Chairman Nancy Daly, Selectmen Robert Allen, Jesse Mermell, and Richard Benka

IN BOARD OF SELECTMEN

October 7, 2008

Present: Chairman Nancy Daly, Selectmen Robert Allen, Jesse Mermell, and Richard Benka.

The Minutes of September 23, 2008 were approved as amended.

In Board of Selectmen October 7, 2008 Page 2 of 30 EXECUTIVE SESSION

Upon motion duly made and seconded, it was moved that the Board of Selectmen go into EXECUTIVE SESSION.

The Chair then stated the reason(s) for the Executive Session: (SEE THE REASONS CHECKED)

(1) To discuss the reputation, character, physical condition or mental health rather than the professional competence of a particular individual1.

(2) To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual1.

X__ (3) To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the governmental body, to conduct strategy sessions in preparation for negotiations with non-union personnel, and to conduct collective bargaining sessions or contract negotiations with non-union personnel.

(4) To discuss the deployment of security personnel or devices.

(5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

(6) To consider the purchase, exchange, lease or value of real property, if such discussion may have a detrimental effect on the negotiating position of the governmental body with a person, firm or corporation.

(7) To comply with the provisions of any general or special law or Federal grant-in-aid requirements.

The individual involved in such Executive Session must be notified in writing at least forty-eight (48) hours prior to such session and is (1) entitled to be present (2) to have counsel or other representative present and (3) to speak in his or her own behalf. Upon the request of the individual involved, no Executive Session shall be held and the meeting shall be held in open session. See G.L.c.39, §§23B(1) and (2).

In Board of Selectmen October 7, 2008 Page 3 of 30

(8) To consider and interview applicants for employment by a preliminary screening committee or a subcommittee appointed by a governmental body if an open meeting will have a detrimental effect in obtained qualified applicants: provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee or a subcommittee appointed by a governmental body, to consider and interview applicants who have passed a prior preliminary screening.

(9) To meet or confer with a mediator, as defined in section twenty-three C of chapter two hundred and thirty-three, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or body, provided that: (a.) any decision to participate in mediation shall be made in open meeting session and the parties, issues involved and purpose of the mediation shall be disclosed; and (b.) no action shall be taken by any governmental body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open meeting after such notice as may be required in this section.

The Board of Selectmen, during a properly constituted and noticed meeting:

VOTED: to go into Executive Session

Roll Call Vote: Voting in the Affirmative: 3 Voting in the Negative: 0

Selectman Allen absent for roll call.

The Board of Selectmen (WILL) RECONVENE in Open Meeting after the Executive Session.

In Board of Selectmen October 7, 2008 Page 4 of 30 PUBLIC COMMENT

Arthur Conquest, 155 Tappan Street expressed concern about the availability of the Brookline Police Department Rules and Regulations, Policies and Procedures manual. The public was told that they were available for viewing at the Police Department and the Main Library as well as on the Town’s website. Mr. Conquest went to the Library and the book was not available. When it did become available it was difficult to navigate through the Table of Contents, and the Manual itself was difficult to go through. Mr. Conquest then went to the Police Department to view the book, but was seated in the front desk area where it was too busy to concentrate. Mr. Conquest also asked where the section on the Department’s relationship with the community was in the book. The Board replied that it is not required for the accreditation. Mr. Conquest also asked who reviewed the civil rights section. The Board replied that it was reviewed by several, most notably Associate Counsel Patricia Correa, who specializes in civil rights law.

BAT EQUIPMENT

The Board considered the question of authorizing the disbursement of funds related to the proposed Town Hall equipment list to Brookline Access Television. Said disbursement to be funded from SG25.

Assistant Town Administrator Melissa Goff stated that she had previously gone before the Board with the line items of equipment. The equipment will upgrade the cable capabilities at Town Hall. The Town will not be funding the equipment; it is funded out of the license agreement with RCN.

On motion, it was unanimously,

VOTED: To authorize the disbursement of funds related to the proposed Town Hall equipment list to Brookline Access Television. Said disbursement to be funded from SG25.

PUBLIC SHADE TREE AGREEMENT

The Board considered the question of approving and executing a one year extension of the Public Shade Tree Agreement.

Town Counsel Jennifer Dopazo sated that the one year Public Shade Tree Agreement is up. The Agreement called for inventory of the Town’s Public Shade Trees to identify those impacted by gas, and to assess the health of the trees impacted. Ms. Dopazo added that at least ten communities have signed on for this agreement.

In Board of Selectmen October 7, 2008 Page 5 of 30 PUBLIC SHADE TREE AGREEMENT cont’d

Tree Warden Tom Brady added that there has been a detailed assessment; however more time is needed to wrap up the work and prepare the final report.

On motion, it was unanimously,

VOTED: To approve and execute a one year extension of the Public Shade Tree Agreement.

GRANT

The Board considered the question of accepting a Grant in the amount of $5,000 from the Brookline Community Foundation to begin a parks recycling initiative.

Director of Parks and Open Spaces Erin Gallentine stated that the Brookline Community Foundation made a grant of $5,000 to begin the Town’s parks recycling initiative. The grant will enable the Town to purchase recycling receptacles for glass, metal, and plastic waste in several parks.

On motion, it was unanimously,

VOTED: To accept a Grant in the amount of $5,000 from the Brookline Community Foundation to begin a parks recycling initiative.

CONTRACT

The Board considered the question of approving and executing Contract PW/97-9 “Beacon Street Final Construction Services” in the amount of $49,497.00 with Vanasse Hangen Brustlin, Inc. Said Contract to be funded as follows:

4998WS04 6H0026 $38,767.22 4998WS06 6H0026 $ 5,729.78 4995SW62 6H0026 $ 5,000.00

Director of Engineering Peter Ditto stated that this contract is for the final construction phase for the Beacon Street Project. This contract is for consulting civil and traffic engineering services.

Selectman Benka inquired about access for the disabled and if they were properly installed before the Town accepts responsibility for Beacon Street.

In Board of Selectmen October 7, 2008 Page 6 of 30 CONTRACT cont’d

Mr. Ditto replied that there is an extensive punch list paying particular attention to ramps and compliance. The Town will go over this list with the contractor.

On motion, it was unanimously,

VOTED: To approve and execute Contract PW/97-9 “Beacon Street Final Construction Services” in the amount of $49,497.00 with Vanasse Hangen Brustlin, Inc. Said Contract to be funded as follows:

4998WS04 6H0026 $38,767.22 4998WS06 6H0026 $ 5,729.78 4995SW62 6H0026 $ 5,000.00

CONTRACT

The Board considered the question of awarding and executing Contract No. PW/09-13 “Beacon Street and General Grounds Maintenance” in the amount of $255,750.00 to Greener Landscaping, Inc. of Lowell. Said Contract to be funded from the following accounts:

46004650 523599 $204,172.92 4998WS09 6P0044 $ 10,000.00 4998WS08 6P0018 $ 20,000.00 4998WS05 6P0007 $ 2,520.94 4996TW15 523599 $ 9,179.06 4998WS08 6C0011 $ 9,877.08

Director of Parks and Open Spaces Erin Gallentine stated that this contract will include landscape maintenance, weeding, mulching, mowing, trimming, pruning, watering, leaf removal, seeding, planting, work and crew oversight and park maintenance equipment for Beacon Street and general grounds.

On motion, it was unanimously,

VOTED: To award and execute Contract No. PW/09-13 “Beacon Street and General Grounds Maintenance” in the amount of $255,750.00 to Greener Landscaping, Inc. of Lowell. Said Contract to be funded from the following accounts:

46004650 523599 $204,172.92 4998WS09 6P0044 $ 10,000.00 In Board of Selectmen October 7, 2008 Page 7 of 30 CONTRACT cont’d 4998WS08 6P0018 $ 20,000.00 4998WS05 6P0007 $ 2,520.94 4996TW15 523599 $ 9,179.06 4998WS08 6C0011 $ 9,877.08

CONTRACT

The Board considered the question of awarding and executing Contract No. PW/09-14 “Skyline Park Grounds Maintenance” in the amount of $58,400.00 to Greener Landscaping, Inc. of Lowell. Said Contract to be funded from the following accounts:

46004650 523599 $22,400.00 4995SW52 6C0007 $36,000.00

Director of Parks and Open Spaces Erin Gallentine stated that this contract includes weeding, mulching, mowing, trimming, leaf removal, raking, edging, and pruning at Skyline Park.

On motion, it was unanimously,

VOTED: To award and execute Contract No. PW/09-14 “Skyline Park Grounds Maintenance” in the amount of $58,400.00 to Greener Landscaping, Inc. of Lowell. Said Contract to be funded from the following accounts:

46004650 523599 $22,400.00 4995SW52 6C0007 $36,000.00

EXTRA WORK ORDER

The Board considered the question of approving Extra Work Order #2 in the amount of $33,912.50 for work to be completed by Park Landscape Associates in connection with Contract No. PW/08-01 “School Grounds Maintenance”. Said Contract to be funded from account 46004650 523599.

Director of Parks and Open Spaces Erin Gallentine stated that this is the second year of the contract. The contract is for maintaining ten schools and maintenance for Beacon Street for July, August, and September in FY09.

In Board of Selectmen October 7, 2008 Page 8 of 30 EXTRA WORK ORDER cont’d

On motion, it was unanimously,

VOTED: To approve Extra Work Order #2 in the amount of $33,912.50 for work to be completed by Park Landscape Associates in connection with Contract No. PW/08-01 “School Grounds Maintenance”. Said Contract to be funded from account 46004650 523599.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a temporary Wine and Malt beverages license to Pine Manor College in connection with a Reception to be held on October 17th and October 18th from 5:00 p.m. to 9:00 p.m. at 400 Heath Street.

On motion, it was unanimously,

VOTED: To grant a temporary Wine and Malt beverages license to Pine Manor College in connection with a Reception to be held on October 17th and October 18th from 5:00 p.m. to 9:00 p.m. at 400 Heath Street.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a temporary Wine and Malt beverages license to Boston University College of Arts in connection with a Reception to be held on October 23rd from 6:00 p.m. to 7:30 p.m. at 808 Commonwealth Avenue.

On motion, it was unanimously,

VOTED: To grant a temporary Wine and Malt beverages license to Boston University College of Arts in connection with a Reception to be held on October 23rd from 6:00 p.m. to 7:30 p.m. at 808 Commonwealth Avenue.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a temporary Wine and Malt beverages license to Boston University CFA Alumni Relations and Development in connection with a Dinner to be held on October 27th from 8:00 p.m. to 12M at 808 Commonwealth Avenue.

On motion, it was unanimously,

In Board of Selectmen October 7, 2008 Page 9 of 30 TEMPORARY WINE AND MALT BEVERAGE LICENSE cont’d

VOTED: To grant a temporary Wine and Malt beverages license to Boston University CFA Alumni Relations and Development in connection with a Dinner to be held on October 27th from 8:00 p.m. to 12M at 808 Commonwealth Avenue.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a temporary All Kinds of Alcoholic beverages license to Brookline High School Century Fund in connection with a Gala Event to be held on November 15th from 6:00 p.m. – 12M at 115 Greenough Street.

On motion, it was unanimously,

VOTED: To grant a temporary All Kinds of Alcoholic beverages license to Brookline High School Century Fund in connection with a Gala Event to be held on November 15th from 6:00 p.m. – 12M at 115 Greenough Street.

SANCTUARY STUDY COMMITTEE

Selectman Nancy Daly and members of the Sanctuary Study Committee appeared to update the Board.

Town Arborist Tom Brady and Roberta Schnoor of the Sanctuary Study Committee presented the following: In Board of Selectmen October 7, 2008 Page 10 of 30

Sanctuary Study Committee Presentation to Board of Selectmen

Tuesday, October 7, 2008 Old Lincoln School Auditorium

History & Committee Composition

Sanctuary Study Committee was appointed by the Board of Selectmen in Fall 2007 in response to a warrant article The Sanctuary Study Committee includes representatives from the Board of Selectmen, Office of Town Counsel, Parks and Open Space Division, Planning and Community Development, Board of Assessors and Conservation Commission

In Board of Selectmen October 7, 2008 Page 11 of 30

History and Mandate of Committee

The Board of Selectmen voted on October 16, 2007 as follows. VOTED: “That the Board of Selectmen appoint a Committee to study ways in which the Town may protect town-owned sanctuaries and conservation lands, particularly with respect to the buffer areas surrounding those lands. The Committee shall comprise of one Selectman, Town Counsel or her designee and five additional members to be selected by the Board of Selectmen. The Committee shall be appointed as soon as reasonably practicable and shall begin its review with the areas surrounding the Hoar Sanctuary.”

Conservation Tools (1)

Acquisition by Purchase Town, local Land Trusts, or public/private partnerships may purchase properties to ensure a particular parcel is protected in its natural condition Eminent Domain Takings Municipalities have authority to take land in furtherance of a public purpose Requires 2/3 vote of TM & vote of Selectmen Town must offer just compensation

In Board of Selectmen October 7, 2008 Page 12 of 30

Conservation Tools (2)

Conservation Restrictions (CRs) CRs can protect environmentally valuable land and provide tax benefits to grantors CRs may be donated by landowners or purchased Brookline has 18 CRs in place now (14 held by Town and the State, 4 held by Brookline Conservation Land Trust) The BOS, the Conservation Commission, and the Sanctuary Study Committee have developed a draft Conservation Restriction Policy that will help guide prospective grantors through the Conservation Restriction process

Conservation Restriction Policy A policy would establish broad guidance, making it easier for both landowners and the Town to use this tool, and would encourage consideration of this useful tool and CR establishment where appropriate Many other towns have successful CR policies and/or guidelines Brookline still has several unprotected, environmentally significant properties as stated in the 2000 and 2005 Open Space Plan

In Board of Selectmen October 7, 2008 Page 13 of 30

Conservation Tools (3)

Zoning Setbacks Most lots abutting sanctuaries are already developed Current zoning requires a 30’ rear yard setback New zoning could help protect sanctuaries by requiring larger setbacks or requiring review by Town Boards and Commissions

Conservation Tools (4)

Funding Options Non-Profits and Private Trusts Brookline Conservation Land Trust D. Blakely Hoar Trust Government Options Capital Improvement Plan Open Space Trust Fund State agencies and other grants Federal tax code includes tax breaks for land donations Monetary Donations – establish policy/procedure for receiving donations specifically for land conservation purposes.

In Board of Selectmen October 7, 2008 Page 14 of 30

Conservation Sanctuaries and Development on Adjacent Properties

The Conservation Commission administers the Wetland Protection Act and Brookline Wetland Bylaw; development near wetlands is subject to their review and may be allowed with conditions or disallowed Development could still have other detrimental effects on Hoar and other sanctuaries; Conservation Commission does not have jurisdiction over abutting properties, unless…

Next Steps and Priorities (1)

Sanctuary Study Committee will apply conservation tools to all three sanctuaries by identifying abutting properties, determining preservation priorities, and examining options for protecting these properties The Committee will continue researching funding options The Committee will continue to explore zoning setbacks and other options

In Board of Selectmen October 7, 2008 Page 15 of 30 SANCTUARY STUDY COMMITTEE cont’d

TOWN OF BROOKLINE CONSERVATION RESTRICTION POLICY

Whereas, the protection of the environment, including open space, scenic areas, clean air, pure water resources, natural habitat of wildlife and plants, is a primary concern of the Town of Brookline; and

Whereas, the Town prepared Brookline Open Space Plan 2005 and the Brookline Comprehensive Plan 2005-2015, which established strategies to protect and preserve the natural resource values cited above; and

Whereas, conservation restrictions pursuant to Massachusetts General Laws, Chapter 184, sections 31-33 are an important and appropriate means to preserve and protect Brookline’s natural resource values and further the goals of the Brookline Open Space Plan and the Brookline Comprehensive Plan; and

Whereas, in order to best protect these natural resource values, the Town’s strong preference is for conservation restrictions to exist in perpetuity; and

Whereas, the Board of Selectmen and the Conservation Commission must determine the extent to which a conservation restriction on a particular property is in the public interest;

NOW THEREFORE, the Board of Selectmen declares it to be a policy of the Town of Brookline that it shall accept and approve conservation restrictions that provide significant public benefits; that conservation restrictions may be held by qualified conservation organizations within the meaning of Section 170 of the Internal Revenue Code or by the Town of Brookline or state or federal agencies; that conservation restrictions held by the Town shall be controlled and enforced by the Conservation Commission; and that approval of the conservation restrictions by the Board of Selectmen as required by Massachusetts General Laws, c. 184, sections 31-33 shall be conclusive confirmation that the same yield significant public benefits of the type cited herein.

1. CRITERIA FOR ACCEPTANCE

In determining whether a conservation restriction is “in the public interest,”2 the Conservation Commission and the Board of Selectmen will consider several factors. These factors may also be considered by the Board of Assessors in determining the value of the land subject to the Conservation Restriction. Typically, no single factor will be determinative, and a balancing of factors, based upon the unique features of the property will be necessary.

2 See G.L. c. 184, § 32, para. 5. In Board of Selectmen October 7, 2008 Page 16 of 30 a. Does the Restriction protect native plant and wildlife habitat? i. What native species are present on the property? ii. Will the property be undisturbed or minimally managed for conservation purposes? b. Does the Restriction protect water bodies or wetland resource areas? c. Does the Restriction protect water quality or contribute to stormwater control? d. Does the Restriction ensure that the land will remain in farming, forestry, or recreational use? e. Does the Restriction preserve a scenic or historic view? f. Does the Restriction protect significant trees? g. Does the Restriction permit public access and under what conditions? h. Does the Restriction protect property adjacent to land which is under conservation restriction or is otherwise protected or preserved? i. Does the Restriction address the goals of the Brookline Open Space Plan and the Brookline Comprehensive Plan? j. Is the property to be restricted sufficiently large to provide significant resource value protection and/or significant public benefit?

2. REASSESSMENT FORMULA

It is generally understood that the Assessor’s policies will be applied to properties encumbered by approved and recorded Conservation Restrictions in the following manner:

First, the current fair market value of the parcel will be determined as if the parcel were not encumbered by or subject to the Conservation Restriction.

Second, generally, such unencumbered fair market value will be adjusted according to the following criteria:

Open to the Public

In general, the assessed value of a parcel encumbered by a Conservation Restriction in perpetuity, which permits public access, will be 5% of the parcel's unencumbered fair market value. For restrictions granted for a term of years, a case-by-case review will be conducted.

Closed to the Public

In Board of Selectmen October 7, 2008 Page 17 of 30 SANCTUARY STUDY COMMITTEE cont’d

In general, the assessed value of a parcel encumbered by a Conservation Restriction in perpetuity, which does not permit public access to the property, will be 25% of the parcel's unencumbered fair market value.

Notwithstanding the foregoing, the terms of each Conservation Restriction will be reviewed by the Board of Assessors on a case by case basis, and a parcel's assessed value may be reduced by less than the forgoing baseline reductions (i.e., 75% and 95%) because of individual factors, such as specific uses or activities reserved for the parcel by the landowner in the Conservation Restriction, limitations or restrictions on public access, or because the parcel is not suitable for development either under the Zoning Bylaw or for other reasons.

For parcels on which structures or other improvements are located, if the Conservation Restriction covers the entire parcel, the structure(s) and the area satisfying the minimum lot requirement under the Zoning Bylaw will be assessed and taxed at the unencumbered fair market value (i.e. there will be no reduction in assessments or taxes for the structure(s) or other improvements or the minimum lot area). The excess land may receive the benefit of the 75% or 95% reduction.

Any land already subject to statutory agricultural or recreational abatements cannot be considered simultaneously eligible for a Conservation Restriction property tax reduction. Landowners with these other abatements, however, may elect to replace their temporary reduction status with a permanent Conservation Restriction.

To receive tax benefits, the landowner must record the Conservation Restriction by January 1st preceding the beginning of the fiscal year (e.g. restrictions recorded before January 1st, 2009 will receive tax benefits beginning in fiscal year 2010). It is not necessary for the landowner to apply for a reduction yearly.

3. RELEASE OF CONSERVATION RESTRICTIONS

In order for the community to make proper and accurate land use decisions for the future, it must be able to ensure that protected open space remains protected. For that reason, Conservation Restrictions are intended to be in effect in perpetuity. Only in cases of demonstrated extreme hardship or public necessity, and after a public hearing and public notice, will the Town consider releasing any restriction. In most cases, the following will be required: • a majority vote of the Conservation Commission • a majority vote of the Board of Selectmen • a two-thirds majority vote of Town Meeting • approval by the Massachusetts Secretary of Energy and Environmental Affairs, and In Board of Selectmen October 7, 2008 Page 18 of 30 • a two-thirds majority vote of the Massachusetts General Court and signature by the Governor

A conservation restriction represents a real property right. In order to release this right the Town will require compensation. Such compensation may be financial. It may also include protection of other land in Town with equal or greater natural resource values. Chief Assessor Gary McCabe added that he likes the standards at a local level without going to the State for authority, and that it is subject to public review.

The Board did not vote on the Conservation Restrictions.

APWA PUBLIC WORKS PROJECT OF THE YEAR

Public Works Commissioner A. Thomas DeMaio appeared to report on the Landfill Closure/Skyline Park project’s receipt of an award from the American Public Works Association.

The American Public Works Association (APWA) annually recognizes extraordinary public works projects based upon excellence in management, coordination, collaboration and execution. The APWA evaluates projects throughout the nation in one of five categories including Disaster/Emergency Repair, Environment, Historical Preservation, Structures and Transportation. The Town of Brookline Landfill Closure and Park Development Project was awarded the 2008 Public Works Project of the Year in the Environment category for projects between $10 Million and $100 Million.

Commissioner DeMaio added that he is very proud of the success of this project. The Landfill Project is an excellent example to Municipalities throughout the United States that are required to meet regulatory requirements to cap inactive landfills while maintaining and developing active recreational facilities. Mr. DeMaio acknowledged his staff and the community involved in this most successful project.

The Board congratulated Commissioner DeMaio, his staff, and everyone involved for working together on this project that resulted in a beautiful park and soccer field. The Board added that this was a difficult project and a long process, and the DPW worked diligently with the neighborhood and other community groups to achieve the impressive outcome. Town Administrator Richard Kelliher added that Mr. DeMaio acknowledged everyone but himself, and took a moment to thank him for his leadership and hard work on the project.

WARRANT ARTICLES

Review of the following Warrant Articles for the November 18, Fall Town Meeting: In Board of Selectmen October 7, 2008 Page 19 of 30 WARRANT ARTICLES cont’d

Article No. Title

2. Collective Bargaining

Director of Human Resources Sandra DeBow stated that the Brookline Police Union, Local 1959 ratified the Memorandum of Agreement between the Town and the Police Union.

On motion, it was unanimously,

VOTED: 4-0 Favorable Action on Article 2.

Article No. Title

11. Bicycle Registration (Seymour Ziskend)

Petitioner Seymour Ziskend was not available. The explanation of the Article states: What has prompted the reinstatement of bicycle registration is that bicycles traveling on the streets of Brookline are on the increase. Now is the time to have mandatory registration of bicycles. This would be for the protection of bicycle owners as a result of theft of any other occurrences that may take place.

Deputy Town Administrator Sean Cronin stated that this is the same Article as last year, asking for mandatory bicycle registration.

Superintendent Robert Mello stated that the Police now have a voluntary program for those residents who wish to register their bicycles. Having this program mandatory would be impossible to enforce for many reasons. He noted that the Police have no right to stop a bicyclist unless it is for a traffic violation. It would be difficult to know who is a town resident of not, and the process would be time consuming. Superintendent Mello added that the Police Department is against making bicycle registration mandatory.

Chapel Street resident Tom Vitolo added that he has personally registered his bicycle and encourages residents to do the same. In the event that his bike is stolen and found, it could be traced back to him.

On motion, it was unanimously,

In Board of Selectmen October 7, 2008 Page 20 of 30 WARRANT ARTICLES cont’d

VOTED: 4-0 No Action on Article 11.

Article No. Title

20. Trench Safety (DPW)

Associate Town Counsel John Buchheit outlined the Article:

On November 2, 2007, the Massachusetts Department of Public Safety and the Massachusetts Division of Occupational Safety promulgated regulations in accordance with G.L. c.82A. These regulations are codified at 520 CMR 14.00 and pertain to trench excavation and safety. The law requires that cities and towns, by January 1, 2009, begin requiring permits for all trench excavation on public and private property and to enforce the new public safety requirements related thereto. The law further requires that cities and towns designate one board or officer as the local permitting authority responsible for issuing trench permits, collecting permit fees, and enforcement.

The Town, through its Department of Public Works, currently administers a street opening permit program that requires anyone excavating in a public way to obtain a permit. The new law adds new requirements to the current program and extends the program to trench work on private property. Because the majority of trench excavation will continue to be utility-related and occur in public ways, and because the regulated community is accustomed to the established permitting process, the Department of Public Works is best suited to be the designated permitting authority. In cases where trench excavation will occur solely on private property, the Building Department will assist the Department of Public Works by communicating to building permit applicants the need for a trench permit and by insuring a permit is obtained and its requirements followed.

Director of Engineering Peter Ditto added that the biggest difference is that now this will require private residents to acquire a permit from the DPW for trench work. He feels that this would apply to a minimum amount of applicants based on the criteria.

Regina Frawley TMM#16 asked why it is mandatory to issue the permits, and what the cost would be to the homeowner.

Mr. Bucchiet replied that it will be mandatory by the Massachusetts Department of Public Safety. The appointment of the permitting authority is a recommendation to appoint the DPW Commissioner. Mr. Ditto added that the cost will be determined once there is a better idea of the enforcement level. In Board of Selectmen October 7, 2008 Page 21 of 30

There was no vote on Article 20.

Article No. Title

19. Heath Street Widening (DPW)

As part of the Department of Public Works review and approval of the site plan for the project known as Hammond Woods, also known as Chestnut Hill Place located at 629 Hammond Street it was recommended that a portion of Heath Street be widened to facilitate safe access to the site.

Director of Engineering Peter Ditto stated the DPW endorses this proposal. The widening will allow for more on street parking as well as improved public safety access.

Chairman Daly noted that there is pending home rule legislation on the closing off of Heath Street. Would this Article be inconsistent with this? Mr. Ditto replied that this is independent of that. This section of Heath Street is a one-way, and not the section that is proposed to be closed off. He added there would be no cost to the Town to widen this property.

There was no vote on Article 19.

Article No. Title

25. Fire Chief Appointment (Fred Lebow)

Petitioner Fred Lebow reviewed his Article explanation:

The effect of this warrant article, if adopted, would lift the restriction on candidates for the position of Fire Chief currently limited to the incumbent Deputies and Captains of the Brookline Fire Department. The Town always looks to Town employees as their first choice. However, the Town should have the same flexibility as they have in choosing every other department head including the Police Chief. This flexibility would allow the Town to extend the search to those with diverse backgrounds and experiences. Town Meeting passed this very same article in May of 2003, but it was turned down by the state legislature. There is only a limited of number of applicants in the Fire Department that the Town can pick from based on the fact that the appointed Fire Chief must have held the permanent position of Captain or higher in the Brookline Fire Department and that the term of the appointment shall be one year according to Section 5 of Chapter 534 of the Acts of 1973. Many other municipal Fire Departments have no such restriction. In Board of Selectmen October 7, 2008 Page 22 of 30

Chief Skerry stated that there are currently 15 Fire Department employees that are eligible and qualified for the position of Chief. Through the years candidates have been able to rise through the ranks successfully.

Janice Kahn Advisory Committee member stated that the full Advisory Committee has not made a recommendation on this Article yet. She added that the sub-committee understood and was sympathetic to the concerns of the fire department. They come up through the ranks and know the Town very well. However, the sub-committee finds it a reasonable approach to seek a more diverse applicant pool. One concern is if no one comes forward to apply for the Chief position, there is no structure in place for this. The last time the position became available only four candidates applied.

Selectman Allen stated that he does not support this Article. He feels there is a high quality of young recruits right now, and the incentive is very appealing. There is a lot of ambition and knowledge in the Department. He feels it has worked out well so far by promoting within.

Selectman Benka asked what process other communities use in appointing a Fire Chief. Chief Skerry replied that he knows of one community that went outside, but he is not certain how many communities mandate in-house Chief appointments.

There was no vote on Article 25.

Article No. Title

26. Resolution for Tsuruga, Japan (Scott Gladstone)

Richard Gray and Scott Gladstone of Temple Emeth outlined the following Article explanation:

When history brings an awareness of a righteous person into our midst, it is behest upon us to bring it to the attention of our community in the most effective ways.

In 1941, Chiune Sugihara, a mid level diplomat of Japan found himself in Lithuania where many Jews were arriving with hopes of escaping slaughter at the hands of the Nazi’s. Consul Sugihara, ignoring the reticence of his superiors, provided over 2000 visas to Jewish families to go to Japan as a path to survival.

A steppingstone on the path to freedom was the entry point to Japan, the City of Tsuruga. The leaders of this City are proud of their role in saving the Jews from Lithuania.

In Board of Selectmen October 7, 2008 Page 23 of 30 The leaders of Tsuruga have recognized an association with the Town of Brookline through the initiatives of Sugihara survivor Samuil Manski, who has promoted the appreciation and remembering of the righteous person, Chiune Sugihara, through the creation of a stone of remembrance at Temple Emeth, through activities with the local Japanese community and families of visiting Japanese scholars at Temple Emeth in South Brookline, and most recently through new programming at the Lawrence School.

Last school year, the Brookline public schools program was sanctioned by the School Committee and Superintendent of Schools Dr. Lupini. Social studies teacher Jonathan Greiner of the Lawrence school worked with a mini curriculum designed at Temple Emeth, which he incorporated into the Facing History and Ourselves curriculum. The process included three classes; the study of the deeds of Sugihara, viewing the WGBH video, “Sugihara - Conspiracy of Kindness” and a compelling personal testimonial by survivor Samuil Manski. The presence of representatives from both the Israeli and Japanese Consulates in the classroom exemplified for the students inter-cultural dialogue on a diplomatic level, which enhanced the message of acceptance given in the deeply moving narrative of “Saba Sam.” The relationship with the Brookline schools was also initiated with the enthusiastic support of Akiko Kawai, Coordinator of the Brookline schools English Language Learning program that supports a large population of Japanese speaking families. Possibilities are being explored to continue this program and, perhaps, to expand it to other Brookline public schools.

Through this resolution, the Town of Brookline will welcome and celebrate the visit of the Mayor of Tsuruga to Brookline as he visits Samuil Manski at Temple Emeth in South Brookline to strengthen the connection between the City of Tsuruga, the legacy of Consul Sugihara, and the people of Brookline.

Petitioner Scott Gladstone added that he would like to see this connection preserved and continued.

Director of Human Relations Steve Bressler expressed support for this Article. This one person made a difference and saved thousands of lives.

Janice Kahn, Craftsland Road commented that she has a close friend whose family was helped by Mr. Sugihara, she supports this Article.

On motion, it was unanimously,

VOTED: 4-0 Favorable Action on Article 26.

Resolution to appreciate the role of the City of Tsuruga, Japan in the saving of over 2000 Jewish families rescued by Chiune Sugihara in 1941

In Board of Selectmen October 7, 2008 Page 24 of 30 WHEREAS, the leadership of the city of Tsuruga Japan supported the entry into Japan of over 2000 Jewish families (over 6000 Jews) with visas issued by Consul Chiune Sugihara in the spring and summer of 1941 in Lithuania.

WHEREAS, the current leadership of the City of Tsuruga, Japan continue to embrace this life-saving legacy of Consul Sugihara by reaching out to Consul Sugihara survivor Samuil Manski, a member of Temple Emeth of South Brookline.

WHEREAS, Consul Sugihara and the people of Tsuruga, Japan, epitomize the teachings of the Talmudic sages that if you save one life it is as if you have saved the world.

WHEREAS, the Jewish and Japanese communities of the Town of Brookline for the past decade have hosted celebrations of the heroism and righteousness of Consul Chiune Sugihara initiated by Samuil Manski through the good offices of Temple Emeth of South Brookline.

WHEREAS the Sugihara Commemoration Committee at Temple Emeth has created programming at Brookline Schools in conjunction with school staff and Facing History and Ourselves that teaches the ethics of Chiune Sugihara to a broad swath of students including those of Japanese descent in our community.

WHEREAS a monument celebrating the heroism of Chiune Sugihara located at Temple Emeth in South Brookline is recognized worldwide and has been visited by descendents of Chiune Sugihara.

NOW, THEREFORE, BE IT RESOLVED THAT Town Meeting recognizes the city of Tsuruga, Japan as a City of New Beginnings and requests that the Selectmen welcome officials of the city of Tsuruga to the Town of Brookline in the Fall of 2008 and declare a day of memorial to Chiune Sugihara.

Article No. Title

27. Resolution on Sidewalk Snow (Joshua Safer)

Petitioner Joshua Safer stated that this Article arises from conversations last year on Town snow removal. He added that it has become a problem that sidewalks have not been cleared. He feels that there are multiple small achievable steps that the Town could take to enforce sidewalk snow clearing. He hopes that the DPW will be given more resources and some enforcement implemented to help come up with a solution.

In Board of Selectmen October 7, 2008 Page 25 of 30 Commission DeMaio added that the DPW would appreciate any help they could get with keeping sidewalk snow cleared. He added that they are looking at suggestions and opportunities that may help with the sidewalk clearing.

There was no vote on Article 27.

BOARDS AND COMMISSIONS

The following candidates for appointment/reappointment to Boards and Commissions will appear for interview:

Advisory Council on Public Health John E. Mignano, MD

John E. Mignano, MD – is the Clinical Director, Department of Radiation Oncology at Tufts Medical Center. Dr. Mignano’s background includes environmental medicine and radiological disaster preparedness.

Arts Commission Libby Smith

Libby Smith – is employed at ING, as Vice President, Quality Director, Master Black Belt, Six Sigma Office. She develops new projects annually in alignment with corporate business plan and financial goals. Ms. Smith holds a degree in Fine Arts.

Park and Recreation Joseph Figler

Joseph Figler – is a Senior Associate, Global Services Project Management Organization at state Street Corp. He is also the head men’s lacrosse coach at Framingham State College. Mr. Figler is interested in preserving the playing fields in Brookline.

Transportation Board Andrew Fischer Brian Kane Joshua Safer

Andrew Fischer –is an attorney and has worked many years with transportation planners on a variety of projects, most recently with the City of Boston. He is interested in addressing taxi medallions, public transportation, and traffic management. In Board of Selectmen October 7, 2008 Page 26 of 30

Brian Kane- is a budget and policy analyst for the MBTA Advisory Board, where he analyzes and makes recommendations on the annual budget, and works on policies and procedures. He holds a Masters Degree in Public Administration with a focus on transportation planning and urban regional policy.

Joshua Safer- is a Town Meeting Member #16 and Associate Professor of Medicine and Molecular Medicine at Boston University School of Medicine. He has served on many Town committees regarding traffic issues. Mr. Safer is an avid runner and bicyclist and is interested in proving bicycle traffic.

HOUSING ADVISORY BOARD

The Board considered the question of making appointments to the Housing Advisory Board.

On motion, it was unanimously,

VOTED: To appoint Rufus Phillips to the Housing Advisory Board for a term ending August 31, 2011 or until a successor can be appointed.

CLIMATE ACTION COMMITTEE

The Board considered the question of making appointments to the Climate Action Committee.

On motion, it was,

VOTED: To appoint Carey Bergeron to the Climate Action Committee. VOTED: To appoint Jon Cody Haines to the Climate Action Committee. VOTED: To appoint Jim Solomon to the Climate Action Committee.

VOTED: To appoint the following as designees to the Climate Action Committee:

Jesse Mermell-Selectmen Don weitzman -Advisory Committee Rebecca Stone - School Committee Ron Schulack -Transportation Board Werner Lohe - Conservation Commission Mark Zarrillo - Planning Board Mike Shepard - Building Commission Milly Krakow - Advisory Council on Public Health In Board of Selectmen October 7, 2008 Page 27 of 30 David Lowe - Climate Change Action Brookline Linda Pehlke - Brookline Neighborhood Alliance Mary Dewart -Greenspace Carol Sandel - Chamber of Commerce

GROUP INSURANCE COMMISSION

Town Administrator Richard Kelliher and Human Resources Director Sandra DeBow appeared to report on the results of the recent group health RFP including the Group Insurance Commission.

Town Administrator Richard J. Kelliher reviewed his memo:

Earlier this year the Town and Public Employee Committee (PEC) began to explore long-term group health options through the coalition bargaining process. We collaborated on the selection of an advisor to assist with this effort – Longfellow Benefits. The Town and the PEC agreed to have Longfellow issue an RFP across the spectrum of group health providers available to the Town – from the insurance companies to the large purchasing groups, including the GIC.

The RFP was issued in June with responses received in August. Together, Town staff and the PEC reviewed the proposals and conducted extensive interviews with five respondents between August 26th and September 9th. Attached are summary materials prepared by Longfellow Benefits for the proposals. The estimated rate changes for actives on July 1, 2009 over the existing rates for the current 2009 plan year are:

% Rate Change Actives Premium Change Actives (75%/25%)

Tufts +11.36% $2,741,405 BCBS + 6.50% $1,568,149 HPHC + 4.00% $ 965,015 WSHG + 2.45% $ 589,997 GIC -10.70% - $2,582,569

When you examine the attached spreadsheets you will see that the GIC savings, as compared to the projected BCBS figures, are even greater than estimated by the Override Study Committee – potentially $4 million with about $3 million accruing to the town and $ 1 million to the employees. The last sheet “GIC Cost Summary – Actives/Pre 65” illustrates that the projected $ 1million in reduced employee withholdings could fully offset increased out-of-pocket costs resulting from a switch to GIC for our employees as a group.

From the Town’s perspective the GIC is clearly the preferred option. Not only are the first year’s savings considerable, but the GIC offers a wide range of plans, far In Board of Selectmen October 7, 2008 Page 28 of 30 beyond what the Town currently has available for its employees. A great deal of the uncertainty for both town finances and family budgets can be lessened by the demonstrated stability of GIC pricing of single digit increases on average over the last five years. While we are acutely aware that the GIC plan design involves more co-pay obligations than currently required, the employees’ share of the projected premium savings will most likely offset total employee costs in this regard. (It is estimated that the first year reduction in withholdings for our current employees on Blue Choice who choose the GIC Harvard PPO option could be about $1,400) Long term savings of this magnitude would also have a significantly favorable effect on the Town’s unfunded retiree group health obligations.

However, there is the statutory deadline of October 1ST for notifying the GIC of an agreement to join effective July 1st of the next plan year. On September 11th, with Board authorization, we submitted a proposal to the Public Employee Committee to join the GIC. The PEC did not accept the Town’s proposal.

Throughout the state it appears that once again this year very few localities are joining the GIC. After two annual notification cycles only three cities, seven towns, and five regional school districts and few other entities have joined. I anticipate that this could bring into question whether the expectations of the Municipal Partnership Act adopted last year are being met to any appreciable degree.

Across the full range of proposals received by the Town several noteworthy factors have emerged:

• BCBS is proposing its first single digit rate increase in years • HPHC and West Suburban Health Group provided numbers even more competitive than BCBS • The savings from GIC surpass even the favorable single digit increases of the others. • The Massachusetts Interlocal Insurance Association (MIIA) declined to submit a proposal • Retiree rates are also expected to increase less than 10%.

From the above it appears that the presence of the GIC in the municipal market is putting downward pressure on costs for local government. While this is encouraging for the near term no one involved in our extensive RFP process has expressed the opinion that this is a long term trend. It appears that only the GIC or an equivalent alternative can begin to meet the financial sustainability objections laid out by the Override Study Committee.

Chairman Daly thanked Mr. Kelliher for the update and for continuing this discussion.

In Board of Selectmen October 7, 2008 Page 29 of 30 WARRANT ARTICLES

Article No. Title

3. FY09 Budget Amendments (Selectmen)

Town Administer Richard J. Kelliher updated the Board on recent upheavals at the State level concerning budget. As of now local receipts are relatively stable, and the Town will not be looking for credit until the spring. He expressed concern about a reduction in local aid from the State which would have an impact on the Town. He will be looking forward to October 15th when the Secretary of Administration and Finance makes her report. It will contain recommendations as to whether FY09 state revenue estimates should be reduced to reflect year to date experience.

Mr. Kelliher added that he is considering a hiring freeze. He is not making a recommendation at this time, but may consider it earlier than past practice. He did add that the Town has taken some successful steps in overall cost reduction.

Deputy Town Administrator Sean Cronin reviewed the budget amendments.

Article 3 of the Warrant for the 2008 Fall Town Meeting proposes amendments to the FY09 budget. The article is required to address four issues:

1. Additional Net State Aid the Town received as part of the final state budget; The final state budget approved by the Legislature included $3,838.00 more in Net Local Aid than was included in the budget approved by Town Meeting. Of that amount, $4,540.00 is “Offset Aid”, meaning that there is $702.00 less available for appropriation.

2. Projected surplus from the Group Health budget There has been a decrease in the growth of enrollment in the health insurance program, there is a surplus projected for FY09. There were 76 fewer enrollees into the program than budgeted. He is requesting that the Town’s portion of the savings be allocated to an energy reserve account.

3. Fund a projected energy shortfall As a result of the poor energy market when the town went out to bid for heating oil and vehicles fuels, a deficit of $222k is estimated for FY09. A significant initiative of the Town resulted in the Schools being spared from a major shortfall in their heating oil account.

In Board of Selectmen October 7, 2008 Page 30 of 30

4. Appropriate funds for the Runkle School renovation / addition project The Town’s CIP has included the Runkle School renovation/addition project for a number of years. It is fortunate that this project is one of the few on the Massachusetts School Building Authority’s (MSBA) “Targeted Feasibility Study” list. Mr. Cronin went over the MSBA’s new process and timelines which is different than past practice for funding on school projects. It is difficult to project what the actual cost of the project would be. He is working with the Authority on it.

Selectman Benka took a minute to update the board on the recent Global Warming Café meeting at the Library he attended. It was an informative session on global warming, utilities, low carbon diet, and various environmental issues. He is happy to see the community working together to move this process forward.

There being no further business the Chair adjourned the meeting at 9:20 p.m.

ATTEST

IN BOARD OF SELECTMEN

October 14, 2008

Present: Chairman Nancy Daly, Selectmen Robert Allen, Betsy DeWitt, Jesse Mermell, and Richard Benka.

In Board of Selectmen October 14, 2008 Page 2 of 15 ECONOMIC DEVELOPMENT OFFICER

The Board considered the question of appointing Kara Brewton as the Economic Development Director effective November 10, 2008.

Director of Planning and Community Development Jeff Levine stated that after a long search for the candidate for this position, the search committee is pleased to recommend Kara Brewton as the Economic Development Director. Ms. Brewton holds a Master’s Degree in Urban Planning and a Bachelor of Civil Engineering. She has worked as a Project Manager for a Real Estate Development and Construction Company working on some redevelopment projects. Ms. Brewton also has experience in feasibility reports, grading site plans; wetlands, stormwater design, and local, state, and federal permitting.

Economic Development Advisory Board (EDAB) members Robert Sperber, and Paul Saner spoke in support of recommending Ms. Brewton for this appointment. They spoke of the importance of this position and its role in incorporating commercial development that will bring in much needed tax revenue to help maintain services to the community.

Selectman Benka added that this is a difficult economic time for municipalities facing pension obligations, budget deficits, and overrides. At a time when the community is looking at reducing non-essential services to relieve cost, this position is important in that it is intended to help generate revenue by developing new economic growth, while addressing frictions between developers and neighborhoods. Selectman Benka added that the position will be evaluated in the future fiscal years based on the success of the efforts.

The Board agreed that this position is important especially in hard economic times to seek out opportunities that may be missed to generate much needed revenue. The Board thanked Paul Saner for expanding his role on EDAB while this position was vacant.

Ms. Brewton thanked the Board and stated that she looks forward to this challenging position, and spoke briefly on her qualifications.

On motion, it was unanimously,

VOTED: To appoint Kara Brewton as the Economic Development Director effective November 10, 2008

Selectman Allen left the meeting at 7:30 p.m.

In Board of Selectmen October 14, 2008 Page 3 of 15 PUBLIC COMMENT

Susan Allen from precinct 13 spoke on the employee retirement funds and how the funds should be diversified by investing in gold and silver. She will be advocating at the State level to allow municipalities to invest in such commodities.

DEED TRANSFER

The Board considered the question of executing a deed transferring a parcel of land at Kerrigan Place to 111 Boylston Street LLC (c/o Leggatt McCall Properties) as authorized by Town Meeting with an affidavit of title.

Town Counsel Jennifer Dopazo stated that this has been a long process. In 2007 Town Meeting authorized the transfer of this small parcel at Kerrigan Place. The parcel is part of the overall development of 111 Boylston Street which was the former Red Cab site. The Zoning Board of Appeals granted the Developer’s request for special permits to proceed with the project. The residents abutting the parcel have appealed the judgment. The developer is going forward at their “own risk” while the appeal is pending. Since the appeal is pending, Town Counsel requested that the deed be held in escrow.

Chairman Daly asked what would happen if those that filed suit were successful. Ms. Dopazo replied that the developer would potentially have to tear down the building. However, there are alternatives that could be remanded if that is what the land court decides. She feels that the Zoning Board’s position will be upheld. Selectman DeWitt added that the Zoning Board has a good track record. Ms. Dopazo replied yes, they do, and given all the facts, she is confident that the decision would not be overturned.

Selectman Benka questioned Town Counsel with respect to a section in the Escrow Agreement at the bottom of page 2 pertaining to dismissal of the Zoning Board's decision or judgment in the developer's favor. He questioned why appeals from any judgment were not included within the section triggering transfer of the deed.

Town Counsel looked at the section and the language in question and noted that the words "any judgment" is intended to include all appeals.

On motion, it was unanimously,

VOTED: To execute a deed transferring a parcel of town-owned land at Kerrigan Place as authorized by a vote at the November 2007 Special Town Meeting and to authorize the Town Administrator to execute the Affidavit, Purchase and Sale Agreement and Escrow Agreement related to the transfer of the land.

In Board of Selectmen October 14, 2008 Page 4 of 15 CONTRACT

The Board considered the question of approving and executing a resolution in connection with Contract P-09-08 “Lease of DPW Dump Truck & Sweeper” for three years, with SunTrust Leasing Corp. in the amount of $288,158.19. First year of Lease to be funded as follows:

42004220 5A0018 $60,000.00 42004320 5A0018 $37,191.46

Chief Procurement Officer Dave Geanakakis stated that this is the first year of a three year lease/purchase for a 44,000 GVW Dump Truck with Snow Plow and a Street Sweeper. The total cost over three years is $291,574.38.

On motion, it was unanimously,

VOTED: To approve and execute a resolution in connection with Contract P-09-08 “Lease of DPW Dump Truck & Sweeper” for three years, with SunTrust Leasing Corp. in the amount of $288,158.19. First year of Lease to be funded as follows:

42004220 5A0018 $60,000.00 42004320 5A0018 $37,191.46

APPROPRIATION TRANSFER

The Board considered the question of approving the following appropriation transfer within the Building Department budget:

FROM: 25003430 521012 $520,000 School Bldg Heating Oil TO: 25003430 521011 $520,000 School Bldg Gas

FROM 25003430 521012 $176,000 School Bldg Heating Oil TO: 25003430 532030 $176,000 Supplies

FROM: 25003430 521012 $269,283 School Bldg Heating Oil TO: 25003430 522400 $269,283 Bldg Repair & Maintenance

In Board of Selectmen October 14, 2008 Page 5 of 15 APPROPRIATION TRANSFER cont’d

Director of Public Buildings Charlie Simmons stated that this transfer will be used to pay for the gas conversion at the Baker, Devotion and High School Buildings using Repair and Maintenance funds. He added that this conversion will pay for itself.

On motion, it was unanimously,

VOTED: To approve the following appropriation transfer within the Building Department budget:

FROM: 25003430 521012 $520,000 School Bldg Heating Oil TO: 25003430 521011 $520,000 School Bldg Gas

FROM 25003430 521012 $176,000 School Bldg Heating Oil TO: 25003430 532030 $176,000 Supplies

FROM: 25003430 521012 $269,283 School Bldg Heating Oil TO: 25003430 522400 $269,283 Bldg Repair & Maintenance

FIRE PERSONNEL

The Board considered the question of offering conditional employment to 10 firefighter candidates.

Chief Skerry stated that the Board has previously voted to fill the 10 vacancies in the Fire Department. He is requesting conditional employment to the following 10 firefighter candidates:

Peter Gately, Jermain Graham, Christopher Mitchell, James Ward, Thomas Joy, Frank Bowen, Nicholas Feener, Ryan Guilfoy, Marcus Paes, and Michael Riley.

On motion, it was unanimously,

VOTED: To offer conditional employment to the following 10 firefighter candidates: Peter Gately, Jermain Graham, Christopher Mitchell, James Ward, Thomas Joy, Frank Bowen, Nicholas Feener, Ryan Guilfoy, Marcus Paes, and Michael Riley. In Board of Selectmen October 14, 2008 Page 6 of 15 Selectman Benka left the meeting at 7:50

GRANT OF LOCATIONS

Public Hearing on the petition of NStar Electric for permission to construct, and a location for, such a line of conduits and manholes with the necessary cables therein under the following public ways:

Brookline Avenue – Southwesterly at Washington Street a distance of 286 feet – conduit at manhole 28358.

Washington Street – Northerly at Brookline Avenue a distance of 78 feet – conduit

Director of Engineering Peter Ditto stated that this work will be performed to provide electric service to 2 Brookline Place.

Selectman DeWitt expressed concern about the noise from the project.

Renee Clark representing NStar replied that the work will be done during daytime hours and the noise should be about the same as previous work performed by NStar. The work is expected to be completed within two weeks.

On motion, it was unanimously,

VOTED: To grant NStar Electric permission to construct, and a location for, such a line of conduits and manholes with the necessary cables therein under the following public ways:

Brookline Avenue – Southwesterly at Washington Street a distance of 286 feet – conduit at manhole 28358.

Washington Street – Northerly at Brookline Avenue a distance of 78 feet – conduit

GRANT OF LOCATIONS

Public Hearing on the petition of Verizon for permission to construct, and a location for, such a line of conduits and manholes with the necessary cables therein under the following public ways:

In Board of Selectmen October 14, 2008 Page 7 of 15 GRANT OF LOCATIONS cont’d

Druce Street – approximately 375 ft of conduit from the existing manhole at the intersection of Druce Street and Dean Road down Druce Street to a new manhole near 5 Druce Street.

Director of Engineering Peter Ditto stated that this is for a new service connection.

Selectman DeWitt inquired about fiber optic service in town. Gary Savignano from Verizon replied that FIOS is currently not available in Brookline.

On motion, it was unanimously,

VOTED: To grant Verizon permission to construct, and a location for, such a line of conduits and manholes with the necessary cables therein under the following public ways: Druce Street – approximately 375 ft of conduit from the existing manhole at the intersection of Druce Street and Dean Road down Druce Street to a new manhole near 5 Druce Street.

PROCLAMATION

The Board considered the question of adopting a Proclamation marking the 63rd Anniversary of the United Nations on October 24, 2008.

Chairman Daly stated that the Board adopts a Proclamation annually.

On motion, it was unanimously,

VOTED: To adopt the following Proclamation marking the 63rd Anniversary of the United Nations on October 24, 2008.

UNITED NATION RESOLUTION

Whereas, the United Nations was founded in 1945, and the anniversary of the day on which the UN Charter came into force is observed each year on October 24; and

Whereas, the central role of the United Nations is to promote peace and security, development and human rights around the world, and is vital now more than ever; and

Whereas, in September of 2000, 189 countries including the United Sates agreed on eight Millennium Development Goals to meet the needs of the worlds’ poorest; and In Board of Selectmen October 14, 2008 Page 8 of 15

Whereas, the seventh Millennium Development Goal seeks to integrate the principles of sustainable development into country policies and programs, and reverse the loss of environmental resources and biodiversity; and

Whereas, the Goal also seeks to reduce by half the proportion of people living without sustainable access to safe drinking water and basic sanitation, and achieve significant improvement in the lives of at least 100 million slum dwellers, by 2020; and

Whereas, the United Nations Association of the United States of America (UNA-USA), in cooperation with other organizations, has declared “Environmental Sustainability as an Essential Tool for Poverty Alleviation” as its theme for the 2008 United Nations Day commendations; and

Whereas, the Governor’s appointed Massachusetts UN Day Chair and local UNA-USA members and community leaders will organize events and activities to educate citizens about the continuing need for the unites Nations, and the importance of undertaking efforts on the local and international level to promote global cooperative initiatives toward a more healthy and sustainable world.

Be It Therefore Resolved that we, the Board of Selectmen of the Town of Brookline, Massachusetts in affirmation of our support of this valuable community service join the hundreds of Towns, Cities and States across the Nation in observing October 24, 2008 as UNITED NATIONS DAY in the Town of Brookline and encourages all residents to join us in recognizing this outstanding organization and its contribution in adding to the quality of life in our Town.

WARRANT ARTICLES

Review of the following Warrant Articles for the November 18, Fall Town Meeting:

Article No. Title

15. Zoning - Affordable Housing (HAB)

Director of Planning & Community Development Jeff Levine reviewed the Article:

This zoning amendment is being submitted by the Housing Advisory Board, with the support of the Department of Planning and Community Development and the Zoning By-Law Committee. Paragraph 6 allows that affordable units included in market-rate developments, subject to Section 4.08, differ from market rate units. However, subparagraph c provides minimum standards – in terms of square footage in accordance with the number of bedrooms in the unit -- should the affordable units proposed be smaller than the market rate units. Developers typically design to In Board of Selectmen October 14, 2008 Page 9 of 15 these minimums. Experience has indicated a difference in assumptions about how square footage is to be counted.

For purposes of establishing FAR, the Zoning By-law measures from exterior wall to exterior wall. The measurement goal, however, is different for public entities, which typically establish minimum standards for affordable rental and ownership units in order to assure quality of life. The square foot count typically applies to the amount of living space within the apartment, as was intended by 6.c.

Developers of condominiums, however, may count square footage otherwise. Because ownership interest in a condominium unit in a multifamily building is usually defined as extending beyond the wall surface of the unit to some point inside the perimeter wall itself (that is, between the unit and another unit, common area or exterior building wall), developers often count, as part of the unit square footage, areas within the walls themselves.

When a unit is designed to the smallest size permitted, and that size is a modest one, the difference in definition of square footage is not insubstantial. The above change clarifies that, for purposes of meeting the size standard for affordable units per Subsection 6.c., the square footage counted for affordable units is the space within the interior surfaces of the perimeter walls.

Selectman DeWitt stated that the Town adopts the guidelines recommended by HUD. She feels this would be a useful tool to determine the square footage.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 15.

Article No. Title

16. Zoning – Design Advisory Teams (Planning)

Director of Planning & Community Development Jeff Levine reviewed the Article:

This zoning amendment is being submitted by the Department of Planning and Community Development with the support of the Zoning By-Law Committee. The Planning Board is currently authorized to appoint a Design Advisory Team (DAT) for any development project undergoing design review under the Brookline Zoning Bylaw. Currently, the practice is to appoint a DAT for any Major Impact Project, defined as a project of a certain scale (16 units of housing or 25,000 sf. of commercial development) or a project “with the potential for substantial environmental impact on the community”. This proposed change in language would In Board of Selectmen October 14, 2008 Page 10 of 15 codify current practice of requiring the creation of a DAT for all Major Impact Projects. It would also keep the existing option open of creating a DAT for other projects undergoing design review.

Selectman DeWitt asked that where it states “ In the case of a Major Impact Project, or substantial modification to a Major Impact Project as determined by the Building Commissioner or Planning and Community Development Director, the Planning Board shall appoint a DAT,” where would this determination usually occur. Mr. Levine replied that 99.9% of the time, if it is a major impact project it is pretty clear that it is. It gets complicated if it is not a major impact project. The Planning Board shares discretion and uses it to provide DAT when deemed appropriate.

Selectman Mermell added that this has been common practice and this Article now clarifies it. She asked what would happen if the Building Commissioner and the Planning & Community Development Director disagreed on whether there be a DAT assigned. Mr. Levine replied as long as one of them requested it, it would be provided.

Chairman Daly held the vote because Selectman Allen has worked closely on this issue and wanted to give him the opportunity to review the language.

There was no vote on Article 16.

Article No. Title

22. Arts Center Lease (Sempert)

Chairman Daly stated that the Arts Center is in the process of launching a capital campaign. In order raise the funds, they are required to show that there is a long-term lease on the center. This Article was passed by Town Meeting last year, but did not make it through the State level in the appropriate time table, so it is being submitted again pending Town Meeting approval.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 22.

Article No. Title

23. Music School Lease (Fitzgibbons)

In Board of Selectmen October 14, 2008 Page 11 of 15 WARRANT ARTICLES cont’d

Janet Fitzgibbons of the Brookline Music School stated that the school would like to start planning for their future and the renewal of the lease would allow them the stability to do so.

This Article was passed at last years Town Meeting and the Article seeks legislation to grant a lease of Town owned buildings for more than 5 years. It did not make it through the legislature and is being submitted again pending Town Meeting approval.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 23.

Article No. Title

24. Valet Parking (Selectmen)

Transportation Administrator Todd Kirrane stated that this Article is the same language that was submitted at last year’s Town Meeting. It clarifies that the Transportation Board has the authority to regulate valet parking.

State Representative Mike Rush stated that he has been involved with this Article and supports it. He added that the bill was in the House, had support, and then lost its momentum due to other issues that took precedence. Representative Rush stated that there is still hope, and it would be in the Town’s best interest to move it forward.

Holly/Sheafe neighborhood representative Bernice Wilner thanked Chairman Daly for her support with this Article and expressed her interest to proceed again with the Home Rule Petition.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 24.

Article No. Title

28. Resolution on Invasive Plant Species (Wolff)

In Board of Selectmen October 14, 2008 Page 12 of 15 WARRANT ARTICLES cont’d

Petitioner Bruce Wolff reviewed his Article:

The purpose of this resolution is to advise all residents and employees of our Town that there exist harmful invasive species. Information about these species should be made available to the public and they should be encouraged to remove and properly dispose of these plants so that they do not spread to public land where removal is an additional burden to the Town budget. The majority of these species are on the Massachusetts Prohibited Plant List.

Mr. Wolff displayed pictures of common invasive species.

The Board expressed concern on which Department would take on the responsibility of maintaining and dispersing information on the species. Mr. Wolff replied that he would think it would come out of the Conservation Department.

Selectman DeWitt asked if he has had any conversation with the State Department of Agriculture. Mr. Wolff replied no. Ms. DeWitt added that there needs to be a qualified way to determine and identify invasive plants. Mr. Wolff replied that he could personally handle some of the cases.

There was no vote on Article 28.

WARRANT ARTICLES

Further review and vote on the following Warrant Articles for the November 18, Fall Town Meeting:

Article No. Title

7. Recycling Containers (Andrew Ghobrial)

Petitioner Andrew Ghobrial stated that he revised some language in his explanation. He recommended getting two locations serviced a year to reduce any fiscal burden on the Town, and help serve as a test to the success or failure of the whole program.

John Dempsey, of the Solid Waste Advisory Committee (SWAC) stated that he is not sure this should be a Warrant Article. He feels it is too expansive a program to introduce every year; and SWAC is continually looking at effective ways to increase and control recycling.

In Board of Selectmen October 14, 2008 Page 13 of 15 WARRANT ARTICLES cont’d

A discussion on Big Belly waste containers ensured.

Commissioner DeMaio stated that The Big Belly can hold 5-7 times the amount of waste than the conventional containers and need to be picked up fewer times. However, their cost is higher and there is difficulty servicing them in tight areas like parks where the trucks can not get to them. They would have to be hauled out manually. The DPW is looking at how to make this work.

Selectman Mermell asked Mr. Ghobrial that if the logistics would not work out as outlined in his Article, would he favor speaking with SWAC to come up with a more efficient plan. Mr. Ghobrial replied that his main goal is for the Town to provide adequate recycling containers in commercial areas, however that is done.

Selectman DeWitt made the motion to refer Article 7 to the Solid Waste Advisory Committee.

On motion, it was unanimously,

VOTED: 3-0 To refer Article 7 to the Solid Waste Advisory Committee.

Article No. Title

12. Green Cleaning Products (Tom Vitolo)

Petitioner Tom Vitolo stated that the Advisory Sub-Committee has recommended some changes on the language where it concerns human health. The concern was the potential liability to the Town on the health dangers of the cleaning products.

Chief Procurement Officer Dave Geanakakis stated that the primary users of cleaning products are the School Department. The School Department is 99% there in using only green products. The Building Department is getting to that point. As far as cost is concerned Mr. Geanakakis does not think there would be a significant cost increase to switch to all green cleaning products.

Selectman Benka had previously requested to hold this vote.

There was no vote on Article 12.

In Board of Selectmen October 14, 2008 Page 14 of 15 BOARD AND COMMISSION INTERVIEWS

The following candidates for appointment/reappointment to Boards and Commissions appeared for interview:

Transportation Board Thomas Vitolo

Thomas Vitolo – is a Ph.D candidate in Systems Engineering at Boston University. He holds a Master of Science in Financial and Industrial Mathematics, a B.S. in Applied Mathematics, Computer Science, and Economics. Mr. Vitolo is a Town Meeting Member and serves on the Bicycle Advisory Committee. He has attended most of the Transportation Board meetings because he is highly interested in Transportation issues and the mathematical flow of traffic.

WARRANT ARTICLES cont’d

Article No. Title

13. Zoning Map (William Powell)

Selectman Benka had previously requested to hold this vote.

The Petitioner William Powell decided to speak before the Board when Selectman Benka is present. There was no further discussion on Article 13.

There was no vote on Article 13.

Article No. Title

19. Heath Street Widening (DPW)

Director of Engineering Peter Ditto stated that Heath Street is one of the oldest streets in Town and therefore the lay out as one of the narrowest. The developer at 629 Hammond Street proposed to widen a section to include the sidewalk, which will spruce up the area and provide safer walking and more on- street parking spaces. There have been no residential objections to this.

In Board of Selectmen October 14, 2008 Page 15 of 15 WARRANT ARTICLES cont’d

Selectman Mermell asked if widening the street would encourage vehicles to pick up speed there. Mr. Ditto replied no, this is a one-way section where speed has not been a concern as it is on the other end of the street. He added that this will help widen the turn from Hammond onto Heath.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 19.

Article No. Title

20. Trench Safety (DPW)

Director of engineering Peter Ditto stated that this Article will designate the Commissioner of Public Works to authorize trench permits. The State now requires permits for trench excavation to include private property, and to designate one board or officer as the local permitting authority.

On motion, it was unanimously,

VOTED: 3-0 Favorable Action on Article 20.

There being no further business, the Chair adjourned the meeting at 9:20 p.m.

ATTEST

IN BOARD OF SELECTMEN

October 21, 2008

Present: Chairman Nancy Daly, Selectmen Robert Allen, Betsy DeWitt, Jesse Mermell, and Richard Benka.

The Minutes of October 7th and 14th were approved as amended.

In Board of Selectmen October 21, 2008 Page 2 of 31 EXECUTIVE SESSION

Upon motion duly made and seconded, it was moved that the Board of Selectmen go into EXECUTIVE SESSION.

The Chair then stated the reason(s) for the Executive Session: (SEE THE REASONS CHECKED)

(1) To discuss the reputation, character, physical condition or mental health rather than the professional competence of a particular individual1.

(2) To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual1.

(4) To discuss the deployment of security personnel or devices.

(5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

(7) To comply with the provisions of any general or special law or Federal grant-in-aid requirements.

In Board of Selectmen October 21, 2008 Page 3 of 31

The Board of Selectmen, during a properly constituted and noticed meeting:

VOTED: to go into Executive Session

Roll Call Vote: Voting in the Affirmative: 4 Selectmen Allen absent for roll call

Voting in the Negative: 0

The Board of Selectmen (WILL) RECONVENE in Open Meeting after the Executive Session.

In Board of Selectmen October 21, 2008 Page 4 of 31 PUBLIC COMMENT

Public Comment period for citizens who requested to speak to the Board regarding Town issues not on the Calendar.

There was no public comment.

Chairman Daly announced the passing of longtime Retirement Board member and retired Firefighter Joe Duffy. Mr. Duffy was the longest serving member of a Retirement Board in the Commonwealth and an advocate for employees and retirees.

Chairman Daly noted that the Board will be meeting on November 5th due to Election Day on November 4th.

CONTRACT

The Board considered the question of awarding Contract PW/09-15 “Cold Plan & Resurface Two Roadways” in the amount of $151,900.00 to D&R General Contracting of Stoneham. Said contract to be funded from the following accounts:

4998WS07 6H0026 $ 9,851.97 4998WS08 6H0026 $110,382.58 4998WS09 6H0026 $ 31,665.45

Director of Engineering Peter Ditto stated that this contract is for cold planning and resurfacing two roadways. Mr. Ditto is happy with the competitive price.

On motion, it was unanimously,

VOTED: To award Contract PW/09-15 “Cold Plan & Resurface Two Roadways” in the amount of $151,900.00 to D&R General Contracting of Stoneham. Said contract to be funded from the following accounts:

4998WS07 6H0026 $ 9,851.97 4998WS08 6H0026 $110,382.58 4998WS09 6H0026 $ 31,665.45

In Board of Selectmen October 21, 2008 Page 5 of 31 COMMITTEE OF 7

The Board considered the question of appointing and designating a Selectman to chair a Committee of 7 for the Designer Selection for the Feasibility Study of the Town Hall garage complex repairs.

Chairman Daly stated that there are leaking problems in the Town Hall parking garage that need to be addressed. Chairman Daly added that Selectman Benka has agreed to Chair the Committee.

On motion, it was unanimously,

VOTED: To appoint the following to the Committee of 7 for designer selection for feasibility study of the Town Hall garages complex repairs:

George Cole, Building Commission, George Cha Building Commission, David Pollak, Building Commission, Michael Shepard, Building Commissioner, Charlie Simmons, Building Department staff, and Ray Masak, Building Department staff. Selectman Benka to serve as Chair.

RESPONSE TO STATE BUDGET ACTIONS

Town Administrator Richard J. Kelliher appeared to outline response measures to State Budget Actions including the implementation of a Hiring Freeze

Mr. Kelliher stated that he is very thankful that the Governor and the legislature have not targeted local aid as a primary budget cut. He added that there could be further revisions of the revenue where local aid may be on the table. One way or another there is wide spread belief that there will be some cuts in local aid down the line. This being said, Mr. Kelliher reviewed his memo as follows:

In light of the Governor’s pronouncements this past Wednesday concerning State revenue losses and budget reductions, steps will need to be taken to gird the Town’s financial position against the increasingly likely prospect of reductions in Local Aid. To date, we deeply appreciate the State’s efforts to hold harmless cities and towns for the current fiscal year, even though some public safety and education programs have already been trimmed.

Various communications from State officials leave little room for doubt, however, that should the State’s revenue position deteriorate further, then the assurances about local aid would most definitely be revisited. Even if we are so fortunate as to avoid a mid-year local aid cut, then short of a miraculous economic turnaround cities and towns have to anticipate that there will be local aid cuts in FY10. Two examples of local aid vulnerability noted previously for the Board are In Board of Selectmen October 21, 2008 Page 6 of 31 insufficient Lottery proceeds to cover current FY09 distributions and scheduled FY10 growth in Chapter 70.

Therefore, three specific actions are proposed at this time:

• Suspension of proposed FY09 budget amendments

• Continuation of Coalition Bargaining for group health changes, including the GIC.

• Institution of a Hiring Freeze, effective immediately.

Budget Amendments

Two weeks ago we presented FY09 budget amendments to reallocate current year group health savings due to lower than projected enrollments as part of Article 3 for the upcoming Fall Special Town Meeting. We now recommend deferring those proposals. The savings would have been apportioned for School and Town budgets. We have discussed this change in direction with the School Administration which understands the revised approach. If local aid cuts occur this year, then these funds can be available as part of a response strategy.

Group Health Coalition Bargaining

The Governor has proposed that the deadline for municipalities to join the GIC be extended from October 1st to December 1st. While it is not known at this time whether this change will be approved by the Legislature, my recommendation is that the Town proceeds in its interactions with the PEC as if it were going to take effect. Specific elements of this approach have already been discussed in executive session with the Labor Advisory Committee. The Board will be advised in future executive sessions as to developments in this regard as they unfold.

Hiring Freeze

There is little choice but to recommend the adoption of a Hiring Freeze for Town Departments. As the most recent vacancy count indicates, this will have an impact across all operational areas –public safety, public works, human/cultural services, general administration. While this is the earliest that a Hiring Freeze has ever been proposed, this action even with out the threat of mid-year local aid cuts, would be proposed in the next several weeks anyway to prepare for the FY10 budget cycle. The specific guidelines for the Freeze will be patterned after previous programs:

• All town General Fund positions without prior hiring authorization from the Board are subject to the Freeze.

In Board of Selectmen October 21, 2008 Page 7 of 31 • Exceptions allowed only in cases of urgent need.

• Exceptions must be proposed in writing by the Town Administrator.

• Flexibility will be allowed for filling temporary part-time positions and positions supported through Enterprise Funds.

• An end-date will be established.

We anticipate evaluating other possible preparatory actions in the coming weeks such as a retirement incentive plan. Longer term, response strategies will be incorporated into the process for formulating the Annual Financial Plan for FY10 which encompasses not only the operating budget, but also the CIP and Enterprise Funds.

Obviously, the Town needs to ready itself for any possibility as this unprecedented financial crisis unfolds over the course of at least two fiscal years. As has been the case in the past we will continue to strive for approaches that might result in unexpected change, but avoid the outright elimination of essential services.

Selectman DeWitt stated that she attended the Selectmen’s Annual Conference over the weekend hosted by Congressman Barney Frank. Congressman Frank made the comment that he is long-term optimistic, but in short-term, there are difficulties ahead. This stemming from the recent financial upheaval. It may take months to hit the local level, but he feels it is inevitable. Selectman DeWitt supports the Town Administrator’s cautious approach as he just rolled out.

Selectman Mermell added that she is happy to hear that the Governor has proposed that the GIC deadline be extended. She asked if there was any indication on when a vote could be expected. Mr. Kelliher replied that there has been no word on that to date.

Selectman Benka stated that in light of the fact that last week 11 positions were approved for hire, there is a concern on the health care obligation to employees and retirees. In 2004 the fiscal policy review committee noted the liability for OPEB (other post employment benefits) was $94 million dollars in 1998. It increased to $118 million in 2001. It was then recommended to set aside funding which has now risen to $320 million of unfunded liability in 2008. If this continues to grow it will reach $50 million dollars a year. Post retirement benefits are a commitment made to employees, and the Town has not started to fund them again. To start funding now we would need to be putting aside an additional $50 million dollars per year. In our personal lives we would not be consuming and putting this burden onto our kids and grandkids, and we should not do this to the town. There needs to be significant cuts in our operations in the both the town and school side. Given this he explained his position on the hiring of the Economic Development Officer position. This is one job that is expected to pay for itself and also expected In Board of Selectmen October 21, 2008 Page 8 of 31 to bring in substantial additional revenue into the town. That is our expectation and the standards on which it will be judged going forward. On the Firefighter appointments, there are still vacancies in the Fire Department should these firefighters pass the training requirements. In addition there are about 15 or 16 Firefighters that are at retirement age. It is expected that they will be retiring in the near future. He added that they need to continue to look into the long-term at both the Town’s obligation and also into demographics of each appointment. He added that he did not look at those appointments lightly.

Chairman Daly added that the Town did fund the OPEB’s liability in recent years. It was also voted to segregate the OPEB monies from other town monies. This allows the town to recalculate the liability. She added that the Town will continue to fund this liability to the extent that they are able.

Selectman Allen stated that the last two or three hiring freezes happened in late winter, early spring, and this is early in the fiscal year. Department Heads were notified allowing them to speak on what that position means to the Town. He believes that the town employees need to be given a fighting chance to compete against private sector. We have always asked them to, and a lot of people feel the private sector is the way to go. Within the DPW, he feels that in the long term, in- house is the better way to go. Once you start selling off trucks and equipment, it is hard to get them back. Residents will start to see a decline in service, and there is always the concern if commercial services will provide better service to the town.

Chairman Daly added that given the hard times in the State, she is not in favor of hiring someone, and then having to lay them off shortly after. She feels that this is the time to be cautious.

Mr. Kelliher replied that in terms of the DPW most of the positions that have been vacant the longest are in the enterprise fund within the Water and Sewer Department and they could be filled in spite of the hiring freeze since they are paid out of the enterprise funds. It is not intended to hammer the departments, but as a reasonable precautionary step. He forecasted that come May there may be about 20-25 vacant positions across all Departments.

Selectman DeWitt asked about the State line item cuts. One of the biggest numbers is the SPED Circuit Breaker.

Mr. Kelliher replied that there could be some impact on METCO and SPED Circuit Breaker.

Selectman Mermell stated that she would much rather be cautious now. She inquired about the Runkle School project.

Deputy Town Administrator Sean Cronin replied that the MSBA (Massachusetts School Building Authority) has indicated that they have not been In Board of Selectmen October 21, 2008 Page 9 of 31

RESPONSE TO STATE BUDGET ACTIONS cont’d impacted as yet. One concern is that the interest rate may go up, which would effect future projects.

On motion, it was unanimously,

VOTED: The suspension of proposed FY09 budget amendments and continuation of Coalition Bargaining for group health changes, including the GIC.

On motion, it was,

VOTED: 4-1 to institute a Hiring Freeze, effective immediately. Selectman Allen voted against

CONSERVATION RESTRICTION POLICY

The Board considered the question of adopting a Conservation Restriction Policy.

Chairman Daly stated that this was discussed a couple of weeks ago. It is the policy that the Conservation Commission and the Sanctuary Study have been working on to provide guidelines for a comprehensive approach.

Conservation Administrator Tom Brady stated that these guidelines are to provide a starting point and moving forward. It will apply the same standards and procedures for each conservation restriction.

Selectman Benka pointed out that on page 2 where it addresses “open to the public”, the final sentence “For restrictions granted for a term of years, a case-by- case review will be conducted”. He noted that this is not applied in the “closed to the public” section. Mr. Brady replied that there was some discussion on this; it is an easy fix to clarify it.

On motion, it was unanimously,

VOTED: To adopt the following Conservation Restriction Policy as amended by Selectman Benka:

In Board of Selectmen October 21, 2008 Page 10 of 31 Whereas, the Town prepared Brookline Open Space Plan 2005 and the Brookline Comprehensive Plan 2005-2015, which established strategies to protect and preserve the natural resource values cited above; and

Whereas, in order to best protect these natural resource values, the Town’s strong preference is for conservation restrictions to exist in perpetuity; and

Whereas, the Board of Selectmen and the Conservation Commission must determine the extent to which a conservation restriction on a particular property is in the public interest;

1. CRITERIA FOR ACCEPTANCE

a. Does the Restriction protect native plant and wildlife habitat? i. What native species are present on the property? ii. Will the property be undisturbed or minimally managed for conservation purposes? b. Does the Restriction protect water bodies or wetland resource areas? c. Does the Restriction protect water quality or contribute to stormwater control? d. Does the Restriction ensure that the land will remain in farming, forestry, or recreational use? e. Does the Restriction preserve a scenic or historic view? f. Does the Restriction protect significant trees? g. Does the Restriction permit public access and under what conditions? h. Does the Restriction protect property adjacent to land which is under conservation restriction or is otherwise protected or preserved?

2 See G.L. c. 184, § 32, para. 5. In Board of Selectmen October 21, 2008 Page 11 of 31 i. Does the Restriction address the goals of the Brookline Open Space Plan and the Brookline Comprehensive Plan? j. Is the property to be restricted sufficiently large to provide significant resource value protection and/or significant public benefit?

2. REASSESSMENT FORMULA

It is generally understood that the Assessor’s policies will be applied to properties encumbered by approved and recorded Conservation Restrictions in the following manner:

First, the current fair market value of the parcel will be determined as if the parcel were not encumbered by or subject to the Conservation Restriction.

Second, generally, such unencumbered fair market value will be adjusted according to the following criteria:

Open to the Public

Closed to the Public

Any land already subject to statutory agricultural or recreational abatements cannot be considered simultaneously eligible for a Conservation Restriction property tax reduction. Landowners with In Board of Selectmen October 21, 2008 Page 12 of 31 these other abatements, however, may elect to replace their temporary reduction status with a permanent Conservation Restriction.

3. RELEASE OF CONSERVATION RESTRICTIONS

In order for the community to make proper and accurate land use decisions for the future, it must be able to ensure that protected open space remains protected. For that reason, Conservation Restrictions are intended to be in effect in perpetuity. Only in cases of demonstrated extreme hardship or public necessity, and after a public hearing and public notice, will the Town consider releasing any restriction. In most cases, the following will be required: • a majority vote of the Conservation Commission • a majority vote of the Board of Selectmen • a two-thirds majority vote of Town Meeting • approval by the Massachusetts Secretary of Energy and Environmental Affairs, and • a two-thirds majority vote of the Massachusetts General Court and signature by the Governor

WARRANT ARTICLES

Review of the following Warrant Articles for the November 18, Fall Town Meeting:

Article No. Title

17. Zoning – Off-Street Parking Regulations (Planning)

Director of Planning & Community Development Jeff Levine reviewed Article 17.

This zoning amendment is being submitted by the Department of Planning and Community Development with the support of the Zoning By-Law Committee. The Town’s Zoning Board of Appeals and Building Commissioner has always interpreted Section 6.02.b. to allow relief from up to six parking spaces for a commercial use in a business district. However, as worded the language in the Zoning Bylaw may appear to only allow such relief if the total parking

In Board of Selectmen October 21, 2008 Page 13 of 31 WARRANT ARTICLES cont’d

requirement for the use is six spaces or less. This change would clarify current practice with respect to this section by providing clarification.

Mr. Levine added that it is designed to clarify current practices by clarifying what and how the “six parking spaces” are to be interpreted. Both the Planning Board and the Zoning By-law Committee recommend favorable action on Article 17.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action on Article 17.

Article No. Title

18. Zoning – Design of Off-Street Parking (Planning)

Director of Planning & Community Development Jeff Levine reviewed Article 18.

This zoning amendment is being submitted by the Department of Planning and Community Development with the support of the Zoning By-Law Committee. In Spring, 2006, Town Meeting approved an amendment proposed by the Moderator’s Committee on Zoning for a new provision that prohibited “snout-nosed” buildings, where large garages and driveways would negatively impact the streetscape. In addition to setting a limit on the size of garages facing the street (no greater than 40%, or 24 feet, of the building’s facade, whichever is less), some exceptions for public safety and corner lots with multiple street frontages were allowed, as long as the Planning Board determined that no other safe design was feasible. In application, this regulation was found overly restrictive because no special permit was provided to allow for evaluation of an individual case and because for larger residential lots in S-25 and S-40 zoning districts, no flexibility was allowed for three car garages, nor for houses set so far back on a lot that they were not visible from the street. This zoning amendment addresses these issues by allowing greater width, although not greater percentage, in proportion to a front façade on larger residential lots, and special permit relief where alternatives for providing safe or practical parking are not possible and specific criteria are met.

Mr. Levine feels that there is room for some more work on this Article.

Selectman Allen added that what looked to be a simple clarification of the Article really needed a little more work on it.

In Board of Selectmen October 21, 2008 Page 14 of 31 WARRANT ARTICLES cont’d

Selectman Benka agreed. This was an issue that has been discussed with respect to how facades should be handled in different parts of town. There was no dispute on the principal, but on how to cast the language.

Selectman DeWitt added that this was passed in 2006; however she has noticed a number of buildings that do have garages at the sidewalk level. She wondered if this had any impact at all. Mr. Levine replied that he is aware of one property that was triggered within the Planning Board. There was some discussion on it and it was determined that it was very close.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action to refer Article 18 back to the Zoning By-law Committee.

Article No. Title

14. Zoning – Day Care Facilities (Shabelsky)

Petitioner Alex Shabelsky reviewed his Article:

According to the EEC regulations (Office of Childcare Services) family day care is a form of childcare provided in the residential homes of primary care givers. It is licensed and governed by the EEC, a State run organization, and currently State issues licenses for 6, 8 or 10 children. As you are aware every town in the Commonwealth of Massachusetts, other then Brookline, allows for 10 children licenses. Brookline is the only town in the State that has not yet joined other communities in their effort to comply with State regulations. I believe it is crucial for the town to change the By-Laws, since the need for quality day care is overwhelming. Moreover there are more then a dozen family daycares in Brookline, who are licensed by the State for 10 children. Enforcement of current by-laws would be detrimental and devastating to those families effected, and will cause a highly negative impact to the community. I hereby request the Town to amend the Zoning By-Law by adding a new principal use regulation in Section 4.07, Table of Use Regulation and amend Section 4.07 Use No. 15A, as proposed regarding family daycare, making 10 children maximum capacity – uniform throughout the state. The Town of Brookline Planning Board is in favor of this long needed update.

Mr. Shabelsky added that when there is a family daycare for 6, there is only one provider required. The child per teacher ratio is one to six. This makes it difficult to afford an assistant, and also makes it difficult to attend to a child when there is only one teacher. The State requires two teachers for ten children. This In Board of Selectmen October 21, 2008 Page 15 of 31 WARRANT ARTICLES cont’d

benefits the children and provides better supervision. He hopes that the Town will follow the State’s policy.

Director of Planning & Community Development Jeff Levine stated that the Planning Board recommends favorable action on this Article. Right now there is a gap in the Town By-law between 7-10 children. The By-law is not up to date with the State.

Selectman DeWitt inquired if there is a required square footage of space per child. Is the amount the same for 10 children as it is for 6 children? Mr. Shabelsky replied that the State regulations are 35 square feet per child for interior space and 75 square foot per child for outside space.

A discussion on the space required by the State, and how the Town would regulate that ensued.

Selectman Benka asked about commercial daycares. Mr. Levine replied that the State regulates institutional daycares. Selectman DeWitt added that the State does not routinely regulate the square footage.

Selectman Benka expressed concerns about family daycares in residential areas. The required space is small. He added that there may be a burden put upon neighbors in a congested area.

Mr. Shabelsky replied that there are many compliances and inspections that must be passed before the State issues a license to operate. He feels the main issue is to have the extra teacher that is required for 10 children to provide better supervision.

Chairman Daly added that there have been some concerns expressed by neighbors on increasing the number of children in some family daycares.

There was no vote on Article 14.

Article No. Title

21. Taxi Medallions (Selectmen)

Transportation Administrator Todd Kirrane reviewed the Article:

In Board of Selectmen October 21, 2008 Page 16 of 31 WARRANT ARTICLES cont’d

Article 21 is a home rule petition that would authorize the Town to convert its taxi industry to a medallion-based system. Brookline regulates its taxi industry through an annual licensing process coordinated by and under the authority of the Transportation Board. Approximately 14 Hackney Business Licenses are issued each year for the right to operate 187 taxicabs within the Town. These businesses are assessed an annual $300 per vehicle regulatory fee which offsets a portion of the Town’s expense regulating the industry. These taxicabs may charge a unified taximeter rate of fare which is established by the Transportation Board. Because this is an annual municipal license, there are no property or renewal rights attached to them and each applicant must agree to this fact during the licensing process. This system differs from a medallion-based system that places a property right on the license which the owner may sell.

The idea of converting our license-based system to a medallion-based system similar to the cities of Boston and Cambridge was first proposed to the Town by its hackney business license holders over five years ago to the Transportation Board. At that time, then Transportation Board Chairman Fred Levitan and Selectman Allen formed a working group of town staff to investigate the benefits and drawbacks of a conversion.

Chairman Daly asked what the estimated yearly income would be generated from a medallion system. Mr. Kirrane replied that the consultant’s estimate is about $50k per medallion generating between $8-9 million dollars. Other figures released by the industry itself was on public auction at $150k per medallion, however this estimate was made before the current credit crisis. There is no way to know the exact numbers at this time. The medallions are a one time lump sum. The owners can use them as an asset. They can be used as credit to put more cars on the road etc. The regulatory fee will remain in place to offset the cost to the Town to regulate the hackneys.

Selectman Mermell asked about “greening the fleet”. Mr. Kirrane replied that there is some language in the Article that addresses this. The Transportation Board is looking at a regulatory act that has miles per gallon requirement.

Selectman DeWitt asked if the Board could legally raise the fee enough to offset the cost of regulations.

Transportation Board member Fred Levitan stated that 5 years ago the Transportation Board attempted to increase the fee to $500. At that time the fee was thought to be excessive.

Selectman Allen stated that he has been working on this for about 5 years. It stemmed from the question of can we do taxi cabs better. The current companies do In Board of Selectmen October 21, 2008 Page 17 of 31 WARRANT ARTICLES cont’d

very well with our elderly and disabled. The one ting he would like to stress is that there was a lot of time put into this. They have met with the drivers and cab owners many times. We are asking for permission to file home rule regulations. He would like to get this process going as soon as possible. There is no need to issue every license right now. Perhaps the value may go up. The Advisory Committee wants more detail that cannot be presented before the home rule is established.

Fred Levitan replied that the Advisory sub-committee looked at whether there can be some language added. He feels that Town Counsel’s office did a good job in drafting the language.

Chief O’Leary stated that the Police Department participates in the bi-yearly inspections of the cabs, and they also see taxi drivers coming into Brookline and picking up fares which is not fair because Brookline cannot pick up fares in Boston. Since the Brookline taxis are held at a higher standard, it would require a full-time hackney officer to enforce this should it go to the medallion system.

Stanley Spiegel of the Advisory sub-committee stated that this is a revenue generating proposal. He is skeptical of any attempt to diminish any expected revenue. He questioned if the right thing to do would be to open it up for public bidding for the medallions. He has no problems with the existing cab companies, but how do we know another company cannot do as well or better. Is the legislation necessary? The Home Rule seeks exemption from the public bidding process. Why bother if the result is the same and there is a potential for more revenue. He feels that this is an important question.

Selectman Allen replied that this is a fair question. The concern is what kind of company we want in town. There are already existing dispatchers in town. Setting up new dispatches is almost unrealistic. We looked at existing companies that have served the town well and are willing to work with us, after putting many years and money into the community. Mr. Spiegel added that he is concerned that it may not appear favorably at the State level, and may actually reduce our chances.

Tom Vitolo, Chapel Street added that he is happy that the cabs are looking out for the disabled and seniors, but added that they also provide a service to those who do not own a car. He hopes there will be some more information available to Town Meeting before it goes before them.

Selectman Benka stated that after hearing some comments, there seems to be some tension between the revenue concerns, and the goals. The policy needs to be looked at. One way or the other does not clearly paint the best way to go.

There was no vote on Article 21.

In Board of Selectmen October 21, 2008 Page 18 of 31 HEATH STREET WIDENING

Public Hearing on the alteration and widening of a portion of Heath Street.

Director of Engineering Peter Ditto stated that this is the next step in the acceptance to the widening of Heath Street. This will provide three extra on street parking spaces, allows a safer turning area from Hammond onto Heath Street and additional tree lawn and sidewalk space.

Selectman Mermell stated that she has heard from an abutter who has concerns about how it will look on their property. Mr. Ditto replied that the work ends before their property, they will not be impacted.

On motion, it was unanimously,

VOTED: To approve of the area alteration and widening located 120.77’ southwesterly from westerly line of Hammond Street and the southerly line of Heath Street.

ALL KINDS COMMON VICTUALLER

The Board considered the question of approving the application of Caroni, LLC, Andres Branger, Owner, holder of a license to Expose, Keep for Sale and to Sell All Kinds of Alcoholic Beverages as a Common Victualler at 22 Harvard Street for a change in manager as follows:

From: Andres Branger To: Rick Ryan

Mr. Ryan stated he has many years of experience in the hospitability business. He is also an instructor in Hotel and Restaurant Management.

On motion, it was unanimously,

VOTED: To approve the application of Caroni, LLC, Andres Branger, Owner, holder of a license to Expose, Keep for Sale and to Sell All Kinds of Alcoholic Beverages as a Common Victualler at 22 Harvard Street for a change in manager as follows:

From: Andres Branger To: Rick Ryan

In Board of Selectmen October 21, 2008 Page 19 of 31 POSTPONED ALL KINDS PACKAGE STORE – TRANSFER

Public Hearing on the application of Best Cellars MA, Inc. d/b/a Best Cellars, Chris McGarry, President, holder of a license to Sell All Kinds of Alcoholic Beverages as a Retail Package Goods Store at 256 Harvard Street for a transfer of said license to Glendale Package Store of Waltham, Inc. d/b/a GPS Liquors, Jason Williams, President.

WARRANT ARTICLES

Further review and vote on the following Warrant Articles for the November 18, 2008 Fall Town Meeting:

Article No. Title

3 FY2009 Budget Amendments

Deputy Town Administrator Sean Cronin reviewed the revised amendments:

As originally proposed, Article 3 recommended re-allocating a projected surplus of $550,000 from the Group Health budget. Due to current economic conditions, this approach is no longer recommended. Instead, we are recommending that the surplus remain in the group health budget as a hedge against any mid-year local aid cuts. While the Governor has yet to recommend any cuts in state aid, all indications are that if the state must cut its budget again during FY09, local aid will be part of the proposal.

As of the writing of this Recommendation, the next steps in the process for the Runkle School funding are as follows:

1. Designer Selection Panel (DSP) for architect/designer – on December 9, the DSP will choose an architect/designer. 2. Scope and Budget agreement – the Town and the MSBA will agree on a project scope and budget after the feasibility study / schematic design is complete. If both parties agree to this, then the project will move forward, pending local funding. 3. Funding approval – per MSBA guidelines, after schematic design, the Town must obtain all remaining project funds, including design completion, construction, and all other soft costs, within 120 days of the execution of the scope and budget agreement. 4. Design completion/Bidding – the design will be completed, leading to construction documents and bidding. 5. Contract approval – occurring approximately 9-12 months after the project scope and budget agreement is set, bids will be received and, pending In Board of Selectmen October 21, 2008 Page 20 of 31 funding approval by Town Meeting, a contract awarded. It is not until this point that the Town will know if the budget agreed to as part of item #3 above matches the actual bids.

The $600,000 for this phase is recommended to come from the following sources:

o Surplus in the FY09 debt service line-item = $255,000 o Remaining balance in the Lawrence School account = $245,000 o Existing funds approved in FY07 for Runkle School Feasibility / Devotion School Needs Assessment = $100,000 o Selectman Benka asked if there will be a written commitment from MSBA that they will be reimbursing the Town. Mr. Cronin replied yes, there will be a written agreement, however we cannot build that language into the vote.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action That the Town:

1. Amend the FY2009 budget as shown below and in the attached Amended Tables I and II:

ORIGINAL PROPOSED AMENDED ITEM # BUDGET CHANGE BUDGET 34. Borrowing $12,629,047 -$255,000 $12,374,047

2. Appropriate the sum of $600,000 for a feasibility study, schematic design, and costs associated with the feasibility study and schematic design to understand the extent of facility and programming deficiencies at the John D. Runkle School located at 50 Druce Street in the Town of Brookline, Massachusetts, and as further described as Parcel I.D. No. 245/01-00 in the Town of Brookline Assessor's map and database and to explore the formulation of a solution to those deficiencies, said sum to be expended under the direction of the Building Commission, with the approval of the Board of Selectman and the School Committee; and to meet said appropriation, raise $255,000 and transfer $245,000 from the balance remaining in the appropriation voted under Article 7, Section 12, Item 89 of the 2001 Annual Town Meeting; and transfer $100,000 from the balance remaining in the appropriation voted under Article 7, Section 13, Item 68 of the 2006 Annual Town Meeting; and further that the Town acknowledges that the Massachusetts School Building Authority’s (“MSBA”) grant program is a non-entitlement, discretionary program based on need, as determined by the MSBA, and any costs the Town In Board of Selectmen October 21, 2008 Page 21 of 31 incurs in excess of any grant approved by and received from the MSBA shall be the sole responsibility of the Town.

LODGING HOUSE LICENSE

Public Hearing on the application of Sara Hannassai, Owner, Susan Wiesen, Manager for a Lodging House license at 105 Marion Street for twenty-one (21) lodgers.

Susan Wiesen, Manager was present.

Chairman Daly stated that it seems that the Lodging House serves a continental breakfast. Ms. Wiesen replied that they provide juice and wrapped cereal bars along with a coffee bar.

Chairman Daly noted that there are some issues of concern. Notably real estate taxes, refuse fees, and sewage and water fees due. Ms. Wiesen stated that most have been paid; there is a small amount outstanding which is scheduled for payment in November.

Chairman Daly added that some neighbors expressed concern that the property is run as a bed and breakfast establishment, not a lodging house. Ms. Wiesen stated the website refers to the lodging house as the Marion Inn. They felt that this was a more appealing name to use than a lodging house. The patrons are mostly graduate students. They do not consider themselves a Bed and Breakfast and feel they do not qualify under those terms.

Arlene Winkleman, Trustee of the 99 Marion Street Condominium Trust had submitted the following letter of concern: (representative were unable to attend tonight’s meeting)

Comments from 99 Marion Street

The residents and owners of 99 Marion Street object to the application by owner Sara Hannassai on the grounds that the premises may not be properly permitted as used and that, regardless of use, it is improperly cared for. We request that this property be brought under professional property management with a well-thought out business plan, and be thoroughly inspected by the town with unannounced repeat inspections before the license is renewed.

I. The Question of Use

For a number of years, 105 Marion has been used as lodging house, providing rooms for rent in lieu of apartments. In a petition to the November 2006 Town Meeting, Warrant 25 required an inventory of the Town of Brookline's lodging house inventory, noting that lodging houses provide an important source of lower cost rental housing to the community. This report suggested areas for the Assessor and the Housing Advisory Board to provide further tax incentives to encourage this In Board of Selectmen October 21, 2008 Page 22 of 31 unique type of low-cost housing in the town. In this report, 105 Marion was highlighted as a property renting to graduate students.

Less than two years later, the property is being advertised on the web as a bed and breakfast. See www.themarioninn.com. So begins the question of use: is it a lodging house, providing low income housing for hard working graduate students, or is it an historic hotel offering "any time check in", in-room continental breakfast, and free overnight parking?

In accordance with the zoning by-laws, lodging houses provide sleeping accommodations without individual cooking facilities to be let to four or more persons. A hotel is a structure in which sleeping accommodations are let primarily to transients and in which a public eating facility is provided. There is also a designation for a limited service hotel, but that simply limits certain uses to fewer than 5000 square feet.

The Marion Inn web site clearly indicates that units have either a fully equipped kitchen, a partial kitchen, or at least a fridge, microwave, and dishware. The use of the property becomes important when applying for the special permit. 105 Marion is located in the 0-1.75 district which allows lodging houses and hotels by special permit. But is the application presented tonight accurate? Further, Limited Service Hotels are permitted by right provided that the applicant certifies to the Building Commissioner that: a) at least 20% of all on-site parking spaces will be available for overnight public parking at prevailing overnight public rates, b) that all on-site parking spaces will be available between 8:00 am and 6:00 pm at prevailing public meter rates AND c) at least 25% of the lot area is to be used for open space open to the public. Otherwise such use shall be by special permit in business districts.

Have these issues been considered? And how can The Marion Inn balance the needs and requirements of "public parking" with those of the residents they have?

Clearly this is a mixed use property. We ask that the use be clearly defined and properly applied for. Because if the Board of Appeals determines that this mixed use defies definition, perhaps the property defaults to a multiple tenant dwelling, an apartment building, subject to affordable housing requirements.

II. Improper Care of the Property

The owners and residents of 99 Marion assert that the property is unkempt, unclean, and in constant violation of the health code. We respectfully request an accounting of repeat Health and DPW violations for the last six years be considered by the Board, and a well-documented management plan for future compliance be established as a condition for any approval.

The Town of Brookline has rules for lodging houses. These facilities require absentee owners to appoint a representative, that said representative be trained and registered with the Health Department among other authorities. For those facilities which serve food, they must also comply with the State Sanitary Code.

There are also obligations to store garbage in watertight, rodent-proof receptacles with tight fitting covers. The receptacles should be sufficient in number. This has been a constant source of difficulty for the manager-at 105 Marion to police. On numerous occasions the DPW has been In Board of Selectmen October 21, 2008 Page 23 of 31 called to investigate rats living under the front porch and dead rats in the front garden at 105 Marion. Rats eat the garbage that overflows from the uncovered cans and feast on the peaches that fall from the tiny tree in the front yard.

The lodging house regulations also have "good neighbor" requirements such as keeping the premises free from collected debris and clearing snow. Trash and leaves blown by the wind collects behind the house providing further attraction for unwanted rodents. We certainly do not expect the manager of 105 Marion to control the wind and weather, but we do expect her to patrol the perimeter of her facility. Last Thanksgiving, vandals smashed a liquor bottle when they tagged the side of 105 which faces our building. The graffiti was covered but the smashed bottle remains.

When winter arrives, the residents of 105 Marion do nothing to help clear snow from our shared alley. They are happy to use the right-of-way to access their parking but do not contribute any efforts toward clearing it. We have a snow blower; the dentist's office on Beacon Street who shares the right-of-way has a snow blower. The residents of 105 Marion clean off their individual cars and go on their way. lf the transients who live at the lodging house have no sense of community, surely a resident manager should.

Recycling bins are stored outside, uncovered. Paper bins improperly contain pizza boxes; the smell of unwashed food containers attracts rats, squirrels and birds. Hazardous materials sit outside for months including used paint sitting in rusted cans and blown fluorescent light bulbs tucked behind the recycling bins. Finally, the fluorescent bulb broke, sending mercury directly into the storm drain six feet across the alley. The open blue recycling bins are placed directly under the down spouts from the roof. With the rains that we have experienced, especially this year, the bin fills with water causing the recycling materials, including garbage from the unwashed food containers, to overflow into the common driveway. Behavior like this shows a pattern of not knowing, not caring, and simply requiring professional maintenance help.

Snow and blown leaves are small issues compared to the uncovered trash. Repeated violations from the Health and / or Department of Public Works show a pattern of neglect and disregard for the community at large.

III. Driveway Parking

Over the past five years, residents and guests of 105 Marion Street have parked in the small space next to the building. This space abuts the driveway that is the property of 99 Marion Street. With a car in the space, certain commercial vehicles have not been able to pass. We also fear that in the event of an emergency, the fire department will not be able to access the rear of 99 Marion Street or any of the other buildings with access to the driveway.

In the winter, residents of 105 Marion Street have left their vehicles, including trucks, in this space during snow storms. The vehicles that park in the back of the residences of Beacon and Marion Street have a great difficulty driving in and out of the driveway without hitting the vehicle that is on the side of 105 Marion.

We strongly urge the Board to put in a condition to the license that no parking be permitted on the side of the building abutting the 99 Marion Street driveway.

IV. Conclusion

The residents and owners of 99 Marion believe that 105 Marion can be a good neighbor, but it is up to the Board to give them the impetus to do so. We respectfully request that 105 Marion clearly define its purpose and develop a business plan that includes resources appropriate for managing a In Board of Selectmen October 21, 2008 Page 24 of 31 building of that size. The plan should address the long-standing and repeat issues of garbage facilities and recycling bins, including educating residents about solid waste, proper recycling, and household hazardous waste. It should address outdoor maintenance for more than the front face of the house. It should address pest control, pest prevention, and snow removal. We would like thorough inspections by the Town with unannounced repeat inspections. We think we can have good neighbors but it takes a lot more than sticking some silk flowers on the front porch and calling it a day.

Arlene Winkleman, Trustee, on behalf oft he 99 Marion street Condominium Trust

Ms. Wiesen stated that she had never spoken to any owner of 99 Marion Street. She wonders why there complaints were never directed to her. As for the parking, they own two legal spots at the back of the house, they are not currently rented. The guests are provided with an overnight spot should they need it. Ms. Wiesen stated that cleanliness is their highest priority. They are in complete accordance with the Health Department, and will continue to do whatever needed to be so. She feels that the property has improved over the last seven years. There was a rodent problem due to the Beacon Street Project, and she has taken steps to control that.

Selectman DeWitt feels that with their rates and the way the website presents itself it does appear that it may be considered a Bed and Breakfast. She would like a true definition of what it is, and Ms. Wiesen needs to clearly determine which type of residence it is. It seems that which category it falls into is on the fence right now.

Chairman Daly made the motion to grant the lodging house license until December 31, 2008, with all outstanding fees paid, and a determination from the Health Department to determine whether or not it is a Bed and Breakfast.

Selectman Benka would like to add with the conditions that the operator pays all outstanding fees and dues on the property and that the property is operating in accordance with the Town by-laws.

On motion, it was unanimously,

VOTED: To grant the application of Sara Hannassai, Owner, Susan Wiesen, Manager for a Lodging House license at 105 Marion Street for twenty-one (21) lodgers until December 31, 2008 which at that time to determine that there are no outstanding taxes, fees or dues to the Town on the property, the Health Department determines whether it is a Bed and Breakfast, or a Lodging House, and that the Property is operated in accordance with the Town By-laws.

In Board of Selectmen October 21, 2008 Page 25 of 31 WARRANT ARTICLES

Further review and vote on the following Warrant Articles for the November 18, 2008 Fall Town Meeting:

Article No. Title

12 Green Cleaning Products (Tom Vitolo)

Chairman Daly suggested making this a policy. The Chief Procurement Officer thinks it is a good idea to follow the outlines of the Article. She suggested going ahead and making this a policy and voting no action on the Article.

Petitioner Tom Vitolo replied that he would like to have a discussion on what kind of policy she has in mind. He is happy to work with the Chief Procurement Officer to work it out. He asked what the harm was in supporting the Resolution and recommending a policy.

Chairman Daly made the motion to that the Board of Selectmen to make a policy of using green cleaning products along the lines of Mr. Vitolo’s resolution.

On motion, it was unanimously,

VOTED: That the Board of Selectmen make a policy of using green cleaning products along the lines of Mr. Vitolo’s resolution

VOTED: Favorable Action 5-0 on Article 12 as recommended by the Advisory Committee.

Resolution Seeking the Use of Environmentally Friendly Cleaning Products

Whereas, there are environmentally friendly cleaning products available which are as effective as existing, traditional cleaning products;

Whereas, the increased cost of using green products instead of traditional products is often negligible or non-existent, as evidenced by the Public School and Building Department's transition to exclusive use of green certified cleaning products in their all-purpose, wash room, multi-surface, and floor cleaning operations;

Whereas, independent non-profit certification programs such as Green Seal are relied upon by agencies including but not limited to the World Bank, the United States Army, In Board of Selectmen October 21, 2008 Page 26 of 31 the United States Post Office, numerous federal agencies, numerous states and commonwealths, and cities across the country; and

Whereas, other communities have already implemented green cleaning strategies and requirements, including but not limited to Boston, Milton, New York City, and the states of Illinois and New York.

Now, therefore, be it resolved that the Town of Brookline should purchase and employ green certified cleaning products including but not limited to glass cleaners, neutral cleaners, and general purpose cleaners, provided that such products meet the necessary specifications of the proposed function and are cost effective.

Therefore, be it further resolved that the use of the current stock of cleaning supplies should be phased out and replaced with green certified cleaning products where available, appropriate, and cost effective.

Therefore, be it further resolved that the Town, vendors, and contractor cleaning staff should be trained in or made aware of the safe and proper use of all cleaning products and equipment and relevant hazards, in order to appropriately and safely support the resolutions proposed herein.

Therefore, be it further resolved that the Town should review its cleaning product purchasing decisions annually, and that the Town should pursue cleaning service and related contractors to work in municipal buildings who will follow the resolutions proposed herein.

or act on anything relative thereto.

Article No. Title

10 Leaf Blowers (Fisher & Margolis) Petitioner Andrew Fisher

Petitioner Andrew Fisher presented a revised version of his Article. The definition of leaf blower has been defined as used in the noise ordinance. The whole section on commercial leaf blower operation has been deleted. The newer version has eliminated the inconsistencies between this proposed Article and the noise ordinance.

In Board of Selectmen October 21, 2008 Page 27 of 31 WARRANT ARTICLES cont’d

A discussion ensued on sound levels and the amount of decibels.

Selectman Allen stated that he feels the Town does not need more regulations, it has enough. Many residents use leaf blowers, it would not make sense to take this use away from them. Some residents do not have the funds to hire an outside landscaper.

Mr. Fisher replied that it would not be a great sacrifice to sweep and rake instead of using a leaf blower.

Andrea Roberts of Naples Road stated that leaf blowers are an externality and a burden to those around them.

Marty Rosenthal TMM#9 added that he frequently works at home and is disturbed by professionals using leaf blowers especially at an early hour.

Chairman Daly added that the change in the decibels as proposed in the revised Noise By-law, Article 9, would have a substantial impact on the noise level.

Regina Frawley, TMM#16 added that she also works at home. She has no problem with the neighborhood leaf blowers it is the vacuum cleaners on the trucks that appear to be the problem. She had spoken to a landscaper about the use of leaf blowers. The landscaper told her it would take her longer to do the work using a lower decibel machine, she said that if it does become a By-law she will not do business in Brookline, it would not be worth it to her.

Petitioner Jonathan Margolis stated that it comes down to limiting the use and the hours of leaf blowers. It also proposes that you can’t use a leaf blower to move debris onto your neighbor’s property.

There was no vote on Article 10.

Article No. Title

13 Zoning Map (Bill Powell)

Petitioner Bill Powell presented a power-point showing the properties that are included in the down zoning proposal. The properties are located in North Brookline which he feels is congested enough now, the schools are stretched, and the streetscape has been altered.

In Board of Selectmen October 21, 2008 Page 28 of 31 WARRANT ARTICLES cont’d

Director of Planning & Community Development Jeff Levine stated that the Planning Board recommends no action on this Article. The Planning Board has looked at these parcels before, and felt it needed more justification to feel comfortable with making an exception. The Planning Board is not opposed to the further consideration of the Craig Place and Freeman Street parcels for rezoning, and these parcels should be referred back to the Zoning By-law Committee for further evaluation. However, the Planning Board is opposed to the rezoning of the other proposed parcels, as doing so would be singling out the parcels, separating them from the established multi-family neighborhoods that surround them, and transforming half of them from conforming to clearly non-conforming uses and floor area ratios.

Barr Jozwicki TMM#9 hopes that senior issues will be addressed. North Brookline is too congested as it is, and there is a high density of seniors in this area. The senior population has issues moving around, There is more traffic and construction to maneuver around, and he supports this Article to curb the congestion in this area.

Fred Conrad, 67 Winchester Street, stated that 67 Winchester Street is a condominium association that houses 6 disabled adults in a group setting. The individual ownerships are the bedrooms with common areas including the kitchen and other living space. He feels that moving the property to an F zone would be spot zoning by treating this one house differently than surrounding homes that are in the M zone. To make this an F zone would cause substantial hardship to the property owner. Should the property need to house a health aide at some point, it would require a variance which in itself is a difficult process. This would apply to any changes they would want to make to the property.

Mr. Levine replied that there are already 6 units in this building. It would most likely require a special permit or a variance. He recommended moving this property from an M-2.0 to an M 1.0 zone which most likely would require a special permit.

Mr. Conrad replied that he is content with this move, but still feels that going after all 12 properties is spot zoning, but he will take it, it will help with his property.

Stanley Spiegel, TMM# 2 stated that the Advisory Committee supported the entirety of the article with the one expectation to the property at 67 Winchester Street. The purpose of zoning is to protect the general welfare of the community. Spot zoning occurs when you treat similar properties differently. The property on Winchester Street is just like the F zoning that takes place nearby; however, the Advisory Committee listened to Mr. Conrad’s concerns, and agreed with him. The In Board of Selectmen October 21, 2008 Page 29 of 31 down zoning is not now taking place because of a threat; it is good to be proactive. They are looking at what makes sense for the neighborhood. There certainly will not be any loss of tax revenues, possibly to new growth potential, which may make the neighborhood less livable and unattractive. He supports the Article with the amendment made by the Advisory Committee.

Martin Rosenthal, TMM# 9 and Co-chair of Brookline PAX (Political Action Committee) stated that these properties are not isolated properties; they have been trying to get them on the list for the last few years. He added that there is a lot of support for this Article from the neighborhood. The neighborhood is working together now more so than it had in the past. It is very important to preserve these properties. Mr. Rosenthal added that these areas are all mixed. If you really wanted continuity you could make them all M districts. These parcels are the ones that he has fought very hard to rezone over the years.

Selectman Benka stated that he had looked at these properties and he would not like to vote a referral, he feels it puts properties at risk. He found that the Craig’s Place and Freeman Street the easiest decision to rezone. The Babcock Street property is an important part of the streetscape. With respect to Winchester Street property it is more difficult to determine because the street has been changed over the years. He is thinking about the context of where they sit. It would all depend on how it is presented to Town Meeting to determine how he would vote on this Article.

Chairman Daly made note of all the correspondence the Board has received on Article 13.

There was no vote on Article 13.

Article No. Title

16 Zoning – Designing Advisory Teams (Planning)

Director of Planning & Community Development Jeff Levine stated that as an update this Article would require a design advisory team for major impact project and substantial modification projects to be determined if necessary.

Selectman DeWitt asked if there was discussion on a preservation design review process where there is a historic property involved. There could be two design review processes going on at the same time. There should be some

In Board of Selectmen October 21, 2008 Page 30 of 31 WARRANT ARTICLES cont’d acknowledgment to this. Mr. Levine replied that this is a good question as to what happens if the project is also a preservation or conservation review. He feels that this is a procedural issue. Those projects could be referred to the rules and regulations.

Selectman Benka asked Mr. Levine to check with Town Counsel to see if the changes requested would be within the scope of the Article.

There was no vote on Article 16.

Article No. Title

25 Fire Chief Appointment (Fred Lebow)

Chairman Daly stated that it has been tradition to hire the Fire Chief from within the Department. This Article would give the Town the option to look outside the Department. Chairman Daly noted that the Fire Union has been working with the Town on the issue of joining the Group Insurance Commission. In recognition of this cooperation, she made the motion of No Action on Article 25.

Selectman Benka moved Favorable Action on Article 25. He feels that as a reality, it could be advantages for someone coming from within the Department due to their familiarity. however; by closing any other options would not be beneficial to the Town. The GIC is a critical issue to the Town, if resolved properly, it would be beneficial to the town and the employees, and he feels it should not be attached to this issue.

On motion of Favorable Action made by Selectman Benka failed by a 2-3 vote Allen No DeWitt Aye Mermell No Benka Aye Daly No

On motion of No Action made by Chairman Daly, it was,

VOTED: 3-2 No Action Allen Aye DeWitt No Mermell Aye Benka No In Board of Selectmen October 21, 2008 Page 31 of 31 Daly Aye

TRANSPORTATION BOARD

The Board considered the question of making appointments to the Transportation Board.

On motion, it was,

VOTED: To appoint Brian Kane to the Transportation for a term ending August 31, 2011 or until a successor can be appointed.

VOTED: To appoint Josh Safer to the Transportation for a term ending August 31, 2011 or until a successor can be appointed.

ELECTION WARRANT

The Board considered the question of executing the Warrant for the November 4, 2008 Presidential Election.

On motion, it was unanimously,

VOTED: To execute the Warrant for the November 4, 2008 Presidential Election.

There being no further business, the Chair adjourned the meeting at 10:00 p.m.

ATTEST

IN BOARD OF SELECTMEN

OCTOBER 28, 2008

Present: Chairman Nancy Daly, Selectmen Robert Allen, Betsy DeWitt, Jesse Mermell, and Richard Benka.

The Minutes of October 21, 2008 were approved as amended.

In Board of Selectmen October 28, 2008 Page 2 of 36

EXECUTIVE SESSION

Upon motion duly made and seconded, it was moved that the Board of Selectmen go into EXECUTIVE SESSION.

The Chair then stated the reason(s) for the Executive Session: (SEE THE REASONS CHECKED)

(1) To discuss the reputation, character, physical condition or mental health rather than the professional competence of a particular individual1.

(2) To consider the discipline or dismissal of, or to hear complaints or charges brought against, a public officer, employee, staff member, or individual1.

(4) To discuss the deployment of security personnel or devices.

(5) To investigate charges of criminal misconduct or to discuss the filing of criminal complaints.

(7) To comply with the provisions of any general or special law or Federal grant-in-aid requirements.

In Board of Selectmen October 28, 2008 Page 3 of 36

The Board of Selectmen, during a properly constituted and noticed meeting:

VOTED: to go into Executive Session

Roll Call Vote: Voting in the Affirmative: 4 Voting in the Negative: 0

Selectman Allen absent for roll call.

The Board of Selectmen (WILL) RECONVENE in Open Meeting after the Executive Session.

In Board of Selectmen October 28, 2008 Page 4 of 36 PUBLIC COMMENT

Public Comment period for citizens who requested to speak to the Board regarding Town issues not on the Calendar.

There was no Public Comment.

Selectman Allen arrived at 7:10

POLICE PERSONNEL

The Board considered the question of authorizing the promotion of Acting Sergeant Robert Murphy to permanent Sergeant.

Chief O’Leary went over Officer Murphy’s qualifications. Mr. Murphy was appointed to the Police Department in 1983, since than he has worked in various divisions. Most recently he has served as Acting Sergeant on the overnight shift. Chief O’Leary stated that he has been an asset to the Third Platoon and has made a very positive impact.

Officer Murphy holds a Master’s Degree in Criminal Justice and is currently studying to obtain a Master’s Degree in Political Science.

Officer Murphy thanked the Chief for his kind words and recommendation. He acknowledged his family and friends in attendance, and thanked the Board for their consideration.

The Board expressed their congratulations, and acknowledged his hard work and dedicated service to the Town.

On motion, it was unanimously,

VOTED: To authorize the promotion of Acting Sergeant Robert Murphy to permanent Sergeant.

POLICE PERSONNEL

The Board considered the question of authorizing the Chief of Police to requisition a list for the positions of Lieutenant and Sergeant from the Department of Human Services.

Chief O’Leary stated that Lieutenant Gerald McGrath will be retiring from the Police Department on November 3, 2008 after serving 33 years. This retirement leaves a vacancy in the positions of Lieutenant and Sergeant. In Board of Selectmen October 28, 2008 Page 5 of 36

The Board applauded Lieutenant McGrath for his many years of dedicated service.

On motion, it was unanimously,

VOTED: To authorize the Chief of Police to requisition a list for the positions of Lieutenant and Sergeant from the Department of Human Services.

POLICE PERSONNEL

The Board considered the question of authorizing the appointment of Seven (7) Police recruits, not subject to the hiring freeze.

Chairman Daly began by stating that these recruits were previously approved for hire and have just finished the Massachusetts Police Recruit Academy. They are not subject to the hiring freeze.

Chief O’Leary stated that these student officers have successfully completed the Lowell Massachusetts Police Recruit Academy. He added that the Academy relayed to him that Brookline always sends them quality recruits, but as a whole, this group stood out. They raised the level at the Academy. Chief O’Leary introduced each recruit and outlined their qualifications.

The Board congratulated the student officers for their successful completion at the Academy. The Board expressed their thanks for their commitment to service, and wished them a long and healthy career.

On motion, it was unanimously,

VOTED: To authorize the appointment of the following Seven (7) Police recruits, not subject to the hiring freeze.

Morgan Lee, David Avila, David Hill, Brendan Kelliher, Ryan Lee, Michael O’Connor, and Brendan Morgan.

LETTER OF SUPPORT

The Board considered the question of executing a letter supporting the Plan proposed for submittal by the Metropolitan Boston Housing Partnership to the In Board of Selectmen October 28, 2008 Page 6 of 36 Council on Housing and Homelessness to prevent and address homelessness in the region.

Housing Planner Virginia Bullock stated that this letter is in support of the framework of the Plan to prevent and address homelessness in the Metro Boston Region and supports the grant proposal being submitted to the Interagency Council on Housing and Homelessness by the Metropolitan Boston Housing Partnership as part of the implementation for that plan.

Ms. Bullock stated that homelessness is up 38% this year and is expected to rise. She introduced Niomi Switzer, Assistant Executive Director, HomeStart, Inc. who stated that homelessness is a regional problem, and ending homelessness requires a coordinated regional approach. This is a group effort. The goal is to build on the ongoing efforts of constituent cities and towns, partnering State and Federal agencies and local non-profits addressing the need of housing and the homelessness.

Selectman Allen supports this regional request and noted that there is power in numbers. He added that it shows civic responsibility to look at the region as a whole.

On motion, it was unanimously,

VOTED: To execute a letter supporting the Plan proposed for submittal by the Metropolitan Boston Housing Partnership to the Council on Housing and Homelessness to prevent and address homelessness in the region.

CHANGE ORDER

The Board considered the question of approving and executing Change Order #10 in the amount of $12,447.00 for work to be completed by Colantonio, Inc. of Holliston in connection with the Town Hall Project. Said change order to be funded from account 2599WS08 6B107.

Project Manager Tony Guigli stated that the Town Hall Project is in the final stages. There are many small details left to be done. This change order is for an ETR Starter Replacement in the Transformer Vault, push buttons and wiring at doorways, furnish and install duplex outlets for 10 horizontal fan units, and modify oil burners for diesel fuel.

On motion, it was unanimously,

VOTED: To approve and execute Change Order #10 in the amount of $12,447.00 for work to be completed by Colantonio, Inc. of Holliston in connection In Board of Selectmen October 28, 2008 Page 7 of 36 with the Town Hall Project. Said change order to be funded from account 2599WS08 6B107.

TRANSFER

The Board considered the question of approving the transfer of $7,200 from the Ryder Cup 53A account (1299SG26) to the Arts Council Matching Grants Account (1220SG27).

Assistant Town Administrator Melissa Goff stated that these funds are needed to support the part-time Commission for the Arts position.

On motion, it was unanimously,

VOTED: To approve the transfer of $7,200 from the Ryder Cup 53A account (1299SG26) to the Arts Council Matching Grants Account (1220SG27).

TRANSFER

The Board considered the question of approving the following transfer to cover a deficit in the Celebrations Fund account:

FROM: Ryder Cup 53A $16,282.90 (1299SG26)

FROM: BAA Trust Fund $ 4,071.00 (6300TR02)

TO: Celebrations Fund $$20,353.90 (5430SG21)

Assistant Town Administrator Melissa Goff stated that the Flag Day Celebration account ended the year with a deficit. This transfer will come from two funding sources.

On motion, it was unanimously,

VOTED: To approve the following transfer to cover a deficit in the Celebrations Fund account:

FROM: Ryder Cup 53A $16,282.90 (1299SG26) In Board of Selectmen October 28, 2008 Page 8 of 36

FROM: BAA Trust Fund $ 4,071.00 (6300TR02)

TO: Celebrations Fund $$20,353.90 (5430SG21)

APPROPRIATION TRANSFER

The Board considered the question of approving the following appropriation transfer within the Water & Sewer Division budget:

FROM: 4991EW40 543052 $65,000 MWRA Sewer

TO: 4999EW40 6E0054 $65,000 Singletree Tank

Director of Water and Sewer Andy Pappastergion stated that after the sandblasting was done on the Singletree Tank, corrosion was found that was unforeseen at the start of the project. This transfer will cover the repair fees. There will be additional design fees associated. Mr. Pappastergion hopes that the repairs will be done before the temperatures drop.

On motion, it was unanimously,

VOTED: To approve the following appropriation transfer within the Water & Sewer Division budget:

FROM: 4991EW40 543052 $65,000 MWRA Sewer

TO: 4999EW40 6E0054 $65,000

Singletree Tank

EXTRA WORK ORDER

The Board considered the question of approving Extra Work Order #1 in the amount of $60,335.50 for work to be completed by Prime Coatings, Inc. of Salisbury in connection with Contract PW/08-22 “Singletree Tank Painting”. Said work order to be funded from the Water Enterprise fund. In Board of Selectmen October 28, 2008 Page 9 of 36

Director of Water and Sewer Andy Pappastergion stated that this is for the repair work on the Singletree Tank.

To approve Extra Work Order #1 in the amount of $60,335.50 for work to be completed by Prime Coatings, Inc. of Salisbury in connection with Contract PW/08- 22 “Singletree Tank Painting”. Said work order to be funded from the Water Enterprise fund.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a Temporary All Kinds of Alcoholic beverages license to Pine Manor College in connection with a Fundraiser to be held by the Rashi School of Newton on November 15, 2008 from 5:00 pm -11:00 pm at 400 Heath Street.

On motion, it was unanimously,

VOTED: To grant a Temporary All Kinds of Alcoholic beverages license to Pine Manor College in connection with a Fundraiser to be held by the Rashi School of Newton on November 15, 2008 from 5:00 pm -11:00 pm at 400 Heath Street.

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a Temporary Wine and Malt beverages license to Pine Manor College in connection with a Bat Mitzvah to be held by the Shavira Family on November 22, 2008 from 11:00 a.m. – 3:00 p.m. at 400 Heath Street.

On motion, it was unanimously,

VOTED: To grant a Temporary Wine and Malt beverages license to Pine Manor College in connection with a Bat Mitzvah to be held by the Shavira Family on November 22, 2008 from 11:00 a.m. – 3:00 p.m. at 400 Heath Street.

In Board of Selectmen October 28, 2008 Page 10 of 36 TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a Temporary Wine and Malt beverages license to Heath School PTO in connection with an Appreciation Party to be held on November 13, 2008 from 6:00 p.m. to 8:30 p.m. at 100 Eliot Street.

On motion, it was unanimously,

VOTED: To grant a Temporary Wine and Malt beverages license to Heath School PTO in connection with an Appreciation Party to be held on November 13, 2008 from 6:00 p.m. to 8:30 p.m. at 100 Eliot Street

TEMPORARY WINE AND MALT BEVERAGE LICENSE

The Board considered the question of granting a Temporary Wine and Malt beverages license to Boston University College of Fine Arts in connection with a Reception to be held on November 21, 2008 from 4:30 p.m. to 9:30 p.m. at 808 Commonwealth Avenue.

On motion, it was unanimously,

VOTED: To grant a Temporary Wine and Malt beverages license to Boston University College of Fine Arts in connection with a Reception to be held on November 21, 2008 from 4:30 p.m. to 9:30 p.m. at 808 Commonwealth Avenue.

REINSTATMENT

The Board considered the question of requesting authorization from the State Human Resource Division to reinstate Peter Gately as a Firefighter.

Chief Skerry stated that Firefighter Gately was previously employed in the Fire Department therefore it requires authorization from the State Human Resource Division to reinstate him. Mr. Gately is one of the 10 firefighter candidates offered conditional employment from the Board on October 14th.

On motion, it was unanimously,

VOTED: To request authorization from the State Human Resource Division to reinstate Peter Gately as a Firefighter.

In Board of Selectmen October 28, 2008 Page 11 of 36 DPW PERSONNEL

The Board considered the question of authorizing the hiring of three (3) Pipelayer-Laborers for the Water Sewer Division to be funded through the Enterprise fund and not subject to the Hiring Freeze.

Director of Water and Sewer Andy Pappastergion stated that there are currently 6 vacancies in the Water and Sewer Department. The original request was to fill 5 of the six positions. The Department is now requesting to fill 3 positions. Their common practice is to promote within leaving the entry level positions available. These vacant positions make it difficult to keep on top of preventative maintenance duties, which is essential to the efficient operation of the Department.

Town Administrator Richard Kelliher added that in past practice the enterprise funds have been exempt from the hiring freeze. These positions are not supported through the general fund.

Selectman Benka added that the residents of the Town do pay the cost of the Water and Sewer Division through their water and sewer rates. That being said, the Water and Sewer Division has a 15% vacancy at this point. Mr. Pappastergion has identified the three positions most critical for maintenance. If we short change our preventative maintenance now, we will pay for it at a later time.

On motion, it was unanimously,

VOTED: To authorize the hiring of three (3) Pipelayer-Laborers for the Water Sewer Division to be funded through the Enterprise fund and not subject to the Hiring Freeze.

PROCLAMATION

The Board considered the question of Proclaiming the month of November as Brookline Community Mental Health Month.

Cynthia Price Executive Director of Brookline Community Health Center stated that she is requesting consideration for Brookline to declare November as Brookline Community Mental Health Month. The Center is preparing to launch its 50th anniversary this March. The Center is working with the community to raise mental health awareness, and appreciates Brookline’s support.

Chairman Daly added that the Center has done a great job renovating their building and provides a great service to the community. She added that the Center has received a reduction in State aid, and needs support. Selectman DeWitt and In Board of Selectmen October 28, 2008 Page 12 of 36 PROCLAMATION cont’

Mermell concurred; the Center is involved in the coalition to prevent homelessness and provides many services to those in need in our community.

On motion, it was unanimously,

VOTED: To adopt the following Proclamation for the Brookline Community Mental Health Center proclaiming November as mental Health month.

PROCLAMATION

WHEREAS, In March, 2009 Brookline Community Mental Health Center (BCMHC) will be celebrating the 50Th Anniversary of its founding as an organization serving Brookline Residents; and

WHEREAS, the Brookline Mental Health Center has provided incalculable support to residents before their individual crises become community-wide problems; and

WHEREAS, the Center has grown to serve 6,000 residents annually – 3,400 through mental health, social service and education programs and 2,600 through mediation and violence prevention services; and

WHEREAS, the Center’s work saves lives and improves the quality of life for all residents and the Town as a whole; and

WHEREAS, the Center’s 50th Anniversary Campaign will increase awareness about mental health, celebrate healthy communities and raise funds for an expanded facility in order to sustain future services.

WHEREAS, in appreciation of the Brookline Community Mental Health Center’s immense contributions to the health, safety and welfare of the residents of Brookline,

BE IT THEREFORE RESOLVED, that we, the Board of Selectmen of the Town of Brookline proclaim the month of November as “BROOKLINE COMMUNITY MENTAL HEALTH CENTER MONTH”; and urge everyone in the Town to join the Brookline Community Mental Health Center in celebrating their 50th Anniversary.

BOARDS AND COMMISSIONS

The following candidates for appointment/reappointment to Boards and Commissions will appear for interview:

In Board of Selectmen October 28, 2008 Page 13 of 36 BOARDS AND COMMISSIONScont’d

Advisory Council on Public Health Dr. Anthony Schlaff

Dr. Anthony Schlaff- is the Director of the MPH Program at Tufts University School of Medicine – Department of Public Health and Family Medicine, and an Associate Clinical Professor where he teaches public health and preventive medicine to medical public health students. Dr. Schlaff serves on the Brookline Medical Reserves Corp.

WARRANT ARTICLES

Reconsideration of the Board’s vote on the following Warrant Articles for the November 18, Fall Town Meeting:

Article No. Title

23. Music School Lease (Fitzgibbons)

Chairman Daly made the motion for consideration.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action To reconsider Article 23.

Chairman Daly stated that the School Committee requested that the words “and Schools” be added to the last line in section 1. It is presented as a friendly amendment.

Selectman DeWitt added that this is a home rule petition; the addition would not change the substance of the Article.

Selectman Benka added that the Music School does not oppose the change, and it is not to be construed as a suggestion that the Music School would be asked to vacate the property.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action That the Town authorize and empower the Board of Selectmen to file a petition, in substantially the following form, with the General Court: In Board of Selectmen October 28, 2008 Page 14 of 36

AN ACT AUTHORIZING THE TOWN OF BROOKLINE TO LEASE TOWN- OWNED PROPERTY FOR AN ADDITIONAL TWENTY YEARS

Section 1 Notwithstanding any general or special law to the contrary, the Town of Brookline is hereby authorized to lease the town-owned property located at 19-25 Kennard Road, Parcel ID NO. 322/01-00 to Brookline Music School Inc. for another period not exceeding twenty years. Said time period is in addition to the twenty year period previously granted pursuant to Chapter 294 of the Acts of 1993. Any such lease shall be upon terms and conditions as the Board of Selectmen and School Committee shall determine to be in the best interest of the Town and Schools.

Section 2 This act shall take effect upon its passage.

WARRANT ARTICLES

Further review and vote of the following Warrant Articles for the November 18, Fall Town Meeting:

Article No. Title

2. Collective Bargaining Agreements (Human Resources)

Director of Human Resources Sandra DeBow stated that the Engineering Division and the Town has settled their contract. This is a two year contract.

Chairman Daly made the motion to reconsider Article 2.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action to reconsider Article 2.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action To approve and fund by an appropriation, provided for in the FY2007 (Item #22), FY2008 (Item #22), and FY2009 (Item #21) budgets, for the cost items in the following collective bargaining agreement that commences on July 1, 2006 and expires on June 30, 2009:

Brookline Police Association

all as set forth in the report of Sandra Debow, Director of Human Resources, dated October 24, 2008, which report is incorporated herein by reference.

In Board of Selectmen October 28, 2008 Page 15 of 36 : To approve and fund by an appropriation, provided for in the FY2008 (Item #22) and FY2009 (Item #21) budgets, for the cost items in the following collective bargaining agreement that commence on July 1, 2007 and end on June 30, 2009:

Brookline Engineering Division Associates

all as set forth in the report of Sandra Debow, Director of Human Resources, dated October 24, 2008 which reports are incorporated herein by reference.

Article No. Title

9. Noise Control Bylaw (Selectmen)

Chairman Daly stated that there have been a number of changes made by the Advisory Committee.

Fred LeBow, Noise Control By-law committee member stated that the Advisory Committee went over the Article in great detail. There was wide discussion on leaf blowers and their noise levels.

Chairman Daly would like to make an amendment in section 8.15.7.

Selectman Benka expressed concern about a provision that flatly exempts the Town’s DPW from any restriction in the Noise By-law for routine maintenance or anything that it may be. Perhaps there could be a waiver for an extended period of time. Mr. Lebow replied that it was developed because of the street cleaning. There were some complaints about street cleaning, and the Police went down and shut the street cleaning down. Chairman Daly stated that she feels it would not be fair to change this at this point. There have been many public hearings in regards to the Noise By-law. Mr. Lebow stated that perhaps if this becomes a problem it could be looked at in the future. Selectman Benka added that he supports the By-law and the effort put into it.

Selectman DeWitt asked about the noise level examples. Mr. Lebow reviewed Section 8.15.4, sound level examples. These examples are approximate decibel readings.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action That the Town amend Article 8.15 of the General By-Laws (The Noise Control By-Law) by deleting the current version in its entirety and replacing it with the following:

In Board of Selectmen October 28, 2008 Page 16 of 36

ARTICLE 8.15 NOISE CONTROL

SECTION 8.15.1 SHORT TITLE

This By-law may be cited as the "Noise Control By-law of The Town of Brookline".

SECTION 8.15.2 DECLARATION OF FINDINGS, POLICY AND SCOPE

(a) Whereas excessive Noise is a serious hazard to the public health and welfare, safety, and the quality of life; and whereas a substantial body of science and technology exists by which excessive Noise may be substantially abated; and whereas the people have a right to and should be ensured an environment free from excessive Noise that may jeopardize their health or welfare or safety or degrade the quality of life; now, therefore, it is the policy of the Town of Brookline to prevent excessive Noise which may jeopardize the health and welfare or safety of its citizens or degrade the quality of life.

(b) Scope. This By-law shall apply to the control of all sound originating within the limits of the Town of Brookline.

1. Provisions in this By-law shall not apply to the emission of sound for the purpose of alerting persons to the existence of an emergency or to the emission of sound in the performance of emergency work or in training exercises related to emergency activities, and in the performance of public safety activities.

2. Emergency generators used for power outages or testing are exempt from this By-law. However, generator testing must be done during daylight hours.

3. Noncommercial public speaking and public assembly activities as guaranteed by state and federal constitutions shall be exempt from the operation of this By-law.

SECTION 8.15.3 DEFINITIONS

(a) Ambient or Background Noise Level: Is the term used to describe the Noise measured in the absence of the Noise under investigation. It shall be calculated using the average lowest sound pressure level measured over a period of not less than five minutes using a sound pressure level meter set for slow response on the “A” weighting filter in a specific area of the town under investigation.

In Board of Selectmen October 28, 2008 Page 17 of 36

(b) Construction and Demolition: Any site preparation, assembly erection, substantial repair, alteration, destruction or similar action for public or private rights-of-way, structures, utilities, or similar property.

(d) Electronic Devices: Any radio, tape recorder, television, CD, stereo, public address system, loud speaker, amplified musical instrument including a hand held device, and any other electronic noise producing equipment. Exemption: two-way communication radios used for emergency, safety and public works requirements.

(e) Emergencies: Any occurrence or set of circumstances necessary to restore, preserve, protect or save lives or property from imminent danger of loss or harm.

(f) Decibels (dB): The decibel is used to measure sound pressure level. The dB is a logarithmic unit used to describe a ratio of sound pressure, loudness, power, voltage and several other things.

(g) Decibels “A” weighted scale (dBA): The most widely used sound level filter is the “A” weighted scale. This filter simulates the average human hearing profile. Using the “A” weighted scale, the meter is less sensitive to very low and high frequencies.

(h) Decibels “C” weighted scale (dBC): The “C” filter uses little filtering and has nearly a flat frequency response (equal magnitude of frequencies) throughout the audio range.

(i) Fixed Plant Equipment: Any equipment such as generators, air conditioners, compressors, engines, pumps, refrigeration units, fans, boilers, heat pumps and similar equipment.

(j) Frequency response: Is the measure of any system’s response at the output to a signal of varying frequency but constant amplitude at its input. The theoretical frequency range for humans is 20 - 20,000 cycles/second (Hz).

(k) Hertz (Hz): Cycles per Second (cps).

(l) Loudness: A rise of 10dB in sound pressure level corresponds approximately to doubling of subjective loudness. That is, a sound of 65dB is twice as loud as a sound of 55dB.

(m) Leaf blowers: Any portable machine used to blow leaves, dirt and other debris off lawns, sidewalks, driveways, and other horizontal surfaces.

(n) Noise: Sound which a listener does not wish to hear and is under investigation that may exceed the Noise requirements located in this Noise By-law. In Board of Selectmen October 28, 2008 Page 18 of 36

(o) Noise Injury: Any sound that: (1) endangers the safety of, or could cause injury to the health of humans; or (2) endangers or injures personal or real property.

(p) Noise Level: The Sound Pressure Level measurements shall be made with a Type I or II sound level meter as specified under American National Standard Institute (ANSI) standards.

(q) Noise Pollution: If a Noise source increases Noise levels 10 dBA or more above the Background Noise Level, it shall be judged that a condition of Noise Pollution exists. However, if the Noise source is judged by ear to have a tonal sound, an increase of 5 dBA above Background Noise Level is sufficient to cause Noise Pollution.

(r) Person: Any individual, company, occupant, real property owner, or agent in control of real property.

(t) Sound: A fluctuation of air pressure which is propagated as a wave through air.

(u) Sound Level Meter: An instrument meeting Type I or Type II American National Standard Institute (ANSI) standards, consisting of a microphone, amplifier, filters, and indicating device, and designed to measure sound pressure levels accurately according to acceptable engineering practices.

(v) Sound Pressure Level: The level of Noise, normally expressed in decibels, as measured by a sound level meter.

(w) Tonal Sound: Any sound that is judged by a listener to have the characteristics of a pure tone, whine, hum or buzz.

SECTION 8.15.3A MOTOR VEHICLE DEFINITIONS

(a) Gross Vehicle Weight Rating (GVWR): The value specified by the manufacturer as the recommended maximum loaded weight of a single motor vehicle. In cases where trailers and tractors are separable, the gross combination weight rating, (GCWR), which is the value specified by the manufacturer as the recommended maximum loaded weight of the combination vehicle, shall be used.

(b) Motorcycle: Any unenclosed motor vehicle having two or three wheels in contact with the ground, including, but not limited to, motor scooters and minibikes.

(c) Motor Vehicle: Any vehicle which is propelled or drawn on land by a motor, such as, but not limited to, passenger cars, trucks, truck-trailers, semi-trailers, campers, go-carts, snowmobiles, dune buggies, or racing vehicles, but not including motorcycles. In Board of Selectmen October 28, 2008 Page 19 of 36

SECTION 8.15.4 SOUND LEVEL EXAMPLES

The following are examples of approximate decibel readings of every day sounds: 0dBA The faintest sound we can hear 30dBA A typical library 45dBA Typical office space 55dBA Background Noise of a typical urban environment at night 65dBA Background Noise of a typical urban environment during the day 70dBA The sound of a car passing on the street 72dBA The sound of two people speaking 4' apart 80dBA Loud music played at home 90dBA The sound of a truck passing on the street 100dBA The sound of a rock band 115dBA Limit of sound permitted in industry by OSHA 120dBA Deafening 130dBA Threshold of pain 140dBA Rifle being fired at 3' 150dBA Jet engine at a distance of 100' 194dBA Theoretical limit for a sound wave at one atmosphere environmental pressure

SECTION 8.15.5 DUTIES AND RESPONSIBLITIES OF TOWN OF TOWN DEPARTMENTS

(a) Departmental Actions All town departments and agencies shall, to the fullest extent consistent with other laws, carry out their programs in such a manner as to further the policy of this By-law.

(b) Departmental Compliance with Other Laws All town departments and agencies shall comply with federal and state laws and regulations and the provisions and intent of this By-law respecting the control and abatement of Noise to the same extent that any person is subject to such laws and regulations.

(c) The Department of Public Works is exempt for Day and Night time operations for routine maintenance including but not limited to snow removal, street cleaning, litter control, and graffiti removal, etc. However, the DPW shall make every effort to reduce Noise in residential areas, particularly at night.

(d) Prior to purchasing new equipment, the Department of Public Works must consider equipment with the lowest Decibel rating for the performance standard required.

(e) Any proposed new or proposed upgrade for a park or recreation facility must incorporate appropriate and feasible Noise abatement measures during the design review process. In Board of Selectmen October 28, 2008 Page 20 of 36

SECTION 8.15.6 PROHIBITIONS AND MEASUREMENT OF NOISE EMISSIONS

(a) Use Restrictions

1. The following devices shall not be operated except between the hours of 8 (eight) A.M. to 8(eight) P.M. Monday through Friday, and from 9 (nine) A.M. to 8(eight) P.M. on Saturdays, Sundays and holidays:

All electric motor and internal combustion engine devices employed in yard and garden maintenance and repair. Turf maintenance equipment employed in the maintenance of golf courses, snow blowers and snow removal equipment are exempt from this section.

2. The following devices shall not be operated except between the hours of 7(seven) A.M. to 7(seven) P.M. Monday through Friday, and from 8:30(eight-thirty) A.M. to 6(six) P.M. on Saturdays, Sundays and holidays:

All devices employed in construction or demolition, subject to the maximum Noise Levels specified in Section 8.15.6b and 8.15.6c.

(b) Vehicular Sources: Maximum Noise Levels Measurements shall be made at a distance of 50 (fifty) feet from the closest point of pass-by of a Noise source or 50(fifty) feet from a stationary vehicle.

______MAXIMUM NOISE LEVEL dBA

Stationary Run-up or Speed Speed Limit 35 mph Limit Vehicle Class or less 35-45 mph

All vehicles over 10,000 lbs. 83 87 GVWR or GCWR All motorcycles 79 79 Automobiles and light trucks 75 75

(c) Construction and Maintenance Equipment: Maximum Noise Levels Noise measurements shall be made at 50 (fifty) feet from the source. The following Noise Levels shall not be exceeded: ______In Board of Selectmen October 28, 2008 Page 21 of 36 Maximum Maximum Construction Noise Maintenance Noise Item Level dBA Item Level dBA

Backhoe, bulldozer 90 Wood Chipper 90 concrete mixer running concrete dumptruck, loader, mixer,leaf vacuum roller, scraper, pneumatic tools,paver

Air compressor 85 Chainsaw, 85 solid waste compactor, tractor (full-size) Home tractor, 80 Generator 80 snow blower Lawn mower, 75 trimmer, Electric drills, 75 Leafblowers 67 power tools, sanders, saws, etc. ______

(d) Fixed Plant Equipment Any person shall operate such equipment in a manner not to exceed 10 dBA over the Background Noise and not greater than 5 dBA of Tonal sound over the Background Noise. However, if the fixed equipment is operated during night time hours, the night time Sound Pressure Level of the Fixed Plant Equipment must not exceed the average daytime Background Noise to compensate for night time operations, which is assumed to be 10dBA below daytime Background Noise. See Definitions Section 8.15.3(c).

Noise measurements shall be made at the boundary of the property in which the offending source is located, or at the boundary line of the complainant if the complainant is not a direct abutter.

(e) Electronic Devices and Musical Instruments

No person owning, leasing or controlling the operation of any electronic device shall willfully or negligently permit the establishment or condition of Noise Injury or Noise Pollution.

In public spaces, the existence of Noise Injury or Noise Pollution is to be judged to occur at any location a passerby might reasonably occupy. When the offending Noise source is located on private property, Noise Injury or Noise Pollution judgments shall be made at the property line within which the offending source is located.

In Board of Selectmen October 28, 2008 Page 22 of 36 Any and all Decibel Levels of sound caused by playing non-electrified musical instruments between 9 A.M. and 9 P.M. shall be exempt with exception of drums.

(f) Leaf Blowers

No person shall operate any portable Leaf Blower(s) which does not bear an affixed manufacturer’s label or a label from the town indicating the model number of the Leaf Blower(s) and designating a Noise Level not in excess of sixty-seven(67)dBA when measured from a distance of fifty feet utilizing American National Standard Institute (ANSI) methodology. Any Leaf Blower(s) which bears such a manufacturer’s label or town’s label shall be presumed to comply with the approved ANSI Noise Level limit under this By-law. However, any Leaf Blowers must be operated as per the operating instructions provided by the manufacturer. Any modifications to the equipment or label are prohibited. However, any portable Leaf Blower(s) that have been modified or damaged, determined visually by anyone who has enforcement authority for this By-law, may be required to have the unit tested by the town as provided for in this section, even if the unit has an affixed manufacturer’s ANSI or town label. Any portable Leaf Blower(s) must comply with the labeling provisions of this By-law by January 1, 2010. However, the owner’s of any Leaf Blower(s) operating after January 1, 2010 without a manufacturer’s ANSI label on the equipment, may obtain a label from the town by bringing the equipment to the town’s municipal vehicle service center or such other facility designated by the Town for testing. The testing will be provided by the town’s designated person for a nominal fee and by appointment only. Testing will be provided only between the months of May and October. If the equipment passes, a town label will be affixed to the equipment indicating Decibel Level.

Whether the equipment passes or not, the testing fee is non- refundable. Leaf blowers may be operated only during the hours specified in Section 8.15.6(a)(1). In the event that the label has been destroyed, the Town may replace the label after verifying the specifications listed in the owner’s manual that it meets the requirements of this By-law.

(g) Animals

No person owning, keeping or controlling any animal shall willfully, negligently or through failure to provide necessary equipment or facilities or to take necessary precautions, permit the existence of Noise Pollution or Noise Injury.

(h) Additional Noise Sources

No person shall emit noise so as to cause a condition of Noise Pollution or Noise Injury.

(i) Alternative Measurement Procedures

If it is not possible to make a good Sound Pressure Level measurement at the distance as defined for specific equipment throughout Article 8.15, measurement may be made at an In Board of Selectmen October 28, 2008 Page 23 of 36 alternate distance and the level at the specified distance subsequently calculated. Calculations shall be made in accordance with established engineering procedures.

(j) Noise Level Exclusions

Any equipment that is used to satisfy local, state, federal health, welfare, environmental or safety codes shall be exempt from limitations for hours of operation (See Section 8.15.6(a)), except to the extent otherwise determined by the Board of Selectman. The following equipment shall also be exempt from Section 8.15.6(a) if necessary for emergency work performed by the Department of Public Works:

jack hammers pavement breakers pile drivers rock drills or such other equipment as the DPW deems necessary, providing that effective Noise barriers are used to shield nearby areas from excessive Noise.

(k) Motor Vehicle Alarms

The sounding of any horn or signaling device as a part of a burglar, fire or alarm system (alarm) for any motor vehicle, unless such alarm is automatically terminated within ten minutes of activation and is not sounded again at all within the next sixty minutes, is prohibited. Any motor vehicle located on a public or private way or on public or private property whose alarm has been or continues to sound in excess of ten minutes in any sixty minute cycle is hereby deemed to be a public nuisance subject to immediate abatement. Any police officer who observes that the alarm has or is sounding in excess of ten minutes in any sixty minute cycle, who, after making a reasonable effort, is unable to contact the owner of such motor vehicle or, after contact, such owner fails or refuses to shut-off or silence the alarm or authorize the police officer to have the alarm shut-off or silenced, may abate the nuisance caused by the alarm by entering the vehicle to shut off or disconnect the power source of the alarm, by authorizing a member of the fire department or a tow company employee to enter such vehicle to shut off or disconnect the power source of the alarm and, if such efforts are unsuccessful, such officer is authorized to abate the nuisance by arranging for a tow company to tow the motor vehicle to an approved storage area or other place of safety. If a motor vehicle’s alarm is shut off or disconnected from its power source and a police officer determines that the motor vehicle is not safe in its then location and condition, the police officer may arrange for a tow company to tow the motor vehicle to an approved storage area or other place of safety. The registered owner of the motor vehicle shall be responsible for all reasonable costs, charges and expenses incurred for the shutting-off or silencing of the alarm and all costs of the removal and storage of the motor vehicle. The provisions of Article 10.1 or Section 8.15.10 shall not apply to this paragraph (k).

In Board of Selectmen October 28, 2008 Page 24 of 36 (l) Tonal Sound Corrections

When a Tonal Sound is emitted by a Noise source, the limit on maximum Noise levels shall be 5 dB lower than specified.

SECTION 8.15.7 PERMITS FOR EXEMPTIONS FROM THIS BY-LAW

(a) The Board of Selectmen, or designee, may give a special permit (i) for any activity otherwise forbidden by the provisions of this By-law, (ii) for an extension of time to comply with the provisions of this By-law and any abatement orders issued pursuant to it, and (iii) when it can be demonstrated that bringing a source of Noise into compliance with the provisions of this By-law would create an undue hardship on a person or the community. A person seeking such a permit should make a written application to the Board of Selectmen, or designee. The Town will make all reasonable efforts to notify all direct abutters prior to the date of the Selectmen’s meeting at which the issuance of a permit will be heard.

(b) The applications required by (a) shall be on appropriate forms available at the office of the Selectman. The Board of Selectmen, or designee, may issue guidelines defining the procedures to be followed in applying for a special permit. The following criteria and conditions shall be considered:

(1) the cost of compliance will not cause the applicant excessive financial hardship;

(2) additional Noise will not have an excessive impact on neighboring citizens.

(3) the permit may require portable acoustic barriers during Night.

(4) the guidelines shall include reasonable deadlines for compliance or extension of non-compliance.

(5) the number of days a person seeking a special permit shall have to make written application after receiving notification from the Town that (s)he is in violation of the provisions of this By-law.

(b) If the Board of Selectmen, or designee, finds that sufficient controversy exists regarding the application, a public hearing may be held. A person who claims that any special permit granted under (a) would have adverse effects may file a statement with the Board of Selectmen, or designee, to support this claim. In Board of Selectmen October 28, 2008 Page 25 of 36

SECTION 8.15.8 HEARINGS ON APPLICATION FOR PERMITS FOR EXEMPTIONS

Resolution of controversy shall be based upon the information supplied by both sides in support of their individual claims and shall be in accordance with the procedures defined in the appropriate guidelines issued by the Board of Selectmen, or designee.

SECTION 8.15.9 APPEALS

Appeals from a decision of the Board of Selectmen, or designee, shall be to the Superior Court. Judicial review shall be limited to whether the decision was supported by substantial evidence.

SECTION 8.15.10 PENALTIES

(a) Any person who violates any provision of this By-law shall be subject to a fine pursuant to Article 10.3 (Non-Criminal Disposition) in accordance with GL c.40. Section 21d or they may be guilty of a misdemeanor in accordance with Article 10.1 of the Town By-law and each violation shall be subject to fines according to the following schedule:

(1) $50.00 for first offense; (2) $100.00 for the second offense; (3) $200.00 for the third offense; (4) $200.00 for successive violations; plus (5) court costs for any enforcement action.

Each day of a continuing violation shall be considered a separate violation. Fines that remain unpaid after 30 days shall accrue interest at the statutory rate of interest.

(b) If a person in violation of the Noise Control By-law at a real property is an occupant but not the record owner of the real property, the Police, Health, or Building Departments may notify the owner of record of the real property of the violation. If a fine is issued in connection with excessive Noise at real property to someone other than the record owner of the property then the record owner of that property shall be notified. If there are any successive violations at least 14 days after the notification of the record owner but within a one-year period, then the record owner of the property shall also be subject to the fine schedule delineated in Section (a).

(c) An object that is the source of a noise violation may be seized by the Police if the violation is not mitigated within an hour and may be held until the fine is paid or for 60 days, whichever is sooner, and if unclaimed it may be sold at auction by the Town. Removal and storage costs of the object shall be paid by the person In Board of Selectmen October 28, 2008 Page 26 of 36 violating the Noise Control By-law, in addition to any fine imposed according to the schedule listed in Section (a).

(d) The Health, Building, Police and Public Works Departments shall have enforcement authority for the By-law. To report a violation, contact the appropriate department.

SECTION 8.15.11 SEVERABILITY

If any provisions of this article or the application of such provision to any person or circumstances shall be held invalid, the validity of the remainder of this article and the applicability of such provision to other persons or circumstances shall not be affected thereby.

The following will not be included as part of the By-law.

Footnotes:

ADDITIONAL DEFINITIONS NOT USED IN THE CURRENT BY-LAW

(a) Impulse Noise: Noise having a high peak of short duration of a sequence of such peaks. A sequence of impulses in rapid succession is termed repetitive impulsive noise.

(b) Intermittent Noise: The level suddenly drops to that of the background noise several times during the period of observation. The time during which the intermittent noise remains at levels different from that of the ambient is one second or more.

(c) Low-frequency noise: containing major components within the low frequency range (20Hz-250Hz) of the frequency spectrum.

(d) Reflection: Sound wave changed in direction of propagation due to a solid object obscuring its path.

(e) Sound absorption: The ability of a material to absorb sound energy through its conversion into thermal energy.

(f) Sound Transmission Class (STC): This is a measure of the extent of the sound reduction of noise going through a building element. It denotes the sound attenuation properties of walls, floors and ceilings used to construct building spaces. The higher the STC rating, the better the sound reduction performance of the construction.

(g) Structure Borne Noise: This refers to noise which is generated by vibrations induced in the ground and/or structure. These vibrations excite walls and slabs in buildings and cause them to radiate noise. This type of noise can not be attenuated by barriers or walls but requires the interposition of a resilient (acoustic isolators, springs, floating floors, etc.) break between the source and the receiver.

In Board of Selectmen October 28, 2008 Page 27 of 36 WARRANT ARTICLES cont’d

Article No. Title

10. Leaf Blowers (Fisher & Margolis)

Petitioner Andrew Fisher stated that there has been some research done on the noise level. He feels that 65 decibels (DB’s) that is being considered is too loud for leaf blowers. He feels that 45 DB’s are more acceptable. He feels that there is reasonable restriction of use presented in the Article.

Selectman Benka stated that there clearly are some enforcement issues. He feels that Article 9, the Noise Control By-law was written in good faith and thoughtful effort in addressing the issue of leaf blowers. He feels that they should let that By-law work. If it is found not to work, then perhaps something like this will be looked at.

Selectman DeWitt respectfully disagreed. There was recent frustration over the noise level from construction on Route 9. It proved that it is extremely hard to enforce the Noise By-law. This Article limits the number of days when leaf blowers are permitted making it easier to enforce. If comfortable noise level in a residential neighborhood is normally 45 DB and if it increases to 65 DB, according to the definition of loudness in the Noise By-law, that means 4 times louder, and is a huge increase that violates the right to quiet enjoyment in ones home. She feels that this is a thoughtful Warrant Article drafted to work supportively with Article 9, the Noise Control By-law.

Chairman Daly replied that the Noise By-law Committee came up with a design to address leaf blowers. There were many discussions and public hearings on it. They tried to come up with something that would be easily enforceable. The conclusion was that the change from the popular 80 DB’s that is commonly used now to the lower decibel of 67 DB’s would be a considerable improvement in leaf blowers. She feels that the Committee worked very hard and ended up with a fair document.

Selectman Mermell stated that she supports this Article in its spirit of being as “Green” as possible by reducing green house gas.

Selectman DeWitt moved Favorable Action on Article 10.

On motion, it was,

VOTED: 2-3 Favorable Action - Action Failed.

Roll Call DeWitt Aye In Board of Selectmen October 28, 2008 Page 28 of 36 WARRANT ARTICLES cont’d

Allen No Mermell Aye Benka No Daly No

Article No. Title

13. Zoning Map (Powell)

Selectman Benka stated that the Advisory Committee voted to support this Article with a change to 67 Winchester Street. He finds it difficult to have 67 Winchester Street zoned differently than 71 and 73 Winchester Street. He accepts the petitioner’s proposal to exempt 35, 37, and 43 Winchester Street.

Selectman Benka made the motion of Favorable Action on the proposal with the amendment that 67, 71, and 73 Winchester Street be zoned M1.

Petitioner Bill Powell agreed with Selectman Benka. He feels this makes considerable sense.

Selectman Allen stated that once you start looking at re-zoning you have to stop it at some point before it snowballs. This should be looked at not neighborhood by neighborhood, but by the entire town. He is against people looking at property and deciding how it should be zoned. That being said he does have concern about Craig Place. This is an area that could be developed into one large development.

On motion, it was,

VOTED: 4-1 Favorable Action That the Town amend the Zoning By-Law by changing the zoning of certain parcels on the Zoning Map as follows:

Roll Call Allen No DeWitt Aye Mermell Aye Benka Aye Daly Aye

In Board of Selectmen October 28, 2008 Page 29 of 36

Address Existing Zoning Proposed Zoning 7, 9 Craig Pl M- 1.5 F-1.0 11, 13 Craig Pl M- 1.5 F-1.0 15 Craig Pl M- 1.5 F-1.0 17 19 Craig Pl M- 1.5 F-1.0 219 Freeman St M- 1.5 F-1.0 221, 223 Freeman St M- 1.5 F-1.0 134 Babcock St M- 1.5 T-5 106 Naples Rd M- 2.0 T-5 37, 35 Winchester St M- 2.0 F-1.0 43 Winchester St M- 2.0 F-1.0 67 Winchester St M- 2.0 M-1.0 73, 71 Winchester St M- 2.0 M-1.0

In Board of Selectmen October 28, 2008 Page 30 of 36 WARRANT ARTICLES cont’d

Article No. Title

14. Zoning – Day Care Facilities (Shabelsky)

Chairman Daly stated that the zoning pertaining to daycare will apply to all Town daycares, not just one.

Selectman Benka has concerns with the fact that by special permit, this could allow over 20 children in a two family home. In working in single family districts there would be potentially less concern.

Director of Planning & Community Development Jeff Levine stated that with a ten child daycare, it would require a special permit. Parking would be one of the issues looked at when considering granting a special permit. There are about ten other large daycares operating in the Town, authorized by the State. If this Article were not to pass, there is a possibility that the Town would have to shut them down, or limited them to six children.

Selectman Allen is troubled by this. He is not in favor of referring this Article, but does not want to vote favorable action now. He requested that this Article be held until other options can be looked at, perhaps grand-fathering the larger daycare centers. It would clearly cause a hardship to families if their daycare provider is shut down. He agrees with Selectman Benka about the potential of multiple daycares in a condensed area, although he feels the potential of this is slim.

Selectman Benka would not be opposed to referring this back to the Zoning By-law Committee.

Selectman DeWitt agrees that it would not be appropriate to disrupt current childcare; however she has some concerns about how this would be implemented in Brookline. The Town needs to acknowledge the State’s licensing authority.

Jeff Levine stated that if it is referred, there would be several daycare centers deemed out of compliance. Selectman DeWitt asked who would be notified concerning the States license. Mr. Levine replied that it does not pass through the Planning Department.

Shaari Mittel of the Advisory Committee stated that she spoke with someone on the DEEC (State Department of Early Education & Care) asking if there is a requirement to register with the cities and Towns. There is none, the facilities are registered by the State. The State monitors the institutional daycare centers. The

In Board of Selectmen October 28, 2008 Page 31 of 36 WARRANT ARTICLES cont’d

Brookline Health department licenses all privately owned early childhood centers and private after-school programs not affiliated with the schools.

Regina Frawley TMM#16 stated that there seems to be some inconsistencies in single family zoning areas when it comes to traffic concerns. Some areas are not conducive to additional congestion.

Chairman Daly stated that the vote will be held.

Article No. Title

16. Zoning – Design Advisory Teams (Planning)

Selectman DeWitt stated that she raised the question of having a coordinated effort to address the multiple design review processes. She offered an amended version.

Selectman DeWitt moved Favorable Action on Article 16 as amended.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action That the Town amend Section 5.09.3.d. of the Zoning By-law as follows: Section 5.09 Design Review 3. Procedures d. Design Advisory Teams The Planning Board is authorized to appoint a Design Advisory Team (DAT) to assist it in design review of any project that requires a special permit under Section 5.09, Design Review. In the case of a Major Impact Project, or substantial modification to a Major Impact Project as determined by the Building Commissioner or Planning and Community Development Director, the Planning Board shall appoint a DAT. DAT review of a project shall be coordinated with any other applicable review of the same project by other Town Boards and Commissions. The DAT that shall consist of the following: one or more Planning Board member(s); professional architect(s), landscape architect(s) or other design related professional(s); and one or more neighborhood representatives. The DAT will provide professional design review assistance to the Planning Board and the Planning and Community Development Department in review of certain §5.09 projects which may have a significant impact on In Board of Selectmen October 28, 2008 Page 32 of 36 the character of the area. The Planning Board may, in its discretion, also appoint representatives from other appropriate Town boards and commissions to serve on a DAT, but only if when deemed necessary to insure coordinated project review. The Planning Board shall appoint a DAT at a regularly scheduled meeting where public notice has been provided pursuant to Section 9.08. At the direction of the Planning Board, the applicant may be required to meet with the DAT to discuss resolution of design concerns. Following a meeting with the DAT, the applicant must include in any further submissions its responses to issues raised by the DAT. The DAT may also submit a report to the Planning Board and the Board of Appeals for consideration.

Article No. Title

21 Taxi Medallions (Selectmen)

Transportation Administrator Todd Kirrane stated that the Advisory Sub- Committee had one change on the Article, changing “public meeting to public hearing”.

Associate Town Counsel Patty Correa stated that the full Advisory Committee has not voted on this Article yet.

Chairman Daly made the motion of Favorable Action with the Advisory sub- Committee’s amendment.

On motion, it was unanimously,

VOTED: 5-0 Favorable Action that the Town authorize and empower the Board of Selectmen to file a petition, in substantially the following form, with the General Court:

AN ACT AMENDING CHAPTER 317 OF THE ACTS OF 1974 (as amended on May 19, 2006) TO ALLOW THE TOWN OF BROOKLINE, THROUGH ITS BOARD OF SELECTMEN, TO SELL TAXI LICENSES

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. The purposes of this Act consist of the following:

a) to generate revenue for the Town of Brookline by selling licenses to operate taxis, and in doing so, balance any competing interests in maintaining the continuity of existing taxi businesses, acknowledging the investment by existing taxi license holders in their businesses, and augmenting the portion of the taxi fleet serving In Board of Selectmen October 28, 2008 Page 33 of 36 the town that meets the needs of its elderly and disabled residents and that minimizes the fleet’s detrimental impact on the town’s air quality and on the level of the town’s carbon emissions as a whole;

b) notwithstanding the requirements of General Laws Chapter 40, Section 3, and General Laws Chapter 30B, to create a mechanism for the town to sell taxi licenses that expedites the process to the extent possible, giving due consideration to the interest of town residents, existing taxi businesses and other stakeholders in having input into the process.

SECTION 2. Section 1 of chapter 317 of the acts of 1974 is hereby amended by striking out the second sentence and inserting in place thereof the following sentence: -

Except as otherwise provided herein, all statutes and by-laws applicable to transportation, vehicular licensing and traffic rules, regulations and orders shall apply to the division of transportation.

SECTION 3. Section 4 of chapter 317 of the acts of 1974 is hereby amended by striking out the first sentence of the first paragraph and inserting in place thereof the following sentence: -

Except as otherwise set forth herein with regard to taxi license sales, the Board shall have exclusive authority, generally consistent with the transportation policies of the Board of Selectmen and except as otherwise provided in this act, to take any and all of the following actions after public notice and at a public meeting, if it determines, by the vote of at least four members, that such actions serve the public safety, welfare, environment or convenience.

SECTION 4. Section 4 of chapter 317 of the acts of 1974 is hereby amended by striking out the second sentence of the second paragraph and inserting in place thereof the following sentence:-

The Board shall also have all authority previously granted to the Selectmen by virtue of the provisions of Section Twenty-Two for Chapter Forty of the General Laws, except with respect to the sale of taxi licenses as set forth in Section 4A below.

SECTION 5. Section 4 of chapter 317 of the acts of 1974 is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:-

Except as otherwise set forth herein with regard to taxi license sales, no such adoption, alteration or repeal of a rule or regulation shall take effect, except for special rules or regulations that are declared by the Board to be urgently required for public safety or welfare or are of temporary nature and are able to be effective for a period of not more than 60 days, until 30 days have expired after both publication in a newspaper published or distributed in the Town and action on any appeal petition filed under this section.

In Board of Selectmen October 28, 2008 Page 34 of 36 SECTION 6. Section 4 of chapter 317 of the acts of 1974 is hereby amended by inserting as the first sentence of the fourth paragraph the following sentence:-

Except as set forth herein with regard to taxi license sales, the following describes the appeal procedures applicable to any board action.

SECTION 7. Chapter 317 of the acts of 1974 is hereby amended by inserting after Paragraph 4 the following Paragraph 4A: -

Notwithstanding the provisions of General Laws Chapter 40, Section 3, General Laws Chapter 30B, or any other general or special law to the contrary, the board of selectman shall have the exclusive authority to sell taxi licenses by public auction, public sale, sealed bid or other competitive process established by regulations promulgated by the board after public hearing. The board of selectmen may entrust to the board broad discretion to take such actions as are necessary to implement this section and to sell taxi licenses, including, but not limited to, determining the number of licenses that shall be sold, the timing of any such sale(s), and any conditions and limitations pertaining to such sale(s) (including the power to revoke, suspend, renew and assign such licenses), except that the board of selectman shall approve sales prices and execute sales contracts. Proceeds from any such sale(s) of licenses shall be paid to the collector-treasurer of the town of Brookline for deposit into the general fund to be appropriated pursuant to the provisions of General Laws Chapter 40, Section 5. Notwithstanding the provisions of General Laws Chapter 30B, the board of selectmen may direct the board that in taking any action the board deems necessary to implement this section and to sell taxi licenses (including the adoption, alteration or repeal of rules and regulations after public hearing), the board may balance, in its discretion, the interest of Brookline residents in the continuity of existing Brookline taxi businesses, the interest of existing license holders in their investment in their businesses, the interest of the town in augmenting the portion of the taxi fleet serving the town that meets the needs of its elderly and disabled residents and that minimizes the fleet’s detrimental impact on the town’s air quality and on the level of the town’s carbon emissions as a whole, and the town’s interest in maximizing revenue generated from sales of taxi licenses. The board of selectmen may consider these factors in determining whether to agree to a taxi license sales price. Any appeal from the board of selectmen’s sale of a taxi license shall be to a court of competent jurisdiction.

The provisions of this section shall not apply to a license issued and outstanding on the effective date of this Act.

Any rules and regulations adopted, altered, or repealed by the board after public hearing in connection with implementing this section, including any rules or regulations adopted, altered, or repealed for the purpose of creating a property interest in the licenses and of undertaking the sales of taxi licenses, shall not take effect until 30 days have expired after publication of such rules and regulations in a newspaper published or distributed in the town and on the town’s website. Any appeal from the board’s adoption, alteration, or In Board of Selectmen October 28, 2008 Page 35 of 36 repeal by the board in connection with implementing this section shall be to a court of competent jurisdiction.

SECTION 8. This act shall take effect upon its passage.

Article No. Title

27. Resolution on Sidewalk Snow Removal (Safer)

Marty Rosenthal on behalf of the petitioner stated that the Advisory sub- committee recommended some revisions. There was some reference in the existing By-law that they wanted to look at. There is a revised version that the Board has not seen.

Chairman Daly had concern on this section, “…..establish a credible, well- publicized, fair, and readily available fee-based program, and/or a pool of seasonal employees or laborers, Town-employed and/or independent contractors, to help residents who cannot clear their own abutting sidewalks.” She stated that the DPW has tried to do this in the past and found it almost impossible. She would like to insert the word “attempt”. Chairman Daly is aware that it is a resolution, but is uncomfortable committing to something that cannot be done. Mr. Rosenthal replied that inserting the word attempt would be watering down what the intention is.

Selectman Allen asked who the intended parties to provide this service are. Mr. Rosenthal replied that there could be seasonal employees. Another option would be outside contractors, or perhaps initiating some kind of fee option. Selectman Allen asked about providing some kind of list of snow removal providers. Mr. Rosenthal stated that if you get the community together it could come up with something.

Chairman Daly added that seasonal workers may not be beneficial. There is potential for a worker’s compensation claims, unemployment etc.

The Board held the vote on Article 27.

Article No. Title

28. Resolution on Invasive Plant Species (Wolff)

Chairman Daly stated the Director of Parks and Open Spaces Erin Gallentine relayed that the Department is already addressing the issue of invasive plant species. In Board of Selectmen October 28, 2008 Page 36 of 36 WARRANT ARTICLES cont’d

Conservation Administrator Tom Brady stated that the Advisory Committee recommended some minor changes in the language.

Conservation Commission Chair Randolph Meiklejohn stated that the Commission had some concerns on the lack of acknowledgement in the resolution on what the Town has/is doing to address the issue. There is also a concern of plants on private property, and what steps can the property owner take to address the invasive plants. It is unclear what the intent for private property owners is.

Petitioner Bruce Wolff added that he is unclear on how to address the private property issue. There is information available on the Town’s website, and Brookline Greenspace provides a plant list.

Chairman Daly stated that she will look at the language and make some recommendations.

Selectman Benka stated it seems that the focus of the Article is educational and should be directed to the private party. He does not find the Article troublesome in what it says as it stands.

The Board held the vote on Article 28.

There being no further business, the Chair adjourned the meeting at 9:55 p.m.

ATTEST