MINUTES OF THE CUMBERLAND TOWN COUNCIL

WEDNESDAY, APRIL 2, 2008

COUNCIL CHAMBERS, TOWN HALL

45 BROAD STREET, CUMBERLAND

REGULAR SESSION

 

The meeting was called to order at 7:48p.m. by Council President Higgins.  

 

The meeting opened with the pledge of allegiance to the flag.   

 

MEMBERS PRESENT:

 

Council President Higgins, Councilors Mutter, Ackerman, Lemois, Albuquerque, and Kirkpatrick    

 

Also present Mayor Daniel J. McKee, Thomas E. Hefner, Town Solicitor and Sandra M. Giovanelli, Town Clerk 

 

MEMBERS ABSENT:

 

Councilors Morris

 

GENERAL ANNOUNCEMENTS:

 

Councilor Lemois announced that he spoke with Councilor Morris today, she stated that her surgery went well and she is resting comfortably at home.

 

Council President Higgins announced for anyone who is present for the public hearing on ordinance no. 08-09, an Ordinance in amendment to the Town of Cumberland Comprehensive Community Plan Ordinance, at the request of Attorney Michael Kelly will be continued to April 16, 2008.

 

Council President Higgins also announced that resident Mike Scalzi, along with the Blackstone Valley Tourism Council, is coordinating a historic cemetery clean-up at the Elder Ballou Cemetery.  The clean-up will take place on April 19, 2008 from 8:00 a.m. to 12:00 noon.  If you would like to volunteer for this special occasion and be a part of this spring clean-up, please contact Mike Scalzi at mscalzi@cox.net. Refreshments will be provided by Dan's Management, a Dunkin Donuts/Baskin-Robbins franchisee and providing materials will be DePaults Hardware (yard waste bags) and gloves & garbage bags by the Blackstone Valley Tourism Council.  Volunteers need to bring rakes to help clean up leaves.  

 

Council President Higgins congratulated the Cumberland High School Hockey Team for winning the Division II State Championship.  He and Mayor McKee presented citations on behalf of the Town on Sunday at the annual banquet.

 

1.  Presentation of a Commendation to Patrolman Manny Nunes and Jason Gambuto, manager of the Church Street CVS, for professionalism, patience and reassurance shown surrounding an incident in which both of them averted a possible tragedy.  

 

Chief Desmarais stated that it was a pleasure for him to be here along with several members of the Police Department to recognize two individuals for their quick thinking and patience in averting a possible tragedy.  He acknowledges Officer Nunes’ and Jason Gambuto’s, a member of the community, for an outstanding job in preventing a possible suicide.  Chief Desmarais read the details of the situation into the record. 

 

Mayor McKee presented Officer Nunes with a letter of commendation and Jason Gambuto with a letter of appreciation for a job well done.

                                          

CONSENT AGENDA

 

A.  Acceptance of Minutes of the Regular Town Council Meeting of March 19, 2008.

 

B.  COMMUNICATIONS:

 

1. C-08-17 – A letter from the City of Warwick seeking support of a resolution that they adopted on March 11, 2008 relating to their request to the General Assembly to commission a study for the formation of a countrywide governmental services in order to provide a higher quality and more economic efficient way to provide services to Rhode Island residents and businesses 

 

2. C-08-18 – A letter from the Town of Burrillville seeking support of a resolution that they adopted on March 12, 2008 opposing House Bill 2008 - H7448 – An Act Relating to Parks and Recreational Areas – Public Use of Private Lands – Liability Limitations.

 

3.C-08-19 – A letter from the City of Warwick seeking support of a resolution that they adopted on March 11, 2008 regarding a Resolution to the General Assembly in Support of House Bill 2008-H 7108

 

4.C-08-20 – A letter from the City of Warwick seeking support of a resolution that they adopted on March 18, 2008 urging the Governor and the General Assembly to restore funding to the E-911 emergency system budget in fiscal year 2008-2009

 

5.C-08-21 – A letter from the Town of Smithfield seeking support of a resolution that they adopted on March 18, 2008 urging Towns to explore ways to reduce the cost of advertising Town matters

 

6.C-08-22 – A letter from the Town of Smithfield seeking support of a resolution that they adopted urging all 39 cities and Towns and the State of Rhode Island to adopt a comprehensive plan to reduce the State’s global warming pollution

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

LICENSES-

 

A.  VICTUALLING HOUSE LICENSE:

 

1.  An application for a relocation of a First Class Victualling House License from Michael Rebelo of Carelo’s, LLC d/b/a Carelo’s Pizzeria from 618 Broad Street to 235 Broad Street

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

2.  An application for a transfer of a First Class Victualling House License from Frances Booth of Stephanie’s Inc. to Steven J. Seagrave of Seagrave & Associates LLC d/b/a Broad Street Tap located on 433 Broad Street

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

3.  An application for a Third Class Victualling House License from Michael Sylvia for Round 10 Pizza located at 417 Broad Street

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ACKERMAN AND ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

4.  An application for a transfer of a Second Class Victualling House License from Vincent Medeiros of Archie’s Pizza to Vasilios Zafiriades for Vaz Restaurant, Inc. d/b/a Paul’s Pizza located at 1182 High Street

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR MUTTER AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

Councilor Mutter questioned an attached form that the applicant checked off “fast food” on whether that is a Town or State form.

 

Town Clerk explained that form is a Department of Health form.

 

Councilor Mutter asked the Town Solicitor if the applicant on the State form categorized his own business as fast food when he could have selected a full service restaurant does that alter the Council’s decision because if someone brought this up in a couple of years he doesn’t want anyone to say that the passed that. 

 

Mr. Hefner replied that he doesn’t see how it falls within the definition of a fast food restaurant within the Zoning Ordinance and he isn’t sure why the applicant checked that on the form.  He added that it is his opinion that their decision has no implication on what the applicant selected on the State Department of Health form but they can make it a condition of the approval. 

 

Councilor Lemois asked if the reason the applicant would need this application and instructions for food business from the Department of Health because they prepare foods.

Council President Higgins replied that is correct, because it is a restaurant.       

 

5.  An application for a Fourth Class Victualling House License from Demetrius Sampalis for KD Donuts, Inc. d/b/a Dunkin Donuts located at 4120 Mendon Road

 

Carl B. Lisa, Jr., 5 Benefit Street, Providence, was present on behalf of the applicant, KD Donuts Inc.

 

Council President Higgins asked the Town Clerk if everything is in order.

 

Town Clerk replied that they need to provide a copy of their permit to make sales at retail.

 

Mr. Lisa explained that the applicant is applying for a fourth class Victualling House License for KD Donuts, Inc. d/b/a Dunkin Donuts at 4120 Mendon Road.

 

Demetrius Sampalis, the owner of the establishment was present.

 

Councilor Mutter asked if the pending litigation could be explained to them before they get into the license.

 

Mr. Lisa explained that there is no pending litigation right now but there was a conference call with Judge Silverstein that Richard Kirby, the attorney handling that matter, can brief the Council on.

 

Richard Kirby, 72 Pine Street, Providence, explained that it is their position that there are no pending legal matters necessary for this Council to entertain because it is a standard Victualling House License.  He stated that there was a complaint for preliminary injunction, declaratory relief, which he did file out of an abundance of caution based on the minutes and the representation of the March 19, 2008 hearing before this Board.  He further explained that at this time that matter is pending and all likelihood the issuance of the license will allow the case to be dismissed as a matter of course; the court has set down time tomorrow if necessary for the matter to be heard. 

 

Council President Higgins stated that he was confused about the litigation issue and it is unfortunate that the Council’s actions at the last meeting were interpreted in the manner that they interpreted them.  He added that in any event they are going to give them a fair and unbiased hearing.  He explained that it seems that there is some kind of arrangement between the gas station owner and KD Donuts Inc that involves the sale of donuts, coffee and other breakfast items within the premise of the gas station.

 

Mr. Kirby replied that they are basically out sourcing a permitted use of the convenient store.

 

Council President Higgins asked if the arrangement is one of a lessee and a sub-lessee or is there some other business relationship that they are missing. 

 

Mr. Kirby explained that Dunkin Donuts is the sub-lessee of Nouria Energy, the lessee, and Dunkin Donuts is handing the sale of coffee and donuts with the rent based on the amount of success the sub-lessee has.

 

Council President Higgins commented that as he understood, the issue that has come up and troubling the Council is whether an independent business operating within a convenience store constitutes an incidental use, incidental meaning incidental to the main operation and the question is whether a second owner can conduct that incidental use or whether it has to be the primary owner.  Council President asked the Town Solicitor to state his legal opinion on whether or not a difference of ownership of the operation which is incidental to the main use is legally significant or not or is it the use itself.

 

Mr. Hefner stated his opinion that he gave earlier in executive session and one that he will give again is that they have a licensed gas station with a convenience store that is in existence by virtue of a special use permit issued by the Zoning Board three years ago.  He added that the same project was approved by the Planning Board approximately a year and half ago with no appeals filed.   He explained that what they now have is what he views to be the sale of coffee and donuts that he considers to be a use that is incidental to the main use as a convenience store and a gas station.  He continued to explain that as far as whether or not there is any prohibition from this type of arrangement, he stated there isn’t one but they have to isolate the legal issue of what is the main use of the property; it is a convenience store and a gas station.  He pointed out that it has the incidental use of coffee and donuts and they can have a separate license holder because the use is what controls this whole thing and not the issuance of the license.  Mr. Hefner stated that he doesn’t see any prohibition against this and there has been at least one case in the past where this Town has done it whether rightfully or wrongfully.  He explained that these types of operations are in existence in the State of Rhode Island and he sees no legal impendent to the issuance of a second license if in fact they meet all the other requirements.  He used as an example a grocery store operating in a Commercial-1 Zone with someone permitted to sell flowers in the store or on the property in the parking lot through a Hawkers’ License, he sees no difference between that example and this arrangement here.  He concluded by stating that his opinion is very strongly that this is an allowed legal use and if they meet all the State and local requirements, then they are entitled to the license.                              

 

Councilor Mutter spoke of the previous license that Mr. Hefner referred to occurred in 2004 and is included in the packet but the administrative form that is generated out of the Town Clerk’s Office for these decisions which is not new and was in existence at that time.  He explained that if they met all the requirements, there would be no reason to deny them and the form also states that in the absence of a communication from the department in the matter by the scheduled hearing date, the Council will take position that you do not object for any reason to the granting of this license so one could also assume that he had never saw this form that means no one objected.  He asked then in 2004, if they are using that example as precedence, and he never got one of these because he was sitting on the Council would it be outlandish to assume that they all met the approvals?

 

Mr. Hefner replied that he didn’t say that and he isn’t following Councilor Mutter’s line of questioning.  He stated that what he was trying to say is that there was a license issued to the gas station owner to operate a convenience store and another separate license.  He concluded that he doesn’t know what transpired in 2004 nor does he presume to know. 

 

Councilor Mutter stated that he doesn’t believe it is the Council’s job to go back to double check if they were in compliance with zoning ordinances because he assumed that if there were a problem someone would bring it their attention.  He also stated that when he passed that license he doesn’t think it was outlandish of him to think that it was in compliance but to now come back and say that he did it, kind of says to him, yeah maybe he did it but if he shouldn’t have done it, is that a reason that he should do it now.  He concluded that if this is the form the Council has to go, by then they better see it on every other license to come and they have a letter from Mr. Madden and an appeal on Mr. Madden’s decision so how can Mr. Madden give an approval knowing that there is an appealed filed. 

 

Council President Higgins stated that they received a letter from Mr. Madden with today’s date, which he read into the record, referring to Use Code 56 of the Code of Ordinances to conclude that the applicants request is considered to be an allowed use.   

Mr. Hefner stated that he is not sure why Mr. Madden referenced Use Code 56 because there is no reason to reference that as far as the Zoning appeal and whatever merit it might have if this license is granted and a zoning appeal is upheld than not only will the license get pulled but the use will be pulled so if there is anyone with any concern about issuing a license and having a license be grandfathered without having to worry about the Zoning appeal that wouldn’t be accurate. 

 

Councilor Mutter stressed that Mr. Madden did reference Use Code 56 in his letter and is what is in front of the Council to vote for this license and Use Code 56 is not allowed in Commercial-1 use. 

 

Mr. Hefner replied that doesn’t know why Mr. Madden referred to Use Code 56 but he does agree with Mr. Madden’s ultimate decision that it is an allowed use.   

 

Councilor Mutter clarified that Mr. Madden’s letter in fact refers to Use Code 56 to make the argument in order for the Council to make a decision, and if he is the Official in which he is basing his decision, Use Code 56 can’t be right and he has to be wrong.

 

Mr. Hefner replied that they would have to ask Mr. Madden but he agrees with his final conclusion.

 

Council President Higgins stated that the use has been referred to as a fast food use and asked Mr. Hefner for the definition of fast food in the code. 

 

Mr. Hefner stated that he does not have the code in front of him but he believes that Code 55 is the preparation of food on or off the premises for consumption on or off the premises and essential that it is more than incidental, meaning the primary use of the fast food restaurant is fast cooking, preparation, consumption and takeout.

 

Council President Higgins clarified that the primary use of the premises is fast food, not the restaurant.

           

Councilor Lemois stated that he would love to have Mr. Madden here to answer questions but he is not here tonight so he can allow him, to do that, he is having a problem understanding why he is basing his decision on Use Code 56.  He also asked if this is a Dunkin Donuts separately owned by a different company other than who owned the property, or will it run as a Dunkin Donuts according to the Dunkin Donuts lesser/lessee requirements and restrictions; he believes it is going to be run as a separate business with a menu as any other Dunkin Donuts, they are going to prepare food there they are not all going to be trucked in; he does believe some will be prepared off site but he does believe that they will be sandwiches prepared, heated, packaged and placed in bags to go.  They all know that a Dunkin Donut is not allowed in a Commercial-1; he supports the projects and he believes a simple zone change would have fixed this and without Mr. Madden present to answer questions he couldn’t support the granting the license and he is not sure if approving the license is approving the project but either way he is a little uncomfortable on his part.

 

Richard Kirby explained that all the things that Councilor Lemois described are also being preformed by Nouria Energy a company that this Council approved a Victualling House License to on March 19, 2008.  He added that Nouria Energy is preparing sandwiches, they are selling food and drinks they are just not going near donuts, coffee or egg sandwiches that the issue and they have allowed that there because it is part and parcel of a convenience store to sell pre-prepared food and drinks and the fact that Nouria Energy is out sourcing a better quality being Dunkin Donuts through another business is not changing the use of the property which the primary use of this property is a convenience store and gas station.  They would be allowed to have another vendor in there selling t-shirts if they needed special licensing from the Boston Red Sox and they wanted to stand at a counter and sell Red Sox t-shirts, they would be entitled to do that if that were a permitted use in a convenience store as an item, these items that are being sold are permissible of a convenience store.  With all that said he wanted to say that they are delving into zoning questions as the Town Council and Board of Licensing Commissioners’ that really aren’t the jurisdiction of the Board of Licenses.  They have a building official that has given them an opinion letter that there might be a reference to a site that Councilor Mutter might not agree with but the conclusion of the Building Official and Solicitor that this use is in compliance with zoning they meet all of the requirements under State Law except the Division of Taxation issue which understandably until that is issued the license won’t go forward but he doesn’t believe it is the Council’s or the Board of Licensing Commissioners’ job to interpret the zoning ordinance because that is the job of the Building/Zoning Official and the Zoning Board and the fact that there is an appeal before the Zoning Board that will take its administrative course.  But if they allow for anyone to file an appeal on zoning issue then this Council will continuously say that they will not issue an license because there is a zoning appeal no matter how specious it is or how much out of time it is, is not fair to anyone who acts in good faith reliance upon permits that are issued to move forward with any type of project.  He reiterated that all the descriptions made by Councilor Lemois about making sandwiches and selling those things are all going to be done by Nouria Energy anyway and they have allowed it that way to allow another company to out source a better quality of some of it is not contrary to the zoning ordinances or contrary to Board of Licensing Commission rules and regulations and he believes the license should just be issued.               

 

Council President Higgins clarified due Mr. Kirby’s comments that it is his position that this Council who was sworn under oath to uphold the Laws and Ordinances of the Town of Cumberland has no duty to insist that the zoning ordinances be enforced or to interpret them as a public official or to decide that they are being enforced. 

 

Mr. Kirby clarified his position that yes, the Council as sworn officials of the Town of Cumberland a enforcing the zoning ordinance and that all the rules and regulations of the Town are upheld but in this particular case they have a Building Official and Town Solicitor who are giving the same opinion on the Building Code and the Zoning Ordinance but now the Council goes into weighing the different equities involved under those opinions as to whether they accept some propositions or not that is the jurisdiction of the Zoning Board not the Board of Licensing Commissioners’.  If they have a Building Official blatantly ignoring the laws, rules and regulation in the Charter or Code of Ordinances then they have a situation where he would have to be brought in before the Council on a personnel matter or an enforcement action but that is not the way the opinion of your own staff is supposed to be handled to pick and choose which ones or which part they will accept, he believed that is really the jurisdiction of the Zoning Board. 

 

Council President Higgins stated that he respectfully disagrees with Mr. Kirby because it is this body’s job as a legislative body to act independently of the Administration as far as making its final determination.           

 

Councilor Mutter stated that he doesn’t actually disagree that strongly with some of Mr. Kirby’s comments and that is why he is sticking to the fact that the Building Official has authored a letter that refers to use code 56 which doesn’t allow what is being requested.  Because they are not coming back in 2 or 3 years and say that he passed this with the letter as the determination if it is 56 he is with them but if it is not than he needs a letter that is right he also thinks that no one here is going to tell him it is right but he needs it to be right because he isn’t doing it again. 

 

Councilor Lemois stated that Mr. Kirby comments that the current gas station owner would be preparing foods on site and then he went back to refer to sell pre-prepared foods and he believes there is a difference between one that they make on site or one that comes in pre-wrapped and ready to go.

 

Mr. Kirby clarified that the food to go that is sold at the convenience store are pre-made.

 

Council President Higgins stated this is a fine line because what has evolved is a use within the convenience store that was not really envisioned when these codes were adopted and there are inconsistencies of the code in areas that need to be clarified when they amend the zone ordinances.

 

Councilor Lemois stated that he agrees that there is some confusion with the current code but asked how that would be rectified.   He asked if it would be due diligence in getting a zoning variance just to be sure that they are upholding their current zoning laws rather than say that they are confusing so they should just let it go.

 

Council President Higgins explained that he had that conversation with Mr. Hefner earlier on that issue where Mr. Hefner gave an explanation where he termed the whole process a “Catch 22” and asked Mr. Hefner to please go into that conversation. 

 

Mr. Hefner stated that what is being suggested by at least someone in the last several weeks is that this company can come in and ask the Council for a zone change to Commercial-2, which is the first part of it, so if it is granted by the Council it would then require this company and applicant to then go back before the Zoning Board to ask for a special use permit to run a fast food restaurant, which it is not.                

 

Council President Higgins questioned whether a special use permit was needed for a Commercial-2.

 

Mr. Hefner continued to explain that if they change this from a c-1 to c-2 to qualify it as a fast food restaurant, which is what someone who wrote to the Town is suggesting, then they would have to go before the Zoning Board for a special use permit to run a fast food restaurant which he submits to the Council is a McDonald and a free standing Dunkin Donuts.  He concluded that some people have suggested is the answer is really not the answer to this issue.

 

Mr. Kirby added to Mr. Hefner’s explanation by stating that they would be engaging in all of these machinations for something that they actually aren’t, it is not a fast food restaurant, it is an out sourced portion of a convenience store and for the record this was all put before the Planning Board when it was approved by the Planning Board.  The Planning Director at the time endorsed the application and said it conformed with the zoning ordinance back in 2006.

 

Council President Higgins stated that what he has seen, at least from the record is that when this was initially proposed as a Mobile on the Run, owned by one business, where it got muddy was when they brought another business onto the premise.

 

Mr. Kirby replied that they are entitled to bring another business onto the premise.

 

Council President Higgins asked where he got that authority.

 

Mr. Kirby explained that it was on the plan.

 

Council President Higgins asked if it was on the plan that he was going to run a Dunkin Donuts inside the gas station.

 

Mr. Kirby replied yes, it was absolutely before the Planning Board Development Plan Review with extensive testimony before them, including traffic analysis just on Dunkin Donuts alone.

 

Council President Higgins asked Mr. Hefner if he had seen the transcripts Mr. Kirby is discussing.

 

Mr. Hefner replied that he is not aware that they knew it was an independent operation within the building but they were aware that it was a Dunkin Donuts and they were aware of the traffic count based upon a convenience store/gas station fast food use with a drive thru. 

 

Mr. Kirby stressed that before the Planning Board the Dunkin Donuts franchisee issue was brought up and the fully disclosed that it would be a separate franchisee running it.   

 

Council President Higgins stated that the problem is that the Planning Board doesn’t have the authority to grant special use permits.

 

Mr. Kirby replied that there wasn’t one needed before this.

 

Council President Higgins replied that is the whole point, but what they are really trying to interpret is when the Zoning Board issued a special use permit, did they grant them this use. 

 

Mr. Kirby replied that it was not required it was part of a convenience store and the focus of it being another business is inapplicable when it is a use and the use is an approved use. 

 

Councilor Mutter repeated that in order for him to approve this license he needs the check list crossed off and it is not because the Building Official hands them a letter; they need to make their decision and he sites the wrong code and he needs him to either fix it or explain why he used that particular code.  He stressed that he would like the record to show that there is no prejudice to this applicant because there will not be anyone who will scrutinize the approval form more than him.

 

Council President Higgins asked when the business is scheduled to open.

 

Tony El-Nemr, owner of the Shell station, stated that they are hoping to get the license granted tonight so they can open next week for Dunkin Donuts.

 

Council President Higgins asked if one week would cause them a hardship.

 

Mr. El-Nemr respectfully replied that it wouldn’t but the sooner the better because he has invested millions of dollars in this project and he wouldn’t have spent one penny if the Zoning Inspector didn’t issue them all the permits before they broke ground. 

 

Council President Higgins emphasized to Mr. El-Nemr that no one in the entire discussion has ever questioned the actual use or the facility as to being something that they are opposed to.  He stressed that what they are emphasizing is whether they are legally permitted to grant this license, which is the only issue.

 

Councilor Mutter addressed Mr. El-Nemr’s remarks about his investment by stating that they respect his investment and time and this is not an enjoyable conversation and he is not trying to give him a hard time.

 

Mr. Kirby stated that he hasn’t had the opportunity to see Mr. Madden’s letter and asked if he could have a few seconds to look that over.

 

Mr. Kirby was handed a copy of Mr. Madden’s letter to review.

 

Mr. Kirby respectfully stated to the Board that Mr. Madden’s letter dated April 2^nd said that the applicants request is considered to be an allowed use where he does stated Use Code 56?   But if they look at the use code one spot above Use Code 55.1 convenience store in a C-1 zone is an allowed use and he is suggested that this was a typo by Mr. Madden and in fact that his conclusion on the record is that it is an allowed use.

 

Councilor Mutter stated that if he didn’t make a typo and he meant Use Code 56 is this correct.

 

Mr. Kirby asked Councilor Mutter what his Use Code 56 reads.

 

Councilor Mutter stated that they have made the point that the victualling house license that they are talking about tonight is the Dunkin Donuts and it is not 2500 square feet.  But he is not an attorney and if one of the attorneys were to tell him that Mr. Madden was not wrong and he was basing his decision on Use Code 56 is that allowable on that property.  He assumed because he wasn’t getting an answer to that question from any of the attorneys present then he would like Mr. Madden to come before them and state whether it was a typo or not.

 

Mayor McKee stated that they will get the clarification one way or another.  Mr. Madden is recovering from pneumonia which is why he believes he is not be present.  He explained that the reason there is so much information regarding this issue is a result of information requested by different members of the Town Council, they were simply just being responsive to those requests and they will continue to do that if the Council feels they need any other information.  He concluded that there is no information that was provided in terms of trying to bag anyone in this issue.

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY TABLE TO APRIL 16, 2008.  VOTE 6/0.

 

B.  ENTERTAINMENT LICENSE:

 

1.  An application for a transfer of an Entertainment License from Francis J. Booth of Stephanie’s to Steven Seagraves of Seagraves & Associates d/b/a Broad Street Tap located on 433 Broad Street

 

Council Mutter asks if everything is in order before giving his vote.

 

Town Clerk replied that everything is in order.

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR MUTTER, AND IT IS UNANIMOUSLY VOTED TO APPROVE SUBJECT TO THE REQUIRED APPROVALS.  VOTE 6/0.

 

 

OLD BUSINESS

 

A.  ORDINANCES FOR PUBLIC HEARING:

 

1.  #07-12 – An Ordinance relating to the Senior Citizen Tax Deferment Program (last tabled from March 19, 2008)

 

Councilor Mutter explained that it is in the Finance Sub-Committee and they are scheduled to meet on April 14^th so he would like to table this matter to the next meeting.  He also noted that there it has been amendment that has been provided that will be before the Finance  

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR  ALBUQUERQUE AND KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO TABLE TO APRIL 16, 2008.  VOTE 6/0.

 

2.  #07-34 – An Ordinance relating to Naming Town of Cumberland Town Council Chambers in Honor of Everett Bonner, Jr. (tabled from March 19, 2008)

 

Public hearing opened at 7:55p.m.

 

Councilor Lemois stated that the ordinance sub-committee met and they reviewed this ordinance in conjunction with the governing ordinance.  He explained that the ordinance met the requirements by far and recommended passage.

 

Councilor Mutter read the ordinance into the record.

 

Raymond Lane, Town Sergeant, stated that this honor couldn’t be bestowed on a finer individual and personal friend.  He explained the Moe would go out of his way to help anyone and anybody at anytime.  He concluded the he lost a close friend and he thanks the Council for this presentation. 

 

Scott Partington, former Council President, stated that Moe was one of those people that once you met you never forget him.  He added that he was also a good source of comic relief, which was important back in the days when he was on the Council because currently this Council gets along well.  He concluded that it couldn’t be a finer tribute certainly fitting to great individual and he thinks this is great thing.       

 

Lorraine Hynes, former Council President, stated that a lot of people don’t know that the job of a Town Sergeant is to keep order in the Council Chambers but Moe was a guiding light for all of those who were on the Town Council.  She added that there were times in these Chambers that groups who were very difficult made things difficult for the Council, and it was a real pleasure seeing Moe Bonner in the back of the room. 

 

Anthony Nobrega, former Council Vice-Chair, stated that he and his brother grew up in the Valley so they always knew the Bonner family and Mr. Bonner was involved in so many things outside of this Chamber.  He expressed what a pleasure it was to watch Moe Bonner day in and day out.  He added that the Bonner family has done a lot for this Town and he is sure that they are very proud that these Chambers will be named after their leader.

 

David Chenevert, the former Council President, stated that these Chambers bring back a lot of old memories, some good and some bad, but he sat through many meetings where he looked across at Moe.  He continued to say that Moe was a very stabilizing influence on all of them and he was reflective of most of our Town employees are, dedicated and hard-working.  He concluded that Moe had a great family that he supported and he thinks this is a great honor for the family. 

 

John Jackson, the former Council President, stated that Moe had a very calming effect especially during a time when things often got very heated.  He added that Moe was a great husband, father and a friend to many.  He concluded that by stating that the State of Rhode Island has a tendency to name anything from a bridge to a building but he thinks this time in particular, dedicating these Chambers in Moe Bonner’s name is a great thing and it is well deserved.     

 

Michael Bonner explained that he was Moe’s son number four in the order of thirteen.  He was present to thank the Council on behalf of the Bonner family for the great honor of naming the Chambers after their father, a place where his father spent so much of his time.  He stated that his father probably watched more history being made in this Town than most people.  He believes that his father truly loved coming here and everyone he worked with and this is a fitting tribute to keep his memory alive for his family. 

 

Mayor McKee began by welcoming back all the Council Presidents and stated that their presence and support is a tribute to Mr. Bonner.  He explained that growing up he had the pleasure of knowing Mr. Bonner and much later growing up to be able to call him Moe then most importantly a friend.  He further explained that Mr. Bonner was a unifier able to bring several parties together, which was a special talent and skill.

 

Public Hearing closed at 8:10pm

 

Councilor Mutter recognized Town Sergeant, Raymond Lane, who was a driving force behind this ordinance being presented and has had the task to replace a personality and resume as strong as Mr. Bonner’s, and he has done so seamlessly.  He informed that Mr. Bonner span the Administration of Mr. Hayden, Mr. Stenowich, Mr. Alger, Mr. Gaschen and Mr. McKee, which is a testament of his commitment and his personal integrity and also the gentlemen in the Council that served under him.  He stated that in going through some of the stories when he met with the Bonner family there was one story that epitomize written by Doug Haden

 

Council President Higgins stated that there isn’t much more he can add to what has already been said but that Mr. Bonner as well as his family have been personal friends of his for many years.  He also stated that even though he wasn’t involved in politics while Mr. Bonner was the Town Sergeant, it is his understanding that there have only been three sergeants in the history of this Town and he thinks it is appropriate that all three of the were very good friends with each other and it is important that the tradition continued.  He concluded that he supports this with honor and gratitude to everyone who appeared tonight.

Councilor Mutter explained that during the Ordinance Sub-Committee’s deliberations, Councilor Morris stated that in regards to the ordinance that the actual dedication would have to be approved by the Council and it is also their intent to honor the other former Town Sergeants as well when they do the dedication. 

 

MOTION BY COUNCILOR MUTTER, SECONDED BY THE ENTIRE COUNCIL AND IT IS UNANIMOUSLY VOTED TO APPROVE BY A ROLL CALL VOTE.  VOTE 6/0.

 

Council President Higgins announced that from this day forward they are in the Everett “Moe” Bonner Jr. Council Chambers.

 

3.  #08-08 – An Ordinance authorizing “No Parking” Zones on Fisher Road (Presented by Council President Higgins on behalf of the Administration)

 

Public Hearing opened at 9:38 p.m.

 

Public Hearing closed at 9:39 p.m.

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR ALBUQUERQUE AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

 4.  #08-09 – An Ordinance in amendment to the Town of Cumberland Comprehensive Community Plan Ordinance  

 

Council President Higgins explained that the received a letter from Attorney Kelley’s Office requesting this matter be continued for two weeks.

 

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR ALBUQUERQUE AND IT IS UNANIMOUSLY VOTED TO TABLE TO APRIL 16, 2008.  VOTE 6/0.

 

NEW BUSINESS

 

A.  COMMUNICATIONS: 

 

1.  A request from the Mayor to discuss the Fair Share Education Funding Formula

 

Mayor McKee spoke about the meeting he attending last week at the State House regarding fair funding for the schools.  He explained that they were one of eleven communities that were invited to attend a joint hearing between the senate and the house where a Tennessee company was asked to prepare an unbiased report relative to all the formulas and property values. He continued to explain that they were one of eleven communities that were identified as severely under funded by the state.  He stated that the purpose of the report was if the pie, being $700 million, that is being distributed to the school departments was being redistributed based on a formula. He pointed out that at this meeting it was mentioned that at the end of the year Rhode Island will be the only State in the country that does not have a funding formula.  Mayor McKee informed that just today he was trying to get more information, which he will share with anyone who is interested but wants everyone to know that at this moment, based on this non partisan unbiased report, the Town of Cumberland, one of eleven communities if they redistributed the $700 million on a formula are under by 4.3 million dollars.  He stressed that this formula is being accepted by over thirty states that were used and it is an accepted practice in terms of how to distribute state aid to local school departments.  He stressed that as they enter the budget conversations and they as continually mention to the school department, teachers, parents and administration that our argument or debate needs to be brought to the State House, the debate is not one that is meant to be made in these Chambers on this particular issue.  He points out that it only reinforces the issue when they look at the fact there are thirty-six school districts in the State of Rhode Island, eleven of them have been identified as being under funded and Cumberland is perhaps the highest percent under funded at least in the top five if not higher. He concluded that this information verifies what they have been distributing and he hopes that this will become the Town’s main focus to have some fair funding so the taxpayers will get the relief they deserve.

 

2.  A request from Chief Desmarais to present the Police Department’s Annual Report   

 

Chief Desmarais, Deputy Kinch and Captain Quinn were present the Cumberland Police’s Annual Report.  Chief Desmarais started by thanking Mayor McKee, the police officers in his department, the Council, and each and every department head for their support.  He explained this report shows a partnership and their year end report is a comprehensive report that gets bigger each year simply because of the hard work and dedication of each member of the Police Department.  He stated that this report is a very open accounting of everything that done from grievances filed, internal affairs reports, to the use of force reports.  He points out that they will see that there is an increase in forces and that is because their report purposes.  He continued to explain that they had two incidents where hand guns were involved, four officers, and they reported those openly and honestly.  He concluded by stating that he is proud to present this report on behalf of the hardworking men and women at the Police Department.

 

Council Presidents Higgins stated that this was very well done as usual and it provides a good snapshot of where they are. 

 

Mayor McKee echoed Council Presidents Higgin’s comments and added that he is very happy to work with the Chief, Deputy Kinch and Captain Quinn and the rest of the Department who are all very interactive with the community.     

 

Councilor Lemois stated that this report speaks volumes of their accomplishments and are all well noted.  He also stated that their accomplishments are well noted by the people during their interactions with the people of this community.

 

Councilor Ackerman, who frequently calls about traffic calming issues, thanks the Chief and his staff and acknowledges her appreciation of their efforts.

 

B.  CLAIMS: 

 

1.  Attorney Arthur E. Chatfield, III, PC c/o Lekdias Fonseca 

 

Referred to the Solicitor’s Office

 

3. RESOLUTIONS:  

 

1.  R-08-31 – A Resolution Recognizing April 24, 2008 as “Rhode Island Day of Remembrance of the Armenian Genocide” 

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

2.  R-08-32 – A Resolution in Support of legislation to restrict temporary disability benefits for Town Rescue Department personnel for injuries sustained or illness contracted in the line of duty

 

Council President Higgins asked if this resolution is in support of town or statewide legislation.

 

Mr. Hefner stated that this resolution is specifically for the Town of Cumberland because of a loophole in the law.  He also stated that this has been in the collective bargaining agreement since before he got involved in the labor.  He explained that when you collect TDI it is for a non job related injury or illness, as long as the group of employee pays into the TDI fund.  But when they are injured on the job and they are subject to the workers compensation laws, Title 28 Chapters 29, 30 and 31 they are not eligible for TDI.  He also explained that TDI laws specifically refer to the fact that if you are collecting under workers compensation you do not get TDI but the catch is police and fire are part of the TDI system and when injured on the job under 45-19-1 they directly collect from the city or town of who employees them.  He pointed out that because 45-19.1 is not in the exclusive language, one can get injured on the job, collect their full pay from the town and go out collecting TDI, which is 65 percent of your pay or so.  He informed that recently, it came to his attention that there was three separate individual all collecting 45-19-1 and in cross checking realized they were also collecting TDI.  Mr. Hefner considered this as double dipping and it is currently being arbitrated with North Smithfield’s Fire Department.  He believed that this is something that is waiting to be abused and the only way it is going to be done in this Town is if they put a Town or City bill in.

 

Council President Higgins asked Mr. Hefner if it is in the contract, how can they legislate it out of the contract; they just renewed the contract why wasn’t it take out then. 

 

Mr. Hefner replied that is wasn’t an issue then.  He concluded that this is contributing to the overtime problem and it is being abused.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR KIRPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

3.  R-08-33 – A Resolution in Support of Passage of the $15,000,000 Open Space Bond Referendum

 

Councilor Ackerman explained that she is putting forward this resolution in recognition of the importance open space has to our community.  She added that for Cumberland the passage of State Open Space Bond means money sent directly to us in the form of grants and matching funds to preserve farm land and other vulnerable areas as of today 16 other Rhode Island communities have submitted similar resolutions to the State with the goal of getting the General Assembly to authorize a bond referendum in November of this year.  She introduced Kevin McDonough of the State Land Trust who she invited to come before the Council to explain the importance of this resolution.   

 

Kevin McDonough of 470 Division Street, East Greenwich, Rhode Island formerly of Cumberland, was present to speak to the purpose of this resolution.  He explained that the purpose of this resolution is to ask this Town Council to join the 16 other communities thus far from the State that have passed resolutions of support as well as the Leagues of Cities and Towns.  He added that the history of open space preservation in Rhode Island is strong.  He read into the record a short prepared message regarding the quality of life through open space and how to continue to preserve that open space.  He pointed out that the success of the State’s Open Space protection is due to the generosity of private donors charitable foundations, and the tax payers and voters have overwhelmingly supported funding land protection through open space bond referendum and because of the financial crisis in State Government the possibility exists that a 2008 open space bond referendum may not be on the ballot.  He explained that the decision to offer this choice to the elector is currently with legislators who must authorize the request and submit it to the public.  He further explained that the Rhode Island Land Trust Council has met with the Governor’s Policy Staff and recommended a request for a $15,000,000 bond for the 2008 ballot.  He stated that this amount represented level funding, yet it is a tiny percentage of the total needed to support the many worthy land conservation projects including funds to preserve the State’s working farms.  He stated that they believe that the decision of whether or not to allocate additional funds for the cause of Land preservation should be available to voters through the referendum process.

              

Councilor Ackerman made the statement that she believes that it is very important to get the vote that people have a say in this State where they want their tax dollars to go. 

 

Joe Pailthorpe was present in support of the passage of this resolution for a bond referendum and let the people decide.  

 

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR LEMOIS AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

4.  R-08-34 – A Resolution Authorizing the filing of the 2008 Community Development Block Grant Application 

 

Geraldine Turbeville, the Town Planner explained that every year the Town of Cumberland, as small city, applies for the Community Development Block Grant funds that are on a competitive basis.  She stated that the passage of this resolution would empower the Mayor to file the application.

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

5.  R-08-35 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Interbuild, Inc. of Lincoln, Rhode Island in an amount not to exceed $17273 for the installation of Foam Insulation to the Exterior of new construction as a portion of Part II of the CHS2010 Phase III Project at Cumberland High School 

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR LEMOIS, AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

6.  R-08-36 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Commercial Electric, Inc. of East Providence, Rhode Island in an amount not to exceed $2,685 for Electrical Services as a portion of Part II of the CHS2010 Phase III Project at Cumberland High School

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0

 

Councilor Mutter questioned the accumulate amounts between resolution 08-35, 08-38, and 08-40.  He stated that it can’t go beyond $30,000 per council meeting without a Finance Subcommittee Meeting.

 

Mr. Morris from Dimeo stated that the resolution for landscaping and other work haven’t been done yet, so the money has not been spent.

 

Councilor Mutter stated that if this exceeds the $30,000 and the work has not been done they should put it on the next agenda.

 

7.R-08-37 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Columbus Door Company of Warwick, Rhode Island in an amount not to exceed $1,450 for additional Doors and Hardware as a portion of Part III of the CHS2010 Phase III Project at Cumberland High School

 

MOTION BY COUNCILORMUTTER, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

8.  R-08-38 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Dillon Acoustical Ceiling, Inc. of Smithfield, Rhode Island in an amount not to exceed $3,293 for the Installation of an Acoustic Ceiling and the Retiling of several areas as a portion of Part III of the CHS2010 Phase III Project at Cumberland High School

 

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

9.  R-08-39 – A Resolution Authorizing an Increase to the approved amount of the existing contract with RI Welding and Fabricating of Providence, Rhode Island in an amount not to exceed the net cost of $76 for changes to the Transitional Building Elevator and the Servery for the CHS2010 Phase III Part III Renovation at Cumberland High School

 

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

10. R-08-40 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Central Nurseries, Inc. of Johnston, Rhode Island in an amount not to exceed $19,872.60 for additional plantings and mulch as a portion of Part II of the CHS2010 Phase III Project at Cumberland High School

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO  APPROVE AS AMENDED. VOTE 6/0.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ACKERMAN AND COUNCILOR KIRKPATRICK AND IT IS UNANIMOUSLY VOTED TO APPROVE. VOTE 6/0.

 

12. R-08-41 – A Resolution Authorizing an Increase to the approved amount of the existing contract with D.M. Lonergan Paint & Wallpaper Company of Warwick, Rhode Island in an amount not to exceed $2,687 for new Tracking for the StageCurtains related to the CHS2010 Phase III Part III Renovations at Cumberland High School

 

MOTION BY COUNCILOR ACKERMAN, SECONDED BY COUNCILOR MUTTER AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

13. R-08-42 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Robert F. Audet, Inc. of East Greenwich, Rhode Island in an amount not to exceed $5,003.19 for Improvements to the Security System related to the CHS2010 Phase III Part III Renovations at Cumberland High School

 

MOTION BY COUNCILOR ALBUQUERQUE, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

14. R-08-43 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Robert F. Audet, Inc. of East Greenwich, Rhode Island in an amount not to exceed $48,726.69 for the Installation of Dedicated Circuit in each Classroom related to the CHS2010 Phase III Part III Renovations at Cumberland High School

 

Mr. Morris states that four classrooms were connected to one circuit and as soon as the computers were plugged in it blew, with the purchase of 800 computers and new technology that the circuit system needs to be replaced for the existing building. Adequate services have been installed in the new construction. Mayor McKee asks if they will be getting the credit back. Mr. Morris responded it is an issue that is before the Building Committee.

 

MOTION BY COUNCILOR LEMOIS, SECONDED BY COUNCILOR MUTTER AND IT IS UNANIMOUSLY VOTED TO APPROVE.  VOTE 6/0.

 

15. R-08-44 – A Resolution Authorizing an Increase to the approved amount of the existing contract with Robert F. Audet, Inc. of East Greenwich, Rhode Island in an amount not to exceed $2,499.95 for Electrical Services related to the CHS2010 Phase III Part III renovations at Cumberland High School

 

Councilor Morris asks if the Science Wing is completed in the new building. Mr. Morris responds it will be completed by the end of the month.

 

MOTION BY COUNCILOR MUTTER, SECONDED BY COUNCILOR ALBUQUERQUE AND IT IS UNANIMOUSLY VOTED TO APPROVE.VOTE 6/0

 

D.  ORDINANCES FOR PRESENTATION AND PERMISSION TO ADVERTISE:

 

 1.  #08-10 – An Ordinance Authorizing the Placement of Stop Signs on Main Street at the Intersection of Factory Street (Presented by Council President Higgins on behalf of the Administration)

 

For the records Presidents Higgins clarifies that this ordinance is not presented by him, but by Councilor Albuquerque.

 

PUBLIC COMMENTS:

 

Mr. Gerald Ferguson of 111 McGirr Street comments on the improvements and the clean up of the site formerly know as Gene’s Junk Yard, since the new owner took over. He states that the town has dug and placed rocks at the end of Dexter Street which help with the drainages. He thanks the council for approving it.

 

ADJOURNMENT:

 

MOTION BY COUNCILOR KIRKPATRICK, SECONDED BY COUNCILOR ACKERMAN AND IT IS UNANIMOUSLY VOTED TO ADJOUNR AT 10:11P.M. VOTE 6/0.

 

 

________________________________

Sandra M. Giovanelli, Town Clerk