Town of Chatham, MA - Selectmen's Meeting Minutes 6/5/07

Board of Selectmen’s Meeting

Chairman Whitcomb called the meeting to order at 4:00PM with all members and Mr. Hinchey present.

Ms. Connors moved the Board of Selectmen vote to approve the minutes of the May 22, 2007 Board of Selectmen’s meeting. Mrs. Bohman seconded the motion and the Board of Selectmen voted unanimously in favor.

Mr. Don St. Pierre thanked the Park and Recreation Commission for letting the parade participants use Veteran’s Field this year.

Mr. Frank Messina commented that filling in the new breach is not a good idea and the Town should not be considering it according to conversations he has had with other voters.

Mr. Ed Dash, from Queen Anne Road, said that large trucks that have been in Chatham are using Jake Breaks, instead of the traditional air breaking system. Mr. Dash told the Board of Selectmen Harwich has signs stating “Jake Breaks Not Allowed” and asked the Board to consider prohibiting the same in Chatham. He said the Jake Breaks are very noisy and feels it is a quality of life issue.

Mr. David Rauscher, of the Chatham Airport Commission, had previously asked the Board of Selectmen to consider voting that the Town is not in favor of shingling the new hangar that faces George Ryder Road so that the Cape Cod Commission could waive that as a condition of approval.

He said shingles would void the warranty because it will rust out the tresses underneath.

Ms. Connors moved the Board of Selectmen vote that the Town has no objection to the hangar facing George Ryder Road not being shingled. Mrs. Bohman seconded the motion.

Mr. Summers said this is another example of the Cape Cod Commission overreaching its authority and costing additional time and money on projects.

The Board voted unanimously in favor of the motion.

Outdoor Display of Goods

This item was continued from last week. The Board of Selectmen received information relative to the questions that were raised on May 29, 2007. Ms. Connors moved the Board of Selectmen permit the Outdoor Display for one day only, July 21, 2007 at the specified locations. Mrs. Bohman seconded the motion and the Board of Selectmen voted unanimously in favor.

Pole Hearing - Harding Beach Road

Mr. Jeff Colby explained the relocations will allow the Town to continue building the sidewalk along the road. Mr. Horne, Right of Way Agent for Verizon and NSTAR attended this meeting.

Mr. Summers moved the Board of Selectmen vote to approve Petition No. 07-005 for Verizon for ten joint pole locations on Harding Beach Road. Ms. Connors seconded the motion and the Board of Selectmen voted unanimously in favor.

Mr. Bergstrom asked if any trees will have to be removed. Mr. Colby said the plan calls for some grading and the removal of two small trees.

Waterways Recommendations

Mr. Robert Hamblet, Chairman of the Waterways Advisory Committee explained the process used to develop these recommendations. He told the Board of Selectmen that while the Waterways Advisory Committee wanted to address the Inspector General’s recommendations, Chatham does not experience the same circumstances that were evident in Harwich.

He said the Waterways Advisory Committee agreed that the recreational boating facilities in Chatham provide indispensable services to the Town and to the boating public - particularly in view of the limited public access to the water from Town Landings and the scarcity of public services available. In addition, the small percentage (approximately 8%) of total moorings issued to the boatyards provides the opportunity for those boat owners who want, and can afford, to enjoy the amenities provided by the boatyards (Please note boatyards and recreational boating facilities were determined to be interchangeable terms in the context of this meeting). The boatyards also supply fuel, repair and haul out, storage and launch services to other boat owners who are not boatyard mooring users - services not readily available from the public sector.

He further explained the Waterways Advisory Committee has tried to make recommendations that will maintain the viability and legal rights of the boatyards and, at the same time, make the mooring permit situation in Chatham fairer and more equitable and more open to public knowledge and oversight than has been the case to date. The Committee is aware that the recommendations do not meet all of the Inspector General’s requests (recommendations) but also realize that until it is changed 310CMR9.07 (2)(d) is the law in Massachusetts.

Ms. Connors commented that she was aware a lot of time and effort went into the recommendations of the Waterways Advisory Committee and thanked the Committee for their work.

Ms. Connors moved the Board of Selectmen vote to accept the current levels of moorings the recreational boating facilities have traditionally been assigned.

Mr. Whitcomb noted the current levels are as follows:

Cahoon Marine Service 8

Chatham Yacht Basin 24

Outermost Harbor Marine 9

Oyster River Boat Yard 25

Ryders Cove Boat Yard 73

Stage Harbor Marine 46

Mrs. Bohman seconded the motion.

Mr. Bergstrom said he does not agree with this recommendation. He feels the Harbormaster should be responsible for all mooring assignments and that the waters belong to all of the citizens of the Commonwealth.

Mr. Hinchey said, after consultation with Town Counsel, it may be that the best way to address the Waterways Advisory Committee recommendations is through changes in the by-law which will require a Town Meeting vote.

Mr. Bergstrom said he does not want to create a by-law that insulates the boatyard owners from State statute.

Mr. Summers felt 8% is small number of moorings considering the services provided by these facilities and he feels it is in the best interest of the Town to accept this recommendation. He also said that with new caveats and an appeals board he has reached a comfort level for these mooring assignments.

Harbormaster Stuart Smith reminded the gallery that yacht clubs and inland boatyards have not been addressed in the recommendations.

Mr. Whitcomb said he had mentioned the inland boatyards previously. In response to Mr. Bergstrom’s comments Mr. Whitcomb said the permits would still be annual and subject to renewal even if this motion passes.

Mr. Hinchey said these recommendations are consistent with the Selectmen’s economic development policy. Mr. Hinchey said these assignments would not be permanent or in conflict with existing bylaws. He suggested the Board of Selectmen need to take motions on the recommendations and steps to change the current the bylaw.

Town Counsel Bruce Gilmore rose to say he did not make a recommendation as to the number or percentage in his advisory memo to the Board of Selectmen. He suggests the Town’s actions should remain the status quo until the by-law can be rewritten. He reminded the gallery that the Department of Environmental Protection has more authority under the law than the Inspector’s General’s recommendations.

Mr. Gilmore said mooring permits as described by law are “temporary” and do not become the property or a “right” of the permitted party. The permits could be taken away for any abuse or non-conformity.

Mr. Hinchey said Ms. Connor’s motion indicates keeping the status quo. He asked if Ms. Connors intended to have a percentage or actual list in her motion.

Mr. Smith said he has no authority to give mooring permits to inland boatyards because they are not on any waiting lists. Mr. Summers questioned whether in the inland boatyards give the same benefits to the public as the water based boatyards.

Ms. Connors amended her motion to change “boatyards” to” recreational boating facilities” and does not want the list included in the motion. Mrs. Bohman supported the amendment to the motion.

Mrs. Bohman said the specifics of accepting the recommendation could be addressed in a rewrite to the Waterways By-law.

Mr. Whitcomb noted the Ryder’s Cove Boatyard, has more mooring assignments than the others. Mr. Hamblet said the Committee did not go into specifics in their discussions. He suggested Ryder’s Cove could handle more because of where they are situated. He said the history of these assignments is vague and there is no documentation.

Mr. Jim Woods spoke against the recommendation of the Waterways Advisory Committee. He felt it is the responsibility of Town and citizens to do what is best for the general public. He did not feel having for-profit businesses on public property was in everyone’s best interest. He suggested the private boatyards should have moorings for service and guests, but felt some of the numbers are too large.

Mr. Hamblet said every meeting and every discussion was held in consideration of the best interest of the Town as a whole. He reiterated the Town does not have the needed facilities to accommodate the boaters.

Mr. Whitcomb said he agreed and supports the intent of the motion but not the current numbers of moorings.

The Board of Selectmen voted four in favor, one opposed (Mr. Whitcomb).

Mr. Summers moved the Board of Selectmen vote the levels that have traditionally been assigned be maintained and direct Town Counsel to draft language for a bylaw change to reflect this recommendation - wording should included provisions for Board of Selectmen review and protections for the Town against giving away any rights. Ms. Connors seconded the motion.

Mr. Bergstrom disagreed and said the bylaw would have no benefit over the current situation of renewing annually.

Mr. Gilmore said the Harbormaster has the right to assign moorings as described the current CMR. He said it is his understanding the DEP, Division of Waterways has no intention of changing the law as suggested in the Inspector General’s report.

Mr. Stephen King, Vice chairman of the Waterways Advisory Committee said he agrees the bylaw needs to be changed. He suggested the changes do not include specific numbers.

The motion carried four in favor one opposed (Mr. Bergstrom).

Ms. Connors moved the Board of Selectmen vote that recreational boating facilities assignment policies for moorings and waiting lists, if any, shall be made available to the Harbormaster and for public view. Mooring assignments to individual patrons and customers may be made by the boatyards in compliance with 310 CMR 9.07. Assignments for new and vacant permitted boatyard moorings may also be made by the boatyards using their assignment policies, having been transmitted to the Harbormaster. No boatyard mooring shall be revoked or denied renewal without the written decision of the boatyard outlining the failure of the mooring holder to comply with the items listed in their mooring assignment policies. The decision can be taken to appeal at a later date if the mooring holder so desires. Mrs. Bohman seconded the motion.

Ms. Connors said the Town aspires to transparency and openness and should hold the recreational boating facilities owners to the same standard.

In a memo to the Board of Selectmen the Waterways Advisory Committee noted the boatyards have agreed to furnish the Waterways Advisory Committee with a signed copy of the Fair and Equitable Mooring Assignment Policies similar to a draft copy dated January 18, 2007. Mr. Hamblet reviewed the letter of January 18.

Mr. Summers feels this recommendation can work if an appeals process is in place to police what the boatyard owners agreed to.

Ms. Connors said Town Counsel’s text is more specific and in the by-law rewrite Mr. Gilmore’s language should be incorporated.

Mr. Whitcomb asked if anyone could tell the Board if the mooing holders have contracts with the boatyard owners. Mr. Oppenheim said they do. He noted each yard may have different services and pricing. Mr. Whitcomb noted the appeal process could deal with people who have been denied renewal because they violated their contract.

Mr. Bergstrom said he could not vote this recommendation because the boatyards could put conditions in their contracts to exclude people.

The Board voted four in favor one opposed (Bergstrom)

Ms. Connors moved the Board of Selectmen vote to direct Town Counsel to draft the bylaw rewrite with the inclusion of the recommendation of the Waterways Advisory Committee as stated in the previous motion and include the specifics Mr. Gilmore had in his memo of June 1, 2007, and further, including fair and equitable mooring policies. Mrs. Bohman seconded the motion.

Mr. Bergstrom asked Town Counsel if the Board of Selectmen can be involved with private contracts of this type. Mr. Gilmore said yes. He said the Town can require the boatyards to submit waiting lists, rates, contracts, and policies.

The motion carried unanimously .

Ms. Connors moved the Board of Selectmen vote that any appeal of a Harbormaster’s decision by an individual or recreational boating facility should be made to a locals appeals process or committee. Mrs. Bohman seconded the motion.

Editorial note: Based on the discussion at the meeting and the acceptance of the previous motion it is assumed Ms. Connors motion included an appeals process not only of the “Harbormaster’s decision” but also for person(s) aggrieved by the denial of a boatyard owner for renewal.

Mrs. Bohman asked if it was presumed the Waterways Advisory Committee would be the appeals board. Mr. Whitcomb suggested this would be a topic of discussion at another time.

The Board voted unanimously in favor.

Mr. Summers moved the Board of Selectmen vote to incorporate an appeals process into a bylaw rewrite and direct Town Counsel to draft the same. Mrs. Bohman seconded the motion and the Board of Selectmen voted unanimously in favor.

In the memo from the Waterways Advisory Committee it was suggested that changes in the Waterways By-law and Mooring Regulations allow the transfer of assigned Boatyard mooring permits to the new owner of a Recreational Boating Facility under conditions, and with the approval of the Harbormaster. Mr. Hamblet told the Board of Selectmen the Waterways Advisory Committee has not made a determination on this topic.

Mr. Summers moved the Town allow the transfer of allowed permits under certain conditions and with the approval of the Harbormaster. Ms. Connors seconded the motion recognizing the Waterways Advisory Committee’s request for a draft bylaw change.

Mr. Bergstrom said he has reservations about this because, theoretically, a new owner or owners could end up with each “owning” a slip or mooring. Mr. Gilmore said that is a valid concern considering some docks have been purchased by several people with each holding an interest. Mr. Gilmore said the transferability issue has to be considered carefully as it is with other permits. It is important to note the holders do not own the permits and cannot “sell” them. Mr. Gilmore feels the Harbormaster should have some involvement in any transfer. Mr. Whitcomb asked Mr. Gilmore if he would be able to draft something that reflects protections for the Town. Mr. Gilmore assured the Board he would. The Board of Selectmen voted unanimously in favor of the motion.

Mr. Whitcomb thanked Mr. Hamblet and the Committee for their work on behalf of the Town.

Mr. Summers moved the Board of Selectmen vote to adopt the following Town Mooring Assignment Policy to be enacted immediately and prepared for incorporation into a by-law change at the next scheduled Town Meeting.

1. Alist of all mooring wait lists and assignment lists should be kept at the Harbormaster’s office and posted on the web site. These lists will have the date an individual first appeared on a wait list. The assignment list will have the date the mooring was assigned to that individual. When the Harbormaster makes any changes either by issuing new moorings or removing moorings, then that change will be reflected on the list within fifteen days of said change. The Harbormaster’s office shall keep these records as saved documents on a monthly basis and shall keep these records for public review indefinitely or until otherwise instructed by the Board of Selectmen.

2. The Permit Department will be responsible for archiving the records. The Harbormaster’s office will provide them with updated lists every six months. Records should be available for the public to review upon request. All records submitted to the Permit office by the Harbormaster’s office shall be kept indefinitely or until otherwise instructed by the Board of Selectmen.

3. When a new mooring is assigned a copy of the assignment letter is to be sent to the Waterways Advisory Committee and to the Board of Selectmen within fifteen days of said assignment. If the Harbormaster decides to assign additional moorings to its own stock of available Town moorings then the notification to the Waterways Advisory Committee and Board of Selectmen will still be required.

4. All new assignment of moorings shall be taken from the first person on the waiting list. If a person is selected for a mooring is not the next in line on the wait list then the Harbormaster shall provide a written reason for such a deviation to the Board of Selectmen and the Waterways Advisory Committee within fifteen days of such an assignment.

Ms. Connors seconded the motion.

The Board of Selectmen voted unanimously in favor.

Review Navigational Controls - Breach

Director of Coastal Resources Ted Keon suggested the Board of Selectmen continue to prohibit vessels in the new breach.

Mr. Bergstrom said he is still not comfortable with the Town prohibiting vessels in State waters.

Mrs. Bohman said she made the original motion to prohibit vessels but since the breach has grown so much and the depth has increased she feels there is no valid reason to prohibit traffic. The closure of the South Way has already created a hardship for vessels and the prohibition has not improved the conditions of the breach.

Mr. Summers said it has come to his attention the Board of Selectmen does not have authority to stop vessels from passing.

Mr. Smith said the prohibition was more of a gesture to educate voters and he felt it a small price to pay if it could help prevent further damage.

Mrs. Bohman moved the Board of Selectmen vote to lift the ban of vessels and allow boat traffic through the new breach. Ms. Connors seconded the motion.

Mr. Don St. Pierre said since the Town is going to discuss how to repair the breach, we should wait before lifting the ban. He said a large vessel could run aground and do a lot of damage with their engines to extricate themselves.

Mr. Jim Woods said the break is making Pleasant Bay healthier and the Town should consider that this is a positive environmental impact.

Mr. Whitcomb felt the Harbormaster should continue the ban until the Town makes some decisions about further action. Ms. Connors suggested another thirty day ban.

Mr. Smith also said the new break is dangerous and not easily monitored by the Coast Guard because of the location.

The Board of Selectmen voted three in favor to lift the ban and two opposed (Mr. Whitcomb, Mr. Connors). The motion carried.

Director of Coastal Resources Ted Keon updated the Board of Selectmen of the effects of the new breach in North Beach. He said the water will continue to flow towards North Chatham. He said filling the breach with dredge material will allow the Town some time for planning and will change the natural inclination for the inlet to fill Pleasant Bay. Mr. Summers noted that any theories are not exact science and that for the most part the situation is simply unpredictable.

Mr. Keon said in all likelihood this breach will result in the same actions associated with the 1987 break.

Mr. Bergstrom asked if the estimates for filling have changed. Mr. Keon said the estimate for permitting and employment of the dredge, the fill, etc. is now assumed to be conservatively set at $1.75 to $2 million.

Mr. Whitcomb asked about the status of emergency permitting. Mr. Keon told the Board there is a meeting being arranged for June 11, 2007 in Boston with U. S. Congressmen William Delahunt, State Representative Sarah Peake and various state and federal agencies.

Mr. Keon said the National Seashore will not support our efforts to interfere with the break at this time. He has contacted FEMA and they are coming June 6 to discuss the possible impact to the shoreline. FEMA is not willing to help fund a closure effort at this time. The Army Corps of Engineers has told him they do not have specific authority or funds to help close the breach.

Mrs. Bohman suggested putting this item on the Board’s agenda for June 12, 2007 after the meeting in Boston to get a better idea of our course of action.

Mr. Whitcomb said July 23 is the first opportunity the Town has for a Special Town Meeting. Mr. Bergstrom said he felt it premature to call a Special Town Meeting.

Mr. Hinchey said the staff is going forward with emergency permitting as directed by the Board. This could continue without making assumptions about what Town Meeting wants.

Mr. Summers suggested the only people who want the breach filled are those that might be affected by it and not necessarily the rest of the voters.

Mr. Richard Miller said the Town needs to buy some time to look at long term impacts. He thought the Fish Pier may become quasi functional and so this breach will not just affect property owners.

Mr. Miller also said there may be funds available from private property owners, and together with Town funds, could make the project eligible for other funding. He noted the Town is willing to spend money on open space so they should be willing to save what property we already have, saving these homes should be a priority.

Special Town Meeting Discussion

This discussion will be on the Board’s June 12, 2007 agenda.

Discussion - Guard Rails

This item has been postponed until June 12, 2007.

The meeting adjourned at 7:20PM

Respectfully submitted,