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HomeMy WebLinkAbout1948-02-09244 Boston Edison Hearing McDevitt Claim for Damages SELECTLIN' S T ETING February 9, 1948 A regular meeting of the Board of Select- men was held in the Selectmen's Room on Monday evening, February 9th, at 7.30 P.M. There were present: Chairman Paxton, Messrs. Locke,Gay, Emery and Driscoll. The Clerk was also present. At 7:35 P.P.I. a hearing was declared open upon the petition of the Boston Edison Company for permission to erect or construct a line of wires over the following ways: Cambridge - Concord Highway, Lincoln Street; Lowell Street and North Street; Bedford Street and Grove Street; and Wood Street. Mrs. Schumacher, 148 Wood Street, Lex- ington, was the only person who attende4 the hearing. The notice of the hearing was read by the Chairman. Inasmuch as no persons were present either in favor or in opposition the hearing was declared closed, at 7:40 P.M. The Clerk was instructed to request IIr. Fnodell to meet' with the Board to discuss the proposed line of wires. The Chairman informed the Board that the Francis E. Burke, attorney for Owen McDevitt et al, telephoned him this evening. Mr. Mc- Devitt wanted 100 a foot for the taking on Grove Street which would amount to about $730. Mr. Burke advised his client that he felt $500 was the maximum that the property was worth. Mr. Burke assured the Chairman that hia client will settle for y;500 and he awaits the decision of the Board. The Chairman stated that Mr. Emery called Aim last evening pertaining to the problem of Town Counsel. Mr. Emery presented each member of the Board with a typed document per- taining to this subject. Lr. Emery stated that he is very sincerely distulted about the whole thing and thinks it should be given a great deal of consideration before a decision is reached. He said that when it comes to appoint- ing a man who has lost the confidence of two of 011 fad 1 245 the elected Boards of the town he would like to be released from his vote of last Saturday, not because he wished to chance his vote but because he would like to give it more thought. Mr. Emery said that this is a matter that it might possibly be wise not to decide until after the election so that the new members may feel that they have not a decision made binding the Board before they were elected to it. He said that if the matter is going=, to be voted on to -night after the Town Counsel has met with the Board he would not like to be asked to vote to -night. Mr. Locke said that he did not think this Board as it is Discussion constituted now should settle the matter. The of re - Chairman said that he did not think the Board appointing was going to settle anything this evening. He Town said he thought they would try and get the matter Counsel straightened out. The Chairman said there are bound to be three members of the Board here and that they would, therefore, carry along. He explained that the only basis was that the Town Counsel, in talking to a member of the Board feels that he would like to go into Town Meeting with the assurance that he will be Town Counsel. Mr. Gay asked if the Board hadn't decided to tell him that he would be reappointed on a trial basis for six months. Mr. Emery said that he felt the Board was going to discuss it and tell him that he would be reappointed conditionally. He said that this Board should not make a commitment at this time that would involve men not members of the Board. Lir. Locke said that he thought personally that Lr. Lynch should be reappointed but he also thought that if he is - reappointed he has to work with the new Board and it should be on their decision. Mr. Emery asked if Mr. Lynch couldn't be told by the 8th of March. He will then know two weeks before the first meeting. McDevitt At 8r00 P.M. Mr. Daniel A. Lynch, Town Counsel, Claim for met with the Board. The Chairman explained to him Land that Mr. Francis Burke, Attorney for Owen I:IcDevitt Damages' et al, had advised hira that his client is willing to settle for 0$00. The Chairman explained to the Board that Mr. McDevitt has received a bill in the amount of $727.96, water betterment assessment on 246 Burlington Street. He brought the bill to Mr. Spencer, who in turn referred it to the Board of Selectmen and suggested that the bill be abated. Mr. Locke said that he did not see how the bill could be abated but it might be deferred. It was debided to hold the matter over until the next meeting of the Board. Upon motion of Mr. Gay, seconded by Mr. Locke, it was voted to authorize the Town Counsel to draw up an agreement whereby the MODevitt Claim should be settled in the amount of 500., subject, of course, to the appropriation by Town Meeting. At 8:35 P.D. hr. John Devine and his client, Mr. Thomas A. Napoli, met with the Board. The Chairman said that the Selectmen would like to settle the pending claims on Lincoln and Grove Streets at the coming Town Meeting if Napoli possible. He asked what Mr. Napoli had in Claim for mind. I,Zr. Devine said that he did not know Damages what the Board would do about the taking but the water betterment assessment appears to be a hardship, and Nr. Napoli derives no benefit. He said that Mr. Napoli is willing to pay whatever assessment benefits his land but he tells him that at the present time he is not getting any benefit whatsoever. Mr. Devine asked if the damage for land taking was some- thing to be referred to the County Commissioner. The Chairman explained that the town pays all land damages. Yr. Lynch stated that the County Commissioners, in their order puts the burden entirely on the town, Lir. Devine stated that the trees involved in the taking serve as a wind breaker for Mr. Napoli's crops and if they are taken down it will make quite a difference. Mr. Napoli said that he estimated the difference in his income would be e?50.00 per year per acre and there are about 700 acres. Hr. Devine said that they would like to make some kind of a deal that every one thought would be fair. Everyone would be happy and no one would be hurt. The Chairman suggested that the two items, that is, water betterment assess- ments and land damage be kept separate. He asked what Mr. Napoli had in mind as far as Qffil 247 a sum of money was concerned for the land taking. Mr. Devine asked Air. Napoli ham many acres of land he has. Mr. Napoli replied that he has seven acres along side the taking. The whole property contains 14 acres. Mr. Devine asked if Mr. Napoli had any figure in mind. Ir. Napoli said that in previous meetings with this Board he was given to understand that the land' was not worth anything. Mr. Devine asked him what he thought it was worth. Mr. Napoli replied that he felt he would suffer more from the damages to the land by the removal of the trees. The Chairman said that the town does not anticipate constructing the street for sortie time and by the time it is constructed PIr. Napoli may be using the land for building purposes. Mr. Napoli said that it was his intention to do farming for quite some time. Mr. Devine said that the trees which Lir. Napoli will lose are quite a valuable asset in themselves. They serve the purpose of saving the crops and also to prevent people from trespassing and stealing. Ir. Napoli said that he did not want to make any money and that he just wanted a square deal. TheChairman asked, in view of the fact that the town does not anticipate construction now, would it be possible to enter into an agreement that if and when the town did construct the street a line of trees of a similar type, or a hedge would be put along Napoli's land. Mr. Napoli said that some of the trees are 16 feet high and have taken 15 years to grow. The Chairman's suggestion would not work. Mr. Napoli said that he would be willing to take Mr. Devine's advice. hlr. Devine said that he really thought, taking into consideration the trees and the damage to the property, that $2,500 would be a very modest amount. He said that if Mr. Napoli had to replace a wind breaker and put in the same trees it would cost a fortune. Er. Emery inquired as to the number of feet of trees. Mr. Napoli replied that there are 800 feet. The Chairman said that to him, personally, $2,500 seems quite a high price. Mr. Devine said that he thought if the town has the trees appraised they would find that it would probably be a larger amount. The Chairman asked how some of the other members of the Board felt. Lir. Emery said that he felt the same as the Chairman. Mr. Gay said that he personally 248 Sarano Claim for damages would like to think it over before deciding. Ivlr. Devine said that this was not a hard and fast fthgure. He presented it as what he thought was a fair price. He said that Mr. Napoli wants to leave the impression with the Board that he wants to be fair with the town. Mr. Devine said that if the water mains go through and Yr. Napoli uses the water he should pay for it if it is of any benefit to him. He asked if payment could be deferred until such time as Mr. Napoli uses the water. He said that some time it is possible the land will be opened up for development at which time Mr. Napoli would pay. Mr. Lynch replied that under the statute payment can be deferred; The Chairman said that the Board of Selectmen will discuss both subjects and advise Mr. Devine of whatever decision is reached. Mr. Devine and tr. Napoli retired at 8:55 P.M. Mr. Nathan Bidwell and Mrs. Helen B. Sarano met with the Board. TheChairman explained that the town has a number of claims for takings on the streets and the Board would like to have them all straightened out at one time if possible. He said that as.he recalls the situation Mrs. Sarano has two betterment assessments for water on Lincoln Street and there is a taking of approx- imately 12,000 feet. She would like to have the water betterment assessments abated for the land takings. However, the town counsel has advised the Board that the only way the assess- ments can be abated is if they are of no benefit; therefore, the only way to handle the situation is to have it go through town meeting and have a sum of money appropriated to pay for the taking. Mrs. Sarano in turn will then pay her water betterment assessments. Mr. Bidwell said that it could have been abated but at this stage it has to be done this way. Mr. Lynch said that it could not have been abated. P.r. Bidwell said he believed damages would run higher but to save litigation he will agree to the settlement proposed by the Chairman. The Chairman asked if the Board had any questions. Mr. Emery asked if the town gas to award land damages in the same amount of dollars and cents that the betterment assessment 249 is for the water. Er. Bidwell replied in the affirmative if it goes through that way. The Chairman said that if the town does not approve Mr. Bidwell then takes the case to court. Mr. Lynch told Mr. Bidwell that he would send him a confirmatory deed and lease on the land •shich he could have Mrs. Sarano execute. Mr. Lynch will hold the deed and lease until after the town meeting. If town meeting approves the money then the two bills will be washed out, and if town meeting does not approve the money the deed and lease will be returned to Mr. Bidwell. Mr. Bidwell and Mrs. Sarano retired at 9:05 P.P.I. Mr. Charles H. Miller, representing his mother, Mrs. Marie A. Miller, met with the Board relative to the Lincoln Street taking. He Miller looked at the plan of the taking and asked if they Claim would lose the maple trees. The Chairman replied that he probably would if and when the street is constructed. Mr. Lynch explained to Mr. Miller that his mother has until March 7, 1948 to file a petition for the assessment of damages if she intends to take it to court, If she doesn't file, her rights will be foreclosed. He said he thought Pairs. Hiller should see someone about drafting the petition to protect her rights. Mr. Miller asked if they could settle by an agreement. The Chairman explained that if Pars. Miller signed an agreement prepared by the Town Counsel stating that upon the appropriation of so much money he would release all claims and did not file a petition before march 7th, and if when it came to town meeting it was not approved, she would have no rights at all. If the proper papers are filed and town meeting does not appropriate money then Pars. Miller would still have an opportunity of going to court to determine the damages. Mr. Miller said that if the trees were taken down the damage would be considerable because that is the best part of their property. Mr. Miller asked if there was any talk of a proper settlement. The Chairman replied that the Board has not made up its mind preferring to have the claimant give the Board an idea. Then, if the Board is not satisfied, they will in turn make a counter offer. The Chairman 250 explained that the Board attempts to see that every one is treated fairly. Mr. Miller said that the 8700 feet is the very best part of his property and he would hesitate to say just how much it is worth. TheChairman suggested that Mr. Miller have his/ mother come down to the town offices some time this week and look at the plans and then decide what she thinks is a fair price, and let the Board know next Monday night. He reminded Mr. Miller; his mother has until March 7th to protect her ''interest. I.ir. Miller retired at 9:25 P.M. The Chairman told Mr. Lynch that theBoard wanted to talk to him about the position of Town Counsel. Mr. Lynch said that he spoke to the Chairman two or three weeks ako and he felt that there was a little tension in the air and he thought it should be aired. Mr. Lynch said that he thought the tension has bothered every- one. The Chairman said that the past year some of the things that have bothered the Board pertaining to the town counsel is the fact that many of the committees, either elected or appointed have asked for information and it has been a long time getting back to them, and in some instances the information has not been the correct information. He said that in view of this and in view of the lack of confidence that some of the committees have the question of reappointment has come up. The Chair- man said that some things that have disturbed the Board are the fact that Pat Tropeano wrote the article for the Planning Board at the last annual Town Meeting. He said that that indicates that perhaps the Planning Board may not have had the confidence that they should have in the town counsel. The Chairman said that the Town Counsel's position is not only as counsel to the Board of Selectmen. He said that the Board feels that the service he has given to them has been very good, but that he is town counsel and as such he should be available to all the Committees for legal decisions and whatever work they want. He said that during the past few years the town has been faced with many problems and is growing very fast. 0-4 1 251 He said that the Board was wondering first, with the possible growing practice of his own whether or not Mr. Lynch could afford to spend the time as Town Counsel with the growing demands of the town. The Chairman said that secondly the Board is very much concerned about the fact of confidence the committees have in theTown Counsel. Mr. Lynch stated that he thought anyone who takes a public position is subject to criticism and he thought they should be, and should also be able to take it. He said that if something has gone wrong he would appreciate it if he were so advised. Mr. Lynch said that he had conferred recently with Chairman Edwin B. Worthen and Richard Cromwell and discussed the Planning Board's article in the warrant for the coming town meeting. He said that he changed the article detecting some slight technical errors in them. Mr. Lynch said that insofar as the Planning Board and the Town Counsel is concerned if the situation existed as outlined by the Chairman, he feels it is now remedied. He said he has dis- cussed with the Planning Board the new Chapter 340 Acts of 1947 and his relations with the Planning Board, he would say, at the present time are cordial. Er. Lynch said that when he became Town Counsel he told the Board of Selectmen that he was not an authority on municipal law. He said that there is no such thing in the State of Massachusetts. He said that mistakes will be made and the closest thing the State has on an authority on municipal law is Henry Long. Commissioner Long admitted a mistake and Mr. Lynch said that he, as Town Counsel of Lexington, can make a mistake and admit it. He said that everything that has been submitted to him has been answered to every Board and that he recognizes he is Town Counsel for the entire Town. Er. Lynch said that the Board of Appeals feels free to confer with him and has on many occasions and at his home on many evenings. He said that the Building Inspector has problems constantly. He feels free, and Mr. Lynch wants him to feel free, to discuss problems with him at his home at any time. He said that when Mr. Emery was a member of the Board of Fire Engineers he was at Mr. Lynch's home on many occasions. He said if he did not have the time he would tell the Board. Mr. Lynch said that he did not know of any 252 breach at the present time. Criticism there has been. He said that he does not know where- in the mistake was made and he would be surprised if no mistake was made, but he would be shocked if the same mistake was made twice. Mr. Lynch said that he has saved the town a number of mis- takes along the line • but he felt that that was his job. He said that as far as the Boards are concerned he thought they have felt free to come to him. TheChairman said that it looked peculiar for the Planning Board to have another counsel prepare their articles. Mr. Lynch said that he is not beyond criticism and he does not want the Board to feel that he is. He recommends it and if he can be told ways to make him better perform his job of Town Counsel he wanted to do it. The Chairman said that the real problem is that when a committee puts in time for nothing, requests a legal opinion, the Board feels that they should get an answer to the request within a reasonable period of time. Mr. Lynch said that he agreed and that his job is not only for the Board of Selectmen but for the town. The Chairman said that the Board would like to feel that the Town Counsel they have has the same general ideals that Mr. Wrightingthn:.had although he niay have a different manner of presenting them. My Lynch said that he would take no exception to Mr. Wrightington, and that his ideals were just as high as Sidney Wrightington's ever were. The Chairman asked if the Board had anything that they would like to speak to Mr. Lynch about. No member had anything to say. Mr. Lynch said that in any instance if any Board has anything to say he would be very happy to sit` down with them at any time. He said that he has made himself available and is not aware of not being co-operative at any time and if there is such a feeling he wants to break it down. The Chairman said that the Board of Selectmen feel that they are a policy making Board and, there- fore, establish the policies. The job of the Town Counsel is to determine the legality of the policy and as far as possible see that they are* legal. The Chairman said that at the present ;C? smaq1 moment the Board is faced with an election and two members of the Board may not be here when the appointments are made and the Board feels that it is not proper to commit any future Board for next year. Mr. Lynch agreed. Mr. Lynch reported to the Board on the claim of F. Louis Carroll v. Town of Lexington. He said that he had asked the Sup't. of Public Works where it appeared in the report that it was the left front tire of the town equipment, and it was the forward of the left rear tire. Mr. Lynch explained that there could be a recovery inasmuch as the owner of the motor vehicle was not driving it at this time, and iri view of this fact, and also the fact that Lr. Carroll is a town official, he would recommend a compromise. The total bill is :1:6.10. The Chairman asked the Board what decision was to be made. Mr. Emery moved that the Town Counsel be authorized to settle the claim up to but not exceeding ?75.00. Mr. Driscoll seconded the motion, and it was so voted. Ir. Lynch retired at 10:10 P.M. The Chairman read a letter from the Town Counsel with reference to the Boston Edison Trans- mission easement over Butterfield's Pond. The Town Counsel informed the Board that some time prior to the adjourned town meeting the Board should arrive at a preliminary opinion as to whether or not the easement required by the Boston Edison Co. for its proposed transmission line is such an easement as is no longer necessary for the purpose for which it was acquired by theTown. Section 6 of Chapter 263 of theActs of 1926 provides among other things that such sales are authorized by a vote of the majority of the voters of the town present and voting thereon, at a town meeting duly called for the purpose. The Clerk was instructed to ask the Town Counsel if this means that a special town meeting must be called for just that purpose. A letter was received from the Lexington Allied Veterans Council, submitting nominations of members to serve as the 1948 Patriot's Day Committee; Upon motion of Mr. Locke, seconded by Mr. Gay, it was voted to appoint the following individuals to serve as a Patriot's Day Committee: 25S Claim of F. Louis Carroll Butter - field's Pond easement 254 Recommendation intersection of Mass. Ave. & Clarke Use of Hall Abate Charge for ambulance bill Use of Hall Julius Seltzer Albert H. Burnham Martin F. Bashion Paul J. McCormack John G. Brucchi Dr. Howard Foley George E. Foster, ex officio StateGuard Veteran's Asstn. Sons of Union Vets of Civil War Lexington Minute Men Inc. S.tanly 'Till Post 38 Lex. Post . V. E. W. Lex. Post AMVETS Lex. AlliedVets. The Chairman read a letter from the State Department of PublicWorks setting forth recommendations to improve the conditions at the intersection of Massachusetts Avenue andClarke Street. The Chair- man suggested that theBoard check wi''th Louis Bills, the Wire Inspector, and request that he give an estimate of the cost of revising the system as recommended. A letter was received from Paul Gifford Anglim of New York inquiring as to the possibility of using Cary Memorial Hall for a period of ten weeks for a summer theatre company. TheBoard prefers not to reserve the building for any one group for such a length of time. Permission was, therefore, denied. The Chairman informed the Board that Mrs. Rhoda of 15 Manley Court, spoke to him about an ambulance bill in the amount of10.00 which she received, for taking her daughter Phyllis to the hospital. T}e..ir1 was poisoned from D.D.T. in the High School lunchroom. Mr. Gay moved that the charge be abated. Mr. Locke seconded the motion, and it was so voted. An application was received from War Parents requesting the use of Estabrook Hall on February 20th for a meeting. Upon motion of i:Ir. Emery, seconded by Mr. Driscoll, this use was granted free of charge. 1 An application was received from Air Scouts Squadron requesting permission to use Cary Memorial Hall on February 25th for a banquet. Mr. Emery moved that the use of the hall be granted subject to a charge of 435.00. l:r. Driscoll seconded the motion, and it was so voted. An application was received_ from Lexington Taxpayer's Association requesting permission to use Cary Hall on March ninth for a meeting. Upon motion of Mr. Emery, seconded by Er. Driscoll, this use was granted free-of charge. An application was received from the Sacred Heart Church requesting permission to use Cary Memorial Hall on March 17th for a minstrel show. Upon motion of Mr. Gay, seconded by Mr. Emery, this use was granted subject to a charge of 435.00. The Chairman informed the Board that only one bid had been received for the collection and disposal of garbage in the Town of Lexington, and that was from Connors Bros. of Burlington. They bid 49,600 for one year 19,200 " two years 28,800 " three years. The awarding of the bid was held over for one week. t, Board ofSurvey plan. entitled "Plan of Right of :'hays across new High School Lot, Lexington, Mass." was signed by the Board of Selectmen acting as a Board of Survey. The plan is to be returned to the Town Counsel for recording. The meeting adjourned-at 11:05 P.M. A true record, Attest: 255