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Sparks fly around Fourth turning Carnival into Circus

WILMINGTON – The location of the Fourth of July festivities hangs precariously in the balance as the decision to hold the carnival at the Swain School parking lot rests largely with the Zoning Board of Appeals.

In a letter to the Board of Selectmen, Zoning Board of Appeals (ZBA) member Daniel Veerman expressed his personal concern over an application submitted to the Board of Appeals that requested a Special Permit to have the carnival at the former Swain School site over a period of several days in July 2016 as part of the proposed “Fun on the Fourth Celebration.”

Veerman cited several potential issues with the site, but his main concern is the impact on the nine direct abutters to the property and what sort of liability, if any, might arise.

Veerman had voted against a similar plan in 2013 citing that the Board of Appeals was “not afforded ample opportunity to fully address concerns about the project during the public hearing process.”

In an attempt to avoid similar complications Veerman sought to explore ways to mitigate potential property damage. One idea was to procure temporary insurance for the abutters for damages caused by third party attendees at the carnival, which was rejected on the basis that liability insurance of this nature is difficult to obtain.

In addition, the possible indemnification of direct abutters was refused by Town Manager Jeffrey Hull, and the prospect of a formal bond process was found inadequate as it would not protect against damages caused by acts of third parties, but only damages caused by carnival vendor Fiesta Shows itself.

Veerman also cited in his letter, “it must be stated however, at that time and at no point since, has the Town, the applicant, or Fiesta Shows offered any alternative proposals to address this valid concern.”

As a result, Veerman proposed an escrow fund be established in the amount of $20,000 to pay for “modest property damage to a direct abutter,” and to also “reimburse a direct abutter for any increase in the property insurance or deductible that might be incurred due to a larger claim which would need to be referred to their insurance carrier.”

In a letter to the Board of Selectmen, dated January 24, 2016, Chairman of the Fourth of July Committee Scott Garrant informed the Board that in a December 28, 2015 meeting scheduled prior to a ZBA hearing held on January 13, 2016, Veerman informed Garrant that “he would not vote in favor of the Committee’s application unless the Committee, the Town or Fiesta Shows secured a ‘bond of insurance’ to cover property damage that his neighbors might incur by the hand of a third party or claims that might be asserted against his neighbors by third parties who might enter their property.”

“In an effort to offer an alternative method for addressing the concerns which formed the basis for Mr. Veerman’s demand, I contacted Chief Begonis and discussed the possibility of having two detail police officers specifically assigned to the School Street and Drury Lane area, at the expense of the Committee and/or Fiesta Shows. These officers would be present in addition to those which would already be in attendance under Chief Begonis’ command in the School Street and Middlesex Avenue location,” wrote Garrant.

Garrant continued, “Once Chief Begonis informed me that he could arrange for the two details, this proposed solution to Mr. Veerman’s demand was incorporated into the Committee’s presentation to the Board of Appeals on January 13th. Contrary to Mr. Veerman’s claim that the Committee has not offered any ideas, the Committee in fact offered this as an alternative to the unattainable insurance or bond which, at that time, Mr. Veerman was holding out as non-negotiable.”

Over the past two years, the Shriners has allowed the festivities to be held at their Fordham Road location, due to construction of the new high school and corresponding fields. During that time, the Board of Appeals rejected an application for a Special Permit to have the carnival at the Swain School property. “There certainly seemed to be a sentiment that was expressed by many certainly to me, I don’t want to speak for the Fourth of July Committee, but I think they would agree, to bring the event back to the Town Common,” said Hull.

Hull had spoken to Superintendent Mary DeLai about using the high school parking lot or the field, however, the area is a leeching field, raising concerns from the Public Works Director with additional concerns from DeLai about the possible impact on the new lot and its configuration which includes traffic islands, new lighting fixtures and new landscaping.

The discussion ultimately came down to the Swain School as a potential site for the carnival with all of the other events held on the Town Common.

“I think from one perspective, the potential of having the carnival in that location is helpful from a police perspective, because the focus can be on that side of the common as opposed to, in prior years, when it was all spread out it was a little bit more difficult for the police to contain and to monitor,” said Hull.

“Clearly we can all appreciate, and I certainly appreciate, the concerns of the neighbors. It is a compact area there, but we’ve attempted to work through that. I know the Fourth of July Committee had put together a proposal that scaled down the number of rides, curtailed the hours to some measure that the event would be running,” added Hull.

The proposal for raising $20,000 as an escrow fund could be a viable mechanism to compensate abutters, however Hull does not believe the Town should be contributing that sort of fund, looking at implications, non-profit, tax issues, and who would be tasked with determining the validity and appropriateness of claims that could potentially arise.

At this point, Fiesta Shows, the vendor for the carnival is offering to establish a fund to raise $10,000, but there are still many unanswered questions.

Selectman Mike Newhouse weighed in on the issue. “I think the Board of Selectmen should be trying to solve this problem. There should be a financial mechanism in place – the Board of Selectmen should impose certain conditions,” said Newhouse.

Further, Newhouse put the issue on the table as “a legitimate municipal expense,” for the Town to appropriate funds to ‘cover’ the other half of Veerman’s request.

Ultimately, in an effort to find a viable solution, Newhouse suggested making it a warrant article to be presented at Town Meeting in April. “When we look at the public sentiment to try and make this a reality, $10,000 in our budget doesn’t seem to me to be a reach,” said Newhouse.

Selectman Judith O’Connell, “I think that we’re looking for a perfect solution to an imperfect situation and there isn’t one.”

Ultimately, a motion was made by Newhouse to move that the Board of Selectmen support the appropriation of $10,000 to be applied to the Fourth of July activities in accordance with an article to be prepared by the Town Manager and Town Counsel.

The Board approved the motion with four votes and one abstention by Lou Cimaglia, who is on the Fourth of July Committee.

Wrapping up the consideration, Chairman Michael Champoux told Newhouse, “Thank you Mike, for a creative solution.”

Garrant however was not completely swayed by the vote, telling the Board, “Your appropriation and Mr. Newhouse’s comments assume that the Fourth of July Committee has a willingness [to do this] and I’m not committing to that on behalf of the Committee which hasn’t had the conversation to fund this account.”

At that point, Champoux recognized this comment as an ‘implied contingency’ telling the Board, “If it’s a moot point, then the motion that just we made goes away, and there won’t be a need for the article.”

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