MINUTES: November 5, 2012

Board members present: Jim Hall, John Paul Faignant and Stanley F. Rhodes III

The Meeting opened at 6:36 P.M.

All rose for the Pledge of Allegiance to the United States Flag.

The Board put off a review of the minutes of October 23, 2012.

Mr. James Goss, Attorney and Mr. Blair Enman, P.E. representing the owners of the Ponderosa Restaurant met with the Board regarding a waste water surcharge assessed against the Ponderosa Restaurant.

Mr. Goss presented correspondence and a site plan to the Board. Mr. Goss told the Board he was hired a week earlier by MTJ Enterprises to represent them in an ongoing problem with grease obstructions in the sewer line in the vicinity of the Ponderosa, the Red Roof Inn and Denny's Restaurant.

Mr. Goss said his clients want to get on top of the problem permanently. Mr. Goss said he present to summarize a way to identify conclusively what is going on in this area. He said he would then propose a way to solve it, permanently.

Mr. Goss referred to he diagram he submitted to the Board and he said it shows how the sewer is set up. He said there is a feeder line from the south from the Ponderosa. A center line from the Red Roof Inn and that Denny's comes down from the north. He said the lines join and then go under route 7 through another junction.

Mr. Goss told the Board that he has usage concerns with the line in question. Mr. Goss told the Board that the Denny's Restaurant is open for business more hours per week than his client's restaurant. Mr. Goss told the Board that the Ponderosa Restaurant has a 2000 gallon exterior grease trap. He told the Board that according to his information Denny's has a 50 gallon interior grease trap. Mr. Goss said the Red Roof Inn does not have a restaurant or a grease contribution.

Mr. Goss said the potential culprits are Denny's and the Ponderosa. Mr. Goss cited the size of the sewer line under route 7 and he described the grease mitigation measures taken at his client's restaurant. Mr. Goss said the grease trap is emptied every four moths.

Mr. Goss told the Board that Town Sewer Use Officer Mr. Joseph Zingale Jr., has strong feeling that the Ponderosa is the source of the problem. Mr. Goss said he has reviewed all of the prior engineering reports and that he can not tell one way or the other.

Mr. Goss said Mr. Enman has prepared a testing protocol so we can figure out once and for all who's causing the problem and how much of the problem is being caused by the parties. He said once we know this, and where it is coming from, he can propose a sort of a resolution to this. Mr. Goss said he is not convinced increasing the size of the grease trap at the Ponderosa will permanently solve the problem.

Mr. Enman said his sampling plan is pretty much a mirror of testing that Stantec recently did for the Town. He said his plan would sample from 11:00 A.M. to midnight on a Friday. He said he would sample for fats, grease and oil. He said sampling on Saturday would be from 10:00 A.M. to 9 :00 P.M. Mr. Enman said this would be similar to the Stantec testing.

Mr. Enman said he would not test on Sunday. He said the testing performed by Stantec on a Sunday did not mirror the operating hours for his client's restaurant. Mr. Enman said he would work with Mr. Zingale to gain access to a public manhole in order to test the Denny's restaurant.

Mr. Enman said he would sample the Denny's restaurant on a Friday for 24 hours beginning at 11:00 A.M. Mr. Enman said he would like to perform the test within the month.

Mr. Rhodes asked Mr. Enman a question regarding the manhole diagram Mr. Goss submitted to the Board. Mr. Rhodes asked Mr. Zingale to look at the diagram. Mr. Zingale said a manhole was left off the diagram.

Mr. Rhodes asked if the missing manhole had been inspected by the Town. Mr. Zingale said the manhole has been inspected by the Town. Mr. Zingale stated that he has seen a grease trap at the Denny's restaurant.

Mr. Rhodes said Mr. Goss and Mr. Enman have the Board's blessing to go ahead and do what they need to do to resolve the matter.

Clerk & Treasurer: Ms. Marie Hyjek reported:

  1. There has been a major turn out for early voting, nearly 600 individuals have voted.

  2. Will caution the poll workers to be very careful putting the ballots into the machines.

  3. Cited the fact the Board has received budget paperwork.

  4. Told the Board the Annual Pre- Town Meeting is Scheduled for January 21, 2013.

  5. Expects to have Town Report bids by December 4th. Ms. Hyjek said Rutland Printing printed the report last year.

  6. Informed the Board that Town Lister Mr. Howard Burgess would like to purchase Arc Map software at a cost of $1,300.00. Mr. Zingale explained that the Town has a copy with two licenses. He said he and Mr. Hathaway have copies on their computers. He said another copy would be required to run the software on Mr. Burgess's computer.

    She said the money would come from the “Property Map” & “Lister Training” budgets. Mr. Faignant said the Board should discuss at a what happens with the fourth copy of the Arc Map software.

  7. The office will be closed November 12 for Veterans Day.

  8. The office will be closed on November 22 & 23 for Thanksgiving Day.

  9. Ms. Hyjek cited Attorney Kevin Brown's letter regarding Town sewer payments to the City of Rutland. Mr. Zingale cited the section which states the Town must pay for regular users but not for new business users that are paying the five time rate.

    The Board discussed the matter and instructed Ms. Hyjek to pay the City of Rutland for regular users that have not paid but not to pay for new business owners that have not paid their sewer charges. Ms. Hyjek said in October 2009 she was told by the Board not to pay anything to the City until the Town had been paid. Mr. Faignant said the Town should do what the contract requires the Town to do.

Transportation Council & SWAC: Charles Shields reported:

  1. Informed the Board that the Transportation Council recently held a joint meeting with the State Transportation Board, which held a meeting in Rutland recently. Mr. Shields said the the Board largely gathers information and reports back to Vtrans. Mr. Shields said the Board is only a fact finding group and does not make decisions.

  2. Told the Board the next SWAC meeting is scheduled for November 15th.

Town Road Commissioner: Mr. Byron Hathaway reported:

  1. Informed the Board that the compactor box has been repaired and is ready to be returned to service.

  2. Informed the Board that Ms. Melinda Williams has requested a street name for her private drive, which is located off the Post Road. Mr. Hathaway told the Board that individuals have a hard time finding her residence. Mr. Hathaway said the Town Fire Department didn't know Ms. Williams was located on the private drive. Mr. Hathaway said there is presently two homes on the private drive.

    Mr. Hathaway said he told Ms. Williams that the Town would probably not give her driveway a street name because the Town's 911 ordinance requires three homes on a private before the driveway receives a street name. Mr. Zingale suggested Ms. Williams place her Post Road street number next to the Post Road so it can be seen. Mr. Hathaway said he would tell Ms. Williams to place her house number next to the Post Road.

  3. Informed the Board that the West Rutland Select Board will be meeting on 11-13-12 at 5:30 P.M., at which time they would like to discuss brine making with representatives from the Rutland Town Select Board. Mr. Faignant and Mr. Rhodes plan to attend the meeting.

  4. Told the Board he would not be able to attend the “Kick-off” meeting for the study of the proposed south-end connector road at the Rutland Regional Planning Commission. Mr. Zingale and Mr. Hall plan to attend the meeting.

Police Chief: Ed Dumas reported:

  1. Told the Board that all is going well.

  2. Informed the Board that Captain Washburn has purchased a police cruiser. Mr. Dumas said he is in the process of getting bids to install the lights and other equipment to go into the vehicle. Chief Dumas said he should have the price quotes for the next meeting.

    Mr. Faignant said Mr. Washburn will use as much of Mr. Faignant's former equipment as possible in the new cruiser.

Mr. Hall requested speed enforcement in Center Rutland. Mr. Dumas said he would arrange to have someone do speed enforcement.

Recreation Director: Mike Rowe reported:

  1. The Halloween party went well.

  2. Basketball registration is on-going.

  3. Both parks have been winterized and the water has been shut off.

  4. Informed the Board that the gate at Northwood Park is now being closed at 3:30 P.M. by the Highway Department. Mr. Hathaway said there are as many as four vehicles parking outside the gate, when it is closed at 3:30 P.M. He said he does not know if the grass will hold up if vehicles keep parking on the grass.

Mr. Rhodes read the Warning for the November 6th ballot items voters will consider. Mr. Rhodes read Article #2 pertaining to the Flory Plaza. Mr. Rhodes opened the floor to questions from the public.

Mr. Rhodes said the item is on the ballot because the Select Board decided unanimously to let the voters to decide on what they want to do. Mr. Rhodes said to do so is the democratic way.

Mr. Hathaway asked Mr. Rhodes to explain; what is the monkey on the Board's back and what is the legal basis for going on to private property and violating someone's property rights.

Mr. Rhodes said he could not answer the second question because he is not a lawyer. He said the monkey on the Board's back is that everyone is asking Board members when they are going to do something about Flory Plaza. Mr. Faignant said there is a legal mechanism in place in the statutes for a municipality to deal with a situation which creates a nuisance. He said a separate section in the law allows a municipality to act when a property is having an economic drain on the community.

Mr. Faignant said many individuals have cited the tax benefits a developed Plaza would contribute to the Town. Mr. Faignant said the property is an attractive nuisance, that it is dangerous and that it will collect varmint. He said it is not the kind of situation where you take pride in your Town.

Mr. Faignant said he is not sure if he would have voted to force a clean-up of the property. He said that it is right for the voters have a say in the matter and not the Board acting on their own. Mr. Faignant said if the warning item passes the Board would still have to follow all of the necessary steps. Mr. Faignant said if the Board started the process four or five years ago it still would not be finished. He said there are a lot of exit ramps along the way, in the event minds change.

Mr. Hathaway asked what guarantee he has that the money he has contributed to the property will get sold and redeveloped. Mr. Faignant said he would have no guarantee. Mr. Faignant said Mr. Hathaway might want to make the investment because it would make a better tax base and a more appealing corridor.

Mr. John Mahoney asked if the ballot item would be a binding vote. Mr. Faignant said it would be a binding vote. Mr. Mahoney cited the fact that early reports indicated the vote would be non binding. Mr. Faignant said it was reported incorrectly in the newspaper as being “advisory”.

Mr. Hathaway asked if the Town could be counter sued by the owners of the Plaza. Mr. Faignant said the Town could not be countered sued because the Town would go to Court to get the Court's permission to take the buildings down, put it back to field and put a lien on the property.

Mr. Hathaway said it would be a dangerous precedent since others would wonder who would be next. Mr. Faignant said every case is different. Mr. Hall said if something similar came up in the future the Board would probably follow the same procedure of letting the voters decide.

Ms. Esther Swett said it is her sense that there is something in the State statue for the owners to clean up their property. She questioned why the residents of the Town have to take care of the problem.

Ms. Swett questioned why a business would want to purchase the land from the Town of Rutland when they do not want to purchase the property presently. Mr. Faignant told Ms. Swett that there is no obligation unless there is a health or safety threat. Mr. Faignant said the warning item is to find out from the public if the Board should do something.

Ms. Swett asked if anyone knows whether the owners of the property have the money to take care of the property. Mr. Faignant said there are many family members involved since the Florys' grandfather's estate has never been settled. Mr. Rhodes said there are between 13 to 15 stakeholders involved. The Board and Ms. Swett also discussed other issues. According to Ms. Swett the Family has the financial means to address the problem. She said she would leave information with the Board.

Mr. Mahoney questioned if Emanate Domain could be used. Mr. Faignant said that to use Emanate Domain the Town would have to show necessity, which would involve a taking. Mr. Faignant said the Board is not considering a taking.

Mr. B.J. Hathaway asked what guarantee is there that the property (if cleaned up) would stay looking like a nice open parcel. Mr. Faignant said the Board would let the property grow up. He said there would not be any maintenance cost for the Town.

Mr. B.J. Hathaway asked if the proposed $250,000.00 would include legal expenses. Mr. Faignant said the amount does not include legal expenses. Mr. Faignant said it could cost $6,000.00 to $7,000.00 in legal fees.

Ms. Swett asked who came up with the clean up idea. Mr. Faignant said one of the owners (six or seven years ago) authorized the study of the property to determine what is needed to clean it up. Mr. Rhodes said the Board has heard repeatedly from members of the public as to doing something with the property.

Town Administrator: Mr. Joseph Zingale reported:

  1. informed the Board that he had checked with Stantec and that Mr. Greg Edwards said the Resource Systems Group proposed $6,500.00 charge to review the Town's proposed break in the limited access section of US Route 7 South is not unreasonable. Mr. Zingale cited the fact that new traffic count numbers would have to be collected in order to make the review. He said Mr. Edwards said most of the expense would be in collecting the data.

  2. Told the Board that Mr. John Zicconi, the Executive Secretary for the Vermont Transportation Board (VTB) has suggested that Mr. Zingale and others attend a December 6, 2012 VTB meeting in Montpelier to present the Town's Master Access Plan for review and comment.

    Mr. Zingale told the Board that when the VTB told the Town it had to produce and adopt a Master Access Plan there was nothing said about the VTB and the Agency of Transportation having to review and comment on the Town's Master Access plan. Board members discussed the matter with Mr. Zingale and instructed Mr. Zingale to contact attorney Kevin Brown regarding an opinion on the matter.

  3. Discussed scheduling a meeting between Mr. Rhodes, Mr. Faignant and attorney Mr. Kevin Brown.

  4. Informed the Board that Mr. Richard Baker is looking for $30,000.00 for the land he owns adjacent to the south side of Del Bianco Park at Dewey Field. Mr. Zingale said the Town would acquire an additional 100 feet to the south.

  5. Informed the Board that Mr. Peter Fisk of the Rutland Railway Association would like to attend the Board's November 20th meeting to discuss possible financial contribution from the Board.

  6. Told the Board that The Meadows will be adding 5,000 sq. ft. to house 10 to 12 additional dementia patients. Mr. Zingale said the patients would wear tracking bracelets, which would aid in locating of the individuals should they leave the property and get lost.

  7. Informed the Board that he has received a couple of complaints regarding panhandlers at the Green Mountain Plaza. The Board and Mr. Zingale discussed the matter and instructed Mr. Zingale to get a copy of an ordinance for the Board to consider.

  8. Mr. Zingale informed the Board that Mr. Enman proposed a testing plan that is not per the requirements of the Town's ordinance. Mr. Zingale said the ordinance requires a 24 hour composite sample.

Mr. Rhodes said the record should reflect that Mr. Nicholson, Mr. Denardo and Mr. Matteson were not present.

Regional Planning Commission Mr. Fred Nicholson reported:

Not Present

Planning Commission: William Matteson:

Not Present

Fire Chief: Joseph Denardo reported:

Not Present

Mr. Hall moved to adjourn the meeting at 7:50 P.M. Mr. Faignant made a second to the motion. The motion passed unanimously.