PLANNING BOARD MINUTES
February 22, 2010
7:00 PM
The Planning Board for the City of Marlborough met on Monday, February 22, 2010 in Memorial Hall, 3rd floor, City Hall, Marlborough, MA 01752. Members present: Barbara Fenby, Steven Kerrigan, Phil Hodge, Edward Coveney and Sean Fay. Also present: City Engineer Thomas Cullen.
MINUTES
Meeting Minutes January 25, 2010
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To accept and file the amended minutes of January 25, 2010.
Meeting Minutes February 22, 2010
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted, with Mr. Hodge abstaining:
To accept and file the minutes of February 8, 2010.
CHAIRS BUSINESS
Mrs. Lizotte provided the Subdivision Current Status. Mr. Cullen will review the format and “tweak” what is necessary. Mr. Fay stated that the expiration dates of the members should be added as well.
APPROVAL NOT REQUIRED PLAN
Crowley Drive
ANR Submittal
Attorney Arthur Bergeron presented an ANR plan depicting the lot reconfiguration of the Assabet Ridge Retirement Community and the Metropark Development on Crowley Drive. This new plan shows three new lots and two new parcels as follows:
· Lot 1B with 286,227 S.F. (6.57 AC)
· Lot 2B with 555,306 S.F. (12.75 AC)
· Lot 2A with 304,531 S.F. (6.99 AC)
· Parcel “A” (94,536 S.F.) to be conveyed from Lot 1B to Lot 2B
· Parcel “B” (2,530 S.F.) to be conveyed from Lot 1B to Lot 2B
On a motion by Mr. Kerrigan, seconded by Mr. Coveney 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, March 8, 2010.
Crowley Drive
Resign ANR
Mr. Bergeron verbally requested a resigning of the ANR plan that was approved in October 2009. Mr. Bergeron stated that he could not find the plan and would have another Mylar produced for signature. Once the plan has been reproduced, he will then take the plan to the City Engineer for confirmation it matched the plan signed in October and Mr. Cullen will then send the plan to Mrs. Lizotte for re-signature.
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To have Mr. Bergeron submit a written request; Mr. Cullen review and confirm plan and Mr. Kerrigan will re-sign once the plan is confirmed.
PUBLIC HEARING
SUBDIVISION PROGRESS REPORTS
Update from City Engineer
Mr. Cullen stated there were no major updates at this time.
Acre Bridge Estates (Blake Circle)
Subdivision Completion
Through the City Engineers correspondence from October of 2009, the remaining bond amount is $31,000.00. Mr. Cullen verbally confirmed the amount and stated the subdivision is complete.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence from the City Engineer, to reduce the bond from $31,000.00 to $0.00 and to change the subdivision status to completed.
Blackhorse Farms, Cider Mill Estates and West Ridge Estates (Fafard Development)
Correspondence from Attorney Roelofs
On his client’s behalf, Attorney Roelofs responded to the Planning Board’s question if the subdivision approvals have “lapsed”. Based on Mr. Roelofs interpretation of the City of Marlborough’s Subdivision Rules and Regulations he stated that it is his opinion the subdivision approvals have not lapsed. He cited the following in his written correspondence:
· Covenants were executed by the Board and the respective developers in connection with original subdivision approvals.
· Covenants were executed to secure the construction of ways and the installation of municipal services pursuant to M.G.L. c.41, S81U.
· The Convents provided the construction of the ways and municipal services must be completed within 2 years from the date of approval, unless extended by the Board, and the failure to timely complete the work results in or provides a basis for rescission of the approvals.
He also opines that the three subdivisions have been released from the restrictions that were set forth by the respective covenants by monetary performance bonds. He stated that the developers have posted a bond to secure the construction of the ways and the installation of municipal services. He asserts the Board consented to a release of all the lots from the covenants, the covenants and the 2 year construction deadlines set forth in the covenants no longer apply because of the release of the lots by the performance bond. He argued that a 2 year construction deadline applied to the subdivision under the covenants for the subdivision does not apply and has not applied since the Board’s release of all the lots from the covenants.
Mr. Roelofs stated that even the 2 year construction deadline set forth in Section III.B.7 of the City of Marlborough’s Subdivisions Rules and Regulations is questionable. He cited that nothing in M.G.: c 41 S 81U or even local rules suggested that the failure to meet the deadline would have any impact on the validity of the subdivision approval. As stated by Mr. Roelofs, the only applicable construction deadline to these subdivisions is the 2-year construction deadline set forth in Section III.B.7.a of the City of Marlborough’s Subdivisions Rules and Regulations; whether it applies to his clients or the validity of the underlying subdivision approvals.
Mr. Roelofs did state that his client is currently working with the Building and Engineering Officials to identify the remaining work to be completed as well to prioritize a schedule for the completion of work. Once the efforts have progressed, his clients may be submitting a formal extension review request to the Planning Board.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file the correspondence.
Mr. Cullen told the Planning Board that the meeting on February 18, 2010 was attended by himself, Dick Baldelli, Stephen Reid, Donald Rider, Carrie Lizotte, and Sean Fay and from Fafard Development Harry Mack along with Donald Seaberg. Mr. Cullen stated that he felt the developer understood his points and the developers understood the importance of open communication.
Mr. Rider stated that the two attorneys have not come to a consensus and it was his understanding from the meeting that the developers would submit a request for an extension of the subdivision approval.
Mr. Fay said to Mr. Roelofs that his interpretation of the City of Marlborough’s Rules and Regulations is incorrect, that his interpretation of the applicable two year language is too restrictive, and that a developer has an affirmative obligation to request an extension and that there is a significant difference in a developer agreeing to seek an extension voluntarily and a developer acknowledging that there is an affirmative obligation to do so. Mr. Fay also stated that the 2 year reference in the Planning Board's rules and regulations, interpreted properly, is a condition precedent to the sufficiency of the form of security selected by the developer, and the expiration of this two year period without a proper extension, and the developer's apparent unwillingness to acknowledge this affirmative obligation calls the sufficiency of the
security into question. Mr. Fay also raised the issue with other members of the Board that if the Board accepts Mr. Roelofs' interpretation of the applicable rules and regulations, whether the Board had an affirmative obligation to take the bond. If the developer does not acknowledge its affirmative obligations, the public's interest is at risk. Mr. Roelofs stated he was responding to the September 30, 2009 letter sent from the Planning Board.
Mr. Fay then explained that is normal procedure for developers to come and request and extension before the two year expiration date. Mr. Fay stated that if the developer’s had come in on schedule as required, many of the recent issues could have been addressed.
Mr. Roelofs stated that his clients are willing to come in to request an extension but not to concede an extension is required. His reasoning was that if his clients submitted a request, the Planning Board denying because of the question of subdivision approvals.
Dr. Fenby stated that she is concerned with Mr. Roelofs opinion that an extension is not necessary and disagreed with his conclusion.
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To asks the developers, city engineer and the city solicitor to continue efforts to identify an amicable solution; place on the agenda for Monday, March 8, 2010.
Mauro Farms (Cook Lane)
Extension Request
Martin Loiselle submitted a subdivision completion schedule as well as a request for a two year extension.
On a motion by Mr. Kerrigan, seconded by Mr. Fay it was duly voted:
To table any action until March 8, 2010.
PENDING SUBDIVISION PLANS: Updates and Discussion
PRELIMINARY/ OPEN SPACE SUBDIVISION SUBMITTALS
DEFINITIVE SUBDIVISION SUBMISSIONS
SCENIC ROADS
SIGNS
City Solicitor Correspondence
Proposed Amendment
The Planning Board has asked the City Solicitor to review the proposed sign amendment that was originally sent to the City Council in early 2009. However with no action by the Council the propose amendment expired on December 31, 2009. The Planning Board would like to resubmit the amendment to the City Council for their consideration.
The Planning Board would like to further amend to sign ordinance to include the Board as an authority, along with the Building Inspector, to enforce the sign ordinance. After explaining why the board could not be included as an enforcing authority, the City Solicitor presented this draft order for the Planning Board to consider:
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MARLBOROUGH THAT THE CODE OF THE CITY OF MARLBOROUGH, AS AMENDED, BE FURTHER AMENDED BY AMENDING CHAPTER 163, ENTITLED “SIGNS,” AS FOLLOWS:
1. Section 163-2, entitled “Definitions,” is hereby amended by adding thereto a definition for the term, “sign contractor,” as follows:
SIGN CONTRACTOR: A person, whether doing business as an individual, a sole proprietor, a partnership, a limited liability partnership, a corporation, a limited liability corporation, or any other form of business entity, and including his or her agents, employees, assigns and subcontractors, who erects, alters or re-locates a sign for or on behalf of an owner.
2. Section 163-12, entitled “Administration and Penalties,” is hereby amended by adding thereto a new paragraph E, entitled “Penalties for Sign Contractor,” as follows:
E. PENALTIES FOR SIGN CONTRACTOR
If the Building Inspector or his/her designee determines that a sign contractor has erected, altered or re-located a sign in violation of § 163-3 of this Chapter 163, then, in addition to the remedies provided for in § 163-12.D above as against the sign owner, the Building Inspector or his/her designee may take the following actions as against the sign contractor:
1. The Building Inspector or his/her designee may enforce a violation of § 163-3 committed by a sign contractor by assessing a fine of $100.00. The fine shall be payable to the City of Marlborough, through the City Clerk's office.
2. As a non-criminal alternative to the penalty provided in sub-paragraph 1 above, the Building Inspector or his/her designee may, pursuant to M.G.L. c. 40, § 21D, treat violations of § 163-3 by assessing a non-criminal fine of $150.00 for a first violation; and (2) a non-criminal fine of $300.00 for each additional violation of § 163-3. A sign contractor commits a separate offense for each day a violation of § 163-3 continues to exist as solely determined by the Building Inspector or his/her designee.
3. In the event that a fine assessed pursuant to sub-paragraphs 1 or 2 above remains unpaid by a sign contractor as of the date when said sign contractor submits any new application for a sign permit, the Building Inspector or his/her designee may deny said application and may continue to so deny for so long as said fine remains unpaid.
3. The effective date of these amendments shall be thirty (30) days after their approval.
On a motion by Mr. Kerrigan, seconded by Mr. Coveney it was duly voted:
To accept and file correspondence.
Mr. Fay stated that he had received comments from Mr. Reid, the Building Commissioner, stating that that he wanted to review the proposed changes, and additional changes that could improve the sign ordinance with Ms. Savoie, the City Planner.~ It was discussed that this proposed amendment was intended only to provide code enforcement with an additional enforcement tool and that it was the consensus of the board that an amendment coming from the board should only address issues that are within the Board's usual subject matter.
On a motion made by Mr. Fay, seconded by Mr. Hodge it was duly voted:
To send the proposed amendment to the sign ordinance to the City Council for their consideration.
INFORMAL DISCUSSION
COMMUNICATIONS/CORRESPONDENCE
On a motion by Mr. Kerrigan, seconded by Mr. Coveney, it was duly voted:
To accept all of the items listed under communications and/or correspondence.
On a motion by Mr. Coveney, seconded by Mr. Kerrigan, it was duly voted:
To adjourn at 8:18 p.m.
A TRUE COPY
ATTEST: _____________________________
Steven Kerrigan, Clerk
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