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Chairman: William Filsinger
Members Present: Janet Lombardi, Arlene Murphy, Larry Campo, Brad Wyatt
Members Absent: Rob Cotter
Recorder: Tape
Mr. Filsinger called the meeting to order at 7:00 p.m.
Michael Holyoak, 18 Boulder Way (Application for a Variance) – Mr. Filsinger opened the hearing. Mr. Holyoak requested the ZBA to approve the straightening of Boulder Way, which is a private way on Rocky Pond Road. He presented the certified mail receipts. Mr. Filsinger appointed Larry Campo to fill in for Rob Cotter on this matter. Mr. Holyoak presented the plans with the engineer stamp as requested. Mr. Filsinger asked if Mr. Holyoak is asking the board to grant variances on property he doesn’t own, to which Mr. Holyoak replied “correct”. Mr. Holyoak was asked to explain the situation to the board. He owns Map 33, Parcel 13 and Parcel H on the opposite side. The plan shows the existing right of way that runs past both properties. He is
asking to straighten it out, which involves two abutters. Ms. Lombardi said he would require legal documents signed by the abutters stating they were in agreement. He said he has spoken to an attorney, but said that if the board would not agree to it, there was no reason to get further involved. It was also explained to him that the abutters do not sign the plan, the board does. The engineer stamps it and any approvals are signed by the board, not the abutters. Ms. Lombardi said an agreement would need to be drawn up extinguishing the current right of way and the establishment of a new one. He was advised by the Planning Board to come before the ZBA because of non-conformance. He is proposing to build a house and trying to straighten the road get the distance/setbacks from the road. Mr. Holyoak said he received the abutter’s permission before he began the process. Mr. Filsinger said that he should obtain a land attorney
and put forth a plan of what is needed to transfer property. Ms. Lombardi said the board would require written consent from the abutters. She suggested they be petitioners along with Mr. Holyoak. Mr. Filsinger suggested a joint application. Ms. Lombardi asked if there were any subsequent issues other than changing the right of way and what zoning relief the board would be giving. Mr. Filsinger said dimensional requirements. Ms. Lombardi also suggested all deeds be prepared, obtain notarized assents from the abutters affected, and have them held in escrow until approved by board, or withdraw the application and have a three-party petition. Ken Sydow, abutter and Trustee of Rocky Pond Realty said that the right away exists through the 3 ½ acres of small parcels. The deed that he has states “said lot is free from all encumbrances except the right of way to pass and re-pass of any kind of vehicle to the land”. He
thinks the confusion for the Planning Board or subdivision is because he has an approved subdivision for two lots and has a letter from them based on this. Mr. Holyoak’s change would mean the subdivision approval would have to be reopened with them to make changes to what they previously approved, which was to upgrade Boulder Way as it exists, where it exists. Ms. Lombardi asked if they change the right of way, does he have to change the subdivision. Mr. Sydow said they were concerned with opening his subdivision, which he is not going to do. However, he fully supports what Mr. Holyoak is trying to do, and, in fact, the road is where the road is. The dimensional requirements of the 3 ½ acres today put on AutoCAD is not going to match the original plan done back in the 20s or 30s. The only concern he would have is that Boulder Way not be smaller. To his knowledge it is not defined as a current width of 10’. Deeds do
not reflect that, measurements do not reflect that. It has been defined by the court as varied in width from 10’ to 12’, but what he has done is a good thing because the fire access is better. He absolutely supports it. He wants to make sure that the final plan allows for the fire trucks and safety vehicles to get through. Mr. Filsinger said he had a choice either to withdraw the application and come back with a joint application, or proceed with this application. Mr. Holyoak withdrew the application. He asked if Mr. Filsinger would speak with Mr. Baker since he was the one who researched and told him what he needed to do. Mr. Filsinger agreed and will also contact Town Counsel to get his recommendation and let him know. Mr. Filsinger made a motion to close the Public Hearing; Ms. Lombardi seconded; all in favor; none opposed.
Habitat for Humanity Public Hearing (continued) – 1 Mill Road Circle (Application for a Comprehensive Permit) – Mr. Filsinger opened the hearing. Attorney Robert Knapik, Board Member of the Habitat for Humanity Metro/West Greater Worcester was present, along with Harriet Lebow, Executive Director, and Howard Drobner. He said they submitted the comprehensive permit application in June and the Public Hearing opened on August 2nd. It was continued to this evening for the purpose of obtaining additional information from them which included a copy of the Order of Conditions issued by the Conservation Commission, a copy of the Regulatory Agreement, and the Deed Rider stating what the units and the project would be bound by. He also provided a draft decision for review on the
assumption that the board would vote favorably to grant the comprehensive permit. If said if there were no further discussions, he will answer any questions and request the Public Hearing be closed and a decision issued within the allotted time frames. Celeste Fay (19 Mill Road Circle) said she believed that Mr. Fitz, who donated the parcel of property, tried to build on it in early 1990 and could not do so because there was a dispute over the property ownership on the lower corner. She said that it appears that since 1874 it has been part of the deeded parcel which she owns. She presented a map to the board for review and explained the area in question. Ms. Lombardi asked her if they were giving away property that she owns, to which Ms. Fay replied yes. She was asked if the deed shows that she owns that property. She said her deed extends to the corner, but somewhere in the past it was taken so the current deed does not show her owning it. Ms. Lombardi asked what she meant
by “it was taken”. Ms. Fay said the line changed and doesn’t know how it happened, but it is part of the reason it was not built on or sold because of a boundary dispute. Ms. Lombardi asked if she had it surveyed. She said no. Mr. Knapik said Habitat did have a survey done and the result is before the board. It is the product of an on-the-ground survey by both a licensed engineer and a licensed land surveyor and it is the result of the interpretation of all of the deeds, including this deed and abutter’s deeds and the result is what is presented. He further said that unless Ms. Fay is a title examiner or an attorney or land surveyor, he would think the board would give greater weight and credence to a modern, on-the-ground current accurate survey rather than a sketch plan from 1874. Ms. Lombardi asked if a title search has been done. Mr. Knapik said it was not and that they do that prior to acquiring the
property. Ms. Fay said she would like to state that she informed them of this about a year ago and they did not seem to take it into consideration. She told the board that there will never be a transfer or legal document showing that piece was transferred. She was informed that title issues and issues of ownership are outside of the board’s purview under Chapter 40B. If Ms. Fay or any abutter has a genuine dispute, they may initiate whatever procedure they see fit. Ms. Lombardi asked if both she and Mr. Fitz are paying taxes on the same property. Ms. Fay said the areas were measured in the 90s and they are both paying taxes on it. Mr. Knapik said the metes and bounds are very accurate, to one hundredth of a foot, and compass directions to the nearest second. Ms. Fay asked Mr. Knapik if the same engineer also did the septic work. Mr. Knapik said yes. She asked if he was positive that the septic isn’t going to
interact with hers. Mr. Knapik said that would be a matter for the Board of Health. Mr. Knapik said he’s been involved with the acquisition of the land and we have been to the Board of Health and the Conservation Commission and have received assurances that the septic system is adequate. Ms. Lombardi asked if this is the first they heard from Ms. Fay. Mr. Knapik said it is. Ms. Lebow said she did speak with her about a year ago. Ms. Fay feels they have not been very thorough. Mr. Knapik said the septic has been reviewed by the Board of Health and their consultant and it meets the requirements of Title 5. Ms. Lombardi told her she could go to land court and ask for an injunction to stop them if she thinks it is a viable issue. Ms. Fay had other concerns. She said the road is impassible in the winter. Mr. Knapik said that where the occupants would have to go it is passable. Mr. Filsinger said the road
is not an issue with this board. She asked if children will be moving into this area because it is not a safe area for children. She would like to see the town property fenced in. She said they are giving up things; the property values are going to go down; additional people in the area change the area; there are wild animals, unsafe conditions for children. Ms. Lombardi said the town needs affordable housing which goes toward the percentage we should have. Ms. Fay asked who is paying for the water. Mr. Drobner said water is included in the cost of the project. The developer will be paying for the water line. Ms. Fay asked about the utility lines. Mr. Drobner said the utility lines are run by the power company and there is a pole out there. Ms. Fay asked about staging and where it is going to be constructed. She doesn’t want it on her property. She was told there is no intention to occupy any property
other than this one during construction. It will be on the property. Ms. Fay said it doesn’t look like it will fit into the neighborhood which she believed this is one of the requirements of 40B. Mr. Filsinger said once the decision is final, she will receive a copy of it and it she has the right to appeal it within 20 days. Mr. Knapik if there is no more testimony that they respectfully request to close the Public Hearing for the purpose of finalizing the decision within the allotted time frame. Mr. Filsinger asked if there were any further audience comments. A resident asked if the board received everything they asked for. Mr. Filsinger said all was received. A resident asked if it goes to land court, who will be the defending attorney; will it be Habitat for Humanity or the town. It would be Habitat for Humanity. The town would be a party. Ms. Lebow said they are looking forward to working with the town. Mr. Filsinger made a motion to close the Public Hearing; Ms.
Lombardi seconded; motion made and seconded; any discussion? Hearing none, all in favor said aye, opposed none; motion carried.
Comments from town counsel were reviewed. Mr. Filsinger will edit. Mr. Knapik discussed his comments/changes.
Ms. Lombardi made a motion to approve the application of the Habitat for Humanity Metro West Greater Worcester for a comprehensive permit under the provisions of General Laws Chapter 40B, Sections 20-23 inclusive to permit the construction of two condominium units to be sold for occupancy for low or moderate income residents at established sale prices pursuant to the Department of Housing and Community Development Guidelines for Housing Programs in which funding is provided through a non-governmental entity and/or other applicable requirements on land owned by the Boylston Housing Trust consisting of approximately .64 acres of vacant land located at 1 Mill Road Circle, Boylston, Boylston Assessor’s Map M0002B002OL000 Parcel 0006, subject to all of the conditions stated in the foregoing permit decision dated August
23, 2010; Mr. Wyatt seconded; motion made and seconded; any further discussion, none; role call vote taken as follows: Larry Yes; Janet Yes; Brad Yes; Arlene Yes; Bill; Yes. Motion has passed.
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