PLANNING BOARD MINUTES
March 24, 2008
7:00 PM
The Planning Board for the City of Marlborough met on Monday, March 24, 2008 in Memorial Hall, 3rd floor, City Hall, Marlborough, MA 01752. Members present: Barbara Fenby, Chairperson, Steve Kerrigan, Clerk, Phil Hodge, Clyde Johnson, Edward Coveney, Robert Hanson and Sean Fay. Also present: City Engineer Thomas Cullen.
MINUTES
Meeting Minutes March 10, 2008
On a motion by Mr. Kerrigan, seconded by Mr. Johnson it was duly voted:
To accept and file the meeting minutes.
CHAIR’S BUSINESS
Street Listing Correspondence
The street listing for public and private ways was reported to the Planning Board. At this present time there is 191 unaccepted ways in the City. Mr. Cullen stated that the majority of the private ways that is currently plowed by the City is a matter of public safety.
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To accept and file correspondence.
The Commonwealth of Massachusetts
Marlborough/Hudson I-495/I-290/Route 85 Interchange Report
The State is asking for a review, as required by 301 CMR 11.16 of the Massachusetts Environmental Policy Act Regulations, of the Environmental Notification Form for the state highway interchange project. Mr. Cullen stated that the City Engineering Department also received a copy of report as well.
APPROVAL NOT REQUIRED PLAN
181 Mill Street South
The City Engineer has reviewed the ANR for 181 Mill Street South and recommended that the Board approve the ANR Plan.
On a motion by Mr. Kerrigan, seconded by Mr. Fay, it was duly voted:
To accept and endorse a plan of land believed to be Approval Not Required of FJW, LLC of 259 Turnpike Road, Southborough, MA 01772. Name of Engineer: The Jillson Company, P.O. Box 2135, Framingham, MA 01703. Deed of property recorded in South Middlesex Registry of Deeds book 47490, page 167, book 45351 page, 508 and book 15274; page 567. Location and description of property: located at 181 Mill Street South property shown on Assessors map 104, parcel 30.
Boston Post Road East/Dicenzo Blvd
Don Seaburg presented to the Planning Board the Approval Not Required Plan for 639 and 661 Boston Post Road East explaining the change in lots for property.
On a motion by Mr. Kerrigan, seconded by Mr. Johnson, it was duly voted:
To accept and refer the proposed plan to the City Engineer for his review and recommendation at the next meeting on Monday, April 7, 2008.
PUBLIC HEARING
SUBDIVISION PROGRESS REPORTS
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To move up agenda item 5-C (Forest Trail).
Forest Trail (Mosher Lane)
Subdivision Update from the City Engineer
Mr. Cullen did a full review of the subdivision and several issues that still need to be addressed in the following areas:
· Emergency Access Drive
· Drainage Easement
· Sewer Extension
· Plan of Acceptance for Mosher Lane
· Legal Descriptions
· Grading, final pavings and debris removal needs to be completed
Donald Rider, City Solicitor
Mr. Rider stated that the issue was the legal effect of paragraph 11 in the covenant between the board and the developer.~ Paragraph 11 states that “construction of all ways and the installation of all municipal services shall be completed in accordance with the applicable Rules and Regulation of the Planning Board within a period of two (2) years from the date of approval of the “Plan”. Failure to so complete or to obtain an extension shall automatically rescind the approval of the “Plan” as to lots not yet released from this Covenant and full re-application for approval of such lots will be required.”~ Mr. Rider stated that the Board could consider that the covenant required the developer to have completed the subdivision road and infrastructure work by August or September 2004, so that under paragraph
11 all~ lots released prior to the two-year deadline would not be affected by the automatic recession of the subdivision approval.~ He stated that, according to Board records, the developer had not completed that work by that deadline.~ Mr. Rider stated that the factual issue thus became which lots, if any, were not yet released prior to August or September 2004.~
Mr. Rider presented to the board several options on how it could proceed to address that factual issue. One option was for the Board to require that Avidia Bank take lots 11 through 16 through a new approval process. ~Another option was to re-examine the Board’s lot release in November 2002.~ He stated that the only documentary evidence indicated that the Board had released lots 1 through 10 inclusive, as shown on the original lot release in November 2002. ~The question thus arose whether or not the remaining lots 11 through 16 including parcels 15A and 16A were released prior to August or September 2004.~
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To help the Board address that question, Pamela Wilderman, the Planning Board’s previous secretary, spoke.~ Ms. Wilderman stated that the Board intended to release all lots in 2002. ~She stated that, at the November 2002 meeting, the developer was looking for an immediate release of the lots at that meeting and when she then and there asked the Asst. City Engineer, Thomas Temple, he stated there were only 10 lots. ~She stated that the Planning Board intended to release all lots inclusively. She stated that the 1-10 inclusive was strictly a scrivener’s error, as the lot release should have been for 1-16 inclusive. ~She also stated that the Planning Board has not released a single lot in several years due to past problems of releasing single lots.
Mr. Rider advised the Board that it was free to accept or reject Ms. Wilderman’s statements in whole or in part, and that the Board should determine whether what she stated was or was not consistent, not only with the Board’s custom and practice back in November 2002, but also with each member’s recollection, if any, of the November 2002 meeting.
Daniel Burger, attorney for Avidia Bank, stated that the bank was willing to accept an affidavit from Ms. Wilderman on the scrivener’s error if the Board chose to go that route.~ He also asserted that the automatic rescission was invalid for having failed to comply with MGL c. 41, § 81W.~ Mr. Rider replied that § 81W deals only with a vote to rescind, not with an automatic rescission.
Mr. Fay asked Ms. Wilderman if the Board did not do single release lots, then why did they do one for Lot 14?~ Ms. Wilderman did not have a direct answer, nor did Ms. Lizotte.~ Ms. Wilderman did state that the Board did confirmatory releases when the mortgagees requested one for their real estate closings.
Mr. Fay also asked Mr. Burger whether in his opinion if he thought that the solution being proposed was legally sufficient. He also asked the attorney if the purchaser would be able to obtain title insurance for the individual lots based upon the Scrivener’s affidavit. Mr. Burger stated that he thought the solution was legally sufficient and that purchasers would be able to obtain title insurance with a scrivener’s affidavit.
Ms. Fenby did question the members to ask them what they thought was the better solution. ~Mr. Johnson stated he wanted to do what was best for the current homeowners.~ Mr. Kerrigan stated that he understood what the clear process would be. Mr. Hodge stated there was no consistency in the lots and would vote for the clearest way without changing anything.
Mr. Fay asked Attorney Burger if he regarded the scrivener’s affidavit as a legally sufficient method of establishing that the Board had released all the lots/parcels in the Forest Trail subdivision in November 2002.~ Attorney Burger stated that the scrivener’s affidavit would, in his opinion, be legally sufficient, and he reiterated his support for the affidavit which he had proposed to the Board earlier in the meeting.
Mr. Rider also reminded the Board about the proposed agreement between the Board and Avidia, which was in the nature of a “mini covenant,” and advised that the Board might wish to require Avidia to post a bond to protect the City in case of default by Avidia Bank.~
On a motion by Mr. Johnson, seconded by Mr. Coveney, with Mr. Fay and Mr. Hanson abstaining, it was duly voted:
That, effective November 18, 2002, the Planning Board hereby certifies, now for then, that the requirements called for by the Covenant dated September 23, 2002, and recorded in the Middlesex South Registry of Deeds on September 26, 2002 in Book 36520, Page 575, have been secured through bond or sureties to the satisfaction of the Planning Board, as to Lots 11 through 16, including Parcels 15A and 16A, as shown on Plan 1026 of 2002, as endorsed by the Board on September 23, 2002 and recorded in the Middlesex South Registry of Deeds on September 26, 2002 in Book 36520, Page 570, and said Lots 11 through 16, including Parcels 15A and 16A, were released from the Covenant’s restrictions as to sale and building thereon; and, further, the Board requests a scrivener’s affidavit from Pamela Wilderman relative to said
release.
On a motion by Mr. Johnson, seconded by Mr. Coveney, with Mr. Fay and Mr. Hanson abstaining, it was duly voted:
That, effective November 18, 2002, the Planning Board hereby confirms that the requirements called for by the Covenant dated September 23, 2002, and recorded in the Middlesex South Registry of Deeds on September 26, 2002 in Book 36520, Page 575, have been secured through bond or sureties to the satisfaction of the Planning Board, as to Lots 1 through 16, including Parcels 15A and 16A, as shown on Plan 1026 of 2002, as endorsed by the Board on September 23, 2002 and recorded in the Middlesex South Registry of Deeds on September 26, 2002 in Book 36520, Page 570, and said Lots 1 through 16, including Parcels 15A and 16A, were released from the Covenant’s restrictions as to sale and building thereon.
On a motion by Mr. Kerrigan, seconded by Mr. Hanson it was duly voted:
To ask the City Engineer to prepare a bond amount and to place Forest Trail on the next meeting agenda.
Update from City Engineer
Mr. Cullen provided to the Board a new subdivision status report. He stated that Water’s Edge resubmitted new as-builts, O’Leary’s Landing has resubmitted their as-builts for review and he his preparing a final “punchlist” for Sterling Woods.
Davis Estates
Bond Reduction
Mr. Cullen has reviewed the status of the subdivision and can recommend that the current bond amount of $810,000.00 to $357,000.00.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file the correspondence from City Engineer Thomas Cullen, and to authorize the reduction of the bond securing the subdivision from $810,000.00 to $357,000.00
The Residences of Oak Crest
Subdivision Extension
The developer is asking for a two year extension to complete all roadways and installation of all municipal services. The definitive approval date was February 27, 2006 and the date to extend the subdivision before the two year date according to paragraph 11 in the Covenant would have been February 27, 2008. All lots were released from the Covenant on December 3, 2007.
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To ask the developer to resubmit a clean version of his request, to request the City Engineer for a status report and to alert the City Solicitor of the request.
PENDING SUBDIVISION PLANS: Updates and Discussion
PRELIMINARY/ OPEN SPACE SUBDIVISION SUBMITTALS
DEFINITIVE SUBDIVISION SUBMISSIONS
SCENIC ROADS
Tree Warden
Correspondence
In a letter written by Chris White, the Tree Warden for the City, explained to Mayor Stevens that a joint public hearing was held with the Planning Board regarding several trees throughout the City. Since there was opposition from a resident on several trees the Mayor would have to give her written consent for the removal.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence.
City Solicitor Donald Rider
Correspondence
The City Solicitor sent correspondence informing the Board the public hearing that was held with the Tree Warden on March 10, 2007 was illegally insufficient to invoke joint public hearing. As he mentioned, the only time a public hearing is warranted is when “any tree cutting removal…becomes meaningful for scenic road purposes only of proposed in connection with ‘repair, maintenance, reconstruction, or paving work’ being done to scenic road.” This would be the same conclusion for stone walls.
Mr. Rider, under the direction of the Mayor, has prepared a checklist for the Board and the Tree Warden determine if a joint public hearing would be necessary or if the jurisdiction would be under the Tree Warden. Mr. Rider would also like to add the following language to the Scenic Road Application:
The Scenic Roads Act and the City of Marlborough’s Scenic Roads Ordinance provide that any repair, maintenance, reconstruction or paving work done with respect to any road designated as a scenic road shall not involve or include the cutting or removal of trees or tearing down or destruction of stone walls, or portions thereof, except with prior written consent of the Planning Board after a public hearing.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence; and add the language to the permit.
SIGNS
INFORMAL DISCUSSION
Abutters Literature
At this time there is not further information.
COMMUNICATIONS/CORRESPONDENCE
On a motion by Mr. Kerrigan, seconded by Mr. Hodge, it was duly voted:
To accept all of the items listed under communications and/or correspondence.
On a motion by Mr. Johnson, seconded by Mr. Kerrigan, it was duly voted:
To adjourn at 8:40 p.m.
A TRUE COPY
ATTEST: _____________________________
Steven Kerrigan, Clerk
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