City Council

HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 6:30 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. This is a continuation of the Public Hearing from July 23, 2007. All members were present except Councillor Marchand and Councillor Dombrowski. The following PETITION was the subject of the hearing. 98-07 Nickolas Casaburri: Grant a Special Permit to use an exiting building at 213 Whitney Street, located in an Industrial Zone and shown on Assessor’s Map 40 as Lot 8, for a used car dealership and auto repair facility. HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued Councillor Rowlands read the recommendations into the record. A. A letter from Edward Cataldo, the Building Inspector states “I am in receipt of your letter dated May 30, 2007 requesting my recommendation on Petition 98-07 to grant a Special Permit to use an existing building at 213 Whitney Street located in an Industrial Zone for a used car dealership and auto repair facility. It would be my recommendation to grant this petition. There has always been some type of auto repair and auto sales there. Care should be taken to limit the parking of the cars for sale on the corner of Whitney and Water Streets. Additionally, the repair facility will have to be updated with an external gas trap according to Massachusetts State Plumbing Code. If you have any questions or need further information please feel free to contact my office.” B. A letter from Kate Griffin-Brooks, the Planning Director states “At a regularly scheduled meeting on June 5, 2007 the Planning Board voted unanimously to recommend approval of a used car dealership and auto repair facility in an existing building at 213 Whitney Street. This property is located in an Industrial Zone and is a reasonable use for this vacant building. In addition, this plan may require site plan approval based on the number of parking spaces required. If you have any questions regarding this recommendation, please do not hesitate to contact me at the number provided above.” C. A letter from Patrick LaPointe, the Public Works Director states “The Leominster Department of Public Woks has reviewed Petition 98-07 to locate a used car dealership and auto repair facility in an Industrial zone. We have no problem with recommending approval of this Petition. The proposed use is not much different than the ones that existed on this site for quite some time. Please call if you need any additional information or have any questions.” D. A letter from Larry Gianakis for the Conservation Commission states “The commission does not have comment with relation to the use as it relates to zoning. However the property appears to be within the riverfront (200’ outer riparian zone) of the Monoosnoc Brook. Therefore any site changes may require the applicant to file with the commission.” E. A letter from Christopher Knuth, the Health Director states “After reviewing petition 98-07, the Health Department has the following comments: Due to the nature of the surrounding properties and the setting of the proposed facility, the Health Department does not object to this proposal. The site has been used for automotive related purposes in the past and we have no record of any issues. We hope that this information will be useful to the Legal Affairs Committee during their evaluation of this request for a Special Permit. If anyone has any questions about these comments please feel free to contact the Health Department for assistance.” F. A letter from Deputy Chief Ashton, Fire Department states “This petition is relative to a Special Permit to use 213 Whitney St. as a used car dealership and auto repair garage. Historically this property has been used as a gasoline station and repair facility, so we would have no issue with its continued use. However, a review of our file on the property shows a Notice of Responsibility from the State Department of Environmental Protection dated in 2003, and upon checking with the agency several more notifications and deadlines which have long passed. The Council may wish to consider these facts as they discuss the issuance of the Special Permit. I have been advised by DEP that the potential lessor should be aware of the situation, for if any digging is done on the site, that person may be considered liable as well in the environmental issue.” Councillor Rowlands ask if anyone would like to speak in favor of this petition. Kelly Freda, 117 Debbie Drive and also the Conservation Commission Chair, said an opinion was asked of the Conservation Commission with regards to the issue of zoning where they have no jurisdiction. She asked that the Council take into consideration other environmental impacts resulting from this Special Permit. This area of Leominster drains into Monoosnoc Brook and eventually into the Nashua River through the City storm drain system during snow melt and rain events. Run-off with contaminants on this site could negatively impact the sensitive area if not properly managed. If you grant the Special Permit we ask that you protect the brook and river by requiring good housekeeping practices or a lot cleaning schedule and use of concrete berms around the site.  2 Councillor Rowlands said the City Clerk was contacted by the Landlord by telephone saying that he is asking for a leave to withdraw due to some issues that he is having with the Petitioner and his lease. The Petitioner was asked to contact the City Clerks Office and register a contact number and address but has not done that. Councillor Tocci said we should consider the owner’s request for leave to withdraw. No one spoke in opposition. The Petitioner was not present. HEARING ADJOURNED AT 6:41 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 6:45 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. This is a continuation of the public hearing from July 23, 2007. All members were present except Councillor Marchand and Councillor Dombrowski. Present at the hearing were Nelson Lee, Joel Baker, owner of the property, Vernon Beauvais, Fixed Operations Manager for Baker Cadillac. The following PETITION was the subject of the hearing. 108-07 Nelson Lee, President, Dream Kitchens & Bath: Grant a Special Permit to use an existing building at 44 Mead Street located within an Industrial Zone and shown on Assessors Map 266 as Lot 1 for a showroom and sales office. Councillor Rowlands read the recommendations into the record. A. A letter from Edward Cataldo, Building Inspector states “Petition 108-07 to grant a Special Permit to use an existing building at 44 Mead Street for a showroom and sales office for Dream Kitchens. It would be my recommendation to grant this petition.” B. A letter from Andrew Taylor, Assistant Planning Director states “The Planning Board at its regularly scheduled meeting on June 19, 2007 voted unanimously to ask the City Council for further time to set up a Planning Board site visit with the petitioner to address potential site issues. Some of these concerns relate to the area already being extremely busy and how a showroom type business might further impact current congestion. Lastly the Board wanted to see the parking layout as it currently exists on the site.” A letter from the Kate Griffin-Brooks, Planning Director states “At a regularly scheduled Planning Board meeting on July 17, 2007 the Board voted to recommend approval of the following petition with a condition: The Planning Board recommends approval of this petition as it is a good reuse of the existing space and there is sufficient parking, and room to move tractor trailers on the site. The Board requests that if the City Council approves this permit it adds a condition that: no vehicles are to back in or out onto Mead Street. If you have any questions regarding this matter, please do not hesitate to contact me.” C. A letter from Patrick LaPointe, Director of the DPW states “The Leominster Department of Public Works has reviewed Communication 108-07 and we are in favor of granting this request. We agree with the Mayor’s policy of promoting usage of existing industrial buildings for retail, commercial and any other suitable type of use. Please let us know if we can provide additional information.” D. A letter from the Conservation Agent states “This site falls within the riparian zone of the Nashua River; therefore the applicant must file with the Conservation Commission prior to any exterior improvements such as regarding or paving of the site. Although the site is in close proximity to the Nashua River, the use described in the application should not have an impact on the resource area. The Commission does not have a position with regards to Zoning as it is not within their jurisdiction.” E. A letter from Christopher Knuth, Health Director states “The Health Department does not have an issue with the Petition if the proposed use will not have any negative impacts on surrounding residential or industrial properties. We hope that this information will be useful to the Legal Affairs Committee during their evaluation of these Petitions. If anyone has any questions about these comments please feel free to contact the Health Department for assistance.” F. A letter from Sergeant Michael Goldman, Supervisor of Leominster Police Traffic Division states “In regard to petition 108-07 the Leominster Police Traffic Division has no opposition nor recommendations.” G. A letter from the Deputy Fire Chief states “We are in favor of the Council granting this Special Permit, however we are also aware that the fire alarm equipment within the building is quite antiquated and no longer supported by its manufacturer. While it would be unfair to require a tenant to upgrade equipment within the building that ultimately would become real estate of the property owner, the Council should  3 consider the updating of the fire alarm control equipment as a condition of the Special Permit for the owner. If there are any modifications or alterations to be done to the space, this work must be done under the control of a Building Permit, issued by the Building Inspector. I hope that the Council finds this information helpful.” Councillor Rowlands said that several members of the City Council attended a site visit. Deputy Ashton was asked to visit the site. Councillor Rowlands said that he emailed Deputy Ashton and asked if there were any updates. Deputy Ashton responded; “Dear Councilor Rowlands, In the whole scheme of things, we have no problem with a commercial use in a former industrial building. However, to date, this office has seen no formal plans for the Dream Kitchens tenant space. I understand that the space will have a number of free standing displays, no manufacturing machinery and no new ceiling. If these items are accurate, then it is likely that no or very few fire sprinkler modifications would be needed, HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued although some design professional (architect, engineer) should be telling us this. The entire building is monitored by very old Simplex fire alarm control equipment, which to my understanding is no longer supported by the company. It is unlikely that any additional notification devices (horns, strobes) could be connected to this equipment for the new tenant space. Additionally, it is also very unlikely that this equipment would be compatible with the AES radio master box equipment that the city has been installing and will be mandated by 2010 when the municipal cable loops are taken out of service. It would be unrealistic for a prospective tenant to have to pay for the new fire alarm control equipment, as this should be the landlord’s responsibility, but some requirement should be made on the property owner to address this (he was made aware by me perhaps one year ago, when there were different plans for the property). I hope this information is helpful to you. I will be away from the office attending NIMS training with the Chief and other command personnel from the 13th through 15th. It would be best if you contacted Chief Pierce should you have any further questions.” Councillor Rowlands pointed out some of the issues that came up in subcommittee. He said that one of the criteria that the Council has to meet is that there is no reasonable alternative use for the site in terms of industrial and this particular section of the building with its ceiling height doesn’t offer industrial use. He also said, in his opinion, an overall view should be taken of the entire site. Councillor Rowlands said the traffic is unbelievable on Mead Street and change is happening. He said at the site visit the Council agreed the issues that should be looked at are the changes that the Suzuki dealership will bring, this business and the potential seven or eight tenants will bring. He also thinks that within the City the Planning Department and the Planning Board need to take an overall view of the current zoning and the current site plan for this site. Councillor Rowland said they also discussed the parking, the delineation of the parking to separate the dealership from the businesses that are in that building, the hockey parking sometimes overflowing during tournament times, curb cuts, signage because if a mistake is made it will back up traffic onto Route 2, which is a major concern. Councillor Rowlands personally thinks that this would be a great place for Mixed Use Zoning. Councillor Tocci agreed that this should be a Mixed Use Project especially when it was mentioned that there would be seven or eight more tenants in the building. Councillor Tocci also said that she does agree that part of the building where Dream Kitchens would like to be in is definitely not an industrial building use because of the low ceilings, and windows. She said she is concerned with signage at the curb cut and some delineation of the parking. Councillor Tocci asked when the brick building was being torn down. Mr. Beauvais said they have applied and the application has passed to build the Suzuki dealership. He said we will not have the Suzuki dealership completed before Dream Kitchens moves in. Mr. Beauvais said there is a paved portion in front of 44 Mead Street for Dream Kitchens when they start up. There are two existing curb cuts which have been there for some time. One in front of 44 Mead Street is also the right of way to the hockey rink. Councillor Tocci said when she went to the site visit she was on the opposite side of the street from the traffic coming from Route 2. She wasn’t sure if there was another curb cut to let her enter in front of the building where Dream Kitchens will be in so she took the curb cut before that. Councillor Tocci said her concern is that the curb cut cannot be seen and would like to see signage. Mr. Beauvais said that they would not have a problem with signage. It would just be more advertising for us. Councillor Tocci asked if the grass strip will remain. Mr. Beauvais said a portion of it will stay. The elevation will change. They will have 25 feet from the road that will remain untouched. Mr. Beauvais said he thought it was the Highway Department who didn’t want it paved so close to the street. Councillor Tocci said she didn’t know whether or not people are going to realize to go to the left of the grass strip to go to Dream Kitchens or if they go to the right which would be the entrance for the tractor trailers that would be a concern once it meets the curb cut. Mr. Beauvais said the signage will clarify the traffic pattern.  4 Mr. Lee said that after the site visit Mr. Beauvais and Mr. Baker had a conversation regarding the signage. Mr. Lee said he agreed with the signage because the building sets back so far it would almost be mandatory for him to have some type of sign so people will know he is there. He said cars often come off the Route 2 ramp at speeds of 25-30 MPH. they are not going to see me. My goal is to make it extremely visible without interrupting the view for the Cadillac dealership. Councillor Tocci asked who owned the property that is used for the DEC Hockey overflow. Mr. Baker said all the land around 44 Mead Street is the Baker property. There is no written consent or permission for the hockey rink to be parking there. We haven’t told them that they cannot park there, as we are trying to be good neighbors. Usually when they are there it is on the weekends and sometimes on Friday nights. When we rent 44 Mead Street it will be rented with the stipulation of a Monday through Friday type of business so he doesn’t think it will impact them using the property. Mr. Baker said if it did they would tell them they could not use their property to park. HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued Councillor Tocci asked if the seven or eight businesses they would rent to would be industrial or commercial businesses. She asked if they were going in that curb cut and going to the right to the back of the building or to the left to the back of the building. Mr. Beauvais said they would be going in that curb cut and going to the right of the building. He said they would not be big companies and so far this is only speculation because they do not have any applicants now. The building has a lot of wings or different additions done at different times which lends itself out to the small businesses or smaller manufacturers. Councillor Rowlands asked when the Suzuki dealership would be built as that would have an impact on the site and the flow of traffic. Mr. Beauvais said that they are still in the process monitoring the car sales for Suzuki but the plan is to move forward with it. He said they have started some of the site work but that they do not want the same thing happen to them what had occurred in Fitchburg with the Saturn dealership. Mr. Beauvais said the Saturn dealership invested a lot of money on the building and the sales couldn’t back the project so now the building is vacant. He said they are currently involved in a study where they will see if they can come up with the sales needed to justify building it. Councillor Rowlands said there has been a Special Permit issued for the Suzuki dealership and there is a time line. He inquired about an initiative that was to take place after the Suzuki Special Permit was granted to look at the zoning in that area. Mr. Baker said they came before the Council last year and rezoning was discussed. He believes that Councillor Marchand was going to do that. He said Councillor Marchand has been working with Mr. Hannigan of Hannigan Engineering and both of them say it is dragging but he is not sure why. Councillor Rowlands said one of the conditions is an acceptable fire alarm. He said Deputy Chief Ashton is saying that the fire alarm is not up to snuff but they are not in the engineering business. An engineer should look at it and make a proposal to the Fire Department to upgrade the system. He asked what is his position with this and if he felt comfortable with this as a condition? Mr. Beauvais said the fire alarm system works and works well. When there was low pressure due to the bridge repair at 495 Main Street the system picked up on the low pressure and set off the alarm which the Fire Department did receive and responded. The system reports fine and works as designed. He said as far as it being outdated, he wasn’t aware of not being able to buy any parts for that Simplex system that they have. The battery system went bad about a year ago and parts were obtainable. Mr. Beauvais said he spoke with the electrician Dave LaLancette of LeClair Electrical regarding the system and he was told the system would work with the new reporting radio system and doesn’t feel that the system needs to be replaced or upgraded it just needs to be converted. Councillor Nickel said he has a few concerns and some of it deals with being neighbors. One of the things he would like to see some kind of lining of the parking area and lining out what is considered the right-of-way so there isn’t a problem with you and the DEC Hockey. Councillor Nickel said he noticed a few things when he was walking around on the site the first being that dealership cars were parked pretty tight into that lot which brings up an issue of the density of the parking that surrounds that building. He said he noticed the different construction forms used on this building and asked if they are planning an addition to the building for the seven or eight businesses in that building or are seven or eight businesses going into the existing building? Mr. Beauvais said into the existing building. He said that as you can see over time the building had additions constructed and on the right side there are a couple of additions that stick out. He said the additions were added at a different time and are separated by firewalls. Within the building itself there are firewalls that separate the sections of the building. Mr. Beauvais said they are using a section of the building for a warehouse. Councillor Nickel said that we are really getting into the point that seven or eight business going through this permitting phase repeatedly. If we do a complete zoning change, I don’t know what affect that we will have on the few houses. I would feel more comfortable dealing with individual setups and seeing how it affects the neighbors and if it’s not working out we tell them they have reached their maximum. Councillor Nickel said he will support this a step at a time. Councillor Salvatelli said he has the same concerns as his fellow Councillors but cannot vision industrial coming into that old building. He said this business is probably a good business to put in there because they won’t have a lot of daily traffic and in  5 his mind it is a perfect place. Councillor Salvatelli said he was there again today and purposely came off of Route 2 to make that turn. He said you have to make a quick turn to get in there. He entered near the brick building because he felt more comfortable but something has to be done about the curb cuts. Councillor Salvatelli said he feels that this is a good plan and can support it but is concerned about the possibility of six or seven businesses coming in. He said that amount of traffic will have some impact on his decision. Councillor Lanciani said what he needs to stress is proper signage and proper marking of the parking spaces. He says he can support this. He said in regards to who was going to be responsible for rezoning it Commercial, you might want to check the records. He said you will find that it was Councillor Marchand who mentioned it but Mr. Hannigan was going to be coming back to the council to do that. You should check the records before making it Councillor Marchand’s responsibility. Councillor Rowlands said he felt some of the conditions would be the fire alarm, signage, parking delineation, no vehicles are to back in or out onto Mead Street, and the easement. Councillor Tocci asked if all the recommendations were in. HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued Councillor Rowlands said yes. All referrals have been returned and we have a favorable recommendation with the conditions set forth by the Fire Department and the Planning Board. No one spoke in favor or in opposition of this petition. HEARING ADJOURNED AT 7:23 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 7:24 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand and Councillor Dombrowski. Russ Wells, Real Estate Manager for MIS Corporation, Attorney Jeff Aveni for Rogar Realty Trust and Phil Lombardo, Attorney for Hess were present at this hearing. The following PETITION was the subject of the hearing. 6-08 Attorney Jeffrey A. Aveni on behalf of Rogar Realty Trust: Request a license for the keeping, storing and sale of inflammable liquids at 680-706 Central Street. Councillor Rowlands read the following Petition and Exhibit B into the Record. These had not been accepted and the above petition was then filed. The undersigned Petition your Honorable Body to modify and amend that certain license dated April 9, 2007 to Rogar Realty Trust, Diane A. Wright, Trustee for property located at or about 680-706 Main Street, Leominster, Massachusetts. (copy attached here to as Exhibit “A”) by deleting restriction #1, pumps must be operated in a pay before pump manner or amending said restriction by conditioning/deleting the pay before pump provision in accordance with the proposed police department notification (see Exhibit “B”). Exhibit “B” The proposal presented to the Leominster Police Department incorporated the attached form, or a form of a like nature to be forwarded to the Leominster Police by facsimile/e-mail or otherwise. The Leominster Police Department will then make a determination on how to be to proceed in relation to the need to investigate the incident. The above referenced procedure is designed to avoid/eliminate a patrolman from going to the gas station to conduct an investigation. The Leominster Police Department has indicated it does not have any opposition to this proposal. Hess Corporation, the ground lessee, indicated it does not have any opposition to this proposal. Councillor Rowlands said that Petition 6-08 was sent to the Building Inspector, Police Department and Fire Department for comments. Councillor Rowlands read the following recommendations into the record. A. Letter from the Building Inspector states “It would be my recommendation to grant this petition provided that the Fire Department approves the request.”  6 B. Letter from the Deputy Chief Ashton, Leominster Fire Department states “ I am sending you this communication upon the direction of Chief Pierce, relative to the petition on which the Council has asked for a recommendation. As to Petition 6-08 which would amend the license granted to Rogar Realty Trust for 680-706 Central Street, this department has no opposition, however it must be noted for the benefit of the Council that 527CMR 5.08(5) (1) of the Massachusetts Fire Safety Code requires that any credit card sale shall be individually authorized by a self-serve (console) attendant and that the automatic credit card reading device shall not be used as physical authorization for the dispensing of motor fuel.” Councillor Rowlands said that they have not heard from the Police Department but there is a representative in the audience. Lieutenant Healey said that he and Chief Roddy met with Jeff Aveni a few weeks back and they came up with the form to be used by the Police Department. Lieutenant Healey said it will make our job easier. He said they can fax the form to the Police Department when a drive off occurred and then the Police could act at their leisure. He said instead of directing a cruiser once the call comes in it would take an hour for an officer to respond, come back to the station and make calls and do the report. Our time would be better utilized the new way. HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued Councillor Rowlands said he was the one that wanted the pay first after talking to the Police Department and felt it was not only good for this situation but across the City. The motivation was to reduce or prevent the demand on the police station in regards to drive offs and that is why the original condition was put on. Councillor Rowlands said he attempted to put in another petition for across the City and gave that petition leave to withdraw because during a discussion in subcommittee there wasn’t a lot of support for it. Attorney Aveni said he got involved in this situation in late May when he was contacted by Mr. Wells regarding the condition that was placed on this license. It was my understanding that during the final approval process the condition was added and it was somewhat a surprise to Hess. At that point Hess on the corporate end decided it wasn’t economically feasible for the site. Attorney Aveni said when he found out about the condition he contact Lieutenant Healey and met on three different occasions. Lieutenant Healey provided me with the following statistics about what they categorize as pump and run. In 2006 City wide there were a total of 56, which is about one a week. In 2007 to the end of July there were a total of 12 which is about one every other week. He said they feel that the magnitude of this problem is not that severe and after they reviewed the statistics he filed the initial petition asking that condition be deleted. Attorney Aveni said that is our position tonight as this is the only license the City of Leominster has conditioned. Councillor Rowlands said the Council went through all the hearings on the original petition and the Council President, who is not here tonight, had conversation with a police officer who made us aware of the problem. The condition was put on after the subcommittee meeting and not talked about in subcommittee. Councillor Rowlands said he still feels that it is the right thing to do if it is done across the entire City as this is a crime that is preventable. Councillor Rowlands said he has a two page letter from Brian Riley. He had questions for Mr. Riley of Kopelman & Paige if this should be an amendment to the petition or a new petition. After perusing the letter he said it could go either way. Councillor Rowlands read a specific paragraph from the letter. “As a practical matter, in my opinion, this is only a difference in semantics. In order for this to take effect the City Council should agree to it. There must be a new hearing with the same notice requirements that preceded the April 9, 2007 hearing and the new license form would need to be issued with the subject condition removed and a notation that the license form is an amendment to and takes the place of the April 9, 2007 license. In my opinion the City Council may act on the application filed by Rogar. If the petition is denied the April 9, 2007 license will remain in effect. If approved, Rogar will receive a new license minus the condition.” Councillor Freda said that there are abutters that are confused with this process. They received notices for the new hearing. They don’t know why they received notices for the second hearing when they feel it has already been granted. Would you be kind enough to explain why this is approved and it is in a second point. I’m not sure if we are going to treat this as a new petition or an amendment to the petition. Councillor Rowlands said there was an original petition for a license that was approved, which he believes, was a 6-1 vote that had a condition that they had to pay first location which was passed and approved. The licensee does not want that condition on there so they have come forth with either to amend the license to have the condition removed or a new license to be issued. It is a matter of going through Kopelman & Paige, as our City Solicitor, do we have to amend that license or issue a new one and basically the summation of the letter says we can do either one. As we stand right now we are discussing re-issuing a new license and they are asking for that license without the condition. Just for some background knowledge that condition pay first is not on any other gas station facility in the City. Councillor Rowlands said to be consistent he put forth a petition to make it a City wide ordinance. That petition he gave leave to withdraw after subcommittee meetings and general discussion with members of the Council where there was not support. The petition for the City wide is no longer on the table. We have a new petition which is acceptable to Kopelman & Paige so we are having a hearing and going through the process on a brand new Petition 6-08 which is a granting of a license for that facility. Councillor Freda asked if this was being treated as a new petition. Councillor Rowlands said yes. He also said he hopes it clarifies this for the public. Lawrence Morris, 71 Sacremento Drive, Leominster said he was in favor of the petition. However he is in favor of pay first at the pump. When he was on vacation in Rhode Island he put a $20 bill in the pump and got $20 of gas and then drove off. Just  7 like you put a $1 bill in for a soda machines that are located in the hall. That technology is not at any gas station in Massachusetts and feels we should have that. He also said it is very important to get the gas station down in the South Leominster location because all of the construction that is going on in South Leominster there is a potential for another 1,500 car that will need fueling and if they come where the majority of the stations are in the north end of town those intersections are congested as it is. If it’s not legal in Massachusetts we should get it legalized. No one spoke in opposition. Councillor Tocci asked if they would be getting Lieutenant Healey’s recommendation in writing. Councillor Rowlands said that was a good point and he would ask for that and make sure he gets the recommendation in writing. Councillor Freda said her position is still that same she is in opposition to this. She said there are people in the neighborhood that are very much in opposition and that has not changed since they got their second notice so I will speak for them. I find it interesting the Police Department through Lieutenant Healey is working to support this petition in terms of pay first at the HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued pump. She said when the Planning Board voted, one member voted against it because of the traffic study with the Litchfield Street issue. She wonders why Police Department put the emphasis was put on the pay first and not the traffic study. She said there has been a lot of traffic calls to that location without a gas station being there. Councillor Freda said according to Kopelman & Paige they had 60 days to appeal the license and the sixty days were up June 8, 2007. She asked why they didn’t appeal this condition. She is concerned about an applicant continually petitioning the Council until they get it voted on the way they want it. Attorney Lombardo said they were made aware of this in the later stage of the process and they like to work with the Board they are in front of. He said they are not interested in litigation if they don’t have to and they felt they wouldn’t make any friends in the City and serve the interest of Hess by fighting legally in court with the City. What we wanted to do is come back explain our position in a rational way and try to win the support of the Council. Councillor Freda said and that is why you didn’t challenge? Attorney Lombardo said that they are not interested in litigating and fighting with the City for two or three years in a battle. We felt coming back here to the Council would be better for everybody. Councillor Freda said she is in absolute opposition to this as she has been for a while. It is the worst possible use for that area and she thinks instead of looking at pay first we should have looked into the accident rate. I think it is kind of of ironic that someone in Ward 1 wants us to put a gas station in Ward 2 to alleviate the congestion there. My opposition stays firm. Attorney Aveni said the issues regarding a traffic study has been addressed and heard. The Planning Board and the Fire Department has reviewed it. He said we cannot mix apples with oranges as the safety issue does not have anything to do with the prepay. We are not here to review the safety issues and just like you said, we had the right to appeal, so did the abutters and did not. The statistics speak for themselves. He said there is less than one a week, twelve this year. The Police don’t run to Hess for a pump and run. The safety issues have been addressed. Councillor Freda said she was opposed to the pay first. She said her vote against the petition and the license is because she is against the whole project. She said this is clearly a new hearing and because it is a new hearing and a new license, I do have the right and the authority and as part of Council representing that area to bring up the fuel storage again. She said I am not mixing apples with oranges, you are back here with a new petition and that is why I wanted it clarified what we were doing so we wouldn’t be mixing apples with oranges. Councillor Rowlands said that there is clarification in the letter from Kopelman & Paige. Councillor Lanciani asked Councillor Rowlands to read the letter into the record. August 13, 2007 Dear Ms. Bouchard: “You have requested an opinion, on behalf of the Legal Affairs Committee, regarding the above referenced petition filed on behalf of Rogar Realty Trust (“Rogar”), owner of 680-706 Central Street. The license to store inflammable liquids, granted by the City Council on April 9, 2007, is being exercised by the Hess gasoline station operating at the site. The original license included a condition or restriction that gasoline pumps must be operated in a “pay before pump” manner, presumably to prevent motorists from being able to use the pumps and drive off without paying. Rogar now seeks an amendment to the license to delete this condition, or to amend the license by conditioning the “pay before pump” provision in accordance with a Police Department notification process that the applicant has discussed with the Department. The Legal Affairs Committee has asked whether the applicant needs to apply for a new license, as opposed to an amendment of the existing license, and also whether applying the “pay before pump” condition to this licensee only may lead to liability of the City. In may opinion, the relevant stature, G.L. c.148, §13, does not reference an “amendment” process, but the City Council may consider the matter under this application, provided that all notice and other requirements for the hearing have been met as if it were a new license application. In my further opinion, the time period for  8 this licensee to have appealed the condition has expired, so I would not see any immediate concern for future litigation, although I recommend that the Council restrict the conditions of such a license to matters that directly concern fire safety. Licenses issued pursuant to G.L. c148 §13, are unique in the once issued, they are recorded and are legally considered to “run with the land.” Although there is a requirement for the owner/operator to file an annual certificate with the City Clerk to verify that the tank are still being used in accordance with the purpose and terms of the license, the license is otherwise permanent and will pass with the title of the real property if the property is sold. While the issuing authority may revoke a license, the reasons for doing so are generally limited to abandonment of the use, a risk of fire or explosion, or a breach of an express condition. Derby Refining Co. v. Board of Alderman of Chelsea, 407 Mass. 718 (1990). As noted above, §13 does not make reference to an ability of the licensee or the issuing authority to amend an existing license. The Supreme Judicial Court noted favorably, however, in Bermant v Board of Selectmen of Belchertown, 425 Mass. 400 (1997), that the State Fire Marshal’s office recommends that changes to an existing license be handled by amendment rather than a new license. HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007. continued As a practical matter, in my opinion, this in only a difference in semantics. In order for this change to take effect, if the City Council should agree to it, there must be a new hearing which the same notice requirements that preceded the April 9, 2007 hearing, and a new license form would need to be issued with the subject condition removed and a notation that the license form is an amendment to and takes the place of the April 9th license. In my opinion, the City Council may act on the application that was filed by Rogar. If the petition is denied, the April 9th license will remain in effect. If it is approved, Rogar would receive a “new” license that is the same as the April 9th license, minus the condition.” The final paragraph is in regard to litigation and Councillor Rowlands chose not to read it. HEARING ADJOURNED: 7:55 P.M. and continued to August 27, 2007 at 6:30 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 7:56 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand. The following PETITION was the subject of the hearing. 7-08 David Lolli: Grant a Special Permit to use an existing building at 444 Central Street located in an Industrial Zone and shown on Assessor’s Map 328 as Lot 51, for a retail store. Introduced and made part of the record were the following: A. Petition #7-08 submitted by David Lolli, 93 Birchcroft Road including Assessors Map 328. B. Notice of public hearing published in the Sentinel & Enterprise on July 30, 2007 and August 6, 2007. C. Letters of recommendation from the Building Inspector and Health Inspector. D. A letter from the Conservation Agent said “In regards to referral 7-08 by the Legal Affairs Committee, the Leominster Conservation Commission does not have comment with regards to zoning issues. I believe that this site falls within the 200’ riparian zone of a perennial stream. Therefore the applicant must file with the Conservation Commission if any exterior improvements such as re-grading or paving of the site.” David Lolli, owner of LAN games, said his business was downtown in the Monty’s Garden building and the building is being torn down and he needs a new location. He said he was unable to find an affordable location downtown and his agent suggested this location because it gave him additional square footage at a suitable cost and it fit the bill. The number of people that he has coming into his business is limited, usually 20-24 customers per day. The rest of the building is generally used during the day and the parking spaces are open at night. Mr. Lolli said he opens at 4 P.M. and by then the building would basically be empty. There is nothing that needs to be changed to the interior or exterior. There are windows and carpeting with no overhead doors and he said he can’t see it being used as industrial the way it is set up right now. There are tables set up for people to come in to play board games and card games.  9 Councillor Rowlands said we have not received all the recommendations required so the hearing will be continued. Councillor Dombrowski asked where the location was. Mr. Lolli said it is the old Miller Plastics building across from Miller TV. Councillor Freda asked what kind of traffic this will generate. Mr. Lolli said they have permission to park on the back side of the building as well. Twenty is a big number for him. No one spoke in favor or in opposition. HEARING ADJOUNRED: 8:05 P.M. and continued until August 27, 2007 at 6:45 p.m. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 8:05 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand. The following ORDINANCE was the subject of the hearing. Relative to amending Chapter 21 Section 21-11.(a)3 entitled “Water Connection Charges” by deleting in it’s entirety and inserting in it’s place: (a) All individual domestic units including apartment units and condominium units within the city will be charged two thousand five hundred dollars ($2,500.00) per dwelling unit and any other connection. All individual domestic units including apartment units and condominium units out of the city will be charged four thousand five hundred dollars ($4,500.00) per dwelling unit and any other connection. This will serve as a connection and inspection fee that is valid through the last day of the year in which the permit was issued. (Petition 91-07) No one spoke in favor or in opposition. HEARING ADJOURNED AT 8:07 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 8:07 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand. The following ORDINANCE was the subject of the hearing. Relative to amending Chapter 13, Section 13-77 of the Revised Ordinances entitled “Stop Signs” by inserting “Barnes Street, against southwest bound drivers at Lancaster Street” No one spoke in favor or in opposition. HEARING ADJOURNED AT 8:08 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 8:08 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding.  10 All members were present except Councillor Marchand. The following ORDINANCE was the subject of the hearing. Relative to amending Chapter 13, Section 13-77 of the Revised Ordinances entitled “Stop Signs” by inserting “Hayes Street against southwest bound drivers at Lancaster Street”. No one spoke in favor or in opposition. HEARING ADJOURNED AT 8:08 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 8:08 P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand. The following ORDINANCE was the subject of the hearing. Relative to amending Chapter 13, Section 13-77 of the Revised Ordinances entitled “Stop Signs” by inserting “Hudson Street, against southwest bound drivers at Lancaster Street”. No one spoke in favor or in opposition. HEARING ADJOURNED AT 8:09 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council HEARING BEFORE THE CITY COUNCIL, AUGUST 13, 2007 Hearing opened at 8:09P.M. with Councillor Rowlands, Chair of the Legal Affairs Committee presiding. All members were present except Councillor Marchand The following ORDINANCE was the subject of the hearing. Relative to amending Chapter 13, Section 13-77 of the Revised Ordinances entitled “Stop Signs” by inserting “Garfield Street, against southwest bound drivers at Lancaster Street”. No one spoke in favor or in opposition. HEARING ADJOURNEDAT 8:10 P.M. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council REGULAR MEETING OF THE CITY COUNCIL, AUGUST 13, 2007 Meeting called to order at 8:00 P.M. Attendance was taken by a roll call vote: All members present except Councillor Marchand, Councillor Dombrowski arrived late. The following COMMUNICATIONS were received, referred to the FINANCE COMMITTEE, given REGULAR COURSE.  11 C-9 Relative to the appropriation of $34,124.50 to the Street Resurfacing Expense Account; same to be transferred from the Highway State Aid Receipts Reserved for Appropriation Account. C-10 Relative to the appropriation of $31,000.00 to the Street Resurfacing Expense Account; same to be transferred from the Highway State Aid Reserved for Appropriation Account. C-11 Relative to the appropriation of $101,200.00 to the Sewer Department Capital Outlay Expense Account; same to be transferred from the State Rockwell Village Reimbursement Grant Accounts. C-12 Relative to the appropriation of $11,000.00 to the Highway Capital Outlay Expense Account; same to be transferred from the Emergency Reserve Account. REGULAR MEETING OF THE CITY COUNCIL, AUGUST 13, 2007, continued C-13 Relative to the appropriation of $4,250.00 to the Cemetery Salary and Wages Account; same to be transferred from the Emergency Reserve Account. The following COMMUNICATION was received, referred to the FINANCE COMMITTEE, given REGULAR COURSE with referred to the Planning Department and the City Solicitor. C-14 Mayor Dean J. Mazzarella: Request the City Council take by Eminent Domain, properties as they pertain to the Bridge Replacement Project on Mechanic Street over the Nashua River and shown on a plan entitled “ Mechanic Street Right of Way Plans Easement Plan”. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, and given REGULAR COURSE. A hearing was set for August 27, 2007 at 7:35 P.M. Vt. 8/0 12-08 National Grid: Elm Street: Install one singly owned pole on Elm Street beginning at a point approximately 35 feet east of the centerline of the intersection of Birch Street. The following PETITION was received, referred to the PUBLIC SERVICE COMMITTEE, and given REGULAR COURSE. A hearing was set for August 27, 2007 at 7:40 P.M. Vt. 8/0 13-08 National Grid and Verizon New England, Inc.: Pleasant Street: Install one jointly owned pole on Pleasant Street beginning at a point approximately 25 feet east of the centerline of the intersection of Pond Street. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, given REGULAR COURSE, and referred to the Building Department, the Planning Board, the Conservation Commission, the Department of Public Works and the Health Department. A hearing was set for September 10, 2007 at 7:15 P.M. Vt. 8/0 14-08 Steven P.Perla, Paul O. Perla, Paula M. Perla and Orlando J. Perla II: Amend Chapter 22 of the Revised Ordinances entitled “Zoning” to change the Leominster Zoning Map to rezone 1.08 acres by removing from the Residence A and Agriculture (RAA) District and including in the Commercial (C) District those portions of property at 1072-1072R Central Street, identified as Assessors’ Map 501, Lots 4 and 9, that are not presently in the Commercial District, such that all of said lots will be included in the Commercial District. The following PETITION was received, referred to the LEGAL AFFAIRS COMMITTEE, and given REGULAR COURSE. 15-08 Sergeant Michael Goldman, Amend Chapter 13 Section 13-34 of the Revised Ordinances entitles “No Parking On Certain Streets” by deleting:1) Main Street (east side), from seven hundred ten feet from Hawes Street for seven hundred sixty feet northeast along Main Street, 2)Main Street (north side), from a point two hundred ninety-five feet easterly of the intersection of Main and Railroad Streets and extending westerly along the northerly sideline of Main Street through the intersections of Railroad, Hamilton and River Streets to a point one hundred feet from the most westerly corner of River Street at its intersection with Main Street, 3) Main Street (south side), from a point beginning at the intersection of Prospect and Main Streets and extending westerly to the point of intersection of Main and Nashua Streets, 4) Main Street (south side), from a point beginning at the intersection of Prospect and Main Streets and extending westerly to the point of intersection of Main and Nashua Streets. And inserting in its place: Main Street both sides from the intersection with Hawes Street in a general north/northeast direction to the intersection with Pierce Street. Upon recommendation of the FINANCE COMMITTEE, the following COMMUNICATION was GRANTED and ORDERED. Vt. 8 “yeas”  12 C-6 Relative to the appropriation of $47,213.00 to the Gallagher Building Salary and Wages Account; same to be transferred from the Gallagher Building Revolving Fund. ORDERED: That the sum of Forty Seven Thousand Two Hundred Thirteen Dollars (47,213.00) be appropriated to the Gallagher Building Salary and Wages Account; same to be transferred from the Gallagher Building Revolving Fund. Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given LEAVE TO WITHDRAW WITHOUT PREJUDICE Vt. 7 “yeas”; Councillor Dombrowski abstained due to absence at the public hearing. 98-07 Nicholas Casaburri: Grant a Special Permit to use an exiting building at 213 Whitney Street, located in an Industrial zone and shown on Assessor’s Map 40 as Lot 8, for a used car dealership and auto repair facility REGULAR MEETING OF THE CITY COUNCIL, AUGUST 13, 2007, continued Upon request of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 7”yeas”; Councillor Dombrowski abstained due to a possible conflict of interest. 108-07 Nelson Lee, President, Dream Kitchens & Bath: Grant a Special Permit to use an existing building at 44 Mead Street located within an Industrial Zone and shown on Assessors Map 266 as Lot 1 for a showroom and sales office. Upon request of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 8“yeas” 110-07 Eric W. Sullender, Liberty Rental Corporation: Rezone the following parcels of land located off Central Street and shown on corresponding sketch’s prepared for Liberty Rental Corporation dated April 27, 2007 by Hannigan Engineering Inc. as follows: 1. Zoning Area A, containing 35,622 square feet, more or less from Residence C to Commercial. 2. Zoning Area B, containing 178 square feet, more or less from Commercial to Residence C. 3. Zoning Area C, containing 1 square foot, more or less from Commercial to Residence C. 4. Zoning Area D, containing 984 square feet, more or less from Residence C to Commercial. 5. Zoning Area E, containing 169 feet more or less from Commercial to Residence C. 6. Zoning Area F, containing 363 square feet from Residence C to Commercial. Upon request of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 7/0 6-08 Attorney Jeffrey A. Aveni on behalf of Rogar Realty Trust: Request a license for the keeping, storing and sale of inflammable liquids at 680-706 Central Street. Upon recommendation of the LEGAL AFFAIRS COMMITTEE, the following PETITION was given FURTHER TIME. Vt. 8“yeas” 7-08 David Lolli: Grant a Special Permit to use an existing building at 444 Central Street located in an Industrial Zone and shown on Assessor’s Map 328 as Lot 51, for a retail store. Upon recommendation of the PUBLIC SAFETY COMMITTEE, the following PETITIONS were GRANTED. Vt. 8/0 8-08 Sergeant Michael Goldman: Place a stop sign on Vista Avenue at Prospect Street. 9-08 Sergeant Michal Goldman: Place a stop sign on Haskell Avenue at Prospect Street. Upon recommendation of the WAYS & MEANS COMMITTEE, the following PETITION was GRANTED. Vt. 7“yeas” and 1 “nay”; Councillor Rosa opposed. C-7 Dean J. Mazzarella, Mayor: Request the following Home Rule Petition be passed to request the State Legislature to authorize the Commonwealth to grant benefits to Thomas Kamataris: Home Rule Petition Section 1: Not withstanding any general or special law or rule or regulation to the contrary, the Leominster Contributory Retirement Board shall retire Thomas Kamataris under the terms and conditions of Superannuation Retirement, pursuant to Section 5 of Chapter 32 of General Laws. Section 2: This act shall take effect upon its passage.  13 Upon recommendation of the WAYS & MEANS COMMITTEE, the following PETITION was given LEAVE TO WITHDRAW. Vt. 8/0” 10-08 Dennis A. Rosa: Request that the following nonbinding public opinion advisory question be placed on the November 6, 2007 Municipal Ballot: “Shall the City of Leominster borrow $15,000,000. to build a new police station?” Upon recommendation of the WAYS & MEANS COMMITTEE, the following PETITION was GRANTED. Vt. 8/0. 11-08 Game Stop Inc., d/b/a Movie Stop #7045: Grant a Second Hand Dealers License for Movie Stop, Store #7045 located at 82 Orchard Hill Park Drive. REGULAR MEETING OF THE CITY COUNCIL, AUGUST 13, 2007, continued The following ORDINANCE was read a second time, ADOPTED as presented and passed to be ordained. Vt. 7 “yeas” and 1 “nay”; Councillor Freda opposed. The City Of Leominster In the year two thousand and seven An Ordinance amending Chapter 21, Section 11.3 of the Revised Ordinances entitled “Water Connection Charges.” Be it ordained by the City Council of the City of Leominster as follows: Article 21, Section 11.3 of the Revised Ordinances entitled “Water Connection Charges” is hereby amended by deleting subsection (a) in its entirety and inserting in its place the following: Sec. 21-11.3. Water connection charges. (a) All individual domestic units including apartment units and condominium units within the city will be charged two thousand five hundred dollars ($2,500.00) per dwelling unit and any other connection. All individual domestic units including apartment units and condominium units out of the city will be charged four thousand five hundred dollars ($4,500.00) per dwelling unit and any other connection. This will serve as a connection and inspection fee that is valid through the last day of the year in which the permit was issued. The following ORDINANCES were read a second time, ADOPTED as presented and passed to be ordained. Vt. 8 “yeas” __________________________ The City Of Leominster In the year two thousand and seven An Ordinance amending Chapter 13 of the Revised Ordinances entitled “Motor Vehicles and Traffic.” Be it ordained by the City Council of the City of Leominster, as follows: Section 13-77 of the Revised Ordinances entitled “Stop Signs” is hereby amended by inserting “Barnes Street, against southwest bound drivers at Lancaster Street” _____________________ The City Of Leominster In the year two thousand and seven An Ordinance amending Chapter 13 of the Revised Ordinances entitled “Motor Vehicles and Traffic.” Be it ordained by the City Council of the City of Leominster, as follows: Section 13-77 of the Revised Ordinances entitled “Stop Signs” is hereby amended by inserting “Hayes Street against southwest bound drivers at Lancaster Street”.  14 ________________________ The City Of Leominster In the year two thousand and seven An Ordinance amending Chapter 13 of the Revised Ordinances entitled “Motor Vehicles and Traffic.” Be it ordained by the City Council of the City of Leominster, as follows: Section 13-77 of the Revised Ordinances entitled “Stop Signs” is hereby amended by inserting “Hudson Street, against southwest bound drivers at Lancaster Street”. _________________________ REGULAR MEETING OF THE CITY COUNCIL, AUGUST 13, 2007, continued The City Of Leominster In the year two thousand and seven An Ordinance amending Chapter 13 of the Revised Ordinances entitled “Motor Vehicles and Traffic.” Be it ordained by the City Council of the City of Leominster, as follows: Section 13-77 of the Revised Ordinances entitled “Stop Signs” is hereby amended by inserting “Garfield Street, against southwest bound drivers at Lancaster Street”. ____________________ Councillor Nickel said the President’s Drinking Water Oversight Committee had not met since the last City Council meeting. There will be a September meeting and he will let the Council know when the meeting is set. Under Old Business, Councillor Rowlands said that Legal Affairs subcommittee had a meeting on August 6, 2007 to discuss expediting the process regarding zoning and Special Permits applications. He said he will write up suggestions on how to improve the process. Councillor Rowlands said he feels Mixed Use Zoning can save time, and the Council can be more efficient with paperwork. Under Old Business Councillor Freda said that she doesn’t get all the paperwork. She would like to get communications from subcommittee well as the minutes from other Boards. Councillor Salvatelli said most of the work is done in subcommittee. He said he goes to the subcommittee meetings for informational purposes. Councillor Salvatelli said a letter was sent to the City Clerk from Mr. Cataldo, Building Inspector informing the City Council that there is no ordinance regarding yard sales. ____________________________ Lynn A. Bouchard, City Clerk and Clerk of the City Council