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Planning Board Minutes 05/09/16
APPROVED
Chilmark Planning Board
May 9, 2016
Present: Rich Osnoss, Chairperson, Janet Weidner, Peter Cook, Joan Malkin, John Eisner, Mitchell Posin
Not Present: Chris MacLeod
Public: Reid Silva, VLSE, Wendy Weldon, James Langlois, Ann Wallace, Philip Lewis, Eric Stange, Caroline Flanders, Patricia Brescia (Spring Point Association treasurer) Adam Turner (MVC), Sam Hart, Jessica Roddy
Staff: Jennifer Christy, Admin. Asst.
Meeting called to order at 4:34 PM
  • Welcome to newly elected members:
  • Chairperson Osnoss welcomed newly elected member Peter B. Cook.
  • Edwin Lewis Subdivision Lot Release Preliminary Discussion, Map 12, Lot 6
  • Mr. Philip Lewis presented the Sept. 29, 1994 subdivision plan for Edwin A. S. Lewis, Mary Ann Lewis, Fielding Lewis, Elizabeth Ann Lewis and Henry M. Lewis and the covenant dated December 3, 1994 and inquired about the process required to obtain a lot release for two lots (2 & 3 on a plot plan that Mr. Lewis provided) that the family plans to sell to the MV Land Bank. Mr. Lewis stated the lots abut current Land Bank property. The Board members reviewed the plot plan and determined the location of the lots. Mr. Posin inquired the total acreage of all lots owned by the Lewis family. Mr. Lewis stated the total amount is 47 acres. Mr. Lewis stated the two lots discussed (to be sold to the MV Land Bank) are approximately 20 acres. The family signed a covenant in 1994 stating that before a lot is conveyed from the subdivision, access and utilities must be provided to the lot. Mr. Lewis inquired whether the two lots could be released without providing access and utilities since the lots are planned to be sold to the MV Land Bank with no plans to develop the lots.
  • Ms. Malkin suggested that the Board may release the lots if there was an agreement with the Lewis Family that the MV Land Bank, in their capacity as land conservators, would be the owner and that they would not be able to sell the lots without the original covenant becoming active again. Ms. Malkin proposed that the if the MV Land Bank were to use the land for the same purposes as the previous lot granted by the Lewis Family is used, for conservation purposes with no structures developed, the Planning Board would be amenable to the release of the two lots. Mr. Eisner emphasized the importance of not allowing structures to be built on the lots if the release is allowed without the restrictions of the covenant. Ms. Malkin proposed language, “The Planning Board would release lots 2 and 3 without the covenant restrictions to provide access and utilities to the lots, provided that if the MV Land Bank sold the property in the future all of the restrictions in the covenant would be reinstated.”
  • Mr. Lewis stated his belief that the state does not allow the MV Land Bank to sell the land it has acquired. Mr. Osnoss suggested that the legal counsel for the Lewis Family draft a lot release for the Board to review that identifies which restrictions are being waived from the covenant for the two lots.
  • Ms. Malkin proposed that, in principle, the Board welcomes the sale of the land to the MV Land Bank but since there is a covenant that restricts the ability of the Lewis Family to sell lots 2 & 3, the Board is happy to release the lots provided the MV Land Bank is the acquiring entity and provided that if the MV Land Bank sells or conveys the land in the future all of the restrictions in the covenant would be reinstated. Ms. Weidner reiterated that the drafted release must state specifically which restrictions would be waived from the covenant for this particular transaction. Ms. Malkin summarized that the release would need to include not only the wording that the release of Lot 2 &3 is granted by the Board without the restrictions of the covenant but also a signed agreement from the MV Land Bank that the Land Bank will not convey the lots in the future without the reinstatement of the restrictions in the covenant. Mr. Osnoss stated the intent of the covenant is to protect the future purchasers and it will be very important to reinstate the covenant if the MV Land Bank does convey the land to an outside party.
  • Mr. Eisner inquired about the original lot release to the MV Land Bank of Lot 1 at the time of the subdivision. Mr. Lewis stated at the time of the subdivision the covenants allowed the release of Lot 1 to the MV Land Bank without access and utilities to Lot 1.
  • The draft minutes were requested to be sent to the Lewis Family for the purposes of their legal counsel drafting a draft lot release document to review at the May 23rd meeting of the Board.
  • Spring Point Subdivision Proposed Modifications-Preliminary Discussion:
  • Patsy Brescia (Spring Point Association Treasurer) presented her request for procedural information regarding how the subdivision may change the placement of the road on Carol Weichert’s lot at Map 4, Lot 14. Ms. Brescia noted that the Association’s declaration states that any change to the road must be approved by 75% of the land owners. Ms. Brescia showed a plan with the proposed new road location. Ms. Brescia noted that the new proposed placement of the road requires the agreement of the abutters, the Rosenbaum Family, due to the fact that a portion of the newly proposed road will require a ‘land swap’, shown in green on the plan provided by Ms. Brescia. Ms. Brescia noted the land swap has not occurred yet. Mr. Osnoss inquired about plantings and the placement of Carol Weichert’s driveway. Ms. Brescia showed where plantings and a new driveway for the Weichert’s would be located. It was confirmed that the road would be built to town specifications. Discussion occurred about the procedure for this change in a road shown on an approved plan and the procedure for the land swap, which would be, it was presumed by the Board, two Form A applications to divide the two separate lots.
  • Ms. Malkin reviewed the process for modification of a subdivision plan as written in the subdivision control law, MGL c. 41, §81W.
  • The Board stated they would review the discussed changes to the subdivision plan with counsel to see what the Board must require the applicant to do due to the lot line changes and a change of a right of way in a subdivision. The Board determined that it would need to inquire with counsel as to whether the current proposed modifications to the Spring Point subdivision would require a modification and a new Form C application. Ms. Malkin stated there is a proposal before the Board for lot line changes and a proposed new right of way within an approved subdivision and the Board requests counsel on whether the applicant may submit an application for a modification (as referenced in MGL c. 41, §81W) without filing a new Form C application and may the Board act without evidence that approval by the Spring Point Association of the change of right of way and the land swap has occurred and, further, how may the Board do this in the correct order so that there is a correct and streamlined process?
  • Ms. Brescia appreciated the plan for the acquisition of the advice of counsel in order for the procedure to proceed properly since the Spring Point Assoc. members will require this clarity of procedure prior to their vote of approval.
  • Ms. Malkin informed Ms. Brescia that the Board would attempt to return with a clear procedure at the next meeting of the Board on May 23rd.
  • Proposed Changes to the Rules & Regulations Governing Subdivisions in Chilmark in response to the Dukes County Multi-jurisdictional Hazard Mitigation Plan presented by JoAnn Taylor on March 8, 2016 to the Board of Selectmen.
  • Brief discussion occurred.
  • The Board took no action at this time.
  • Wendy Weldon Proposed Lot Line Adjustment, Map 35, Lot 2, 18 Austin Pasture:
  • Mr. Silva presented the plan for the ‘lot line adjustment’ to the Board noting that the plan shows a division of a portion of Lot 5A, called the “house lot”, to create a 6.21 acre parcel (shown on the proposed plan as Parcel A) that would become part of 19 Lake Road, Map 35, Lot 3.2 (4.13 acres and currently owned by Pratt who is a family member of Ms. Weldon). Mr. Silva emphasized the Parcel A would be an unbuildable parcel as opposed to a lot. Mr. Silva further stated the intent is to append the Parcel A to the abutting lot at Map 35, Lot 3.2 as one would if it were a vacant parcel of land. He noted there is no plan to add structures or lots. Ms. Weidner asked for clarification on what structures are currently on the lot. Ms. Weldon stated the two structures are garage/studio /shop structures.
  • Ms. Malkin asked how the lot line change would be effected between the two owners. Discussion occurred regarding what is stated in the covenant and how those conditions would be adhered to without violating the covenant. Ms. Weldon offered that the “house lot”, Lot 5A as shown on the plan, would give up the right to have a guest house built. Mr. Posin inquired whether the lot that would gain the additional parcel of land, Parcel A, and be a resulting 10.34 acres would be able to be subdivided. Mr. Silva stated no since the required frontage would not be available. Mr. Eisner stated the restriction of subdivision of the lot would not be only due to frontage, but also due to restriction of covenant and the agreement that no further development would occur from Weldon. Discussion occurred regarding what is allowable for a Form A division and Mr. Osnoss noted a Form A may not be conditioned. Mr. Silva reiterated that there is no additional lot being created. Ms. Weidner stated there is an existing restriction in the covenant that there be no further subdivision. It was noted there are also restrictions on structures in the subdivision. Discussion occurred regarding the fact that both lots have the right to build a guesthouse, but that Ms. Weldon is offering to relinquish her right to build a guest house on the resulting 12.62 acre Lot 5A. Discussion occurred regarding whether a Form A may be conditioned with a guest house restriction if the owner offers it and it is not required by the Board.
  • Mr. Osnoss read aloud a letter that was sent to the Board from Eric Stange, trustee of the property at 22 Austin Pasture, Map 33, Lot 47. The Board discussed the letter with Mr. Stange, who attended the meeting. Ms. Malkin inquired what the concern is of the Stange family. Mr. Stange noted that his stepmother, Alida Stange, and father, subdivided to create 5 lots of specific size with particular siting for structures. He noted that the covenant states no subdivision of the lots is allowed. Mr. Posin inquired what the concern is of the Stange Family if there are structures allowed on the land only as originally set in the original subdivision regardless of where the lot lines are.  It was noted by Mr. Stange that the land taken from the Weldon lot is proposed to be added to a lot that was not part of the original subdivision. Mr. Stange also expressed concern that the Pratt lot which would result in a lot of 10.34 acres would be subdivided in the future. Mr. Silva stated that the proper mechanism for this process is a Form A and stated that as long as the covenants are abided by then there is no reason to not endorse. Mr. Stange stated the purpose of the covenant was to preserve the subdivision as it was in 1979. The Board stated their need to understand the proper mechanism for considering this request. Ms. Weldon also noted the Board has approved a change to the subdivision in 2012 when a 10,000 sq. ft. section of land was acquired by Pratt from Sands.
  • Mr. Osnoss read aloud a letter submitted by Michael D. Vhay, Esq. representing Shari A. Levitan, Trustee of 21 Lake Road Nominee Trust (“21 Lake Trust”), owner of a residential property at 21 Lake Road. Discussion occurred regarding whether the plan presented represents a subdivision or does not represent a subdivision. Extensive discussion occurred regarding the ramifications of endorsing the plan. Mr. Silva stated Parcel A, as proposed, is unbuildable and therefore will not need frontage on Austin Pasture or have access on Austin Pasture. Ms. Malkin clarified that the proposed newly combined lot (Parcel A & 19 Lake Road, owned by Pratt) would have its access from Lake Road and not from Austin Pasture due to the fact that Parcel A is an unbuildable lot. Mr. Silva clarified that the proposed Parcel A would be an unbuildable lot by itself. Ms. Malkin summarized the issue and stated two concerns are apparent: the adequacy of access/easement, under the existing subdivision rules and regulations, for Parcel A (assuming an ANR requires adequate access and frontage for a parcel) and whether a lot line change within a subdivision which has the effect of creating a non-buildable parcel which is to be added to a lot in an adjacent subdivision  is an appropriate subject for an ANR  or, rather, is a ‘subdivision’ as defined in the subdivision control law. Ms. Malkin recognized Ms. Weldon’s voluntary agreement to restrict her lot from the benefit of a guest house. Ms. Weldon stated that the visual impact of the lots would not change if this was endorsed by the Board. Mr. Osnoss reminded the Board that the requirements of an ANR application are to only determine access and frontage, but not other issues. Mr. Osnoss read the remainder of the letter from the attorneys representing the 21 Lake Trust. The Board discussed the points made in the letter. Mr. Osnoss read aloud the 1979 covenant. Mr. Posin clarified the access to each of the lots. Mr. Eisner stated that the question is whether this lot line change would constitute a subdivision or would it not. Mr. Silva stated that a subdivision is the creation of a new lot and that this application does not create a new lot. Mr. Osnoss asked Ms. Christy to please contact counsel regarding the question and report back to the meeting on the 23rd.
  • Lilienthal Salt Meadow Road-Certificate of Compliance:
  • The Board moved to sign the certificate of compliance. The motion was seconded and the vote was unanimous to approve. The members signed the certificate of compliance.
  • Chilmark Housing Production Plan (HPP) Executive Summary:
  • Mr. Hart reviewed his letter and summary. Discussion occurred regarding the specific suggestions included in the HPP.
  • The Board discussed the position the Board has on affordable housing (80% and under AMI) as opposed to community housing (above 80% AMI and up to 150% AMI). Mr. Hart noted that the Town has 2.7% of community housing and is only second on the island in terms of providing community housing.
  • Ms. Weidner inquired about the timeline of what happens now. Mr. Turner stated the island is in the process of getting a grant and then taking the plan and working with all the Towns to determine the housing plan for the island.
  • Ms. Wallace stated the Housing Committee accepted the document as a draft document and recognizes the need for island affordable housing. Ms. Roddy stated that the Housing Committee also feels that the process is moving too quickly and wants to ensure that the HPP reflects what the Town wants.
  • Review of Town of Aquinnah Public Hearing Notice:
  • The hearing notices were not reviewed.
  • FEMA Flood Data information from the MVC:
  • No flood data were available.
  • Minutes:
  • The minutes from March 28, 2016 or April 11, 2016 were not reviewed.
  • Next Meetings:
  • May 23, 2016
  • Documents:
  • Plan for Wendy J. Weldon submitted by VLSE, Inc.
  • Stange Covenant 1979
  • Philip Lewis sketch of plan for lots to be sold to MV Land Bank
  • Lewis Family covenant
  • Letter from Eric Stange re Weldon plan
  • Letter from Michael Vhay re Weldon plan
  • Spring Point preliminary sketch of road alteration plan
  • Packet from Attorney George Brush requesting compliance certificate
  • Certificate of Completion & Release of Municipal Interest in Subdivision Performance Security
  • Open Topic List
  • Dukes County Multi-Jurisdictional Hazard Mitigation Plan Update 2015
  • DRAFT Housing Production Plan
  • Letters of request for reappointment to the Housing Committee from Michele Leonardi, Jim Feiner and Jessica Roddy
Meeting adjourned at 6:43 PM. Minutes respectfully submitted by Jennifer L. Christy