March 14, 2011
7:00 PM
The Planning Board for the City of Marlborough met on Monday, March 14, 2011 in Memorial Hall, 3rd floor, City Hall, Marlborough, MA 01752. Members present: Barbara Fenby, Colleen Hughes, Clerk, Philip Hodge, Clyde Johnson and Sean Fay. Also present: City Engineer Thomas Cullen.
MINUTES
February 28, 2011
On a motion by Ms. Hughes, seconded by Mr. Johnson, it was duly voted:
To accept and file the meeting minutes.
CHAIRS BUSINESS
Communication from City Council
The City Council sent communication that Attorney Bergeron on behalf of Melanson Development will be proposing an Open Space subdivision which includes land that is currently part of the City of Marlborough’s sewer line.
On a motion by Mr. Fay, seconded by Mr. Johnson, it was duly voted:
To accept and file the correspondence.
APPROVAL NOT REQUIRED PLAN
PUBLIC HEARING
Proposed Zoning Ordinance change to RC Districts 7:15PM
The Planning Board of the City of Marlborough held a public hearing on Monday, March 14, 2011, at 7:15p.m. in Memorial Hall, 3rd Floor, City Hall, 140 Main Street, Marlborough to the Proposed Amendments to the Zoning Ordinance pertinent to Sections 650-21 and 650-22, and further, on Application of the Proposed Zoning Ordinance to the three existing Special Permits for retirement communities in Marlborough, Members present: Chairperson Barbara L. Fenby, Clerk Colleen Hughes, Philip Hodge, Clyde Johnson and Sean Fay. Also present: City Engineer Thomas Cullen.
Ms. Fenby opened the hearing at 7:16 and outlined the public hearing. Ms. Hughes read the first paragraph into the record and stated that there were copies of the whole advertisement were available for interested parties..
Notice is hereby given that the Planning Board of the City of Marlborough will hold a public hearing on Monday, March 14, 2011 at 7:15 PM in Memorial Hall, 3rd floor, City Hall, 140 Main St. Marlborough, Massachusetts on the Proposed Amendments to the Zoning Ordinance pertinent to Sections 650-21 and 650-22, and further, on Application of the Proposed Zoning Ordinance is to the three existing Special Permits for retirement communities in Marlborough, as follows:
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MARLBOROUGH THAT THE CITY CODE OF THE CITY OF MARLBOROUGH, AS AMENDED, BE FURTHER AMENDED BY AMENDING CHAPTER 650-21, ENTITLED “RETIREMENT COMMUNITY RESIDENCE DISTRICTS,” AND CHAPTER 650-22, ENTITLED “RETIREMENT COMMUNITY RESIDENCE DISTRICTS OVERLAY DISTRICTS,” AS FOLLOWS:
1. Section 650-21, entitled “Retirement Community Residence Districts,” is hereby amended:
a. by amending subsection C(3) thereof, by deleting the second sentence thereof, which heretofore read “At least 66% of the living area in each unit shall be located on the first floor.”
b. by amending subsection C(8) thereof, by amending the second sentence thereof, by adding after the word “provide” the following words:-- at least.
2. Section 650-22, entitled “Retirement Community Overlay Districts,” is hereby amended:
a. by amending subsection C thereof, entitled “Permitted uses”:
i. by amending the introduction thereof, by striking out in the sixth line thereof the following words:-- “and such additional multifamily housing units segregated onto a separate portion of the site, referred to herein as an ‘ancillary residential community,’ as the City Council deems appropriate,”.
ii. by amending subsection (3) thereof, by deleting the second sentence thereof, which heretofore read “At least 66% of the living area in each unit shall be located on the first floor.”
iii. by amending subsection (8) thereof, by amending the second sentence thereof, by adding after the word “provide” the following words:-- at least.
iv. by amending subsection (14) thereof, by striking out said subsection in its entirety, including sub-subsections (a) through (f), which heretofore read:
“(14) The following site development provisions shall apply to any ancillary residential community which is approved in conjunction with the granting of a special permit for the construction of a retirement community:
(a) Each building in an ancillary residential community shall face either upon an existing street or upon a public or private way constructed within said ancillary residential community and shall have a minimum front yard of no less than 10 feet from the edge of the paved way to the closest point of the structure. Each building, whether principal or accessory, shall be at least 50 feet from any other building by air line distance between the nearest points of the building.
(b) No dwelling unit shall contain less than 800 square feet of floor space exclusive of halls and stairs, and no room shall contain less than 120 square feet.
(c) No part of any building in any ancillary residential community shall be less than 30 feet from any lot line, less than 50 feet from any street, or less than 80 feet from the nearest structure in a retirement community.
(d) All site landscaping shall be designed so as to provide a clear sense of separation between the ancillary residential community and a retirement community. Landscape design preference shall be given to the maintenance of existing trees and ground cover. The development of large lawn areas shall be minimized.
(e) The City Council may, as a condition of any special permit which includes an ancillary residential community, require that the land area on which the ancillary residential community is located be permanently maintained as one undivided lot or, within a condominium, as one undivided condominium unit, or require such other legal mechanism as will, in the opinion of the City Council, assure that the said ancillary residential community will not be subdivided or its ownership further condominiumized, that said ancillary residential community will remain as rental housing, and that ownership of said ancillary residential community will remain consolidated.
(f) The total number of units in an ancillary residential facility shall not exceed 30% of the combined total of retirement community and ancillary apartment units.”
v. by amending subsection (15) thereof, by amending the introduction thereof, by striking out in the first line thereof the following words:-- “and which does not include any ancillary residential community”.
3. The effective date of these amendments shall be the date on which they are voted upon by the city council.
[END: Order No. 11-1002806-1]
That, as a result of the City Council’s approval of Order No. 11-1002806-1, the following special permits previously approved by the City Council, in its capacity as special permit granting authority, shall each be modified in the following respects:
1) Special Permit issued to Brigham Development Corp., 38 Brigham Street, Marlborough, MA for development and operation of land at 388 Boston Post Road East into a “Retirement Village” of condominiums, Order No. 97-7158B, adopted September 8, 1997. The second sentence in condition number 7 thereof, which sentence had read “At least 66% (sixty six percent) of the living area in each unit shall be located on the first floor,” shall be stricken and shall have no legal effect as of the effective date of Order No. 11-1002806;
2) Special Permit issued to Brigham Development Corp. and Williams Village, LLC, 38 Brigham Street, Marlborough, MA to construct a retirement community, Order No. 99-7967B, adopted April 5, 1999. The second sentence in condition number 7 thereof, which sentence had read “At least 66% (sixty six percent) of the living area in each unit shall be located on the first floor,” shall be stricken and shall have no legal effect as of the effective date of Order No. 11-1002806; and
Special Permit issued to Metro Park Corp., 929 Boston Post Road East, Marlborough, MA to construct a retirement community, Order No. 03-10022, adopted September 8, 2003, as amended by a Revised Special Permit issued to Toll MA Land Partnership, 250 Gibraltar Road, Horsham, PA to construct 69 townhouse residential retirement community units, Order No. 09-1002151C, approved June 22, 2009. The second sentence in condition number 7 thereof, which sentence had read “At least 66% (sixty-six percent) of the living area in each unit shall be located on the first floor,” shall be stricken and shall have no legal effect as of the effective date of Order No. 11-1002806
A copy of Chapter 650 and the proposed amendment material are available for review in the Office of the City Clerk, City Hall, 140 Main Street, Marlborough, MA.
Per order of the City Council
#10-1002512
Mr. Stephen Reid, the Zoning Officer, of the City of Marlborough presented the proposed changes to the Zoning Ordinance. He stated the following items are being considered:
· Living Area: 650-21; amend subsection C(3) thereof, by deleting the second sentence thereof, which now reads “At least 66% of the living area in each unit shall be located on the first floor”
· Parking Spaces: 650-21; amending subsection C(8) thereof, by amending the second sentence thereof, by adding “at least” after provide.
· Removing “Ancillary”: 650-22: amending subsection 14 to strike out said subsection in its entirety; including sub-sections (a) through (f).
Mr. Reid explained the reasoning behind all three points. He stated each condo unit typically has one or two car garage and parking spaces outside of the units as well. The adding “at least” will clarify that extra parking space is allowable.
In regards to the second point he wanted to address, Mr. Reid stated that the ordinance does not define what 66% of living space is considered. When the original ordinance was drafted, the main focus was on the first floor living space, not taking into consideration that homeowners in these communities may finish the basements for their use. Several homeowners in these developments have applied and have been granted building permits to finish their existing basements, changing the ratio of living space.
Mr. Reid stated that “Ancillary Residential Community” has never been utilized and should be removed from the ordinance since it unlikely to apply to any future RC communities.
Mr. Fay asked Mr. Reid if he had concerns that the proposed changes would limit a resident’s ability to age in place if more living space were allocated to the second floor. Mr. Fay also asked if the change in ratio could increase the density in a project. Mr. Reid stated that the population of the residents are active adults and they are looking to add media rooms, workout room or “man caves”.~~ The first floor of living does not change, one would still have the same amount of living space plus a master suite on the first floor.
Mr. Hodge stated the need to change the ordinance resulted from writing two specific design requirements into to the code originally. He also stated that this is a step in the right direction.
Ms. Hughes stated she was okay with the proposed amendment and that is makes sense to make the change.
Ms. Fenby stated she has the same concerns as Mr. Fay. She is concerned about the ability of aging adults and the units not being accessible for chair lifts if needed. Mr. Reid stated that the stairways one could be added and the developers are required to provide accessibility of requested. .
This portion of the public hearing closed.
In Favor
Shawn Knuckles
Toll Brothers Development
Project Manager
Mr. Knuckles stated that he was in favor to the change in the ordinance. He stated that the majority of the buyers are still active working adults. The units they are proposing to build would still have the whole living area on the first floor, but gives the options for finished basements. He also stated that if required units are outfitted for ADA requirements. He stated by removing the criteria of 66%, these units would be more marketable.
Arthur Bergeron
54 Shea Drive
Attorney Bergeron drafted the original ordinance when another developer was developing the first RC Community. He stated that they did not foresee the options of finishing the basements and the need to have more living area then just the first floor. He went on to say that the driving force behind this was the City Council at the time and there was limiting density was a concern when the ordinance was first drafted. He also stated that this idea makes a lot of sense.
In Opposition
No one spoke in opposition.
The Public hear was closed at 7:40 PM.
SUBDIVISION PROGRESS REPORTS
City Engineer Update
Mr. Cullen announced he had nothing formal; however his update included the following:
· Forest Trail: the acceptance plans are almost complete, still a few issues including the lock box;
· Cider Mill Estates & Berlin Farms: He has emailed NGRID regarding the light poles and when to expect them erected in the subdivisions;
· Shaungnessy Estates: The Bank has asked a developer who is researching what needs to be completed;
· Mauro Farm: He and Priscilla Ryder are working with the developers regarding the dirty water issue;
· Indian Hill: They have come into agreement about the pedestrian trail.
Purcell Farms, LDS Historical Preservation
Attorney Sandra Austin stated that she and Attorney Gadbois are working on the Historical Preservation Restriction for the exiting house at 197 Stow Road. In the special permit it states that “The owner of the property, before the commencement of construction, shall place a Preservation Restriction in perpetuity on the property”. However, to date, this has not been done.
Mr. Hodge asked if the Planning Board was the correct entity to be placing a preservation restriction on this property when the Historical Commission or the State Historical Commission would be better suited. Mrs. Austin stated that since there was no historical connection affiliated to the house itself, that the Planning Board could possibly designate the preservation.
On a motion by Mr. Fay, seconded by Ms. Hughes it was duly voted:
To ask the City Solicitor if the Planning Board is the right entity
to place a preservation restriction on the house located at 197 Stow Road.
PENDING SUBDIVISION PLANS: Updates and Discussion
PRELIMINARY/ OPEN SPACE SUBDIVISION SUBMITTALS
DEFINITIVE SUBDIVISION SUBMISSIONS
SCENIC ROADS
SIGNS
416 Boston Post Road East, Unit 5, Cyber Café
Attorney Arthur Bergeron is appealing the Building Commissioner’s decision to not allow new signs to be placed at 416 Boston Post Road East, Unit 5, “Cyber Café”. Attorney Bergeron explained his clients business consists of the sale of internet access services, which includes access to so-called “sweepstakes” games. Attorney Bergeron stated that there is no justification for Mr. Reid’s denial since both the freestanding sign and the flatwall sign are both conforming.
When Mr. Reid received a sign permit request stating “Cyber Café and Sweepstakes”, this alerted him of a use not defined in the zoning ordinance and may require a special permit by the City Council. He stated until the decision is made, he believes they are not entitled to a sign.
Councilor Delano stated he visited the site and came to the conclusion that he supports the decision of the Building Commissioner.
The Assistant City Solicitor, Cynthia Panagore-Griffin, stated that the sign ordinance allows the issuance of a sign only if that sign conforms to the provisions of the sign ordinance and all other applicable laws.
Mr. Fay asked Ms. Panagore-Griffin to clarify what standard the Board should use in making its decision.~ ~Ms. Panagore-Griffin stated that the Planning Board should consider whether the decision made by Commissioner Reid was an appropriate use of his discretion.
There was some discussion regarding the legality of the sweepstakes, however the issue was Mr. Reid’s decision to deny the sign outweighed that discussion. There was a clarifying discussion that this is not a variance appeal, but an appeal of Mr. Reid’s decision.
Mr. Fay stated that while he rarely disagrees with Attorney Bergeron, he is agreeing with Mr. Reid’s decision not allowing a sign to be placed. Ms. Hughes stated there was enough evidence to support Mr. Reid. Mr. Hodge stated that the Board may not be the right entity; however he supports Mr. Reid decision. Mr. Johnson stated he agrees with Mr. Fay and Mr. Reid’s decision. Ms. Fenby stated she backs his decision.
On a motion by Mr. Fay, seconded by Mr. Johnson, it was duly voted:
To deny the request of an appeal.
Devo’s Dogs, 655 Farm Road
Mr. Chris Devoe and Mr. Ronald Devoe are the owners of Devo’s Dogs; a food stand located at 655 Farm Road and were denied a sign permit from the Building Commissioner for the following reasons:
· Second freestanding sign on property is not allowed;
· No façade width provided to calculate allowed area
· Message board not permitted on signs less then 45 sq ft.
Mr. Reid stated the reasoning for the denial was because they did not have enough linear frontage to allow the second sign and no real façade length to determine if a sign was allowed. He also stated the site has more non permitted signs (a-frames) that are non-conforming.
Mr. Fay asked if the Planning Board was allowed to review the sign variance if the site itself does not conform to rules and regulations.
Mr. Chris Devoe stated that there has been plenty of support from the local community. There was some discussion on Mr. Devoe’s part regarding just a temporary sign until road work on Farm Road is completed, however Mr. Cullen stated that may not be for some time.
Mr. Reid suggested that Mr. Devoe may want to go back to the drawing board with his landlord and rework the existing sign to incorporate all the small business located at the site.
On a motion by Ms. Hughes, seconded by Mr. Hodge, it was duly voted:
To deny the sign variance without prejudice.
INFORMAL DISCUSSION
93 Framingham Road, Walker Estate
Open Space
Attorney Bergeron, Bruce Saluk and Bryan Melanson came before the Board informally to discuss the possibility of an Open Space/Comprehensive Permit for the Walker Estate. This property shows one dwelling unit on 5.82 acres of open space. They are proposing to have 8 conforming lots with their frontage along Framingham Road. They will be seeking a comprehensive permit to turn the existing estate house into 7 condominium units.
Attorney Bergeron stated that the current owner has not paid all taxes owed, making this property in tax title with the City Collector’s Office. He asked the Board if they can move ahead with the Open Space permitting since they are on a deadline to have a purchase and sale agreement by October. Ms. Fenby said they could make a condition of the findings that taxes would have to be paid prior to the signing of the special permit.
Ms. Hughes asked if this abuts the MCDC land since it is the backup drinking water supply for the State. Mr. Saluk stated that the water is still considered Class A water and will not be disturbed.
Copies were given to Mr. Cullen for an informal review. Mr. Bergeron stated that he will be formally submitting the project soon.
COMMUNICATIONS/CORRESPONDENCE
On a motion by Ms. Hughes, seconded by Mr. Johnson, it was duly voted:
To accept all of the items listed under communications and/or correspondence.
On a motion by Mr. Johnson, seconded by Ms. Hughes, it was duly voted:
To adjourn at 8:49 p.m.
A TRUE COPY
ATTEST: _____________________________
Colleen Hughes, Clerk
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