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 01/22/07
Approved May 7, 2007
The Planning Board met in the Duxbury Town Offices on Monday, January 22, 2007 at 7:30 PM.
Present: Amy MacNab, Chairman; George Wadsworth, Vice-Chairman; Angela Scieszka, Clerk; John Bear,
Brendan Halligan, Harold Moody; and Associate Member Douglas Carver.
Absent: Jim Kimball; and Christine Stickney, Planning Director.
Staff: Diane Grant, Administrative Assistant.
Ms. MacNab called the meeting to order at 7:35 PM.
OPEN FORUM
Local Housing Partnership (LHP): Ms. Scieszka reported that she is unable to attend an LHP workshop on affordable housing scheduled for January 27, 2007 and asked if any other Board member could attend in her place. Mr. Wadsworth offered that he may be able to attend.
South Shore Coalition: Ms. Scieszka reported that she missed their latest meeting on January 18, 2007 and asked if anyone could serve as a back-up if she is unable to attend. Ms. MacNab advised staff to email members to find out availability if she finds that she is unable to attend a future meeting.
TOWN MEETING STREET ACCEPTANCE RECOMMENDATIONS:
AMADO WAY AND HILLSIDE LANE
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, that the Planning Board recommend street acceptance of Amado Way subject to approval of as-built plans. There was no discussion.
VOTE: The motion carried unanimously (6-0).
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, that the Planning Board recommend street acceptance of Hillside Lane subject to approval of as-built plans. There was no discussion.
VOTE: The motion carried unanimously (6-0).
ZBA REFERRAL: 61 ELDER BREWSTER ROAD / DWYER
Ms. Stickney reminded the Board that they had already reviewed this special permit application on October 2, 2006 but it had been re-submitted for administrative reasons.
MOTION: Mr. Moody made a motion, and Mr. Halligan provided a second, to repeat the Board’s recommendation to defer judgment to the Zoning Board of Appeals on the Special Permit referral regarding the above project, while re-emphasizing the following five issues that were brought to the Zoning Board’s attention in a previous memo dated October 3, 2006:
1. The Planning Board is in disagreement with the applicant’s interpretation of ZBL Section 410.4 (coverage). In that the existing lot coverage is 17.9 percent, the ability of additional coverage pursuant to the bylaw should only be allowed to 18 percent.
2. There is a potential issue on the measurement of building height between the architectural renderings and the existing grades of the site plan.
3. The Planning Board questions on a complete “tear down,” why the new structure would not have to comply with the 15% lot coverage requirement as would a grandfathered vacant lot.
4. The raised site grade of the lot provides an adverse impact to general neighborhood as to the massing (height and bulk) of the new structure.
5. The architectural plan shows a “screened” pergola on the northwest side of the new structure and the site plan identifies it as a proposed deck with trellis on sonotubes. Clarification as to this structure having a roof and whether it is subject to building coverage should be addressed.
There was no discussion.
VOTE: The motion carried unanimously (6-0).
ZBA REFERRAL: 393 TREMONT STREET / MC CLUSKEY
No representative was present for the discussion of this special permit application for an accessory apartment in an existing residential structure. Ms. MacNab stated that she believes this is an incomplete application because there is no site plan as required. She said due to an existing tennis court and other buildings on the property, siting the parking may be an issue. She stated that it would be helpful to have a before and after floor plan as well. Ms. Scieszka stated that she was concerned with site issues, and also questioned why there were several entry doors into the main dwelling. The Board agreed to table the referral until the next meeting to allow more time for review.
OTHER BUSINESS
Annual Town Meeting 2007: Mr. Wadsworth confirmed that the public hearings for Planning Board articles would be held at Town Hall. Ms. MacNab noted that the article pertaining to the definition of “coverage” was put forward at the request of the Conservation Agent, Mr. Joe Grady. She stated that the article may require amendment to remove references to the word “impervious.” She requested that staff ensure that the Zoning Board of Appeals has no issues with the proposed article.
CONTINUED PUBLIC MEETING, ADMINISTRATIVE SITE PLAN REVIEW: MILLBROOK CROSSING / RAILROAD AVENUE
MOTION: Mr. Wadsworth made a motion, and Ms. Scieszka provided a second, to continue the public meeting for Millbrook Crossing administrative site plan review at the request of the applicant until Monday, April 2, 2007, with revised plans due on March 19, 2007 and a decision date of May 2, 2007. There was no discussion.
VOTE: The motion carried unanimously (6-0).
DISCUSSION ON ADMINISTRATIVE SITE PLAN REVIEW WITH JON WITTEN, ESQ. AND ROBERT S. TROY, TOWN COUNSEL
Ms. MacNab welcomed Attys. Witten and Troy and introduced the topic of exemptions on Administrative Site Plan Review. She stated that the Board finds it a challenge to separate use from site issues. Some safety issues might be affected by the intended use. Atty. Witten, who helped draft the rules and regulations for Administrative Site Plan Review, stated that it was originally intended to be implemented by special permit, but CPZBIC adopted it without the special permit requirement. He agreed that use does affect ingress, egress and stormwater drainage and that the Planning Board does have a right to review use in relation to those planning issues. He added that the Board cannot deny an application based on use, but can review issues that would be affected by use.
Mr. Wadsworth asked if the Board can consider conditioning areas that might affect use, such as requiring a drainage swale rather than underground drainage that might take away land that might be used otherwise. Atty. Witten responded that the Board has a right to “fine tune” plans regarding drainage design.
Atty. Witten stated that, in general terms, the administrative site plan review rules and regulations were written with the intent that the application would not be denied because the Board has no adjudicatory powers like special permits do. Atty. Troy noted that the adequacy of the bylaw is being contested in court at this time. Ms. MacNab asked if a better approach might be to approve an application with conditions. Atty. Troy stated that approval with extensive conditions can be tantamount to a denial, and cautioned the Board to work with the applicant through the approval process to reach a decision containing reasonable conditions if possible.
Atty. Witten noted that the Board’s power is limited, and suggested that for non-exempt uses the Town might wish to consider using a special permit for administrative site plan review. Mr. Wadsworth noted that, to date, administrative site plan review has been a useful tool. He stated that for exempt uses building size and use are issues that might affect traffic volume and flow. Atty. Witten advised the Board that the best approach would be to work with the client.
Ms. MacNab asked if the Board can regulate issues such as height, size and bulk, and Atty. Witten responded that there is a fine line between size and use. He noted that with exempt organizations, the Board is restricted by the Dover Amendment. Ms. Scieszka stated that the Dover Amendment does not give the applicant cart blanche. Atty. Witten stated that size is a protected use and advised the Board to focus on issues such as stormwater drainage and public health and safety. Atty. Troy noted that for exempt organizations the state legislature has deemed use politically sacrosanct. Issues that can be addressed by Planning Boards include health, safety and draingage issues.
Mr. Wadsworth asked for advice on what to do if the exempt organization did not provide plans that meet a standard of quality to review, and Atty. Witten responded that if plans are incomplete or do not meet Section 615 of the Zoning Bylaws, the applicant would not be able to obtain a building permit. He advised the Board to refer to Town Counsel if there is any doubt. Mr. Halligan asked at what point the Board should refer to Town Counsel. Atty. Troy stated that the Planning Director should consult with him. He commented that future issues with exempt organizations might address certain marginal or hybrid educational uses such as a horse farm expansion that proposes offering lessons. Mr. Wadsworth asked about exempt organizations that offer a mix of profit and non-profit businesses. Atty. Troy replied that it does not
matter whether the educational use is profit or non-profit.
Ms. MacNab summarized the discussion that the attorneys recommend that the Board avoid denial of administrative site plans, or at least to contact Town Counsel if the Board is considering denial. Mr. Moody noted that there are 15 items that are required for administrative site plan review, and asked if five of those items were deemed insufficient if that would be deniable. Atty. Troy advised the Board that in a case where the applicant is refusing to supply information, denial is a legitimate option. Ms. Scieskza asked if it is better not to refer to Town Counsel in a case where the Board expects an appeal. Atty. Troy advised the Board to be general in their questions to him in that case.
Mr. Wadsworth asked if the Board should be concerned that they might lose the administrative site plan review bylaw through the courts. Atty. Troy stated that the Board’s decision in an approval should focus on the provisions of the bylaw. If the decision were to be appealed, the judge would determine if a bylaw was in doubt. Mr. Wadsworth noted that it is a challenge to condition based on seven opinions from seven Board members. Mr. Bear stated that the Board prefers revisions to conditioning because conditions might be considered “rubber bullets.” Atty. Witten reiterated his statement that the bylaw was not intended for denial.
Ms. Scieszka asked if a special permit for use is required in the case of a non-profit. Atty. Witten replied that it depends on the situation. Mr. Wadsworth added that it is up to the Director of Inspectional Services. Mr. Bear asked about the route of appeal, and Atty. Troy responded that the law is not entirely clear regarding the building permit process. Mr. Wadsworth asked if a case would have a better or worse chance in Land Court. Atty. Troy replied that Land Court is growing in size and budget, and that they would like to become a specialized court. He noted that there are sometimes longer delays in Superior Court.
Atty. Troy departed the meeting at this point to attend a Board of Selectmen’s meeting.
Ms. MacNab asked about tandem filings, with the Planning Board for administrative site plan review and with the Zoning Board of Appeals (ZBA) for a special permit for use. She stated that it is challenging for the Board to perform administrative site plan review when the use is not defined, and it is challenging for the ZBA to approve a use when the site has not been defined. Atty. Witten suggested the Board consider proposing an amendment to the Zoning Bylaws to direct applicants first to the ZBA for a special permit. He stated his opinion that use comes first. He stated that the ZBA should take a holistic look at the project, and the Planning Board should look at site details. Another option he presented is for the Board to consider a joint hearing with the ZBA, which would allow “clocks clicking simultaneously” to speed up the application process.
Ms. MacNab brought up a question regarding whether overlay districts supercede zoning. Atty. Witten stated that the overlay always applies. At this point, Atty. Witten departed the meeting.
OTHER BUSINESS
Mainstream Engineering Invoice:
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to pay Mainstream Engineering invoice #20910 dated December 31, 2006 in the amount of $950.50 for services related to the Duxbury Yacht Club Maintenance Building, Harrison Street.
DISCUSSION: Mr. Halligan questioned how the consulting engineer spent 4.4 hours on correspondence. Ms. MacNab asked staff to contact Mr. Sexton.
MOTION WITHDRAWN: Mr. Wadsworth withdrew his motion. Mr. Halligan withdrew his second. The invoice payment was postponed to a future meeting.
Amory Engineers Invoices:
MOTION: Mr. Wadsworth made a motion, and Mr. Bear provided a second, to pay the following Amory Engineers invoices dated January 3, 2006:
§ #11521A in the amount of $501.25 for services related to Dingley Dell
§ #11521B in the amount of $31.25 for services related to 766 Temple Street.
There was no discussion.
VOTE: The motion carried unanimously (6-0).
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to pay Amory Engineer invoice #11521C dated January 3, 2006 in the amount of $1,066.25 for services related to 21 Chestnut Street.
DISCUSSION: Ms. MacNab noted that a retaining wall was listed on the invoice as a field change. She expressed concern that a retaining wall is too significant to be considered a field change and stated that the Board would have preferred reviewing it first. Mr. Wadsworth questioned whether the invoice approval should be suspended until the Planning Director is consulted. The vote moved forward.
VOTE: The motion passed unanimously (6-0).
Meeting Minutes:
MOTION: Mr. Wadsworth made a motion, and Mr. Bear provided a second, to approve meeting minutes dated November 27, 2006 and December 11, 2006.
There was no discussion.
VOTE: The motion carried unanimously (6-0).
MOTION: Mr. Wadsworth made a motion, and Mr. Bear provided a second, to approve meeting minutes dated December 4, 2006 as amended.
VOTE: The motion carried (5-0-1), with Ms. MacNab abstaining.
ADJOURNMENT
The Planning Board meeting was adjourned at 9:37 PM. The next meeting of the Duxbury Planning Board will be held on Monday, January 29, 2007 at 7:30 PM at Duxbury Town Hall, Small Conference Room, lower level.
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