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APPROVED
Chilmark Planning Board
June 13, 2016
Present: Rich Osnoss, Chairperson, Janet Weidner, Peter Cook, John Eisner, Mitchell Posin, Chris MacLeod
Not Present: Joan Malkin
Public: Reid Silva, VLSE, Wendy Weldon, Michael Goldsmith, RRKH attorney (town counsel), Carol Weichert
Staff: Jennifer Christy, Admin. Asst.
Meeting called to order at 4:33 PM
- Form A Wendy Weldon, Map 35, Lot 2, 18 Austin Pasture:
- Mr. Osnoss asked counsel to address the questions regarding this Form A sent earlier by the Administrative Asst.
- Mr. Goldsmith stated his feeling that the plan is not a Form A, in his opinion. Mr. Goldsmith stated:
- The plan does not appear to only move a lot line. The plan appears to show a division creating a new lot. He noted there is an exception under the subdivision control law where one may move a lot line, but that this exception does not seem to apply to the Weldon plan.
- Mr. Goldsmith noted that although Parcel A will be “conveyed and joined” to the Pratt lot (Map 35, Lot 3.2) next door, the lot line will not disappear and the lots will not merge “as a matter of zoning.”
- Mr. Goldsmith noted there are covenants that were “re-upped” in 1997 as well. In 1979, the only person that signed the covenant was the developer, Alida B. Stange, but in 1997 everyone who owned lots signed the covenant (Knafel, Sands, Stange, Weldon) and the Planning Board signed the newly amended covenant as well. This amended covenant “reincorporated” the former covenant and that covenant (1979) stated there is to be no further subdivision.
- Mr. Goldsmith noted that a Form A is not a subdivision and, if endorsed, simply a division. He noted the state subdivision control law defines a Form A by what it is not because it provides exceptions to the definition of subdivision. But, the intent is to limit the subdivision to 5 lots. He further stated that, most importantly, the plan is adding a new lot in his opinion and with this proposed division there will be six lots that may be accessed by the road coming in off of State Rd.
- Mr. Goldsmith noted that the proposed division of the subdivision into 6 lots does trigger a referral to the MV Commission. Mr. Goldsmith recommended that the application be sent to the MV Commission as a DRI under several different provisions due to the fact that another lot is being created that would gain access over the subdivision road: six lots accessed by Austin Pasture Rd.
- Mr. Posin noted that it was the Board’s understanding that the newly conjoined lot (Parcel A with the Pratt lot at 19 Lake Rd.) would access the conjoined lot via Lake Rd. and the access from Austin Pasture would be “cut off”, physically, for the purpose of access the land contained in Parcel A. Mr. Goldsmith noted that there are still the rights of the lot owners who signed the 1997 covenant that must be considered. The 1997 covenant amendment “re-states” the original 1979 covenant.
- Mr. Goldsmith noted that Form As are supposed to be simple due to the Board having to consider just frontage and access and whether the lot is within an approved subdivision or in a subdivision created before subdivision control law went into effect. He summarized legal cases in Edgartown that appeared to be simple Form As, but then other complicating factors present themselves and this is sometimes the case. Mr. Goldsmith stated that the application may be a Form C or a Form A and if the applicant were to restrict the access of the conjoined Parcel A and 19 Lake Rd. to Lake Rd. that the covenanters may be amenable to this division. Mr. Goldsmith noted that covenants are “good, at a minimum, for 30 years and probably longer.”
- Mr. Silva stated that this issue is whether the parcel is a lot. He stated it is not a lot and suggested that the applicant could cut off the frontage if that is necessary. He noted that the Parcel A could be re-shaped to make it less acreage. But, he stated, the main distinction is that the Parcel is not a lot and reiterated that the applicant could show a plan that physically cuts off the access to the Parcel from Austin Pasture Rd. if that would satisfy concerns of the other covenant signers. Mr. Silva stated he fully understands that any further subdivision is clearly prohibited in the covenant, but that the plan as presented does not represent a subdivision in his view. He further stated that the Planning Board, if the Board decided to send the plan to the MVC requesting a decision on whether or not a lot is
being created with the presented plan, would need to indicate their view on the matter and state whether they feel that it creates a lot or does not create a lot. Mr. Silva stated that if the Board feels that it does create a lot then the plan, in the Board’s view, violates the covenant and it would be preferable to him to know, before the plan goes to the MVC, the Board’s stance on the subject. Mr. Silva stated that it is possible that the plan should be a Form C due to the fact that it modifies a previously approved subdivision. He noted that he has presented, and had endorsed, many “lot line adjustments” within Form Cs without going back to a the entire Form C process.
- Ms. Weidner noted the Board has approved “lot line adjustments” but this appears to be different since a parcel is being removed from a previously approved subdivision and attaching it to a lot that is not part of the subdivision. She felt this would be a significant change to the original subdivision and that seems to make it be a Form C.
- Mr. Goldsmith stated that he understood Ms. Weidner’s point, and pointed out the it is somewhat unusual due to the fact that the plan, if the applicant were to agree to terminate access to Parcel A from Austin Pasture, lessens the burden on the roads in the original subdivision. Mr. Goldsmith stated he was in agreement with many of the statements made by Mr. Silva, but noted there is still a line on the plan showing a separate lot. He further suggested that if the plan were just a lot-line adjustment that one line would “go away.”
- Mr. Silva stated that no line ever “goes away.” Once a line is on record, he stated, it is on record, but how one ‘treats’ a line and whether zoning is violated or any other covenant is violated is the important point. He stated that “for permitting purposes” the line between 19 Lake Rd. and Parcel A, once conveyed and conjoined, will “go away.” Mr. Silva noted that the line would come into effect at some point if Parcel A was sold to someone such as a new owner of 18 Austin Pasture, for example. He reiterated that “lines never disappear”, but it is only applicable to certain things such as zoning. Mr. Silva concluded that the key questions are is the plan a Form A, in the eyes of the Board, or is it a modification of a Form C. He stated that referral to the MVC is a separate issue in his view.
He asked the Board for their view on the key question of whether the plan satisfies the requirements of a Form A.
- Mr. Posin inquired what would happen if a Form A plan was presented by the applicant showing the road frontage eliminated from Austin Pasture to the future conjoined Parcel A and 19 Lake Rd. and the covenanters, other than the Board, were against the plan. He further asked, would the Form A plan have to be rejected? Mr. Goldsmith stated that all covenanters would need to sign off on the Form A plan before it may be endorsed. Mr. Goldsmith noted that the plan shows access to the newly conjoined lot from Austin Pasture Rd. Mr. Posin inquired what would happen if the road frontage on Austin Pasture Rd. for the newly conjoined lot was eliminated on a plan and the covenanters all agreed to the modification. Mr. Goldsmith stated the plan could then be endorsed. Mr. Posin stated the elimination of the access would lessen
the traffic and it would seem amenable to the covenanters.
- Mr. Goldsmith noted the key issue is the creation of the sixth lot.
- Ms. Weidner inquired why Mr. Goldsmith would advise to refer the application to the MVC. Mr. Goldsmith stated he would not advise sending it to the MVC under the reasoning that once a subdivision is a DRI then it is always a DRI. Mr. Goldsmith stated he would recommend referring the plan to the MVC due to the creation of 6 or more lots. It was stated the original MVC DRI decision focused primarily on the dolman that is not on the Weldon lot at 18 Austin Pasture.
- Mr. Silva reiterated his stance that the division is not a lot and therefore is not a subdivision. Mr. Silva noted that from just the paper it is conceivable that someone could say that the division is the creation of a sixth lot with access on Austin Pasture, but the plan states that Parcel A is an unbuildable lot and access to Austin Pasture could be eliminated. Mr. Silva noted the example of the creation of beach lots in Town as illustrating that the addition of a lot line is not a subdivision because they are not buildable lots.
- Ms. Weidner stated that she is trying to maintain the integrity of the subdivision from 1979 and that Parcel A is a large lot that doesn’t fit her view of an unbuildable parcel as they are usually formed.
- Mr. Silva stated he understood the intent of the Board to preserve the integrity of the original subdivision and he stated his opinion is that the effort to preserve the integrity is outside of the scope of the Planning Board and that safety and access are the main concerns of the Board and further stated that if density and traffic are reduced the Board should be amenable to the modification. Mr. Silva stated that, at the time of the original Stange subdivision, the Board agreed that the subdivision was “acceptable” and it was approved. But, Mr. Silva further noted, the approval did not mean that the Board cannot revisit the subdivision and allow applicants to make modifications if the Board finds those modifications acceptable. He stated that, in a practical sense, the plan will reduce density and will reduce
traffic on the road.
- Mr. Posin stated that he understood Ms. Weidner’s concerns to be that the protection of the land of Parcel A from further subdivision will be eliminated if the Parcel A is removed from the original subdivision and appended to 19 Lake Rd.
- Ms. Weidner stated that a concern is the other covenanters have no notice.
- Mr. Eisner supported the suggestion to require the other covenanters to be given notice and a chance to respond to the plan.
- Mr. Silva asked what portion of the covenant is being violated. He stated the plan adheres to the restrictions in the covenant.
- Mr. Osnoss stated the Board’s job is to follow the law.
- Mr. Posin suggested if the applicants were to return with a document that shows the covenanters are in agreement with the plan if it shows no access for the proposed newly conjoined lot on Austin Pasture Rd. and no further subdivision or construction of buildings other than the by right guest house the Board may feel that it would endorse the plan.
- Mr. Eisner inquired what Mr. Goldsmith recommended regarding the referral of the plan to the MVC due to its status as a DRI. Mr. Goldsmith stated that a decision must be made by the Board this evening due to the fact that the 21 days for the Board to act expires on the 13th (the day of the meeting.) He further stated that it is unclear whether the “clock” stops during the time of referral to the MVC if the referral is for anything other than mandatory referral. Mr. Goldsmith stated the Board could deny the Form A, without prejudice, and the applicant could return with a different Form A or a Form C or it could obtain an agreement for an extension so that the Board could have time to refer the application to the MVC. If the Board denies the Form A, the applicant could request that the Board not send
the application to the MVC and they will return with a new application.
- Mr. Goldsmith agreed with Mr. Silva that an extension, offered by the applicant, to a day certain is also possible as a third option, in addition to the possibilities of a rejection “without prejudice” or extension agreement while the Board seeks a decision from the MVC.
- Mr. Silva stated an extension request to a date would be certainly given by the applicant if the Board felt that the plan could be a Form A that could be endorsed if it included the changes that have been discussed. The new Form A plan, if the Board felt it was a Form A, could then be sent to the MVC for their decision. Mr. Silva stated that abutters may often not want any changes, but he stated the rejection or endorsement must have a legal basis.
- Mr. Posin stated his view that if Weldon put a restriction onto 18 Austin Pasture to have no more structures then it appears that the covenanters would have their concerns satisfied and the only result to the modification would be less traffic.
- Mr. Cook stated his concern with approving a plan before it may go to the MVC due to the possibility of extensive litigation. He inquired whether the Board should ask the MVC if they have “jurisdiction” over this plan. Mr. Silva stated that he would prefer that the Board have a Form A plan that they are comfortable with before it is sent to the MVC. He felt it would be a waste of time to send a Form A to the MVC if the Board was not comfortable with the Form A plan sent.
- Mr. Weidner inquired whether the conditions of the original Form C subdivision would apply to the Parcel A once it has been divided off and conveyed. Mr. Goldsmith suggested that the question would need to be researched for him to be able to answer that fully. Ms. Weidner stated that this needs to be resolved before the Board could endorse. Mr. Silva stated that the same covenants would apply to the proposed newly conjoined lot.
- Mr. Goldsmith stated that he cannot speculate on a future plan that is not in consideration now. He stated that the Board, with the current plan in front of them, must do one of three actions: deny it without prejudice, deny it and send it to the MVC or obtain an extension agreement to send it to the MVC without denying it.
- Ms. Weidner stated that a plan should not go to the MVC without a plan that they all agree with.
- Mr. Eisner asked if a continuance could be given without denying or approving or endorsing.
- Mr. Goldsmith amended the extension agreement that he had provided earlier and removed the wording re referral to the MVC.
- Wendy Weldon and Reid Silva submitted a signed a request to extend the Form A period of action to December 15, 2016. Mr. Osnoss read the extension agreement aloud and Ms. Posin moved to allow and accept the extension agreement. The motion was seconded by Mr. Cook. Mr. Cook inquired what would be presented to satisfy the Board that this is a Form A and the division is not a subdivision. Mr. Silva stated the crux of the issue is whether this is a subdivision or not and whether it violates the covenants or not. Mr. Silva stated that there is a small possibility that neighbors will support the Form A application but that his concern is if the division is a subdivision or is it not in the eyes of the Board.
- Ms. Weidner stated her concern is notification of neighbors and covenanters and she is not simply interested in whether they support or do not support but that they have been allowed input.
- Mr. Posin stated his concern that the part of the lot at the end of a road being conveyed to an outside lot may be setting a precedent. Mr. Osnoss stated that it is possible here that it is the law that determines the outcome rather than primarily precedent.
- The Board voted unanimously to accept the extension agreement. The extension agreement was received by the Town Clerk.
- Spring Point Subdivision Proposed Modifications Discussion:
- Mr. Osnoss read aloud the opinion from Town Counsel. Briefly, counsel states that the procedure is neither a Form C or a Form A
- Ms. Weichert stated over 80% of the Spring Point members approve the plan.
- Counsel clarified that the application for a modification will need to be accompanied by an official written approval from the Spring Point Association stating the association’s approval of the modification of the plan. Mr. Goldsmith also recommended that the membership of the Spring Point Association should be given notice also of the date upon which Association plans to submit the modification application with the letter confirming the Association’s approval of the plan.
- The Board also recommended that the Association confer with their engineer/surveyor to decide whether they or the engineer/surveyor will present the modification request.
- Form A Wendy Weldon, Map 35, Lot 2, 18 Austin Pasture, Cont’d:
- Mr. Osnoss read aloud a letter from Michael Vhay dated June 3, 2016.
- Discussion occurred. It was understood that the letter primarily stated that the Weldon Form A application must go to the MVC because the subdivision was originally designated a DRI. The letter stated that the Planning Board would be prohibited from acting on the plan without a decision from the MVC because:
- Endorsement of the plan would grant a “development permit” under the MVC act and the act prohibits the Board from issuing a “development permit” without the approval of the MVC.
- The particular plan which proposed to remove significant acreage from an MVC approved DRI and attaching it to a non-DRI approved lot contravenes the intent and purpose of the original DRI approval from the MVC.
- The MVC prohibits the Board from issuing a “development permit” without the MVC’s approval. The Board cannot take action that would undercut the MVC’s 1979 decision.
- Mr. Posin questioned the meaning of a “development permit.”
- Ms. Weidner suggested that the MVC decision in 1979 focused on the dolman and may not be as applicable to this plan.
- Ms. Christy read the definition of the term from the MVC website: a “Development Permit” “means any permit, license, authority, endorsement, order of conditions, or permission required from a Town Board prior to the commencement of use, construction, improvement or alteration of buildings or land.”
- Mr. Cook noted the word “arguably” in Mr. Vhay’s letter, and stated that the letter argues that the Board must refer the plan to the MVC. He further stated that the adjustments that the Board has asked the applicant to make will not make a difference to the matter from the perspective of Mr. Vhay because the key point in Mr. Vhay’s letter is that the Board may not take any action without the prior approval of the MVC. Mr. Cook stated the Board would not be able to grant the endorsement of a Form A plan without MVC approval and, at the same time, be free of any liability.
- Mr. Weidner stated that the plan appears to be a Form C.
- Mr. Eisner stated it appeared to be sleight of hand to present the plan as a Form A rather than a Form C.
- Mr. Osnoss disagreed and stated that his feeling is that landowners have rights and that the covenant and the decisions that were made in the past have merit and should be studied for what they require, but that the Board should look at what the law states may be allowed and weigh the plan based on legal rights. Mr. Osnoss stated the applicant is using tools that are available to them.
- No further action was taken.
- Edwin Lewis Subdivision Lot Release Discussion, Map 12, Lot 6
- Mr. Osnoss read aloud the letter from James Lengyel, Executive Director of the Martha’s Vineyard Land Bank, dated June 3, 2016.
- Mr. Posin moved to release the lots as per the terms of the release dated June 13, 2016. The motion was seconded and the Board members signed the release.
- Mr. Hart was not present. The Board members expressed support for the work of Mr. Hart.
- No Discussion occurred.
- DRAFT Changes to the Rules & Regulations Governing Subdivisions in Chilmark
- Brief discussion occurred regarding the draft amendments to the rules & regulations governing subdivision. No action was taken.
- Update from the PB Subcommittee re Menemsha Planning:
- Ms. Weidner updated the Board briefly on the subcommittee’s progress and summarized the meetings with the MV Fishermen’s Preservation Trust and the Police Chief.
- MVC Squibnocket Parking and Causeway Decisions were accepted. No discussion occurred.
- The minutes from March 28, 2016, April 11, 2016, May 9, 2016 were reviewed. All were approved as written.
- Plan for Wendy J. Weldon submitted by VLSE, Inc.
- Stange Covenant 1979
- Amended Weldon, Knafel, Stange, Planning Board Covenant 1997
- MV Land Bank Lot Release document
- Lewis Family covenant
- Email from Eric Stange re Weldon plan
- 2nd Letter from Michael Vhay re Weldon plan received on May 31st, 2016
- Spring Point preliminary plans of land swap and of road alteration
- Town Counsel opinion on Spring Point modification proposal
Meeting adjourned at 6:50 PM. Minutes respectfully submitted by Jennifer L. Christy
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