Approved 10/06/08
Town of Duxbury
Massachusetts
Planning Board
Minutes 09/22/08
The Planning Board met in Duxbury Town Offices, Mural Room, lower level on Monday, September 22, 2008 at 7:30 PM.
Present: Amy MacNab, Chairman; Brendan Halligan, Clerk; George Wadsworth, Vice-Chair; John Bear, and Cynthia Ladd Fiorini
Absent: James Kimball and Harold Moody.
Staff: Christine Stickney, Planning Director; Diane Grant, Administrative Assistant
Ms. MacNab called the meeting to order at 7:33 PM.
OPEN FORUM
Open Forum was deferred until later in the evening.
ANR PLAN OF LAND: 0 MARGINAL ROAD / STETSON
Present for the discussion were the applicant, Mr. James Stetson; Attorney Drew W. Hoyt; and engineer, Mr. Josh Bows of Merrill Associates. Atty. Hoyt stated that the applicant is seeking to create passable access to his property. The property has existed since 1931 through a Plan of Land filed through Land Court, and Mr. Stetson has a right-of-way easement.
Ms. MacNab noted that if Atty. Hoyt is proposing to use the ANR process to create access, there may be no need to go into the details of improving the way at this particular meeting. Atty. Hoyt noted that the lot and road do not comprise a subdivision, and the lot and way are exempt from Subdivision Control Law. He added that they are not seeking to subdivide any lots.
Ms. MacNab noted that the plan presented does not appear to represent an ANR plan. Atty. Hoyt agreed that it is not a typical ANR plan; however, the application provides for improvement of a way, so it does fit within the definition of the ANR process.
Atty. Hoyt stated that the applicant had looked into the definition of an ANR before filing, and noted that the application clearly does not represent a subdivision. They believe that this application fits the wording of requirements for plans that do not require approval under Subdivision Control Law. He acknowledged that he had met with Ms. Stickney, the Planning Director, and they disagreed on the approach for submission of an application. He stated that the applicant is under no obligation to submit the plan as a subdivision when there is none. He requested that the Board not hastily shut down the hearing, and instead to listen to their technical proposal rather than focusing on procedural issues. He offered the Board time to review the application more carefully.
Ms. MacNab noted that this may not be the appropriate time for a technical review. She said that the State is clear regarding what constitutes the creation of an ANR plan, and it may be a better approach to file a definitive or preliminary subdivision. Atty. Hoyt noted that the applicant is not suggesting that they are exempt from State statute, but they are filing for a roadway improvement. He referenced the Berg v. Lexington case law regarding a similar application that was ruled to fit within a local regulatory procedure.
Ms. Ladd Fiorni noted that during the applicants’ discussion with Ms. Stickney it had been suggested that the applicants file through the Conservation Commission for roadway improvement since there are significant wetlands issues. Ms. Ladd Fiorini questioned why the applicants had not chosen to do that. Atty. Hoyt stated that years ago, Mr. Stetson had filed an application and obtained Orders of Condition from the Department of Natural Resources. When he subsequently went before the Zoning Board of Appeals at that time, he was directed to go to the Planning Board to file a plan to show access. He noted that this happened years ago, but stated that it was clear that the ZBA directed the applicant to obtain Planning Board approval. Mr. Bear noted that the main issue here is Conservation, because the land in question
is really salt marsh. Atty. Hoyt noted that the applicant is not required to file through Conservation first.
Mr. Wadsworth asked if the road is considered an adequate way, and Atty. Hoyt confirmed that the road does not exist, but is an unimproved paper street. Mr. Wadsworth asked who owns the roadway, and Atty. Hoyt responded that Mr. Stetson owns part of the access and he has a right of way easement over another part. Atty. Hoyt noted that the Berg case demonstrates that a right-of-way gives an owner a right to maintain passable access.
Ms. MacNab stated that because the applicant does not have the ANR requirement of 200 feet of frontage on a way that the Planning Board considers safe and adequate, she does not see the need for the discussion going further. Atty. Hoyt urged the Board to read the Berg case and consult with Town Counsel. He agreed that although their project does not fall neatly under any procedure, the applicant has a vested right to improve the way and the Planning Board has a right to allow improvements for access.
Ms. Stickney noted that the Berg case that Atty. Hoyt is referencing was specifically an appeal of a subdivision plan, not an ANR plan. Atty. Hoyt noted that the plaintiff in that case chose to file under a subdivision plan. However, for lots and ways that predate Subdivision Control Law, owners are given certain rights of improving ways. Ms. Stickney noted that the Town of Duxbury does not have an application for adequacy of ways; the only mechanism available to make improvements to a way is through Subdivision Control Law. Atty. Hoyt stated that he believes Subdivision Control Law has less pertinence to adequacy of way than the ANR process. He noted that they are not looking for the usual 21-day approval that is required under the ANR process.
Ms. Stickney noted that she had recommended to Atty. Hoyt that the applicants use the subdivision process because it would be the only way that waivers could be granted. Atty. Hoyt stated that they do not need waivers because there is no subdivision and therefore they are not subject to Subdivision Control Law.
Atty. Hoyt stated that if the Board was suggesting that the applicant subject himself to Subdivision Control Law, it would take away rights from the applicant regarding a lot that pre-dates Subdivision Control Law. Mr. Wadsworth noted that the Board is simply saying that the application before them is not an ANR plan. Atty. Hoyt stated that if the Board is not interested in getting into a substantive discussion of the application, he would consider taking other measures. Ms. MacNab stated that it is not the case that the Board is not interested; however, she believes it is not the appropriate time to have a substantive discussion because it is not the appropriate process. She invited the applicants to return under a different mechanism.
Atty. Hoyt expressed his frustration that, given his belief that the definitive process does not apply, he would have to file under “other.” Ms. Stickney noted that some towns have other processes, but in the Town of Duxbury the only options are the ANR process and the definitive subdivision process. She advised Atty. Hoyt that Town Counsel has reviewed the current application and is aware of staff’s recommendation to the Board to not endorse the ANR plan.
MOTION: Mr. Wadsworth made a motion, and Ms. Ladd Fiorini provided a second, to not endorse an ANR plan of land at 0 Marginal Street (Stetson) entitled, “Roadway Improvement Plan, Map Lot 211, Block 941, Lot 046, Marginal Road, Duxbury, Massachusetts,” dated July 23, 2008 and signed and stamped by Peter G. Palmieri, RPE – 3 sheets. There was no discussion regarding the motion.
VOTE: The motion carried unanimously (5-0).
AS-BUILT APPROVAL: DUXBURY YACHT CLUB STORAGE FACILITY AND MAINTENANCE BUILDING, 70 FAIRWAY LANE
Present for the discussion reperesenting the Yacht Club were Mr. Shawn Dahlen, Mr. Lyon Carter and Mr. Peter Lanman. Mr. Thomas Sexton of Mainstream Engineering, Inc. was also present as the Town consulting engineer.
DUXBURY YACHT CLUB STORAGE FACILITY
The Board addressed the Duxbury Yacht Club Storage Facility first. Staff provided Mr. Sexton with a copy of revised plans dated September 9, 2008 and a cover letter dated September 16, 2008. The Board addressed outstanding issues as identified by Mainstream Engineering.
MOTION: Mr. Wadsworth made a motion, and Mr. Bear provided a second, to accept an As-Built plan for Duxbury Yacht Club Storage Facility entitled, “As Built Storage Building Location in Duxbury for Duxbury Yacht Club, 70 Fairway Lane,” dated August 28, 2006 latest revision on September 9, 2008, and stamped, dated and signed by Robert W. Crowell (RPE) – one sheet, and to return all remaining escrow fees from this account.
DISCUSSION: Mr. Bear asked if the applicants are requesting return of escrow account fees held for consulting engineer review. Mr. Dahlen stated that the Duxbury Yacht Club is requesting return of all remaining escrow fees for the storage facility.
VOTE: The motion carried unanimously (5-0).
Ms. Stickney advised Mr. Dahlen that escrow funds will be held until final billing is received from the consulting engineer.
DUXBURY YACHT CLUB MAINTENANCE BUILDING
Staff provided Mr. Sexton with a copy of revised plans for the Duxbury Yacht Club maintenance building dated September 9, 2008 and a cover letter dated September 16, 2008. The Board addressed outstanding issues as identified by Mainstream Engineering.
Mr. Dahlen noted that all site work has been stabilized. He also noted that the applicants have chosen not to utilize a hazardous material storage pod because no fertilizers or pesticides will be stored at that site. The Fire Department has signed a Certificate of Occupancy and has no remaining isssues with the project.
Mr. Sexton had raised the issue of a dumpster on site that was not depicted on the As-Built plans. Mr. Dahlen stated that it was an oversight and plans now depict the location of the dumpster adjacent to the fuel depot as it has been for the past twenty years. Mr. Sexton expressed a remaining concern that, according to Condition 20 of the site plan approval, long-term outdoor storage containers are prohibited from occurring on the site. Mr. Dahlen responded that the Fire Department had approved the Certificate of Occupancy, and the Yacht Club has a permit for the dumpster through the Town. Ms. Stickney noted that the Plannning Department usually defers judgment to the Board of Health and Fire Department regarding these issues, and both have signed off on the Certificate of Occupancy. Mr. Wadsworth requested that staff
follow up to ensure that the Fire Department has no concerns regarding the location of the dumpster.
Mr. Sexton stated a concern that a two-inch water service valve is shown on the As-Built plan, but no piping is indicated. Mr. Dahlen stated that it should be labeled as “irrigation supply” instead and is not connected to the building. Mr. Dahlen confirmed that a new potable well exists and agreed to indicate the placement of the water line on As-Built plans.
Mr. Sexton expressed a concern regarding the septic system not representing As-Built elevations. In his review letter, he had recommended that if inspection ports are not exposed at finish grade, then ties should be provided. Mr. Dahlen responded that the Board of Health has signed off on the As-Built septic system and the Certificate of Occupancy permit.
MOTION: Mr. Wadsworth made a motion, and Mr. Bear provided a second, to accept an As-Built plan for Duxbury Yacht Club Maintenance Building entitled, “Site Plan As-Built in Duxbury for Duxbury Yacht Club, 70 Fairway Lane,” dated August 30, 2006, latest revision on September 9, 2008, stamped, dated and signed by Robert W. Crowell (RPE) – two sheets, pending corrections to As-Built plans to depict actual water lines to the potable well, and to remove a reference to a proposed grade elevation.
DISCUSSION: Mr. Bear asked if the applicants are requesting return of escrow account fees held for consulting engineer review for this account. Mr. Dahlen stated that the Duxbury Yacht Club is requesting return of all remaining escrow fees for the maintenance building.
VOTE: The motion carried unanimously (5-0).
Ms. Stickney advised Mr. Dahlen that these escrow funds also will be held until final billing is received from the consulting engineer.
AS-BUILT APPROVAL: BERRYBROOK SCHOOL, 267 WINTER STREET
Present for the discussion were Mr. Mike Dinapoli from Berrybrook and Mr. Thomas Sexton of Mainstream Engineering, the Town consulting engineer. Mr. Sexton referenced his review letter of September 9, 2008 with two outstanding issues. One of these issues is lack of drainage and septic information, especially active and abandoned septic piping. He did confirm that all utilities are now shown on As-Built plans. Ms. Stickney stated that the Board of Health is satisfied with the current As-Built septic plans. Mr. Sexton also noted that As-Built plans do not depict As-Built landscaping other than tree locations.
MOTION: Mr. Bear made a motion, and Mr. Wadsworth provided a second, to approve As-Built plans entitled, “’As-Built Site Plan’ of Berrybrook School in Duxbury, Massachusetts,” latest revision dated September 3, 2008, and dated, signed and stamped by John C. Veracka, Jr. (RPE) – two sheets, and also to approve the release of the associated surety bond and remaining funds in the consulting engineer review account.
VOTE: The motion carried unanimously (5-0).
Ms. Stickney advised Mr. Dinapoli that all funds will be held until final billing is received from the consulting engineer.
ESCROW RELEASE: 454 FRANKLIN STREET / INDUSTRIAL TOWER AND WIRELESS LLC
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to release any remaining escrow account funds for Administrative Site Plan Review of 454 Franklin Street / Industrial Tower and Wireless LLC.
VOTE: The motion carried unanimously (5-0).
ZBA REFERRAL: ISLAND CREEK VILLAGE NORTH LLC COMPREHENSIVE PERMIT, 30 TREMONT STREET
Ms. MacNab referenced a draft letter to the Zoning Board of Appeals (ZBA) requesting more time to review the application, and stated that she supports asking for an extension. She asked staff if the application is complete, and Ms. Stickney replied that in her preliminary review it appears that no waivers are requested from Subdivision Rules and Regulations. The first public hearing is scheduled with the ZBA on October 9, 2008, and the ZBA will decide at that time if they consider the application complete and whether Comprehensive Permit Rules and Regulations from 2002 or 2008 apply to this application.
Mr. Bear asked why the applicants did not pursue rezoning the parcels back to Neighbhorhood Business District, and Ms. Stickney responded that the applicants are of the opinion that a rezone is not needed.
Ms. Stickney advised the Board that she will provide comments before their review. She noted that a Development Review Team (DRT) meeting has not been scheduled yet because the ZBA is in the process of hiring a consulting engineer. Mr. Halligan suggested that the ZBA should consider having an audit trail for their decision, and Ms. Stickney recommended that this suggestion be brought up in a joint meeting between the ZBA and Planning Board currently scheduled for October 6, 2008.
Mr. Bear asked if the Baptist church abutting the project is selling land they obtained from Island Creek, and Ms. Stickney confirmed that they are selling a portion of land to the rear of the lot. She advised the Board that according to the church pastor they are also selling another wedge of land closer to Tremont Street that is adjacent to the project, but he would not divulge to whom the land was being sold. Ms. Stickney noted that the land in question is zoned Residential Compatibility.
The Board agreed to send the proposed letter to the ZBA as drafted.
OTHER BUSINESS
Freeman Farms Follow-Up: Members reviewed a draft letter that outlines the discussion held at a Board meeting of July 28, 2008 with the applicant regarding the status of this subdivision off Elm Street. Ms. MacNab suggested that the letter should be in bulleted format. Mr. Wadsworth advised that a dirt pile discussed at that meeting remains, although it has decreased in height, noting that this is a safety issue. He also noted that a large drainage area is no longer functioning and needs to be rebuilt. Staff offered to submit a revised draft letter for the Board’s next meeting.
Engineering Invoices:
MOTION: Mr. Halligan made a motion, and Mr. Wadsworth provided a second, to approve payment of Amory Engineers invoice #123248 dated September 9, 2008 in the amount of $130.00 for services related to Dingley Dell.
VOTE: The motion passed unanimously (5-0).
MOTION: Mr. Wadsworth made a motion, and Mr. Halligan provided a second, to approve payment of the following Mainstream Engineering invoices dated August 31, 2008:
§ Invoice #21069 in the amount of $551.00 for services related to Duxbury Yacht Club maintenance building
§ Invoice #21159 in the amount of $261.00 for services related to Duxbury Yacht Club storage facility.
VOTE: The motion passed unanimously (5-0).
Meeting Minutes:
MOTION: Mr. Wadsworth made a motion, and Ms. Ladd Fiorini provided a second, to approve meeting minutes of August 25, 2008 as amended.
VOTE: The motion passed unanimously (5-0).
OPEN FORUM
Inspector General’s Report on 40B Developers: Mr. Wadsworth noted an article in the September 19, 2008 Patriot Ledger about the Inspector General’s concerns with developers billing communities and stifling community input. The article cast a negative light on the Department of Housing and Community Development. Mr. Halligan offered to copy the article for distribution at the next Board meeting.
Proposed Revisions to Comprehensive Permit Rules and Regulations: Ms. MacNab read aloud a letter that she had drafted on behalf of the Board responding to the Local Housing Partnership’s letter to the ZBA dated August 18, 2008. Ms. MacNab commented that it appears that the LHP has tunnel vision on affordable housing without considering its ramifications to the Town, while the Planning Board’s focus is more global. Board members agreed to send the letter with some slight modifications as determined by Ms. MacNab.
Randall Arendt Site Walk in Norwell: Ms. MacNab reported that she had attended a site walk at the invitation of the Norwell Town Planner that was led by Mr. Randall Arendt, who is recognized as a pioneer in open space residential design. She noted that site development in this process is led by siting homes to fit into natural features rather than jamming a maximum number of homes onto a site.
Local Housing Partnership (LHP): Mr. Wadsworth reported that Mr. James Lampert, former member of the Zoning Board of Appeals (ZBA), came to the most recent LHP meeting to provide input into a potential accessory apartment bylaw revision for Annual Town Meeting. The LHP proposal would not require an accessory apartment to be affordable. Ms. MacNab pointed out that affordable housing is the LHP’s charge, and suggested that this is something the ZBA could look into sponsoring instead.
Pratt Circle Subdivision Request for Release of Surety: Mr. Wadsworth referenced a letter from the applicant’s attorney requesting release of a $40,000.00 surety for this subdivision, along with Town Clerk’s response that the funds could not be released because the applicant had not met a condition requiring a recorded homeowners’ agreement.
Open Space Plan: Ms. Stickney advised the Board that this is the last chance for Board input before publication, and asked Board members to provide her with any last minute comments.
ADJOURNMENT
The Planning Board meeting adjourned at 9:55 PM. The next meeting of the Planning Board will take place on Monday, October 6, 2008 at 7:30 PM at Duxbury Town Offices, Small Conference Room, lower level.
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