Approved April 28, 2008
Town of Duxbury
Massachusetts
Planning Board
Minutes 04/14/08
The Planning Board met in Duxbury Town Offices, Small Conference Room, lower level on Monday, April 14, 2008 at 7:30 PM.
Present: Amy MacNab, Chairman; George Wadsworth, Vice-Chair; Brendan Halligan, Clerk; John Bear, Cynthia Ladd Fiorini, and Harold Moody.
Absent: James Kimball.
Staff: Christine Stickney, Planning Director; and Diane Grant, Administrative Assistant.
Ms. MacNab called the meeting to order at 7:35 PM.
OPEN FORUM
Open Forum was deferred until more members were present.
OTHER BUSINESS
Because it was not yet time for the scheduled public meeting, the Board addressed other business.
Engineering Invoice:
MOTION: Mr. Halligan made a motion, and Mr. Bear provided a second, to approve payment of Amory Engineers invoice #12129 dated April 2, 2008 in the amount of $1,298.75 for services related to 454 Franklin Street / Industrial Tower and Wireless, LLC.
VOTE: The motion carried unanimously, 4-0.
Release of Escrow Funds:
MOTION: Mr. Halligan made a motion, and Mr. Bear provided a second, to approve release of escrow funds plus interest earned, at the applicants’ request, for Deesul, LLC / 104 Tremont Street.
VOTE: The motion carried unanimously, 4-0.
Proposed Revisions to Zoning Bylaws Regarding Building Coverage: Board members agreed that Mr. Kent should be invited to attend a Planning Board meeting of May 5, 2008 to continue discussions.
Proposed Local Initiative Program (LIP) Guidelines: Ms. MacNab noted the draft guidelines and advised Board members that comments are due by April 28, 2008.
Meeting Minutes:
MOTION: Mr. Halligan made a motion, and Mr. Bear provided a second, to accept meeting minutes of February 7, 2008 as written and March 31, 2008 as amended.
VOTE: The motion carried unanimously, 6-0.
CONTINUED PUBLIC MEETING, ADMINISTRATIVE SITE PLAN REVIEW:
95 TREMONT STREET / STANDISH, L.L.C. (OLIVER MEDICAL BUILDING)
Ms. MacNab opened the continued public meeting at 7:47 PM. Present for the discussion were the applicant’s attorney, David Delaney, and engineer, Mr. Paul Brogna. Mr. Halligan read the correspondence list into the public record:
§ Meeting minutes of 03/03/08
§ Mutual Extension form signed on 3/31/08
§ Draft decision dated 04/14/08.
Atty. Delaney clarified in Condition #17 of the draft decision, that with this application the amount of parking would change from 111 spaces to 129 spaces. He also requested that a reference to the application resolving the parking issues be changed to read “substantially resolve.” He noted that although the proposed expansion will address the parking issues, it would be extreme to say it would resolve all parking issues. Mr. Wadsworth stated his position that the application should resolve the problem. It was agreed to use the term “substantially resolve” in Condition #17.
Mr. Brogna advised the Board that after walking the site, he is proposing not to include a fence along a small portion of the northwest corner of the property because the area is already densely landscaped, so no vehicles could park there. Board members agreed to the change.
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to close the public meeting for Administrative Site Plan Review of 95 Tremont Street / Standish, LLC.
VOTE: The motion carried unanimously, 6-0.
Ms. MacNab noted that the project had been approved at the Board’s March 3, 2008 meeting, but the Conditions have not been approved.
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to approve the Conditions as amended at tonight’s meeting for Administrative Site Plan Review of 95 Tremont Street / Standish, LLC.
VOTE: The motion carried unanimously, 6-0.
PUBLIC MEETING, ADMINISTRATIVE SITE PLAN REVIEW:
454 FRANKLIN STREET / INDUSTRIAL TOWER AND WIRELESS, LLC
Ms. MacNab opened the public meeting at 8:05 PM. Present for the discussion were representatives from Industrial Tower and Wireless, Mr. John Champ and Mr. Donald Cody. Also present was the Town’s consulting engineer, Mr. Walter Amory of Amory Engineers, PC. Approximately 25 members of the public were also present. Mr. Halligan read the correspondence list into the public record:
§ Zoning Enforcement letter dated 10/30/07 from S. Lambiase re: use of the site
§ Wetland Enforcement letter dated 11/15/07 from J. Grady re: wetland violations and concern for activities on Town owned land
§ Zoning Board of Appeals Decision dated 3/13/08
§ Application for site plan, plans and supporting documentation submitted by the applicants on 3/18/08
§ Engineering Peer Review by Walter Amory dated 3/20/08
§ Public Meeting notice published in the Clipper 3/26/08 and 4/2/08
§ Development Review Team (DRT) Minutes dated 3/28/08
§ Memo from C. Stickney dated 4/8/08 to public safety depts. and DPW re: municipal use on tower
§ Memo from C. Stickney dated 4/8/08 re: staff review
§ Memo from Deputy Fire Chief Carrico dated 04/08/08 re: Fire Dept. requirements
§ Form letters dated 04/05/08 submitted by seven residents (Caddle, Bowen, D’Amato, Ford, Donovan, Siegel, Chisolm) re: concerns with proposal
§ Letter from resident N. Sharpe dated 04/08/08 re: concerns with proposal
§ Form letters dated 04/12/08 from four residents (McDonough family) re: concerns with proposal
§ Email from P. Buttkus dated 4/14/08 re: agrees to reserve the top 20% of tower for municipal use
§ Letter from M/M Cederlund received 4/14/08 re: concerns with proposed tower
§ Letter from M/M Cesarini received 4/14/08 re: concerns with proposed tower.
Ms. MacNab noted that Administrative Site Plan Review is for reviewing the site, including land, traffic, and public safety. She stated that the Zoning Board of Appeals (ZBA) has already granted the applicant a variance for use of the site for a cell tower, and now the next step is for the Planning Board to review how the site will work. She invited the applicants to present their plans.
Mr. Cody stated that their original application was for a cell tower to be located on Temple Street. Once the Franklin Street site was identified, the ZBA preferred it to the Temple Street location. Industrial Tower and Wireless holds a long-term lease for use of the property but are not owners. The lease is for the tower site and access only. The access would be through a pre-existing driveway to which Industrial Tower has a right of way. Utilities would be placed underground. He noted that Industrial Tower and Wireless also operates a cell tower on Modoc Street, on a site for which they have a long-term lease.
Mr. Cody noted that from reviewing minutes from a Development Review Team meeting of Town department heads, it was noted that a monopole was preferred over a monopine tower. He stated that it was the ZBA’s choice to use the monopine. He also noted that no lighting is proposed on the monopine, because FAA regulations require lighting only for heights over 200 feet, and the proposed tower is 170 feet in height.
Ms. MacNab requested that the applicants provide a general overview of the site. Mr. Champ identified the site as Assessor’s parcel 060-018-071. He noted that cell tower access would be through a pre-existing driveway off of Franklin Street, down a grade and over a river approximately 800 feet to an open area. The cell tower would be located to the rear of this open area. He pointed out on the site plan where wetlands flags delineate the cell tower site, noting that they have filed with the Conservation Commission and this area’s delineation had been approved. The access area is scheduled for review with the Conservation Commission on April 29, 2008.
The cell tower is proposed to be located on a 60 x 60 foot area on the site, which would include a 40 x 20 foot equipment shelter. The shelter would contain four rental rooms for carriers, each one 17 x 9 feet in area. The height of the building is 13 feet in front and 12 feet in back. A siltation barrier will be placed around the site, which will also be surrounded by an eight foot high chain link fence with a ten-foot wide gate. The fence will also hold a 24 x 36 inch sign which is required by the Federal Communications Commission. Because the cell tower is under 200 feet in height, no lighting or strobe lighting would be required.
Mr. Champ stated that the area which they are addressing is the 3,600 square foot area where the tower equipment building and tower will be located. Ms. MacNab questioned if the owner of the property was present, and it was noted that the owner was not present. Ms. Stickney noted that the owner, as a co-applicant signing the Administrative Site Plan Review application, needs to be present to address questions regarding the site.
Mr. Cody stated that the telecommunications bylaw in the Duxbury Zoning Bylaws is not applicable because there is no overlay district to allow a cell tower. He stated that the applicants have a right by Federal law to build a cell tower which supercedes local Administrative Site Plan Review. Ms. Stickney noted that the use of the cell tower is not in question, but rather the site and the issue of different existing conditions and any proposed modifications that may be necessary to accommodate the proposed cell tower.
Mr. Cody stated that the owner, Mr. George Williams, is not an applicant. Mr. Halligan noted that because the access to the cell tower would be over a right-of-way on Mr. Williams’ property, the owner should be present to answer questions regarding the site, including questions regarding the ability of the right of way to handle the weight of trucks that would be passing over bridges on the site. Mr. Cody stated that he could answer those questions. He noted that Industrial Tower and Wireless is the applicant and Mr. Williams is listed only as the owner of record. Ms. Stickney pointed out that under site plan review, the property owner should speak to any part of the site outside the leased area if Industrial Tower cannot, and there are potential issues with the access for the proposed cell tower.
Ms. MacNab noted that it does not make sense to move forward with Administrative Site Plan Review at this public meeting without the owner present to answer questions regarding the site. She suggested continuing the public meeting until the next available date. Ms. Stickney advised the applicants to invite the property owner to come to the next Board meeting to allow for discussion regarding site conditions. She noted that the Planning Department would also contact the owner.
MOTION: Mr. Bear made a motion, and Mr. Halligan provided a second, to continue the public meeting for Administrative Site Plan Review of 454 Franklin Street / Industrial Tower and Wireless, to May 5, 2008 at 8:00 PM.
DISCUSSION: The Board discussed moving the meeting to a larger room to accommodate the public. It was agreed that staff would pursue an alternative location and would notify abutters through the mail only if the location changes from Town Hall.
VOTE: The motion carried unanimously, 6-0.
Mr. Cody and Board members signed a mutual extension form.
ANR PLAN OF LAND: 105 & 69 SAINT GEORGE STREET / COOK & THORBAHN
Present for the discussion were Atty. Brian Cook, who resides at 105 Saint George Street, and Atty. John McCluskey representing the Thorbahns, who reside at 69 Saint George Street. Board members reviewed the ANR plan. Mr. Wadsworth noted that Lot 1B is not a buildable lot. Ms. MacNab noted that typically the proposed lot line is marked with Zs.
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to approve a Plan of Land entitled, “Plan of Land, 105 St. George St., Duxbury, Mass.,” dated February 12, 2008 and signed by Neil J. Murphy, RPLS, as not requiring approval under Subdivision Control Law.
VOTE: The motion carried unanimously, 6-0.
Board members signed the mylar and two paper copies of the ANR plan.
ZBA REFERRAL: 232 WASHINGTON STREET / HENDREN
No one was present to represent the application. Ms. Stickney presented an overview, noting that the applicants propose to raze an existing garage and construct a new garage with a finished second floor. The new structure meets side setbacks but is still within the rear setback, although it appears that there is no reason the structure could not be located outside of the rear setback. The Director of Inspectional Services, Mr. Scott Lambiase, has questioned whether a leaching field may prevent the new structure from being located outside the legal rear setback requirements. A new septic system has not been approved yet by the Board of Health.
Ms. MacNab noted a recent Housing Appeals decision, Bjorklund vs. Town of Norwell, which addresses a similar case of a teardown and rebuilding a larger structure than the original footprint. She noted that the lot coverage would change from 14.1 to 14.9, which is within the fifteen percent coverage allowed. Mr. Bear noted that with the larger structure, there would be an increase in the setback non-conformity.
Mr. Moody expressed his concern with a full bathroom in the garage which, although not prohibited, makes it more than a garage. Board members agreed that issues raised in a staff memo dated April 14, 2008, should be included in the recommendation to the ZBA.
MOTION: Mr. Bear made a motion, and Mr. Moody provided a second, to recommend DENIAL to the Zoning Board of Appeals for a special permit proposed at 232 Washington Street / Hendren, noting the following:
§ The current special permit application proposes to raze an existing structure and construct a larger structure on a nonconforming lot. The Planning Board has attached a summary of prior case law (Bjorklund v. Norwell ZBA, 2008) which upheld the Norwell ZBA in its denial of a similar request to raze an existing structure and replace it with a larger structure on a nonconforming lot.
§ Although the applicant has addressed the existing nonconformity to the side setback, the proposed rear setback appears to encroach on the allowed setback by 5.4 linear feet. The Planning Board notes that there appears to be no impediment toward complying with the rear setback.
§ In addition, the Planning Board notes that the application proposes a full bathroom on the second floor of the proposed garage. Although there is no prohibition for having a bathroom within a garage, future conversion of the second floor to living space only justifies further the applicant’s need to meet the required setback from adjoining properties.
§ The Planning Board also notes that an incorrect plan of record is referenced on the existing site plan. The correct reference is Plan Book 13, Page 795.
VOTE: The motion carried unanimously, 6-0.
ZBA REFERRAL: 19 GURNET ROAD / HAWKINS
No one was present to represent this special permit application to raze an existing dwelling and construct a larger single family dwelling on a nonconforming lot. Ms. MacNab questioned the height of the building and noted that no grades are depicted on the site plan. Ms. Stickney noted that this application provides a perfect example of why the Zoning Bylaws need to be revised to differentiate between natural grade and altered grade. It appears that five to six feet of fill would be removed from the back of the new dwelling in order to add a garage underneath. Fill would be added to the front of the building. Mr. Bear noted that the height of the dwelling appears to be above the maximum height allowed if measured from the natural grade.
The rear of the dwelling (ocean front) is within the 100-year flood zone, as noted on the plans. The Director of Inspectional Services, Mr. Scott Lambiase, has confirmed that breakthrough walls may need to be placed on that side of the dwelling.
Ms. MacNab asked about the number of proposed bedrooms. Mr. Halligan counted five bedrooms from site plans. The current dwelling lists four bedrooms. Ms. Stickney noted that the lot is on Town sewer, and Ms. MacNab noted that the Sewer Commissioners should be alerted.
Mr. Wadsworth noted Area A on the site plan, stating that the applicant does not have control over this area. Ms. Stickney stated that Area A is a paper street shown on Town maps. The current dwelling invades the way, and the proposed deck would encroach on Area A further. Ms. Stickney referenced a note on the site plan stating that the landowner is in the process of obtaining exclusive ownership of Area A, but stated that she knew nothing of this statement. Mr. Bear suggested that setbacks should attempt to be in compliance with the new construction.
Board members also raised issues regarding massing and views and vistas which would have a negative impact on the neighborhood. They requested that issues raised in a staff memorandum dated April 9, 2008 be included in the Planning Board recommendation to the Zoning Board of Appeals (ZBA).
Mr. Moody suggested that the applicant should come before the Planning Board to answer questions before the Board submits its recommendation to the ZBA.
MOTION: Mr. Moody made a motion, and Mr. Bear provided a second, to recommend that the applicant appear before the Planning Board to address questions and concerns raised at tonight’s meeting, before the Planning Board submits its recommendation to the Zoning Board of Appeals.
VOTE: The motion carried unanimously, 6-0.
OPEN FORUM
Chapter 40B Proposed Changes: Mr. Wadsworth reported that he and Ms. Stickney had attended a recent workshop hosted by CHAPA and the DHCD regarding changes to the 40B comprehensive permitting process that went into effect on February 22, 2008. He stated that overall the changes will make it more difficult for Towns to oppose Chapter 40B applications. For instance, the pro forma cannot be considered unless an applicant chooses to appeal a ZBA decision. Also, reducing density is not allowed as a way to mitigate economic concerns. Ms. Stickney added that the application is required to be decided within 180 days of submittal. She will provide materials for Board members to review in the next meeting packet.
Duxbury Farms 40B Development, off Franklin, Valley and High Streets: Ms. MacNab noted that violations remain regarding this project, including the fact that no bond is in place. She stated that she believes the only recourse is to appeal the issuance of the building permits based on violations to the Subdivision Rules and Regulations as presented in the Planning Board matrix submitted to the ZBA in December 2007. Ms. Stickney reported that she has not received permission from the Town Manager to speak to Town Counsel regarding this issue. Ms. MacNab stated that she would call the Town Manager, Mr. Richard MacDonald.
PLANNING BOARD REORGANIZATION
Officer Positions:
MOTION: Mr. Bear made a motion, and Mr. Wadsworth provided a second, to nominate Ms. MacNab as chairperson of the Board. Ms. MacNab accepted the nomination.
VOTE: The motion carried, 5-0-1, with Ms. MacNab abstaining.
MOTION: Mr. Halligan made a motion, and Mr. Bear provided a second, to nominate Mr. Wadsworth as vice-chairperson of the Board. Mr. Wadsworth accepted the nomination.
VOTE: The motion carried unanimously, 6-0.
MOTION: Mr. Moody made a motion, and Mr. Wadsworth provided a second, to nominate Mr. Halligan as clerk of the Board. Mr. Halligan accepted the nomination.
VOTE: The motion carried unanimously, 6-0.
Existing Committee Appointments:
Community Preservation Committee: Mr. Bear (term expires June 30, 2010)
Economic Advisory Committee: Mr. Bear (term expires June 30, 2009)
Open Space Committee: Mr. Moody (term expires June 30, 2010).
Committee Openings that Require Appointments:
Local Housing Partnership (LHP): Ms. Scieszka had been appointed to serve through June 30, 2010, but did not run for re-election for Planning Board when her term expired in March 2008. Mr. Wadsworth, who had been serving as a back-up to Ms. Scieszka, stated that he has submitted a letter of interest to serve on the Housing Trust, and he is not certain that the Board would want to appoint an LHP member to the Housing Trust. Mr. Halligan asked when the Board of Selectmen would be appointing the Housing Trust, and Ms. Stickney replied that it is scheduled for April 28, 2008. It was agreed to defer appointment of a Planning Board member to the LHP to a future agenda.
MBTA Advisory:
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to nominate Mr. Kimball to the MBTA Advisory Board, subject to his agreement to serve.
VOTE: The motion carried unanimously, 6-0.
Land Use Group:It was agreed that Ms. MacNab would continue to serve on the Land-Use Group, with Mr. Wadsworth serving as back-up.
South Shore Coalition: It was agreed to defer appointment of a representative to the South Shore Coalition to a future agenda.
ADJOURNMENT
The Planning Board meeting adjourned at 9:50 PM. The next meeting of the Planning Board will take place on Monday, April 28, 2008 at 7:30 PM at Duxbury Town Offices, Small Conference Room, lower level.
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