Hardin again stated that it is the way it has been proposed that he is opposed to. Tufts noted that the political reality is that we can’t try to negotiate with the MBTA, and the Board needs to take a stand for or against. Tufts noted that the Board has held two public hearings, and he would like to take a stand against this and have the Town Administrator and DPW Director do what they have to begin opposing this. Webster noted that while she agrees with a referendum question, she wants to move forward with the vote tonight or to set a date certain for a referendum. Hardin noted that it is important to take a vote now because the last recorded vote of the Board of Selectmen was in 1988 and was unanimously in favor. Clark noted concern with the aquifer area in the right-of-way. Clark noted that the Town’s largest well is at the end of Gary Lane and he is concerned with running the risk of polluting that well. Clark again stated he wants to know what the people want, and noted he needs information from ConCom and the Water Dept.

G. Heino stated that as the Board of Selectmen, you should speak out and voice your opinion just as the Raynham Selectmen did, prior to their Town’s vote. Clark noted that if the people knew the impact on the wells, it would defray people from wanting the train. Heino noted people don’t realize the impact on the entire Town. A. Martin noted she read the report and went to a meeting and passed it onto Acting Governor Cellucci. Martin noted that Easton should put in writing that they are in favor of bus service. Martin noted her husband travels to Boston every day, but still believes that we shouldn’t spend $435M when for $22M we could have enhanced bus service. Martin noted that the bus service would solve some of the commuting issues and wouldn’t interrupt the Town. Webster noted that since the last meeting , the people she has heard from have been against this and she would feel OK taking a vote at this time. Paicos noted the Department Heads are submitting reports RE: this issue, and he has received 5 to date. Paicos noted that to date the pro side is thin and the negative side is overwhelming. Paicos noted a full report will be submitted to the Board within a few weeks. Paicos encouraged the Board to take a position now. Paicos noted that our Legislators are looking for direction from the Board. Paicos noted that the Water Superintendent’s response is negative and he strongly recommends not supporting this. Clark noted he has no problem sending a letter not supporting this but he needs the back up information from ConCom, Water and Historical Comm., RE: negative impacts on the Town.

A Resident stated they were at the Raynham meeting and Sen. Pacheco stated that the Legislature is going forward with legislation that would alleviate issues they would have to deal with in extending the train, i.e., ACEC, water, etc. The resident expressed concern that if Easton delays the Legislature will move fast on this. K. Percy noted that at the Raynham meeting it was stated that federal/state/local wetland laws will not interfere with the extension. Percy noted that the Legislature can waive these laws, and they have done so in the past. Webster noted that no one has come forward in support of the train yet. A Resident noted that people elect officials and hope they are knowledgeable and informed. The Resident noted that citizens must trust the Selectmen to make a decision in their best interest. The Resident noted that as elected officials, with access to all information necessary, it would be easy to make an informed decision, based on that information. Hardin noted that the Board needs some factual information pertaining to protection of wells, trains carrying hazardous materials, etc. On Webster’s motion, seconded by Hardin, the Board voted unanimously to oppose the New Bedford/Fall River Commuter Rail Project, dated March 1997, for Expanded Alternatives Analysis including Alternatives 3A.

Selectman Hunt returned to the meeting at this point.

T. DeCouto, M. Perron, L. Titus, D. Gomes in attendance.

Tufts read the notice. Tufts read the various Dept. comments.

Titus stated she would be the Manager, and noted the letter of the vision for the business. Titus noted the need for a function hall to run both social and corporate events. Titus noted the downstairs will be run as an upscale pub. Titus noted there will be a complete makeover for the facility. Clark noted the need for a site plan, and made note of the change of hours. Tufts questioned if they would want to open earlier than 9:00AM for breakfast meetings. Titus noted that her research shows that 9:00AM is fine. Hunt questioned the seating capacity. Titus noted upstairs will be 200 and downstairs 50, for a total facility capacity of 250.

Hunt noted there were 2 different plans in the file, and wanted to be sure that the correct plan is attached to the license. Hunt questioned the current capacity. Titus note it is currently a total of 350. Hunt questioned the menu and hours for the downstairs. Titus noted currently it operates from 3:00PM to closing. Hunt expressed concern that with a 9:00AM opening, the pub would also open at that time. Titus noted that she sent RFP’s to caterers RE: providing food for the pub. She has received several back. She wants to have one or two regular caterers for the pub who will bring food on a daily basis and the staff would prepare and serve. Titus noted there will be a pub style menu with items such as sandwiches and pizza. Hunt noted her concern with the downstairs operation. Titus noted there will be complimentary Hors D’oeurvres, snacks and pizza. Perron noted there will be fresh food brought in every day, i.e., sandwiches, appetizers. He noted the food will be prepared and served by the Staff, and there will always be food available. Titus gave a brief explanation of the kitchen facilities. Perron noted again that what they offer will be available to patrons. Clark questioned if the menu is available at both the function hall and the pub. Titus stated no, only the pub. Hardin questioned what Titus’ background was. Titus noted she currently works for the Swisse Hotel in Boston, and prior to that was banquet manager at a Boston Hotel, responsible for training all bar tenders. Titus also noted that she consults with her husband’s family who has owned a restaurant in Canton for over 50 years. Hardin cautioned RE: underage drinking especially with a college in Town. Hardin noted that the only acceptable ID for Easton is a MASS drivers license. Perron noted they are looking for a long-term business and want to build up the function business.

Clark’s motion, seconded by Webster to approve the transfer of the All Alcohol Liquor License, to approve the Common Victualler License and the Annual/Sunday Entertainment Licenses, to separate the hours of operation to 1) function hall Monday-Saturday from 9:00AM to 1:00AM and Sunday Noon to 1:00AM - the pub downstairs 11:00AM - 1:00AM from Monday-Saturday and Sunday Noon - 1:00AM, and that they will have food service and adequate kitchens available at all times, and that the license will not be issued until the licensed premises are in conformance with the plan on file with the Selectmen, was not voted at this time.

In response to a condition on the license of having site plan completion, Perron noted he is starting the exterior roof repairs ASAP. He noted his engineers are drawing site plans to submit to the P&ZB. Hunt noted she would want construction completed prior to the license being issued. Paicos noted he wants to ensure this Board doesn’t license an establishment that another Town Board has outstanding issues with. Paicos noted he would want to ensure that for new or transferred licenses that no license be issued without site plan approval. Paicos noted that if seasonal delays occur the applicant can come back to the Board explaining the extraordinary issues, i.e., weather delays etc. Perron noted they will file a site plan with the P&ZB. Hunt noted that the Board has attempted to bring new businesses into compliance. Perron noted they will shut down the pub area during renovations. Perron noted they will need to be completely closed for approx. 30-45 days during renovations. Perron noted he would be either painting or re-siding the outside.

At this point in the meeting, Hunt amended the motion, seconded by Hardin, to have the license held until completion of the site plan and the applicant could come back at any time to the Board, and was not voted at this time.

Tufts expressed concern with the time involved in getting site plan completion. Clark noted the Board has never approved licenses subject to site plan completion. Perron noted he wants to get everything done, but there could be seasonal issues. Perron again stated he will be going to the P&ZB.

Hardin noted the applicants can’t change the storage and service areas for alcohol and that the alcohol storage must be locked.

Vote on the main motion was unanimous.

Attorney D. Marsan, Mr. DePaolo, Attorney Bikofsky, Mr. Kwan, R. Kane in attendance.

Marsan gave a brief history of the property and project as proposed.

Marsan noted he believes part of the land is in the aquifer district, zone 2. He noted this property is down gradient from the nearest Town well. He noted the by-law does not prohibit existing gas stations, and noted CONCO is existing in the aquifer district. Marsan noted the Water Dept. comment stated there would be no problem if the gas tanks are located outside the aquifer district. Marsan noted he has reviewed the plan and his client could move the tanks to land outside the aquifer district. Marsan noted that Town Counsel stated this was not an abandonment situation. Marsan noted the Licensing Counsel stated the primary concern of the statute that governs this is public safety. Marsan noted the Fire Dept. and State Fire Marshall’s Office are all involved in the license process. Marsan noted that Special Counsel stated also that the Board could consider other issues RE: public welfare, i.e., traffic issues.

R. Kane noted he was in favor of this to see something done with the present building and noted the proposal looks pleasing and will service the public well. Attorney Bikofsky noted he represents Mr. Kwan, owner of the Marketplace. Bikofsky noted that Kwan has a substantial investment in Town and pays approx. $35,000 in taxes per year. Prior to Kwan purchasing the Marketplace, there was research done, and the investors were satisfied that no one could put a gas station at that address. He noted that Kwan will litigate the decision if needed to protect his substantial investment. He noted that if the documents are accurate the site is in a business district and an overlay district, aquifer district. A gas service station is not permitted as a matter of right, and needs the ZBA approval. He noted the local by-law denies storage of fuel in an aquifer district. He noted the only reason this is still before the Selectmen is because if functioned in the past as a gas station. He noted that it hasn’t functioned for 10 years; would need ZBA approval due to set backs with the new building; the proposed fuel capacity has doubled; there is a new proposed use on site in a convenience store. He noted it is premature for the Selectmen to deal with this application at this time. He noted he has been a Town Counsel also since 1961. He noted that all opinions in the file, dated in February of 1997 are prior to the case in Provincetown. He gave a brief explanation of the case, noting that the Supreme Judicial Court supported the Town’s decision to deny in a similar case as this one. Bikofsky noted that abandonment is only one way to lose a license, it could also be due to regulating non-conforming uses for more than two years". He noted that Easton’s by-law is the same as Provincetown, siting section B-Definition. He noted this protects a community from non-conforming uses being allowed after non-use - for not more than a certain time. He noted that under the Town’s by-law this use is gone. He noted there can’t be an extension or change to a non-conforming use. Bikofsky also stated that the Board needs to question 1) does the proposed use reflect the nature and purpose of the prior use; 2) is there a difference in quality and character of prior use. He noted that the mere fact of tearing down the building and constructing a new one is beyond the scope as well as adding a new convenience store. He noted that a license for storage is at the discretion of the Selectmen. He noted the Board can consider issues such as does the public need another gas station, in particular in that area. He noted that if the Selectmen think, as a matter of discretion, that gas being stored in or near aquifer district, causes fear of contamination, they can deny because of this. Bikofsky also noted that his client is opposed to this and that there is no legal support for this type of operation. Hardin questioned if the tanks could be put outside of the aquifer area in the back of the lot. Marsan stated yes. Hardin noted he never thought a gas station beside a shopping mall would lower the value. Hardin noted that protection of the aquifer is his primary concern. Hunt noted the sales and storage must be outside of the aquifer, not just storage. Hunt noted that she doesn’t think Town Counsel addressed the zoning by-law as it deals with abandonment. Hunt noted the Board needs to also look into the issue of tearing down and rebuilding on site. Clark noted that after 2 years of non-use - property is abandoned, let alone 10 years. Clark noted that rights have not been preserved, and stated he is not supportive of this license at this location.

Marsan noted he is not sure how a lender could state that no gas station would even be allowed there. Marsan noted that if there is litigation it is between the applicant and Mr. Kwan. Marsan noted that Attorney Bikofsky misstated the by-law, noting that it does allow grandfathering. Marsan noted it is not a problem with buildings, the only problem is in establishing a business with using a non-conforming lot in an overlay protection district - not the buildings.

Paicos RE: abandonment noted there is no language in the by-law dealing with "intent". Paicos noted the business is clearly abandoned for substantially more than two years. Paicos noted that if the Board

approves this we are going against our own zoning by-law. Paicos also expressed concern with the aquifer district, and gave a brief explanation of "zones of influence". Paicos noted that hundreds of wells in MASS have been contaminated by "zones of influence". Paicos noted this situation is precisely what the zoning by-law tried to protect us against. Paicos suggested the Board summarily reject this application. Paicos noted the application violates the zoning by-law and the Board should deny it.

Webster noted that the previous owner’s letter dated 1987 was not clear on their intent. Webster noted that no non-conforming use can be enlarged or changed in any manner.

Hunt’s motion, seconded by Clark, to deny the license request, was not voted at this time.

Marsan noted gas stations are in aquifer districts now and his position is that this use is grandfathered. Marsan expressed concern that this was originally heard in February and it was held to get Town Counsel’s opinion and now the Board is not using that position. Hardin expressed concern with obeying the zoning by-law sec. 4-4. Hardin noted he can’t find the line for the district on that land, and at this point he is not sure how to vote. Marsan gave a brief explanation of how the districts were established. Tufts noted he doesn’t have the facts but something is wrong when we have a common sense decision. Tufts noted that clearly a gas station was there and there is one across the street. Tufts noted he is opposed to denying the license. Paicos noted that the precision of the exact location of the district is difficult. Paicos noted that if dispensing facility can be cited outside of the aquifer district, it would be up to the applicant to prove this not to have the Board figure it out. Hardin noted he believes the property owner has rights and he doesn’t have the proper information to vote at this time. Hunt noted that Town’s have the right to change zoning, and the right to adopt by-laws that state if you don’t use a non-conforming use for two years, the Town has the right to deny continued use.

Attorney D. Marsan, W. Saucier, R. Kane in attendance.

Tufts noted the Board needs information from Board of Health RE: what is needed to correct the septage problem. Kane noted the applicant needs a small parcel of land for a driveway so a septic system can be constructed in front of the building. He noted the proposed plan is already approved by the Board of Health. Marsan noted ConCom stated they would want to keep part of the parcel for the Town and to sell a portion for the septic system. Marsan noted approx. 60’ of the Town owned lot would be needed, and that would still allow 65’ for ConCom. Marsan noted that then everyone would have what they want/need. Marsan noted he would propose a vertical split all the way to the back of the property. Marsan noted there is a proposed addition on this property. Hunt questioned how long New Pond Respite has been in business. Kane noted 8-10 years, and prior to that it was a residence. Hunt questioned if the problem is due to the property being a business vs a residence. Kane noted the problem is simply a failed septic system. Hunt noted that when you add extra people you can cause problems with the septic system. Hunt noted it was presented that this is a problem that the Town should resolve. Hunt noted that if this was a residence and a business went in and contributed to the septic problem, there are two different issues. Hunt again questioned if the problem was caused by the current use of the property. Kane noted the Board of Health only deals with what is existing today. He noted there is a failed system and a plan for an addition. A system has been designed to handle both. Kane expressed concern that the septage could be going into the pond now from the failed system. Hunt noted that one set of circumstances came to the Board and a decision should be based on all the information. Hunt expressed concern with Town land being looked at for the solution. Hunt noted that probably the problem is due to the change of use and expanded use. Hunt noted that the pollution problem could be solved by reducing use, and she is surprised that Town land is being looked to for resolving this issue. Kane noted he is not here to judge, and is recommending what the Board of Health feels is the best solution. Kane noted this solution protects the pond and allows a very valuable service to the Town. Kane noted this business was approved several years ago. Marsan noted the Board of Health is not advocating for the client, they are just trying to offer a resolution to a failed septic system. Marsan noted he is not sure that the added business caused the failed septic system. Saucier noted that no matter if it is commercial or residential there is a failed system. Saucier gave a brief explanation of

the process with the Board of Health and the State to approve the septic system. He noted that the maximum build out is 4 bedrooms and 150,000 gallons per day. Webster noted the applicant can have a maximum of 6 patients and most don’t stay over night. She noted this is primarily day care. Webster noted the owner of the business brought to the Town’s attention that the unowned property existed. Hardin noted that he brought this issue to the Town’s attention in 1987 prior to the business owner coming forward. Hardin noted that helping the Church of Good Shepherd was solving a Town problem. This is a problem the person made for themselves. He noted they only have 20’ frontage to get at 68 acres of Town land, and this land needs to go to the ConCom for the benefit of the Town, not to benefit one person. Clark questioned how much of the lot is really needed to take care of the current problem. Kane noted a 20’W x 91’L area is needed for the septic system. Kane noted the Town could give permission for the septic system to be on Town owned land. Kane again recommended the Board of Health’s proposal because it keeps the septic system on the applicant’s property, not the Town’s. Saucier gave a brief explanation of the type of system that is proposed. Hardin questioned what would be the design if there was no addition. Saucier wasn’t sure. Webster noted that the applicant only wants the addition for a family room, not for more patients. Webster noted the applicant is only licensed for 6 patients and doesn’t intend to expand the license. Kane noted the Board of Health doesn’t attempt to look for Town property to solve septic systems. Kane noted the applicant needs to hire a surveyor and meet with the Selectmen again. Marsan requested permission to go onto Town land to do perc tests, to see if there are any other options. Hardin noted the Town owns lots 18 and 16 and lot 18 already has a parking area. He would rather use lot 18 vs lot 16 for this issue. Tufts noted he would rather allow perc tests to be done and wait for the results.

On Clark’s motion, seconded by Webster, the Board voted 3-2 to allow the applicant to go forward on lot 16 for perc tests subject to 1) filling all perc holes on the same day; 2) not cutting any trees over 4" diameter; 3) indemnifying the Town that the land will be restored to its original condition. Hardin, Hunt opposed.

Clark’s motion, seconded by Hardin, to appoint M. McCoobery as an Alternate on the Board of Appeals, for a two year term, was not voted at this time. Hunt noted the applicant stated he had no idea what the ZBA does and actually had an incorrect opinion. Hunt noted this is a regulatory Board and she wants to provide training. Hunt’s amended the motion, seconded by Hardin to purchase the audio tapes RE: P&ZB and ZBA and to make available to the applicant and every person it applies to and to require the applicant to attend the training in Marlboro on 10/18/97, was not voted at this time. Paicos noted he can convey the message that encourages all volunteers on Boards to attend training and that they know the Board expects this. The amended motion was withdrawn.

Tufts noted that the tone of the discussion at the last meeting took a bad turn. He noted he wants to appoint someone who will treat people the way he wants them to be treated, and to decide as he would want them to decide. Tufts noted the Board needs to make sure decisions on appointments meet their expectations of those Boards. Tufts noted he thinks the Board of Appeals has drifted into areas they shouldn’t be and he is upset with them.

Clark noted a person should do what is best for the Town, not for a few politicians.

Webster noted she is upset that this applicant got caught in this conversation, and that this reflected badly on this particular applicant’s integrity. Hunt noted it is a response to this applicant saying he didn’t know anything about the ZBA, not about his integrity.

On Hunt’s motion, seconded by Hardin, the Board voted unanimously to purchase the Audio Tapes and make them available to all members of the Boards that it applies to, and to encourage all members to attend the training in Marlboro on October 18, 1997.

Hunt noting the rejection of the Town’s by-law stated that she was going to ask that we explore this further. Hunt noted that Attorney August has already been contacted.

On Hunt’s motion, seconded by Tufts, the Board voted unanimously to have Attorney August explore this issue further for the Town.

Paicos gave a brief explanation of the status of this issue to date.

At this point in the meeting Selectman Hunt left during discussion and voting.

On Webster’s motion, seconded by Clark, the Board voted unanimously to include 3B in the previous motion.

RE: Cable TV Legislation, Paicos noted the proposed legislation was crushed by an enormous response from cities and towns.

Paicos noted the Town Flag has been re-hung at the State House.

RE: zoning problems on Caroline Road, Paicos noted he has been personally building a case on the issues in that area for 1 1/2 years. He is still monitoring and if any zoning violations exist, he will pursue them.

Paicos noted the Rev./Exp. Forecast is almost done and will be given to the Selectmen by the beginning of next week. Paicos asked for time on an agenda to discuss this as well as to get input from the Board on priorities for the operating budgets, especially capital budget issues.

Tufts questioned if the 9/29 scheduled short meeting for the Treasurer, could be scheduled as a regular meeting. Tufts noted tht he would try to change the 10/6 meeting to be a shortened agenda instead. There was not objection by the Board.

Clark noted in the 9/17 Enterprise there was a notice for a meeting with residents and the Town Adm., and he questioned what the purpose of the meeting is. Paicos gave a brief explanation of the issues, i.e., traffic, placement of crossing guards, pavement, sidewalks etc.

Clark questioned the status of new lightbulbs being installed. Paicos noted he is not sure what has been installed at this point, and will research this and get a response. Clark suggested sending a memo to the Planning Board asking that they require higher wattage light bulbs.

Clark questioned if D. Hayes is occupying NEG. Paicos stated yes, and it saved the Town most of the $10,000 insurance policy that would have been required.

Clark questioned when the merit pay discussion will be on the agenda. Tufts noted this will be on the next meeting agenda.

Webster questioned the status of the RFP for disposition of the schools. Paicos will research this and see what the time frame is.

At 10:55, on Hunt’s motion, seconded by Hardin, the Board voted unanimously, by roll-call, to adjourn to Executive Session for the purpose of pending litigation and labor negotiation, not to return to Open Session.

APPROVED_________________________________

DATED__________________________________