The mission of the Town of Duxbury is to deliver excellent services to the community in the most fiscally responsible and innovative manner while endeavoring to broaden our sense of community and preserve the unique character of our town.
Town of Duxbury
Massachusetts
Planning Board
Minutes 03/06/06
Approved March 27, 2006
The Planning Board met in the Town Office Building, Monday, March 6, 2006.
Present: Amy MacNab, Chair; George Wadsworth, Vice-Chairman; Angela Scieszka, Clerk; Aboud Al-Zaim, Jim Kimball and Harold Moody.
Absent: John Bear; and Associate Member Douglas Carver.
Staff: Christine Stickney, Planning Director; and Diane Grant, Administrative Assistant.
The meeting was called to order at 7:36 PM.
OPEN FORUM
Senior Center Tree Clearing: Ms. MacNab noted that trees have been cleared recently for apparent expansion of the parking lot. She asked why no Administrative Site Plan Review had been triggered. Ms. Stickney suggested that the question could be referred to the Building Inspector. Mr. Wadsworth noted that the Building Inspector may not be aware of the tree clearing if no permit had been submitted. Mr. Kimball noted that the repaving was listed as an article on the 2006 ATM warrant. Ms. MacNab requested that staff look into why there was no ASPR.
Josselyn Avenue Condominiums: Ms. Scieszka noted that a property that had contained two dwellings is now being marketed as condominiums. Ms. Stickney noted that the form of ownership is Land Court approved. She recalled that the property owners had come before the Zoning Board to request a second story addition, but later withdrew the application due to neighborhood pressure. She stated that the property had always contained two dwellings belonging to one owner, but now the owner was attempting to turn both dwellings into condominiums.
APPROVAL NOT REQUIRED APPLICATION – GURNET ROAD / HUMMOCK LLC
Mr. Daniel Orwig was present to represent the owners, Hummock, LLC. Town Counsel, Atty. Robert Troy, was also present for discussion on this ANR application for plans revised February 28, 2006 to show existing lot lines. Mr. Orwig noted that Atty. Emerson is acting as attorney for the owners but was not present.
Mr. Al-Zaim questioned why there was no revised date beneath the surveyor’s stamp on the revised plans, and Mr. Orwig pointed out where it was located. Mr. Wadsworth questioned a dotted line on the plans. Mr. Orwig stated that it represented an easement line and pointed out the proposed and existing property lines. He noted that all frontages are off Gurnet Road or Ocean Road North and that the Land Court configuration had not been changed at all.
Mr. Wadsworth posed the question to Atty. Troy that if the ANR was approved, could the applicant move the existing dwellings and then come back to the Board to move the lot lines. Atty. Troy advised that the owner could not move the lot lines after the structures had been torn down because the owner would lose pre-existing conditions and exemption under 81L. Atty. Troy explained that the reason the legislature adopted the exception was to keep the character of historic outbuildings and allow people to purchase properties that they had previously rented. He referenced the Mitchell case and noted that no zoning protection means that an applicant is allowed to re-draw property lines. Mr. Wadsworth asked if a property owner can improve an existing structure, and Atty. Troy replied that a property owner can make renovations or
move a house within a lot only to the extent that the revisions meet current zoning bylaws. Mr. Al-Zaim noted that it appears easier to move a lot line than it is to move a dwelling. Mr. Moody noted that under an 81L lot lines could be moved. Mr. Wadsworth noted that the property contained some wetlands, and Atty. Troy replied that there is no protection from wetlands regulations because lot lines can only be moved to the extent allowed by zoning bylaws.
Ms. MacNab noted that, with no frontage changes and no area changes, the Board’s hands were tied to approving the ANR application. Atty. Troy noted that all criteria had already been challenged in 1991 when the case went to Land Court and proved that the structure was pre-existing.
MOTION: Ms. Scieszka made a motion, and Mr. Moody provided a second, to endorse the plan of land titled, “Plan of Land in Duxbury, Massachusetts, Approval Not Required Subdivision Plan, dated December 2, 2005 and revised on February 15, 2006 and February 28, 2006, Assessors Parcel Numbers 211-939-091 through 095, one sheet,” as not needing approval under Subdivision Control Law. There was no discussion.
VOTE: The motion carried unanimously (6-0).
CONTINUED PUBLIC HEARING – DELANO / WATER DEPARTMENT,
OFF CORDWOOD PATH
Ms. MacNab opened the continued public hearing at 8:02 PM. Present for the discussion were Town Water Superintendent, Mr. Paul Anderson; Town Counsel, Atty. Robert S. Troy; and abutting property owner, Ms. Elizabeth Merry. Ms. Scieszka read the public notice and the correspondence list:
§ Planning Board Minutes of 1/30/06
§ Mutual Extension Form dated 1/30/06
§ Copy of “Merry Easement” & deed provided by E. Merry @ 1/30/06 meeting
§ Memo to R. Troy from C. Stickney dated 2/2/06
Ms. Stickney reminded the Board that at the last public hearing on January 30, 2006, it was noted that what was thought to be a cart path was determined to be an easement through the applicant’s parcel belonging to abutting property owners, the Merrys. She noted that she had discussed a possible resolution of the easement question with Atty. Troy and Mr. Anderson. She also noted that although one structure exists on one of the parcels, it is understood that a second structure would be built on the lot as approved at Special Town Meeting in June 2002. She further noted previous concern from the Board that Lot C would not have the required 200 foot frontage, and stated that including the common ownership designation now provided in excess of 200 linear feet of frontage for the housing lot on Cordwood Path.
Mr. Al-Zaim noted that the lot configuration had been driven by the need to locate water wells, and asked about the effect of the easement on the wells. Mr. Wadsworth stated that when former Water Superintendent Carl Hillstrom developed the wells, he drew lines to provide 250 feet around the wells, and the remainder was allotted as open space.
Ms. Scieszka asked how the easement affects the placement of the well heads, and Atty. Troy responded that there is a possibility that the easement to the Merry property may be reconfigured. Mr. Anderson noted that the Department of Environmental Protection was not as concerned as expected about the easement, although it could re-surface as a concern in the future. Mr. Anderson noted that the value of the land outweighed the risk of potential DEP issues.
Atty. Troy noted that the Town of Duxbury was the first town to promote hybrid use of space. He further noted that the Town has eminent domain to take away the Merry’s access but that they have no intention of doing that. Mr. Wadsworth suggested that the Book and Page of the easement could be stated on the plans. He stated that although there is anecdotal measurement of the easement, there is no precise definition. Mr. Al-Zaim suggested the Board define the easement bounds, and Ms. Scieszka recommended keeping it vague in case it needs to be changed. Atty. Troy agreed that there is no reason to reference the eminent domain or contest the easement definition.
Mr. Wadsworth expressed concern with leaving out references to the easement. He stated that existence of the easement would be very useful, and would benefit any individual who might be looking at the plans in the future. Atty. Troy responded that the plan certifies that plans are accurate. If the Town is certain where the easement exists, then it would be fine. He stated that a discussion needs to take place to determine the exact delineation of the easement which would then be recorded.
Ms. MacNab noted the 81R exemption waiver and its significant benefit to the Town. Ms. Scieszka asked why an 81R exemption was part of this application. Ms. Stickney responded that the 81R exemption is for Subdivision Rules and Regulations, and that Lot C on the application has the required 200 feet of frontage on Old Cordwood Path.
Mr. Al-Zaim raised the issue of Lot C, where one structure exists and another is proposed to be built, possibly under two different entities. Ms. MacNab noted that in June 2002, it was voted at Annual Town Meeting that up to two affordable housing units could be built on that one parcel of land. Atty. Troy confirmed that the Town intends to enter into long term arrangements with two entities.
Ms. MacNab opened the floor to public comments. Ms. Linda Bacci, Director of the Housing Authority, asked how the subdivision of land would affect the Housing Authority’s potential lease with the Town. She also asked how opposition with the proposed plans should be handled at this juncture. Atty. Troy replied that these are administrative issues.
Ms. Beverly Walters of 422 Washington Street, who serves on the Duxbury Housing Authority, asked if there is a difference between lot and leased area on the proposed plans. Mr. Wadsworth stated that the lease references the plan that shows area. Atty. Troy stated that the lot lines are the same as what was previously referred to as “leased area.” Ms. Scieszka noted that the lot lines and lease lines are separate, and Ms. MacNab noted that the two rental properties may or may not be merged into one. Ms. Walters expressed that the Department of Housing and Community Development (DHCD) may have an issue, and she wants to ensure that there are no problems. Ms. Scieszka suggested that it may be clearer to keep the parcel as two separate leasing entities. Ms. Bacci asked if the ground leases would be recorded at the
same time the subdivision is recorded, and Atty. Troy stated that, as far as he remembered, it had all been recorded. Ms. Bacci asked for assurance, and Ms. Stickney stated that she would research and provide a definitive answer.
Ms. Elizabeth Merry of 301 Temple Street, owner of the easement, asked for clarification of Atty. Troy’s statement earlier during the meeting that the Merry easement does not exist as far as the Town of Duxbury is concerned. Atty. Troy responded that any ambiguity over the easement is immaterial right now. He stated that there is no reason to evaluate it at this time, and that there is no intention of eliminating access to the abutters’ property. He stated that a long-term need exists to delineate the easement to maximize the Town’s use of the land as a potential water source. Ms. MacNab further clarified that the Town, in good faith, intends to work with the easement owners and recognizes that they utilize the easement for access to their property. Ms. Merry asked about an earlier statement that the
Town could take her easement by eminent domain, and Mr. Wadsworth assured her that, although the Town could do that, the Town has no intention of doing that.
Ms. Merry asked about high tension wires that cut across the property and noted that the utility company shares an easement with the Merry easement, and Ms. Stickney confirmed that the Delano deed document references the power line easements. Mr. Anderson noted that this type of easement is different than a right of access. Atty. Troy confirmed that the power company easement is anecdotal, and more of an understanding than an exact delineation.
MOTION: Ms. Scieszka made a motion to continue the public hearing for the Delano/Water Department subdivision off Cordwood Path to March 27, 2006 at 8:00 PM, with an extension of the decision date to April 24, 2006. Mr. Wadsworth provided a second. There was no discussion.
VOTE: The motion carried unanimously (6-0).
A mutual extension form was signed.
ZBA SPECIAL PERMIT RECOMMENDATION – 33 WATER STREET / CLIFFORD
Present for the discussion were the applicant, Mr. Frederick Clifford; Mr. Paul Brogna of Seacoast Engineering; and Atty. Paul Driscoll. Mr. and Mrs. William TenHoor were present as indirect abutters. Mr. Brogna noted that the applicant had come before the Conservation Commission in the fall of 2005 and in January 2006 and the outcome was positive for the applicant. He noted that the application meets all requirements from the March 2004 update to the Zoning Bylaws.
Ms. MacNab noted that the Board’s role is to make a recommendation to the Zoning Board of Appeals (ZBA), which is the decision maker on this application. She noted that there had been much public interest and press over the application process because of public access that was located near the proposed pier. She asked for clarification of the location of the public access. Mr. Brogna stated that the area was not a public landing but did provide public access, and that a 22-foot right-of-way is proposed.
Ms. MacNab asked about parking near the public access, and Mr. Clifford stated that there is no public parking, and that most people park on the street and turn around in his driveway. Mr. Brogna noted that a proposed walkway is located 62 feet from the property line, and exceeds the 50-foot minimum setback required.
Ms. Scieszka asked if the property falls in the Waterfront Scenic Overlay Area (WSA), and Ms. Stickney replied that it does not. Mr. Moody asked if there would be a railing on the pier, and Mr. Brogna said that the applicant proposes to use a wire and pipe railing because it is less obtrusive and more appealing than wood.
Mr. William TenHoor of 1 Water Street expressed his objection to the pier application, and Atty. Driscoll noted that the Planning Board had recommended to support the pier bylaw two years ago. Mr. Wadsworth responded that what the Board had recommended at that time was different than what was ultimately approved at Annual Town Meeting.
Mr. TenHoor provided copies of an 11-page presentation entitled, “Preserving our Waterfront is Our Choice” by Citizens Opposed to the 33 Water Street Pier, dated March 6, 2006, raising ten objections to the proposed pier:
§ Violates boating safety law
§ Violates three bylaw purposes (safety, planning goals, and preserving historic and water resources)
§ Violates six special permit requirements (more benefits than damages, support of nearby land uses, few seasonal consequences, protection of scenic views, support of neighborhood character, maintenance of shoreline movement).
Ms. Scieszka asked which state boating bylaws Mr. TenHoor was referring to in his presentation, and he referenced the State Department of Environmental Police web site’s Boating Safety Bylaws. He stated that the local agent would be the Harbormaster.
Ms. Scieszka asked who had placed a seasonal float in the water, and Mr. Brogna responded that Mr. Clifford had been putting out a seasonal float. Ms. MacNab asked if Mr. Clifford would be sharing the pier with neighbors, and he stated that he intends to share it at his discretion.
Mr. Wadsworth referenced Sheet 3 of the applicant’s plans and asked about the elevation at the end of the dock. Mr. Brogna stated that the end of the dock was located at an elevation of 14.4 feet, and that the handrail added another three feet of elevation. Mr. Wadsworth stated his concern that the dock may act as a fenceline, and may have an impact on passage for fishing at low or high tide. Ms. MacNab also noted the potential impact on views and vistas of Duxbury Bay. Mr. Brogna responded that the pier application meets all regulations.
Ms. MacNab asked about any Town-owned ramp, float or dock at the public access, and Mr. Clifford responded that his seasonal float was the only current structure. Atty. Driscoll added that the Town had placed large stone barriers to discourage vehicle access to the landing. Ms. MacNab asked about access to the waterfront, and Mrs. TenHoor noted that the access was through a grassy area that led to a slope down to the beach. Ms. MacNab asked about boat launching from the public access, and Mr. TenHoor stated that residents mainly kayak, swim and sit on the beach.
Mr. TenHoor noted that only three docks exist in the area, all approved in the 1990s. Mr. Clifford responded that a seasonal dock was located in the same approximate area as is proposed, from the 1930s to the 1950s. He noted that the earlier dock was longer, and also noted another pier to the south owned by the Danner family until around 1960.
Atty. Driscoll referenced Mr. TenHoor’s concern about the safety risk to swimmers, and noted that the coastline of Duxbury is not a designated swimming area. He stated that the Harbormaster reviewed the ZBA application and had no problems with it, including any potential safety hazard. Ms. MacNab noted that safety and planning issues were the only issues pertinent to the Board, and stated that the Board needs to protect public access to Town landings. Mr. Al-Zaim asked Mr. TenHoor what would be an acceptable solution. Mr. TenHoor responded that the only solution acceptable to him would be not building a pier so close to a Town landing.
Ms. Scieszka stated her concern that the location of the pier may be in conflict with a state law requiring 150 feet distance for boat traffic near swimmers. Mr. Moody stated that having a dock to store one boat would not create a highway of boat traffic. Mr. Al-Zaim noted that Harbormaster Beers had reported no safety issue to the ZBA, and that although the Board may have an opinion, Mr. Beers has the official word on safety.
Ms. MacNab stated that the proximity of the private pier to the public landing is a safety concern to her, as well as the potential proliferation of piers and the impact on views and vistas. Mr. Kimball stated that the only planning issue he sees is with the visual impact, and that he had no issues with safety of swimmers. Mr. Moody agreed that he also saw no safety issue, and that with only one or two boats on the dock it may actually reduce boating traffic in the area.
MOTION: Mr. Kimball made a motion, and Ms. Scieszka provided a second, to defer judgment of the Special Permit referral regarding 33 Water Street/Clifford to the Zoning Board of Appeals, while noting two planning concerns:
1. The close proximity of the proposed pier to the public access, Water Street Town Landing, and its potential impact on safety as well as activities common to the public landing.
2. The impact of the pier on views and vistas of Duxbury Bay.
There was no discussion.
VOTE: The motion carried unanimously (6-0).
WORKING SESSION OF THE PLANNING BOARD: ANNUAL/SPECIAL TOWN MEETING ARTICLES
Article 18 - Establishment of Duxbury Agricultural Commission:
MOTION: Mr. Wadsworth made a motion, and Mr. Al-Zaim provided a second, to recommend endorsement of Annual Town Meeting Article #18, establishment of a Duxbury Agricultural Commission. There was no discussion.
VOTE: The motion carried unanimously (6-0).
Article 27 – Community Preservation Committee – Land Acquisition: Mayflower Street:
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, to recommend endorsement of Annual Town Meeting Article #27, Community Preservation Committee land acquisition on Mayflower Street. There was no discussion.
VOTE: The motion carried 5-0-1, with Mr. Al-Zaim abstaining.
Article 28 – Community Preservation Committee – Land Acquisition: East Street:
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, to recommend endorsement of Annual Town Meeting Article #28, Community Preservation Committee land acquisition on East Street. There was no discussion.
VOTE: The motion carried 5-0-1, with Mr. Al-Zaim abstaining.
Article 31 – Community Preservation Committee – Housing Consultant:
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, to recommend endorsement of Annual Town Meeting Article #31, the Community Preservation Committee Housing proposal to fund a Housing Consultant.
DISCUSSION: Mr. Wadsworth noted that the Board had already discussed this topic at length and agreed on a list of tasks for the Housing Consultant. He noted that the position would be funded by grants in the years following the initial funding, and that the position is essential for a vital housing policy.
Ms. MacNab stated that she has general concerns about using CPC funds in the best interest of the Town. She stated that she is comforted that this is a one-time request because it would be self-funded in subsequent years, and that as a consultant it would offer no benefits. She stated that the essential concern is obtaining a planned production plan, and noted that the Board is not required to take a formal position on this article.
Mr. Kimball stated his agreement with Ms. MacNab’s concerns. He said that obtaining a planned production plan is not guaranteed, and expressed concern that the Housing Consultant’s time may be monopolized in other areas. However, he stated that he didn’t see how the Board could remain silent on taking a position for ATM.
Mr. Al-Zaim expressed concern that the $30,000.00 requested in the CPC article would not go far, and that is why the Board had made sure the plan would be created within the first six months. Mr. Wadsworth noted that much of the information required for the planned production plan is contained in the Comprehensive Plan that some Board members were a part of. He stated that if the Board did not support the article it could be perceived as a “rock in the roadway.”
Ms. Scieszka stated that the Town needs the plan, and this is the way to obtain it. She said creating a Housing Consultant position provides a good chance to steer things in the right direction, and that without the plan there is nothing to measure against.
Ms. MacNab stated her concern that the motion may change on the floor of ATM, and Ms. Stickney noted that a handout is being prepared listing the Housing Consultant tasks exactly as the Board designed it, and that the plan is the number one priority. Ms. Scieszka added that the Town is missing opportunities for obtaining affordable housing without someone in a position to obtain grants.
Mr. Moody noted that although there is no guarantee of obtaining a planned production plan with a Housing Consultant, there is definitely no chance of a plan without a Housing Consultant. He stated that he sees no downside.
VOTE: The motion carried unanimously (6-0).
Article 32 – Affordable Housing Policy:
Ms. Scieszka recommended that the Board remain silent on this article, stating that the intention is great but that the document may need clarification in some areas. The Board agreed not to vote on this article.
Article 35 – Geographic Information System (GIS) Revolving Fund:
MOTION: Mr. Wadsworth made a motion, and Mr. Moody provided a second, to recommend endorsement of Annual Town Meeting Article #35, establishment of a Geographic Information System (GIS) Revolving Fund. There was no discussion.
VOTE: The motion carried unanimously (6-0).
OTHER BUSINESS
ZBA Endorsement of Comprehensive Plans Showing a Subdivision: The Board agreed to defer discussion on this topic until after Annual Town Meeting. Ms. Stickney confirmed with the Board their approval of the Zoning Board of Appeals jointly meeting with the Planning Board on April 3, 2006.
Meeting Minutes:
MOTION: Mr. Wadsworth made a motion, and Mr. Moody provided a second, to accept the Board meeting minutes of 02/27/06 as amended. There was no discussion.
VOTE: The motion carried unanimously, 6-0.
ADJOURNMENT
The Planning Board meeting was adjourned at 10:43 PM. The next meeting of the Duxbury Planning Board will be held on Saturday, March 11, 2006 at 8:00 AM in conjunction with Annual Town Meeting at the Performing Arts Center.
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